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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 95 iii HOUSE OF LORDS House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE joint committee on the draft mental health bill
joint committee on the draft mental health bill
Wednesday 8 December 2004 PROFESSOR NIGEL EASTMAN and PROFESSOR TONY MADEN MS JAYNE ZITO, MR MICHAEL HOWLETT, MR NICK O'SHEA, MS ETHEL SAMKANGE, MS SUE KESTEVEN and MS LUCY SMITH Evidence heard in Public Questions 456 - 528
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Joint Committee on the Draft Mental Health Bill on Wednesday 8 December 2004 Members present:
Witnesses: Professor Nigel Eastman, Consultant Forensic Psychiatrist and Professor of Law and Ethics in Psychiatry and Professor Tony Maden, Professor of Forensic Psychiatry, examined. Q455 Chairman: We are extremely grateful to you, Professor Eastman and Professor Maden for coming. Your reputations have travelled here well ahead of you. Could I just remind you formally that this is a public evidence session and that you will have the opportunity to make textual corrections to the transcript, but only textual. A transcript will be produced and be available on the Internet after about one week. Although this room looks as though it has a very good microphone and loudspeaker system, it does help if all witnesses speak up rather clearly, please. We have a session which is targeted to run until about 10.35, quite a short session. I would ask you, if you would please, simply to identify yourselves and if you are willing then to go straight to questions. If you would like to make very short introductions then please feel free to do so though, of course, this is intended to be a question and answer session rather than a paper session. Professor Eastman, do you want to introduce yourself? Professor Eastman: I am Nigel Eastman. I am Professor of Law and Ethics in Psychiatry at the University of London. I am Head of Forensic Psychiatry at St Georges' Hospital Medical School and I am a consultant forensic psychiatrist in the National Health Service working in medium security for about 50 per cent of my time, I also have community patients. I should declare, perhaps, also, two other things. One is that I am Chair of the Law Committee of the Royal College of Psychiatrists, and that Committee was responsible for drafting the White Paper response and the first draft Bill response but not this Bill response. Also I should say that I was co-chair of a think tank that the Department of Health funded and sponsored pre-Richardson, that was with Dr Jill Pia (?) of the LSE, and that was published. Q456 Chairman: Thank you very much. Professor Maden? Professor Maden: I am Tony Maden, I am Professor of Forensic Psychiatry at Imperial College and the Clinical Director of the Dangerous and Severe Personality Disorder Service within West London Mental Health Trust. Q457 Chairman: Thank you very much. Can I start by asking you if in your respective views there are significant differences between the draft Bill's proposals for dealing with mentally ill persons concerned in criminal proceedings and current provisions for that group of people under the 1983 Act? Professor Eastman: We have agreed how we will do this, so I will go first on this one. It has been implied that there are not many differences and that it looks much like the existing Act. I do not agree with that, I think there are substantial differences which reflect the overall tenure of the Bill in Part 2 but actually go beyond the tenure of Part 2. The good news is that certainly the College and I think that it is simpler than the present arrangements and so in terms of process and procedure I think it is better. All of the Part 3 Orders are, I note, based on very, very loose criteria, even looser than those in Part 2 of the Bill. All they require essentially is that it is appropriate that the person have medical treatment and that it is warranted and the treatment is available. If I am invited I will say what I think about that but in summary I think it is far too broad, it is even broader than in Part 2. Of course the treatability criterion for personality disorders, psychiatric disorder and mental impairment have gone by virtue of a common definition of mental disorder. Secondly there is no section 38, which is the Interim Hospital Order, I think that is a loss for reasons which I will explain if people ask me. Of course treatment is very broadly defined in this Act, as it was in the 1983 Act, and I note particularly the GMC's response to this which is that it suggests that what is being suggested is that it is not really medical treatment in some regards in terms of education and training. There is no risk or health criterion for discharge from a restricted Mental Health Order, as it would be, as there is under the current Act for restricted Hospital Order. There is the extension of the use of the Hospital Invitation Direction, which is now the Hospital Direction, to all people with mental disorder. I think that presents some opportunities but many dangers. Of course as a doctor you cannot recommend a Hospital Direction, you can only recommend a Mental Health Order and then the judge decides not to follow that and go elsewhere. I have nearly come to the end of my list. I am interested to note that the Restriction Order evidence can be from a clinical supervisor, although in relation to making the basic order that has to be two medical practitioners. Finally, of course, the courts determine the care plan initially, about which I had grave reservations, and linked to that I think there is absolutely no logic to the Home Office retaining its power over the transfer of patients between different hospitals and different hospital units when the core of the care plan which the tribunal operates is the location of the care plan. In summary, those are my readings of the differences between the 1983 Act and the proposed Bill. Q458 Chairman: If I can only very slightly caricature the views presented to us by one chief constable, they are that the provisions of this Bill would give him a welcome opportunity to take dangerous people off the streets, whether they had committed criminal offences or not. Do you think that is a caricature of the Bill? If it is not, do you think it is acceptable for that to be the effect of the Bill? Professor Eastman: I think, with respect, that goes beyond Part 3 of the Bill and I was dealing just with Part 3 where there is a conviction or in a magistrates court, they think the person has done it. I think the caricature is largely correct. My own approach to mental health law is that there should be as much congruence with common medical law as is possible and therefore as much separation as possible from criminal justice provisions. I think that if you broaden it out to the issue of civil detention, which I think is what perhaps the officer has in mind, then clearly the extraordinary broadening of the criteria within Part 2 combined with a lack of exclusions and the lack of discretion to apply orders, both for the clinicians and the tribunal, I think not only invites it, it almost infers it automatically. Q459 Chairman: Can I just return to something you said about care plans being in the hands of the court. You expressed a strong antipathetic view towards that proposal, could you just give a main reason for expressing that view so it is on the record? Professor Eastman: Because my experience of courts, with all due respect to senior judges, is that they have relatively little exposure, infrequent exposure, to the detail of treatment. They simply accept recommendations or not, that there should be a hospital disposal. The detail they are not usually interested in or experienced sufficiently to adjudicate on, even with expert assistance. By comparison the tribunal is a very different animal. For that reason, combined with the fact that there is not even a duty for the judge to consult an expert from the panel. Q460 Chairman: My final question on this is do you think that a sentencing court ought to be required rather than permitted to appoint a member of the expert panel to report if the court is considering a Hospital Order? Professor Eastman: I think I have just answered that and the answer in my view is yes. Chairman: Thank you. That is very clear. Q461 Baroness Murphy: This follows well, because I think Professor Eastman you have touched on this already. Reviewing previous Government proposals, both of you have suggested that the inclusion of public protection issues in mental health legislation is problematic. Professor Maden, I am going to quote you, if I may, "a new and coherent strategy for high risk individuals led by the criminal justice system, with psychiatry in a secondary supporting role" is what you are calling for. I wonder if you can tell us more about how you see the proposals in the draft Bill playing into your concerns on that? Professor Maden: I think the proposals in the draft Bill do not meet my concerns but in a sense one could ask why should they? After all it is mental health legislation which is meant to set out circumstances in which compulsory treatment may be appropriate, it is not meant to be a complete strategy for dealing with dangerous people. I think the concerns are well illustrated by the chief constable quoted earlier. I think there are unrealistic expectations on some sides. Mental health services will not be solving the chief constable's problem of dealing with dangerous people and I would suggest that as a chief constable that is his primary responsibility. I think if one was to put in dangerous mentally disordered people then we would be closer to being able to work together. I think the risk with the draft Bill as it stands is that it takes away a lot of the existing barriers or gatekeeping functions that the old Mental Health Act allowed. On the one hand, that is a good thing, and I support the broader remit without strict exclusions, for example untreatable personality disorder, addictions, drug and alcohol problems; on the other hand, if that gatekeeping function goes, what is going to be put in its place? I have seen no sensible discussion within the Department of Health of how the mental health services will guard against the wholesale transfer of prisoners, for example - most of whom have a mental disorder - straight into health service beds. Now that is not going to happen but the way in which it is not going to happen is not at all clear at the moment. I know that goes beyond the draft legislation but it is an important contextual concern. Q462 Baroness Murphy: Picking that up, if I may follow up, you have both written in other papers about the wrong profession being asked to take on the wrong role? Professor Maden: That is correct. If one looks at this in an international context, we are probably the only country that sees mental health services as taking the lead in dealing with psychopathy, dangerous severe personality disorder. I am not sure that we are right and all the others are wrong. Q463 Baroness Murphy: Professor Eastman, do you have any comments? Professor Eastman: Can I say these one or two things. The first is that the origins of this Bill in my view can be traced back to two patients: Michael Stone and Clunis. You can see Clunis reflected in the Community Treatment Order and Stone reflected in the abolition of the treatability criteria. Now it seems to me that one can construct all sorts of gates to try to restrict the number of people coming into the health service in all sorts of ways. You need to think also about which are the best or the right gates, and I think best and right are separate arguments but I would want to argue for both. My own view - and it is the view of the College as a whole, albeit there is a different view within the Faculty for Psychiatry - is that the criteria in Part 3 should be the same as the criteria recommended by the College which is an impaired decision making criteria, treatability or therapeutic benefit. It seems to me what it would do is both protect the patient, in various ways, but also protect psychiatry from becoming something different from what it is supposed to be and leave to the criminal justice system that which is its own responsibility. It does seem to me that the core of this Bill, particularly in the civil bits, if you like, is that it encourages an extraordinary blurring of the social roles of the justice system and doctors and other mental health professionals. I think if you imagine just the practicality - going from what is right to the practicality - of untreatable people in hospitals, not just in special hospitals but in all sorts of other hospitals, you are creating snake pits. Q464 Dr Stoate: We have got to a very important philosophical point. I would just like to pick up a point which Professor Maden made just to tease that a little further. You said you would be happier if you were dealing with dangerous mental disorder