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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 95-i HOUSE OF LORDS House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE JOINT COMMITTEE ON THE DRAFT MENTAL HEALTH BILL
Wednesday 1 December 2004 DR BRIAN JACOBS and DR PATRICK BYRNE MR GAVIN BAYLIS, MR GUL Y DAVIS, MS NANCY KELLY and MS CHRISTINE DALY Evidence heard in Public Questions 365 - 454
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Joint Committee on the Draft Mental Health Bill on Wednesday 1 December 2004 Members present:
Witnesses: Dr Brian Jacobs, Child Psychiatrist, and Dr Patrick Byrne, Adolescent Psychiatrist, South London and the Maudsley NHS Trust, examined.
Chairman: Welcome, Dr Jacobs and Dr Byrne. Before we start our session, we have welcomed to the Committee a new member, Baroness Murphy, who will now make a declaration of interests. Baroness Murphy: My interests are recorded in the register, but I should like to draw attention to the fact that I am a Fellow of the Royal College of Psychiatrists, Visiting Professor to the Psychiatry Department at Queen Mary University of London in an honorary capacity, and a recent UK Adviser in Mental Health to the WHO. It is perhaps also relevant that I am a former Vice-Chair of the Mental Health Act Commission. Q365 Chairman: You met us only last week, Dr Byrne, and we are grateful to you for coming and putting up with us again. May I remind you that this is a public evidence session? A transcript will be produced and will be available on the Internet after about one week. If you wish, you will have the opportunity to make textual corrections, not substantial corrections. You both come from child and adolescent mental health services - CAMHS, as they are usually called. Do you think that the proposals in the Draft Mental Health Bill, particularly to widen the criteria for diagnosing mental disorder, will affect CAMHS significantly? In particular, do you think that the proposals will lead to an increase in the compulsory admission of children and young people? Dr Byrne: My Lord Chairman, I work in a residential unit for young people aged 12 to 18, so this part of the Act is of great importance in my clinical practice. It is my view, very clearly, that the change in the definition of mental disorder and the revision of the conditions for compulsory treatment will undoubtedly lead to an increased number of compulsory admissions. Dr Jacobs: I work in a residential unit, in fact downstairs from Dr Byrne. I work with children up to the age of and including 12. So there is a bit of an overlap. Since I became a consultant, I have only used the 1983 Mental Health Act on two occasions. It therefore applies much less to my population at present. I think that the redrawn Act will, over time, inevitably lead to the same conclusions that Dr Byrne is expressing: that I, or my successors, will be put under pressure to use it more. Q366 Chairman: Has there been a significant increase in the number of children being admitted to psychiatric units in your care, over the last three or four years for example? Dr Jacobs: No. There has overall, over the past ten to 15 years, been what I regard as an inappropriate reduction in the number of children's in-patient services, and there is evidence from research to show that there are both insufficient children's beds and insufficient adolescent beds. Q367 Baroness McIntosh of Hudnall: Dr Jacobs, you said that you have only used the provisions that are available to you under the 1983 Act twice in your recent practice. Dr Jacobs: Since 1986. Q368 Baroness McIntosh of Hudnall: Have there been occasions in that time when you would have liked to use provisions that were not in that Act which would have allowed you to compel treatment, but you could not because the Act did not allow it? Dr Jacobs: I think the honest answer to that is no. A slightly longer answer is that I have come near it once or twice. It has been in circumstances where the amount of restriction of liberty that I have had to impose on a child, because they were at risk to themselves, has begun to creep up into 30 or 40 hours. It is very rare that that happens. That makes me quite uncomfortable, because it starts putting the staff at potential risk. I have been in a position where I would have had to discharge the patient inappropriately or try and section them in a way that I was not quite comfortable with. Q369 Baroness McIntosh of Hudnall: Could I be clear whether that was to do with the application of your clinical judgment within the normal range that you would expect, or was it that the Act, as it is currently drafted and the Act that we are using at the moment, was insufficiently flexible, or too flexible perhaps, to allow you to make the judgment that you would have liked to make? Dr Jacobs: I am sorry to give you a complicated answer again. Q370 Baroness McIntosh of Hudnall: Please do. Dr Jacobs: The difficulty is in balancing up the potential problems in trying to override a parent's reticence for their child to be sectioned versus the long-term issues for that child - that they probably have a mental illness that they will have for decades, and that one wants them and their family to be properly engaged with mental health services. So it may be appropriate to do something that, in the short term, feels inappropriate. Q371 Chairman: Can I ask one of you to tell us what you mean by restrictions on liberty? Are you talking about a member of staff being in the room with the patient 24 hours a day? Dr Jacobs: No. Restriction of liberty, under the Children Act - and this is from memory - essentially means that if a nurse blocks a doorway with their body, or does anything to prevent a child having free egress, they are restricting that child's liberty. Dr Byrne: My Lord Chairman, may I offer a note of clarification about your previous question about trends and admission? I think that the picture is very sharply different with the adolescent age group from the younger age group. As Dr Jacobs has pointed out, the 1983 Act is very rarely used under 12, but the position is very different with teenagers. In our unit the admission rate has increased about two and a half times since 1990. That is not all compulsory admissions; part of the reason for it is because we are promoting easier access and we are reducing length of stay, so that we can treat more patients - in line with the national service framework. The overall trend in admissions under the Mental Health Act with adults has doubled since 1983, and I think that the picture is quite similar with teenagers in the middle to upper age range. Q372 Chairman: So it is consistent with adults? Dr Byrne: Consistent with adults, yes. Q373 Chairman: Can I ask you a particular question which I know has concerned some members of the Committee, as a result of what we were told on our visit last week? Is the use of cannabis by young people having a measurable or noticeable effect upon admissions? Dr Byrne: It is having a noticeable effect upon admissions. It is quite difficult to answer the question whether there is a net increase in the incidence of new cases of psychosis under the influence of cannabis but, in those young people who themselves are vulnerable to severe mental illness of a psychotic type, their symptoms are provoked and made more severe by concomitant use of cannabis. We pursue a very strong policy with young people who are having their first or second episode of mental illness to be completely abstinent from cannabis, because of this potent effect. Q374 Chairman: Is there any other commonly used substance that has such an effect on teenagers? Dr Byrne: Not directly in the same way. Alcohol usage has its own very particular deleterious effects, but they are not the same in quality as cannabis. Q375 Baroness Eccles of Moulton: Is it so then that nicotine has no effect on increasing the incidence and severity of psychosis? Dr Byrne: No. Nicotine addiction does not have any direct relationship to psychosis at all. Q376 Baroness Eccles of Moulton: So any parallel that is made between cannabis and nicotine in your sphere is not valid? Dr Byrne: Nicotine addiction is a very serious problem for the group of young people I work with, mainly because of its effect upon their physical health. Withdrawing from nicotine does have minor effects upon temper and conduct, and it sometimes is a bit of a point of tension in our unit - people who want to smoke and need access to smoking areas - but it is not in any way a major problem in the mental health field. It is more the effects upon the physical health of young people. Chairman: I am going to draw a veil over the nicotine issue now, because I was trying to test something slightly different and we are moving into other possible legislation. Does anybody want to ask one or two short questions about the cannabis issue? Q377 Lord Carter: I am not clear. I think you said that if somebody was mentally ill with psychosis or whatever, and they took cannabis, that made the symptoms worse. Is there any evidence that people without mental illness who take cannabis have become mentally ill? Dr Byrne: Yes, there is evidence from the Swedish conscript study, which looked at a very large number of young men who were conscripted into the Swedish army and found that the exposure to cannabis was dose-related to the vulnerability to a later breakdown with psychosis. When they looked at the number of young men who had broken down with a schizophrenic illness in later life, they found that the likelihood of that occurring was quite strongly related to the frequency of consumption of cannabis. So the risks do seem to be beginning to be quite clearly defined. However, there is not anything in the Bill about this, is there? Q378 Chairman: I share your concern about these questions and I started this hare running -but it is nonetheless an important issue, in broad general terms. Dr Byrne: Agreed. Chairman: I think that it is in order, because it affects the number of potential admissions under the Act. Q379 Mrs Browning: Dr Byrne, in your opening remarks you said that the wider definition of the Bill would be likely to result in more in-patients in this age group. Could you be a little more specific? Under which categories of mental health headings do you see it as more likely that this age group would come in as in-patients? For example, are we looking at more eating disorders? How would you subhead that? Dr Byrne: I think that it is a general risk. I do not think that it is specific to particular mental conditions. The definition in the draft Bill is a very general and quite vague definition. It provides, if you like, a broad gateway into compulsory care. My chief concerns are that, first, in the age group that I work with, the peak time for unruly, boisterous, difficult behaviour is the mid to late teens to early adulthood. Second, it is also the peak time for substance misuse - as members were asking about - particularly cannabis. Therefore, practitioners who are faced with assessing young people for the possibility of compulsory admission, under the rules laid down by this Bill, will find a very wide net that they have to trawl through. That is a very considerable concern to me. The second concern is that we have been working very hard to develop mental health services for adolescents which are accessible, which young people will find they want to use. We have been trying to bring down the delay before young people with serious mental illness reach care, and we have achieved that in one of our community adolescent teams in Croydon. The widening of the gateway in the increase in compulsory admissions is likely to create a negative climate for adolescent mental health services, and to make them far less attractive to young people. We really need to be treating their problems early, offering them good-quality services, rather than relying upon a widening of the need for compulsory admission. Q380 Lord Rix: What percentage, over the years, would you say that people have been referred with a dual