Examination of Witnesses (Questions 120
- 139)
THURSDAY 30 MARCH 2000
MS SUE
BROWN, MR
PAUL FARMER,
MS MARGARET
EDWARDS AND
MR PETER
WILSON
120. What I want to tease out is the set of
principles or values which may be incorporated in the Act which
will then be a guide as to how the Act runs, no matter whether
it is compulsory treatment or whatever it is, or definitions,
what views people have about the peoples being enshrined in the
Act.
(Mr Farmer) I think that the principle of reciprocity
is crucial. What essentially is being proposed within the Green
Paper is quite an extensive broadening of the criteria for compulsory
treatment. If that is going to take place that does need to be
counterbalanced by reciprocal rights for people who are then subject
to compulsion and arguably rights for people prior to compulsion
as well. That principle, which would achieve a greater degree
of equality, should help to go some way towards the danger of
these proposals, which is a great extension of compulsory treatment
which should really be perceived to be a last resort rather than
a first resort. It is important to bear in mind that this is a
piece of legislation which is supposed to be a stopgap or a block
if you like in terms of ensuring that people do not fall out of
the system. In many respects the danger is that it will be treated
as a means of propping up a system which failed people because,
for example, people have not been identified early enough. There
is some interesting research in Staffordshire which suggests that
something like half of all people experiencing mental health services
for the first time do so under a section. That principle of reciprocity
then becomes absolutely crucial in terms of, if they are within
that process, that is what they should have.
(Ms Brown) Mind was quite pleased at the recommendations
of the Richardson Committee around those principles. There are
some quite important ones in there.
121. There were about 10, were there not?
(Ms Brown) Yes, and in fact you are right, that they
are the first step because two of those, which are about patient
autonomy and about non-discrimination, are what led the Committee
to come up with putting capacity into the Act, so the principles
led to the issues around capacity.
122. So the two things are connected?
(Ms Brown) Yes. If you want a law that is based on
a principle allowing patient autonomy where that is possible and
that does not discriminate between people with mental health problems
and people with physical health problems, then you end up with
saying capacity is a critical issue here. The Richardson Report
is very good on explaining how they got to the point they got
to around capacity and the Green Paper does not include all of
that detail and that it is worth looking back to the original
one. The other thing on principles that I think is important is
that one of the principles that is suggested in the Green Paper
as an alternative to the Richardson proposals includes having
the avoidance of risk as one of the key principles. Defining what
mental health is all about, that it is about risk, is causing
some of the problems that we are getting into. Obviously risk
is a factor but it is not the most important thing about mental
health.
Chairman
123. Can we come on to treatability because
this is very much a key area? The evidence from a number of you
clearly has referred to it. The current legislation in respect
of compulsion, and we are talking here particularly about people
with what are deemed to be personality disorders, does not allow
the detention for treatment of people who are deemed untreatable.
I have taken note of the distinction between Mind's evidence and
SANE's evidence on the treatability test. I would like to explore
your views in some more detail. I wonder if I could ask Ms Brown
what would your approach be to the kind of situation where you
have people who are deemed untreatable under the current arrangements
but are posing a significant danger either to themselves or to
the public? What would you see as being the way forward in dealing
with situations of that nature?
(Ms Brown) There are two issues around treatability.
One is that there is a problem about who is defined as untreatable.
We should not just restrict that to whether people respond to
drug treatments. If there are therapeutic interventions of any
description that will help, then that person should be defined
as treatable.
124. This is a very interesting point because
I pressed the Department of Health last week on this issue and
got the impression from the official who was giving evidence that
there is an attempt being made to look at the actual concept of
treatment. In a sense you would be supporting the broadening out
of what we mean by treatment.
(Ms Brown) Yes.
125. Does that automatically mean that you would
favour compulsion being used in such cases where treatment was
not the specific medical treatment perhaps that we view as the
traditional way of dealing with people with some mental disorders
but a much wider view of how we treat their problems?
(Ms Brown) Again I would come back to capacity, so
compulsion and capacity go together. If someone has capacity and
does not want to have treatment then there is only an issue of
compulsion if that person is deemed to be a risk to others, not
to themselves, so we need to make that distinction. Certainly,
yes, if someone is treatable in the broader sense, that there
is something that has the potential to improve their condition,
and they are a risk to others, then compulsion might well be appropriate.
If you have someone who is deemed not treatable in any sense of
the word and is deemed to be a threat to others, then we would
argue that that is not a health issue; that is a criminal justice
issue and that is something that the criminal justice system should
be looking at. If you have someone who has committed no crime
and cannot be treated in any sense of the word, on what basis
would you detain them? It is not possible to say that someone
who has committed no crime is definitely a risk to others. Obviously
there is an issue where people have committed a serious offence
about whether they get an appropriate sentence that allows them
to be detained if they are not treatable, but that is a criminal
justice issue; that is not an issue for the Mental Health Act.
