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Mental Health Bill [HL]

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 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, 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.