UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC viii

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON THE DRAFT MENTAL HEALTH BILL

 

 

Draft Mental Health Bill

 

 

Wednesday 10 November 2004

MR RICHARD BROOK, MS KAY SHELDON, MS LINDSAY FOYSTER, DR ANNEKE WESTRA and MR ROGER KEELING

MR CLIFF PRIOR, MR MIKE TOOK, MS ELAINE BARNES, MS MARY TEASDALE, MS JO ROBERTS and MS VICKY YATES

Evidence heard in Public Questions 209 - 282

 

 

USE OF THE TRANSCRIPT

1.	This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
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Oral Evidence

Taken before the Joint Committee on the Draft Mental Health Bill

on Wednesday 10 November 2004

Members present:

Barker, B Ca Carlile of Berriew, L (Chairman) Carter, L Cumberlege, B Finlay of Llandaff, B McIntosh of Hudnall, B Pitkeathley, B Rix, L

Mrs Liz Blackman Mrs Angela Browning Mr David Hinchliffe Mr George Howarth Tim Loughton Laura Moffatt Ms Meg Munn Dr Doug Naysmith Mr Gwyn Prosser Dr Howard Stoate Hywel Williams

________________

Memoranda submitted by Mind and No Force

 

Examination of Witnesses

 

Witnesses: Mr Richard Brook, Chief Executive Officer, Mind, Ms Kay Sheldon, representative of Mindlink, Mind's service user network, Ms Lindsay Foyster, Director, Mind Cymru, Dr Anneke Westra and Mr Roger Keeling, No Force, examined.

Q209 Chairman: Good morning and thank you very much for making the time to come and give evidence to the Committee. These are quite short sessions and the aim is for there to be an exchange of questions and answers rather than statements to be made. So I hope that you will be content not to make opening statements, because we have only an hour at the most for this session. I will ask you very briefly to introduce yourselves in a moment, but can I remind you that this is a public evidence session and that everything that is said will be recorded. You will be sent a copy of the Hansard that is prepared as a result of the meeting and you will be free to make small textual corrections, but not to alter the substance. Could I ask you to introduce yourselves, please? Could we start with you, Mr Keeling?

Mr Keeling: My name is Roger Keeling. I am a user of mental health services and I am a founder member of No Force, which is a network of users of mental health services set up to protest against the Draft Mental Health Bill.

Q210 Chairman: I should say that we are grateful to all of you particularly for your written submissions, which have led to your being asked to come here today. Dr Westra?

Dr Westra: My name is Dr Anneke Westra. I am a lifetime user of mental health services and I have also co-founded the No Force campaign, which is to provide a direct user voice regarding certain concerns about the Draft Mental Health Bill. Could I quickly say one thing? On behalf of all users of the No Force campaign, I would like to thank you for inviting us to give oral evidence to you today - particularly as, since 1748 when the first user group, the Lunatic Friends Society, was established, this is the first time that people with severe mental health needs have been able to express ourselves directly to Parliament.

Q211 Chairman: That is very good news. Thank you for that. Mr Brook?

Mr Brook: I am the Chief Executive of Mind. My name is Richard Brook. I am afraid that we only go back to 1946.

Q212 Chairman: Not 1748!

Mr Brook: No, I am afraid not. Mind is a mental health charity, as I think you are aware.

Ms Foyster: I am Lindsay Foyster and I am the Director of Mind Cymru, which is Mind's presence in Wales.

Ms Sheldon: I am Kay Sheldon. I am a user of mental health services and I have direct personal experience of being detained under the current Mental Health Act. I am also co‑chair of Mindlink, which is the service user network of national Mind.

Q213 Chairman: Can I remind each of you that there are a number of middle-aged men on this Committee, all of whom are challenged in their hearing. So, despite the existence of the microphones, can I ask you all to speak up, please, because it makes a huge difference to us. This question is mainly directed at Mind, though we would obviously be interested in the views of the service users. Mind have submitted that a set of guiding principles should include a requirement that treatment and care should be provided in the least restrictive and least invasive manner compatible with ensuring the health and safety of other people. Can you give examples of where you think the balance between the least restrictive alternative and safety for the public needs clearer guidance, and also perhaps you might tell us where you think it operates badly now and how it could be improved?

Mr Brook: I am happy to start, if that is okay. I think that the question is interesting, because it starts with an assumption that people with mental health problems potentially may be dangerous or may be significantly more dangerous than any other group or part of our community. If you look at our evidence, you will see that we submit evidence which says clearly that that is a very questionable assumption. Moving on from that, when I became Chief Executive of Mind three and a half years ago, one of the major positions in mental health policy at the time was that we needed good policy, good practice and good legislation. In a sense, we have seen some good policy come through. The issue around practice - which we will come back to in a minute - is a real issue. Legislation was, if you like, the third leg of that stool. In terms specifically of your question, you do not have to go much further than the many inquiries that occur after tragic events happen in mental health services: the statutory inquiries where, sadly, you see people harming other people. When you look at the results of those inquiries, I think that you will find that it is not about the powers of the current legislation being deficient; it is about the failure to provide a good service to people in those situations. The sorts of things you see are administrative failures, lack of care planning, lack of talking between different parts of the service - all the things that some of us are very familiar with, not only in mental health services but also in social care generally. The suggestion is that somehow we can get this better by amending the legislation. In terms of the question how it can be improved, what we need to see, particularly in this Act, is a much better assumption that, when people come and seek help, they will get help - even if they do not require compulsory treatment. One of the things I know you have already heard about is the issue in the draft Bill of the responsibilities in terms of what you do under the assessment process, but no requirement to do anything if people do not meet the grounds for compulsion. So something about better services; better administration of services particularly around assessment; something about better understanding of what happens to people as they move in and out of mental health services; something about better risk assessment guidance; moving away from this idea of discrimination, particularly trying to promote a concept of reducing stigma in society; and also a more realistic understanding of the risks of mental health compared with other risks. We have to remember that drink and dangerous driving are more dangerous in some senses than mental health. The whole point of this is that we create a situation where we perceive risk as much higher than it is. That is not to diminish the fact that sometimes there is risk and we need good services to deal with that. You also asked about the least invasive treatments. Again, there is a slight misconception there in the sense that we often see that as ECT or psycho-surgery. Actually medication is an invasive treatment, and forms of care can also be invasive. I know that Kay may want to say a little more from her experience about how she sees that as invasive. Lastly, you ask how it can be improved. One of the real concerns for many mental health charities, especially for Mind, has been a lack of any understanding of some of the other things related to what will happen with this legislation, particularly around the code of practice. Some of you may be aware that Mind is challenging the current code of practice. We are party to proceedings in the House of Lords. Interestingly, the Court of Appeal determined that the current code of practice should be adhered to more strictly than Ashworth was adhering to it, and should be the driving principles behind it. It is very interesting that Ashworth have appealed that decision, without the Government intervening to stop it. One of the real concerns at Mind, therefore, is that a lot of the things we are being asked to take on trust here about some of the things that will happen are not there for people to see. For service users in particular, the mental health system is a very scary system. Engaging that, where compulsion might be used without an understanding of the issues via the code of practice, is a real issue.

Q214 Chairman: Can I ask Mr Keeling and Dr Westra if they would like to say anything about the balance between invasiveness and the need for compulsion in certain cases?

Dr Westra: No Force believes that compulsion should only ever be given when someone is at risk of harm to themselves or others. Under those circumstances, we believe that the least restrictive procedures should still come into play. If that person has capacity, they should still be able to determine what care and treatment they need. If the person does not have capacity, they should be able to determine it through advance directives and statements.

Q215 Lord Rix: My flatfooted question is addressed to Richard Brook. It seems to me that the answers to the questions and your submission indicate that you dislike literally every aspect of this Bill. At a seminar I chaired yesterday at the Royal Society of Medicine for the Intellectual Forum on Learning Disability, which was about capacity, consent and advocacy - and the participants were mainly psychiatrists, clinical psychologists, social workers, advocates, et cetera - they seemed to echo your sentiments totally. However, they sang the praises of the Mental Capacity Bill, or rather its aims and objectives, but they also sang the praises of the Scottish Mental Health Act, which they claimed was about mental health, whereas this Bill is about detention rather than about mental health. Would you care to comment on that?

Mr Brook: I would, although my colleagues may also want to comment. I think that you are right. There are some good things in this Bill. If you look at our submission, although it is quite hard to find them, there are some good things. We do like the advocacy; we do like the new tribunal system; we do like the new nominated person system. The trouble with this Bill for us, in fundamental terms, is that it looks the wrong way - exactly as you say. I think that if the Bill had looked the other way, had come from health, it would have been a far better situation, where we could have come together about some of the things that will make a difference. The difficulty for me is that this Bill, in a sense, is not about the tens of thousands of people whom it will apply to each year. It is about how it will set the nature and framework, not only of compulsion but of the whole of our mental health services. Compulsion is at the steep end of this, if you like - the tip of the iceberg - but it influences all below it. That is why Mind has found this Bill so difficult to come to terms with.

Chairman: It might be helpful if we slightly broadened this and then had more of a discourse, and perhaps Ms Munn could put a question that she has in mind.

Q216 Ms Munn: Dr Westra has already said very clearly what No Force's view is around issues of compulsion. Perhaps I can ask the representatives from Mind, given that you admit that there is a role for compulsion in treating those with mental disorders, how would you like to see a Bill ensure that it is only given in what you consider to be appropriate cases?

