UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1127-vi

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON THE DRAFT MENTAL HEALTH BILL

 

 

DRAFT MENTAL HEALTH BILL

 

 

Wednesday 3 November 2004

MR PAUL FARMER, DR ROWENA DAW, DR MIKE SHOOTER and MR GRAHAM ESTOP

MS LUCY SCOTT-MONCIEFF, MR TIM SPENCER-LANE, MR PAUL BOWEN

and MS ASWINI WEERERATNE

Evidence heard in Public Questions 140 - 207

 

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Joint Committee on the Draft Mental Health Bill

on Wednesday 3 November 2004

Members present:

Barker, B Carlile of Berriew, L (Chairman) Carter, L Cumberlege, B Finlay of Llandaff, B Flather, B Mayhew of Twysden, L McIntosh of Hudnall, B Pitkeathley, B Rix, L Turnberg, L

Mrs Liz Blackman Mrs Angela Browning Mr David Hinchliffe Mr George Howarth Tim Loughton Laura Moffatt Ms Meg Munn Dr Doug Naysmith Mr Gwyn Prosser Dr Howard Stoate Hywell Williams

________________

Memorandum submitted by the Mental Health Alliance

 

Examination of Witnesses

 

Witnesses: Mr Paul Farmer, Director of Public Affairs, Rethink, Chair of the Mental Health Alliance, Dr Rowena Daw, Head of Policy Development, Mind, Chair of Mental Health Alliance Policy Group, Dr Mike Shooter, President, Royal College of Psychiatrists, and Mr Graham Estop, Voices Forum, examined.

 

Chairman: Good morning and welcome to the Committee. We particularly welcome you as a representative group of a large number of stakeholders. Could you, please, note that this is a public evidence session. A transcript will be produced and placed on the Internet. You will be given the opportunity to make textual corrections, but not corrections of substance. Can I remind you that this is a large room and a large committee, and I am sure you will recognise as you look around that some of us are likely to be slightly aurally challenged. So for the middle‑aged amongst us, please would you all speak up; otherwise we will simply have to ask you to say it all over again.

Lord Rix: Even more so for the aged like me!

Q140 Chairman: Nobody ever speaks for Lord Rix; he can speak for himself. You will find he can hear what he wants to hear! We have got about just under an hour. Bear in mind that we have read your submissions. If you feel driven to make an introduction, then please do, though we are discouraging it unless you feel strongly driven to do so, which I think is a question expecting the answer, "No".

Mr Farmer: No, that is fine.

Q141 Chairman: I do not know who is going to take the lead for you, but perhaps one of you would introduce yourselves and then we will move on to the questions?

Dr Daw: I will be taking the lead for us, Lord Carlile. I am Rowena Daw, Head of Policy and Development of Mind and Chair of the Policy Group for the Mental Health Alliance.

Mr Farmer: I am Paul Farmer, I am the Director of Public Affairs for Rethink and I am the Chair of the Mental Health Alliance.

Dr Shooter: Morning. I am Mike Shooter, I am the current President of the Royal College of Psychiatrists and I still do work as a clinician as a child psychiatrist down in South Wales. You will have heard the full submission from the Royal College with Tony Zigmond and his team last Wednesday, indeed I was sitting behind them, but I am here to symbolise the fact that the Royal College has been a full working member of the Alliance for the past five years.

Mr Estop: I am Graham Estop from National Voices Forum, a service user and ex‑patient group and network hosted by Rethink. I have been part of the Alliance Policy Group.

Q142 Chairman: Thank you all very much. The Mental Health Alliance is in favour of including general principles on the face of the Bill in common with a number of other stakeholders, but you are not proposing to make them directly enforceable, unlike some other stakeholders. If the principles are not directly enforceable, why is it preferable to have them on the face of the Bill rather than leaving them in the Codes of Practice? Leaving them in the Codes of Practice might make them more flexible.

Dr Daw: I would like to answer that question. We think it is absolutely imperative that the principles do get on the face of the Bill. We think it sets very clearly from the outset for legislation that restricts people's liberty and has a strong human rights dimension to it that that legislation should have a clear statement of the principles that underlie it right from the beginning. That is a matter of principle but it is also a much wider issue than that, I think. It will also have an educative value. It is important to provide consistency or help provide consistency for practitioners. I think it will help give service users much more confidence in the law, and we believe that the principles that should be on the face of the Bill are precisely that as fundamental principles. Also, I think if they are left to the Code of Practice there is a problem in that we do not know what the status of the Code of Practice will be, and, of course, it is part of our argument that the Code of Practice should have a statutory force, but, if that is not the situation at the moment and if they are in the Code of Practice, there is only a need to have regard to them and, indeed, they could be changed. We think the principles that we have enunciated really must inform the practice of the legislation.

Q143 Chairman: But if they are imperative, if it is an imperative that they should be on the face of the Bill, then why should they not be enforceable as a matter of law?

Dr Daw: I think in the nature of the principles that we are suggesting, there are more underlying principles that, if you like, then come into play in individual provisions. So, for instance, where we talk about the principle of autonomy, that obviously is the background to what we think should be part of a test for compulsory ‑ one of the conditions for compulsory admission and treatment. So, as far as we are concerned, that is adequate. Also some of them by their nature would not be legally enforceable within the framework of this legislation, I think. Some of the principles around diversity and around equality are more principles of how practice should be conducted rather than specifically enforceable.

Q144 Baroness McIntosh of Hudnall: I just wanted to investigate a little bit the issue that you raise in your evidence about the relationship between the statement of general principles on the face of the Bill and the question of stigmatising people who suffer from mental health problems. I am not entirely clear what the connection is that you are making there. Can you unpack that for us, because clearly that is rather an important question?

Dr Daw: Again, I think it is at a general level that we make that point, because stigma is in terms of how the legislation works out in its detail. For instance, the distinction between treatment: the ability of people with a physical health problem to refuse treatment, whereas that is not available in the circumstances under the Bill for a person with a mental disorder - we believe that that very distinction in itself is stigmatising. So that is one aspect of it. The other aspect which is rather different relates to the way in which the Bill has.... People particularly from black and minority ethnic community backgrounds have been shown, as you know, from research year after year, to have been disproportionately sectioned and, in many cases, wrongly so. We feel from a public face point of view it is very important.

Mr Farmer: Could I make a brief additional point? I think it is very important for us to consider where the legislation sits within the wider context of mental healthcare, and for many people the experience for somebody with a mental health problem or with a severe mental illness and their families is often one of intense stigmatisation; and this point, the point at which somebody might lose their liberty and also have compulsory powers imposed upon them, is, if you like, the end point often of that process of stigmatisation; and so I think there is an awful lot of concern from people who work and receive services that a piece of mental health legislation such as this needs to clearly and explicitly state the underlying principles on which the legislation is based. I think if you place those principles onto the face of the Bill, it sends a strong and clear message to users, to carers and also to practitioners that these are the underlying bases on which the process of compulsion is going to take place.

Q145 Baroness Cumberlege: Continuing that theme, I was very interested in your submission that you set out ten principles that you think ought to be taken into consideration, and ten is a very even number and people always focus on the number ten, but I just wondered: you do leave out the question of protecting the public from harm? I appreciate that is something that perhaps you feel should not anyhow be part of this Bill, but do you think, as already we do have it incorporated in the Bill, that that ought to be one of your principles?

Dr Daw: We did not include that principle, it is true. I think that in the principles that we chose, given that we felt there needed to be a limit in order for them to be very clear and to have some force in the Bill, there needed to be a limit to them, and those were the principles which as a group we all could endorse. You have to understand that as an alliance we work through many organisations coming together and discussing what we all agree on, and this was the list that we all agreed on.

Q146 Chairman: Dr Shooter, I think you wanted add something.

Dr Shooter: Yes. As far as what you have just said, I think it is important that we state quite clearly that any piece of mental health legislation always has to be a balance between individual autonomy and protecting the public, and I think that will run through any Act which comes out of the current debate. As far as the list of principles is concerned, I would like to say that I have been round several hundred users and carers groups over the last two years and, indeed, I was with another group yesterday afternoon in the south of England; and we looked at the principles that we were asking for and that was set in the context of extreme anxiety and fear, worry, in that particular group and they would not let me come away without agreeing to say at least three things to you this morning, one of which was that they felt it essential that those principles for their confidence in the system were on the face of the Act rather than tucked away in a professional code of practice.

Q147 Mr Howarth: I did not understand fully the point that was being made in relation to stigmatisation where there are also present physical health problems. Could you elucidate further on that perhaps?

