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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 95-ix HOUSE OF LORDS House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE JOINT COMMITTEE ON THE DRAFT MENTAL HEALTH BILL
Wednesday 12 January 2005 HIS HONOUR JUDGE PHILLIP SYCAMORE, MRS CAROLYN KIRBY, RT HON LORD NEWTON OF BRAINTREE OBE and MS PENNY LETTS
MRS PAULA HALLAM, MS JENNY GOODALL, CLLR MAUREEN ROBINSON, MR MARTYN AYRE AND MR DON MCLEOD
MR NIGEL EDWARDS, MR JEREMY TAYLOR, MS MEL WILKINSON, MR NIGEL MAGUIRE, DR TIM BULLOCK AND MR KEVIN TOWERS Evidence heard in Public Questions 724 - 812
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Joint Committee on the Draft Mental Health Bill on Wednesday 12 January 2005 Members present: Memoranda submitted by Mental Health Review Tribunal Regional Chairs and the Council on Tribunals
Examination of Witnesses
Witnesses: His Honour Judge Phillip Sycamore, Liaison Judge for Mental Health Review Tribunals, Mrs Carolyn Kirby, Regional Chairman, Mental Health Review Tribunals for Wales, Rt Hon Lord Newton of Braintree OBE, a Member of the House, Chairman of the Council on Tribunals, and Ms Penny Letts, Member of the Council on Tribunals, examined. Q724 Chairman: Thank you very much for coming to the Select Committee. I know that for at least some of you it has been pretty inconvenient to come here today so we are very grateful to you for changing your own, and I suspect a lot of other people's, timetables for you to be with us today. Thank you for your written submission, Judge Sycamore. We welcome the opportunity to talk to you about the tribunals aspect of the Draft Mental Health Bill. I wonder if you would like to introduce yourselves briefly, and if you would like to make a short introductory statement then perhaps one or more of you would do so. Judge Sycamore: That is most helpful. Thank you very much for the welcome and the opportunity. To my right is Carolyn Kirby, who is the Regional Chair for the Welsh Tribunal. I am the Liaison Judge for the Mental Health Review Tribunal for England and Wales and, as you will see from our paper, that is a non-statutory position which the Lord Chancellor created in 2002. There are two Regional Chairman for England and they in fact are the only full-time judicial officers of the tribunal. They have been full-time since March of last year. Carolyn is not appointed on a full-time basis. Uniquely, the tribunal is in all other respects made up entirely of part-time members, just over 1,000 in all. It operates in a quite curious role in the sense that this is probably the only tribunal which by definition goes to the applicant, to the patient, because tribunals convene at the hospital where a patient is detained. As you know from the paper, the 24,000 or so applications and references each year produce 11,000 or 12,000 effective hearings; those seem to be the most recent statistics. From the paper I thought it would be helpful to highlight three or four of our particular concerns and then we can develop as you wish during the course of this evidence session. We accept entirely the underlying objective of the Bill in so far as it applies to the tribunal in that patients should have an early review and that is commendable. Our concern, as you will see from the paper, is that the proposed method of achieving that is disproportionate and we think that the existing structures under the 1983 Act could properly be adapted to achieve the earlier reviews and still stay loyal to the objectives underlying the Bill. We are concerned about the change of the tribunal's role from one which is reactive to applications and references to one which is proactive, and a particular concern is the difficulty which would arise as the tribunal becomes the detaining authority and the issues then of independence and impartiality when it subsequently acts as a reviewing body on an application by the patient. We are also troubled by the proposed role for the tribunal in approval of care plans and whether that is an appropriate judicial role or does the tribunal hearing become more of a case conference and we ask whether that is an appropriate function for a judicial body. We know that one of the questions you wish to pose relates to the question of resource and recruitment and Carolyn Kirby will be happy to deal with that and explain how we produce the approximate numbers which are in our response. They essentially come from the department's own explanatory notes and their own estimates that the new provisions would produce upwards of 40,000 hearings a year, something approaching four times the current numbers. Apart from that being a more than challenging task, we are concerned that views need to be formed at a very early stage, in the context of both the present tribunal and any new tribunal, as to the desirability of moving to a corps of full-time members, particularly full-time legal members, as I say, of which there is none apart from the two full-timers for England. With regard to inter-relationship with the tribunal's White Paper and the planned transfer of this tribunal to the DCA, at least in so far as the English tribunal is concerned, I make no secret of the fact that I am concerned by the published timetable for the intended transfer although we hope to improve on that. It seems to me that this is a tribunal which should properly be within the DCA rather than with the Department of Health. In saying that I make no criticism of individuals within the department who do a sterling job. If you look at the issues which this tribunal deals with on a daily basis, the liberty of the subject and the protection of the public, it seems to us that it would be far more appropriate if it were with the sponsor department which is in the business of running courts and tribunals and then to have all the benefits of being part of the larger tribunal service which the tribunal White Paper envisages. We thought we would conclude our opening remarks by touching on the question you raise about the 28-day requirement. I have in mind a nightmare scenario which would not be so difficult to imagine occurring in a typical case. A patient is admitted to hospital in need of clinical help. The clinical supervisor is working to a 28-day timetable. That includes weekends, so in terms of working days it is a 20-day timetable. Within that time the clinical supervisor has other patients to deal with as well. He or she is going to have to prepare a report for the tribunal. The tribunal, having seen the report (and they cannot really do this until they have seen the report) are required then to appoint a member of the expert panel who has to prepare a report for the tribunal. The patient - and the majority of patients are legally represented because there is non-means tested legal aid available - will in all probability instruct solicitors. The solicitors themselves may well decide also to instruct an independent expert and I have this vision of a patient who is perhaps in need of clinical help and would like to concentrate on treatment, who may not want a tribunal at this stage, being subjected to a stream of visitors who are carrying out examinations, as they are required to, and I wonder then what the impact is going to be on the clinical welfare of the patient and on the relationship between clinician and patient. When is the clinician at that stage going to have the opportunity to get on with looking at the patient? We paint that picture not to be extreme but to demonstrate what has to be achieved in a very short timetable and the reality of a relatively small number of working days. I hope those opening remarks help to set the scene. Q725 Chairman: Lord Newton or Ms Letts, do you want to add anything from the Council on Tribunals' viewpoint? Lord Newton of Braintree: I do not think I want to make an extensive opening statement, Chairman. We have submitted what I hope is reasonably crisp evidence to you which I hope speaks for itself. There may be one or two points of uncertainty. You I am sure understand the general role of the Council on Tribunals with an oversight role to look at the composition and working of a whole variety of tribunal systems, about 80 in all, including the MHRTs. All I want to say by way of background this afternoon is that the existing system - and this is no discredit to Phillip and Carolyn - has probably given us more concern than almost any other consistently over the past 20 years or so and we would very much like to see further improvements along with those which Phillip has already been able to bring about. I have one other very quick observation. Part of the background for us at the moment is the government's White Paper on administrative justice which proposes the creation of a tribunal service embracing what is sometimes shorthanded as "the top ten tribunals", including the MHRTs. For reasons connected with the underlining of independence the Council has very strongly supported that and I would very much want to echo Phillip's support for the move of the MHRT from the Department of Health to the Department of Constitutional Affairs, and indeed would hope that the timetable might get accelerated, although that is obviously a matter which has to be decided by government, not by us. Q726 Lord Mayhew of Twysden: Lord Sycamore, your paper and your opening statement are of course very helpful. Can I ask you a question about your assessment of where we are at the moment? In your paper at paragraph 7 you say that the MHRT administration "is regularly failing to deliver a reliable, professional service to tribunal users, a failure that it will require a long time to turn around". You say also that the administration is "currently systematically unable to deliver an effective tribunal service". That is a bleak and rather dour assessment of where we are at the moment. Can you help me to see how we should read this in conjunction with what you say a little earlier in paragraph 4 when you say that the government's commendable goal (which you have mentioned already today) of strengthening the patient's right to have decisions about their liberty assessed with rigour and independence "can however be adequately and effectively safeguarded by relatively minor changes to the current legislation". At first sight that seems a little difficult to square with the first rather dour picture. I wonder if you could help us about that? Judge Sycamore: Shall I give an example of a minor change just to demonstrate what we mean? Q727 Lord Mayhew of Twysden: Yes, or even a list. Judge Sycamore: One of the main issues which emerges from the Bill is the timetable for the review of compulsory detention. At the moment cases come to the tribunal either by application or by reference and the 1983 Act