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What is the point of introducing an appropriate treatment test which is going to drive people away from the service and which flies in the face of the evidence called before an all-party scrutiny committee which reported consistently with the previous inquiry of the expert committee chaired by Professor Richardson? I do not believe that one can do better than citing what was said to the committee by Professor Eastman. Professor Nigel Eastman is Professor of Law and Ethics in Psychiatry at the University of London and he is Head of Forensic and Personal Disorder Psychiatry at St George’s Medical School. I would invite the Minister to attend very carefully to what he said because, in my view, it encapsulates the argument in a short paragraph. It is at paragraph 139 on page 50 of the first volume of the Joint Committee’s report. Professor Eastman, who is of the highest standing, said:

I agree with Professor Eastman: locking somebody up is not treating them.

I know that the noble Lord, Lord Soley, has rigorous intellectual honesty. He and I were at another place together and I have heard him speak on many subjects and that comment is based upon my experience. I completely share with the noble Lord the view that there may be a case for locking up people who are untreatable and who have been found to be very dangerous. But let us not pretend that the right way to do it is under a mental health Bill. I do not join those who accuse the Government of trying to create a kind of Soviet-style psychiatric regime; that is an unfair criticism. But I do criticise the Government for failing to grasp the nettle on the whole question of therapeutic benefit and dangerousness. A responsible Government should be intellectually honest enough to grasp that nettle. 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

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really need to accept that their appropriate treatment test simply does not add up to anything involving improvement to health.

The Scottish Mental Health (Care and Treatment) (Scotland) Act includes the therapeutic benefit criterion in that compulsory powers can be used only where medical treatment is available which would be likely to,

That is not a high demand for a therapeutic benefit, but at least it retains a concept. The purpose of mental health legislation, as the committee said, must not be to detain people for whom no beneficial treatment can be found. In my view, this Bill has been infected by these clauses. It has the infection of a custody Bill rather than a health Bill. I would ask the Minister to take on board criticisms of this part of the Bill which he knows come from within and outwith Parliament, and to say to the House that the Government will consider these matters further and return at a later stage hopefully with acceptable amendments.

9 pm

Baroness Murphy: Follow that. For me, this is simply the most important amendment to the Bill. However, the noble Earl, Lord Howe, and the noble Lord, Lord Carlile, have been so eloquent and clear in outlining the issue that I shall be brief. I feared that the noble Lord, Lord Carlile, would use my best quote from Professor Nigel Eastman, but he did not. I cannot remember whether he said this in the Joint Committee or on another occasion, but at one point he observed that if you have so-called hospitals where people can be locked up without the need to have therapeutic benefit,

I acknowledge the difficulties of the word “treatability” and how it has been misinterpreted or used as an excuse over the years. I should say to the noble Lord, Lord Soley, that I recognise the scenario he described, and certainly as a young trainee psychiatrist I had a great deal of sympathy with the desperate plight of people who seek—or perhaps ought to seek—help but do not get it. We know that excuses are made because of resources and inappropriate attitudes, but I can also remember the mental hospitals and the containment they provided. I would not wish to go back to that era because many of them were simply snake pits and would not do any more. So I acknowledge the difficulties of the word.

However, the concept of therapeutic benefit must not be jettisoned. We have to go right back and ask: what is the purpose of a mental health service? The same as any health service, it is to relieve suffering. People who go into mental health care do so because they have a passionate commitment to alleviating the suffering of those who suffer from mental disorder. If we change what healthcare professionals aspire to do and to be, we change the very basis on which medicine, nursing, psychological therapies and so on are based. Even with someone who is dying and in

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receipt of palliative care services—the Alzheimer patient at the very end—we still aspire to give therapeutic benefit. We provide care. We do not give up. That is the whole point. It is utterly fundamental that we should retain that idea somehow within what we are trying to do for people, including those whom the noble Lord, Lord Solely, has so eloquently described. However difficult they may be, they need to be accepted and welcomed within our services.

Case law has established that a person can be detained if hospital treatment would prevent deterioration in his condition, make him more co-operative and insightful or impact on his symptoms, even if it would not change the underlying illness. In fact, most medical treatments do not cure the underlying illness; they relieve symptoms or reverse the effects of symptoms. But the courts have been clear until now that mental health law should not permit indefinite preventive detention of a person for whom no benefit could be shown; simple containment is going too far. So, given the breadth of the existing test, it is hard to see what the Government seek to achieve by the new test, except to allow ongoing detention beyond that currently permitted by the law—and that is where I stick.

