Examination of Witnesses (Questions 106
- 119)
THURSDAY 30 MARCH 2000
MS SUE
BROWN, MR
PAUL FARMER,
MS MARGARET
EDWARDS AND
MR PETER
WILSON
Chairman
106. Colleagues, can I welcome you to this session
of the Committee and welcome our witnesses and thank them for
their evidence and for co-operating with our inquiry. Could I
begin by asking you each to briefly introduce yourselves and maybe
say a word or two about your work?
(Mr Wilson) I am Peter Wilson. I am Director
of YoungMinds, which is the National Association of Child and
Family Mental Health. We have been campaigning for greater public
awareness of the needs of children and adolescents with mental
health problems and we provide a range of services to health authorities
and local authorities, parents' information service, publications
and training.
(Ms Edwards) I am Margaret Edwards. I am Head of Strategy
at SANE. SANE has three objectives: to raise awareness of mental
illness and de-stigmatise it generally, and make people more understanding
of it and the need for the services that people [do] need. We
undertake research at our new Research Centre in Oxford. We also
run a national helpline SANELINE which operates every day of the
year from mid-day to two o'clock in the morning and helps enormous
numbers of people in that way.
(Mr Farmer) I am Paul Farmer. I am Director of Public
Affairs for the National Schizophrenia Fellowship, which is the
largest charity supporting people with severe mental illness,
helping round about 7,500 people every day through a range of
local projects and also carer support groups.
(Ms Brown) I am Sue Brown, Parliamentary Officer for
MIND. MIND works to improve the lives of all those affected by
mental disorders of whatever kind and local associations provide
direct services at a local level. We also have a telephone information
service and a local advice service.
107. Thank you. You do have interesting differences
between you on the way forward and we obviously want to explore
these. Where either myself or my colleagues put a question to
one of you, I would suggest that the others feel free to give
their different perspective if it is relevant. I am conscious
as well that we have a second session this morning with some user
groups with whom we want to explore similar issues, so if we can
keep the answers reasonably brief we would be grateful—I
am not sure the questions will be reasonably brief but we will
do our best. Can I begin by asking Ms Brown a question? I read
with great interest the evidence that you put forward and you
have raised some quite detailed concerns about the possible definitions
of mental disorder using the Green Paper, arguing that you fear
a very wide definition could be used to increase enormously the
number of people who are subjected to the use of compulsion. You
have said specifically that there should be no legal discrepancy
between mental or physical illness. If an individual has the capacity
to refuse treatment this should be respected. I read your evidence
on this in some detail and you say that Mind believes, as is the
case with physical health, that there is no justification for
allowing compulsory intervention on the grounds of a person's
health alone where they have the capacity to make health care
decisions. Would you say a bit more about that because I had some
concern that perhaps there were provisions in law that contradicted
your stance. I would be interested in your justifying the point
that you are making.
(Ms Brown) I am not sure which provisions in law you
are referring to there.
108. Let me tell you more specifically. It may
be my misunderstanding of the National Assistance Act, section
47, where we are talking about physical ill health. I have certainly
seen situations where the individual has had the capacity and
they have been removed in those circumstances. For me it did not
quite square up with what happens then. It might be that the practice
I have seen has been wrong, and I am talking of a number of years
ago. I am interested in your expanding a little bit on what you
mean or what your concerns are in respect of the capacity issue.
(Ms Brown) The first thing to understand is exactly
what is meant by "capacity" because capacity is about,
do you have the ability to make a decision for yourself? That
is to do with, do you have the ability to take in information
about your circumstances, about the range of treatments on offer,
about what the likely effects and side effects of those treatments
will be? Do you have the ability to retain that, to understand
it and to make a decision on the basis of that information? If
you have that ability then Mind believes you should be able to
make a decision on the basis of that information, that if you
understand that by taking a particular course of action you risk
harming yourself or your health, you are able to do that. For
physical health care that is the case. The most common example
is Jehovah's Witnesses who can refuse blood transfusions. Provided
they understand what the consequences of that are, they are able
to make that decision even if that will result in their death.
What the current Mental Health Act does is outline the situations
under which someone with the capacity to make those decisions
can have that view overridden and be compulsorily treated against
their will even where they have capacity to make a decision. We
feel that that issue around capacity is one of the crucial things.