diagnosis of learning disability and mental illness? With this broad definition, how many more people with learning disability - pure and simple, not with a mental illness - do you think will mistakenly be referred to you? Dr Byrne: I would say that about ten or 15 per cent overall of the referrals in the services that I have been seeing would have a learning disability. At the current time, in our in-patient service, there are dedicated services for those who have a very low IQ - in other words, severe learning disability - and who we therefore do not admit; but we do not discriminate against other young people who have mild to moderate learning disabilities. Again, I think that the lack of exclusion criteria in the draft Bill does leave the conditions wide open to misinterpretation of some of the challenging, difficult behaviour, of young people with learning disability. It does run the risk that maybe practitioners who are less well informed about learning may very well overuse the draft Bill. Q381 Mr Hinchliffe: We are obviously concerned as a Committee with the statutory framework. Dr Byrne implied a moment or two ago that the use of the law is often as a consequence of the inability to prevent, at the lower end of the scale, a person having to move into more secure facilities. Can you give any examples of where you see services that might prevent a youngster ending up in hospital, or where compulsion might have to be used? Can you point to situations where such services are prevented, rather than going further into the system? Dr Byrne: In the adolescent team in Croydon, which has been set up with the express purpose of trying to reduce the use of in-patient beds by providing accessible services in a high street location and having outreach services in local schools, they have been able to lower the threshold for people coming in for informal care. The expenditure from that team on admissions of young people to my unit - which was quite a worry to me - has reduced over the past three years by £1.3 million. In other words, they are showing that they are able to care for young people with severe mental health problems at home, with support at home, without the necessity to admit them to hospital. So I think that we do have good examples of practice which show that that kind of work can be done. Q382 Mr Hinchliffe: Do you feel that this legislation could in any way be shaped to encourage the greater development of that kind of provision? Dr Byrne: We need to have a Mental Health Act which has a statement of principle at the beginning that the welfare of people with mental health problems is the greatest value and aim of the legislation. It should have a clear statement that ---- Q383 Chairman: In the Act? Dr Byrne: Yes, that informal treatment, voluntary treatment, is the sine qua non of services, and that should be our major duty - to ensure that services are delivered as far as possible in an informal and accessible way, and that compulsion is seen as very much the last resort. Q384 Chairman: Before we move on to the next issue, can I ask you to give us a fairly brief answer to an important question, which is the placing of under-18 year-olds in adult wards? Is it ever appropriate? Would you like to keep a range of flexibility, so that some, albeit possibly rare, 17-year-olds can be placed in adult wards, or do you think that it is something that should be excluded as a matter of principle? Dr Byrne: In principle it should be excluded, because of the risks of placing a young person in what I would call a developmentally inappropriate setting. However, the operation of that policy is very much dependent upon resources. The distribution of adolescent in-patient beds round the country is very patchy, and there are parts of the country - particularly the north‑east and the north‑west - where there are too few beds, and local clinicians will find themselves really hard-pressed sometimes to provide an acute admission directly into a dedicated bed for a young person. I agree with the principle completely, and we need to keep young people under 18 out of adult psychiatric beds, but whether it can be achieved in different localities is very much a resource question. Q385 Tim Loughton: Dr Byrne, that is a question of resources driving appropriateness of the service. Do you think, however, that in principle there should be part of the Bill which guarantees an appropriateness of service for younger people, as certain evidence previously has suggested, so that resources will have to be developed in order to meet that appropriateness rather than if it just happens to be available at the moment? Is that desirable and, in practice, is it workable, albeit only with a drastic increase in the resources? Dr Byrne: I am not a commissioner of health services, and I think that a commissioner would find that a difficult question. Would it work in practice to mandate purchasers of health services to ensure that that policy was carried out? I would tend to agree with that, although I have reservations about making the pattern of commissioning accord with the letter of the law. I think that local health commissioners need some flexibility. I would hate to think that they achieved it by stealing money from cancer services, for example. In principle, I would agree with it. However, I am not sure that you achieve quality in mental health services by legislating for those things to take place. That is probably a personal reservation of mine. Q386 Tim Loughton: Is not the problem at the moment that for somebody who is inappropriately admitted to an acute ward - and there are suggestions that something like two‑thirds of adolescents end up in that way - there is no comeback for them or their carers to say, "Hold on, this is not appropriate. I require more appropriate accommodation"? If there were part of the Bill that said that every endeavour has been made that appropriate accommodation is provided, they would have some legal back-up to force that position. Dr Byrne: I find your argument very convincing, and I would certainly support it. I think that it is a scandalous situation and it does need to be addressed. If Parliament thought that was the best way to solve the problem, then I would certainly support it. Dr Jacobs: Essentially I would agree, but there is a very practical issue. In order to create new in-patient services, you need a skilled set of teams to do so, and there is no evidence that the people are out there at the moment, clamouring for the jobs. So this would have to happen over time and, if something were to be put into the Bill or into the regulations around the Bill, it would have to allow for that. May I return to Lord Rix's question? I would think that about 30 to 40 per cent of my admissions have learning difficulties. We do not take profound, or where there are accompanying, very severe physical difficulties, because we are not equipped to do so. There is a real problem, which you will be aware of, namely that at the moment there is only one hospital in the country, up in Northumberland, that can cope with those patients. Do I think that there would be miscalculation and abuse under the present redrawing? Yes, I think that there probably would, over time. Chairman: Can we now turn to an important issue about risk of serious harm? Q387 Mrs Browning: In respect of this legislation, and 16 to 18 year-olds who may be subject to compulsion under this legislation because they are deemed to be a danger to other people, the Mental Health Act Commission has expressed concern that the standard of decision-making is at odds with the decision-making set for this same age group by the Children Act 1989. I wonder what your comments on that would be, and whether you think that the Commission is being too cautious there. Dr Jacobs: No, I do not think that the Commission is being too cautious. It is striking that in this Bill there is no mention of the paramountcy of the needs of the child or young person. I think that the Bill would be improved, and the thinking of practitioners would be improved, were they required to hold that principle in mind. I think that, for 16 to 18 year-olds, the issue of serious harm to others should be tempered by that principle. Q388 Ms Munn: Paramountcy of the child is obviously within the Children Act but, as soon as other considerations come in, there is a conflict. When a child has committed a very serious crime - I am not talking about a child with mental illness but who perhaps has murdered somebody, or whatever - you might say that the paramount needs of the child were not met by being locked up; that, nevertheless, there were other considerations. Would you not see that as being a problem, if there were a risk of serious harm? My personal view is that would be in a very small number of cases and, if it were the case, is there not some other way of dealing with it - without having the paramountcy principle? Dr Jacobs: Section 25 of the Children Act essentially allows for that situation, where children are having to be kept in secure accommodation because of their threat, either to themselves or to others. They can end up in that situation under the directions of a judge. I think that provides a better route for the non-mentally ill population who find themselves in that predicament, because the judge will have to weigh up the risks to society against the risks to the young person. Q389 Ms Munn: What would the parallel be for a child who was deemed to pose a risk of serious harm because they had a mental health disorder? How would you deal with that within the Bill? Dr Jacobs: I think you could deal with that under the proposed Bill in any event. I do not see that you need ---- Q390 Chairman: Forgive me for interrupting, but I think I understand you, Dr Jacobs - and this could be very important - to be saying that children who fall within that category, which is a descriptive rather than a diagnostic category, are better dealt with under the Children Act and the general law, rather than the specific law dealing with mental health. Is that right? Is that what you are saying? Dr Jacobs: I think what I am saying is that if they clearly have a major mental illness and that is what is driving their violence, then they are better dealt with under the Mental Health Act. However, in a situation where they do not have a serious mental illness, as at presently drawn, then they are better dealt with under the Children Act. Q391 Ms Munn: I entirely accept Section 25 of the Children Act and how that works. What I am trying to get at is what would that look like - not in any detailed, technical terms - with regard to the Mental Health Bill as opposed to what there is currently. How would that be generally expressed? Dr Byrne: One of the difficulties here is, in a sense, the privileging in the Act of violence or serious harm. I think that this is probably part of the Mental Health Act Commission's concern. They are looking at the 16 to 18 age group and picking up on the anomaly that the draft Bill defines adulthood, if you like, as 16-plus for the purposes of the Act, but the Children Act creates a facilitating legal environment for young people who are suffering significant harm up to 18. We therefore have an area of overlap. In a way, the Children Act is casting a searching light on this draft Bill, because of the way it promotes the welfare of the child and the risks to the child. The balance in the draft Bill seems to be going towards the idea that that, "If you have a mental health problem and you are a child, then we are perhaps not quite so worried about the paramountcy of your welfare. What we are really worried about is the public order issue - the serious harm to others". Because of the imposing of that kind of thinking throughout the Act, we create this little window of anomaly among 16 to 18 year-olds where they clearly may be dealt with very differently under the two forms of legislation - with the draft Bill making it much easier for a young person to be compulsorily detained between the age of 16 and 18, with fairly