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After all the arguments that we have heard in the many debates on this Bill and its predecessors, it remains my view that it is wrong for there to be compulsory detention in a hospital where there is no therapeutic benefit or its equivalent, whatever words one uses to describe that concept. The Government have put forward an amendment to require the purpose of any treatment under the Bill to be,

There is an awful lot of the use of the word “or” in that sentence. I suggest that the Government have been parsing the language. But if one parses the language that they have offered, one is left, if at all, with a mere smidgeon of movement towards therapeutic benefit and no more.

The Government’s proposals stop short of requiring any likelihood of the person benefiting from that treatment. Surely if one is taking someone into a hospital for treatment, the normal clinical judgment is that there is a likelihood that there will be benefit from the treatment. It does not mean that the clinician is saying that there will be a benefit from the treatment but that a clinical judgment has been made that the detention in hospital is likely to provide some benefit.

We believe that the Government’s amendments, well intentioned though they are, still leave the possibility of a person being detained simply for preventive purposes without any medical benefit. We do not require people to be cured of their illness—we know that that is impossible in many acute cases where there is mental disorder—but we believe that there should not be the range of possibilities that the Government’s amendments offer. For example, if all that is required is an alleviation of one of the effects of the condition, that could mean that a person suffering from Tourette’s syndrome—a well known disorder sometimes manifested by the use of offensive language—could be detained in hospital simply in order to alleviate their use of offensive language in public places. Surely the Mental Health Act 1983 is not intended to deal with that kind of situation, but the very wide range of the words in the Government’s amendments means that that kind of situation could arise. It raises the possibility of clinicians being asked to incarcerate for very long periods people whom society does not like. I do not believe that that is an ethical approach to mental health law.

In my view, the amendments in this group that I and others propose provide a perfectly practicable alternative that would not compromise public safety one jot. We invite the Minister to agree that that is the case and to agree to reconsider his position in relation to the Government’s amendments. I should be only too happy to withdraw the amendment if I felt that there were a real possibility of the Government accepting that their approach has been just too tentative. I beg to move.

Earl Howe: My Lords, with this group of amendments we have arrived at perhaps the single most critical issue in the whole Bill: the presence or absence of a

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test of therapeutic benefit. Since our very extensive debates in Committee, a number of us have had the advantage of private discussions with the Minister, for which I, for one, am grateful. We also now see before us some movement by the Government in the shape of their amendments grouped here, which seek to define in the Bill the purpose of medical treatment. Without repeating the powerful arguments put by the noble Lord, Lord Carlile, I want to add a few brief points of my own in support of Amendments Nos. 4, 6 and 7.

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In Committee, I and others argued for the retention of the status quo in the 1983 Act—that is to say, the retention of the treatability test as currently defined. The Government resisted that proposition and argued instead for the appropriate treatment test contained in the Bill on the grounds that this was better suited to dealing with the perceived problem of certain people with personality disorders falling outside the scope of the law. I did not—and I do not—accept the Government’s premise that a serious problem exists. I do not believe that they have produced any evidence for it beyond anecdotal reports. However, the amendment to which I have added my name is designed to meet the Government half way. It accepts the test of appropriate treatment and accepts that it should be the availability of the treatment rather than anything more which matters for the purposes of the test. But it also redefines appropriate treatment in the language of the 1983 Act so that the test of likely therapeutic benefit is retained.

The advantage of that approach is twofold. It ensures that there is no possible argument by people with a personality disorder who, after being detained, refuse to engage with their treatment and as a result claim to be untreatable. It also retains in law a form of words that commands universal understanding and whose legal meaning is clearly defined in case law. The Reid case of 1999 established that health benefit could comprise in certain circumstances no more than containment within a therapeutic environment under supervision so long as there is likely to be some benefit to the patient.

So the current test is very broad. Personality disorders are not excluded because they can now be successfully treated. Let us be clear that the fact that there needs to be a likelihood of health benefit is no barrier to detention. The underlying disorder does not need to be addressed. If, as the Government propose, one does not have a test of likely therapeutic benefit, the consequence is obvious. The noble Lord, Lord Carlile, has spelt that out. The legislation suddenly acquires a broad reach because the concept of benefit to the patient is diluted almost to extinction, other than the very nebulous benefit of being confined in a therapeutic environment. It was that formulation which was heavily criticised by the joint scrutiny committee in 2004, and it has been criticised again only this week by the Joint Committee on Human Rights. The JCHR said:

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That conclusion could not be more clear. In the committee’s view, not only does the test of likely therapeutic benefit have to apply, it also has to be on the face of the Act. The inference to be drawn is that without it, the Act could authorise detention, which in some cases would be profoundly unethical. Yet it is not difficult to see that the Government have rejected this test precisely because in their view it would exclude from compulsory detention a group of patients who are, in their words, “treatment resistant”. Exactly who that phrase refers to is not at all clear. I hope that the Minister will be able to tell us. I also hope that he can shed some light on the government amendments.