Dr Daw: Yes. I think it is best explained by saying that if a person has cancer and chooses not to have chemotherapy, even though that could end their life very much faster, there is no way in which they can be forced to do so. That is a physical illness. If, however, a person has a mental disorder and chooses not to take treatment that a physician thinks will get them better but it is believed that they should do so, they can be sectioned, and that is a basic and fundamental distinction. In both cases I am assuming that the person had full capacity to make the decisions and, of course, you are aware, I think it has already been mentioned to you, about the case of Ms B who was entitled to refuse to continue to have treatment given to her in order that she could die with dignity. That choice is not given to people with mental disorder, and in our experience with service user groups and with professionals alike, this is the key issue that comes up again and again when we look at why people feel very hostile to the compulsory process. It is particularly in that circumstance where people feel that their wishes have been overridden because of a decision by a physician that something is in their best interests.

Q148 Chairman: Before we move on to the next question, which we will in a moment, can I put this to you. I am slightly puzzled by your submission because you propose that the principles should be on the face of the Bill, but if one were to take, as an example, a principle ‑ I am taking this from the Bill ‑ decisions are made fairly and openly and there is a challenge on the basis that the decision has not been taken fairly and openly - why on earth should that not be enforceable if necessary by judicial review? You appear to be saying not; and I would simply ask you if you might like to consider that further. You may be right; you may not be; I am not expressing am opinion, but it is just an issue that may be of concern to the Committee when we come to deal with this question of where the principles should sit?

Dr Shooter: I think that is a very fair point, my Lord. I must say that I, as a member of the Alliance, and certainly the group of carers and users I was talking to yesterday are not so pessimistic about whether some of these principles are enforceable or not, and I would agree that there may be some for which services and individual clinicians can be held to account, and well and good.

Q149 Lord Rix: On page 11 of your submission you suggest that a broad definition of "mental disorder" has to be linked to specific exclusions and propose that the exclusions from the 1983 Act should be retained, albeit clarified in a clarified format. Here I must declare an interest, playing on my one‑string fiddle which Dr Shooter has already heard and to which the orchestra is now going to be joined by Angel Browning, I do not believe that a person with a learning disability should automatically be included in this Bill as it is now and was in 1983. I believe that a person with a learning disability should not be added to that list of exclusions unless that person has a significant mental health problem. Can I take it that you agree with this? Certainly the Royal College appeared to last week, Dr Shooter. Even if the conditions for the use of compulsion were tightend and refined, would you still wish to see specific exclusions included in the Bill?

Dr Shooter: Yes, certainly. I would agree with everything that you say, as would have been clear from our evidence through Dr Zigmond last week. I think there are certain groups of people in society who are highly vulnerable because of social disapproval to being brought within the scope of the legislation. I do not think there is any room whatsoever for someone, purely and simply because of their learning disability or because of their drug abusing or alcohol abusing life style, to be brought within the remit of the Mental Health Bill. If they have a concomitant mental health disorder, then that is another issue, and one then has to decide on the basis of that concomitant disorder whether they fall within the remit of the Bill or not.

Q150 Mrs Browning: Could I ask you in this context about autistic spectrum disorders: because we heard from the Royal College last week, I thought very encouragingly, that we collectively have to decide how we deal with ASD; and I would endorse the point you have just made that it is, of course, quite possible and quite common sometimes for ASD to have an overlying mental health disorder problem, depression particularly, even schizophrenia, but we know, as we have seen in the submission from the National Autistic Society, that very often somebody presenting with an episode of behaviour is misdiagnosed as having a mental disorder, very frequently schizophrenia or personality disorder. I just wonder what your advice to the Committee would be and your views, how you see ASD in this context, because they are not included within the 1983 Act at the moment?

Dr Shooter: I think rightly so. I would agree entirely with the debate that we had here last week. I think I would like to couple it with another answer, in fact. I think that is essential and makes it even more essential why we should have specialists in child and adolescent care involved in these situations, because I think there is a real danger that somebody who does not know much about the diagnosis for autistic spectrum disorder might, exactly as you said, confuse behaviour with a concomitant mental heath problem.

Mrs Browning: Could I put on record, Chairman, I am terribly encouraged by the work that the Royal College is doing in this area. I think it is enormously helpful.

Q151 Mrs Blackman: Could you say a little bit about capacity in terms of the psychiatrist work force at the moment to diagnose people with autistic spectrum disorder?

Dr Shooter: I think we have a problem in adult psychiatry who are less used to (a) having the experience with people with autistic spectrum disorder and (b) having the resources to do anything about their experience if they have not; and I think there is a real problem. We should admit that. That is a question of resources and it is a question of education and training, and all of those things need carefully looking at in the future.

Q152 Ms Munn: I want to move on to the issue of care plans. In your submission you have stated that you think that the care plans that are set out in the current Bill are too narrow and that you favour the care programme approach which has now been in use for some considerable time. I wonder if you could explain to us in a bit more detail what you think are the benefits of the care programme approach as opposed to what is set out in the Bill?

Mr Farmer: I will pick up this question. As you say, the care programme approach is broadly accepted within mental health as the best and the most appropriate vehicle, if you like, for ensuring that the support and care that somebody with a mental health problem receives is contained and is coordinated in a single plan, and this was on the back of a history of very confusing and very diverse forms of treatment and care with the individual not knowing what was or was not the appropriate form of care. This is now a broadly accepted mechanism; indeed it is part of the Government's national service framework. It is a stated objective of the National Service Framework that all service users should have a written copy of their care plan and that it should be acted upon, most importantly. Why we see this as being a key theme within the legislation is that the principles of the care programme approach include a very holistic approach to the needs of an individual. So rather than accentuating, as currently, the proposals within the Bill do, the medical form of treatment, the care programme approach tries to take account of the wider social needs of the individual, and, in particular, issues like psychological care, around housing, social support, occupational issues and so on and so forth. What that means is that in considering a package of care a tribunal should really take into account all those issues rather than simply taking into account the medical considerations. The Government in its response to the Bill in publishing the current draft Bill has stated that there should be a wider consideration. However, unfortunately those wider considerations are once again to be contained within the regulations, and section 115.2 of the Bill, which is the relevant section, simply accentuates, continues to accentuate the medical and makes very little reference to other forms of treatment. This is worth comparing with the Scottish Act, which does include within it a duty within the face of the Bill to consider the wider concerns and considerations. I just wanted to perhaps give an example about why social care issues are important in this case, particularly if the Government is intent on introducing non‑residential orders. We have worked... Rethink's national advice service works with a number of people, and, sadly, we are working with a family who are from a black and minority ethnic background whose son committed suicide. They were in regular contact with mental health services, but, unfortunately, they were housed on the seventh story of high-rise tower block; and I think it kind of illustrates why any tribunal, any care programme, needs to reflect some of wider social needs of an individual.

Q153 Ms Munn: Can I ask one other aspect on this which I think is a bit unclear in the draft Bill, which is around the people subject to a care plan or care programme approach signing up to it: because it says "the care plan can be changed" and when we look across at other forms of social care, whether it is adult care under the NHS and Community Care Act or the Children Act, the central importance is people who are receiving that care and their families being aware of what is happening and agreeing to certain aspects of it; because they may also be part of that plan, so it is fundamental to the success of care plans. I am unclear as to whether that is properly included and I would like your view on that?

Dr Daw: I think we are unclear as well.

Mr Farmer: I would agree with that.

Dr Daw: I think it is simply not clear. There is not very much in the Bill itself. There is more in the explanatory notes and in the other document that accompanies the Bill, but as far as the Bill itself is concerned, it seems that, from our point of view, is completely unclear and also a great deal is to be left to regulations anyway. So from that point of view we are not sure what else is going to be brought in.

Hywell Williams: Mrs Munn said earlier on that the care plan approach is widely accepted. However, the Commission for Health Improvements has said that the mental health services in Wales are at least 10 years behind England in respect of the care plan approach. What implications would you see for applying this Bill, should it become an Act, in respect of that particular question?

Chairman: Can we take a group of comments and then you can respond to them all. Lady Flather.

Baroness Flather: You mentioned this ethnic minority family. Would it be in any way different if it was a white family? I have not quite understood the significance of presumably a black family, Asian family, because ethnic minority does not mean much, because they have very different aspects. I would like to just pursue that.

Q154 Lord Carter: I am not clear, I think it was Mr Farmer who mentioned section 115, but it is clear that the regulations will be made by the appropriate authorities, the Bill says, except in 3(c): "Information will be available to any other prescribed matter where the Secretary of State makes the regulations". Are you happy with that? What is the information that would require regulations from the Secretary of State as opposed to the appropriate authority?