poorly defined mental disorder and very few exclusion criteria. I think that is probably the concern of the Mental Health Act Commission and it would also be my concern. I would worry about my teenagers being out on the street, maybe misbehaving or maybe being intoxicated, and falling into this system and being assessed in this way. I would be very concerned, as a parent. Chairman: I think that was a particularly clear piece of evidence in answer to Ms Munn's question, and I am sure that we are grateful for it. Can you give us numbers nationally about the number of 16 to 18 year-olds who would fall into the descriptive category of risk of serious harm to other people? Q392 Lord Mayhew of Twysden: Substantial risk. Dr Jacobs: Very substantial. Q393 Chairman: Very substantial? Dr Jacobs: Twenty-five per cent of teenagers get into trouble with the law with delinquency. If you assume that only a quarter of those or less have any violence associated with what happens, you are talking about a large number of youngsters. Q394 Chairman: We are talking about ill-directed violence as well as well-directed violence. Dr Jacobs: We are talking about teenagers getting drunk. Q395 Lord Mayhew of Twysden: But the Bill talks about "substantial risk". I do not quite know what that adds, but we ought to remember that it says "substantial risk" and not, I suppose, fanciful or one in a hundred. Dr Jacobs: The problem is as you have just summarised it. I do not know quite what that adds. The problem is that it becomes a very flexible meter in different people's hands. Q396 Chairman: If you, as a psychiatrist, were asked to judge whether somebody posed a significant risk or a substantial risk, would you know the difference between them? Dr Byrne: We would struggle probably. Q397 Chairman: You mean that even a psychiatrist would struggle with semantics of that kind? Dr Jacobs: Particularly! Chairman: Can we move on, after those very helpful answers, to an issue relating to tribunals? Q398 Lord Carter: Should considerations a tribunal has to take into account differ where an application is made in relation to a child under the Children Act 1989 and the draft Bill? Is it possible, or indeed necessary, to achieve a synergy between the Children Act 1989 and the draft Bill? Dr Byrne: I found this to be a little bit of a complex question, so my apologies if I stumble with it. To try to compare the procedures under the Children Act and to envisage how the draft Bill would work in practice is quite a challenge. However, there are aspects of the draft Bill which are very welcome, in particular the issue of safeguards for young people and clearing up some of the anomalies about the consent, particularly the ability of the child to refuse treatment. Let us take an under-16 year-old who is unwilling to accept treatment but the parents are agreeable to offering treatment. We call this "working under parental authority" and at the moment, where this seems appropriate, we use the Children Act. These proposals seem to me to bring with them some benefits, in that to rely entirely upon parental authority sometimes gives rise to worry and anomalous situations - because of the quality, let us say, of the parent's relationship with the child. Introducing a review system, whereby such a child could have their treatment reviewed by a tribunal, seems to me to be in keeping with the Human Rights Act and a step in the right direction. In that sense, there will be a kind of commonality, a crossover point, between the Children Act and the Mental Health Act, which I should imagine we would work out in practice and develop, with the code of practice, the right way of doing that. It seems to me to be, partly at least, a step in the right direction. The other situation is one which comes back to some of the issues we raised in the answer to the last question. Say you had an over-16 year-old, who previously, under the Children Act, could be treated under parental authority if that were felt to be desirable, or you had the choice of a Mental Health Act order - I am starting to think that the situation might be a little more confused here. As Dr Jacobs rightly pointed out, if the concern were antisocial or violent behaviour associated with emotional difficulties, and there was a substantial risk of running away, putting the young person at risk, a Section 25 order under the Children Act would probably be less stigmatising than a compulsory order under the Mental Health Act. So I think that I have probably confused myself as well as you! Q399 Lord Carter: You have not actually, but you have mentioned the importance of the code of practice in this area. I am sure you would agree that this is an area where the practitioner requires a pathway through this, to show them how to handle these situations. Is that right? Dr Byrne: We really do not know what it is going to be like in practice, do we? The practitioners involved with the 1983 Mental Health Act, rightly, become dominated by the needs of adults - because our sector is a small one compared with the adult sector. However, if we have more overlap between the two jurisdictions, I think that we will need to have more and better trained personnel going on these tribunals, who know about children and about teenagers and their development, and who know about the Children Act. Up till now, I do not think that has been seen as a very important point in training people to go on tribunals. Q400 Lord Carter: There will not be a new Mental Health Act for two or three years. For the period from next spring, for two or three years, you will have to work with the Mental Capacity Act, the Children Act, and the Mental Health Act 1983. That is right, is it not? Dr Byrne: Yes. Q401 Laura Moffatt: Dr Byrne, thank you very much for meeting with us at the fantastic unit that we saw. We were seriously impressed. Dr Byrne: Thank you. Laura Moffatt: I am wondering if I could take that argument a little further? You said that the child and adolescent sector is a tiny proportion of the overall mental health services. Therefore, we instantly become alarmed to the fact that if we are to do as you suggest, and make sure that there are people on tribunals who understand children - and we know that children's organisations are calling for that - clearly, there will not only be a professional shortage but, with the expansion of the tribunal service that we expect, there will be extra pressures. How do you see that working? Who do you expect will be wishing to contribute and wanting to sit on those tribunals - and will there be enough of them? Q402 Chairman: Even if they do not want to sit on the tribunals, will there be enough of them? Dr Jacobs: I would anticipate that there will be a severe shortage to start with which, if the right incentives are created, will gradually rectify itself. Q403 Laura Moffatt: What is the right incentive? Dr Jacobs: Presumably it is about recognition in people's job plans, negotiation with trusts that this is appropriate, encouragement through training - a whole lot of things that will make people more interested in becoming involved in this. However, I do think that it will take time. It is very important. I agree with Dr Byrne. The biggest messes I have found myself in, in my career working in an adult mental hospital, are when those who know how to apply things in a crisis in adult services find themselves butting up against other forms of legislation, the issues of children and parental responsibility, and everything else - getting themselves, and us, into an absolutely awful tangle with social services. The two systems do not mesh nicely, even today. So I am sure that it is important to build those things. Q404 Chairman: As CAMHS psychiatrists, have you had extensive dealings with mental health review tribunals? Please correct me if I am wrong, but I have the slight feeling that you are more comforted by the process carried out by judges under the Children Act and have more confidence in that procedure - which is a judge-alone procedure with a strong and sometimes slow adversarial element - as compared with mental health review tribunals, which are quicker and perhaps have a less adversarial element. Dr Byrne: In my sector that is not true, because we use the 1983 Act significantly - as I said, ten to 15 per cent of admissions. Compared with my adult psychiatric colleagues, I am less involved in tribunals, but it is a regular thing. I was in one two weeks ago and also in the previous month. Over the years, therefore, I have had a fairly consistent experience of tribunals. On the whole, we have generally found the experience quite positive. Often we have found that lots of issues are clarified before the tribunal comes up, and the whole process of independent advocacy also helps our young people to sort out what their aims and objectives are. Of course, occasionally there are very difficult, problematic cases; but we do have some experience of them. It is different with younger children. Dr Jacobs: As I said, my experience is very much less. However, on both occasions we have been really grateful to the tribunal. I feel that it has been an entirely appropriate forum for the child's rights to be properly considered and, on at least one of those occasions, one of the reasons that I used the section was because I was not completely convinced that the parent was in a position - because they were so worried about their child - to act in the best interests of the child. As a psychiatrist, I personally thought that child needed compulsory treatment. The child was arguing very coherently - this was a rather intelligent 12 year-old girl - that this was not necessary, and she needed to have somebody completely independent to hear it. The mental health tribunal provided that opportunity very well. I am pleased to see Part 6 in the forthcoming legislation, which talks to that and provides those safeguards for children. I think that they are very important. Q405 Hywel Williams: Perhaps I could ask Dr Byrne about the synergy between the Children Act 1989 and this draft Bill. If my memory serves me, in the Children Act, when consideration is being given to bringing children into care, there is a list of considerations which include race, age, gender and, interestingly for me, language and culture. In your experience, are the tribunals suitably aware of those sorts of considerations when they are looking at young people? Do you envisage that would be the case in the future? Could you attract people into an extended tribunal system who would have that sort of expertise? Dr Byrne: I thought you were going to ask me whether I thought that the draft Bill's provisions met that sort of test - which is the question I would have preferred. My experience of tribunals is not so extensive that I would wish to go on record and make a massive generalisation about them. Q406 Chairman: Answer the question you would like to answer. Mr Williams will accept it! Dr Byrne: Thank you, my Lord Chairman. In my opinion, the Children Act is a well worked‑out piece of legislation. What I particularly like about it are the precise definitions of the welfare of the child and of significant harm. Over the years, I have seen children's workers working together very well on those issues. Even when it goes to court, there is a very precise theme that everyone has to adhere to. With mental health legislation, unfortunately, we have not got there, and this Bill does not take us there either. Faced with those very careful considerations that children's workers have to look at when deciding on significant harm, the kind of criteria we are planning to use here in the draft Mental Health Bill are so much vaguer and more poorly defined, and so much more difficult to test in practice. Coming back to your point about tribunals, although they are hardworking and worthy people, I think that they will struggle with this Bill to put it into practice and to meet the standards that we have seen set with the Children Act. Q407 Chairman: I think that we would all like to congratulate Mr Williams