In relation to compulsory treatment you need to understand the
definition of the criteria for compulsory treatment and how they
work together. If you have a very wide definition of mental illness
and you also have very wide criteria for compulsory treatment,
so that for instance, even without the capacity model in the Green
Paper being very wide, what that will result in is a much larger
number of people fitting both the definition and the criteria,
and therefore being subject to compulsory treatment. If you go
with a model that takes capacity into account, such as the one
we suggest or the one from the Richardson Committee, which is
in the Green Paper, then you will actually reduce the number of
people who would fall within that. If you have a wide definition
you need tighter criteria in order to avoid a huge increase in
the number of people subject to compulsion. For us that issue
of capacity is critical. In fact, in the Richardson Report, they
also went into some detail about trying to make the Mental Health
Act non-discriminatory as between the Mental Health Act and physical
health. On the legal issue that you raised there is also the difference
between detaining someone and treating them.
109. The treatability issue someone is going
to come on to, quite clearly, because that is an area that is
very relevant, especially in relation to personality disorders.
I do not know whether any of the other witnesses have any thoughts
which differ from the Mind position on this particular point.
It is a very important point and I would be interested in finding
out whether you agree or profoundly disagree and, if so, why.
(Mr Farmer) Broadly NSF would endorse Mind's position
in the context particularly of the concern about extending and
broadening the definition which in turn could potentially lead
to a broadening of the number of people who are compulsorily treated.
110. What about capacity, Mr Farmer? It is capacity
that is perhaps my main concern. Do you agree with their worries
about that?
(Mr Farmer) Broadly we would, yes.
(Mr Wilson) With children and young people it is an
issue. At what age are people deemed to have that capacity is
a factor over and above whatever mental state they may be in.
The new mental health legislation is suggesting that 16 for the
rebuttal falls down to the age of 12. It does raise very complicated
issues about children and at what age we feel that they clearly
have sufficient knowledge and competence to have the capacity
to agree to treatment. What are their rights and what are the
rights of parents? It is a very complicated issue.
111. There are interesting discrepancies between
the age in respect of capacity here in mental health legislation
and treatment, and also of course criminal responsibility. We
seem to have these discrepancies occasionally.
(Ms Edwards) I do not wish to make any comment on
capacity but first of all let me put positively that SANE welcomes
the fact that the Green Paper proposals are proposing to broaden
in some ways the definition of mental disorder so that anybody
who could be regarded as having a mental disorder could be eligible.
It is not about being eligible for detention because we do not
want anybody detained who does not present a very serious risk
to themselves or to other people. We also welcome (but we will
come on to that later) the effective removal of the treatability
test. We would be concerned if the result of these proposals,
if enacted, were to bring more people into detention. Provided
the crucial test of presenting such a serious risk to themselves
or other people were met, with proper services in the community
and in hospital, wherever, which are as far as possible preventing
the need for detention, that is where we are coming from and that
is the focus of our concerns.
Dr Brand
112. I am very interested in capacity because
it seems to be largely in the eye of the beholder as to whether
you are capable and the frame set of the person assessing capacity.
I am not sure whether we can evolve a particular objective test
of that. Presumably, if we take the Mind approach, there would
have to be an appeal mechanism as to whether somebody is capable
of refusing treatment. Would that not be the same as the appeal
mechanism that is envisaged within the Green Paper?
(Ms Brown) That is precisely the issue with capacity.
You need a clear definition of what capacity means. The risk,
if you do not have that, is that capacity becomes equated with
disagreeing with your psychiatrist or with the clinical team,
and clearly that is not a reasonable definition of capacity. The
ultimate appeal mechanism would be a court of law, so you would
have a legal definition. If someone felt that they had been subjected
to compulsion when they actually did have capacity, they would
be able to appeal to a court of law to say, "Well, actually,
I do feel I have capacity." We would like to see the definition
being this issue of, do you have the ability to take information,
to understand it and to use it to come to a decision, so the issue
is not, do you come to the same decision that the judge or the
psychiatrist or whoever would come to, but do you come to a decision
which is based on you weighing up the decisions about what the
possible consequences are? In physical health care this is what
people do. They weigh up, "I am supposed to take this drug
which will prevent asthma", or whatever. "It has the
following side effects. Will I take the risk or will I take the
drug?" They weigh that up and make a decision. If you are
able to do that, we say you should be allowed to do that. If you
take the decision knowing what the likely consequences are, even
if you take a different decision from the one you or I would take,
you should be able to do that. If your illness is such that you
are unable to do that because you are unable to weigh that up
and you are unable to understand the information or you are unable
to believe it, then that would be the point at which decisions
about what is in your best interests need to be made by someone
else. You are absolutely right, that definition of capacity is
crucial to including capacity in the Act.
113. But even under your definition it would
still be subjective, would it not? If I am determined to kill
myself and I am cool, calm and collected and do not rant and rave,
then most people would say, "Yes, you have got the capacity
to take that decision in your circumstances." If I believe
that my sensory input tells me that you are the Devil and therefore
I ought to kill you so that I might go to Heaven or save lots
of people, that within my framework is a totally reasonable assumption
to make but I suspect you would not find it particularly reasonable.
