House of Commons - Health

Select Committee on Health Fourth Report

PROVISION OF NHS MENTAL HEALTH SERVICES

LEGISLATIVE CHANGE

Review of the Mental Health Act 1983

105. When, in July 1998, the then Secretary of State for Health, Frank Dobson MP, announced a "third way" for mental health, he promised that the Mental Health Act 1983 would be subject to a "root and branch" review, with the explicit aim of breaking the current link between hospital detention and compulsory treatment.[240] The Expert Committee commissioned to undertake this work produced a report for ministers in July 1999,[241] and this report was published in November 1999 along with the Government's Green Paper, Reform of the Mental Health Act 1983: proposals for consultation.[242]

106. Before we consider the differences between the recommendations of the Expert Committee and the approach apparently favoured by the Government, we felt it was crucial to come to a conclusion as to what the whole purpose of mental health legislation should be. Professor William Bingley, a member of the Expert Committee, provided a helpful summary of the possible approaches:

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The Law Society similarly distinguished between possible roles for mental health legislation, from a "broad focus, encompassing entitlement to health care and service provision" to legislation "concerned only with powers of compulsion".[244]

107. It is clear that the shape of the future legislation will be fundamentally affected by the Government's, and ultimately Parliament's, view on the purpose of mental health legislation. We believe that it would be difficult to equate the emphasis placed in the National Service Framework on non-discrimination and combating stigma with legislation which focused solely on compulsion. The need for legislation specifically aimed at people suffering from mental disorder certainly derives at least partially from a recognition that in certain circumstances compulsion may be acceptable in a way that has always been regarded as unacceptable for those suffering from physical disorders. But it also derives from an awareness that the possibility of such compulsion brings with it reciprocal obligations: the obligation to provide services for those in mental distress so that compulsion should only ever be a last resort, and the obligation to protect the civil rights of those who have been labelled with what is still seen as a stigmatising condition.

108. The Green Paper stated that "the overall framework for new legislation described in the Committee's report has been adopted as the framework for the proposals in this consultation paper".[245] It is, however, clear from the submission made to us by the Expert Committee that they do not accept this analysis; instead they describe the Green Paper proposals as "an unfortunate hybrid".[246] Professor Genevra Richardson, who chaired the Expert Committee, expanded on this comment in her oral evidence to us, telling us 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".[247] The Law Society were rather more trenchant, arguing that the Government had "cherry-picked" the Expert Committee's recommendations and that the Green Paper's proposals were "legally unworkable and ethically unacceptable".[248] We were therefore concerned to look at the differences between the approach taken by the Green Paper and the Expert Committee, and to consider our other witnesses' views on which approaches were to be preferred.

109. The Expert Committee took as a starting point the importance of fundamental principles. The ten principles they suggested should "inform" the new legislation included values such as non-discrimination, respect for patient autonomy, and respect for diversity and equality, and service-led principles such as consensual care, reciprocity and the use of the least restrictive alternative. The emphasis on non-discrimination and respect for autonomy was discussed in their report in some detail. The Committee acknowledged that the very possibility of the use of compulsory powers of treatment implied discrimination against the person suffering from mental illness: recent case-law[249] had made it clear that competent patients are at liberty to refuse all medical treatment for physical disorder if they so wished. The Committee considered the implications of respect for autonomy as regards the extent to which it was permissible to intervene to prevent either self-harm and harm to others, and concluded that it was acceptable, in certain circumstances, to breach a patient's autonomy on public safety grounds.[250] However, they felt that there was no such consensus to be reached on the issue of self-harm where there were two unreconcilable approaches: that of respecting the competent patient's refusal of treatment, however dire the consequence; and that of refusing to allow an individual, however competent, to deteriorate beyond a certain point. The Committee concluded that the choice between these two approaches was a moral one, that should be left to politicians.[251] At various points in their report, the Committee highlighted the different choices to be made, depending on the view of self-harm taken.

110. Based on the principles outlined above, the Expert Committee proposed a new compulsory power, which could be imposed either in hospital, or on patients living in the community. It proposed a very wide definition of "mental disorder" to bring patients potentially within the remit of the new Act, but then sought to limit the use of compulsion by the use of the following criteria:

A compulsory order could be imposed if:

-  the patient has a mental disorder which is of such seriousness that the person requires care and treatment under the supervision of the specialist mental health services;

and

-  the care and treatment proposed for, and consequent upon, the mental disorder is the least restrictive and invasive alternative available consistent with safe and effective care;

and

-  the proposed care and treatment is in the patient's best interests

and either (a)

-  in the case of a patient who lacks capacity to consent to care and treatment for mental disorder, it is necessary for the health or safety of the patient or for the protection of others from serious harm or for the protection of the patient from serious exploitation that s/he be subject to such care and treatment, and that such care and treatment cannot be implemented unless s/he is compelled under this section;

or (b)

-  in the case of a patient who has capacity to consent to the proposed care and treatment for her/his mental disorder, there is a substantial risk of serious harm to the health or safety of the patient or to the safety of other persons if s/he remains untreated, and there are positive clinical measures included within the proposed care and treatment which are likely to prevent deterioration or to secure an improvement in the patient's mental condition.

(The words in italics in the last paragraph above would be deleted if one took a "pure" approach to autonomy, and only allowed intervention on public health grounds.)