on an excellent question, because you have given us a very important answer. May I add a very short supplementary to that? Do I understand you to be saying that you would welcome on the face of the Bill some principles specifically relating to the position, and especially the welfare, of children? Dr Jacobs: Yes. Dr Byrne: I would agree, yes. Q408 Lord Carter: If you did have that on the principles, would you agree that the use of the term "paramount" in the Children Act would lead to problems if it were used in the Mental Health Act? Referring to the welfare of the child, yes. However, if you said that was paramount in mental health considerations, would that not create more problems than it solved? Dr Jacobs: I do not think that it would. We know that failure to treat serious mental illness early actually produces long-term damage. It seems to me that, in terms of strictly medical, serious mental illness, it would work together. In terms of some of the other things that are in the Bill, it would help resolve some of the potential human rights concerns within it. Q409 Dr Naysmith: Dr Byrne, you have talked about the principles affecting the Children Act and this Bill, saying that the draft Mental Health Bill is much vaguer, much less specific and much less useful than the Children Act. Why do you think that is? Is it something intrinsically to do with the subjects, or is it just different, sloppier legislation? Dr Byrne: There are intrinsic difficulties in the field. As a psychiatrist, it is sometimes a source of frustration that the definitions in our field are not as precise as, say, surgery or general medicine. We do not have proper tests that look into people's minds and which can define things in an objective way. We rely on talking to people, often to find out what their problems are. All these things do sometimes lead to difficulties of definition. Putting that difficulty aside, I think that there is a lack of precision in the draft Bill with regard to the nature of mental disorder. Other jurisdictions, other countries, have gone for more precisely defined definitions which, for example, even include lists of the common symptoms that you find. With such powerful legislation, I do think that the civil liberties of people with mental health problems need to be more respected and there need to be more precisely defined exceptions to this rather broad gateway. That is my general concern. Q410 Dr Naysmith: So you believe that it can be improved? Dr Byrne: I do believe that it can be improved. There is a lot of good in the draft Bill. I think that it would be improved by a more precise definition of mental disorder, and we need to look again at the exceptions to do with learning disabilities - which Lord Rix has pointed out. We need to look again at the whole issue of drug use, and not create situations where we will create confusion for practitioners faced with emergency situations, where they have legislation which is difficult to understand, vaguely defined, and hard to put into practice. Q411 Baroness McIntosh of Hudnall: I just want to develop Dr Naysmith's point a little. Very early in your evidence you mentioned that there was an insufficient concentration in the way the Bill is presently drafted on the welfare of the patient. You implied, though I do not think you said, that was because there was a concentration on the risk element, to the detriment perhaps of those broader welfare concerns. If the Bill were to specify a more articulated definition of mental disorder, in the way that you have suggested, would that deal with those concerns? Would it then be possible for practitioners not to feel, as it were, trapped into collecting up people on the basis of, perhaps, a generalised sense of risk - in the way that I think you have suggested might be the case if it were left unamended? Dr Byrne: There are two ways you could go. One would be to make the definition more precise and restrictive, to correspond more closely to definable criteria which would cross over to the training of people who are making the assessments. Therefore, you would reduce the danger of what we would call false positives - dragging people into the system who really ought not be there - or you could define more clearly what the exceptions are to a broad definition of mental disorder. I do not know what is the best way to do that, but I think that both issues need to be looked at. Chairman: That may lead us neatly to the next issue about care plans. Q412 Laura Moffatt: I am glad to say that we have been given some background information on the whole issue of care plans and the use of care plans. Could you talk us through how it works in practice and how it would work in the future? Dr Jacobs: In practice - and it probably applies to both of our services - there are multidisciplinary meetings, usually involving education and, if social services are involved or can be involved, with either their interest or the family's permission or both, then a multidisciplinary approach is undertaken. Is it effective? We have done research that shows that, of the recommendations at discharge, over a population of 150 children from eight different units - four adolescent and four children's - only ten per cent had all the recommendations fulfilled a year later, and 25 per cent had none of them fulfilled. I think that if there were just to be a requirement that the planning should happen, then it is an empty piece of work. If, on the other hand, this were to be given teeth and some way of looking at it to see whether or not they had been fulfilled, it could be extraordinarily helpful for these very disturbed and needy youngsters. Q413 Chairman: Dr Byrne, your unit has a school, which has done some very good, indeed pioneering, work over the years. Is it the only unit with a school? Does having a school in your unit make it significantly easier for you to engage in the educational side of planning future care? Dr Byrne: Thank you for your kind remark about the school. It is a very excellent school and it is one of the biggest in the country, because it also serves Dr Jacobs' unit, the eating disorders unit, and shortly we will be opening a ten-bedded forensic adolescent unit too. So the school is going to expand. There are 44 or 45 adolescent units round the country, and about half to two-thirds have a school. Those which do not have them have to make some alternative arrangements. The school is a hospital school, particularly set up to deal with young people with mental health problems. It is a great asset and it is also an opportunity to develop training and good practice in meeting the special needs of young people and children with mental health disorders. Q414 Mrs Blackman: Should care plans with a more integrated approach also embrace 16 and 17 year-olds? Dr Byrne: They certainly should. We have to bear in mind that the care programme approach, which is a framework for planning the care of people with mental health problems, particularly at the point where they are discharged from hospital, is very well established in adult services. In CAMHS round the country we have been making great efforts to modify and apply the care programme approach, particularly to adolescents. In our unit we have been using it for three years now, and it means that we talk the same language as adult services when young people get to the age of 18 and we hand them over. The range of needs which is listed in the CPA forms, which we go through with every patient, includes education, daily living skills, finance, housing - in other words, a holistic approach to the needs of the patient. We are certainly taking that very seriously in CAMHS and are trying to push it forward and widen the application round the country. Q415 Mrs Blackman: Young Minds is a little more doubtful about including education in care planning. It sees it as something quite separate and as an obligation on services to provide, as opposed to something that is compulsory. What is your take on that? Dr Byrne: I am surprised to hear that. I had not picked that up in the evidence which I have read. One cannot help but emphasise that education is one of the key needs for young people. For young people who develop mental health problems, some of their chief handicaps in life accrue from the fact that they lose educational opportunities; they miss out on schooling for long periods of time; and, at the point where they need to be reintegrated into school, they encounter stigma and other difficulties. In terms of care plans, therefore, it is an absolutely vital part of it, and we spend an awful lot of time in our unit ---- Q416 Chairman: I must say that I had not read Young Minds' submission in that way. My impression was that they were emphasising education, though in a particular way. I can see the room for misunderstanding, however. Dr Jacobs: I concur with what Dr Byrne is saying. It applies even more with my younger patients. It seems to me that education is still extremely important in the adolescents, but it is not just narrowly drawn education. One might also be thinking of vocational skills as they get older. I think that it needs to be thought of flexibly, but it is a very important component. The other thing that came from some of the research was that the needs post-discharge for youngsters were often in the education and social domain - even more strongly than they were in the narrow mental health domain. So these are very important areas, but we should not plan emptily. Mrs Blackman: I may have misinterpreted slightly what Young Minds were saying, my Lord Chairman, but nevertheless I think that the answers were very good. Q417 Chairman: They were very helpful. I was not criticising you at all, Mrs Blackman. Far from it. Can I thank you both for being so helpful to us, now and last week. Do you want to add a coda? Dr Jacobs: I want to add a couple of points. There are things that I have slight doubts on but which have not been covered at all by the questioning. Q418 Chairman: Please do. Dr Jacobs: The first one relates to the relevant conditions. The fourth condition is that "medical treatment cannot lawfully be provided to the patient without him being subject to the provisions of this Part". I am not a lawyer, but I wonder whether lawyers might argue that, for children under the age of 16, and indeed under the age of 18, it could lawfully be provided under the Children Act and therefore the Mental Health Act should not be applied at all. I do not know whether that is a serious consideration or whether it is not, but somebody ought to think about it. Q419 Chairman: I have already asked one of our expert advisers, Professor Fennell, to think about that. Thank you. Dr Jacobs: The second is the issue of psychosurgery in relation to children who have epilepsy that is leading to mental health difficulties. That is a well-known path. A child may present with a picture that looks as though it is autistic but is actually driven by an epileptic focus. The question is, should that be subject to the issues in this Act, because of psychosurgery, or is it a physical condition that ought to be dealt with under ordinary medical issues? Again, I do not know the answers, but it does not seem to me that I have seen anyone comment on that. Chairman: You have just made our two expert advisers busy over the next week! Thank you for answering so clearly the answers that have been put - and one or two that have not been put, which you have answered in a most constructive way. Memoranda submitted by Young Minds, Barnardo's, the Children's Legal Centre and the Children's National Bureau Examination of Witnesses