sets out requirements for references in circumstances in which a patient has not made an application, so that if a patient has not made an application within the specified interval then the hospital managers, or the Home Office in the case of a restricted patient, are required to make a reference to the tribunal. The 1983 Act sets out the timetable but it also goes on to say that the Secretary of State can vary that timetable by order. One of the suggestions we have is that the need for an earlier review could very well be accommodated by simply revisiting the timetable during which there must be references if there have not been applications. That is an example of the sort of change which could be made. As far as the administration problems are concerned, as I say, I have no criticism at all of the individuals concerned; they do a sterling job in difficult circumstances, but both Carolyn and I recently attended a presentation by consultants who had been engaged by the Department of Health to identify some of the problems which are causing the administrative difficulties and Carolyn in a moment will identify the bullet points which came from that presentation. A lot of the problems arise from the location of the offices. They are London based offices. There is a poor record of staff retention. People do not tend to stay in the job very long. Their expertise does not have a great opportunity to develop over a long period. The database, which should enable staff to have easy access to information about suitable locations to ask members to attend the tribunals at suitable distances, does not work very effectively, and the telephone and fax systems are not geared to having a modern tribunal. The upshot of all of this is that very often the listing of cases is happening far too late in the day, the part-time members are being contacted very late in the day and a lot of the hearings are effective largely because of their goodwill and commitment to the tribunal's work. An obvious consequence of that, which is undesirable in any judicial environment, is that papers arrive late or do not arrive at all and are seen by tribunal members on the day of the hearing. Those are the sorts of problems at the coal face which are capable of being resolved. I mentioned in my opening remarks that for all sorts of reasons transfer to the Department of Constitutional Affairs is desirable. One of the reasons, a practical reason, is that they are in the business of and have had lots of experience of running courts and tribunals, dealing with judges, dealing with part members and making sure that there is good and effective use of time. Could I ask Carolyn to pick up on the particular points? Mrs Kirby: A distinction needs to be drawn between the judicial remit of the tribunal, which I think it is fair to say is not giving cause for concern, and the administration which underpins it, which I think is certainly giving cause for concern. I should here draw a slight distinction between the system which pertains in England and the system which pertains in Wales, not simply because I am Welsh but because we run two different systems. We run a system which is as it used to be run in England. The system in England was changed and most people agree that that is not necessarily a step in the right direction. The administrative problems as identified by the consultants who have been appointed by the Department of Health - and perhaps I should say that although we have not seen it there is a 20-page report of the shortcomings of that administration, in no particular order, prepared by those consultants which might bear examination if you were inclined to look at it, as Phillip has mentioned some of them - are that the booking system, which is used for members and is an advance booking system in which people are asked to express their availability for the coming year for the minimum number of days that they are obliged to sit, does not work for a variety of reasons. It does not have the confidence of either the members or the staff and part of the problem is that the computer database which underpins it does not keep the information accurately and therefore people are sent out to hearings either on days that they have not expressed their availability or, more particularly, some costs are wasted because people set aside days when they believe they are going to be sitting and in fact they are not given any work because the database has not identified them as being available. The IT database itself does not work for a variety of reasons. It does not have the necessary capacity and it was not built for commercial use in any event and therefore it is largely unsuitable. Q728 Chairman: Forgive me for interrupting you. I think we have pretty well got the message about the inefficiencies of the present system and, as I have told the committee previously, I at one time for a short time experienced the difference between the Welsh system, where you still have what I will call loosely clerks, and the English system where the tribunal is left floundering on its own in an unfamiliar room in sometimes hostile territory with almost no administrative back-up at all and nobody turning up at the hearing either, which is the sort of horrendous position you are describing. The system is broke to an extent. Do you not think that the new system that is proposed gives a real opportunity to mend it? Mrs Kirby: No. Q729 Chairman: Why not? Mrs Kirby: The reason we think it is not an opportunity to mend it is that we have not seen any firm evidence that the real implications of the implementation of this Bill have been taken on board in terms of the resources and particularly the money that would be needed to underpin this if it were to be introduced. Q730 Chairman: Am I to take it that none of you here has seen the 20-page consultants' report to which you referred earlier? Lord Newton of Braintree: I certainly have not seen it. Q731 Chairman: Judge Sycamore? Judge Sycamore: No. Mrs Kirby: But we have attended an event at which the consultants took us through the points which they raise in that report. We simply have not seen the written report. Q732 Chairman: Do you know why not? Mrs Kirby: No. Judge Sycamore: It is not available at this stage. The presentation was fairly recent. It was not very long before the Christmas break. Q733 Lord Mayhew of Twysden: Arising out of that can you tell me whether your objection to the proposals for the Mental Health Tribunal are based upon the assessment that it never could succeed because it is too cumbersome, it is too complicated or whatever, or is it on the basis that it is not going to be properly resourced and therefore is going to fail for that reason? Judge Sycamore: Our objections to the proposed structure and new role for the new tribunal is that it is unnecessary and disproportionate in terms of the needs it is seeking to address. That is the first point. The second concern, as I mentioned earlier, is the blurring of the territory between the judicial role and the approval of care plans, and the third is this confusion of role, being at one stage of the process the detaining authority and at a later stage becoming the reviewing body which seem to fit uncomfortably. Q734 Lord Mayhew of Twysden: In shorthand one might call these inherent objections? Judge Sycamore: Yes. There are issues about recruitment and resourcing. If the tribunal were to go ahead in its proposed form, put to one side the inherent objections as it were, we would all be very concerned that something so ambitious in terms of recruitment and resource was being taken on against a background where it is already difficult to recruit sufficient medical members to the tribunal and there is no certainty that there would be the necessary number of legal members and a massive commitment in terms of recruitment and the time that would take. That is something Carolyn has done some work on in terms of the numbers of days and months and beyond that it would take. Q735 Lord Mayhew of Twysden: We have seen those calculations and of course they are formidable. You are going, I hope, to give us a list of the relatively minor legislative changes that are needed, to use your words. I do not at the moment see quite why it would take in your view a long time to turn round the systematic failures that you were talking about because I got the impression that these are relatively minor matters that could be corrected very quickly with fairly early effect. Judge Sycamore: I think a lot will hinge on where it is decided to run the administrative operation from. At the moment the work is done in the Waterloo area and in north London. There is to be a move of one of those premises and there are real concerns about the ability to recruit and retain staff of the right calibre to do the work in the London environment. That is one of the first issues. The other issues are about addressing the needs which Carolyn has identified but that is going to be very much a resource question for the Department of Health as they consider what the consultants tell them in the report. Mrs Kirby: May I add something to that, that in practical terms these issues are unlikely to be addressed by the Department of Health when the tribunal is about to move to the DCA because there is going to be a considerable resource implication in providing the administration which the MHRT needs and it is unlikely to be done in the next 12 months when all of that is shortly going to be moved elsewhere. Q736 Laura Moffatt: There is some clarification that I require here. It is quite legitimate to raise the issue of resources when a new proposal is made such as we have before us, but I am just reading through the evidence and I am trying to get to grips with why you believe, apart from some minor changes as Lord Mayhew says, that the system is okay? You argue that 50 per cent of detained patients have recourse to the tribunal. Then in a later paragraph on page 3 you say that 25 per cent of those would then withdraw the application and you quite rightly cite the volatile nature of mental health and the issues around that. Are you entirely satisfied that the system as it stands is also dealing with those 50 per cent for which you have no knowledge whatsoever about their situation at all because they have not been before you, they have not been raised at a tribunal? Are you entirely satisfied that their needs are being met? Judge Sycamore: I am sure that there could be improvements to the way in which advice is provided to the individuals who choose not to make an application but the reality is that patients have ready access, for example, to legal advice, which is free legal advice. I am sure if one looked at the way the advice is provided it would be possible to