111. The structure proposed by the Committee included the following stages:

112. In its Green Paper, the Government accepted the principle that compulsory care, after a defined minimum period, should be explicitly sanctioned by an independent judicial body.[252] It also accepted that the principles on which the new Act is based should be explicitly set out in the legislation. However, there were also significant differences in approach. The Green Paper suggested just four principles, including one not cited by the Committee, that "the safety of both the individual patient and the public are of key importance in determining the question of whether compulsory powers should be imposed", and argued that many of the Committee's principles, including respect for autonomy, should be in the Code of Practice, not the Act itself. On the criteria for the imposition of compulsory orders, it made clear that it was sceptical about the emphasis the Committee placed on capacity, stating:

degree

of risk

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As this quotation makes clear, the Green Paper did not make any distinction between harm to self or harm to others, when considering whether compulsion was appropriate. The Green Paper went on to propose a model for compulsory treatment without a capacity test. This was essentially the same as the Expert Committee's test for patients who lack capacity, except that it made no specific reference to "best interests" and omitted reference to "least invasive" alternative.

The principles in the legislation and the role of autonomy

113. In evidence to us, the Minister of State responsible for mental health services, John Hutton MP, emphasised the Government's commitment to creating legislation based on explicit principles:

"It is very much our desire in the Department of Health that the new legislation should be underpinned by a set of clear general principles ... We felt very strongly in the context of this legislation which is about a very sensitive area, the protection of public safety but civil liberties too that it would be helpful on this occasion ... to put those clear principles down on the record."[

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He went on to explain why the Department felt uneasy about some of the principles suggested by the Expert Committee, particularly those of non-discrimination and respect for autonomy. Firstly he was concerned that any principles set out on the face of the Act should not duplicate provisions found elsewhere; the principle of non-discrimination, for example, is already embedded in the Disability Discrimination Act 1995. Secondly, he went on to state that:

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Mr. Hutton went on to point out that "one of the most important principles we emphasise here is wherever possible the treatment should be consensual".[256] Nevertheless, he felt that if the principle of respect for autonomy were to be spelled out on the face of the Act that could potentially cause legal confusion because "to emphasise the autonomy might well be seen by the courts to conflict with the basis and purpose of this legislation which is to set up a framework of compulsion. How do the principles of autonomy and compulsion sit side by side?"[257]

114. In oral evidence to us, Professor Richardson commented that the Expert Committee had perhaps not distinguished clearly enough between the ten principles that they had proposed, and emphasised that the most fundamental was non-discrimination and "flowing from that, hand-in-hand with that, is the principle of patient autonomy. I think those are the two absolute fundamentals which we see as influencing the whole nature of our recommendations."[258] She went on to describe these two principle as "erupting" throughout the proposed legislation "so even if they are not on the face of the Act they should be informing the nature of the Act all the way through, and this is what they are not doing in the Government's preferred proposals".[259]

115. It is clear from the arguments put to us by Ministers and by members of the Expert Committee, that they are working from significantly different perceptions as to what the new legislation is seeking to achieve. The Government appears to be taking the narrower approach, described by the Law Society, whereby the main focus of legislation is to define the circumstances when patients can be compelled to accept treatment without consent. The Expert Committee, on the other hand, had taken a wider view, in its attempt to bring to the forefront the civil rights of those potentially liable to compulsion. As we have already argued (see paragraph 107 above), we believe that the position of people suffering from mental disorder will be enhanced if the wider approach is chosen.

116. It also seems to us that the Government's concerns about the principle of respect for autonomy are to a certain extent merely matters of semantics. The Expert Committee made quite clear that in certain circumstances, such as the existence of substantial risk to the safety of others, an individual's competent refusal of treatment could be over-ridden.[260] Mr. Hutton's concern about the incompatibility of respect for autonomy and the principle of compulsion was addressed very clearly in earlier evidence from Professor Richardson:

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117. We believe that respect for the principle of autonomy need not, and should not, mean that an individual can never be restrained from endangering others. However, it does imply that the refusal of treatment by a competent individual should be taken very seriously, and over-ridden only with good reason, such as the existence of a serious risk to others. We believe that the principle of respect for autonomy, and the principle of non-discrimination from which it flows, should appear on the face of the new Act. We would recommend that, if the Department remains concerned that the wording of the principles could cause legal confusion in an Act concerned at least partly with compulsion, it should seek independent legal advice on possible re-wordings. Any such re-wording should encapsulate the aim that respect for an individual's autonomy should be the starting point in any consideration of treatment, and that decisions to over-rule autonomy must therefore be based on transparent and sufficient criteria.

The use of capacity as a criterion

118. The Expert Committee's proposal that the criteria for compulsion should differ, depending on whether or not the patient was judged still to have capacity, flowed directly from its concern with autonomy. The Expert Committee's approach received overwhelming support from those submitting evidence to us: of those respondents directly addressing the question of capacity, only one individual expressed support for the alternative "non-capacity" model put forward in the Green Paper.[262] Those in favour included the Royal College of Nursing,[263] the Mental Health Foundation,[264] the Law Society[265] and Mind.[266] The Mental After-Care Association, for example, argued that the question of capacity should be at the heart of any decision about compulsory treatment and that "it is crucial to remember that this is health legislation being discussed, not criminal justice legislation".[267] Dr. Mike Shooter of the Royal College of Psychiatrists expressed some concerns about the practical problems inherent in assessing "cognitive capacity in the middle of an emotional disturbance" but told us that "I still believe, the college still believes and we supported the Richardson committee in believing, that actually in the future it [capacity] will turn out to be a valuable phenomenon."[268]

119. Although the Expert Committee described its proposals as being "dismissed by the Green Paper, effectively without debate,"[269] Department officials emphasised to us that "it is important to state at the outset that the Green Paper does not reject the notion of capacity ... What the Government has done in the Green Paper is to simply offer an alternative model but there is no decision yet taken on whether or not there would be a capacity test on the face of new legislation, and we await the outcome of the consultation we have had on the Green Paper".[270] John Hutton reinforced this point, telling us that the response to the Green Paper had shown a "strong split of opinion" on this. He particularly emphasised the question of the practicalities surrounding the testing of capacity, arguing:

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120. We were surprised by the emphasis placed by the Department, and to a lesser degree by the Royal College of Psychiatrists, on the lack of systems for assessing capacity. Professor Bingley pointed out to us that it was "quite important to stress that the concept of incapacity is of course used by doctors in relation to physical disorders already,"[272] while Professor Richardson drew our attention to the existence of case-law which has developed on the definition of incapacity.[273] The British Medical Association issued guidance in 1995 entitled Assessment of capacity: guidance for doctors and lawyers, reflecting the need for doctors in day to day practice to judge the capacity of patients with, for example, dementia or learning disabilities. The Government has itself stated that it will be creating a statutory definition of incapacity as part of its wider proposals to provide a statutory framework for people lacking capacity set out in the recent White Paper Making decisions.[274] This definition is based on one proposed by the Law Commission, after extensive consultation. The definition put forward in the White Paper is as follows:

"A person is without capacity if, at the time that a decision needs to be taken, he or she is unable by reason of mental disability to make a decision on the matter in question; or unable to communicate a decision on that matter because he or she is unconscious or for any other reason.
Mental disability is any disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning.
A person is to be regarded as unable to make a decision by reason of mental disability if the disability is such that, at the time when the decision needs to be made, the person is unable to understand or retain the information relevant to that decision, or unable to make a decision based on that information."[275]

The White Paper also stated that in the case of adults, there would be a rebuttable presumption of capacity: that is, adults should be assumed to have capacity unless it had been demonstrated that they had not.

121. We appreciate that there may well be differences between judging the capacity of a person whose mental state is relatively stable (for example someone with learning disabilities) and someone suffering from mental illness, where the very way the illness manifests itself may be in expressing views and beliefs which do not match those of the patient when he or she is well. The mental health charity Mind argued to us that the definition of capacity put forward in the White Paper, which it supports, would deem a person suffering from hallucinations as incapable, because their decisions were not based on the facts:

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Mind also emphasised to us that it was important to have a clear definition of capacity, based on a functional test (how the person is reaching a decision); if not the danger is that "capacity becomes equated with disagreeing with your psychiatrist".[277] In response to concerns that it is difficult to have an objective test of capacity, particularly given the wide range of cultures, religious beliefs, lifestyles and values within the UK, Peter Wilson of Young Minds argued that the problem is more apparent than real:

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122. Many witnesses argued that an objective test for capacity should form part of the criteria used for determining whether a patient can be subject to compulsion. In principle we believe that this would be desirable as long as it was workable in practice. We appreciate, however, that there are genuine concerns as to how - or indeed whether - such a test could be developed. We recommend that the Department should investigate further the ways in which such a test might be implemented successfully.

123. The significant difference between judging the capacity of a person suffering from mental illness, and that of a person with learning disabilities or dementia, seems to us to hinge mainly on the fact that, when acutely ill, a mentally ill person may express beliefs and take decisions that are at clear variance with their "real" day-to-day approach to their lives. We agree with Mind that a person in this state should be regarded as incapable, on the basis that they are taking decisions that conflict with their underlying values. The difficulty for professionals then exists in determining what those "underlying values" are, since they will be personal to the patient. One way drawn to our attention by witnesses that this could be achieved is by the much greater use of crisis cards and advance directives, in which individuals, when well, make clear how they would prefer to be treated when in an acute phase.[279]

124. We recommend that the Department of Health should take legal advice as to whether the capacity "test" set out in the White Paper Making decisions would be interpreted by the courts in such a way that a person making decisions which conflict with their own "real" values (as judged by the patient him or herself when well) would be deemed incapable. If necessary, we recommend that an additional criterion be added to that test, to ensure that this is clear. We also recommend that the new mental health legislation should include provision for advance directives and crisis cards to be used when determining what the patient's "real" views are.

The management of risk

125. The question of risk has arisen over and over again throughout this inquiry. The fact that the management of risk is central to the Government's approach to mental health services was emphasised again in its decision to include it in one of the four guiding principles it suggested in the Green Paper:

"The safety of both the individual patient and the public are of key importance in determining the question of whether compulsory powers should be imposed."[

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Mr. Hutton reiterated this approach to us when he gave oral evidence, arguing that "the crucial issue, leaving aside the argument about capacity at the moment, is that we have a proper system of risk assessment".[281]

126. This approach was challenged by a number of witnesses, who argued that while there was no doubt that public safety had to be safeguarded, the issue of public safety should not be seen as the focus of mental health legislation. Professor Bingley, for example, argued:

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The Royal College of Psychiatrists made a similar point:

283

The opposite view was put by the organisation Victims' Voice, whose members have experienced the death of family members because of homicides by individuals in touch with psychiatric services. Victims' Voice strongly criticised the "calculated risks" that they saw as being taken at present, when deciding whether patients may be discharged or given leave of absence, and argued that the families of victims should have much more of a voice.[284]

127. Professor Richardson expressed concern that links between mental disorder and violence had been "disproportionately emphasised in the media", adding " I think that we really fear that the Green Paper has almost accepted that without question".[285] A number of witnesses[286] drew our attention to research by Taylor and Gunn which concluded that over a 38 year period from 1957 to 1995, there was "little fluctuation" in the number of people with mental illness committing criminal homicide and that in fact, given the rising homicide rate, the percentage of homicides committed by this group had actually decreased by an average 3% per annum.[287] The authors concluded that "a homicide is an appalling tragedy for all directly concerned, but single cases, however shocking and publicised, do not constitute evidence for failure of a national system of care, nor for far-reaching changes in legislation and service delivery". Drawing comparison with road accidents, they suggest that "confining people with a mental illness to hospital to save 40 or so lives would be analogous to abolishing private motoring to prevent the 4000 or so road deaths".[288]

128. Homicides are clearly an appalling tragedy for those directly affected, and proper consideration of risk to others must be a key element in the criteria which determine whether compulsory treatment is necessary. But we believe that the focus of mental health legislation should be on the therapeutic benefit to the patient. We are concerned that the high profile given to tragic, but nonetheless relatively rare, events may hinder the development of services focused on the needs of the patients, and might even be counter-productive in driving patients away from the system.

