Mental Health Bill [HL]

The noble Lord, Lord Soley, knows that I hold him in very high regard. I regard it as a privilege to follow him in debate. I hope he will take it as no more than an affectionate reproach when I say that I find it much easier to follow his speech than his argument on this occasion. I suggest that he has completely failed to explain to the Committee why a therapeutic benefit test would be less effective than the appropriate treatment test contained in the Bill. The report of the scrutiny committee, of which I was chairman, contains a list of the evidence it received from page 279 to page 293—a huge list it is. A very large proportion of that list consisted of evidence on precisely that issue and the whole question of dangerousness. It is very important that nobody should get the idea that the noble Lord, Lord Soley, wants to protect the wider community, who have the right to be protected from dangerous people, while the rest of us are simply trying to protect the rights of a small number of seriously mentally ill people. That would be to traduce our argument. I completely share with the noble Lord and the Minister the aim that as many people as possible who appropriately fall within the provisions for compulsory treatment, within the ambit of the Mental Health Act 1983 as it will be amended, should be brought within that scope. I agree with the noble Lord, Lord Soley, that the public deserve, and are entitled to, protection so far as possible from dangerous people. Just as I have said repeatedly in the terrorism context that national security is a civil liberty of every citizen, equally protection from dangerous people is something that every citizen is entitled to expect. The question here is much narrower. Agreeing as we do on the principles, we must ask whether these clauses provide greater protection than a therapeutic benefit test. I think almost everybody—I suspect, even Ministers—agrees that the language of the appropriate treatment test is less certain than the therapeutic benefit test. I am strongly of the view that a court would find it easier to test the term ““therapeutic benefit”” than ““appropriate treatment””. Appropriate treatment is defined in every case by the psychiatrist or the lead professional providing the treatment, and that in itself introduces substantial difficulty for the courts. I agree with the Government, as did the committee, that the old treatability test in the Mental Health Act 1983 presented problems. It is absolutely right that it be replaced, and I would applaud the Government for replacing it. I am sure that the Committee shares that view. The question is whether the Government propose to replace it with the right kind of measure. We must ensure that the balance between the civil liberties of the patient and those of the majority of the community falls within a certain area that can properly be interpreted by the courts. It is hoped that the Bill will achieve the retention of more people who are already known to the services within those mental health services, so that those who have come within their ambit are less likely to commit serious crime—as was pointed out to me the other day, we are not just talking about homicide—than under the old law. The committee’s view was that a therapeutic benefit test would achieve that. I have seen absolutely no evidence that the vaguer test proposed by the Government would achieve more than a therapeutic benefit test. The other question is: how far will this new law bring people who are not already within the ambit of the services within their scope? It is a truism that a very small proportion of seriously mentally ill people commit serious crimes. It is accepted that between one in 10,000 and one in 20,000 people who suffer schizophrenia commits a homicide. How many of those 10,000 to 20,000 people will be brought within the scope of the very acute mental health services as a result of the Bill? Will it be more, less or the same number? I suggest to the Government—and in this I have the support of the Mental Health Alliance, including the Royal College of Psychiatrists, to which I will return in a moment—that the appropriate treatment test is likely to diminish the number of people coming within the scope of the mental health services. Mentally ill people often go to services voluntarily but only when they have a sense that they will be safer in the hands of the mental health services than out on their own. If they are aware that a very vague test is being applied so that they run a far greater risk of long-term, compulsory detained treatment, they are significantly less likely to go to the mental health services. That must surely be a matter of common sense. The prospect, therefore, under the vaguer test of more potential homicides being brought within the system is very small. Furthermore, if one looks at the inquiries to which the noble Lord, Lord Soley, referred both in his trailer and in the feature film, one finds a clear pattern in every single case that has been inquired into, of which I am aware, right up to the present. The finger has not been pointed at a deficit in the definition of mental disorder. The finger has not even been pointed at the treatability test. In every single case it has been pointed at a failure in resources—at a failure in services and occasionally at failures of judgment. Nothing in this Bill repairs those problems. I