HOUSE OF LORDS
House of COMMONS
MINUTES OF EVIDENCE
JOINT COMMITTEE ON THE DRAFT MENTAL HEALTH BILL
Wednesday 27 October 2004
DR TONY ZIGMOND, PROFESSOR SUE BAILEY, PROFESSOR GREG O'BRIEN and DR JOHN O'GRADY
USE OF THE TRANSCRIPT
Taken before the Joint Committee on the Draft Mental Health Bill
on Wednesday 27 October 2004
Memoranda submitted by the Royal College of Psychiatrists
Examination of Witnesses
Witnesses: Dr Tony Zigmond, Vice President, Professor Sue Bailey, Chair, Faculty of Child and Adolescent Psychiatry, Professor Greg O'Brien, Chair, Faculty of the Psychiatry of Learning Disability, and Dr John O'Grady, Chair, Faculty of Forensic Psychiatry, Royal College of Psychiatrists, examined
Chairman: Good morning and welcome. Before we start taking evidence, there are some members of the Committee who, because they were not present at the appropriate part on a previous occasion, will need to make declarations of interest.
Lord Mayhew of Twysden: My Lord Chairman, my interests are declared in the Register of Members' Interests. It may be relevant to say that I had some ministerial responsibility for the 1983 Act; I am also President of Mental Health Resource in Tunbridge Wells.
Baroness Flather: My husband sits as one of the presidents of the Mental Health Review Tribunal, Gary Flather, and also I had nearly 21 years connection with Broadmoor hospital, not locked up.
Mr Hinchliffe: My interests are in the Register. It is probably worth placing on record that I used to work for many years as an authorised mental welfare officer and social worker for mental health legislation. I also at one point, on a voluntary basis, represented patients on behalf of Mind at certain Mental Health Review Tribunals.
Laura Moffat: I would like to change my submission to the interests from Mental Health Alliance to Depression Alliance, please.
Q70 Chairman: Thank you very much indeed. Welcome. Dr Zigmond, are you, as it were, taking Chair?
Dr Zigmond: As it were.
Q71 Chairman: As you know, we would like to ask you questions. If you feel absolutely driven to make an opening statement, then we will just about put up with it, but we are not terribly keen, to be frank, because we would be much happier with the questions. I think you have been told that in advance.
Dr Zigmond: You have had 17,000 words of our opening statement.
Q72 Chairman: Exactly. I was going to say, thank you very much for the written evidence which you have provided us, including the addenda. I should say to you that this is a public session and that a transcript of the evidence will be produced and placed on the Internet. You will be given the opportunity to make textual, but not substantial, alterations to the transcript. Can I remind the witnesses and, indeed, members of the Committee, to speak directly into the microphones? There are a few of us on the Committee whose hearing is not quite what it was once, so it is important to speak up. I am afraid we are under some pressure of time: we have got about an hour or so. We will try and get through as many questions as we can, with a bit of discourse. Would you like to introduce your team very briefly?
Dr Zigmond: This is Greg O'Brien.
Professor O'Brien: I am the Chair of the Learning Disability Faculty of the College.
Dr O'Grady: John O'Grady, practising forensic psychiatrist and Chair of the Forensic Faculty of the Royal College.
Professor Bailey: I am Sue Bailey. I am professor of child analysis mental health and I currently Chair the Child Analysis Faculty of the College.
Dr Zigmond: I am a full‑time NHS general adult psychiatrist in Leeds and I am Vice President of the Royal College of Psychiatrists.
Q73 Chairman: Thank you for bringing such a broad team. If I could start. You have said in your written evidence that you want to see basic principles included on the face of the Bill. Two questions would appear to arise from that. First of all, durability: if there are going to be principles in the Bill they need to be durable. It is 1983 since the last major statute on this subject. Do you believe that a set of principles can be established that will last for a generation? You propose that the Richardson criteria should be used. Do you think that those criteria will last for a generation, and, as an associated question, does it make any difference to clinicians whether the principles are on the face of the Bill or in the Codes of Practice? Might it be a little bit more flexible if they were in the Codes of Practice rather than on the face of the Bill?
Dr Zigmond: I will try and answer those, my Lord. We do believe that they will last a generation. They are very fundamental principles and we cannot see that they will lose either their authority or their appropriateness, but if times were to change, then we would feel very strongly that such matters should be discussed by Parliament, and it would be for Parliament to decide that they had now become inappropriate rather than for them either to be ignored or set aside in some lesser fashion. We are very happy with the Richardson principles. Why it is important for clinicians, partly because clinicians, along with everybody else, think that human rights, justice and fairness, and so on, are absolutely fundamental, partly because it will enable clinicians to understand how to interpret, or will help clinicians understand how to interpret the Act, but also because one of the difficulties that exists in mental health services, as opposed to other NHS services, is that patients, at times, are quite scared, both patients who have been detained in hospital but any mental health patients who fear seeking help lest they are made subject to coercion. Everybody that we see is very aware of the Mental Health Act, and quite a number fear that if they even suggest that they will not do as we advise they will be subject to it. It is very important that there is real transparency for everybody as to the principles which would enable us, or indeed require us, to use compulsion as opposed to those where we would quite properly say, "No, not appropriate here."
Q74 Chairman: Just acting as devil's advocate for a moment, one of the complaints one hears if one has operated in the criminal justice field dealing with sections 37 and 41 is that legal concepts are often very different from clinical concepts. If the principles were in the codes of practice rather than on the face of the Bill, would it not be easier for the law, particularly the criminal justice system, to respond to changing clinical concepts which may, for example, be affected by significant advances in drug treatments?
Dr Zigmond: I think the principles as set out are fundamental, and I cannot see how any changes in treatments - as we sit here, I cannot see how any change in treatment would alter the basic things about personal autonomy and the least restrictive alternative, and so on. It does seem to me to be absolutely fundamental and I would not want any part of the service to deviate from that without very clear authority of Parliament.
Q75 Chairman: Does your forensic psychiatry colleague have any comment on that?
Dr O'Grady: I think the role of a forensic psychiatrist in court is essentially to translate from the language of psychiatry to the language of law, and, as I see it, both psychiatry and the law would, sitting above them, have the principles that they operate from. So I cannot see any incompatibility. As far as I am concerned, the job would still remain the same, which is that we give the court evidence of mental disorder, we translate that mental disorder into the legal terms the court uses and a set of principles would simply aid that rather than impede it.
Q76 Lord Carter: We are told that one of the reasons why they are not in the draft Bill is because of the need for disapplication which should be left to the Codes of Practice. Would you be satisfied if the criteria for disapplication of the principles were left to the Codes of Practice, or would you sooner see the criteria for that on the face of the Bill?
Dr Zigmond: On the face of the Bill. The only way to ensure confidence is for everybody to know ‑ clinicians, potential patients, all other workers ‑ that these are the fundamental issues against which the applications of the provisions of the Bill will be set.
Q77 Lord Rix: In your written submission of 11th October you advocate on page eight either a narrow and very specific definition of mental disorder or the current broad definition in conjunction with strict conditions for the use of compulsion similar to those in the Mental Healthcare and Treatment of Scotland Act 2003, similar to those in the New Zealand Act and in Australia, New South Wales. You also go on to say on page ten, and this obviously warms the cockles of my heart, "The College proposes that people with a learning disability should only be liable to compulsion under the Act if they have a mental disorder in addition to their learning disability." You then warn that if the exclusion of impairment of intelligence is not included, people with a learning disability would be liable to compulsion at any time that they decline medical treatment. Would you care to expand on these proposals: the narrow definition, the broad definition and the exclusion of people with a learning disability?
Dr Zigmond: Certainly. The broad definition with narrow conditions is quite clearly our preferred option, and it has been our position from the start of the suggestion of forming the Mental Health Act, for two reasons. The first is that it enables the definition of "mental disorder" to be in line with that in the Mental Capacity Bill, and, secondly, because impaired decision‑making, which reflects that if people retain full decision‑making capacity they cannot be made subject to compulsion, they would retain their autonomy, again is in line for people suffering from mental illnesses with grounds for non-consensual treatment for people with physical illnesses, and the closer that we can get to having similar grounds and to reducing discrimination the better. If it was decided that we really could not have those conditions, then we know that there are other practicable ways of dealing with it from New Zealand and Australia, and it would certainly limit, in the way that the Government has stated it intends to limit, the numbers of people subject to compulsion, albeit not in quite as satisfactory a way to use that narrow definition with their conditions. In relation to learning disability, we certainly do feel very strongly, but I will, if I may, ask my colleague here to explain why.
Professor O'Brien: I think it is very important that learning disability alone must not be grounds for detention under the Act. The suggestion that it might be is quite ludicrous. This is a large number of people, many of whom do not have behavioural problems, many of whom do not threaten society or themselves. It is very important, it is an important safeguard, that there must be grounds alone.
