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5.30 pm
On top of that, most medical treatment is not subject to a “likelihood” clause—that is not the hurdle that we set. Many treatments are provided where there is only a one in four or a one in three chance of alleviating the condition. That is why we should move towards the purpose of the treatment being the most important element.
Dr. Evan Harris: I support the general direction in which the hon. Gentleman is going but remain a little concerned. Sometimes people are treated with a small chance of success because they are consenting autonomously and are not being forced into it. Moreover, they are able to carry out a risk-benefit calculation that may well fall on the side of benefit even if the treatment is not likely to be effective. In this case, we are talking about depriving someone of their liberty, so there is good reason for the hurdle to be high. I hope that the hon. Gentleman accepts that, and I am interested to hear him develop his point.
Chris Bryant:
I will go on to articulate more about why the concept of purpose embodies an element of likelihood. It would be wrong to say that we should
provide treatment where we know that there is no likelihood of any alleviation or prevention of deterioration in the condition; that would be unethical, wrong and counter-logical. However, the Lords phrased the amendment in such a way as to create a very high hurdle.
Mr. Tim Boswell (Daventry) (Con): The hon. Gentleman is making a powerful case. Does he agree—I think that this is helpful to his argument—that the concept of purpose in relation to medical procedures was imported at a late stage into the Mental Capacity Bill in the context of making it clear that euthanasia was not acceptable, and that that was done for precisely the reason that he is adducing—as part of the scope of the doctor’s considerations in making the intervention?
Chris Bryant: As is so often the case, the hon. Gentleman is absolutely right. It is a simple matter of logic that if someone says that they intend or propose to do something, and then set about doing it in a way that one could reasonably expect to have no likelihood of success, they cannot genuinely have intended or proposed to do it. Therefore, if the purpose of the treatment is
“to alleviate or prevent a deterioration in his condition”
one must believe that there is some likelihood of success. That is why I suggest to the hon. Member for Oxford, West and Abingdon (Dr. Harris) that the hurdle is not as low as he may fear.
During the debate in the House of Lords, Earl Howe spoke against a compromise amendment that was remarkably similar to the one that I proposed but spoke of symptoms and effects instead of symptoms and manifestations. He said:
“The effect of someone’s mental disorder may consist of alarm or affront on the part of the public because his behaviour has been violent and disruptive. Treatment that has the purpose of alleviating that effect—and no more than that—could consist of nothing more than locking the person up in a therapeutic surrounding away from the public view.”—[ Official Report, House of Lords, 19 February 2007; Vol. 689, c. 928.]
I believe that he was stretching a point and deliberately misconstruing what the word “effect” might mean, but let us be generous to him and say that there was some ambiguity in the word. Clearly, it is not right to detain somebody solely to prevent somebody else from being fearful of that person’s mental condition. I do not believe that that is what “effect” meant, and that it referred to the condition itself. However, that is why I have suggested “manifestation” instead of “effect”.
I also believe that Lord Carlile was wrong when he said in the debate in the House of Lords that somebody could be detained purely to treat that person’s Tourette’s syndrome. He appeared to ignore the fact that not only one but three tests must be fulfilled to detain someone because of their mental disorder. We should add a fourth, namely the availability of treatment. It is important that detention cannot happen unless the person is suffering from a mental disorder of a nature or to an extent that warrants that. On top of that, he should be detained in the interests of his health and safety or with a view to the protection of other persons. Given that all those tests must be met, Lord Carlile’s concerns about detention to treat Tourette’s syndrome are not valid arguments.
I have insisted on the phrase “symptoms and manifestations” in amendment No. 3 because I believe that the manifestation of an element of a mental disorder must have a direct relationship with that disorder. The relationship cannot be indirect; the manifestation must, by definition, be an element of the condition. The reason for the word “manifestation” is that it has a direct route into the mental disorder. Let me give an example. Somebody who is schizophrenic might suffer and be extremely angry because he has just split up with his partner. He might be furious with her. However, we should not be allowed to detain somebody solely to treat that anger unless the perhaps violent anger is a direct manifestation of the mental disorder from which he suffers. That is important.
