Examination of witnesses (Questions 218
- 239)
THURSDAY 6 APRIL 2000
PROFESSOR GENEVRA
RICHARDSON and PROFESSOR
WILLIAM BINGLEY
Chairman
218. Good morning colleagues. Can I welcome
you to this session of the Committee and welcome our witnesses?
We are most grateful to you for coming along today and for your
very helpful written evidence. Could I ask you both to briefly
introduce yourselves and say a little bit about your own background
and how you come to be here?
(Professor Richardson) My name is Genevra Richardson
and I am a Professor of Public Law at Queen Mary and Westfield
College, University of London. I suppose I am here this morning
because I chaired an expert Committee that was set up by the Department
of Health in 1998 to advise ministers on reform of the mental
health legislation.
(Professor Bingley) My name is William Bingley and
I am a Professor of Mental Health Law and Ethics at the University
of Central Lancashire in Preston. I think I am here today because
I was a member of Genevra Richardson's Committee. I have just
stopped being the chief executive for the Mental Health Act Commission,
and prior to that I was legal director of MIND.
219. Can I begin by picking up one specific
point in your evidence? In the last paragraph you make the point
that you urge the Government to slow down its programme for legislative
reform. Can you possibly explain how you see the programme moving
forward, the timescale, and why you have such concerns about pace
of change?
(Professor Richardson) Certainly. As I said, we were
established in October 1998 and required to report to ministers
by July 1999. The Green Paper was published in November 1999,
together with our report, both on the same day. So the period
between the delivery of our report in July and the publication
of the Green Paper, we felt, was extremely short and it really
did not give the Department of Health enough time to develop the
detail and thinking that was clearly required. Our report did
not have enough detail to provide a full brief on reform of the
legislation, and the Green Paper was even more quickly produced
and even less full of detail. So we were concerned, I think, that
the Green Paper, because of the timetable set, had had to be very
schematic. As a result, perhaps, some of the more difficult issues
for consultation have been ducked in the Green Paper and we felt
that there was, out in the mental health community, an awful lot
of concern about the fundamental nature of new mental health legislation.
There were a lot of ideas and a lot of debate to be had, and we
felt disappointed, I suppose, that the Government had not really
made the most of the goodwill and thinking that was out there,
both in this country and, it must be said, abroad as well. I think
we would like to urge the Government to slow down now and not
to try and rush ahead with a quick piece of legislation based
on the Green Paper, but actually take time and consider the structure
of principles that should underpin the new legislation.
(Professor Bingley) I want to add an addendum, which
is that I think it is extremely important for any future mental
health legislation to be, to some extent, owned by the people
who are going to be asked to implement it. I think there is an
enormous amount of interest in the future mental health legislation
in the mental health community. I think it would be a mistake
to lose out on that and not to utilise that in terms of future
implementation by making the process too quick.
220. Can I ask a philosophical question at the
start of some detailed questions on possible legislation? I am
sure that you will accept that our framework of mental health,
throughout its history, has reflected the social beliefs of any
particular period, and I was very struck, when I worked in social
services some years ago, at the number of women that I met who
were incarcerated for life as moral defectives on the basis of
the thinking at that particular time. We have a situation now
where there is the concern that we explored last week over the
number of young black men who end up in the system, under section
or in detention. I wonder if you could set out your views as to
what values you believe the legislation that we are looking at
should reflect and whether the values that we have now will necessarily
be values that will be relevant operating in 10 or 20 years' time,
because clearly the framework that we have now stems primarily
from 1959 and the thinking of the fifties? I am not sure I have
made myself clear, but I think you have understood what I am getting
at.
(Professor Richardson) Perhaps I could say something
about the principles that we feel should underpin and then, perhaps,
William can talk specifically about them.
221. I understand the principles. I am more
concerned with the prevailing values that lead us. We are talking
about the definition of mental disorder. We do not seek to ask
you to define mental disorder, but if we are talking about mental
disorder we must have some concept of mental order. It is more
that that I am concerned about than the principles that we understand
from your proposal and will be discussing in a moment or two.
(Professor Richardson) I hope I can answer your question.
I think what we are particularly concerned about is the value
that seems to underpin the Green Paper, which is predominantly
one of avoidance of risk, public safety and the danger that is
perceived to arise from mental disorder. While we appreciate that
there are very sad, very tragic episodes that I think we are all
aware of, I think we fear that this perception of a link invariably,
if you like more commonly, between mental disorder and threat
to public safety is something that has been disproportionately
emphasised in the media. And I think that we really fear that
the Green Paper has almost accepted that without question. I certainly
feel that there is an obligation on the Government to seek to
set the record straight and not to accept that statement in its
rather crude form as a link between public safety concerns and
mental disorder, but actually to seek to present the evidence,
because the evidence is there that the risk is really not as great
in statistical terms as some areas of the media would have us
believe.
