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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 209-iii HOUSE OF LORDS House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE THE JOINT COMMITTEE ON HUMAN RIGHTS
HUMAN RIGHTS AND DEATHS IN CUSTODY
Monday 9 February 2004 MS SOPHIE CORLETT and MR SIMON FOSTER Evidence heard in Public Questions 131 - 238
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Joint Committee on Human rights on Monday 9 February 2004 Members present: Jean Corston, in the Chair
Memorandum submitted by MIND Examination of Witnesses Witnesses: Ms Sophie Corlett, Policy Director, and Mr Simon Foster, Principal Solicitor, MIND, examined. Q131 Chairman: Welcome to this meeting of the Joint Committee on Human Rights. Ms Corlett and Mr Foster, you are respectively the policy director and the principal solicitor of MIND. Is that right? Ms Corlett: That is right. Q132 Chairman: You have submitted written evidence to us for which we are very grateful and you will no doubt have followed from a distance the progress of the inquiry to date. Looking at your evidence, when we consider deaths which arise apparently from control and restraint, are you suggesting that the existing guidelines are satisfactory if they are properly implemented? Ms Corlett: We do not have a great deal of expertise about control and restraint guidelines within the prison service but within mental health settings our experience is that the guidelines in the cells are satisfactory; it is the implementation of the Directive which is at fault. That appears to be partly to do with training, partly to do with individual practice and partly to do with the monitoring and assessment of use. That is where things seem to be falling down. Q133 Chairman: You would say it was a management and information and training issue; it is not that the guidelines themselves do not have legislative force? Ms Corlett: It is a problem that the guidelines appear not to have legislative force. Our view would be that guidelines are there to be followed and if people go beyond guidelines that ought to be considered an assault on an individual. The guidelines are quite sufficient and we do not have particularly any evidence or indications that they have not been sufficient. Our indications appear to mean that they have not been followed. Q134 Chairman: You will know - it is a matter of public record - that there is a disproportionately high rate of deaths of ethnic minority patients in psychiatric care or at least custody in relation to control and restraint. Is this explained by the disproportionate hospitalisation of people from ethnic minorities or do you think there are some other factors at work here? Ms Corlett: It clearly is to do with the increased hospitalisation of people from ethnic communities. The fact that there are more people in the system is going to affect the number of statistics of people affected by the system, but even so there seems to be plenty of evidence that response within the system towards people, particularly Afro-Caribbean people, is much more likely to be aggressive and invasive. The Department of Health's own action currently in their piece of work to develop a framework to work with black and ethnic minority communities reflects their involvement in that. The indications that we have in the report that is coming out on Thursday of the inquiry into the death of David Bennett also appear to indicate an acknowledgement of a level of institutional racism. As well, we already have it as a matter of record from different inquiries about the perceptions of people, particularly again young black men, that they are perceived as being more dangerous. The fact that people may be larger is considered to be a more dangerous factor and therefore responses tend to be more aggressive, more likely to be control with medication or physical means. Q135 Chairman: We have had written evidence which would suggest that there are occasions when it either could be or is the case that mental distress is misunderstood or misinterpreted as aggression. To what degree do you think there is training amongst police custody officers and the prison service staff about mental illness and the way it can present? Ms Corlett: There seems to be very little training about mental illness or the way it can present. In particular, we know of research by NACRO that prison staff tend to identify people by their overt behaviour, which means that where individuals are distressed but their distress is perhaps more passive, in the sense that people may be withdrawn, that is not recognised. Where suicides are preceded by people being withdrawn, they tend not to be noticed, so that is one of the things that we are aware of. Mr Foster: This came out of the inquest into the death of Roger Sylvester, particularly in relation to the police. I know you have already received evidence from INQUEST that touches on this. We know the Metropolitan Police have indicated they are getting better since the death of Roger Sylvester - this came out during the inquest - in particular with the introduction of CCTV in cells and the training of custody sergeants. It remains to be seen the extent to which this is more than words and is being applied on the ground. It is probably rather too early to tell at the moment. It is helpful to know the Metropolitan Police have recognised the shortcomings prior to that point. Q136 Chairman: Would you say that education and training alone would be sufficient to change the way in which control and restraint were used? Ms Corlett: Education is clearly very important, particularly education in de-escalation techniques for violence on a ward or in a prison. That is central, but we have evidence firstly that some of the training people are receiving, even in mental health settings, is not necessarily of that type. I have anecdotal evidence of people within mental health settings being given restraint training which relies on the use of pain rather than on de-escalation techniques. Clearly, even training can go on the wrong track. Also, there is a bigger issue about educating the system and where a system is untherapeutic, where space is limited, where there is overcrowding, where staff turnover is very quick, whether in mental health or in any other setting, violent situations are much more likely to occur. Educating the individual is only one part of the overall picture. Q137 Lord Lester of Herne Hill: I know that the Home Office has been worried for many years about the fact that black people are disproportionately heavily sentenced, refused bail and so on within the criminal justice system. This is another aspect. Has there been any concluded study of the extent to which race prejudice is affecting decisions to impose control and restraint disproportionately against black prisoners, patients or detainees and, if so, could you provide it for us, please? Mr Foster: There are two parts to the answer. First, yes, there is information out there. There is a recent report called Inside Outside and before that there was Breaking the Circles, which you will know a lot more about than I do. Secondly, the extent to which this is now informing practice. I do not think we are really qualified to say. We would like to think it is. You will be aware of the discussions about Professor Sergideran last year, about the implementation and the take-up of the report Inside Outside and the extent to which that has been applied in practice and adopted by the Department of Health. Q138 Lord Lester of Herne Hill: Has the CRE done anything about it? Ms Corlett: The CRE, as I understand it, have been involved to some extent in discussions with the Department of Health but to a disappointingly small degree. There has been some frustration about the level of communication between the Department of Health and the CRE in the development of these most recent proposals. Q139 Lord Judd: Administration of medication is a controversial issue. Are you at all concerned that the way this is pursued may sometimes infringe the human rights of those receiving it? If you are concerned, why is it happening and what can be done to put it right? Mr Foster: The short answer is yes, we are concerned. Yes, in the broadest sense, depending on what you mean by excessive administration, there comes a point at which it must be violating one's rights to autonomy and choice. In a narrow sense, if you are talking about the violation of any of the Articles of the European Convention, there has been a succession of cases limiting the effectiveness of Article 3 of the Convention in human integrated treatment, effectively making it very hard to challenge levels of medication. The causes of excessive administration relate back to the perception of dangerousness. There does seem to be an excessive use of not just high levels of medication but also polypharmacy - i.e., mixing of drugs from the same class which is dangerous practice at best, for those who are seen as being dangerous, rather than on the acuteness of presentation. Often it is based upon how somebody has been in the past, somebody's previous behaviour, previous prescribing practice, rather than the needs at the moment. In terms of staff being helped to end such practices, there is plenty of information around. The Royal College of Psychiatrists has issued guidelines. The MIND position, along with the Mental Health Alliance, is that there should be something in the proposed legislation when the report on the Mental Health Act comes forward to address this on a statutory footing, possibly in line with the New South Wales Act in Australia. Q140 Lord Judd: You mentioned that there are samples of Afro-Caribbean people dying after medication. Is there a disproportionate problem with this ethnic minority? Ms Corlett: I can send you the evidence afterwards but we think the evidence is that higher doses of medication are administered to people from Africa, to black men, Afro-Caribbean men specifically. That is a specific problem. Q141 Lord Judd: Can you say anything about why? Ms Corlett: It appears in the reports Inside Outside, Breaking the Circles of Fear and the new delivery of race equality from the Department of Health and their reports on trying to adjust this issue of racism within the health service have indicated some of this. It appears to be down to perceptions, misunderstanding of culture to some extent, which is more likely to see something which may merely be cultural as psychosis. The fact that people talk to themselves may be a cultural thing. It is judged as psychosis. There is a greater diagnosis of illness, number one, but also people appear to see someone who is bigger needing a higher dose, to excessive rates, and also somebody who is black as being more dangerous and therefore needing higher doses to be used as a restraint. Research related to race has indicated that where there are staffing shortages, where