129. We are also concerned that the "blame culture" to which we alluded earlier (see paragraph 73) risks driving away much needed staff from mental health services. It seems to us that individual professionals are being asked to make very difficult judgements as to potential risk, with little guidance and in the knowledge that the wrong decision might have disastrous consequences. We ask the Department, in association with the appropriate professional bodies, to bring together and update any existing guidelines on the assessment of risk. We also believe that professionals would welcome an acknowledgement in those guidelines that risk can never be eliminated altogether, and that occasionally decisions will be made in good faith, on the best evidence available, that in hindsight are proved to be wrong.

130. The question of risk "to whom" also arose in our consideration of this issue. The Expert Committee's report had highlighted a distinction between risk to others and risk to self, and had concluded that while there was a consensus that it was appropriate to over-ride autonomy in order to protect others' safety, views on what action should be taken to protect a patient's own safety or health, if they were competent to refuse treatment, were more divided. The Green Paper, on the other hand, made no reference to this distinction. Both sides of the argument were presented to us. Mind expressed the view that patient's autonomy should be respected in such cases, although all efforts short of compulsion should be used to make them change their mind (see above paragraph 121). John Hutton implied an acceptance of the opposite view:

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131. We do not feel that we received sufficient evidence on this issue to make a judgement as to whether or not competent patients should be compelled to accept treatment for their own safety, rather than for that of others. We do, however, agree with Professor Richardson that this is a serious moral issue, and one which demands consideration. We are concerned that it was not raised at all in the Green Paper, and ask the Department to ensure that it is discussed publicly, before the future legislation is framed.

Criteria used to determine compulsion

132. The criteria used to define who will be drawn into the scope of possible compulsion are clearly central to the whole debate on the new legislation. The Expert Committee proposed that there should be a very wide diagnostic "trigger", in order to avoid the arbitrary exclusions of groups of patients. Any individual deemed to be suffering from "mental disorder", defined in the same way as in the White Paper Making decisions ("any disability or disorder of mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning"), would therefore come within the scope of the Act. The criterion currently found in the 1983 Act, that patients with personality disorder or mental impairment must be deemed to be "treatable" before they come within the scope of compulsion, would be dropped.

133. The Expert Committee combined this wide diagnostic approach with the entry criteria set out above (see paragraph 110), so that differing criteria would apply depending on whether or not the individual had capacity. In both cases, compulsory treatment would have to be in the patient's best interests and would be the "least restrictive and least invasive" alternative consistent with safe and effective care. If the patient had capacity and was refusing treatment, the additional criteria would have to be met that there was a "substantial risk of serious harm" to others (or possibly themselves) and that there were positive clinical measures in the proposed treatment plan which would prevent deterioration or secure improvement in the patient's condition. Where patients lack capacity, the additional criteria would be that it was "necessary" for the health or safety of the patient or for the protection of others from serious harm, or for the protection of the patient from serious exploitation that the patient be subject to care and treatment, and that compulsion was the only way of providing that care and treatment.[290] The additional criteria for patients with capacity would thus include the explicit requirement that they should be able to benefit from the treatment, while the additional criteria for patients lacking capacity would permit compulsory treatment either for their own benefit or for the protection of others. However, the requirement for both groups of patients that the compulsory treatment must be in their own best interests would prevent purely preventative detention, with no therapeutic intent.

134. The Green Paper accepted the wide definition of mental disorder put forward by the Expert Committee, but, as discussed above, expressed doubt about a capacity-based approach and put forward an alternative model. This model made no reference to best interests or to "least invasive" alternatives, but otherwise reproduced the Expert Committee's recommendations for those without capacity.

135. This approach appears to have generated serious concern among patients and professionals alike. The use of the wide diagnostic "trigger" was generally welcomed,[291] but the need for much more tightly drawn entry criteria to compulsion was emphasised by all the witnesses who addressed the issue.[292] The Law Society presented a typical view:

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The Royal College of Psychiatrists told us that they feared the criteria put forward by the Green Paper could lead to an "enormous proliferation" in the number of patients potentially subject to compulsion:

294

Mr. Hutton emphasised to us that the aim of the Green Paper proposals had certainly not been to "increase arbitrarily the number of people who are subject to compulsion, of course we are not interested in that".[295] However, other witnesses were in no doubt that the proposals as they stand could have precisely that effect, and that the safeguards such as tribunals (discussed further below, paragraph 148) would be of little assistance in protecting patients if the criteria they were required to judge by were too broad. Professor Richardson told us that she had "real fears about ease of entry and difficulty of getting out" of the system,[296] while Mrs. Abbott-Buttler argued that the criteria would increase the already "disproportionate numbers of black people in the mental health system".[297]