people rather than just dangerous people. You went on to say, also, if I heard you correctly, that most people in prison do have a mental health problem. Now it strikes me that it is very difficult to tell the difference because if someone is dangerous, if they really are very dangerous, is that not almost by definition saying they have got a personality disorder because presumably if they did not have a personality disorder they probably would not be dangerous? In which case I think we do need to try and understand where the distinction comes between somebody who is dangerous and somebody who has a personality disorder because I think many people would find it pretty difficult to distinguish between the two. Professor Maden: Yes. Q465 Chairman: Professor Maden, I would just remind the Committee that in a very recent ministerial answer in the House of Commons it was said, if my memory serves me correctly that 90 per cent of prisoners have some kind of mental disorder. Professor Maden: That is correct. I think this is an extremely difficult area but a crucial distinction is between mentally ill and mentally disordered. I think that a lot of the confusion arises when people blur those categories. Q466 Dr Stoate: You used the term mentally disordered. Professor Maden: I did say mentally disordered, that is correct. The mental disorder of which we are talking is personality disorder or psychopathy most commonly and the problem is that the definition, for example, of anti-social personality disorder in the DSM American classification is virtually synonymous with habitual criminality, and it is not satisfactory. People tend to proceed when they are doing research, such as the ONS study in prison, as if "Oh, well, we know it is not entirely satisfactory but we will do our best" and I think that leads potentially to some very misleading results and conclusions. The step I would like not to follow is that because a person is both dangerous and suffers from a mental disorder then the lead in their management should necessarily be taken by mental health services. It may be that as in most countries the lead for dangerous people with psychopathy is taken primarily by the criminal justice system with mental health in a willing, enthusiastic, supportive role but nevertheless supporting the criminal justice system. The difficulty often is that those mental disorders do not respond readily or rapidly to treatment. The problem in simple terms is that once you have taken them into the hospital how do you ever get them out because the same risk indicators that led you to admit them in the first place will still be there five or ten years later. The nature of psychopathy and the gold standard for measuring psychopathy is that it does not change so the same psychopathy score that results in your admission will still be present 20 years later and that poses a massive dilemma for a health service operating primarily on the basis of risk in its release decisions. Professor Eastman: Could I add that within the 90 per cent there is a group of mentally ill people who do not need to be in hospital. They are the equivalent of those in the community who are treated by primary care or secondary care, if you like, within the home which is the prison so you have both groups of people who do not need to be in hospital. Q467 Ms Munn: I just want to raise some issues around the whole concept of treatability which may have led to a view that it was not helpful for it to be in the Bill. Three things. Firstly, treatability, whether somebody can be deemed to be treatable or not, has been or could be or may have been used for a reason for mental health services not to work with somebody, that is the first issue. Secondly, our knowledge and understanding of mental health generally changes, what might be deemed to not have been treatable 20 years ago might be treatable now or might be treatable in 20 years' time. Thirdly, this whole issue about personality disorder. It is a long time since I had any experience of working very close to mental health services but people said "A personality disorder by definition is not treatable, therefore these people are not our concern" and, again, that issue linked back round to is it just another reason not to work with somebody who has some needs in that area? Professor Maden: In my view treatability has to go as a criterion for whether compulsion could be used within mental health services because I believe it has been used in the way that you describe to refuse effectively to offer services of any sort. Psychiatrists grossly misuse the treatability criterion in the 1983 Act in order not to provide even voluntary consensual services to people with that diagnosis, so it has to go. That is not to say that problems do not follow from removing it. As to the question of whether treatment has improved, the situation is that now we know more about the use of psychological treatments to reduce risk of offending behaviour in sexual and violent offenders. I think I am quoting the Zito Trust evidence, it is now well established that cognitive behavioural treatment can reduce risk in sexual and violent offenders, and that includes a lot of offenders with personality disorder. Having said that, so far it has not been established that that same treatment can be effective in people with established psychopathy so the severe end of the spectrum. The jury is still out on that I guess but if I was asked to say "yes" or "no" today I would say that no, those techniques on present evidence do not produce the same reduction of risk in the most severe personality disorder offenders. In a way that treatment of violence and offending risk fits very poorly within a mental health model because the most seriously ill people, the most seriously disordered people are least likely to benefit from the psychological intervention. It seems to me the way forward would be in the use of powers of compulsion more widely for people with personality disorder to establish compliance within services but not necessarily admission to hospital. Q468 Chairman: Can I just interpret that. Does that mean that you are in favour quite strongly of the compulsory community option? Professor Maden: Within the Bill in general? Q469 Chairman: Yes. Professor Maden: Absolutely, I think it is the single most important positive element. Q470 Chairman: I am glad I asked you that question because you have given a very clear answer to it. Professor Maden: And it will have massive ramifications for the management of mentally disordered offenders who are not subject to restriction orders at the moment where the lack of compulsory community treatment delays their discharge and in future the ability to impose the discharge will allow them to move through the system more quickly. Q471 Baroness McIntosh of Hudnall: I think some of what I want to ask has been clarified by the answers to Ms Munn's questions. Could I be absolutely clear about one thing. You have made a distinction between mental illness and mental disorder. Would I be right in thinking that all those who suffer from mental illness to some extent exhibit mental disorder but that not everybody who has a mental disorder is mentally ill? Would that be a fair summary of how you make that distinction? Professor Maden: That is correct, and I apologise on behalf of psychiatry for the confusing terminology. It is convention to regard everybody with any diagnosis at all as mentally disordered, and that includes the two main groups for these purposes of the mentally ill and those with a personality disorder. Some mentally ill people have a personality disorder as well. Q472 Baroness McIntosh of Hudnall: Yes. I think this is rather an important bit of clarification because I want to ask you whether the Bill sufficiently makes it clear what the distinctions are between different kinds of mental disorder as you have now elucidated them? Professor Maden: It seems to me that the Bill deliberately opts out from that and says we are not going to say anything about mental disorder but leave it to the professionals to sort out, and that includes professionals within mental health and within criminal justice. There is ahead a massive - battle may be the wrong word - heated discussion and argument to be had within the profession if it remains as it is because it is asking the professionals to sort out a lot of very difficult issues that certainly they have not sorted out yet. Q473 Baroness McIntosh of Hudnall: Do you think that the Bill can be amended in its current form so as to unpack some of that and make it less subject to interpretation at a later stage by professionals? Professor Maden: Certainly it would be desirable that there should be some guidance. Baroness McIntosh of Hudnall: Desirable it unquestionably would be but is it possible? Q474 Chairman: You are not a legislator are you? Professor Maden: Yes. Q475 Chairman: I can rescue you from a very difficult question, not that you need rescuing. Professor Maden: In fact one of my guiding principles is not to step outside the area --- Q476 Chairman: It does raise an issue about the problem of the Committee not knowing what is in the code of practice because it does not exist yet. Professor Eastman? Professor Eastman: I take your point but I think the problem is not in the definition of mental disorder, it is in the lack of exclusion clauses and the lack of tight gateways thereafter. I would not tinker with the mental disorder bit, I would do something to the rest of it. Can I just say one thing generally about the code which the Chairman just referred to. I believe there is a presumption on the part of the Department of Health, even the Home Office, that sensible people, be they clinicians or tribunal members, will behave sensibly and that there will be a sort of values-based approach to it. You may have heard this term already. I think that is inadequate because I think you need legal constraints and sufficient legal definitions in order to restrict the way in which the Act is used. My Lord Chairman, I will be stopped if I should not but I would like to give an answer to the question about treatability because my answer is rather different from Professor Maden's. I think the first thing about treatability is it depends what you mean by treatment and treatability. I think Professor Maden and I may have a slightly different notion of treatability because I would not equate it with the reduction of offending behaviour, and he will tell me if I have got his view wrong. That is the first point. The second point is that I think therapeutic benefit to the individual is of crucial importance in terms of protecting the boundary of what is the business of mental health professionals. I am not at all against protecting the public, of course not, but it must be in conjunction with some benefit to the individual that goes beyond simply stopping them offending. If you adopt a definition of treatability, which is simply the reduction of risk or the avoidance of offending, that means that locking somebody up is treating them; I would adopt that approach. The final thing I would say in relation to the issue of developing science, if I can put it that way, is I absolutely accept, and I am very encouraged by the work that is being done in this area in relation to personality disorder. However, as Professor Maden has acknowledged, firstly it is pretty early, secondly is it general to PD and thirdly is it going to work with the highest risk people and are you not going to end up with the snake pits that I am so concerned about, if you like, of untreatable people there in hospital long term? The point I would make finally in this bit is that I think you should have law that follows science, in other words you create the law once you have the science, you do not hope you are going to get the science and create the law to match it. Chairman: That is the common complaint about the 1983 Act, is it not, amongst clinicians, that the medical concepts and the legal concepts are so far from one another. Q477 Mrs Browning: Could I bring you back to the first question that was asked here and the point Baroness Murphy made about Professor Maden's statement and the need for a strategy with the criminal justice system in the lead then supported by psychiatry. I have concern in trying to square that with the fact that quite rightly it has been said that a lot of the detail in this Bill was triggered by two particular cases, the Stone case and the Clunis case. If that is the case then how would what is presented to us here fit in with what Professor Maden has said is his objective with his strategy? I cannot see that it would have been the criminal justice system in the lead in either of those two cases in identifying what might have happened with those two individuals and how they would present and then psychiatry coming in afterwards. If you had future cases like that it would surely be psychiatry that would be in the lead in identifying them and the