ensure that the ways of offering that advice were improved. It might be that you could operate something on the lines----- Q737 Laura Moffatt: Is that part of your proposal? Is that what you are saying when you say minor things could be better? Judge Sycamore: No. I am trying to deal with your specific question about the 50 per cent. What we understand anecdotally is that the vast majority of patients through the hospitals and then through solicitors do have ready access to legal advice in terms of the options which are open to them. The tribunal has very recently launched a website and that provides a lot of information which was not quite so readily available to the public generally, and specifically we hope that will be of assistance to the families and friends of those who find themselves subject to the provisions of the Act. I am sure there must be ways of improving it and ensuring that every patient receives advice, but the safeguard, of course, is that if a patient does not choose to apply to the tribunal then there is a requirement for a reference by hospital managers or, as I said earlier, in the case of a restricted patient by the Home Office. Those timetables could be revisited and shortened as appropriate. The important thing is that people have ready access to and understand what their options are. Ms Letts: I wonder if I could come in here and make a point. From the point of view of the Council on Tribunals, we have looked at this issue in a slightly different way. While we share the concerns of the Regional Chairmen about the practicalities and the workability of the system and the proposals as currently drafted in the Bill, we have looked at it from the point of view of our particular interest in the needs and rights of tribunal users and patients in this context. In view of what we see as a quite significant reduction and changes proposed to the safeguards currently available to patients to challenge detention that are proposed in the Bill, for example, the removal of their right to apply for discharge by the hospital managers, the removal of the nearest relative's rights of discharge, the reduction in the visiting function that is currently carried out by the Mental Health Act Commission, changes to the safeguards in relation to consent to treatment and so on, we feel that, while the Bill is reducing the safeguards available to patients to such an extent it enhances the need for the tribunal to take on this role that is proposed for it in being the independent judicial body, that confirms the need for continued compulsion after the initial 28-day period. We feel that that principle is quite an important principle and would provide an appropriate degree of safeguards for patients in the context of the reduction of these other safeguards which are available while we are sharing the concerns that the provisions as currently set out in the Bill would actually make it very difficult for the tribunal to carry out that role. Q738 Chairman: I would like to move on now to two specific questions that we need some kind of answer to in order to help us in our deliberative process and then we will turn to the question of the role of clinicians. The Bar Council, and certainly the Hampshire Partnership NHS Trust, have expressed misgivings about the removal of the discretion under the 1983 Act in the hands of the tribunal to discharge certain patients even if the conditions for discharge have not been met. In your view what circumstances would justify the tribunal retaining that discretion even though a patient satisfies the conditions for compulsion? I will ask the other question as well; it is quite separate, so that some thought can be given to it whilst the first one is being answered. The draft Bill makes provision for the tribunal to sit in a panel consisting of a single member. We would be grateful for your views on that and in particular the kinds of issues (if any) which you regard as being suitable for a single member to determine. Judge Sycamore: Can I comment on your second question first? We have asked the question of Department of Health officials - and when I say "we" I mean the Regional Chairmen and myself - as to the circumstances in which it is envisaged that there may be single member determinations. The most recent answer I recall, and I am sure this is right, is that it was envisaged that the majority of decisions would be made by three-member panels. We find it difficult without further information from the department to see how single member panels could operate on substantive issues. If, for example, there were to be a cadre of full-time legal members then we could see great attraction in the ability of full-time legal members to deal with case management issues and to ensure that parties focused on the key issues before the day, but beyond that, given the role of the tribunal and particularly the proposed role of the involvement in care plans, we would find it difficult to envisage circumstances in which beyond case management, which is a very important function, single member adjudications would be appropriate. Lord Newton of Braintree: Our view would be broadly the same, Chairman. In fact, we commented on this in paragraph 12 of our evidence and said we could see a case for this where you were talking about a specific well-defined interim or procedural category of issue, but we went on to say that any substantive issue involving the use of compulsory powers, for example, we thought should remain with a three-person tribunal. Chairman: It is really directions hearings and that is about it? Lord Newton of Braintree: Yes. Q739 Chairman: Do you agree with that? Mrs Kirby: I do. I think that any hearing which deals with substantive issues which is being dealt with presumably by a lawyer alone would, apart from anything else, raise human rights issues. At the moment the patient is entitled to be heard and I think the patient should be heard in those circumstances. Anyone sitting alone dealing with the issues on the papers, bearing in mind that it is proposed that the remit should be expanded to include the care and treatment plan, would not be trained to do that, and even if they could be trained to do it and were prepared to try, I think it would raise all sorts of issues as to fairness and the human rights of the patient. I think it likely that if lawyers were asked to do that, to sit on their own to look at substantive issues, at the very least they would require a report from a member of the expert panel, having visited and examined the patient, to introduce an independent clinical view. I think it is quite inappropriate to ask a lawyer sitting in a judicial capacity to decide on clinical issues. Q740 Chairman: Can you offer any thoughts on the first question? Ms Letts: Certainly we regret the fact that the tribunal will no longer have any discretion where the conditions for compulsion appear to be met, mainly because we are concerned at the broad drafting of the conditions in the current draft Bill which makes it easy to see where patients might fulfil the criteria for the use of compulsory powers but difficult to see where those powers might no longer apply. That is certainly one of the concerns that we have about the broad drafting of the conditions for compulsion. Another is the lack of legal criteria spelt out in the legislation which enable tribunals to determine whether or not compulsory treatment is in fact justified or other types of issues such as whether the patient should be treated in hospital or in the community as a resident or non-resident patient. The drafting needs to be tightened up but in addition the tribunal should have discretion in the way in which they interpret those conditions and criteria. Q741 Lord Rix: My question goes back to what you were saying, Penny Letts, about detention and the tribunal. Would you see the possibility of the tribunal being the first step in closing the Bournewood gap? In other words, if an informally detained patient were granted the same rights as a detained patient, in other words to come to a tribunal, to have the appointment of a named person, to be entitled to have an advocate and CHI and all the rest of it which a detained patient has got, would you consider that that would be one simple way of closing the Bournewood gap, that under this Act they were granted the same rights as a detained person if they or their advocates were not satisfied that their best interests were being respected? Ms Letts: That is certainly one possibility. I know that there has been a lot of discussion both in the committee and elsewhere about where the most appropriate safeguards for both compliant and non-compliant incapacitated patients should lie, whether it should be within the Mental Capacity Bill that is currently going through Parliament or in the context of the Mental Health Bill. Certainly most of the statements that I have read and the evidence that has been put before you tends to favour those safeguards being placed in the Mental Capacity Bill, but in the context of decisions being made about deprivation of liberty and about detention and compulsory treatment it would seem inappropriate for there to be different bodies dealing with similar types of issues. While the Mental Health Tribunal would obviously have a body of expertise in looking at issues of this sort, it would appear to make sense for that tribunal to consider issues and safeguards in relation to incapacitated people as well rather than it going perhaps inappropriately to the Court of Protection under the Mental Capacity Bill or a new tribunal being set up. I think it would make sense for it to be in one place. Q742 Dr Naysmith: I was interested in what Judge Sycamore had to say early on when he was arguing against the use of monitoring of care plans and so on, which seems to be envisaged in the new arrangements, that being one of the objections he was putting forward to the new legislation. I do not know a great deal about what happens in the current case but is it the case that Mental Health Review Tribunals currently never become involved in the examination of care plans and treatment and so on? Judge Sycamore: No, it would be wrong to say that they never become involved because they do often feature as part of the evidence which the tribunal is considering, particularly if return to the community is envisaged. The tribunal will be concerned to know the detail and practicality of the package which is proposed. Q743 Dr Naysmith: What is being proposed under the new proposals that you do not currently do? Judge Sycamore: The difficulty we see is that you may find that a tribunal which exists primarily to exercise a judicial function in determining whether statutory criteria are fulfilled will find itself adjudicating