Dr Daw: One presumes that this is to do with risk, but I really think we would have to get back to you on this.

Q155 Chairman: I think we might ask the Bill team for an answer to that question.

Dr Daw: Yes.

Q156 Chairman: In due course, if you could let us have a note on that Bill team. Could you deal with the other two questions?

Mr Farmer: I think the point that Mr Williams is making around the kind of status of the care programme approach and its application in parts of the country, I know there are particular issues about the way in which mental health care is currently being delivered in Wales, and, as you rightly say, the Commission for Health Improvement in Wales has flagged up the need for the issue of mental health care in Wales being behind the progress of mental health care in England. I think what that highlights in particular for us is an importance in recognising that there are to be two codes of practice under this legislation, one a Welsh code and an English code, and I think it is important that both codes have a higher level of statutory enforcement in order to reflect the individual situations that are taking place within individual countries: because I think it may well be that within the Welsh code you may need to put in place some more rigorous safeguards for ensuring that the care programme approach is more fully supported and fully resourced than you might necessarily do within the English code, where the care plan programme is more established, although it is important to note that it still is not sufficiently universal for it to be totally used everywhere. Can I quickly come back Baroness Flather's point? I fully accept the point you make. In this particular context the ethnicity of the family ‑ they were a black family for clarity‑‑

Q157 Chairman: It is not relevant, is it? It could be a white family in a tower block in Flint, could it not?

Mr Farmer: No, it is not relevant.

Q158 Chairman: I thought you were not going to try to extricate yourself on that.

Dr Shooter: I feel honour bound to say with my Welsh hat on, there are, of course, some bits of the mental health service in Wales that are in advance of those in England, but I take your general point. I would like to say in support of what Rowena Daw was saying in general, what we are talking about in terms of a broader care plan, and perhaps we should call it that in the light of the fact we do not have CPA in Wales yet, makes clinical good sense. If somebody, a clinician like myself, is writing in a patient's notes a formulation of what the options are and what the options for treatment are, then everything needs to go in that, not just isolated pieces of information like medication, and so on. Indeed, that is the sort of broadness of evidence that would be required of us if we were talking to a second opinion doctor, who again would need to understand the totality of the patient's experience and their options for their treatment.

Chairman: Can we now move on to what is a very important question under this draft Bill, which is issue of compulsion in the community, or however one cares to phrase it. Dr Stoate and Liz Blackman want to make contributions on this. Dr Stoate, would you like to start?

Q159 Dr Stoate: Thank you, Chairman. As a practising GP I have particular concerns about the management of people in the community, and obviously you are well aware that patients and general practitioners have a lot of mental health issues which often are not addressed appropriately and clearly they need more resources and more help. In your submission you seem to be completely opposed to the use of compulsory treatment in the community under any circumstances. The Government, on the other hand, takes the view that, in a small and carefully selected group of patients, compulsory care in the community might avoid otherwise somebody having to say in hospital. Why is it that you have an unconditional opposition and perhaps you can enlighten us as to why you see no power whatever for compulsory use in the community?

Dr Daw: I should perhaps explain that our overall position is that we are not totally opposed to compulsion in the community. It is the case that service user groups in the Alliance are and that some of our individual members are, and those members have fairly similar sets of reasons for being totally opposed, and Graham will talk to that issue in a minute. But as far as the Alliance is concerned, we consider from the experiences that we have looked at in overseas' jurisdictions and the experiences of our members and beliefs of our members, which covers the Royal College of Nursing, covers the Community Mental Health Nurses, covers the Royal College - in other words covers those who will be practising that environment as well as those who will be service users in that environment - we believe that the case has not been made for the breadth of compulsion in the community that is bringing proposed. We do consider that there might be a case for compulsion in the community if the criteria are sufficiently narrow so that it can work for that group of patients that we think it might work for, which is a very small group, sometimes called "revolving door patients", although I believe the Government is using term to cover a much broader group of people than we are imagining. We have put in our written submission some of the criteria that we think would be needed in order to ensure that it was only that group that was covered; and we are talking about people for whom it might be beneficial to be under compulsion because they have had multiple admissions to hospital, they have a situation of relapsing very significantly if they no longer take medication and a lack of clear decision‑making capacity, a lack of insight perhaps. For that group of patients it may be beneficial, there is some evidence that it may be beneficial, but I think we do need to say that what we have seen from the considerable research from overseas' jurisdictions is that what really makes the difference is good community services. I would just like to say that our real fear about the community treatment orders is not just at the point at which people get onto community treatment orders, but the problem of remaining on them for a very long period of time and not being able to get off them. So it is absolutely linked to the conditions for compulsion.

Q160 Chairman: Does Mr Estop want to add something on this?

Mr Estop: Yes. As Rowena Daw has made clear, everybody in the Alliance believes that the Government is opening the doors too wide to compulsion, and from a service user view point, all psychiatric compulsion is experienced as oppressive and restrictive. If it is in the community it is just a different form of being restricted from being hospital, and, in actual fact, being in hospital when you are in a very severe crisis or in state of total breakdown is a safer environment because you are receiving total support and care. Usually service users would ask that compulsion was unnecessary because service uses can make appropriate choices in consultation with professionals. For example, I know one of the officers of Voices Forum decided he would like to come off medication a few years ago. He had a serious breakdown and now he has decided he is going to stay on medication indefinitely. That is an extremely common experience. I know many service users who have decided for themselves that they need to stay on medication because they do not want to have a break down. On the other hand, there is another prominent member of Voices Forum, who I know quite well, who has had three or four serious breakdowns despite being on medication. He has had a breakdown once on old style medication and once on one of the latest medications. He has now gone back to one of the old style medications and, despite the fact that he is 100% compliant with mental health services and psychiatry and willingly takes medication, he realises that this may not prevent him having another breakdown. In my own case, I have had more than one breakdown. As it happens, I had one when I was in America in 1980 during the Regan v Carter election at that time.

Q161 Mr Howarth: No causal relationship!

Mr Estop: Indeed; I was quite freaked out by the way the part the media played, the mass media, so that instead of them watching several serious documentaries and news programmes and informational news programmes on their television, most of the campaigning was in terms of advertising, and sometimes the media, given that it is the dominated by private companies, did seem biased, and I was not the only person who thought that. So the sorts of worries in my mind were very similar to those of other people, but in my case those worries became exaggerated and overwhelming to the point I could not cope with my life as a whole. However, I have been able to learn from my experiences of breakdown. They have all had different circumstances, and I have learnt to avoid the sorts of causes which led me into hospital in the past and I have been able to successfully come off medication and proceed to a working career. I myself could have been regarded as a revolving door patient because I had three admissions within two years, but, whereas I might just have appeared to be a revolving door patient to other people, to me it was my own life and it was a historical progression and each breakdown was different. In conclusion, as Rowena Daw has mentioned, service users are worried that once they have been considered to need medication perhaps on a compulsory they are not going to be able to get off it. Whereas in hospital there is a natural time limit to the period of treatment, in the community it could go on indefinitely. Professionals may think you need to be on it when you think you do not. It is difficult to share all your personal problems which feed into why you had a breakdown, and you are not given that much opportunity to talk about your problems from your own view point. Professionals of all kinds are very much rooted in their own perspectives, and that is one reason why we would ask that at the very least there be a role for a time limit on compulsion in the community. Indeed, that has been proposed in a paper from the Royal College of Psychiatrists authored by Professor Burns and others from several years ago where, I believe, a time limit of about three years was proposed. In my own case I do not believe I would have been personally able to return to a working career whilst still on medication and a mental patient.

Q162 Chairman: If under compulsion it would cause great difficulties?

Mr Estop: Yes. Most service users do experience side‑effects from medication which can interfere with their efficient functioning.

Chairman: Can I stop you for a moment. You have provoked a lot of interest and I have a number of members of the Committee who would like to make contributions.

Q163 Mrs Blackman: One of our witnesses last week in effect suggested that the Bill and the compulsory powers in the community was a government mechanism for solving bed‑blocking. Rowena Daw, you were not saying that. You would not go along with that particular thesis. Could you clarify again that you think there is a place for compulsory powers, but it ought to be far more restrictive?

Dr Daw: I think there is probably some truth in the view that there is a problem at the moment with the numbers of beds and that it is a way in which it restricts the numbers of people who become subject to compulsion. So I do not entirely disagree with the point that has been made that it does have that effect.

Q164 Chairman: Does it? Is it not quite possible that, in fact, it would increase the number of people under compulsion because people who had been under residential compulsion would remain under non‑residential compulsion?

