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Mental Health Bill [HL]

I hope that it is in order if I reply very briefly before we move on. This has been an extremely useful debate—we have heard powerfully expressed views on both sides of the argument. However, I have to say to the Minister that I remain unpersuaded that the Government’s case is proven. Perhaps I may comment briefly on one or two of the contributions. I listened with close attention to the noble Lord, Lord Soley, and he cited a number of examples to support his views. There is one remedy currently available to anti-social conduct, such as throwing bricks over a wall, and that is the anti-social behaviour order. It may be that the police in those circumstances do not want to use their powers, but that is rather a different matter. In fact, the decision not to use legal powers to detain patients is not so dissimilar to any decision not to use the powers to use an ASBO. I am not sure that some of the other examples that the noble Lord gave were wholly relevant. This is because there was no treatability criterion in the 1960s and 1970s, nor for the cases he was quoting—that is, before the Mental Health Act 1983. Under the 1959 Act, if my memory serves me right, psychopathic disorders were relevant only up to the age of 19 years. They were good stories, but I believe that they were based on the wrong law. We heard from a number of noble Lords in support of the Government—particularly from the noble Lord, Lord Warner—that doctors are apparently holding back from applying compulsory detention because of the treatability test, which is a barrier. The belief that people are denied treatment because they are alleged or are considered to be untreatable ignores the fact that in this Bill the Government are doing a lot of things that could well address that issue—not the least of which is the fact that psychologists are being brought within the scope of the Act. That will be accompanied by considerable changes of practice in the professions. We should not belittle that point. I therefore wonder why the Government believe that a change in the law will make psychiatrists engage better in the decision-making process. Is it not more a matter of training? In many ways the objections raised to the amendment reflect yesterday’s rather than today’s problems. The noble Lord, Lord Carlile, was absolutely right; there have unfortunately been a large number of homicide inquiries in recent years, but not one has suggested that the treatability test was an issue or that it should be amended. The noble Baroness, Lady Murphy, spoke passionately in favour of retaining the concept of therapeutic benefit, with which I fully agree. The mental hospitals used to be, and sometimes still are, referred to as bins because people were locked up without benefit. To this day, one of the reasons for having to use the Mental Health Act is that patients do not want to go to those places; they have a reputation. That is why we keep coming back to the fear, which many of us share, that because patients want to avoid treatment, they will continue to want to avoid it, and that will enhance risk. One has to ask whether, if there is no therapeutic benefit, where the driver is to develop therapeutic programmes and services. On what basis do you give a treatment that is unlikely to benefit a patient? The noble Baroness, Lady Meacher, took us to the heart of medical ethics on that issue. This is not to do with denying people services; we want to shed that illusion. It is to do with locking people up under the care of a doctor when they do not want to go there and furthermore the doctor cannot do anything to help them other than perhaps experiment on them by administering drugs. No physician is permitted to lock up a person with a physical illness against that person’s wish. The noble Lord, Lord Hunt, said that the treatability test involved an element of prediction. That point was also made by the noble Lord, Lord Warner. I think that they were wrong, in law at least, to say that. In my view, the treatability test does not require any level of certainty about outcomes; it simply requires containment under supervision by a trained professional in a therapeutic environment. I refer the Minister particularly to a relatively recent case, from 1999, Reid v Secretary of State for Scotland, which concerned a restricted psychopathic patient whose anger management was improved by the supervision he received in the structured setting of a state hospital, but where the judges were clear that that did not go further to permit indefinite preventive detention of a person for whom no benefit could be shown. There is no high level of certainty of outcome, simply a likelihood that there is a clinical basis for prescribing the treatment. We come back all the time to patient autonomy, which we debated earlier. With a physical illness, the physician discusses with the patient the likelihood of benefit from the treatment; it is then the patient’s decision whether to take the treatment. Nothing is forced on the patient in those circumstances. I have a worry about human rights here. I say to the noble Lord, Lord Warner, that the Joint Committee on Human Rights criticised the 2002 Bill in this area. It said: "““Whatever the Government’s intention, the wide definition of medical treatment in the draft Bill would allow people to be detained where the only treatment that could be offered was care under the supervision of an approved clinician””." The Government would do well to reflect on the Joint Committee’s report. I come back to my fundamental worry here, which is the vagueness of the wording of the Bill, the likelihood of this leading to many groups of people becoming subject to compulsion who should not be, and the consequent profound ethical problems for clinicians, to which the noble Baroness, Lady Meacher, referred. These remain serious concerns. As noble Lords have said, this is one of the key issues in the Bill. It is clear that views are polarised and, regrettably, I do not think we are likely to achieve a meeting of minds on it in the short term. I hope that some positive purpose will be served by a period of reflection between now and the next stage of the Bill. Clause 4 agreed to.