between competing views as to what an appropriate care plan might be. There may be one view from the clinical supervisor, another view from the member of the expert panel and another view from an independent expert instructed by the patient's solicitors. What we are saying in the paper is that we question whether that is an appropriate role for a judicial body. Is there a danger that what is intended to be a judicial hearing becomes, from the patient's point of view, possibly a case conference, which is not the role of the tribunal. Q744 Dr Naysmith: Remembering that while all this is happening the patient is locked up. Judge Sycamore: Indeed, yes. Q745 Dr Naysmith: Whose job is it then to make a decision between these competing analyses of the situation? Judge Sycamore: That is the question we pose: is the tribunal best placed to adjudicate not a legal issue but a practical issue? Q746 Chairman: So the difference is that under the system proposed under the Bill it becomes the responsibility of the tribunal? Judge Sycamore: Yes. Q747 Chairman: And what you are saying is that you are very dubious as to whether that is a proper role for a judicial body? Judge Sycamore: Particularly at a time when it is suggested that the medical member in the current tribunal is a consultant psychiatrist. Of course, the detail of the definition of the new clinical member is absent from the face of the Bill but we are led to believe that it is not envisaged that the clinical member will necessarily be a consultant psychiatrist. Q748 Chairman: Do we take it from that that you and Mrs Kirby are in favour of retaining a psychiatrist as a clinical member of the tribunal? Judge Sycamore: We deal with this in the paper in paragraph 5 on page 2. The role of the clinical member in being both a member of the adjudicating panel and being required to carry out a preliminary examination has been the subject of some debate and indeed, as we point out in the paper, was the subject of a judicial review in 2002. So far the courts have taken the view that the way in which the clinical member operates in the English and Welsh system, which is a comparison with a slightly different approach I think in Switzerland which was mentioned in the judicial review, is such that it is an acceptable approach provided that the opinion which the medical member expresses to his or her colleagues at the outset is a provisional opinion and remains such throughout the tribunal hearing. So far the courts have said that that position is tenable and compliant with the ECHR. Lord Newton of Braintree: Chairman, I wonder whether I could chip in because I am not quite sure whether you are all regarding the four of us as a completely seamless ----- Q749 Chairman: No. I am certainly not anyway. Lord Newton of Braintree: I just want to make it clear that while we do share a number of the concerns the Council's perspective, again coming at it of course very much from the use and interests of justice perspective, if you like, is that we have never really been terribly comfortable with the notion of somebody who does the examination, who gives evidence in effect, is also a part of the adjudicative panel, so that we welcome in the new Bill ----- Q750 Chairman: We understand the issue. I do not think we should have a debate about what you have just said, though I can see Judge Sycamore just getting ready to have one. Lord Newton of Braintree: I just wanted to make sure there was no misunderstanding. There is a different nuance. Judge Sycamore: We have had the discussion. Chairman: If you do not mind we are going to move on to something else about the role of clinicians. Q751 Baroness Murphy: The tribunal Regional Chairs have argued that the proposed system would place an unacceptable burden on clinicians, and you alluded to that too, Judge Sycamore, in your opening remarks, because practitioners are required to write medical reports for every patient they detain for 28 days and also to attend subsequent hearings. Would you not agree with me that a clinician should surely have to justify their decision to deprive someone of their liberty to a tribunal? Is that not what the tribunal system is for? Mrs Kirby: I think there is a distinction to be drawn. Certainly the clinician should justify detention if asked to do so, but the distinction between the current system and that which is proposed is that the clinician would be required to prepare reports and so forth in every circumstance and we see this as part of a wider issue and it brings in the issues of the reduced number of people who have the necessary qualifications to act as front-line clinicians, also potentially to be clinical members of the tribunal and also (an issue which we have not mentioned yet this afternoon) this one of the expert panel. There are only a certain number of people who have the necessary expertise to do all three of those functions and we have a very grave concern about the availability of all of those people to fulfil the functions which they have been given. Of course clinicians should justify their detention of patients if called upon to do so, but to require them to do so in this very cumbersome fashion in a very short timescale in every single case, whether or not the patient is applying to have his or her detention review, we think is an unnecessary burden given that the system of mental health is under some significant pressure already. Q752 Baroness Murphy: If resources were adequate and we had consultant psychiatrists coming out of our ears - and I know that is not a very good analogy - and plenty of clinicians to do the job you would have no objection, but you do at the moment think it is the resource issue which poses a problem for the tribunal? Mrs Kirby: It would overcome the difficulty of the number of people who would be needed to fulfil all of those functions from the clinical point of view but of course that would not overcome the difficulties that we would have from the tribunal's point of view. It also does not overcome the timescale issues which Judge Sycamore referred to at the beginning, that most of these things need to be done consecutively; they cannot be done concurrently. The practical fact is that an RMO clinician detaining a patient is unlikely to start preparing a plan for that patient's care and so forth until they have had an opportunity to consider the patient and assess them and so forth. That necessarily takes a period of time. That report would have to be produced. On the basis of that a member of the expert panel would have to be identified and booked and their availability determined even if there were an unlimited number of these people, which there is not. Q753 Chairman: Is there not a critical mass issue here as well? The fact is that although the department may say that it will fund all the new clinicians who are needed to be able to service the system, they do not just appear like that? Mrs Kirby: No, and they cannot simply be created if they do not exist. I think you will already have heard from the Royal College of Psychiatrists about the number of psychiatry vacancies that there are currently. I am sure they will have told you themselves that there is a significant cohort of psychiatrists who are so opposed to this legislation that they will not take part in its implementation and therefore the problem is only going to become worse, not better. Ms Letts: The other issue in terms of the drafting of the Bill, and we were talking before about the lack of discretion for the tribunal, is that there is also a lack of discretion for the clinical supervisor, that once the clinical supervisor finds the conditions for compulsion to be met they have to use compulsory powers. There is no discretion for the clinical supervisor not to. Again, it adds to the burdens and then the need to justify the use, and they will also have to justify not using compulsory powers, so while the criteria for compulsion are so broad it adds to the burdens of the clinical supervisor as well as the tribunal. Dr Naysmith: In your submission you argue that the Department of Health's estimate that you will need an additional tribunal workforce of 160 whole-time equivalents, which would break down to 2,375 new part-time tribunal members. You are obviously not very keen on that idea but do you worry about the basis on which it is calculated or do you think it is realistic? Finally, do you think the best way to solve the staffing problems you are indicating would be to employ ----- Q754 Chairman: Associated with that question, I think the committee might be interested in your view as to whether, if there are to be the resources provided to meet need, they would best be met by the introduction of a large number of full-time appointments rather than a very large number of part-time appointments. Judge Sycamore: We have made the point that so far as the legal members are concerned we can see the need and attraction for full-time appointments, whether in the existing review tribunal or a new tribunal. I am not so sure that it would be so easy to attract consultant psychiatrists into full-time positions away from their NHS practice. The career structure for consultants is quite different from that for lawyers and I am not sure that the case is made out that there will be large numbers of medically qualified individuals who would seek to take the full-time appointments for the new clinical member status. As far as the numbers are concerned I am going to ask Carolyn Kirby to deal with that in a little more detail for you. The numbers initially come from the explanatory notes to the Bill in which the department set out their predictions as to the increase in numbers of tribunal hearings and the formula for conversion from part-time to whole time equivalents. That was the starting point for the contents of that paragraph. Q755 Dr Naysmith: On the question of people being full-time rather than part-time, in the latest competition for legal members of the health tribunal system there were 233 applications for just 31 vacancies. Judge Sycamore: This was the legal members? Q756 Dr Naysmith: Yes. Judge Sycamore: Not the medical members? Q757 Dr Naysmith: That would suggest that it would be possible at least, would it not, to staff the legal requirement? Judge Sycamore: We are persuaded on the legal member issue but whether people would be attracted to it as a full-time post is a different issue. These are individuals who have taken 20 or 30 days away from their practice at the Bar or as solicitors. Q758 Dr Naysmith: But that is looking at the current situation. It might change if there were a different system altogether. Lord Newton of Braintree: If I could chip in here, part of the thinking in the development of what was originally shorthanded