Examination of Witnesses (Questions 180
MONDAY 9 FEBRUARY 2004
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,
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
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
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 infrequentlythree times
in two years or somewhat less than thatand 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 changedit
is usually medication, sometimes it is a proposal for ECTquite
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
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.