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Session 2006 - 07
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Mental Health Bill [Lords]

Mental Health Bill [Lords]



The Committee consisted of the following Members:

Chairmen: Miss Anne Begg, † Frank Cook, Ann Winterton
Boswell, Mr. Tim (Daventry) (Con)
Browning, Angela (Tiverton and Honiton) (Con)
Bryant, Chris (Rhondda) (Lab)
Coffey, Ann (Stockport) (Lab)
Duddridge, James (Rochford and Southend, East) (Con)
Gibson, Dr. Ian (Norwich, North) (Lab)
Gidley, Sandra (Romsey) (LD)
Gwynne, Andrew (Denton and Reddish) (Lab)
Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
Iddon, Dr. Brian (Bolton, South-East) (Lab)
Kidney, Mr. David (Stafford) (Lab)
Loughton, Tim (East Worthing and Shoreham) (Con)
McCarthy, Kerry (Bristol, East) (Lab)
Moon, Mrs. Madeleine (Bridgend) (Lab)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
Pugh, Dr. John (Southport) (LD)
Rosindell, Andrew (Romford) (Con)
Walker, Mr. Charles (Broxbourne) (Con)
Ward, Claire (Lord Commissioner of Her Majesty's Treasury)
Williams, Hywel (Caernarfon) (PC)
Winterton, Ms Rosie (Minister of State, Department of Health)
John Benger, Committee Clerk
† attended the Committee

Public Bill Committee

Tuesday 1 May 2007

(Morning)

[Frank Cook in the Chair]

Mental Health Bill [Lords]

Further written evidence to be reported to the House:

MH 53 Pat Cull
MH 54 Royal College of Nursing
MH 56 King’s Fund
MH 57 Penny Stafford
MH 58 Dr. Philip Howard

Clause 5

Replacement of “treatability” and “care” tests with appropriate treatment test
Amendment proposed [26 April]: No. 17, in clause 5, page 3, line 13, leave out from ‘is’ to end of line 14 and insert
‘appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.’”.
The Chairman: I remind the Committee that with this we are discussing the following amendments:
No. 59, in clause 5, page 3, line 13, leave out ‘likely’ and insert ‘intended’.
Government amendments Nos. 19 and 20.
10.30 am
Question again proposed, That the amendment be made.
Dr. John Pugh (Southport) (LD): I thought over the weekend that we could perhaps rename the Bill “Mental Health (Fear of Psychiatrists) Bill”, because amendment No. 59 is largely about what we fear psychiatrists might do, and what psychiatrists fear that other psychiatrists might do, which is to incarcerate individuals to vex and/or neglect them under the loosely worded phrase “appropriate treatment”. The question whether the fear of psychiatrists is a diagnosable phobia or a rational suspicion also crossed my mind.
However, the Lords’ proposed amendment to the Mental Health Act 1983 would not strike out “appropriate treatment”, it would define it as treatment that is
“likely to alleviate or prevent a deterioration”
of a condition. “Appropriate treatment” is seen simply as a wider category; the proposed amendment seeks to narrow it down.
From what I have been able to gather, simple “appropriate treatment” and treatment that is
“likely to alleviate or prevent a deterioration in”
a condition are seen as different by those on the two sides of the argument. Most accept that any treatment that alleviates is appropriate, but that the converse does not follow. There are two main reasons for that. First, “appropriate treatment” may fall short of “alleviating treatment” or treatment that prevents the worsening of a condition; secondly, the reservation on the other side of the argument is that “appropriate treatment” cannot always be guaranteed to alleviate. The Mental Health Alliance argues that if appropriate treatment falls short of being alleviating treatment, it will lead to detention without therapy, medical purpose and, therefore, justification. That is a strong and robust argument.
The Department of Health, citing various examples, argues that if guaranteed treatment cannot be offered, no treatment can be offered to those who otherwise meet the criteria for compulsory treatment. I can cite one example myself. There is a lad in my constituency who was knocked down by a police car that was travelling at 70 mph. He would normally have died. He recovered, but with significant brain impairment that left him without any real sense of responsibility. There is effectively no treatment available to him—nothing that anyone can identify as a cure. The manifestations of the impairment in his behaviour so far are that he has endeavoured to set his family home on fire, exposed himself on a train, jumped out of a top floor window and a range of other things.
I have personally written to all of the agencies concerned with his care, including the probation service, to ask what can conceivably be done. They have responded by holding various case conferences, but it is not obvious that anything can be done. I have had to say as much to his father, and to write to everybody concerned to say that if something happens, it will be of a severe nature and that I suspect that the forces of law and order will necessarily and unfortunately be involved. Cases such as that have to be addressed by those on both sides of the debate.
Both sides have made strong and seemingly opposite cases. The Lords’ amendment is effectively in line with the 1983 Act and the treatability test, although I accept that some would like to see that strengthened substantially. On the other hand, the Department of Health argues that untreatable patients are refused treatment not because they are untreatable, but because they are treated as untreatable. That is one of the arguments that the Department gives for its position, but it is a slightly weak argument, because it is not against the test itself; it is an argument against the application and interpretation of the test and for better-trained psychiatrists, and it illustrates once more the general fear of psychiatrists.
The Department of Health also argues that not all appropriate treatments immediately alleviate or prevent the worsening of a condition; that when a person is sectioned, they may deteriorate rather than improve. That is also a weak argument. Many physical treatments have exactly similar effects. Chemotherapy, for example, does not produce immediate improvements—treatments should be judged over the long term.
There are two further considerations that slightly muddy the water. The Mental Health Act 1983, which we have lived with for 24 years, contains different concepts of treatment. For urgent treatment, the standard is reduced to what is acceptable. The Scottish legislation, which is praised by the Royal College of Psychiatrists, allows treatment to deal with the effects of a disorder. That is a very broad categorisation. The narrowness of the gap between the two sides, together with the variations in the discussion of treatment, suggests that one could, and possibly should, believe that an acceptable compromise can be reached.
