Memorandum submitted by the British Association of Social Workers (MH 25)
1. The British Association of Social Workers (BASW) is the professional body for social workers in the UK and is a core member of the Mental Health Alliance. BASW, in partnership with the ASW Leads' National Network and with the assistance of the Alliance, promoted a total of nine amendments in the Lords on issues related to the role presently performed by the Approved Social Worker (ASW). ASWs are local authority officers who are responsible for making applications for compulsory admission to hospital under the civil provisions of the present Act and for effecting the admission. They assess in the order of 72,000 people per year of whom around 47,000 will subsequently be detained.
2. This memorandum specifically addresses the changes made by the Lords in respect of impaired decision-making, treatability and supervised community treatment; issues around the processes of admission to hospital; the human-rights implications of the replacement of ASWs by Approved Mental Health Professionals (AMHPs); and the effects of the government's policies on workforce morale.
The changes made to the Bill by the Lords
3. We are now coming to the end of a nine-year process of reform of mental health legislation, and this is the last chance to achieve a workable consensus. However, it is clear from the negative response of Rosie Winterton, in her speech to the Local Government Association on March 1st, to the changes made to the Bill by the Lords that Ministers have not shifted their ground from the beginning of the process, when they set the whole tone of the subsequent debate by appointing an Expert Committee to lay the groundwork for the review but then making it abundantly clear at the launch event that only one way forward was acceptable.
4. Since then the government has failed to win over any of the major stakeholders, and indeed has succeeded only in uniting them in opposition; its proposals have been found seriously wanting by a Parliamentary Scrutiny Committee; and it has been forced to withdraw two draft Bills. Despite this, it has now returned with proposals to amend the present Act which incorporate some of the most controversial aspects of the abandoned drafts. In the Lords, these proposals were subjected to an unrelenting assault, with virtually no speakers other than the Ministers themselves in favour, and the government lost six of the seven votes.
5. The Lords did in fact go a considerable way to bridging the gap between the government and its critics. They recognised, for instance, the government's legitimate concern that patients should not be able to avoid detention by refusing to co-operate with treatment; they took it at its word on Community Treatment Orders, limiting them only to the "revolving door" group for which Ministers say they are designed; and they acknowledged that patients should not have an unfettered right to choose their Nearest Relative, and proposed a compromise formula.
6. All in all, the effect of their amendments would be to bring the English and Welsh law broadly into line with the 2003 Scottish Mental Health Act, which is now in force. Despite this, however, Ms Winterton maintained that there would be "very real risks if the amendments are not reversed." If that is the case, then the Scots are facing similar risks, but do not appear to be worried about them; their Act appears to be working well and enjoys broad support from politicians, users, carers, and professionals. It does, for instance, incorporate the "impaired decision-making" test introduced by the Lords, but the Scots do not appear to have found, as Ms Winterton claimed, that it has "expanded the right to suicide." She appeared to be confusing two distinct issues, referring to cases of "young women with borderline personality disorder who are suicidal but do not have impaired judgement." They might well not have impaired capacity, if they were fully capable of comprehending the issues, but they would almost certainly have impaired judgement as a consequence of their disorder. If a person's judgement is not impaired, they cannot be suffering from a serious mental disorder and no ASW would be prepared to admit them compulsorily to hospital, and it seems quite remarkable that a Minister should be suggesting that they ought to do so.
Evidence of risk to the public
7. Ms Winterton's concerns would carry more weight if there was any sound evidence that the admission criteria of the present Act do not provide sufficient protection to the public. Social workers are inherently sympathetic to such concerns, since professionally they have a duty to families, carers and the wider public as well as to the "identified patient" and they have to deal with the victims of violence or abuse. However, they have not been convinced of the strength of the government's argument, which has not been supported by any significant body of professional opinion or by research evidence. Although ASWs want to see a number of improvements to the present law, most of which have been rejected by the government, they have not complained that their existing powers are insufficient for the situations with which they are being asked to deal. They not infrequently find themselves unable to admit someone who they think ought to be admitted, but this is almost invariably through lack of resources rather than lack of powers.