This is where I do have a problem. Capacity sounds a good concept
but I find it very difficult to define in clinical practice.
(Ms Brown) It is important to make the distinction
between the weighing up of the facts of the case and if you weigh
up the facts of the case but one of the facts that you are convinced
of is actually untrue, such as—
114. But who determines what is true in these
matters?
(Ms Brown) Ultimately that would be, if it is a legal
definition, a court of law. At some point there will be difficult
decisions to be made. For some people it will be very clear: "Do
you have capacity?". For others it will be very clear that
they do not, and there are, as with any definition in law, going
to be cases where it is it is open to legal challenge and needs
to be judged in court.
115. You feel that having the capacity criteria
built into the Act would clarify the appeal system against the
operation of the Act?
(Ms Brown) Yes. You need a definition written into
the Act in order that some court of law can decide whether that
criterion has been met or not. Ultimately any dispute about whether
something falls inside or outside any law comes down to a decision
of the court.
116. Do you all think that capacity is an element
that should be in the Act?
(Mr Wilson) I think your point is well taken. It is
in the nature of the delusion or the hallucination that you believe
it.
117. Yes, but who determines if is true?
(Mr Wilson) In any society there has to be a system
where there is a reasonable and sanctioned view that it is not
consistent with society's norms.
Dr Brand: But we have a multicultural society.
I get the most extraordinary letters from all sorts of people
with either religious views or anti-religious views which are
strongly held. I think they are fairly deluded but I would not
say necessarily that it is abnormal. Later on we are going to
touch on cultural differences and gender issues making a difference
to the way the mental health service provision is delivered.
Chairman: That point about values, Mr Wilson,
is very important because values do change. In my professional
career before I came here I was involved in removing from long
term psychiatric care women who were deemed to be moral defectives.
It was always women, by the way, never men, that were morally
defective. It always struck me as strange.
Dr Brand: Women become pregnant and men do not.
Chairman
118. It was not just that. There were other
issues as well. And men presumably have something to do with their
becoming pregnant. It does change and it concerns me. Peter has
made a very important point. Where do the values originate from
and who applies them, because clearly one of the areas that we
will get on to in a gender and race context is the Mind evidence
that struck me, where they talk about doctors substituting their
values for those of the patient. That is a very important area.
(Mr Wilson) I think any kind of diagnostic judgment
is based on a value of some kind, whatever the prevailing value
is. I do not believe that there are many objective diagnostic
judgments. You make it in terms of the culture and the mores within
which you are living.
Chairman: I work in an environment in here where
the values differ markedly, and we make the laws. If the people
making the laws have fundamental differences in values it is an
interesting starting point for defining who is mad and who is
not.
Mr Hesford
119. On the back of that can I take the argument
one stage higher? This is an argument which is in the middle process.
If we are going to have a new Act, the Richardson Committee suggested
principles which might underpin the Act which I think would get
at what possible values there are and what other ways there are
of looking at using involvement and using perspective. The Green
Paper is not as generous on those principles as the Richardson
Report was. What would any of the witnesses want in the Act to
underpin the new way of looking at mental illness and the approach
to mental illness, particularly from the user perspective?
(Ms Edwards) To pick up very briefly on this question
of would we wish to see written into the Act the issue around
capacity, I think we would not because if it became a court of
law issue that is against our belief of how a mental health system
should work. We believe it should work as it does at present where
it is based on professional judgments where, as everyone says,
one has ultimately to rely on people making their best judgments,
people who are clinicians, and one would hope that they would
make them based (especially if there is knowledge of a patient)
on knowledge of the patient on a multidisciplinary basis, and
that, provided there are the fullest possible safeguards, we would
not wish anything more complex than that. Certainly the principle
of reciprocity outlined in the initial interim report of the Richardson
Committee is something that is important, that you should have
to have very strict tests before you detain someone. Again our
position would be that if detention is required, however regrettable,
to help someone, that there should be the simplest and fastest
way into a hospital bed and treatment to achieve that. Certainly
there should not need to be access to a court of law and there
should be the full panoply, as there is at present, of the tribunal
system with as many enhancements as, again, do not get in the
way of getting the person out and getting them back to normality
as soon as possible.
(Ms Brown) Can I just clarify this issue on the court
of law? What I am not saying is that in every case a court of
law shall decide whether a person has capacity or not. The court
of law comes in where there is a dispute between those who are
making the decision and the patient themselves, and that is the
case now as well. if you feel you have been sectioned unfairly
against the law that you do not fit the criteria, you can take
that to a court to say that this hospital or whatever is not following
the law. I am not suggesting that the court of law comes in any
more under capacity than it would under the current system.
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