Mr Brook: The experience of being under compulsion is probably one of the most traumatic experiences you can experience in the UK inside the healthcare system. Your rights are taken away; your ability to be yourself. So our view is that it should only be as a last measure. In our submission to you we explain that, whilst we have some concerns about the definition, particularly around what are called the "exceptions" - alcohol and drugs - we broadly could accept the current definition as proposed in the Bill, but only if the conditions for compulsion are significantly tightened. We set those out in our submission. They are around a test of capacity or impaired judgment. It is about therapeutic benefit, and the patient being much clearer than the current suggestion of appropriateness. We are unhappy about the higher threshold for people who are a danger to others: this idea of protection against significant risk, which I think you have already heard evidence on. We also believe - and do remember this is what Mind is saying - that there should be more power given back to professionals, which is quite an unusual position for us to be taking, in determining how people are treated within the system. We think that there is a lack of discretion in this new Bill which means that people will be driven to make certain decisions, contrary to where we are. I do not know if Lindsay or Kay want to add to that?

Ms Sheldon: I would just reiterate how frightening it is to be sectioned, and how that can have such a lasting impact on your life.

Q217 Baroness McIntosh of Hudnall: I would like to follow that up, if I may, and to ask Ms Sheldon about her experience of being sectioned under the present Act and what she perceives to be the potentially greater risk that would pertain to her, or people like her, if the Bill that is before us now were to become an Act. Also, what additional level of anxiety - which we are very conscious has been expressed to us by a number of people - is present in people such as yourself, Ms Sheldon, who might become, I was going to say "victims" - but whatever is the appropriate word - of the powers that this Bill brings forward?

Ms Sheldon: I have been sectioned a number of times and certainly have been seen as a non‑compliant, revolving-door patient; but, from my perspective, the problem was not with me but it was with the services not listening to what I was saying my needs were and also not providing the services that they said they would. I cannot see that would change under the new Bill. The new Bill frightens me even more, simply because of the proposed community treatment orders. I have no doubt that I would have been put on a community treatment order if they had been available under the new Act, and I would be very afraid of the services. I would not trust them. I would basically do all I could to disengage. I would also be very concerned about the impact it would have on my family. I am married and I have two children. To feel that my husband had the added pressure to have to police me would be quite worrying.

Dr Westra: With the No Force campaign, a lot of users put forward their concerns. They said, "What we are saying is we understand that mental health legislation guides policy development, which in turn guides its implementation in everyday practice, which then finally impacts upon people with severe mental health needs who are receiving care and treatment". Many users of services feel oppressed and abused by the manner in which they are treated within mental health services and find the system to be controlling, paternalistic, punitive and detrimental to their well-being and quality of life. They say they feel that they are being treated as subhumans, where psychiatric symptoms are dealt with and severe adverse reactions and mental distress ignored. Many describe the experience as like being in prison, where they feel trapped and have no choice on what care and treatment they would like in order to recover, even as a voluntary patient and in the community. All the users I have ever talked to over the last six or seven years particularly do not agree with compulsion in the community and, to be honest, they are literally terrified of it. In Russia in the mid-20^th century, political dissidents were incarcerated in psychiatric hospitals and forced to take psychotropic drugs. In the early 21^st century, this Government proposes to coerce people into taking psychotropic drugs in their own homes, through fear of detention. We see no difference in these examples, in terms of the Government using psychotropic drugs either in hospital or at home as a means of social control.

Q218 Chairman: Would not some people rather be at home taking drugs than detained in a hospital?

Dr Westra: What we firmly say is that compulsion should be used as a very last resort and only if a person is a serious danger to harm themselves or someone else, and then they must be in hospital. If they are in the community under compulsion and are at severe risk of harm to themselves or others, they may commit suicide or, even worse, perhaps a homicide. Remember, however, that thousands and thousands more people with mental health problems may commit suicide rather than be a danger to someone else. As we know, it is mythical that people with severe mental health problems contribute a lot of violence to the society.

Chairman: This was Mr Brook's point earlier.

Q219 Mr Prosser: I can well understand the fear that, by concentrating on the compulsion issue, it tends to cloud the whole subject. I take the point of the iceberg very clearly. Purely from a practical point of view, however, how in a Bill do we deal with a patient who has capacity and whose ability to make decisions is not impaired, but who is clearly seriously mentally ill and clearly a danger to his or herself, let alone to other people? It is one thing to say it must be a last resort. I think that we would all agree with that as a phrase, but how can the Bill remedy that?

Mr Brook: The issue there is the Bill can remedy that by ensuring that it is much clearer about the small number of cases where that would be required to happen. Our argument is not about the fact that sometimes compulsion may be needed. This is an argument that has raged long and wide in Mind over many years. Ultimately, our position has been that compulsion may be needed but, at the moment, many more people than even ten years ago are receiving compulsory treatment. I do not think the world has got that much madder in the last ten years, and I do not think it is going to get that much madder in the next ten years. The difficulty we have is that legislation and the nature of these definitions and conditions will drive people's situations. One of the things that really concerns us is something which is called defensive practice. If you put an onus on to people who are genuinely trying to engage in a healthcare model to protect the public, they are very frightened of the newspaper headlines on the Monday morning. I am sure that you have already heard evidence about this and you will continue to hear evidence. We are creating a system where people will feel more concerned about what might happen, how it might happen, and how they might be seen as players in that, rather than addressing the real concerns of users of the service, such as you heard from Anneke and Ken this morning. Our real problem is that we are creating a system where people have to respond in a certain way, rather than respond in a way driven by the sorts of criteria you are setting out.

Q220 Mr Howarth: Could I probe Dr Westra's point? I think she conceded that there are some cases where, either for the protection of the person who is displaying symptoms themselves or the public, certain actions are regrettably necessary. I want to explore where the boundaries of that might be. I suppose there will be some cases where physical harm is potentially present, either to the person themselves or to some member of the public. What about in a case where somebody, through compulsive behaviour, is harassing some other person? Would you think that was a protection issue, or is that something that should be dealt with by some other means?

Dr Westra: I think the harassment issue is ----

Q221 Mr Howarth: I mean extreme harassment.

Dr Westra: I think that with extreme harassment, a bit like with violence, you get groups of people in all societies who are violent. You get more violence from drunken adolescents, spurned spouses, and bad drivers than you do from people with mental health problems. So we should be looking ----

Q222 Chairman: Forgive me for interrupting, Dr Westra. Mr Howarth has asked you a very significant question, in my view, and I just want, for the benefit of the Committee, to refer it to the Bill. Under Clause 9(4) of the Bill, one of the conditions necessary before somebody can be compulsorily detained under the provisions is "for the protection of other persons", and it is stated in those terms. Those are the words. Somebody who is being harassed might be suffering quite severe psychological damage, even if the harassment is being done at a distance, for example through persistent text messages or emails. There is plenty of evidence of that kind of thing. From your viewpoint, is it defensible at all that people should be detained in circumstances like that under a Mental Health Act?

Dr Westra: I think our position would be to say no, but there need to be other mechanisms put in place to deal with that situation.

Q223 Chairman: Can you help us a little further towards those other mechanisms, bearing in mind that there are civil procedures, for example for harassment, which can be used and which sometimes result in people being committed to prison for contempt of court?

Dr Westra: One would envisage using perhaps a civil procedure and then the person being diverted into the mental health system. Also, if there were holistic mental health services in the community, with the appropriate care and treatment options for people, which they could access at the earliest possible stage, I believe that would decrease the numbers of people who may end up very mentally disturbed and harass other people. I would quickly like to point out that there are statistics that people with severe mental health problems are abused and harassed much more than the general public are by them. So we need the protection.

Q224 Chairman: Would that be the same in Wales, for example, Ms Foyster?

Ms Foyster: Our view is that it is much better to engage with people and to draw them into providing appropriate services that will meet their needs, and that we do not go down the line of just overly protecting the public. Certainly in Wales, policy does not take that as its primary focus. It looks at the mental health needs of people as its primary focus, and we would want to see legislation that is compatible with that, quite clearly. Where we have been talking about the threshold for people who are at risk to others, we would want to move from that low threshold of protection of another person - which is very broad - to look at having a threshold that is around significant risk of harm, which makes that clearer.

Chairman: Mr Howarth, do you want to come back on your harassment point?

Q225 Mr Howarth: To be honest, I am not entirely clear as to where we stand on this. It has just been said that the whole thing needs to be dealt with at an earlier stage. I am sure we would all agree with that. The fact is though that some people will arrive at a place where they compulsively believe that they have a right, by whatever means - whether it is through texts, whether it is through physical presence - to impress their view of somebody on them. In those circumstances that can become intolerable. Yet you do not seem to believe that there can be any solution to that problem, other than potentially through civil action.

Ms Foyster: We are saying that criminal law is there for such cases, if people meet those criteria.

Q226 Laura Moffatt: I am very interested in what is being said here and I was originally going to talk about the difference between trying to struggle with the issue of capacity and, if we had a capacity-based Bill, would that cure things or would it make for more difficulty. But this last bit of evidence has been interesting me most sincerely, I have to say, because I was the victim of someone who was deeply unwell. To my great sadness, at the end of it - I was not concerned about my own safety at all but there were serious issues - the only avenue open was compulsory detention. That was a huge sadness. The worst thing was that, when this young man's mother wrote to me and said, "Thank you so much for helping us", I felt like an absolute heel, because I did not feel that I had helped at all. That is a very real example of somebody becoming deeply unwell and having no response to that.

Mr Brook: That is absolutely right. Perhaps the thing that needs to be focused on here is the difference between the mental health problem and the criminal activity or civil activity. One of the questions you have to ask is when should mental health legislation override all our responsibilities as normal human beings to behave in normal, appropriate ways in society. The problem for us is that we think that threshold in the proposed Bill, under this issue of protection, is too low - in the sense that if somebody is doing the sort of harassment that Mr Howarth referred to, there are criminal ways of dealing with that. As they go through the criminal process, if there is a determination that they have a severe mental health problem, then there is remedy through that criminal process or harassment process. The issue is that you have to get that level higher. In terms of what you are saying in relation to the sorts of services, I do not see that as a legislative issue; that is a service issue about the right sorts of services for people to be helped. The majority of people in those situations - obviously I do not know your exact personal circumstances - want help. That is where we lose track of that so much.

Laura Moffatt: Sadly in this case not. It would be a mistake to assume that there were not services available for this young man, because that was not true.