as the unified tribunal service was to create a stronger and clearer career pattern for what are called the tribunal judiciary, and they sometimes call the others the uniformed branch. Whatever term you use they are operating in a judicial role. They often feel as if there is not a very good career structure for those who are particularly interested in tribunals, and it is true of the staff as well, and that is part of the case for the new tribunal service and it does interrelate with this discussion you are having with Phillip. Judge Sycamore: And it would give the opportunity for legal members to sit in a variety of jurisdictions, so they would not have a permanent diet of one particular jurisdiction. Mrs Kirby: Bearing in mind that if they sit in other jurisdictions they are not available to the Mental Health Tribunal. If they are appointed full-time we would need them full-time. The point about the numbers is that at the moment people are only required to sit a minimum of 20 days a year. At 20 days a year to have 100 full-time people you would need a lot of people for something like 20,000 sittings. That is where we arrive at the figures because that assumes that there is a full-time cohort. It is also not just an issue of simply recruiting people. There is a significant issue as to whether a full-time appointment would be attractive but if you do recruit full-time people you would have to bear in mind that of course we have no premises. We do not function from a building because that is not the way the tribunal works. All the hearings are in hospitals and all the part-time people are simply booked to go to those hospitals, so that any creation of a full-time cohort of legal members would need to be followed up by the acquisition of premises, support staff and all the costs that follow from that. Q759 Chairman: We have a pretty clear picture in the written evidence and from what you said about those resources issues. There is one further question, which is unconnected with those issues, that we do need some evidence on. It is this. The 1983 Act empowers courts to subpoena health authorities where they fail to provide a bed. We would be grateful for your advice as to whether this power should be retained in the new legislation. Does it happen much? Judge Sycamore: In the courts? Q760 Chairman: In the courts. Judge Sycamore: I think probably the best example of this is in the crown court where frustration can often arise where a judge may be persuaded that it is appropriate to make a hospital order, as it is defined in the current legislation, but is constantly having to adjourn because he is told that whilst the criteria are met a bed is not available. I do not think the ultimate sanction is very often used but the threat of it can quite often produce the answer which the crown court is seeking, so I think a suggestion that a chief executive might find himself or herself in receipt of a summons if a bed is not made available, in other words to come and give an explanation, quite often is a stage in the process which is a turning point in terms of availability of a bed. Q761 Chairman: This is a common law power anyway, is it not? Judge Sycamore: Yes. I am not aware of any recent evidence of an executive appearing in any crown court in answer to a summons. Lord Newton of Braintree: I was Chairman of a mental health trust for four years from 1997 to 2001 and I am just glad it never happened to me. Chairman: We are glad it did not as well. I am sorry it has been rather hurried, though in fact we have taken rather more time than we had allotted because you had such interesting things to say to us in writing and in your oral evidence. I simply repeat how grateful we are to you for coming. I should have said at the beginning that as this is a public evidence session a transcript will be produced and will be available on the internet after about one week. You will have the opportunity to make textual only corrections to it if you wish, so please avail yourself of that if you would like to do so. Thank you very much indeed. Memorandum submitted by the Local Government Association, the Association of Directors of Social Services and Kent County Council
Examination of Witnesses
Witnesses: Mrs Paula Hallam, Strategic Service Manager for Mental Health, Hampshire County Council, Ms Jenny Goodall, Director of Social Services, London Borough of Brent, Cllr Maureen Robinson, New Forest District Council, Mr Martyn Ayre, Head of Policy (Adult Services), Kent County Council, and Mr Don McLeod, Strategic Policy and Performance Manager, Kent County Council, examined. Chairman: Before I welcome our next group of witnesses I understand there is a possibility of votes in the Commons late in the afternoon. If there is a division we will have to adjourn for 15 minutes and can I just advise those who will not be voting in the House of Commons that they are not to engage in discussion of substantive issues with the witnesses or to deliberate the Bill in front of witnesses during the adjournment. Welcome. Would you briefly introduce yourselves please and then I hope you will be content for us to move straight into questions. Who is going to start? Cllr Robinson: I will introduce us as much as I can. My name is Maureen Robinson. I am a councillor and a member of the Local Government Association's Community Wellbeing Board. I would like to introduce you to Ms Jenny Goodall, who is the Joint Chair of the Association of the Directors of Social Services Mental Health Strategy Group on Disabilities, Mrs Paula Hallam, who is a mental health specialist from Hampshire County Council and who has advised the ADSS and the LGA in putting together a response. Our colleagues from Kent County Council are Mr Martyn Ayre and Mr Don McLeod. The submission that I am speaking on today has been prepared jointly by the ADSS and the LGA. Our purpose in collaborating is to submit a response that would set out the common principles which our organisations believe should underpin the development of mental health policy. We believe this should stress in particular the importance of social inclusion and of community leadership. We represent the same service users and we have common objectives and share the same views about the draft Mental Health Bill. In a few moments I will ask Ms Goodall if she will introduce the key points of our submission but I do not know if my colleagues from Kent would like to say anything. Mr McLeod: I represent Kent County Council, as does my colleague Martyn Ayres. I am the Strategic Policy and Performance Manager for Mental Health for that authority and Martyn is Head of Policy. The submission is mine. However, it is based very much on deliberations with colleagues in Kent County Council, in Medway Unitary Authority and in the two mental health trusts in Kent, so it is an amalgam of opinion and it does not in any way disagree with what our colleagues in the other two organisations represented here are saying. Ms Goodall: I am happy to say a few introductory words but it sounded as if you were ready to move into questions. Q762 Chairman: You are right. The Association of Directors of Social Services and the Local Government Association propose adding four principles to the Bill. Even if we were of the view that principles should be included on the face of the Bill is there not a danger that adding those four principles to the face of the Bill would overload the Bill in concrete with arrangements that would be difficult to change, whereas including such principles in the code of practice might make the legislation more flexible to meet changing needs and clinical availability in the years to come? Ms Goodall: Our view in recommending that they should be included on the face of the Bill was really in terms of recognising their importance and also being able to make some judgment as to what is more appropriately in the code of practice. Of course, at the moment we do not really know what the scope of the code of practice is going to be. There is other legislation, the Mental Capacity Bill, which you have already been discussing, which itself has adopted principles, as did the 1989 Children Act. We have examples where, if the principles are sound enough and universal enough, they would be quite appropriately encompassed in the legislation. I understand what you mean about flexibility and you would not want the list of principles to go on for ever, but I would like to pick out some key principles, particularly because one of our concerns about the Bill as it is is that it is very much geared towards public protection and public order concerns and there are some very key principles that we would to make sure underpinned every part of the new Act, and we feel that that would be better done in the legislation, in the Bill itself, rather than in the Code of Practice. Q763 Chairman: In your submissions you propose a condition that refers to a postcode lottery. You are a group of witnesses who have a very broad view of what happens across the country, so perhaps you might be a very good group of people to reflect upon how mental health services vary across the country and whether your fourth condition might help to reduce those variations, if that is a desirable end? Ms Goodall: Certainly, with reciprocity and the guarantee that if someone is going to be subject to compulsion they would have some rights to expect good quality care and medical services, that would reduce some of that variation. I think some of the national initiatives through the Mental Health NSF have made some difference in terms of variation in provision, because there has been some very tight monitoring of the compliance with the NSF and successful implementation of NSF. I think some of that variation is being addressed through central monitoring and driving of the NSF, but certainly needs differ. I am the Director of a deprived London Borough. Our issues are in relation to mental health, and the challenges that present to us as a local authority and trust may be different than in some other authorities. Certainly we do see that variation. I do not know if Councillor Robinson wants to add anything? Cllr Robinson: I am a representative of the Rural Authority, and certainly some of the problems that have addressed themselves to members of the Rural Committee are very different to those that there would be from a London Borough, and it is in those sorts of ways that we see a big difference between the services which are offered. In terms of quality, there is always an attempt on the part of the providers and on the part of the social services authorities to provide an equal authority, but, in terms of the difficulties that are provided, I do not think that is always possible. Q764 Chairman: You are always going to