Mr. Tim Boswell (Daventry) (Con): I am following the hon. Gentleman’s argument with great interest and care. Does he agree that one of the difficulties—which may be suppressed and not always made explicit in the argument—is that different professionals may have a view on the treatability of an individual, but feel that their professional reputation would be at risk if they sought to treat, or claimed to be treating somebody, and there was no improvement in that person’s condition? Does that not further complicate the issue?
Dr. Pugh: I agree, if that is empirically the case. The interesting thing about the debate that we had on impairment is that we all believed, and the psychiatrist said, that when applying the concept of impairment to an individual, the same conclusion would be reached by everybody. It is not obvious to me that they should not equally come up with the same conclusions when applying a concept of treatability. Why would they come up with different conclusions in the one case and not the other?
Given my belief that there is scope for some kind of dialogue, as opposed to mutual campaigning against each other, I found the amendment tabled by the hon. Member for Rhondda fairly helpful. I did not agree with it wholeheartedly, but he tried to define legitimate treatment—treatment that is the basis for some degree of coercion— as having the intention of alleviating rather than being “likely to alleviate”.
Unfortunately he is not here, but he was endeavouring to lower the bar as to the treatments that are permissible, while seeking to outlaw anything that cannot reasonably be expected to be efficacious. He was challenged by my very acute colleague, my hon. Friend the Member for Romsey, on precisely that point. He said that
“intention must always include an element of likelihood, although likelihood is not predominant... There is always an element of likelihood in any degree of intention”.——[Official Report, Mental Health Public Bill Committee, 26 April 2007; c. 133.]
I guess he was saying that one cannot honestly intend something that one has no reason to expect. The Liberal Democrats, of course, intend to form a Government soon, which implies that we have a reasonable expectation of doing so. To be wholly acceptable to anybody, his amendment must explicitly incorporate the concept of reasonable expectation.
Another change that would help to move things forward in a positive way is to incorporate a care plan, and a review of it, for anybody who is subject to coercive treatment, as found in the Mental Health (Care and Treatment) (Scotland) Act 2003. That would spell out what was to be done and how it was to be monitored and evaluated, and could be the basis for an appeal. There is further debate to be had—this is a big issue.
Mr. David Kidney (Stafford) (Lab): In a genuine spirit of considering the hon. Gentleman’s point about whether there is a middle ground, I note that in the Mental Health Act 1983 treatability is a test for two conditions, but not for two others. If we were to return to focusing on benefit to the patient as the overriding aim, rather than treatment that alleviates or prevents a deterioration in a condition, might that be a potential way to reach the sort of compromise about which the hon. Gentleman is talking?
Dr. Pugh: That certainly demands looking at, and we should examine the 1983 Act further to see exactly what it says. Many of the criticisms that I make of the Bill are also criticisms of the 1983 Act.
Mr. Boswell: I wish to take up the helpful suggestion made by the hon. Member for Stafford and draw on the concepts and principles of the Mental CapacityAct 2005, in which the best interests principle is paramount, although not exclusive. I do not wish to muddy the waters further, but the suggestion that the action taken should be for the benefit of the patient seems a reasonable filter against unreasonable action.
Dr. Pugh: Well, again, I agree. It is unfortunate that the Government did not accept statements to that effect as a preamble to the Act or as a statement of principles. Had they embodied a statement of principles right at the start, many of the difficulties that we are now in would have been avoided. It is a big, complex issue.
Ann Coffey (Stockport) (Lab): Does the hon. Gentleman agree that there is also an element of confusion? When we talk about medical treatment we have an idea of what it is—basically medication for illness. That is why a comparison is often drawn between treatment for a mental disorder and treatment for a physical ailment. However, in the 1983 Act the definition of medical treatment is quite wide and includes psychological treatment. Further down the line, that will probably bring us to a debate aboutthe definition of a responsible clinician, but I imagine that for a certain group of people a psychological intervention can be more helpful than one based on medication. The situation adds to the confusion about what the treatment is designed to alleviate, because we necessarily make a comparison with physical illnesses.
Dr. Pugh: We are unravelling a further level of complexity that is well worth going into. Part of the problem is that when people think of treatment for psychiatric patients, they almost invariably think of medication or, worse still, surgically invasive techniques of one kind or another. That has by and large been the history of dealing with the more drastic cases confronting psychiatrists.
Given the complexity of the issue, which we have touched on and which has been widely accepted in the Committee, I do not believe that it will be resolved simply by the Government’s gainsaying or reversing the Lords amendments. The reasons that they have given for doing so are not as persuasive as they ought to be for such a radical move.
Tim Loughton (East Worthing and Shoreham) (Con): I welcome you back to the Committee, Mr. Cook. I congratulate the Minister, the hon. Member for Watford and their colleagues on their 10th anniversary today. [Hon. Members: “Ah.”] Wait for it. I fear that I am the only Opposition member of the Committee from the 1997 intake, but the message of the 1997 election has never been more appropriate—“Things can only get better”.
The clause is one of the most crucial parts of the Bill on therapeutic benefit, which was the key to the 1983 Act and has been described as the linchpin of the way in which we apply medical treatment provisions. When the then Under-Secretary of State for the Department of Health and Social Security, Lord Elton, introduced the Bill that became the 1983 Act, he stated that if he were asked to list briefly the most important and beneficial provisions in the Bill, they would be the requirement that except in particular circumstances—by which he was referring to learning disabilities—people should not be admitted to detention for treatment in hospital if their condition was not treatable.
10.45 am
Under section 3 of the Act, reasons for admission for treatment were classed in three categories:
“He is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.”
[ Interruption. ] That definition was all-encompassing for the protection of the individual and for the safety of the public. It is for the Government to make a case that those treatability criteria are no longer appropriate. The burden of proof is on the Government to make the case for changing what was in the 1983 Act, which has served us well in the past 24 years.
Mr. Kidney : I am sorry to shout at the hon. Gentleman from a sedentary position. He said that the provision in the 1983 Act was for the health or safety and the protection of other persons; I point out that the Act actually said,
“for the protection of other persons.”
The hon. Gentleman is suggesting that treatability is a test and that the Government are taking it away, but his reading of the 1983 Act has just told us that treatability is a test in the case of mental impairment or a psychotic condition, but not for a mental disorder or a severe mental impairment. The present position is balanced 50:50; surely he should make the case for extending treatability to the other classes.