Q78 Baroness McIntosh of Hudnall: Could I just ask you to talk to us a little bit about the other definitions that you have drawn to our attention, the Australian and New Zealand definitions, wherein the specific exclusions are very carefully set out and it is a notable feature of the draft Bill that it does not specify any exclusions which set it apart from the previous legislation, the existing legislation? Could you tell us why, in your view, it is so important to specify the exclusions and how in some areas, particularly in relation to drug and alcohol abuse, it is possible clearly to make a distinction between being mentally disordered and being an alcoholic or an abuser of drugs or other substances?
Dr Zigmond: I think the starting point is to say under what circumstances is it right and proper for people to have treatment to which they are not consenting? An obvious one would be if they are unable to make a decision for themselves. Another might be that they are going to gain some benefit from that. If there is no benefit for them, if there is no therapeutic benefit, then they should not. In addition, there are certain groups of people who, if one is not careful, would always be liable to intervention the minute that they said that they did not want something; and we have to exclude that so there is some good reason why we are overriding somebody's resistance, if not refusal, outright refusal, and that would be the impaired intelligence, the learning disability group. We also need to be very careful that the mental health services do not become solely part of either the criminal justice system or an anti‑social order system; that it has to be part of the health service. People who make life‑style choices either to behave in a criminal manner, or to drink to excess, or to gamble, or to become addicted to cigarettes should not normally be forced to stop those by a health service. If a government feels that those behaviours are inappropriate, then they should legislate in relation to those behaviours, but they are not part of what is generally understood as people who are ill.
Q79 Baroness McIntosh of Hudnall: May I clarify that you would like to see on the face of this Bill specific exclusions. Would you like them to be as detailed as those which are listed in the definitions that you supplied to us from other jurisdictions?
Dr Zigmond: Yes, and in our evidence we have given the suggested ones that we would wish, but they need to be on the face of the Bill.
Q80 Lord Carter: The College proposes two extra conditions for the use of compulsion, one of which is impaired decision‑making. Is this not simply a capacity criterion by another name? Can you explain how the approach that you propose there would deal with a patient who had the capacity to make decisions, was seriously mentally ill, was a clear danger to him or herself and adamantly refused treatment? In other words, would you regard the refusal of treatment of itself a sign of impaired decision‑making?
Dr Zigmond: A series of fairly complex questions, but I will go through them, if I may. The first is to recognise that although we talk perhaps glibly about somebody being incapacitated or retaining capacity, it is a matter of degree for just about everybody; all sorts of things vary our ability to make decisions. Clinical practice, supported, as I understand it, by the courts, have confirmed that the degree at which one is declared or one declares a patient to be incapacitated depends to quite a significant degree upon the seriousness of the potential consequences of that decision. The notion that there is a particular cut off point one side of which somebody lacks capacity, the other side they retain capacity, is of itself wrong. We are only adding to that variation. Why do we use the words we do? One of the acknowledged difficulties with the current definition of "incapacity" is that it relies almost entirely on a person's ability to think, what we call cognitive ability, and we recognise that in the field of mental health, of course, emotions play a large part, and so at a very practical clinical level we think that the notion of impaired decision‑making by reason of mental disorder would be much easier for people to understand and relate to patients with mental health problems and, of course, it would keep us in line with the provisions in Scotland. You went on and asked about patients who retain capacity but were seriously ill, a danger to themselves, a clear danger to themselves.
Q81 Lord Carter: And refused treatment?
Dr Zigmond: And refused treatment. I think the first thing to say, and I have to say this, whilst I accept this is a slightly side issue, that the only way that I can generally decide that somebody is a danger to themselves is because they have come to see me, I have interviewed them and they have told me what is in their mind. If they do not do that, I will not know about it; and so any law that drives people away from the service, I have to say, increases risks for everybody and damages health, and so on; so we need to get people to come and see us. The second thing is the notion of predicting that somebody is a clear danger either to themselves or, indeed, anybody else, I have to say, is rather a fallacious one. My colleagues and I are not good at it. It raises the question as to how many people we should force to have treatment or lock up in hospital unnecessarily in order to try and depict this one. The third, I think, relevant bit, if I may just for a moment mention from about two years ago the case of Ms B. Ms B was a lady who had had a bleed into her brain stem and she wanted the medical treatment stop; she wanted her ventilator switched off. This was going to be an act of suicide; she was going to die as a result of that. She went to court and, of course, the court quite rightly said that her autonomy must be respected and this must be switched off. So we accept the notion ‑ whether it is right or wrong I do not want to enter into ‑ but we accept the notion that people are autonomous and are entitled, as it were, to end their lives by refusing medical treatment. When you use the words "seriously mentally ill" it seems to me that either one is using those words saying that such people will have impaired decision‑making, and, if they do, we believe the law enables a means to protect them. I do not know if there are people with a serious mental illness who do not have impaired decision‑making, but, if they do exist, if such a person is as competent at making a decision as Ms B was, then it seems to us that the same rules should apply; otherwise one is just being discriminatory and rather stigmatising.
Q82 Lord Carter: Obviously this is an extremely complex area. Will the criteria for capacities in the Mental Capacity Bill and in the Codes of Practice help the situation at all?
Dr Zigmond: The assessment of "capacity", I think, is helped, but it is why we would prefer impaired decision‑making: because, as I have said, the definition in the Capacity Bill remains much more to do with thinking ability, with precious little to do with emotion. So if one, for example, has a person who is really quite profoundly depressed and that depression is clearly influencing their thinking, they will understand that they are depressed, they will understand that the treatment might stop them being depressed, but they may, for example, say, "But I am not worthy. I do not deserve treatment." Whether that would amount to incapacity in relation to the definition in the Capacity Bill we have reservations, but clearly they have impaired decision‑making as a result of that depression.
Q83 Chairman: Can I try and narrow down what the College means by "impaired decision‑making"? Supposing you had a patient who was capable of fully understanding that there was a recommendation that they should have some treatment but they were not capable of understanding the nature of the purpose and the likely effect of that treatment which is being suggested, which is an illustration of how broad an impaired decision‑making situation can be, would you say that that person's capacity to make decisions was impaired? They can see the principle, but they do not understand the effect of the treatment.
Dr Zigmond: So long as one is not expecting very detailed understanding, in other words that they understood broadly that this treatment would alleviate their condition and that it would not have significant adverse consequences, and so on, if they were able to understand it at that level, then I think they retain capacity. One has to be able to explain it in a way that there is a duty, as described in the Capacity Bill, to explain it in a way that a person can understand. If they are quite clear that, for example, this treatment is irrelevant, cannot do anything to alleviate the condition and that belief is due to their mental disorder - because what we have said very clearly is it is impaired decision‑making by reason of the mental disorder - then, yes, they would fit that criteria.
Q84 Chairman: Can I go on to something that is in a way related to that? The draft Bill, as you know, makes special provision for electro‑convulsive therapy. In part those arrangements seem to be driven by patients' fears about ECT but in part also by controversy about the efficacy of ECT. Given those concerns, is it the college's view that the Bill should prevent ECT being given in any circumstances, even in an emergency, unless the patient (a) has the capacity and (b) actually agrees with it?
Dr Zigmond: No. We certainly understand the fears that are shared by quite a number of patients, although I do have to say that amongst those patients, or a proportion of those patients who have had ECT very successfully, they do come along requesting it ‑ that is not unusual ‑ but the efficacy really has been established, I think, by the National Institute of Clinical Excellence that has reviewed the position in relation to ECT, has given clear guidance as to which conditions it is efficacious for and which it is not, and under those circumstances it seems to us right and proper that, whilst nobody who retains capacity should ever be forced to have it, and we do not accept that that should be overridden by an emergency because we cannot envisage an emergency which required ECT in which somebody retained capacity ‑ it just would not be that urgent ‑ but where somebody lacks capacity, then, within the clear recommendations from NICE (National Institute of Clinical Excellence), we think it should be available as a treatment, preferably with the authority of the Tribunal.
Q85 Ms Munn: Can I follow up on that in relation to those under the age of 16, because obviously there are quite strong guidelines in the draft Bill about that. Given that, although you are saying the efficacy has been established, there are still understandably lots of concerns about ECT, do you think that anybody under the age of 16 should ever be given ECT?
Professor Bailey: I think the evidence base is difficult, but I think to deny that form of treatment to a very small number of children under 16, and it is very, very a small numbers, would be wrong. In my clinical career I have used ECT in children under 16 on two occasions. It is very rare to do it, but to withdraw it as a treatment, I think, would be unwise.
Q86 Ms Munn: What were you treating and what were the other alternatives? That is obviously the issue. Is it really something that should be used at all?