criminal justice system coming in secondly. I cannot quite square how what is in this Bill is in any way going to present or identify such cases in the future if the lead is taken by the criminal justice system? Professor Maden: I think it is difficult to work too much on those two examples because my own view would be that irrespective of changes in legislation, the Clunis scenario would be most unlikely to happen again because of the changes such as the care programme approach et cetera. I am not sure that the problem with either Clunis or Stone was the legislation. I should add further that I have never seen an inquiry into the Stone case and I am not sure that there were inadequacies in Stone's management. Obviously it had a terrible outcome but personally I have never seen an inquiry that described the inadequacies in Stone's case. Q478 Chairman: The Stone case is still subject to litigation in the courts. Professor Maden: That is correct and I think a homicide inquiry was conducted but has not been published. There is a lot of gossip in the mental health community about what it says. Q479 Chairman: I do not think we should speculate. Professor Maden: Precisely not. Q480 Chairman: For the reason I have just given, if you do not mind terribly. Professor Maden: I would not accept that either of those cases necessarily reflected inadequacies in mental health legislation, firstly, and therefore it would be a bad test of the draft Bill to ask whether or not it would have solved those two problems because I do not think they were due to inadequacies in the law in the first place. Secondly, in cases such as Michael Stone, the reality is that most of their dealings with mental health services are through the criminal justice system. Essentially that was the role of mental health services in that case, it was largely working in support of the criminal justice system, but that could have been done better. I do think that in the cases of people who are personality disordered, it is unrealistic simply in terms of numbers. If 70, 80, 90 per cent of prisoners have a personality disorder, we are never going to have a situation where the health service is able to meet that kind of chronic, intense demand. I think one of the important deficiencies from all the documents I have seen is any discussion of how the health service will meet the new demand that results from removing the treatability criterion from personality disorder. Q481 Mrs Browning: Could I just pick that up. Did you say 70 to 80 per cent of Britons have a personality disorder as opposed to a general mental health problem? Professor Maden: Yes, because the definition is virtually synonymous with criminality. If you encounter them in court you would call them common criminals; if you encounter them in the psychiatric clinic, you would call them people with a personality disorder. Q482 Chairman: 70 to 80 per cent is at the lower end of the estimates. Professor Maden: That is correct. I should say, in the original survey that John Gunn and I did of the prison system we did not bother to count personality disorder because we knew the answer before we started. We knew that there was no way the health service was going to take on that burden, so what was the point of going to the trouble of counting it. Lord Carter: Continuing on the theme of risk, which you have mentioned: in 1999 the Home Office called for the development of new and better models for assessing risk in psychiatric patients and offenders. How are patients currently assessed for risk and have there been significant improvements in the methods used in recent years? In other words, have the Home Office proposals of 1999 had any effect? Q483 Chairman: Can I ask Professor Eastman if he would like to deal with that first and then anything hanging over from the previous set of questions. Professor Eastman: We agreed that Professor Maden would do this one first but I will go first, partly because he works in the vicinity he does work in. I think we have dealt with this to some extent already but essentially it seems to me that what has changed, and is changing, is the introduction of what are called actuarial methods, which are methods of assessment of individuals based on populations. These have certain strengths against clinical methods which, of course, are based on the individual. However, I think my concern would be that there is over-reliance, particularly amongst legislators, upon what can be hoped for or expected from actuarial methods because they have substantial weaknesses in relation to the individual and to the type of clinical variables that doctors and other mental health professionals are concerned with when they are trying to manage risk. I would be very cautious, I would say that things are improving and I would be the first to say they have not been good enough in the past. I think it would be wrong to put great store by substantial improvements in risk assessment being on the horizon, so to speak. Can I just add one other thing which is - and I apologise for this phrase - there is a phrase "positive predictive value" which is about of the people you predict are going to do something, how many of them go on to do it? Underlying this, and looking at risk assessment tools in relation to this, are issues of sensitivity and specificity: is the tool sensitive in picking people up and how specific is it in picking up the right people? Now I will not go into stats but you have to have very high sensitivity and specificity in order to not end up locking up a huge number of people to stop one event and the reason for that is because the base rate of serious violence is very low, and that is the nub of it. Shall I go back to the other question? I think the answer to the Member's question about Stone and Clunis is this: I largely agree with Professor Maden, I think they are slightly different types of cases. I think that in relation to Clunis, there was a paper by Rumgay and Monro in the British Child Psychiatry Journal about five years ago which looked at a whole series of homicide inquiries, took their findings at face value and found that in only a very small percentage of cases was it thought that the event could have been predicted. In quite a high proportion, over 60 per cent, they thought it could have been prevented within existing legislation and could have been prevented by earlier intervention. It is about services, it is not about prediction. Now, I think that is particularly relevant to Clunis. In relation to Stone, I think that the important issue to lay on the table, if you like, is the criminal justice system's use of the discretionary life sentence, or lack of use of it. I gave evidence to the Home Affairs Select Committee in relation to the DSPD proposals some years ago now and in front of me Mr Boateng said the problem is that judges will not make enough life sentences. In fact, the Home Office's own paper at that time said that the judges made a life sentence on two per cent of occasions when they could make a life sentence, including in relation to people with personality disorder. That rather starkly, if you like, puts the issue. What I said to the Select Committee then, which was rather incautious of me, was that lots of psychiatrists and other mental health professionals in hospitals were saying that the Government essentially were saying "We cannot get the judges to roll over, so let us get the shrinks to roll over". Q484 Lord Carter: If we continue with the actuarial point that you have made, the Mental Health Alliance argue that there is no reliable way of assessing risk for people who have committed no offence and that, statistically, it would be necessary to detain between 2,000 and 5,000 people unnecessarily in order to prevent one single homicide. Is that right? Professor Eastman: I think it depends what you think of the stats of the tests or the methods, and I have said something about that already. You can play with them but you would have to have far higher stats, if you like, for the tools, better tools than I think we have got, and I will be interested in Professor Maden's view, in order not to be in that scenario. The question that was posed in the list of questions for today talked about risk assessment being significant. I would say "Are they adequate?" and "Are they adequate in public policy terms in terms of locking people up to stop events?". Q485 Lord Carter: Is it not correct that the number of cases of homicide committed by mentally ill people who have been released from treatment is much less than the number of murders which are committed by murderers who have been released and kill for a second time? Professor Eastman: I do not know that statistic but I would believe it. I will say one other thing which is that there was a good paper by John Gunn and others, I forget whom, two or three years ago which demonstrated there has been no increase in the number of homicides committed by the mentally disordered. Chairman: If you will allow us, Professor Maden, I am going to take a couple more questions from Members and then ask you if you would do a wind up on this section. Mr Howarth: We have talked about the degrees of risk and how to assess them and so on, it seems to me from the public's point of view there are two kinds of risks that we are talking about. There is the risk, predictable or otherwise, that somebody might go on and do something very violent, obviously including killing somebody. There is the risk, also, that somebody might, by their behaviour, target somebody and make their life an absolute misery. In those sorts of cases, how do you weight the importance of that in terms of how they should be dealt with? Chairman: Can we have Lady Barker's question and then we will return to you, Professor Maden? Q486 Baroness Barker: Returning a little bit for a moment to the actuarial methods, can you tell us some of the assumptions that are included in the actuarial methods? In your opinion, does that in any way reflect the over-representation of some minority populations in mental health services? Professor Maden: I suppose I am known, certainly by my detractors, as the country's foremost enthusiast for risk assessment with a degree of standardisation but I would disagree slightly with Nigel. The current state of the science is that the best way of looking at risk is by structured clinical judgment. It very firmly says that actuarial methods are not the best way of looking at risk. What we know about the statistics ought to inform clinical judgment but it ought not to replace it in any way. I think the findings on that are absolutely unequivocal, that structured clinical judgment is where it is at in risk assessment, you need to know the actuarial background but the actuarial stuff is not better. Yes, if you look at things in actuarial terms in a very straight forward way, the fact of being of Afro-Caribbean origin is statistically associated with over-representation amongst violent offenders ergo the man who walks through your door, if he is Afro-Caribbean origin, is at high risk of violence. It is not nonsense, it is dangerous nonsense and we should not subscribe to it. If I could return to the risk assessment, I think it has improved tremendously over the last ten or 15 years and within general psychiatric services there has been a transformation of the general approach to risk to the point where one would say that at the moment general psychiatric services probably have too much concern. Q487 Chairman: Would that include the kinds of issues that Mr Howarth was referring to? Professor Maden: I have not forgotten the question, I will come back to it shortly. I think the main element of that risk assessment is not so much in the technicalities of the business but a simple awareness that things can go wrong and we ought to think about the circumstances in which they may go wrong and we ought to plan for the unexpected. That was missing from mental health services at the time of Clunis to a degree which was irresponsible; it is no longer missing. Some services spend a lot of time thinking about what may go wrong in terms of risk and they spend a lot of time planning for it. We could still do more because what we have not done is to adopt some of the procedures for structured clinical judgment that are commonplace in Canada. HCR 20 is the main one, it is used in some forensic units in this country but in my view it is not used enough in forensic services to support our clinical judgment. There have been big improvements and we are heading in the right direction. The question from Mr Howarth was a good one because it points up the complex nature of risk. We are not dealing with a single dimension in which you can say the risk is 60 per cent, we are dealing with, on the one hand, the risk of homicide and on the other hand, the risk of harassment, and on another you may be dealing with less serious categories of violence. The task of the professional faced with risk assessment is to take into