mentioned that I would say more about the Royal College of Psychiatrists. It is simply to answer a question that was raised much earlier today. There has been a good deal of discussion about the role of the Royal College of Psychiatrists in the debate we are having on this Bill. As a lay person, I am satisfied that it is sensible to obtain the views of the professional body that represents the clinicians involved in the territory. I could add a whole list of other bodies, some of which have been mentioned earlier—the noble Baroness, Lady Meacher, mentioned one or two—which agree with the Royal College of Psychiatrists. The question raised was: how many psychiatrists are on the side of the Government on these issues? I was invited to meet a few. Indeed, the noble Baroness, Lady Royall, very kindly arranged a meeting at which Members of this House were to meet psychiatrists in favour of the Government’s proposals. I did not take the trouble to count them at the time because I was too interested in the issues, but I do not think I got beyond eight or nine. Ten, I am told from across the Chamber. So that is ten against the Royal College of Psychiatrists as far as I am aware. Of those ten, I was left with the view that some of the senior members of that group had very fixed preconceptions and were not at all open to argument. What is the point of introducing an appropriate treatment test which is going to drive people away from the service and which flies in the face of the evidence called before an all-party scrutiny committee which reported consistently with the previous inquiry of the expert committee chaired by Professor Richardson? I do not believe that one can do better than citing what was said to the committee by Professor Eastman. Professor Nigel Eastman is Professor of Law and Ethics in Psychiatry at the University of London and he is Head of Forensic and Personal Disorder Psychiatry at St George’s Medical School. I would invite the Minister to attend very carefully to what he said because, in my view, it encapsulates the argument in a short paragraph. It is at paragraph 139 on page 50 of the first volume of the Joint Committee’s report. Professor Eastman, who is of the highest standing said: "““Therapeutic benefit to the individual is of crucial importance in terms of protecting the boundary of what is the business of mental health professionals. I am not at all against protecting the public, of course not, but it must be in conjunction with some benefit to the individual that goes beyond simply stopping them offending. If you adopt a definition of treatability which is simply the reduction of risk or the avoidance of offending, that means that locking somebody up is treating them””." I agree with Professor Eastman: locking somebody up is not treating them. I know that the noble Lord, Lord Soley, has rigorous intellectual honesty. He and I were at another place together and I have heard him speak on many subjects and that comment is based upon my experience. I completely share with the noble Lord the view that there may be a case for locking up people who are untreatable and who have been found to be very dangerous. But let us not pretend that the right way to do it is under a mental health Bill. I do not join those who accuse the Government of trying to create a kind of Soviet-style psychiatric regime; that is an unfair criticism. But I do criticise the Government for failing to grasp the nettle on the whole question of therapeutic benefit and dangerousness. A responsible government should be intellectually honest enough to grasp that nettle. If it is the case that this Government believe that certain people should be locked up as a result of certain criteria, a sort of control order regime for dangerous people—and there is a precedent to start with—let them bring forward a Bill to this House and the other place and it will be considered on its merits. Parliament will then be able to adjudge whether it is necessary, and if so in what terms, to place restrictions on dangerous people who cannot be treated. But in terms of a mental health Bill, if this really is a Bill on mental health and not, as has been suggested by another Member of your Lordships’ House, merely a Home Office Bill in disguise—a way of securing, as Professor Eastman put it, ““locking somebody up””—the Government really need to accept that their appropriate treatment test simply does not add up to anything involving improvement to health. The Scottish Mental Health (Care and Treatment) (Scotland) Act includes the therapeutic benefit criterion in that compulsory powers can be used only where medical treatment is available which would be likely to, "““prevent the medical disorder worsening, or … alleviate any of the symptoms, or effects, of the disorder””." That is not a high demand for a therapeutic benefit, but at least it retains a concept. The purpose of mental health legislation, as the committee said, must not be to detain people for whom no beneficial treatment can be found. In my view, this Bill has been infected by these clauses. It has the infection of a custody Bill rather than a health Bill. I would ask the Minister to take on board criticisms of this part of the Bill which he knows come from within and outwith Parliament, and to say to the House that the Government will consider these matters further and return at a later stage hopefully with acceptable amendments.