When I first read the appropriate treatment test I thought, “Oh, that will do. That might be it”. But the more I see how broad is the reach of the legislation and the concept of appropriate treatment—it is extremely difficult to define—the way in which it is described in the draft code of practice becomes almost meaningless. There is no requirement that the patient should receive any benefit beyond that of confinement in a therapeutic environment. In other words, there does not have to be an aspiration to improve and rehabilitate, and that is simply not acceptable in mental health services. It is inherently unethical to permit people to be detained in hospital or to have their lives controlled when they do not obtain any benefit from it. All members of the Mental Health Alliance consider this a fundamental principle of mental health law which must not be jettisoned. Others have spoken so eloquently that I will not go on about that.

We have mentioned repeatedly the fears of black and ethnic minority communities and how they are disproportionately affected by this provision. We need to provide people with services that are not only utterly welcoming but also genuinely trying to assist their mental state.

If clinicians have misunderstood the law—I do not think they have; it was used rather as an excuse—the situation should be remedied through training and the provision of an understanding about what services are supposed to be about and the kinds of people we are willing to treat. But changing the law will not provide extra beds or facilities and it will not make people easier to treat in ordinary psychiatric facilities. I do not think that clinicians will be bullied into incarcerating the inconvenient, but Clause 4 must go.

Lord Warner: I want to speak against this group of amendments, and to discuss the unsatisfactory nature, in my view, of the treatability test and what I regard

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as the associated therapeutic benefit test. I shall emphasise what I regard can be seen as the benefits of the Bill’s approach to appropriate treatment. I have the greatest regard for the views of the noble Lord, Lord Carlile, and the noble Baroness, Lady Murphy, but I fear that on this issue I disagree with them. I will try to set out the reasons why. I will certainly not try to compete with my noble friend Lord Soley’s practical experience in this area, although much of what I will say reflects many of the views he was expressing in terms of that experience.

It is worth reflecting on the fact that there is a growing body of opinion that recognises the drawbacks of the treatability test. It is simply not true that everyone in the psychiatric profession accepts that it is a reasonable way forward. Indeed, one distinguished forensic psychiatrist has said that it has been a disaster and must be abolished. Those are his words, not mine. One of the many drawbacks of the test has been that certain groups of patients have been labelled untreatable and have thereby been denied services. This is not just about locking people up; it is about denying them access to services. That is bad for patients, for the commissioners and providers of services and for the wider public, who may well consider that services are washing their hands of certain patients who represent a risk to public safety.

It is too easy just to dismiss as populism the public view on this issue. Mental health services, including many of the eminent psychiatrists the noble Lord, Lord Carlile, drew our attention to, sometimes need to stand back and see how the wider public may see them and the way they are providing their services. The public think that the services are washing their hands of difficult people who require services but are regarded as untreatable, and therefore as a group the professions do not wish to engage with. That may be unfair, and professionals may say so, but that is often a strong public perception. We as legislators have to take account of some of those perceptions, because some of them may be based on reality.

It is very difficult, as someone who has spent a good deal of the past 10 years working, both in the Home Office in government and as a health Minister, simply to brush those arguments aside. They come up time and again, not just through constituency cases but as part of a wider public debate that encompasses this subject area. We have to listen to some of those concerns. We cannot get away from the fact that the treatability test has been used by some professionals to avoid engaging with difficult individuals whose conditions, I have no problem accepting, are undoubtedly difficult to deal with and to treat. However, a failure of professionals to engage with those individuals—and, frankly, trying to pretend there has not been a failure to engage defies reality—is undoubtedly equally an issue that concerns the public and puts individuals and the public at greater risk.

Labelling people with personality disorder as untreatable has, in my view, produced a culture that has held back the development of services for them, even though there is growing evidence of effective treatments. No one is claiming that there are cures

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around the corner, but this is about whether we can make things a little better and protect some of those individuals, improve the quality of their lives and protect the wider public. That is what this is about. It is not about absolute cures. No one is arguing that there will be absolute cures. Because the treatability test requires clinicians to predict the outcome of treatment, it can lead to patients not co-operating in the hope of engineering discharge and tribunals and courts being asked to discharge potentially dangerous people on the basis of arguments about whether a patient is benefiting. We are in that territory. That is the day-to-day reality of the territory that we are in. That can lead to release, even though more treatment is needed, and thereby lead to greater risk to the public.