Professor Bailey: A young lady with a serious mood disorder who had gone into a state of stupor, where all other forms of treatment had been used, where she had a drip to keep her hydrated and where the physio was giving her two‑hourly physio to her legs to avoid deep vein thrombosis ‑ that is the intensity and degree of a life‑threatening condition that I think would warrant that treatment in that age range ‑ and she was able to speak to that treatment and the effect it did have afterwards. I think it is very rare that to deny somebody a treatment, however rare, in rare circumstances would be wrong.
Q87 Lord Rix: Dr Zigmond, you said, if I recall correctly, that people could come along and request to have an ECT. Is that common, and, if they do come along and request it, is it automatically granted, that they are given this treatment, or does a considerable debate go on as to whether it is going to be efficacious or not?
Dr Zigmond: It tends to be people who have had ECT in the past and have recovered very well. In fact, I do not personally recall anybody just asking for it, as it were, out of the blue. Is it common? I suppose that depends how you define "common". I do not believe there would be a psychiatrist that has not had that experience with reasonable regularity; it is certainly not rare. I think it would be discussed with a particular patient as to why they felt it was necessary, and hopefully a consensual decision would be made as to whether it should be given now or whether something else should be tried this time. I think it is very difficult to answer. It certainly would not be a routine finding at the start.
Chairman: Can we move on to an issue concerned with the community treatment. Dr Stoate.
Q88 Dr Stoate: Thank you, Chairman. I am a practising GP and therefore my main interest is treatment in the community for a range of conditions, and obviously I want to raise questions about compulsory treatment in the community. You recommend community treatment orders should only be used whilst a person has impaired decision‑making. How does that get round the current revolving door problem where somebody has impaired capacity; they are treated; their capacity and decision‑making improves; they then decide to stop taking the treatment because they decide they are better; they then relax, go back and we end up perpetuating the system that we have had over many years, which is a real stumbling block for treatment in the community?
Dr Zigmond: I think it is very important to separate medical advice, which, of course, as a doctor, I would urge everybody to take in all circumstances at all times‑‑
Q89 Dr Stoate: Very wise?
Dr Zigmond: ‑‑and personal autonomy, and I think the question demonstrates the stigma which our patients suffer, which is that people constantly fail to follow medical advice in relation to their physical healthcare. The figure I would like to quote was from an article in the BMJ, probably about 18 months ago now, looking at what percentage of patients who had had a heart attack took their statins as prescribed three months later, and the figure was 8%. I have not looked at the figures recently, but some years ago it was true to say that approximately 70% of admissions ‑ I am not talking about under the Mental Health Act but admissions to acute psychiatric wards ‑ were readmissions, which is the identical figure for acute medical wards. The issue is if people are not able to make decisions for themselves, if their decision‑making is impaired, of course we must have a law which enables that treatment to continue in the least restrictive environment, including the community, which, of course, we do not have now; but where people are fully able to make decisions for themselves, I think there should be no difference.
Q90 Dr Stoate: So you firmly believe that, once someone has improved with treatment, it is perfectly okay for them to stop it, even though there is a very high risk of relapse and of them being readmitted, possibly under difficult and very distressing circumstances, which is what often tends to happen in these cases?
Dr Zigmond: I think that, first of all, it is important to have services which support and explain to people why it is necessary they continue their treatment. Some of the recent developments relating to, for example, Assertive Outreach are very valuable for this; services must be accessible; they must be friendly; they must be non‑threatening; but ultimately is it any more distressing than those people who continually are admitted with a heart disease? I do not believe it is. I think the consequences of forcing ‑ having a system which says, "Even when you are well we will continue to force you to have treatment" ‑ the fear that that engenders, and we have seen it in relation to the proposals in this Bill, will be further to drive patients away from the service, which is why we have such difficulty in supporting people. Can I add one thing? As a psychiatrist for many years, I have found that for the first few times patients recover and they stop or reduce their treatment, often, I have to say, because the side‑effects are so unpleasant, and who am I to say they should put up with those side‑effect when they are otherwise well. As an aside, if you take a condition like schizophrenia, we know that within two years 80% of patients will relapse without treatment, but of course 20% will not, so you will be forcing them to have treatment they do not need indefinitely; so it is a serious matter; but, after three or four cycles, people get the message: "If I stop taking the tablets I end up in hospital", and then they can carry on and they carry on consensually, and it is far more effective but essentially there is no difference, I have to say, between my patients and any other patients: they are hopeless at following doctors' advice.
Q91 Dr Stoate: May I say, that is a very good answer and I entirely agree with everything you have said there, but a further point, briefly. You talked about having an increase in help in the community to deal with people. It would mean a lot of support and help in the community. Do you see that in any way unbalancing resources available in the community so that too much emphasis is put on this small group of people that might undermine the service that should be spread amongst a much wider number of people in the community who do not ever come anywhere near the Mental Health Act?
Dr Zigmond: Yes, and if we have an Act which says that the only way to get resource is to refuse treatment, I mean we are in a sorry state of affairs, frankly?
Q92 Mr Hinchliffe: My question might be directed at Dr O'Grady and it is slightly at a tangent to the question from Howard. I recall, probably about four years ago, being in one of the special hospitals and being told by the head of women's services in this particular hospital that the majority, if not all, of the women in that particular hospital could have been treated within the community if there were appropriate provisions, something along the lines that we are looking at here, and also proper support within the community and supervision within the community. In your evidence you state on page 24 that there is currently a shortfall in secure beds; the shortfall is significant at all levels of security, including low secure district level. You go on to say that the proposals in the draft Bill will increase the potential pool of mentally disordered offenders liable to compulsion. I am interested, in particular, as to whether you feel the provision that Howard has just asked about in terms of compulsion in the community could have a bearing in any way on the secure bed capacity, whether you feel, in line with your prediction, that there will be increased pressure on the secure bed capacity that, alongside the legislation, we ought to be looking at how we organise that capacity and broadly what your thoughts are. We are talking specifically about the Act here, but obviously we need to look at the resources to ensure that the Act would be able to work; and, in particular, on the secure bed front, I am very interested in your views on how we can perhaps improve provision alongside improving legislation?
Dr O'Grady: I hope the clinician in Broadmoor publishes the research that is based on, because it will revolutionise psychiatry.
Q93 Mr Hinchliffe: I did not say Broadmoor. It is a nice guess though.
Dr O'Grady: I am not sure that is an opinion. I am not sure there is a body of evidence in support of that. I think the bed‑rock of forensic practice in a community setting is always the relationship with your patient. As one of my patients pointed out, if certain aspects of this Bill were implemented, he would stop seeing me, because he knows I would have too much power. So I think you have to balance the tools you have under the Mental Health Act with the clinical tools, and the clinical tools are the relationship with the patient and the safety of the community which is ensured by that. I think you then have to have a balance, as Dr Zigmond has pointed out, in terms of the compulsion in the community. However, I would point out that if somebody was at a very high risk in the community, in the same way as capacity is determined by the seriousness of the decisions you have to make, if somebody in the community was at such a severe level of risk, then the level at which you would be assessing impaired decision‑making would be at a much higher level than other patients. I think, in practice, I do not believe it would be a problem for the population you are referring to if their decision‑making were the criterion: because, as I have said, the threshold would alter according to the seriousness of the issues you are dealing with. I think that in terms of secure beds, yes, we always need more secure beds, but they are very expensive and the best way of ensuring the best use of those beds is to ensure that there are housing, employment, education, leisure. All those things in the community for mental health patients are actually the services that will prevent most violence and will create more stability. The Mental Health Act will not actually do it. It is that that does the job. Therefore, you start at the bottom with foundations, which is education, housing, employment, leisure, all the things we as human-beings expect in our lives, and mentally ill people expect the same. If you ensure that and build on that foundation and then you build on supported housing, crisis houses and various other services, you will eventually get your secure beds and make the best use of them without having to increase them substantially.
Q94 Mr Hinchliffe: Can I press you further on this. One of the problems that I have in looking at your argument over the increased demand for the use of secure beds is that when my committee, the Health Committee, looked at the system of the use of secure beds we found, wherever we looked, that there are people occupying beds within a system, whether it be in prison, within special hospitals, within regional secure units, who really ought to be in another part of the system?
Dr O'Grady: Yes.
Q95 Mr Hinchliffe: That is a huge problem for our mental health system. Do you see there is anything in this draft legislation that will ensure that we have a more appropriate use of the different parts of the system compared to what we have at the present time?