222. You feel that we are in danger of being
steamrolled into an agenda determined by Sun headlines
and media splashes of individual cases where something has gone
wrong? That is to sum-up broadly what you are saying.
(Professor Richardson) I think there is an element
of that.
(Professor Bingley) I agree with that. I do not think
one can ignore public safety. It has always been a legitimate
concern in all mental health legislation. When you are talking
essentially about therapeutic coercion, which I suppose is what
lies at the centre of mental health legislation, I think it is
a question of balance, and I agree with Professor Richardson that
in future mental health legislation one of the great challenges
is to get that balance right. It seems to me, at the end of the
day, what we are talking about is a legislative framework surrounding
what should be in essence a therapeutic enterprise. It should
be essentially a Health Bill. That does not mean that you can
ignore public safety, and great moral arguments have been had
about the role of the mental health law in protecting other people.
I would have thought that it is generally accepted that in certain
circumstances that is a legitimate activity of mental health legislation,
but it is a question of getting it right and making the predominant
core value of any future legislation about health, about adding
benefit to people's health, and that essentially it is a therapeutic
exercise.
223. I know that Peter wanted to come in to
press you on the point you made a moment or two ago about what
the climate will be in 20 years' time, but I think in your evidence
you talk about the 1959 Act reflecting medical paternalism and
the medical model of how one deals with mental health issues.
What I am concerned about is to anticipate what model we will
be reflecting in this new framework of legislation. Have we moved
away from that medical model? I am not quite clear.
(Professor Bingley) I do not think we have. I think
if you were summing-up the principal social product, if they are
the right words, of the 1959 Mental Health Act, which was an extraordinarily
enlightened bit of legislation and probably the seminal piece
of the mental health legislation of the last century—
224. It was a Conservative Government, which
was even more remarkable. (Professor Bingley) I guess the
principal social product was the delivery of medical treatment
for mental disorder with the minimum of legal impediment. In the
years that have gone by, the medical model, I suspect, still remains
the most powerful model available to those who work in the field,
but in a sense I think we take a wider view, we have a wider view
about health, we have a wider view about mental health and of
which medical treatment is important but just one particular component.
If you go and ask service users what it is that they want from
mental health services, number one is housing and number two is
income, and all of those things. In that sense I think the values
and the essence of what mental health care is has got much, much
broader. It seems to me, in terms of looking at what the role
of the law can be in contributing to the achievement of those
objectives, it has to be wider than merely the very important
role, which is setting out when you can use compulsion and what
sort of safeguards you should provide. That is why in the expert
report we talked about entitlements, we talked about principles
and all of those sort of issues. In terms of what model we will
have in 20 years' time, I am not sure whether I can see that far
ahead.
Dr Brand
225. I want to ask the same question in a slightly
different way. The 1983 Act was predominantly about the treatment
of ill people. The Green Paper is predominantly about the protection
of society. I have some concern that we are going from a medical
model into a Home Office model, if we start talking about diagnosis
and competence and those sort of things later on. Is that a concern
that you have?
(Professor Bingley) Yes, it certainly is. I think
that you can ask the law in this general area to do probably three
things. First of all, provide a basis for the provision of services,
and maybe a bit of an entitlement. Secondly, I think you can ask
it to set out when you can use compulsion and the sort of safeguards,
and in essence I suppose what the 1983 Act did was preserve more
or less intact the sort of paternalism of the 1959 Act but add
some important additional safeguards, mostly by way of forms of
independent audit of the decisions of professionals. Thirdly,
I think you can ask the law to protect or enhance the civil social
status of those who are described as mentally disordered. If you
are looking at the overall mental health legislation, I think
you would want to see that there is the right balance between
all three of those. I think to an extent that is what we tried
to achieve in the expert group report. At the end of the day I
think it has to essentially be a therapeutic enterprise.
226. Rather than a community safety one?
(Professor Bingley) Rather than, primarily, a community
safety enterprise, because I think if you go down that line you
get into real problems and real trouble. Amongst other things
I suspect that actually those who are being asked to work the
system will find it extremely difficult and not exactly what they
came into the service to do. That is not to say that they are
naive about public safety. That is a legitimate concern.