As we heard this evening, there are those who argue that if the treatability test is to go, it should be replaced by a therapeutic benefit test. In other words, a person should not be detained under mental health legislation unless there is a treatment available for the condition that the clinician can be pretty certain will deliver therapeutic benefit to the patient. That is as I understand the arguments. This seems to me a line of argument that is remarkably like the treatability test and could be argued to be an even more demanding test than treatability. It does not surprise me that some professional opinion is in favour of that. Some professional opinion is in favour of keeping the treatability test, so why should it be against a more rigorous test in terms of therapeutic benefit? Moving along this path seems to me just another way of collectively washing our hands of a group of individuals with particularly difficult disorders and denying them access to services. I emphasise again this issue of denying them access to services, which others have raised. If you create a culture in which you accept professionally that some people are too difficult to deal with, you inhibit the development of treatment services that will help you deal with them. That is the effect. Trying to pretend that is not the effect is frankly disingenuous.

At the same time the public would also continue to be put at risk. Mental health services are placed in a position where they seem almost to be saying, “We prefer to wait until an offence is committed by such individuals and then allow the criminal justice system to be invoked. At that point we will be glad to offer our professional services”. That is what the position seems to be to many lay people. That is the appearance of the service response. I am not a clinician, but if I were I am not sure that I would be very comfortable with the ethical position in which I would be placed with such an approach. Some in the profession need to reflect a little more on how this comes across to other people in the wider public arena.

The fundamental flaw with both the treatability test and the therapeutic benefit test is that they seem to require clinicians to have a degree of certainty about the outcome of a course of treatment that is never likely to be achievable with some of the complex so-called psychopathic disorders that we are dealing with here. You cannot have that level of certainty inherent in the treatability test and the therapeutic benefit test. The disorders that we are dealing with require mental health professionals to

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have a much higher degree of certainty about outcome than I suggest we require of a clinician treating complex physical conditions at a similar point in their assessment and treatment process. We are asking one group of doctors to have more certainty about the outcome of the treatment. The noble Baroness shakes her head but if we follow the logic of that, it is what we are doing. We are asking for a higher level of certainty regarding the outcome before you begin the treatment than is often the case with physical conditions. That is the logic of where we shall end up. In my view, by continuing down this path we shall put psychiatrists in a different position from that of physicians.

It is for those reasons that I believe the Government’s approach of “appropriate treatment” is right in the difficult circumstances that many mental health professionals face.

9.15 pm

Lord Carlile of Berriew: I am grateful to the noble Lord for giving way. He has made an assertion, which I understand to be that there is less certainty of opinion when a psychiatrist makes judgment than with all other clinicians’ judgments. I want to challenge that. Does the noble Lord really believe that a neurosurgeon has any more certainty when he judges the effect that an operation will have on a large brain tumour, or that an oncologist has any more certainty in prescribing chemotherapy for certain types of cancer, than a psychiatrist has when giving his medical consultant’s opinion in relation to mental illness? If so, I would welcome him citing some evidence to support that.

Lord Warner: I was not exactly saying that. I was trying to explain—no doubt inadequately, so I will have another go before I continue my arguments—that the inherent nature of treatability tests and the therapeutic benefit test is that they presume a knowledge of outcome that is actually a higher test. Noble Lords may shake their heads, but as a person with a reasonably logical frame of mind who, on the whole, understands the Queen’s English, I think that they are asking to raise a higher test than we ask some physicians to apply in how they respond to physical conditions. Your Lordships may disagree with it, but I happen to have that view and believe that I will be sustained in it when people reflect a little more on it.

I will continue with the arguments that I want to develop. As I have explained, I believe that the Government’s approach of appropriate treatment is right in these difficult circumstances and I say to the noble Earl, Lord Howe, that “appropriate” is neither a weasel word nor a cop-out professionally. It means what it says, in that the clinician should be sure that the treatment is right or suitable or fitting—those are the kind of dictionary words that “appropriate” actually means and any of them can be chosen as preferred. It assumes that the clinician will make those judgments based on the particular circumstances or individual or purpose on which he is required to act.