Dr Daw: I am sorry, I did not express myself properly. What I was trying to say was that I think it is true that one of the reasons for the Government's decision is because of the pressure of beds, and, indeed, it will increase the numbers of people under compulsion.

Chairman: I think we will take some more contributions from the Committee, if we might, Dr Shooter and then ask your team for responses.

Laura Moffatt: I am particularly interested in the relationship between service users, clinicians, social workers, and, as a nurse for 25 years, I know that is a very precious thing, that relationship and very often is integral to somebody's recovery and the treatment that they wish to accept. I really would like a comment from both clinicians and from service users before us today on how you believe that that relationship may well be change? I firmly believe, and certainly from consultations I have done in my constituency with CPNs, they are deeply worried that that relationship is about to change and they are concerned that that whole issue is going to alter for ever the relationship with service users?

Tim Loughton: I wanted to raise the situation about beds, but I wanted to know from you what proposals you have to guard against compulsion in the community being used as a bed‑shortage mechanism. Also in the case of carers, is there some restriction one could place on people having compulsion in the community dependent on what standard of care they have at home, or do we just fall into the trap of using relations who are carers as surrogate staff due to shortages of staff? There is also the issue of what constitutes "a hospital" as well in the community. Definitions of "hospital" may be just "a house", and again it is used as a mechanism simply because of the shortage of acute beds. How can we tighten up definitions so that if we are to have a small number of people to whom it would be applicable to have this sort of compulsion but it really can be tied down and defined quite tightly rather than abused in the way that it could be?

Baroness McIntosh of Hudnall: There is a word that is lurking about here which I think we might need to bring to the surface, which is "capacity". This Bill is drafted on the principle of necessity, as has been said many times before. The question which has come up very clearly from Mr Estop's evidence is that a patient's capacity to take a decision about his or her treatment is clearly in the moment a very significant part of the relationship between the clinician and that patient. It is not embedded anywhere in this legislation as drafted. Do you believe it should be and what role should it have?

Chairman: Mr Prosser, and then perhaps we could have a group of answers and then I will come back to Dr Stoate who started this ball rolling.

Mr Prosser: I do not bring this in with a level of expertise as other members of the Committee - most of my knowledge is from the Bill and the White Paper - but on the issue of compulsion, my reading is that there are quite strict gateways to allow compulsion to take place with regards to the severity of the mental illness, with regards to self harm, suicide, danger to others and a whole series of other safeguards. That seems to almost have been dismissed in what we have heard this morning. I would like some comments on that in general, but in particular could I ask Mr Estop whether he would have considered his particular mental condition in the United States which he has described to us would have got through those safeguards or not?

Q165 Chairman: If you would like to deal with that package?

Dr Daw: I think that there was a question that was addressed to each of you about the issue of the relationship between the service users and clinicians. I think that would be for you to answer first of all. Certainly it is a big issue that has come up from the Royal College of Nursing and the Community Mental Health Nurses Association, and I should say in terms of overseas experience, we have talked to people from New Zealand who have said that that has been an absolutely key problem and that years of training on a previous kind of contractor relationship between service user and practitioner preceded any form of CTOs and that this was essential?

Dr Shooter: If I may have a shot at the package of questions. First of all, to begin on a positive note, I think the principle of least restrictive alternative is very important, and, indeed, it is one of a list that we would like to see on the face of the Bill, and, to that extent, of course we need to consider very carefully the possibility of an order being enforced in the community as close to the home of the patient as possible. Our worries throughout the Alliance are that, in fact, in practice the community treatment order as laid down in the Bill will actually become more restrictive, for the reasons that we have talked about, that it will not have the natural threshold of seriousness that admission to hospital has; there will be pressure on psychiatrists very often to do something so at least they can impose a community treatment order, and we have had deep worries about how anybody would get off if they were doing extremely well on a CTO in the first place. Secondly, I think the question you ask about the relationship between all the disciplines involved in mental health and users and carers is absolutely crucial. Unless we address that, we are arguing in a meaningless vacuum. Can I start by saying, I think sometimes the more unpleasant sounding aspects of that relationship where the clinicians, the group of clinicians need to impose compulsory treatment on somebody is actually also part of the stuff of mental health services. It is actually part of the relationship between the clinician and the patient, and once the necessity for that compulsory measure is over, they can work through what happened between them, and it may well be that patients and their carers are very grateful that in that particular crisis the service was able to take over responsibility for them and to treat them in the way that they are needed. However, that relationship is a very delicate one, as people round the table will understand, it is easily upset, and at the moment I think it is being upset by the severe worries that patients and their carers have and that psychiatrists have and other members of the mental health team have, that somehow or other mental health service is now going to be dominated by compulsory care and that psychiatrists, in effect, are going to spend most of their time sectioning people into compulsory care and patients and their carers will feel ever more susceptible to being sectioned into compulsory care. That is going to erode our relationship irrevocably, and I would suggest it is going to drive all of us away from mental health. The risk certainly is that it will drive patients and their carers away from the services that are there to help them because they will fear they are now susceptible to a wider Act; and it will also drive potential workers in mental health services, including psychiatrists, away from those professions.

Q166 Chairman: On your last point, can we ask Mr Estop if he agrees with what you have said about the perceptual point, because perception is very important, I am sure, in dealing with mental health issues. The point about potential patients being driven away from mental healthcare.

Mr Estop: Yes, I am sure that is the risk. I think service users' fear is that the proposed legislation would reinforce the emphasis on medical rather than social and personal factors. I myself, I believe, would have been a candidate when I was a service user for compulsory treatment in the community because I was a text-book case of having a breakdown and somebody who did respond well to medication, both admission to hospital and treatment with medication was appropriate for me and I responded well. The risk then is that people think you need to be on it forever when you do not, because the factors leading to the breakdown were, in my case, primarily social and personal rather than biological, say. I feel the Bill does not go far enough in defining a sufficiently small group of people in a strictly clear way. I feel talking about revolving door patients is a very vague concept, and there does need to be a much more explicit definition of how any compulsion in the community would work. I am not sure what adequate safeguards would be apart from things like time limits and also continuing advocacy for the person while they were in the community would be vital so that all the concerns and problems of the service users and their own view of those was presented to professionals so that they were not simply locked into their own perspectives.

Chairman: Thank you. Do you want to wrap this up, Dr Stoate. If there are any points you want to add later, you can write to us.

Q167 Dr Stoate: Surely the overriding principle must be the least restrictive option. As a GP, fortunately remarkably few of my patients over the years actually have had to be admitted to hospital at all, either under compulsion or voluntarily, and I have psychiatrist colleagues who now have all but dispensed with all the beds themselves voluntary and have actually chosen themselves to use the view that any admission to hospital is almost always avoidable and they would much rather use community orders. It seems to me, and this surely must us be the overriding principle, that if we use treatment orders appropriately, all the necessary safeguards, mental health tribunals reviewing them, advocates reviewing them, a constant series of checks and balances to keep somebody in the community and keep them well surely has to be a better option the vast majority of cases than forcing somebody into hospital with all the stigma that that entails?

Dr Daw: Of course, most service users that we speak to would much rather be in the community than be in a hospital, but we are talking about a situation ‑ I think this also relates to the point that you were making - we are asking for a situation, as far as the conditions for compulsion are concerned, that are much narrower than the Bill has, and for people in that category it is very unlikely that they could be well enough to be safe, secure, looked after, have the support and the supervision and the monitoring of their condition in the community. We are talking about people who are seriously ill, and for those people they do need to be in hospital. I think when you look at the way in which we feel that the conditions should be restricted so that, for instance, a capacity test, as you were talking about, is part of what we have put in our written evidence and a higher threshold for people who are seen to be at some level of risk, however low, to other people, which is very vague in the legislation at the moment, that if the threshold is raised in that kind of a way, we are talking about people who are at a crisis level, but of course, in the general sense, most people want to be in the community. However, what service users do tell us, and they tell us again and again, to a person seminar after seminar, is that if they are very ill in that condition they do not want to be a burden on their families. One person said to me his marriage would have been broken down if his spouse had to look after him in that circumstance. They absolutely do not want that and they do not want the privacy of their home being invaded in that way, and also, if they are actually objecting to treatment, the fact is that it is not going to work because they are going to have to be taken to hospital anyway in order to have the treatment. So there are a whole lot of issues around this that really need to be dissected.

Chairman: Thank you for that. Can I draw this bit of the debate to a close now. We have had rather longer on that question than we would have had on others, but it is a very important one. I think in the last 25 minutes the issues have been very strongly clarified, but if the Alliance wants to write to us further on that very informed issue in the light of the questions that have been put by members of the Committee, please do so. I think we can deal fairly briefly with the question of mental health tribunals, Mr Hinchliffe.