there are other issues that mean people are fearing generally, not specifically related to that individual, there may be a higher level of violence and dosages increase. Q142 Lord Judd: Would you suggest that training and education could go a longer way to getting all this put right? Ms Corlett: Training and education could clearly go a long way to getting all this right but there needs to be a very clear statutory foundation for that as well. There should be absolutely no reason why somebody should go over a BNF maximum. Going over that should make an individual accountable. Mr Foster: There is clear evidence that increasing the dosage beyond a certain point has no particular beneficial effect in terms of addressing the illness but it may have a side effect on the person concerned. Q143 Mr Stinchcombe: If I can declare an interest, I am a trustee of Wellingborough MIND. Does MIND have a view as to whether those with serious mental health problems should ever go to prison? Ms Corlett: If you are seriously ill to the extent that in any other circumstances you should be in hospital, then absolutely you should not be in prison. Q144 Mr Stinchcombe: Where do we draw the line at seriousness? Ms Corlett: In the same way that you would draw the line at seriousness for somebody in the community. Q145 Mr Stinchcombe: What are the consequences of holding in prison people with those serious mental health problems? Ms Corlett: From the evidence, it appears that they become more ill and it would appear that people who have less severe mental health problems in prison develop more severe mental health problems. Prison appears to be a good greenhouse for developing mental health problems. Q146 Mr Stinchcombe: Are prison staff adequately trained to be able to deal with those kinds of consequences and those kinds of would be patients? Ms Corlett: No. Q147 Mr Stinchcombe: Do you agree with Ann Owers that we need a new generation of institution to accommodate people with those kinds of problems? Ms Corlett: It is difficult to have a very clear view on this. Our view is that if people seriously should be in hospital, a secure hospital if that is necessary, then prison in itself is not a therapeutic environment. People who are in prison are liable to develop mental health problems. Therefore, it appears to us that the answer is to address that within the prison system rather than to develop an additional, parallel system. Q148 Mr Stinchcombe: Can I ask about certain prisoners with less serious mental health problems? For example, a former constituent of mine in Wellingborough Prison was sentenced to prison having set fire to some curtains in a church in the week when both his parents died. He ended up with a discretionary life sentence, serving 25 years. Does MIND have any comment as to how we could deal with the kind of problems possessed by that person in those circumstances, without institutionalising him in custody? Ms Corlett: It seems very odd that such a person should be sent to prison at all. I cannot understand why a non-custodial sentence would not have been more appropriate. Mr Foster: I was looking at the most recent statistics from the Department of Health. Most people reckon that about 70 per cent of the prison population have some form of mental disorder which, on the present figures, would be about 50,000 people. It is very noticeable that the number of transfers from prison to hospital are down to about 500 a year. That figure has gone down in the last ten years. It seems to me that the machinery is there. It is not being used properly and the question that I would certainly ask - I am sure my colleagues would as well - is why is not more use being made of hospital disposals, both at the point of sentence and at the point of transfer. We know the answer is to do with bed shortages but that is where the problem is, I would suggest. Q149 Mr Stinchcombe: I do not know whether you have any view as to whether we will find useful information from those people who self-harm in custody with mental health problems and whether we will be able to draw any inferences from their experiences about those who have committed suicide, who we cannot question. Ms Corlett: There is a link between self-harm and suicide. Those who self-harm are more likely to commit suicide. It would be interesting to look more closely at the increase in self-harm within the prison population or the increase in self-harm amongst people who go into prison as an indication of the level of mental distress more generally. Whether you can make direct links between that and suicide I do not know but there is certainly a link, if not a direct one. Q150 Lord Campbell of Alloway: You mentioned guidelines under the Mental Health Act. You said that the implementation with training and education was a crucial aspect and that the guidelines as such were satisfactory as having no legal effect, although they are subject to the ECHR, of course. Mr Foster: Yes. There was quite an important court case last year which established that the mental health code of practice which lays down the guidelines in the psychiatric system should be followed unless there are exceptional circumstances to depart from it. It still finishes up though with a code of practice at a lower level of enforceability than prison rules and we have been concerned about the discrepancy between those two. I apologise for interrupting. Q151 Lord Campbell of Alloway: That is exactly what I am after, the level of enforceability. They have not the same level of enforceability as prison rules. They certainly have not the same level of enforceability as a statute. What is the level of enforceability? Mr Foster: It is a very moot point. You will be hearing evidence later on from the Mental Health Act Commission who will have more to say about this. MIND intervened in the case of the Crown and the application of Munjaz v The Mersey Care Trust and briefly the Court of Appeal came to the conclusion that the code of practice should be followed unless an exception could be made for an individual prisoner. Therefore, a blanket decision as applied in that particular case to Ashford High Secure Hospital to depart from the code of practice guidelines was per se unlawful and they had to reconsider their patients one by one. I believe that case may be under appeal at the moment. Q152 Lord Campbell of Alloway: I think it is. If a suicide happens in prison, does not the Coroner come along to carry out an inquest? Mr Foster: Absolutely. MIND gave evidence to the full inquiry into the certification of deaths last year. There is quite a lot of movement in that direction. The problem is the lack of joined-up thinking within the system between the Coroner's inquest, which is essentially focusing on the narrow cause of death although they have relaxed to some extent, the internal inquiry within the hospital and any redress for the families. The difficulty with coming up with a verdict of suicide in the Coroner's Court is that this often does not disclose the systemic failings which lead to information not being passed on. I can think of several occasions when I have talked to family members who say that on the day the ward staff say they did not know that the person was suicidal; but if they had looked back over the previous few months, if they had looked at the admission criteria and the admission records, they would have spotted the danger signs. If they had talked to the families, likewise. Q153 Lord Campbell of Alloway: What is the drill? A chap dies by suicide. Do the prison staff get together under some sort of supervision and work out what they think? Is that then told to the Coroner or does the Coroner make his verdict beforehand? How does it work? Mr Foster: To the best of my knowledge, we have no specialist expertise about what happens within the prison but under the normal Coroner system the Coroner's Office will make it his or her business to gather evidence for the sake of the inquiry. I would normally expect reports to be available from the prison or the setting where the person is being detained. If the prison staff say something and there is a record to that effect, that is more or less the end of it in terms of reporting facts. It is very hard for anybody else to disagree about that. The real problem with the Coroner's report is not being able to stand back and look at the chain of events in the broadest sense and the failures in the system over many weeks, which have led to that point. Q154 Lord Campbell of Alloway: You cannot do better than have the prison staff. Nobody else is going to know much more, are they? Mr Foster: That is correct. Q155 Lord Campbell of Alloway: Can you give the assurance that by and large, if a man commits suicide, the prison staff do give an account to the Coroner of the relevant pre-history? Mr Foster: That is correct. There was a case which Committee members may be aware of, the case of Keenan v the United Kingdom, on exactly this point. It was a suicide within prison and the issue was about somebody with schizophrenia. What was the person doing there? Had they been receiving adequate medical attention? Were they going to be suicidal? The European Court of Human Rights came to the conclusion that although the person was not known to be suicidal nevertheless there should have been some treatment available for their illness of a specialist nature. Q156 Lord Campbell of Alloway: You did say there should be a statutory foundation. Why, if the drill is very much as decided under the case to which you refer? Is it not all right as it is? Ms Corlett: Is that for medication? Q157 Lord Campbell of Alloway: Yes. Ms Corlett: If at the moment the only redress is when somebody ends up in a Coroner's Court, that is rather too late. There should be a statutory foundation to protect people from excessive administration of drugs at any point within the system. Q158 Lord Campbell of Alloway: I suppose it is more the pre-history which goes to the Coroner's Court. There should be a statutory foundation? Ms Corlett: We believe it should not be lawful to administer doses above the maximum recommended within the British National Formulary Guidelines. Those maxima are quite high and very often well above the recommended dose, so there should be absolutely no reason why anyone should have to go above those maxima and yet those maxima are exceeded often. Q159 Lord Campbell of Alloway: It is limited to medication? Ms Corlett: I think that was related to a medication question, yes. Q160 Chairman: It is evident from the evidence we have had so far that there is a failure on occasion to pass on prisoners' medical information on reception in prisons. Do you have any comments about the failure in handing on of the records and any evidence about whether this problem is widespread? Mr Foster: We are aware of the problem. We do not see it at the prison level but we have plenty of information from