227. Clearly it depends on who we ask to work
the system. If we ask the police to work the system you are going
to have a different approach from social services.
(Professor Bingley) I agree.
Mr Austin
228. Can I raise a question from the individual
respect? You said in your evidence that there will be no reference
to a requirement that the mental disordered might benefit from
treatment under compulsion. Would you like to expand on that?
(Professor Richardson) We expressed in our evidence
concern that the Green Paper has no link. We certainly put a lot
of significance, as William has suggested, on this notion of what
is currently known as treatability. But I think I would really
prefer to see it in terms of health benefit, because I think there
is a danger with the notion of treatability that we tend to see
it in terms of medication, whereas I think health benefit is something
broader and perhaps encompasses other forms of health intervention
beyond just drug therapy. I do regard it, and the respondents
who replied to our two consultation exercises almost universally
regarded it, as a crucial principle within the health statute.
If you are compelling somebody to accept a care and treatment
plan, there must be, at the bottom of that care and treatment
plan, a health benefit for the disordered individual. I think
that has to be something that is an essential element of any mental
health legislation.
Chairman
229. Can I go back to the scope of the review?
I am conscious that your remit included the compulsory compliance
with treatment issue, and obviously this all follows on from the
debates we have had over a long, long time. Many years ago we
were looking at the whole issue of compulsory treatment in the
community, and I can recall serving on a Bill in Parliament which
led to the community supervision issue, and there was a lot of
debate about what that should mean. I recall debate on the concept
of guardianship and how guardianship might be used differently
to underpin someone's ability to live in the community, yet within
some kind of supervised framework. What is your view about the
way guardianship has evolved? You talked a few moments ago, Professor
Bingley, about the earlier piece of legislation now, and guardianship
was introduced by that legislation. That has not been used in
the way that was envisaged, it has been used probably more with
learning difficulties rather than mental illness. How do you view
the operation of guardianship and whether the guardianship concept
has merits within the wider debate about compulsory treatment
in the community?
(Professor Bingley) It is clearly a very ancient concept.
You are absolutely right, I do not think guardianship has been
used in the way that may have been envisaged by those who passed
the 1959 Mental Health Act. I think that the principal reason
why it has lapsed is because the local authorities have not been
particularly interested in using it. My experience of local authorities
and guardianship is that it is used by a number of authorities
quite extensively if you have a local champion who is, as it were,
willing to press the advantages of guardianship.
230. Is it lack of knowledge? If it is not used,
is it because people do not know how to use it or where to use
it?
(Professor Bingley) I am not sure that it is lack
of knowledge actually, I think it may well be a reflection of
the sort of priorities that some local authorities give to providing
that sort frame work for the particular group of people for whom
guardianship may well be very appropriate. One of the problems
with guardianship after the 1983 Mental Health Act—I think
you are quite right that for people with learning disabilities
it was envisaged as a helpful measure and I think it can be helpful
for lots of other groups as well—was of course that the
1983 Act actually narrowed the range of people with learning disabilities
to whom guardianship could be applied, because it could only be
applied in relation to those who were abnormally aggressive or
seriously irresponsible. Its use has gone up. I cannot give you
the figures off the top of my head, and I apologise, but it has
gone up a little bit over the last 10 years, and there is a core
of approved social workers and local authorities who find it extremely
helpful. I think the point that I would make about the proposals
for the community treatment order is that when you strip all the
details away it is not stunningly different from the community
powers in the current Act, guardianship and supervised discharge,
and when you look at the proposals for the community compulsory
powers—for example, the powers that they propose to give
to those that operate them—they are really not that different
from the community powers under the current Act.
231. Just one quick point before I bring in
Stephen Hesford. You make clear in your comments that the proposals
that you have put forward have to be taken as a whole and it is
part of one big picture that slots together. You clearly are concerned
that the Government have extracted certain elements of it and
not the whole. Do you not feel that it is perhaps inevitable that
any government will do that? What were your fears about the way
in which the Government was prepared to look at part of what you
are saying, but not the big picture?
(Professor Richardson) I think we would have been
unusually naive had we assumed that all of our proposals would
have been accepted as a whole. Perhaps this is something that
we will come on to discuss, but I think what we are really troubled
by is that the underpinning principles and values that run through
our Blue Report are really not taken up at all or aired in the
Green Paper, and that the structural recommendations that we made
have been accepted, but they have been set in a context of a very
different emphasis and value structure. I think that is what worries
us, not so much that they did not accept everything we said, but
they did not actually offer a programme for discussing what we
had said.
232. So the separation of the principles is
a matter of concern from your point of view?
