Memorandum submitted by Tim Loughton MP and others (MH 68)

Introduction from Tim Loughton MP - Shadow Minister for Health and Children
 

The following is a transcript of an informal oral evidence session held in Committee Room 16 of the House of Commons on Monday April 23rd organised by Opposition MPs to inform better the deliberations of the Standing Committee of the Mental Health Bill due to start its scrutiny on April 24th, as well as all those in Parliament who have an interest in this controversial piece of legislation. With the help of the Mental Health Alliance and others, twenty-five witnesses gave evidence to a committee made up of MPs and Lords representing the Conservative Party, Liberal Democrats, Crossbenchers and Welsh Nationalists. Invitations to serve on the committee were extended to all former members of the Pre-legislative Scrutiny Committee, the Commons Standing Committee and Lords involved in the debate of the Bill during its passage in that House. Several Labour members were invited, including the Minister herself, but none attended.

 

The session was open to the public and witnesses were asked to give evidence and take questions on the six main areas of contention which gave rise to amendments being passed in the Lords in the face of Government opposition. This exercise was intended to focus on the new parts of the Bill which resulted in a very different piece of legislation coming to the Commons to that which the Government had presented in the Lords. In particular it was thought useful to give a sizeable amount of our time looking at Community Treatment Orders in the face of the comprehensive new research prepared by the Institute of Psychiatry on international experiences of CTOs which was not published until the day after the Mental Health Bill completed its stages in the Lords.

 

It was made clear at the outset that this committee sat as an informal committee with a recording and transcript of the proceedings made by House of Commons staff on a private basis funded by the Mental Health Alliance. The transcript will be presented to members of the Standing Committee of the Mental Health Bill and submitted to the Scrutiny Unit to be considered for inclusion in the Hansard record of the proceedings of the Standing Committee.

 

COMMITTEE MEMBERS:

 

Tim Loughton MP (Chairman)

Shadow Minister for Health and Children, Member of Mental Health Bill Standing Committee and Member of Joint Scrutiny Committee on Mental Health Bill

 

Sandra Gidley MP

Liberal Democrat Health Spokesman and Member of Mental Health Bill Standing Committee

 

Earl Howe

Shadow Health Minister

 

Lord Carlile

Chairman of Joint Scrutiny Committee on Mental Health Bill

Angela Browning MP

Member of Mental Health Bill Standing Committee and Member of Joint Scrutiny Committee on Mental Health Bill

 

James Duddridge MP

Member of Mental Health Bill Standing Committee

 

Charles Walker MP

Member of Mental Health Bill Standing Committee

 

Hywel Williams MP

Member of Joint Scrutiny Committee on Mental Health Bill and Member of Mental Health Bill Standing Committee

 

Baroness Eccles

Member of Joint Scrutiny Committee on Mental Health Bill

 

Baroness Meacher

Crossbench Peer

 

Lord Williamson

Convener of Crossbench Peers

 

WITNESSES:

 

 

AGE APPROPIRATE TREATMENT

 

Kathryn Pugh

Head of Policy, YoungMinds

 

Claire Phillips

Director of Policy & Research at Office of Children's Commissioner

 

Marcelle Aarons

Approved Social Worker, New Beginning

Maurice Vaillancourt

Parent of Service User

Antonia

Young Service User

Lois

Young Service User

 

COMMUNITY TREATMENT ORDERS

 

Dr Gareth S Owen BSc MBBS MRCPsych
Clinical Researcher Institute of Psychiatry
Honorary Specialist Registrar - South London and Maudsley NHS Trust

 

Professor Graham Thornicroft BA MSc PhD FRCPsych FMedSci
Professor of Community Psychiatry
Head of the Health Services Research Department, Institute of Psychiatry,

King's College London

 

Tony Maden MD MRCPsych

Professor of Forensic Psychiatry, Imperial College London

Clinical Director DSPD Service, West London Mental Health NHS Trust

 

Simon Lawton Smith

Senior Fellow in Mental Health the Kings Fund

 

Dr Rowena Daw

Vice Chairman Mental Health Alliance

 

Kay Sheldon

Service User

 

 

EXCLUSIONS FROM THE DEFINITION OF MENTAL DISORDER

 

Mr Chinyere Inyama

Senior Paartner at Inyama & Co. Solicitors - specialist mental health law practice

Legal member of the Mental Health Review Tribunal

Member, interviewer & assessor of the Law Society Mental Health Review Tribunal Panel

Assistant Deputy Coroner for Essex and Thurrock

 

Dr Eric Metcalfe

Director of Human Rights Policy

JUSTICE

 

Dr John O'Grady

Consultant forensic psychiatrist in Hampshire

Chair of the Forensic Faculty of the Royal College.

Member of DoH's Mental Health in Prisons Expert Group

 

 

IMPAIRED DECISION MAKING

 

Mr. Paul Bowen
Barrister at Doughty Street Chambers, London, specialising in public and human rights law, with a particular interest in health, mental health and disability issues.

 

Dr George Szmukler

Consultant Psychiatrist, Maudsley Hospital

Chairman, King's College London Health and Society Network

Formerly, Dean of the Institute of Psychiatry, King's College London.

 

Dr Tony Zigmond

Consultant Psychiatrist

Honorary vice-president, Royal College of Psychiatrists

 

 

TREATABILITY

 

Dr David Hewitt 

Partner, Hempsons Solicitors

Visiting Fellow at the University of Northumbria and the University of Lincoln 

 

Professor Nigel Eastman

Professor of Law and Ethics in Psychiatry, University of London Honorary Consultant Forensic Psychiatrist, St George's Hospital, London

 

Professor Kwame McKenzie

Professor of Mental health and Society University Central Lancashire

Senior Lecturer in Psychiatry, University College London

Consultant Psychiatrist, Barnet Enfield and Haringey NHS Trust

Member of Ministerial Advisory Group on BME mental health

 

 

RENEWAL OF DETENTION

 

Lucy Scott Moncrieff

Mental Health solicitor in private practice

Member of the Law Society's Mental Health and Disability Committee

 

Dr Shantanu Datta

Deputy Chairman of the BMA's Psychiatric Sub-Committee

Specialist in Old Age Psychiatry at Birch Hill Hospital, Rochdale

 

Peter Kinderman

British Psychological Society

 

Ian Hulatt

Mental Health Advisor

Royal College of Nursing

 

 

PROCEEDINGS:

 

The Chairman (Tim Loughton MP): Welcome everyone. I will be chairing this impromptu committee. Andrew Lansley MP, the Shadow Secretary of Health for Health, and Sandra Gidley MP wish to make some introductory remarks and then we shall get going with what is a very tight timetable.

 

Andrew Lansley MP: I thank you and your team, Tim, for organising the meeting and also parliamentary colleagues from both Houses for participating. After the 45 hours of debate in the House of Lords, the Commons is now considering the Bill, which is very different from the Bill that was introduced into the House of Lords. I am sure that their Lordships will acknowledge that there has never yet been a piece of legislation that is incapable of improvement. The Commons has two important tasks ahead: first, if the Bill is capable of improvement, then securing such improvement. Secondly, as will become obvious during the debate and in light of the way in which amendments have been submitted to the Standing Committee, it is clear that the Government are intending to reverse all the principal amendments made in the House of Lords.

When we look at the amendments, which we shall do in some detail in this committee, they will bring up issues of policy which will sometimes be confusing. On the face of it, the Government's policy and that adopted by the Lords seems to be the same, such as in relation to community treatment orders. Our intention is that they should be limited to those styled as "revolving door patients". The Lords went to some trouble to construct the Bill around such a definition.

We must work out whether there are differences of policy and, if there are, to expose them. If there are not differences of policy, matters come down to tricky questions of whether the definitions and structure of the legislation will have the effect that they are intended to have. It is always possible to work that through and the more that we in the Commons are helped by expert organisations considering with care how the definitions would work, the better it will be both for when the Bill is considered in the Commons and when it returns to the Lords.

It is always important to set the structure of the legislation in the context of clinical practice. During the debate on Second Reading in the Commons, Tim and I clearly had discussions with those on the Government Front Bench about the extent to which it was necessary to have supervised community treatment orders in place so that the appropriate patients can access treatment. We argued that specific safeguards and limitations were needed in respect of supervised community treatment orders of the sort that the Lords proposed and that that would give far greater confidence to patients, their families and carers that they were not accessing services in a climate of coercion.

That does not mean that patients do not access services, but the question arises as to whether there are difficulties in accessing services and whether enhanced supervision is required in the community. Furthermore, to what extent is supervised community discharge being used; to what extent is supervised discharge of patients into a community and supervised community treatment available with coercion? Although the Bill is, in the Government's terms, a framework for bringing people under compulsion, it must always be set in the context of what is available in the community and how we can maximise the effectiveness of mental health services generally and, by doing so, minimise the necessity for coercion and compulsion.

I hope that, by discussing such matters in this committee, not only will you better inform the Standing Committee discussions, but that you will also produce something that will have an impact on hon. Members across the House. I say "across the House" advisedly because I hope that Labour Members will take some care to look at what we produce. I get the sense from the debates on Second Reading that significant numbers of Labour Members who, like us, just want to end up with a Bill that is effective and that will be something that we can live with for the next 25 years without feeling that it will have unintended consequences that we cannot live with. It is therefore very important that we create the best possible Bill and I thank everyone here for their participation in enabling that to happen.

 

Sandra Gidley MP: I endorse Andrew's comments. This is quite an unusual experience for me. Most of the Bills that I have worked on during my parliamentary career have been occasions when all parties have worked together to achieve a consensus, so this situation in which one party is actually dead set on not co-operating it somewhat unusual.

I thank Tim for organising the committee. It will form a useful basis from which we can all go forward. It is my regret that Labour Members are not present, because the meeting is a genuine attempt to get some cross-party working to achieve a better Bill. I do not understand why the Minister thinks that she knows better than the 79 organisations that comprise the Mental Health Alliance.

 

The Chairman: I thank everyone for coming along. We are on a tight timetable, which we have blown already, but I shall endeavour to keep us to order. I stress that this is not an official committee, but we thought that, in the interests of better informing the Committee proceedings of the Bill, we would set up a further witness sitting specifically to concentrate on the six areas that the Lords have amended because what we are about to scrutinise in the House of Commons is a very different Bill from what started in the House of Lords. It was on that basis that we set up this committee.

We have invited all the members of the pre-legislative scrutiny Committee chaired by Alex Carlile, which produced an excellent report. We invited all members of the Standing Committee in the House of Commons, and we sent a general invitation to members of the Lords involved in such matters, such as Baroness Meacher, Lord Williamson and Earl Howe. A couple of other people will join us this afternoon. We have fought to be a cross-party meeting, but unfortunately all the Labour MPs who were invited had reasons for not attending. The Minister has, during the last half an hour, written a letter explaining why she will not be attending-although we asked her to be the first witness today.

The proceedings are being recorded and a transcript will be made of what has been said. It will be forwarded to the Standing Committee to be written into the record and it will be submitted to be part of the Hansard record. Can people please be clear when you speak? When you speak, will you explain who you are for the record? We have split the proceedings into six main areas. The first area is about Age Appropriate Treatment. We have witnesses organised by YoungMinds and a representative from the Children's Commissioner Office. I ask them to make their statements and answers to questions as concise and succinct as possible. I am sorry if we have to cut you off, but it is the quality and the punchiness of your contributions that will count and will get your points over as effectively as possible to enable us to use them in our proceedings in Standing Committee. Does anyone wish to make an opening statement? Some witnesses gave some fantastic testimonials at the meeting organised by YoungMinds. Unfortunately, that was not recorded, but we now have the opportunity to make some of those points again.

 

AGE APPROPRIATE TREATMENT

Kathryn Pugh (Head of Policy and Innovation, YoungMinds): Each of us has prepared a statement because we all represent different perspectives on this important amendment.

 

Claire Phillips (Director of Policy and Research at Office of Children's Commissioner): I wish to draw attention to the fact that this was the first piece of research that we commissioned because we feel that it is such an important issue and that young people have the right to age appropriate care. That is clear from the United Nations Convention on the Right of the Child and the national service framework standard on child and adolescent mental health services, which address the issues raised in the Kennedy Report on cardiac surgery at Bristol Royal Infirmary.

We are concerned that, despite massive investment in child and adolescent mental health services and having a clear target, there is still a long way to go. When talking to young people-some of whom we will hear today-we find that services were not age appropriate and that quite a lot of young people who were accommodated in adult accommodation facilities were badly let down. They were frightened. They did not feel safe. In some cases, they had their property stolen and the environment was totally inappropriate. Members of the staff were unfriendly. Some of them had no education - as is an inalienable right under UN convention. Above all, the environment was not therapeutic so the young people were not even given proper care.

We want the amendment tabled by the House of Lords retained and consider that it is very important. We understand that legislation is not always the usual mechanism for specifying how services should be delivered, but there are clear arguments for retaining it in this case. We do not think that the code of practice would achieve the commitment to change services that we want to see. We really want the provision retained in the Bill.

 

Kathryn Pugh: YoungMinds has a long-track record of interest and research into such a difficult area. We published "Whose Crisis?" and then worked with the Office of the Children's Commissioner on "Pushed into the Shadows". We receive on a regular basis emails and phone contacts from young people, parents and professionals asking for advice on how to handle the difficult issue of children on adult wards. The emails detail their traumatic experiences on adult wards in which they witnessed and experienced verbal, physical and sexual abuse.

I agree with Claire that the Government's policy is clear and unambiguous, but unfortunately it has been so for years and the policy has failed for years. We know from the figures that approximately 1,000 children are failed each year by such policies. We therefore utterly support the peers' amendments. To reflect on experiences as a Commissioner in the NHS, we used to have four categories in respect of spending commitments. Category 1 concerned whether we would be sued if we did not do it; category 2 was whether there was a target; category 3 was do we know we should be doing and category 4 is what we would like to do. During my entire time at the NHS, I never got beyond category 2. If you want matters to be changed, they must be placed in the law.

 

Marcelle Aarons (Approved Social Worker, New Beginning): I am based at a psychiatric adolescent in-patient crisis service based in north London. We cover five London boroughs and we only have 12 beds. At a grass roots level, we have made a huge impact in reducing the number of adolescents who have to go to adult beds because they are not enough children's beds. However, a number of adolescents have to go to adult beds because 12 beds are not just enough, especially given that cover five London boroughs.

I have been doing a lot of thinking about what Every Child Matters and the Children Act bring up for my practice at grass roots level. Safety of the child is paramount. A lot of young people who have been on adult wards are exposed to physical abuse, sexual abuse and verbal abuse as well as drug addiction or other types of addiction that they had not encountered before. Many of them have been abused or have been part of an abuse dynamic that is re-enacted on the wards and do not feel safe or that there is a reliable or responsible adult to whom they can turn.

As for a therapeutic relationship, in a lot of instances the staff and adult wards do not have the training nor do they have the time. A lot of young and vulnerable children are left in very exposed and dangerous conditions and cannot keep themselves safe. We are letting them down in that aspect. The services are not age appropriate and do not meet their developmental needs, bearing in mind that children between the ages of 13 and 18 have specific developmental needs that are catered for in an adolescent ward environment.

One of the things that came out strongly in the Victoria Climbé inquiry was that no one spent any time talking to her by herself, listening to her and sharing what she had to say as an individual. Again, in adult wards there is neither time nor space to give that respect to young people. Furthermore, in terms of my practice as an approved social worker, I also undertake child protection inquiries. There is not a combination of ASW or child protection roles. The Bill is a first development to combine children and adult mental health services to provide a holistic service. I have the children's perspective as well as the mental health perspective in mind. That is important when looking at the treatment of children.

One of the most important issues in early intervention in respect of children's mental health needs is prevention and, by examining that, hopefully we shall be able to stop the revolving door syndrome or, at least, reduce it so that we would not have young people constantly going into adult mental health services because they did not receive the care and treatment that they needed at an age when they could have received it.

 

Maurice Vaillancourt (Parent of Service User): I work in the various aspects of the voluntary and academic sector of mental health. I am actually here however for an experiential reason for my son who had a cannabis-induced psychosis when he was 16 years old. Unfortunately, our GP failed to react and where we live has quite a dispersed population and the secondary services were delayed. After 15 days, it was pandemonium and we ended up calling for an ambulance, but 11 police cars with 20 policemen in them were sent instead. We live in a fairly small village with a sixth form college across the road, and my son was arrested in handcuffs and put in a caged police van in front of hundreds of teenagers, some of whom were members of his peer group making their way to college at 9.10 in the morning.

My son was taken to a police cell, but once we persuaded them that he was ill he was taken to a small room at our local hospital in which he was kept for seven hours during while they found everyone necessary for a formal sectioning. They searched for a bed, which was never found. The commissioners refused to pay for an out-of-area transfer, which would have been preferable to what happened, although I am against that generally.

My son was eventually taken 45 miles away to an extremely decrepit adult ward that has now been pulled down at which he was physically subdued by six male nurses. After an escape attempt, two policemen hauled him back from up the road. They were not aware of his age and rough-handled him. The six male nurses just jumped on him and injected with acuphase that effectively knocked him out for nine days. He was continually physically assaulted by the staff, and physically and sexually assaulted by much older male patients. He was there for 12 days.

