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Lord Hunt of Kings Heath: My Lords, this has been a good debate. I was grateful to the noble Lord, Lord Carlile, for his kind words at the beginning, although, sadly, he did not stop there. I disagree with him about the Bill leading professionals towards unethical behaviour or being a code of practice for a turnkey situation. That is not the Government’s intention, nor is it the intention of the legislation. There have been constructive discussions between noble Lords on this matter. I recognise how important our understanding is of the meaning of “appropriate treatment”. I hoped that the amendment would commend itself to noble Lords. It is clear that there are issues, particularly the meaning of “or effects”, that need to be teased out. If noble Lords do not press this amendment to a vote, I intend to see whether there can be further discussions between now

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and Third Reading to clarify some of the uncertainties identified. I shall then speak to a number of the specific comments made.

We want to ensure that detention and the other powers in the Act are only ever used for proper healthcare purposes. The Bill is not, nor has it ever been, about detaining people without offering them treatment. We wish to remove the treatability test, as discussed in Committee, because we believe that it has led to a culture in which too many people, especially those with personality disorders, are labelled untreatable. It is almost as though the treatability test has perversely been taken as a signal that those people are assumed to be untreatable. I well understand that the treatability test is not the sole cause of this problem, as a complex web of factors has come into play, but I am satisfied from my discussions with many people in the profession that the test seems to have been an important part of the problem in dealing with and treating—albeit a small number—people who undoubtedly require support.

6.30 pm

There are clearly misapprehensions about the Government’s intent in removing the treatability test and replacing it with the appropriate treatment test. One of the problems has been that many people approach the appropriate treatment test as though it were the only criterion to be met before a person could be detained. That is not the case. Before it even falls to be considered, a decision will have been taken that the patient has a mental disorder which makes it appropriate for them to receive medical treatment in hospital. If an application is being made under Section 3, not only must it be appropriate that the patient receives such treatment, it must also be necessary for their health or safety or the protection of others, and detention must be the only way of ensuring they get it.

Secondly, it has been suggested—and a number of noble Lords have said so tonight—that the purpose of the appropriate treatment test is to permit the detention of people with personality disorders who are dangerous but who have not committed any crime. Nothing could be further from the truth. We hope that abolishing the treatability test will help change attitudes that have limited the services available for people with personality disorders and excluded them from available services. I understand the issue that the noble Lord, Lord Alderdice, raised about available resources. I understand that there are a number of factors. This is not a simplistic approach, but we think that the treatability test has inhibited the health service from providing the right care and treatment to the group of people we are talking about. Nothing in the Bill, in case law or in the Government's policy equates detention with medical treatment. Detaining someone is not treatment; even detaining someone in hospital is not treatment.

It has been suggested that “appropriateness” is such a vague concept that it will give clinicians carte blanche and so make patients scared to contact mental health services. I understand those concerns. I would be concerned if that were the case. The last

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thing I would wish to do would be to discourage people seeking help which the service should be giving to them, but “appropriateness” is neither a loose nor a novel concept; it is already used in the criteria. Moreover, it captures the decision that needs to be made: is suitable treatment available for the patient? I have said that the appropriate treatment test does not give professionals carte blanche. As with any judgment they make in any field, clinicians must make their decision in a professional, ethical way and be prepared to defend it. Sometimes in our debates we have lost sight of the ethos of the professions we are concerned about.

It has also been argued that the appropriate treatment test may require clinicians to act unethically, either by detaining people without treatment or by giving treatment they consider clinically inappropriate. I do not believe that the appropriate treatment test could possibly be said to force clinicians to act unethically; it is a test of whether suitable treatment is available. If clinicians do not think that such treatment is available, they will not—indeed, they must not—recommend detention. If a clinician subsequently discovers that the original assessment was wrong, and there is no appropriate treatment to offer, they must take the relevant steps to secure the patient’s discharge.

The noble Earl, Lord Howe, asked, if appropriate treatment in some cases could consist of a therapeutic regime under clinical supervision that helped control the effects of a patient’s condition, what was there to stop such an approach in all cases? His description very much relates to the Reid case and the implications of it. It is implicit, surely, in the concept of appropriateness that what is appropriate for one person will not be appropriate for another. There are undoubtedly some patients—probably only a small minority—for whom the only appropriate treatment is the kind of therapeutic regime that, the Law Lords decided in the case of Reid, not only constitutes medical treatment but also meets the treatability test. They may be people with a mental disorder that is largely intractable but for whom some of their symptoms, at least, can be alleviated to a degree. Clearly, such treatment would not be appropriate for a person whose mental disorder was potentially curable or where medication, say, would be likely to have a greater effect than a supervised therapeutic regime.