account all those risks and to formulate a management plan that minimises those that seem to apply in this case but that cannot be done in any unitary way. I think it is very misleading to talk of high risk patients without that qualification because most patients have a risk of something, not violence in most cases but even for those who do pose a risk of violence there is a great variety of risk with qualitative differences which requires quite a complicated management plan and which cannot be reduced to that unified scale of "This is a high risk person therefore you have to do this". Q488 Mr Howarth: Some of the patient groups that we have talked to have taken the view that those sorts of cases where there has been harassment, violence or even worse should be dealt with in the criminal justice system and that mental health considerations should be quite separate. The word that was used was because somebody commits a crime, it is "stigmatising" them to deal with them as a mental health issue and some have even gone so far as to say that they would rather have a prison sentence than treatment. How do you feel about that? Professor Maden: I do not think it is an either/or situation. I think the general assumption must be that when people break the law, the law takes its course and that the disposal at the end of that process may well be influenced by whether there is mental disorder. Leaving aside trivial offences and diversion at an early stage there, I think in general it is not an either/or question. Mental health professionals ought to work more with the criminal justice system but mental health services are not a substitute for the criminal justice system. They cannot do that job of examining and testing the evidence and determining guilt and giving a very public statement of what has happened in the way that the criminal justice system is designed to do. Professor Eastman: Could I say they are not a predictive substitute for the criminal justice system because clearly if an offence has been committed they can be charged. I do think that one should take account of psychological damage, not just physical damage, in assessing the risk the patient poses and determining detention or compulsion on that basis. The difficulty with this Bill is that it goes beyond all of that and suggests that mental health professionals can predict a whole range of events before they happen, as Professor Maden has described. I have to say I largely agree with almost everything he has said, not everything he has said but the last few remarks. Q489 Lord Rix: Mine is a two part question but as both parts concern treatability I think they do go together. The Royal College of Psychiatrists has recommended the inclusion of a criterion of "impaired decision making" on the grounds of mental disorder. What would the implications of such a criterion be for the application of the Bill to patients with Dangerous Severe Personality Disorders who up to now have been considered untreatable? The second part of my question is as learning disability is considered to be untreatable, should it also be considered a mental disorder or should it be excluded in the putative list which is favoured by Professor Eastman unless there is an allied mental illness? Would not impaired decision making sweep the majority of people with a learning disability within the curtilage of this draft Bill? Professor Eastman: I will take the first point first. Impaired decision-making is a softer concept than incapacity. It includes evaluative disorder, if you like, not just cognitive disorder, so it includes the effects of depression, for example. It is also the case that the threshold, even for the finding of incapacity through the courts, has been lowered substantially over various cases so, for example, Ian Brady was found to lack the capacity to refuse feeding, and he had a personality disorder. It seems to me therefore that there is not a necessary conclusion that people with severe personality disorder retain capacity. Some may; some may not. The second point relating to that, I suppose, is that of course a finding of incapacity does not mean to say you have to treat it. It is the gateway into treating without consent if there is then therapeutic benefit. As regards the learning disability issue, my latter point becomes relevant again because just because you find that somebody lacks capacity, and a learning disabled person may or may not lack capacity, that does not mean to say you therefore have to intervene and override. Indeed, the Mental Health Bill is not based on the assumption that because you lack capacity therefore you intervene and override. I think I would approach Lord Rix's question in that sort of way. Perhaps I can add a general comment, which is that the difficulty with learning disability is that there is quite properly a wish to normalise the lives of people with learning disabled conditions, and I absolutely approve of that. The question then becomes, if their normality is going to be a prison is that still the right normality? There I start to have some difficulty in relation to moderately severe learning disability because I start to worry about humane disposal and so on. I think there is a difficult issue there. Q490 Mrs Browning: My question is very similar to Lord Rix's but specifically focuses on the interpretation of this in respect of, for example, people with a diagnosis of Asperger's Syndrome, rather a different grouping who might well (and already do) fall foul very often of misunderstanding by psychiatrists in terms of their ability to make decisions, not necessarily because they cannot but because of the nature of their communication disorder at the time, particularly at a time of stress. I just wonder whether I could ask you whether you have any concern about whether that particular grouping of people with an AS diagnosis would fall foul of a mis-diagnosis of personality disorder. Professor Maden: That certainly is possible. There is a real diagnostic issue about some types of personality disorder overlapping with Asperger's Syndrome, so it is not a straightforward matter. The risk criterion would hopefully deal with that problem in that it has to be recognised that sometimes Asperger's Syndrome can be associated with a very high risk of violence to others, partly because there is a lack of empathy. That is rare within the condition but it does occur, and certainly one encounters within high security hospitals more than the normal representation of people with Asperger's Syndrome because of their dangerous behaviour. I think the draft bill deals with that issue by insisting on the risk criterion for detention. Professor Eastman: I think there is a problem with it though because the risk criteria are set at incredibly low levels. For many it is protection of others from what and at what level and how likely and so on, but even for the so-called dangerous group where there is supposed to be a substantial risk of serious harm I am not convinced it is at that high a threshold. The Chairman will correct me if I am wrong but from my own experience of the courts and decisions on what "substantial" means, it simply means "having substance and more than trivial". Therefore, "a substantial risk of serious harm" means a bit of risk of serious harm. I think there is a real issue about catching all sorts of people, including people with Asperger's, within this bill by virtue of the extraordinarily low threshold and the lack of exclusions, the lack of a therapeutic benefit test and so on, which relates also to Lord Rix's question about learning disability. Q491 Mrs Browning: Could I add a caveat to that because although there will be behaviour management treatments there is no cure, of course, for the underlying condition of Asperger's Syndrome, and therefore I can see that that grouping could well fall foul of this legislation in a way that was not intended? Professor Eastman: Neither is there a cure for personality disorder and yet this bill is substantially dominated by the concept of personality disorder. I would even say that this is a bill where the DSPD tail is wagging the general mental health dog. Mrs Browning: That is very helpful. Thank you. Chairman: One of you talked about therapeutic intervention as opposed to cure in an earlier remark and perhaps we should bear that phrase in mind. There is a quite separate but important issue I would now like to deal with. Q492 Baroness Eccles of Moulton: This question relates to the use of civil powers for preventative detention. Quite a lot of what is contained within it has already been touched on. If it is not going to be too confusing could I possibly ask the main question first but, before you answer, refer to something in the preamble which I think might be quite helpful to have a view on for the very sharp request for your view in the main question? The main question is that the Mental Health Act Commission among others have raised concerns about the potential use of civil powers for the preventative non-therapeutic detention of patients judged to be at risk of causing harm to others. The specific question is, in your view when is it justified to use civil powers of compulsion in this way? If I may could I refer back to the quote from the Law Society which says that various homicide inquiries overwhelmingly show that it is a lack of resources, information and communication that causes care and treatment to break down in such a way as to increase the likelihood of a tragedy? The question there is, obviously, if those resources and information and communication could be greatly increased, which is a question of general resources within the service, would this possibly affect the degree to which compulsion would be needed in the community? Professor Eastman: I referred the committee to the paper by Munroe and Rumgay(?) which looked at homicide inquiries and found essentially what you are saying and what the Law Society is saying. I actually think that the marginal contribution of law to national mental health and even to public protection is very small indeed potentially. It is all about services. The reason why the government hopes that there is a way of predicting who is going to be risky is that it is cheaper than preventing it by virtue of therapeutic intervention which breaks the chain of causation. It is not that you can predict if somebody is going to kill somebody; it is that you intervene for their mental health care and one out of goodness knows how many would have gone on to kill but you have intervened. That is my answer to that question. Q493 Chairman: That is one of the most concealed Exocet missiles I have ever come across, if I may say so, Professor Eastman, but you have waited an hour to deliver that. Professor Eastman: I only just thought of it. The answer to the formal question 4 on our list, which we agreed that I would deal with first of all is that in my view you should never use civil powers for preventive detention where there is no therapeutic benefit. Here I do have something I prepared earlier, so to speak. My reasons for this are first because you should have respect for ethical principle and the separation of mental health care from criminal justice. I have said this already but it is a means of protecting not just professionals but also future patients because if you contaminate mental health professional activities eventually it will have a knock-on effect with future patients. Secondly, I think it is unworkable because you cannot predict who is going to do it. You would have to lock up lots of people - and which risk are we talking about? - and we have been through a lot of that already. It is also the case that if somebody is untreatable, if there is no therapeutic benefit, hospital is the wrong place for them. There are people who are untreatable and who are dangerous and who are on a life sentence in prisons, and prisons are very good at dealing with people who are of that sort. It is also unworkable because you if you cannot change the risk it is unworkable in that sense and you end up with the snake pit I have already described. One of the major issues though is that what it will do is frighten patients away from services, and I know you have had this said to you by quite a lot of people because I have read some of the transcripts. What that point lights up is that this bill and the whole process of reform are driven by the wrong model. They are driven by the individual case scenario model rather than what I would call the public health model. The public health model, which is how the rest of medicine thinks, if you like, is: look at aggregates; look at the whole population of patients and potential patients, the whole of services, see how they operate and have services, and in this case the law relating to services, and have regard for all of that. If, for example, it is the case that you have, let us call it, somewhat draconian wide powers and they would have stopped Fred from killing Freda