Tim Loughton: I am sorry if the hon. Gentleman misheard me or if I misread the quote. The Act certainly says “or”, so I was not trying to make any other case.
The Government are trying to make the legislation and it is for them to make the case. We will come to the treatment of people with personality disorders later in the Bill. The number of people subject to sectioning hit a record high last year, so it is not as if people are falling through the net under the existing legislation. More than 47,000 people were subject to sectioning, which is nearly double the figure of 10 years ago. Of those 47,000, 20,000 were sectioned after voluntary admission to a hospital. If the Government were saying that a whole load of people have escaped who should have been sectioned for their own protection or that of the public, they would have a stronger case, but the reverse has been true. That is why I say that the onus of proof is on the Government to show the need for what we think is such a drastic change. It has implications not only for the mental health field but for the way in which all health practitioners deal with their patients.
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. To remove a therapeutic benefit test is to penalise and stigmatise the large number of mental health patients who pose no threat to anyone other than themselves, in order to ensure that a small minority who are dangerous but untreatable are kept under lock and key. The Government have in mind a small group of people, but there is nothing in the Bill to ensure that the provisions are applied only to that small group. It is a classic example of hard cases making bad law.
Ann Coffey: The hon. Gentleman has just said that the provisions will mean that some people who are not a danger to themselves or others will end up in detention, but he must accept that the test of whether a person is a risk to themselves or others should remain in the Bill.
Tim Loughton: Yes, but the net has widened greatly. The terms under which somebody can be taken into detention have widened. Perhaps more damagingly, the impression and perceptions given to people mean that they will now not present, on the basis that they could quickly and easily become subject to a compulsory form of treatment rather than a voluntary one. That is why the fears that many of us who are involved with the Mental Health Alliance—particularly those from black and minority ethnic communities—have about this part of the Bill are so much greater than our concerns about other parts.
The Minister of State, Department of Health (Ms Rosie Winterton): The hon. Gentleman talks about people not presenting. Does he not accept that people with personality disorders for which treatment is available are deterred from presenting themselves if they continually receive from the mental health services the message that they are untreatable? We know that that happens at the moment; it is what the change that we are trying to bring about is intended to overcome.
Tim Loughton: The Minister has got to get her line straight. In a speech a few months ago, her own mental health tsar said that personality disorders could now be treated much more easily, and that people would not be shrugged off and told, “We cannot treat you, so go away.” The Lords amendments entail there being as wide a remit as possible—if treatment is available, people can be subject to the order whether or not they agree to it. The Minister’s apocryphal story, which has not been backed up by any of the experts to whom we have spoken, about lawyers hawking their wares around Broadmoor and advising clients to refuse treatment on the basis that they make themselves untreatable and can therefore do a quick flit, does not apply. So long as the treatment is available in Broadmoor, or wherever else they might be, it will be possible to detain them under the terms of the Lords amendments. The scenario of which the Minister warns does not apply.
Mr. Boswell: The good news reported by the mental health tsar is that there is a diminishing population of persons who are not going to be given treatment. Does my hon. Friend agree that it automatically follows from that that the population of people who would be covered by the Government amendment will diminish year on year? If there has not been a problem under the 1983 Act, except in one or two notorious cases, why is there any suggestion that there should be a greater problem under this legislation before it is amended by the Government?
Tim Loughton: My hon. Friend is right. This is a diminishing problem, thanks to the increasing availability of treatment. I received a ministerial reply the other day about the number of people who would be classified as having dangerous and severe personality disorder. It is small compared with the number of people suffering from some form of mental illness, the vast majority of whom are already subject to other restraining orders.
Ms Winterton: I just want to find out exactly where the Opposition are coming from. The hon. Gentleman’s argument is that medical treatment must be available to suit the needs and circumstances of the individual. That is a high test. However, he seems to be saying that somebody who refuses to engage with psychological treatment should no longer be in Broadmoor even if he poses a threat to himself or others. Is he saying that somebody who makes himself untreatable cannot be detained? I do not understand why he made the comparison with people in Broadmoor. Can he explain?
Tim Loughton: It is a bit difficult to explain, because I am not entirely sure what the question was. My point about the Lords amendments was that “appropriate treatment” is the phrase that the Government wanted to add. In the Lords, there was a great deal of compromise to try to accommodate the Government. There was almost a middle way, but in the end the Government did not go far enough. The point is that appropriate medical treatment, which the Government are trying to add to the 1983 Act, is available to the individual. It is not that it will definitely work for him—we know that there is a balance of possibilities and probabilities—or that it is likely to work for him, but that it is available to him. That is the Government’s duty. If the Government are running the health service properly, they have a duty to ensure that where treatment is possible—be it in physical or mental health—it is available. On that basis, the person who is in Broadmoor because professional clinicians think that he should be will remain there—so long as all the criteria apply for keeping him there—whether or not he agrees to be treated, on the basis that treatability is satisfied because the treatment is available.
Ann Coffey: I want to go back to the hon. Gentleman’s statement of widening the net, which takes into account some of the recent discussion. Does the hon. Gentleman accept that the effects and symptoms of personality disorders can be improved by psychological interventions, which is why we have got a definition of medical treatment that includes psychological intervention? Why does he think that it is a bad thing for people who have personality disorders, which can be alleviated, helped or treated by psychological interventions and who are a danger to themselves and to others, not to be detained?
Tim Loughton: The answer to the first part of the hon. Lady’s question is yes. Clearly, all sorts of treatment exist—other than drugs or conventional psychiatric treatment—that can be deemed to alleviate or to contain symptoms, and that includes psychological therapies. However, our point is that this widening of the net which, whatever the Government say, is a widening of the net and is very much perceived as that, is predicated on a community of people with dangerous and severe personality disorders, which amounts to 2,000 to 2,500 individuals in the prison population, and some outside. This coercive legislation is being targeted at an enormous constituency of people, based on the problems that we may or may not have with a few thousand people with severe personality disorders.