people or families writing or contacting us to say that the prison does not seem to know about my son or my daughter's mental illness. There are any number of reasons that may contribute towards this. Some prisoners may choose not to pass information on about their own mental health if they do not think it is relevant. There is a civil rights issue there and how do you balance that with the need to protect people. More commonly however, if there is a relevant mental health problem, it is available through the court system and in reports. There seems to be a great lack of liaison coming through from the court system. I know this is something that the government is aware of but it certainly has not bedded down yet. Families tell us that they have information but that they are not encouraged to bring the information forward or to discuss it. Within the prison, again you have the prison ward staff on the one hand and the increased use of the National Health Service coming in by way of in-reach to prison on the other. To some extent, there is an issue of who manages the information; who is in charge at that point. We have information about tension between the primary care trust, which provides the NHS in-reach, and the prison staff who understandably think this is their information because they are their prisoners. All of these are factors that contribute. I do not think we are qualified to say whether one is more important than another. Q161 Chairman: What about mental health screening in prisons? Mr Foster: In theory, there should be a screening that takes place at the early point of reception, with an assessment and then that leads on to transfer. I believe the target figure is three months, which is still a long time for somebody with a significant mental health problem. Even that three month figure is not being hit and it is started by the assessment so if the assessment does not happen at an early stage or at all then it is not picked up. Unless a prison has had previous contact with mental health services or is showing signs of distress, the distress may not be noticed. Services may not be offered and it comes back again to training and education for the staff concerned. Ms Corlett: There was quite a distressing case recently of a 16 year old, Joseph Scholes, who went into a young offenders' institution. He had been recommended to go to local authority secure accommodation but instead, because of his mental distress and background, he went into a young offenders' institution. His mother pointed out he had been raped in the past and that was a difficult situation for him. He was assessed when he came in. He had self-harmed all over his face very recently and had the scars still there. I gather that he was asked if he self-harmed and he said no. That was taken at face value. He was put initially in a particular type of reception cell but was then transferred into a cell on his own with no suicide watch and ligature points. Effectively, he was very poorly cared for when all the information had been available both visual from his mother directly, verbally, and written from the court. None of that was acted on. It is difficult to understand how all of that information could have been ignored and yet it was. Q162 Mr Shepherd: I know from my own probation and legal service that there is extraordinary difficulty in getting medical reports within prisons. That is repeated by the doctors that have to serve these institutions themselves and there is an extraordinary degree of frustration as to knowing the medical history of the patient concerned. It is often cited that the Data Protection Act is an inhibition in this. Have you encountered that argument? Mr Foster: We have certainly heard of the argument. Most famously, it hit the press recently in the case of Humberside Police. The Data Protection Act, as I understand it, does not prevent anything from happening that is otherwise lawful. It is really to do with regulating how disclosure and sharing of information should take place. If therefore someone has the right to keep information confidential, the Data Protection Act does not of itself require disclosure of that. However, there are all sorts of ways at common law and in decided cases whereby information can be disclosed without the person's explicit consent. If it would be helpful to the Committee, we can certainly pass that through in writing. In other words, the Data Protection Act is used as a screen to hide behind quite often and I would suggest that is largely to do with the misunderstanding of how the Act operates. Q163 Mr Shepherd: I would be grateful for a note on that. It arises from particular constituency circumstances. In the case that I am particularly thinking about, there is a question of diagnosis and this is often a very muddy area between severe personality disorder and schizophrenia. It puts vulnerable people at particular risk if they are categorised as having a severe personality disorder rather than schizophrenia. How do we get this diagnosis? I know it is not an absolute but how does this need sharpening up? Ms Corlett: We are neither of us clinicians. I think you would have to talk to the medical profession about that. Mr Foster: I do not think they know either. Q164 Mr Shepherd: It is a frustration for families and parents. Mr Foster: Absolutely. It is something that MIND encounters a great deal. We hear it from individuals who are fed up with being diagnosed and rediagnosed and families. Sometimes there is a suspicion. I certainly heard of one person who was detained as having a mental illness. She got into the ward and was apparently more trouble than the ward anticipated, so she was hastily reclassified as having an untreatable personality disorder and booted out that same night. One wonders whether this was on medical or management grounds. Q165 Chairman: What difference would you say the Human Rights Act has made in relation to the treatment of mentally ill people in detention? Mr Foster: We have had a long discussion about this. I think our view is that the Human Rights Act in itself has not made any difference because it is still down to education and processes. What is needed is a change to the mind set, to bring it into line with the Human Rights Act. I have mentioned the case of Munjaz which came as something of a shock to hospitals which were used to doing their own thing. We have had this a lot in terms of people getting discharged from hospital and sectioned by a mental health tribunal. The hearings are plagued by delays and cancellations. This is immensely distressing and anti-therapeutic for the person concerned. They get themselves geared up for a hearing and suddenly they are told there is no psychiatrist to sit on the panel and the hearing goes off. There have been Human Rights Act cases which have said that this is unlawful and should not happen and compensation can be paid in some circumstances. In other words, having cases going against the trust or prison or police service concerned concentrates the mind more than the mere words of the Human Rights Act. Q166 Chairman: What you are saying really is that for the Human Rights Act to have an effect on people in this situation there does need to be more training and awareness. Mr Foster: Training and I am sorry to say challenges using the Human Rights Act to make a point. If a trust knows it is going to be effectively fined for breaches, that is a great incentive to moving on the procedures and bringing them into line. It is a shame to put it in those terms. Q167 Chairman: Thank you both very much for coming here today to help us with this inquiry into an increasingly serious issue. Ms Corlett: There have been a number of things which we have been unable to cover. Would it be helpful to send those in? Chairman: It would be extremely helpful and we would be very grateful. Memorandum submitted by The Mental Health Act Commission Examination of Witness Witness: Mr Chris Heginbotham, Chief Executive, Mental Health Act Commission, examined. Q168 Chairman: Welcome, Mr Heginbotham. Thank you very much for coming today. On behalf of the Committee, may I say that the evidence we have had from you in relation to this inquiry and to the inquiry under the Human Rights Commission was in our view a model example of a human rights based approach from a public body so we would like to offer our congratulations. Mr Heginbotham: Thank you very much. Could I say thank you to my colleague, Matt Kinton, who drafts much of our work. He should share in that accord. Q169 Chairman: What would you say were the significant factors in relation to deaths in Mental Health Act detention, looking at self-inflicted deaths, inadequacies in health care and the use of control and restraint? Mr Heginbotham: All unnatural deaths are obviously a concern, but perhaps some are more preventable than others. We must remember that a large number of the detained population, unlike other custodial groups, are in custody often because they are a risk to themselves as much as to other people. The majority of people with mental illnesses are much more likely to be a danger to themselves than to others. There are two criteria in answering your question. The first is the sheer numbers involved and the second is whether an issue is preventable. If I take the first, the answer to your question would be, on the basis of numbers, it would be those who are liable to suicide or self-harm. What we know is that most of the deaths of detained patients are from natural causes, approximately 80 per cent. The other 20 per cent due to unnatural causes encompass suicide, misadventure and so on. What we have seen is that approximately 50 per cent of that 20 per cent happen immediately after discharge or when a patient goes absent without leave. We know from the literature, from research, that there is good practice, not in being able to prevent suicide and self-harm but certainly to ameliorate it or to minimise it. What we see perhaps is insufficient attention being given to the needs of the patients at a time of discharge or if they do go absent. In terms of total numbers, the place to start would be with suicide and self-harm. If we are concerned with what is genuinely preventable, I think we would be concerned with control and restraint. I know this is a matter that the Committee is concerned about. That is a major concern, although the number of times that control and restraint has been implemented directly in the death of a patient at the time of the death is in fact quite rare. Our evidence suggests that only one patient per annum over the last seven years has died when control and restraint has been being used at that time. There are approximately 15 patients per annum where control and restraint has been used in the seven days previous to the death but only one per annum implicated in the death. Even that one per annum is clearly a death of a patient and that