Dr O'Grady: I think forensic psychiatrists very much welcome the vastly increased flexibility within Part III of the Act which allows community treatment for offenders in contrast to Part II of the Act and increased flexibility in terms of reporting, etcetera, so I think that that will have an effect and is a very welcome addition to the new Act. As I said, I think that legislation in itself does not ensure services. I would agree with you; I think if we were taking a proper approach to the whole of secure services, you start with foundations, as I said, with the community part of the service and work your way up rather than starting at the top and working down, which unfortunately is the way that services have been approached traditionally, but I do think that Part III of the Act, relating to mentally disordered offenders in the way it has been drafted will have a beneficial effect for mentally disordered offenders as it increases the flexibility for the courts and the number of options available to mentally disordered offenders.
Chairman: Mrs Browning, perhaps we can step into the Bournewood swamp!
Q96 Mrs Browning: You very kindly sent us a very helpful further memorandum on 19th October on the Mental Capacity Bill, and particularly your notes on Bournewood, I think, were very helpful. Can you tell me, as you see it now, given that we do not yet know, whether the Government is going to seek to close the Bournewood gap through the Capacity Bill, the Mental Health Bill or any other method, but clearly they have got to do it. Given that those same two sets of legislation, when they are enacted, could possibly apply to the same person, how do we differentiate? Which is the most appropriate legislative framework to apply?
Dr Zigmond: As you will have gathered, I am moderately confident in all sorts of areas, but you have certainly found an Achilles' heel. Patients and the vast majority of carers would always prefer to be subject to capacity legislation because it is so much less stigmatising. No question that we would prefer Bournewood to being dealt in the capacity legislation. As for the relationship between the two, if I assume for a moment that there will be the same safeguards in both ‑ I think I have to make that assumption ‑ I can only describe it as potentially a mess. If you wish, I can give what I think are three possible scenarios, and they are the only three that I can think of. One would be that the Mental Capacity Bill would deal with all those people who lack capacity or have impaired decision‑making, leaving the Mental Health Bill for the forced treatment of people who retain capacity. That would at least be a start. So that is one option. Second, would be that the Capacity Bill could be for those who are compliant, with the Mental Health Bill being for those who resist treatment. The difficulty with that, if I may give you quick example: supposing I make an advance directive that should I develop Alzheimer's disease I would not wish, once it was advanced, to have any further treatment? If I develop Alzheimer's disease but, having done so, I am compliant, then I would be dealt with under the Capacity Bill and my wish would be honoured, but if I resisted any intervention, then I would be dealt with under the Mental Health Bill and treatment would be forced on me, which is a rather odd quirk. Another option is that the Capacity Bill deals with physical illness, the treatment of physical illness, and the Mental Health Bill deals with the treatment of mental illness, and that in some ways is what we have got now. That presents all sorts of difficulties. Two quick examples. One is that sometimes there is no real difference between the two ‑ for example, thyroid disease can cause depression ‑ so it is rather confusing. But again, if I may just turn to somebody: let us say a patient with Alzheimer's disease who requires dental work, which is the example often used. They have to have the dental treatment under one Act but the treatment for the Alzheimer's under another Act, which is a recipe for confusion. So we do not have an answer. What we have clearly recommended is that the Mental Capacity Bill should complete its passage through Parliament so that there is a clear understanding of its provisions, and then one should look again at a Mental Health Bill to see what, if anything, is needed.
Q97 Mrs Browning: Can you tell me, in your experience how frequent do you think cases such as Bournewood are?
Dr Zigmond: Could I turn to this colleague in relation to learning disability, and I do not have an old‑age colleague, but my understanding is that they are very common.
Q98 Mrs Browning: Before you reply, could I just add this. You have just mentioned learning disability. For the purposes of the existing Act, autistic spectrum disorders are not regarded as a mental problem as such. It does not come within the scope (ASD) of the 1983 Act. Do you regard ASD as a learning disability, because clearly there are people with an ASD diagnosis who would have a learning disability but we have this spectrum of people, certainly some with very high IQs above 70, some also might have an ASD diagnosis and have a diagnostic mental health condition overlying it, but we do have this difficulty with ASD. So when you reply I wonder if you would give me your view specifically on where you see the ASD spectrum comes within this legislation, because, personally speaking, I would not categorise it specifically as a learning disability per se?
Dr Zigmond: Could I answer that one point. I heard you say it a week ago when I was listening. The current Act defines "mental disorder" because it includes any other disorder or disability of mind. So I am not sure that I would share your view that autistic spectrum disorder per se is excluded from the current Act. If you are saying that by and large such people are not made subject to the Act, then, of course, we would say, "Jolly good thing too", but I just, as it were, correct the issue whether they could be.
Professor Bailey: In certain individual casework where we have been dealing, for example, particularly with adults in some of the complex cases, we have always maintained that ASD is not by definition in itself a mental disorder?
Dr Zigmond: I accept that.
Chairman: Before Professor O'Brien makes a comment, I know that both Lord Rix and Lord Carter would like to make short comments and then maybe you could respond.
Q99 Lord Rix: In your earlier response you said you would like to see the Mental Capacity Bill passage go through both Houses and then the Mental Health Bill would be, as it were, re‑written in the light of the Mental Health Bill, and yet in your recommendations here on page 29 you say that the rights and safeguards should be the same under the two bills. Would you not think it necessary for us, the Commons and the Lords, to try and get amendments already into the Mental Capacity Bill so that we anticipate the Mental Health Bill when it eventually comes onto the floor of the House?
Dr Zigmond: Yes, I think it is very important that the safeguards as are necessary in relation to Bournewood, and we would think are necessary in any event for non‑consensual treatment, should be in the Capacity Bill.
Q100 Lord Carter: You described the complications of the overlap between the two bills quite well, but is it not much more complicated than you said, because there will be a Mental Capacity Act by next March. We do not report until the end of March. The Government has to respond, has to draft the Bill. In my view, even if the first session of the next Parliament, if there is an election in the Spring, will be an eighteen‑month session, it will be well into 2006 before there is a new Mental Health Act. It could even be squeezed into the 2006/7 session. From March you will be working with a Mental Capacity Act and the 1983 Mental Health Act. That is a situation you have to deal with, not just with Bournewood but with the whole area of your activity. How do those two relate?
Dr Zigmond: It is very difficult, and it is difficult to answer, as I say, until we know the provisions of Capacity Act. The clinical issues have, of course, been thrown in the air in any event because of the opening court judgment on Bournewood, so I am just not sure that I can give a clear answer.
Q101 Chairman: I was looking at our specialist advisers. I think this may be the sort of very thorny issue that our specialist advisers might consider for us. Professor O'Brien.
Professor O'Brien: Shall I address both the issues of autism spectrum disorder, learning disability and also the Bournewood?
Q102 Chairman: Yes.
Professor O'Brien: On the issue of autism spectrum disorder and the Act, in the current Code of Practice in the current Act we are directed to code autism as a mental illness. That is the current Code of Practice and that is quite clear. If people are detained on that at present, they are categorised as mental illness and is something that we are directed to and is not supported either within the profession or within the broader community. So it is one of the problems which we have to rectify. In terms of the Bill, the Bill as we support it with the broad definition and strict the criteria, that includes autism when the person requires detention. So if there is a broad definition and strict criteria, that effectively deals with autism and very well. As for is autism spectrum disorder a learning disability? No; it is a different sort of problem. Of course, as a learning disability psychiatrist I see many more people with autism than anyone else does. Ten per cent of people under 70 have autism. However, it is not a learning disability. It is not a mental illness. It needs to be dealt with, and, with the broad definitions and strict criteria, that deals with it. On the Bournewood issue, MENCAP gave a very cogent, a very clear repost to the European ruling and they give the figure of 50,000. We have discussed that within our faculty within the college and I have also discussed it with colleagues in the British Psychology Society, and we recognised that figure. This is an accurate pragmatic figure for the UK: 50,000.
Chairman: Can we move on to another important issue relating to children and young people.
Q103 Mr Howarth: You draw attention in the evidence to a significant resource shortfall in specialists who are involved in the assessment of children and young people. You also recommend that suitably qualified specialists should be involved at every level in the treatment and assessment. If there is a shortfall of those suitably qualified professionals, clearly the two things are not going to match up; there are not going to be enough people to do the job that you would require. So perhaps you could comment on the problems of resources, but also can you explain why it is that the treatment of children and adolescents does require a different kind of treatment?
