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Mental Health Bill [HL]
8.22 pm
On Question, Whether Clause 4 shall stand part of the Bill?
Earl Howe: In opposing the Question that this and the other clauses in the group stand part of the Bill, I have one main purpose: to retain the treatability test in the 1983 Act and remove the new test of appropriate treatment from the Bill.
I start by posing a straightforward challenge. It is for the Government to show why there is any need to move away from the treatability test in the 1983 Act. That test is extremely broad. The term “treatment” covers nursing, care and rehabilitation, but it also
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Given all that, one really must ask what is wrong with the test as it stands. The Government’s answer appears to be that some individuals are dangerous to others because of a personality disorder and should not be excluded from the scope of the Act merely because they are deemed to be untreatable. This is a rather strange dimension of the argument. I am not aware of any evidence that patients are being excluded from care and treatment merely because they do not meet the treatability criterion.
All sorts of new programmes and treatments have been developed in recent years to help many people with personality disorders. To the extent that such people are gaining access to these programmes, it is hard to see what the problem is. If such people are being denied access to those programmes, that surely is not a fault of the law or of definitions; it is either because of resources or because clinicians have misunderstood the law. The remedy for either of those things does not lie in amending the legislation. One high-profile example is the inquiry into the Michael Stone case, which did not recommend that the law needed to be changed. It criticised a number of things, but criticised in particular the lack of hospital beds in medium secure units. The amount and the intensity of care that Stone received were, in fact, considerable.
The Government also believe that introducing a test of appropriate treatment will somehow make a positive difference to the number of people receiving care and treatment who need it. This is absolute nonsense. Not only is it nonsense, it is dangerous nonsense. To start with, the treatment does not have to be given; it simply has to be available. “Appropriate”, as I am afraid I have said before, is a classic weasel word. What does it mean? In whose opinion is it appropriate, and to what end? It is so vague as to be capable of almost any interpretation. As such, it in effect gives clinicians unfettered powers, because if clinicians do not have to show that the treatment available will do the patient any good, you are in effect saying that they may detain anyone who is ill and who they think may pose a risk, even if the person does not actually receive any treatment. The only condition is that treatment must be available and that the environment must in some way be therapeutic. There is nothing in the Bill to say that detention must be necessary in the circumstances, nothing about a patient’s health needs being significant, and nothing about the effects of the mental disorder being serious.
I question whether the detention under those terms of someone who has committed no crime is consistent with human rights law. It is for other noble Lords who are versed in that field, such as the noble Lord, Lord Carlile, to advise us on that point, but the ethical basis of forcibly detaining someone when he obtains no benefit from it, merely because he is mentally ill, is unacceptable. It could bring into the reach of compulsion not only a small additional group who
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Several things must follow if the Government genuinely want to ensure that everyone who needs mental health treatment receives it, although I do not accuse them of disingenuousness on that point. They must recognise that the Bill as worded will not do. 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 law 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, 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.
8.30 pm
Lord Soley: Perhaps I ought to start with the phrase “as I was saying”, but I shall start instead with a short apology for intervening on the wrong amendment. It is a classic example of using the first Marshalled List instead of the second, which is absolute proof, if any were needed, that sparing the Earth’s resources by using one set of papers does not spare one’s blushes when one gets it wrong.
I shall not repeat what I said earlier. I had made a point about the civil liberties of patients and the individuals who are affected by them, as well as about the rights of the community. It is a balance of rights. I had made a point about the difficulty of definition and I had just started, before my noble friend drew my attention to the different amendment involved, to speak about the 1959 Act and the way in which the hospitals were changing from that time onwards. I was embarked on a grand scheme of describing a situation—I remember it all too well—where the hospitals were providing a care and safety role for large numbers of people who did not need to be there. At the same time, they were providing a place of safety for people who later on fell under the definition of not being treatable. That problem has to be addressed. Over the years, all parties have ducked it because it is so difficult. It is about personality disorder, but we have to recognise that it goes wider than that.