In other words, what is appropriate inevitably relates in part to what can be achieved. I do not see how it can allow anyone to be detained for treatment that has not even tried to achieve what can reasonably be expected to be possible. Furthermore, the appropriate treatment test has its own distinctive advantages. In particular, it requires a holistic assessment of the patient’s needs—their clinical needs and their personal circumstances. It requires that there should be treatment available that suits the patient’s needs in the round.

I accept that there are lingering doubts about the appropriate treatment approach. That is why I have tabled government Amendments Nos. 8, 11 and 12. They provide in terms that references to medical treatment for a mental disorder means medical

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treatment for the purpose of alleviating the disorder, its symptoms or effects or preventing the disorder, its symptoms or effects worsening. In other words, they make explicit what the Government have always intended to be implicit; namely, that the purpose of medical treatment under the Act must be to address the person's mental disorder or its effects. It follows that no treatment could ever be appropriate unless it has that purpose.

Noble Lords have focused on the use of the words “or effects” and suggested that the provision is too wide and would allow a person to be detained just to stop them from carrying out certain activity. One suggestion was swearing, and there were one or two other suggestions about some activity which perhaps would be deemed to offend society as a whole. The reason for including the word “effects” is that if we do not say that the purpose can be to alleviate effects or stop them worsening, what would happen in the case of a person with a chronic condition for whom treatment could realistically only address the symptoms or effects? I simply do not recognise the wider fears that noble Lords have about the use of the word “effects” as an intent of the Government. As I have said, I am willing to take this matter back to allow for further discussions between Report and Third Reading to see whether further progress can be made. My tabling these amendments today reflects my willingness to listen to what happened in Committee and to take a positive approach. I am quite happy and prepared to continue that positive approach.

Lord Carlile of Berriew: My Lords, first, I am grateful to the Minister for addressing the debate in such detail and for giving a response that has been helpful to a limited extent. Secondly, I thank all those who have taken part in this debate of nearly an hour on an important issue at the centre of the concerns that many of us have about the Bill and the Government's approach to the reform of compulsory mental health law. I was going to spend a little time answering the noble Lord, Lord Soley, but I will not because, in my view, the noble Baroness, Lady Murphy, has briefly but comprehensively answered the point that he sought to make.

Clinicians are obliged to act within the law, whatever their medical ethical codes say. We in this place and the other place make the law and the power of Parliament is such that if we pass a law that forces a change in their ethical code, it is only on the highest slopes of judicial review—possibly even in the European Court of Human Rights—that there is any prospect of obtaining change. I am very persuaded by the fact that we have heard from two extremely distinguished psychiatrists during the debate: the noble Baroness, Lady Murphy, and my noble friend Lord Alderdice, who have expressed great misgivings about the Government's approach to the whole question of therapeutic benefit.

We have heard not only from them. Over the weeks and months we have heard from many of their colleagues, in particular, from the Royal College of Psychiatrists. They are all totally unpersuaded by the Government's approach. Nobody who could properly

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be treated, as the noble Baroness, Lady Murphy, said, would be excluded if our Amendments Nos. 4, 6 and 7 were adopted.

The Minister generously offered to talk further on the matter. However, I see no meaningful sign of movement in his approach. He said to the House just a few moments ago that the Government still, after this debate, see a justification for leaving in the words, “or effects”. Considering that remark, it seems to me that the time has come for the House to show what it thinks on the issue of therapeutic benefit.

Lord Hunt of Kings Heath: My Lords, I simply say to the noble Lord that it is clear from the debate that there is some doubt about the meaning of the words, “or effects”. I merely suggested that it might be appropriate to take a little time to explore that between this stage and the next.

Lord Carlile of Berriew: My Lords, I am very grateful for that, but the Government have had since March 2005, to take an important date when the Joint Committee's report was produced, to consider the issue. They had notice of the amendments. For the life of me, I cannot see how the words of Amendment No. 4 disadvantage the Government in any way whatever. Other stages of the Bill will take place, not least in the other place. In my view, the time has come for this House to express an opinion on the issue. That is what I propose to ask the House to do. I hope that that will not be regarded as discourteous by the Minister. It seems to me an appropriate step at this stage.

6.43 pm

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 186; Not-Contents, 115.

Division No. 2


Addington, L.
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
Best, L.
Blackwell, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Caithness, E.
Carlile of Berriew, L.
Carnegy of Lour, B.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Darcy de Knayth, B.
De Mauley, L.
Dear, L.
Denham, L.
Dholakia, L.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.

