24
th January 2007
Dr. T. Zigmond
The Royal College of Psychiatrists
17 Belgrave Square
London
SW1X 8PG
Dear Tony,
THERAPEUTIC BENEFIT AND PART 3 OF THE
PROPOSED AMENDMENTS TO
THE MENTAL HEALTH ACT
I understand from discussions with you that it
is likely that an amendment will go before The Lords to the effect
that conditions for detention under the Mental Health Act should
include “therapeutic benefit”. I further understand from you
that it is likely that that amendment will apply only to Part 2 of
the Mental Health Act. I have had an email discussion with
elected Members of the Forensic Executive on this issue. Not
surprisingly, for a sophisticated group of professionals there have
been a range of views, but I believe we have reached a considered
view on this.
What we have always tried to avoid is
hospitals and mental health legislation performing a function best
left to jails and the Criminal Justice system. If society wants to
prevent-ably detain dangerous people that's 'fine' (although as
citizens we may have views on this), but this should not take place
in hospitals; recent legislation such as the indeterminate sentence
for public protection seems to recognise this.
At the heart of the difficulties is a debate
about what society should do about “disordered”
people who represent a significant risk to
others but who may not, themselves, wish to have treatment or,
indeed, necessarily benefit from it. This we assume is what
drives the Lords’ view that therapeutic benefit should apply to
Part 2 only; that “risk reduction” could be construed as a
treatment that brings societal benefit. This is, indeed, a
problem that we need to grapple with, but in our view this is best
dealt with by separate legislation and a proper democratic
discussion about how society wants to approach the indeterminate
detention of people who present grave risk to others associated
with some forms of mental disorder, particularly personality
disorder.
We have argued that there is an ethical and
logical argument for the exclusion of “impaired decision making” as
a requirement for detention under Part 3 of the Act. This is
based on the understanding that if someone has committed an offence
they are clearly in a different ethical situation from someone who
has not. They may, therefore, lose their full (but not all)
rights as a citizen. In our view, however, should the
criterion of “impaired decision making” be applied to Part 2 but
not Part 3, this would in fact strengthen the argument for a
“therapeutic benefit” test within Part 3. Thus, under Part 3,
if a patient is not in a position to refuse treatment if they have
not got impaired decision making, then the argument must be that
they ought to at least have a right to expect that such treatment
is likely to provide “therapeutic benefit” to them. Otherwise
they are faced with a double onslaught on their rights, not only
can they not refuse treatment if they do not have impaired decision
making but they may also face treatment that is not necessarily
going to confer therapeutic benefit to them. We believe that
this is fundamentally wrong. Some would argue that Section 41
of the Mental Health Act does this already. This is not the
case. The detention is under Section 37 which contains a lot
of safeguards in regard to the conditions for detention under the
Mental Health Act. A Restriction Order has nothing to do with
the detention itself but is a safeguard added by the Court to
ensure that decisions about discharge are not taken by the clinical
team.
To make a distinction between Part 2 and Part
3 of the Act in regard to therapeutic benefit is to add to the
stigma associated with being a mentally disordered offender.
You may argue that if we have asked for impaired decision making
not to apply to Part 3, we are already doing this. I do not
believe that this is the case. The argument for removing
impaired decision making from Part 3 of the Act is not to reduce
the rights of mentally disordered offenders, but to allow the
possibility of hospital treatment. As those subject to Part 3
will be those who otherwise would be subject to a prison sentence,
informal treatment is not available to them. Thus, the
removal of impaired decision making is not to reduce rights but to
enhance the ability to receive treatment.
We have separately strongly argued that sexual
deviancy should be removed from the Mental Health Act as a
criterion for detention. If it is retained, and the criterion
of therapeutic benefit be removed, then we really do pave the way
for preventative detention by the back door. Although there
is an argument put forward by a significant number of forensic
psychiatrists around the public health duty to work with society to
manage significant risk to others, this does not justify the
proposed changes to the Mental Health Act. To repeat myself,
this requires separate consideration and needs separate
legislation. Forensic psychiatrists do not wish to be
gaolers. It is hard to imagine working in the kinds of
institutions where seriously disordered people with Antisocial
Personality Disorder will be managed who know that they are
detained not for anything that will help them through therapeutic
benefit but to manage the risks they pose to others.
Professor Nigel Eastman in his summation to the Scrutiny Committee
described such institutions as “snake pits”. I suspect in the
long term, they would not look much different from jails.
Certainly the secure unit programme in England and Wales would not
be able to fulfil this function. The DSPD programme does to
an extent explore how this might be done. It is not clear,
however, that that programme will be successful and indeed it is
not at all certain that society will be willing to bare the extreme
cost associated with each treatment place within such
institutions.
We believe it is dishonest to draw a
distinction between Part 2 and Part 3 of the Mental Health
Act. Many patients detained under Part 2 of the Act represent
at least equal if not a greater risk to others. The
discussion in The Lords has largely concerned itself with the
“Michael Stone problem”. This distinction between Part 2 and
Part 3 of the Act in relation to therapeutic benefit makes no sense
in that context.
I cannot do justice to the sophisticated
nature of the discussions we have had on this issue as it would
take a considered academic paper which we cannot do without much
more time and thought. At our Executive in Prague, I will be
bringing this up and I think we will mount, over the next year, a
programme to address some of the major ethical issues that confront
the profession of forensic psychiatry.
Is there really no way of devising and
operating practically a therapeutic benefit test which would depend
not upon patient attitude but upon medical opinion of 'therapeutic
benefit' if the patient would engage. And that is not the same as
'appropriate treatment is
available', Indeed, maybe if the government accepted the wording
'appropriate treatment is available which, if accepted, would be
likely to produce therapeutic benefit' that would resolve the whole
impasse around 'treatability'.
To summarise, the Forensic Executive
does not support a distinction being made between Part 2 and Part 3
of the Mental Health Act in relation to therapeutic benefit.
We are sympathetic to society’s concern about the risk posed to
others by citizens who have a severe disorder, particularly severe
Personality Disorder. We believe, however, that this requires
much greater democratic debate and, indeed, will require separate
legislation. To try and deal with such fundamental issues of
human rights within a Mental Health Bill is wrong.
Yours sincerely,
Dr. John O'Grady
Consultant Forensic Psychiatrist
Chair, Forensic Faculty Royal
College of Psychiatrists