8. Since the late 1980s all homicides committed by people known to mental health services - which average about 50 a year - have been the subject of independent inquiries, the reports of which are published. These reports are the best evidence of avoidable risks to the public, since one of their primary functions is to identify changes which could be made to prevent similar incidents from occurring in the future, but they have very rarely identified any shortcomings in the law as it stands, as distinct from a failure to use powers which are already available. John Barrett, the report into whose care was published in October 2006, was able to kill Denis Finnegan despite being subject to a restriction order overseen by the Home Office, and the government is not proposing any change to this part of the Act. The Michael Stone case has repeatedly been cited by Ministers over the last eight years as an example of why the Act needs to be changed, but when the report was finally published last year it did not find the law to have been at fault.
9. The core of the government's concern is that, as Ms Winterton put it, "the treatability test in the existing Act has on occasions been misinterpreted as meaning that patients can only be detained if they can be cured" and that, if the Lords' amendments are not reversed "patients with severe personality disorder will continue to be turned away from services because they are deemed untreatable." It is certainly the case that such people have been and still are being turned away from services for that reason, but that is not due to any weakness in the Act or to any misunderstanding of it.
10. Mainstream mental health services are designed primarily to treat people with mental illness, not severe personality disorder. Until recently there were very few specialist treatment facilities for this group even in the secure forensic system, and so it was perfectly reasonable for psychiatrists to conclude that they were "untreatable," since this was effectively the case within the context of the services which were available. To do otherwise would have been to expose other patients to disruptive and dangerous behaviour which the staff could do nothing to ameliorate, and to block for indefinite periods scarce beds urgently needed by people with treatable conditions. As a feature in April 8th's Observer graphically illustrated, many acute mental health units have space only to admit those with the most severe forms of mental illness, and even then are frequently forced to discharge them before they are fully well in order to make room for others.
11. However, psychiatrists (and ASWs) have always been well aware that in excluding people with severe personality disorders on the grounds that they are untreatable they are interpreting the Act very narrowly. As Baroness Murphy, a distinguished psychiatrist, pointed out in the Lords, "the law has been used as an excuse." If suitable treatment facilities are available, "treatability" will be redefined accordingly, since the excuse will no longer be needed. Since 1999 the government's DSPD (Dangerous Severe Personality Disorder) Programme has been developing such facilities within the secure hospital and prison services, and in " Personality Disorder - No Longer a Diagnosis of Exclusion" published in 2003 it set out plans for local services for people with lesser degrees of personality disorder.
12. This, rather than a change in the law, is the right approach. The amendment on "treatability" passed by the Lords is in any case less likely to be "misinterpreted" than the provision in the present Act, and in particular it makes it clear (insofar as it was not already fully understood) that treatment need only lead to an alleviation of the condition, not to a cure. The only people who could reasonably be excluded from detention in hospital under this amendment are those whose conditions are so intractable that they would not respond at all to any current therapies. If ( as many social workers would accept) there are people who do need to be detained indefinitely for the protection of the public, but with little likelihood that they could benefit from therapy, this is a role for the prison service not hospitals, and the use of discretionary life sentences plus the development of DSPD units within the prison system is the most appropriate way forward. To ask doctors and nurses to act as jailers to people who they cannot treat is to ask them to break their codes of ethics, as well as being a waste of scarce professional resources.
Supervised Community Treatment
13. The Community Treatment Order (CTO), as amended by the Lords, is also sufficient to protect the public from those patients with severe and enduring mental illness who become dangerous due to refusal to continue medication or to accept supervision once discharged, and it meets the government's stated aims for this provision as reiterated by Ms Winterton - "it will deal specifically with what are often dubbed revolving door patients." Nevertheless, she attacked the Lords' decision to limit the power to this group alone, in terms which are bound to fuel suspicions that the government's aims are actually far wider than it has admitted, bearing in mind the current severe shortage of psychiatric beds. She said that "CTOs will be good for the patient who can return earlier than they might otherwise have done to their homes....the result of the amendments will inevitably be either that patients have to spend longer in hospital, or be discharged without proper supervision....far fewer patients will benefit from this essential change."
14. The Regulatory Impact Assessment also assumes that the government's version of the CTO will result in a significant reduction in bed usage. It would appear, therefore, that the government views CTOs as a way by which patients generally, not just the "revolving door" group, can be discharged part-way through their treatment when they are still not well enough to accept after-care voluntarily. This is a policy designed to save money, not to protect the public; there should be a sufficient number of beds to ensure that patients can remain in hospital until they are genuinely well enough to be discharged, and the support and monitoring they need should then be available whether or not they are on a CTO.