on Friday, that is great but it is useless if it has an aggregate effect that is the reverse. The college's evidence, for example, I think, is that this is not only unworkable law because of the resources; it is also ineffective law, or likely to be ineffective law because it will not deliver what the government wants it to deliver for that sort of reason. Q494 Baroness Eccles of Moulton: Do you think there are any useful recommendations we could make which would mean that the lack of resources as referred to by the Law Society could be practically enhanced? Professor Eastman: That is a huge question. This is a sneaky response first of all, but one of the difficulties is that the more compulsion you have the less restriction on compulsion you have, the less pressure there is on services to produce proper services. If you did not have a Mental Health Act, if you had to persuade people into psychiatric hospitals, would we have the sorts of hospitals we currently have with the sorts of resources we have? I suspect not. The same will apply when you think about community treatment orders and so on. It is a huge question because it is a political question: how do you encourage government to put more resources into something which is still a Cinderella service? I think it will become even more of a Cinderella service under this bill because what it will do is pull psychiatry further away from the rest of general medicine than it is already and, if you like, stigmatise the practice of psychiatry (in the case of my discipline of medicine) and it will have an overall long-term bad effect in those terms. Q495 Lord Carter: To be absolutely clear, if you have a person who is untreatable but who has a condition in which there is evidence that other people with that condition have been violent in the past, are you saying you would only be able to deal with that with extra resources? Professor Eastman: I think that if you had somebody under the present Act who was like that the treatability test under the present Act, interpreted in a case called In re Secretary of State for Scotland(?) in the House of Lords, is such a low treatability test already that in the vast majority of cases the power exists in law to detain somebody in hospital of the type you are describing. I think somebody of that sort would be detained and I agree with Professor Maden: I think we have moved a long way since Clunis. In a sense this bill is almost anachronistic because it reflects an era we hopefully have moved on from. Q496 Chairman: Out of courtesy to the next group of witnesses we must move on. Do you want to say something finally, Professor Malden? Professor Maden: I think this is the only point on which Nigel and I really do disagree. I think that certainly the use of civil powers for preventive detention of patients judged to be a risk is justified when the risk is high enough. I think psychiatry has always done it in the case of people with mental illness without thinking. One would not ask the question if a dangerous schizophrenic patient were before one whether this was one of the ten per cent who was resistant to treatment. One would detain them to prevent risk to others. There is a lot of discussion around how one decides on that risk but the principle that one must in some circumstances detain people, even though at we do not know how to treat them, because of risk to others is entirely sound and has always been followed by psychiatrists. Chairman: You will be aware that the oral evidence sessions are only a part of our deliberations and we have had a great deal of written evidence on these issues. We are extremely grateful to you both for coming and giving us such valuable evidence today. You have admirably concentrated, if I may say, volumes of opinions in a very short time and that is just what we were looking for. Thank you both very much. Memorandum submitted by Revolving Doors Agency and NACRO Examination of Witnesses
Witnesses: Ms Ethel Samkange, Director of Link Worker Schemes, and Mr Nick O'Shea, Director of Development, Revolving Doors Agency, Ms Sue Kesteven, Policy Development Manager, and Ms Lucy Smith, Research and Information Officer, Mental Health Unit, NACRO, and Mrs Jayne Zito, Patron, and Mr Michael Howlett, Director, the Zito Trust, examined. Q497 Chairman: Thank you for attending this morning. You are quite a formidable array of well-known and distinguished people, and I apologise on behalf of the committee for keeping you waiting. You will be aware that we are under a degree of pressure because of events, particularly in the House of Commons, that occur round about noon on a Wednesday, so we have at the most an hour to deal with the questions that you have had notice of and any supplementaries. I am going to ask you to identify yourselves briefly for the record in a moment. I hope that you will be content to go straight to questions. If anybody wants to make an introduction they are free to do so but please make it extremely short. As you heard when the other witnesses started to give evidence, a transcript will be produced appearing on the internet within about one week. You will be given the opportunity to make any textual corrections only that you wish to make to the draft text of the transcript. Jayne Zito, shall we start with you? Mrs Zito: My name is Jayne Zito. I am the widow of Jonathan Zito, murdered by Christopher Clunis who has been referred to today numerous times. I am the founder, along with Michael Howlett, my Director, of the Zito Trust. We support victims of community care failures. Mr Howlett: My name is Michael Howlett. I am Director of the Zito Trust, which was set up in 1994. Before that I was in a management position with the Special Hospital Service Authority which runs Ashworth, Broadmoor and Rampton high security hospitals, and before that I worked in a therapeutic community for adolescents and young offenders. Ms Smith: I am Lucy Smith. I am a Research and Information Officer in NACRO's Mental Health Unit. Ms Kesteven: I am Sue Kesteven. I am Policy Development Manager at NACRO's Mental Health Unit and NACRO is a crime reduction charity. Q498 Chairman: I should say that Ms Kesteven and I have known one another for a large number of years. Mr O'Shea: I am Nick O'Shea. I am Director of Development for the Revolving Doors Agency, which is an agency that provides support for people who have serious mental health problems but not those which are severe and enduring, so the majority of our clients would not come anywhere near being sectioned under the current Act. Ms Samkange: Good morning. My name is Ethel Samkange. I am Director of Link Worker Schemes for Revolving Doors Agency. Q499 Ms Munn: I particularly want to put questions initially to the Zito Trust. You heard earlier the discussion we had about treatability and some of the issues I raised with the previous witnesses. As I understand it the Zito Trust support the exclusion of treatability as a necessary condition underlying the use of compulsory powers because it will allow patients with personality disorder to be subject to compulsory powers. An alternative view which you heard articulated is that it is unethical to detain people in hospital if there is no clear benefit to their health. Can I ask you to comment on this issue and put forward your views in relation to this? Mr Howlett: If I may set it in a little context, when we started the Zito Trust we did not have that much thought about personality disorder and treatability until, as has already been referred to, the Michael Stone case in 1998 and a long contact with Michael Stone's sister before the first trial. Obviously, I do not want to talk about the legal issues because there is an appeal under way, but what emerged from that first trial was that psychiatrists - and this was probably known to many people but not to us - had historically stopped treating people with personality disorder, not across the board 100 per cent but in many cases, and the theme that emerged out of the discussion and debate following the trial was encapsulated in a letter by the then Home Secretary to The Times, who pointed out that in 1984, one year after the 1983 Act came into being, 14 per cent of people with so-called psychopathic disorder were being treated in NHS facilities, but ten years later the figure was under three per cent. We have already heard from Professor Maden the extent to which psychiatrists are now using that treatability criterion to get them off the hook in terms of rejecting people with personality disorder from NHS services, and I have some sympathy for the position that general psychiatrists find themselves in because of the way that psychiatry has developed along an increasingly medical model in that they are not able, particularly with the resource issues that we have, to offer much beyond medication as the base-line treatment, and of course personality disorder generally does not respond to medication. There are a number of families who have come to us through our support and advice service and said, "I have got a young son or daughter of 17, 18, 19, 20 who has been diagnosed as having a personality disorder by a psychiatrist and has been told there is nothing that can be done; they are untreatable under the current legislation", and the question is always put to us, "What services are there for people?". There are a few therapeutic orientated services around but they are very patchy, and the answer is basically nothing. We feel that the treatability criterion as a loophole should be excluded from the current legislation so that people can be brought into NHS and other services having had an assessment of their needs. Q500 Ms Munn: Can I clarify one issue because, as I understand it, there is some evidence which you cite that some cognitive behavioural therapy can be effective for some people, and the evidence that particularly Professor Maden gave was that he believes that there is greater treatability perhaps than had been thought in the past but that those that had the most complex and severe personality disorders were the least likely to respond to that treatment. Is that your understanding and how does that affect your view? Mr Howlett: Yes, I think it is. Having been quite negative about the availability of services for people with personality disorder, the situation is changing as we speak. The Personality Disorder Network has been set up and that involved 11 pilot sites in mental health NHS trusts offering therapeutic orientated services and they are using an eclectic model based on cognitive behavioural therapy, dialectical behaviour therapy, psychotherapy and psychological therapies to improve the social functioning and the skills of people who have poor impulse control and anger management. It is a stepped programme and it is in response to a publication which we do not hear very much about from the National Institute of Mental Health, which is an implementation guidance which drives this Personality Disorder Network and it is called Personality Disorder: No Longer a Diagnosis of Exclusion. There are some positive signs, and, of course, I agree with Professor Maden's observations about the very severe end of psychopathy that treatment does not work at the moment. There is a question mark about what we should be doing with people who are described as dangerous and having a very severe personality disorder who would score very highly on the Hare psychopathy levels that we heard about this morning. Q501 Chairman: On this issue of dangerousness can I ask if any of the other witnesses would like to contribute anything at this stage? Ms Kesteven: From NACRO's point of view I might just say that when the 2002 draft bill was put forward we expressed disappointment that the original idea of having separate legislation to deal with this small group of dangerous, severely personality disordered people had not been pursued. That was an idea that was put forward in the Home Office proposals on managing this group of people in 1999 and it was argued that there should be separate legislation to deal with that group and that it was not really appropriate to attempt to deal with them in general mental health legislation. Having said that, on the issue of the treatability clause we would support a lot of what Professor Maden said this morning. We think there are treatments available for people who have personality disorder. There are psychological interventions, for example, which may not cure the condition, if you want to put it that way, but which certainly are able to assist them in managing their condition and improving their quality of life. We do think that, as was said earlier, the diagnosis of personality disorder has been used in the past as an excuse sometimes not to treat people. We would certainly be in favour of permitting the use of the compulsory powers in the Act in relation to people who have personality disorder. Q502 Tim Loughton: Can we look at the whole subject of the conditions for compulsion and