Q227 Mr Howarth: Do you believe the police and the Crown Prosecution Service, or whatever, are better equipped to make a judgment in a case like that than mental health professionals?

Mr Brook: I think that mental health professionals can make an assessment on that basis. What we are arguing in terms of the debate this morning is that the threshold is too low to allow people to enter the mental health service under compulsion. We are not saying it is an either-or situation. It could be both situations. But the difficulty is, if you use the protection ‑‑‑‑

Mr Howarth: I think that we were saying it is an either/or situation.

Q228 Chairman: Can I intervene and ask you what I think may be a helpful question? I would like a snap answer to this, if you can give it. It is rather like the question, "What is the most important thing in your life?" where a snap answer might be very revealing. If you were faced with the choice between Mental Health Act detention and being imprisoned under civil procedures for contempt of court, which do you think service users would feel less stigmatised by?

Dr Westra: Prison.

Ms Sheldon: I am also a Mental Health Act commissioner and I have heard service users say that they wished they were able to serve their prison sentence rather than being sectioned.

Dr Westra: I know as a user, and talking to other users, that the mental health system really feels very oppressive, controlling, paternalistic, and we have no freedom to choose our own care and treatment - even though we are, like all of you here, completely with capacity. We are being told what to do and not able to choose for ourselves what we want in terms of care and treatment. So it is very much like being cornered and totally oppressed, and coercion blocks therapeutic intervention. You need to be enabled to carry out your own treatment decisions, to try to make yourself recover from mental ill health.

Chairman: Ms Munn, and then I will ask Dr Stoate to broaden the discussion a little further.

Ms Munn: Where I am struggling with this discussion is with issues around people involved in criminal activity, not because they have any intent to be involved in criminal activity but, because of their situation, they are doing something which they perceive in a completely different way. Perhaps I can give an example. Many years ago when I was a social work student, and mental health was not a speciality I dealt with a great deal subsequently, I was working with a young man who was at that point compulsorily detained but had, prior to being detained, been arrested for jumping on somebody's car - because of some belief that he had which related to that. I went with him and he went through a court procedure and was convicted of this offence. It felt completely wrong to me that he should be convicted of an offence when he had not set out to engage in criminal activity. The beliefs he had, because of his illness, led him to do this. I could not see that that was right. My question is, if people are behaving in a way which is criminal in terms of our laws but they are doing it because of their illness, what should our response as a society be? What should we be doing? What should our legislation have in place to deal with that situation? That is the crux of the matter. Again, it is not about somebody being harmed. There was not a risk to him; there was not a risk to anybody else; but it was criminal activity.

Q229 Chairman: A fundamental question, Dr Westra.

Dr Westra: When you look at that situation, you have to look at the other side of the coin. The other side of the coin is, if you were that person, if you were a user of mental health services, if you had a mental illness, and you realised that if you became ill and your behaviour became.... Users of mental health services are terrified of compulsion. They are terrified of being in hospital. They are terrified of drugs. They are terrified of ECT, and they are terrified of the way they are treated so dreadfully by the system, because they are looked at in terms of symptoms of their mental illness, which are then treated with drugs. They are not looked at as a person. You do not, in hospital, get to talk about why you have become ill, why you are distressed. You do not get support on how to alleviate those problems. So people with a mental illness are terrified if they see that the threshold for compulsion can get so low that their behaviour ----

Q230 Ms Munn: I am not decrying any of what you say. I am trying to get to what, in an ideal world, should happen to a person in the circumstances I described?

Mr Brook: My view is quite clear: that person should enter the criminal system, because they have committed a criminal act. The issue is the way that is resolved. It seems to me that, possibly in the situation you had, the disposal and the nature of that disposal was inappropriate for that person. However, there are some assumptions if you go down the mental health route. First of all, you are making assumptions of guilt. Clearly, in your case of someone who is jumping on a car, there is no doubt about that. But often people need to be clear what things have or have not happened. I am not sure that the mental health system is set up to determine whether people have committed the offences that people sometimes think they have. There is a whole issue around that type of concept. Secondly, there is a responsibility issue. We cannot have it both ways. If there is a capacity issue in terms of mental health, there is also a capacity issue in taking responsibility for people's actions. I think that service users accept and understand that, and perhaps sometimes feel more strongly about that than some of us who are not suffering from mental ill health. I think that is the reason why they say things about ----

Q231 Chairman: Here we have a conceptual issue about the whole of the criminal justice system, have we not?

Mr Brook: Absolutely.

Chairman: If people are saying they would rather be convicted of a criminal act than be compelled under the mental health provisions, then you are envisaging that people can be convicted of a crime which they do not perceive to be a crime and which they do not intend to commit. To the lawyers around this table that is a somewhat alien concept.

Ms Munn: Or even to the non-lawyers.

Q232 Dr Naysmith: It also carries the implication that you are being treated better under the criminal justice system, and I do not think that is true at the moment - or do you?

Dr Westra: Can I give you one example? When someone is under a compulsory section, we do ward forums every month on all the wards of the local psychiatric hospital. The biggest thing that patients say continually - there are two things. One is that they get nervous about being told to go home on leave because they know they are about to lose their bed, and they are not well enough to go home. Secondly, the biggest thing is that they do not get fresh air. In prison, you can get fresh air every day. Under a section, people can quite easily spend two or three weeks without being able to get one nurse to take them out of the building to get fresh air. The treatments, drug interventions, are so invasive and intrusive, particularly for people who cannot break the drugs down, that it feels like torture; and it is not heard. No one listens to them. Being in a psychiatric hospital is not what people imagine it to be. It is very oppressive and quite torturous at times.

Dr Naysmith: I think that a lot of people have heard what you have had to say today.

Chairman: Can we broaden it a little now? Dr Stoate?

Dr Stoate: This is such an important and crucial part of the Bill, I just want to test it to destruction, using your framework about exactly what the Bill can and cannot do. A friend of mine was a victim of de Clerambault syndrome, and many of you will know what that is. It is where a person with mental health problems has a very firm delusion that they are deeply in love, usually with their nurse, their doctor or their psychologist. In this case it was a psychologist. This person was hounded for two years by the patient, who stood on the doorstep every single day, spending all day outside their house, following them in the car, and absolutely harassed this person, almost to the destruction of his marriage and his life. The question remains, and it has not really been answered yet, is that grounds for compelling somebody to be in hospital or is it a police matter? The police would say that the person has not been physically threatened; there is no actual criminal act in being in love with somebody. So the police really could not do much, and the civil law was very wanting on the issue. Clearly the person had a mental health problem. We have not tested to destruction whether that is grounds for compulsion or not - because that, to me, is the heart of the Bill.

Chairman: If we were the Home Affairs Committee of the House of Commons we would probably have an array of service users in front of us, saying that prisons are the worst places in the known world, where you get absolutely no help whatsoever and all you get is 20 minutes' fresh air in an enclosed yard every day. Your very telling evidence has made the hairs on the back of our necks tingle a little bit, because of some conceptual issues that have been raised. I think that is the point you are making, is it not?

Dr Stoate: It is, and the fact that we keep hearing that 25 per cent of prisoners have significant mental health problems which are pretty much largely ignored. I think that with this particular person, had they been simply put in prison for harassment, it would not have even begun to address the problem.

Q233 Chairman: I am going to ask Kay Sheldon if she wants to make a contribution on this, because I think I saw that you wanted to.

Ms Sheldon: I would hope that if somebody was committing some severe harassment and they had severe mental health problems, they would get the help they needed. Maybe that would be in prison. I do not know. The reason I was making faces was because I was subject to harassment by a psychiatric nurse for two years - really nasty stuff - and I did not know what to do about it. I do not think she was ill as such. So I am just thinking of that example really.

Dr Stoate: It is a fair point and I take the point that your experiences obviously must be very difficult for you, but we still have not reached the conclusion in this Committee of where do we draw the line on what constitutes significant harm to others, or harm to others. If we do not get that right on this Bill, I think that we will have failed as a Bill Committee. We have to decide where the line can be drawn and in what circumstance. I do not feel that any of you have given me an answer to that question.

Chairman: Before we ask for an answer, do you want to come in on this, Ms Munn?

Ms Munn: What you said was interesting. You said, "I hope the person would get the help they need". The question we are asking is how does the person get the help they need? How, if they themselves do not perceive that they have a problem at that stage in their life, do they get that help? It does happen that people get help and they then see, "Yes, I was unwell and I needed that help", but they were not able to ask for the help. That is the question I am asking. If somebody is not able to perceive that they are ill at the time, how do they get that help if it is not through compulsion?

Q234 Chairman: I would like to ask Mr Keeling, because I know that he has been trying to get in as well. Would you like to make some comments on this discussion?

Mr Keeling: There is a sort of myth that violence is associated with mental illness. If you look at the population, there is a certain number of people who are violent and some of those people, 20 or 25 per cent of them, will suffer from mental illness, and some people who are mentally ill will be violent; but if you concentrate on that intersection of mentally ill people who are violent, then you are not dealing properly with the problem of violence in society and you are not dealing properly with the problem of mental illness in society. This Act, the Mental Health Act, should be split into two Acts, in my opinion. There should be a sort of social control Act for controlling dangerous people, and there should be a Mental Health Act which would be mental health. It would be about providing a therapeutic environment. You cannot have a therapeutic environment where the function of the staff is to detain you and to compulsorily medicate you. When I have been in mental hospital, I cannot talk truthfully to people because what I need to do is to make sure that I am not punished, by having the various nasty things thrown at me. This Mental Health Act could be very good, as long as the compulsion elements are either taken away or contained. There is a capacity Bill which says that if people have capacity they can make their own decisions. Somebody with capacity should always be able to refuse medical treatment but, under the Mental Health Act, they cannot. It overrides the capacity Bill.