Professor Bailey: If I take your first point that we argue that we need specialists at all levels to undertake this important work and yet we are all aware of the resource shortfall, at least in England we do now have an NSF going into implementation, and, added to that, we are enthusiastic about new ways of working that specialists are going to have to use their expertise in particular ways. So we are aware of the pressure, but we still think that the issue stands. In terms of why we need specialists, I think it is important to make analogies with the physical healthcare of children, as NSF did. So child and adolescent psychiatrists working with multi‑disciplinary teams in child analysis mental health services, like paediatricians, are working with 20% of the population, children and adolescents, who from infancy to eighteen are going through the most unique and major maturational changes, whether it is around physical growth, emotional and psychological or intellectual growth, and it is these developmental contexts that is the major driver and the strongest influence to the way in which illnesses present the prognosis and the treatment requirements. Beyond that, we are in an important context. Our work is set in the context of hopefully working with families and looking at the child/parent relationship. We have a different set of contexts in terms of other important legislation, in the Children Act, the new Children Bill, and other partnerships with social care, with youth justice and with education. The whole structure and framework is different. In terms of the disorders, we know that some psychiatric disorders, like paediatric disorders, are unique to childhood. This is not reflected in this international classification of diseases or any other we are going to get for the next 10 or 20 years. They only occur in children or adolescents. A lot of disorders predominantly have their onset in childhood and adolescence and we have a major role in prevention. ADHD, attention deficit hyperactivity disorder, although it occurs in adulthood, is primarily an issue in childhood. Conduct disorder can only occur in childhood, by definition, but only six per cent of these children go on to have adult antisocial personality disorder. Psychiatric disorders in childhood are complex. There is often more than one diagnosis, with one part of the illness having a prominent effect on that child's life, on their ability to function. It waxes and wanes. Even where we share psychiatric disorders across the seven ages of man, the presentation, the aetiology and the treatment needs are different. Depression in childhood is environmentally driven up to the age of ten. In adolescence, it does have genetic factors, but it has different treatments, different needs, different approaches. Post-traumatic stress disorder is radically different in its presentation in children and in adults. Perhaps we come nearer to issues around detention and compulsion, early onset psychosis in adolescents has a long lead-in period. It is very good at mimicking all sorts of other disorders, where you need expertise to recognise when to make that diagnosis and when not to, given the implications for that person's future. That would be my case for saying that this is different and it needs a different specialist approach. We have a higher training of three years to become child and adolescent psychiatrists. Our training is respected across European as being good training. We need life long specialist training. We are giving specialist section 12 approval training to child and adolescent psychiatrists to deal with these issues of compulsion with the current Act, to work with our adult colleagues. Therefore, that is the reason it is a specialist area. We recognise the importance of training with general practitioners.
Q104 Mr Howarth: If there is a shortfall, what is the scale of that shortfall and, given the long lead-inspectors for training that inevitably apply in these cases, how long would it be likely to take to be able to train young people to bridge that gap?
Professor Bailey: The whole of the children area is set in a ten year context and higher psychiatric training is three years. Therefore, it is going to take us at least, three, four or five years to embed and encourage people to be recruited into this specialty. One of the issues at the moment is that we have new ways of working. We are looking at recruitment, but many of the core things of this Bill are mitigating against recruitment.
Chairman: What you have highlighted is one of the many resource issues which we are going to have to ask the Department of Health to deal with for us. You have had notice of the particular questions we had in mind so perhaps you could write to us further if there is anything you would like to add to what you have already said in relation to the other questions, but I think we ought to deal with the interface with the criminal justice system.
Q105 Baroness Pitkeathley: Could I ask you about the bit in your written evidence in which you express your reservations about the court having a sufficient level of expertise and experience to enable them to scrutinise care plans? Are you suggesting that, under the draft Bill, there would be inadequacies in the way the courts deal with people with mental health problems, even though there is a provision for them to be able to appoint members of the expert panel? Secondly, could you say a bit more about the recommendation that you make that all care plans should be subject to mental health tribunal scrutiny after a defined period and could you perhaps give us some indication of what that defined period might be?
Dr O'Grady: There are two aspects to the courts' decisions. One is the decision whether to make use of the Mental Health Act and to detain or not. Very clearly, the court is in a perfect position to do that, having heard all the evidence, having medical and other reports. Rather than talking about the court not having the right level of expertise, I would put it more positively. The Mental Health Act in its draft form at least, in relation to mental health review tribunals, properly puts in three members. It very properly looks at treatment in the wider sense, not just mitigation but psychological treatment, habilitation, rehabilitation and all aspects of a patient's care. If it is right for most patients when they look at a care plan to have that level of specific expertise in the mental health review tribunal to address a care plan, why is it different in part three? It puzzles us. It does not make sense and there does not seem to be any particularly practical reason for it. The court's main determination is: is a mental health order the best disposal for this offender and is it in that person's interests and in the interests of society to proceed in that way? That is their expertise. Why get the court involved in looking at treatment issues when you have a much better system in the Act in relation to mental health review tribunals? An obvious way of doing it would be to parallel the procedures for part two and simply give the courts the job of determining the detention and, say, 28 days later asking a mental health review tribunal to address the care plan that the care team draws up. Given that it is a very positive aspect to the Bill that you have mental health review tribunals properly addressing care plans, why not apply that to mentally disordered offenders?
Chairman: I have a special request from one of the Members of the Commons who is on the Committee which I take to be a declaration of the greater importance of our meeting than Prime Minister's questions. We will also take a question about clinical supervision because I think it is a very important issue that should be dealt with, even if briefly, face to face.
Q106 Dr Naysmith: It is the question of the draft Bill proposing the role of a clinical supervisor. In your evidence, you rather suggest that only psychiatrists could properly fill this role. There is evidence from the British Psychological Society which says the opposite. It says that they could fulfil that role as well. If a psychologist meets the required competences, why do you think he or she should be prevented from becoming a clinical supervisor?
Dr Zigmond: I must not have written that particular bit as well as I thought I had. We have no difficulty at all. We are sure that clinical psychologists are well able and have the skills necessary - or will have with appropriate training - to fulfil the general functions of a clinical supervisor. We raise just two issues. The first is that whilst we do not really understand why it is clear from the Bill that only registered medical practitioners are deemed - maybe due to their medical education; I do not know - to be qualified to assess whether a person meets the definition of mental disorder and the conditions required to make them subject to compulsion. If only a doctor can do that in the first instance and given that one of the obligations of a clinical supervisor is to keep under constant review whether a patient continues to meet the criteria, we are not quite sure how somebody who is not deemed competent to assess if somebody meets the criteria can decide that they continue to meet them.
Q107 Dr Naysmith: Do you think that is a valid judgment, that only you can do it?
Dr Zigmond: We are not sure at all that it is a valid judgment.
Q108 Chairman: I do not want to be too forensic about this important question but when you say you are not sure that it is a valid judgment that may be another double negative as appears on page 20 of your document. I wonder if what you are really saying is you are perfectly sanguine about the judgment that is implicit in Mr Naysmith's question.
Dr Zigmond: Correct. There is an infrastructure problem. At the moment, clinical psychologists do not provide 24 hour, seven day a week cover and responsibilities. That would need to be addressed because it is essential in order to fulfil the responsibilities. It is those practical reasons. It is not anything that suggests they are intrinsically not able. We think they are.
Chairman: Thank you very much. We cannot deal with absolutely everything. We have dealt with most things. We are very grateful to you for giving us such clear and helpful answers and, if there is anything you would like to add, please let us know in writing.
Memorandum submitted by the Institute of Mental Health Act Practitioners
Examination of Witnesses
Witnesses: Mr Yens Marsen-Luther, CEO, Ms Jennifer Scudamore, Chairman, Mr Guy Davis, Honorary Treasurer, and Ms Melanie Woodcock, North Thames Regional Group Chair, examined.
Q109 Chairman: Can I welcome you to the Committee? I should tell you at the outset that the evidence you give will be recorded and a transcript will be placed on the internet. You are perfectly free to make textural connections to the transcript but not corrections of substance. If we do not cover everything that is in your written submissions, which have been very helpful, because of pressure of time, please feel free to write to us. We have two specialist advisers, Professor Fennell, who is a legal expert, and Professor Burns, who is a professor of community psychiatry, with whom you may communicate too. I think you have been discouraged from giving an introduction but if you feel absolutely compelled to do so please do. Which of you is leading the team?
Mr Marsen-Luther: Myself.
Q110 Chairman: Perhaps you would introduce your team or ask them to introduce themselves?
Mr Marsen-Luther: Thank you very much, my Lord. My name is Yens Marsen-Luther. I used to be a mental health hospital manager and I retired from the NHS. I have been a Mental Health Act Commissioner for nine years and I was a founder member of the Institute of Mental Health Act Practitioners, of which I am now chief executive and have been for the last five years.
Ms Woodcock: My name is Melanie Woodcock. I am Mental Health Act manager for Central and North West London Mental Health Trust and I am also the chair of the North Thames Regional IMHAP Group.
Ms Scudamore: My name is Jenny Scudamore. I am Mental Health Act manager for South West London and St George's Mental Health Trust. I am also chairman of the Institute of Mental Health Act Practitioners and a Mental Health Act Commissioner.
Mr Davis: My name is Guy Davis. I am Mental Health Act manager in Eastland and Inner City Mental Health Trust. I am a former community psychiatric nurse as well and I am currently treasurer of the Institute of Mental Health Act Practitioners.