patient, in our view, need not have died perhaps at that time. Therefore, there is good reason to want to do something about improving control and restraint, improving procedures, ensuring that staff are properly trained and so on. Q170 Chairman: You are satisfied that in the compilation of the statistics on deaths in Mental Health Act detention deaths are categorised as from natural cases when in fact control and restraint has been a causative factor? Mr Heginbotham: We cannot be certain about that. We do not have really good data on any of this area. The Commission's collation of these statistics began essentially because no one else was doing it and it is quite possible that data collection might be improved in the coming years. For example, the National Patient Safety Agency hopefully will be taking on a role in adverse incident monitoring. Maybe we will get better data there. No, I cannot be too sanguine that we know that all either natural deaths or unnatural deaths which do not feature control and restraint did not feature control and restraint because the data quality is not as good as we would want. Q171 Lord Judd: I do not want to over-simplify a very complex and difficult area but would you say that the use of control and restraint is proportionate or not? Mr Heginbotham: Do you mean proportionate to the challenge at that moment? Q172 Lord Judd: Yes. Mr Heginbotham: That is very difficult for me to say because we are not there usually at the time when that occurs. I guess the evidence that I have given you so far would suggest that on occasions it clearly is not proportionate. Q173 Lord Judd: You mean it is over-used? Mr Heginbotham: Or that it is done in such a way as to lead to an injury to the patient. We know, for example, that the David Bennett inquiry is about to report. This was leaked last Friday. I have not seen the final report, so I cannot comment on it directly but clearly David Bennett died during a period of control and restraint. One might therefore argue that the way in which that was applied was disproportionate in your terms, if I understand what you are saying correctly. Q174 Lord Judd: Do you think that support and training for staff in this context is right? Are there things that should be done in the training of staff in this context, particularly around the human rights dimension? Mr Heginbotham: Our view is that there is insufficient training and that we need improved education but also we need to enforce more fully both the code of practice and any other guidelines in relation to control and restraint. We would like to see improvements in the way in which staff are trained but we would also like to see statutory guidelines brought in to enforce certain minimum standards in relation to control and restraint. That would include, for example, the training of staff, the way in which control and restraint was recorded, a review of the incident following the use of control and restraint, notification to the Commission of any injuries resulting. We have recently put in place for a period of six months just such a notification to try and understand what is happening. Even within the first month, we have had quite a number of incidents reported to us. I think there are some very good reasons why minimum standards need to be applied. Q175 Lord Judd: You would say therefore that statutory guidelines are pretty central to it? Mr Heginbotham: Yes. I would make a distinction there though with the code of practice. We are not suggesting necessarily that the code of practice is made statutory in that sense, because we still need a code of good practice. We need a framework within which good practice is administered. We need to encourage. We need to educate. We need to support, but at the same time we need some minimum standards against which services are measured. Q176 Lord Judd: I am not wanting to put words in your mouth but you are saying that all this is important but the culture of the service is absolutely crucial? Mr Heginbotham: Yes, I think that is correct. Q177 Lord Campbell of Alloway: The statutory guidelines and the code of practice are two totally different things? Mr Heginbotham: Yes. That is the point I am making. Q178 Lord Campbell of Alloway: The code of practice is a code of good conduct which does not have legal efficacy; whereas your statutory guidelines, you say, are to control staff. I am very interested in the sort of control and the sort of legal effect. Mr Heginbotham: I do not think I said "control staff" or at least I certainly did not intend to. What I said was to provide those minimum requirements on the way in which control and restraint is applied. For example, statutory regulation would require certain post-control and restraint action including debriefings of staff, reviews and reporting to a monitoring body. It would also require certain minimum levels of training to be applied for all staff involved who might be undertaking control and restraint. Q179 Lord Campbell of Alloway: What is the difference between that and your code of practice? Mr Heginbotham: What I was seeking to do was to describe that a moment ago. I think there are two different issues here. One creates a culture, a framework of good practice, in which we would want to see services provided. The other provides certain minimum standards against which services can be measured and which services would be expected to perform. Q180 Lord Lester of Herne Hill: Do you share the concern that we have heard from other witnesses that deaths from control and restraint disproportionately hitting at ethnic minority victims may spring from racial stereotyping, profiling and matters of that kind and this is a serious matter? Mr Heginbotham: Yes, it is a very serious matter. The Commission is very concerned about the adverse treatment of black and minority ethnic patients and about institutional racism within the National Health Service and amongst other providers of mental health services. We undertook a national visit in 1999 to all providers in a short period of time to consider explicitly the needs of black and minority ethnic patients. We wrote that up then. We have since published another document called Engaging and Changing which we refer to in our written evidence. That draws lessons from that earlier piece of work and needs to be read in conjunction with the delivering race equality framework that the MIND representative mentioned. The problem we have though is that the numbers are relatively small. For example, of the seven patients over the last seven years, the one per annum I mentioned earlier, where control and restraint was implicated at the time of death, two of those patients were black Afro-Caribbean. One was Turkish and the other four were white. Two out of seven is 28 per cent against the numbers of patients from black African Caribbean groups within the health service, according to our figures at the moment, of about five to six per cent. The numbers are so small that it is very dangerous to attempt spurious statistical accuracy. One or two either way would make a huge difference to those figures. Nonetheless, there is clearly strong anecdotal evidence that what you have said is correct and we are working with the National Institute of Mental Health of England and other agencies to undertake later on in 2004/5 a major census of black minority ethnic patients in mental health services and to try and understand during that piece of work what happens to patients who are detained. We may be able to throw more light on this in more detail. Q181 Lord Lester of Herne Hill: We keep asking questions about the Human Rights Act but there is now the Race Relations Amendment Act 2000 which imposes duties on public authorities of a very positive kind for monitoring powers for the CRE. Should this Committee be considering ways in which that might be more effectively deployed in order to help combat the serious problem you mention? Mr Heginbotham: Yes, I think you should. I do not know whether you are receiving evidence from the CRE but I would imagine that that would be helpful because they will have a view on the extent to which NHS trusts and other mental health providers have effective race equality schemes and are following those schemes. It is one thing to have something on paper; it is another thing to follow the logic of your scheme through to providing effective services for black people or to engage black ethnic minority communities. Our evidence is that mental health providers do not engage black communities sufficiently and that is one of the reasons why black people are uncertain about the sort of care they are going to be provided with in mental health services. It is not the only reason. There are other, good reasons as you explored with the MIND representatives. Q182 Mr Stinchcombe: Is the Commission concerned at all about the quality of treatment given to prisoners with severe mental health problems while they are in prison? Mr Heginbotham: Yes, we are in broad terms, but our remit does not run to prisons quite specifically. We are concerned about transfers of people with mental illnesses from prison to mental hospitals and we would take very much the same line as the MIND representatives a few moments ago. We are concerned, for example, that there are always about 30 patients waiting more than three months for transfer, having been assessed. Out of the total prison population it has been estimated about 15 per cent have a serious mental illness and that would suggest perhaps 10,000. Yet, at any time in any year, only 800 to 900 are assessed for transfer to hospital. That suggests there is a very large amount of psychiatric morbidity in the prison service but unfortunately our remit does not run to prisons. We wish it did. Q183 Mr Stinchcombe: Is the reason for that extent of delay that there are insufficient alternative places in secure accommodation, where they have expertise in providing mental health care? Mr Heginbotham: Yes, I think that is probably correct. We would like to see more resources in mental health services particularly in the low and medium secure facilities as well as in the high secure hospitals. Q184 Mr Stinchcombe: How damaging to already vulnerable prisoners is that delay and lack of treatment? Mr Heginbotham: Again, it is very difficult for me to answer your question directly and I am not seeking to duck it. We do not visit the patients in prison and therefore we do not see at first hand the problems they have. We do of course see them once they move and our anecdotal evidence would be that it is quite deleterious to the patient to have to wait for a long period of time, especially if they have an active, severe illness. Q185 Mr Stinchcombe: Are you aware of any evidence at all as to the extent to which there is a special problem in respect of suicide for those prisoners with mental health problems who are not transferred to an appropriate