Memorandum submitted by
Nacro (MH 15)
Summary
Nacro welcomes:
· The new definition of mental disorder
· The amendments made to the Bill by the House of Lords
·
Nacro remains concerned about:
· The over-emphasis on compulsion
· Detention under mental health legislation unless there are clear
benefits to the service user and they are assessed to have an impaired capacity
to make decisions about their treatment.
· The impact of the introduction of CTOs on
therapeutic relationships. We remain unconvinced that CTOs will significantly improve compliance. We are
also concerned about the possibility of a disproportionate impact on service users from black and minority ethnic (BME) communities.
· The absence of reciprocity in the Bill due to the lack of a right to a
mental health assessment.
· The abandonment of proposals for a right to advocacy.
· We agree with the House of Lords amendment to ensure children are
detained in age appropriate accommodation and that their wishes cannot be
over-ridden by their carer.
· We have
various concerns about 'approved clinicians', particularly around training and
regulation, their independence and objectivity and their competence to make
decisions to extend detention. We also
highlight some contradictions created in Part III of the Act.
· Section 35 is
currently not available to magistrates' courts in respect of a person charged
with an indictable offence. We believe this to be an anomaly which should be
rectified.
· We remain
concerned about the use of police stations as the 'place of safety' under s136
of the Mental Health Act 1983. We
believe these should be placed last in a hierarchy of places of safety within
the Bill.
Our full response follows.
About Nacro
1. Nacro,
the crime reduction charity, is dedicated to making society safer. We do this by finding practical solutions to
reducing crime. Since 1966 we have worked to give ex-offenders, disadvantaged
people and deprived communities the help they need to build a better future.
Nacro believes that responses to offenders with mental health problems should
focus on their care and treatment, rather than punishment, while recognising
that there can be difficulties in balancing the needs of the individual and
safeguarding the interests of the community.
2. Nacro's Mental Health Unit has been working with
national and local agencies in this field since 1990. Our evidence to the Public Committee reflects our interest and
expertise in the overlap between mental health and criminal justice issues.
INTRODUCTION
3 Nacro recognises that new mental health legislation
is both necessary and long overdue. We
welcome the decision to abandon the Mental Health Bill 2004, but we are disappointed
that a new Bill has not been brought forward and that instead a series of
amendments have been proposed to the current 1983 Act. As a result some of the
positive aspects of the 2004 Bill have not been carried forward while many of
the contentious issues have. Of equal concern is a failure to take into account
the views and recommendations of the 2005 Joint Parliamentary Scrutiny
Committee to the 2004 Bill.
4 Clearly, there is always a balance to be
struck between public safety and individual liberty. However, we believe that the balance in the proposed amendments to
the Mental Health Act 1983 favour coercion over consent. The amendments to the
Act have failed to allay the fears expressed by service users and professionals
about the use of compulsion.
KEY CONCERNS
AND EVIDENCE
Abolition of the Treatability
Test
5 Nacro
is opposed to detention under mental health legislation unless
i) there
are clear benefits to the service user and
ii) they
are assessed to have an impaired capacity to make decisions about their
treatment.
There has
been a particular assumption that the treatability test precluded people
diagnosed with personality disorder from treatment under the Mental Health Act
(1983) because it is not an illness as such. However, research has suggested
that the assumption that personality disorder is untreatable no longer
applies. There is evidence to suggest
that psychological treatments, amongst others, can have a significant and
beneficial impact upon those with this diagnosis (National Institute for Mental
Health in England, 2003: 23). If
practitioners are made aware and services provided for this group of patients this
gap in services will be alleviated. We
also feel this group are unlikely to benefit from existing fledgling treatment
services if it is on the basis of compulsion, nor should the dilemmas they pose
dictate legislation for mental health service users as a whole. We are concerned that the introduction of
'appropriate treatment' has no clear meaning or limits and may be applied in a
variety of different and inconsistent ways, which, in addition, may contravene
human rights. We welcome the rewording
passed in the House of Lords which allows detention only if treatment would be
'likely to alleviate or prevent a deterioration in condition' and if users are
judged to have impaired capacity to make decisions about their treatment.
Community treatment orders (CTOs)
6 We are opposed to CTOs believing that such
orders can undermine therapeutic relationships and that service users are more likely
to disengage with services rather than be subject to these orders. For offenders in particular there is
evidence that distrust is a central reason for a failure to present to
services, to which compulsion can contribute (Howerton et al., 2007). However, we accept that CTOs may be useful
for a small number of 'revolving door' cases
and welcome the amendments that the House of Lords has made limiting
their use to such patients, should they be introduced.