Sandra Gidley (Romsey) (LD): Why did the hon. Gentleman use “manifestation” instead of “sign”, which is commonly used in the medical field?
Chris Bryant: I am grateful to the hon. Lady because she has enticed me into my next paragraph. I know that many clinicians say that it is standard clinical practice to differentiate symptoms and signs. Using that term in the Bill therefore appears nice and clear. A symptom is something that patients can articulate or feel to be part of the condition. A sign is what the clinician can objectively perceive. Those definitions are generally accepted, although some clinicians use “sign” differently, to mean either what a clinician can perceive through understanding of the clinical condition or what any person could perceive. That introduces an element of ambiguity.
More significantly, the word “sign” may have a clinical meaning but it has no clear legal meaning and consequently confuses the issue. The word “manifestation”, which has no clinical meaning, provides much greater clarity in the Bill because there must be a direct relationship between the manifestation and the condition.
On that basis, I hope that my right hon. Friend the Minister will share my understanding of “manifestation” and make that clear. All the organisations that have written to me and to her, asked for meetings with her and lobbied her as ferociously as me—our last meeting was this afternoon; I hope that we never have to discuss the Bill again after today, much as I like her—support that. I hope that she can put on record her precise understanding of “manifestation” and that she will say that the Government are prepared—perhaps uniquely—to accept an amendment from a Government Back Bencher.
I end by saying that we cannot always prevent suicide. I know from my own family and my constituents that there are cases in which it feels like suicide is likely to be the almost inevitable outcome of someone’s mental disorder. However, we should not wash our hands of people in that situation. Neither should we encourage the culture of blame, which all too often attends mental health services when somebody takes either their own or somebody else’s life. All too often when that happens, the newspapers will demand, “Let’s find the psychiatrist who let this person out.” We cannot completely eliminate risk and we have to be cautious about both detaining and releasing people. Furthermore, we should not give up seeking treatment for those who have personality disorders just because we have believed that the treatment was not very effective in the past.
A compromise is available here—a compromise between the extremely high hurdle that the Lords insisted on, which made no reference to symptoms or manifestations of the condition and stressed the likelihood of the treatment having a particular effect, and the version that the Government originally wanted. It is undoubtedly a compromise, but when the Minister rises to her feet, I hope that she will not just accept the amendment grudgingly. I hope that she will not feel that she is simply backing down. I hope, rather, that she will ardently embrace the amendment, because it will leave her with a better Bill.
Tim Loughton (East Worthing and Shoreham) (Con): I will speak briefly, because I want the Minister to have the opportunity of explaining why she is backing the amendment—ungrudgingly, as I am sure she will. We are very pleased, as are the vast majority of those who served on the Committee, to support the amendments tabled by the hon. Member for Rhondda (Chris Bryant). He made a forceful, intelligent and well balanced case this evening, as he did in Committee, which is why we said we were strangely endeared to his proposals. We thought then that they had a scintilla—or chinchilla, as I believe he reinterpreted it in Committee—of therapeutic benefit, which we believe is so crucial to the whole Bill and the whole principle of mental health. Throughout the Bill’s stages in the Lords and in this House we have tried to reinsert such a provision. Without it, a mental health Bill becomes a mental disorder Bill, as it threatened to do.
I shall repeat again the comments of those who were responsible for the Mental Health Act 1983: at its core was the point that it was essential that people should not be admitted to detention for treatment in hospital if their condition was not treatable. To do so, as the hon. Member for Rhondda said, is to make hospitals prisons by another name. We know that the number of people who have been subject to sectioning has gone up considerably, so there does not appear to be a problem under the treatability test at the moment. We need to retain some form of that treatability test. To remove the treatability requirement, whatever the Government’s intentions, is to permit indefinite preventive detention and to change the law from a health measure to one of social control, of which we have been fearful all along.
Mr. Boswell: Does my hon. Friend agree that ensuring the adequacy and attention of therapeutic treatments and intervention is, in fact, the best way of securing the safety of the public in almost all cases, and that the approach should be grounded in that and not focused at the control end of the spectrum?
