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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1127 x HOUSE OF LORDS House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE joint committee on the draft mental health bill
Wednesday 17 November 2004 MS ANGELA GREATLEY, MR MALCOLM KING,
MR DAVID HEWITT and MS LUCY SCOTT-MONCRIEFF MR DAVID
CONGDON, MR RICHARD KRAMER, Evidence heard in Public Questions 283 - 364
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Joint Committee on the Draft Mental Health Bill on Wednesday 17 November 2004 Members present:
Memoranda submitted by the Sainsbury Centre for Mental Health and the King's Fund
Examination of Witnesses
Witnesses: Ms Angela Greatley, Chief Executive, Mr Malcolm King, Programme Leader, Sainsbury Centre for Mental Health, Mr Niall Dickson, Chief Executive, and Mr Simon Lawton-Smith, Senior Policy Adviser, Mental Health, King's Fund, examined. Q283 Chairman: Good morning, thank you very much for attending the Committee this morning. Would you please note this is a public evidence session. The transcript will be produced and made available on the internet after about a week. If you would like to make any textual corrections to the draft of the transcript, please do - but textual corrections only, please, not of substance. We have about three-quarters of an hour for this session. Hopefully we can dispense with an introductory statement and move straight on to questioning if that is acceptable to you - other than inviting you to introduce yourselves, if you would, please. Mr Lawton-Smith: My name is Simon Lawton-Smith. I am the Senior Policy Adviser in Mental Health at the King's Fund. Mr Dickson: I am Niall Dickson, the Chief Executive of the King's Fund, and, until last year, Social Affairs Editor for the BBC. The King's Fund has a longstanding interest in mental health, including having done two major inquiries into mental health in London. We have ongoing policy work in this area, among many others. Ms Greatley: My name is Angela Greatley. I am Acting Chief Executive of the Sainsbury Centre for Mental Health, which is a research development and training organisation in mental health and mental health services. Mr King: I am Malcolm King. I am Programme Leader for the North Thames Centre. I lead on workforce leadership. I am a social worker by background. Q284 Chairman: Thank you. You can take it that anybody who asks any questions, at least will have read your submissions, and could I congratulate you on the conciseness of all of them. Mr Dickson, the King's Fund, along with many others, has expressed a clear preference for a radical new Act focusing on rights, care and support of service users. Given your view that the draft Bill we are considering does not achieve this, is it your view that it might be preferable to take the Mental Health Act 1983 as a basis and try to amend it, rather than attempt to improve the draft Bill? Mr Dickson: The first thing to say is that there are obviously good things in this Bill as well as bad. We, in particular, are very keen on the automatic right to tribunal - although we have worries about the staff implications of that. We are very excited by statutory advocacy - although we are concerned that it is not going to kick in early enough in the Bill as it currently is. We like the change, for example, from "nearest relative" to "nominated person" - although, again, we have worries about the powers of that. So it seems to me that there are really good things in this Bill that one would not want to lose. We have a big concern about the need to have the principles set out on the face of the Bill, as I believe many people have already said to you: that sets the tone and we believe it will also prevent amendment by the Executive. I think that is really important, that those principles of autonomy, reciprocity and compulsion as a last resort should all be there right on the front, on the face, of the Bill. Having said all that, do I believe this is really the task? I think it is the task of this Committee to make this Bill better. The community of people who are concerned with this legislation have been waiting rather a long time to get something, and I think they would see the job of this Committee to make this Bill better rather than going back to 1983. But 'no Bill' is certainly better than a bad bill. Q285 Chairman: We have had evidence that there is a 25 per cent shortage of all posts in Wales (taking Wales as a microcosm of the whole country for this purpose). Is that a general picture? - without being too particular about the numbers. If so, do you see the proposals in the Bill and their effects on manpower as being remotely realistic over a measurable time frame? Mr Dickson: We have really very serious concerns, not least, of course - and this does tie in with another concern we have about the Bill - that all the Department of Health's figures, as I understand it, are based on the idea that there will be no increase in compulsion. Certainly, as far as tribunals are concerned, the history - if you judge by the history - has been very poor, and it would be an absolute tragedy if we had a good piece of legislation and we did not have the time scale or the resources in order to do it. There are enormous pressures on mental health services around the country. The Government are training more doctors, but, of course, it takes a long time to produce one; they are training more community psychiatric nurses; and, of course, the new mental health practitioners that are envisaged do not arrive overnight either. I think we have really quite serious concerns about the Government's figures - and I do not know what the figure is but I think they produce £70 million as their figure for it. We have not done a health economic estimate of all this but our view would be that these are serious under-estimates and there is a real danger that if we go ahead with this without having the proper planning for manpower then the Bill itself or the Act itself will be undermined and will cause more problems. Q286 Chairman: Let us see if Sainsbury's - if I may call you that - would like to add anything to that, and then I will call Dr Naysmith. Ms Greatley: We are seriously concerned about the implications for staffing with the new legislation. That, I think, is both in terms of implementing this Bill if it becomes an Act but also the effect on other services, because, of course, where compulsion is involved it may mean that the staff who are available will be drawn into that area of work and clearly will be less able to undertake the kind of work we all want to see in implementing the rest of the national service framework, for example. We have looked at the most recent vacancy figures for psychiatry, for instance. The recent figure is 9.6 per cent: there are something over 3,200 posts in psychiatry and there are something like 2,860 people in post. If we add the most conservative estimate that is made for the requirements of the Bill, there will be problems in meeting that. I should perhaps add that an overall estimate for the implementation of the Capacity Bill adds another 350 staff overall perhaps, of whom a number - maybe 25 - are psychiatrists. I think we need to think of those two together. I wonder if my colleague would like to comment about Wales. My colleague is actually working in Wales at the moment. Q287 Chairman: Please do. I have noticed some Welsh interest on my right as well. Mr King: I have been doing some work in West Wales and I have just been asked by the Welsh Assembly Government to do some across the whole of Wales. My experience of the medical situation in Carmarthenshire is that there are three locums in post, there are two vacant posts. Most of the consultants are working 56 hours a week on average, which means they are doing a week and a half just to catch up. So there is a real shortage of expertise around the medical issue. Going on from there, there is a big shortage of social workers and psychiatric nurses. In Wales, over 50 per cent of nurses over the next five years are to be retiring, therefore who is going to replace them over the next five years? Q288 Dr Naysmith: The Sainsbury Centre argues that there have been many advances in the social dimensions of treatment in recent years, but that that draft Bill is heavily skewed, as you point out, in favour of the medical forms of treatment. Could you tell us what these advances in the social dimensions of treatment to which you refer are? Ms Greatley: There is a greater awareness now of the importance of the contribution of social care, of course, to how people are better supported in the community, but I think more recently the importance of employment for people with mental health problems; the importance of good housing - moves like supporting people to enable people to live in their own independent accommodation. Our fear with the proposals in this Bill is that, because most of the definitions of treatment still rest around medical treatment, there is, in a sense, in potential legislation a diminution in the importance of what we know to be the kinds of measures that will help people not only live the lives they want to live in the community but to recover and be the contributing members of society which they want to be. Q289 Dr Naysmith: You are not talking there about the use of drugs versus the use of so-called talking therapies and psychology? Ms Greatley: We are talking about the availability across the board. For those who want to take medication and for whom it is effective, we absolutely think that is the right thing - although, of course, in line with NICE Guidelines and so forth. For many people, though, that is only acceptable if they have access to talking therapies. There are currently not available the targets for mental health waiting times that there are in other parts of the health service, so there are very long waits in many parts of the country for talking therapies, but we are also concerned with housing and employment and people's ability to enjoy an ordinary life. Q290 Dr Naysmith: Is there anything in the draft Bill that will stop these treatments happening, or prevent these treatments? Ms Greatley: One specific I want to draw to people's attention is that throughout the Bill there is a discussion about care plans, quite rightly, and the adequacy of the care plans. It is our view that, where a care plan is devised, it should be consistent with and become integrated with the current care-programme approach that applies to people in mental health service, and that care-programme approach specifically requires consideration of these social issues and life-domain issues (if I may use that rather inelegant term). Q291 Dr Naysmith: In fact, if this is implemented it could help the kind of things you are talking about. Ms Greatley: If it were implemented in the way that the care plans were integral with the care-programme approach, and not merely medical treatment and medication plans - which is what we fear in this Bill - then it could actually be very positive. Q292 Hywel Williams: You referred to some figures around the shortage of psychiatrists. Are these England and Wales figures? Mr King: England and Wales. Ms Greatley: These are England and Wales together. Q293 Chairman: I think the Wales figures are higher. Mr King: They are. Chairman: And you have already highlighted, Mr King, the nurse problem in Wales. Q294 Lord Rix: The Sainsbury report recommends at 2.3 that the current broad definition of mental disorder has to be linked to specific exclusions, otherwise legislation may be used on people such as alcoholics, and I would like to include here, of course, people with a learning disability who do not have a mental illness. Is not the problem that the opposite is happening now? We have had evidence that welcomes the exclusion relating to alcohol misuse in the definition of mental disorder, as the exclusion in the 1983 Act seems to have excluded people with a dual diagnosis from the protective and often life-saving provisions in that Act. Ms Greatley: We are certainly in favour of a tightening of the current definition by adding exclusions. These would include alcohol, drug misuse, and, indeed, people whose behaviour is disorderly or not acceptable. We do not believe that people for whom that is the only problem should have anything to do with the mental health legislation. Mental health legislation is about the terms in which we deal with people who need compulsion. We do accept that people who have co-existing or co-morbid (as they are called) conditions that involve mental health and other problems certainly would be subject to the Act. Our own view is that the reason people are excluded at the moment is that the commissioning and provision of services suitable for people with substance abuse problems and mental health problems is still, frankly, not good enough and therefore it is used as a way of rationing the availability of services. Mr Lawton-Smith: I thought I might add that yesterday afternoon I was at a meeting of a group of dual diagnosis network workers, frontline workers and managers, in Bromley, and I put some of the points around the Bill to them. They said, first of all, that they were not aware locally that there were any difficulties in finding people with dual diagnosis and being able to treat them; the key was that they had to go out into the community and engage with them. The second question I put to them - which is slightly different to Lord Rix's question, I appreciate - was would they find it helpful to have new powers of compulsory treatment in the community, and of the 17 people in that room, not a single one said that they would find it helpful. Q295 Mrs Browning: Could I pick up on this question of these specific exclusions. If we could just take the adult population with a diagnosis of Asperger's syndrome who very frequently come into contact with mental health services, very often mis-diagnosed by mental health services and the autism not recognised. I wonder