Examination of witnesses (Questions 280
- 299)
THURSDAY 6 APRIL 2000
PROFESSOR GENEVRA
RICHARDSON and PROFESSOR
WILLIAM BINGLEY
Chairman
280. Could I ask in practical terms, it is not
just a matter of how we frame the law, how we apply the law, it
is who we think should be involved and engaged in dealing with
people who come through the services. I mentioned some time ago
the issue of moral defectives, women who would enter the system
who were diagnosed primarily by men, in fact I would say almost
entirely by men, on the basis of a male perception of what was
appropriate female behaviour. Is that not an issue now with black
and ethnic minority patients?
(Professor Bingley) I think it can be. There is a
great debate—I cannot say I am an expert—as to whether
you have separate services for particular groups or you have mainstream
services which are much better able to meet the diverse needs
of the population they serve. I go for the latter, that must be
the model. In my anecdotal experience I have come across cases
where a young black person is picked up by the police in a public
place shouting—we heard about an example of this on Monday
night—and you might think what should happen is you just
go and say "could you stop shouting", but very easily,
maybe because of certain perceptions, they get hauled in, they
get stuck into the mental health system and in a few cases they
end up in high secure care where it is very unclear quite why
they got there in the first place. One can see an argument that
at certain stages down that route it would be extremely nice if
you had a service, or access to a service, that in a sense was
part owned, and I mean that in the broad sense, by the community
from which that person came. I am not a separate service advocate
myself, all of this seems to be entirely in line with Government
policy in terms of government for diverse groups. We are not talking
about the standard citizen, we are talking about diverse groups.
It has got to be addressed at that level, that is absolutely right,
as well as the sort of contribution that the law can make.
Mr Austin
281. I want to say something for the benefit
of the Committee rather than as a question. Thinking of your example
of a young black man shouting in the street, I think it would
serve the Committee well to look at the case of my constituent,
Kenneth Severin, who eventually died in prison. I think there
is a good pattern there of how the system failed along the line
at every step of the way. There has been an Ombudsman's report
on that as well. I do not want to come on to the criminal justice
system because I know my colleague wants to come on to that later,
but do you think that the proposals in the Green Paper merely
may provide for many young black people's detention by another
course?
(Professor Bingley) In the mental health system?
282. In the mental health service instead of
in the prison service.
(Professor Bingley) It is very difficult to predict,
but clearly that must be a danger in terms of if you have a broad
criteria then I guess that could be a potential problem. I find
it very difficult to predict.
(Professor Richardson) I think it was something William
mentioned, that in our report we did introduce the notion of objective
evidence at the entry for compulsory assessment stage. The Green
Paper does not address that because it does not, in fact, describe
its criteria for compulsory assessment, so I am not quite sure
what the Department's thinking is on that. It was very much our
view that our notion of objective evidence was meant to address
this very problem. Going back to the morally defective woman,
behaviour which is not thought to represent the proper behaviour
of a female would not be objective evidence. We are not parliamentary
drafts people so we did not assume that wording would go in but
we did try to explain that was what we were after, some requirement
at that assessment point of objective evidence of disorder beyond
shouting or being pregnant or whatever it may be.
283. Can I just follow on Professor Bingley's
comment about appropriateness of services and whether they are
specialised services or part of the mainstream. Talking in terms
of ethnic minorities, it does seem to me that there is an enormous
amount of evidence which does show a difference in treatment of
black people presenting before the psychiatric services. They
are more likely to have physical treatments than non-physical
treatments, more likely to be medicated, a whole range of issues
where there are clear differences. They are much less likely to
be offered counselling services, for example, and yet there does
not appear to be the provision of appropriate counselling services
within the mental health services. We have been struggling to
find examples of good alternative provision as well. Do you not
think that given the absence of appropriate services within the
statutory services it may be necessary for them to be provided
outside as a means of bringing about change within the NHS provision?
(Professor Bingley) I was talking in terms of desirable
long-term principles and objectives and on the whole we should
have services that can provide help for everybody. I can quite
see that in terms of developing along the way, and there is a
whole tradition I guess of innovative services that have been
provided by organisations outside the mainstream services, there
is a big role to play. Certainly I hope that would be provided
in partnership with mainstream services so that mainstream services
can learn from that. There coalite a plurality of services, that
is absolutely right, but I think it should be a partnership. I
would worry if we had completely separate service systems for
particular groups of people.