The most disturbing aspect was that the consultant psychiatrist told us that my son would not be able to remember anything because he was so into a psychosis. He was absolutely frightened out of his wits. He remembers those circumstances probably each day of his life, certainly when he wakes. He refers to them all of the time. Following a lot of protestation-my wife camped out in the vestibule and kept nagging at them-he was finally moved to a modern, adolescent unit that had been open only four months, where-surprise, surprise-he actually responded and began to get a lot better quickly. He stayed there for nine weeks and then came home to us. That was not wholly acceptable because the community support was virtually nothing. Later, he fell through a transition net because when he had to transfer to the CMHD Adult Services, he just dropped straight through it.

Another disturbing fact was that the adolescent unit always had that bed; it was just that it would not accept him because it would be disturbing for children with lesser illnesses. I consider that if that place in a first psychosis only adolescent unit had been available to him, he would not be traumatised by the things that worry him now. We must stop inappropriate in-patient settings.

 

Lois (Service User): I am a young person who has been treated on an adult ward. When I was 16, I suffered from depression. I was assessed, but no help was given because of my age. Eventually, my parents pushed for private treatment at The Priory, which was granted. I was discharged before my 17th birthday because I was approaching that age and they would not treat me over that age. Having not made a recovery, I overdosed again. I needed treatment and was admitted to the adult ward on the PICU, which is the Intensive Care Unit. It is a mixed ward and meant only for a short stay of four weeks while people get over intense illness. I was kept there for 18 months with very disturbed patients who were a lot older than me. It was a mixed sex ward. Because of the sort of unit it was, I could make any relationships with anyone because of their age, illness and the amount of time that they had stayed. I had a right to education and when I asked the nurses about it, they said, "No", and sent me back to my bedroom.

There was no stimulus on the ward. The brain of a 17-year-old needs to be active, but nothing was offered to me. There was no exercise. I went up 10 dress sizes in the adult ward, which is unacceptable. It was a mixed ward. I shall share one incident with you. The bathrooms did not have a lock. I was having a shower and a male patient walked in. He was unwell. He did not know what he was doing, but it was unacceptable for young people going through puberty and growing into young women to experience such an incident.

The ward was horrible. It smelt of urine. There was no home comfort, but just plastic chairs. It was unwelcoming and nowhere for someone to recover from any illness. Other patients physically, verbally and sexually assaulted me. Thankfully, I was able to control it but people younger than me would not be able to do that. I know people who have experienced such instances at the age of 13, and they could not say no to such men. Halfway through my admission, I was assessed by an adolescent psychiatrist so there was some recognition that I needed to be assessed by such a person. However, nothing came from it even though I was assessed.

The conditions and treatment that I endured were traumatising. I was treated like an animal. It was not what I would wish on anyone. Hundreds of young people are being treated like that every day. Eventually I was discharged into a therapeutic community where I received the help that I needed and deserved, but they only accepted people over the age of 18 so, until then, I was stuck.

I ask you to use your power to help pass the amendments so that what happened to me does not happen to any other young person.

 

Antonia (Service User): Like Lois, I was also detained as a young person in an adult ward. There is no way in which I could explain in two minutes why that should not happen, but I can guarantee to all of you that if you had been there as a young person you would know that it should not happen. Why should young people be written into the back pages of the Bill? Young people are the future and that is the time when people's confidence in the system needs to be increased from which they could benefit for the rest of their lives. If that does not happen, you would end up with revolving-door patients and people costing social services, the Government and society a lot of money.

Attending an adult ward does far more harm than good. Like Lois, I was sectioned. I was not allowed off the ward into fresh air for more than three and a half months. I was not allowed near an open window. I was on a single sex ward, but that does not make any difference to how safe I felt. I knew that one of the other patients in the ward was in there for killing her daughter. I was kept under constant nursing supervision, but I frequently heard the staff arguing about looking after me because they were not sure whether their registration as a nurse would cover their supervising me as a young person on an adult ward. They recognised that I was in danger and did not know whether they would be covered if anything had happened.

There was a complete lack of stimulation. There was no television. If the staff brought equipment, it was thrown in. There was no education. My day revolved around smoking and eating. In the space of about three and a half months, I was smoking 40 cigarettes a day. I was completely terrified. I was isolated from friends. I was not allowed to see my younger sister, who was 13. I was 16 years old and the reason why I was not allowed visitors of my age group or that of my sister because the policy on the ward meant that under-18s were not allowed to set foot inside the wards.

At 16 years old, I was stuck inside the ward and not allowed to go out. I was completely isolated from everything I knew. There was no structure to my days. They all rolled into one. I received no treatment on the ward to help me get over the reason why I was there, which was because of post-traumatic stress disorder. The only treatment that I received was medication: liquid, tablets or injections by force. I was frequently restrained by up to six people-male and female. I had my trousers pull down to be injected. There was no privacy. Other patients ran around. Such situations should not happen.

One of the amendments that should stand: why should young people who are mentally ill be thrown to the bottom of the pile? They are all at a disadvantage in that they are mentally ill. Those kids need to be given a chance. I am so, so lucky to be here talking about such matters because, like Lois, I am one of the lucky ones who has succeeded. But so many people do not. That is where the Government are failing hundreds of children each year. I could end up costing the Government a hell of a lot of more money yet because I would not approach services, given my experiences so far. If you could stop that now, it is the right time to do it.

 

The Chairman: Thank you both very much for those powerful testimonies.

I wish to kick off the questions and open up the debate to colleagues. Kathryn, with reference to the Scottish experience where changes were made under the 2003 Act, the Minister is now claiming that since age appropriateness in Scotland, the number of children going into adult wards has increased. What is the experience of Scottish clinicians?

 

Kathryn Pugh: We have been in touch with Scottish clinicians and those at the equivalent of the Mental Health Act Commission in Scotland, the Scottish Welfare Commission. Their experience is that the numbers have gone up a small amount, but they attribute that to the fact that the numbers have now been counted properly for the first time. Previously, as in this country, the figure of 1,000 children a year was actually based on research. There is no count on the children. The only thing that is counted is occupied bed days. Now, the children on adult wards in Scotland are being counted more robustly although clinicians believe that some are still escaping the count.

Clinicians in Scotland have said that issue have been beneficial to them because people are forced to get round a table and sort out what will happen to the young people when they go into the adult wards, if they still have to do that. They consider that that places a duty of care on people to work together and the important thing is not necessarily whether an adult ward is an appropriate place for people to be, but if there is no where else that there is an appropriate package of care for them, unlike the care that Lois and Antonia received from the odd agency staff, hither and thither. In Scotland, they have been much more systematic and Scottish Services are now planning for many more beds to be open and for there to be much better community services. Scottish clinicians argue how can the situation be improved if it does not come within the terms of the law?

 

Angela Browning MP: Kathryn, you kindly sent me a list of the child and adolescent mental health service units for the under-14s. I was struck by the strange, geographic spread of such units. There is a cluster around London. There is one down in Kent, but there is nothing west of London. Going north, we have to go as far as Leeds before we find anything. There is a huge part of the country, particularly in the midlands and the far south-west that have no dedicated units. Can you tell us something about the trend of either closure or the development of units? Where in-patient treatment is needed, particularly for very young children under 14, what is the trend? Are we planning to develop more to close the gaps? There are big distances between them.

 

Kathryn Pugh: There is a difficulty with the trend for the under-14 year olds and with the trend for adolescents. For under-14 years old, 30 per cent. more of the beds have been cut during the past three years, and they are being lost. We attribute that to the fact that primary care trusts have so few children a year who need to go into the units that they are not underpinning the units. The units therefore have to scrabble around each year for guarantees of funding some of the mental health trusts, so when they are stuck for cash and are expected to make savings, they are pulling the beds. There is a real problem with a bed base throughout the country for under-14 year olds, but the bed base for adolescents is similar in that there are three time as many beds in London and the south as there are in the north. Letters to MPs from PCTs indicate that, in Lancashire and Cumbria alone last year, for example, 90 adolescents were placed on adult wards. So the experience of London and the south-namely, that they are much better provided for than anywhere else in the country-is mirrored both for under-14s and over-14s.

 

Lord Carlile of Berriew: May I just ask a practical question that arises from the point made by Mrs. Browning? Supposing a child has an acute episode such as was described by Mr. Vaillancourt in, say, the middle of north Wales, where there is no available facility within a reasonable distance. What are you saying should happen in that situation?

 

Kathryn Pugh: If that happens at the moment, and if the child is lucky and the PCT or the health services will pay, the child would be sent to an adolescent unit outside of Wales. However, if Welsh was their main language, that would mean that they would be in an environment where their main language was not spoken. It might be helpful to hear from Antonia and Lois about their views on passporting children when the choice is between putting them on an adolescent ward or sending them out of the area to an adolescent ward.

 

Lois Ward: If the illness is an immediate one, and if the individual is overcome by a severe psychosis, there might be some need to contain them straight away, but that does not last for too long. Having been treated on an adult ward myself, I would much rather go to an adolescent ward than a local adult ward any day-even if it was in Wales, London or Scotland-because people would know how to treat me and I would not be abused as I was in the adult ward. I speak on behalf of a lot of young people in saying that.

 

Antonia Wilkinson: I have said it before: to be in adolescent services I would rather go to Scotland than be 10 minutes down the road from my home. The distance is not important and it is a ridiculous excuse for not including the amendment in the Bill.

 

Maurice Vaillancourt: Absolutely not. But distance, of course, creates schisms for families when visiting their children, and that is a huge problem. We need first-episode psychosis units into which 16 to 25-year-olds, perhaps, can be received straight away. Early intervention services are the key, however. I am very involved with our local early intervention service in Hampshire and I am also doing some work in Wales, and we need a presence of that type in every area of the country so that there is a network. That way, if there is a kid in the middle of Wales they can at least be connected to the neighbouring early intervention team, who can ensure that they have somewhere to go. I agree that it is much preferable that they go somewhere out-of-area.

 

Claire Phillips: May I just add one point to that? The national service paper makes it clear that there are circumstances, such as when an ambulance is called as was described earlier, when a child might first have to be taken to the local acute hospital or whatever-though certainly not the police station, as was also described. In that situation, an appropriate placement should be found. Clearly, the ambulance will not take that young person miles and miles away, so there need to be interim arrangements when there is an acute onset. Units dealing with early intervention in psychosis, such as those being piloted at the moment, are one way to address that, and we support that idea.

 

Maurice Vaillancourt: The pilots have been taking place for five or more years.

 

Claire Phillips: The answer to your question as far as Wales is concerned is that people either go out of the area or they are put on an adult ward. That is the choice: there are no emergency beds in Wales at present.

 

Baroness Meacher: I should like to applaud the contributions that have been made-they have been powerful. If the decision were going to be made on the basis of the child's best interests, there would be absolutely no question that the House of Lords amendment would stand. Unfortunately, I understand that the decision will be made by the Government on the basis of resources, if they can get away with it. As far as I know, there is research that shows that children assessed and placed in a setting related to their age will do much better than those placed in an adult setting, and the savings rendered by such appropriate settings over time could therefore be considerable. My feeling is that if that evidence could be presented loud and clear to the Government, it might meet with success.

 

Kathryn Pugh: There is also an issue on the resources that are put in, which are hidden ones. Beds on adult wards are not free-they might be booked by a PCT on a block contract but they are still paid for by the NHS. Furthermore, young people on adult wards are often given one-to-one observation, usually by agency nurses. If the average hourly cost of such a nurse is worked out, not including out-of-hours work and bank holidays, it might be £30 an hour. If, like Antonia, you have two people staring at you 24/7, which is what agency nurses do, the amount that that is costing the mental health trust is enormous. That is not reflected in PCT budgets, however, because it is picked up by the mental health trust.

If one adds the cost of placing a young person on an adult ward to the agency costs, and the costs that Antonia described of service users who consequently do not engage with services and who therefore become the "revolving doors" that the Government say that they are trying to support with community treatment orders, one builds up an enormous bill. So the point is not that the resources do not exist, but that they are in the wrong place.

 

Baroness Meacher: What am I saying is that it is that economic argument that needs to be presented.

 

Maurice Vaillancourt: I believe that there are some figures that indicate that 7,500 people have first-onset psychosis every year. If they slip through the early intervention net it costs something like £47,000 over three years. Those figures were compiled by Professor Martin Knapp at the London School of Economics. If one does the multiplication, the total comes to something like £300 million a year to keep people in crisis management and afterwards if they are not caught in the early intervention net. So I agree that there is an ongoing cost benefit.

 

The Chairman: I shall take two final quick questions-one from Sandra Gidley and one from Lord Williamson.

 

Sandra Gidley MP: Lois and Antonia, you described your experiences quite powerfully. Could you say a bit about whether you felt that the staff treating you had sufficient experience of dealing with someone of your age? Was that a problem or not?

 

Antonia Wilkinson: Members of staff have no idea how to talk to young people. Most patients have severe mental illnesses that ultimately will respond to medication, rather than to other kinds of therapy or treatment. I was in for something that I needed to talk through and be supported through. I was told that if I had a problem I should go and talk to the agency staff-the two people who sat with me day and night, but they were not trained in children's issues, and, as I said, they argued about having to look after me. So my answer would be no.

 

Lois Ward: Some nurses cared, and they wanted you to get better, but they were not trained to deal with adolescents, so they talked to you either as an adolescent, which meant that it went over your head, or as a 10-year old child, trying to get down to your level. It was inadequate, no matter how much they wanted to help.

 

Lord Williamson: As far as I can see, in any further discussions there are two points that the Government are likely to make in arguing against the amendment. The first is that the amendment proposals are not appropriate to the Bill, because services for certain groups should not be included in the Bill. I have already made it clear that I think that that argument is ridiculous; children are treated separately in many different areas of legislation, and that is absolutely normal, so I cannot see any real argument to support the Government's position on that.

The second point is a bit more difficult and I want to put it to the witnesses. It concerns the argument that some people will be refused admission because they have to receive age-appropriate treatment, and none is available. That point is quite tricky. Part of the amendment allows for emergencies-in relation to medical assessment and clinical supervision. Would you like to comment?

 

Kathryn Pugh: If the amendment is removed, what remains is the Government's own amendment on appropriate treatment. That says that, if appropriate treatment is not available, the person cannot be admitted, which would mean that service users who should be detained under the Mental Health Act for their own protection could be turned away. Without the amendment, therefore, young people would be more at risk. The amendment is carefully worded such that services and accommodation appropriate to the needs of the child should be commissioned by the PCT. It does not present the Government with a menu of services that must be provided, but that an assessment must be made and the relevant services must then be provided by the PCT.

Under certain circumstances, appropriate care might be on an adult ward; the amendment would not stop people from being admitted to adult wards. We have spoken a lot about the downsides of adult wards, but I would not want to forego the opportunity to pay tribute to the many colleagues on adult wards who try hard to sustain support for young people in difficult circumstances. We are not trying to demonise adult wards and say that they should never be used; we are saying that the services should be appropriate to the needs of the child, otherwise, children are at much greater risk.

 

Lord Williamson: That is very helpful and I think that that argument needs to be developed. We are trying to end the "house of horrors"-no more than that.

 

The Chairman: Am I right in suggesting that the amendments do not exclude access to an adult ward in an emergency?

Kathryn Pugh: No, not at all, nor at any point if it is appropriate. A 17-and-three-quarter-year-old might be much happier with adults, in which case they could go into an adult ward.

 

The Chairman: For the sake of the record, the witnesses are all nodding.

We have slightly gone over our allotted time. I thank each of you very much indeed-we have got through an awful lot in a short space of time. It has been exceedingly useful. Thank you for coming and for giving such punchy evidence.

 

COMMUNITY TREATMENT ORDERS

The Chairman: Our next subject is that of community treatment orders. We have allocated a slightly longer time for this session, because the research on international experience of community treatment orders that was commissioned by the Department of Health from the Institute of Psychiatry was published only the day after Third Reading in the House of Lords. CTOs were one of the more contentious parts of the Bill, and their Lordships did not have the opportunity before their deliberations to see the comprehensive research in the report, which is why we thought that it would be particularly important for Members of both Houses to be able to scrutinise the report. People from the Institute who were responsible for it are here, together with others, and there will be witnesses with views contrary to those in the report.

We invited the Zito Trust, which has a different view on CTOs. The trust was unable to attend, but it asked whether Professor Maden could be here, and I am glad to say that he is, so he will give his perspective in agreement with the Zito Trust, and no doubt he will speak for himself as well.

The amendments made in the Lords would not ban the use of the CTOs, but they would tighten up the criteria under which such orders can be used, as per the recommendation of the pre-legislative scrutiny Committee.

For the record, Baroness Eccles has joined us.

Could each of you give a few short sentences by way of opening, after which we shall take questions? We have, with respect, a disparate group. Perhaps the Institute could kick off, with reference first of all to the actual report.

 

Dr. Gareth S. Owen (Clinical Researcher, Institute of Psychiatry, Honorary Specialist Registrar, South London and Maudsley NHS Trust): Thank you for asking me to come and present some of the findings from the recent report entitled "International experiences of using community treatment orders", written by Rachel Churchill and others. I am the second author of the report, which was commissioned by the Department of Health.