the differences between criminal and civil patients? The Revolving Doors submission said that "this may have the inadvertent consequence of suggesting that committing a criminal offence is the quickest and most effective way to gain access to mental health services". Can you give some evidence for that, because we have also heard service users in previous submissions almost unanimously saying that they would prefer to be held under the criminal justice proceedings than be subject to compulsion under mental health legislation. Do you think that is a fair assessment of what people think? Ms Samkange: I think there is a real issue about access to services and the use of compulsory treatment because I feel (and this was something that the two professors touched on) that there should be more of an emphasis on preventative intervention. Most of the clients that we are working with are very chaotic. They have serious mental health problems, which means that they do not fit into the criteria set by mental health services of suffering from severe enduring mental health problems. These are the clients that cause the police, people working in the courts and the prison services the most concern, but these are people who, through their level of social dysfunction, have not been able to access services and this is their first point of contact. I think the use of the compulsory treatment order would be counter-productive for our clients. Mr O'Shea: The definition of "mental health" and also "mental treatment" within the bill is very broad. What this does is to re-open, in theory at least, the fact that a number of our clients who at the moment just want to engage with services, as Ethel has outlined, would find that their first way into these services is that compulsory way. Because our clients are so chaotic what we have discovered is that they are not dangerous in the same way as these very high end people. They are not going to go out and kill somebody. You can work with these people over a long period of time, but that is about engaging them over a long period of time and working with them, whereas it is the coercive element, if that is the first way in which they are going to go into the service, which will undo an awful lot of the work that we have done with them to get them to engage with services voluntarily. Q503 Tim Loughton: Do you think there is a perverse incentive here for people to attack somebody or to commit some other criminal activity in order to get access to mental health services that they are simply divorced from? Mr O'Shea: We have clients who have thrown bricks through police windows or mugged people outside police stations in order to get help from services, be it drugs services, be it alcohol services. There is some quite well documented evidence which I do not have here about how particularly in London the quickest way to get things like rehabilitative services for drug or alcohol usage is through the criminal justice route. Yes, there are examples of where that has happened and people have committed fairly minor crimes (although serious enough, obviously, for the individual victim) that have then led to them being engaged with those services. Tim Loughton: And you think this bill will make it worse? There is some interesting anecdotal evidence that if you live in Gloucestershire the best way to get dental treatment is to go to prison where the waiting time is two weeks rather than in excess of six months. Chairman: I think that question should be suppressed in Gloucestershire. Q504 Tim Loughton: Are you saying that the same is applicable to mental health services from sufficient number of your clients to justify that? Mr O'Shea: Potentially. The thing that we find very worrying about this bill is that because it is so broad and because the treatments that you can then offer are again very broad, it gives that scope for it. Although in practice I accept that we have a limited number of services out there, and we have already spoken about the dearth of those services, and although in practice it may not be possible to give everybody a compulsory treatment order this law makes it theoretically possible and therefore you have a law which opens up lots of possibilities which will then be directed by services and codes of practice, whereas my understanding was, and I am no lawyer, that the law had to leave as little room for doubt as possible and say, "These are your gateways. This is the way in, and that is it". Because this is so much broader it could happen that, yes, you commit a fairly minor crime and you find yourself in front of a magistrate who says, "Okay, I think you have got a mental problem", and then on the word of the GP or two practitioners you then find yourself on a compulsory treatment order which, because you do not have to go into hospital, you can have at your home, and therefore that frees up an awful lot more resources. Having worked for the Home Office I know that one of the biggest problems they have is the level of mental health problems in prison; they are very concerned about it. Judges in our experience are very keen to offer alternative sentences. There is a lack of community punishments out there which are going to help with a drug or alcohol problem or a mental health problem and on the face of it this bill provides an opportunity for a judge to say, "Okay: compulsory treatment order. Off you go", whether those services are there or not to back it up. It could happen under this legislation. Q505 Mrs Browning: In relation to that group of people who see that they can trigger the services they are otherwise denied through this type of action, on the converse side of that how many of those people end up as suicide cases as a result of not accessing appropriate support and treatment? Ms Samkange: There is a high incidence amongst our client group of attempts to self-harm or commit suicide, but to date we have not had any clients that have had committed suicide. Q506 Baroness Eccles of Moulton: I am having a certain amount of difficulty in distinguishing between, amongst your client group, who you would define as treatable and who you would define as untreatable. If there is a voluntary potential patient who presents, say, at A&E and says, "I have a problem", how is it then decided whether they have a treatable problem or an untreatable problem? Ms Samkange: Our clients will turn up in most cases at A&E or be arrested and be seen by a forensic medical examiner. They are a group of clients that have been assessed to death and have never actually had any meaningful intervention in the community. The response that they get in most cases is that they do not fit the criteria for mental health services; therefore they get nothing. They do not fit the criteria for drug and alcohol services; they get nothing. The GP finds it very difficult to contain their needs. They do not respond as well as other clients to medical interventions. What we have found helps is having a flexible therapeutic approach which engages with the client on a voluntary basis, which goes back to the basics and looks at what they lost out on in their formative years and builds up their capacity to be able to cope and live in the community as well as make effective use of the services that are around. Q507 Baroness Eccles of Moulton: Could criteria be created that would then mean that they were not rejected, that there were criteria that they would fit? Ms Samkange: Yes. This is one of my concerns about the bill, that there should be this preventative model in there and that it should not be focused mainly on medical treatment and other psychological treatment; it should look at the needs of people who find it difficult in the first instance to engage in services and work within set structures. Q508 Chairman: Forgive me for interrupting you, but arising from that we have three organisations here giving evidence with a wealth of experience in dealing with problems coming straight from members of the public, from members of the community and dealing with people who have various difficulties who are living in the community, much of the time at least. You heard, if you were here earlier, the difference of opinion between Professor Eastman and Professor Maden about the concept of community treatment orders. Can we find out from you with your extensive community involvement briefly what your views are about community treatment orders with these two sub-questions: first, should they exist, and, secondly, if so, how extensively would you expect them to be used? Mr Howlett: We are in favour of community treatment orders. This is partly because we have acquired a lot of evidence of people who are difficult to engage with services in the community, who are creating problems for their families or members of the public, who have stopped taking their medication. There is a high degree of non-compliance in the cases that we know of, the homicide cases and to a larger extent of course the suicide cases. Suicide rarely gets a mention in terms of forensic mental health issues, of course, but we should remember that about 1,500 suicides are committed every year by people who have been in contact with mental health services. About 20 per cent of them have stopped taking their medication in the period leading to the suicide, and I am talking about a matter of months. There is similar non-compliance in cases of homicide, with about 40 or 50 a year committed in this country by people who have been in recent contact with mental health services and who have stopped taking their medication. Community treatment orders are obviously controversial but they are applied in jurisdictions all over the world. We believe that this bill presents an opportunity, looking at it from a positive point of view, to engage those people in services who would otherwise be difficult to manage and to treat. Part of the problem is a resource problem. When people talk about patient rights and keeping them out of hospital, it is actually very difficult to get into a hospital at the moment. We have a lot of families who are really struggling to access services and they are in despair. They are extremely frustrated. Whenever they call the community mental health team they are told that there is nothing they can do until something happens and their best option is to call the police. When they call the police they are told there is nothing they can do. Q509 Chairman: We understand this issue; you make your view clear. Mr Howlett: With community treatment orders we see them as a positive benefit for keeping people out of hospital and engaging them with services where they might not otherwise engage. Q510 Chairman: Can we ask for NACRO's view on that? Ms Smith: We are opposed to orders for compulsory treatment in the community. We are concerned by the emphasis in this bill on compulsion and we think that compulsory powers should be used as a matter of last resort. The sorts of clients that Revolving Doors have been talking about very often have very chaotic lifestyles. They need a high degree of support, as has been indicated, from a variety of perspectives, not just from a mental health perspective but also help more generally in accessing services such as housing benefit and so on. In our view these are the types of people who are the most unsuitable candidates for compulsory treatment in the community. Non-compliance with medication and a failure to co-operate with aspects of care and treatment are not a recipe for a successful management structure in the community and we think that people who are so disordered or so mentally ill that they need compulsory treatment require that treatment to be provided in a hospital environment. We understand the views of those who think that there is a problem in getting people into hospital, but in our view this is not an issue for legislation; this is an issue for resources because one of the key problems is that there is a lack of resources in terms of community mental health services in existence at present. The services provided are variable and patchy. In some areas they are very good; in other areas they are not very good. A lot of these people need much more help than perhaps just a visit from a key worker once a week or once a fortnight. If the resources were provided to give a comprehensive structure of assertive outreach services, crisis teams and so on we think that it is far more likely that it would be possible to engage with service users on a voluntary basis so that they could be helped to maintain their lives in the community without the use of compulsion and you would only then be talking about a smaller number of people whose illness might deteriorate to the point where compulsory treatment in hospital became necessary. Q511 Chairman: Mr O'Shea and Ms Samkange, if you look at the matter from the viewpoint of somebody who has perhaps the stark options of being detained compulsorily in hospital, possibly finding themselves in the criminal justice system