Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 180 - 197)



  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 mental health service, which according to our figures at the moment, is 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 2004-05 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 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 prisoners at any time. 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 Ashworth 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 Ashworth 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 and therefore we are not in a position, unfortunately, through the work we do to monitor 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 Heginbotham: 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 Heginbotham: 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 Heginbotham: I think that is a matter for further consideration. We would have to look very carefully at how we undertook that 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, propose 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 care plan 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, actually do 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. At the moment, the Act does not apply in prisons. 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.

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