The report is the most comprehensive and thorough review that has yet been undertaken of the existing international research literature on CTOs, and it relates to civil patients-patients who are not involved in criminal proceedings. The research has been critically appraised to epidemiological standards, and we reviewed 72 studies from six countries.

I shall stick as much as possible to the research. As you all know, prior to the empirical research there was considerable ethical debate on CTOs. Both libertarian and "need for care" positions are prominent and well argued in the literature, and there has been no clear resolution to the debate between them.

Many in the CTO community have wished to try to achieve such a resolution by conducting research on effectiveness of CTOs. Our report concludes that the available empirical evidence indicates that there is no robust evidence that CTOs cause either reduction or increase in a range of outcomes. I shall read out some of those outcomes to give an idea of how wide-ranging they have been: hospital admission, hospital bed days, compliance with treatment, violence, symptoms, offences resulting in arrest, social functioning, quality of life, care or satisfaction, and perceived coercion.

Follow-up on studies has typically ranged between six months and two years. There have been two randomised control trials, conducted in the USA. They are the most reliable form of epidemiological evidence, and neither has demonstrated effectiveness.

A considerable amount of secondary analysis was carried out on one of those randomised control trials. Probably the most influential concerned violence, with positive results being reported for patients whose CTO exceeded six months. The secondary analysis suffers from well-established methodological problems, however, which bars any inference on effectiveness, because the analysis is of an exploratory or hypothesis-generating type. The importance of that is that, in clinical trial methods, the use of such analysis as a basis for deciding treatment effectiveness is considered dangerous. If CTOs are considered as an intervention comparable to other treatments, such that they must empirically demonstrate effectiveness, the available empirical research does not lead one to expect NICE approval. The hope, therefore, that empirical work on effectiveness will be the key to swinging policy toward either a libertarian or a "need for care" approach on the CTO question has not been fulfilled.

I want to say a little about criteria, and how the available research relates to that. There are significant design differences between CTOs in different jurisdictions. In north America one can distinguish between so-called "least restrictive", or alternative, CTOs and so-called preventative CTOs. In other jurisdictions, mainly Australasian, that distinction is blurred.

The key feature of the so-called least restrictive CTOs is that the criteria for their use are the same as for detention in hospital. So, for example, Virginia state in the USA has a least restrictive, alternative CTO, which can be applied without restriction as an alternative to involuntary hospitalisation. The key feature of preventative CTOs is that the criteria for their use is different from hospitalisation. Examples would be in New York, where CTOs are restricted to patients with revolving door histories, or histories of non-compliance resulting in violence. North Carolina has a CTO that is restricted to patients with impaired decision making, and Saskatchewan has a CTO that is restricted to patients with both revolving door histories and impaired decision making.

How does the research relate to such CTOs? Least restrictive CTOs appear to have certain sorts of conceptual problems and design difficulties. That is perhaps best expressed by trying to understand from a legal point of view how a patient can be considered dangerous enough to require hospitalisation yet simultaneously safe enough to be treated in the community. There are also reports that CTOs have generated confusion and antipathy between mental health professionals and the courts, and that they might be difficult to use in practice.

Available data on the rates of use of preventative CTOs suggest that those CTOs are used less frequently than least restrictive alternatives and other types. Those data have been collated by Simon Lawton Smith at the King's Fund.

 

The Chairman: Thank you very much. For the record, we have been joined by Hywel Williams MP.

 

Professor Graham Thornicroft (Professor of Community Psychiatry, Head of the Health Services Research Department, Institute of Psychiatry, King's College, London): I should like to add some contextualising comments. My name is Graham Thornicroft, and I am a consultant psychiatrist in south London, where I have worked as a psychiatrist for 22 years. I am head of the health service and population research department at the Institute of Psychiatry at King's College in south London, where we try to establish, by way of evidence, what works in helping people with mental health problems.

I should like to make three brief points to set Dr. Owen's comments in context. They are: first, that there is no strong evidence to support CTOs; secondly, that there are no ethical standards to support them; and thirdly, that experiential evidence does not support them either.

To deal first with evidence, you have before you the executive summary of the CTO report. The summary sheet contains a web link to the full report. More than 222 pages of review of 72 studies showed no good evidence that CTOs are effective on any of the counts claimed by the Government. Some might say that the tragic events at Virginia technical college last week provide evidence for why CTOs should be introduced in this country. As Dr. Owen mentioned, however, there are already such provisions in Virginia state, and the evidence that I have just circulated shows that Mr. Cho was subject to involuntary outpatient commitment at the period around 14 December 2005.

The second matter is that of the ethical standards that should pertain. There is at present a 10-year national mental health plan for England, which is called the National Service Framework for mental health. I must declare an interest in relation to it, as I chair the external reference group that wrote that plan, which was carefully and consensually developed among all of the stakeholders. I have set out in the summary sheet the 10 principles that guide current mental health policy for England, and it is clear that the Government's proposals in the Bill conflict with those established, consensually agreed and currently operating principles. They are incompatible with those principles, and if the Bill were implemented it would cause difficult if not irreconcilable conflicts in policy, which would feed through to confusion in practice.

Thirdly, there is the experience of people directly involved in mental health problems. The Mental Health Alliance has now grown to some 80 members, the Samaritans having joined most recently. It is remarkable that the Government continue to persist in the view that the whole, or more than 95 per cent. of the mental health field at least, is wrong, and that they alone are right. To ignore the vast collective experience of the whole mental health field in England is fundamental folly. If the Bill were enacted, there would be great practical difficulties in its implementation.

There are real risks not just of the unamended Bill having neutral effects but causing actual harm. The key such areas of harm would be increased treatment avoidance by people with mental health problems, perpetuation, at least, of current disparities with respect to people from black and ethnic minorities who, as you know, are much more likely to be detained, and huge transaction costs from the implementation of CTOs. Without the evidence that CTOs work, not only would that money be ill-spent, but the opportunity to invest the relevant funds wisely in effective services would be lost.

CTOs, therefore, lack any evidential, ethical or experiential basis, and my view is that there is no foundation for them. Were they to be implemented, the criteria should be made as narrow and stringent as possible.

 

The Chairman: Thank you. Professor Maden, I hear you may have a slightly different view.

 

Professor Tony Maden (Professor of Forensic Psychiatry, Imperial College London; Clinical Director DSPD Service, West London Mental Health NHS Trust): Yes. I should say that from my experience in forensic psychiatry, I am quite attached to the concept of the expert witness being independent, and I shall try to make my comments as moot as possible. My sadness about the debate on the Bill is the result of the extent to which opinion as polarised.

The executive summary says that the general quality of the empirical evidence is poor. The first key point says:

"It is not possible to state whether community treatment orders (CTOs) are beneficial or harmful to patients."

In those circumstances, I am not sure that scientists can make a strong recommendation either way. It is a case of "definitely maybe".

There was a bit of a furore in relation to the Institute report. I do not know the ins and outs of whether the Department of Health tried to suppress it or not-I was not involved in any way. I hope, however, that the committee has seen the September 2004 review by Marvin Schwartz and Jeffrey Swanson entitled "Involuntary Outpatient Commitment, Community Treatment Orders, and Assisted Outpatient Treatment: What's in the Data?" The bottom line conclusion of that review is essentially the same as that of the Institute of Psychiatry's report: that the evidence is not brilliant and people cannot say for sure either way. I like that paper for its dispassionate account of the area.

People should not expect too much from science; science cannot tell you what laws should be made, nor can CTOs be expected to correct grave faults in mental health services. Schwartz and Swanson said that a CTO was completely useless if services were poor and if it was not properly enforced. Yet there was evidence to suggest that CTOs made a difference if there were good services and enforcement. So we should not expect too much from law, or from scientists advising on law.

Having said that, my attachment to CTOs derives from a measure that was enacted by a Conservative Government back in 1994. The then Government were concerned about the failings of mental health services, so Virginia Bottomley mandated that, whenever there was a homicide by a psychiatric patient, there should be a homicide inquiry. I think it is fair to say that almost everyone in the room from the psychiatric profession loathes those inquiries. They are universally disliked by psychiatrists, they have ended careers, and they have caused a lot of damage.

Whatever their failings, however, they have been the policy of the Governments drawn from two parties for a long time, and they have produced some evidence. That evidence is not scientific, as we understand science; it is not about numbers and randomised control trials. The process is run by lawyers, who operate according to different rules from those by which scientists operate. However, there has frequently been a debate on whether better compliance with treatment might have avoided the fatal outcome. In a significant number of cases the conclusion has been that that might well have been the case.

Off the top of my head, I mention the Matthew Hooper inquiry and the PH and SS inquiries, which reported last year in east London. I am happy to provide further instances in which a homicide inquiry concluded that the death could possibly have been avoided by a community treatment order. We cannot say that those conclusions were necessarily right, but as far as I am concerned they are a part of the evidence that ought to be thrown into the melting pot alongside the science.

My own minor contribution in the area was a review of 25 deaths that were caused by patients with a previous history of violence, a diagnosis of schizophrenia and contact with services. They were patients with whom, as a service, we should have been dealing; they had a clear psychiatric illness, they were in contact with services, and we knew of their previous violence and hence their risk. In 23 out of 25 of those cases, poor compliance with medication was a major factor in the homicide. Out of fairness to the families of the victims of those homicides, we should take that evidence seriously. It is not the be all and end all, but it would be unreasonable to neglect it completely.

My enthusiasm for CTOs came in the first instance from the homicide inquiries, because those inquiries in many cases said that CTOs were needed. Normally, in medicine, when there is a disaster inquiry we follow the recommendations of such inquiries.

Having said that, I would also look to the scientific research to tell me whether there was any scientific reason why we should not adopt the route recommended by the inquiry. I would ask: would it be harmful to patients and would it prevent them from seeking treatment? At the moment, I do not see any substantive scientific evidence to show that a community treatment order would deter people from seeking treatment or that it would be detrimental to them.

In closing, I repeat the first key point in the report:

"It is not possible to state whether community treatment orders (CTOs) are beneficial or harmful to patients."

In those circumstances, I respectfully suggest that we should follow the recommendations of the many homicide inquiries that have been conducted during the past 20 years or so at great cost-both monetary and in terms of cost to the professionals involved. We should therefore implement CTOs.

 

The Chairman: Thank you very much, Professor. May we hear next from Dr. Rowena Daw?

 

Dr. Rowena Daw (Vice Chairman, Mental Health Alliance): I shall confine myself to discussing the alternatives that are on the table before us: the Government proposals and the House of Lords proposals. We in the Mental Health Alliance have, in the past however many years, looked closely at the issues involved and the research, such as it was prior to the international report. It is fair to say that there is a difference of view among members of the Alliance on many of the issues that Professor Thornicroft mentioned.

A significant number of members of the Alliance are totally opposed to community treatment orders because of their over-reliance on drug treatment, the extent to which they might damage therapeutic relationships and bring coercion into the delivery of community care, and so on.

However, the majority of the members of the Alliance have accepted that, if there is to be a change in the law, we need to look at the evidence to see whether it will work. Of course, we have started from the point of view that there are already forms of supervised community treatment-section 25A and conditional discharge and 17b. CTOs will add another level of coercion to the system-a situation in which people can be brought back in to hospital to have a treatment regime forced upon them. We consider that to be a deeply significant change for professionals and patients.

We are mindful of the fact that NICE guidelines on all major mental health conditions state in all cases, as a top-line message, that health care professionals should establish and maintain collaborative relationships with patients and their families so that outcomes improve. Outcomes are best delivered through a partnership between client and professional. We should not underestimate the importance of that.

For that reason, we believe that the Government's proposed regime, at which we will look in more detail in a moment, is the broadest that I have seen, having examined the legislation of the all Australian states, New Zealand, around six Canadian jurisdictions, a number of American jurisdictions and Scotland. Looking at the proposals in that context, we can see that the proposed regime is extremely broad. In that setting, and given that there are already powers of supervised discharge, we asked in what circumstances is it justified to impose and extra level of coercion on patients who are ready to leave hospital, and whether there is any evidence to support that. In conclusion, we identified a group-as have the Government-of what we call revolving-door patients, for whom there might be a case for imposing the new regime, because it might be beneficial to them for the reasons that we know.

However, given the availability of supervised discharge, which provides a graduated return to community life for patients who need extra supervision on leaving hospital, we needed an extra reason to add the coercion. We feel, as did the Lords, that the coercion should be confined to the group about whom the Government were most concerned-those people who are considered to be a danger to others. In a different context-one in which there is a possibility that some of the narrowing of the criteria proposed by the alliance and accepted by the Lords were acceptable to the Government-we might favour a broader reach for community treatment provisions to those who posed a level of serious danger to themselves.

Before I finish, I would like to mention the reasons why we need to understand that when we compare our regime with those of other countries, we are not comparing apples to apples. Looking at the Government's proposals in the Mental Health Bill, we see that they are proposing to introduce a broad definition of mental disorder-disability or disorder of the mind-and to eliminate a treatability test; a broad concept of appropriate treatment; a definition of medical treatment that could include nursing or care or rehabilitation; and to remove all exclusions bar one for substance abuse.

True: they say that patients need to be sufficiently ill to be admitted to hospital, so the proposals are not for an alternative regime. However, a CTO becomes an issue only at the point of discharge. At that point, by definition, the patient is no longer sufficiently ill to require compulsory treatment in hospital, which gives rise to the question of whether they need compulsory treatment at all. The Government's proposed regime that at the point of discharge, the clinician will be faced with the question of whether the patient needs medical treatment. The chances are that a person leaving hospital following a crisis will need medical treatment, certainly in the broader concept proposed in the Bill. The clinician will also need to know whether a patient needs to subject to recall, which is a polite way of asking about the likelihood of a patient not continuing to comply with an imposed medication. Of course, recall powers will last for only 72 hours. In that period, not a great deal can be done except for providing medication.

The proposed regime is extremely broad and it undoubtedly increases the reach of compulsory powers. For the reasons that others have given and will continue to give, we consider it entirely unwarranted and, indeed, dangerous, not only from a civil rights point of view, but because of the damage that it will do to community treatment and the provision of community services, and because of the way in which it will skew those to a particular end. We could explore all kinds of issues around that.

 

The Chairman: Thank you, Dr. Daw. We now move on to Simon Lawton Smith of the King's Fund.

 

Simon Lawton Smith (Senior Fellow in Mental Health, The King's Fund): Thank you for the invitation to provide evidence today. I shall restrict my introductory comments to the situation in Scotland. I produced work last year for the King's Fund on the impact of community-based CTOs after six months. I spent three days of last week in Scotland updating that work, so my comments are hot off the press, as it were. As Dr. Daw mentioned, the situation in Scotland is that the criteria for compulsion for both hospital and community-based CTOs are different from what they will be here.

The two key differences are that in Scotland, first, medical treatment has to be likely to prevent the mental disorder worsening or to alleviate the symptoms or affects of the disorder. That is not what is proposed by the Government for England and Wales. The second difference is that the provision in Scotland stipulates that a patient's ability to make decisions about the provision of medical treatment is significantly impaired because of a mental disorder. Again, the Government do not intend to put that provision in the Bill for England and Wales. It is important to remember that.

It is also important to remember that in Scotland, every authorisation of compulsion is undertaken by an independent mental health tribunal, so it is not just clinicians who agree to the imposition of a CTO, it must go to the independent tribunal, whether for a community or hospital CTO.

Bearing that in mind, I shall try objectively to set out a few of the key findings from Scotland. This follows conversations with the Mental Welfare Commission, Mental Health Tribunal, Scottish Executive, National Schizophrenia Fellowship Scotland and SAMH, which are the two big voluntary sector organisations in Scotland, and a small number of front-line mental health staff, including an advocate who works for people subject to CTOs in the community.

Before the law was enacted in Scotland, it was estimated that around 200 people at any one time would be under a community order. As at October 2006-six months ago-245 people were subject to community-based CTOs. The number appears to be going up continually. My estimate is that more than 300 people are now under community-based CTOs. That is a rate of about five per 100,000 which, after one year, puts them in the lower rate of use of such orders as compared to other jurisdictions. An equivalent rate applied to England and Wales would mean something like 2,500 people under community treatment orders, although I stress again that different criteria might apply in Scotland.

No data have yet been collected on when people come off orders. That is frustrating, because I think that it is one of the key issues: how long do people stay on a CTO? I was told that it was too early to say and that the data have not been collected. Clearly, as the numbers-the point prevalence-of people under community orders rises, more people are being placed on them than are coming off.

I was told that to date, there has not been an overall increase in the number of people under compulsion. Taking community and hospital compulsion together, there has not been a increase in the total number, which would suggest that CTOs are genuinely being used as a less restrictive alternative to hospital care, and not to impose conditions and compulsion on people who would not have been subject to that under the previous legislation.

There are between 10 and 20 people per quarter under a community order who need to be re-hospitalised. The point about that is that it would be wrong to imagine that once a person is on a community-based treatment order, they will not need to be re-admitted. Clearly, people are being re-admitted despite being on a community treatment order, including people who comply with their medication, but who nevertheless become so ill that they have to go back in to hospital.