Q235 Tim Loughton: This clearly goes to the nub of the whole issue of this Bill, and some of the practical examples that colleagues have brought up are interesting. In the United States, if you commit a traffic offence, for dangerous driving or speeding usually, you are often given the option: either you are fined or maybe go to gaol, depending on the severity of the offence, or you can go to a driving retraining class for however many weeks it may take. Could the same sort of principle be applied to some of the examples we have heard here, whereby somebody who was harassing in some way - which could be construed as being a result of mental disorder - could be offered the option either that they will be prosecuted under the legal system or they will have to face up to the fact that they may have a mental health problem and be subject to assessment for that and, if appropriate, would then have to go on to some form of treatment? They would retain the option. This would not be compulsion at that stage. If they refused to do that and had the capacity to refuse it, then it becomes a criminal matter and would be prosecuted in that way. Could we set up some sort of mechanism where you get that division between where it is legally prosecutable or somebody being able to opt in, taking ownership of their mental health problem, and then getting treatment, as a substitute? Or is that too simplistic?

Mr Brook: Yes and no. I will give you a very straightforward answer, because it is the whole issue that we are talking about. One of the things we have to do is get the assessment process right. This comes back to the concept that when you assess someone for a mental health problem you have a responsibility to deal with them, even if they are not in need of compulsion. That would start to address some of these long-term issues because, in a sense, people move away from that situation. In the case that Dr Stoate described, to me, two years of that sort of harassment does move into the significant risk issue. It is not significant physically, but it is significant risk to the whole person. If someone is banging on my door every morning for two years, I think that would make me feel rather unwell. I think that the law does have an intervention point at that point. What you have to get right - and you are absolutely right - is at what threshold do you set it? The argument we are making today is that the threshold as it is legislatively set out at the moment is too low. If someone has too much to drink in the pub tomorrow night and picks up his car keys, there is no compulsion to remove those car keys from that person. They go off and do what they want - which could be a real tragedy. It seems to me that if we cannot do that in relation to people who drink too much, what are we doing in terms of people with mental health problems at that same threshold? It has to be a significant threshold. There are implications if you drink and drive. We all know about those. There should be implications if you have a mental health problem and you do certain things: that is where you get into possible detention or possible criminal activity. But we have to get that gap between protection and significant risk much clearer. If you are a psychiatrist on a Friday night, with someone in a situation which is not at significant risk but one of protection, you are likely to detain them - even if they did not need to be detained - with the consequences that my colleagues have talked about.

Q236 Dr Stoate: So what you are saying is that you are happy with the principle, provided we get all the safeguards and the processes right?

Mr Brook: Yes, but let us talk about the numbers here. The danger is that we will set up legislation without the right code of practice, without the right wording, but which will open the doors to the detention of many, many people.

Q237 Dr Stoate: That is my point. Provided we get all these things right, you will be happy with the principle?

Mr Brook: Yes, we have accepted that. It is in our submission.

Q238 Hywel Williams: I was struck by the choice between being mad or bad, and everyone choosing "bad", as it were. Is that your philosophical position or is it because of your critique of the mental health services as they are now? Clearly you have very well worked-out reservations about the system as it is.

Ms Foyster: It is about hearing what service users have to say. It is taking direct evidence from people, and recognising the stigma that is attached and the experience that people have. They come away from experiences of detention very frightened. They are then faced with not getting adequate support for recovery. It is very difficult, as you have already heard from Kay, to enable people to feel that they can re-engage with the services. So it is directly taken from people's personal experience of the system.

Chairman: We are going to move on. We do not have much time left: in fact, we are over time. I will ask Mr Hinchliffe to deal with the issue about tribunals. We will deal with this briefly, if we may. I should say that we have had a lot of evidence about tribunals and we have received more, including from the chairmen of the tribunals, who have real misgivings about the proposals in the Bill.

Q239 Mr Hinchliffe: It has been invaluable, having a user perspective this morning. I would just like to differ slightly with Dr Westra in terms of the historic nature of your evidence. The Health Committee, certainly four years ago, took evidence from users in our mental health inquiry - and Dr Stoate confirms it.

Dr Westra: I do apologise!

Q240 Mr Hinchliffe: What I want to ask you is this. In your evidence, you give a very positive view, and Mr Brook has mentioned the positive view of most of the witnesses, in terms of the proposals in the Bill on the tribunal system. I am interested in particular in your views of how these proposals differ from the current system; what your criticisms are of the current system, and in particular I note that, in Mind's evidence at paragraph 5.16 on page 28, you are talking there about the need to include lay member representation. Do I assume from that that the lack of lay representation on the current system is a factor and, if so, how is that impacting upon the operation of the system?

Ms Foyster: Shall I lead in terms of what we see as the problems with the system as it operates at the moment? We think that there are major problems at present because of delays, poor administration and, in relation to that, poor traceability on any individual if the process fails, if there are delays, and why those delays take place. Many service users report that hearings do not take place within the timeframe that is currently required. That is an additional issue in Wales, in terms of the coverage of tribunals. Also, looking at access to legal representation and the quality of legal representation is a profound concern. In terms of the other issues that service users report to us about the current system, the lack of advocates - which is something that is addressed within the current Bill - patients find the process intimidating and are unable to present their views, and also to have their views taken on board by medical advisers. You mentioned the fact that Mind would like to see the tribunal panel opened out to include lay members. We feel that, because of the input from the expert panel member - which is the medical input - you do not then have to have a clinical member on the tribunal. That could be opened out to non-clinical, bringing in the more social aspects. We feel that is very important. Bringing in the lay view from the service user, carer or family member would also be very much welcomed.

Q241 Mr Hinchliffe: Do I gain the impression from what you are saying that you believe that the current system is perhaps too medical model focused, and the lay representation would include the wider social perspective? Secondly, looking at your current criticisms, one is in relation to delays and the administration of the system. How do you feel, with the additional demands of this new system, we will overcome those same kinds of problems?

Ms Foyster: Although we welcome the new arrangements and we do recognise the resource implications, particularly in terms of the numbers of people needed - there will be more tribunals meeting, given that everyone has to have one after 28 days, which we welcome - and taking the point about widening out to include the social aspect, then one of the other major criticisms of the current situation is that there is a lack of support and a lack of a holistic package in terms of discharge, which is one of the other duties of the tribunal. We feel that would be addressed more with the widening-out perspective on the tribunal.

Mr Brook: We have collected together some real service users' views of their experiences on the tribunals, both for our legal advice line and our information line. We could submit those to you.

Chairman: Would you? Because we are running out of time, or because we have given you more time than was intended, we would be very grateful if any of you or your organisations wished to add anything as a result of the questioning today. You can assume that we have read the written materials which you submitted, indeed in the case of No Force that is why you are here today in particular - so it is additional material we would be grateful for. The sort of thing you have just mentioned, Mr Brook, would be helpful. I know that you have not all said everything you wish to say, but you have said a great deal. I think I speak on behalf of the whole Committee. You have given us very valuable evidence and indeed have taken us, as I have already put it twice, to the conceptual rather than the legislative - which is good for our grey matter anyway. Thank you very much indeed for attending.

 

Memorandum submitted by Rethink

 

Examination of Witnesses

 

Witnesses: Mr Cliff Prior, Chief Executive Officer, Mr Mike Took, Service User and National Policy Officer, Ms Elaine Barnes, Carer, Ms Mary Teasdale, Advice Service Manager, Rethink, Ms Jo Roberts, Service User, and Ms Vicky Yates, Carer, Hafal, examined.

Q242 Chairman: Good morning. Thank you very much for coming. I should declare an additional interest. I have already declared an interest as a trustee of a charity called Rekindle, which is a mental health charity based in Mid Wales. In fact, Rekindle has a part management agreement with Hafal, which manages part of its services for it in Newton, Powys. Welcome. We have a lot of time pressure. We are trying to receive as much evidence as we can. You can assume that we have read your written submissions. We are not asking for introductions by way of any statements, but I will ask you to introduce yourselves very briefly in a moment. I should say to you formally that the evidence is recorded. You will be sent a transcript of the recorded evidence in due course. Please feel that you can make textual amendments to transcripts; but you cannot make amendments of substance. Not everybody will be able to answer every question - there are six of you. I think you share a commonality of interest, being a brother and sister organisation. Would you like to introduce yourselves, please, and tell us what your role is?

Ms Roberts: I am Jo Roberts and I work for Hafal, which means in Welsh "equal". We are very much a patient/carer-led organisation, but I actually work in a forensic unit for women who are detained under the Mental Health Act, usually Home Office sections. I am a service user: I suffer with paranoid schizophrenia myself, and for the last 16 years I have been under a Home Office section - I wanted to share that with you.

Ms Yates: My name is Vicki Yates. I am a carer of a young person with severe mental illness. I am also a member of Hafal, which, as you have heard from Jo, is a Welsh independent organisation and is user and carer-led.

Mr Prior: I am Cliff Prior. I am Chief Executive of Rethink, the charity for people affected by severe mental illness in England and Northern Ireland.

Ms Teasdale: I am Mary Teasdale and run Rethink's advice service, which means I have day‑to-day contact with users and carers and an overview of the sort of problems affecting them.

Mr Took: Mike Took; I am Policy Officer for Rethink I experienced mental illness in 1985 and was detained under the Mental Health Act, but I have been well since then, and I have run a carers' group since 1987.

Ms Barnes: My name is Elaine Barnes. I am a carer from Sheffield. My son is currently detained under the Mental Health Act. I also work for Rethink as a Service Manager, managing the carer services.

Chairman: We are particularly interested in the views of service users, including carers; and if other witnesses could slightly defer to those, we would be grateful. We will start with Lord Carter.

Q243 Lord Carter: We have had evidence from Rethink that it wants to place a duty on authorities for adequate care and support services, including certain specialist services. How would you define "adequate", and would a statutory, but vaguely defined duty simply invite unnecessary litigation and legal costs?