We believe that the Government should apply separate legislation for those people that is not based on a health legislation requirement because there is not automatically a health benefit in every case. The pre-legislative scrutiny Committee said that people with severe personality disorders are not an easy constituency to deal with, and that they should be dealt with by Home Office legislation. In order to contain them for crimes and offences that they have not committed, and for dangers that they have not shown, there should be a Home Office rather than a health measure, which has an obvious therapeutic benefit.
Ms Winterton rose—
Tim Loughton: The Minister is bursting to intervene. I will give way for the last time, and then I will move on.
Ms Winterton: I find that absolutely extraordinary. We know that there are people with personality disorders who are not necessarily a danger to other people, but who may be self-harming and suicidal because of the terrible time that they have had in their lives. They may have suffered physical, emotional or sexual abuse. The hon. Gentleman is suggesting that those people are dealt with under Home Office legislation. How stigmatising and discriminatory is that? I find it extraordinary that the hon. Gentleman and Opposition Members could be going down that line. I would like to know what would be in that legislation, which would take a particular group of people with a personality disorder and legislate separately for them in the Home Office. That is amazing.
Tim Loughton: The implications of what the Minister is trying to achieve is going to stigmatise potentially many millions of people by subjecting them to mental health coercive legislation, which they need not be subjected to and which they certainly perceive they will be subjected to on the basis—
11 am
Ann Coffey: Will the hon. Gentleman give way?
Tim Loughton: If the hon. Lady will forgive me, I will not give way as I know the Whip wants to move on.
Ann Coffey: So do we.
Tim Loughton: I am quite keen to move on as well. I have only made my introductory remarks.
This will happen on the basis of how one deals with a small number of people with a severe personality disorder. The entire community of people with all grades of mental illness, who would not necessarily have been caught in this net before, will be highly stigmatised under the Minister’s proposals, rather than just a few thousand whom we know it is very difficult to deal with.
Ann Coffey: Will the hon. Gentleman give way?
Tim Loughton: No, I am going to move on. [Hon. Members: “Give way.”] Well, if the hon. Lady is that desperate, I will give way once more.
Ann Coffey: I was only interested in the hon. Gentleman’s opinion of psychiatrists. Does he believe that we need to be protected from psychiatrists because left to their own devices or under this legislation they will incarcerate hundreds of us at a moment’s notice?
Tim Loughton: Perhaps it was a bit foolish to give way to that. Of course we do not need to protect ourselves against psychiatrists, but what psychiatrists and other mental health professionals need more than ever is clarity from the legislation about how they can deal with their patients. They need to know the parameters so that their decisions will not constantly be hauled up in front of courts or mental health tribunals and challenged. They need to know the limits of what they can do.
There is also the safety first danger: certain professionals will always seek the safer option of subjecting people to some form of sectioning on the basis that if they do not and their judgment subsequently turns out to have underestimated the danger a person posed, they would carry the can. We need a balance, and we need professionals to be able to exercise that balance. The implications of what is being proposed, however, will drive people away from contact with mental health services in the first place. The professionals will not be in a position to make that balanced judgment because people will have gone underground. That is our biggest fear of all.
In terms of extending the net, the Mental Health Alliance states:
“The scope of the appropriate test, being wider than the treatability test, will bring within reach of compulsion many people who are not within the current Act and should not be. Indeed the effect of placing this test in the 1983 Act is to broaden it even further than in the 2004 Bill which had a higher threshold for admission to compulsory powers for people at harm to themselves than does the amended 1983 Act.”
The Law Society has also commented:
“As a matter of medical and legal ethics, mental health law should not be used to lock people away because they are perceived to be dangerous but for whom no beneficial treatment can be found. That is the province of criminal law.”
That is the point that I was making just now. The Government’s appropriate treatment test, on its own and as it was before the amendments were added in the Lords, is so vague that it gives almost unlimited powers to clinicians and too little basis for a legal challenge against a person’s detention. That would be the field day for lawyers and clinicians at tribunal hearings that the Minister is always warning us about.
The Lords did not try to wreck this part of the Bill. They endeavoured to find a common way of proceeding and some compromise with the Government. Hence the incorporation of the term “appropriate treatment”, which was not originally envisaged by those opposed to what the Government were trying to do. They want to keep the treatability test for therapeutic benefit, but it becomes a test of what is appropriate medical treatment that is available to the patient. It combines a therapeutic benefit test with the Government’s appropriate treatment test. Those patients who refuse to accept treatment will now still be covered, so the Broadmoor escapee test, which the Minister keeps imposing on us, is catered for as well there.
Contrary to what the Government allege, the test does not require a prediction that a particular outcome will be achieved for the patient; it simply requires a likelihood that the situation will improve or that the deterioration will be prevented, which includes any symptoms of the condition. It does not need to address the underlying disorder. I think that that is a point that Lord Warner failed to grasp during the debate in the House of Lords. A memorandum submitted by the Royal College of Psychiatrists said that
“this level of predictability is not so different from physical health and is no barrier to detention.”
Lord Warner admitted in Committee in another place that this is a less onerous test to satisfy than the therapeutic benefit test that was proposed by the Mental Health Alliance in its evidence to the joint scrutiny Committee. The appropriate treatment test must be understood together with the new and broad definition of medical treatment in the Bill. As the hon. Member for Stockport said, medical treatment includes nursing, psychological intervention, specialist mental health rehabilitation and care.
I would like to move on to the treatability of people with personality disorder. Until the development of psychological therapies, it was difficult to treat people with personality disorders, because the services were not in place. We have moved on a long way in the past 24 years, hence the need for the Bill. Professor Lewis Appleby, in a recent speech that I alluded to earlier, acknowledged that there is now evidence that many people with a personality disorder can be treated and that the appropriate services are now being developed. He has referred to the fact that the National Institute for Health and Clinical Excellence is considering turning the evidence into clinical guidelines. So it is a shrinking constituency of people who pose a problem in this matter.