institution? Mr Heginbotham: Only from reports, not from direct assessment. Q186 Mr Stinchcombe: That is out of your remit? Mr Heginbotham: You are right, I am afraid, yes. Q187 Lord Judd: You heard the evidence given by MIND. Are you satisfied that the judgment that came out of the Munjaz case is being effectively implemented: the recognition that, in order to protect prisoners' Convention rights, it is essential that the code of practice is followed? Mr Heginbotham: No, we are not satisfied at all that all hospitals or even Ashford Hospital are yet fully implementing the judgment in practice. We accept that the effect of the judgment should not be to make a dogma of the code's guidance and that departures from the guidance might still be justifiable where they are in the best interests of the individual patients. I do not think that the judgment has yet been fully taken into account by all hospitals, even though the Department of Health has issued guidance to all hospitals in the chief executive's bulletin in September last year, which I have here in front of me, where they encourage all providers to look at that judgment and to follow it closely. One of the MIND representatives noted that Ashford have now been given leave to appeal that judgment in any event. I do not know the grounds for that appeal and therefore cannot comment further but that in itself is a little worrying, given the importance of the judgment, not only in relation to the individuals concerned but also the importance for the code of practice. Because of a lot of uncertainty over the last two or three years as a result of Human Rights Act challenges, changes in the way that the Act has been applied, the code of practice has not perhaps been attended to quite as assiduously as it might have been in some quarters. What the Munjaz judgment did was to give it a bit of a boost. We were rather pleased about that. Q188 Lord Judd: Do you think the Commission has a role in this? Mr Heginbotham: In what sense? Q189 Lord Judd: Implementation. Mr Heginbotham: Not directly, no. That would again be outside our remit. Our remit is very clearly to monitor the operation of the Act as it relates to detained patients and to report to the Secretary of State. We are not there to tell people precisely how they will undertake any aspect of care but clearly we encourage good practice. We encourage the code of practice to be followed by providers. We facilitate the following of that good practice through the visits we undertake and through the support and encouragement we give. Q190 Lord Judd: You say that your role is monitoring. How closely do you monitor the levels of medication and are you satisfied that this is all as it should be? Mr Heginbotham: Again, we are not in a position to monitor levels of medication directly other than through the work of our second opinion appointed doctors. We undertake approximately 9,000 second opinion visits every year and clearly we look at the way in which they are undertaking their work, but it is again not in our remit to second-guess clinical judgment in this case and therefore we are not in a position, unfortunately, through the work we do to be watching the specific medication that is given to patients other than perhaps where there is a death of a patient where we might follow that up if we thought it was an unnatural death. Q191 Lord Judd: This is an interesting answer and quite a worrying answer actually because, if you are concerned about human rights, how can you make a judgment about whether the medication that is being administered is in fact appropriate or disproportionate in the context of the protection of human rights? Mr Hegingbotham: We cannot easily is the honest answer to that. We are not visiting hospitals on a regular day-to-day basis. We are looking at ways in which we might change our visiting programme but, other than the high-secure hospitals, we only visit relatively infrequently - three times in two years or somewhat less than that - and therefore we are simply not in a position, through the given resources we have and our remit, to be monitoring what happens to individual patients on a day-to-day basis. Q192 Lord Campbell of Alloway: It is, with respect, an unfair question you are being asked to answer because, without the medical evidence, you cannot conceivably grapple the human rights involvement. You need the medical evidence that the treatment is disproportionate and then the human rights could come in, but you cannot deal with it without the evidence in each case. Mr Hegingbotham: I am afraid that is correct. That is not to diminish of course the importance of the question and the issue, but we are simply not in a position to do that. Q193 Lord Judd: Would you suggest that your remit should be extended or strengthened and that, for example, you should have specialist staff available to assist you in your work? Mr Hegingbotham: I think that is a matter for further consideration. We would have to look very carefully at how one undertook and the extent to which we were in a position to challenge clinical judgment. Our second opinion appointed doctors look at the care plan of patients usually after three months on that care plan and, in about three per cent of the cases, agree a significant change to the care plan when they visit and undertake the second opinion, so that can change the medication quite significantly in three per cent. Three per cent may not sound very much, but it is three per cent of 9,000 visits, so it is a patient every day whose medication is changed - it is usually medication, sometimes it is a proposal for ECT - quite significantly. Q194 Lord Judd: You are being very candid. Would you therefore agree that in effect this is a very significant limitation on your effectiveness in a central area of human rights? Mr Heginbotham: Yes, I would. Q195 Lord Lester of Herne Hill: I would like to ask you about inquests. In your experience of inquests into the death of detained patients, do inquests in general provide a sufficiently thorough investigation of death? Mr Heginbotham: I think the answer to that is "yes" and "no". We have criticisms of the inquest process but my summary answer would be that we very much want to see that process continue. The formal setting of the Coroner's Court does highlight issues of treatment and care which might not otherwise emerge, but there is great variance in the way in which individual coroners interpret their role. They always start of course by confirming that this is a fact finding and not fault finding system. We are often not so much interested in the cause of death as in what led up to it and what follows from it. The cause of death may in fact be relatively obvious in the sense that it might be a suicide or it might be at least some obvious self-harm. What we are particularly concerned about are the actions of staff, the differences and inconsistencies in the evidence given, any pointers to poor practice and so on. Where there is a jury, we find that there is sometimes a more detailed examination of events and I think that is very important and sometimes of course leads to a different final outcome. Also, the treatment of families varies very much between coroners' courts as does advance disclosure to third parties such as ourselves. Sometimes we get good disclosure in advance and sometimes we do not get anything and that makes it more difficult for us to know which inquests we should attend. In summary, we think that coroners, subject to the need for some improvements in procedural rules, do actually a reasonable job. Q196 Lord Lester of Herne Hill: We probably do not have time to go into it now, but the Committee is very interested in practicalities, questions like how extensive are your own Commission reviews of unnatural deaths of detained patients, whether you publish reports, whether you make available conclusions, for example, to the family; whether you would like an independent inquiry system like that of the IPCC now proposed by the Prisons Ombudsman and what you think about the Standing Commission into custodial deaths etc. What it be possible for you to deal with those questions in writing rather than orally now? Mr Heginbotham: I would be very happy to. We had thought about some of those issues but clearly they raise quite a lot of additional matters which I would be happy to write to you about in more detail. Q197 Chairman: That would be very helpful. You did point out earlier on that your remit does not run to prisons. If it did, what would the Mental Act Commission do there? Would you be a kind of examining magistrate looking at mental health services or would you be there as a guardian of the rights of the individual? Mr Heginbotham: I think rather more the latter than the former. Our role at the moment is to monitor the operation of the Act as it applies to detained patients. Clearly, what we would like to be able to do is to monitor the operation ... At the moment, the Act does not apply in prisons, that is one of the reasons why we do not monitor them. What we would be interested in doing is monitoring the way in which people with diagnosable mental illnesses are treated in prison and we have argued strongly that the new Commission for Healthcare Audit and Inspection should have that duty. Our concern of course is with the lawfulness of detention, but we take a slightly wider mission statement, if that is the right word. Our remit is clear in the Act, but we seek to protect the rights of patients and to be concerned with their rights in all of the matters that we have talked about this afternoon. So clearly, if we had the opportunity to do that in prisons, that is how we would approach it. Chairman: Thank you very much for appearing before us today. We have found it very helpful. Memorandum submitted by Department of Health Examination of Witnesses Witness: Dr Stephen Ladyman, a Member of the House, Parliamentary Under Secretary of State, Department of Health, examined. Q198 Chairman: Minister, welcome. You know that the Joint Committee on Human Rights is currently inquiring into deaths in custody. We heard earlier on today from witnesses from MIND and the Mental Health Act Commission. As a result of the evidence we have had so far, we have heard from several witnesses that the use of control and restraint are not being adequately implemented and I wonder whether you think that, in practice, control and restraint powers are being exercised in a way which protect Conventional rights of patients. Dr Ladyman: I certainly think that the guidance published in Chapter 19 of the guidance in relation to the Mental Health Act certainly complies with the Convention rights. I have not heard anybody who questions that the guidance is in line and complies with those rights and, if there has been evidence presented to you that they do fail to comply with those rights, I would be interested to see it. I suppose