Mr Burns
284. Can I ask you about another aspect of your
report where you envisage that the majority of patients who will
be affected by the capacity criterion will be those suffering
from personality disorder. I was wondering what evidence you have
had to come to this conclusion?
(Professor Richardson) I suppose we took it from the
responses we received mainly from psychiatry that people with
acute mental illness were likely at the point of acute illness
to have lost capacity. For those who may be severely personality
disordered, they might very well retain capacity, not invariably,
and we have seen that recently in the Brady case, not invariably
will they retain capacity but a higher proportion of severely
disordered people with personality disorder are more likely to
retain capacity than severely disordered people with mental illness.
285. If the risk-based model in the Green Paper
were to be used for the new legislation, do you still think that,
on the whole, mentally ill patients would be likely to have lost
capacity before compulsory treatment became an issue?
(Professor Richardson) I am not quite sure how to
answer that. I am not quite sure what you are asking.
(Professor Bingley) Are you asking would the same
group of mentally ill people actually be detained under legislation,
that is based upon mental disorder plus risk, as would be detained
under legislation based upon mental disorder, incapacity and risk
to self or others?
286. Yes.
(Professor Bingley) In relation to the mentally ill
group I would think possibly, yes.
(Professor Richardson) The research that is beginning
to emerge suggests that if you adopt a capacity requirement at
entry then people with mental illness on whom compulsion is currently
imposed would by and large not retain capacity. There is more
research going on on precisely that question in Cambridge at the
moment and it would be very interesting to see the results that
emerge from that.
287. The other thing is you bring the notion
of best interests into the criteria for compulsory treatment and
you have highlighted two different ways of determining them: one
which gives priority to the professional opinion of the care team,
and the other which gives priority to the presumed wishes of the
patient, if they are ascertainable. As you know, in the Green
Paper the Government is suggesting that it prefers the professional
approach to deciding best interests and states that "the
very fact that compulsory care and treatment is called for may
imply that the clinical team is not acting in accordance with
what the patient considers to be his or her best interests".
Given that you stated a preference for deciding best interests
on the basis of the patient's preferences, how would you respond
to the argument of the Government in the Green Paper?
(Professor Richardson) It goes back to the notion
of autonomy. Best interests in an autonomy based system has to
be referenced primarily by the patient's perceptions of her own
best interests. There may be circumstances in which a patient
has never made or indicated a capable preference, in which case
it becomes very difficult to establish the individual patient's
perception of her own best interests, but in a large number of
cases there will be periods during which a patient is entirely
competent to make choices and to predict how she would wish to
be treated should relapse occur. I think what we are interested
to introduce is a notion of the clinical team trying to determine
what the patient would regard as in her best interest with the
assistance of an advanced agreement.
288. Right.
(Professor Richardson) I think it becomes very difficult
to establish a patient based notion of best interests in the absence
of advanced agreement. I would just add that again we are not
doing fresh thinking here, this is an approach that the Law Commission
has endorsed, a patient based notion of best interests, in their
incapacity recommendations. So, I think where you have the ability
to impose compulsory powers in the face of objection by the patient,
then some understanding of the patient's own view of their best
interest is essential. I think it is particularly essential if
you remove any treatability requirement which the Government has
done. I think to have a clinically based notion of best interest
and no treatability requirement, the combination is quite disturbing.
Chairman
289. Very quickly on this area, may I come back
to an area we have touched on. In your evidence you have indicated
that compulsion should be permitted only if there is a health
intervention of likely efficacy available. What should be done,
in your view, if there is a situation where there does not appear
to be some form of health intervention, as we understand it, of
relevance but where the individual concerned is still deemed to
be a serious risk either to himself or to other people? In a sense,
this is the therapeutic containment issue.
(Professor Richardson) How would we deal with it?
290. Yes?
(Professor Richardson) This is going back to William's
first principles really that we are dealing with the Health Statute.
291. Yes.
(Professor Richardson) I think if that person, who
is apparently dangerous, is suffering from a mental disorder,
and we can offer them a health intervention, then absolutely compulsory
powers should be available with the necessary safeguards. If the
person who is predicted as dangerous is not suffering from a mental
disorder which is susceptible to some kind of health intervention,
then I find it very hard to justify their detention, because that
is effectively all it would be, or control under a Health Statute.