because there is no other way of dealing with them, or a compulsory community treatment order, is not the community treatment order with the co-operation of carers in perhaps a smallish group of cases an attractive option for the client? Mr O'Shea: We would be very clear about this, that this is not for our clients. That is the bottom line. I was very interested to see the principles which were at the beginning of the bill, which talk about including people and making sure that voices are heard and that compulsory treatment is the last resort, whether that is in the community or residential. However, interestingly, those principles are not lawful because they are going to form part of the code of practice and basically go out of the window when you get to section three. To me, if you are going to have principles you are going to have principles and they are going to go through the bill or they are not. What happens is that once you commit a crime suddenly the risk element goes away and the last resort, in that there is no other option for you to engage with, has to be force because you are refusing to engage. This group want to engage but those services are not there for that to happen. What this bill is suggesting is that the way ahead is to say, "As soon as you have committed a crime let us compulsorily treat you". I would make it very clear that this is not for our clients at all. Q512 Chairman: But how does the bill in any way exclude voluntary involvement? There seems to be a suggestion from some witnesses who have given evidence to us in writing that the introduction of community treatment orders is the inevitable consequence of somebody having a disorder which might fall within the definition of the bill. Is it not right to suggest that many of them would remain within the voluntary ambit anyway? Ms Samkange: Our concern is that it is not clear because there is such a broad definition. My understanding is that once they hit the point where they are in the criminal justice system there are so many reasons as to why they can fall into a compulsory treatment order - it can be through the substance misuse route (most of our clients have dual diagnosis); it can be through the serious mental health problems that they can have. We have heard today from the professors that they feel that about 80 per cent of the people who have mental health problems in prison suffer from a personality disorder. I think that is very alarming because we hear that the public perception of personality disorder is immediately linked with dangerousness and this does not apply to our clients. We welcome the fact that there is an acknowledgement that people who suffer from personality disorder need some intervention but on the other hand it also should be acknowledged that these people are suffering from symptoms within that disorder, such as anxiety or depression, which can be treated and help them to live a better life in the community. Q513 Baroness Barker: One of the changes in the proposed legislation from previous Acts is that treatment following a period in hospital should be limited to six weeks. How do you think that is going to affect some of the issues you have been talking about in relation to the people that you work with? Mr O'Shea: Is that question for us? Q514 Chairman: If you can answer it. If not, please think about the question and drop us a note afterwards. Mr Howlett: May I add a point about community treatment orders? I do believe that they are the inevitable consequence of de-institutionalisation. In 1954 we had 154,000 NHS psychiatric beds in this country. Now we have 33,000. That is 0.66 per 1,000 of the population. The other point I would like to make is that the current Mental Health Act has guardianship and supervised discharge orders have been introduced in recent times. It would be a shame to lose those, as this bill does, because they provide flexibility. Q515 Chairman: You would not want to hark back to the fifties, would you? Mr Howlett: Oh, no, I am not saying that; absolutely not. We are firm believers in community care. Chairman: Can we now switch to a very important issue? I know it is of great importance to the Zito Trust. Q516 Baroness Pitkeathley: I would like to turn to the issue of victims and address this initially to the Zito Trust but I am also interested in the views of the other witnesses. As you point out, there is no mention of the victim in the bill and no suggestion about engaging with the victim. As I understand it, you want all victims of violent or sexual offences to have the rights which victims of prisoners currently enjoy to simple information about the date of release from prison and any conditions which are attached to it and so on. What information, if you could be very specific, concerning mentally disordered offenders would you want released, under what circumstances and to whom? Conversely, and I emphasise that I am also interested in the views of other people about this, what information should not be released? Mrs Zito: We have been giving evidence to the Department of Health now for ten or 11 years with regard to the experiences of victims of mentally disordered offenders and the experience of being a socially excluded group from mental health policy. What we are seeking through this legislation is a recognition of the circumstances and the experience of being threatened or assaulted or, if a homicide occurs, being bereaved by someone who is ill or who is disordered. The consequences of being ill or disordered at present mean that the victim's right to information is restricted because of patient confidentiality. As soon as an offender becomes a patient we have no rights to information regarding their discharge from hospital, a special hospital or a local hospital, or if the offender is transferred to another hospital, has lesser restrictions or is moved back into our community. Further to that, if a victim is a member of the community and has been threatened or assaulted, if a criminal charge is not brought against that offender with no restrictions we are not entitled to information with regard to any discharge of that offender to a hospital or whether that offender has been admitted to hospital in the first place. That is the experience of victims on a variety of assaults or threats or very serious experiences of violence or even homicide. We are seeking to address the balance in terms of rights to information. We request that we have rights to information about whether an offender has been admitted to hospital, whether that offender has been charged with an offence and admitted to hospital, whether that offender is going to be discharged from that hospital and whether that offender is going to be discharged with restrictions attached to their discharge. In order to achieve restrictions to that discharge or whether or not an offender should be admitted to hospital in the first place, we believe - and there has been much discussion taking place today about accurate risks assessments and predictors of risk - that the failure to engage with victims in terms of enhancing accurate risk assessments and accurate risk management is very much restricting the accuracy of the information that clinicians receive about the offending behaviour of the patient, whether that patient be a relative of yours or a member of the public or a patient in a hospital. There is a continuous failure, and homicide inquiries have continuously told us this, to engage with victims of mentally disordered offenders and therefore there is a failure to enhance the risk assessment process because we are not engaging in important information that victims should have. Say, for example (and it is an example that I use continuously), you have a neighbour who has been threatening to kill you for months. You have phoned the mental health services. They have told you that there is nothing they can do unless that individual actually acts in a violent way. You know your neighbour has had access to mental health services before but they are refusing to engage with you as a member of the public and they are refusing to engage with that individual who is your neighbour. You are advised to inform the police. The police also tell you that there is nothing you can do. What we are requesting is that there is a duty placed on the mental health professional team to engage with that individual member of the public, whether they be a carer or not, to undertake an assessment of what kind of behaviour they are experiencing by that member of the public in order to enhance the risk assessment process. What is occurring at the moment is that assessments are being made in isolation. You present yourself to a mental health professional who will take a picture of the risk. Then you will present yourself to the police and the police will have a different picture of that risk. You will then present to housing and housing will have another picture of that risk. You will present to your carer and they will have a different picture, and I will present to you as a victim and a member of the public and there is no coherent strategy or duty to gather information from those professionals and from third parties who we identify as victims and who are critical to the risk assessment process that is undertaken at present. Q517 Baroness Pitkeathley: So your emphasis is as much on gathering information as on giving information to victims, or indeed potential victims? Mrs Zito: Yes, it is. I think it is very important that victims, whether they are carers or third parties, are recognised as having crucial information in the risk assessment process. At present and for the past ten years that we have been engaged with victims our experience and the experience of the families who come to us is that we have been completely overlooked to the point of being ostracised by the mental health professional teams. The Domestic Violence Crime and Victims Bill has made recommendations and we very much welcome that the Home Office have sympathised with victims of mentally disordered offenders to give information to victims of restricted patients regarding discharge, so now I will be able to know whether Christopher Clunis is going to be discharged. I will also now have the opportunity to make representations if there are any risks associated with that discharge and I will be entitled to know what those restrictions are on his discharge and when he is going to be discharged. We know that many offenders who represent high levels of physical and violent risk to members of the public or carers or to other staff or patients do not receive restriction orders as part of their mental health disposal, and we are concerned that victims of those patients who do not receive restriction orders will again be excluded from the right to information dependent on the status of the offender as a patient. Q518 Chairman: Can I stop you for a moment because you have identified two problems? One is the collection of information which may help in a risk assessment. The other is the provision of information to victims, and they are rather separate issues. Mrs Zito: Yes, they are. Q519 Chairman: Taking the first of those issues raised by Lady Pitkeathley, the collection of information from victims and their families in relation to risk assessment, who should collect the risk? What agency should collect the risk and in what form, and does it include, for example, the victim or the victim's family having the right to attend mental health tribunals? Mrs Zito: Our recommendation is that the victim should have a right or legal opportunity to make representations to a mental health review tribunal, but our concern pre-empts whether or not an offender has been detained and whether or not a mental health tribunal is appropriate for that offender. We are also concerned about offenders and people who are ill within our community or who are disordered within our community where there is repeated threatening behaviour, so where the victim has experience of behaviour that will enhance the risk assessment that takes place. That, we have been informed by the professors this morning, is improving. We feel that that risk assessment process cannot improve adequately unless all information is gathered by all parties. We believe there should be a duty on the PCT and the community mental health trust to appoint an independent advocate as part of the multi-disciplinary team to engage in gathering information which will feed into that multi-disciplinary process. Q520 Chairman: Can I ask the other witnesses if they would like to comment on that tranche of evidence? Mr O'Shea: I would back the point about expanding services that Jayne Zito has made. The two things that I would say are that I think it is important to remember that this is again a very high end group and once again this bill has some very vague and broad definitions. The other thing is that it is a very fine balancing act between risk and stigmatisation. I would refer you to the