When the Joint Committee on Human Rights looked at this part of the Bill, it said that just as
“the Joint Scrutiny Committee concluded that a proper test of therapeutic benefit was an essential component of the law”,
the JCHR criticised the breadth of the test too. I should like to quote its original comments on the draft proposals:
“Whatever this Government’s intention, the wide definition of ‘medical treatment’ in the draft Bill would allow people to be detained where the only treatment that could be offered was ‘care’ under the supervision of an approved clinician. The draft Bill does not, in terms, say that the powers could be used only where professionals believed that they could offer effective treatment in the wider sense of a therapeutic programme with a reasonable chance of mitigating the patient’s condition.”
More recently, the Committee’s report said that
“We consider that the principal legitimate aim for which medical treatment may be imposed under Article 8(2) is health, even if incidental purposes may be the prevention of crime or the protection of the rights and freedoms of others.”
There is a problem with the Government’s approach. The Minister has spoken before about the treatment-resistant patient. The Committee also stated:
“It is inherently unethical to permit people to be detained in hospital or to otherwise have their lives controlled, because of their ill health or their personality, when they do not obtain any benefit from it...It would be profoundly discriminatory towards a particular group of people, who are already unfairly stigmatised within society and who are therefore easy—even popular—targets for further discrimination.”
One wonders how uneasy society would feel if it were proposed to detain all young adult males with acknowledged problems of anger management so that they could be subjected compulsorily to treatment programmes that may have no impact.
Furthermore, as the MHA has said, if the Government want to introduce preventive detention for people with personality disorder who are dangerous, they should do so honestly. I think that the comments of Lord Carlile in the Lords are very relevant. Hesaid:
“If it is the case that this Government believe that certain people should be locked up as a result of certain criteria, a sort of control order regime for dangerous people—and there is a precedent to start with—let them bring forward a Bill to this House and the other place and it will be considered on its merits. Parliament will then be able to adjudge whether it is necessary, and if so in what terms, to place restrictions on dangerous people who cannot be treated. But in terms of a mental health Bill, if this really is a Bill on mental health and not, as has been suggested by another Member of your Lordships’ House, merely a Home Office Bill in disguise—a way of securing, as Professor Eastman put it, “locking somebody up”—the Government really need to accept that their appropriate treatment test simply does not add up to anything involving improvement to health.”—[Official Report, House of Lords, 10 January 2007; Vol. 688, c. 304.]
It is not just the Opposition, therefore, who are saying that the Bill contains elements of a Home Office Bill; there is a consensus on that view among a broad group of people, and it is a real fear. The Minister must make up her mind whether the Bill is about treating people—giving them therapeutic benefit—for an illness that just happens to be mental illness, or about a convenient way to detain people who do not fit into particular categories and who are slightly troublesome to her and her colleagues.
Angela Browning (Tiverton and Honiton) (Con): The Disability Rights Commission has written to the Committee about this part of the Bill, saying:
“The Bill previously abolished the treatability test—requiring only that treatment should be available in a therapeutic environment but without any reference to any positive health benefit for the patient—which would have raised huge issues under the Human Rights Act.”
The Government have said in the Bill that their proposals comply with the Human Rights Act 1998, but the Disability Rights Commission knows a little bit about such things, so if it supports my hon. Friend’s position, the Government should surely ask their lawyers to reconsider the matter of compliance.
Tim Loughton: My hon. Friend is absolutely right; the issue is one on which the entire Mental Health Alliance is agreed, although no doubt at 4.31 pm the Minister will pull out a memo from someone that claims to disagree. That is what she did last week with the communication from the Royal College of Nursing, but it turned out that the college did not disagree with the MHA at all; indeed, it has rather taken exception to her claim about its view on impaired decision making. She might wish to have some conversations with the RCN about that. My hon. Friend is right about the extent of concern among professionals, practitioners, service users, service providers and charities aboutthe implications for people who suffer from mental illness.
Ms Winterton: The hon. Gentleman proposes separate legislation. When the hon. Member for Tiverton and Honiton came to see me about autism, she brought with her a psychiatrist who said that
“there are cases in which people with autism are told that they are untreatable”.
Is the hon. Gentleman proposing to include them in his separate legislation as well?
Tim Loughton: They certainly would not be locked up, as the Minister seems to want.
Mrs. Madeleine Moon (Bridgend) (Lab): I return to amendment No. 59, which was tabled by the hon. Member for Rhondda and myself. In its submission MH6, the British Psychological Society recognised the need to update the definition of treatability in the 1983 Act because
“many psychological approaches might not meet the Act’s definition of ‘treatment’.”
The society recognised the continued need for a test of therapeutic benefit, however. There has been consensus in our debate this morning that psychological treatments play a major part in mental health treatment, and although they do not “treat” as such, they are, in the society’s words,
“intended to alleviate or prevent a deterioration of many mental health problems”.
As was suggested in our amendment, it is the intention to provide that is the appropriate test.
Tim Loughton: I am grateful to the hon. Lady. The hon. Member for Rhondda has sent his apologies for not being here this morning. I believe that I said on Thursday that I was strangely attracted to amendment No. 59, and I shall refer to it in my closing remarks.
Mr. Boswell: In case we lose sight of the point made by my hon. Friend the Member for Tiverton and Honiton, of which I have some indirect experience, let me say that I think it would be much more defensible for a Government to be able to say in response to Human Rights Act challenges that mental health is one thing and is covered by the mental health legislation, but that if there are cases that are not treatable they are covered by discrete legislation that deals with them expressly. The explanation and the defence would be by reference to public safety, rather than causing confusion of terminology.
Tim Loughton: That is exactly the point I am trying to make, which the joint scrutiny Committee made, too. A very large constituency of people will potentially be subject to a greatly widened net of increased coercion on the basis that there is a particular set of people with whom we know there are problems, which is why they need to be dealt with separately. They can be tightly defined, as the Minister said in answer to my parliamentary question.
11.15 am
Dr. Doug Naysmith (Bristol, North-West) (Lab/Co-op): Is the hon. Gentleman arguing that there must be some criminal justice legislation available to deal with the sort of people he is talking about, who have not committed any offence? I was a member of the joint scrutiny Committee, which said what he was saying, but we did not get our heads around how to identify such people and treat them under the criminal justice system if they have not committed any criminal offence, although their behaviour may be difficult in other respects.
Tim Loughton: The hon. Gentleman is right, but there is a precedent. The Government are subjecting terrorists to containment through Home Office legislation, without firm evidence of their having committed an offence.
