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Mental Health Bill [HL]

I will see what I can do. I genuinely do not know whether noble Lords would find it helpful if the Government arranged more such meetings, perhaps between Committee and Report. Some noble Lords are nodding, and I am very happy to try to arrange them. We do have serious concerns about the treatability test, even when properly applied. In particular—again, there is disagreement here—our concern about the wording of the current Act, and about the aim of the therapeutic benefit test of the noble Lords opposite, is that it requires clinicians to predict that a particular outcome of a patient’s treatment is likely. In fact, as has been said by other noble Lords, it is a feature of much healthcare, physical as well as mental, that clinicians often cannot say that a particular treatment is likely to work for a particular patient, even when following the best clinical practice. A clinician may not always truly be able to predict that a particular treatment is likely to work for a particular patient. A perverse effect of the requirement to predict what is likely to happen will be that some patients—often those who pose the greatest danger to other people—will be encouraged to think that they can engineer their discharge by refusing to engage with treatment, especially psychological treatments. I understand the arguments for a therapeutic benefit test, but this is the genuine problem that we see with it. It does not have the culture problem of the treatability test, but, in whatever way such a test is phrased, it has an element of prediction. In contrast, the appropriate treatment test lets clinicians decide whether they have appropriate treatment to offer patients subject to the Mental Health Act, in the same way as they would for any other patients. There has been a lot of discussion about appropriateness. It is as well to bear in mind that clinicians are already used to applying a test of appropriateness under the Act. Before they get to the new test, they will already have had to decide, as now, that a patient’s mental disorder is of a nature or degree that makes medical treatment in a hospital appropriate. The word ““appropriate”” is used now, as it is in the new test, because that is precisely what needs to be tested. Whether what is proposed is appropriate given all the relevant factors is the kind of question which professionals need to ask all the time. It is not a subjective question; it does not invite a mere opinion; it calls for a professional judgment by people with the expertise to make it. It is superior to what is currently in force, because it explicitly demands that the appropriateness of treatment be considered in the round—not just what might be termed narrow clinical factors. All the patient’s circumstances must be looked at, including their age and gender, where they live, where their family and social contacts are, and their cultural background. Importantly, if appropriate treatment cannot be offered, detention cannot be used. Unlike the treatability test, that applies regardless of the label attached to their mental disorder.