what your view would be about Asperger's syndrome in this context, because a lot of people with Asperger's come into contact with mental health services because there has been an event which has triggered a certain type of behaviour. Very often, at the base of that, we find that it is because they are not actually receiving an adequate package of care and support that is supporting the autism, in terms of their lifestyle and their wellbeing, and it is that which triggers the behaviour that brings them into contact. I wonder what your views are on that particular grouping. Ms Greatley: Our organisation does not deal with Asperger's, autism or learning disabilities, except to say that it is our view that people for whom that is their only difficulty - substantial as it is for many - should not be caught in this mental health legislation. Mr King: I was an approved social worker for a number of years and I had to assess under the Mental Health Act a young lad with autism who was 14. Hopefully I am quite skilled in mental illness, but not autism; so I could not go ahead with the assessment because I did not feel I had the necessary skills to decide whether this person needed to be admitted or not. Q296 Chairman: Are you implying that is a general issue? Because it is very, very important. Mr King: Yes, I think it is. Ms Greatley: Yes, I think that would be our view. But we have to say that there are other organisations much more expert on the best way of dealing with those issues. Q297 Mrs Browning: In terms of assessment, very often with adults we would welcome the input of social services as opposed to mental health. Very often it is a group decision from all interested expertise. In the example you have just given us, were you saying you felt it was more appropriate for somebody with a mental health qualification to make that assessment? Mr King: No. I was saying that I think it needed someone with specific training in autism to do that. Chairman: I would like to move on to a question Dr Stoate is going to start with, which has already been flagged up in an answer that has been given. This is a very big issue. Q298 Dr Stoate: Thank you, my Lord Chairman. I am actually a practising GP as well as a Member of Parliament and obviously I am particularly concerned about community treatment orders because I have a particular interest about care in the community for mentally ill people. We have heard, as you know, a lot of evidence from a lot of witnesses who seem very strongly opposed to community treatment orders and to compulsory treatment in the community. Certainly Simon Lawton-Smith seems to have echoed that from the King's Fund, that the people he spoke to did not find it helpful, and yet the Sainsbury Centre has expressed support for community treatment orders based on the Saskatchewan system. I would like to ask what the benefits are in the Saskatchewan system. If there are such benefits, how are you going to sell those to the other people who have given us evidence that these would not be helpful? Ms Greatley: I welcome the opportunity to make these points clear because I am aware that this is a hugely important part of the proposed legislation. We are aware from the Sainsbury Centre that Government have a view that there should be services that are based on the principle of the least restrictive alternative. We therefore assume that there will be an exploration of how that principle might be carried through. We understand entirely and absolutely support the service users who are saying that, with the current definition and the current conditions, any kind of non-resident order could effectively be a long-term measure for keeping people in the community continually on some kind of restriction and having the requirements, whatever, applied with the non-resident order. Our view has been that there are jurisdictions - probably the Saskatchewan is one we have mentioned, and in New Zealand - that have had a much longer experience of using these kinds of orders. If the definitions and conditions are sufficiently tight and if these non-resident orders were used only for a very small group of people - revolving door, as they are sometimes called - we think there is an argument for further exploration. We certainly do not suggest any one particular model to you now as being appropriate for Britain just to pick up and implement - it needs a great deal of further work. But I think we have to have an assurance that there is a way ... Frankly, if the gateway to get into this legislation is as wide as we fear, then we think the way out could be extremely narrow for people on non-resident orders. That I think is the problem. George Szmukler's evidence from the Institute of Psychiatry in King's - again, a commendably short piece of evidence, I think - talks more about the assessment of what has happened in England and other jurisdictions and again talks about this tiny group for whom, with sufficient work and research, it might be a helpful adjunct. Q299 Dr Stoate: Tony Zigmond from the Royal College of Psychiatry, when asked this very same question, was adamant that he was opposed to them. He said that if you have compulsory treatment orders for people with mental illness, you are discriminating against them, because it will be the only medical model where that type of order was applicable. You could not, for example, have a compulsory treatment order for somebody who has renal failure or somebody with diabetes or somebody with heart disease, so why should you have a community treatment order for somebody with mental illness? It is discriminatory in the extreme. That is certainly the Royal College's view. Ms Greatley: We think that argument has a great deal of strength to it. Our own view is, of course, that there is a missed opportunity in this legislation for something that we might call advance directives. If people have the opportunity to say when they are well what they would accept when they are unwell, we think that could be a very powerful way of dealing with this. Q300 Chairman: I should tell you we have had 100 per cent representation in support of advance directives. Ms Greatley: Yes. Q301 Chairman: Without exception. Ms Greatley: In our view, the use of any kind of agreed treatment order in the community would be infinitely preferable to any imposed order, but, whatever happens, the gateway to get people out has to be much broader. People are going to be caught in these for years, we think, as it stands. Mr Dickson: I am not sure that the analogy with physical illness in that particular instance is right, because, of course, you do not have compulsory orders for hospital for physical illness either. But I think there is a danger with the Bill as currently constituted that these orders are used too often. The Government are saying that these would only be used in very limited circumstances, and yet, as Angela said, of course the gateway into them .... So there has to be a danger that they are used too often; that they are used for people who would otherwise not be under compulsion; that people do not get off them when they should - there is a real issue there for people about "once you are on ..." and I think Genevera Richardson's lobster pot was a good analogy or that of a valve which you go through and you cannot get back out -and I suppose they may even be used for people who should actually be detained and supported in hospitals because hospitals are under enormous pressure. I think there are real dangers. We have not shut the door entirely to the idea. I think we would probably feel more comfortable if they were not in the Bill, but if they are going to be in the Bill then it is a question of getting the criteria right and restricting. Saskatchewan appeals - and I entirely endorse it because it is an ideal model - because it does appear to restrict both in terms of the history of the patient and being clear about the impaired judgment being an issue before these orders are used. Q302 Lord Carter: As you know, there are provisions for advance directives in the Mental Capacity Bill which is in front of Parliament at the moment. There is unlikely to be a new Mental Health Act for some time now because of the time scale of our report and the legislation. Would you suggest that we should be attempting to amend the provisions for advance directives in the Mental Capacity Bill, which, as I say, is before Parliament and we have the chance to do it and to meet your concerns? Why can we not use the provisions which are already in the Mental Capacity Bill to meet your concerns? Ms Greatley: We are in entire agreement that the time when we will have a Mental Capacity Act and we will not have a new Mental Health Bill is a time of maximum confusion potentially. I suppose we have always said we should use that as an opportunity, but in this case I think it is not going to be a very helpful one. If the provisions for advance directives could be put in the Capacity legislation. ----- Q303 Lord Carter: They are there now, of course. Ms Greatley: Absolutely. -- in a way that means they can also go in the Mental Health legislation, because we are worried about the incongruence, if you like, between the way that they appear in the two pieces. Q304 Lord Carter: What changes would you need to make them, as you say, congruous? Ms Greatley: For instance, if you have people who are under compulsion under this mental health legislation, we have to be sure that the arrangements for the advance directive in advance of the period when they are under compulsion, are operating in a way that staff are able to operate both. It is that sense: the confusion between what an advance directive means under one piece of legislation coming so far in advance of the other, could be the period at which staff find it very difficult. We have a very big training job to do for staff in mental health trusts. Some of them, of course, will be dealing with clients who may be in and out of the different jurisdictions, if you like. To have clarity about what would be said in this legislation at this stage would be very helpful. Q305 Hywel Williams: Could I take you back to the Saskatchewan model. You say at 2.11 of your submission that they should be "accessible, for example in terms of time, location and language". I would like to ask you about two of those issues. In terms of rural areas, it has been suggested that non-resident orders would be particularly appropriate because that would avoid residential care at a remote location. There is also the contrary argument that day care facilities or day treatment facilities would also be remote. Do you have any observations on this in terms of the provision in Saskatchewan? Ms Greatley: I think, again, we have to go back to the principle point, that if an order is going to be made that someone has to have certain conditions attached to the way they live in the community, we have to be sure that the resources will be sufficient to enable them to meet those conditions. I think the rural question is an absolutely strong one. That would suggest that unless we have the resources to pay, for instance, for a taxi for someone to go to a day hospital, that can provide care to support them at home if it is needed, it will not be possible to implement any system of non-resident order. Q306 Dr Stoate: This clearly has implications for the equity of availability throughout England and Wales. I would like to turn to the language issue. The legislative context in Canada, and particularly in Quebec, is somewhat different, and there is a difference, of course, between Wales and England, and thus we have the Welsh Language Act which says that Welsh and English should be treated on the basis of equality. Again referring to non-resident orders, how appropriate would they be, do you imagine, in terms of the situation such as we have in Wales, where the provision through the medium of Welsh is very scarce indeed in respect of equity of treatment for Welsh speakers as compared to English speakers? Ms Greatley: In a sense, the argument has been made, because if one cannot provide a service for people which is culturally and linguistically acceptable then it cannot be something which we can compel people to use. I am concerned equally for young African and Caribbean men in some of our inner cities who may be compelled to meet certain conditions and to use services that are not appropriate or acceptable to them. That is equally difficult. In both of those situations there are issues where we have to be sure that there is going to be sufficient capacity to provide in the proper way before we can even contemplate going down this road. Q307 Chairman: Could I offer, arising from Mr Williams's question, a comparison that has just been put in front of me. Ontario has approximately the same population as Northern Ireland - slightly smaller - about 1.5 million, and it has community treatment orders. I am informed that Ontario imposes about 90 CTOs a year, of an average duration between three and six months. That would be the equivalent of about two to three per year for each United Kingdom team. That, apparently, is the Ontario experience factually. Do you have optimism that that will be the level of imposition of these orders in England and Wales or not? Mr Lawton-Smith: It is a very interesting question about the level of use of these orders. The King's Fund is actually undertaking a piece of research at the moment on the use of the orders in various administrations around the world. We are particularly interested in trying to find out the numbers of people who are subject to compulsory treatment, whether in the community or in hospital, following the introduction of this sort of system, a community-based treatment system. The evidence is very difficult to unpack at the moment because the data is not good; however, I think our initial findings would suggest that there is certainly a very varied usage of orders. In some of the American states where it has been introduced, it is hardly used at all; in others it