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Feldman, L.
Ferrers, E.
Fookes, B.
Freeman, L.
Freyberg, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Greengross, B.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Haskins, L.
Hayhoe, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hylton, L.
Inglewood, L.
James of Holland Park, B.
Jay of Ewelme, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laidlaw, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Listowel, E.
Liverpool, E.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Methuen, L.
Miller of Hendon, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Murphy, B.
Murton of Lindisfarne, L.
Neuberger, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbourne, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Patel of Bradford, L.
Perry of Southwark, B.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
St John of Fawsley, L.
Sandberg, L.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thatcher, B.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.
Young of Hornsey, B.


Acton, L.
Adonis, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L.

19 Feb 2007 : Column 939

Bernstein of Craigweil, L.
Bhattacharyya, L.
Bilston, L.
Blood, B.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Golding, B.
Goldsmith, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kilclooney, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Maxton, L.
Mitchell, L.
Montgomery of Alamein, V.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Patel of Blackburn, L.
Pendry, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.55 pm

Lord Carlile of Berriew moved Amendment No. 5:

(aa) to arrange for the patient to be examined by— (i) the registered medical practitioner who has been professionally concerned with the medical treatment of the patient; or (ii) if no such practitioner is available, a registered medical practitioner who is an approved clinician, and”

19 Feb 2007 : Column 940

The noble Lord said: My Lords, Amendment No. 5 is grouped with a number of other amendments and a significant number of government amendments. This group relates to an important issue; the renewal of detention and the renewal of community treatment orders. We are grateful that the Government have gone some way towards accepting that the proposals on renewal that were in the Bill prior to these amendments were unsatisfactory. Those of us who have put our names to the amendments believe that deciding to renew detention or a community treatment order is an extremely serious step. Indeed, we believe that it is no less serious a step than deciding to section someone in the first place. Each renewal of detention is a fresh deprivation of liberty. Every renewal of a community treatment order imposes serious conditions on the freedom of the person who is the subject of the order to go about their everyday lives.

We believe that the legislation should ensure that a fully qualified medical practitioner is always fully involved in what must be a robust decision-making process. Of course, many other highly competent clinicians are involved in many cases, and I do not suggest for a moment that those other people are not well qualified to take part in that robust decision-making process. Nevertheless, a fully qualified medical practitioner can be expected to have the full kit of qualifications, including the ability to make a full clinical assessment of the pharmacological and psychological effects of any drugs that have been, or may be, prescribed when that renewal decision is being taken. Our amendments would require one medical practitioner to examine the patient, and a responsible clinician and a medical practitioner to agree before detention can be renewed.

The Government have offered a concession, which I have considered with some care, but I am afraid that it is not acceptable in its present form. We are grateful that the Government have certainly moved from their previous stance that only one responsible clinician, who may not be medically qualified, should be involved in a renewal decision. Their amendments suggest that it would be appropriate if the clinician at least consulted a doctor before taking those decisions, but consultation is insufficient for such an important decision. I beg to move.

Earl Howe: My Lords, I support all that the noble Lord, Lord Carlile, said, and I do not propose to repeat those points. I would, however, ask the Minister to focus on a particular aspect of this issue when he replies. The Government have sought to respond to some of the concerns expressed in Committee by tabling amendments that would require the responsible clinician, if he is not a registered medical practitioner, to consult a medical practitioner who has examined the patient before a renewal passport is issued. To be clear, is it correct that consulting a medical practitioner is not the same as agreeing with that practitioner?

19 Feb 2007 : Column 941

What happens if the two professionals do not agree? What processes are there for resolving disputes of this kind in which, say, a doctor does not believe that there are valid grounds for a renewal passport and the responsible clinician does? If the responsible clinician remains in overall charge of the patient, is his or her opinion trumped by that of a doctor? If so, where does the government amendment make that clear? Who, in the end, takes the decision?

Secondly, the concerns which I and others raised in Committee related primarily to professional expertise. Our worry was that renewal of the detention order is at least as complex a business as the original decision to detain—it is often more so—and therefore it cannot be right to allow for professionals who lack the necessary competencies to take the renewal decision. This concern has since been echoed by the Joint Committee on Human Rights following a case heard by the European Court. The key requirement from the human rights point of view is that the approval of the responsible clinician should depend for its validity on his competence to provide the objective medical expertise required by the convention. Either he has that competence or he does not. I continue to argue that it is essential for a medical practitioner to be intimately involved in the decision making. Initially the Government took a different view but they have now changed their mind. Do they now acknowledge that the Bill in its current form is not human rights compliant, and if so do they believe that their amendments put right the defect?

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