I was initially pleased and excited by the amendments, as I saw them as importing something quite significant. However, I am now in considerable doubt about that. While Amendment No. 12 defines medical treatment as,

which sounds very much more in tune with the language of our own amendment, I am exceedingly worried by the last two words of the amendment—“or effects”. The effect of someone’s mental disorder may consist of alarm or affront on the part of the public because his behaviour has been violent and disruptive. Treatment that has the purpose of alleviating that effect—and no more than that—could consist of nothing more than locking the person up in a therapeutic surrounding away from the public view. Making the effect of someone’s condition into a trigger for compulsory detention creates a test that is wide open in its application. The wider and vaguer the test, the greater the risk of exactly the thing that none of us wants—deterring the people who most need help from seeking it. If the government amendments are accepted, we shall be right back to where we were before, with a Bill whose wording seems guaranteed to excite the suspicion among some that it is capable of being used as a means of social control.

I am truly sorry to have arrived at this conclusion as I had hoped for a meeting of minds. To reject the government amendments because of one word seems harsh, but I shall do so until such time as the Minister can dispel the fears that I now harbour. He may have a job on his hands to do that. Meanwhile, I am clear that in line with the recommendation of the JCHR, the right and ethical thing to do for the sake of both mental health patients and the public is to support the wording of Amendment No. 4.

Lord Soley: My Lords, I shall have one more attempt, if I may, to try to persuade the House that the Government are more right than wrong, although as I said when I last spoke on this subject, they may not have gone far enough. We may need clearer legislation.

I understand fully the position of the noble Lord, Lord Carlile, and I respect it. He feels very strongly on the principle of the issue and has a very good track record both on civil rights and on understanding their context in society. I want simply to try to balance the arguments for and against. A perennial problem in

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mental health issues is that because we do not have as clear a definition as we would like, particularly on personality disorder, we move around trying to find the right position. Over time, the only thing about which we can be certain is that we have got it wrong some of the time and have sought to adjust it. On balance, of course, we tend to make some quite good decisions, too.

I agree with a comment in one of the letters that the Minister sent to Members of the Committee—that personality disorder is a definition of exclusion in too many cases. It excludes people from treatment. I therefore say straight away that the position of the noble Lord, Lord Carlile, and those who support his position is that the Bill as currently presented risks creating a situation in which people will be treated inappropriately. In a previous debate, the noble Lord, Lord Winston, gave an example of a case where inappropriate action was taken. It was a good example, and that does happen. Let me be clear: I am not saying that there is not a danger of that.

I ask the supporters of the amendment to take into account the other side of that equation—that many people with personality disorders who could be treated are at the moment not being treated. They are not being treated not only because no facilities are available; too often they are not being treated because the phrase “they are not treatable” is used. I am not citing only the examples that I gave when I last spoke on this issue. I do not call in evidence my previous experience as a probation officer 30-odd years ago, but I do cite the experience of many Members of Parliament who have to deal with difficult cases in which they receive letters from health authorities saying, “Sorry—we are not prepared to treat”. Yet everybody knows that a treatment is available for those people.

Those supporting the amendment are very strong on the patient’s right not to be treated and pretty strong on doctors’ rights not to treat people if they do not want to, but they are very weak on treating those who need treatment. They are playing into a situation that has troubled the mental health field for far too long, whereby a dustbin label is put on someone—the original label was psychopathy, but it is now personality disorder—saying that they cannot get better and are untreatable, so nothing is done about it. In reality, treatments are now available. As I said earlier, I am sometimes troubled that we pay too little attention in these debates to other treatments available from psychologists. Psychologists often, although not always, have a longer period of training than many psychiatrists. It is important to get the balance right. The noble Lord shakes his head. There are examples of psychiatrists having shorter training periods than psychologists. It is not a crucial argument because we know that there are no absolutes in any of this. We are dealing with behaviour.