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In the 1960s and 1970s, the problems resulting from the failure of psychiatrists in particular—but not just psychiatrists—to offer treatment for personality disorders had a dramatic effect. By that time, there were many people out on the streets who would not have been there previously. Additional problems were brought on by drug abuse. In the early 1970s, I was working as a probation officer in the King’s Cross area. The problem which we faced at that stage was that one would come across people who, whether or not they had a personality disorder—there was an area of difficulty around that—clearly needed help and treatment and who were very often asking for it. They were often asking for help in secure circumstances, but you could not offer it. That is a major problem. The Front Bench opposite referred to the Stone case. Michael Stone had had previous psychiatric treatment, but when he went back to another hospital and asked to be readmitted because he would do something very damaging or dangerous otherwise, he was refused. This was a common experience for probation officers and other people who were working in this area in the 1970s. It has remained so since then. Although I have left the profession, plenty of contacts tell me of instances—although there are fewer of them—of people who are refused admission or treatment because their condition is regarded as not treatable. This is a major problem.
The situation now is slightly different, but almost any Member of Parliament from an inner-city area will be able to tell you what sort of people are affected. Members of the House of Lords need to be very aware of this. Your heart sinks as a Member of Parliament when people contact you and describe the behaviour of someone who is clearly unwell and whose behaviour is deeply disturbed. The people immediately around them are scared for good reason. The person will not have done anything against the law, although they will have done some things which might be profoundly dangerous. Shortly before I left the House of Commons, I came across the example a man who would throw very heavy objects over the garden wall without looking over the other side first. He was very disturbed; he had all the signs of disturbance. One could not have arrested him. The police came round to warn him, but nothing was done and the hospital trust said that he was not treatable. The police were saying, “He has not done anything wrong. We’ve warned him, but we can’t do anything about it”. Members of the community would say to me, “What’s the guy got to do? Has he got to kill one of us first before you take any action?” It is a very real issue.
Another case which came to me was that of a woman who had plenty of money and was not unintelligent, but her house was getting into ever-worse repair. I would have classed her without any hesitation as having a personality disorder, although she was very well presented. Her house went downhill. She set fire to parts of it and began to use the garden as a toilet. You can do things about a garden being used as a toilet if you can show that it is a danger to others in terms of environmental health, but you cannot always do that, particularly if they bury it. Eventually, after five years of the neighbours putting up with this, I got a compulsory purchase order on the house. That is the difficulty of dealing
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When we talk about patients’ rights, we need to understand that for some people whose behaviour is disturbed and shows signs sometimes, but not all the time, of mental illness, we might need to exercise some control and restraint. If you do not, you are behaving like the bad parent. If you say, “Well, it’s all right for her to go to the toilet in the garden and it is not harming anyone else”, you are being a bad parent. In cases such as this—as I have said, many inner-city MPs will have them—we need to be able to intervene.
The Front Bench of the Conservative Party asked whether being able to do so will make any difference. It will make a difference, although, as I indicated in my earlier, inappropriate intervention, it might not make enough difference for us not to have to return to this at a future date. It will make a difference because it toughens up the system. It will make it more difficult for a health authority to say that it will not intervene. Faced as an MP with a number of such cases, I would have felt able to go to a health authority and say, “You cannot say that appropriate treatment is not available here”.
Moreover, as some of the psychiatrists said in our meeting with them a few days ago, it will help to change the culture and practice in psychiatry, making it less likely that arguments will be put forward that treatment cannot be given and the person should be left alone. It is to a large extent a culture-and-practice matter. During my days in the Probation Service in the 1970s, it was very common for a psychiatrist to say, “I am not going to deal with them; they’re dangerous”, yet probation officers, social workers and a whole variety of other people had to deal with them. You cannot just walk away from this. Psychiatrists have got better and you hear that said far less often, but you still hear it. When a psychiatrist would say that they were not going to admit the person in question, you then had to look around for a hostel. What would the hostel say? “They’re too dangerous”. Alternatively, they would throw them out on to the street again when they became aggressive.