the question is whether people are adequately following that guidance and, by and large, I think they are. I have no reason to believe that there is widespread failure to follow the guidance adequately. Are there occasionally examples where people are not following the guidance either through lack of knowledge, misjudgment or in a crisis situation? Yes, I am sure there are but I think those are the exceptions. I hope that the processes that are in place to require and audit the use of restraints and an investigation following any use, and the documentation of course and then audit and then follow-up by management, do pick up pretty much all the cases where the guidance is not properly followed. So, I am broadly content but of course you can always do better and I do not think we should ever lose sight of that. Q199 Chairman: It has been suggested to us that the guidelines should be given statutory importance; have you considered whether they should be included in the Draft Mental Health Bill? Dr Ladyman: We have considered it and, at this time, we are not minded to do so. We believe that there will be new guidance with the new Mental Health Act, so we will take that opportunity to revise the guidance. At this time, we are not minded to include it in statutory force; we would prefer to leave it as guidance in the future as it is now. Of course, our minds are not finally made up yet; we are still in a consultation process on the forthcoming Bill, so the evidence of this Committee will be influential in helping us decide what finally to do. Q200 Chairman: Are you satisfied that the current level of training for the use of control and restraint is sufficient for staff? Dr Ladyman: In mental health environments, in prison environments or in both? Q201 Chairman: Both. Dr Ladyman: We can always do more training. Let me put that as a caveat first of all. We can never train fully enough; we can never train widely enough; we can never do enough to make sure that people understand what their rights and responsibilities are in these situations. Certainly in the mental health environment, I think, yes. In the prison healthcare system, I think we will have to provide more resources and training in that environment than perhaps we have at the moment, but those are only instincts that I have. I do not have a major cause for concern in either area. Q202 Lord Lester of Herne Hill: Minister, we have had evidence expressing quite strong concern about the disproportionate or excessive use of control or restraint against members of ethnic minority groups. I am sure aware of this concern yourself. Has your department taken any effective steps to investigate these cases? Dr Ladyman: I have to say that we have no data one way or the other to suggest that restraint is used more heavily against ethnic minorities than anybody else. There is certainly some evidence that there is a preponderance of people from ethnic minorities that are detained under the Mental Health Act, so there is a greater proportion of people from ethnic minorities detained in the first place and so that might skew the broad data in terms of the broad numbers that are restrained, but we have no evidence at this time to suggest one way or another that the greater proportion of those that are detained are subjected to restraints if they come from those minority backgrounds. I think it is an area in which we will have to do some more research and it is something that we have to keep our eyes open about. We have some work going on by Professor Louis Appleby that might inform us in this area in the future, but we have no hard evidence of that at this time. Q203 Lord Lester of Herne Hill: I am sure you are aware from your Home Office colleagues that there is quite strong evidence that black people suffer disproportionately in the criminal justice system from bail to sentence and so on. You have no reason to think that that would not apply also to the excessive use of force and restraint in this area. Would it not be quite useful to have really comprehensive statistics on death in mental health detention, especially looking at the racial dimension? Dr Ladyman: As a general principle, you can never have too much information and, yes, I do accept entirely that people from minority ethnic communities suffer unduly in being involved in the criminal justice system and I have acknowledged that a greater proportion of them are detained under the mental health legislation as well. What I do not have hard data about at this time is whether a greater proportion of those who are detained suffer restraint and isolation and such techniques as part of the process of controlling their behaviour when they are detained and that is something about which I think we could do with some more information. Q204 Lord Lester of Herne Hill: Our think our concern is with racial stereotyping and profiling but this is something you are going to look into? Dr Ladyman: Yes. Q205 Lord Judd: I would like you to comment in terms of Convention human rights on two aspects. One is seclusion and one is medication. On seclusion, you have said that action has been taken to make seclusion safer, but how satisfied are you that seclusion is being used appropriately in terms of human rights and Convention rights? Dr Ladyman: As I said earlier, I believe that the guidance we give in Chapter 19 of the guidance is absolutely in line with Convention rights and it includes very thorough guidance in terms of seclusion and medication. The guidance, in my view, is comprehensive; it is easy to understand; it should not be being misused. So, I am very confident that we have the right framework that complies with the Convention. Do people sometimes fail to follow the guidance? Yes, of course. Do they do that maliciously? Very seldom, in my view. I think they probably do it in crisis, as a result of poor training and as a result of difficult situations where they have to react quickly and they make poor errors of judgment. In terms of documenting what goes on, I think the process of requiring such events to be documented and audited is absolutely the right way to go about it. So, do I think that there is a wholesale failure to comply with the Convention? No, I do not. Q206 Lord Judd: Perhaps not wholesale, your word, but is there a failure that is worrying? Dr Ladyman: The smallest failure would worry me because it is something that I absolutely believe we have to comply with. The whole reason why we are transferring, for example, prison health to the National Health Service is because we not only want to meet people's Convention rights but we want to exceed them. We want to mainstream services across the prison environment. That is something this Government are absolutely committed to. So, the smallest breach of anybody's rights is something that concerns me. Q207 Lord Judd: Would you agree that one of the issues you are up against in your specialist responsibilities is the whole institution culture within which you are operating? Dr Ladyman: Yes. Q208 Lord Judd: And that what needs to be spelt out far more quickly in terms of the objectives of the whole operation is the preservation of human rights? Dr Ladyman: I absolutely agree with that, but I do also believe that we are doing a great deal of work to try and get that message over to the people who work in both environments, both the prison environment and mental health environment. We are working very hard to get this message over to make sure that people understand what somebody's human rights are and what we require of them in ensuring that those human rights are met with. Can we do more? Of course we can, we can always do more. Are we working hard to try and make sure that the people understand what their responsibilities are? Yes, we are. Q209 Lord Judd: Do you think sometimes your people who are operating in this situation have to face the very real psychological tensions of being regarded as "softies" in the operation? Dr Ladyman: In the prison environment, I suppose there is always a temptation to feel that that may be the way they are being looked at. I do not think that is a general trend. I have to say that on both sides of this equation, both the prison health side and the mental health side, the people I have met and the practitioners I have discussed this with have never given me that feeling. I have to say that we are always guilty of stereotyping and the noble Lord mentioned that in term of minority ethnic communities. I think we are occasionally guilty of stereotyping when we talk about people who work in the Prison Service and also in the mental health service. They are not the Mr Mackay type figures of Porridge. They by and large are people who very much understand the responsibilities of their jobs and the needs to respect people's human rights, but they work under very difficult circumstances. They work under circumstances that you or I would probably not be prepared to work under. Q210 Lord Judd: I think that is a very fair answer, but would you agree that just as there is need for training in human rights and the understanding of human rights and the importance of human rights with your people, so there is a great need for more understanding in the Prison Service as a whole about the needs of mental health? Dr Ladyman: Absolutely and in fact I am delighted to say now that as part of prison officer entry level training, there is a specific course on people's healthcare needs including mental health needs. We now have continuing training for all levels in the Prison Service including governor level, so it is not a matter of just getting your training during your basic training period and then you do not have any more training, you have on-the-job training going on. We have also commissioned a training package and I think it is the University of Bournemouth that is preparing a training package which is intended for people who are working on the wings in order that they will have the knowledge and experience of how to manage people's healthcare needs and mental health needs and then they can teach their colleagues of what is going on. So, we are doing a raft of things to try and make sure that people have the knowledge and training that they need, but I am the first to say that we can always do more. Q211 Lord Judd: I would like to spend a moment or two on medication. Some of the evidence that we have been given suggests that use of medication is excessive and that it is sometimes without medical authorisation as required by the Mental Health Act. How far do you think this is a real problem and again what about the Convention on human rights here? Dr Ladyman: I would be very interested to see that evidence because, from the feedback I am getting, it is not a widespread practice. We have, for example, the National Institute of Clinical Excellence guidelines when we have to administer tranquillisation other than for people's treatment and