is used quite radically. In the example you gave of Ontario there seems to be quite a mild amount of use. I think it is simply not a question that it is possible to answer at the moment about the likely impact on numbers. We are fairly certain though - as I think is everybody who has given evidence to your Committee so far - that the danger of a significant increase in compulsion and the numbers of people under compulsion is there, unless there is a significant tightening of the definitions and the conditions as they stand at the moment. Q308 Chairman: Might you be able to supply us with at least a preliminary analysis of information collected from around the world on the use of them after this meeting? Mr Lawton-Smith: I would be very happy to do so. To be honest, it might be January before we can put together anything sensible. Q309 Chairman: That will do very nicely. Mr Lawton-Smith: I am very happy to do so. Chairman: Thank you very much. Q310 Baroness McIntosh of Hudnall: This may be another question that it is impossible to answer, so forgive me if it is. I am just listening to what you are saying about capacity within the mental health services. You have talked about and we have heard evidence from others about the current lack of capacity where there are vacancies; in other words, there is the willingness to recruit but there is apparently a difficulty in recruiting people into these services - at all levels, it would seem. I would like to ask two questions, if you can answer them. The first is: What do you think is currently discouraging people from applying to or from taking up the training that would allow them to apply to fill those vacancies? Secondly, if this Bill or something very like it were enacted, do you think that would help or hinder the recruitment of mental health professionals? Mr Dickson: I think this is all related to how mental health is regarded within the wider health system. I think it was David Owen who created mental health as a priority within the National Health Service and it is rather a long time since he was Minister of Health - which shows that not all government priorities actually have an impact. The truth is that the mental health world has consistently suffered from under-investment under successive governments and its reputation in the wider world - not least, I have to say, sometimes because of media coverage - has been that it is not deemed an attractive and exciting place in which to work. For that reason, it has been difficult. Of course, we have had wider shortages of health staff in all the major professions across all specialties, but it is the Cinderella specialties where it has been difficult to recruit both the numbers and quality of staff, and mental health is a classic example of an area which has been not given the prominence or support that has been needed. To go on to your second point: Will this Bill help? I think it goes back to the point I said at the beginning about the principles being on the face of the Bill and what this Bill is actually about. If this Bill is primarily about public safety, about locking up seemingly dangerous people, then that will not encourage anybody to work in this area. If, on the other hand, it is about a statement of rights and autonomy - about trying to transform these services and use compulsion appropriately in the limited number of cases in which it can be used - and states the need, for people who have mental health problems, for their problems to be recognised and supported, then I think it could have a positive impact. But, at the moment, as the Bill is currently constituted, I do not think it would do anything for recruitment at all. Q311 Baroness Cumberlege: We are where we are. I appreciate what Mr Dickson has said about the shortage of mental health staff. I particularly want to concentrate on psychiatrists because I was told by the President of the Royal College of Psychiatry yesterday that he reckons there are quite a few psychiatrists who have case loads of 300 people. I just wondered what would be the implications of psychiatrists actually having a realistic case load and concentrating on severely mentally ill people. Would some patients actually lose out because of that, or could their needs be met by others? Ms Greatley: Certainly, we have been doing a great deal of work around the changing role of psychiatrists, and acknowledging - and this is much supported by the College and others - that there are ways in which one can use the expertise of psychiatry in a much more pointed and focused way. My question, I suppose, if I were talking with the President of the Royal College, would be: If people have case loads of up to 300, I wonder whether some of those people are getting any kind of service already? Therefore, we can only exacerbate that problem by any changes here that we cannot resource properly. I think one of the difficulties is that the moves within workforce development to develop the role of psychiatrists, to bring in other professionals are working, but they are working fairly slowly. I am not sure that by the time it is anticipated this Bill would come into force we will actually have tackled those difficulties, because we have this reservoir, if you like, behind, of unmet problems. Mr Dickson: I think this is also going to be compounded by the Working Time Directive in the consultants' contract which will probably mean that people will do fewer hours and still be faced with these ludicrous levels of case work. Q312 Baroness Eccles of Moulton: Continuing the question of the availability of manpower, but taking it from a slightly different angle, it is well known that over the last number of years the division of time between office work (paperwork, etcetera) and time available to spend, as it were, working directly with patients, has shifted very much towards the paperwork end. I heard the other day of somebody whose work load is now two-thirds paper, one-third actually with the clients, whereas ten years ago it was the reverse of that. Do you think that the measures in the Bill are going to make this situation worse? If so, is there anything we can do in our recommendations to help stop the drift or maybe even reverse it? Mr Lawton-Smith: If I may try to answer that. I am not sure I am completely competent to answer that question but, in terms of the administrative burden on clinicians that this Bill will impose, I am not sure I can immediately see that the quality of the work they have to do will change significantly, but what there will be is more of it. There will be a significantly increased number of tribunals, for example. I think it is undoubted that the work load will go up. If that work load is two-thirds paperwork, one-third talking to patients, then it will go up in proportion, I guess. I do not see anything in this Bill that will actually ease the paperwork - but I would like to qualify that by saying that I have not actually looked at the Bill for that purpose. Ms Greatley: Might I add a comment on your second point. I realise that the purpose of this Committee is to look at the legislation. However, if we consider overall the investment in the growth of mental health services, it has been only about half of the investment in health and social care generally. Our own research last year showed, real terms, about 1.6 for mental health when it was at least double that for other health and social care services. The particular aspect that worries me is those aids and assistances to people that could come from a better developed technology system. Mental health is light years behind the rest of health and social care in investment in technology. Some of us may look at technology and think, "Is that going to ease my burden?" but in the long term, of course, it will. The recording of important information and the keeping of care programmes - perhaps this Committee would be able at least to comment - unless that happens, it will be even more difficult to implement this Act. Q313 Chairman: We have not had a paper from anyone in informatics in mental health. It might be helpful - you are both distinguished policy bodies - if you could give us some help on informatics before we get to the way in which information is shared, then it would I think be of assistance to the Committee's deliberations. Ms Greatley: Absolutely. Q314 Laura Moffatt: We keep thinking we are getting to the crux of it, but clearly capacity within the service is truly the basis of why people are very cynical about what this Bill is trying to achieve. Unless we tackle that, I think we are going to run continually into these buffers about what this Bill is all about. Could you say a little bit about what I believe will then pile on the pressure for the existing psychiatrists, and that is the increasing medicalisation of those who are being treated in primary care at the moment, who may well be pushed into the psychiatrist's office rather than being kept within primary care, which may well add to all these problems we are now facing. Ms Greatley: If I may go first and Simon may want to add something as well. From our own research, the development, for instance, of the national service framework in relation to primary care provision is still relatively slow in terms of being able to get the kind of primary care support that would at least contain the move into secondary care. One of the worries that we have about these proposals is that, with the conditions being so broad, many more people may be propelled early on into secondary care, particularly with a less well developed primary care service than we would all like to see, which I think is going to distort the resource questions as well and can only add to those difficulties. Mr Lawton-Smith: I was involved, with the people with whom I used to work, the Mental After-Care Service, in the first national survey of primary care in mental health. This was about three or four years ago. That found that many GPs around the country - and they were very self-aware of this - had severe difficulties with the increasing number of people presenting with mental health problems, which has increased broadly in the last 14 or 15 years from about 15 per cent of the people who present to about 30 per cent. Many of them did not feel skilled to undertake the necessary assessments or prescribe the right treatment or make the right referrals, so there were great difficulties there. Having said that, you have to accept that there is now an increasing number of counsellors within GP practices to whom patients may be referred and I was also very struck by the Minister Mr Ladyman's assertion the other day that the NHS was going to be about being able to prescribe Tai Chi and skiing, which were two of the things the mentioned. I think that is a very important point to make. I believe that what primary care is able to offer people who use mental health services and who go to primary care for their mental health support is actually expanding over what is available today and certainly what was available a long time ago. We still have a difficulty with the fact that many people are simply prescribed pills - there is a big issue around that - but I think I would be slightly optimistic that in the future we will have a more appropriate social model of care treatment available to people than we do now. Mr Dickson: I think there is a growing recognition within medical practice that the menu needs to be rather wider than it currently is. Part of the problem is the time factor: General Practitioners feel they are under enormous pressure of time to get through the appointment, and, of course, reaching for the prescription pad is a way of quickly ending the appointment. But I think that is changing and I think the General Practitioners are becoming more aware. The Government's choice agenda and pushing this idea of personalised care combined with the new GMS contract will, I hope, encourage more practices to offer a wider range of services, which will mean that General Practitioners do not reach for the prescription pad as the first resort and do consider some of the talking therapies and some of the other things we have been talking about. Chairman: We will have to move on now. Mr Loughton and then Mr Hinchliffe: perhaps you could both put points and then we will take some responses. Tim Loughton: I think the notion of Tai Chi and skiing, particularly simultaneously, is slightly worrying. We may end up shifting the problem from mental health to orthopaedics! I think we are all agreed about the resource problem, the fact that the Bill just will not work if you do not have the people on the ground to put it into action. Could we try to quantify that, though. The Government have said a lot and started to do a lot about setting up new innovative community services - intervention teams, crisis resolution, etcetera, etcetera - which on the face of it sound good, though in practice have all too often been at the expense of core services. Have you done some calculations in terms of the level of investment you think is required, firstly to bring us up to speed with what we need now, so that we do not have the consultants with 300 clients on their books, and to be able to enact the terms of the Bill? The King's Fund particularly has recognised the need, as we all agree, for early intervention. Have you done some calculations in terms of what that degree of proper early intervention would actually save, in terms of man hours later on where it becomes a more acute problem? So some more detailed figures around the acute versus the preventative investment arguments. Q315 Mr Hinchliffe: Angela Greatley will recall that when the Health Committee looked at mental health a couple of years ago, when she was involved as an adviser, we were very struck by the marked differences from area to area in the ability to prevent admissions to hospitals of people with mental illness. I am also struck, when we look at the different procedures used in sectioning patients, that there are very marked