Memorandum submitted by The Zito Trust (MH 45)
The Zito Trust is an independent mental health charity which was set up in 1994 following the death of Jonathan Zito in 1992. The Trust provides a support and advice service for victims of mentally disordered offenders and represents the interests of victims in lobbying for reform to mental health policy and law. The trust is not a member of the Mental Health Alliance.
The Zito Trust has the following observations to make about the Mental Health Bill 2006 and the amendments passed by the House of Lords.
1 Personality Disorder
1.1 We welcome the broader definition of mental disorder as this will enable mainstream services to provide appropriate treatment to a group of people who have been consistently labelled as 'untreatable'. It has become clear to the Trust that the medical model which is now the basis of modern psychiatry has created an underclass of potential service users who have complex health and social needs and who have as much right to treatment as anyone else. It is no longer justifiable to write these people off as untreatable. Advances in treatment options should be reflected in a culture of inclusion (see NIMHE's Personality Disorder: no longer a diagnosis of exclusion, and the work of John Livesley and others on personality disorder). Like many others, we have become increasingly alarmed by the use made of prisons to criminalise people with a diagnosable range of mental disorders simply because the medical model cannot help them The case of Michael Stone is often cited as driving the Government's reforms in this area, yet we have been contacted over the years by a significant number of families who have expressed great concern about the position a family member has been placed in, having been diagnosed by a psychiatrist as having a personality disorder and then rejected from NHS services.
1.2 The legal 'treatability' loophole in the Mental Health Act 1983 is an unnecessary (and sometimes dangerous) obstacle to services for people with complex needs. In May 2000, 12 year-old Diego Pineiro Villar was stabbed 30 times and killed in Covent Garden by Alexander Crowley. At an earlier court hearing, before the homicide, the judge expressed his frustration that he could not give the defendant a hospital order because he found himself legally unable to do so. He was therefore given bail, during which period he killed Diego Pineiro Villar.
1.3 Critics of the Government's proposed reforms in this area often point to the small number of cases involving people with personality disorder in the published independent homicide inquiry reports. That there are a small number of cases is because homicides committed by people with personality disorder are not considered by mainstream mental health services to be 'mental health contact' cases, so they do not fall within the remit of the guidance on inquiries issued by the Department of Health and, therefore, have not been subject to independent inquiries. Homicides committed by people with a DSM IV diagnosis of personality disorder are also excluded from statistics which have been used to purport to show that that the number of homicides committed by 'mentally ill' people has gone down (or not gone up). Again, they are excluded because they are not considered relevant to mental health services. Look at the prevalence of mental disorder in the prison population to see the consequences of excluding people with personality disorder.
1.4 There is also some evidence that difficult patients with psychotic illnesses who are, in principle, treatable under the medical model of psychiatry, have been re-diagnosed as having a personality disorder. This allows mental health services to reject some mentally ill patients who are disruptive, potentially violent and difficult to manage.
1.5 These are some of the principal reasons why we do not believe it is necessary or advisable to include a different kind of treatability loophole to replace the one currently widely used in the Mental Health Act 1983. To expand the concept of 'appropriate treatment', for this group of people in particular, is tantamount to offering clinicians an excuse for not offering treatment and, for the reasons stated, we believe this will a retrograde step which will lead to more of the same rather than a modernisation of services to reflect advances in treatment options.
