Memorandum submitted by Professor Nigel Eastman (MH 62)
RETAINING A 'THERAPEUTIC BENEFIT' TEST WITHIN THE MENTAL HEALTH ACT 1983
Therapeutic benefit as the lynch pin of retention of Mental Health Act
Elements of the government's proposals for reforming the Mental Health Act 1983 have the effect of metamorphosing the Act into a Mental Disorder Act. That is, an Act which deals not only with health care of the mentally disordered but also their social management and control.
Abolition of the 'treatability' test is the lynch pin of the metamorphosis. That is, abolition of any need for health benefit to the patient, such that their detention and/or compulsion can be justified solely on the basis of protection of the public, yet within health facilities and based upon health professional recommendations, takes the intention and effect of the Act beyond health care and into solely control and public protection.
Maintaining a 'therapeutic benefit' test is crucial to ensuring that mental health services are used for health care, and not, at times, solely for preventive detention. It is for this reason that I told the Joint Parliamentary Scrutiny Committee for the Draft Mental Health Bill:
"Therapeutic benefit to the individual is of crucial importance in terms of protecting the boundary of what is the business of mental health professionals. I am not at all against protecting the public, of course not, but it must be in conjunction with some benefit to the individual that goes beyond simply stopping them offending. If you adopt a definition of treatability which is simply the reduction of risk or the avoidance of offending, that means that locking somebody up is treating them."
Although the courts have already 'loosened' the treatability test such that it covers a wide range of interventions, including 'care' (rather than 'treatment' per se), the government seeks to remove any semblance of a therapeutic benefit test.
There is no difficulty in demonstrating health benefit arising from care of those suffering from serious mental illness.
The government's wish to abolish any therapeutic benefit test is driven therefore solely in order to achieve preventive detention within health facilities of individuals with 'personality disorder', and even paedophilia in the absence of personality disorder (hence their wish not only to abolish any therapeutic benefit test but also the exclusion clause in relation to sexual deviance or orientation).
The nature of personality disorder compared with mental illness
Personality disorder is entirely distinct from mental illness. It is a disorder of 'the whole person', that is of 'who you are.'
The most distinguished clinical and research psychiatrist in the second half of the 20th century, Professor Aubrey Lewis, captured the distinction by emphasizing that a disease must involve 'a disorder of (only) part function'; that is, a whole person cannot be a 'disease'.
Personality disorder is therefore 'diagnosed' not by comparison of a person with their own previous normal mental state (as with physical illness), because personality disorder is a developmental disorder traceable back to adolescence, so that the person was never 'normal', but by comparison with the rest of the population.
There is therefore great variability of assessment as to who is 'abnormal enough' to be called personality disordered, rather than having a personality merely skewed in a particular direction.
The 'boundary' of personality disorder is therefore extremely 'fuzzy', and open to much debate and dispute, both in the aggregate and in the individual being assessed.
Personality disorder resulting in antisocial behaviour is therefore easily 're-configured' into the alternative paradigm of criminology. Hence the 'data' used to 'diagnose' personality disorder can be 'reconfigured' into the criminological concepts of 'delinquency' or 'offender'.
There is therefore an inherent 'dispute' always as to whether such an individual is properly the subject of criminal justice control or mental health care. For psychiatry this is resolved by reference to whether there is any element of reduction of dysphoria in the individual likely to arise from mental health care; otherwise the person is properly the primary responsibility of the criminal justices system
The 'diagnosis' of personality disorder is, however, inherently open to 'misuse', by way of preventive detention being achieved through configuring the problem as 'mental disorder' rather than as a criminological concept.
Protection of health function and civil rights within the 1959 and 1983 Acts
The Percy Commission (1957) recognized the very different nature of personality disorder, by comparison with mental illness, by recommending that its incorporation into the Mental Health Act 1959 should be accompanied by the requirement that the condition in the individual concerned be 'treatable'.
This both protected the citizen with personality disorder from preventive detention on the spurious notion that he was being treated and ensured that mental health services were not misused for such preventive detention (in fact, the legal definition of 'psychopathic disorder' in the 1959 Act itself included the requirement that it be 'treatable').
The protections incorporated into the 1959 Act were repeated in the 1983 Act, with the 'treatability' test being made 'separate' from the definition of 'psychopathic disorder' per se.
Court modification of the 'treatability' test
The courts have decided that 'treatment for (any) mental disorder' under the 1983 Act includes treatment for the consequences of that disorder.
Because personality disorder is a 'whole person' disorder, it can easily be suggested therefore by those in favour of using mental health legislation 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'. This is legally logical but medically spurious.
The spurious analogy of 'care'
Protection of the proper function of health services, as well as protection of the citizen from detention upon a spurious notion of 'treatment', requires that any mental health intervention which is called 'treatment' should involve the likelihood of some health benefit to the individual, even if the greater effect is in terms of public protection.