differences from area to area - and that is not to say that some areas have more people who are mentally ill, because I do not think they do, quite frankly. Does the Bill in any way address these differences, these inequities, or could the focus on this Bill actually make them more marked? Mr Dickson: The short answer is no, we have not done those calculations. I think there are two separate issues here. One is the state of the mental health services as a whole and the inability of the mental health services to meet need in spite of extra investment which has gone in. Then there is the particular question of the additional demands which will be made by the Bill as currently constituted. It is crude, but our crude system is that the current figures produced by the Government are not realistic, particularly because we do not believe the Bill as currently constituted will leave levels of compulsion as they are, and, of course, the numbers of tribunals, rightly - it is a good thing - will increase obviously very substantially. Mr Lawton-Smith: Perhaps just as an example, the Government says they are going to need 140 advocates to run the Bill. There are currently round about 4,700 uses of the Act. You can do a quick calculation to see how many clients each of the advocates will have. That does not take into account, as Niall said, any possible increase in the use of compulsion, so you may be looking at advocates with client bases of about 300 or so, which is, as far as I am aware from speaking to advocates, completely impractical. Q316 Chairman: Does that take into account Mr Hinchliffe's point, if I may summarise it in this way, about unequal provision around the country, which may involve a shifting of non-existent resources in part to other parts of the country where they do not yet exist? Mr Lawton-Smith: I think it is very much the case that plenty of services in the community at the moment are under-resourced. If a Bill is introduced which imposes compulsory treatment on a small number of people, then it is likely that the resources that there are in the community will be focused on those people and there will therefore be fewer resources for others in the community. Q317 Chairman: I presume if I asked you the question as to whether mental health provision funding should be ring-fenced, we would get a unanimous answer. Mr Dickson: I do not know; we have not consulted on the matter. My general view is not in favour of ring-fencing because I meet too many different sectional interests who all want to ring-fence, and then it becomes utterly meaningless and there is no level for local discretion at all. So, generally, in principle, I am not in favour of ring-fencing. But that view may not be shared by my colleagues. Ms Greatley: I would have had some ring-fenced investment in new services. But, overall, I think Niall makes a very good point. We all know there are demands across the system. Might I comment very quickly? Unfortunately the calculations are not possible to do yet about the cost of implementation because of the broad difference, as Niall has said, between the estimates of the numbers of people likely to go through and therefore the demands on the system. But, be assured, we should continue to look at that. On the area differences, we are aware of inequities currently. We just looked at the implementation of guardianship under the current Act and it is very different across the country - just one little bit at which you can look and say it is already happening in so many areas. In relation to resources, if it would help the Committee, our research into early intervention in psychosis services did have some calculations about the potential. We could supply that afterwards. Chairman: We are certainly very much in favour of early intervention. Mrs Blackman and finally Mr Hinchliffe and then we will have to draw this to a close. Q318 Mrs Blackman: We have talked about inequity of resource distribution, but have you done any research around differences in good quality practice? I am aware that in so many of the fields I look at there is exemplary practice and poor practice. You must have some kind of observations to make around that particular issue. Is there anything in the Bill that can help drive up practice where it is not so good? Mr King: I probably worked with 50 or 60 different teams over the last year in England, Wales and Scotland. The problem is - and I think you raised this - that it is about local issues. Local resources are different in every area. In my view, crisis teams and intervention teams are being staffed by people from community teams and from in-patient units, and therefore the skill level, the experience, is being diluted from in-patients and some HTs to staff crisis teams or intervention teams, which has caused problems in working with patients in the other teams. I think every area is different. Some areas have good working practices, but they have the resources; some are not because they do not have the resources. Crisis teams are supposed to work 24 hours: a lot are not because of resources used. Q319 Chairman: I think the answer to Mrs Blackman's question is probably that the Bill does nothing to deal with that issue. Mr King: Yes. Q320 Mr Hinchliffe: I want to ask what is probably a very unfair final question, but I will ask it nevertheless. I sometimes do sessions with health service managers and one of the most interesting debates we get into is when I put to them the question of devising a local service which has no hospitals. Imagine a mental health service with no hospitals. If we had that - and some of us believe we actually could have that - how would this measure before us differ? What would the focus be in a service without a hospital? Ms Greatley: It is a difficult question. I am tempted to start with "I would not start from here if I wanted to get there." I think that is very serious and I entirely support the points Niall made earlier about the conception of this Bill being entirely ill-designed to support the development of a move away from in-patient care. I do not think that any of the proposals in it are going to help in that direction, and, if I may say, I agree: I think it is a great pity. Chairman: Mr Dickson, in your previous job, I understand that the average attention span of a viewer was assessed at seven seconds. You have certainly held our attention, all of you, much more successfully than that and we are deeply grateful to you for the extremely interesting evidence you have given this morning. Would that we had fewer witnesses to hear and more time to hear them, because I could have sat and listened to you for double the time without difficulty. Thank you very, very much for attending.
Memorandum submitted by Mr David Hewitt
Examination of Witnesses
Witnesses: Mr David Hewitt and Ms Lucy Scott-Moncrieff, solicitors, examined. Q321 Chairman: Ms Scott-Moncrieff and Mr Hewitt, thank you for coming to give evidence this morning. Ms Scott-Moncrieff, you have given evidence before, which shows how lucky the Committee is to have you back again; Mr Hewitt, you are very welcome and can I congratulate you on your new Law Journal articles, the first one of which I have circulated the Committee because of the clarity of the picture it presents and the explanations. So thank you for those. Mr Hewitt: It is edifying to know that somebody reads them. Q322 Chairman: If we may, we would like to move straight into questioning rather than inviting you to make an opening statement, except that we have met Ms Scott-Moncrieff before so she has introduced herself once and she does not need to do it again. Mr Hewitt, would you introduce yourself very briefly? Mr Hewitt: Yes, my name is David Hewitt, I am a solicitor and a partner in Hempsons Solicitors; until very recently I was for nine years a member of the Mental Health Act Commission. Q323 Chairman: I think you have worked on, as it were, both sides of the litigation over the years, have you not? Mr Hewitt: I have, and possibly even in the middle if you include the Commission in that. Chairman: Mr Prosser, I think you are going to start this. Q324 Mr Prosser: Mr Hewitt, on the question of least restriction No Force, Scoop and others have told us that the threshold for protecting the safety of others and the health of others is set too low in the Bill. Given that those with mental disorders are not always conscious that they have a problem, do not always perceive that there is a problem, would you say that the level set in the Bill is about right and, if not, how would you set it and how would you define it. Mr Hewitt: I think there is this differential in the Bill as it is now drafted between those who are thought to present a risk simply to themselves and those who are thought to present a risk to others, and I think the differential is such that you could see a change between the current draft of the Draft Mental Health Bill and the 2002 draft as being evidence that the main purpose of the draft is public protection. Certainly, the relevant conditions would make it easier to apply compulsion to a person if he or she presents a risk to others, than if the only risk is to him or herself. It is worth bearing in mind of course that the 1983 Act contains no such differential test, in essence no greater self risk is required to justify detention than risk to the public. So in that context you could see this change, I think, as being motivated by the desire not to protect the public but to keep patients out of hospital unless it is absolutely necessary. The problem is that the other relevant conditions rather give the lie to that, but certainly as far as concerns this particular one of the conditions , that would be possible. My own view is that I have not seen in the documents that the Government has prepared to accompany the Draft Bill a justification for having that differential test, unless it is to protect the public, unless it is out of the perception that the public fears itself to be at risk. Q325 Chairman: Ms Scott-Moncrieff, can I ask you possibly to widen the answer to the question to deal with any legal difficulties that you feel we might find practitioners like yourselves facing in the context of the test as described in Mr Prosser's question? Ms Scott-Moncrieff: The difficulty for me is that it does not actually talk about the protection of the public and their health and safety, it just talks about the protection of the public, and that could be from all sorts of things. It could be from harassment, from annoyance, from irritation, from financial hassling - all sorts of things come under the heading of protection - and it is not at all clear that those sorts of things would be restricted. It is the same use of language as under the 1983 Act, there it simply talks about the protection of the public as well, but there are other constraints under the 1983 Act - the protection has to justify treatment in hospital, for instance, whereas it does not under this Act, and there is a much narrower definition of the medical treatment that has to be available to the person. It has to be medical treatment under psychiatric supervision, whereas under the current proposals there is a very wide definition of protection, i.e. it covers anything as far as one can see, there is no need that the person has to be given hospital treatment to protect the public and there is no need even that the treatment has to be given under the supervision of a psychiatrist, it could be given under the supervision of a psychologist, so it is enormously wide, and that seems to me to be extremely problematic. If I were being asked to suggest an alternative I would, as I think I have said in my written submission, propose the Scottish definition where they talk about the safety of the public. That is much more straightforward, is it not, because it leaves out all the social irritant side of things and so on, so the safety of the public seems to me to be a good and clear definition where protection of the public just is not and will lead to endless arguments. Chairman: Mr Howarth? Q326 Mr Howarth: I can understand exactly where you are coming from and some of the client groups that we spoke to have made more or less the same point in the last week. Do you not accept that there are some types of behaviour that, while they might not physically threaten somebody, can make their lives miserable? You used the word yourself, harassment: there is a spectrum of harassment from something that is irritating through to harassment that can make people's lives intolerable. Ms Scott-Moncrieff: Yes. Q327 Mr Howarth: How would you deal with that more serious end of the spectrum of harassment? Ms Scott-Moncrieff: That kind of behaviour is well recognised in the criminal law - particularly recently with ASBOs and so on and the stalking legislation - so one of the things that this Act does is it has quite flexible provision for people who are charged with or convicted of criminal offences, and it seems to me that if somebody's behaviour reaches that criminal threshold then if the decision is to have a mental health disposal well, fine, that seems to be the way to do it, but to bring in as it were a mental health threshold as well where somebody could be sectioned for behaviour for which they could not be arrested as it were, seems to be discrimination. There are plenty of provisions for diverting people from custody and diverting people from the court system, if they reach the threshold of criminal arrest, and those provisions no doubt will be able to continue. Q328 Chairman: Forgive me for interrupting, but do you mean what you are saying, because the threshold for criminal arrest is pretty low? Ms Scott-Moncrieff: Yes. Q329 Chairman: Are you in favour of a mental health diversion, possibly through compulsory powers, even where the threshold of arrest has been reached - for example by a low level of assaults on police officers or thefts from business premises? Ms Scott-Moncrieff: One of the things that I think is important is to