As for the definitional problem, the fact is that mental illness exists. It can be shown in an individual standing alone in certain circumstances. Much mental illness, however, takes place in a social setting and comes to our attention only because of its impact on society. That cannot be ignored. As the Government

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and noble Lords have rightly said, you should not treat a person for a mental illness simply because of something that is happening in society unless it can also be shown that there is a problem for the person. But many cases of personality disorder, particularly when the impact is felt in the local community, are distressing for the individual, too. They might not express it by saying “I am distressed” when they are causing amazing problems for those around them or attacking people in the street or whatever. They may be very defensive about what they are doing and claim to be perfectly rational, but that happens also with other aspects of mental illness. Personality disorder is not the only situation where the person denies an illness or condition that could be treated, to put it more appropriately. I accept that there is a problem with calling personality disorder an illness, but I do not accept that there is a problem with saying that personality disorder can be treated. It might not be cured in the full sense of the term, although even that could be arguable, but the situation could certainly be alleviated.

When I last spoke on this I gave a couple of examples of the impact on the community, which we cannot ignore. The impact, particularly in stressed, inner-city areas, comes to the attention of Members of Parliament because the person’s behaviour becomes so extreme that others are frightened by it—and often rightly frightened; it is not imaginary. People may find the behaviour so disturbing that they try to remove themselves from the setting although they can see, and will often say, that the person concerned is “mad”. They use the term in the conventional way that society uses it. They express total amazement when they are shown a letter from the health authority saying that the person has an “untreatable personality disorder”. They see the impact of the personality disorder. If the individual lived on a desert island or in the middle of nowhere, the behaviour would probably not be noticed. But that does not mean that the individual is not a distressed person who requires treatment. The social and community aspect is important.

Debates in this place are good because they are so often fed by experts with expert knowledge. But one of the advantages that the House of Commons has over the House of Lords, not always having that expert knowledge and having other agendas as well, is that it picks up this sort of issue on the street. The other week I gave those examples because they are real cases causing real distress to people who are not being treated, as well as to the community. I say to those who support the amendment that my argument essentially is that the other side of the patient’s right to refuse treatment and the doctor’s right to refuse to get involved with difficult cases such as personality disorder is that those who are not being treated but could be treated, should be treated. There is an element of principle there.

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Personality disorder has for far too long been used as a means of excluding people from treatment and ignoring the impact on the community. We then get horrific headlines in the tabloids about a person who

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has killed someone after being turned away from a hospital because they were labelled as untreatable. I have had plenty of battles with the press generally and with the tabloids in particular about how they present stories, including stories on mental health. When I presented my Bill in the House of Commons 10 or 15 years ago on the freedom and responsibilities of the press, we took evidence from, among others, those who represent mental health patients, because of the way in which those patients were presented in the press. But however bad those stories are, if we fall into the trap of saying “Oh, we must just ignore the press on this,” we also end up ignoring the important reality of the underlying story for those who are affected by it. We cannot afford to do that. That is the difference between being an MP and a Member of the House of Lords—as an MP you pick up these issues on the street. It is there; it is not imaginary.

Finally, I ask the Government to think hard about another issue. Shortly after I came to this place I proposed that the two Houses should consider a reform to enable the two Houses to conduct post-legislative scrutiny of Acts. We are now some way towards that. I have been arguing for some time that the Lords could play a premier role in that task, because noble Lords would be very good at looking how legislation is working. If, as I hope, that becomes possible in the not-too-distant future, I hope that my noble friend on the Front Bench will volunteer this Bill for post-legislative scrutiny.

I think that the Bill will work well on balance although there are one or two difficult areas where we may have to revisit it. I may be proved wrong and there will be cases where people are treated inappropriately, and that should trouble us; but perhaps those who take the opposite view will be proved wrong and the Bill will be shown as too weak in insisting that those who need treatment should get it. That is necessary not just for them but for the community, always on the understanding—the critical base point—that the treatment must be a hopeful concept for the individual who is in distress.

Baroness Murphy: My Lords, I am extremely grateful for the intervention of the noble Lord, Lord Soley, because he appears to have made a case for the amendment. People with serious personality disorders can be treated and should have access to treatment and the wide range of facilities available to them. The whole point of the amendment is that everybody detained in hospital should have appropriate treatment made available to them, treating their symptoms and signs of disorder. That is, after all, the therapeutic object of admitting all patients to all hospitals.

