Examination of witnesses (Questions 300
- 319)
THURSDAY 6 APRIL 2000
PROFESSOR GENEVRA
RICHARDSON and PROFESSOR
WILLIAM BINGLEY
Chairman
300. What would you say would be the necessary
training for a user? My experience is users are better trained
than most of the professionals or many professionals.
(Professor Richardson) I think what we would be suggesting
is the same generic training for all members of tribunals, whether
they be the lawyer or the other wingers, if you like. They all
must have the same levels of training. I think one of the problems
with the lay member at the moment has been that they have not
felt sufficiently trained and empowered to enter the debate at
the same level as the president who is a lawyer, at the moment,
and the medical member. It has been very difficult to find ways
of enabling that non clinical expertise to be reflected in the
deliberations of the tribunal.
301. The problem, as a lay person with lawyers
and doctors surrounding me, is it is very difficult.
(Professor Richardson) Yes.
Mr Austin
302. Social workers can sit on it as well so
there is a job for all of us.
(Professor Bingley) Can I just add two other points
on the tribunal in the Green Paper. There seems to be an implication
in the Green Paper that the composition of tribunals might be
slightly different in relation to what they are listening to.
As it were, the proposal to put somebody under compulsion where
there does not appear to be an objection will be dealt with by
a single member and you would not always necessarily have to have
an oral hearing—I am talking about what happens at the 28
day stage—and I think that would be fundamentally wrong.
Whatever decision is made as to its composition, I think the tribunal
should be constituted the same for all the orders it makes and
there should be the opportunity, also, for an oral hearing. There
seems to be an implication in the Green Paper that may not always
be the case. I think that would be a little inconsistent.
303. You have mentioned resources, everything
has resource implications, will there be enough doctors, lawyers,
clerks and others willing to take on the tribunal work to make
what you are proposing feasible?
(Professor Richardson) That is obviously a crucial
question. I return to the point that I doubt very much there would
be if you run with the Green Paper's preferred criteria. If we
assume that under the preferred criteria you will have a large
expansion in the use of compulsory powers then you will have an
awful lot of tribunals to man. If you do try to restrict the use
of compulsion, which I think the Department of Health wants to
do, then it does become feasible, particularly if you have a framework
that appears to promote wherever possible consensual care. So
the great hope would be that by the time you get to day 28 a very
large proportion of people will have moved into an informal status,
will have agreed a care programme and—referring back to
William's notion of striking a deal—a deal will have been
struck and a programme will be up and running that is informal
and does not require compulsory powers. So placing the tribunal
at day 28 is partly done in the informed hope, if you like, that
a very large number of initial applications for compulsion will
have been converted into consensual care programmes by that point.
304. Can I raise a final resource implication.
Obviously Compulsory Treatment Orders will require highly skilled,
well trained teams, particularly to work with patients in the
community. Do you consider that the present staffing levels and
training are sufficient to implement those proposals?
(Professor Richardson) I can only give you a guess.
I could not give you informed evidence on that. Everybody tells
me they are not but that is hearsay.
Mr Austin: Professor Bingley?
Mr Burns
305. Sorry, can I just ask, do you not have
an opinion from your own professional experience?
(Professor Richardson) My own professional experience,
no I do not really. I was a Mental Health Act Commissioner for
a period of years and I was very well aware at that stage of the
lack of mental health personnel but I am not really the person
to give you definitive evidence on levels of service provision.
What we said in our blue report was that we had not yet seen the
National Service Framework, nor had we seen people's reaction
to the National Service Framework and we felt that not having
seen it, nor people's reaction to it, we could not recommend the
forcible application of medication in any unit other than a hospital
unit because we had reservations about staffing levels. That is
in our blue report. I really do not think I can go further than
that.
(Professor Bingley) From my own previous experience
I can only comment about in-patient care, basically because that
is the focus of the Mental Health Act Commission. Certainly I
cannot comment in terms of whether you need additional resources
or you redirect current ones. I think it would be fair to say
that too often, the sort of circumstances that seriously ill people
who had been admitted, for example, to acute psychiatric wards
found themselves in, was really unacceptable. That is not getting
at the people who work there, but clearly there are quite a number
of services that too often are basically unsafe. I think that
is the challenge we face, certainly in relation to acute in-patient
care. That seems to lead to, yes, more resources in some way or
another but also adequate training. I am quite sure that if we
are going to have a substantial increase in community compulsion,
and again I think it is quite important to emphasise, however,
in relation to proposals that they are not stunningly different
in terms of powers and the current community powers, but if they
are going to increase, yes I think it is only fair, not only for
service users but also for staff that they actually do get a lot
of training in relation to how to work with that particular group
of people.
Mr Austin
306. Therefore, would you share my view or the
suggestion that any Compulsory Treatment Order in the community
should be contingent upon those adequate staffing resources being
available?
(Professor Richardson) I think that is implicit in
our notion of reciprocity certainly.