disentangle criminal justice from Mental Health. People with mental health problems are citizens and are responsible for their actions unless found not to be, and if they are doing things that break the law or appear to break the law, then let us recognise that and let us acknowledge that. Because we live in a humane and civilised society that does not mean that they necessarily are going to be punished in the way that somebody who perhaps has greater responsibility for their actions should be, but let us clarify the difference between a criminal act - which certain sorts of harassment and annoyance would be, aggressive begging or whatever it might be - and then what you do about that criminal act, rather than conflating it as this legislation appears to be trying to do. Q330 Mr Howarth: Have we not traditionally taken the view that while the act of one person and the act of another person might be the same in effect, the things that drive them to it have been entirely different? For example, in the case of a mentally disordered offender there is a compulsion to do which is not necessarily acquisitive or vindictive, it is quite separate. Have we not historically felt that that was something that was a mental health problem and should be dealt with in that way, rather than a criminal problem? Ms Scott-Moncrieff: Absolutely, I am not saying if somebody has a schizophrenic breakdown they have to be arrested and taken to court; I am not saying that at all. We have the provisions for the police now to take people who appear to be mentally distressed, who very often may be behaving in a way that is, you know, verging on breach of the peace or whatever it might be, taking them to hospital - I am not saying that you should not be able to do that, but the way that the question was put to me was that somehow mental health legislation ought to have a different threshold to criminal legislation, and it seems to me that you ought to be trying to use the same thresholds to ensure that you are not discriminating against people's mental health problems, and making them subject to compulsory powers where their behaviour does not reach any kind of criminal threshold. One of the difficulties - and I have done a lot of work with mentally disordered offenders, obviously at the higher end of the market rather than the community end of the market - about the conflation between the criminal justice system and mental health is that all the safeguards under criminal justice, like for instance proving a case, are completely dissolved. Most psychiatrists have no particular understanding of the difference between evidence and proof, for instance, or suspicion and proof, or suspicion and guilt, and somebody can be suspected of behaving in a particular way and out of compassion, possibly, or for various reasons, they are not arrested and charged with an offence. It is assumed that they did what it is that they are alleged to have done, and they may say "I did not do it", but that is denial, is it not, we are going to keep you in hospital and so on and so forth. Very dangerous situations arise where people are shunted into the psychiatric services without any of the safeguards of the criminal justice system, Obviously, criminal justice is about protecting the public but it is also about protecting the accused individual. Q331 Chairman: Mr Hewitt, do you want to add anything on thresholds? Mr Hewitt: Yes, just to make the point that if there is a problem in dealing with people who present a problem to the community, that difficulty arises it seems to me, not because the threshold is to high or too low in a particular case, it is because of other conditions, other criteria and conditions, such as for example the treatability criteria. Experience shows us that there is never really any difficulty in having people who present the kind of risk that you describe who also suffer a mental disorder being admitted to psychiatric care, the difficulty lies with other aspects of that, including the treatability of the condition. Chairman: Mr Hinchliffe? Q332 Mr Hinchliffe: I wanted to press Ms Scott-Moncrieff on her comments on the criminal justice versus the mental health system. It struck me in some instances that people in the criminal justice system are not enabled to get the kind of help that they could possibly get in the mental health system. You talked about the harder and more serious end of offending, but if we look at the less serious exhibitionist, for example, it has always struck me as rather odd that exhibitionists - the closet flasher perhaps - could do with some help possibly, rather than the kind of punishment that would arise from the criminal justice system. Would you accept an argument for that kind of level of offending to be more geared to our mental health legislation as opposed to criminal justice? Ms Scott-Moncrieff: There is no reason why that could not happen. Q333 Mr Hinchliffe: But it does not happen. Ms Scott-Moncrieff: It does not happen, but that is to do, I would suspect, with lack of resources rather than lack of provision, either in mental health legislation or voluntarily. I do not really work with people like that so I do not know to what extent people would accept treatment voluntarily, but certainly if treatment were available and they had been arrested and convicted then they could be compelled to accept treatment, if treatment were there. Yes, of course, I agree, I would like to see much more provision for mentally disordered offenders of all sorts, I think there is rotten provision at the moment and there should be far more of it. Chairman: Can we move on now and take fairly shortly, so that we can give time to the next question, the second of the questions of which you were notified? Lord Rix? Q334 Lord Rix: In your submission, in paragraph 13, you say: "The definition of the Scottish Act with some, all or none of these exclusions should replace the definition of mental disorder in the Bill", but the Scottish definition includes persons with learning disability; why do you consider that learning disability, without any attendant mental illness, should constitute a mental disorder for the purposes of this Bill? Ms Scott-Moncrieff: It is partly to do with language, is it not? I do not think that learning disability is a mental disorder but there are arguments to say that other forms like personality disorder would not fit within mental disorder in terms of mental illness. So I think one has to go beyond the words and look at the purpose of the legislation, and as I was saying with the criminal justice provisions, it is not just about protection of the public, it is also about protection of individuals and if people with learning difficulties were taken out of the provisions of the Mental Health Bill, the current Act or any new Act, then for instance the availability of hospital orders for people who have been convicted of offences would not be available to them. That seems to me to be unfortunate; it would be very unfortunate, they would be stuck in prison. You might have to have special units in prisons or something like that, but that would be very unfortunate. Q335 Lord Rix: Could not a clause be put in the Bill which would cover that point? Ms Scott-Moncrieff: I think that the way to do it is to keep people with learning difficulties within the definition, but to put in all sorts of other restrictions, as with the current Act, where mental impairment has to include abnormally aggressive or seriously irresponsible conduct, and compulsory powers can only be used if somebody needs to be in hospital under the care of a psychiatrist, all these kinds of provisions. Equally with the Scottish legislation, they have got people with learning difficulties, learning disabilities in there, but they have also got all sorts of other provisions - the person has to need to be in hospital and so on and so forth - and it has to be for the safety of the public or for the health and welfare of the individual, and I think there are also provisions in there for families and carers to be able to challenge compulsory powers if they can look after the person at home, which of course we have got in the 1983 Act because so long as a person is not a danger to themselves or others then their family can discharge them. Q336 Lord Rix: Would you not consider that the hurt that is caused to people with learning disabilities and their family and carers - people who literally just have a learning disability full stop - by the fact that they are referred to in the Mental Health Act etc, it is worth considering their feelings when it comes to legislation? Ms Scott-Moncrieff: It is something that you obviously know much more about than I do because I do not particularly work with people with learning difficulties. It seems to me that, yes, to put any group of people at fear of compulsion when they should not be is very, very damaging, particularly people who are already vulnerable and disadvantaged and have low status in society and so on and so forth. So to make them feel that there is yet another thing that they might be subject to, I think is very significant, but nonetheless I think the protections that are offered under Part 3 of the Act should not be lightly done away with. Lord Rix: No. Q337 Mrs Browning: Can I just pick up on that? You acknowledge that learning disability is not a mental disorder; it seems somewhat bizarre to group them in with a mental disorder when quite clearly they have not got one, rather than trying to construct a package of checks and balances that will help us avoid, perhaps, some of the more high profile cases we have seen involving people with learning disabilities. I am very concerned that you feel that just by giving them a diagnosis that they do not have that opens up the door to misdiagnosis across a whole range of disabilities. I just wonder if you think that is a potential danger. Ms Scott-Moncrieff: It is such a muddle with this Act and the Mental Capacity Bill, because what you have got is a complete confusion. This Act covers people with capacity and without capacity, with mental illnesses, with personality disorders and with learning difficulties. The Mental Capacity Bill is only meant to deal with people who lack capacity, but there is nothing to say that it has to be limited to people with learning difficulties, it could equally apply to people with schizophrenia who lack capacity, for instance, or certainly people with certain personality disorders who lack capacity. So it would be perfectly possible to construct something separate, a separate package as it were, for people with learning difficulties or people with developmental disorders, but if they are going to have the same safeguards - I share the views of a lot of people that the safeguards in here are not particularly adequate, but there are certainly a lot of them - then what you would be having is parallel systems of safeguards for some people under the Mental Capacity Bill, for instance, but at the moment the Mental Capacity Bill does not authorise detention. If people with learning difficulties were going to be covered entirely by the Mental Capacity Bill then you would have to have a system within the Mental Capacity Bill for authorising detention and for reviewing detention, so as well as your Mental Health Tribunals you would have your Mental Capacity Tribunals. Q338 Chairman: Can we ask Mr Hewitt if he has the same view or a different view on the issue raised by Lord Rix? Mr Hewitt: I have a similar view and it is a point that Lucy made, and that is that however we regard people with a learning disability the fact is that as a consequence of the European Court of Human Rights decision in the HL case it is going to be necessary to devise some sort of framework whereby they can be admitted to hospital and given safeguards. That may be under the new Mental Health Act or it may be under the Mental Capacity Act, my preference I think would be for the Mental Health Bill. Alternatively, of course, it may be possible to devise a third piece of legislation which would give them those protections, but however we see those people, some sort of framework will have to be devised. Lord Rix: I would accept that. Chairman: Mrs Browning? Mrs Browning: Yes, I would accept that too, we all know the struggle over the HL case in trying to work out which is the most appropriate vehicle, but I do not think that is resolved by taking a group of people, people with a learning disability, and giving them a new diagnosis which clinically they do not actually have. Lord Rix: Correct. Mrs Browning: I think that would be quite wrong. Chairman: Can we pause there - we have had a lot of debate about this issue and I think it is reasonably clear what the views are - and ask Baroness Barker to deal with the next of the notified questions? Q339 Baroness Barker: Thank you. Last time you were with us, Ms Scott-Moncrieff, we had an interesting discussion about what should be in the Bill and what should be in the Code of Practice and that is when we were talking about principles. I return to similar territory here because given the constraints on resources which you and particularly the user groups who we saw last week talked to us about, is there any point in having the reciprocal right to mental health assessment and services on the face of the Bill? If you think there is a point to that, what would you expect to see in the Code of Practice? Ms Scott-Moncrieff: I am not sure if I am the right person to answer this, but I will do my best. The compulsory treatment provisions in here are meant to be last resort and it is meant to be where voluntary treatment cannot be provided, for one reason or another. I think the impression that a lot of people have got is that it is going to become much more a matter of first resort and then only resort in the sense that resources are going to be shunted into looking after people who are necessarily subject to compulsory powers and there are going to be less available for everybody else. One of the