Q168 Mr Hinchliffe: I have a couple of brief questions on the evidence that you have given on mental health tribunals. Dr Daw said earlier on that in terms of your submission you all agree on the general points. Do I assume then that there is no dissent within the Alliance along the lines that we have had some dissent on the last day we were talking about on the issue of your evidence suggesting that tribunals should not be required to have a clinical member?

 

Dr Shooter: It has never been the assumption of the Royal College, either individually or as part of the Alliance, that there had to be a medical member on the mental health tribunal, as long as the tribunal is in receipt of expert evidence from a medical member of the expert panel. We also believe very strongly with the Alliance that, when the tribunal is considering the options for a patient, they must take into consideration housing, benefits and so on which are just as crucial for that patient's future welfare as are medication and other medical model treatments. The patient needs to be seen in an holistic sense. We feel that whoever sits on the tribunal should have come clinical background of some sort to be able to put into a clinical context what the expert panel members are telling the tribunal.

Chairman: Is that not a rather different point from having someone on the tribunal who has seen the patient? I can simply give you my experience of presiding at a few mental health review tribunals. Because of manpower problems, the clinical member often arrived very late, only had the opportunity to see the patient for a few minutes on the morning of the tribunal and it was more vestigial than substantial. It might be better therefore to have broader clinical experience able to assist the tribunal in asking the right questions than somebody who has seen the patient and may, by that very act, have affected the quality advanced.

Q169 Mr Hinchliffe: You have slightly qualified your evidence in responding to my first question. Although I certainly support the broad thrust of what you say and what the Alliance is saying, I have had experience giving evidence to tribunals when I worked in mental health and social services and representing patients where, had there not been a clinical member of the tribunal, I think the patient could have been very severely disadvantaged. I can think of situations where there were very important exchanges in terms of the specifics of clinical diagnosis, especially related to personality disorder and treatability. That was at the heart of the patient's circumstances and whether they should have been detained or not. I would have felt that in those circumstances the lack of a clinical member would have caused some difficulties.

Dr Shooter: It is certainly essential that someone with clinical expertise is there because in modern services we need to get away from the idea that all that clinical expertise is locked up inside a doctor, for example. We are moving into a situation with new ways of working where other members of the mental health team may well have very highly skilled and trained clinical expertise which they could give to a mental health tribunal.

Dr Naysmith: What does "clinical expertise" mean in this context?

Q170 Chairman: Presumably it means somebody with experience of practising in the broad area concerned, either a psychiatrist or a clinical psychologist or a CPM.

Dr Shooter: We are not far away in mental health services from the concept of supplementary nurse prescribing. It may well be in the not too distant future, certainly in the lifetime of this legislation, that nurses are as highly skilled and trained in the prescription of medication in mental health as anyone else in the mental health team.

Chairman: Would you countenance others too? For example, with some patients, you might find that the speech and language therapist had been the lead therapist in dealing with that patient. I am only using that example of a speech and language therapist being regarded as the clinical member of a tribunal in an appropriate case.

Q171 Mr Hinchliffe: The Royal College of Psychiatrists support this position. How much of their support is driven by the point of principle about broadening out the perspective of a tribunal from the medical model and how much of it is driven by resourcing issues, being able to service the tribunals?

Dr Shooter: Of course resource issues matter. We have been working very closely with the Department for Constitutional Affairs to try and make the system work as it is, finding ways around the delays which have been occurring, largely because of the difficulty of finding medical members. On this particular issue, I think it is driven far more by principle. We are in a world of new ways of working. I co-chair with the National Institute of Mental Health in England a multidisciplinary committee which has been looking at how we might use different disciplines within mental health teams in very different ways from the traditional medical, hierarchical model that we used to practise in.

Chairman: Finally, can we try and deal with whether people are or are not offenders and what difference it makes?

Q172 Lord Mayhew of Twysden: Can I ask about people caught up in criminal proceedings? How important is it to you that, for a compulsory treatment order to be made, there should be evidence that the person concerned - because he need not necessarily by then be an offender - is either a risk to himself or to others? You make the point that the expert committee said that the conditions for part three patients should be the same as for part two. How important do you think that is and what is your primary reason for thinking it is important? Is it the civil liberty aspect or is it the clinical aspect or is it a mixture of the two?

Dr Daw: I think it is a mixture of the two. Primarily, it is not just the civil liberty angle but an issue of separating out what is a health issue and a criminal justice issue. I do not think we necessarily have that right. We obviously do not believe that part three of this current Bill has that right. Looking, for instance, at the Scottish legislation and looking at some of the recommendations from the Mental Health Act Commission as well, we believe that if a person is either on remand or is indeed up for sentencing, and there is an issue that they are to be given compulsory treatment under an order, the conditions should broadly speaking, except if there is a relevant distinction - and we do not believe risk is a relevant distinction - mirror those in the civil justice system. We do not see any reason for departing from that. That is the basis on which we have operated. It is the basis that a number of the voluntary organisations and others operate on. We cannot see a justification for there being discrimination between those who are in the criminal justice system and those who are in the civil justice system from the point of view of their mental health needs and how those are attended to, except where it is relevant. Also, we feel that doing that makes compulsory treatment into a punishment rather than a therapeutic measure which is obviously not what it should be. That is one of the consequences of that. We also believe that people who have capacity, who are responsible for their actions, who may indeed be sentenced for that, people who have criminal responsibility despite the fact of their mental disorder, which may or may not be related to their offence - do not forget, we are talking about a very wide range of people and circumstances here - should be sentenced in the normal way, according to the normal criminal law provisions; and their mental health needs taken care of as mental health needs which might mean, for instance, that they would need to go to a hospital. We also think that the criminal justice provisions provide already enough flexibility for people's mental health needs to be taken care of, if need be.

Q173 Chairman: There is a problem with offenders, is there not, because many offenders would rather not be sentenced to a term of imprisonment but would rather have the recognition that a section 37, without a section 41 order, brings of their mental health needs as a replacement for a sentence?

Dr Daw: In some circumstances indeed that would be appropriate but it is also the case that there are many people in that situation who would not prefer that. They would prefer to have their sentence and have it over with than to have the possibility of a very long period of time on a mental health order. I do not think we are in the game of deciding on behalf of offenders which they would prefer or which they would not prefer. In terms of their mental health needs, we think they need to be taken care of. We do not see the reason for there being a difference of view and approach.

Chairman: Thank you very much. You have all pressed a lot of buttons with the Committee and left us with a huge amount of food for thought. You have added significantly to your written submissions by your oral evidence.

Baroness Flather: You have often mentioned overseas things. You said New Zealand which I do not think is very much a question of like with like. If there is no time to do it now perhaps you could tell us which countries you have been looking at, and particularly it would be interesting to know if you look at any of our European partners where there are similar conditions.

Q174 Chairman: Could you write to us on that?

Dr Daw: Yes, absolutely.

Memoranda submitted by the Law Society and the Bar Council

Examination of Witnesses

 

Witnesses: Ms Lucy Scott-Moncieff, Joint Chair of the Mental Health and Disability Committee, and Mr Tim Spencer-Lane, Policy Adviser to the Mental Health and Disability Committee, both representing the Law Society; Mr Paul Bowen, Barrister, and Ms Aswini Weereratne, Barrister, both representing the Bar Council, examined.

Q175 Chairman: Thank you very much for coming and for giving us your submissions. We have received the Bar Council submission a little late but I think most of us have been able to at least read paragraph six and I have read it all. We are discouraging opening statements but if you feel absolutely driven to make one, please do. That is a question expecting the answer no. Thank you. These sessions are recorded and a transcript will be available. You can correct the transcript for textual purposes only, not in substance, so please do so promptly if you would like to do that. Would you like to introduce yourselves?

Mr Spencer-Lane: I am Tim Spencer-Lane. I am the policy adviser to the Law Society on mental health and disability law.

Ms Scott-Moncieff: I am Lucy Scott-Moncieff. I am a mental health practitioner and I am the co-chair of the Law Society's Mental Health and Disability Committee.

Mr Bowen: My name is Paul Bowen. I am a barrister specialising in public law and human rights with a particular emphasis on mental health law. I am also a member of the Law Society Mental Health Disability Committee.

Ms Weereratne: I am Aswini Weereratne. I am also a barrister specialising in mental health law. I also sit as a part time legal chair of mental health review tribunals.