Mr Prior: Can I put this in the context of why we feel this is such an important measure? The main problem with mental health services at present is the difficulty that people in the early stages of a mental illness, and their friends and families, have in accessing help. Research suggests an average of 12 months' delay for people with first onset of psychosis before specialist help. A lot of people try to get help during that period and are turned away. Carers, even more frequently, are denied help. As a result, for half of the people with first onset of psychosis, a compulsory section is their first experience of care. Compulsion at the moment is the main resort, not, as has been mentioned earlier, the last resort for people with severe mental illness. It is traumatic and dangerous and poisons future therapeutic relationships, and it is a personal tragedy for every single person who is sectioned. There are nearly 50,000 uses of compulsion a year. We feel that the Bill should try to tackle that problem. In our surveys, 70 per cent of people put a legal right to adequate care and treatment as their number one priority for a new Mental Health Bill; and that was twice the number of those who put every other suggestion added together: this is overwhelmingly people's desire for a Mental Health Bill. In terms of how "adequate" would be defined - because clearly one does not want to take up the time of authorities unnecessarily and take it away from care and doing assessments - the Scottish Act gives the right for people to request an assessment of needs. There is a 14-day time limit for the duty to respond. If there is a refusal to respond, perhaps because there is no apparent sign of a mental illness that would qualify, written reasons must be given for that. There is then a definition of care, which includes residential, personal care and support and wellbeing and social development, to include things like training or employment support. Looking at the English draft Bill, section 68 already offers a very limited 6‑week free aftercare to people, and the care is defined in clause 53(5), so there is already a definition of what counts as care in the Bill that could be used. I have to say that our preference is for the Scottish definition, which we feel is more embracing; but the English draft Bill does already offer a potential way forward.

Ms Yates: I am going to reiterate some of the points that Cliff has made. Clearly, from a carer's perspective it was of utmost importance to me to find a way forward with my daughter other than going down the compulsion route. Placing a duty on authorities to provide adequate care and support is a basic human right. I was actually successful in ensuring that my daughter did not go down the compulsion route, but that was largely as a result of the fact that I am a fairly strong and challenging individual.

Q244 Chairman: And a lawyer.

Ms Yates: I do not think that came into play too much because with the passion and the pain that was involved in discovering that my daughter was suffering from this terrible illness, I was in such shock that the legal knowledge went out of the back window, and my gut reactions as a carer and as a mother took over. I think that it is absolutely essential that we look at this as an individual concept: people need to have a basic treatment plan. We ought to be asking for written reasons if no treatment plan is forthcoming.

Q245 Chairman: Can I turn this to Ms Barnes, because she may be able to link with this. You come from a different part of the country, which is why I want to broaden it. Do you feel that if there was a statutory obligation, along the lines of Lord Carter's question, to provide adequate care and support services, and something like the educational statementing procedure, that that would help you as a carer?

Ms Barnes: It certainly would do. In Sheffield I have to battle on a daily basis to get the right help for my son. Without me being very vocal - and may I say I am very bossy - my son would not be in the position where he is, whereby he would be leaving the secure unit he is currently in, because I am very clear that he needs the right help and I use all mechanisms to my advantage to make sure that the statutory service does provide the right care to the needy.

Ms Yates: I would again endorse what has been said. Perhaps we could incorporate in the Bill the right to see a psychiatrist within a relatively short period of time, perhaps one week, in the event of delusional symptoms being presented to a GP. That would be reasonable and would be workable. In my situation, I found my way to a GP in a psychiatric hospital within five days, basically because of the onset of quite severe psychosis. However, it should be available as soon as a GP picks up the fact that this is a delusional mindset and then it needs to be picked up and dealt with very, very quickly. My GP did not pick it up. That is no criticism of her, because it was quite well masked, but we do need access to specialist services.

Ms Roberts: I work in a forensic unit, Llanarth Court, in the women's services, and 90 per cent of those ladies will tell you that they knocked on every door that was available for possibly two or three years, and did not get any help; and then something sensational happened and they were sectioned under the Home Office. We need early intervention. It is okay to talk about compulsion orders, but if we can get early intervention in, then compulsion orders will be reduced. There needs to be a legal right to early intervention, I feel, on behalf of the service.

Q246 Chairman: Can you give a percentage of the women in the unit where you work that you think might have been saved from sectioning?

Ms Roberts: Possibly 90 per cent. I do not have statistics, but I would say, talking to them, 90 per cent of the ladies went knocking on doors, and help was not available.

Q247 Mrs Blackman: Is that about a capacity issue, that there are not sufficient psychiatrists, or is it about the system not working well enough and that the GPs and other professionals do not pick up the issue and refer on; or is it a bit of both?

Ms Roberts: It is very much both.

Mr Prior: It is also to do with the way the current legislation is couched. At the moment, if somebody meets certain criteria, they can be subject to compulsion by a mental health service, at which point the mental health services have to provide very expensive intervention, with secure beds and so on. It skews the whole mental health system down towards the end of failure. Some people become so ill that a compulsory section is needed. That is where all the resources have gone. More money has gone into mental health services in England and Wales over the last few years, but disproportionately it has gone into yet more secure beds. We still have very little resource at the first end. If we have a balanced Mental Health Act, which, whilst it keeps powers to compel people who become very ill, also gives powers for people who are less ill in the earlier stages - to compel services to be provided - then we are much more likely to get a more balanced arrangement in mental health services and the resources deployed more where they can make most difference, i.e., earlier on, where people can be saved from this terrible decline; and for individuals themselves and for their families watching this happen, battling and unable to get any help until people have become so desperately ill that the only resort left is to have them literally sometimes dragged kicking and screaming into hospital. It is a terrible thing to happen to anybody or any family, and we really ought to have a more balanced mental health programme.

Q248 Lord Carter: Your evidence is compelling, but is the problem that there is not a means of appeal so that the problem of access can be dealt with? If there were a duty in statute, it would have to be clearly defined, and you could be placed in some sort of appeal system with litigation and legal costs.

Mr Prior: I agree that one does not want to introduce extended powers that require tribunals and appeals and so on, and that is why we think the extended powers on the compulsory end go too far and cut far too much resource in, in that process. At the moment, people do not even have a first right, let along a right of appeal. At the moment, whilst there is a maximum time limit I should have to wait for a hip operation or for a referral to a heart surgeon, there is no such time limit and no such right in terms of access to a mental health service, even though the consequences both for the individual, and the vast cost to the state, are in many ways much greater. A first right is what we are seeking. We have it in other areas of public welfare. We have it for homeless people. We have it, although unfortunately with no appropriate time limits, on doing it, under the Community Care legislation, but we do not have it in mental health care. Part of the reason why mental health care is so distorted towards dealing with failure is because the legal powers are there for that end and they are not there for the other end.

Q249 Baroness McIntosh of Hudall: I would like to pick up the question of the two cases that Ms Barnes and Ms Yates have talked about - their own examples. Would I be wrong or impertinent in assuming that both the patients were young? Were they under the age of 18, either or both of them, when the symptoms began to appear?

Ms Yates: Yes, in my case she was under the age of 18.

Q250 Baroness McIntosh of Hudall: In relation firstly to diagnosis, and secondly to treatment, is the issue about diagnosis and the reluctance to diagnose or to be clear about treatment specifically more difficult in relation to people who are below the age of consent, and, secondly, is their treatment noticeably different? Do you have any observations on what is in the Bill about the treatment of young people under the Bill?

Ms Yates: Obviously, the issue of diagnosis is extremely sensitive. When you are being told that your 16-year old child has schizophrenia, it is a challenge for the profession to deal with that in the most humane way possible. I can honestly say that it was probably the most shocking thing that has ever happened to me, to hear that word in relation to my daughter. I actually have a photograph of her. I bring this photograph to show you what a beautiful girl she is and how sad it is for me to know that for her she cannot accept that diagnosis. She knows she has a mental illness, but she will not accept that it is schizophrenia. As she says to her consultant, in the gentlest of ways - because she is the gentlest person you will ever meet in your life - "you doctors, you people; you do not know the damage you do with your labels". I think she sums it up there. I am really glad that you focused on that question, because this is something I raise whenever I am asked to talk about the expert carer's point of view. This is something that is very ham-fistedly handled in a lot of instances. Whilst one can understand that professionals would not want to rush to apply labels which are so very damaging, and will become more damaging if this Bill becomes law, it is also very important to have some kind of input to monitor, and to give the best possible drugs that are available. Unfortunately, my daughter ended up taking Seroxat, which was a disaster. She was then put on a very old-fashioned anti-psychotic, which was a disaster. It has taken me - and I am fairly empowered and knowledgeable - a long time to get her on to the best medication that she is on now - and I am about to campaign to get her on to the next one. I am going off the point a bit here, but I am trying to say to you that the first point at which you make contact with the services with a young person is absolutely crucial. For Danielle, it was in a secure unit. She was not there as a detained patient. I fought very hard against that and succeeded. She was there as a voluntary day patient. But the whole way in which her care was managed was largely as a result of a strong, robust dialogue between me, the family, and the care team. I despair of a situation where, if this Bill becomes law, my role in that process and dialogue will be reduced.

Q251 Chairman: Was she there as a genuinely voluntary patient, or did she fall straight into the Bournewood gap?

Ms Yates: Could you elaborate on the Bournewood gap?

Q252 Chairman: It is not a fair question. I know somebody who could elaborate on that in some detail.

Ms Yates: Did she lack capacity? At times, yes, she did. It was a moveable feast. Sometimes she seemed to be more knowing than the psychiatrist and other times she clearly did lack capacity.

Q253 Chairman: Was she under a form of non-statutory compulsion in reality or not?

Ms Yates: Well, that is very difficult to answer because when they did get to the stage of threatening to use their compulsory powers, my response was, "well, no; she is not a danger to herself and she is certainly not a danger to others; and I can take care of her clinical needs". What label you want to put on it, I am not sure.

Q254 Chairman: I think we understand that quite clearly. Ms Barnes, do you want to add anything?