have differences of quality, that is inevitable, but differences of provision are another matter. One can help to remove those by conditions on the face of the Bill. Is that a fair summary? Cllr Robinson: It certainly would help, and our view is that if it is in the face of the Bill then it gives people like ourselves a chance to have our voice heard in that matter, whereas if it is covered through regulations that is not always possible. Q765 Baroness Barker: Today, on the day when I picked up the Government's consultation document about black and minority ethnic health services, I have been particularly worried about the issues that you have down here about non‑discriminatory care and treatment being employed in all aspects of the Bill, but I wonder if you can just say from your point of view, from your practitioner background, what is the difference in having something like that included as a principle as opposed to in a code of practice on a Bill like this, which will inevitably have to be a framework Bill. What difference will it really make? Mr McLeod: I think that particular aspect of trying to meet the needs of all our citizens is endemic; it is right across all the legislation that is now coming forward; it is right across all the principles that have been put forward by government. There is no reason why it should not be in this Bill as well, because that is an aspiration to which I think we are all signed up. The fact that perhaps further ethnicities have not been well‑treated in the system in the past might be picked up more sharply if it was a principle in the Bill. That is what I would say about that. Q766 Lord Rix: The ADSS and the LGA state that compulsory treatment in the community should only be available for patients on authorisation of the tribunal after a period of inpatient assessment. Does that mean you accept, notwithstanding your reservations, that compulsory treatment in the community may be beneficial for some people? Ms Goodall: We quite deliberately did not target groups that said that there should be no compulsory treatment in the community ever, I think our response was to lead some way into that, but our view is that really those opportunities for community treatment orders in the community are very limited. One can think of limited examples: for example, a patient who was not compliant with taking medication but would take medication knowing that there was the force of an order behind it. Otherwise the person was very well supported and could manage in the community, but, without the medication, would become unwell and therefore would break down again. It is possible to think of one or two very specific examples of where a treatment order in the community would be appropriate, so we have not put a blanket opposition to audit, but we think it is extremely limited; and our concern is that community treatment orders could become an alternative to compulsion in hospital, because that is what somebody really needs, and compulsion in the community uses a sort of slightly cheaper alternative to that, or it could be used as a simpler way of ensuring compliance with treatment plans within the community. We have some very real reservations about it, but we see that there are some occasions for a very limited number of patients where a treatment order may be just the thing that would help somebody get along okay within the community. Q767 Lord Rix: You also said that you are overly concerned at the principle of compulsory care to protect the public from risk rather than managing risk through adequate community services. How is risk managed in the community without compulsion and, furthermore, what additional services would you need to see in order to make community treatment orders work? Ms Goodall: I am sorry; I did not quite catch the last part of your question. Q768 Lord Rix: How is risk managed through community services without compulsion? Ms Goodall: The majority of people are compliant with care plans. The aim of Mental Health Services should be to ensure compliance, to ensure people's engagement with services, and a lot of the work that the professions within Mental Health Services do is about engaging that compliance. Most people do want to comply with their care plans and cooperate, so risk management in the community is managed through the relationship between the multi‑disciplinary team, the key worker and the patient. For the majority of people that is how that risk is managed. It is only in situations where somebody will not comply and then need some compulsory powers, but mostly the vast majority of people do not require that at all. Mr McLeod: Could I comment first and then perhaps pass on to Martin? The first thing is that the whole business of compulsion in the community seems to me to be a sledge hammer to crack a nut. As Jenny Goodall says, there will be some cases where that might be beneficial, but people are suggestible enough to comply because they have been told they have to. By and large most people with mental illness do not fit into that category, and that brings a whole list of questions about who enforces that compliance, how are people got back to hospital; a whole apparatus has to be constructed, which is unclear from the Bill, in order to deal with that. In terms of risk, in reply to Lord Rix's question, risk is absolutely at the heart of the management of severely mentally ill people; it is at the heart of the care programme approach. One of my own personal dilemmas is whether such a concentration of risk can develop or deliver good mental health services. I think, with some reservations, probably it can, because there is so much concentration on the safety of the person and the safety of others. These would be my comments on that aspect. Mr Ayre: If I may very briefly comment in response to Lord Rix's question, I do not believe that there are any systems or processes that of themselves will guarantee risk management. Risk management, eventually and ultimately, will come down to competent professionals exercising good judgment and not a system, not a bureaucracy. Q769 Mr Prosser: On the same subject, do you want to see the community treatment orders removed from the Bill or do you want to see them reformed and provided with safeguards? Mr McLeod: If we take the somewhat cautious view that we have been taking, we will suck it and see, if it comes to it, because I do not think they will have all that much of a place. We have seen provisions put into legislation which have been very poorly used, which have actually bordered on a breach of observance, if you like, and this may be one of them. Cllr Robinson: My feeling is that safeguards are necessary. One of my biggest concerns about compulsory treatment orders is that they will deter people from seeking help when they need it. At the moment a lot of the service's treatment must be placed on trust. If that trust is lost because of compulsory treatment orders, that is going to create a great deal of harm. Chairman: I do not want to spend too much time on this issue because we have had a mass of evidence on it and it is broadly consistent, but I know Dr Naysmith wants to ask something. Q770 Dr Naysmith: Almost all of you who have spoken in answer to the last question have been very critical of compulsory treatment in the community, and I can understand why you would be so if you think it is just going to be a cheap way of doing something else, but I know that some people who have said that they are not opposed to it have said what it does is give a better quality of life to someone who might otherwise be locked up an in institution. Is that a ridiculous notion? Q771 Chairman: One of you has nodded, two have shaken your heads in answer to that question! Cllr Robinson: It just goes to show why we have concerns about this, because it is so variable. I think, yes, if it is used properly with the correct safeguards that people have confidence in, it can be beneficial, but our concerns are that, if it is used without those safeguards, it is going to be damaging. Mr McLeod: I think there is a very practical point, which is from a local authority, local government point of view that it may be a substitute for the use of beds and that that will represent cost shunting in some form or another into local authority budgets, but that is a very practical point. Q772 Dr Naysmith: That is a very cynical view. Of almost anything that is introduced, you could say the Government, or whoever is doing it, is doing it with another motive underneath? Mr McLeod: I do not think it is a most motive, I think it is just a consequence. I do not think anyone has been bad or evil, it is just that is what would happen. It is very unclear to me why someone who would not be compliant would be compliant just because they were told there was some sort of sanction. Chairman: If those people who are trying to come in further on this question will forgive me, we have had a huge amount of evidence on this issue and I would like to move on to something slightly more conceptual. Q773 Baroness Pitkeathley: A lot of progress has been made in recent years - indeed, you have been involved in it - in breaking down what we used call the Berlin Wall between health and social care professionals. Have we made so much progress on that that the traditional lines of professional responsibility between health and social care are now obsolete? That is the general part of the question, but I want to link two other things with that, and I would be happy to hear from any or all of you about this. Are you really thinking that the AMHPs will be approved social workers by another name, and does it, in your view, make any difference whether they would be employed by health or by the local authority? Ms Goodall: I think the Berlin Walls have been broken down. You are absolutely right. One of the big success stories of the last ten years has been the establishment of multi‑agency integrated mental health services. I am sure you can still find examples of barriers between professionals, but, generally, I think the professionals in mental health have really got it together in the way that they work, but I do not think that means that everybody is the same. The key to that success is that different people bring different skills and that the social workers within multi‑disciplinary settings bring the skills of social workers, and they also bring with them the expertise and the services that the local authority have to provide, and we must not forget how important those are in relation to people with mental health needs: because they have to live somewhere, they have to go to work somewhere, they have to find somewhere to spend their days. In relation to approved mental health professionals, it is difficult to know, but