My final point is, again, well understood by elected Members of Parliament, who constantly face a battering from constituents about it. I deplore it when the press come up with gross headlines that actually create fear and whip up hysteria about “mad” or “bad” people. I have had plenty of occasions to have a go at the press about that and I have a record for doing so.
The real warning for anybody who deals with this politically is that, however inappropriate the headline, underneath it there is very real anger and fear in the community. Legislators have to take into account not just the rights of the individual concerned, and not just the rights of the community, but fear levels in certain areas of the community on certain issues, of which this is a prime example. You ignore that at your peril. It is like sentencing policy. The reason it is so difficult to get sentencing policy right is that people always want longer and longer, and tougher and tougher, sentences. It is easy to say that that does not
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My basic message to the Government is: by all means keep the Bill as it is. I certainly approve of the measure. I think it will make things better, helping to change culture and practice, and enabling people to say, “Look, this wording is tougher than the previous wording, so you cannot duck out of it”. It will enable people to get a bit more confidence in the system, which to some extent has been lost. It does not get in the way of patients’ rights, but it recognises that these rights, as I indicated before, are very much part of a package of rights, which relate to individuals in the community as well.
At the end of the day, if we still get problems of the type that I have described, then the Government may well have to return to this issue with rather tougher wording. The key issue—which goes back to what I said in an intervention on Monday—is to get away from this terrible fear that we are somehow going down the road of the Soviet Union, or whatever. It is not the wording of a particular clause, about a particular mental health problem, that safeguards liberty; it is the rule of law and all the extra bits you put in, such as the mental health tribunals. That is what protects you. The idea that this could only happen in an authoritarian regime is nonsense.
That is why I again ask people to think about what was happening in the 1950s when we did lock people up. Actually, they were not always locked up; they could often go out and get jobs and work from the hospital—it was like a big hostel in some ways. Some were locked up, however, and it was inappropriate. Some were kept in there for years and years and they should not have been. At the same time, we provided a structure for them, as that was the best form of treatment—a lot of this was before modern drug therapy was around.
Therefore, I say to the Minister, go ahead with this and see how it works, but do not be afraid to return to it. We will never get it exactly right. There will always be a problem of definition around essentially behavioural issues—psychopathy, personality disorder or whatever you want to call it—which we know are also about grossly disturbed behaviour. In King’s Cross, I worked mainly with people who were labelled personality disordered and with alcoholics—the two were often combined, which made it even more difficult. However, it is abundantly true that you know when you are dealing with one of them for a long time. It is the old story: you cannot define an elephant, but you know if there is one in the kitchen. The issue here is not that we lock them all up, but that we have some way of containing them for periods of time, such that it is constantly open to review by non-medical and non-social work specialists—hence the importance of the health tribunals and the law, and so on.
Let us not kid ourselves, however, that this is not a serious problem. The numbers are admittedly small, but the impact is great. If I took you to the neighbours of the lady whom I described right now, they would express far stronger feelings than I am expressing about the inability of the health services and the law to help.
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Lord Carlile of Berriew: The noble Lord, Lord Soley, knows that I hold him in very high regard. I regard it as a privilege to follow him in debate. I hope he will take it as no more than an affectionate reproach when I say that I find it much easier to follow his speech than his argument on this occasion.
I suggest that he has completely failed to explain to the Committee why a therapeutic benefit test would be less effective than the appropriate treatment test contained in the Bill. The report of the scrutiny committee, of which I was chairman, contains a list of the evidence it received from page 279 to page 293—a huge list it is. A very large proportion of that list consisted of evidence on precisely that issue and the whole question of dangerousness.