Tim Loughton: Absolutely. Various members of the Committee have acknowledged time and again that the relationship between a mental health practitioner and a patient is a particularly sensitive one, which relies on trust perhaps more than in any other part of the national health service where people seek treatment.
If the Government back the amendment, as I hope they will, they will have moved substantially towards reintroducing a form of the therapeutic benefit treatability test, which is to be greatly welcomed. I very much welcome the language used by the hon. Member for
Rhondda. I entirely agree with him that a treatability test is not a curability test; it is about being able to provide some therapeutic benefit, some alleviation of conditions or whatever for the person concerned. The hon. Gentleman made that quite clear when he first proposed a version of the amendment in Committee. We wholeheartedly support the amendment.
5.45 pm
I have a few questions for the Minister, and I would like her to give the House some assurances. We query the use of the word “manifestations”. I gather that the parliamentary draftsmen had a problem with the term “signs”. I think that we have reached a suitable compromise on the semantics of the definitions, but it would be useful if the Minister confirmed that the word “manifestations” is intended to cover the same ground, and no more, than the term “signs”, which was the term that we originally suggested. “Signs” is a medical term used in connection with symptoms, meaning the evidence about the patient’s condition that is elicited by observation of the patient by the doctor. The symptoms are what the patient complains of. Will the Minister tell us what would be covered by the term “manifestations” that would not be covered by “signs”? The code of practice refers to symptoms, manifestations and behaviours arising from the disorder. I assume that behaviours are now not covered, and that the code of practice will be amended accordingly.
As the amendment relates to the definition clause, will the Minister make it clear—if she is going to accept it—that it will operate as a criterion for compulsion? In other words, will she confirm that a person may not be detained unless there is medical treatment available to him, the purpose of which is to alleviate, or prevent a worsening of, the disorder?
A point that I raised in Committee was that the purpose needs to have an evidence base; it should not be simply the subjective view of the clinician. We have now exchanged the term “likelihood” for “purpose”, and the purpose to treat someone has to be based on evidence that the treatment should achieve the purpose, and therefore has a more than 50 per cent. likelihood of success, as the hon. Member for Rhondda has said.
Chris Bryant: The hon. Gentleman might recall that, in Committee, I originally suggested that we use the word “intent” rather than “purpose”. As I understand it, in law, the word “purpose” is much stronger in insisting on an element of likelihood than “intent” would have been, which is why I used it.
Tim Loughton: I follow the hon. Gentleman’s argument about a more than 50 per cent. likelihood. I simply want the Minister to acknowledge at the Dispatch Box that this is the right understanding of the wording. On that basis, we shall be happy to add our support to the amendment. I hope that the Minister will, ungrudgingly, say that this is a sensible compromise and congratulate the hon. Member for Rhondda on introducing it into this important part of the Bill. This is an important principle underlying mental health law.
Dr. John Pugh (Southport) (LD):
The House owes the hon. Member for Rhondda (Chris Bryant) a deep debt of gratitude for providing a solution to the core
problem of the Bill. It is an ethical principle of medicine that its objective is to benefit patients, although it does not always do so. Detention by the NHS, as opposed to detention by Her Majesty’s prisons, has—save in rare cases of epidemic control—the goal of doing some real good to the patient. Indeed, the 1983 Act allows for the detention of seriously ill and at-risk patients, provided that there is a treatment likely to alleviate or prevent deterioration of their condition. That is the treatability test that, as the hon. Gentleman pointed out, applied to no one other than psychopaths and the mentally impaired. The treatability test left us with the problem of those with an untreatable personality disorder, which was dealt with without conclusion by the Joint Committee, and for which our Committee did not find a solution either. Some said that such people should be released, and I think that the hon. Member for Daventry (Mr. Boswell) said that they should be interned.