2 Community Treatment Orders
2.1 We are concerned that amendments passed by the House of Lords will make any system of supervised community treatment virtually impossible to implement, and certainly ineffectual. Perhaps that is their intention. For years we and others have pointed out the damage caused to service users and the general public by the revolving door patient. This is why we disagree strongly that anyone subject to a CTO should have been in hospital twice under section. Taking into account possible previous admissions to hospital on a voluntary basis, what we have here is the picture of a relapsing patient and services dependent on hospitalisation before other more therapeutic means of managing care (in the community) become available. The conclusions to be drawn from House of Lords amendments are that:
· People must present as relapsing, revolving-door patients before they can be given a CTO
· Clinicians must prove they will stop taking their medication if discharged into the community
· Clinicians must prove that the individual's decision-making ability is significantly impaired
· CTOs will only be available to those at risk of harm to others; risk of harm to self is not relevant
2.2 In our view, these obstacles will put more people at risk. Some service users (between 1200-1300 a year), although in contact with services and known by them to pose a risk to themselves, will be left to commit suicide, as CTOs will not be available to mental health teams in order to manage their care in the community. For those who are assessed as posing a risk to others, it will be virtually impossible to 'prove' they will not take prescribed medication in the community. Finally, having to prove significantly impaired decision-making before being able to issue a CTO destroys the rationale for the therapeutic use of supervised care in the community.
2.3 Whereas the Government's proposals, as set out in three bills (2002, 2004, 2006), introduced supervised community treatment as an innovative and therapeutic means to manage the care of those who would normally be confined to hospital, the House of Lords amendments have reconfigured these proposals into the 'psychiatric ASBOs' that everyone deplores. Presumably the reason for this is (a) to make them unworkable and (b) a reluctance to acknowledge the history of our community-based mental health services since the late 1980s. This reluctance is further underpinned by a disproportionate focus on the civil liberties of the individual service user and fails to acknowledge or admit the civil liberties (the right to privacy and family life) of individual members of the public, particularly family members and carers who are frequently left in situations where they are at risk and where services are powerless to intervene. The police, mental health services, local authority social services, housing associations etc always give the same response to these individuals who contact them in a state of fear and anxiety: 'I'm sorry. There is nothing we can do until something happens.' Our view is that the amendments passed by the House of Lords do nothing to improve this situation.
2.4 In 1998, The Zito Trust published its research into non-compliance with medication by mentally disordered offenders.1 We studied the contents of 35 independent published homicide inquiry reports and found that in 57% of cases non-compliance with medication was considered to be a contributory factor in the breakdown of care which led to the homicide. It is also worth mentioning that in this publication (Chapter 2), the Trust describes the proposals put forward in 1993 by the Royal College of Psychiatrists for the introduction of Community Supervision Orders (CSO) as a means of dealing directly with 'revolving-door' patients. The CSO would have sanctioned the compulsory supervision of patients in the community who had previously been compulsorily detained in hospital. It was recognised that the number of patients affected by CSOs would be small but that they would be 'difficult to manage'.
2.5 Since 1994 there have been over 300 published inquiry reports into homicide committed by people in contact with mental health services. Non-compliance with medication in the community is a consistent issue in these reports. As Professor Maden points out in his more recent review of inquiry cases, discussed in his book Treating Violence2 (published in 2007), 'Non-compliance with medication was a major problem and it featured in most of the Inquiry reports.' We recommend Professor Maden's book to everyone engaged in this debate. It quashes, for example, the idea that mental illness is somehow commensurate with other medical illnesses, such as diabetes and cancer, when it comes to defining and describing what powers should be available to clinicians under mental health legislation. How many people with diabetes who do not take their medication, he asks, end up killing members of the public? There are, of course, circumstances when public health legislation confers powers to protect third parties from the spread of contagious diseases. Tuberculosis is a well known example.
2.6 As for the efficacy of CTOs, opponents claim that the recently commissioned review from the Institute of Psychiatry (IOP) shows that CTOs are ineffective. Commentators and critics alike quote selectively from a summary of this research to support their contention(s). For example, writing in The Guardian on 14 March 2007, Mary O'Hara uses the following quotation: 'There is no robust evidence about the effects of CTOs on key outcomes.' This partial quotation omits the important preceding qualifier that 'Overall, although some stakeholder views [about CTOs] are positive...' The IOP review also states in its summary that 'It is not possible to state whether community treatment orders are beneficial or harmful to patients.'
2.7 Writing in The Observer on 22 April 2007, in response to the killings in Virginia, Professor John Monahan, one of the world's leading experts in the field of violence and mental disorder, writes:
'can legally enforced outpatient treatment prevent violence? Evidence is mixed. However, one study found that if people with mental illness were on a community treatment order for at least six months, they were much less likely to be violent than people who were not...or on it only briefly.'