We cannot succeed in instantly curing everybody—we all know that; it is the same in every branch of medicine—but we can certainly have a go. That is the therapeutic intention, and there is a determination that we should not move away from it. I say to the noble Lord, Lord Soley, that we do not want balance on this point. Having read through the Government’s amendment, I was initially cheered because I thought most issues had been addressed. In fact, the more you look at the wording, the more you

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realise that it was a rather mean-spirited response to the problem that we were trying to address. We must have absolute clarity on this, which is why we must support the amendment.

Lord Alderdice: My Lords, Amendment No. 12 demonstrates how the Government are broadening the field in this legislation in respect of mental disorder and medical treatment. In regard to the problems with which the legislation is trying to deal, the field has been broadened beyond the effect on the person himself. Psychiatrists, psychologists and other healthcare professionals are being asked to address the problems of society, which were set out by the noble Lord, Lord Soley.

The legislation is not intended to deal with people who suffer from particular kinds of personality disorder, such as borderline personality disorder, to which the noble Baroness, Lady Royall of Blaisdon, referred—that term has come into psychiatry relatively recently; that is, in the past 25 to 30 years. It is not a question of whether treatment is available; treatment is available on the basis of whether resources are available, not on the basis of whether there is a Mental Health Act. The Act is there for the compulsion of patients.

The kind of personality disorder being adverted to is not where a person has a conflict inside himself, is deeply troubled and wants help; it is where a person does not have a conflict inside himself but has a conflict with society, does not seek treatment because he is not aware of any problem and therefore does not try to deal with it, but other people around him suffer from the effects. The criminal law is there to deal with him if he breaks the law and the contract each of us has as a citizen with the rest of the community. That is perfectly appropriate, but what is not appropriate is to provide in a Mental Health Act that the effects of a person’s actions on other people should be the reason for the treatment meted out to him. It would not be treatment through medication because the only medication that would be of any value would be to dope him to the point that he did not know what was going on but that would not have any therapeutic benefit.

The noble Earl, Lord Howe, is right that the key words in Amendment No. 12 are the last two: “or effects”. Effects on whom? The effects on the person himself or the effects on society? In other words, if the person’s behaviour does not trouble him, but troubles the rest of society, it should be dealt with not under the criminal law but under mental health legislation, and doctors, psychologists and nurses should cope with it. That is the problem. That is why Amendment No. 7 refers to preventing,

The key question is whether we are asking psychiatrists, psychologists and nurses to deal with society’s problems or to deal with the problems that patients have inside themselves that cause them difficulties. That is their role. They have a role, but it is not primarily the role of healthcare professionals to be social policemen.

Baroness Meacher: My Lords, I welcome almost all of the Government’s amendment, but I am concerned

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about the inclusion of the words “or effects”. They seem to leave the door wide open to achieving the objective of the original clause of the Bill; that is, to expect doctors to agree to the detention of people who do not have a treatable disorder or who have not committed any crime. Will the Minister assure the House that that is not his intention? If it is not, perhaps he will agree to a very minor adjustment to his amendment. One way forward would be the deletion of “or effects”, which would go a considerable way in the direction that we all wish to go, ensuring that doctors were left to treat people who have an illness and who are treatable. The other way forward would be to add “upon him” after “or effects”, making clear that if there are undesirable effects upon the individual, there may be some merit in treating him. Either adjustment to Amendment No. 12 would leave me not wishing to vote against the Government. However, in the absence of that, this amendment does not give me the assurance that I hoped it would.

Lord Ramsbotham: My Lords, I am glad that the noble Lord, Lord Alderdice, mentioned resources because I wonder whether a regulatory impact assessment has been made of this proposal. There are not enough resources to cope with people who have been clinically assessed as needing treatment, and now we are proposing to put into an overstretched system people who have not been assessed and for whom distinguished clinicians feel that the tension of that kind of environment is not appropriate. I would be grateful if the Minister could say what the regulatory impact assessment was of practical resources to bring about what the Government’s amendments propose.

Lord Turnberg: My Lords, the words “or effects” are critical. If they mean the effects on the individual patient, it is important to have them because there is more to mental illness than simply its symptoms; its effects on the individual are very important. However, if “or effects” means the effects on society, the provision is less convincing. I would like to see “or effects” in the Bill together with “on the individual patient”. If that is possible, it makes the Government’s amendment entirely acceptable.

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