Q176 Chairman: My question arises particularly from the Bar Council's submission which was quite narrowly focused but I think helpfully so. You all may have a contribution to make on this. Do you think that the Bar Council's submission may have exaggerated the risks of non-compliance with the European Convention on Human Rights or are you saying to us that there is a very real risk, despite the advice that we are obtaining from elsewhere, that there may be non-compliance with the Convention? We are still awaiting a response from the Joint Committee on Human Rights.

Mr Bowen: I hope that in our response, where appropriate, we have stressed that the Bill may violate the Convention. I hope we have also made it clear that the standards that are set out in the Convention are developing ones. It may be that, as the law has been currently interpreted by the Strasbourg Court and by our domestic courts, it will be impossible to point to a particular judgment of either of those courts and say that, when you look at it in the light of that judgment, the Bill is incompatible. Bearing in mind that those standards are developing ones, bearing in mind that the case law does not address a lot of the issues that are raised by the Bill, but given that there are other instruments - we refer to them in our paper; particularly the UN Mental Illness Principles and most recently the recommendation from the Council of Ministers of the Committee of Europe which does set out basic standards - it is our submission that as against those standards, which may in due course become enshrined in the Convention, the Bill falls short.

Ms Scott-Moncieff: I defer to Paul's greater knowledge on the ECHR but it seems very clear that there are specific provisions within the Bill that are going to be in breach of the Human Rights Act. To take one example, the provision that compulsory powers must be used if somebody is at substantial risk of causing serious harm to others, regardless of their compliance, regardless of decades of compliance. It seems to me that that simply must be in breach of the ECHR because it is an unnecessary restriction that is being imposed on a group of people for no justification. I do not think that is the only example but it is the clearest example to me. It seems to me that that provision has been put in there to try and catch people with dangerous personality disorder but, because of the way it has been worded, it is going to be catching huge swathes of people with learning difficulties and people with autistic spectrum disorder. It cannot be right and it cannot be in conformity with the ECHR.

Q177 Lord Rix: As you mentioned learning disability, I would like to see learning disability per se excluded from the Bill and people with a learning disability would only come within the scope of the Bill if they had a severe mental health problem. Would you agree with that?

Ms Scott-Moncieff: I was listening to what was being said earlier and I sort of agree. In one way it would be quite wrong to use compulsory powers on people where it is not necessary but mental health legislation also does provide protection. If somebody with a learning difficulty committed a crime, for instance, you would not want them to be excluded from being given a hospital order.

Q178 Lord Rix: I see there would be protection also on the face of the Bill but the exclusion would be there earlier on in the Bill, as far as plain, straightforward learning disability was concerned.

Ms Scott-Moncieff: Yes, I completely agree, but I also think the same thing applies for ordinary mental illness. If you do not need compulsion, you do not need compulsion.

Q179 Chairman: You have highlighted very clearly that there is an issue that needs further consideration and regrettably there is plenty of work for lawyers left in all of this as well.

Ms Scott-Moncieff: We think that is a good thing.

Q180 Baroness Barker: Like a number of the witnesses we have had before us, you have expressed strong views about the necessity of having principles set out on the face of the Bill. You say in your submission that you think that would provide greater protection for patients' rights in practice. I would like you to expand on that, particularly because I noted in your submission that you said of the proposal from the Department to have the principles in the code of practice that the principles would not underpin the Bill but they would instead relate to the decision making under it. Is that not the point at which all of this does affect individuals and is that not an important point?

Ms Scott-Moncieff: I think there are two issues with the principles. This is a piece of discriminatory legislation. It discriminates against people on the grounds of their mental health as opposed to on the grounds of their capacity. If they were going to be honest, they would come out and say, "On the principle, this is a discriminatory piece of legislation." I can understand why they would not do that but they also do not put in what the other underpinning principles are. You could put in a principle that the protection of the non-mentally disordered public is put at a higher priority than the rights of people with mental health problems, for instance. There seems to be evidence that that is an underlying principle here. You could put in that if somebody has mental health problems they are deemed to lack capacity even if they have capacity because that appears to be an underlying principle. Those are the principles that underlie the provisions in the Bill but then you have another set of principles which is how the Bill is going to be used once it has been brought in. Those should definitely be on the face of the Bill and they should be enforceable. My experience is that it is when you can enforce things that standards are raised, but of course they would have to be the right principles. I find it completely astonishing that the Mental Capacity Bill, which is about people who lack capacity, underlines the requirement for autonomy and supporting autonomy. The Mental Health Bill, which is going to be dealing very largely with people who do have capacity at some time or another, is completely silent on the question of autonomy. It is just extraordinary that they do not put it in. It depends what the principles are as well as having them on the face of the Bill.

Mr Spencer-Lane: Can I underline the last point that Lucy made which is that other legislation has successfully incorporated an explicit statement on the face of the Bill, probably most notably the Mental Capacity Bill, but also the Scottish Mental Health Act as well and the Scottish Adults with Incapacity Act. If the draft Bill went through without an explicit statement, it would be quite unique in that respect.

Mr Bowen: I approach this from the perspective of a lawyer construing a document. If one has principles which are set out as the guiding principles against which the Act is to be construed, that gives a proper context for lawyers and particularly judges when making decisions as to how those provisions are to be construed. The second important and crucial point is the question of legitimacy. If these principles are set out in an Act of Parliament, they have the force of an Act of Parliament. If they are set out in a code of practice which can be changed by a member of the executive, they lack the legitimacy that those principles should have and, for that reason, we would say that they should be in the Bill itself.

Q181 Chairman: I am thinking of an analogy with interception of communications and European Convention law. Are you saying that a code of practice might not be held to be a sufficient system of law?

Mr Bowen: That is not an easy question to answer but in the context of the Mental Health Act code of practice the Court of Appeal has already looked at the question whether a non-binding code of practice is sufficient for the purposes of the requirements in Article 3 and Article 8 that any interference with Convention rights being in accordance with the law - it is a case called Munjaz ----

Chairman: We will ask Professor Fennell, one of our special advisers, to assist us on that.

Q182 Baroness Barker: Do you see a problem where a Bill might contain principles which conflicted, for example, the public protection ones?

Ms Scott-Moncieff: You have to use proportionality then, do you not? Of course, there are rights on both sides and it is a matter of balance but to underline the fact that there are rights on both sides and not just on one side does not seem to me to be a bad thing to do. The ECHR could be said to have conflicting principles: rights of freedom of speech, the right to publish what you like or whatever and the right to privacy, but it is a balancing act. Both rights are there on the face of the document so they are both things that have to be taken into account.

Ms Weereratne: I would take an approach based on accessibility here and endorse what Lucy has just said. From the perspective of a practitioner trying to access how to promote the balance between compulsion or autonomy and public protection, expressed as treatment in the community or treatment under compulsory detention, I have had the experience of sitting as a chair of numerous homicide inquiries and examining practitioners as to their understanding of provisions in Bills and Acts and regulation, including documents of the CPA. It is quite clear that there is a real fear of law and there is a lack of clarity in the understanding of law. Accessibility is key. A code of practice on the principles clearly on the face of the Bill would aid practitioners' understanding.

Lord Carter: The draft of the Mental Capacity Bill did not include the principles but the government accepted the recommendation of the joint committee that they should be included and they are now in that Bill. The Bill places a lot of weight on the use of the codes of practice. I did not entirely understand your evidence which I have only seen this morning. In paragraph 36, you say, "As regards the Code of Practice, its provisions will not be binding ... Parliament has no power to reject or amend it ...". Do you mean it is not binding because of the use of the words "have regard to" in the Bill? Does that make it non-binding? Also, I do not really understand the point that Parliament has no power to reject or amend it because if you look at section one and the various subsections the order has to be laid before Parliament in draft. It is a statutory instrument and has to be approved by Parliament. I am not sure where the idea that Parliament could not amend or reject it comes from.

Chairman: Clause 1(11) onwards.

Q183 Lord Carter: Also, is it not the case that the arguments for the code of practice are that they are much more flexible in operation and would not require the power for judicial review which would be required if the principles were on the face of the Bill?

Mr Bowen: As far as whether it is binding or not, clause 1(2) says, "The Code must set out general principles to which a person must have regard." If it is only to have regard, then ----

Q184 Chairman: We do no want to get involved in judicial proceedings but a person must have give effect to the words "have regard".