Ms Winterton: So they are terrorists now, are they?
Tim Loughton: It may be convenient for the Minister to try to draw an analogy between terrorists and people with dangerous, severe personality disorders. My point is that the precedent exists in legislation from her own Government. If we are to deprive people of their liberty or to force treatment on them against their will although they have not committed an act that would be punishable in law at present, it must be under Home Office legislation, which is subject to judicial process. It must be for us, as parliamentary legislators, to debate on the basis of Home Office legislation, rather than of therapeutic benefit under Department of Health legislation. The hon. Gentleman and I will concur on that conclusion, which the joint pre-legislative scrutiny Committee came to without necessarily having stipulated how it would be done. The principle of how it should be done was clearly set down and we need to debate it, but we should not muddy the waters by trying to raise the threshold for everybody with some form of mental illness based on a very small and difficult constituency of people.
Dr. Naysmith: The hon. Gentleman is being very generous in giving way this morning. We are dancing on the head of a pin when we try to decide whether this should be Home Office or Department of Health legislation. The people whom we are discussing are in some ways ill, but they may not be treatable, so should they come under Home Office or Department of Health legislation? I repeat the point: I agree with the hon. Gentleman that the joint scrutiny Committee said that those people should be treated under criminal legislation, but we did not explore how that should be done and we are now in the same position as we were in that Committee.
Tim Loughton: I have the pre-legislative scrutiny Committee report, but my memory is that we took the line that this was not a health measure, but a Home Office measure.
Dr. Naysmith: Yes.
Tim Loughton: The hon. Gentleman agrees with me. As he knows—I make no bones about it—we had some interesting arguments in that Committee about how to deal with these people, and rather than the Committee extending its deliberations for a further six months beyond the original six-month period, we agreed to agree on trying to deal with them separately and on the fact that we needed to open up a debate on how to do so, rather than grouping them into health legislation, which should be based on therapeutic benefit and treatability, which we now have courtesy of the Lords.
Ann Coffey rose—
Angela Browning rose—
Tim Loughton: I am going to Devon, then to Stockport, and then I will get on with it and finish my contribution.
Angela Browning: I support my hon. Friend’s point about therapeutic benefit. Indeed, that is why it is a condition in the Scottish legislation. The Minister prayed in aid a conversation with Dr. Juli Crocombe, whom I visited on behalf of the National Autistic Society. It is the case that there are people with autism and Asperger’s syndrome who need to be detained. However, for those cases and, indeed, the one that the Minister referred to in an earlier sitting about a person suffering from Asperger’s syndrome who lit what she described as little fires, the court would be muddled about which disposal to take. If the due process of law has been carried out in a potential criminal offence, the courts still have the option of where to dispose of the person in question, whether it is into the criminal justice system or a hospital. If therapeutic benefit was outlined in the Bill, it would clarify the law and make it easier for doctors.
Tim Loughton: My hon. Friend is absolutely right. Why we compromised so much in the other place was to provide something of clarity that was practical and that practitioners said they were comfortable to work with.
Ann Coffey: The hon. Gentleman seems to be saying that his concerns about the matter are on the grounds of civil liberties and that some people might be detained. He considers that that will widen the net and that they should not be detained, but dealt with under Home Office legislation. He actually proposed that a small number of people who have never committed a crime be subject to containment under Home Office legislation. If, as a Government, we put that proposal on the Floor of the House, I can guess would his party’s reaction would be. His argument is astonishing.
Tim Loughton: At no point have I said that those people should automatically be subject to containment.
Ann Coffey: What would the hon. Gentleman do with them?
Tim Loughton: That is the discussion that I, the hon. Member for Bristol, North-West and my hon. Friend the Member for Tiverton and Honiton had in the pre-legislative scrutiny Committee. As for whether the people should be contained or subject to whatever form of curtailment of their liberty is a matter of legitimate debate for which we need to come up with a solution not under health legislation, but under Home Office legislation. That is our point.
Professor McKenzie from the university of central Lancashire, who is also a senior lecturer at University college London, gave evidence to the informal witness session that we held on Monday last week. I hope that its proceedings will be available for publication in the next day or so, when I shall distribute them to all members of the Committee and other interested parties. He said that being asked to act as a prison justice system will seriously “undermine” the role of clinicians, that it will “distort clinical priorities” and that the treatability test is “alive and kicking” in Scotland, so why do we want to abandon it here? Professor McKenzie went on to say that a lot of psychiatrists would feel stigmatised and consider changing their careers if subject to such a change in legislation. He forecast that there would be a big problem between professionals and their relationship with black and minority ethnic patients in particular. He pointed out that treating patients is not just a one-episode session, but treatment over a protracted period.
Mr. Kidney: I want to deprecate what the hon. Gentleman said about psychiatrists feeling that they will be undervalued by the test that the Government propose rather than treatability. May I remind him of my earlier intervention? In section 3 of the 1983 Act, as he read it out, psychiatrists up and down the country—and their hospital managers supporting them and tribunals upholding them—are currently detaining patients against their wishes for treatment when
“that patient is suffering from mental illness of a sufficient nature or degree making it appropriate for him to receive medical treatment, and it is necessary for the protection of other persons.”
Nothing else. They are doing that every day now. They are not all giving up in high dudgeon and leaving this country; they are carrying out their work with a great degree of professionalism. I have neither heard nor seen any evidence that anybody is criticising them for the way in which they have carried out that law. All the Government are suggesting is that there is a test, plus something—the appropriate treatment for the individual—as well.
Tim Loughton: That is why I have said all along that what we have in the 1983 Act—the principle of treatability or therapeutic benefit—is working perfectly well. The onus of proof is on the Government to say why it is not working, why we have not heard why it is not working, and why the changes to it that they are proposing would make it work much better. I still have not heard evidence to that effect at all.
Sandra Gidley (Romsey) (LD): The hon. Gentleman mentioned black and minority ethnic patients. There is a fear among that group that they will be disproportionately affected by the legislation because of the stereotyping and prejudice that exist. More importantly, that may be an unintended consequence, but is there not another unintended consequence? If the people who most need help fear that psychiatrists will have too many restrictive powers, they will go underground and not seek that help. That is why it is so important to restrict those powers.