On the conditions that can be placed on somebody under compulsion in the community, there was some concern about the provision in the Bill that allows a condition to be placed on a patient to abstain from a particular conduct. No one I spoke to in Scotland, where such a provision is not available, felt that that was necessary. I asked them whether they would like such a provision and they said that it is not necessary for the effective management of people in the community.

There is quite strong anecdotal evidence that the extra time imposed on mental health professionals both in imposing the process of community treatment orders and hospital treatment orders is an additional burden. In particular, mental health officers-the equivalent of associate mental health practitioners or approved social workers-have spent less time with voluntary patients, whom they might previously have spent a little time with to make sure that they are all right and living in the community, because of the imposition of the new Act and the requirements to provide services under a statutory community order.

The Mental Welfare Commission for Scotland has interviewed more than 100 patients who are subject to community treatment orders and in one case only did it believe that the order had been inappropriately applied. The commission, which has a statutory obligation to ensure that the legislation is followed, has from talking to patients, come to the conclusion that on the whole-in the vast majority of cases-the order was appropriately applied.

That is all that I wanted to say about Scotland. Briefly, on the homicide issue, I saw a piece in The Daily Telegraph in which a former Home Secretary, David Blunkett, suggested that the recent Virginia Tech shootings suggested that the Government's proposals are both right and necessary. I have done some provisional work on the number of homicides committed by people with a mental disorder in Australia, New Zealand and Canada, where community treatment orders have been in place for some time. It is not possible to find any evidence that the number of homicides has gone down as a result of community treatment orders being in place in those countries.

The research is difficult to interpret: the numbers are very small and there are a great many things that might cause someone with a mental disorder to commit homicide; but I think that it would be misleading to give the impression either to MPs who are debating the Bill or to the general public that supervised community treatment will prevent an occasional, rare and unpredictable homicide. It is important to get that message across.

 

The Chairman: That is very clear. Thank you very much. We have been joined by Charles Walker MP and Doug Naysmith MP.

 

Doug Naysmith MP: I do not want any part of this, thank you very much.

 

The Chairman: We can talk about that when we come to ask questions. Last but not least, we have been joined by Kay Sheldon.

 

Kay Sheldon (Service User): Good afternoon. I am a mental health service user with experience of numerous detentions under mental health legislation. I also work with the Mental Health Act Commission and have a strong background in advocacy and user involvement initiatives. That means that although I am speaking from personal experience, the points that I will make are informed by direct contact with many other service users.

At various points, I have been described by mental health services as lacking insight, as non-compliant and as a chronic revolving-door patient, so I would be viewed as a strong candidate for a community treatment order. That horrifies and terrifies me. It feels as though I might be penalised for the shortcomings of the mental health services, which view me as the problem yet, during all my detentions, I have never had a proper assessment of my needs. My care plans, or those about which I have known, have been minimal and mostly for the benefit of staff. No one has taken time to develop a rapport with me and my point of view is rarely taken seriously. I have ended up being given inappropriate medication, with horrendous side effects, and left at home with next to no support. I am fearful of the services, which I do not trust and in which I have no confidence. Those are common experiences and feelings.

People want good quality services that are approachable, sensible and person-centred. If such services are provided, engagement, compliance, concordance or whatever becomes much less of an issue if it is an issue at all. It seems to me to be fundamentally wrong to underpin our health and social services with the threat of coercion. Even the proposal to limit CTOs to people who are a risk to others is worrying. There is a tendency among people who work for mental health services to write information on forms or in patient's notes that lacks objectivity-it is based on opinion rather than evidence for the sake of convenience.

By way of a personal example, on one occasion on which I had been sectioned, a nurse was trying to get me to take some medication that had previously given me horrendous side effects. I tried to explain, but she did not listen and pushed the medicine pot into my face. As a reflex, I pushed her away. Shortly afterwards, several nurses descended on me, held me down, and forcibly medicated me. Some time later, I gained access to my notes and read on the incident form that I had attacked the nurse without provocation and wrestled her to the ground before being pulled off by a student nurse. That simply did not happen. More worryingly, the student nurse countersigned the form as true. Thus, things can be written to justify actions and to defend decisions without evidence or the service user's knowledge and, hence, without a right to reply.

In summary, the proposals to broaden the criteria for compulsion and the introduction of community treatment orders are very worrying for service users, and it is not difficult to see that a service based on increasing coercion, together with one or two high profile but unrepresentative inquiries, could lead to a whole underclass of mental health service users on long-term treatment orders in the community. That is not scaremongering; it is the reality that we face.

 

The Chairman: Thank you very much. We need to make questions and answers concise. On a technical point, the part of the Bill amended in the Lords only makes reference to the necessity of CTOs for the protection of others from serious harm. Can any witnesses suggest whether that should be extended to include those at risk of harming themselves? That came up on Second Reading.

 

Professor Maden: I would argue strongly that it ought to include "risk to self". One of the complaints levelled against the Bill is that it is a public order measure rather than one aimed at good clinical care. I have talked about homicides-around 50 are committed by patients every year-but there are some 1,300 suicides. The criteria are good for allowing doctors to address such risks and I do not see any good reason to prevent us from dealing with the risk of self harm by the less restrictive and preferred alternative of community treatment.

We have heard a lot of stories today about how bad hospitals are, and in many ways I endorse those views. People do not like being in hospitals, so if we can deliver safe and effective treatment in the community, we should.

The Chairman: Does anybody demur from that?

 

Professor Thornicroft: Without over-polarising the argument, we are speaking about enforcing medication; we are not speaking about enforcing social treatments or psychological treatments. The crux of the argument is the question of how medication can be better delivered and more often to the people who benefit from it. Whatever we might think about partialities, the independent evidence from the Department of Health-commissioned report is quite clear that CTOs do not increase medication compliance, even though we might wish that they did. I would therefore argue for restricted and highly restrictive criteria that are not expanded to include self harm.

Kay Sheldon: The inclusion of people who are a risk to themselves would be to replace good quality services with coercion-it is just not necessary. We need good quality, accessibly services, not legal compulsion.

 

Lord Carlile: My question is directed at Professer Maden. I am slightly troubled to hear a distinguished forensic psychiatrist saying that a certain type of order should be made even though we do not know whether it works, which is my summary of what you said. If you were giving evidence in a criminal court, you know that no judge would ever impose a restrictive and coercive order on a defendant because it might work; at least, there would have to be evidence that on the balance of probabilities that it would work.

Returning to the report of the Joint Committee on the draft Mental Health Bill, to which you gave evidence, and which paid close attention to what you said, does anyone disagree with the restrictive approach taken by the Committee? I am a partial because I chaired the Committee, but in my view, the report presented the Government with a template for the legislation, and they have chosen to ignore it.

 

Professor Maden: There is quite a lot in that question. You raised the question of whether on the evidence available I would recommend a particular order, which is a good question. However, I would distinguish between recommending an order for an individual patient and legislators making a particular form of coercion available to doctors when they think it is appropriate to recommend such orders. All I say is that a number of homicide inquiries-many-have identified as a problem the restriction on doctors that prevented them from ever recommending a community treatment order on the clinical facts. I hope that the distinction is clear. I believe that an option to recommend an order in that small number of cases where they think it is appropriate should be available to doctors.

I was pleased to hear Simon's evidence that we have not seen a vast number of people placed on the orders in Scotland. I think that the absence of vast over use has been the general experience of community treatment orders. My point is that so many homicide inquiries over the years have suggested that the lack of an option for doctors is a problem and that we ought to weigh that evidence in the balance with the other scientific evidence.

The politics of it are not for me to comment on. My line is very much that doctors in this country are on the whole not disposed to take an overly coercive approach to patients-the 1983 Act works pretty well. When doctors are coercive, the mental health review tribunals provide a good safeguard. English solicitors are more aggressive than those in Scotland-at least, I hope that they are. I have no doubt that if it comes to a point at which I am able to recommend a community treatment, the grounds on which I might well be scrutinised intensely by a tribunal, and that if it believes my recommendation to be unreasonable, they will overturn it, which is as it should be.

Angela Browning MP: In their regulatory impact assessment, the Government state that one of three benefits of supervised community treatments flag up is that they "should enhance patient and public safety by enabling a clinician to recall swiftly to hospital patients whose mental health has deteriorated".

I wonder whether the evidence from Scotland and the fact that so few treatment orders have been initiated is because of the geography of that country. I represent the county of Devon, which has two large moors. The idea of anybody being taken anywhere swiftly is something by which we are challenged every day. I wonder whether there is an urban emphasis to the policy. The policy might be easier to implement given the resources and facilities available in a large city area. For the rest of the country-the shire counties, Wales and Scotland-the policy might be totally inappropriate. Does anyone have any views about that?

 

Simon Lawton Smith: It was put to me that if you were in the Orkney Islands or wherever and you needed treatment because of the deterioration of your mental health, it is unlikely that you would go to hospital because it would be so far away. You might have a higher chance of being placed on a community treatment order. In Scotland, people can be placed directly on a community treatment order without having to go to hospital first and then placed on an order on discharge. In fact, around a third of orders made are made as a variation of a hospital order on discharge.

Both you and Professor Maden said that there had been relatively few orders in Scotland. You might think that 245 or up to 300 people is relatively few. Given the population of Scotland, the fact that the powers have been conferred for only 12 months, and the criteria for issuing those orders are tight-considerably tighter than those proposed for England and Wales-I consider the numbers to be fairly significant. They are already larger than those estimated before the legislation was passed.

 

Baroness Meacher: I would like to address a question to Tony Maden. What is your attitude to the autonomy of capacitous patients? We have a highly capacitous service user in the meeting. Does it not disquiet you that someone might interfere with a person's autonomy in the way in which a CTO would? You emphasised that your main argument for supporting CTOs-I support narrow criteria-has to do with homicides. There is no evidence from other countries that CTOs reduce the number of homicides. Does the idea of introducing these incredibly broad criteria for CTO in order to reduce homicides, when in fact there is no evidence that CTOs will do so, disquiet you?

 

Professor Maden: My personal interest and work has been to do with homicide. I emphasised that it is important to remember that the number of homicides is dwarfed by the number of suicides by mental health patients. I am not dismissing that problem, but it is not one on which I have done a lot of work. The issues of "risk to self" are not quite the same as those of "risk to others".

We have to accept that the scientific evidence on community treatment orders is not really clear-both this research and the Schwartz research say that. The Schwartz research, however, shows that there is enough evidence of the benefits of longer-term CTOs combined with good services in reducing the level of violence in people who have previously been violent. That is a small group of patients, but in my part of London such patients are not in short supply. Violence is not rare in mental illness. Homicide was mentioned earlier, and 50 homicides a year is not what I would call occasional, given the severity of homicide, and the general tolerance of risk in medicine. We would ban any drug that caused the deaths of 25 patients a year as a side-effect, yet in mental health we are dismissing as occasional the deaths of 50 people who are not patients but innocent bystanders.

 

Charles Walker MP: Violence is not a rare occurrence in the black Afro-Caribbean communities. Would you therefore suggest that we go around locking up young black males in case they might commit an act of violence?

Professor Maden: Far from it. That is a ridiculous suggestion and a bit offensive. I did not write the reports of the homicide inquiries, they were written by people such as Louis Blom-Cooper, who does not in my view count as a liberal, and Robert Robinson-a highly respected mental health lawyer. If one considers the homicide inquiries, what is troubling is the often-reached conclusion that death was often the consequence of less than adequate treatment.

I am not interested in violence in society as a whole. I am interested only in that violence that results from less than optimum treatment of mental disorder. That concerns me a lot as a doctor.

I am not suggesting anything like what you propose; I am merely suggesting that services need to take the management of serious mental illness very seriously if the patient has previously behaved violently, and ensure compliance with medication. Over the years, inquiries such as the Matthew Hooper inquiry have found that the lack of a CTO has sometimes obstructed the best services and has led to a tragic outcome. By the way, Matthew Hooper was being treated by the Maudsley.

Medicine generally tends to follow the recommendations of inquiries into people's deaths, and we should not dismiss those recommendations lightly. They are a part of the evidence and they ought to be considered alongside the rather inconclusive science on CTOs. No doctor is obliged to use a CTO, but at the moment they cannot. That is the problem.

Lord Carlile: Is this not a needle in a haystack? I am told that there are approximately 20,000 schizophrenics in this country. Even if you had the resources, you could not have a CTO for all of them just in case you found the 30 or however many it is-it does not matter-who were going to commit a homicide. The logical extension of your answer to what was perhaps a slightly inelegantly phrased question, if I may be forgiven for saying so, was that if a lot of Afro-Caribbean males show psychotic tendencies as a result of the over-use of cannabis, why not put all of them who come before mental health services on a CTO, just in case? That is what worries many of the responsible civil libertarians among us.

Professor Maden: On the same logic, why are doctors not using hospital in-patient treatment in that way at the moment? The reason, of course, is that it would be an absurd way to carry on. The needle in a haystack analogy suggests that the problem has come out of the blue. The public get rightly upset, however, not about the occasional homicide that comes out of the blue, but about those that follow highly dangerous previous behaviour.

The classic example is John Barrett, who almost killed a stranger in a completely unprovoked assault, while psychotic. As a result of very poor care, he went on to kill a stranger after that. That is what the public find unacceptable. The Barrett Report observed that at an earlier point in his treatment, before the first assault, only a CTO could possibly have secured compliance with medication. I cannot give the page number, but that is a quotation from the report and I am happy to supply the reference. I cannot be held responsible for what Robert Robinson concluded, but he concluded that only a CTO could have secured Barrett's compliance before the first assault.

Professor Thornicroft: Professor Maden has referred on a number of occasions to a review paper by Dr. Schwartz, which I need to put clearly in context. That paper refers to one particular study, which was the only randomised control trial to produce a positive finding in relation to violence. The review paper was produced by the same group as the study, and is therefore quite non-independent. The same group was invited to write a commentary paper in yesterday's Observer, and I understand that Dr. Schwartz has been invited to address MPs when he is in the country in June.

The paper is a highly partial account. If we take the generality of the evidence-not just from all 72 studies that were addressed in the Institute report, but from two other independent reviews-one by the RAND Corporation and one by the Cochrane database, which operates at the highest watermark of scientific integrity, the findings are the same. There is no evidence that CTOs reduce violence or increase medication compliance.

Dr. Rowena Daw: I just want to quote from the summing-up in the Barrett case. It said that the remedy for what went wrong in that case lies not in new laws or policy changes. There was a reference to CTOs earlier in the Barrett report, but the summing-up did not mention them.

 

Professor Maden: The reason was that the carer was so incompetent that the disaster occurred despite the fact that Barrett was already the subject of a restriction order, which is the closest present equivalent to a CTO.

 

The Chairman: There is clearly some difference in interpretation of the Barrett report, to which we shall return. We have overshot our time. Hywel Williams wants to ask a question and we have time for a brief point from Angela Browning.

Hywel Williams MP: I should like to put a brief question to Simon Lawton Smith about the evidence from Scotland. What observations do you have about the bureaucratic burden in Scotland, what effect has there been, if any, on diversion of resources, and what has been the effectiveness of the orders?

 

Simon Lawton Smith: Consultant psychiatrists find the paperwork very burdensome. However, they appreciate that the system is now fairer for the patient because there is much more patient participation in the process of compulsion. Rather grudgingly, therefore, they have accepted that the legislation is fairer for the patient. Efforts are being made to redesign the forms, so that they will be easier to fill in.

Mental health officers, who provide the front-line care to people on a CTO, are saying-according to anecdote-that they now spend more time ensuring that the care and treatment plan is fulfilled for someone on a CTO, which means that there is less time for other patients. Voluntary patients are therefore beginning to miss out on care and support.

 

Angela Browning MP: Professor Maden seems to have a lot more faith in the resources that will be guaranteed for provision of CTO services. As a clinician, he would need to be 100 per cent. sure that the treatment that he was prescribing for an individual was going to work. If it did not, and if there was a breakdown in services, we would be back to the story that that breakdown increasingly showed the weakness of the system, both for self-harm and homicide. In every case that I have read, one could see the pattern if one read the notes afterwards.

 

Professor Maden: I agree with you completely that a CTO is of no use without good services-there is no question about that. The problem that remains is that, in a minority of important cases, good services will not work without a CTO. Our experience in forensic psychiatry has influenced my thinking, in that we operate the closest thing in England and Wales to a CTO-the restriction order system of conditional discharge, which works extremely well. Relationships with patients are not fraught on the whole, reoffending rates are extremely low-even in such a group of high-risk patients-and people are generally pretty satisfied. It is not the only thing to consider, but it is a part of the evidence. We run a perfectly good system of community treatment with only occasional blips-Barrett notwithstanding.

 

Charles Walker MP: Can we get some consensus on how many people suffer from schizophrenia in this country?

 

Simon Lawton Smith: As I understand it, the figure generally used, for example by Rethink, which used to be the National Schizophrenia Fellowship, is 1 in 100. That is meant to be a figure that applies worldwide.

 

Charles Walker MP: So 600,000 rather than 20,000.