292. Is not your difference with the Government
really going to be about what is a health intervention? I have
every sympathy with those psychiatrists who were concerned when
the Home Secretary appeared to be saying that they should effectively
misuse the Mental Health Act, that was the way some people interpreted
it, the treatment order should be used where psychiatrists did
not feel able to offer treatment. Maybe I have misunderstood what
the Home Secretary was saying, that was certainly what the Royal
College felt he was saying. This is a very important area. From
the evidence we had from the Department of Health two weeks ago,
I got the impression that there was a lot of debate going on about
what we define as treatment in a very wide ranging way, which
may be a positive thing or it may be a less than positive thing.
(Professor Richardson) I think it is quite difficult
to discuss this unless we appreciate that there are these two
initiatives going on, hand in hand, or not hand in hand but at
the same time, the DSPD initiative, which is quite independent
of what we are doing and our thinking on reforming the mental
health legislation. I think when we produced our final report
we did not know the nature of the consultation that was going
to be issued four days later, in fact, on DSPD. So we were not
able to actually relate our thinking to the Home Office/DoH thinking
on DSPD. Within the context of our Health Statute we felt that
a health benefit was essential, particularly if you were going
to override the competent wishes of an individual and override
them on the grounds of the necessity to prevent serious harm to
others, then a health benefit was absolutely essential in the
Health Statute. Now we can argue a lot about what we mean by health
benefit, and I think it would be a very useful argument to have.
Again, it is one of the things which has almost been ducked by
the Green Paper because it excludes a treatability or health benefit
notion and sees it all, as I understand it, as resting on the
tribunal when it confirms the care and treatment plan. But I am
not sure I am satisfied that is enough when you are talking about
legislation. I think it has to be present in the entry and exit
criteria themselves.
(Professor Bingley) I suppose the borderline is what
more beyond containment is required in order to start talking
about what is a legitimate health benefit. I guess that is where
one of the borderlines is. I agree with Genevra that is a debate
we need to have, I think.
Mr Austin
293. Earlier on, Professor Richardson, you said
the structure was set in a different context from the one you
had envisaged. Obviously structures do need to relate to the context.
Can I raise one or two issues about structures which are contained
in the Green Paper. The Green Paper, for example, queries the
value of the seven day review by an independent person as essentially
a paper exercise which would not influence necessarily either
the extent or the use of compulsory powers or the quality of care.
Are you convinced by that argument?
(Professor Richardson) No. We spent a lot of time
trying to make up our minds about the seven day stage. In our
consultation document that went out in April, the pre-blue period
document, we had placed our tribunal hearing at the seven day
point. Now the responses we got back on that from users, carers,
practitioners all said that is not going to work, nobody will
be ready to have a full sensible hearing at that point. We accepted
that as valid criticism and we pushed back our main oral hearing
before the independent tribunal to day 28 but we were still very
keen to ensure that very serious assessment and planning could
take place right from the word go, once the compulsory assessment
powers have been taken. We want to ensure that within that seven
day period a lot has been achieved. We devised a system that required
the clinical team, if it wanted to continue compulsion beyond
seven days, to have an interim care plan ready and to require
the approval of that interim care plan by somebody independent
of the detaining authority. It is not just a paper exercise in
the sense that the patient cannot continue to be subject to compulsion
unless the care team has actually compiled the care plan and had
it approved by the independent reviewer. Now, I appreciate it
is a paper exercise, in one sense, and in fact I think we envisage
it might very well be an electronic exercise in a number of instances
so that this could be done electronically, the forms and the necessary
evidence that certain things had been done could be—
294. A check list?
(Professor Richardson) A check list almost. The seven
day independent reviewer, if that individual felt that there was
something on the face of the information that he or she had been
given that caused concern, either about the level of disorder
or incapacity of the patient or about the proposed treatment,
then they could go to other members of the tribunal and ask for
more evidence or they could bring forward the 28 day tribunal
to have a thorough look. We felt that in the vast majority of
cases it would not require any more than merely ensuring that
these actions had been taken by the clinical team in order to
justify the further three weeks. I think we do see it as important
and I am not quite clear in the Green Paper what they would put
in its place if they remove it. Is the proposal merely that the
initial order lasts for seven days or does the initial order last
for 28 days? I am not quite clear what actually happens under
the Green Paper scheme. If they have a better way, great, I am
just not quite sure what it is.