Q111 Laura Moffatt: Welcome. I want to return to the issue that we were raising with those giving evidence before and that is the definition of the Mental Health Act and what constitutes treatment. You are quite clearly critical of the way that appears in the draft Bill. If you are critical, how could you change that?
Ms Woodcock: We would support the view of the Royal College. We think in the draft Bill that the current definition is much too broad. What we would like to see is a much narrower definition of mental disorder. We would be suggesting that the term "mental disorder" means mental illness and mental impairment and then for there to be a definition for each of those. The definition for "mental illness" would be a state of mind which affects a person's thinking, perceiving, emotion or judgment to the extent that he/she requires care or medical treatment in his/her own interests or the interests of other persons. The definition of "mental impairment" we would want to see meaning to denote any state of arrested or incomplete development of the brain which adversely affects intelligence and social functioning and is associated with abnormal, aggressive or seriously irresponsible conduct. In addition to that, we would also agree with the Royal College's view that we would not want to see anybody being treated as suffering from mental disorder purely for reasons of things like personality disorder, promiscuity, moral conduct etc., the ones outlined in the draft Bill.
Q112 Laura Moffatt: Do you also agree on their views on Asberger's syndrome and also with the definition of alcohol and substance misuse, because obviously we have concerns about that?
Ms Woodcock: Yes, we would.
Q113 Baroness McIntosh of Hudnall: Can I pick up on this issue about substance misuse? We have heard conflicting evidence about whether or not mental health practitioners under the current Act have used the exclusion that is specific in the 1983 Act in respect of alcohol and substance misuse to avoid treating people who have mental disorder. What is your view about whether or not that has been the case?
Mr Marsen-Luther: I think we are very aware that most general psychiatric units or mental health units have beds specifically set aside for treatment of people who are suffering from drug or alcohol induced psychosis. Therefore, we do not think that generally speaking consultants have refused to treat or recognise the mental health aspect that some alcohol or drug abusers suffer from. The fact is that it is a matter of judgment and it is their judgment as to whether it is primarily a drug abuse or alcohol problem or whether they have an overriding mental health problem that might have been started off by that and therefore we do not agree with the Department's contention that there is a need to exclude abuse or to include alcohol or drug abuse.
Q114 Chairman: You feel there is sufficient flexibility in the system as it operates currently for the exclusions to be retained?
Mr Marsen-Luther: Yes.
Q115 Chairman: You would reject the implication of Lady McIntosh's question, which I think is a very important question, that the exclusions are used as excuses sometimes to close the gate on people who need treatment?
Mr Marsen-Luther: Yes. We are dealing with a service that is human. We are not saying that it does not happen on the occasion but I think here we are talking about locking people up and treating them against their will when only a small minority of cases may be slipping through the net. We do not think it is right that the majority of people who choose to abuse alcohol or drugs find themselves becoming subject to the Mental Health Act. That is not what the Mental Health Act is there for. It is there for people who have mental illness.
Q116 Baroness McIntosh of Hudnall: May I ask you the same question that I asked the previous witnesses? Is it the case that you would specifically like to see, on the face of the Bill, not only the exclusions which are in the current Bill but other exclusions as well?
Mr Marsen-Luther: Yes, I think so. I do not think that we have addressed this in our submission but I think we have general support for the idea that there should be principles on the face of the Bill.
Q117 Lord Turnberg: I would like to come to the specific issue of non-resident patients. In your submission, you indicate that the conditions which should be imposed on them should be specified. Why do you say that and what conditions do you mean?
Mr Davis: I think the issue of compulsory orders in the community is a big one in itself. We have heard from the previous witnesses about some of the problems attached to that regarding people's autonomy in choosing what treatment they do and do not have or what advice they do and do not take. As far as the conditions themselves go, the fact that the Bill does not specify what those conditions may be or what they may not be is to be regretted. To give an example, we could have a situation where a condition of non-residency is that the patient takes their medication. Fine. Another condition could be that they reside at a particular place. Another condition could be that they are inside their place of residence during night time hours. They are not allowed out, a curfew, if you wish. Then you could go all the way and say they are not allowed out of their house at all. They have to stay in there 24 hours a day. They are not allowed to go out to a certain place to buy drugs or go to the pub and essentially they are under some form of house arrest, if you will. If the Bill is going to say, "We are going to impose conditions on people who are non-resident but subject to a compulsory order" I think the Bill should be saying what those conditions may or may not be. I am not sure that we are in a position at the moment to say what those conditions should or should not be.
Q118 Chairman: This is a difficult issue. If the choice for the patient is between being detained in a secure psychiatric hospital and being effectively detained in what may be the greater comfort and flexibility of their own home, is not the detention in their own home, for some patients at least, a preferable option?
Mr Davis: Certainly most people would prefer that they were in their own home rather than in hospital but I am not sure whether people would be happy with the concept that they were actually detained in their own home.
Mr Marsen-Luther: There are serious bed shortages as far as mental health services are concerned. What we are talking about here is a bed shortage on a ward where a clinical supervisor, under this Bill, could say, "Right, you are going home because you have a home to go to, but the condition I am going to place on you now is that you are not allowed to leave home." That is still preferable in most cases to being on a ward. The next thing that you have to think about, if you are going to allow clinicians the authority to say that to people, is what is the impact going to be on carers. They then are going to have to police and report back if those conditions are not being applied. It is not good enough.
Q119 Chairman: Can it not be dealt with in the code of practice?
Mr Marsen-Luther: Yes, it could be dealt with in the code of practice but we are very keen that reference should be made here to the code of practice. We are very aware that the current Bill does not support the implementation of the code of practice in all cases. It gives people the option of opting out for groups of patients and we do not think this is good enough. If you strengthen the code of practice in the Bill, we would be quite happy for you to say, "All right. Guidance will be set in the code of practice which will ensure that people's homes are not used as alternatives to hospitalisation because of bed shortages. I think this is the reason why we feel very strongly that you need to take this issue into account and you need to ensure that it is sufficiently tight not to be abused.
Q120 Lord Turnberg: I wonder about the practicality of putting these sorts of qualifiers in on the face of the Bill and how one might do that. That aside, maybe there is a way. It does seem to me that you are saying that you would not want the community to be an extension of the ward simply because there were not sufficient beds and that there would be a good reason for discharging someone home because they were better treated at home rather than in hospital; and it was not simply a matter of using a bed outside the hospital as a bed because there is not one in the hospital. Is that what you are saying?
Mr Marsen-Luther: I think we are but I think we are also saying that we are very aware that section 17 leave is currently being used as a way of freeing up beds in hospitals. If you are going to have and if you are going to give the authority to clinical supervisors to subject people to certain conditions in the community and make sure that they continue to receive treatment, you are opening a Pandora's Box unless you ensure that there is a lid on the breadth of authority that you are giving them. We would look to you to be doing that.
Q121 Tim Loughton: Effectively, the way it is structured, somebody could be treated by compulsion at home and, at the whim of the availability of beds, treated by compulsion in a secure unit and, at the whim of beds, treated back home without any difference in the condition of that patient's medical position at all. Do you foresee that is going to happen? What is effectively the difference between what is being proposed and an ASBO?
Mr Marsen-Luther: That is what we would like to know really. We do feel that it is an ASBO really or it is the same as. We are not going to suggest that you are going to tag mental health patients. We hope you will not. The fact is that it is very similar and that is of real concern. If you are detaining a patient and forcing them to have treatment, they should be in a therapeutic environment that can monitor that treatment very carefully. You cannot monitor carefully and closely treatment being provided at home. The other issue is that I think you also need to take the carers into account. What a dreadful position to be put in when you get this loved one back at home and they have what may, in some cases, seem unreasonable conditions put on them because of the risk element and the carer has to ensure that those conditions are applied. I would just ask you to please get your advisers to tell you how to put a lid on it.
Q122 Lord Rix: I was going to say you are turning carers into prison warders, basically, which is absurd because they cease to become carers as such. Would this not fall foul of the present legislation in England of when is care care and when is nursing nursing if people are discharged home? Would they have to pay for their care if they had sufficient funds or would they be receiving nursing with their carers appropriate to their condition for free on the National Health?
Mr Marsen-Luther: I think you make a very valid point. My understanding is that while they are subject to detention, albeit at home, or to treatment at home, they will not have to pay for their care. The point that you make is a very good one.
Chairman: It is a characteristically good point by Lord Rix but it is not one you can answer. What has been said may well be right in some cases but would it not be right to say that there are going to be some cases where you will have willing carers who want to play an active part in the permanent return of their loved one to every day life at home; and who may be far better than some clinicians at playing an active part in the care plan and its every day application? Therefore, one must have a degree of flexibility to enable it to occur in those cases. If so, is not the code of practice a useful place to incorporate this kind of potential care plan for individual patients? I merely ask as devil's advocate, not as an expression of opinion.