 

Professor Maden: I think that 600,000 is too high.

 

[Inaudible discussion]

 

Professor Thornicroft: It is 0.4 per cent. of the whole population.

Charles Walker MP: So if the population of the UK is 60 million, 1 per cent. would be 600,000, and 0.4 per cent. is about 250,000.

 

[Further inaudible discussion]

 

The Chairman: On that point, let me thank you for your evidence. We continue with the topic of exclusion.

 

Person from the floor: Chairman, you have four amendments left to deal with and no identified service users down to speak. Fortuitously, you have three service users in the public gallery. If it is amenable to your committee and to the incoming witnesses, we would be more than happy to cover the four remaining sessions.

 

The Chairman: Thank you, I shall bear that in mind given the time constraints.

 

EXCLUSIONS FROM THE DEFINITION OF MENTAL DISORDER

Our next witnesses are Mr. Chinyere Inyama, who is a solicitor, Dr. Eric Metcalfe, from JUSTICE, and Dr. John O'Grady, who is a consultant psychiatrist from Hampshire. This next session is about exclusions from the definition of mental disorder. The House of Lords added a number of categories to clause 3, all of which the Government now propose to remove, with the exception of the references to alcohol and drug dependence.

 

Dr. Eric Metcalfe: The definition of mental disorder is of course the gateway to the exercise of compulsory powers under the Bill and indeed under the 1983 Act. I understand that you have already heard some discussion of the breadth of the current definition. From the point of view of a human rights organisation in particular, we note that the right to liberty under the European Convention on Human Rights, which is given effect in the UK by the Human Rights Act, specifically guarantees the protection of people who are brought under detention because of mental incapacity. Article 5(1)(e) deals specifically with the definition of people of unsound mind.

The European Court of Human Rights has given a clear judgment stating that the definition of mental disorder must be very clear in order for exercise of detention powers to be lawful. The use of exclusions is a standard feature of most common law jurisdictions in meeting that requirement. They meet the requirements of legal certainty, of guaranteeing individual autonomy and of ensuring that the powers of detention are used no more than strictly necessary.

By contrast, we find that the diagnostic criteria for mental disorder are not determined with those interests in mind. Diagnostically and analytically it might be perfectly sensible to think that a person who is inebriated is suffering from a temporary disorder of the mind, but it is wholly inappropriate for that to be covered by compulsory powers of mental health detention.

The exclusions in the Lords amendment, therefore, reflect a series of established grounds to which it is recognised that the definition of mental disorder should not apply. That is all that I want to say at the moment, but I am happy to go into further details.

 

Mr. Chinyere Inyama: I broadly agree with Dr. Metcalfe. In the limited time available, I want to focus on the suggested exclusion in relation to cultural, religious and political beliefs.

The Afro-Caribbean or black and minority ethnic community is very vexed by the current situation of disparity in outcomes. The "Count me in" census was published last month and indicated that 50 per cent. of in-patients in London are from the BME community, 40 per cent. of men from African Caribbean backgrounds are likely to be in hospital for more than a year, and the referral rate from the criminal justice system has risen from 5 per cent. to 12 per cent. for that group. African Caribbeans are 44 per cent. more likely to be sectioned and 29 per cent. more likely to be forcibly restrained. The list goes on and on, and the census is the latest in a long line of research that has highlighted such disparities.

The root causes are clearly multi-factorial, and I do not think that anyone has got to the bottom of them just yet. I would suggest, however, that an exclusion could at least counteract potential racial bias, particularly if it targets misdiagnosis as mental disorder those situations in which behaviour within its correct cultural norm could be misinterpreted or could reflect a disordered mental state to an examiner, without there being any clear health or therapeutic care benefit. The exclusion that was passed by the Lords is appropriate, and could be extremely useful in at least trying to tackle the disparities, and I urge that it be kept in.

 

Dr. John O'Grady: One should not confuse mental disorder as defined by doctors with the definition for legal purposes. Any law will define mental disorder for its own purposes, such as abnormality of mind in the context of homicide, or disability of mind for the purposes of defining insanity. The law is a reflection of Parliament's particular views on mental disorder.

As I understand it, the exclusion for drugs and alcohol dependence has been accepted, so the question now is not whether there should be exclusions, but what they should be. My contention would be that the Lords amendments do not go far enough. My own expertise is in forensic psychiatry. With particular regard to sexual deviancy and paedophilia, the argument I think would be that paedophilia is a criminal behaviour, and if it were not for the fact that there is victim who was suffering, it would not be a disorder. One gets into a hopeless tautological argument about the fact that a criminal behaviour is classified under mental disorder, but for legal purposes is simply criminal.

There is a well-established system for managing such situations through the courts, through the extensive and successful sexual offender treatments in prisons and in the community, through MAPPA (Multi Agency Public Protection Arrangements), and through the sexual offender prevention orders in the civil courts.

If someone with paedophilia wished to have treatment voluntarily, they could do so. So far as I can see within mental health law, the only justification would be if someone were perceived to be such a risk to the community that they needed to be detained. The matter then becomes one of the ends justifying the means; the means being a mental health order. I believe that that has unintended consequences, however. One is the absurdity of people who might be deemed untreatable being detained for treatment, which is difficult for me to square as a doctor. There may also be sexual predator laws such as those in America. The Americans put it very nicely when they say that you check in but you don't check out-because there is no way of getting out of the system if you have an untreatable disorder which gives rise to a risk to the public.

There are major issues of justice and liberty. Forensic facilities are scarce and are needed by increasing numbers of people, and the pressure on forensic psychiatry if the Bill proceeds as it is will be considerable and will pervert the normal course of medical assessment and treatment.

 

The Chairman: Thank you. You were models of consiseness, which was helpful given the time constraints.

Can I perhaps begin with the BME topics? Mr. Inyama, are there other areas of the Bill in which you think that considerations with respect to BME could be considered?

 

Mr. Inyama: The issue of principles being set on the face of legislation is not the subject of the Lords amendment, but has been canvassed for some time. I still cannot quite understand the arguments against it. I do a lot of training, and in the training that I undertake on the Mental Capacity Act things get very crystallised with the people who attend the training, when we apply the principles that are on the face of that legislation. There is nothing unusual about that. If there was a non-discrimination principle, it would set the tone for the operation of the Bill and would be one clear way to try to begin to tackle disparities.

 

Charles Walker MP: Could you please explain the non-discrimination aspect?

 

Mr. Inyama: When powers are exercised under the mental health legislation, those who look after patients should ensure that they do so without discriminating against anyone on the grounds of race, culture, behaviour, religious beliefs and so on. That is the kind of non-discrimination principle that I am talking about.

 

Charles Walker MP: Why do you feel that certain ethnic minorities are disproportionately represented in secure units or under section? We have heard that there is an element of racism, which is an ugly word, but it might be the right one to use.

 

Mr. Inyama: You took the words out of my mouth-it might well be true. There is a lot of work to be done. As I was careful to say at the outset, because I am a lawyer and words are important, the question is multi-factorial. You cannot hang everything on racism; there might well be an element of racism or a need for better cultural competence training, though I am not sure about its effectiveness. What is most important is for the BME communities to feel that the mental health system is one in which they have an equal part to play and one in which they will receive fair and equal treatment.

 

Angela Browning MP: I served on the scrutiny Committee and on the Standing Committee in relation to the Mental Capacity Act, in which the Government accepted amendments after initial resistance. The Minister's argument on Second Reading for not including anything expressly in the Bill on that topic was that Part 1 of the Bill amends the 1983 Act. The Minister's argument is that because the Bill amends an existing Act, it is legally impossible to put such principles expressly in the Bill, but that they are in the code of practice instead, and that is as far as she can go. I am not a lawyer and I do not know whether there are lawyers present who can tell me whether that argument is legitimate.

 

Mr. Inyama: Well, I am a mental health lawyer rather than a constitutional lawyer, so I shall not venture an opinion without a good deal of reading. It has always been the Minister's position that the principles should not be expressly in the Bill, even when the Bill was in draft form, so I am not sure that I would be satisfied with her answer.

 

Angela Browning MP: Well, I say to any lawyers who want a bit a cro-bo network, we are open to all suggestions.

The Chairman: Dr. O'Grady, what could be picked up by having such a vague definition without exemptions? You mentioned your expertise on paedophilia. What other interests, or political or cultural beliefs, could be picked up on under the definitions? Would becoming a member of a political party be grounds for being sectioned?

 

Dr. O'Grady: In a liberal democracy such as ours that might be unlikely. However, the evidence from around the world suggests that wide definitions make it easy for society, or an estate in society, to misuse them for what are seen as reasonable ends. Deviation from the norm in Soviet society allowed Soviet psychiatry actively to participate in a very illiberal and unlawful system. There is always that possibility even in our society, so for the Bill to contain a principle that precludes it must be right and proper. It would be a protection for psychiatry and for our patients for that to be the case.

 

The Chairman: You have a rosy view of our liberal democracy, if I might say so. We have heard some succinct definitions.

Mr. Inyama: I am the deputy chair of a tribunal. With such wide and vague definitions, with few exclusions, and with a wide and vague treatment definition, it is going to be hard to argue against detention, and that will make the tribunals farcical, to be frank.

Dr. O'Grady: Society has a problem of people with disorder, however one wishes to define that, who are essentially untreatable or will not seek treatment and who pose a risk to others. As a forensic psychiatrist, my view is that the Scrutiny Committee probably got it right in that there needs to be a proper debate on the rights and wrongs of society intervening in that situation, without wrapping it up in the spurious idea that there is a therapeutic benefit to the person involved, which I think is dishonest.

 

Mr. Inyama: It is important to say that the exclusions would not prevent people from being treated, nor do they tip the balance on public risk in a way that none of us would want.

 

Dr. Metcalfe: On the scope of the exemptions, the Government have accepted that there should be an exclusion for drug and alcohol dependence, so the question becomes one of the scope rather than whether there should be exemptions at all. It is important to note that the Government exclusion only covers dependence on drugs and alcohol, rather than misuse, as covered by ICD-10. For argument's sake, therefore, it would be possible to come within the scope of mental health powers if one misused alcohol, but not if one were dependent on it. I do not think that I need to illustrate the point any further; but that situation would be manifestly illogical.

There was an exchange between the Government and the Joint Committee on Human Rights on the proposed exemption on sexual identity and orientation. The Government maintained that gender dysphoria, transsexualism, and fetishism, which is cross-dressing, should also fall under the term mental disorder for the purposes of compulsory treatment. In their response, the Government maintained that they could not possibly conceive of a situation in which it would be necessary to apply those powers, none the less they maintain that it is necessary to include those categories within the existing definition of mental disorder.

By contrast, let us look at the position of the Joint Commission on Human Rights, which is to say that if there is no evidence, how can we maintain that it should not be excluded? We feel that it would fall properly under the exclusion of sexual identity and sexual orientation in that it is therefore necessary, given the history of psychiatric treatment in relation to sexual disorders. We have only to go back a short time to see how mental facilities treated homosexuals as a mental disorder. It is important to have such an exclusion for sexual identity and sexual orientation and, similarly, a broad exemption for substance misuse. Both things are properly not within the scope of compulsory mental detention powers.

 

The Chairman: To come back to the alcohol point, going on an occasional bender of your own volition and making a fool of yourself could be construed as a mental illness. But relying on that on a regular basis, which is a dependency, would not.

 

Dr. Metcalfe: Under the terms of the Government's proposed amendment. It is striking because the ICD10-the diagnostic criteria of the World Health Organisation for mental disorder-includes alcohol misuse and alcohol dependence. The diagnostic criteria have to accommodate any concept of temporary disorder of the mind. If you were heavily inebriated, you are bound to have a disordered mind and therefore bound under the diagnostic criteria to fall within those terms. That is the problem with the scope of the Government's definition.

The Government might reasonably say that they never plan to section people who are drunk but, with respect, the point of good legislative drafting is to arrive at sensible terms that do not rely on the generous discretion of officials. If the Government can see no reason why alcohol misuse should not be excluded on the same basis as alcohol dependence, they can hardly disagree.

 

Angela Browning MP: If the Government were to actually include alcohol dependency, the serious implications would be enormous. We all know that if there is one area where we need more resources, it is to deal with alcohol dependency.

 

Dr. Metcalfe: Yes.

 

The Chairman: That was a rather interesting session. Thank you very much. It was very valuable. In fact, the exemptions are likely to come up in Committee tomorrow.

We now come to the impaired decision-making session. For the record and to go back to our previous discussion about schizophrenia, the figure that is commonly used is that one in 20,000 schizophrenics may commit a homicide. It is not that there are 20,000 schizophrenics of which one of them may do that, but it is a 1 in 20,000 ratio. We are working on the basis of roughly 250,000 people suffering from schizophrenia in the United Kingdom, if the figures were correct.

 

IMPAIRED DECISION-MAKING

The Chairman: Who would like to kick off?

 

Dr. Tony Zigmond (Consultant Psychiatrist, Honorary Vice-President, Royal College of Psychiatrists): In the early days of the Wakefield asylum, there were many recorded admissions of people suffering from political excitement!

There are two issues related to impaired decision-making, the first of which is whether we should have it? Secondly, if it is a criterion, is it practical. Is it one that clinicians can reasonably use? The grounds for saying that it should be there come from trying to do two things: one is to say that the days when people with a mental illness were automatically deemed to be different from those with a physical illness should have gone, in that the same respect for personal autonomy should apply no matter the diagnosis or the illness that someone is suffering from, but what matters is whether or not the disorder interferes with the person's ability to make decisions for themselves. If we are to move away from a 20th century stigma of having a mental disorder, it is essential that we make that a clear statement. It would bring us nicely in line with the provisions in Scotland, so that England and Wales can have the same essential criteria for compulsion. That is a starting point to why it is necessary. I shall now hand over to George to talk about whether it is practicable.

 

Dr. George Szmukler (Consultant Psychiatrist, Maudsley Hospital; Chairman, King's College London Health and Society Network): I agree with the recommendations of the Richardson Committee, the Milland Committee, the Joint Scrutiny Committee on the Draft Mental Health Bill, the Banford Committee-most recently in Northern Ireland-the Mental Health Alliance, which represents nearly all of the key stakeholders, and the House of Lords, which proposes that an impaired decision-making criterion is an essential feature of a modern Mental Health Act.

As Tony Zigmond has told us, such a measure would bring the treatment of the mentally ill in line with the treatment of other patients with physical disorders, in so far as we can distinguish physical from mental disorders. It would end discrimination against people with a medical disorder. It would also bring to an end the lack of respect accorded to the autonomy of patients with a mental disorder or their self-determination that currently characterises the Mental Health Act, but which is contrary to medical ethics in our society at this time.

The Mental Health Act permits what the Mental Capacity Act 2005 would never countenance: the treatment of a capable patient against their wishes. There needs to be a good reason why we should allow that departure from principles. I cannot see another justification for the treatment against their will other than the fact that they are not able to make those decisions for themselves.

Moving slightly into the area of practice, I can see the difficulties of reconciling the Mental Health Act and the Mental Capacity Act. Those two separate Acts proceeded at the same time, each saying that they were not of definite relevance to each other. Let us consider the code of practice that accompanies the Mental Capacity Act, either at chapter 6 or chapter 7, in which there are extraordinary descriptions of how the Mental Capacity Act should relate to the Mental Health Act. It demonstrates that there is something intrinsically inconsistent and incoherent about having separate bits of legislation.

Moving on to some practical areas, I am quite familiar with research into the assessment of capacity having been in several projects myself. Contrary to what is often said, the ability that doctors to rate impaired capacity reliably is clear cut. In fact, they can rate capacity very reliably indeed, especially if they have been trained to do so. They can rate capacity more reliably than oncologists interpreting mammograms, cardiologists interpreting exercise ECGs and haematologists interpreting visually blood films. There is an extremely high rate of reliable assessment capacity has been shown in about a dozen studies of patients with psychiatric mental disorders. The reliability is as high in psychosis, schizophrenia or effective psychosis as it is Alzheimer's Disease or learning disabilities. It is clear that it can be rated reliably.

Some issues have been raised about training. Well, every doctor needs to be able to assess capacity under the Mental Capacity Act. Every doctor will have to be trained to assess capacity so that the training requirement is already there. Our research has not found that fluctuating capacity was, in practice, difficult. We found that the reliability of ratings by two raters, separated by one day or one week, did not differ. At least over a course of one week, there did not seem to be major changes in the capacity of patients.

It is often asked whether an impaired decision-making criterion would result or more or fewer patients being treated involuntarily. I do not know the answer to that. We found in our research that 85 per cent. of patients who were detained under the Mental Health Act lacked capacity. The overlap is therefore likely to be very high. Some have assumed that the mental capacity criterion would reduce the number of people who would be treated involuntarily, but it is just as possible that the numbers would increase.

What a capacity or impaired decision-making criterion allows is an intervention perhaps at an earlier point in a person's illness. Instead of having to wait for serious risk to emerge before persuading everyone that action must be taken, if the patient loses the capacity to make treatment decisions for himself and treatment is warranted in his best interests, which is the other element in a capacity-based approach, it is likely that treatment could be brought into effect earlier.