Mrs Gordon
307. Just on this point, sitting here listening,
I just wonder whether all the effort and all the time that has
been spent on this, is actually going to achieve very much? Perhaps
if I could put the scenario to you: I am worried about the damage
it could do to the relationships between health professionals
and patients and that people feeling that they can access the
services are deterring people from seeking to help? In the Green
Paper one of the issues in bold is "....our proposals for
a new Mental Health Act are designed to provide greater flexibility
by breaking the automatic link between compulsory care and treatment
and the detention in hospital". You have just said that you
feel that actually the hospital, if you are going to use compulsory
treatment, that is the place at the moment, given the lack of
resources to do that. We are just accepting that people will go
along with being treated on a compulsory basis. What happens if
it is decided that somebody should receive compulsory medication
and drugs but they are still refusing that treatment? Will it
not be the same situation now as sectioning where, okay, the health
professionals are in charge of this compulsory treatment system
but if they cannot treat that person, if they are refusing compulsory
treatment on an immediate level, then I can see the scenario where
you are going to have to call in the police and they will have
to be taken to a clinic, hospital or whatever. Is all this progress
or is it all going to be the same as we have got now with sectioning
ultimately?
(Professor Bingley) Certainly it is true to say that
at the end of the day in relation to community powers I suspect
there are a group of people with mental health problems who will
always tell the mental health services to push off, "if you
get anywhere near me I am going to push off myself". It seems
to me that community powers will be of no assistance in relation
to that group at all. Some would argue, I think, that there is
another group of people where the existence of some sort of legal
framework for the administration of treatment in the community
makes a contribution to doing a deal with them. It is bluff and
I understand all the moral problems about it but it makes a contribution
to coming to some sort of arrangement, for example, that enables
them, as seen by the professionals, to stay in the community rather
than go in for what I think professionals sometimes would see
as a greater deprivation of liberty which is a repeated cycle
of being admitted to hospital compulsorily, maybe in the sort
of circumstances you are talking about, coming out again and then
going back again. I think some people would argue—and I
can see that argument—and that is an advantage for Community
Treatment Orders. At the end of the day, however, it seems to
me that in terms of the sanctions, if we can put it that way,
in relation to people who do not comply with some of the conditions,
the only sanction can be exactly as you say, which is compulsory
admission to hospital. Therefore, I think a lot of people would
say "Well that is what happens now, so what is the contribution
that the community power is going to make?".
308. All that is against this in the Green Paper
is a small minority. I do not know the numbers we are talking
about but it is a very small minority.
(Professor Bingley) Yes. I think that is an argument
for, amongst other things, being worried about the breadth of
the admission criteria to compulsion. If it is a very small minority
in the sense we are talking about, we must be able to define them
rather more precisely in terms of the criteria.
Chairman
309. I know that Peter wants to explore treatment,
and one or two of my colleagues want to look at other areas, but
before we get on to treatment, in a sense can I show my own ignorance
and ask you if the system that we have had over many years of
the application and the recommendation in setting out the use
of compulsory powers remains, in your view, an appropriate system,
the separation of the applicant and the clinician?
(Professor Bingley) Yes.
(Professor Richardson) Yes.
310. I am right.
(Professor Bingley) Very much so.
311. It is still there in respect of your report
and it is still there in the Green Paper.
(Professor Bingley) It is, yes.
312. Having established that, I thought that
was the case, what I want to ask you, going back to Professor
Bingley's earlier comments about when so many people present themselves
to mental health services or find themselves being addressed by
the mental health services they have wider social problems which
need to be looked at in the context of their particular behaviour
that is causing concern about their mental state, are you satisfied
that the application procedure takes those issues sufficiently
into account or should we be more explicit in the application
procedure about that kind of wider social issue that would relate
to the individual person's behaviour?
(Professor Bingley) In a sense that problem can be
addressed by other than what you are going to get delivered under
a compulsory care system.
313. Exactly.
(Professor Bingley) I think it is quite difficult
to know quite how you would incorporate that certainly into the
criteria.
314. Yes.
(Professor Bingley) I think what you can do, and I
guess that was implicit in the invention of the Approved Social
Worker in the 1983 Mental Health Act. It seems to me to have been
an attempt, and in some ways I think probably a very successful
one, to equal up the sort of professional power relationship between
the doctor, who in many ways has the most powerful model available.
This is not to say that doctors do not take broader views because
that would be wrong too. But certainly the applicant has, amongst
other things, very specifically an obligation, not actually spelt
out in the Act, to look for alternatives and maybe less restrictive
alternatives than the use of compulsion. I guess that was one
of the intentions of the creation of the Approved Social Worker
and I think, amongst other things, why it is so important to keep
the applicant and the providers of the recommendation separate
in relation to that sort of process. Whether that is sufficient
in relation to ensuring that other things have been thought about
may be something that legislatores need to think about.
315. Let me put to you that the Approved Social
Worker followed on from the Mental Health Act concept.