Baroness Pitkeathley: Many of the carers will have been doing that for years anyway, long before the hospitalisation.
Q123 Dr Naysmith: What do you think the reason for these proposals being there is? Do you think it is perhaps, as you were suggesting a little cynically, that it will save the National Health Service money or do you think there is, as the Lord Chairman was suggesting, the potential of using it for therapeutic benefit in some situations?
Mr Marsen-Luther: Quite clearly what we have in mind is the best outcome for the patient and we absolutely acknowledge that in a lot of cases that is care at home if they can get it. What we are terribly concerned about is that at the same time in this Bill the proposals get rid of the opportunity for the nearest relative to discharge the patient if they are not a danger to themselves or others, which we have said in our submission we think is throwing out the baby with the bathwater. If you have a Bill that does that, you tend to be a little cynical when it comes to suggesting the patient should be treated at home under conditions imposed by the clinical supervisory. We absolutely acknowledge that there are many carers, many relatives, who would be delighted to have their loved ones at home and to care for them but we do think that the conditions should not just be whatever somebody chooses so that the system can be abused.
Q124 Baroness Eccles of Moulton: I have a point of clarification on the distinction between compulsion and being forced to take your medication. Presumably, if somebody has been released from hospital and is back home, in the community under a compulsion order, it is not possible for the medical staff who will be supervising that compulsory order to forcibly make the patient take medication if they refuse. Therefore, they would have to be returned to hospital. Am I correct?
Mr Marsen-Luther: You are correct but not necessarily. Under the new definition of "hospital", it does not have to be an in-patient hospital. It could be a unit that provides services in the community. They would be taken from home, have their injection in a "hospital setting" and then be returned home possibly.
Q125 Baroness Eccles of Moulton: If they would not go willingly, they would have to be taken by force to have the forced treatment in an out-patient situation?
Mr Marsen-Luther: Yes.
Chairman: Can we move now into what I call the minefield question, because it is exercising a large number of Members of the Committee?
Q126 Dr Naysmith: You said in your written evidence that the interplay between the different statutory and common law schemes is a potential minefield that could take years to resolve and be very expensive for health care providers. I imagine since you wrote that there have been developments. How would you integrate the draft Bill and the Mental Capacity Bill in order to avoid this minefield?
Mr Marsen-Luther: That is really a million dollar question that nobody who has been before you yet has managed to answer.
Q127 Chairman: That is why we keep asking it.
Mr Marsen-Luther: We also do not have an easy answer. Obviously, we have heard the submissions that have been made etc. In the brief discussion that we have been able to have since seeing your questions, we very much felt that for those people who suffer from long term incapacity they should be dealt with under the Capacity Bill because we think that if you have enduring lack of capacity the Capacity Bill is a Bill, once it has been amended and beefed up to meet the HR requirements, that is the kindest way of dealing with people who lack capacity. The real minefield of course is those people who have perhaps temporary capacity problems, perhaps wavering capacity. There we think that, because of the clinical staff that you have in hospitals, perhaps the Mental Health Bill is a better place to place that form of incapacity. Having listened to the submission this morning, there are various degrees of capacity. With people who do not have a permanent capacity problem, there should be a regular review of the individual's capacity. I think that could be much better provided under the Mental Health Bill than it could be under a Capacity Bill. I may be mistaken. We have only had a brief debate about this.
Q128 Dr Naysmith: What would you think would be the drawbacks to all patients without capacity who were being treated under the Mental Capacity Bill?
Mr Marsen-Luther: I think you are introducing elements into the Capacity Bill which have to deal with other issues than capacity. If you have various degrees of capacity, I think the Capacity Bill is to deal with a large swathe of people who have lost capacity either to control themselves or their lives or their money or whatever. That is a long term issue. As soon as you introduce short term issues into the Capacity Bill it will unnecessarily complicate it. For example, in terms of reviews, you may decide that in the Capacity Bill - and to be quite honest I have not been concentrating on that; I have been concentrating on the other 300 pages - you may have a six monthly review of somebody's capacity, their treatment and their care plan etc. For people who have an intermittent capacity problem, that is not sufficient and you need very many more reviews to be built into the system.
Lord Carter: I want to make the point that I made to the previous witnesses, which I think you heard. There will not be a new Mental Health Act for probably two or three years. In that case, you will have to deal with the Mental Capacity Act from next March and the existing 1983 Mental Health Act. As parliamentarians with the Mental Capacity Bill now in front of the Commons and then the Lords, should we be looking very carefully at the relationship between that Bill and the 1983 Act to see if amendments can be made to the Mental Capacity Bill to take care of the situation until we eventually get a new Mental Health Act?
Q129 Mrs Browning: For clarification, the Mental Capacity Bill has a presumption of capacity. That presumption is based on a particular circumstance and a particular given circumstance in which a decision is made. The idea that we review every six months is not the ethos of the Mental Capacity Bill; it is that one presumes capacity and where there is fluctuating capacity or degrees of capacity it is based on the individual circumstances of a particular decision to be made at that point. When we took evidence in the draft committee stage of the Mental Capacity Bill, some of the most enthusiastic people for advance decisions were the professionals who deal with people with mental health conditions, who Lord Carter will recall, were very enthusiastic about advance decisions because they could see something that they thought would be helpful to them, for example, with a schizophrenia patient where, in their periods of capacity, they could get an advance decision from them in terms of how they would be treated during their periods of incapacity. They were really up for those advance decisions. They were the most enthusiastic group we interviewed.
Mr Marsen-Luther: To be honest, I am sure that you will come to a far better decision at the end of the day than we can offer you. I would like advance directives to be able to be made within the mental health field and perhaps the Capacity Bill can lead the mental health field into considering that. I will watch it closely.
Q130 Mr Hinchliffe: You are quite critical of the proposals to get rid of the Commission and to replace its function by CHAI. Do you not feel that there could be positive advantages with the new organisation providing the funding for mental health being ring fenced, in that that organisation will be in a position to make wider links within the health service than perhaps the Commission has not done so far?
Mr Marsen-Luther: I hear what you say. The nub of the argument is that when you are dealing with constitutional rights is the most appropriate body to join up with a body that deals with mental health policy etc. I think that we feel very strongly that the constitutional rights of individuals, where quite clearly the power is being handed to clinicians to deal with - a lot of power - this needs to be monitored and reported on by a specialist committee. We rather fear that the Health Care Commission or CHAI will be sending out a myriad of reports to all hospitals. This issue is one not of whether the service is good or not; this issue is about monitoring how the Mental Health Act is being implemented. It should be concentrated on monitoring the implementation of the Act. In the past, the Commission has tended to spread its wings a bit. We have looked at environmental issues etc., and I think that has, in a way, undermined the Commission albeit it has improved patients' lives. I know it from both sides of the table. When we have had Commission reports that have been very critical of the facilities, people have been told to sort it. That has been very effective in helping to improve conditions for patients that are detained and informal patients, but that is not the central issue really that the Commission is about. You are talking here about a Bill where you have got rid of the discharge rights of hospital managers, where you have got rid of the discharge rights of the nearest relative, where you have got rid of during a six month period the ability to appeal against continuing detention. What you have put in its place in this Bill is a mental health tribunal that is constrained in the decisions it can make because, so long as people meet the criteria, it has no option but to say that they should be detained in hospital or in the community. You have had numerous reports and submissions that have made it quite clear to you that the criteria that the current Bill proposes are so broad that we could all meet up one day. It is desperately important that if this Bill is going to go forward - and of course some of us think it would be better for it not to and for the 1983 Act to be amended - you do need, with all those powers vested in relatively few people, a body that has that sole purpose: to make sure that people's human rights are not being abused.
Q131 Mr Hinchliffe: One area where I may differ with you is that I was struck by your answer on the issue of community treatment and the pressure on beds. The worry I have about your evidence is it is very bed and hospital focused. Perhaps I would differ with you on the Commission issue in that I feel it would be very helpful if the new body took a somewhat wider view, taking account of the constitutional points that you have raised, because if we are looking at the shortage of beds the shortage of beds is very much in many areas down to the fact that we have failed to develop the wider services that prevent people having to come into hospital. I see from area to area very marked differences. Do you not feel there is a role there for CHAI to perhaps have that wider perspective that will enable us to develop those alternative services that we are desperately crying out for in some areas that could avoid people being put under compulsion in the first place?