The point is that an intervention under those circumstances may be earlier. There may be more people under compulsion; there may be fewer, but the principle underlying the intervention is clearly ethnical and can be easily defended. People who argue against a capacity based or impaired decision-based criterion say that it will miss people who need treatment. That poses an interesting dilemma for me: how do they know that those people need treatment? What are the criteria that they are using to determine that? We need to start with the principles about who should be eligible for compulsory treatment and then worry about whether it is being applied properly rather than start with a view about for whom it is appropriate, based on vague suppositions and then try to manipulate the rules to give that particular answer.

 

Paul Bowen (Barrister, Doughty Street Chambers): There is very little I can usefully add except to remind everyone that the right of autonomy is one that has been established for many years in this country under common law. John Stuart Mill referred to it when he wrote famously in his essay in 1859 on liberty that the only justification for interfering with someone is to protect other people. He said:

"His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully to do or forbear because it would be better for him to do so, because it would make him happier, because in the opinions, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise."

He went to make an exception: that those whose views are to be respected and those who are in full possession of their mental faculties are those who have capacity.

I am sure that you have heard the word "discrimination" many times, but the plain and obvious discrimination against those with mental disorder is that they alone can be propelled by way of attention or treatment for their good, so it is necessary for in a democratic society to decide whether there is an objective justification for that discrimination and whether in that objective justification a proportionate means is employed to meet that end.

When we consider the current proposals in the Government's Bill, we must bear in mind that certain safeguards have already been removed, such as the treatability requirement. The definition of mental disorder has been widened. We must look at them as part of a system of safeguards. The requirement that there be some form of explicit recognition given to an individual's right to choose is one that now requires to be recognised under the Bill. It is connected with treatability, for example, in the requirement that there be some kind of therapeutic benefit in that sense. When examining whether there is an objective justification for this discrimination, we must consider the justification for detaining someone. The protection of the public is obvious. We have criminal justice legislation that meets that end. The other possible justification must be that detaining someone must be for the benefit of the individual himself.

When there is plainly benefit for the individual, there is a pay off. We do not have to have the same level of procedural safeguards, for example, as we have in criminal justice legislation because the justification is provided by the fact that we are doing this for the individual's own good and we will actually help him or her. It concerns me that if the legislation is being used as a means of identifying and locking up those people of whom we are afraid-those people who are a risk, such as the Michael Stones or the Christopher Clunis' who seem to be the two individuals who provide the impetus for the legislation-the danger is we are conflating the two justifications that exist for detaining people. We would effectively introduce preventative detention, but under the guise of detention for the benefit of the individual.

In other jurisdictions, legislators have been honest and have distinguished between sexually violent predators and people who require medical treatment. In Washington, Kansas and some states in Australia they have introduced specific sexually violent predator legislation, which permits the detention of dangerous individuals, but the pay off-or the quid pro quo-is that very strict procedural safeguards are introduced to protect individuals from being detained arbitrarily under the legislation. They are very akin to the criminal justice procedures to enable someone to be detained in that way.

We are at risk of using mental health legislation and the philosophical justification that underpins that-providing someone with treatment-as a vehicle essentially for introducing preventive detention. Eventually, that will undermine public confidence in the system. It will drive people who need help away. In summary, the time has come for progressive legislation to recognise something that has been recognised for many years by the law in other contexts.

 

Angela Browning MP: Having served on the scrutiny Committee, I am quite convinced that the Government's initial argument was that they could use the measure as a vehicle to persuade the public that it would protect them against people who were potentially dangerous. Even the Minister is now backing off at a rate of knots from that perspective.

However, my present worry developed during the Second Reading in the Commons and I should be grateful for your advice. I accept the principle of the fact that we have to do something about stigma and that physical and mental conditions should be treated and that we should try to move away from the fact that people with mental disabilities and problems were told what they would do rather than have an impact themselves, in terms of treatment. But the debate on Second Reading worried me. If we use the comparison of someone who is terminally ill with cancer and they have undergone a range of treatments, the outcome is still the same. They reach a point at which, with all the information in front of them-we saw the sad case of the young girl who made exactly that choice at Christmas time. She said, "I have had a lot of treatment. I know that it will not save me, but I would like to spend my last Christmas at home with my family and therefore not have any more treatment but knowing what the outcome will be."

In a physical illness, that is much more understandable than in a situation where we have someone not who is likely to harm someone else, but I am talking about self-harm. Let us consider people who suffer from bulimia, often trying desperately to conceal the symptoms until they are critically ill. They still want to deny treatment. Moreover, what about a person who is seriously contemplating suicide-a position that is understood between both the clinician and the patient-but still will not accept that they need treatment? Are we really saying that the two are like-for-like comparators? I do not think that we are. That is how the debate was going on Second Reading. I am rather worried about it.

 

Dr. Zigmond: You are talking about those who will kill themselves quickly rather than slowly. I shall quickly repeat the figures. As for those who have had a heart attack, the number of patients who continue taking statins as they ought is just 8 per cent. People with insulin-dependent diabetes are advised to test their blood sugar four times a day. Less than one in five even test it once a day. We permit people to harm themselves over time. You are talking about a group of people who will do so more quickly.

The Government maintain that it is possible to have a serious mental illness that would lead to such determinations without having impaired decision making. We do not accept that that is so. It depends on what we mean by serious. People may have a serious illness, but they are not ill at the time. In terms of being ill, we can only assume that most of the time they do not wish to kill themselves. That being so, why do they wish to at this particular point? It can only be because the illness is worse and their decision-making is different and impaired from how it is normally. We do not accept the Government's premise that it is possible for someone who is seriously ill at the time and their approach to life has changed, in that they are trying actively to kill themselves-but whose judgment is not impaired.

We recommended impaired decision-making and that the Lords adopted it rather than incapacity. Many people have the suggested the same incapacity test as in the Mental Capacity Act. We recommended it (impaired decision-making) because it has been argued that the capacity test focuses very much on ability to think, whereas we recognise in relation to mental disorder that much of it is to do with ability to feel. It is the ability to make decisions as a result of the mental disorder. The depressed person does not appreciate at the time their feelings of worthlessness. They recognise that they have worthlessness and that they suffer from a depression and, in that sense, may retain capacity. But they do not appreciate that their feelings of worthlessness are due to the depression at the time that they are feeling it. That is why the impaired decision-making aspect is necessary. They will suffer from it, and it will not stand in the way of anyone getting the treatment that they require.

 

Angela Browning MP: Thank you.

 

Dr. Zigmond: I wish to make a brief additional comment. Of course, we have not recommended it and the Lords have not adopted it in relation to part 3-detained patients or community treatment orders that arise from part 3 detention. We have not done so because such patients are not in a position voluntarily to accept hospital treatment. They may otherwise have to go to prison, which is why that group has been excluded.

 

Charles Walker MP: Do you think that this is a public health Bill, or more of a public order Bill? Where do you think the balance lies: public health or public order?

 

Paul Bowen: It is plainly a mix. It is a combination. The amendments to the Mental Health Act seem to predominantly be about public order rather than public health.

 

Dr. Zigmond: It should not be either. It is supposed to be a Mental Health Bill for the individual. Indeed, we must ask what public health measures can improve the health of the nation. A good example was introduced at the time when HIV/AIDS became an issue. There was not any suggestion of coercion, but the opposite: that we increase confidentiality; we make more services available and we do all we can to persuade people to come forward for treatment. In public health terms, we are far more likely to reduce risk by getting people into treatment than we would ever do by coercing an individual. It is neither. The Government may wish to use the Bill as a public order thing, but it should not be either.

 

Dr. Szmukler: It certainly has health aspects, but the failure is to recognise the stakeholders. That lawyers, doctors, patients, carers, social workers and psychologists agree has never occurred anywhere in the world, as far as know. The failure to recognise the statements of those bodies that are health-related statements makes one think that more is being put into the Bill than it trying to improve mental health measures.

 

The Chairman: Thank you very much. The evidence was very helpful. Let us move to the treatability session. In response to questions from the public gallery, given that we are behind time I do not propose to call service users or others, but if you wish to give us notes of any comments you would like to make, we shall consider adding them to the evidence. For practical purposes, that is all that we can do because we are behind time.

 

TREATABILITY

The Chairman: The treatability parts of the Bill are likely to be discussed early in the Standing Committee, perhaps tomorrow so it is a topical subject.

 

Professor Nigel Eastman (Profession of Law and Ethics in Psychiatry, University of London; Honorary Consultant Forensic Psychiatrist, St. George's Hospital, London): I wish to pick up the last question at the last session. Although we are supposed to be amending a Mental Health Act, the abolition of the treatability test would convert the Act into a mental disorder Act. It would broaden it beyond health into how do we deal with aspects of mental disorder. In the sense, the nub of what I am saying is encapsulated in that idea. It seems that the treatability test-or preferably, the therapeutic benefit test-is the lynchpin of that conversion. There are other things, such as the lack of exclusions that also goes hand in hand with the treatability test. But that-or the therapeutic benefit test-is the lynchpin of converting an Act, which is a health Act, into a disorder Act and thus substantially broadening it.

The abolition of the therapeutic benefit test is substantially to alter the range of the social role of mental health professionals. At the same time, it inhibits the civil rights of some people with mental disorders in a way that does not apply to people who do not have those disorders. It is often said that the treatability test has been so broadened by the courts that changing it in the legislation does not matter. I do not agree with that. It has been broadened and it has been broadened towards care. I see nothing wrong with the notion of care for people with mental illness. There is a leading case in Scotland that does that.

The issue is not whether there should be a treatability test, but whether we should have a therapeutic benefit test that can include giving care to people. I do not see any difficulty in broadening that so long as we are dealing with mental illness. My difficulty with it and that of most psychiatrists is applying that approach to personality disorder. That is because personality disorder is qualitatively different from mental illness. In that regard, I refer people back 50 years to the Percy Commission, which was the originating commission that brought personality disorder into the 1959 Act. It treated personality disorder entirely differently from mental illness and required within its definition required that it be treatable. The reason was, first, to protect the proper health role of mental health professionals and, secondly, to protect citizens from being preventively detained for something that was a fuzzy disorder and different from mental illness, and which could not be treated like mental illness. There was an alternative way of controlling such behaviour, which was the criminal justice system.

It is the case that personality disorder is sometimes properly the responsibility of the health services. In my view, that is only when there is some element-it may be quite small-of reduction of dysphoria in the individual. If there were not an element of dysphoria in the individual, we do not have a way in which to distinguish between treatment and containment. If it were solely directed towards the protection of the public, treatment becomes equated with containment.

The analogy with care that is often used, and I think used by the Government, is that people have this awful order so they ought to receive care. It is a spurious analogy. It is spurious by virtue of the nature of personality disorder compared with other mental disorders. That is captured by a learned article written by probably the most famous academic psychiatrist in the latter half of the 20th century, Aubrey Lewis. In 1970, he wrote a paper that said:

"Personality disorder is different from other disorders because it is a disorder of the whole person."

Proper illnesses and diseases-if I can put it that way-are defined in terms of a disorder of part function or a disorder by virtue of the person changing away from their own previous normality into a state of illness. Personality disorder is a disorder of who you are, and that is what makes it different.

Case law says that treatment for mental disorder includes treatment for the consequence of the mental disorder. If we accept that personality disorder is no different from mental illness in medical legal terms, it means that anything that arises from the personality disorder is susceptible to treatment-in other words, everything that the person does, because it is a disorder of who they are, becomes a symptom of their disorder. Anything we then do to stop that becomes a treatment for the symptom of the disorder. That is absolutely captured in the Government's Bill because the terms of the test are so broad that they include any symptom or manifestation of the disorder. It pretends that personality disorder is just like mental illness or even physical illness, and that somehow if we are inhibiting the consequences of the disorder, it is no different from caring for someone with Alzheimers. It is fundamentally different because it is a disorder of who you are. That is where the difficulty arises in deciding the responsibility of the criminal justice system and the responsibility of the health system.

My bottom line-and I think that of the college; I sit on the executive of the Committee of the Forensic Faculty-is that there must be some element of reduction dysphoria in the individual to keep it within health. Otherwise, as I said to the Scrutiny Committee, treatment becomes synonymous with containment.

I wish now to go to what the Government wish. They wish that there should be treatment that is available appropriate to the patient's case, taking into account the nature and degree of the mental disorder-including personality disorder-and all the other circumstances of the case. As I understand it, the code defines "appropriate" as intended to address the order in terms of alleviation or prevention, management of the disorder itself, management of the symptoms of the disorder, management of the manifestations of the order and management of the behaviour arising from the disorder. In other words, it amounts to management of the person. However, it is not even that it is likely to succeed in doing that; it is intended to.

Let us suppose that a person went to his general practitioner and he or she said that he had an illness and wished to recommend the following treatment. Rather anxiously, the person replied, "That's great. Is it likely to help me?" The GP will say, "That is not a relevant question." That is what the Bill says; it is irrelevant whether it is likely to result even in stopping a person being violent.

Last summer, I was examining St. George's final year medical students for the prize in psychiatry. We interviewed five candidates, who were the best candidates in the final exam. They are people who we want to attract to psychiatry. They are good; they are bright; they are interested and they are half way there to being recruited. At the end of the viva, we asked each one whether they knew what the Government intended in terms of abolition of the treatability test. I explained that it would involve doctors admitting people to hospital where there was no benefit to the individual. I looked at one blank face after the other. They said, "But, how could you do that?" They were young people who had been trained in medicine in modern medical law and ethics. Not only is mental disorder stigmatised by the Bill; psychiatry and other mental health professions are stigmatised and we will not have any docs to do the work.

 

Dr. David Hewitt (Partner, Hempsons Solicitors, Visiting Fellow at the University of Northumbria and the University of Lincoln): I might have been one of those to whom the press referred recently about my view of the treatability view. It is extremely broad. Under the Mental Health Act, the definition of medical treatment is extremely broad. The courts have made it far broader still to the extent that there must be very few cases that cannot be brought within it. For me, that means that those who reject the notion that a person can be treated simply by being locked up have to do more than simply oppose the appropriate treatment test. That is why the amendment that seeks to put a premium on therapeutic benefit is so important because it is responding not just to the Bill, but to a problem that has been created by the expansion of the treatability test.

The Government are fond of saying that the treatability test has been misunderstood. If we are of a cynical mind, we could say that it has been misunderstood most by the Government. If it has been misunderstood; the answer must be to treat or to train clinicians far more thoroughly, not to introduce a whole new raft of tests with intricate provisions of their own. It seems logical that that would be the position.

The appropriate treatment test is not without its own problems. What concerns me most is the fact that we do not remove the fault lines simply by moving to an appropriate treatment test. We just put them somewhere else. At the moment, the Government would have us believe that clinicians are avoiding detaining people by saying, "Well, in my clinical judgment it is not appropriate that you would not be treatable and that there would not be an effective outcome from the treatment." The problem is that, if one took a cynical view of the clinicians concerned, we would say that now is the ideal opportunity to pass the buck and, effectively, clinicians would now be able to refuse treatment not in their own clinical discretion, but on the grounds simply that a patient requires treatment, but that it has not been provided by the local PCT. If we were minded to try to deny treatment, that would be a rather easier way to do it.

I am also concerned about the nature of appropriateness. The Government said in the draft illustrative code of practice that treatment psychological therapies such as those currently being used in the case of patients with personality disorder will still be appropriate, the test will still be passed and the patient will still be detainable even if the patient to whom they are to be applied will not co-operate with them. All will that be necessary is that it must continue to be clinically appropriate to offer those therapies. If it remains clinically appropriate to offer them, the Government says in the draft code of practice that the appropriate treatment test is passed. Can it ever be clinically appropriate to continue to offer treatment to a patient in the teeth of his or her refusal? How long does it continue to be appropriate? How long does the appropriate treatment test continue to be passed in those circumstances?

I apologise if the points that I am making are somewhat disjointed, but I am concerned about something that was said by the Secretary of State for Health in the recent debate. On 16 April 2007, Ms Hewitt said that the treatability test has been misunderstood-a common theme-and she pointed to one of the baleful effects of that when she said that

"because of the assumption that people with personality disorders were not treatable, services to treat them had not been properly developed over a period of many years...Those services need to be developed."

If those services are not in place now, how will the treatment test be satisfied in the case of any patient during the next few years?

 

Professor Kwame McKenzie (Professional of Mental Health and Society, University Central Lancashire; Senior Lecturer in Psychiatry, University College, London; Consultant Psychiatrist, Barnet Enfield and Haringey NHS Trust and Member of Ministerial Advisory Group on BME Mental Health): The current position under the Mental Health Act 1983 is that there is a treability test that is employed for people who are detained with a personality disorder. It states that people can only be detained if treatment is likely to be prevent their deterioration or improve a patient's care. We have talked about the fact that the Government want to change the treatability test to an appropriate treatment test an that benefit to the individual would not need to be proved.

My position is that people should be detained only on section is the medical treatment that they can be offered is likely to benefit them. That is in line with the Richardson Committee when it said that health statute should authorise overriding patient autonomy only if there are positive, clinical measures included that propose care and treatment that are likely to prevent deterioration or secure improvement in a patient's mental condition.

