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Mental Health Bill [HL]

Noble Lords will be relieved to know that I shall be brief, but I must register my considerable concerns about Clause 4. The Bill, as drafted, would provide for doctors to become involved in the detention of people who are seen to pose a risk to others, who have not been convicted of a serious offence and for whom no treatment that would provide therapeutic benefit is necessarily available. The GMC argues persuasively that that would conflict with doctors’ professional obligations to put as their first concern the care of the patient and their responsibility to provide treatment and care, based on clinical need and the likely effectiveness of that treatment. That is the central ethical issue arising from the Bill. I speak as someone who chairs a clinical ethics committee in a mental health trust, which, I believe, is the only one in the country—although I am not sure about that. The Bill proposes an extraordinary definition of treatment that could involve in some cases only education and training in work, for example. Since when has education or training for work been a medical treatment? All this would dramatically increase the scope for the exercise of compulsion. Crucially, it would be possible to confine people under the Act when no health benefit would result. The legislation could thus be used as a means of coercion and doctors would be enlisted to undertake the jailer function. If the Government wish to lock up people who have committed no crime and for whom no treatment with a therapeutic benefit can be provided, they should not ask doctors to be involved. To do so threatens to undermine the doctors’ commitment to ethical principles and to the hippocratic oath. It also threatens to increase the stigma attached to mental health problems and to psychiatry itself—the precise opposite of the Government’s declared intentions with which I am familiar. I have no distrust in general in the Government’s intentions around stigma; they have been good on that issue. It could thus seriously undermine the trust that is conferred on the medical profession by members of the public. The Government are in danger of undermining their own good policies, never mind their intentions. In particular, the Bill will threaten the work of assertive outreach teams which were established to manage difficult mental health problems in the community. The raison d’être is to avoid compulsion wherever possible and thus to reduce the stigma for users of mental health services and, in particular, the stigma associated with people who present a risk. Many of them are dangerous. But even these people are worked with effectively day by day, week by week, by those assertive outreach teams. It is one of the great things that the Government have done. In my experience, the quality of service in mental health is changing for the better as a result of these teams. Psychiatrists are spending much more time seeing people away from the hospital. More and more psychiatrists are training in evidence-based psychological therapies. Of course, there is a long way to go. I believe that the Bill would be an incredibly retrograde step. The emphasis in the Bill is on compulsion, whether in hospital or in the community. If the Bill remains unchanged, the inevitable increase in the stigma attached to mental illness is one of the main reasons for my personal objection to the proposed appropriate treatment test. It is a massive objection to the Bill. I know that the Government do not want that effect. The Royal College of Psychiatrists makes the point that if the Bill became law unamended it would probably not even be effective. It could indeed increase the risks to the public. The very small number of really dangerous people along with many others would steer clear of mental health services. Safety can best be improved by making services accessible and effective. That is what assertive outreach teams are working so hard to achieve. Their remit is to make and maintain a therapeutic relationship with patients in the community who are most resistant to contact with the psychiatric services, most resistant to treatment and most at risk of harming others. The job of any legislation must surely be to support rather than hinder that precious work. From the standpoint of international conventions, it would appear that the absence of a therapeutic benefit test would breach the UN principles for the protection of persons with mental illness which requires that, "““an independent authority is satisfied that the proposed plan of treatment is in the best interest of the patients health needs””," prior to any compulsory treatment. I believe—the noble Lord, Lord Warner, says differently—that the Bill as drafted would breach the European Convention on Human Rights. A form of preventive detention could not be justified in the absence of evidence of imminent danger to members of the public. The noble Lord, Lord Soley, made an eloquent speech about real problems which we all recognise and with which we are all familiar. Perhaps ways could be found within internationally agreed principles to detain potentially dangerous individuals although I doubt it. My point, along with no less a person than the noble Lord, Lord Carlile, is that such a policy simply does not belong in mental health legislation. We seem to have mixed messages coming from the Government. The code of practice makes clear that the Government’s proposed test falls short of the therapeutic benefit test. The code states that, "““medical treatment can only be considered appropriate if it is intended to address the mental disorders from which the patient is suffering””." We are told that ““intended to address”” means that the purpose of the medical treatment is to alleviate, prevent deterioration in, or otherwise manage the disorder itself, its symptoms or manifestations or the behaviours arising from it. If a secure environment controls behaviour, it seems that this would satisfy the test. And yet government representatives in meetings have said in my presence that appropriate treatment would benefit the patient. Of course it would. But that is clearly not the case. In conclusion, it is not an accident that both the expert committee and the Joint Scrutiny Committee concluded that a proper test of therapeutic benefit was an essential component of the law. I understand that these committees reflect the views of the vast majority of psychiatrists in this country. The truth is that if psychiatrists and psychiatry are to have the confidence of service users and society at large, the fundamental objective of medicine to benefit the patient’s health must be recognised as a central tenet in our mental health legislation.