ADSS took the view that it did realise that the world is changing and that because people work together the professional roles are not quite as distinct as they used to be, and therefore it would not necessarily mean that only social workers would carry out the approved social worker, approved mental health professional role. What we are very clear about is that the approved mental health professional role, whoever does it, has to be independent. I think there is a difficulty if those people are employed by health, because if they are not employed by someone other than health it does run the danger that someone's assessment and someone being in the process of committing someone into hospital can be done by people that work for the same organisation, and I think that there would be a loss from the social work perspective that the ASW currently bring. It may be that in the future, particularly when we get the training right, other professional groups can also bring that independence, that different view, that different perspective, but we would have to be absolutely sure that the training was right and that all professionals undertook that sort of training and were able to bring that different perspective if the patients' rights are to be preserved but also if we are to provide the right sort of care for people: because we do not want people to be compulsorily admitted into hospital, where it is possible we want to be able to find alternatives to that, and having different perspectives helps that. Q774 Baroness Pitkeathley: Can I ask you when other people are answering to bear in mind the chronic shortage of social workers, like psychiatrists and others. Ms Goodall: Yes. We have a very real concern about the availability of approved social workers, or approved anybody, to take on those roles by the time the Bill becomes law. I am sure the Committee are looking at work force issues, and it is one of our big concerns. We have a very highly skilled group of ASWs across the country - they are not always the youngest of our staff members - they also very much value the independence of their role. If that role is to change they may be not quite so keen to come forward to take up that role. I think it is one of the very real challenges to made sure that we have people in sufficient numbers who are going to be able to carry out that role in the future. Mrs Hallam: I wanted to add about the independence, whether it is a social worker or another member of staff, I think it has been a strong point of the current Act that there is a safeguard for the patient, that there is somebody independent as part of their assessment throughout and, whilst the tribunals have been introduced in the Bill to account for that beyond 28 days, it has potentially been removed for the first 28 days if there is not independence from the AMHP. Q775 Laura Moffatt: I think, Jenny, in a very nice way, what you have done is to give us a view of what I believe is a very sensitive issue within health services. In fact, I have heard that whole argument put to me in a very different way. I have heard that argument that it really does need to be social workers because they are independent, because if it goes to "those nurses" they are completely under the thumb with psychiatrists and they will just rail‑road them and they will do as they are told. That is the crude but true picture of how that argument has been put to me in other settings. I think we need to be a touch careful. You have talked about independence as though anybody from another health profession could not be independent. I think you need to expand on that more. Ms Goodall: I hope I was careful not to suggest that, and that is why we have taken a very clear line in the ADSS. We are not saying that the only people who can do that are social workers. A lot of the strength of the current ADSW system is to do with the quality of the training, the rigour with which the training takes place and the assessment and the reassessment of people and what they have to do in order to keep up their role as ASWs, and any new system would have to encompass that. I personally think there is absolutely no reason why community nurses, particularly as they now are doing such different jobs, would not be able to do that. I really would not want to insult my nursing colleagues to say that they are under the thumb of doctors and therefore will do what they say ‑ I have no reason to expect that ‑ but there is something about providing some separate structure, whether it is nurses or social workers, so that they are not necessarily all part of the same organisation making decisions about that individual. Q776 Laura Moffatt: Going back to Baroness Pitkeathley's point about attempting to get rid of the barriers between the two, it is quite possible that nurses could receive social work training and then be in a position to do some of this work. Is that right? Ms Goodall: I think everybody would have to receive the same sort of training in order to carry out their role under the new Act, as it would be then, but whether there are issues that social workers bring with them as a matter of course, because their training is different, that may then have to form part of that training for improvement of health professionals. Mr McLeod: I would very much like to be able to build a perspective from Kent. We have merged our social work colleagues into the Trusts, and one of the things that is consistently coming back to us is that there can be, on occasion at least, some influence brought to bear on the behaviour of our ASWs as they stand. For example, a very simple example is the delaying of the initiation of an assessment because there is not a bed available. That is not very good practice, and I think it is a thin end of a wedge. I think it is pretty essential that the ASWs, or their successors in the new Bill, be quite sure that their careers and future prospects cannot be impugned by the people who, on occasion, they might have to stand up against. I think that is the problem really. It is not the competence of other professionals, or anything of that sort, it is that organisational practical issue which at the moment has been protected. If it had never been protected, maybe we would not have that perception at all, but it is a very strong perception on one of my colleagues? Q777 Chairman: Can I move on to something else, because we are very pressed for time this afternoon, for which I apologise. You have argued that the work force implications presented in the Regulatory Impact Assessment are significantly under‑estimated. Have you made any assessment of your own as to the magnitude of the under-estimation? Can you help us on that? Ms Goodall: We have not as yet. We very much recognise that it is a piece of work that urgently needs to be done. We are not completely confident in the estimate that has been done as to the current numbers of approved social workers. Even just finding that out is quite a complex task within the number of local authorities that there are, but the piece of work we have been discussing, with the Department of Health, doing fairly promptly is looking at (a) the numbers, (b) the age range of current staff and (c) doing some assessment particularly around currently approved social workers. Q778 Chairman: And see the salaries? Ms Goodall: Yes, that is a very good point. Q779 Chairman: You have made a strong point about salaries. Ms Goodall: The resource issues in terms of staffing that we have pointed out are not just about approved social workers. We also believe that there will be an impact, particularly if people are subject to treatment orders within the community. We are particularly talking about the very high levels of support staff, social care staff, that would need to be there to support those people within the community, and, again, that does not seem to have been calculated. We certainly need to do that. Q780 Chairman: Could I ask you to help us, not now but possibly in writing at a further date. You, as organisations working together, have objected to the proposal to limit free aftercare to six weeks. You have made powerful points about that. It is proving difficult for us to get accurate details and data on the numbers of people who are receiving free aftercare, and, indeed, for how long, under the existing system. If you have any data, could you let us have it, please, in writing, and if you do not have exact data but you can provide something a little bit more specific than the general points, could you write to us about that: because it would be valuable to us in the preparation of our report I think. Cllr Robinson: You would need that by when, Chairman? Q781 Chairman: Yesterday! Cllr Robinson: It might take a bit longer than that. Q782 Chairman: As soon as possible - that is all I can reasonably say to you - but I think it is quite an important issue which we may well be looking at when we come to have our deliberative sessions. Our first full deliberative session is next week. If you can do something about that ‑ you do not have to, but if you can do that ‑ we would be hugely grateful to you. Ms Goodall: What we would be able to come up with would be an approximate figure. Figures vary so much between boroughs, between councils. Q783 Chairman: I know in asking that question I have stopped two members of the Committee from asking the question during the course of the afternoon, but I share their concern about that issue. I should have told you at the beginning of this session that a transcript will be produced of this public session and it will be available on the Internet after about one week. You are free to make textual corrections if you would like to. Thank you very much. Cllr Robinson: Before we go, can we make one further representation to you? Q784 Chairman: Of course? Cllr Robinson: The membership of the Advisory Group on the Mental Health Bill has not been announced, but we have noticed there is no membership on that by an approved social worker. We believe that is a serious omission. I wonder if you could use your powers to assist us in getting someone. Q785 Chairman: I am not sure if we will do that, but if you let us have copies of any submission you make, it will certainly be reflected as part of our evidence. Cllr Robinson: Thank you, Chairman. Chairman: Thank you very much indeed and for dealing with the questions with such despatch. Witnesses: Mr Nigel Edwards, Director of Policy, NHS Confederation, Mr Jeremy Taylor, Chief Executive, Nottinghamshire Healthcare NHS Trust, Ms Mel Wilkinson, MHS/CPA Advisor, and Mr Nigel Maguire, Tees and Northeast Yorkshire NHS Trust, Dr Tim Bullock, Associate Medical Director, and Mr Kevin Towers, Patient Services Manager, West London Mental Health Trust, examined.