Mr Bowen: Of course. What it means is that the code of practice is a relevant consideration but the weight to be given to that relevant consideration is for the practitioner to determine. That means that if it says, for example, that one must not carry out searches of patients except in certain specified circumstances, if the hospital has had regard to the code of practice but has decided nonetheless that they are going to go ahead and search, one cannot say that they have acted unlawfully; whereas if it says on the face of it that you cannot carryout a search except in these circumstances, if they do, it is unlawful. As far as the role Parliament has, what we sought to do was to contrast the situation under clause 1(11) with the situation under section 118 of the Mental Health Act, subsection (4), under which the Secretary of State is obliged to lay copies of the Code and any alteration of the Code before Parliament and if either House of Parliament passes a resolution requiring the Code or any alteration in it to be withdrawn the Secretary of State shall withdraw the Code or alteration. That provision does not exist in clause 1(11), so the power of Parliament to compel an amendment to the code of practice is significantly reduced. The suggestion would be that you simply incorporate section 118(4) in substitution for section 1(11).

Chairman: That is very helpful. We will take that on board and look closely at section 118 again.

Q185 Mrs Browning: In your submission to us, the Royal College emphasised the fact that the Mental Health Act should focus on those people whose decision making is impaired by reason of their mental disorder. I want to ask you about safeguards here and a particular scenario. We have heard quite a lot in evidence about the purpose of this Bill and the way in which it will relate particularly to people who are discharged into the community. We get the impression that there will be an emphasis on more people being treated in the community. I wonder whether you can comment on the scenario where somebody may well be subject, say, to a section three order but they do, for want of a better expression, a runner. How do you think we should balance those people whose decision making may be impaired as a result of a mental disorder but who, while in the custody, for want of a better word, of a carer which may be a relative or close person living closely with them - what happens in terms of orders to bring them back. If they do that from a community basis, do they then go back to that place or do they go back into a mental hospital, for example, and who should direct those powers of compulsion on what happens? Very often the most common scenario of somebody doing a runner in a community is because they have come off medication. They can do a runner while they are an in-patient but I am very concerned about this balance and the safeguards involved about their capacity because they may, when they go onto medication in the community, have capacity but if they come off medication and do a runner at that point they may have lost capacity. In fact, they probably will have lost capacity. I wonder how you think the law should put in a safeguard, not only for care in the community in those circumstances but care of the community, because that must also be important.

Ms Scott-Moncieff: Are you talking about under the current Act or under these proposals?

Q186 Mrs Browning: Under these proposals, because it is very unsatisfactory under the current Act.

Ms Scott-Moncieff: I do not see how it would be an awful lot better under the new Act because compulsion does not provide very much in terms of a practical solution. If somebody is going to do a runner, the fact that they are under a section is not going to stop them because there is no one watching them. They are in the community. If you were trying to stop somebody, you could say to them, "You are going to be on a community treatment order and therefore you must not leave." If they are going to say, "All right. I will not leave" you should take them off the order because they are consenting then and therefore you should not be putting them on the order. If they say, "I will leave if I want to" what are you going to do? You have to take them into hospital. It does not seem to me that the provisions for compulsory treatment have been thought through in terms of what they are trying to achieve. If the person is compliant they should not be on the order because one of the relevant conditions is that, if people consent, they should not be on the order. If they are not compliant, you are not going to make them compliant by putting them on an order. The way forward is to have good, responsible, respectable, supportive relationships between professionals and service users so they will not do a runner If they are going to do a runner, it goes round and round in circles. I do not see how this is going to make any difference at all to the situation that you put forward because, apart from anything else, it used to be the case that when people came out of hospital if they did not want to accept treatment or see people and so on they would not follow it up. We now have the care programme approach and if somebody says, "I do not want to see you any more" that is a trigger for concern being expressed as to whether they might be relapsing and might need to be assessed to see whether they might need to go into hospital. Under the current system people do not avoid professional examination, support or follow-up or whatever simply because there is no compulsion there. The care programme system provides all of that. What is going to be added to that by saying, "You have to do this and that" when the only way you can make people do it is by taking them into hospital in the first place?

Q187 Baroness Cumberledge: About three years ago, you may recall there was a case where the present Mental Health Act was used to enforce a Caesarean section on a woman who did not wish to have one. She was resisting the obstetrician's view that she should have one. Under the proposals in the new Act, could that be used in the same way as the present Act is used?

Ms Scott-Moncieff: I do not think so.

Q188 Baroness Cumberledge: You feel there are enough safeguards in this proposal?

Ms Scott-Moncieff: It is because it would not be treatment for mental disorder. That is the safeguard. That is unless the notion of treatment for mental disorder was extended.

Mr Bowen: The decision to detain was found to be unlawful in that case and under this Act I think it would also be found to be unlawful. That provides a very good example of, on the face of it, the discrimination between those who suffer from mental disorder and those who suffer from other disorders. As regards the position of those who have capacity to make a decision to refuse treatment, even if it is treatment that will save their unborn child, as the law stands in this country, they have an absolute right to refuse that treatment. The same is not the case under this Act; nor is it given any weight whatsoever and that is the concern.

Q189 Chairman: Do you think in the mental health field there is scope for people who may have a history of mental disorder but are capacitous at a given time to give advance directives for their treatment when they begin to suffer again from their mental disorder? There are a lot of questions in the area of safeguards but I think we will be interested in your view of advance directives.

Ms Scott-Moncieff: Yes, I do think that. There are an awful lot of problems with advance directives.

Q190 Chairman: Generally?

Ms Scott-Moncieff: Yes. People's minds change and so on. Under the Mental Capacity Bill you can give advance directives to refuse treatment but not to accept treatment. It would have to be very carefully thought through but it would make life very much easier. Sometimes when there has been a crisis and compulsory powers have been used, afterwards the patient could be quite grateful that that intervention took place. If that could also be formalised in some way so that could be part of the discussion that would take place between target and his clinical team, that seems to be all to the good, because once again it is encouraging autonomy, is it not? It is treating people's decisions, feelings and wishes with respect.

Q191 Lord Carter: On the point you have just made about advance directives, has the Burke judgment changed the view on that? Certainly I think, for those who were on the joint select committee that looked at the draft Mental Capacity Bill, if the Burke judgment had been available then regarding advance directives, I think we might have recommended differently. I know that is being appealed by the GMC but would you agree with me that, if it were upheld, it will have a very marked effect on the way in which we regard advance directives?

Ms Scott-Moncieff: I am sure it will. Once again, you have a fine line because you have the advance directive about treatment and you also have the rights of doctors not to give treatment that they think is inappropriate. It is where the line is drawn but in the area of psychiatry that is not really going to be an issue because you can be sure that the doctor will want to treat the person and the advance directive is going to be a discussion about the way that treatment should go. If it is between that doctor and that individual, that service user, they are going to be talking about the real options that will be available in the real situation that will be occurring. I would not have thought that would be problematic.

Baroness Finlay: I am not sure that I agree with you about the doctor always wanting to treat the patient. My concern is where the patient ends up in acute medical services with an acute medical, non-mental condition, where people may be completely unaware about the importance of the medication in terms of maintaining stability for someone and where, when they are very ill, they have difficulty expressing that. Therefore, they may find it helpful to be able to make an advance decision to state that they wish to remain on this medication. That hospital then has an obligation to bust a gut to get that medication if it is not on their standard formulary, which it may not be. Also, I am concerned about what happens to a patient who is on a community order when they perhaps have an acute accident and end up in acute services. How will that be played out in terms of that order continuing and their ongoing management continuing whilst they are going through acute medical services? I wonder if you have any view?

Q192 Baroness Pitkeathley: On the issue of safeguards, it is about how you feel about the concept of nominated person and the range of powers that person is currently given or what else they might be given.

Ms Scott-Moncieff: They are not as good as the provisions under the current Act. The cases that have been taken about nearest relatives under the current Act have been to do with the rigidity of the identification of the nearest relative and the inability to displace certain unsuitable nearest relatives. What has happened is that the baby has been chucked out with the bathwater because nominated persons do not have the powers that nearest relatives currently have. They do not even have a continuing existence. They only come into being once the person has been made subject to compulsory powers and that is a bit late really. No, I do not think they are good enough.

Mr Bowen: The 1959 Act which the 1983 Act was based upon had very much at its heart the principle that treatment under compulsion should be a very last resort. That was the principle that was upheld by the House of Lords in the Bournewood case. There are two very good examples of how that acted in practice. One was that the patient's nearest relative could discharge the patient if they felt that they could look after them and provided they were not a danger to others that was the choice the family member was entitled to make on behalf of their family member, it being assumed that those were the people who had the best interests of the patient at heart. The second was that both the social worker making the application in the first instance, or considering whether to make an application to admit in the first instance, and the tribunal, when considering whether to discharge, had an overriding discretion, in the case of the social worker, not to make the application and, in the case of the tribunal, to discharge, even where all the other conditions were satisfied. That again was based on the presumption that, even where somebody does meet the threshold for detention in hospital, it may be that their family can look after them better at home. Those are both safeguards that have been removed from the 1983 Act in this new Bill.