136. We felt that the questions surrounding "health benefit" and "treatability" were crucial in setting criteria which ensure that patients who need treatment receive it, while not compromising the civil liberties of all those diagnosed with "mental disorder". We also felt that the debate was confused by differences in the use of terminology. The term "treatability" was introduced into the 1983 Act to ensure that the Act could not be used effectively to provide preventative detention, without treatment, for individuals with psychopathic disorder or mental impairment.[298] The term has become somewhat discredited, partly because of disagreements between groups of psychiatrists and psychologists as to whether personality disorder is or is not amenable to treatment,[299] and partly because it has been perceived at least, to be used as a way of refusing care to vulnerable individuals. SANE, for example, argued that the treatability criterion in the current Act is used as an excuse to relegate individuals to the criminal justice system, rather than caring for them in the NHS,[300] while Peter Wilson of Young Minds agreed with the comment that it "allows psychiatric services to define treatability almost as 'not treatable by us'".[301]

137. While "treatability" was associated by many of our witnesses with the concept of exclusion from services,[302] the idea that "health benefit" should be a critical factor in the criteria for compulsion was accepted almost unanimously. Professor Richardson put the basic argument:

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Similar points were made by Department of Health officials,[304] Mind[305] and the National Schizophrenia Fellowship.[306] While Professor Richardson had earlier criticised the Green Paper for having "no health benefit requirement,"[307] in evidence to us John Hutton MP explicitly endorsed the principle that there must be a therapeutic benefit to the patient:

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138. We recognise the danger that a "treatability" criterion, such as that found for psychopathic disorder and mental impairment in the 1983 Act, may be used as an excuse for not seeking to help individuals when resources are stretched, or where clinical opinions are divided. But we believe that if an individual is to be compulsorily treated under mental health legislation, one of the criteria for compulsion must be that they are likely to benefit from that treatment. We note that while the Government endorses this principle, respondents to the Green Paper do not believe that the proposals contained within it will achieve this aim. We therefore recommend that the requirement that a patient is likely to benefit from the treatment being proposed should be made much more explicit in the criteria for compulsion. Taking up Mr. Hutton's point that there must be "clear evidence" that a person will benefit from the treatment programme, we would make a distinction between patients accepting treatment voluntarily and those being treated against their will. We appreciate that how an individual patient is going to respond to treatment can never be predicted with complete certainty, but we would argue that the levels of certainty required if treatment is to be provided compulsorily must be much greater than in cases where treatment is being provided as part of a consensual contract between doctor and patient.

139. During our discussions on "treatability", it became clear to us that the concept of "treatment" potentially went far wider than its common association with medication. Department of Health officials emphasised that "we do not necessarily think that 'treatment' ought absolutely to be limited to conventional psychiatric interventions, it ought to cover a whole range of interventions, social interventions and psychological interventions as well".[309] Other witnesses, such as Mind,[310] the Royal College of Psychiatrists,[311] and the Mental After-Care Association[312] affirmed this view. Although Mind drew our attention to the fact that the legal definition of "medical treatment" given in the 1983 Act is in fact very wide,[313] it seemed to us that the discussion of compulsory treatment tended to focus primarily, if not exclusively, on pharmaceutical treatments. We suggest that it would be more helpful for the term "health benefit" to be used in any future legislation, in order to emphasise the potential breadth of therapeutic interventions which might be appropriate.

The principle of compulsion in the community

140. Department of Health officials made very clear to us in their oral evidence that the principle of compulsion in the community was regarded as non-negotiable, emphasising that the terms of reference of the Expert Committee "were not whether community treatment orders should be implemented but how they should be implemented".[314] Nevertheless, we received a considerable amount of evidence demonstrating the concerns a range of organisations and individuals have over this principle.[315] The fundamental anxiety expressed by users and user representatives was that the possibility of being treated compulsorily in the community would take away patients' sense of independence and dignity,[316] undermine the trust relationship between professionals and users[317] and run the risk of driving patients away from services because they feared they might be compelled to accept treatment they did not want.[318] Martin Ward of the Royal College of Nursing expressed fears that "it is another way of getting round a lack of inpatient facilities" and told us that "I have yet to hear a CPN [community psychiatric nurse] say yes, compulsory treatment would be a really good thing".[319] Concerns were also expressed by Pat Guinan of the British Psychological Society, who cited examples where patients had stopped taking medication against medical advice and were able to maintain their recovery,[320] and Christine Craik of the College of Occupational Therapists who told us that "we would all realise the difficulties it places on front-line professionals".[321]

141. Other witnesses took a more positive approach to the principle of compulsion outside hospital. Dr. Mike Shooter, of the Royal College of Psychiatrists, argued that the concept of compulsory treatment in the community was in line with the generally accepted principle that people should be treated as close to home as possible:

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Claire Gregor, a social worker from Local Health Partnerships NHS Trust in Suffolk pointed out to us that mental health professionals already have to build a trust relationship with their users in the context of the possibility of compulsion,[323] a point that was made forcefully by John Hutton MP when he told us that "compulsion is not new".[324] David Joannides of the Association of Directors of Social Services commented that "with much greater improvement in care coordination, in discharge planning, with an NSF which is resulting in much stronger community support services, we believe there is a place for the use of compulsory assessment and treatment," but emphasised the need for "greater safeguards in line with the scoping group's recommendations".[325]

142. The question of safeguards is clearly crucial. Professor Richardson drew to our attention the fact that the Expert Committee had recommended that one of the basic principles of the new legislation should be reciprocity: that if patients were to be required to accept treatment then good quality services must be available.[326] She also highlighted the concern that this could lead to a distortion in services: that the only route in to adequate services could be via compulsion.[327] The Expert Committee had therefore recommended that users should have a right to an assessment of their mental health needs either on request from their carer or from themselves. Professor Richardson told us that they were "rather disappointed" that the Green Paper, while accepting the principle of a carer's right to request an assessment on behalf of the user, had not mentioned the user's right:

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143. A number of our witnesses went further than Professor Richardson, arguing that the effect which the power aimed to achieve, compliance with treatment and hence reduction in relapse, could be much better achieved through providing better and more comprehensive services than are currently available.[329] The Law Society, for example, argued that positive rights and entitlements to services would be a far better way than compulsion of making care in the community succeed.[330] Other organisations commented on high levels of unmet need: the National Schizophrenia Fellowship, for example told us of a recent survey of 2,300 carers and services users which had shown that one in three people were turned away when they sought help,[331] and highlighted recent 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".[332] The Fellowship concluded that:

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The Mental Health Foundation noted that a number of homicide inquiries had identified the fact that the patient had been refused help when they requested it.[334] This point was taken up by the Zito Trust[335] and Victims' Voice[336] who highlighted the percentage of suicides and homicides carried out by patients who were non-compliant with medication and expressed support for the power of compulsion in the community, but also argued that greater access to atypical anti-psychotic medication, with its less onerous side-effects, would be beneficial in encouraging compliance.

144. John Hutton emphasised to us that the Department had certainly accepted the idea of reciprocity, but set out concerns about the idea of an enforceable right to services which would apply to people with mental health problems, but not with physical health problems:

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145. The argument was also put to us that what was being proposed was not radically different from the existing community powers in the 1983 Act: for example the powers of guardianship and supervised discharge under which patients may be required to live in a certain place, permit the entry of specified professionals and attend specified places for treatment (although they cannot be obliged to accept that treatment). Since the Green Paper has made clear that patients under compulsory orders in the community would not be forcefully medicated in their own homes, but would be taken to healthcare settings for treatment,[338] it could be argued that the new power is simply a more explicit form of the old one. Dr. Christopher Mayer of Local Health Partnerships NHS Trust took this view, expressing some concerns about possible abuses of a new power, but telling us that:

"I would prefer to have some sort of order which would allow me to deliver that [community treatment] in an open and honest way rather than having to fudge the existing Act."

The "fudge" to which Dr. Mayer referred was his current practice "whereby if he refuses his injection I have to tell him that I am thinking of admitting him compulsorily."[339] A similar point was made by Professor Bingley, who suggested that the new power could be helpful in "doing deals" with a certain group of patients:

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146. There are clearly some very serious concerns about the prospect of compulsory treatment in the community. At the same time, we were impressed by some of the arguments put to us, that the principle of community treatment orders accords with the spirit of treating patients closer to home, and that mental health professionals have always had to juggle the possibility of compulsion with the necessity of building a trusting relationship. We believe that if the Government is to introduce some form of community treatment order, it is imperative that the safeguards set out in the Expert Committee's report, particularly those relating to reciprocity, and the right of the user to request an assessment, should be included. We also reiterate our earlier recommendations that the criteria used for determining who is subject to compulsion should in principle include a recognition of capacity and should require clear evidence of health benefit for the patient.

Patient safeguards

147. The final points made to us in our investigation of the review of the 1983 Act related to the potential safeguards put forward by the Expert Committee for those subject to compulsion: the use of a seven day review to authorise the interim care plan, the automatic lapsing of that care plan after 28 days unless authorised by a tribunal, and a statutory right of advocacy. The Green Paper accepted the principle of the 28 day tribunal hearing but expressed some doubt about the value of a seven day "paper exercise". Professor Richardson told us that the point of the seven day review was "to ensure that within that seven day period a lot has been achieved",[341] and commented that she was not sure from the Green Paper what would be put in its place if the seven day review were removed.[342] In response to concerns expressed in the Green Paper that a delay of up to seven days in providing anti-psychotic medication could lead to worse outcomes for the patient, she argued that there was no reason why authority for the care plan should not be sought before the seven day period was up: "I would have thought the way forward is to bring forward the interim care plan and start treating on that".[343]

148. Most of the questions raised with us concerning the tribunals related to their composition. Karen Campbell of the MDF expressed concern that a possible model, put forward in both the Expert Committee's report and the Green Paper, would be a single decision-maker[344] and Professor Richardson agreed that such a model would have significant disadvantages.[345] Professor Richardson also highlighted the problem in the current tribunal system, that lay members tend to feel less well informed and hence less empowered than the medical and legal members, and emphasised the need for all members of tribunals to have the same generic training for their role.[346] Professor Bingley commented that although the Expert Committee had put forward a number of possible models, the intention had been that, once a decision had been taken, the same composition would apply for all tribunals. The situation should not arise, for example, that certain kinds of case would be dealt with by a one-person tribunal, while others were considered by a three person tribunal.[347] Other concerns related to the number of cases which tribunals might potentially have to hear, and the resource implications of this.[348] The question of the burden on tribunals is clearly directly related to the criteria used for entry into compulsion and hence how many people will be potentially liable to being made subject to community treatment orders. We draw the Department's attention again to our recommendations on the use of much tighter entry criteria: as Mind pointed out to us "if the criteria are too wide, the tribunal is no protection at all".[349]

149. We received very positive evidence on the proposal that there should be a statutory right of advocacy. Karen Campbell of MDF, for example, told us:

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Witnesses giving evidence at the same time as Ms Campbell (FOOTPRINTS and Breakthrough) all agreed with this approach, as did the Mental Health Foundation[351] and the Mental After-Care Association.[352] Professor Bingley commented that, in his experience talking to black and minority ethnic groups, advocacy was regarded as being of "particular importance", a view which certainly seemed in tune with comments made to us by FOOTPRINTS on the need for a greater voice in mental health services from within the ethnic minority communities. Professor Bingley also highlighted the dilemma between providing state funding for advocacy schemes, and enabling them to keep the necessary distance from statutory services:

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150. While the Green Paper stated that the Government would keep "under review" the case for introducing a right to an advocate,[354] Mr. Hutton suggested that this role was at least partly played by the new tribunal system:

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151. We were very struck by the positive response from witnesses on the proposal that there should be a statutory right to advocacy. It was clear from the evidence given to us by users that they see advocacy as something quite separate from an institutional safeguard such as a tribunal, and something which would help to make them more "equal" within the system. We recommend that there should be a statutory right to advocacy, in the sense of access to adequately funded schemes providing advocates for individuals. We also recommend that such schemes should be funded, and be accountable, through a national structure, to enable them to keep the appropriate distance from local statutory authorities.