126. Ms Edwards, you have made certain arguments
on the removal of the treatability test. We would be interested
to hear more about your thoughts on that.
(Ms Edwards) Our position is that people with personality
disorder should be able to have access to treatment, any kind
of treatment, certainly the non-drug treatments, the therapeutic
treatments and so on that are being tried out in other countries.
The fact that the treatability test in relation to that group
exists in the present Mental Health Act we believe has been a
deterrent to such people receiving treatment in the health system.
They frequently get no treatment at all or the system waits until
they [do] commit an offence. They are in prison which, despite
the prisons' best efforts, [they] are not on the whole therapeutic
places. That is why we have an absolutely clear view that the
treatability test should be removed from [the] mental health legislation.
127. Can I be clear what you are saying? Are
you arguing that under the current legislation people with certain
personality disorders who are currently discarded as being untreatable
are actually treatable within the current framework of what we
mean by treatment?
(Ms Edwards) Yes.
128. You are saying they could be treated within
the current definition of "treatable"?
(Ms Edwards) First of all there are some people who,
even if they are regarded as untreatable, might well have not
just a personality disorder but also some form of mental illness.
Quite a lot of inquiries into homicides have revealed exactly
that. The assessment of the individual is immensely difficult
with personality disorder but certainly we believe, and there
is external evidence to suggest, that people are being excluded
from care and treatment where, certainly for their mental illness,
there could be treatment, and there is an increasing school of
thought which says that there are even some drug treatments that
can help ameliorate the worst effects of the personality disorder.
There are quite a lot of non-drug treatments which are being tried
in Holland apparently with success.
129. So you are saying basically that the existing
law is not being appropriately used? I was interested in the Home
Secretary's comments some time ago where he had a bit of a difference
with the Royal College of Psychiatrists over the treatability
question under existing law. In a sense you are saying that he
may be right in what he was saying at that time, that there was
a capacity. I should not use the word "capacity" because
we have used it in another context. There was the ability to use
the current legislation, the 1983 Act, in a way that was not happening
in a number of instances. You would agree with that?
(Ms Edwards) There could be. There is another big
issue, which is of course one of the many complexities of this,
that some psychiatrists, if they believe that on the whole someone
is not treatable and they have got very hard pressed services,
hard pressed wards, the difficulty of treating people with a severe
personality disorder, who can be extremely disruptive, could mean
that they are reluctant to accept them. What this leads us to
say is that the law needs to be clarified in the sense of dropping
the treatability test and that separate services should be set
up, properly resourced, including clinically, so that you do not
have the problem of blocking sorely needed beds for people with
mental illness, you do not have the management problems which
are clearly there of putting the two together, you do not have
the stigma which to some extent, certainly if you have got untreated
people out there being violent or being seen as possibly violent,
does not help the vast majority of mentally ill people who are
never going to be violent. It is a mixture of the law and services
which we believe is needed to clarify the situation and move it
forward.
Mr Austin
130. On an assumption that an individual is
treatable, you indicated that very often such persons might actually
be in prison rather than in the health system. It is my understanding
that if someone is in the prison system and is deemed to be treatable
but lacks the capacity to make decisions, it is not possible to
compulsorily treat them while they are in prison, is that right,
whereas they could be if they were in hospital?
(Ms Edwards) I cannot comment on the legal technicality,
but certainly increasingly as far as possible they would be transferred
to a hospital.
131. If there was a bed available?
(Ms Edwards) If there was one available. If they are
regarded as treatable, well, yes, they probably would be in hospital.
Certainly there is so much external evidence, particularly through
homicide inquiries and other individual cases, that people who
are regarded as borderline (they may or may not have a mental
illness but they certainly have a personality disorder or are
considered to be exclusively personality disordered) are not getting
the management and treatment to help them and to hopefully prevent
offending and possibly violence to themselves and others.
132. But many of them would be in prison?
(Ms Edwards) The vast majority are in the prison system.
133. Where they cannot be treated.
(Ms Edwards) Yes.
(Mr Farmer) There is a balance here between what is
the legislation and what is the way in which services are delivered.
Obviously services are delivered within a legislative framework.
At present there is a fundamental problem with the delivery of
services for people with a personality disorder which has been
identified by many people and your colleagues on the Home Affairs
Select Committee spent some time looking into this. Our belief
is that if you remove the treatability criteria from the Mental
Health Act, from a legislative point of view that could well negate
the need to introduce specific legislation for some aspects of
people with dangerous severe personality disorders because they
would be treated. All of my colleagues do know that people do
come seeking treatment and are turned away. Part of that is because
they are considered to be untreatable and legally treatment is
not applied to them. It is also because if you like not every
stone is turned over to try and see whether this individual is
treatable. I understand the Home Affairs Select Committee spent
some time looking at the model in Grendon which has a very interesting
approach to supporting people with personality disorder which
allowed for treatment to take place with people who had previously
been seen as untreatable. It is a grey area and to some extent
it will always be thus.