Witnesses: Mr Gavin Baylis, Senior Policy Officer, and Mr Gul Y Davis, Young Minds; Ms Nancy Kelly, Principal Policy Officer, Barnardo's; Ms Christine Daly, Social Policy Adviser, Children's Legal Centre, examined. Q420 Chairman: Welcome. We are not asking for introductory statements, as I think you have been told. In a moment, you might like to introduce yourselves briefly. Unfortunately, we are under pressure of time, not because of anything that we would wish to limit but because of pressure on the parliamentary timetable, particularly Prime Minister's questions which are a popular spectator sport towards the end of the morning and indeed of course a very important parliamentary occasion. The evidence is recorded and you will have the opportunity to correct the record for textual purposes only. It should appear on the internet within about one week and you will receive copies. Would you like to introduce yourselves? Mr Baylis: I am Gavin Baylis from Young Minds. I did not mean to suggest that educational needs should not be protected. That was exactly the opposite of what I was trying to say. Ms Kelly: I am Nancy Kelly, principal policy officer in Barnardo's UK. Mr Davis: My name is Gul Davis. Ms Daly: Christine Daly from the Children's Legal Centre. Q421 Dr Naysmith: Under the draft Bill a competent child under the age of 16 can refuse treatment but this can be overruled by a parent. There are safeguards under the draft Bill but do you think these safeguards are strong enough or can you suggest any other safeguards that might be required? Ms Kelly: Barnardo's would feel that the safeguards in the Bill are very welcome but the key issue is that the safeguards are age appropriate. As members of the Committee will know, we would like the tribunal to have specialist members with experience of child development in order to make sure that reviews and approval of care plans are informed by an understanding of children and young people's needs. That would equally apply to the safeguards around advocacy. My background includes specialist legal advice to mental health advocates and in my experience it is those cases involving children and young people which a generic mental health advocate would find most complex, most difficult to deal with. From our perspective, the importance is that the safeguards in the Bill are tied into some specialism around children and young people's needs, experiences and other legal frameworks relevant to children and young people. Ms Daly: We have heard the previous representatives speak of the best interest principle with some enthusiasm. What we would welcome is the introduction of that principle to govern decisions about children in general within the ambit of the Bill which would then make tribunals' roles simpler and indeed clinician's roles simpler. There would be a common standard and I think we would all welcome that as a principle within this. Q422 Dr Naysmith: You were all listening to the previous session and you heard the comparison of the Children Act with these proposals. Do you agree that there are some benefits in the clarity in the Children's Bill? Ms Daly: Absolutely. Where we have looked at the previous draft Bill and this draft Bill, we have consistently argued for the introduction of the welfare check list which is found in section one of the Children Act. It was particularly welcome to hear clinicians impressed by the value that this would offer them. Q423 Chairman: You mean the previous witnesses? Ms Daly: Yes. That was very welcome indeed to us. Mr Davis: I am not a lawyer in any sense, when you talk about check lists or the balance. It is a very complicated issue. Should a child be able to overrule his parents? Should the parents be able to say what happens to a child? How does that work? It is so specific to the child. For instance, there are many children that are very impressed by their parents. The clinician needs to encourage them almost to be able to have a voice. On the other hand, you can have children suffering from almost the opposite. They do not feel safe. They have not had the boundaries. They feel out of control, in which case sometimes it is very important that parents overrule them. If you want to rely on clinicians to decide, fine, but clinicians have a lot of variability. All of you will have gone to see your doctor and decided there are some doctors you think are good and some that are bad. When you have lack of clarity in the legislation about the requirements, you are leaving so much to discretion when it is such a complicated issue for children and such an important one, because children need to feel safe. Ms Munn: I am very interested in repeating the welfare check list from the Children Act into the Mental Health Bill because one of the issues that is in the check list, for those who do not know, is that we should have regard to the child's wishes and feelings. One of the reasons that is very clearly there is that workers generally and adults generally do not pay enough attention to children's wishes and feelings. It is very clear that that needs to be there. There is an expectation that adults generally say much more readily what they want. Do you think that would be helpful in emphasising that, within this area of work, that should be a requirement to get to the issue of wishes and feelings at least? Q424 Chairman: Perhaps we can throw in another phrase there in addition to the question which might be best answered by Ms Daly. Would the introduction of such a check list into the mental health legislation cause legal difficulties? Ms Daly: I come from a social services background so I have worked with both the Mental Health Act and the Children Act. It is like working in two different worlds with different languages, it is that difficult to translate from one to the other. Our enthusiasm for introducing this type of concept is to give a consistency of experience for children as they are dealt with by the law. It seems to me personally to be indefensible that that does not happen. I have worked in both worlds and I cannot understand why. It is visceral. In terms of the complexity of the law, I have not heard an argument against it and certainly in discussions within the Centre it is supported by the lawyers. Mr Baylis: Young Minds is a member of the Mental Health Alliance and I wanted to make a connection with the principles that are being asked for by the Alliance on the face of the Bill and the similarity between the principles needed for the Bill as a whole for all patients and the welfare check list for young people. It is the same basic set of needs. They need to be slightly different for young people but it is the same motivation behind that. Q425 Lord Rix: Can I refer you to the recent Bournewood case in the European Court of Human Rights where it was held that the 1983 Act failed to safeguard the rights of incapacitated patients who did not refuse treatment for mental disorder. How can it be certain that a child is actually consenting to treatment as opposed to not resisting the treatment? What safeguards, if any, are available for children who fall into the Bournewood category of patients? Ms Daly: My recollection is that was an Article 5 breach. Underlying a lot of our concerns about the Bill is the fact that it does not address the issue of children who are "informal" patients. We argued originally that all children should receive access to advocacy services irrespective of their legal status. We have experience of representing children in a psychiatric unit through that advocacy scheme. We provide back-up legal advice to the scheme when required. We have had more business from "informal" rather than formal patients because of the need for those children to have a voice that is heard. I think you would be looking at the whole spectrum of children so irrespective of the question of capacity you would pick them all up through that type of system. I think that is where we have to start. Ms Kelly: From our perspective, the point you have raised is an argument in favour of importing the Children Act welfare principles into this Bill because the idea that as a routine matter of course you would be incorporating and looking for wishes and feelings of children and young people - we are primarily talking about older young people here, largely able to express their views, wishes and feelings if they are given the opportunity to do so in an open environment. From our perspective, it would be that read through into the Children Act that would begin to ensure that children and young people are able to give meaningful feedback and make meaningful choices about their care and treatment. Mr Baylis: The safeguards for this group of children were probably the biggest improvement for children and young people between the 2002 and 2004 draft so they are very welcome, but the issue you are raising illustrates the complexity of working out who is a qualifying child and who is not. This is an extremely vulnerable group of young people and I think it is very important that safeguards are important for anyone who is admitted. Q426 Chairman: We have had a lot of evidence at past meetings about the need to coordinate the mental capacity legislation and the mental health legislation. This morning we have had a clear message from all our witnesses to coordinate the mental capacity legislation, the mental health legislation and the general children's law legislation. Is that a yes from all of you? Ms Daly: Yes. Ms Kelly: I feel that is potentially something that will have to happen because we have talked quite a lot about the 1989 Children Act; we have not talked particularly about the 2004 Children Act, which imposes a new duty on NHS trust strategic health authorities to discharge their own ordinary duties with regard to safeguarding the welfare of children. From our perspective, it is not only a matter of it being desirable that there is some link between the new Mental Health Act and the Children Act. It is necessary. Q427 Chairman: It is absolutely clear that many children who are suffering from mental illnesses are highly intelligent, well capable of understanding what is happening to them if it is explained and capable of making a serious contribution to their own futures. Is there a programme for at least attempting to explain to them what their rights are, what is likely to happen to them and how to have some understanding of the law, rather than merely patronising them by authority? Ms Daly: As far as I know, the only people who have done extensive work on this are Young Minds. Where we are engaged, we do training with staff but we are starting to look at developing direct work with young people who are seeking advocacy, including those young people who have a degree of learning disability, which is particularly interesting because there is a huge communication agenda. That hits you like a brick when you encounter it. I think there is a very good case for introducing a UK wide - certainly England wide - measure for dealing with this as a programme and setting standards. One hates to mention it, but a looked after child under the Children Act has an automatic right to an advocate and enormous experience is held within certain voluntary sector organisations about explaining those rights. We know how to do this. There is expertise out there. Many organisations do very good programmes. Lord Rix: Can I welcome what you have just said very warmly? I am sitting next door to the chairman of the Scrutiny Committee on both the Disability Discrimination Bill and the Mental Capacity Bill. He will agree with me, I am certain - I hope he will - that the thing that has been plugged in all three Bills as far as evidence is concerned is the need for proper, reasonable, properly funded advocacy services. At the moment, the government are without question resisting this. The stronger you can make your statement in this regard the more I welcome it. Q428 Baroness Barker: Many of you were here earlier on this morning when we had a very clear exposition from our previous witnesses about clause 9(7) of this Bill and section 11 of the Children Act and the way in which people who are aged 16 to 18 are going to be potentially treated very differently under children's legislation and this legislation. Given the rights and responsibilities that young people do have from the age of 16, do you think 16 is the right age at which the clauses of this Bill should apply? Ms Kelly: No. I think it is unnecessary, which I think is what