The analogy between 'care' given to patients with chronic illnesses, either physical or mental, and 'care' for those with personality disorder which amounts solely to risk reduction is spurious also, for the following reasons:
1. 'Care' is quite clearly not synonymous with 'control'
2. Care of physical illness can only be given either if the person consents, or if they lack capacity and it is in their best interest. So called 'care' given to those with personality disorder within the Bill allows for 'compulsory care', thereby marking it out legally and ethically from care given consensually to others with chronic physical conditions..
3. Although it is true that sometimes only 'care' is given to some patients with chronic mental illnesses, usually such patients lack the capacity to consent or refuse, and it is in their best interest that they receive such care (not solely in order to achieve public protection). Even where such patients retain their capacity to refuse care, there is again invariably some benefit to them arising from that care. In summary, care of mental illness, under the 1983 Act, can always be said to be likely to bring about some health benefit to the patient themselves.
4. Calling containment 'care' for someone with a personality disorder is to misuse language, law and ethics. Containment can only be 're-termed' care by arguing that all behaviour of the person arises from disorder because it arises from them, and they themselves represent the disorder from which they suffer. That is, by virtue of the fact that they have a mental disorder which is of 'the whole person'
5. Such an approach results in there being no distinction whatsoever drawn between 'behaviour' and 'disorder'. Everything done by the person is considered to arise from disorder, even though it merely comes from 'them'.
6. Unlike 'patient dysphoria' as a (proper) object of medical treatment, anti-social behaviour can (properly) be dealt with by a alternative social intervention, that is, the criminal justice system.
Government proposals to abolish any therapeutic benefit test
The government seeks, by avoidance of any 'therapeutic benefit' test, to ensure that individuals who will gain no health benefit from detention will none then less be detained, and solely to prevent violent behaviour, or paedophilic offending, such detention necessarily being in hospital by virtue of detention under mental health legislation.
This is reflected in their definition, for an intervention to be 'treatment', that it be merely 'appropriate...taking into account the nature and degree of mental disorder and all other circumstances'. This is a definition so broad that it is hard to imagine that any intervention for a person's personality disorder would not come with its terms.
Elaboration in the Draft Code of Practice of 'appropriate', such that it is treatment that is merely 'intended' to address the disorder, including by way of 'managing' the disorder, or its 'symptoms' or its 'manifestations' or 'behaviours' arising from it, ensures that any person with the disorder could be detained 'for ever', based upon 'who they are'.
This is not to say that it might not be right to preventatively detain some of those with 'personality disorder', but merely that it is wrong to do so within a health facility, except where there is at least some health benefit to them.
Government intentions are inconsistent with proper medical practice and government policy on 'evidence based health care'
Resistance by the government to retaining the requirement that the 'treatment' is 'likely' to be of benefit, even in terms merely of containment, but that all that need to be shown is that the 'treatment' is 'available' and is 'intended' to address the objectives of 'treatment', is a notion wholly outside anything known to medical practice. It would be equivalent to an MP going to his GP with a problem, being told that there is an intervention which he recommends and then, when the MP asks whether it is 'likely' to provide some benefit, the GP would reply 'that is not a relevant question', going on merely to assert that it is intended to do so.
This is wholly inconsistent with proper medical practice, as well as government policy which repeatedly emphasizes that medical treatment must be 'evidence based'; such government emphasis extending to the requirement that health professionals specifically practice 'evidence based mental health care'.
NICE is the formal, government established body which polices what treatments can be paid for under the NHS, and it does so always based upon an 'evidence based' approach. The government's wish to avoid any therapeutic benefit test within compelled mental health care therefore directly contradicts its own generic health policy approach to treatment.
Long term damage to mental health care
The government's proposals will grossly stigmatize psychiatry within medicine, by virtue of much further widening of the rift between the legal and ethical basis of psychiatric care and that applicable throughout the rest of health care.
Medical students are now trained heavily in medical treatment which is both evidence based and applied to patients within a strong ethical framework of pursuit of patient autonomy and consent. Hence, achievement of the government's intention of abandoning any therapeutic benefit test for compelled mental health care will not only metamorphose the Mental Health Act, into a Mental Disorder Act, but will also ensure that the current severe shortage of young doctors entering psychiatry becomes a dearth.
Enhanced stigma attaching to psychiatry, occasioned by way of abandonment of any therapeutic benefit test, will therefore impact both upon the effectiveness of psychiatry with patients and upon its future within medicine. The government will thereby damage mental health care in England and Wales for decades to come. By dint of a wholly different legislative approach, care in Scotland will be likely to flourish by comparison with that in England and Wales. The fact that Scottish MPs will be able to vote so as to achieve damage in England and Wales that will not occur in Scotland perhaps adds a note of tragic irony.
 Professor of Law and Ethics in Psychiatry, University of London; Honorary Consultant Forensic Psychiatrist, St George's Hospital, London