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Mental Health Bill [HL]

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 extends to such things as education and training. Case law has established that a person may be detained in hospital even if detention was likely to have an impact only on the symptoms of his illness rather than on the actual condition. 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 may benefit, but a large number of people who should never be subject to it. The Mental Health Alliance provided some of the examples in my briefing notes. The depressed woman who is being given vocational training would, in theory, be subject to this, as would the young person recovering from an eating disorder who is on a regime of nutrition and exercise, and the man on an anger-management course. We need to ask the Minister why he is comfortable with that thought. 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.