relevant criteria for compulsion is that there are available resources, that there is appropriate treatment available for somebody, and therefore it is going to be perfectly possible for people to be subject to compulsory assessment and then subject to the initial examination and then not put under compulsory assessment because there are no resources available. I am not aware that there is going to be any way of keeping those statistics and identifying the areas of unmet need, and it is rather a roundabout way of doing it. If you have a provision on the face of the Bill that people are entitled to ask for services, even though they may not be entitled to get services - in the same way that you can do with community care, people are entitled to ask for a community care assessment and the assessment may be, yes, you need this, that and the other but we cannot afford to give you any of them - then this would be quite interesting information, it seems to me, for those who are meant to be making provision, and it will also of course feed into the whole issue of the circumstances in which people are not being given compulsory treatment because there is no availability of resources. I do think it is very important, therefore, that people should have the right to ask for that without necessarily thinking that they are going to be subject to compulsory powers. As for how the Code of Practice would deal with it, the legislation allows anybody to trigger a compulsory assessment so presumably anybody should be able to trigger a voluntary assessment. Q340 Chairman: Mr Hewitt? Mr Hewitt: My concern would be that if there were a specific right to services in connection with people who have been under compulsion or who are under compulsion, that might have the effect of diverting funds away from services provided for informal patients, and it seems to me that that would be running contrary to a desirable intention in mental health services and that is to favour informal treatment where possible and to discourage formal treatment. My other point would be that I am concerned that so-called section 117 patients under the current legislation, who have the right to free aftercare once they leave hospital, having been discharged from section 3, would apparently lose that right or gain only a very limited right under the Draft Bill and I think that is a very worrying development and it is not one that I would support. Q341 Chairman: Can I just move to another subject which I think you may be able to help the Committee on particularly and that is about advance directives? As a matter of law and as a matter of legal practicality - which may not always be quite the same thing - do you believe that fairly prescriptive advance directives are something that we ought to be taking closely into account, by which I mean, for example, advance directives covering the refusal of a narrow range of severe treatment such as ECT and psychosurgery - which is at one side of the balance - and on the other side have regard to directives which might impose a different set of obligations upon clinicians? Mr Hewitt: I think this is a subject that is likely to cause a great deal of difficulty, largely because it is hard to see on the face of it how advance directives, which give some indication of the patient's choice and attempt to make that binding, could co-exist with a system that depends entirely upon compulsion. It seems to me a rather strange situation. There was discussion in the previous session about the possibility of either using or amending the proposals in the Mental Capacity Bill, and it seems to me that those proposals are predicated upon an entirely different notion, and that is the standard notion of consent in general medical treatment. Compulsory mental health treatment, as I am sure the Committee is aware, is not that type of treatment, so it seems to me that although there may be some room for advance directives in psychiatric care, certainly where patients come out of hospital having ceased to be detained or subject to compulsion, the scope for them is in fact rather limited. Q342 Chairman: If you take the simpler example of a patient with a history of mental illness who says "If I become so ill again that they want to give me ECT without my consent, I refuse"; do you think that is a feasible form of advance directive? Mr Hewitt: It is difficult in the case of ECT. I think my point would be that it rather depends on why compulsion is thought necessary in the future event. It may be thought necessary - and I appreciate it may be different with ECT - in order to protect the public, for the safety of other persons. In those circumstances it is hard to see how the advance directive could be allowed to take precedence. If the only threat the patient is thought to present is to him or herself I can see the argument for that; we are back into the sort of capacity territory that was canvassed by the Richardson Committee. Q343 Lord Carter: I was going to give the same example, but in fact in a different way, because of course under the Mental Capacity Bill the physician can take into account a change of circumstance, so that the person in fact, if they were redoing it, might change their mind. You could have somebody who had given refusal of ECT but the physician could perhaps argue that the circumstances have changed so much that if he knew how it would help the patient, therefore he would be prepared for them to give the ECT. Mr Hewitt: As somebody who advises doctors in these circumstances I can say that one of my first questions is can you be sure that when they created this advance directive first of all they were capable and, second, that they anticipated the precise circumstances that have arisen? Maybe on occasions that is a bit of a get-out for hard-pressed doctors. Lord Carter: Exactly. Thank you very much. Chairman: This has been a short session, and we are very grateful to you for the clarity of your submissions and your answers. Thank you very much indeed, we do appreciate your help. Memoranda submitted by the Making Decisions Alliance and Mencap Examination of Witnesses
Witnesses: Mr David Congdon. Head of External Relations, Mencap, Mr Richard Kramer, Director of Policy, Turning Point and Co-Chair Making Decisions Alliance, Mr Jonathan Coe, Chief Executive POPAN (Prevention of Professional Abuse Network) and Chair of the Association of Mental Health Advocates (Making Decisions Alliance) and Ms Henrietta Marriage, Head of Mind Legal Unit, Member of AMHA, (Making Decisions Alliance), examined. Q344 Chairman: Good morning, and thank you for attending on behalf of the Making Decisions Alliance and Mencap. This is a fairly short session; we are constrained by events in the House of Commons on Wednesday morning around about noon, so if you do not mind we will omit any introductory statements. Can I say to you at the outset that these proceedings are recorded, you will be sent a transcript of what is recorded and also it will appear on the internet in about a week. You can correct the text to make sure that what you said is accurately recorded, but not the substance. We are very grateful to you for your submissions, which were very clear indeed, and I would just ask you to introduce yourselves if you would, please? Mr Congdon: I am David Congdon, Head of External Relations at Mencap. Mr Kramer: I am Richard Kramer, Director of Policy at Turning Point and also Co-Chair of the Making Decisions Alliance. Ms Marriage: Henrietta Marriage, I am newly Head of the Legal Department at Mind and a member of the Steering Committee of the Association of Mental Health Advocates. Mr Coe: I am Jonathan Coe and I am the Chief Executive of POPAN, which is the Prevention of Professional Abuse Network, and I chair the Steering Committee of AMHA, the Association of Mental Health Advocates. Chairman: Can I ask you all to speak up a little louder so that the challenged among us can hear. Mrs Browning. Q345 Mrs Browning: Mencap are very clear that they believe it is wrong for somebody with a learning disability to come under mental health legislation unless they have a mental illness as well. You have heard the previous discussion and you can see that there is quite a lot of overlap now in the advice the Committee is being given in respect of learning disability. First of all, in terms of protecting people with learning disability when they may come into contact with the criminal justice system, and also this question of protection of people for learning disability where, on the one hand, it does look as though they might benefit from the protection of the Act, except that we have just heard from the previous evidence that in order to come within the umbrella of the Act, in some areas where protection might benefit them we would then have to say quite specifically that they have a diagnosis of a mental disorder which they clearly do not have. I just wonder if you could elaborate on the evidence that you have already sent us as to how you see this Act protecting people with learning disability, and what are the dangers for people with learning disability from it? Mr Congdon: Thank you very much. There has been a long history of confusion between what is a learning disability and what is a mental illness, and a learning disability being a lifelong condition it cannot be cured. Indeed, people with a learning disability in particular find it offensive if they are said to have a mental health problem or a mental illness. That is probably the easy bit to say. I was struck very much by the discussion just now, and I think we would certainly accept that we would not wish to see people with a learning disability penalised via the criminal justice system because of any change to the Mental Health Bill, but we believe that could be overcome and indeed we were looking at other evidence from other people who I think took a similar view in some of the written evidence. What we are really seeking is a situation that says that if someone only has a learning disability they should not fall foul of the compulsory procedures in the Bill, because that is really the essence of this Bill. Why do we say that? We say that because too often in the lives of people with a learning disability they have things done to them or for them, things imposed on them, with or without their actual technical consent - "It would be best for you, we know what is right for you". I think we would accept of course that the Mental Capacity Bill will go some way to improve that situation, but in terms of mental health legislation a lot of people with a learning disability fall foul of the current law; even more would fall foul of the current law if they were not detained informally, as was the case in the famous or infamous Bournewood judgment. It seems from the evidence that, in practice, the distinction between whether someone actually gets sectioned or not sectioned is not always absolutely clear, and what does happen is you do find people with a learning disability, particularly where it is difficult to provide suitable services and maybe social services cannot provide for them, the health service steps in and they then end up accessing psychiatric services. What we want to see is an exclusion where a person only has a learning disability - and of course a third do have a mental illness problem, and they should fall within the normal rules of the powers. But we were also concerned, as came up in the evidence session, about the very low threshold. If you have a wide definition of mental disorder - and it is wide - then as other witnesses have said you need very tight conditions. The condition of protection from harm of others means absolutely nothing; people with a learning disability, maybe being a bit agitated, maybe causing a problem in the street, but not seriously harming someone, could fall foul of the legislation, and we are seeking to avoid that. So we have tackled this particular piece of legislation very simply from a human rights aspect. Q346 Mrs Browning: Could I just quickly come back on that? In the event of somebody with a learning disability having an episode of very challenging behaviour, which can very often be triggered by a specific event rather than by some form of mental aberration, there clearly has to be some action taken because they might well not be a danger to other people but they could very well be a danger to themselves when they are in such a state. How do you see that type of situation being managed, because it was actually that specific type of event that triggered the Bournewood matters? Mr Congdon: The crucial thing, you are absolutely right, when something happens is dealing with the situation absolutely appropriately and understanding the needs of the individual. If the needs of the individual are understood, particularly if someone knows the individual, they are much better placed as to whether that behaviour was triggered by a specific event, which you have quite rightly alluded to, or whether there is some deep underlying mental illness problem which needs to be dealt with. The difficulty if you rush straight in as it were and invoke the sectioning powers, or indeed the informal admissions under the Mental Health Acts, is that it is a denial of the person's liberty at that point in time and they may end up in a completely inappropriate setting. So the crucial thing is to try to get people involved who understand that individual and get to the root cause of the problem, and deal with the situation appropriately. Very often, those isolated outbursts of challenging behaviour can be sensibly dealt with if you get to the underlying cause of the problem, which may be a change in their circumstances. Chairman: I am going to ask Lord Carter to broaden the issue out so that the discussion can be as general as possible, and then Mr Kramer I think you wanted to say something. Q347 Lord Carter: I think in a sense you have answered the question about the relationship between the mental capacity legislation and the mental health legislation