---

Mental Health Bill [HL]

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 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 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 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.