I expect NICE guidelines to be followed wherever they exist. So, if this is a widespread practice, I would be horrified, to be frank with you, and very surprised. I do not think it is a widespread practice. Does it happen occasionally? Yes and we would be surprised if it did not. Again, the process of having to document and audit any such acts is the way in which we ought to be picking that up. Q212 Lord Judd: You said that, if it happens on a small scale, it is a ground for concern. What would you do about it? Dr Ladyman: Every time medication has to be given in these circumstances, the management of the institution should be auditing exactly why and should be investigating and making sure that the people who actually took the decision to do it took an informed decision for the proper reasons. I think that management in those institutions ought to take disciplinary action if they find anybody has been abusing this on a systematic basis. Of course, when we transfer particularly mental health inspection to the Commission for Health Audit and Inspection from April, I think they will provide a mechanism for auditing the auditors to make sure that we are not missing a trick and that these things are not being hidden. Q213 Lord Campbell of Alloway: I take your point totally. What you are in effect saying - and correct me if I am wrong - is that you expect the guidelines to be followed and those guidelines are in Chapter 19 of the statute and those guidelines include medical treatment. What else can you do in practice as a department apart from training and perhaps urging people to observe them? What else can you do? Perhaps there is something, I do not know. Dr Ladyman: I think there is one thing that we have to do. We have to make sure that there is a body in place that can audit what is going on and that is why the Commission for Health Audit and Inspection has been set up. We also of course have to make sure that there is a route for people to be able to complain if they think their human rights are being breached. Q214 Lord Campbell of Alloway: But you do not want them to have statutory force; there is no need for that. Dr Ladyman: I do not believe there is a need for them to have statutory force. Of course, I will take cognisance of any advice that this Committee produces on that matter but, at this stage, I do not believe they need statutory force. I think that people have understood the system since the '83 Act and there is a little bit of me which thinks, "if it ain't broke, don't fix it", but of course I am waiting. If people have evidence that it is broken, then of course we will take that onto account. Q215 Lord Campbell of Alloway: You section people with severe mental disabilities, as I understand this - and correct me if I am wrong - if they are treatable but, if they are not treatable, you cannot section them; is that right? Dr Ladyman: I think I would probably have to write to you with the exact legal position but, broadly speaking, that is correct. Q216 Lord Campbell of Alloway: We heard evidence to that effect. I am putting it in very simple language - I know that much more beautiful language was used - and what happens is that the ones who cannot be sectioned because they are not treatable are sometimes not in as bad a mental state as the others, if you follow what I mean, and what happens is that very often one of these people who has been sectioned because they were treatable is then transferred from one prison to another prison to be treated but then they behave in such an aggressive and terrible fashion that they then decide that they not treatable and they are transferred back to the prison from which they came. I am not joking, this is the effect of the evidence that we have heard and I, and I think some others of us, were shocked about this when it was referred to by Anne Owers, a very distinguished person in this field, as "sale and return prisoners" as they were known in the Prison Service. Have you heard this? Dr Ladyman: I have heard the characterised pathway you are describing; I would be very interested to see some case studies where it actually has happened in quite that dramatic a way. Q217 Lord Campbell of Alloway: I am sure that, if you write to Anne Owers, she will give you chapter and verse because she gave the impression of knowing exactly what she was talking about and was a very good witness. What are we to do with this? This is very unsatisfactory position. If you do not know very much about what is going on here, what do you think should be done about it? Dr Ladyman: One of the reasons why we are reviewing the mental health legislation at the moment is precisely because we recognise that there are some flaws in it. So, we will try and address those legislative flaws in the new Bill when we finally put it before Parliament. So far as the treatment of people in the Prison Service is concerned, I think the Chief Inspector is certainly right that there are some people in prison with serious mental illness and of course, amongst the various things that we are trying to do is to try and stop them getting into prison in the first place. So, we have a range of measures in place now where people go to court and we try and assess whether they have mental illnesses, whether they would be better treated outside the Prison Service. We are providing a wider range of sentencing options to the courts and some discretions. The second thing we are trying to do is upgrade within the Prison Service the healthcare system across the board, which is why we are transferring it to the National Health Service. We have mental health in-reach teams, for example, to help people in the Prison Service. We have a wide range of initiatives to try and improve both the physical environment for people with mental health problems in Prison Service as well as the treatment options that are available to them and of course we are making sure that the staffing in the Prison Service and training is sufficient to recognise and deal with people with mental health problems. One of the suggestions that the Chief Inspector put forward which was debated fairly hotly over the Christmas period was the idea of creating some new institutions for people with mental health problems and I am not convinced myself that that is the way forward and I think she recognised this herself when she made her comments. In doing so, we would be in danger of recreating the old asylum structures. So, I think that is something that I need to be convinced about before we would go down that route. Q218 Lord Lester of Herne Hill: Minister, as you will know, there have been some very welcome changes made by the Government, first in establishing an independent Police Complaints Commission and then extending the Prison Ombudsman powers to investigate deaths in prison. In the light of that, do you not think that the absence of a system of independent inquiries into deaths in Mental Health Act detention is now starkly anomalous? Dr Ladyman: I do not believe it is starkly anomalous. Q219 Lord Lester of Herne Hill: So, it is just anomalous? Dr Ladyman: I believe it is different and I believe that there are mechanisms in place for investigating deaths in mental health institutions including the Mental Health Act Commission and including the normal process that would be gone through by a corner and the criminal justice system as well if somebody has died under suspicious circumstances. So, I believe that there are mechanisms and I remain to be convinced that we need further mechanisms to investigate such deaths, but again it is not something that we have a closed mind over. Q220 Lord Lester of Herne Hill: I am sure we are glad to hear that but given what I have just said about other mechanisms, are you reviewing the power of the MHAC or its successors to provide a statutory basis for a full independent inquiry because, on the face of it, it is very odd that there should be a full independent inquiry into these other contexts but not in this one. Are you looking at reviewing the powers of the Commission as a matter of priority? Dr Ladyman: At the moment, I would have to say it is something that we are not minded to do but we are open minded about it. Q221 Lord Lester of Herne Hill: Why are you not minded to do it? Dr Ladyman: Because, as I say, I think that there are mechanisms in place at the moment which adequately allow the investigation of deaths in mental health environments, but again the report of this Committee will be helpful in formulating our future views. Q222 Lord Lester of Herne Hill: Do you think it satisfies Article 2 of the European Human Rights Convention for the status quo to exist? Dr Ladyman: I do. Q223 Lord Lester of Herne Hill: You think it does? Dr Ladyman: I do. Q224 Chairman: Minister, we are aware that the National Health Service assumed responsibility for the prison healthcare system in April of last year. How would you say the prison healthcare system has changed since that date and what changes would you envisage in the future? Dr Ladyman: I think the partnership between the National Health Service and the Prison Service actually had some serious benefits even before April of last year. I do not know if the Committee is aware but we put in a traffic lights system for assessing the quality of health services in prisons where red is a healthcare service with serious deficiencies, amber gives cause for concern and green is considered to be adequate and, from 1999 to 2003, we went to a situation where there was a significant number of prison healthcare services at red to a situation in 2003 where there were none at red and the vast majority were at green. Only 24 remained at amber and 114 at green by 2003. So, a significant improvement already as a result of the partnership work. So, what would I expect now between 2003 and 2006 when we fully take over or PCTs take over full commissioning? I would expect to build on that foundation; I would expect to see a general improvement in healthcare services everywhere but, more importantly, I would expect to see what we call mainstreaming of services. So, to see services delivered in prison as they would be if people were not prisoners in the sense that, if you were not a prisoner, you would receive treatment for something in your home, then we should be able to deliver the same standard of treatment to you in prison in your cell on your wing which is the equivalent of your home whilst in prison. If it requires you to be hospitalised whilst you are not a prisoner, then it would require you to be hospitalised if you are an inmate. So, we would want to see the same strategies and the same quality of health service in prison and outside prison. Q225 Chairman: Would you say that the high rate of the imprisonment of mentally ill people indicates a failure of or a function of the failure of mental healthcare available in the community generally? Dr Ladyman: I would not take