In Committee, the Government made some entirely reasonable points. One was that existing legislation could be used to ignore and duck hard-to-treat personality disorder cases. I accept that that is a problem. They also pointed out that a consistent and deliberate refusal of treatment by an aggressive psychopath, for example, could engineer his dismissal by establishing, quite reasonably, that he was not treatable. The Government therefore initially favoured the definition of treatability that stated that appropriate medical treatment was available. They pointed out, quite reasonably, that not all medical treatment goes beyond palliative treatment, and that chronic conditions are often dealt with by the management of symptoms rather than by an outright cure. The Lords, fearing that the proposals involved simple imprisonment under another name, defined “appropriate available treatment” in the old way, as treatment that was likely to alleviate or prevent deterioration of the condition, and we were back to square one.
The Rhondda amendment, if I can call it that, is an attempt to bridge the gap. It removes the word “likely”, and defines “medical treatment” as having the purpose of alleviating, or preventing the worsening of, mental disorder and its manifestations. It recognises that psychiatry is a relatively young science, and that remedies are not sureties or even always probabilities.
Even if it will not always prove successful, detaining desperately and seriously ill people who are at risk—which, as the hon. Member for Rhondda explained, is what we are talking about—with a therapeutic purpose seems to me to be generally justifiable, subject to the normal rules on advocacy, appeals, tribunals and so on. I believe that the amendment can and should be supported, provided that the Government and those who tabled it make it clear that by “manifestation” they mean symptoms rather than the public impact made by a person’s behaviour. Mental provision should not be about hiding people away and ignoring their conditions.
Dr. Richard Taylor (Wyre Forest) (Ind): I rise only to express my delight and amazement that the impassioned speech I had prepared to support this vital amendment is not necessary, and to try to allay the anxiety about the word “sign”. The full description is “physical sign”, meaning that which is found on physical examination of the patient. I am afraid I know very few psychiatrists who still possess stethoscopes, and I rather doubt that many of them actually examine patients. I entirely agree that “manifestation” is far the most sensible word.
The Minister of State, Department of Health (Ms Rosie Winterton): I congratulate my hon. Friend the Member for Rhondda (Chris Bryant) on assembling such a powerful coalition against me. There is not a grudge in sight.
My hon. Friend set out very clearly all the ways in which he had tried to address this difficult issue. Let me remind the House what the Government hoped to achieve by removing the treatability test in the 1983 Act and replacing it with an “appropriate medical treatment” test. I am sure that Members, especially those who served on the Committee, will know that—as I think everyone has now acknowledged—the treatability test did more harm than good. As my hon. Friend said, it required clinicians to predict that treatment would be likely to work before certain patients could be detained. As he also said, on occasion it has been misinterpreted as meaning that patients could be detained only if they could be cured, rather than treated. That led to a culture in which, too often, patients with personality disorders were turned away from services on the grounds that they were supposedly untreatable. My hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier) gave the example of a particularly disturbing incident in her constituency.
That culture was bad not only for public safety reasons but because of the trauma that it caused to patients, their families and their carers. It also held back the development of services for people with personality disorders, despite the clinical advances being made. I believe that as a result of our removal of the treatability test, such development will be enabled rather than frustrated by legislation.
The wording of the test has given some patients a perverse incentive to refuse to engage with treatment, in the hope of arguing that they cannot be detained because the treatment is not likely to work. I have been told of disturbing cases in high-security hospitals where patients have been advised by lawyers not to engage with treatment because it would lead to release. I know that all members of the Committee were concerned about that.
The new “appropriate medical treatment” test requires a patient’s medical treatment to be
“appropriate in his case, taking into account the nature and degree of the mental disorder from which he is suffering and all other circumstances of his case.”
That is much more than the treatability test currently requires. Nothing in that test requires medical treatment to be appropriate to the patient as an individual, and, unlike the treatability test, this test applies regardless of diagnosis.
Accusations were made that the new test would require detention without proper treatment. That is not the case, and is not what was intended. As my hon. Friend said, an amendment made in the other place would effectively have reinstated the treatability test, and in some cases would have made it worse by extending it to all areas of mental disorder. We removed that amendment in Committee because of the problems that it would have created.
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