2.8 It is clear that if CTOs are to have any impact at all on the quality of mental health service provision, measured by a decrease in relapse and hospitalisation for patients considered to be at risk of harm to themselves or to others, they must be available as an alternative to hospital and as a therapeutic means of ensuring reciprocity between the mental health team and the service user. The therapeutic aim will be subverted if clinicians have to prove significantly impaired decision making as only those who are relatively unwell will be eligible, whereas the original purpose was to ensure that those who had been treated and had responded well to treatment would be able to live in the community under a CTO rather than remain in hospital. At the point of discharge from hospital, the majority of patients will have been stabilised and considered to have unimpaired decision-making capacity, and therefore not eligible to move into a community setting under a CTO. Presumably, where there is deemed to be a risk of harm to self or others, or of non-compliance with prescribed medication, the individual will have to be kept in hospital beyond the point at which he or she could have been discharged were it not for the amendments passed by the House of Lords.
2.9 It is worth ending this section by including an excerpt from one of the most recently published independent inquiry reports: The report of the independent inquiry into the care and treatment of John Barrett, published in November 2006 following the death in Richmond Park of Denis Finnegan in 2004. A number of commentators and critics have tried to enlist this inquiry as formal proof that a tightening up of the law is not required as it would have made no difference in the management of John Barrett's care. The truth is that John Barrett was already a conditionally discharged restricted patient under the Mental Health Act 1983 and certainly a change in his legal status as a restricted patient would not per se have prevented the death of Denis Finnegan. But John Barrett was a restricted patient as the direct result of the index offences he committed in 2002.
2.10 In January 2002, in an outpatient clinic at St George's Hospital, south London, John Barrett stabbed three people. The principle victim, a complete stranger, was stabbed in the chest three times and as they wrestled on the ground was stabbed twice more in the back. Staff and members of the public intervened as Barrett tried to stab the principle victim in the chest again. One staff member was injured by the knife, as was a third victim, a male patient. John Barrett's history of contact with mental health services goes back to 1997, so he was well known to them.
2.11 Regarding the management of John Barrett's care during this period of contact, the report makes the following observation at paragraph 37 on page 211:
'In our view, the only means of securing John Barrett's compliance with treatment as an out-patient would have been a community treatment order, which is not available under the Mental Health Act. We note that the Government is now proposing to amend the 1983 Act to introduce what will be known as supervised community treatment. The Department of Health's briefing sheet makes clear that the proposed measure would cover someone who has a chronic mental disorder that has stabilised following treatment in hospital. It seems likely that had such a power existed in 2000, its use would have been recommended by [Barrett's psychiatrist]. It also seems likely that, had it been used, such a provision would have secured John Barrett's compliance with depot anti-psychotic medication for some time following his discharge.'
We cannot think of a clearer example and statement of the rationale for CTOs. It is also reasonably clear that had Barrett's capacity for decision-making been assessed at the relevant time, it would have been judged (as indeed it would in many other cases) as unimpaired, and it would not have been legally permissible to implement a CTO.
3.1 Progress has been made with the Trust's work over the years to extend the rights to information which victims of prisoners have, to victims of mentally disordered offenders. The Domestic Violence, Crime and Victims Act 2004 (DVCVA) gives victims of mentally disordered offenders who are on restriction orders under the Mental Health Act 1983, rights to information and also representation at mental health review tribunals. The Trust would like to see an amendment to the DVCVA to extend these rights to victims of mentally disordered offenders who are not on restriction orders but who have nevertheless committed serious crimes involving violence and/or sexual offending.
1 Howlett M. Medication, non-compliance & mentally disordered offenders: the role of non-compliance in homicide by people with mental illness and proposals for future policy. Hay on Wye. The Zito Trust; 1998.
2 Maden A. Treating Violence : a guide to risk management in mental health. Oxford. Oxford University Press; 2007.