the view that it is a failure of healthcare in the community. I think it is inevitable that more prisoners will be people with mental health problems than in the general community. I agree with you that it is a horrifying level of people that have a mental health disorder in prison. There are five categories of health disorder and 90 per cent of people have at least one of those disorders. That is a horrifying level, I agree. I have to say that I think it gives us a huge opportunity that hitherto I do not think we have fully exploited and that is that, if we can help people whilst they are in the Prison Service system to overcome that mental illness, whether it is drug abuse and alcohol misuse or any of the other mental disorders, and support them whilst they are in prison, then we are going to make dramatic improvements to the offending rates when people leave prison. So, it is something that worries me and which shocked me when I first took over this role and discovered how high the levels were in prison but, no, I do not think it is a reflection on mental health treatment in the community. Q226 Chairman: In some of their evidence to us, MIND have suggested that people's general level of mental health tends to deteriorate while they are detained in prison; would you agree with that statement? Dr Ladyman: I think that is generally accepted but, equally, I think we have to ask ourselves what we mean by that. Prisons are not supposed to be fun places to go to. By definition, you are being punished. You either have the prospect of a trial or you have the memory of your trial, you have then a period of incarceration with your liberty curtailed, you have to deal with what your family and friends and what the community you have left may be thinking about you and what you did or what they perceived you did. It is a place that is bound to exacerbate any underlying mental health condition that you have had and to expose any that has not been spotted before you came into the prison environment. So, yes, I think it is generally accepted that mental health will deteriorate in prison, but I do not believe it is necessary for it to deteriorate to serious levels while you are in prison. Q227 Lord Judd: Surely you are quite right when you imply and more specifically say that prisons are not fun places to go to but, on the other hand, surely one of the principle objectives of prison is not only punishment but rehabilitation and, if there is a question of mental health deteriorating at all, this is working right against the whole objective of rehabilitation and is something to be taken extremely seriously. Dr Ladyman: Absolutely and we are taking it extremely seriously and that is why we are transferring prison health services to the National Health Service in order that we can take it even more seriously in the future. What I mean to say is that, when you go to prison, there is bound to be an element of depression about it. If it was not depressing you, it would not --- Lord Judd: If I may say so, I thought you described that rather well. Q228 Chairman: The Chief Inspector of Prisons, Anne Owers, recently said there is a need for what she called a new generation of institutions which focused on treatment and interventions where mentally ill people can be detained rather than going to prison; do you agree with that? Dr Ladyman: As I said earlier, I would need a lot of convincing that it is necessary. Yes, 90 per cent of people have characteristics of one of the five mental disorders whilst they are in prison, but a much smaller proportion of them are seriously mentally ill. I think we have estimated that there are about 5,000 people in prison who are seriously mentally ill and the question I would have to ask is, what sort of level of mental illness is it that she is proposing we build new institutions for? If it is people with very serious mental illnesses that she is proposing that we build new institutions for, then are we not in danger of recreating the old asylums, which I expect everybody would immediately criticise us for, quite rightly, if we tried to go down that route. Given that we are in the middle of a process of mainstreaming prison health services, doing things we have never done before in this country to drive up the quality of prison health services and to take issues like mental health of prisoners far more seriously than we ever have in the past, I think that, before we go down the route she is proposing, we would be very well advised to see how well the route we are following at the moment works, bearing in mind that we do not even have the first primary care trusts taking over prison health services until this April. We are at a very early stage in a process which may address the problem and I think will address the problem that she has identified. Q229 Chairman: We also heard from the Chief Inspector that the average period between the diagnosis which could lead to sectioning under the Mental Health Act to allocation to a secure hospital is generally about three months and she said to us that those are three months in which a prisoner could deteriorate quite dramatically. Is there going to be a focus on trying to shorten that period? Dr Ladyman: Yes. I think we have to focus on that. I think we estimate that, at any one time, there are about 40 people waiting three months or more for a transfer and we need to make sure that the gap is as short as possible and that, for the period they are awaiting a transfer, the health services we are providing them within the prison environment where they are is as appropriate as possible. Q230 Mr Stinchcombe: Minister, I would like to take you to some more general healthcare issues outside of the mental health remit. Firstly, drug detoxification. Do you agree that drug addiction is one of the most significant healthcare problems facing the Prison Service? Dr Ladyman: Absolutely. We estimate that it is 40 to 50 per cent of male inmates have substance abuse problems and about 60 per cent of the women. Q231 Mr Stinchcombe: To what extent is patient maintenance treatment available to prisoners with addictive problems? Dr Ladyman: I would have to write to you with the percentage of people to whom it is available. In general terms, I would have to say that the non-clinical services we provide to people with substance abuse problems in prison are fairly generally available across the prison estate but the clinical services at this time are much more patchy. Q232 Mr Stinchcombe: What precise steps have you taken to improve detoxification programmes within prison? Dr Ladyman: We are generally looking at the extension of clinical services and the opportunity for different prescribing options to be made available according to the clinical judgment of people who are caring for prisoners and we are making detoxification facilities available much more widely across the prison estate, but I am the first to say that it is not widespread. Q233 Mr Stinchcombe: To what extent are you protecting those who have been detoxified in prison by providing them with Naltrexone to block the impact, for example, of heroin, whilst they are in prison and of course when they are released? Dr Ladyman: I think that there is an issue there. As I say, we do not think that the availability of clinical services is widespread enough in the Prison Service yet, so we need to extend that and I accept that entirely, and, from my experience of talking to professionals within the healthcare service, one of the things that we have yet to get right is the length between the detoxification programmes and the treatment programmes we have put on whilst people are in post and the support we provide for the aftercare after they are released. What governors typically tell me when I go to visit prison health centres is that, if somebody is in prison for a few months, then they can usually get them off drugs or help them with their substance abuse programme during that time but, quite often, they are immediately released back into the environment from which they came, often without a proper care plan and they quite often find themselves going back to sleep in the same flats and the same places where the people who got them into trouble in the first place are. Q234 Mr Stinchcombe: Could you drop a line to the Committee with the figures as to the percentage of prisoners who are specifically offered Naltrexone treatment. Dr Ladyman: Yes. Q235 Mr Stinchcombe: Can I turn quickly to communicable diseases. I think you will agree that a percentage of inmates suffer both HIV and Hepatitis B and C significantly higher than the outside community and presumably that is because those inmates had the disease transmitted to them in the normal way either through sharing needles or through having unprotected sex. Dr Ladyman: Yes. Q236 Mr Stinchcombe: I take it that the Department of Health is promoting needle exchanges and sterilisation of needles and also condoms in the wider community. Dr Ladyman: Yes. Q237 Mr Stinchcombe: Will it also promote those programmes inside prison? Dr Ladyman: Certainly, there was an attempt to introduce disinfecting tablets which was withdrawn and is now being reintroduced under a pilot programme which we carried out some analysis on. So, we think disinfecting tablets for those people who are using equipment inside prisons is an important way forward. Our experience so far of the needle sharing schemes in prison has not been particularly successful but I am open minded about anything. Condoms in most places are available on a confidential basis in prisons where we think it is necessary. Q238 Lord Lester of Herne Hill: Minister, we would be grateful if you would provide us with evidence rather than assertion as to why Anne Owers is wrong because I think that is what you are saying when she says that there is a real need for a new generation of institutions with focus on treatment and intervention so as to get people out of prison who should not be there because of their mental disorder. Can your department provide evidence - I understand the assertion - because we have to form a judgment in the end as to whether we accept her evidence or not? So, if you have evidence to the contrary ... I have evidence that supports her from my own experience and you clearly must have visited prisons yourself, but can you hereafter provide us with chapter and verse, please. Dr Ladyman: I will certainly write to you and give you a considered view on it. I do not think that the Chief Inspector was actually putting this forward as a proposal for an immediate start. I think she was flagging it as an option that we ought to be looking at as well. I am happy to give you a response on it. Chairman: Minister, thank you very much for appearing before us today. It has been very helpful to us as we continue our examination of the very serious issues that arise from deaths in all forms of custody. Thank you very much. |