7 There appears
to be an assumption that CTOs will prevent the occurrence of tragedies such as
homicides by those with mental illness. The five year report of the national confidential
inquiry into suicide and homicide by people with mental illness, (National
Confidential Inquiry into Suicide and Homicide by People with Mental Illness,
2006) showed homicides neither to have increased or fallen and concluded that:
'the
number of 'stranger homicides'(perpetrator and victim not known to each other) in
which the perpetrator was mentally ill has not risen- by these figures, the
risk to the general public is not increasing' (p4).
Likewise homicide
enquiries suggest that, where offenders had prior contact with mental health
services, failures in information exchange and poor provision of mental health
services rather than non-compliance were the key precursors to these incidents (ibid.). An improvement in community mental health services
and responsiveness to patients needs and carers' concerns would be the most
effective strategy for prevention of such tragedies.
8 We would
draw the Committee's attention to Department of Health research conducted by
the Institute of Psychiatry (Churchill et al., 2007) which
stated that 'there is, so far, no evidence that the court order,
by itself, has any effect. Furthermore, there is some evidence, and widespread
agreement, that CTOs cannot work as intended without adequate resourcing, and
it is widely acknowledged that CTOs will not work without the general support
of mental health care providers.' (p194).
Since many practitioners have expressed concerns about the impact of the
use of CTOs on their relationships with service users and services continue to
be cut around the country, the research evidence suggests limited potential for
positive outcomes to their introduction.
9 The
CTO will effectively be comparable to the existing conditional discharge of a
restricted patient. Patients who are
subject to CTOs will not be supervised 24 hours a day and it will still be
possible for them to default on medication or, for example, to take illicit
drugs which exacerbate their mental health problems, a key issue amongst
offenders. Unless the CTO involves not only regular, but also frequent, contact
with professionals from a multi-disciplinary team, it may be some time before
deterioration in a patient's condition or a relapse is identified and action
taken to recall the patient. We remain unconvinced that compulsory treatment in
the community will significantly improve compliance. Where patients are able
and willing to comply with their care plan, compulsory treatment would not be
necessary. Where, for whatever reason, they are not able to comply, they are likely
to continue to be subject to frequent re-admissions to hospital. The creation
of the CTO does not provide any guarantee that the necessary staff and
resources will be available. If proper
and sufficient resources were available to provide the degree of support
needed, the need for compulsion would be significantly reduced.
10 The Race Equality Impact Assessment on the
Mental Health Bill 2004 suggested that the proposals with regard to Community
Treatment Orders would be likely to impact unequally and disproportionately on
service users from Black and Minority Ethnic (BME) communities. This does not
appear to have been taken into account with these amendments. We are concerned,
therefore, that the over-representation of BME service users under compulsory
sections of the Act will continue. We
would also highlight evidence from research Nacro conducted in 1990 (Browne,
1990), also cited in research conducted by the Sainsbury Centre for Mental Health
(2002) and the Department of Health (2003), that highlighted the adverse pathways into mental health services of
many BME service users which are likely to result in inappropriate outcomes and
dissatisfaction with services. The
potentially damaging effect of CTOs on therapeutic relationships may only further
contribute to this poor experience of services for BME service users. We would also draw attention to the lack of
recording of ethnicity within the health service as a whole, as outlined in the
Department of Health Census (2007). Our
own research into schemes diverting people from criminal justice into mental
health care which suggests that 50% of such schemes are not collecting data on
ethnicity (Nacro 2005). This lack of monitoring hinders drives to
address inequality in outcomes for BME service users within the mental health
system, which presents an added concern for monitoring the impact of community
treatment orders on this group should they be introduced.
Right to assessment and advocacy
11 There
is an absence of reciprocity in the Bill. It does not provide a right for
patients to access a mental health assessment. The right to an assessment is
included in the legislation in Scotland and it is unacceptable that a similar
right should not be available in England and Wales. Equally, there is no
entitlement to care planning, nor indeed, any mention of care planning, though
this has been a recommendation of homicide inquiries.
12 There
is also no right to advocacy within the Bill, though it was a feature of the
abandoned 2004 Bill. This was a
positive step towards providing service users with support and guidance to
protect their rights within the Mental Health system. It was a provision we urge to be reintroduced to legislation,
particularly if Community Treatment Orders are introduced.
Age appropriate accommodation
13 We
wholeheartedly agree with the House of Lords amendment to ensure children are
detained in age appropriate accommodation and that their wishes cannot be
over-ridden by their carer. Currently
around 955 children per annum are placed on adult wards (Royal College of
Psychiatrists), including a small number of 10 and 12 year olds (Mental Health
Act Commission). Current arrangements
raise concerns under the UN Convention on the Rights of the Child 1989, the
Childrens' Act 2004 and government policies around 'Every Child Matters'. We would also reiterate the need for a right
to advocacy for this group
Approved and responsible clinicians
14 According
to the Explanatory Notes published with the Bill, 'approved clinicians', from
which the 'responsible clinicians' who will replace 'responsible medical
officers' will be drawn, are expected initially to be 'psychiatrists and
psychologists of consultant status'. The briefing sheets published with the
Bill make it clear that at a future date other categories of mental health
professional might be expected to fulfil this role. We are concerned that there
is no indication of what levels of training, qualification and experience would
be considered necessary to meet the requirements of the role and to enable professionals
to be approved for this purpose or of what the 'minimum criteria for approval'
would be. We are also concerned that the body or bodies which would oversee the
training and regulation of these professionals have not been identified.