(Professor Bingley) Yes.
316. My experience of operating that system,
when I was operating under the old 1959 Act system, was that when
there were certain changes from health departments and social
services became generic in 1971 we had an increasing number of
social workers who actually were prepared to say to doctors "I
am sorry, I am not prepared to sign the application. I believe
there are other issues which need to be addressed here".
I can think of one case I was dealing with where I had some conflict
with a consultant psychiatrist and a GP because I would not sign
an application because I felt there were so many issues of the
kind you talked about earlier on in this session. What I am wondering
is, bearing in mind this is a very important issue as it relates
particularly to the number of black people who get into a system,
a range of other individuals where elements of social control
might be thrown in, ought we not to be looking at making that
check much stronger in some ways so the applicant's role can be
strengthened so that we are in a position to challenge the assumption
that the only way of dealing with an individual's behavioral difficulties
is to stick them in some form of treatment environment when anyone
can see that in their own social background there are a range
of issues which need to be addressed before one gets down to that
process of compulsion?
(Professor Bingley) The extent to which the law can
address that is difficult to define. In one sense the applicant
has ultimate power and can decide not to make the applications,
so I suspect what you are getting at is actually empowering the
applicant by way of training or whatever to increase the contribution
that they make before a final decision is made about whether an
application should be made.
317. What I am actually saying is, should it
not be more explicit on the piece of paper which is signed that
these wider issues have been addressed?
(Professor Richardson) That refers in a way back to
the points which were being made here.
318. It does indeed.
(Professor Richardson) The entry criteria could be
more explicit.
Chairman: Yes. Okay. Thank you.
Dr Brand
319. The Green Paper suggests that details of
treatment should be a matter for the clinical care team. You are
suggesting it should be the tribunal or, in cases of real doubt,
the Family Division of the High Court. To be able to do that,
do we need to define treatment more specifically and would you
isolate particular forms of treatment as needing special care
and attention before they are approved for use against someone's
will—thinking about depot injections, ECT, for instance?
(Professor Richardson) Can I take that in two stages?
First is whether you have a general definition of treatment in
the Act and we recommended that you do not and the Green Paper
has accepted that recommendation. I think we felt that any definition
that you contain within the Act would be so broad as to be almost
meaningless, rather like the definition we have in the 1983 Act
at the moment. So we try to deal with limiting in practice the
notion of treatment for mental disorder by requiring the proposed
care plan to specify in broad terms treatment and by this notion
of best interests. Your reference to the Family Division I think
was a recommendation we made particularly with regard to the difficulty
that has occurred recently in determining whether a particular
treatment is treatment for mental disorder or not—Caesarian
section or force feeding. We felt again it is very difficult to
produce an exclusionary definition in the Act and any difficulties
in any particular case that might arise should be referred first
to the tribunal, and that the tribunal should have a ready means
of declaration from the Family Division to determine that issue.
So that is really why we did not feel it would be helpful to define
treatment in the Act itself. We were very careful in our Blue
Report to recommend that any equivalent of current section 63
be removed. I think, reading the Green Paper, that the Government
has accepted that recommendation. As to the special safeguards
that should be attaching to individual forms of treatment, William
might want to say something about that.
(Professor Bingley) We took the view there should
be a general scheme but in addition entrenched safeguards in relation
to particular prescribed treatments—as you know, ECT is
clearly highly controversial—and also various forms of medication.
In relation to the medication, I think what we said was that for
various forms or types of medication—polypharmacy, depot,
which has been rejected in the Green Paper—the Secretary
of State should draw up regulation by way of statutory instrument.
We indicated the grounds the Secretary of State would need to
take into account when trying to work out what special safeguards
were thought appropriate, in particular, patient safety and duration
of impact of the proposed treatment. It seems to me that reflects
a particular concern fed back to us by a number of respondents,
in relation in particular to polypharmacy; a range of drugs being
given at the same time. That was a concern, along with high dosage,
et cetera, et cetera, which I think was fed back to us very powerfully
by a number of users, particularly user groups, but I realise
it is a concern which is shared by the medical profession as well.
The controversial one is clearly depot medication where I think
the Green Paper mentions that having special safeguards in relation
to that is unacceptable. There is an argument to be had about
that. What we were responding to was powerful statements made
by user groups in particular as to in a sense the price that depots
asked of people. One can see the advantages of it in terms of
community care treatment but the price that some users actually
have to pay is in terms of the adverse impact it can have upon
them.
(Professor Richardson) In the context of depots it
is worth pointing out a difference in our recommendations and
the Green Paper's recommendations. On the criteria we recommended
the requirement for the proposed treatment be "the least
restrictive and least invasive"; the Green Paper has dropped
"least invasive". Least invasive was really in in order
to require the tribunal to consider whether the requirement that
someone accepted a depot in the community is in fact more invasive
of their liberty than oral medication in a hospital unit.
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