Q193 Dr Naysmith: In the Law Society's written evidence, the claim is made that the workload of tribunals under the draft Bill will increase enormously and each hearing will take at least 50 per cent longer than it currently does. The society believes it will be virtually impossible for the hearings envisaged under the draft Bill to take place with the frequency and within the time limits suggested and proposed. Is that what everyone believes?

Ms Scott-Moncieff: We are using the Department of Health's own figures. The most recent statistics that we have that came out a couple of years ago showed that there were something like 47,000 compulsory admissions a few years ago and something like 20,000 tribunal applications and something like 11,000 actual hearings. A lot were withdrawn, the patients were discharged or whatever. About 20 per cent of detentions led to a tribunal hearing. Under the current provisions, even if the Department of Health is right and they are not intending to section more people - and I think they have underestimated the number of people who are going to be sectioned - there are going to be, say, 47,000 tribunals as opposed to 11,000. The tribunal system is in melt down at the moment. The Department of Health is trying to do something about it but they have been trying to do something about it for years. Every time they reorganise it, it just gets worse. Maybe this time they will get it right and maybe they will get it right with the 11,000 tribunals they are having at the moment and maybe that will also work with the 50,000 tribunals they will be having when the new Act comes in. There is no evidence to that effect. Tribunals are uniquely complicated to organise because, unlike other court hearings, they are not centralised in any way. They happen in hospitals. Every hospital that has detained patients is going to have compulsory tribunals. The Department may feel that people can be sectioned but they will not apply for a tribunal. They may feel that under the new regime, where people have compulsory tribunals, they will not bother to turn up. Maybe, but my experience is that when people do have compulsory tribunals they very often will want to be represented. They will want to turn up. Because of the way the draft Bill has been worded, that would put the tribunal on notice that there might be an issue here, because compulsory powers should only be used if somebody is not consenting. If somebody does not bother to turn up to oppose it, presumably they are consenting. Therefore, the tribunal should be discharging them and hearing evidence. They are all going to be very, very long. There are not going to be any rubber stamping tribunals. I do not see how there can be. When you add into that the fact that the tribunal is not only dealing with detention but also the issue of the treatment plan, which will be about things like should somebody be a resident patient or a non-resident patient, there is no guidance for tribunals so that will have to be argued through. Should they be on oral medication or injectable medication? Should they be on old, dirty, cheap drugs or new, modern, expensive drugs? That is all going to have to be argued through. They are going to take much longer.

Q194 Chairman: Ms Weereratne, you told us you sit as a part time chair on tribunals. On average, how much time in a year are lawyers who sit as part time chairs of tribunals expected to give to sitting on tribunals?

Ms Weereratne: Expectation often does not meet reality. That would vary largely depending on the kind of practitioner you are considering. Speaking personally as a practising barrister and a part time legal chair, I find it very difficult to fulfil my commitment to the tribunal which is a minimum of 15 days and there is no maximum as far as I am aware.

Q195 Chairman: If what Ms Scott-Moncieff has said to us is right - and it is consistent with what a lot of other people have said to us - and there might be a doubling of the expectation from 15 to 30 days, how realistic is it to expect that increase to be found quickly from practising barristers and solicitors?

Ms Weereratne: Personally, I find it very difficult to offer more than the minimum number of days. Anyone who carries a practice burden in addition to having to sit on a part time basis I believe will find it very hard. I know from my experience that there are still difficulties finding panels within the existing system.

Q196 Chairman: Are part time chairs paid the same fees as recorders or are they paid less? The recorder rate is just over £500 a day.

Ms Weereratne: A part time chair gets paid £400 a day.

Q197 Chairman: If it were necessary to find a cadre of full time mental health tribunal chairs, do you think that would be an attractive option for seducing practitioners out of full time, independent practice?

Ms Weereratne: I think you probably have answered the question yourself. I would consider it would not be, certainly during the predominant years of active practice if you like. The demands of practising are great, the variety of practice is great and one of the reasons why one decides to be a barrister is because one wants variety. Apart from narrowing the niche of work which I think would be unattractive, there may be remunerative considerations as well.

Q198 Chairman: What about from the solicitors' side?

Ms Scott-Moncieff: I do not know. There are people in my firm who sit as tribunal chairs. I do not get the impression they would want to do it full time. Some people might be willing to do it full time.

Q199 Chairman: Is there a manpower issue here which his really significant?

Ms Scott-Moncieff: I think so. I am not even sure there are enough mental health lawyers to do the patient representation side of things. It will be very complex and you will have to do it very quickly. We are already pretty busy. If some of those people decide to go off and be tribunal chairs, there will be even fewer people to do the representation. Even apart from the lawyers, I find it remarkable to think that there will be full time doctors wanting to sit on tribunals and I do not think it would be a very good idea.

Q200 Chairman: That is not really contemplated, is it?

Ms Scott-Moncieff: No, but I mean full time expert panels, people who would be doing that sort of thing.

Q201 Chairman: People with clinical experience, you mean?

Ms Scott-Moncieff: Yes.

Q202 Dr Naysmith: Do you think there should be an automatic right to legal aid and to representation under the circumstances of the proposal?

Mr Bowen: It is required under Article 5(4) of the Convention that patients are legally represented. That would mean that that representation is paid for. It is a case called Mayere in Germany which Mr Fennell will know very well.

Q203 Dr Naysmith: That is going to be part of the new set-up?

Mr Bowen: If it is not, there will be lots of challenges.

Q204 Chairman: I have a little local knowledge on this. On that point, the requirement to provide representation is one thing. Could you try and give us from the Law Society an objective answer to this: is the remuneration level for such representation realistic in its present form?

Ms Scott-Moncieff: Oh, my goodness. As far as I understand it, the DCA says that as long as there are enough lawyers to do it the money must be okay. This seems rather a crude analysis to me but at the moment there do appear to be enough lawyers to do it. Whether there will go on being enough lawyers to do it is another matter. It is the worst paid form of legal aid by any standard. The people who do it do it because they love it but you learn to love it through starting off at a reasonable rate. Whether people are going to want to come into it I just do not know.

Q205 Chairman: The Law Society has expressed concern that criminal courts lack the experience of the mental health tribunal but nevertheless will be required to approve care plans under part three of the Bill. Would it help if a member of the expert panel was required to assist the criminal court in that task?

Mr Bowen: Having represented defendants in both criminal proceedings and in tribunals myself, it would certainly help a crown court judge or a recorder but there is one aspect of the proposals under the new Bill which I think those recorders, judges and magistrates who do not have specific experience would find difficult, which is approval of the care plan. The new tribunals must not only approve detention or compulsion; they must also approve the care plan. I would have very grave concerns whether the necessary expertise that the tribunal would have to decide that issue would be shared by magistrates, part time recorders or even crown court judges.

Q206 Chairman: Would it be your view that where an order under the Act is to be made in the criminal court that case should only go before a judge, whether it be a full time or part time judge, who has sat or does sit as a chairman of mental health review tribunals or a practitioner who is accredited as having the relevant experience?

Mr Bowen: There is a curious feature of the new Bill. It is ironic that the government have chosen to have a system of detention or compulsion that can only be authorised by tribunals when that is not something that is required by Article 5(4) of the Convention. Putting that to one side, what we will have under the new system will be compulsion that must be authorised by expert tribunals. It would appear logical then that even in criminal cases, once a criminal defendant has been put down the assessment route, the decision as to whether a compulsion order is appropriate in his case or her case should be made by the tribunal. If it is not appropriate, it will go back to the sentencing court who will then only have the option of imposing a non-Mental Health Act disposal. I only suggest that in light of the questions that were put. It is not part of the Bar Council's written submissions but there would seem to be a certain logic in that approach.

Q207 Chairman: A consistency of expertise at least would be helpful.

Ms Scott-Moncieff: If these decisions are going to be made in the crown court, even if the judge has the benefit of the advice of the expert panel, the defendant will also be entitled presumably to bring their own expert evidence, so once again you will have the same battle with two doctors giving evidence, being cross-examined and so on taking place in the crown court which hardly seems a suitable venue. It is just not the area of expertise, is it, of a crown court? It will clog up the system.

Mr Bowen: Nor is that expertise shared by most criminal barristers representing patients.

Chairman: Thank you very much for the clarity of your submissions and your evidence. You have been of great assistance to the Committee.