Risks arising from the admission process
15. The shortage of beds creates a far greater risk to patients, carers and the public than any alleged misinterpretation of the treatability test, and the government's public-safety case would be more credible if it showed more concern about it. In the unit featured by The Observer, which is not untypical, bed occupancy is 150%, with patients who are still ill having to be sent on leave in order to free their beds for those who are more ill, and this kind of situation, together with increasing difficulty in obtaining assistance from police and ambulance services, has meant that ASWs often experience long delays in getting patients into hospital when they have been assessed as needing immediate compulsory treatment. They have to organise 27,000 removals from home to hospital per year, and it can sometimes take several weeks to effect an admission, during which time the patient is untreated and deteriorating, and it is often the most potentially violent and dangerous who wait the longest since these are the patients for whom it is most difficult to get a bed and to organise the necessary police and ambulance support for the admission.
16. This is not just a question of lack of resources. There are contributory legal difficulties, and in the Lords BASW and the ASW Leads' Network sponsored four amendments designed to address them. The initial response of Ministers was effectively to deny that such problems existed; then at Report Stage, having been faced with incontrovertible evidence, to admit that they did, but to say that amending the Act would make no difference, despite the fact that the professionals dealing with these problems believe very strongly that it would. At present, responsibility for effecting an admission and for ensuring the safety of patient and public rests solely on the ASW in person, the statutory bodies which control the resources having no legal duties and therefore no incentive to do anything to resolve the difficulties. The mental health Trusts in particular have no legal responsibility for patients until they have actually been accepted onto a ward, and there is also uncertainty around police powers of entry to private premises which often results in their refusing to assist.
17. The government's reluctance to tackle this very real area of risk to the public, families and carers, about which effective action could be taken, contrasts with its apparent determination to change other aspects of the law which relate only to small numbers of people ( the government's own estimate is that the DSPD group amounts to no more than 2000 in total, most of whom are already in hospital or prison) and which will have little impact on risk. It can therefore present itself as the champion of public safety without having to address the very considerable resource implications of increasing the availability of acute psychiatric beds or of providing a safe and effective system for admitting disturbed and dangerous patients to them.
Loss of the independent ASW
18. The government has also emphasised its commitment to patients' rights, and in her speech on March 1st Ms Winterton was at pains to stress that "a decision to deprive someone of their liberty and to provide treatment without consent - even for the best of reasons - can never be taken lightly. It is why we have mental health legislation which puts in place strict safeguards to make sure that people are detained and treated without consent only when absolutely necessary." Despite this, however, the government appears willing to compromise, in the interests of convenience, a vitally-important safeguard in the initial admission process, which may bring its compliance with human-rights law into question.
19. In the present Act, the application for admission is made by an ASW, who must be an officer of the local authority and is therefore independent of the detaining hospital and the psychiatrist. This arrangement is, however, becoming more difficult administratively as local authority mental health services are being transferred to mental health Trusts, and under the revised Act the government envisages that, whilst the local authority will still be responsible for the training and approval of the ASW's successor the Approved Mental Health Professional (AMHP), it will be able to transfer the operational responsibility for the AMHP service to the Trust which runs the hospital. Given that the AMHP need not be an officer of the local authority, and may indeed be a nurse employed by the Trust, this will effectively remove the structural independence which is fundamental to the present role.
20. ASWs are often critical of the policies of the new Trust Crisis Teams, fearing that targets to reduce admissions may lead to decisions which put the public at risk or which place excessive burdens on carers. However, the Minister in the Lords made it clear that the government thought it desirable for the sake of efficiency for these teams to make their own decisions about the use of compulsion without their being subject to scrutiny by a mental health professional independent of the Trust. AMHPs, they argued, could be trained to act independently, through a 60-day course, regardless of who employed and managed them - something which no-one actually working within the mental health services seriously believes. This cavalier attitude to a legal process which can result in someone losing their liberty for up to six months is in stark contrast to the policy in Scotland, where the independence of the ASW's equivalent has not only been retained but considerably strengthened.
21. The government's handling of the legislative review over the last eight years has squandered much of the goodwill generated by its reforms of mental health services more generally, which have been informed by a much more progressive ethos, and has largely alienated the workforce which will be responsible for implementing the revised Act. Rather than continuing to defy the vast preponderance of opinion and evidence ranged against them, Ministers should now be seeking compromise and building bridges with the stakeholders whose support they will need in order to ensure that the revised legislation works effectively and that it does indeed, in Ms Winterton's words " strike the right balance between getting treatment to those who need it, putting in place patient safeguards and minimising the risk to the public."