15 With
the broadening of the professional base from which 'approved clinicians' and
'approved mental health professionals' could be drawn, both roles could potentially
be fulfilled by professionals from the same professional discipline, limiting
their independence. The training of professionals for both categories will need
to encompass specific requirements for the roles in order to retain
independence and objectivity in the decision making process and to ensure that
both the social care needs and the treatment needs of patients are taken into
account.
16 We have
concerns that, whereas the initial application to detain a patient in hospital
for treatment under section 3 will continue to be based on the recommendations
of two registered medical practitioners, the decision to extend that detention
under section 20 will be based only on the opinion of the responsible clinician
(who may not be a registered medical practitioner). The Draft Code of Practice makes it clear that the approved
clinician training is 'not intended to equip a person with the competence to
carry out the professional duties of a member of another profession'. We
therefore have concerns that the responsible clinician would not necessarily
have the appropriate competence to decide whether continued detention was
justified. We welcome the amendment made in the House of Lords that ensures
that extension of detention be agreed by a responsible clinician and a medical practitioner.
Part III provisions
17 The
concern expressed in paragraph 16 above, in relation to the extension of
detention, also applies in relation to a hospital order under section 37
(without restrictions), where the court's initial decision will be based on the
evidence of two registered medical practitioners but the decision to continue
the order will be made by the responsible clinician.
18 There
appears to be an inconsistency in the amendments to section 35 (remand to
hospital for report on accused's mental condition). The requirement that the
court must have evidence from a registered medical practitioner on which to
base a decision to remand in hospital for a report is retained (subsection 3a).
However, the report on the accused's mental condition may then be prepared by
an 'approved clinician', who would not necessarily be a registered medical
practitioner (subsection 4). We have concerns about the process of ensuring
that approved clinicians would have sufficient training, experience and
expertise necessary to conduct the assessment and writing the report for the
court. This confusion could further
undermine the use of this already underused section of the Act.
S 35
19 Section
35 is currently not available to magistrates' courts in respect of a person
charged with an indictable offence. We believe this to be an anomaly which
should be rectified.
Part X provisions
S136
20 We
remain concerned about the use of police stations as the 'place of safety'
under s136 of the Mental Health Act 1983 believing them to be inappropriate. In our survey of Court Diversion and Liaison
Schemes we found that despite guidance within the Code of Practice recommending
the preferred use of hospital as a place of safety, 34% of schemes said that their
area was using police stations as the sole 'place of safety' and a further 40%
had no joint policy between the health service and police agreeing on 'place of
safety' procedures (Nacro, 2005).
The Mental Health Bill 2004 allowed for
changes to the 'place of safety' during the period of detention to take account
of changing circumstances and to ensure more rapid assessments. We believe that
police stations should be placed last in a hierarchy of places of safety within
the Bill - in the same way that the Bill defines 'nearest relative' - rather
than relying on guidance within the Code of Practice. While we would not want to
see repeated moves between 'places of safety', as proposed in the 2004 Bill,
there should be flexibility within the 'place of safety' to take account of circumstances
which might cause deterioration in condition; for example delays in accessing
assessment, which should prompt a move to hospital.
References
Browne, D. (1990) Black People,
Mental Health and the Courts (Nacro, 1990)
Churchill, R., Owen, G., Singh, S. and Hotopf, M (2007) .International
Experiences Of Using Community Treatment Orders (Dept of Health)
Department of Health
(2003) Inside Outside
Department of Health (2007)
Count Me In,
Howerton, A., et
al. (2007) 'Understanding help seeking behaviour among male offenders: a
qualitative interview study' (British Medical Journal 334 (7588):303-306).
Nacro (2005) Findings of the 2004 survey of Court
Diversion/Criminal Justice Mental Health Liaison Schemes for mentally
disordered offenders in England and Wales
National Institute for Mental Health in England (2003) Personality
disorder: no longer a diagnosis of exclusion: Policy implementation guidance
for the development of services for people with personality disorder.
National Confidential Inquiry into Suicide and Homicide by
People with Mental Illness (2006) Avoidable Deaths: The five year report of
the national confidential inquiry into suicide and homicide by people with
mental illness (University of Manchester)
Sainsbury Centre for Mental Health
(2002) Circles of Fear
April 2007