Dangerous people with severe personality disorder

152. At the same time as Professor Richardson's Expert Committee made its recommendations on the reform of the mental health legislation to ministers, the Department of Health and the Home Office published a related consultation paper on the future care or disposal of those described as "dangerous people with severe personality disorder".[356] The main concern highlighted by the paper was the way the current "treatability" criterion was operating in the Mental Health Act 1983: individuals with personality disorder were being turned away from mental health services on the grounds that they were not treatable, and in a number of cases then going on to commit horrific crimes. The document put forward two possible ways forward. The first option ("Option A") proposed the development of existing systems within prisons and hospitals, including extending the use of discretionary life sentences to ensure that people convicted of serious crimes would not be released if considered still dangerous, and amending the 1983 Act in order to remove the "treatability" requirement for "dangerous severely personality disordered" (DSPD) people. The second option ("Option B") proposed the construction of a whole new legal framework to allow DSPD individuals to be detained on the basis of their diagnosis and an assessment of the danger they presented to the public, and to be held in new facilities separate from both the prison and hospital systems. The Green Paper on the reform of the Mental Health Act 1983 described the proposals as "a separate but related area of policy development", and stated that the responses to the two consultation documents would be considered together.[357]

153. The Home Affairs Committee has recently considered these proposals, and expressed a preference for "Option B", a new system specifically designed to cater for this group of patients.[358] We would not wish to duplicate work that they have done, but we felt that it would be helpful to consider the proposals in the wider context of the review of mental health legislation, and from a mental health viewpoint.

154. The evidence we received on the Government's proposals was remarkable in its uniformity. The first point made to us by many witnesses related to what they saw as the highly dubious nature of the definition "dangerous people with severe personality disorder" or "DSPD individuals".[359] The evidence we received from the Institute of Psychiatry was typical: the Institute emphasised both that "severe personality disorder" was not a clinical definition, and that the "severity" of personality disorder bore no relationship to dangerousness.[360] Dr. Mike Shooter of the Royal College of Psychiatrists made the same point to us forcefully in oral evidence:

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Both the Institute of Psychiatry and the South London and Maudsley NHS Trust expressed a firm view in favour of the approach being used in Scotland where the Maclean Committee was asked to "make proposals for the sentencing disposals for, and the future management and treatment of, serious violent and sexual offenders who may present a continuing danger to the public".[362] They also argued that it is very difficult to predict dangerousness, other than on an individual's past offending history: thus the idea that individuals who have never offended might be identified before they could harm others was highly unrealistic.[363] Other witnesses made the wider point that they were concerned about the effect that this linking of mental disorder and dangerousness would have on the public perception of mental disorder.[364]

155. Paul Boateng MP, Minister of State at the Home Office, told us that the term "dangerous people with severe personality disorder" had been quite deliberately chosen because it was not a clinical term:

365

Mr. Boateng went on to suggest that there are around "2,400 people who have and exhibit what we have chosen to call the indications of being dangerous people with severe personality disorder" and that "we are pretty well able to identify that small group of people about whom we are talking".[366] Mr. Boateng also told us categorically that:

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156. We very much welcome Mr. Boateng's explanation that these proposals are "first and foremost a criminal justice matter". However, we are still concerned at the use of what could be described as a "quasi-medical" definition, which runs the risk of being highly stigmatising for the many people suffering from personality disorder who are not judged by anyone to be dangerous. We are also very unclear how the estimate of around 2,400 individuals has been derived given the very unspecific nature of the definition being used. We recommend that a definition similar to that being used in Scotland, for example "serious violent and/or sexual offenders who may present a continuing danger to the public" should be used in the English proposals, to make clear that they are concerned with offending behaviour and not mental disorder.

157. The second area on which we received considerable evidence was that of "treatability", an issue which we have already discussed in the context of the reform of the Mental Health Act 1983 (see above paragraphs 136-139). There seemed to us to be two main conclusions to be drawn from the evidence we received. The first is that there is no professional consensus, either between psychiatrists or between psychologists, as to whether personality disorder is treatable.[368] It is clear that this lack of consensus derives at least partly from the fact that the range of disorders covered by the term "personality disorder" are very complex and further research is urgently needed. However, it seems possible that some of these differences of opinion will relate less to the clinical characteristics of individuals suffering from personality disorder than to a lack of agreement as to what constitutes "success" in treating such patients. The National Schizophrenia Fellowship, for example, highlighted the work of Grendon prison:[369] Grendon has clearly had some success in changing the behaviour and approach of some of the offenders participating in its programmes, but this is perhaps seen rather more as behaviour modification, than as a "cure" or "successful treatment". However, the evidence we received, particularly from the Home Office, also suggested to us an ongoing disagreement over what interventions can count as "treatments". Even though evidence from organisations as disparate as the Department of Health, Mind, the Royal College of Psychiatrists and the Mental After-Care Association emphasised that the concept of "treatment" in mental health legislation should, and does already, go far beyond medication to include a range of psychological and social interventions (see above paragraph 139), both Home Office officials and Mr. Boateng referred repeatedly to "the whole range of inputs that could be made from across psychology, psychotherapy and so on,"[370] the "battery of existing psychological tools",[371] and interventions "of a multi-disciplinary nature, which involve psychotherapists, psychologists, the Probation Service, psychiatrists"[372] in the context of individuals who are apparently deemed "untreatable" under the Mental Health Act 1983. We found the juxtaposition of "interventions" for "untreatable" individuals confusing to say the least.