latest Exclusion Unit report on mental health which says that the biggest thing that would prevent people from accessing services voluntarily and engaging with them at a time before things got serious was stigma. If it is not done properly and it is just a broad brush approach, "Yes, this is it", that would increase that stigmatisation undoubtedly. Mr Howlett: Can I add a point about victims? I think you asked who should collect the information. Initially it should be the community mental health teams working within the mental health trusts. An example from this week, very briefly, is that a man has been threatened with his life by somebody he knows and he knows he suffers from manic depression and has had many hospitalisations over the years. This person went to his house on Sunday and urinated against his door and left him a calling card. There was the same reaction from the police. The reaction from the community mental health team was, "Why are you calling us? This has got nothing to do with you. We refuse to talk about any patients that may be under this trust", and he is petrified. Q521 Baroness Murphy: I just wanted to bottom out this question of the lack of reception of information or lack of gathering of information. Do you think it is to do with a misapprehension by members of the community mental health teams about the codes of confidentiality and a lack of understanding that receiving information is quite separate from giving out confidential information about the patient? Mrs Zito: My experience in terms of the training that we offer mental health practitioners is that victims are not at the forefront of mental health practitioners' thinking. Their duty is to their patient and the autonomy of that patient and the least restrictive option to that patient. For them to consider victims as part of enhancing a process for that individual in terms of accessing treatment is a very difficult concept for mental health professionals to engage with. It is not a statutory part of their training programme. I think that many clinicians that we gather evidence from very much see the evidence which comes from the patient as being foremost in terms of the importance of the information coming from the patient. It is at the forefront in terms of the assessment that is being made. If you look at the Royal College of Psychiatrists' response to MAPA, multi-agency protection panels, and their guidance in terms of sharing information, it makes it very clear that sharing information should only happen if an alternative cannot be found to the treatment of that patient with MAPA. I think that the autonomy of the patient is at the forefront of the thinking and the engagement with the victim is secondary to that, and the thinking is that victims belong in the criminal justice system. Victims of mentally disordered offenders do not belong in the criminal justice system. We belong in the Department of Health as well, and the Department of Health - and excuse me if I should not be saying this - have continuously, and I think it is a psychological response, that, used the word "victim" in terms of association with somebody who is ill, which is again increasing stigmatisation. We do not want to increase the stigmatisation of a patient by calling ourselves victims. What we want to do is enhance the treatment that they receive because of our experience, not exclude them from society or from our communities. I think that the Department of Health and the medical profession that we engage with have found that very difficult to understand. We can both belong within the community but we both have needs which have to be addressed, and we have information that is vital to the treatment and the care of an individual who is ill. Q522 Mr Howarth: I think probably we would all accept the general principle that there should be confidentiality between doctors and patients. There should be the presumption that in normal circumstances personal information should not be transmitted to others. On the other hand I think there is great merit in your argument that in the sorts of cases you are describing there ought to be some mechanism by which that information, for safety purposes if for no other reason, should be made available to a limited number of people. The difficulty I foresee, and maybe you can help me, and I think you have partly answered it, is, where do you set the threshold? How do you trigger the point where you say, "Right; in this particular case it is reasonable to pass on information to proper people"? That would presumably be a very difficult exercise to go through. Mr Howlett: In cases of giving information it is quite clearly laid out in the Domestic Violence Act which received Royal Assent recently, but in terms of collecting information I can understand the concerns about patient confidentiality because members of the public may make spurious calls to community mental health teams. Every call should be taken seriously initially, enough for someone to carry out some kind of assessment of the situation in order to see whether it is appropriate to release more information, particularly if somebody feels that they are at risk of harm. I would also include psychological harm because we have a lot of people who are extremely distressed in the community. Q523 Chairman: That comes back to your earlier point, Mr Howarth. Can I ask finally if any of the witnesses have any comments to make about the continuing role of the Home Office under the bill, bearing in mind that we have heard evidence criticising the fact that under the draft bill the Home Secretary retains the exclusive power to authorise transfer and leave in the case of patients under restriction orders, and it has been suggested to us that this leaves a clear anomaly whereby tribunals can order the discharge of somebody from a restriction order but cannot order the essential precursors to discharge to enable them to make a full assessment? Do any of you wish to say anything about that or is that a question which is really outside your respective scopes? Ms Kesteven: We do not feel strongly that the executive power should be taken away from the Home Office. Clearly there are issues about the scope of the Mental Health Review Tribunal and the fact that it cannot order that leave or transfer be initiated. There are some benefits in the Home Office having an overall view of restricted cases because we are only talking about restricted cases. It is a very small number and it does relate to the patients who present the greatest risk to others. Rather than necessarily taking away the executive power it might be helpful if the tribunal could make statutory recommendations about leave or transfer. My understanding is that the tribunal can make recommendations but they do not have any statutory force at present and it is not proposed that they should do in the bill and perhaps that is a change that might be advantageous. Q524 Chairman: Really this is not in your area of work, is it, because you are not dealing with restricted patients? Ms Samkange: No. Q525 Chairman: Do you want to add anything, Mrs Zito or Mr Howlett, on this point? Mr Howlett: Only that I have read the evidence of Professor Richardson about this point and it may be instructive for the committee when they go to Wales next week to know that there was a homicide inquiry, the first of its kind published in Wales, into a man called Paul Khan(?), who was a restricted patient. Q526 Chairman: This was very recent, was it? Mr Howlett: Very recent, yes. The inquiry found that a number of rules were broken. The Mental Health Review Tribunal stipulated that he must go into 24-hour staffed care but the hospital concerned needed to cater for a remand prisoner in Cardiff Prison, so they put him into another hospital which did not have 24-hour staffed care and the Home Office was not informed. The Home Office was not informed about a number of other matters, including the fact that the patient went missing rather than attend an outpatients' appointment. I wondered whether removing the executive powers of the Home Office, as suggested by Professor Richardson, might not give the tribunal more direct engagement with all the issues that crop up with restricted patients. I do not have a strong feeling about it but I did have a reservation about her proposal that they would have an advisory role instead and am not quite sure what that would consist of. That is the only observation I have to make about that point. Q527 Baroness McIntosh of Hudnall: I really feel there is one question I would like to ask the Trust as we have a unique opportunity here. One of the previous witnesses in the earlier session said quite specifically that the initial imperative to reform the mental health law was two specific cases, one of which is the case of your husband, Mrs Zito, and what happened to him. What I want to ask you, and I do not know whether the other witnesses would have anything to contribute to this, relates to whether you believe that had this bill been law at the time of your husband's death it is likely that the outcome would have been different. I know that is a very difficult question; I am sure, however, that it is one that you must have thought about in thinking about how you would like to see the law reformed. I wanted to ask it particularly in relation to the fact that the earlier witnesses did say that in their view - and I think it was Professor Eastman particularly - it was not the law that was the problem on that occasion but the way in which the individual in the case was managed and that, therefore, because that has changed, the particular circumstances are unlikely to recur. To repeat my question, do you think that the reform of the law that is proposed in this bill would make any significant difference, or what significant difference would it make to the circumstances that you faced 12 years ago? Mrs Zito: I can refer, and I hope Michael will help me with this, to the proposal for community treatment orders. When my husband was murdered there was an inquiry called the Ritchie Inquiry into the care and treatment of Christopher Clunis, and Jean Ritchie referred specifically to a group of individuals called the Special Supervision Group that Christopher Clunis would be identified under if he was under a special heading. These were individuals such as Christopher Clunis who were highly dangerous, recognised as being dangerous and known to services as being dangerous when they were ill. He suffers from paranoid schizophrenia; he does not suffer from personality disorder. He was non-compliant with treatment. I remember when the police came to my house in the days after the murder of my husband they told me that his drawers were full of medication, that he was not taking his medication. He was non-compliant with medication, he was transient and he was dangerous. He was identified by Jean Ritchie as falling into a category where there is a number, and the numbers have been used today, of individuals who are recognised as being within this profile. I believe and the Trust believe from the evidence we collect from other families where homicides have occurred and very serious assaults have occurred that have not been mentioned here today, that individuals like Christopher Clunis should not be hospitalised for a lifetime because of that profile, that they should have a right to live in our communities with appropriate support and with appropriate legislation to ensure that they take their treatment so that they can live safely within our communities. We believe very strongly that the community treatment orders proposed within this legislation would support individuals who fall into that profile. Mr Howlett: Can I add something to that? For instance, Christopher Clunis saw 43 different psychiatrists in five years. I do not think that will happen today, but there have been 150 homicide inquiries since 1994 and they continue to take place. They are not as high profile but there are real concerns about people living in the community who do pose a risk and who are not compliant. Professor Jeremy Coy(?), a forensic psychiatrist working in London, wrote at the time, "Let us not delude ourselves that this is a one-off event. There are other people like Christopher Clunis out there and we need to make sure that we can engage them in services before something terrible happens". Chairman: I have asked the staff just now to obtain for us if possible a short note on the Paul Khan case for our visit to Wales next week, partly because it has been mentioned in evidence, and I was reminded thus of it, and partly because it is extremely recent. The report was published, I think, only last week or possibly the week before, as recent as that. Thank you for that; we will be assisted by that. We are going to have to finish. Can I say thank you to all the witnesses. You have provided us with a great deal of food for thought and very good material. We are grateful to you for your written submissions. |