Chairman
134. One assumption we appear to be making is
that there is some broad definition of personality disorders accepted
by people across the board. Certainly my experience has been,
talking to numerous psychiatrists over the years, that there are
marked differences between individual practitioners as to what
their perception of personality disorder is. I am not sure where
that leaves us attempting to define what slots into legislation.
(Mr Farmer) It is possibly worth remembering that
the term "dangerous personality disorder" is a wholly
new and newly-invented term. It does not exist in clinical guidance
as far as I am aware.
Dr Brand
135. It is not just difficult to get the diagnosis
agreed but the definition of what is treatable and what is not
treatable is very much a cultural, almost a tribal, difference
between psychiatrists. If you are a psychotherapist you believe
that personality disorders can be treated. We had a very eminent
consultant psychiatrist working at Parkhurst who believed that
he could cure most people in Parkhurst. What I am trying to explore
a little bit further is, do you think that the concept in the
mental health legislation of treatability and non-treatability
gets carried into service planning generally, outside the framework
of the Mental Health Act? Do you believe that it allows psychiatric
services to define treatability almost as "not treatable
by us"?
(Mr Wilson) Yes.
136. Because there is a phrase that is acceptable?
(Mr Wilson) I do think that the definition of treatability
is crucial here because it is commonly accepted by psychiatrists
that it is through medication. I think I am right in saying that
under the existing mental health legislation treatability does
not simply mean cure. It means enabling somebody to function reasonably
adequately. There is a broad definition already in existence.
If you take that view then you are not seeking necessarily to
medicate somebody in order to transform his or her behaviour.
You are actually doing various activities that are likely to reduce
the possibility of his or her behaviour becoming so problematic,
and then you enter into a whole realm of psychotherapeutic activity
which by and large psychiatrists do not identify themselves with.
There is then a major lack of provision. It seems to me that a
lot of this debate revolves around the issue of the definition
so that it gets muddled in terms of what the adequacy of the existing
provision is.
137. Do you as groups see evidence of resource
allocation being restricted by people being particularly careful
in their definition of what is treatable and what is not?
(Ms Edwards) On a day to day basis, probably. It comes
back to the acute shortage of beds in both acute hospitals and
in medium secure units, and so if a person has to choose, a psychiatrist
or whoever, between someone whom they regard as clearly treatable
and someone they are rather doubtful about, and especially if
they see treatment as drug treatment and that is it, there is
a strong possibility that they will opt for taking, because they
feel obliged to anyway because they view that person as treatable,
the person considered to be treatable. That is why there is virtually
a total absence of resource for this group of people in the health
system.
(Mr Farmer) I would say it is more than that. It is
also about the way in which people are supported within the community
as well as within hospital. If you look at the way in which options
are given to somebody with a mental illness, the number of people
offered talking treatments, for example, is a tiny proportion
of the total. I would not want to put a figure on it but it is
very small. The amount of support in a broader context for people
in terms of their social care needs and their housing support
and employment support is very small and yet there are growing
bodies of evidence to suggest that in order to keep someone "well"
it is not simply about pharmacological treatments. In addition
to that, even within the pharmacological treatment context, older
typical medications which have extensive side effects and are
quite often used simply to manage somebody rather than to help
them to recover a form of meaningful life are themselves restricted.
There is a broad concern around the way in which services approach
the support and care of somebody with a severe mental illness.
(Ms Brown) There is also the issue, if you are talking
about people covered by the Act, so we are talking about those
who are compulsorily treated, that if you remove the treatability
requirement then if you have people who some people would consider
treatable but actually you can detain them without needing to
provide them with any treatment, there is a risk that that will
remove incentives to providing them with treatment rather than
provide incentives, whereas if, in order to compulsorily treat
them you have to provide them with a useful treatment, then you
have more of an incentive to provide them with those services.
138. So you might want to keep treatability
in there but you would want somebody else to define what treatability
is in a broader sense than we have at the moment? We are talking
about chemical treatment of people rather than a spectrum of care,
social support and listening services?
(Ms Brown) Yes, but I do not think there is a problem
with the legal definition in the Act. The problem is whether those
services are actually provided.
139. The sheer presence of treatability within
the Act allows one to create a cut-off point which is very difficult
to challenge if you are a service provider.
(Ms Brown) Yes, but the consequence of removing treatability
then allows the detention of people without providing them with
any effective treatment.
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