Mr Marsen-Luther: Yes. I do not think we are poles apart because if you are looking at detained patients, what treatment they are getting and how appropriate is it for them to be detained and what outcome are we getting, we would certainly say that the Mental Health Commission body successor should be visiting proactively both in the community and in hospital. That is something that we are absolutely committed to. Currently, the Bill does not under CHAI give it sufficient rigorous powers to ensure that it can carry out, let alone its core function - which is making sure that the Act is properly applied - let alone the broader function that you wish to see. We have to be absolutely up front here. The fact is that the budget, although it has been increased recently, is still pitiful for the job it has to do. When you are considering this Bill or any future legislation, I hope that you will remember that, if people are going to have their rights taken away and they are going to be treated against their will, there must be a specific body that monitors how that is being done and the effects of it.
Chairman: There is something that one might view as an idiosyncrasy in your submission that Mr Loughton would like to deal with.
Q132 Tim Loughton: Why do you not like advocates?
Mr Marsen-Luther: We do.
Q133 Tim Loughton: Why do you not foresee a role in the Bill for them as it is laid out?
Ms Woodcock: In our discussions, when we received your questions, we want to make clear that we do support the introduction of an advocacy service but not in the format that is described in the draft. As it is in the draft, we think it is going to introduce a two tier level of advocacy because, as it reads at the moment, it appears that the advocacy service being suggested is about an advocate who will describe and explain to a patient their compulsion and treatment a clinician wishes to give them. If we have a situation perhaps where a patient wishes to have advocacy advice around other issues such as benefits and welfare issues, they then would have to approach a second advocate to receive such advice. We would really wish to push for a well trained, skilled, knowledgeable advocacy service that can provide an all-encompassing service to patients so that it does not become confusing for them and they are not having to approach different advocates for different reasons. Also, if you add a potential third tier, it is the legal advocacy. Patients are appealing to tribunals. Most patients would have a solicitor or legal representative so you are then adding another person into the equation. We do support the role of advocacy very strongly, but a better service than is described in the draft Bill at the moment.
Q134 Chairman: It is an issue of organisation.
Mr Marsen-Luther: Yes. It is a matter of not introducing yet another tier of specialists who only deal with one thing. I think you will understand that if you are in hospital confused and ill the last thing you want is somebody coming along, introducing themselves as a Mental Health Act advocate, telling you what your rights are under the Bill and what is going to be done unto you, having already heard that because the managers have a responsibility to do that as well in the Bill. If they strike up a conversation and say, "Yes, but I am really worried about my cat at home" or, "Can you help me with this?" they are told "No, you must see the other advocate for that. I do not deal with that."
Q135 Tim Loughton: You draw attention to the fact that you would need to have extensive training and considerable payment but do you not fear though that what we have at the moment is a complete fudge because we have a very patchy service of unpaid advocates who are highly stretched? There is a suspicion that what the government is trying to do is to beef up the advocacy service in order to minimise the legal services. What we really need is a beefed up advocacy service not in place of but complementary to and it needs to be streamlined. Certainly we are not going to get that on the numbers of 130 which the government seem to think as additional advocates will sort the whole system out. In principle, you would be in favour of a proper advocacy service, properly streamlined, properly trained and resourced, but not one that is going to fill the boots of all the huge legal aid bills which the government seems to have turned its face against?
Mr Marsen-Luther: Absolutely. We see some really excellent advocacy services when we go around visiting hospitals with the Commission hat on. There are some very good services and those should be there right across the board, as far as mental health services are concerned. There should be more training for them. There should be more funding for them. The problem that we really had with this Mental Health Act advocate was that it was traded as one of the safeguards for patients. Having got rid of hospital managers, quite clearly the thought was, "We had better put something else in their place so we will give them Mental Health Act advocates." I am terribly sorry but I would have to describe that as a joke because it offers no safeguard at all, being told what people can do unto you. The safeguard is when you can test what is being done unto you in front of people who can do something about it. At the moment, the Bill has nothing in it that gives people a proper counter balance to the authority that is being given to the MHTs and clinical supervisors.
Q136 Lord Carter: Do you see any problem in the potential overlap between what I would call the informal advocate, because often the carers do a great deal of advocacy on behalf of the patient, and the formal advocate? In your experience, do you see overlap and confusion there?
Mr Marsen-Luther: Sometimes. I think advocacy is desperately important. In a lot of cases, advocacy is run by ex-patients and who knows better what hell people have to go through sometimes than the patients themselves. I am a great supporter of it. I think it is very important that we have a proper advocacy service. Picking up on the point that you make, we have in this Bill a situation where, at an MHT hearing, you could get the patient, a nominated person, a separate carer, an IMHAA or independent Mental Health Act advocate and of course you can get a solicitor there as well. You imagine if those people are of different opinions what sort of a bun fight you are going to have at that MHT. What are people thinking of here? Central to all this is the patient.
Q137 Mrs Blackman: In this more unified concept that you have of advocacy, do you think the Bill has it right in terms of when advocacy becomes available to the patient or do you think it should come in earlier? I am thinking of people particularly with ASD who have social and communication disorders, who would need that kind of support much earlier in the process, as would other patients.
Mr Marsen-Luther: I would bring you back to one of the things that have been thrown out of the 1983 Act and that is the nearest relative. Currently, a mountain is being made out of a molehill, getting some remedial action to make sure that the nearest relative continues to have a say, or another person where the nearest relative is not appropriate, in whether detention under those circumstances is right. I think somebody needs to come in before the detention is issued. Of course, under the current legislation, that takes place. The nearest relative has to be contacted as far as possible before somebody gets detained and I think that is something that you will want to think about very carefully in terms of the way the process works currently, because the fact is we all know that you are going to get a lot of calls requesting assessments. Then you are going to get a lot of assessments that may be made on people who are at a very excitable stage but not necessarily mentally disordered. When the assessors come along, you are going to find that they will flip their lid and get even more excited and be called psychotic. I think it is very important that there is some person who comes in between that process beforehand.
Lord Mayhew of Twysden: Have you any comment on the reliability or otherwise of the estimate that 140 additional advocates will be required?
Chairman: Before you answer that question, there is a broader, different resource question that Lady Eccles wanted to ask.
Q138 Baroness Eccles of Moulton: This is very relevant to your description of tribunal hearings because it seems that the number of people who would be involved and the number of tribunals that would have to be held within 28 days - do you have an idea about how that would be humanly possible depending particularly on the number of highly skilled, qualified people who will be called upon? We have been given statistics about the increase in the number of people who would be needed to carry out these functions.
Ms Scudamore: The Department of Health's estimate in 1982 was that the tribunals would all be heard within four weeks of the date of the application and there would be 2,000 tribunals a year. From the evidence that we have from our members, it suggests that the figure would be much higher than this. That is a very conservative estimate because it is unknown. Because the definition of mental disorder has been widened by the Bill, the number of extra people who might be detained under the new Act would be probably a lot larger than it is now. The number of people who would be on community orders is also an unknown number. Possibly, there might be an increase in people that come under the Bournwood definition, detained under the Act. The number of hearings that could be taking place would be far higher than the Department of Health estimates.
Q139 Chairman: To pick up the Department of Health's figure for the need for 59 per cent more administrative staff for the tribunals, it is a very raw figure and it may conceal a number of rather important issues. Do you agree that not only should there be a sufficient number of staff but that they should be permanent, which does not necessarily mean full time, properly trained, knowledgeable and capable of servicing the tribunals so that the tribunals do the decision making which is becoming much more complex under these proposals, and not be burdened by administration themselves? I think it is a common complaint of those who sit on mental health review tribunals -- and I can tell you it was the cause of my resignation as a part time chairman - that the administrative arrangements were unsatisfactory, putting it at its lowest, for busy people who were trying to fulfil the role of sitting on the tribunals but really could not cope with managing them as well.
Ms Scudamore: I agree completely with you. It is not only the tribunal that is disadvantaged in not having clerks and administrators to help them. It is also the trusts. Mental Health Act administrators are also disadvantaged because they are the ones who have to stand down from what they should be doing in order to assist the tribunals. Just recently this has become a lot worse and it is going to need a hell of a lot more resources and recruitment to bring it back up to a good standard again.
Mr Marsen-Luther: If you are intending or if you were to succeed in getting hospital administrators or Mental Health Act administrators to clerk ----
Q140 Chairman: I am going to express an opinion. I think there is too great a potential conflict of interest involved in that. I have been told frequently by hospital Mental Health Act administrators that they regard it as a very major conflict of interest potentially.
Mr Marsen-Luther: That is why I was coming in there. Clearly, vast resources will be needed to make sure that the system works. You will need very many more Mental Health Act administrators to deal with the paperwork that is created by this massive increase in tribunals. That has some major implications, not only from a person power point of view - I just managed to slip that in - but also from the point of view of suitable accommodation which unfortunately MHRTs do not get in a lot of hospitals. I think the 140 is a gross underestimate.
Chairman: Thank you very much for giving your evidence so clearly to us. We are very grateful.