295. That is helpful for some of the questions
that we might want to put to the Minister when he comes before
us. The clinical team might say "We are not able in a seven
day period to carry out that assessment because the pattern of
behaviour of the person is so disturbed or bizarre that we need
to stick a needle in or pop some pills or whatever to stabilise
them so we can make an assessment". I just bring that forward
as an argument that might be put forward. You have indicated that
compulsory treatment should not be provided during that seven
day period and the Government seems to have said in the Green
Paper—they have argued—that delay in treating with
anti-psychotic drugs in some cases may lead to poorer health outcomes.
How would you respond to the Government's argument?
(Professor Richardson) I am very aware of the way
they have presented that problem. I think that equally we were
aware of it because it was given to us in the responses we received.
We tried to deal with it by saying firstly, clearly emergency
treatment has to be available during the initial period or secondly,
also if this is somebody well known to services and there is an
approved care plan approved in the last six months then that care
plan can be implemented. But in your case you suggest somebody
who is clearly very disordered and you are not quite sure what
it is but you need to deal with the problem in order to enable
you to assess. Then, if you like, that is your interim care plan
and you can present it in two days, three days, you do not have
to wait for seven days.
296. There would be a possibility in your model
for emergency treatment within the seven day period?
(Professor Richardson) There is emergency treatment,
treatment that has already been approved and in your suggested
scenario I would have thought the way forward is to bring forward
the interim care plan and start treating on that.
297. You make proposals for models for tribunals,
which the Government has responded to also. What is your comment
on the Government's view of your tribunal proposals?
(Professor Richardson) First of all, I do want to
stress the point I made in response to the question about the
Government's criteria because we are very convinced by the need
to bring in independent decision making but it is only valuable
if you give it something to bite on. It is resource hungry independent
decision making. I think if you are going to use up professional
time and resources on it then it has got to be valuable and it
will only be valuable if there are some serious criteria that
it is going to apply or disapply. I think there is a link between
the value that you get from your independent tribunal and the
law that you give it to interpret and apply. So I think it is
terribly important to make sure that you are giving it a serious
job to do, that would be my first point. If you do reduce the
ease with which people can enter compulsion then you do reduce
the number of tribunals you have, so I think the more you restrict
your entry criteria, the fewer tribunals you will have. So there
is a simple resource argument for restricting entry into compulsion.
I think that is important to appreciate. As to what the tribunal
would be doing, in our recommendations we are very careful to
point out that it is not actually the tribunal that is issuing
the order, it is merely confirming the order. If you go to the
28 day point, the clinical team will have passed a care plan through
to the registered person and the acceptance of that care plan
will, if you like, be authority for the detention which then has
to be confirmed by the tribunal. So the tribunal itself will not
be the detaining authority. As to the membership model of the
tribunal, as the Green Paper suggests, we listed a number of alternative
models. What we were all clear on was that the existing model
with the medical member doing the assessment of the patient had
too many natural justice procedural ambiguities to be maintained.
We had to find a system that would supply the tribunal with sufficient
medical expertise to enable it to do the specialised job we are
asking it to do but not bring in these natural justice difficulties
and not use up too much consultant time. We suggested a number
of different models, one was the very expensive model in terms
of consultant time, which I think nobody is likely to run with,
it just would not work. At the other end, there is the single
person tribunal model which I think a lot of people have reservations
about, not least those people who have—
298. One of our witnesses had very grave reservations
about that last week. Although they are not the initiating people,
they are the confirming authority, as far as the patient is concerned,
it is still the person who authorises the treatment.
(Professor Richardson) Yes.
299. How would you reassure the witness last
week about the one person tribunal?
(Professor Richardson) I do think the one person tribunal
has problems attaching to it, particularly if you have a situation
where the one person is actually the same one person over and
over again. You have a difficulty of perceived links, perceived
independence or lack of independence becomes a problem I think.
The second model, the model of probably the legal chair: it is
quite difficult to see how the chairman would not be a lawyer
but I am open to suggestion, particularly being a lawyer I am
slightly inhibited from suggesting the chair should be a lawyer.
If we assume, for the sake of argument, there is a legal chair
and two specially trained non lawyers who would not be a consultant
psychiatrist but would be other people with experience of and
knowledge of mental health provision, now they could be GPs, they
could be social workers, and we suggested also, with the necessary
training, they could be carers or users. I think the crucial thing
is the training and I think that is absolutely essential.
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