and how it affects people with a learning disability, but in a general sense it would help the Committee to know - and I am sure you are aware of the situation - what will happen next March or April when there will be the Mental Capacity Act, which could be amended almost certainly in the Lords - if it is amended at all - to deal with the Bournewood gap? We are hoping that will happen, and if the Government does not bring forward amendments I think other people might attempt to help them, and of course the 1983 Act will be on the statute book and we will not have a Mental Health Act for, say, two years or more. In general terms how does that relationship between the mental capacity legislation which will be on the statute book, and the Mental Health 1983 Act which is on the statute book, affect people with learning disabilities? Mr Kramer: The intention is for the Bill, hopefully, to become law next year and then there will be a two year period of implementation, so until 2007, so that does provide further room for manoeuvre to get the relationship between the Mental Health Bill and the Mental Capacity Bill correct. There are a number of problems, I think; there are very different philosophies and values underlying both Bills yet someone could be subject to both. There is the issue that you raised in terms of Bournewood and the failure really of both Bills to address and to meet the gaps in Bournewood. Then there are some particular concerns about how clause 6 of the Mental Capacity Bill could be used to restrain someone, and could be used to restrain and compel people with mental disorder to receive treatment without clear safeguards, and linked to that there is the concern that there is a lack of treatment safeguards in the Mental Capacity Bill and that will have an impact in terms of the relationship with the Mental Health Bill. So there are a number of problems around how the two will interact in practice, particularly I think around clause 6 which could allow someone to use force where necessary to prevent harm to the individual, and in doing so allow people to be admitted to hospital to receive treatment for their mental disorder when they pose a risk to themselves, even if they object to that admission. That issue, I think, needs to be particularly resolved. Q348 Lord Carter: That is a general point but can you help us by specifying how in fact people with learning disabilities will be particularly affected by this overlap of the legislation? Mr Kramer: There is the concern in terms of how the Bournewood gap will be addressed and we think that people with a learning disability who are, to use the phrase, long-term incapacitated should have safeguards provided under the Mental Capacity Bill. So that is one point and that directly affects people with a learning disability. We also think there is a risk that a person with a learning disability who may have an additional mental health problem, who is in hospital on a voluntary basis, if their condition then deteriorates and they want to leave against clinical advice, the Mental Capacity Bill could be used to keep them in hospital without any of the safeguards under the Mental Health Bill. That is also a cause of particular concern, not just for people with a learning disability with additional mental health problems, but all people. Q349 Lord Carter: Just on that point, does the 1983 Act help somebody in that situation that you have just described? Mr Kramer: The problem will still be the same, because if you are looking at the relationship between the Mental Capacity Bill and the Mental Health Act 1983, you could still be left in the position of somebody being restrained to protect themselves, even if they are objecting to that admission. Q350 Ms Munn: It has been suggested to the Committee that there should be an additional condition at clause 9 in the Draft Bill, which is the clause that deals with the conditions under which examination, assessment and treatment can take place, that a person should have impaired decision-making by reason of their mental disorder. Would that be something that you would welcome? Would that help with the kind of problems we are talking about? Mr Kramer: This is something that the Making Decisions Alliance does not necessarily have a formal position on, but we support the line taken by the Mental Health Alliance in terms that there need to be extra criteria, as you have described, where you are looking at significant impairment, understanding that that is a different threshold to capacity that is in the Mental Capacity Bill. The Mental Capacity Bill definition I think is based on cognitive functioning and impaired judgment and is more looking at disturbances of a person's emotional perception, and we have been persuaded by the evidence of the Royal College of Psychiatrists that we need to have a relative approach, looking at risk in relation to this issue, because somebody who may be contemplating suicide may have capacity under the Mental Capacity Bill definition, but still may have impaired judgment and it is imperative that the clinician's best practice and right to intervene is still preserved. Chairman: Would either of the other witnesses like to add anything at this stage? Ms Munn: That sounded like a yes and no really. Q351 Chairman: Yes, it did. Ms Marriage? Ms Marriage: Not really, no, I think that has covered the point for us. Chairman: Do you want to return to that question? Q352 Ms Munn: I suppose this comes to this whole area about how we deal with people who lack capacity and dealing with Mrs Browning's point about where they should rightly come in the legislation, and indeed Lord Rix's point about people's feelings about how they are dealt with. I do not have a fixed view on it, but it seems to me that this might be a way of dealing with some of that issue if there was a clause which said it had to be by reason of mental disorder rather than by reason of capacity. Mr Congdon: It is an attractive proposition, but I am not sure it necessarily solves the absolute problem. From Mencap's point of view we have not got an absolute sort of stand on principle as to which piece of legislation should be used to deal with the situation as described. We are happy to go along with the view that the Mental Capacity Bill could be suitably amended to deal with it, providing all the necessary safeguards are in place, but I suspect that that needs some pretty significant changes to the Mental Capacity Bill. The difficulty we all have is that both Bills are quite difficult for people to understand all the details and all the ramifications, and because of the timing that Lord Carter mentioned, in a way that makes it even more difficult for people to understand. We think there is certainly a pressing need to deal with those issues that could arise and ensure the two Bills do provide the equivalent safeguards, because it is the safeguards that are absolutely crucial. There will be, sadly, occasions where compulsory powers have to be used, and the issue where they are used is can you actually challenge the use of those powers? The Bournewood case was a situation where effectively compulsory powers were used but could not, under the law as existed, be challenged. Ironically, once Mr L was sectioned he was released because there was a challenge made, and I think that is the crucial point; when the state imposes compulsory powers - and there will be people, sadly, with a learning disability who will have those powers imposed on them - ensuring that it can be properly challenged. That in a sense is why we are actually keen, coming back to the exemption point, that if we could then prove that the only reason they were sectioned was because they had the learning disability and not a broader mental illness problem, that would be an opportunity to get them released from the section compulsory powers. Ms Marriage: What is interesting about this part of the discussion is it raises the issue of what has gone into the draft capacity legislation and what has not. Our concern is that there were provisions put into the 2002 version of the Draft Mental Health Bill which would have provided certain safeguards for people lacking capacity in this situation - I believe it was clause 5 - and some of those safeguards, for example, would have included other general safeguards that were in the Bill, for example the ability to access mental health advocates, the role of the nominated person, the right for a Tribunal to review continued detention and treatment plans and so forth. The problem that we have is that those terms have not been transferred into the capacity legislation, there is just a blank page that does not respond to the issue at all. Even more complicated than that - and we had a brief word before we came in this morning, just comparing notes - it is really quite scary in a way that the whole role of the Tribunal system and the role of the nominated person under the Mental Health Act, which are all considered to be fundamental to human rights safeguards for people who are detained, whether they lack capacity or not, is not something that has been moved into a separate piece of legislation which covers both without it. So you have a very difficult situation. If I was the mother of somebody who lacked capacity, as things stand, and I was asked whether I would rather that person was admitted to hospital under the provisions of the capacity legislation or under the provisions of the mental health legislation as proposed, there are lots of things about the mental health legislation which would provide my son or daughter with protections which simply are not there in the Mental Capacity Bill. We have a real problem with this and it is something which is not very easy to resolve. The things that have been canvassed in conversation are should people who are detained under capacity legislation and treated under those provisions in some way have access to the Tribunal system so there is a proper review? It seems to me that that is completely unworkable, so then what you look at is you are looking at transferring the role of a tribunal in reviewing detention and treatment under the Mental Health Act into, perhaps, the Court of Protection, and that raises a whole other tranche of issues about how you do that. There is a further problem which I think is a very practical problem, because if you have not got a nominated person and you have not got a Mental Health Act difficulty under the capacity legislation, and you are forced and your family are forced to take proceedings in the Court of Protection where there is no automatic right to non means-tested legal aid, how are those people going to perform that role? This is a really complicated area and we do have huge concerns about it. Chairman: Would you like to come back on that, Ms Munn? Q353 Ms Munn: Just very briefly. I take all the points you are making about the safeguards that kick-in under the compulsory orders etc, but I just want to add in one further issue which I hope does not complicate it a great deal more. I met with service users in my constituency last Friday and one of the points that they were making quite forcefully to me is that there are serious implications for people of having been subject to a compulsory order. Having the safeguards is fine and what you are saying is at least if they are subject to a compulsory order there are safeguards, I certainly would not want to disregard the implications for any person, whether they are a person with a learning disability or a person with a mental health problem of actually being subject in the first place to compulsory orders. Mr Coe: I think that is a very good point and the point that we are wanting to focus on is that under the Capacity Bill the provisions outlined in clauses 5 and 6, which are about restraint and, to an extent, treatment, do not give you any access to a Tribunal. We think the proposals in the new Mental Health Bill are good in terms of having Tribunal-ordered treatment, but in the Capacity Bill some of the same actions can be undertaken but with no immediate recourse to any form of help, no advocacy, no nominated person and only a secondary, after the fact, access to the Court of Protection. We fully take your point, but the same provisions almost can be used in one and not the other without the same level of protection. I think there is a whole range of issues about the stigma and some practical, legal implications of having been under section, and I do not under-estimate those at all, but they are made worse by not having proper access to redress and to ways to avoid that happening in the future. Q354 Mrs Blackman: I wonder if you could elaborate on what sort of role there ought to be for advocacy for a person who lacks capacity? Mr Coe: We wanted here to draw a parallel again between the two Bills. We are very supportive of the proposals in the Mental Health Bill around the establishment of independent Mental Health Act advocates, the specific functions that are outlined there are useful, but I think there are some difficulties there and we want to see some amendments made, particularly in relation to instant access to records, for example. We think the provisions around the right to meet need to be strengthened so that there is a clear right to meet in private, which was in the 2002 draft but removed in the current version. However, in relation to the Mental Capacity Bill what we have ended up with is rather than having a kind of two-pronged safeguard, with nominated person and advocate as in the Mental Health Bill, we have ended up currently with a situation which is a kind of hybrid of the two. So the Government has proposed the introduction of a kind of new term that they have invented called the independent consultee, whose role has kind of shifted in the course of the Bill going through Parliament and it now is much more in line with what we would take to be the ordinary functions of an advocate; we support those developments. There is still some question about whether or not