It is very important that nobody should get the idea that the noble Lord, Lord Soley, wants to protect the wider community, who have the right to be protected from dangerous people, while the rest of us are simply trying to protect the rights of a small number of seriously mentally ill people. That would be to traduce our argument. I completely share with the noble Lord and the Minister the aim that as many people as possible who appropriately fall within the provisions for compulsory treatment, within the ambit of the Mental Health Act 1983 as it will be amended, should be brought within that scope.
8.45 pm
I agree with the noble Lord, Lord Soley, that the public deserve, and are entitled to, protection so far as possible from dangerous people. Just as I have said repeatedly in the terrorism context that national security is a civil liberty of every citizen, equally protection from dangerous people is something that every citizen is entitled to expect. The question here is much narrower. Agreeing as we do on the principles, we must ask whether these clauses provide greater protection than a therapeutic benefit test. I think almost everybody—I suspect, even Ministers—agrees that the language of the appropriate treatment test is less certain than the therapeutic benefit test. I am strongly of the view that a court would find it easier to test the term “therapeutic benefit” than “appropriate treatment”. Appropriate treatment is defined in every case by the psychiatrist or the lead professional providing the treatment, and that in itself introduces substantial difficulty for the courts.
I agree with the Government, as did the committee, that the old treatability test in the Mental Health Act 1983 presented problems. It is absolutely right that it be replaced, and I would applaud the Government for replacing it. I am sure that the Committee shares that view. The question is whether the Government propose to replace it with the right kind of measure. We must ensure that the balance between the civil liberties of the patient and those of the majority of the community falls within a certain area that can properly be interpreted by the courts.
It is hoped that the Bill will achieve the retention of more people who are already known to the services within those mental health services, so that those who have come within their ambit are less likely to commit serious crime—as was pointed out to me the other day, we are not just talking about homicide—than
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The other question is: how far will this new law bring people who are not already within the ambit of the services within their scope? It is a truism that a very small proportion of seriously mentally ill people commit serious crimes. It is accepted that between one in 10,000 and one in 20,000 people who suffer schizophrenia commits a homicide. How many of those 10,000 to 20,000 people will be brought within the scope of the very acute mental health services as a result of the Bill? Will it be more, less or the same number? I suggest to the Government—and in this I have the support of the Mental Health Alliance, including the Royal College of Psychiatrists, to which I will return in a moment—that the appropriate treatment test is likely to diminish the number of people coming within the scope of the mental health services. Mentally ill people often go to services voluntarily but only when they have a sense that they will be safer in the hands of the mental health services than out on their own. If they are aware that a very vague test is being applied so that they run a far greater risk of long-term, compulsory detained treatment, they are significantly less likely to go to the mental health services. That must surely be a matter of common sense. The prospect, therefore, under the vaguer test of more potential homicides being brought within the system is very small.
Furthermore, if one looks at the inquiries to which the noble Lord, Lord Soley, referred both in his trailer and in the feature film, one finds a clear pattern in every single case that has been inquired into, of which I am aware, right up to the present. The finger has not been pointed at a deficit in the definition of mental disorder. The finger has not even been pointed at the treatability test. In every single case it has been pointed at a failure in resources—at a failure in services and occasionally at failures of judgment. Nothing in this Bill repairs those problems.
I mentioned that I would say more about the Royal College of Psychiatrists. It is simply to answer a question that was raised much earlier today. There has been a good deal of discussion about the role of the Royal College of Psychiatrists in the debate we are having on this Bill. As a lay person, I am satisfied that it is sensible to obtain the views of the professional body that represents the clinicians involved in the territory. I could add a whole list of other bodies, some of which have been mentioned earlier—the noble Baroness, Lady Meacher, mentioned one or two—which agree with the Royal College of Psychiatrists.
The question raised was: how many psychiatrists are on the side of the Government on these issues? I was invited to meet a few. Indeed, the noble Baroness, Lady Royall, very kindly arranged a meeting at which Members of this House were to meet psychiatrists in favour of the Government’s proposals. I did not take the trouble to count them at the time because I was too interested in the issues, but I do not think I got
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