The appropriate treatment test that the Government are talking about essentially asks health services to detain some people when there is no therapeutic benefit to them. Their autonomy would be over-ridden without the need to produce any proof that treatment will help them. The idea that a person could be liable for detention simply if treatment that was appropriate for their condition was available is misunderstanding clinical practice. That is not how clinicians work. A good clinician is mindful of the evidence base and statistics, but makes decisions based on the patient in front of them, their specific needs and their presentation. The point is not whether treatment will work in X percentage of people or whether it is intended to work, but whether it is likely to work for the person in front of them.

There are clear, philosophical and ethnical human rights considerations about the appropriateness of using doctors to detain but not treat people. We have talked about them already. It is further clouded by the fact that detentions will be for people who have committed no crime, but are considered a risk. The sections can be renewable, renewed and renewed, and our assessments of risk are pretty poor.

Professor Eastman alluded to further difficulties because they really undermine some of the important principles of being a physician. Clinicians see people for medical treatment and that is the important principle that underpins our professional role; the doctor-patient interaction and the relationship between clinicians and the wider society, such as carers and the community. Clinicians treat people. That is what we do. Asking us to detain and section people whom we cannot treat is asking us to act as a prison justice system, not a health system.

In 2004, the Joint Scrutiny Committee reached a conclusion that was seen by services to be relatively uncontroversial: that the primary purpose of the mental health legislation must be to improve mental health services and safeguards for patients, and to reduce the stigma of mental disorder. If we get rid of the treatability test, we may make services worse. We will undermine relationships between clinicians, their patients and the communities for which they work. It will distort our clinical priorities and it will diminish rather than add safeguards for patients, which is unlikely to decrease stigma. The treatability test, as we know, is alive and kicking in Scotland. I am not saying that just because my name is McKenzie, but it not completely clear why we want to abandon it here.

One of the things that I would like to pick on is something that Professor Eastman said in that the only people who ever tried to survey the views of psychiatrists in training found that 85 per cent. of them were concerned about the loss of the treatability clause and a number of them had decided to change careers because of it. As the committee knows, in many ways psychiatry is a stigmatised profession and considered by some branches of medicine not to be legitimate branch medicine. We have always had morale problems. More recently, there have been problems in recruiting psychiatrists with up to 300 or 400 psychiatry posts empty. If we are asked to detain people for no therapeutic benefit, it will further stigmatise psychiatry as a branch of medicine and it will exacerbate the recruitment problems that we have already.

I have a special interest in black and minority ethnic groups. I work in North London in a psychiatric intensive care unit and see a lot of people from black and minority ethnic groups. The African and Caribbean groups that I work with all the time are worried about psychiatry. They do not trust us. They think that they we are an extension of the arm of the state. Part of the reason for that is that they think that we detain people and give them drugs when their problems are socio-economic. I get round that all the time by showing that I am actually a caring physician who is trying to benefit their health, proving to them, their carers and the wider community that I am a doctor. If that is undermined and made more difficult, and it becomes clear that we detain people for no therapeutic benefit, it will make the problem that I have dealing with minority ethnic groups more difficult.

Those here will be aware of the "Count me in" census shows that admission rates are three to five times higher in minority ethnic groups and that detention rates are also higher. It is a significant problem. Even if we do not talk about non-minority ethnic groups, but people in general, I wish to draw attention to the YouGov poll that was commissioned by the Royal College of Psychiatrists. I see people nodding, so they have been told about it.

 

The Chairman: We were told about it at the debate on Second Reading. It seems to be a bit of a secret. We publicised it last Monday.

 

Professor McKenzie: So I do not have to explain that we would be way of out line with the rest of public opinion if we were going for treatment with no benefit, when the 68 per cent. and 75 per cent. of people say that they do not agree with it.

 

The Chairman: We might invite the Royal College to give us the full details of the poll, including the report. Dr. McKenzie, you just referred to some surveying of the professionals about the effect that the issue would have on them, perhaps leading them to want to leave the profession. On what evidence is that based?

 

Dr. McKenzie: It was a publication called "The Psychiatric Bulletin". It is part of the journal of the Royal College of Psychiatrists. Specialist registrars in Hampshire were surveyed. I am happy to leave the reference with you.

 

The Chairman: As for treatability, the Government referred to treatment resistant patients, yet Louis Appleby is on record as having said at the National Personality Disorder Conference on 18 January that most people with personality disorder can be treated without the Mental Health Act, and that its use can even be counterproductive. Can we actually define who the treatment resistant patients are? [Silence].

 

Dr. McKenzie: Far be it for me to! Treatment resistance is usually used within the confines of talking about psychosis such as schizophrenia. It describes people who have not benefited fully from treatment with anti-psychotics. They would be covered usually by the fact that, if they were not detained and there was no occupational therapy and they were not treated with any anti-psychotics, there might be a deterioration in their mental health. They are people with psychotic disorders, not people with personality disorders. I am not aware of the use of treatment resistant with regard to people with personality disorders in that way.

 

Professor Eastman: I did not know the quote nor did I understand it. I was not sure if the resistance was referring to the disorder or the person. Is it that disorder is resistant to treatment as in schizophrenia or is it that the person is resisting being treated? Clearly, the Government's intention with the introduction of "availability" is one element of that, the purpose of which is to avoid the person who says, "I don't want to be treated, therefore I am not treatable." I am not sure that I really understood the quote.

 

The Chairman: The Minister who will remain nameless was claiming that lawyers are hawking their services around Broadmoor suggesting to their clients that if they have a personality disorder, and say that they will not accept that treatment, it would make them untreatable so there is little that can be done to detain them. Those people are then let loose on the streets.

 

Professor Eastman: I think that you have to distinguish. I do not work at Broadmoor, so I do not know whether that is true. It is entirely conceivable that some lawyers may say that, but there is still a distinction between dealing with that issue under the legislation as an issue and so broadening the requirement for abolishing the treatability test that no consideration is given to whether the disorder in the person is capable of treatment were they to say yes to it. Does that make sense?

 

The Chairman: Yes.

 

Dr. Hewitt: I am not one of those lawyers. I am on the other side. I hear anecdotal evidence of that happening. However, I do not think that it is a huge problem and I do not believe that this is how to deal with it.

 

The Chairman: Can you quantify what you mean by saying that you do not think that it is a huge problem?

 

Dr. Hewitt: We hear about such cases perhaps once or twice a year. They are not suggestions that, in the absence of further proof, ever persuade a court or a mental health review tribunal. Tribunals and courts are well used to looking behind that sort of thing.

 

Professor Eastman: I think that we are saying the same thing. I am also saying that we could deal with matters with a slight change in the legislation. We do not have to so broaden the test that it ceases to be a test. My difficulty is how anyone with personality disorder could ever show that they did not come within the terms of this non-treability test.

 

Dr. McKenzie: In my experience, the decision that a person is "untreatable", which is relatively rare, is made usually after a number of attempts to treat them over a protracted time. It therefore becomes reasonable to assume that treatments for such patients are unlikely to work, but it is not a snap decision. It is a process that takes place over a period. A lawyer going to a tribunal and saying to a person, "Refuse to be treated and you will not pass a treatability test" is unlikely to get past most mental health review tribunals because they are a bit cleverer than that.

 

Professor Eastman: The use of the term "treatability test" is a red herring. It is unfortunate because it implies a switch that is on or off. That is not what we are talking about. The evidence that I gave to the Scrutiny Committee, which I think that it pursued ultimately as its view, is that there should be some therapeutic benefit. I am not saying that we should be able to cure the person, but just that there has to be some scintilla of benefit to the individual to maintain the activity as validly and properly being within the domain of health.

I am also a clinician and I look after people who are a risk to the public. I have no problem about protecting the public, but I am doing some good-however small-to the individual concerned. It is the abolition of that which then pushes it away from health. It is the final straw and is what pushes the amendments into making a Mental Disorder Act rather than a Mental Health Act, because it extends beyond what is health treatment.

 

The Chairman: Can you quantify how many people in this country you think are suffering from personality disorder? How many of those have dangerous personality disorder?

 

Professor Eastman: That is a huge question. The studies are extraordinary difficult to undertake because community studies should be carried out. Large numbers of people in the community could be diagnosed as suffering from personality disorder. For example, perhaps 1 to 2 per cent. of the population suffer from borderline personality disorder. That is one type of personality disorder. If we put that against 60 million, that is an awful lot of people. If we do not have adequate gates to stop sectioning, clearly all those people are potentially sectionable. The problem is concerned to some extent with what sort of threshold is taken. That is an aspect of the disorder because it not a change to the previous normality of the person away from home, but it is their status against the rest of the population. Therefore, we could have different thresholds in terms of how bad a person must be to be suffering from a disorder rather than a type. That applies in prison or the community.

Prison populations have high numbers of such people. In some studies, there have been 50 per cent. or 60 per cent. In a sense, that is another side of the coin. Why should they not all have access to mental health care, if it so important that they receive mental health care? My answer is that it is the other way round. Largely, it is the responsibility of the criminal justice system. The Bill is intending to amend the Act in order for the Government to be able to ensure that a group of people that they are particularly worried about can essentially be directed into the health service.

 

The Chairman: Thank you. We will have to end that session. We have one last session. I am sorry that we have slightly overrun our time. Let us try to be concise during our final session on the renewal of detention.

 

RENEWAL OF DETENTION

The Chairman: Who would like to start?

 

Lucy Scott Moncrieff (Mental Health Solicitor in Private Practice; Member of the Law Society's Mental Health and Disability Committee): I wish briefly pick up on the last topic of treatability. I have spent 25 years representing patients at Broadmoor and, during that time, I could count on the fingers of one hand the number of people who were discharged because they were untreatable. Of those people, only one of them was discharged as untreatable against the opinion of his own doctor. Normally, when people are found to be untreatable it is because their doctors have exhausted all avenues and just say, "Yes, we cannot do anything more for this person." If people could get out by not accepting treatment, a lot of people would be out of Broadmoor, and they are not. It just does not happen.

The Chairman: That is very clear. Thank you very much.

 

Lucy Scott Moncrieff: The Mental Health Bill creates a new sort of professional: the approved clinician. The qualification is open to doctors, nurses, psychologists, social workers and occupational therapists, and it is not necessary that the approved clinician is qualified to prescribe medication. It is proposed that any approved clinician responsible for a detained patient will have the authority to renew that patient's detention. I agree with the Joint Committee that the essential competencies of an approved clinician do not ensure that objective medical evidence can be given by them such as to justify detention, although, of course, some will be able to do so. The legality or otherwise of the Approved Clinician Scheme will have to be thrashed out in court. But whether or not the scheme turns out to be illegal, it is undoubtedly immoral to use detained patients as guinea pigs in a Government experiment to alter, very significantly, the way in which specialist psychiatric services are delivered.

I do not have any objection, in principle, with the notion of de-medicalising the treatment of mental disorder, but this is not the way to do it. If the Government wish to experiment in this way, they should place newly-qualified approved clinicians in low-key, low-pressure, small-scale community setting. Those placements should be thoroughly evaluated before approved clinicians are allowed to be responsible for detained patients on acute-admission wards; and no approved clinician should be responsible for a detained patient until there are enough approved clinicians with enough experience to mentor and supervise him or her.

Not only are the Government experimenting on this vulnerable and captive pool of people, they are also discriminating against them. Under the Mental Capacity Act, renewal of detention has to be authorised by a doctor. The Health Minister, in her response to the Report of the Joint Committee, asserted that detention under the Mental Capacity Act would be for social care. It makes no sense to require a doctor to authorise the renewal of detention for social care, but to say that that is not necessary when someone is to be detained for medical treatment.

Dr. Shantanu Datta (Deputy Chairman of the BMA's Psychiatric Sub-Committee; Specialist in Old Age Psychiatry at Birch Hill Hospital, Rochdale): I worked and trained as a GP before I qualified as a psychiatrist. I wish first to thank the multi-disciplinary team that I am pleased to work with for allowing me to attend today at such short notice. That actually brings me to my very first point, which is the importance of the multi-disciplinary team before I deal with the specific context of renewal of detention, which I will come to in a minute. If we look at the journey of patients presenting at psychiatric services and mental health services, the vast majority, quite rightly, are treated in the community. They are treated informally and without any necessity to draw on the principles of compulsion.

There have been a number of initiatives to broaden up the capabilities and experience of the multi-disciplinary workforce in treating and assisting the care of those patients, and that is entirely appropriate. The principles of a flexible approach to leadership, the most appropriate professional seeing the patient at any one time and distinct responsibility, are all entirely appropriate. However, when considering the renewal of detention, we are looking at a very specific sub-group of patients. They are people who have been subject to compulsion, would typically be in in-patient settings, would have been detained once and are now coming up for renewal of detention.

It is true that the number of sections that are being implemented are rising-I think the figures are quite large-but to put that into context, it is still a very small number of patients with specific needs in the context of people presenting to mental health services. Arguing for the role and importance of objective medical expertise is not at all inconsistent with the broad principles of multi-disciplinary working that are essential for the majority of mental health care. We very much welcome in principle the broadening of the role of the clinicians, although I suspect we share some misgivings with other groups about the independence of social workers.

As for the work and judgment of the European Court of Human Rights, we contest the view of the Government that objective medical expertise can be provided by a broad range of people without necessarily having medical qualifications. I understand some legal opinion challenges that, and that very fact suggests an issue of contestability. That opinion might be right or might be wrong, but I submit that if we were to, at random, approach any person crossing Westminster Bridge, and ask them what they understood by objective medical expertise, and put it to them that there is a proposal that that medical expertise could be provided by occupational therapists, a nurse or social worker, I think they would have difficulty with that concept.

In fact, it would be equally absurd to suggest that a doctor provides occupational therapy expertise or social work expertise. When it has been put to me that one of the reasons for broadening the professional roles is to deal with, for example, the specific issue of treatment of personality disorder in forensic units-we have already had that discussion earlier this afternoon-that may be the case. But if that is the case, have we considered the effect on resources? If we argue that a significant number of patients are treated in those specific settings by particular professional groups, what effect would that have on access to treatment and services of other groups of patients who also have needs? What would be the effect on the drain of resources on mental health services?

Someone has already raised the anomaly of the Mental Capacity Act, which I will not deal with anymore. There is good evidence that patients with severe, enduring mental illness, many of whom will be subjected to compulsion, have serious medical, comorbidity conditions, such as epilepsy, diabetes, skin and heart disease and so on. How would non-medically qualified, responsible clinicians manage that important interface? GP colleagues ask me how they and non-medically qualified responsible clinicians would relate to general practitioners who are charged with the responsibility for the medical care. In summary, we continue to believe that objective medical expertise is essential when it comes to issues of renewal. We do not believe that that is necessarily inconsistent with the broad range of multi-disciplinary working that is so essential to a modern health service. We contest the Government's broad definition of objective medical expertise and, taken together with the broadness of definition of mental disorder and narrowness of exclusions, there is a theme to the Mental Health Bill. Finally, it fails the Westminster Bridge test.

 

Ian Hulatt (Mental Health Advisor, Royal College of Nursing): I have been actively involved in the discussions, looking at the competencies required for the responsible clinician and I shall take a slightly different view to my colleagues. I have been very impressed by our discussions about the threshold for the achievement of these competencies at the very high level at which they are set. Saying that, I draw attention to the level of expertise of nurses who will be able to achieve those competencies. They can be very senior nurses at what we now call consulting nurse level, a level that is achieved after many years of clinical experience and the attainment of post-qualification degrees at Masters and, indeed, Doctorate level.

We need to be mindful of the fact that, since the legislation in 1983, we have seen tremendous change in services. As for the Westminster Bridge test, let us suppose that we had stopped someone in 1983 and said: "Do you think in 20-odd years time that we will have a surge of out-reach teams, we will have people treated at home, we will have a reduction of beds and that we will have nurses prescribing from the full formulary? Do you think that that is what it will be like in 20 years time?" That would have been a leap of imagination for a lot of people 20 years ago.

Mental health services have moved a very long way. The role in which nurses are engaged has moved on a very long way. We have nurse-led clinics; mood-disorder clinics and memory clinics. Those roles have moved and expanded and indeed have blurred at times. We at the Royal College of Nursing contend that the appropriate expansion of nursing roles and behaviours and skills will facilitate their adoption of this role. We assert that view confidently, but we acknowledge that there is a divergence of views.

 

Professor Peter Kinderman (British Psychological Society): I am a Professor of Clinical Psychology at the University of Liverpool and have been discussing issues to do with the Mental Health Bill for a while. I am a practising consultant clinical psychologist with Mersey Care NHS Trust in Liverpool and have worked for many years with people with severe and enduring mental health problems.

Clearly, the discussion about renewals is really code for a discussion about professional roles. I think that that is relatively clear. However, the one thing that perhaps brings it into a little bit of focus is the idea that, when people are making a decision about the renewal or the change of somebody's conditions of detention, or importantly under-what the Government are proposing-the idea of community treatment orders, it is a question of whether such decisions are human-rights compliant and compatible with the European Convention on Human Rights, as outlined in case law.