Tim Loughton: The hon. Lady is absolutely right. That point is backed up, for example, by Alan Frayney, a former chief executive of Broadmoor. He has dealt with all the different sorts of patients whom we are talking about. He said that the provisions that the Government are proposing are likely to fail, because they will drive the group at whom they are targeted away from the services, not least the BME community, as the hon. Lady said.
To quote Alan Frayney, the starting point in risk reduction is encouraging patients to seek help and talk about their thoughts and feelings. In the Lords, Lord Carlile said:
Baroness Meacher also made a helpful contribution:
“If the Bill became law unamended it would probably not even be effective. It could indeed increase the risks to the public. The very small number of really dangerous people along with many others would steer clear of mental health services. Safety can best be improved by making services accessible and effective. That is what assertive outreach teams are working so hard to achieve. Their remit is to make and maintain a therapeutic relationship with patients in the community who are most resistant to contact with the psychiatric services, most resistant to treatment and most at risk of harming others. The job of any legislation must surely be to support rather than hinder that precious work.”—[Official Report, House of Lords, 10 January 2007; Vol. 688, c. 315.]
I am sure that all hon. Members on this side of the Committee would wholeheartedly concur with that view. As my noble Friend who leads on mental health for the Opposition in the Lords said:
“We must restore the notion of therapeutic benefit if mental health professionals are to continue to practise ethically, which is an extremely important consideration. We must tighten the wording to reassure service users that the changes to the Act are not a ploy to use mental health as a backdoor means of achieving social control. Once people get that idea, we will do the very thing that we least want to do; we will drive those people away from mental health services. If patients start to avoid the service, effective intervention will prove much more difficult and public safety will not be improved one iota.
If there is one issue in the Bill that has generated more suspicion and hostility than any other, it is this. The Government need to do two things: to convince us, which they have not done yet,”—
and still have not done—
“that the current law needs to be changed; and to persuade us that what is substituted for the current law is an improvement that will command the confidence of patients and the professions. As it is, I am afraid that we are looking at the worst of all worlds.”—[Official Report, House of Lords, 10 January 2007; Vol. 688, c. 298.]
Those were the comments of Earl Howe. On that basis, I do not think that the Government have made a remotely convincing case as to why they need to undermine the treatability test that was at the core of the 1983 Act.
It also has severe implications for the proposed code of practice. We have had no word from the Minister about how it would impact on that. That is why we oppose the Government’s negative and counterproductive amendment.
11.30 am
Amendment No. 59 has some attraction for us. I was slightly disappointed that the Minister said in passing that she would have a look at it without, I fear, attaching much optimism to that comment. The insertion of “intended to”, as the hon. Member for Bridgend said, would give a scintilla of reference to a therapeutic benefit.
Ms Winterton: Chinchilla.
Tim Loughton: Or chinchilla, as the hon. Member for Rhondda said in one of his more amusing moments last Thursday. It would be useful if the Minister could tell us formally whether she thinks that that is a helpful amendment. If so, and if she is prepared to add wording that will give extra assurances that the legislation on sectioning intends to cover therapeutic benefit, that will give a great deal of reassurance to all those who are so concerned about where this legislation is going. It could be a basis for compromise.
If “appropriate treatment” were to become “treatment intended to alleviate or prevent a deterioration of the condition”, that would be as close to keeping a therapeutic benefit in the Bill as we could hope for. It would be no good if it were to rely on the subjective view of a clinician, but it would be acceptable if it were to introduce an evidence base. That would go some way towards providing reassurance.
I have taken many interventions, so this has been a longer debate than we intended, but I have tried toset out why it is fundamental to the Bill to retain the Lords amendments. They went a long way towards accommodating the Government’s position, and one of their key elements was to retain a therapeutic benefit. If the Government cannot agree to that, but are intent on overturning those amendments and going back to the status quo ante, we cannot possibly accept that. However, if the hon. Member for Rhondda or, in his absence, his colleagues are minded to move amendment No. 59, we would like to give that the benefit of the doubt as being a good compromise.
The Chairman: Order. It has been brought to the attention of the Chair that this morning there have been instances of written messages being passed into the Committee from the Public Gallery. That practice is not allowed; it is out of order and will cease forthwith. I appeal to all right hon. and hon. Members not to encourage it. I shall have more to say if I see a further instance of it.
Ms Winterton: It has been a wide-ranging debate. I shall be brief because I know that hon. Members—not least my Whip and, I am sure, Opposition Whips as well—are keen to move on.
The Chairman: Order. Before the Minister gets into her stride, perhaps I should remind her that comments should be addressed to the Chair and through the Chair.
Ms Winterton: Of course, Mr. Cook.
There is a desire to move on from clause 5, because we still have a lot to discuss. I just want to make a couple of points. I emphasise again the problem that has arisen as a result of the treatability test. It has led to a culture in the development of mental health services that has effectively excluded a number of people from benefiting from the treatment they need. We have talked a lot about personality disorders, but I go back to my meeting with the hon. Member for Tiverton and Honiton and the psychiatrists she brought along who specialised in learning disability and autism. One of the things that emerged from that meeting was that many people with autism have been told that they are untreatable and have been turned away from services. We want to change that. We want to do that by removing the treatability test.
The first reassurance that I want to give challenges the assertion that the term “appropriate treatment” is too vague. The Government’s proposed test is not merely that appropriate medical treatment is available. It goes on to make clear what has to be taken into account, namely
“treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.”
It is clear that the treatment has to be there and it has to be appropriate to the individual.
Mr. Boswell: Entirely in the spirit of the Committee’s concern to make progress, would the Minister like to tell us whether the “all other circumstances” are medically relevant circumstances or anything else?
Ms Winterton: Some of them might well be social circumstances. The individual clinician might want to look at the patient and decide what is appropriate for them in their particular circumstances. It is about what has led the individual to have a mental disorder and whether anything needs to be done to address those causes. It is about taking a clear view of the individual’s needs and circumstances.