that person fulfils roles which are not part of advocacy - we are in discussions on that at the moment - but what you have not got is the dual safeguard of nominated person equivalent and independent Mental Health Act advocate equivalent, so it is somewhere in between. The overriding issue here is about the potential difficulty of developing two separate but parallel services, independent consultees, IMHA advocates, with potentially different levels of funding and different ways of being developed in terms of its practical implementation. What we would like to see is for local advocacy services - who are in the best position we think to actually run both these services - to be centrally involved in developing both of them, but they do need to both be advocacy. What we do not want to end up with is a situation where a person is already in the local community working with their advocate with whom they are familiar, and if there are capacity issues to have to have somebody else come in and take on the independent consultee role, and yet another person to come in if the Mental Health Act is used, the independent Mental Health Act advocate. So what we want to see is all of these things being joined up and I think there is a real danger with these two Bills that that is not going to happen. Mrs Blackman: Can I just come back on that? Chairman: Yes, of course. Q355 Mrs Blackman: Advocacy services are relatively unregulated so can we have confidence that they will be able to deliver their services which are regulated by the state? Mr Coe: That is an excellent question. Membership of the Association of Mental Health Advocates is very clear that there needs to be proper accountability of advocacy services, there needs to be proper standards, there needs to be an agreed national code of practice, there needs to be proper training standards and local services, as well as individual advocates, need to be held to account to those standards. Q356 Chairman: We are on to the resource issue inevitably. Mr Coe: There is clearly a resource issue, but one of the ways through this, we think, is by pulling together the proposals in the two Bills in the form first of all of an agency which is, as in Scotland, geared to supporting these developments, so in Scotland it is called the Advocacy Safeguards Agency and we are talking about the Standards Agency here. I think that would be a very useful way forward and, again, in terms of the resources, independent consultees are attracting at the moment I think £6.5 million worth of funding and I think it is £400,000 in Wales, and then for IMHA advocates a figure of £5 million had been outlined so far. We heard from the King's Fund earlier that the estimate of 140 advocates is very low and we can absolutely share that, we think that is an absolutely vast under-estimate and think it is actually close to 50,000 uses of the Mental Health Act each year. 140 times 50,000, it does not take much to see that that is not going to work very well, there needs to be a greater allocation of resources. However, this is all going to be helped and you will actually make economies of scale if these two things are pulled together. The point on regulation I think is that there needs to be much greater attention paid to this and certainly in the advocacy world I know there are all sorts of developments coming through now which are going to pay much more attention to standards. Q357 Lord Carter: This whole area is obviously extremely complicated. Would you agree that in practice the practitioners will be using the codes of practice much more than they will ever look at the statute? I believe the draft Codes of Practice in the Mental Capacity Bill have in fact been produced in draft; have you had a chance to look at them and if the Code of Practice for the Mental Capacity Bill were ever properly drafted would that help the practitioner through this extremely complex situation? Mr Kramer: The codes of practice as currently drafted do not sufficiently look at the inter-relationship between the Mental Capacity and Mental Health Bills. Q358 Lord Carter: Could they? Mr Kramer: They need to because there are some --- Q359 Lord Carter: They will have to, will they not? Mr Kramer: They will have to. We have raised particular problems with clause 6 of the Mental Capacity Bill and that will need to be addressed because it will be unclear whether people could be detained, their liberty restricted, under the Mental Capacity Bill or the Mental Health Bill. That is one issue that needs to be addressed, as does the use of treatment safeguards. Ms Marriage: I was just going to mention something on the status of the codes in both pieces of legislation, and there is a law resulting from the Court of Appeal last year in the case of Munjaz which suggested that trusts' ability to defer from what is recommended in the Code should be limited to circumstances which are extraordinary. There were some assurances forthcoming from the Department of Health following the judgment that guidance would be brought forward suggesting that that should be the case, and that there would be provision made in the new Draft Mental Health Bill to ensure that the judgment was reflected. Unfortunately, neither Draft Bill does reflect those changes and it seems to me that if you are going to rely on codes in order to specify the nitty gritty and the practical reality of how your law-making is going to be put into effect on a day to day basis, then you have to make sure that those codes have to be adhered to, unless there are exceptional circumstances and for one reason or another they justifiably cannot. To leave out of the face of both Bills any statutory provision to give that teeth and force indisputably to both codes on the one hand, whilst also at the same time continuing to legislate and put more and more of the detail into the basket of the codes of practice, is really quite a dangerous thing to do. Q360 Chairman: Can I ask a question now that is really aimed, I think, at Mencap, about crisis management, situational crises in the lives of people with learning disabilities? Often what happens at the moment is that under section 2 of the 1983 Act people are admitted when they are disturbed and disruptive to a hospital, partly with the purpose of avoiding police detention which, it is perceived, might exacerbate the disturbance and disruption which they are going through at the time. Mencap's evidence seems to suggest that we really should leave it to the police and could result in more people with learning disabilities at moments like that finding themselves in police cells, or possibly remanded in custody to remand prisons for extended periods, which is not something which instinctively I would wish to visit, for example, on someone living in South Wales who might find themselves in Cardiff Prison for a few weeks. Mr Congdon: If that was implied in any way in the evidence it certainly was not the intention because that would clearly be a very undesirable outcome. There will be situations, as you rightly say, where there is a crisis facing a particular individual, they are causing a lot of disruption and difficulty - hopefully this does not occur too often but it will occur from time to time, I would acknowledge that. The issue is under what basis legislation should say you actually need to be formally sectioned under the Mental Health Act as opposed to any other action taken. We are not saying that just because someone has a learning disability, under no circumstances should they come anywhere near any of the provisions under the Mental Health Act; if they were behaving really, really badly, risking serious harm to someone else, the chances are they probably have got a mental disorder at that point in time, and certainly at that point in time for some of them assessment may well be appropriate. The crucial thing, if that assessment then takes place, is getting to the heart of what that difficulty is. If the difficulty was simply something triggered it, as I was saying earlier, the sooner they are discharged from that section and appropriate provision is provided, the better. Sadly, too often what happens with people with a learning disability is that an episode like you have described happens; something has got to be done and so they do get sent to a psychiatric assessment unit. They may or may not get a diagnosis of learning disability and mental health, but because there is nowhere else for them to go, they are a little bit challenging to services, they will be discharged from the section and they will remain there informally. There was a very good case reported by the Ombudsman earlier this year in Wakefield where a woman ended up in a psychiatric assessment unit, mainly because no one could actually provide for her, she was discharged from the section, no one else wanted to provide for her and she remained there eleven years and no one got her out. So from that point of view we are trying to build in the safeguards to ensure that if someone ends up being detained, either formally or informally, there is a means of challenging and remedying the situation. Q361 Chairman: So there is a Bournewood canyon. Mr Congdon: That is a very attractive term. I think there is, there are a lot of people in a situation where they end up being informally detained, either initially or after a while, and figures are published on the number of informal detentions on that basis. That is why we take such a strong line on trying to ensure that there is that general definitional safeguard, if it is only a learning disability they should not be sectioned, and having a higher threshold. That would benefit a lot of people, the higher threshold, we are trying to ensure that people are not unnecessarily sectioned but in no way are we wanting to create a situation where they are unnecessarily caught up in the criminal justice system. Q362 Lord Rix: I have kept quiet up to now in case of being accused of bias, but I would just say that Brian McGuiness, our great guru on this, submitted a suggestion that to cover this particular gap in the legislation, in the current Draft Bill clause 157(a): "Where it is alleged by or on behalf of any person with a disability or disorder of mind or brain who is being assessed or treated in hospital for that disability or disorder, other than under the provisions of Parts 1 and 2 of this Act, that the person's choices and best interests are not being respected then the person shall have the right to a Tribunal; the right to a named person; the right to an advocate; the right to CHI ..." etc. Would you see that as being a sufficient safeguard? Mr Congdon: That is a very useful question because we did not, when we were talking about Bournewood answer the question what would you do about the Bournewood canyon as you put it, Mr Chairman. Bournewood is seared on my soul; I had been with Mencap very few weeks when it first arose back in 1998, and there were differing views how to deal with it. There was an understandable desire to avoid having maybe up to 50,000 people sectioned who were not currently sectioned and may be unnecessarily sectioned, but at the same time to provide the safeguards. Therefore, what we were saying then and are saying now, which is really encompassed in the sort of amendment that Lord Rix was outlining, is in a situation where someone has been informally admitted, if anyone is unhappy with that, whether the individual, the parents, the carers or the advocate that we were talking about just now, then all the formal powers and protections that are currently provided in the mental health legislation should come into play so that then you have the opportunity to say why is this person here, they do not need to be here, because that was what the gap was; the gap was the inability to challenge and have due process, so we would very strongly support that sort of measure. Q363 Chairman: The last word to Mr Kramer. Mr Kramer: I think the safeguards need to be addressed first of all in the Mental Capacity Bill, so there is a time factor there that needs to be addressed, secondly, there need to be safeguards around admission and Part 5 of the Mental Health Bill provides a blueprint for the safeguards needed around the care plan, review of care plan, second opinion, an advocate, proper information, but there also need to be safeguards around review. The Government have indicated that we do not necessarily need safeguards around review because of the Human Rights Act and that provides some form of appeal to the court system. I think it is very important that legislation sets out the procedural safeguards around review as well so that carers as in the Bournewood case know exactly what process they need to take if they want to challenge an informal protection. Chairman: Lord Carter, finally, finally. Q364 Lord Carter: Is it the problem that you have actually highlighted in your answers for the Government in attempting to deal with it, that on one reading there are not that many people involved, on another reading there could be a very large number of people involved and the resource cost could be very considerable. This is a problem that I know the Government are having to grapple with; have you any idea how many people would be involved? Mr Kramer: We have been struggling on this, but it is a larger number than the Government thought because the European Court ruling was on detention. Chairman: If the question had been in a courtroom it would have been stopped as a comment, but we are allowed comments. I am going to have to say Order, Order, because we are losing our quorum, I am afraid. Can I say thank you to the survivors from the House of Commons for bearing with us; we have to have two MPs here or two Members of the House of Lords, at least two members of either House, so we are no longer quorate. Can I informally, therefore, thank you very, very much for your very clear submissions, for the clarity of your evidence and for attending here today. We would have wished it to be longer, but thank you. |