the previous evidence suggested. As I understand it, the objective of clause 9(7) is to permit the detention of people who pose serious risk but who are not otherwise necessarily detained in order to provide medical treatment - i.e., potentially consenting 16 year olds who pose a risk. As evidence this morning suggested, section 25 of the Children Act 1989 was written precisely to deal with these sorts of circumstances. It already exists. I do not really see how having this provision adds anything. It potentially confuses the matter. I would raise the age to 18. Ms Daly: I absolutely agree. Health authorities can make applications for secure accommodation orders. Mr Davis: Although the technical terms are difficult for me, the immediate thought when you talk about advocacy is that it is wonderful to have the principle and I would support absolutely that everybody should have the right for an advocate but my personal experience of advocacy is that there are not any teeth. They are often quite intimidated by the doctor's system and there is nothing is disempowering as approaching an advocate and seeing that they are really unable to do anything. A lot of the points I wanted to make are not in the questions that you are asking but one of the main points is about what happens. When you are a kid, or an adult for that matter, and you are mentally ill you are very distressed, especially as a kid. Mental illness is even harder because you are not just dealing with the mental illness. Emotionally and cognitively you are not developed. How do you help someone? The answer is that the knowledge is out there about how to help people with mental illness, how to help with emotional problems. It is not implemented and if I could argue for anything within this legislation it is not just about the right for advocacy or the right for this or that. It is somehow ensuring that the quality of treatment actually occurs. One of the important points you have to understand is there is a really wide net here for compulsion. If you are looking at positive outcomes, what creates a positive outcome is a sense of partnership. When you have a mental illness, to get over it you are going to have to take some very difficult steps and face very difficult things. If it is psychosis, it may mean taking horrible medication. It may mean stopping taking substances that are very addictive. If it is obsessive compulsive disorder, it means doing things that scare you a lot. If you have somebody saying, "You will do it" and throwing you into a situation that you are not buying into or you are feeling powerless, the important point is empowerment, to help people feel that they can buy into it and that they want to do it. The minute you make it compulsive or make somebody an in-patient, what you are doing is reducing the chances of them getting better. The minute you become an in-patient, there is a massive loss of power, dignity and self control. That is why community outcomes are so much better because people maintain all those elements of choice. If you are leaving a really wide net to compel people, the last thing you want to do is, by making a lot more people detained, reduce the chances of being able to help them effectively. The reason it is important to have very strict criteria and a very clear principle that informal treatment and treatment in the community should be much preferred is because it is much more effective. People relax and get better a lot quicker. If you are going to detain people, you have to think very carefully about how you do that, maintaining people's sense of empowerment, dignity and choice. Moreover, you have to make sure that what you are saying is going to happen for them is occurring on the ward. Q429 Chairman: Understanding absolutely what you say - that was a very valuable contribution, if I may say so - you will have known quite a lot of service users and talked to them as friends over a period of time. Would it be right that some of them feel safe, at least for short periods, because their autonomy has been removed from them, albeit that they want their autonomy back but, for the time being, the safe haven is more comforting for them; or is that wrong in your opinion? Mr Davis: It is not wrong but it is not just kids. There are so many prisoners in prison that do not feel safe outside of prison. There are so many people that feel so out of control and there is so much of a lack of boundaries and structures that they almost need to be contained. That was my original point about whether children should make decisions above parents. It is such a complicated issue but it is not solved by keeping people in physical containment; it is about doing the work that is needed to help them feel safe. You have to ask yourself what needs to be in place to best do that work. Is it that, instead of doing that work, we are putting people in institutions and containing them through law or is the law enabling the clinicians that know how to help those children have those boundaries within themselves to do that work. Q430 Chairman: Returning to Lady Barker's question, do I understand you to be saying something along these lines: that having legal definitions put to you does not help you at all? What you are looking for is the best possible outcome which is going to make you an autonomous person, not in a hospital but at home or preferably in your own home if you are approaching adulthood? Mr Davis: Absolutely. You should be very careful about widening the remit for compulsion or admitting people as in-patients because generally it reduces the effectiveness of treatment and encourages relapse for all the reasons I gave about not having that sense of partnership. Therefore, it is important that you have clear definitions for why people should be detained. Secondly, if you are going to detain people, the main focus should be how do you do that while maintaining people's dignity so that you are not reducing people's chances of getting better and how do you use the law to make sure that what is going on, on the wards or in the detained community setting, is what should be happening, because there is a great big theory gap. You go on to the wards; you are looked after mostly by people who have no training whatsoever. There are no psychologists to see you. Psychiatrists see you once every six months. It is about can you use this Mental Health Act to improve the care of detained people and can you make sure that detention in itself does not reduce the chances of people recovering and staying well. Chairman: This is a helpful phase in the evidence and I wonder if there is any other member of the Committee who would like to put some specific questions to Mr Davis, who is on a role of very eloquent evidence at the moment. Q431 Baroness Pitkeathley: Have you any idea about how you ensure this treatment takes place? If you were organising it, how would you ensure that what goes on on the ward is what the people on the ward need? Mr Davis: If you make legal requirements for audits so that it is not just a case of someone being detained; therefore it is up to clinicians and nurses to get on with it and that is where the legal detention ends until a tribunal, where they say, "Are you well enough to be discharged? Are you not?" and the answer is, "No, you are not." Therefore, you go back. You are getting somewhere by saying that the tribunals have to okay care plans, but what it means is having a system where you can monitor: is this treatment occurring, not just because nurses or doctors are saying it is happening, but involving service users and advocacy in regulation assessments of what is happening on the ground. If you can use this legal framework to make a requirement with sanctions if it does not happen that people get the care they need when they are detained, I think that would be a tremendous improvement in mental health quality. Q432 Laura Moffatt: It must be an issue of variability because last week a couple of members of the Committee were at a child and adolescent in-patient unit which appeared to us to be superb, with lots of contact, lots of professionals, people trained. It seems to us it is the variability issue that is so crucial to this whole debate. There were a lot of Young Minds leaflets there which I thought were superb. What work is going on to map out where the best and the worst units are? I think that would be very helpful to us. Mr Davis: I cannot say that I have done any work on that. Mr Baylis: Young Minds has done several research projects looking into in-patient care. Almost certainly a unit would not have been comfortable inviting you there unless they were very confident about their care. We spend a lot of time interviewing young people and professionals, asking what they needed and wanted. One of the things that came our particularly strongly was that the experience of admission and compulsion is very frightening. Sometimes for young people this can be the first time they have lived out of their family home. Other young people have much more disruptive backgrounds but more information and preparation for admission would make things a lot less anxiety provoking. Q433 Mrs Blackman: How might the Bill improve practice? Mr Davis: A lot of the focus is on what happens when somebody is compulsorily detained and what mechanisms can you put in place to make sure that (a) the care plans that are being drawn up for that person are suitable and (b) that they are actually being implemented. If that can be a requirement for some sort of evidence to be shown, not just from the doctor or the nurse, that these treatments are occurring and how they are going, a regular review, I think that would be a very useful requirement within the law. You ask why in-patient services are so variable. You were talking about violence. I would argue that 90 per cent of violent incidents, whether in adolescent units or adult units, are nothing to do with mental illness. If you ask a nurse, they would say, "They have an illness. It is badness", but I would argue differently. I would say you could take 100 people - we could take you lot - and put you on a ward where you feel disempowered. You have lack of choice; you have lost your dignity; you feel you have no say, that there is nothing you can do. You are having unreasonable decisions put on you. Especially if in your past the way you resolve those situations was from getting into a fight, you would have an incident. Are people mad and dangerous because they are mentally ill or are they simply responding normally to a very disempowering situation which is why community care is very important. Compulsion in the community must be carefully done, not to undermine all the benefits of the community which are about the maintaining of dignity, making sure that there are appropriate care plans and that they are being implemented, not just relying on doctors to sign and say they are, but having other avenues like carers, patients themselves, advocacy, monitoring how things are going, would be a very useful introduction if you are going to detain people. The previous person said that you should make a declaration to say ---- Q434 Chairman: We are returning to putting principles on the face of the Bill. Mr Davis: He said that on the face of the Bill it should say that informal detention is preferable and I think that is very important because it is the best way of getting the best outcomes. Q435 Baroness Eccles of Moulton: There is one aspect of detention which is probably worth pursuing and that is if the young person is seen to be in a state where they are either at a threat of doing serious harm to themselves or to the public. How do you equate the need to be able to have that person under some sort of control with the disempowerment aspect? Mr Davis: I see them as contradictory. I do not think there are any circumstances where you should allow especially kids to hurt themselves. The message you are sending to a kid is, "Go on, get on with it. OD on heroin. Commit suicide. You are just attention seeking" or whatever. What you