The official Opposition have suggested that we have a Home Office Bill to deal with people who have personality disorders who have not committed an offence. If the implication is that they do not require medical treatment, I would challenge that and say that it goes completely against the grain of what we are trying to achieve in the Bill, which is to ensure that appropriate medical treatment is available for people with personality disorders and other disorders. I am taken aback by the idea that this should become Home Office legislation.
The Opposition suggest that amendment No. 59 could provide the possible basis for a compromise. The hon. Member for East Worthing and Shoreham asked me to be a bit more forthcoming after my earlier comments. I absolutely agree that amending
“likely to alleviate or prevent a deterioration in his condition”
to “intended” to do so, copes with some of the perverse incentives that we believe are there, particularly the possibility of patients saying that they are untreatable and asking to be released by tribunals.
There are potential drawbacks, which is why I ask the Committee to bear with me. I cannot support the amendment, but I have said that I will be prepared to reconsider the matter. As my hon. Friend the Member for Rhondda acknowledged, the amendment would not in its current form make explicit the fact that treatment can be for the symptoms or the effects of a disorder on a person’s thinking, behaviour and so on, as well as directly for the underlying disorder. For example, it might not be possible to cure a personality disorder, but treatment can control the extent to which it leads to self-harm or violence. It is important to get that right.
Dr. Ian Gibson (Norwich, North) (Lab): Will the Minister explain the difference between symptoms and effects with reference to anorexia?
Ms Winterton: In the case of somebody with anorexia nervosa, the symptom could well be that an underweight young woman looks in the mirror and thinks that she is seeing a large, fat person. The effect would be that she stops eating as a result. We want to ensure that any amendment addresses the fact that treatment needs to deal with the symptom—what is happening to the individual and what they feel—but also with the effect of that feeling, in this case that they stop eating.
Ann Coffey: Looking at the discussion in the Lords, they seem to have interpreted “effects” as meaning the effect on somebody else.
Ms Winterton: My hon. Friend is right, so it is useful to have the opportunity to explain what we mean by “effects”. It is important that treatment can deal with effects as well as symptoms.
Angela Browning: Where does the Minister stand on containment being seen as treatment in respect of personality disorders? The evidence in the briefing that we have all received from Professor Nigel Eastman, professor of law and ethics in psychiatry at the university of London and consultant forensic psychiatrist atSt. George’s hospital, states:
“Because personality disorder is a ‘whole person’ disorder, it can easily be suggested therefore by those in favour of using mental health legislation”—
the Minister advocates that—
“sometimes solely for public protection, that any behaviour on the part of the person is a ‘symptom’ or ‘manifestation’ of their personality disorder. Hence, (mere) containment, if it inhibits behaviour, is ‘treatment’.”
Is that her position?
Ms Winterton: I believe that the hon. Lady refers to the debate in the House of Lords, in which it was stated that appropriate medical treatment could consist of nothing more than containment of a patient in hospital. We disagree with that. Simply detaining someone in hospital is no more treatment than detaining them in prison.
I refer the hon. Lady to the case of Hutchison Reid, in which the House of Lords considered the treatability test and sensibly observed that the meaning of medical treatment under the 1983 Act was wide enough to cover cure or containment of a patient’s mental disorder or its symptoms. The Lords did not say that containing a patient—simply detaining someone in hospital—was treatment; nor do we, and nor does the Bill. If the court had said that, the treatability test, which the Opposition want to retain, would allow such treatment.
My second point relates to a matter that the hon. Lady raised. The amendment would not require that treatment be appropriate to the individual patient’s overall circumstances, and we want to ensure that a holistic view of the patient is taken and that the treatment is individually based.
11.45 am
Ms Winterton: The hon. Gentleman has put his finger on the point. At present there is a perverse incentive for people not to co-operate with treatment, as we argued earlier.
I conclude my remarks by making it clear that courts would not think that Parliament meant two different things because the word “purpose” is used elsewhere in the Act and not “intention”. There is a delicate shade of difference between the two in that “intention” might be read as more subjective than “purpose”. If one were to say that the “purpose” of the treatment should be to alleviate, to say “intention” instead of “purpose” might be considered weaker. I want to ensure that we have a very clear look at that with a view to strengthening what my hon. Friends might want, not in any sense weakening it. We do not want clinicians to be confused because one part of the Act mentions “purpose” and another “intention”.
I hope that that reassures my hon. Friends. I give them a clear steer that I am more than prepared to look further at their amendment, which does not achieve everything that they want. I hope that they will therefore support the Government amendment.
Question put, That the amendment be made:—
The Committee divided: Ayes 11, Noes 9.
Division No. 4 ]
AYES
Coffey, Ann
Gibson, Dr. Ian
Gwynne, Andrew
Hillier, Meg
Iddon, Dr. Brian
Kidney, Mr. David
McCarthy, Kerry
Moon, Mrs. Madeleine
Naysmith, Dr. Doug
Ward, Claire
Winterton, rh Ms Rosie
NOES
Boswell, Mr. Tim
Browning, Angela
Duddridge, James
Gidley, Sandra
Loughton, Tim
Pugh, Dr. John
Rosindell, Andrew
Walker, Mr. Charles
Williams, Hywel
Question accordingly agreed to.
The Chairman: I have received an indication that the Opposition wish to move amendment No. 59. I point out to the Committee that as the Government amendment says
“leave out ‘is’ to end of line 14”,
it will remove entirely the term “likely”, so amendment No. 59 can no longer exist.
Question put, That the clause, as amended, stand part of the Bill.
The Committee divided: Ayes 11, Noes 9.
Division No. 5 ]
AYES
Coffey, Ann
Gibson, Dr. Ian
Gwynne, Andrew
Hillier, Meg
Iddon, Dr. Brian
Kidney, Mr. David
McCarthy, Kerry
Moon, Mrs. Madeleine
Naysmith, Dr. Doug
Ward, Claire
Winterton, rh Ms Rosie
NOES
Boswell, Mr. Tim
Browning, Angela
Duddridge, James
Gidley, Sandra
Loughton, Tim
Pugh, Dr. John
Rosindell, Andrew
Walker, Mr. Charles
Williams, Hywel
Question accordingly agreed to.
 
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