Inevitably, professional judgment has to be used in particular circumstances, but if it is wrongly used—if

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the person makes a gross error of judgment about whether treatment was appropriate—then it can still be challenged. But I would suggest that the Government’s approach of an appropriate test is more realistic, being more in line with what we expect of doctors treating physical conditions. We do not expect them always to be sure of the outcome before beginning treatment, but we expect their actions to be appropriate for the circumstances that confront them with a particular patient. Simply because deprivation of liberty may be involved in some cases of complex personality disorders, it does not seem to me that mental health clinicians should be expected to have a greater gift of foresight, or should see greater beneficial clinical outcomes, than their physical disease counterparts.

I have a good deal of sympathy with the difficult circumstances that psychiatrists may find themselves in as they attempt to make judgments about some of the complex personality disorders facing them, where deprivation of liberty is involved. However, I do not consider that we make their lives any easier by giving them either an unrealistic test—like “treatability” or therapeutic benefit—or no test at all, which effectively enables them to disengage from difficult cases where patients are serious risks to themselves or to others. That is the situation that we are in danger of getting into.

The appropriate treatment approach places a professional clinical requirement on clinicians, but also allows professional judgment to be exercised. It is not a deterrent to the development of services for people with personality disorders in the way that the treatability test has been. It is, however, still a test against which allegations of poor professional practice can be assessed, so it provides safeguards for patients. It also provides greater public protection, by ensuring that clinical services are provided to those who need them if their disorder is to be tackled, rather than allowed free rein in the public arena. It is a better way of ensuring services are provided than we have now, and we should support this approach and not pursue the route proposed by the amendments. They are retrograde steps that would damage service development to patients and the wider public.

I say very firmly to the noble Earl, Lord Howe, who raised the issue of human rights, that I do not believe that the present provisions on replacing the treatability test with appropriate treatment run counter to the European Convention on Human Rights. I took the best legal advice that was available to me as a Minister on this issue before I signed the statement on the Bill’s compatibility with the convention. All Ministers have to make that judgment, as a result of the Human Rights Act. We take those decisions very seriously. The Bill is compliant with convention rights, and I do not believe that the appropriate treatment test is a challenge to those rights. On those grounds, we should not go in for what is tantamount, if I may say so, to a wrecking amendment of a major part of this Bill by going down the path of this group of amendments.

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Lord Alderdice: It is rather important to be clear about what we are discussing. We are speaking about legislation the purpose of which is to legally facilitate compulsion. When comparisons are loosely drawn with the question of physical treatments, one should ask oneself what precisely are the contexts in which patients are forced to accept physical treatments? When a patient has a brain tumour, the surgeon is required to receive the patient’s informed, written consent, for without it, it is a gross assault. Over the past few years, we have all been made very aware of the absolute requirement for full, informed, written consent. We are talking about legislation the whole purpose of which is to go in precisely the opposite direction and to ensure that, against the patient’s wishes, they are compelled to accept treatment.

I feel, very much like my colleague the noble Baroness, that this clause is actually the key to it all. In many ways, it sets psychiatry right back 150 years. What do I mean by that? Some 150 or 200 years ago, people who were unacceptable because of their behaviour were locked up in jails or put into asylums of various kinds; and that was the progressive step. A few courageous doctors—and in many of these places there were not doctors at all—went out to work. They were called alienists because they were prepared to go out to places where there were no treatments of any kind. It was a question of containing a bunch of people who were very difficult to cope with and manage, who had a whole assortment of problems. What sort of problems were they? Some were organic problems; tertiary syphilis and other infections that left people in a physical and mental mess. Some were psychotic disorders, manic disorders, and a range of what we now know as schizophrenic disorders. Those diagnoses were not even available then.

Why? Because it was all just a bunch of people who were disordered in their heads because of alcoholism, drug addiction—of a very different kind to that talked about now—and criminality. Then there were all the young women with moral imbecility: the ones who had had children out of wedlock. I well remember seeing an 85 year-old when I was a junior doctor who had been in a mental hospital since her early 20s because she had had a child out of wedlock. I was seeing her because she was demented, having been there all her life.

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