are basically saying is, "I do not care." The message that has brought that kid to that point is, time and time again, that they do not care. I am not saying you should just let kids get on with their disruptive behaviour, but I am saying you have to think about how to show them that you care and help them. There are lots of clinical studies about how to do that. It can be done but I am in no way arguing for you to let people who are very ill and vulnerable get on and destroy themselves or others. A lot of the focus on this Bill is about the safety of the public. I need to remind people that 99 per cent of violent crime is committed by sane people. You should be much more scared of the person sitting next to you. The media has not helped. We are scared of mental illness because it does not make sense and it is out of control. You have to be very careful that you are not allowing innate human fear to drive this Mental Health Act when it should be evidence based. Q436 Baroness Barker: One of the things I wanted to ask you was about parents and children and parents being able to override decisions. You were talking about treatment in the community. When we went to talk to some carers, not of children particularly, they took a very different view about community treatment. Under this Bill, the right to choose a nominated person enables people who have mental health problems to have a much wider choice about the person who may wind up making decisions or having an influence in decisions in their life, rather than people to whom they are directly related. We found on some of our visits last week that there was a feeling that sometimes children or young people make bad choices. I would like to know what you think about that. What do you think within this whole dynamic of parents and children the legal framework ought to be? Mr Davis: The whole thing is so complicated. For some kids it is very important to help them stand up against domineering parents. For other kids it is very important that they get the message that the parents do care about them. In my experience when I first became ill I had a very bad family situation. I wanted to be fostered. I wanted a new mum and dad. It was completely crazy. I thought the only solution to my problems was to start again, change my name, get rid of my lisp and have a new mum and dad. Because my parents were not cooperating with the doctors, instead of dismissing it as crazy, they went along with it. I had to tell my parents I wanted to be fostered and my parents said yes. That was extremely damaging because what I needed was for my parents to say, "No. I want you" because they were workaholics up until I became ill. If you have kids that are very angry with their parents, they could choose anybody to be their nominated person. On the other hand, if you do not allow kids to do that, you could have really unhelpful parents that are the cause of the problem and some really helpful people that the kid could rely on and stop it. I do not know how you solve it. Q437 Baroness Eccles of Moulton: You know or have met more people in that situation than we have. On balance, what do you think? Is it better to give people a wider choice or not? Mr Davis: All I could recommend is that you speak to people who have studied this and think about it carefully. Chairman: We have your paper and you have put a lot of thought into that. We will read that with care. Q438 Mr Hinchliffe: In Young Minds' evidence there is a recommendation that there ought to be a duty on health authorities and PCTs to provide enough age appropriate psychiatric wards for detained adolescents. I wonder whether that is a view shared by Christine Daly and Nancy Kelly? Ms Daly: We felt that the Children Act with the new duties to safeguard and promote the welfare of children would lead in that direction and would even permit action to be taken against authorities that did not have those adequate facilities in place. You can also add to that the new duties of the CHAI who also are required in their inspections to look at safeguarding and promoting the welfare of children and the NSFs. There is a range of provisions coming on stream which a failure by a strategic health authority, a primary care trust, could leave open to possible judicial review. Q439 Mr Hinchliffe: What you are saying is that, in your opinion, this does not need to be written into the Bill? Ms Daly: At this stage, it does not. A little bit says, "Not a prayer of getting it past anybody." You would not get that in anyway. Let us use the new powers productively and work with them. Q440 Mr Hinchliffe: Do you concur, Ms Kelly? Ms Kelly: Yes. On principle, we agree absolutely with Young Minds that there is a need to ensure that all children get age appropriate treatment. Our perspective is that that is what section 11 of the new Children Act will do. More broadly than that, what I would wish the Committee to consider is that this Bill was originally drafted long before the Children Act 2004 was even thought of and that there is a real urgent need to look at this Bill again in light of the new duties in that Act. Q441 Mr Hinchliffe: Mr Baylis, would you like to respond to that point? It is your evidence that suggests we need to address this specifically. Mr Baylis: Christine knows a lot more about the legal technicalities. In the code of practice under the 1983 Act it was envisaged that only exceptionally would people be admitted to adult psychiatric wards and that has simply not been the case. Q442 Mr Hinchliffe: How common is it? Mr Baylis: You heard from the Mental Health Act Commission a few weeks ago that it is 260 young people every year being admitted to adult psychiatric wards. It is a substantial proportion of all young people who are admitted under detention and it is a very real problem. The government feels that it can be done just through the performance management tools of inspections and so on. Those tools have been available for all this time and it has not happened. Q443 Mr Hinchliffe: Mr Davis in his evidence a few moments ago said, "Community outcomes are so much better." As a Committee we will want to underline in legislation the ability to achieve those outcomes. I wonder whether we need to look more carefully at the way the legislation is framed in terms of what he suggested because I am very conscious that we concentrate specifically on the hospital side without looking at that very valid point that he made. Would you like to expand on that? Mr Baylis: I agree. If people can be treated adequately in the community, obviously that is much better. If services can intervene much earlier, that also is ideal. This is about the situation where that fails. Mr Hinchliffe: I appreciate the point but we are probably talking about two separate things here and it is my fault if we are getting confused. What I am trying to say is: do you feel, in view of Mr Davis's comments about community outcomes, it is possible to write into legislation of this nature the ability to deliver those community outcomes so that we are not concentrating all the time on the hospital elements of this legislation? Chairman: To deliver those outcomes in the community. Q444 Mr Hinchliffe: That is right. Mr Baylis: The Mental Health Alliance believes if someone is ill enough that they need to be treated compulsorily they are ill enough to be treated in a hospital. If someone could be treated in the community, they are not likely to be ill enough to need to be treated ---- Q445 Chairman: Is that a logical answer? Why should there not be a patient who requires some form of compulsory treatment but who can be treated in the community subject to their complying with that compulsory treatment? Mr Baylis: It could happen in exceptional cases, but the danger is that if community treatment is allowed with the very wide criteria that we have there is a possibility of a huge increase in compulsion. Q446 Chairman: If Mr Davis is right and community outcomes are of great value, subject to safeguards for example in the code of practice, why on earth not? Mr Baylis: It is much better for people to be treated in the community. The problem is that you may also get far more compulsion under the draft Bill. That is the danger of a widened definition and the implicit criterion of being able to find the hospital bed to treat someone in, which you have in the 1983 Act. Mr Davis: When you maintain someone's sense of dignity, choice, self respect, partnership and ownership of the treatment, because they are going to have to sustain things which are going to be very difficult, your outcomes are much improved. There is such a broad definition of mental disorder. You could round up every delinquent child and section them and treat them in the community. That would not be beneficial unless (a) you have thought about how to do compulsion in the community without undermining that sense of independence and responsibility and (b) I think it is very important that you restrict and make very clear what sort of kids should be detained. If you ask any psychiatrist, diagnosing an illness in a kid is virtually impossible. It is not clear what mental illness a kid has until really they reach virtual adulthood. It was only recently they agreed that kids could suffer with psychosis. What a kid is ill with is very hard to nail. If you are going to say, "We are going to detain you and keep you in the community. We are not sure what your illness is and, by detaining you, we are removing that sense of power" that could be damaging. On the other hand, if you can use it to say, "This is a treatment programme. If you comply with it you can stay in your home" I think that would be useful. Q447 Lord Carter: To come back to the principles being on the face of the Bill, which I think almost all our witnesses have agreed to, we have also spoken a great deal about the welfare of children and the evidence of Mr Davis is extremely compelling. If you think about it, the definition in the Children Act is that the welfare of the child shall be paramount. If you look at the 2004 Act, their functions are discharged having regard to the need to safeguard and promote the welfare of children. That is not a duty. "Having regard to" is not the same as having a duty to promote. We see how hard it is when we try to advise the government on the wording of these principles and how they can meet the patient centre requirement, which we all understand and sympathise with, and the law. Ms Daly: The point is so well made. I am also aware when I talk about the Children Act and the paramount welfare principle there is a caveat that allows, in certain circumstances, the best interests to be disregarded. It is when there are particular circumstances where the child poses a danger to other people. In that case, the local authority may disregard the welfare criterion. Q448 Tim Loughton: Can I come back to the disempowerment point Mr Davis was making? I think his last comments might have disempowered the clinical professionals we heard from earlier. What I am fascinated by is if the numbers subject to compulsion were to remain the same after this legislation, which most of us suspect they will not, and your point that one of the biggest problems is the sense of disempowerment of young people when they are subject to that compulsion in a hospital or whatever, if they are subject to compulsion and community treatment orders in the community, would young people feel the same sense of disempowerment as they would in a hospital and therefore be just as less likely to react well to treatment as they do in a hospital? Is there a desirability about compulsion in the community over compulsion in general? Mr Davis: There are many more good examples of good practice in the community than you will find in in-patient care. That is generally because in-patient care is very disruptive, far from being a healing environment in which to get better. I am not talking specifically about CAM services. I am talking about in-patients across the board, adult and children services. My gut feeling is