It is certainly true that a number of bits of case law-most of them more than 20 years old-talk about the need for objective medical expertise. It is certainly true that the Government have decided, rightly in my opinion, to define that objective medical expertise in terms of the competencies needed to make the decisions under question, rather than the possession or otherwise of a medical practitioner's certificate. That is right for two very important reasons. I do not think that having a qualification as a clinical psychologist, for instance, gives me particular competence. There is a whole range of areas-nothing to do with the Mental Health Bill, but to do with mental health. It does not, for instance, qualify me as an individual to talk knowledgeably about children's behavioural disorders. That is not an area of specialty. It does not give me particular expertise in talking about post-traumatic stress. That is not where my competencies lie. That is what my qualification might lead you to believe, but that is not where my competencies lie. Therefore, defining competencies specific to the issues under question is an important safeguard for people.

It is also worth asking why the ECHR and case law talk about objective medical expertise. The recent case law of Varbarnov v. the State of Bulgaria has been discussed. It was cited quite widely in the JCHR's report on the Bill. The point about that was to contrast the provision of objective medical expertise with what actually happened in practice: the state prosecutor decided that the bloke should not go home. What we are not talking about is deciding whether or not we should just allow the Secretary of State to decide who is detained in mental health institutions. We are talking about adequate professionals, with competence in the area that they know about, dealing with the issues.

I would not consider myself competent to make professional judgements about all of the aspects of the Mental Health Bill. I am not an expert in forensic matters, but I think there are circumstances in which I could meet the ECHR competencies, such as the identification of the mental disorder, its nature, its severity, the appropriate treatment and the consequences for the individual and others if the person does not receive that treatment. I simply believe two things: people other than registered medical practitioners possess those competencies. I repeat that the competencies are to identify the presence, the nature and the severity of the mental disorder, the appropriate treatment and what will be the consequences of the person not receiving treatment. I also believe that those competencies can be adequately described and listed, and the Government have done the right job by listing them in regulations.

The regulations and the list of competencies to define the registered clinician-the approved clinician-in those human rights compatible terms came out of quite a wide discussion involving a large number of professionals representing the professional bodies involved who formally signed off the regulations. We agreed that they adequately defined the ECHR regulations, and something seems to have slipped since then.

 

The Chairman: Thank you very much. I am aware that there is a mix of opinion within the Mental Health Alliance over this particular area of amendments to the Bill. It has been put forward that, if the amendments go through, it will be a disincentive to many people wanting to take on that responsibility role and that we will therefore lose people to parts of the profession. Is that a fair analysis?

 

Professor Kinderman: Yes. One of the things that has been going on in mental health care, as Ian said, is the new way of working such as increasing, sharing of responsibilities and increasing seniority of mental health professionals. It is fair to say that the Mental Health Bill, and the treatment of some of the most vulnerable people, is lagging behind treatment in other areas. Dr. Datta mentioned multi-disciplinary teams. What is happening in those teams is wonderful, but in this particular respect, many psychologists and many nurses would see it as retrograde not to recognise, in this very important Bill, that the world has moved on since 1975.

 

Sandra Gidley MP: Why are there concerns about the independence of social workers? I take it that we do not have any social workers in the room to defend themselves. We are talking about a fairly small group of people. For want of a better phrase, we are discussing the continued deprivation of liberty. Is there not a case for saying that, whatever the health professionals think, the public would still regard, rightly or wrongly, the consultant as the person with the greatest expertise? Is there a danger of it all looking as though the Government want to widen too far the range of people who can be detained or continue detention? So, please take social workers first and the more general question after.

Chairman: Dr Datta, you had misgiving about social workers.

 

Sandra Gidley MP: It was a terrible slur on social workers if I may say so. I am not a social worker, don't worry!

 

Dr. Datta: It is a shame that there are not any social workers here, but having spoken to social work colleagues, I know and quite understand that they very much value the independent, social care and perspective that they bring when it comes to assessing people for a detention. For example, how they work; their line of working and accountability through the local authority; the independent aspect from mental from mental health trusts-well, not so much independent, because clearly there is lot of joint working-and their independent view are matters that they very much value. I am sure that if social workers were here, they would expand on that even more. What was the second question?

 

Sandra Gidley MP: It concerned extending matters to a wide range of people who can become responsible clinicians. Does that not in fact send the message that this continued deprivation of liberty is not something that is taken terribly seriously?

 

Dr Datta: Well this is clearly something that is being taken tremendously seriously. There is a danger, I guess, of taking things too far and of the hybridisation of mental health roles-the sort of generic mental health role-that could emerge if things are taken too far. That is a very real danger, so when we are dealing with deprivation of liberty, the issues of compulsory treatment and other concepts are so crucial that it is important that certain degrees of objectivity, that we contend are broadened by objective medical expertise, are retained.

Having said that, I am clearly not suggesting that doctors should have the same degree of expertise in psychological therapies as my colleague Dr. Kinderman or the same degree of expertise in nursing medical services like my colleague here. As a result of the fairly rigorous training-we will not get into junior doctor training this afternoon-doctors bring with them a broad overview and a capacity to organise care and to recognise when other disciplines have key important roles.

 

Lucy Scott Moncrieff: It is important not to confuse the idea of altering the way in which multi-disciplinary teams work with the law. In a sense, this is a slightly sterile debate because it will not be us who decide whether non-doctors can give objective medical evidence, but the Government are contemplating quite openly through the guidance the notion that the person who is responsible-the responsible clinician-is not actually qualified to prescribe anti-psychotics or medication for mental illness. That seems to me to be a step too far.

It may well be that over time people can gain the experience and knowledge, and so on, but if we take an analogy in surgery. I can well imagine that there will be a cohort of highly skilled technicians, who could take on specific jobs within surgery, but I do not think that they would start with open-heart surgery. They would work up gradually until they could do the open-heart surgery. We have here a captive population. People are not allowed to say no. It is an experiment; and that is what I find so objectionable.

 

Peter Kinderman: I do not think that that is true. For many people with many different sorts of problems, the nature of the team that surrounds them and the people making decisions about their care differ. I am certainly not saying that psychologists-although nurses quite frequently do-are often not the key professional. I think you used the phrase the consultant with the greatest expertise. For many people, I am not clearly the consultant with the greatest expertise. For children, forensic patients and the elderly, I am not the consultant with the greatest expertise, but for some people I think I am.

With respect, it is not the case that we will be experimenting with the law, in that I would be the person with the most senior, decision-making responsibilities in an experimental area. In many cases, I am the consultant with the greatest expertise, apart from when it comes to developing that into the professional roles under the Act. For many of my colleagues, such as psychologists who work with clients with personality disorders in the forensic field, there is no medical treatment for the personality disorders of their patients. They are offered care, rehabilitation and psychological therapies, and the medical treatment is a relatively small part of their care plan. However, those people defer at the moment to responsible medical officers, and the proposed changes to the Bill would simply identify that. It is just simply not the case that in all cases the person with the greatest expertise is necessarily, by default, a medic.

 

Ian Hulatt: Just a couple of points on the issue of a client wishing to see a consultant. We have to acknowledge the term "consultant" has now changed. There are consultants within a variety of professional groups. The person is at the pinnacle of their clinical career, but in a different discipline. A consultant nurse has reached that level of expertise after a lengthy period of preparation.

We have a very high threshold of skills. A group of different individuals from different professional groups have met and then, for some reason I am not too clear about, they are trumped. They are not quite enough, although the individuals have achieved that level. They are employed and regulated on that basis, but then they are trumped by virtue of a particularly professional background.

People are prescribing independently in these areas-12,000 nurses have met very high levels of expectations and competencies. They have been mentored, signed off and approved by their medical colleagues. They have been exposed to very rigorous training. However, Peter is right in that there are areas where the majority of the input that the client receives and that they identify with is not that given by a medical practitioner.

 

The Chairman: It is an interesting debate, which I fear could go on and on. I shall take two final questions.

 

Baroness Meacher: During the House of Lords debate, we were all very clear that multi-disciplinary working is excellent, that nurses and psychologists have an important role to play. Our concern is that they are different disciplines. People are not detained in hospitals or, indeed, put on community treatment orders, and this renewal debate concerns both. People are not put on to the detention orders for therapy; they are put on those orders because they suffer from a psychosis, possibly dual-diagnosis or multi-diagnosis-personality disorders with some psychotic overlay or whatever.

We, in the House of Lords, believe that it is absolutely essential that for each and every one of those detentions, whether in hospital or community treatment order, there must be a professional, consultant psychiatrist's input, because they are the only people with the full training in psychosis treatments, side effects and long-term side effects.

I do not think that anyone is suggesting that a nurse would detain people, but are you suggesting that a psychologist would detain someone even though the psychologist would be dependent on the psychiatrist for the treatment, and the psychiatrist might not actually agree that that person should be detained?

 

Peter Kinderman: I am not suggesting that I should be the responsible clinician in the case of some people for whom I do not have the expertise to act as a responsible clinician. In the case of, for instance, somebody who is possibly suffering from a dementing illness-

 

Baroness Meacher: I am talking about psychosis.

 

Peter Kinderman: To be perfectly honest, in the case of psychosis I have that expertise. I would call on a medical colleague to do the medical assessments and the treatment, but that is not what we are talking about. The treatment is different from being a responsible clinician. However, people receive care under the Mental Health Act for a wide variety of reasons. Sometimes they are sectioned under the Mental Health Act, for instance, because they have, as a result of eating disorders, stopped eating. People have occasionally been sectioned for that reason.

It might be appropriate for a psychiatrist to be the most appropriate person to be involved, but it is clearly not the idea that the only people sectioned under the Mental Health Act are psychotic. I am not saying that medics have no role in such matters. I am, without question, saying that the vast majority of people holding a responsible clinician role would appropriately be psychiatrists. Yes, when the expertise of doctors would be needed, there are very many clients for whom the most appropriate professional taking charge of their care in a multi-disciplinary position would be the nurse, psychologists or other professionals.

 

Lucy Scott Moncrieff: It is interesting that you did not think the nurses would detain. It is absolutely intended that nurses will detain. I am well aware that there are independent nurse prescribers, and a lot of them in psychiatry as well as in other forms of medicine. It is entirely possible-I am not saying anyone would intend this, but certainly the proposed legislation allows it-that you could have a situation in which a social worker, a responsible clinician and an independent nurse prescriber as the person in charge of the treatment, and no doctor involved at all.

I cannot help thinking that that is what the Government want, because I imagine it would be rather cheaper than what they have at the moment. Whatever we all might think about the role of doctors and so on, this system will allow the exclusion of doctors. Some people might say that is a very good thing, but it will not be those who are making the decisions who will decide, but the people who are making financial decisions. The professionals will not say, "Oh, we do not need a doctor"; it will be the managers saying: "We cannot afford a doctor; you can manage without a doctor; you do not need a doctor; you can prescribe, you can detain,". Done and dusted, that is the problem.

 

Dr. Datta: I come to the misunderstanding that I feel that may be present in that it might be thought that doctors are remote, authoritarian people, who are out of touch and contact with the patients and families. That is completely wrong. We recognise that other colleagues such as occupational therapists and nurses are in touch. Let us not belittle the nature of prolonged contact over many years. Given the long-term nature of severe, enduring mental illness, as a doctor it has been my pleasure to build up very positive working relationships with patients and families over a long period.

 

Peter Kinderman: Some of you may have noticed today's press release by the National Institute for Clinical Excellence about the appointment of a Chair of its Guideline Development Committee for the treatment of schizophrenia-schizophrenia being a psychosis. For those of you who do not know, the Chair of the Guideline Development Committee for the treatment of schizophrenia by NICE is a colleague of mine called Professor Elizabeth Kuipers, who is a clinical psychologist.

 

Baroness Eccles: If a patient, or their advocate, wanted to appeal against the renewal of detention, would they be able to appeal on the grounds that the person who had made the decision was not actually senior enough, and it should be reviewed by a consultant?

 

Lucy Scott Moncrieff: I do not think it is proposed in the legislation but, as someone who represent patients, I can tell you that we would have everybody there and would be challenging them. We would have the person who treats, the person who detains and the lot there. The idea is that responsibility will be shared, so that will make it a more time-consuming process, but nothing in the Bill says that it is a low-level decision and it can be appealed to a higher level.

 

Baroness Eccles: Will there be an opportunity to appeal against a renewal of detention anyway, as it exists at the minute?

 

Lucy Scott Moncrieff: Yes.

 

Baroness Eccles: So that could be included as another reason for appealing?

 

Peter Kinderman: Absolutely. Yes.

 

Ian Hulatt: I regretted not answering the point about whether people would view the decision about a responsible clinician having to seek a medical opinion as a disincentive to take the role on. I can affirm that nurses would take that view. To undertake the work, to take the responsibility, to get to that part in their career, to reach that pinnacle and then have to seek this second view-the medical view-would be a disincentive for them to adopt that role. If the Government are hoping that nurses will fill the gaps where there are shortages of consultant psychiatrists and, indeed, very expensive locums, they are not going to move if they have to defer to another.

 

The Chairman: Thank you very much. We have had a marathon session of three-and-a-half hours. I am obviously very grateful to all the witnesses who have come here at short notice, given such a very full and thorough account and have taken questions. I am also very grateful to all my colleagues who have taken part for three-and-a-half hours rather than in just one of the six sessions.

We have had 25 witnesses mostly from organisations that have given evidence to the pre-legislative Scrutiny Committee and have made various other submissions. They are all pretty pucker people. They were not been selected more scientifically than that, but we have had some people with some opposing views and those that differed slightly from what members of the Mental Health Alliance have said. We have tried to be as all-encompassing as possible. We will have the recording transcribed within the next week. We will make it available as soon as soon as we possibly can, to all those members of the Standing Committee in the Commons so they can use it straightaway. It will be available to all Members of Parliament for use in the further stages of the Bill on Report and, undoubtedly, to the House of Lords when it goes back there for further consideration.

I will also add into record the correspondence between myself and the Minister in regard to why she is not here today. Among other things, her opinions on the Community Treatment Order Report seem to differ slightly from those of the authors of the report we have had here today. We will publish the transcript because what we have discussed here today is very much in the interests of better scrutiny of a very important, but very controversial, Bill going through Parliament, and I very much hope that this had added to the quality of that process and that we can end up with a much improved Bill.

 

Service User: I wish to thank you on behalf of my peer group. I have sat through every public session of the Joint Scrutiny Committee. I have sat here today and I am very pleased to say I prefer the issues that have been raised today. We will not rest until this is brought down completely.

 

Proceedings finalised at 17.32

 

 

 

 

 

 

 

Tim Loughton MP (East Worthing and Shoreham)
House of Commons
London SW1A 0AA

 

Dear Rosie,

I am writing formally to confirm my invitation, made during the wind up speeches of the Mental Health Bill Second Reading last night, to be the first witness at the special all party committee we have convened to take oral evidence from witnesses on amendments made to the Bill in the House of Lords and in particular the implications from the late publication of the report on international experiences of CTOs.

I have booked the Thatcher Room in Portcullis House from 2-5pm on 23^rd April. The members of the committee will comprise members from both Houses who were previously members of the pre-legislative scrutiny committee together with all those members of the Commons nominated to sit on the Standing Committee from next Tuesday. I would be grateful if you could confirm your attendance as soon as possible given the tight schedule.

Whilst writing could you also confirm arrangements for the written witness submissions which were requested via the notice on the Department of Health's website last month. I am not aware of any publicity for this and I would be grateful if you can tell me how this request was distributed. How many written submissions have been made and how and when will they be made available to members of the Standing Committee.

Yours ever

Tim

Tim Loughton MP

Tim Loughton MP

 

 

 

 

 

 

 

 

Dear Tim

 

Thank you for your e-mail of 17 April regarding your plans to take evidence from certain organisations who have an interest in the Mental Health Bill.

 

I will not be attending the meeting this afternoon, not least because in your e-mail you state that it is an all-party committee and that it would comprise of the members of the PLS Committee and members of the Public Bill Committee on the Bill. It is impossible to see how this could be the case as members of the Committee had not yet even been decided upon when your e-mail was sent to me. Furthermore, even when the members of the Committee had been decided, the invitations were still not all-party, coming only from yourself and Sandra Gidley.

 

I am extremely concerned that your invitation has given the inaccurate impression to organisations that this is a formal Committee of the House, when in actual fact it has been established by opposition parties as a mechanism for continuing to campaign against the Bill. It may well be that it was not your intention to state that the Committee was a special all-party one, and if this is the case I am sure that you will want to put the record straight at the earliest possible opportunity.

 

As you say, the notice about written representations was put on the Department's website. We were advised by the Scrutiny Unit of the House that this was the correct procedure to follow. The Scrutiny Unit then circulates to members the written submissions they have received.

 

On a general point, you will recall that I wrote to you on 29th March explaining that it was not the practice for Bills that are "Lords starters"

to have the equivalent of a Select Committee hearing at the beginning of their Commons Committee Stage, and I know that this is the view of the Leader of the House.

 

If I receive any enquiries from the media about this matter, I will make this e-mail available to them and I am also circulating it to members of the Public Bill Committee.

 

Yours sincerely

Rosie

 

RT HON ROSIE WINTERTON MP

MINISTER OF STATE FOR HEALTH SERVICES