(Professor Richardson) Yes. I think it is the absence
of a thorough discussion of the principles that troubles us.
Chairman: I know that Steve may want to explore
that area.
Mr Hesford
233. It is the question of principle that I
want to deal with. One of the areas I was going to ask about is
the question of safety and the collision between the apparent
safety and the principles that you set out, and how the Green
Paper has taken shape. I think you have dealt with that. If you
have any more comments about the collision of the question of
safety and principles I would welcome that, but you seem to have
touched upon that already.
(Professor Richardson) Yes. I suppose I would quite
like to explain our fundamental approach, which is based on non-discrimination
on the grounds of mental disorder leading, as it must, inevitably,
to the principle of patient autonomy (because patient autonomy
is respected in the case of health care for physical disorder)
and if we are not going to discriminate we should respect it in
the case of mental disorder as well, leading into an emphasis
on the capacity of the patient. So the patient with mental disorder
who retains the ability to make the choice—treatment or
no treatment—if one is going to be truly non-discriminatory
should be allowed to make that choice. We appreciate in our document
that one cannot be totally non-discriminatory and one has to appreciate
that people with a mental disorder may retain the capacity to
reject treatment, but may present a very substantial risk of severe
harm to others and possibly to themselves, and that legislation
should provide for compulsion in those cases. I think that we
were satisfied that by emphasising, as we did, patient autonomy
and the inevitable concept of capacity that flows from it, we
had taken account of the need to provide for social protection.
But what we were very keen to ensure was that that was transparent,
and that in any individual case the care team, or the tribunal
would actually be explaining to the patient, "This is what
we fear. This is the level of our fear. This is why we feel justified
in forcing you to accept treatment that you with full capacity
are refusing." So it was a question of making it transparent
to everybody the basis on which compulsory powers were being sought.
Chairman
234. Can I just press you specifically in this
area. I was interested in your evidence. You say people with a
physical disorder may refuse medical treatment, whatever the consequences
are, provided they are capable of making that choice. Your essential
argument is that mental health legislation is discriminatory—and
I raised this with witnesses last week or the week before—because
my understanding is that there are certain circumstances where
a similar situation applies to people with physical illness in
law as it stands at the present time. It may be my lack of recent
practical experience but certainly in my time in social services
looking at the operation of the National Assistance Act, Section
47 removals, I would have thought that that in a sense undermines
your argument. I do not know if you have examined the parallels,
the crossover between those two areas but certainly in my experience
I have seen Section 47 used even when people say maybe mental
health legislation should have been used in those circumstance.
I am concerned to understand where you are coming from on this
discrimination question because the evidence of the National Assistance
Act raises questions with me about whether you have got that right.
You probably have got it right and I probably have got it wrong.
(Professor Richardson) Perhaps I could leave the National
Assistance Act to William but I would be very surprised if anybody
denied that the fundamental principle under physical health is
patient autonomy and that we can refuse a blood transfusion—
235. I am not denying it. What I am saying is
the legal framework is not quite as you portray it.
(Professor Richardson) But I think it is very much
based on that and the exception has to be made out and even under
the infectious diseases legislation my understanding of that is
that there is power to hospitalise and if you like isolate but
not necessarily to treat.
236. Treatment is an interesting area which
we will explore later. I was concerned that I understood fully
why you were making this very strong argument that in your opinion
there is discrimination in law that we should address.
(Professor Bingley) My knowledge of Section 47 is
not great but I think it is basically a social protection removal
power used primarily in relation to elderly people who living
in insanitary or dangerous conditions and it is to remove them
from those conditions. I know that we can have a debate about
what "treatment" means but I do not think it is a treatment
authorising measure so I do not think it undermines the basic
set of principles that we were setting out in the export report
about the difference between treatment for physical disorders
and treatment for mental disorders and the basis upon which they
can be given in the absence of consent.
Chairman: I am conscious that we have a lawyer
here so I will pass it back to our lawyer.
Mr Hesford
237. Damned by faint praise! Thank you, David.
Is there a difference between safety of the individual in terms
of themselves and safety of the public for the purposes of this
discussion?
(Professor Richardson) Yes, I think there is, partly
because it was a distinction that came out of a lot of the responses
we received. Perhaps I should explain that we had an initial consultation
process. We produced a draft document which indicated our thinking
in very general terms on the basis of non-discrimination.
238. Was that the blue copy?
(Professor Richardson) It did not have a proper cover.
239. You chose to say blue cover.
(Professor Richardson) No, it was an April draft document,
a precursor to the blue.
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