Ms Barnes: Yes, some of my experience is very similar to my colleague, but my son became ill around the age of 14. I knew immediately there was something wrong with him, partly because I was a youth worker, working with youths with behavioural problems. My GP was very clear there was something wrong, partly because we had built up a very positive relationship with her over the years, as patients. When we were referred to the child adolescent services, they more or less blamed me for my son's behaviour, as opposed to seeing that my son was genuinely not well. So I then went and battled with the service in many ways for them to recognise that this was something serious that needed to be taken seriously by the professionals. It was not picked up, and it was two years after my son attempted to commit suicide, that the service picked up that he was actually ill. It was at this point that we were sent out of Sheffield because of the complaint I had lodged against various members within the services. They decided I was too much for them to handle basically. We went to Nottingham, and he received the right care that he needed; but by then his mental illness had developed into schizophrenia. He was then put, at the age of 16, on Respiridone, but that medication did not help him. We have had years of backwards and forwards into the mental health system, which is why he is currently in a secure unit. Following from what my colleague has said, working with family members is really important - I cannot stress that enough. Without me, my son would have been in a far worse place than he currently is. I just want to add something else: from the black and minority ethnic community, I am very concerned that currently we are over-represented under the current Mental Health Act and under the current draft Bill I am even more fearful as to what might happen to people like my son, and myself as well. I am very concerned about this.

Chairman: I will take the next questions from Mr Hinchliffe, Mrs Browning and Lady Barker as a group, and then ask for responses. Mary Teasdale may be able to help us from the carers' perspective in a moment.

Mr Hinchliffe: In a sense, Elaine Barnes has taken us exactly to the area that I wanted to ask her about. You may have heard in the earlier session that I referred to the Health Committee's inquiry about five years ago into the mental health services. One of the things that struck us and disturbed us was the way in which, as you have stated, the black community was grossly over represented within the mental health system. I recall visiting a private secure unit in Yorkshire that was full of young black men from London, locked up there with, frankly, not a lot of hope of being returned to the communities they came from. How do you feel that this legislation could be made more culturally sensitive to address the issues you have just touched on about the black community?

Mrs Browning: Can I ask you about primary care, and the interface when somebody comes directly into contact with primary care services - the carer and the person with a mental health problem. We know that the Government is introducing a national framework for mental health, and early intervention is at the heart of that. In my own constituency in Devon we are having a battle with mental health services because people have been split into "core" and "non-core". If you are non-core and you present to a GP, you will be jolly lucky if you even get a referral through a community mental health team within 20 weeks. I have a lot of support for what you are requesting here. I think that the terminology will need to be tweaked to make it suitable to go into the Bill, but the principle of having an assessment and the right to support services as a statutory matter, I support. I am very concerned at what we are hearing today. It seems to me that that at the first port of call at primary care - and I am not making a criticism of GPs, but a lot of GPs do not have the expertise or the resources themselves to be able to deal in practice with somebody. If people are not going to get their support at primary care level, and end up under a section order, or straight into a hospital, how do you think we need to re-organise those first visits and those first interfaces with the health service to ensure that people are enabled to get further up the system while they are still in the early stages? We have heard today of mothers battling, and of people waiting two years until they are sectioned. Is there not something fundamentally wrong now that really needs to be addressed now; and is that outwith this Bill and to do with health provision generally?

Baroness Barker: You are clearly people who have done your utmost for your relatives, and you are at one with your relatives and what their best interests are. Where do you think the balance lies for professionals when there is a disagreement between the patient and their families? Secondly, adding to David Hinchliffe's question, what could be done to make this Bill better for carers from black and minority ethnic communities, because I was very struck by your comment, Ms Barnes, about suddenly becoming part of the problem rather than the solution in the eyes of the professionals.

Q255 Chairman: Could I ask you first to deal with part of Lady Barker's question and Mr Hinchliffe's question about greater cultural sensitivity, and also how this can be interfaced with help for carers?

Ms Barnes: In terms of the BME carers, I do not feel that there is a simple answer to that question, partly because I am one person and I do not represent the whole of the black and ethnic minority community United Kingdom - just to be very clear about that. I work very closely with a lot of BME carers in Sheffield, and I am very fortunate that they do come to me because they feel they can identify with me. I gather that the route into this system, whilst it is very similar to white care, is quite traumatic because often they are going through the police in order to get access to services. Once that access is through the criminal justice system, the barriers are there for a lot of carers; and they are reluctant then to engage with any professional. Even with good intentions, the barriers are there, so we need to look at the route by which carers come into the system. In terms of how we engage, there is a lot around training professionals to understand carers' experiences. I deliver training to a lot of professionals, and I do not see many consultants or doctors in the training sessions, partly because they are a bit too busy. From my point of view, I am also very busy, as a carer, and I have taken the time to do a lot of things, despite my business. I think somehow they need to take the time to also listen to our experience and find out what is helping from our point of view. I think that this needs to be mandatory. I am sorry to use that word, but I do feel that it should be mandatory.

Ms Teasdale: I agree with Elaine Barnes. Access is such a difficult problem for families that we produced a fact sheet called Getting Help in a Crisis¸ in which we go through all the options that people can try in order to try and get a relative into the system. It starts obviously with access to the GP, but a lot of GPs will respond to a carer by saying, "unless your relative comes to see me directly, there is absolutely nothing I can do". The Government has tried to block this gap by setting up early intervention, but, again, you may well need a referral into early intervention. There are a number of steps you could take to try and get into the system, but, as we have already heard, that can take a considerable time. The ultimate step under the current legislation is by using section 13(4) of the 1983 Act, which gives the nearest relative, as defined in the Act, the right to require an approved social worker to assess the situation to see whether compulsion might be needed. At the moment, this is a right that the nearest relative, who is often the carer, has, and it is an absolute right. We are worried about the fact that under the draft Bill this right disappears, as do practically all the rights of the nearest relative. Under the draft Bill, anyone can ask the appropriate authority, which is presumably the Mental Health Trust, to respond to a request for assessment. We do not know who makes the decision under the draft Bill, and whether that assessment is going to take place by being passed on to the approved mental health professional. It is not clear at all. The duty is to respond to a reasonable request, but at the moment we do not know what would constitute a reasonable request. There are a lot of questions there, but the general change in the Bill is that the rights that currently are invested in the family by the 1983 Act mainly disappear.

Q256 Mr Hinchliffe: On that specific point, you are uneasy about that right, which was also there in the 1959 Act, before the 1983 Act, being removed. However, would you accept that in some instances the nearest relative has been very uneasy about having that role foisted upon them; and that therefore some relatives would disagree fundamentally with the point you have just made?

Ms Teasdale: I do not think they would disagree fundamentally. It is absolutely clear that the better applicant is the approved social worker, as the code of practice says; but we are talking about a last-resort situation. If you have a relative whom you know is bent on suicide, or you are in that sort of crisis situation, that right under section 13(4) sometimes saves the day and prevents a real tragedy. It is absolutely right that families would much prefer the situation to be dealt with in a very different way, but as a last-resort option we are really worried about it being used.

Q257 Chairman: Mrs Browning asked a big question about the very big issue of primary care. Anyone who has had experience of looking closely at the primary care health system would state at the outset that GPs' reactions to different situations are extremely variable, from the admirably imaginative and focused to the opposite end of the extreme, to which I will not apply adjectives. It is a policy issue really, Mr Took; and I was going to turn to you for your answer to Mrs Browning's important question.

Mr Took: It is well recognised that GPs are not generally specialists in mental health. Research in 1993 into depression found that only half of GPs picked up people with depression. Ad a matter of good practice, having a mental health specialist on tap within the GP practice is the best way ahead, and certainly GPs appreciate having that specialist mental health expertise close at hand. That is the solution to the problem, and it already happens in many areas.

Q258 Chairman: Certainly in Wales a number of general practices have mental health professionals, some of whom are professional clinical psychologists working as part of the practice. It is very much a minority of practices, but some do. As a group, do you have a view as to whether that is effective in clinical terms, because if it is effective in clinical terms it is bound to be cost-effective because it happens at the first gateway?

Mr Prior: Clearly, this is a big area of problem. If you take a condition, a diagnosis of schizophrenia, the average GP only sees a person with first onset of schizophrenia every year to two years, so they are not building up expertise. It is a difficult job for GPs. We have to recognise that. Various service measures help. Gateway workers are being introduced in primary care in England, and they are mental healthcare specialists in the primary care setting, which is an excellent move. Early intervention services are supposed to be becoming set up, although the progress is much slower than was originally hoped for, to provide somewhere much more positive and youth-focused for a GP to refer somebody to, because part of the difficulty is a reluctance of GPs to refer on for specialist help, when they know that the only specialist help on offer is some terrible over-crowded, run-down adult psychiatric ward. That is not the place where you want to send a very vulnerable young person. Although service measures like that are important, and there are wonderful initiatives like the Yes Scheme in Plymouth in your own county, they only get there if they are backed up by duties. It is wonderful that the present Government is investing in those services, but the Mental Health Act will probably last for 25 years and there is no guarantee that all future governments would invest in those services. Unless there is something like a duty of assessment, a duty of this first response, to drive the balance of service provision towards that early engagement end, we are greatly concerned that the pattern of the last Act and the Act before it drives the care down to the end of failure, when people are already desperately ill, will be repeated again over the next 25 years. It is mainly a service response, but a duty to respond to a reasonable request for an assessment and to provide the appropriate services would help to drive that service provision and make sure it stays when times get tough and cuts are being made.

Q259 Chairman: Can we have the mothers' views, please?

Ms Yates: I think the suggestion you put forward is ideal, and it is the very thing I have written down: we need more mental health specialists feeding in to GP surgeries. One in three people who present to their GPs will have a mental health problem. That is an enormous statistic, and is well deserving of resourcing in that way. Also, Elaine made the point about better training. Apparently, the new tranche of doctors and psychiatrists coming through the system are being trained to be more receptive to mental health problems and to pick up on early things, but there needs to be more of an emphasis on doctors who are currently qualified that are going into intensive training experiences.