that, wherever possible, you should be treated in the community, but it is not rocket science. It was in one of the documents submitted to you that lots of people ask for help but do not get it. If the people who asked for help were given that help at that stage, they would have a sense of control, autonomy and partnership. Their illness would not be so acute. They would be treated in the community and they would be less likely to relapse and get better quicker. All the effort has to be directed at, when people come for help voluntarily, giving it to them effectively and voluntarily in the community. The more you can concentrate on that the fewer people you will have to detain. For those you do have to detain, I think it is about how you implement detention while hopefully giving, in some senses, that sense of choice, empowerment and dignity and secondly, once they are detained, how do you make sure that the care you have agreed for them to have is happening so that they have the best chance of getting better. If that was the structure of the Mental Health Act in terms of priority, it would save a hell of a lot of money. Hospital care and detention are very expensive. A revolving door is very expensive as well as being a human tragedy. It makes me so angry because when you do get the right treatment, when you are lucky enough to have the few professionals coming together to give you the right treatment, you can get better. Q449 Chairman: It puts it into stark relief if I refer to my own experience as a parent here. One of my children who is now happily much better and an adult, as a teenager, was referred by a general practitioner to a general adult psychiatrist in an expensive private unit at vast cost to an insurance company. It was three to four months before we realised that she was being inappropriately treated and very heavily sedated with inappropriate drugs. She was then transferred to a National Health Service unit specialising in child and adolescent mental health services and, within a few months, became a great deal better and started on the road to recovery that Mr Davis has just been referring to. Is it a common experience that psychiatrists who specialise in general adult psychiatry have an inappropriate and disproportionate input into CAMs before CAMs gets there? Is that a general problem and, if so, is it something that is being addressed satisfactorily? Mr Baylis: It is certainly the case in certain circumstances. For example, if I am a 16 year old and I turn up in A&E after taking an overdose, the chances are the first mental health professional I meet will be someone specialising in adults. It is something that children's mental health services at the moment are not able to do, to provide enough cover to meet that need. If there is an emergency admission, it is far more likely that I will be admitted to an adult unit rather than a children's unit because there are not many children's units which take emergency admissions like that. Ms Daly: From the work we have looked at, there is a long history of failure to work up the age to which child psychiatry should go. It has tended to relate to school leaving age. The Audit Commission identified a range of ages from 14 up to 20. The view we have is that it should be up to the age of 18. Then you can dovetail with other provisions and services much more easily to secure the support systems that you need. Generally speaking, it can be a lottery. It depends on where the child is, who they see, where the resources happen to be sited. It is not about a systematic, thoroughly thought through, thoroughly understood response to the needs of children and young people. Mr Davis: What you said about the private care very much interests me. I do not know if any of you are involved in the government's decisions about how to run the NHS, but it should ring a lot of alarm bells. In my personal experience and from what I have heard, once you start to move into the private sector quality really goes down because either they charge you a hell of a lot more to provide you with the same care as you would get in the NHS so that they can make a profit; or they charge you the same price as you will get in the NHS but cut lots and lots of corners in terms of quality. They have no reason to get you better because so long as you are there they have the guaranteed income. It is all about presentation and packaging. Q450 Chairman: They have their ethical duties. Mr Davis: Ethics and business do not really wash together. Q451 Chairman: I was not making a point about private health care. Mr Davis: I was making it though because it is relevant to some degree. More and more mental health services are being provided that way. In terms of kids, you have just heard about the numbers treated on adult psychiatric wards and that really answers your question about a significant number of people. I was once a 14 year old on an adult ward, so it certainly happened to me. Q452 Baroness McIntosh of Hudnall: This leads me to probably a rather crude and insensitive question given the quality of the evidence we have had. There has been a lot of talk about how much better the service would be if it were possible to guarantee the kind of attention that Mr Davis has said that young people - and I would say adults as well - deserve when they come forward with severe mental health problems. We did not get a chance to question our clinician guests earlier, but what we have heard from other witnesses is that there is a severe problem in recruiting and retaining mental health professionals. This is something to do, it would appear, with the culture into which people are coming when they take on these jobs. Is it your view - I do not address this question to anyone in particular - that with the best will in the world it is possible to meet the standards that you are quite rightly suggesting this Bill should aspire to if it is not possible, just in numerical terms, to recruit the people to provide the services? Ms Kelly: It seems to me that several of the questions the Committee have posed have been about how you create a continuity of care beyond compulsory treatment into the community. From our perspective, some of that is about integrating the systems particularly that deal with children. It is about integrating the 1989 Act so you are working from a multidisciplinary basis and a continuum up and down which children and young people can pass. Your point about recruitment is of course absolutely well made. It applies equally well to social care. As an agency that employs a great number of social workers, what Barnardo's has found is that being able to offer our social workers an opportunity to work in that kind of multidisciplinary environment, where they are working across a continuum rather than being required to do just sharp end interventions, has meant that our recruitment and retention is significantly better than in the statutory sector. I think the two things connect providing a much more flexible continuum of care for children and young people and will attract professionals who want to work holistically and who want to commit to effective community care for vulnerable children and young people. Q453 Baroness McIntosh of Hudnall: Can I ask you to tell us in what way you think the Bill could be amended to make it clear that that kind of cross-disciplinary approach to dealing with mental health issues could be effectively strengthened? You have talked about read across from this Bill to at least two others and probably several more that you have not yet thought of but specifically within this Bill can you see what it needs to say that strengthens that argument that you have just put to us? Ms Kelly: I have some suggestions but I am not so competent a lawyer as to do the read across of four Bills at once. One of the issues is the basic one about making explicit the connection with the 1989 Children Act because then you are automatically framing this in terms of a system that works in that way. Some other issues would be around looking at confusing terminology in this Bill. The use of the words "care plan" in this Bill is extremely confusing for those of us who work in the Children Act. The care planning process is different and the care planning process for the Children Act, in our view, is preferable. There could be some very straightforward things about making it very clear that, when you are saying care planning for a child subject to compulsory treatment, you mean the same kind of thing as care planning for a child subject to a Children Act order, a multidisciplinary, regularly reviewed, advocacy based way of working. Those kinds of concrete connections are going to link in the same way of working across a continuum of care. Mr Davis: It is no wonder that you have problems in recruiting. I think I am referring more to adult care here than children care but, just as I said in-patient care is not a healing experience for a patient, if nurses come in and find that they are not able to do the work that they want in terms of holistic care but are just giving out tablets and filling in forms, is it surprising that they do not stay? When you say, with the best will in the world, given these problems can we do anything about it, would you be saying that if it was your son, daughter or husband? You would say, "Address the cultural issues that mean people are not wanting to work there, that are causing the recruiting crisis because my son deserves to get better." Every child or adult under psychiatric care is somebody's husband, wife or child. The best nurses are the ones who think: how would I deal with it in that situation? You have to keep that in your heads. It is one in four and it could directly affect your lives if it is not sorted. Baroness McIntosh of Hudnall: There is a practical matter about what the Bill can say. Chairman: Perhaps Barnardo's and the others might like to consider this further and write to us. Lord Mayhew of Twysden: Mr Davis said there should be an audit and sanctions for failure to achieve what has been willed by the Act. I can understand the audit but perhaps you would write to us about your ideas as to what the sanctions could practically be. Q454 Baroness Murphy: I wanted to raise the issue of the coordination of the Mental Health Act and the Children Act again. Would it be helpful to put into the Act a part which specifically refers to treatment of children and young people? It almost seemed to me that in the 1983 Act it was rather a mess and it was not dealt with separately. Would it be helpful to have a separate part as we have for the criminal justice effects of the Bill? Ms Daly: We would be delighted to see a part in the Act that addressed children, including those in the criminal justice system who have been sadly neglected by us in this morning's discussion but about whom we have profound concerns. We have not talked about the education and special needs aspects of this agenda. A child who is 'statemented' will at least have a right to the service. A child who simply is assessed as needing some support may lose that when the financial circumstances change and that may be in the control of the school and not the local education authority. At the risk of frightening the horses, one might suggest perhaps that any child for whom in-patient care is considered and certainly for whom compulsion is considered should have a Children Act assessment and an education assessment. Chairman: I have a sense that we have covered all the issues that we intended to cover this morning through the whole of the evidence that we have heard. I apologise that we have not been able to deal in detail with all the questions we had in mind but we have to finish now. Can I thank you all very much for coming and giving your evidence this morning? It has been extremely helpful, as with the previous witnesses. All members of the Committee should look at the Select Committee on Delegated Powers regulatory revision memorandum to the Joint Committee and in particular the introduction and the part dealing with clause one. |