Memorandum submitted by Nacro (MH 15)
· 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.
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.
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.
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
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.
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