Mental Health Bill [HL]

My Lords, this has been a good debate. I was grateful to the noble Lord, Lord Carlile, for his kind words at the beginning, although, sadly, he did not stop there. I disagree with him about the Bill leading professionals towards unethical behaviour or being a code of practice for a turnkey situation. That is not the Government’s intention, nor is it the intention of the legislation. There have been constructive discussions between noble Lords on this matter. I recognise how important our understanding is of the meaning of ““appropriate treatment””. I hoped that the amendment would commend itself to noble Lords. It is clear that there are issues, particularly the meaning of ““or effects””, that need to be teased out. If noble Lords do not press this amendment to a vote, I intend to see whether there can be further discussions between now and Third Reading to clarify some of the uncertainties identified. I shall then speak to a number of the specific comments made. We want to ensure that detention and the other powers in the Act are only ever used for proper healthcare purposes. The Bill is not, nor has it ever been, about detaining people without offering them treatment. We wish to remove the treatability test, as discussed in Committee, because we believe that it has led to a culture in which too many people, especially those with personality disorders, are labelled untreatable. It is almost as though the treatability test has perversely been taken as a signal that those people are assumed to be untreatable. I well understand that the treatability test is not the sole cause of this problem, as a complex web of factors has come into play, but I am satisfied from my discussions with many people in the profession that the test seems to have been an important part of the problem in dealing with and treating—albeit a small number—people who undoubtedly require support. There are clearly misapprehensions about the Government’s intent in removing the treatability test and replacing it with the appropriate treatment test. One of the problems has been that many people approach the appropriate treatment test as though it were the only criterion to be met before a person could be detained. That is not the case. Before it even falls to be considered, a decision will have been taken that the patient has a mental disorder which makes it appropriate for them to receive medical treatment in hospital. If an application is being made under Section 3, not only must it be appropriate that the patient receives such treatment, it must also be necessary for their health or safety or the protection of others, and detention must be the only way of ensuring they get it. Secondly, it has been suggested—and a number of noble Lords have said so tonight—that the purpose of the appropriate treatment test is to permit the detention of people with personality disorders who are dangerous but who have not committed any crime. Nothing could be further from the truth. We hope that abolishing the treatability test will help change attitudes that have limited the services available for people with personality disorders and excluded them from available services. I understand the issue that the noble Lord, Lord Alderdice, raised about available resources. I understand that there are a number of factors. This is not a simplistic approach, but we think that the treatability test has inhibited the health service from providing the right care and treatment to the group of people we are talking about. Nothing in the Bill, in case law or in the Government's policy equates detention with medical treatment. Detaining someone is not treatment; even detaining someone in hospital is not treatment. It has been suggested that ““appropriateness”” is such a vague concept that it will give clinicians carte blanche and so make patients scared to contact mental health services. I understand those concerns. I would be concerned if that were the case. The last thing I would wish to do would be to discourage people seeking help which the service should be giving to them, but ““appropriateness”” is neither a loose nor a novel concept; it is already used in the criteria. Moreover, it captures the decision that needs to be made: is suitable treatment available for the patient? I have said that the appropriate treatment test does not give professionals carte blanche. As with any judgment they make in any field, clinicians must make their decision in a professional, ethical way and be prepared to defend it. Sometimes in our debates we have lost sight of the ethos of the professions we are concerned about. It has also been argued that the appropriate treatment test may require clinicians to act unethically, either by detaining people without treatment or by giving treatment they consider clinically inappropriate. I do not believe that the appropriate treatment test could possibly be said to force clinicians to act unethically; it is a test of whether suitable treatment is available. If clinicians do not think that such treatment is available, they will not—indeed, they must not—recommend detention. If a clinician subsequently discovers that the original assessment was wrong, and there is no appropriate treatment to offer, they must take the relevant steps to secure the patient’s discharge. The noble Earl, Lord Howe, asked, if appropriate treatment in some cases could consist of a therapeutic regime under clinical supervision that helped control the effects of a patient’s condition, what was there to stop such an approach in all cases? His description very much relates to the Reid case and the implications of it. It is implicit, surely, in the concept of appropriateness that what is appropriate for one person will not be appropriate for another. There are undoubtedly some patients—probably only a small minority—for whom the only appropriate treatment is the kind of therapeutic regime that, the Law Lords decided in the case of Reid, not only constitutes medical treatment but also meets the treatability test. They may be people with a mental disorder that is largely intractable but for whom some of their symptoms, at least, can be alleviated to a degree. Clearly, such treatment would not be appropriate for a person whose mental disorder was potentially curable or where medication, say, would be likely to have a greater effect than a supervised therapeutic regime. In other words, what is appropriate inevitably relates in part to what can be achieved. I do not see how it can allow anyone to be detained for treatment that has not even tried to achieve what can reasonably be expected to be possible. Furthermore, the appropriate treatment test has its own distinctive advantages. In particular, it requires a holistic assessment of the patient’s needs—their clinical needs and their personal circumstances. It requires that there should be treatment available that suits the patient’s needs in the round. I accept that there are lingering doubts about the appropriate treatment approach. That is why I have tabled government Amendments Nos. 8, 11 and 12. They provide in terms that references to medical treatment for a mental disorder means medical treatment for the purpose of alleviating the disorder, its symptoms or effects or preventing the disorder, its symptom or effects worsening. In other words, they make explicit what the Government have always intended to be implicit; namely, that the purpose of medical treatment under the Act must be to address the person's mental disorder or its effects. It follows that no treatment could ever be appropriate unless it has that purpose. Noble Lords have focused on the use of the words ““or effects”” and suggested that the provision is too wide and would allow a person to be detained just to stop them from carrying out certain activity. One suggestion was swearing, and there were one or two other suggestions about some activity which perhaps would be deemed to offend society as a whole. The reason for including the word ““effects”” is that if we do not say that the purpose can be to alleviate effects or stop them worsening, what would happen in the case of a person with a chronic condition for whom treatment could realistically only address the symptoms or effects? I simply do not recognise the wider fears that noble Lords have about the use of the word ““effects”” as an intent of the Government. As I have said, I am willing to take this matter back to allow for further discussions between Report and Third Reading to see whether further progress can be made. My tabling these amendments today reflects my willingness to listen to what happened in Committee and to take a positive approach. I am quite happy and prepared to continue that positive approach.