Q260 Mrs Browning: The statutory right to assessment would be something that a carer or a patient could ask of a GP at that first port of call; we are not just talking about assessments when there is some dispute about the diagnosis or the medication. We are talking about the first step here, where that right to assessment would be there from the beginning. Is that what you are asking for?

Mr Prior: Yes, and one would always hope that 99 per cent of people would never have to exercise a right, but the fact that the right was there would drive service provision to be available in the first place, and a better response.

Ms Yates: I would agree with that. One of the problems we have in Wales, which links into the primary care point, is that we have a set of national service standards, but they are not in place at the moment, and we do not have a care programme approach that is up and running in all parts of Wales - it is very patchy. To a certain extent, we are way behind England in terms of our services. That obviously impacts on the primary care thing as well because the way we see the care programme approach is in working in close liaison with the primary care centre. There is a lot of work to be done here, and it would be very useful if this Bill could focus on the very, very interesting issues we are talking about today, which is about how to improve health services, and not become obsessed with this thing about compulsion and risk management and keeping the Home Office happy.

Q261 Lord Carter: On the question of carers, there have been two Acts of Parliament, one under the Conservative Government, the Carers and Recognition of Services Act, and then the Carers Act, which has only just reached the statute book. Do you have any experience of the operation of the first Act, which has been on the statute book since 1995?

Ms Yates: Yes, I have got an experience; I have got my own experience. Whilst I was statutorily entitled to a carer's assessment, I was not told about it; I certainly did not receive it, and I have not to this day. So whilst we have legislation in place, in Wales the difficulty is that we do not have a developed service and infrastructure to deliver on the legislation.

Chairman: We will move on now specifically to Wales, bearing in mind that there is separate secondary legislation required for Wales to large order.

Q262 Hywel Williams: Specific to Hafal, you say very strikingly in your evidence at 3.6 that without radical change the Bill will not work in Wales. Can you tell us a little bit about that in terms of the infrastructure you have already referred to? I am also interested in the rurality questions, particularly in terms of community treatment orders. I am concerned about the language issue as well, and in addition the policy in Wales seems to me to be different from the policy in England. I do not know if you can answer all of those, but I would be interested in your views.

Ms Yates: Thank you so much for that. To put it into context, this Bill is predicated on the idea that there will be greatly improved services. Let us go back to the beginning. The problem we have in Wales is that we do have a national service framework comprising eight standards, and it is actually a very good document, based on good standard principles of equity, empowerment, effectiveness and equality; but it is not in place. We have not even been given a date for when it will be in place. We do not have in place the care programme approach. I am sure you are aware of how that works. It has been working well in England for ten years now. As you can see, we are way behind there. We have been given a date for the implementation of the care programme approach of December 2004, but I think that is extremely unlikely - it is unworkable and unachievable, and is some way off. Also in Wales we have severe workforce difficulties. There is a dearth of psychiatrists. We have something like 20 per cent vacancies. It will be very difficult indeed to administer this new legislation, because it is estimated that it will take a minimum of 70 extra psychiatrists to administer this new system. Those are resources that will not be going towards early treatment, which is a great shame. In Wales, we are awaiting an Audit Commission baseline survey. They are going to report on the current state of services in Wales. All the indications are that it will reflect the view that Wales is very far behind.

Q263 Chairman: We have generally cottoned on to your view; you could not have made it clearer.

Ms Yates: I would move to England!

Q264 Chairman: Ms Yates and Ms Roberts, are you able to address Mr Williams's specific point on rurality? It may be useful to reflect upon whether in the unit where you work, Ms Roberts, there are female patients who may well be mothers themselves, who are having to come a long way from rural areas for their treatment, having been compelled to be patients in that unit.

Ms Roberts: Visiting is very difficult because we take ladies from all across Wales. Visiting is very, very important, especially to mothers. We try and make that as accessible as possible, because we have to do risk assessments on visits as well, which makes it a little more difficult. We are the only female forensic unit in Wales at the moment.

Q265 Chairman: You are in Cardiff.

Ms Roberts: Llanarth, Abergavenny.

Q266 Chairman: So you are three hours' drive from Llandudno for example, on a good day.

Ms Roberts: At least - on a good day. It takes me on a good day, just from Bridgend to get to Abergavenny an hour and a half. It has taken me to go 50 miles four hours.

Q267 Chairman: That is from south-west Wales to south-east Wales.

Ms Roberts: Yes. There is undoubtedly a problem for rural Wales. We have a population that is widely distributed. We have a lack of specialist services, and what services there are tend to concentrate on the urban areas. There are large proportions of places like Ceredigion and Powys, Pembrokeshire and Gwynedd that are not adequately served. We are seeing an increase of mental illness in the farming community, following all the stresses and strains of the last couple of years; and the infrastructure is simply not there.

Q268 Chairman: Are they not served by Chester, Wrexham, Shrewsbury, Hereford and Bristol as well? Should one not be realistic about that provision? I know none of it is in Wales, apart from Wrexham.

Ms Roberts: There are provisions, but when you are thinking about the lay of the land, how wide it is in geographical terms, and how spread out the population may be, there is a difficulty of access to services if you are not in the urban parameters.

Q269 Hywel Williams: You referred to the very progressive way that mental health services hopefully will develop in Wales. Is that consistent with the way this Bill seems to see the world in terms of emphasising detention and dangerousness and all those issues?

Ms Yates: That is an absolutely question for Wales. No, I do not think this Bill is compatible with the National Service Frameworks, because National Service Frameworks 1 and 2 emphasised the need to address the issue of stigma. National Service Framework 2 specifically states that we should encourage user and carer involvement in care plans and treatment et cetera. In my opinion, this Bill will set the course of stigma back a hundred years in terms of user and carer involvement. There are some good provisions with regard to users, and we are quite happy and at ease with the notion of users being able to appoint their own nearest relative/carer, whatever label it will be. That is fine. However, in terms of reducing the role of what was the nearest relative, which will become the carer/nominated person - that will represent a significant decrease in the ability of that person to take a robust and meaningful role in the care and treatment of their loved one. Let us make no mistake about that. There is a veneer of patient autonomy in this legislation but if you scratch away it is very thin indeed. I am not sure whether the people who drafted this Bill - if we could somehow -----

Q270 Chairman: They are in the room and they are listening to every word you are saying, I can assure you.

Ms Roberts: I would like to bring in there the rights of the user, and that is where the Advance Directive comes in. If somebody is well, they can sit down and plan their care and treatment and who they want as their nominated representative, whether it be a carer, a member of the family, or an advocate, a solicitor. Service users are not stupid; they know what treatment and care they want and need.

Q271 Baroness Finlay of Llandaff: I was interested to hear that you have less resistance to the community compulsion than other people who have made representations to us. I wondered if that was because of the rurality or because of the lack of effective services in Wales.

Ms Roberts: If community orders come into effect, as long as basic treatments and care can be delivered in the community, then it has obviously got to be a better option than hospital.

Chairman: We are coming to Wales and having a session there. Can I now come on to an issue about carers.

Q272 Baroness Pitkeathley: We have had some very powerful testimony from carers this morning, and indeed Rethink's own record on research and promoting issues of carers is a very proud one; but I want to link my question with the question raised by Lady Barker earlier. We have heard today about very good, clear and powerful relationships between carers and users, but since caring itself takes place within a pre-existing relationship, and that relationship by its very nature is variable and can be of different kinds of quality, how do we enshrine this valuing of carers in a bill, taking into account the different types of relationship in which caring takes place?

Mr Prior: We have a real difficulty with things as set out in the draft Bill. When somebody in the family or a close friend becomes severely mentally ill, the position of the carer is difficult. There are bound to be tensions. Paranoia, if that is involved in the illness, tends to settle on the people closest to you; so it is likely to be the person who is providing most care and support. Currently, the Bill states that at the point of considering a compulsory section, the AMHP must ask the individual whether they want the carer involved - at that point. There could not be a worse point to be asking that question. The carer is probably called for to help in an emergency. Clearly, if compulsion is being considered, the service user does not want the services, so they are unlikely to be terribly happy that somebody in the family has called them in. They are most likely to be most ill, and they are most likely to have lost the capacity to make decisions that they would want to have made had they been well at the time. Once the service user says "no", the professionals then cannot consult the carer, and consequently cannot hear the history. There is no previous professional involvement at this stage; it is purely the family involvement, and they cannot hear it. It is an extraordinary and bizarre state of affairs, and it is then repeated at each point of change through the process. Clause 12 repeats - you have to ask again, do you want the carer involved; do you want the carer involved; do you want the carer involved? Nothing could be more designed to poison family relationships than this process. If the Bill were to recognise the concept of capacity or impaired decision-making, then one of the judgments made at the point of considering compulsory assessment would be, "does this person have the decision-making capacity to decide whether their carer should be consulted, or to decide at this point who their nominated person should be?" If they do not, there need to be default arrangements, as in the Scottish legislation, for example. Later on, when the individual has recovered some capacity, some decision-making ability, that is the time to ask, "if you have a relapse, who do you want involved in your care; who do you want to represent you; do you want your carers consulted?" That would be recorded in an advance statement that would then be used in any subsequent care.

Ms Teasdale: Our research department has looked at the reasons why professionals often do not involve carers. In summary, it is because of lack of training. They often lack the skills and the confidence to involve carers. Quite frequently, they complain that they do not have enough time to work with carers as well as users, because of the pressure they are working under. There is a lot of fear too. They worry about boundaries. They sometimes do not understand confidentiality policies, and training on confidentiality is rarely very good. They worry about the damage that involvement with carers might do to their therapeutic relationship with their client. There is of course still an overhang from RD Laing and a lot of worry about abusive carers. Nobody would argue that they do not exist, but we must not allow that worry to block valuable information from the majority of carers who are doing their best to access care on behalf of their relatives.