158. The second conclusion which we have reached is that the debate around "treatability" is not only concerned with disagreements as to what constitutes treatment or even what constitutes successful treatment, but also with the lack of available resources. As we commented earlier (see above paragraph 136), "untreatable" may be used as a disguise for "not treatable by us". The Department of Health told us that "we recognise that we are not able to deliver all the services which are required [for people with personality disorder] currently,"[373] and Mr. Boateng made this more explicit when he defended the Home Secretary's comments on the failures of psychiatrists in the Michael Stone[374] case:

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159. We feel that the whole debate around the care of those designated "DSPD" has been fundamentally muddied by the various different meanings attached to the concept of "treatability". We welcome the recognition that services for people with personality disorder have in the past been very patchy, and we urge the Department to take positive action to develop more consistent services, based on the best research evidence available. We were told that the Royal College of Psychiatrists has called for randomised controlled trials into the treatment of anti-social personality disorder[376] and we strongly endorse that proposal.

160. We would also like the Home Office, as a matter of urgency, to clarify whether it sees the "interventions" that it is developing for "DSPD" individuals as being different in kind from the "interventions" that are currently available, albeit patchily, in the NHS. If these interventions can be defined as "treatment" in the very broad sense discussed earlier, and are aimed at individuals with a recognisable mental disorder, then we would argue that they should be provided by the NHS on the basis of mental health legislation. If, on the other hand, they can be distinguished clearly from any "treatment" that the NHS might provide, then we would argue that they should be made available in prisons, to convicted offenders, as part of the criminal justice system.

161. In his oral evidence, Mr. Boateng drew vividly to our attention the consequences to public safety of offenders being released into the community, even though their past offending profile and recent risk assessments have shown that they are highly likely to offend violently again.[377] We agree that cases such as these are matters of grave public concern. However, we would maintain that criminal justice issues such as these should be kept quite distinct from matters of mental health provision. Peter Fallon QC drew to our attention the proposals his committee made on reviewable sentences, which would allow offenders to be kept in prison if at the end of their initial term, they were still judged to be a danger to the public.[378] When we put this suggestion to Mr. Boateng, he argued that such a solution "does not enable us to develop the sort of services that we are very anxious to develop - Health and Prison Services together - around the needs of people with severe personality disorder. One of the great advantages, whether it is an Option A or an Option B, is a whole range of service enhancement gains".[379]

162. As we have indicated above, we would certainly welcome "service enhancement gains" for people suffering from anti-social personality disorder who are currently being excluded from services. However, we do not understand why these service improvements cannot be provided without the sort of legislative change put forward in the Home Office/Department of Health document. We believe that the proposal for reviewable sentences put forward by Peter Fallon QC deserves further consideration.

163. Mr. Boateng also drew our attention to the question of individuals who have never been in touch with the criminal justice system, and hence would not be affected by proposals such as the creation of reviewable sentences. He stated that they would be a "very, very small group of people", and argued that, since they had never committed an offence "we would not intend that that group should be detained in anything other than an environment that, whilst it was not a hospital, was not a prison either".[380] As a health committee, we feel that there are others better qualified than ourselves to comment on an issue which is essentially one of preventative detention. However, we reiterate that if any of these individuals are suffering from a recognised mental disorder and treatment exists which might alleviate, in the broadest sense, that disorder, then they should be provided for in the NHS and not in the prison system.

164. The final issue brought out in the evidence submitted to us related to the staffing of the new facilities if "Option B" were to be chosen. The Institute of Psychiatry,[381] the Sainsbury Centre for Mental Health[382] and the Royal College of Psychiatrists[383] all described the staffing difficulties which such an option would entail, particularly given the staffing difficulties already being experienced by institutions such as Ashworth. Later in our inquiry witnesses drew our attention to the fact that prisons are seen as unappealing places for doctors to work (see below paragraph 205). Peter Fallon QC suggested that if Option B were to be set up "the recruitment league of popularity will undoubtedly be the non-special hospitals, special hospitals, prison service and then the third service".[384] We share his fears.

165. It will be clear from our conclusions above that we are unable to support either Option A or Option B in the Home Office/Department of Health discussion document. We repeat our recommendations that research should be initiated on the treatment of anti-social personality disorder, that adequate facilities should be made available within the NHS for those suffering from a recognised disorder who are able to benefit from treatment, and that further thought should be given to the proposal of reviewable sentences to provide for those who are deemed a danger to the public but who are genuinely not amenable to treatment in the NHS.

240 Department of Health press notice 1998/311, 29 July 1998. Back

241 Department of Health, Report of the Expert Committee: Review of the Mental Health Act 1983, 1999. Back

242 Cm 4480, November 1999. Back

243 Q225. Back

244 Ev., p314. Back

245 Cm 4480, p7. Back

246 Ev., p120. Back

247 Q231. Back

248 Ev., p315. Back

249 eg Re MB [1997] 8 Medical Law Reports 216. Back

250 Department of Health, Report of the Expert Committee: Review of the Mental Health Act 1983, 1999, paragraph 2.7. Back

251 Ibid, paragraph 2.11. Back