Q273 Baroness Pitkeathley: Could I ask a supplementary question? There are people who say that asking a carer for that kind of information, in defiance perhaps of the wishes of the user, is a denial of human rights. How would you react to that?

Ms Teasdale: Our research department again has done a great deal of work on this issue, and there is going to be a published report with some really practical suggestions not too far ahead in the future. Basically, like treatments and other issues, it is something that needs to be negotiated in advance. Professionals need to be trained to understand the role that carers can play, and carers with any degree of experience become very astute observers of what is going on. They can recognise when someone may be heading for another episode of mental illness. It is essential that a good alliance be set up between user, carer and the professionals so that they can find the right ways forward, so that distinctions can be made between different types of information that is shared. Most carers do not want to know the sort of personal issues that might be raised by a user in the course of consultation, maybe about intimate things like sexual history or dynamics within the family; but there is information that they would have a reasonable right to know, and without which they cannot do a very effective job of supporting.

Q274 Mrs Browning: In the Bournewood case, which the Chairman mentioned, the carers were denied access to the patient on the grounds that the psychiatrist said that if they were admitted to the hospital he might want to go home with them; but the European Court judgment found that actually depriving him of access to those carers was an infringement of his human rights and liberties. Bearing in mind those sorts of excuses on the part of doctors to deny carers access at a very critical point, right at the beginning when it actually matters, do you agree that the Bournewood judgment will require a statutory change.

Ms Teasdale: Hopefully. What we would really like to see is good leadership and guidance within the trusts. At the moment, there are not many policies that relate to carers and how to work with them. It is essential that there is some forward development on this. Part of the problem is the whole concept of carers. It has been a bit late in being recognised in the legal framework. Hopefully, the Mental Capacity Act will do something about this, but it is an area that needs to be looked at closely. We have a national strategy for carers; we have Standard 6 in the NSA framework, but we do regard what is in the draft Bill as a step backward in terms of carers. It might well increase risk, which is one of the things that the draft Bill seeks to deal with.

Q275 Mr Howarth: The bullet points in the submission are very helpful. Is there not at the moment a difficulty in that the values that the mental health professionals apply are very often different from the values that a carer applies, and that sometimes they collide? If that is the difficulty, how can you resolve that in any legislative way?

Mr Prior: I am sure that is part of the difficulty, and culture barriers do come out as a major part of the current problem. If the Bill includes rights for carers to be consulted at various stages, rights that should not be overridden by consulting the user at the point where the user lacks the capacity to make a proper decision about carer involvement, then carers can force the change in professional culture. They have the right to demand and say, "you have not talked to me". The Bill confuses quite different sorts of involvement of carers. There is informing carers about the individual's condition and treatment - "your son is being taken to this hospital under this legal provision"; and there is listening to carers about what they have observed about the individual - "can you tell us if they have been depressed for long; have they talked about suicide?" They are important things that currently could be just blocked completely. Then there is the issue of consulting carers about their caring role - "what support do you need to help this person?" Different decisions may apply for different people. It may be appropriate to listen but not to tell in some circumstances.

Q276 Mrs Blackman: Carers UK provided us with a submission, and they gave an example of a family with an adult son who had been sectioned and was being released from hospital. The family had two minors. The son had been violent prior to his treatment, and the mum was desperate to see the care plan because they were frightened, and they were pointing out that this was a clash of the carer's human rights and the patient's, the service user's human rights. How would you square that? Would it be on the face of the Bill or in the code of practice? How would you do it?

Mr Prior: It should clearly be on the face of the Bill. The Scottish Act has a respect for carers on the face of the Act. We can see no reason not to have a respect for carers on the face of the Bill. The case you give is a clear example of where carers have a very, very good reason to need to know what is happening. There are plenty of other circumstances. As Mary has said, not all carers are perfect. Some carers are terrible, and there are circumstances where people should be formally removed from caring for somebody. The current Act allows for that and the new Bill should allow for that in extreme circumstances, but we should not let extreme circumstances dominate practice, any more than the fact that some doctors are terrible and need to be struck off by the GMC says that we should have a power to disregard what doctors say if the user does not like it. We have to get these things in balance. The great majority of families are desperately trying to do their best - and sometimes not trying very well because they just do not know; they are not provided with the information to do the job very well.

Ms Yates: Can I come in with one very short point - and I will be short! You talk about respect for carers. I am not entirely sure that this Bill does show respect for carers because without somebody in the process, whether it be carer, nearest relative, nominated person - whatever label we end up with - without the firm right to challenge detention where appropriate or to challenge potential treatment, and to veto detention, then all this so-called respect for carers is "aye, Mary Martin".

Q277 Lord Rix: I must declare a personal interest in this next question on advance statements. I am sitting next-door to the Chairman of the Scrutiny Committee of the Mental Capacity Bill, and I was a member, and most of the time the Chairman kept asking me to ask questions on advance statements, probably because at my great age I am more likely to need them than anyone else! Given that it is not always possible for the person to foresee the circumstances, when advance statement or refusal of treatment might well become necessarily, why do you believe they should be included in this draft Mental Health Bill, and should they be given a binding or advisory status? Already, Jo Roberts has talked warmly but rather shortly about advance decisions.

Ms Roberts: On an individual level, I think the advance directive would be ideal. I have been living in the community for ten years. I have recently had a new psychiatrist, and she said to me last week, "your care plans have not been re-assessed for ten years". My needs have changed drastically over those ten years. Also, I have my own ideas about care and treatment of my illness; I have my own views on how I should be treated; and they should be legally binding as well. I think it would be something positive.

Mr Took: In the first episode of mental illness, it is quite unlikely that the person will have prepared an advance statement. The advance statement comes into play when a person is well enough, after an episode of illness, to make one. It is an important principle that what a person says when they are well should be taken into account when they are unwell. The need to put it in legislation is, will the professionals take account of what the patient has said? That is our worry. An advance statement would be made and would just be cast aside. We are arguing that if it is put aside, because there may be unreasonable requests - maybe treatment in the South of France, which is not appropriate - but the reasons should be recorded by the professionals.

Q278 Lord Carter: I am not clear about your evidence when you argue for the provisions of advance directives in this Bill. They are there in the Mental Capacity Bill: are you suggesting that if somebody has capacity but is subject to mental health problems, that somehow the provisions in the Mental Capacity Bill that lay down the requirements for advance directives cannot be met? You could surely use that provision for any advance Directives you wish to make.

Mr Took: I think there is a distinction between advance directives that are centring on refusal of treatment, and advance statements that are about expressions of witnesses. I know that the Making Decisions Alliance is pressing for advance statements in the Mental Capacity Bill, but advance statements are not covered in either Bill. We want the patient's expressions and wishes to be fully taken into account.

Q279 Lord Carter: I am sure you are familiar with the recent Burke judgment, which is being appealed by the GMC for clarification. That has changed the view, at this stage anyway, regarding the ability to require treatment, which you cannot do under an advance directive - you can only refuse treatment. Have you given any thought to the implications of that?

Mr Prior: The answer is, not in detail. We have certainly given consideration to the overlap with the Mental Capacity Bill. Many people subject to a Mental Health Act would also come within the remit of a Mental Capacity Act. At the moment the Mental Health Act is drawn up on different principles and does not recognise the concept of capacity, and does not use it, for example, in choice of nominated person or decisions about whether you want your carer involved, and things of that kind. This will mean that professionals will have to run two parallel systems with different principles, different decision-making tribunals and different consultees, nominated persons and so on. It is a recipe for error, chaos and expense and so on. The other thing we would say about advance statements is that they are not just about treatment. They are a way, when you have a fluctuating condition, as most serious mental illnesses are, of being in control of your life when you are not in control of your life. It is a way of reclaiming some of what is lost. We know that for long-term recovery, having that sense of control over your life is so important; the institutionalisation is what demolishes people's chances of recovery at the moment - the loss of self-esteem and so on. You can deal with practical problems: you can stop yourself losing your accommodation by specifying who you want to look after your flat and pay your bills; you can stop all sorts of problems about pets, who is going to feed them; who is going to look after your dependants - very practical, real-world issues; issues that are important in terms of culture and religion, which come up hugely from people in ethnic minority communities, specifying dietary and religious needs. In all sorts of ways they just help in what is a very traumatic and difficult experience of being under section by making the experience that little bit better, that little bit more ethical, humane, and recovery-focused - "here is my plan for my future".

Q280 Lord Carter: There are provisions in the Mental Capacity Bill for a lasting power of attorney. Would they help?

Ms Teasdale: One of our concerns is that with these two Bills running alongside in terms of development, it leaves the user in a very confused position because there are so many different roles in the individual -----

Q281 Chairman: And us!

Ms Teasdale: Absolutely. To be honest, I think we would all agree that insufficient thought has been given by the Bill drafters about how these arrangements would work together, how the lasting power of attorney would -----

Lord Carter: They do come from different departments.

Q282 Chairman: We do have a problem with different departments, and this is something that Lord Carter has raised not just here on several occasions but far and wide. Have Rethink and Hafal done any work as to what will be needed in the gap between the Mental Capacity Bill becoming an act and the Mental Health Bill becoming an act, which is likely to be a gap of three years, or more than three years given the resource implications - for example, if you just look at tribunals? Would you please let us have your thoughts?

Mr Prior: We would certainly do it, but we would suggest that if the Bill as drafted were passed the gap would be more like 30 years, and that is the situation we are having to consider at the moment.

Chairman: That is a helpful answer in the sense that it highlights the issue. The Committee would be grateful to you if you could find the time to give us some more help on that problem. We have expert advice on the issue, but it is becoming more than just a conundrum in the minds of many members of the Committee. I am afraid that we will have to stop now because we are coming up against the modest competition of Prime Minister's Question Time in the House of Commons. I am sure I speak on behalf of the whole Committee when I say we are deeply grateful for you coming to give evidence to us today. Thank you so much to all of you.