Chairman: Thank you for coming. I am sorry, we are working under some pressure of time. There could be a Division in the House of Commons, and we may come to a rather abrupt end to the meeting around about that time if we can get through most of the things we wanted to ask you. Mr Howarth: Would it be helpful to know that some of us have had a signal to tell us we are expecting a vote between 4.30 and 5.00. Q786 Chairman: In any event, can I welcome you, remind you that this is a public evidence session and therefore a transcript will be produced. It will be available on the Internet after about one week and you will be free to make textual corrections but not corrections of substance. Can I also beg you all to speak up when answering questions, as the acoustics are not all they would appear to be at first sight, especially for those amongst us whose hearing is not what it once was. Would you like to introduce yourselves briefly and then, if you will allow us, we will move straight on to questions. Mr Towers: My Lord Chairman, my name is Kevin Towers from West London Mental Health Trust. I work as a Patient Services Manager. Dr Bullock: I am Tim Bullock, I am a consultant psychiatrist in West London and the Associate Medical Director of the West London Mental Heath Trust. Mr Edwards: Nigel Edwards. I am the Policy Director of the NHS confederation, which is a membership organisation for the organisations that make up the NHS. Mr Taylor: I am Jeremy Taylor, the Chief Executive of Nottinghamshire Healthcare NHS Trust, a specialist mental health provider trust, and also a member of the Confederations Mental Health Policy Committee. Mr Maguire: I am Nigel Maguire, Director of Mental Health at Tees and Northeast Yorkshire NHS Trust, which is a specialist mental health and learning disability trust. Ms Wilkinson: I am Mel Wilkinson. I am the Mental Health Act and Care Programme Approach Advisor for Tees and Northeast Yorkshire NHS Trust. Chairman: Thank you very much. Q787 Baroness Eccles of Moulton: The NHS Confederation is to add a condition for the use of compulsion based on a patient's impaired decision‑making and to give a discretion to clinicians over discharge if patients regain capacity. What would happen to a person who had the capacity to make decisions but was seriously mentally ill, was a clear a danger to himself or herself and adamantly refused treatment? Mr Edwards: In those circumstances, we take the view that the danger to the patient or to others would override the capacity. We have had an interesting debate about what constitutes capacity in these circumstances, and would, I think, tend to take the view that circumstances where the patient is a serious danger to himself or others as a result of their illness, would override the argument that says that the capacity should not mean that they are not able to receive treatment. Is that clear? Q788 Baroness Eccles of Moulton: That should be a clear‑cut decision and not a particularly difficult one to make? Mr Edwards: I might defer to my professional colleagues, if you would allow me, but I think we would take the view that none of these decisions are easy to take. We have great sympathy with the people who drafted this proposed legislation. It is very difficult to encapsulate this on the face of the legislation. Q789 Chairman: Could I ask another question, which relates to the exclusions. Current exclusions of alcohol and substance abuse have largely been supported by the written evidence and, indeed, the oral evidence that we have had before this Committee. Could we have your reflections on that, bearing in mind the contrary view which has been expressed that the current exclusions for alcohol and substance abuse have been used to avoid using mental health legislation to treat alcoholics and substance abusers, even though they may have significant mental disorders? I think I may be looking at you, Dr Bullock. Dr Bullock: The issue here is differentiating the fact of the substance misuse from the consequence of the substance misuse. I think it is entirely reasonable to use the Mental Health Act to treat the consequence of the substance or alcohol misuse if it is a identifiable mental health problem, but the fact of the substance misuse is not usefully treated by compulsion. Q790 Lord Rix: You said "a mental health problem". As you well know, learning disability is in the Bill, albeit obliquely. Would you consider that to be automatically a mental health problem? Dr Bullock: I think that within the terms of this Bill, because it gives rise to behaviours which are often problematic for the individual and for society around them, it is usefully included in that general term, yes, but there are other contexts where it can be separated. Lord Rix: I am not very happy with that response! Q791 Chairman: Can I turn to the managers, if you would forgive me for using that general term, and ask you whether the existence of the exclusions or the removal of the exclusions makes any difference from the view‑point of having the flexibility you need to manage cases in the most appropriate way? Mr Maguire: I think that having an exclusion is actually helpful in terms of being clear about which people and which conditions fall within the Mental Health Bill. At the moment, as it currently stands, our understanding is that virtually anybody can fall within the remit of the Mental Health Bill. The definitions that are down there at the moment are very, very broad and are very inclusive. We have real concerns about that. We feel that having exclusions is very important, but I notice the submission from the Royal College of Psychiatrists, and I would, from a management perspective, fully support that submission that the need for us to look at the definitions, potentially the ones from Scotland, New Zealand and Australia, we believe, from a management perspective, in support of our clinical colleagues, is rather more helpful than having no exclusions. I would be extremely concerned if the Bill were to go through in its present form with the very broad definition that it has at the moment, because I have experience in mental health of 22 years and I have not come across, either in my clinical capacity or in my managerial capacity, whereby people have been excluded from mental health services who have a dual diagnosis of mental health substance misuse or alcohol problems. In fact, the converse has happened, if anything. People solely with drug and alcohol problems have come into the system inadvertently or because there have not been other resources elsewhere. Chairman: Thank you. That is a very clear answer, if I may say so, to the question. Mr Loughton. Q792 Tim Loughton: Could we turn to the subject of ECT, which was raised in the submission from the Tees and Northeast Yorkshire Trust, where I think you raised concerns that the draft Bill provisions on ECT could mean that patients are allowed to deteriorate to the point that they lack capacity so that ECT can be given. Is it your view that the provisions on ECT in the Bill are completely unworkable or could be made tenable subject to substantial safeguards? Ms Wilkinson: I do not think we take the view that the provisions are unworkable. I think the provision of greater safeguards might be necessary. I think it is paradoxical the fact that the proposals in the new Bill will allow incapacitated patients to refuse ECT is what may well create some issues, in the sense that if a person is refusing ECT it may well be found that more people are incapacitated to enable the provision of ECT where somebody clearly stands in need however appears to be capacitated and able to refuse that at the time. Our concern is somewhat that more people may be found incapacitated at a stage that they would not currently. The other issue is that the Bill will allow for capacitated patients to be given ECT in the absence of their consent. Some of it is left to regulations. However, it is quite clear that the clinical supervisor can actually authorise ECT for somebody who is capable and who is capable of consenting but has not given their consent as yet. The issues and the safeguards that follow on from that, both in relation to incapacity and in relation to emergency use of ECT, are that subsection (4) states that in relation to incapacity we may specify one or more of the following: the period for which ECT can take place, how often it may be given and the total number of occasions. We do not have to specify all three, or the tribunal does not have to specify all three, it is only one or more. That leaves open to potential abuse, though I do not think clinicians would abuse in this situation, the fact that actually the safeguards are not sufficient because, if the tribunal has specified that it has to happen between this period and this period where there is no maximum number of occasions and they actually specify it as a course of ECT, even in the case of an emergency use, it is specified as a course, not an emergency application, and there is no direction either that once emergency use is in place you have to then refer automatically to a tribunal for further authorisation of the use of ECT. I do not think it is unworkable, I think potentially the safeguards that are already there just need to be a little bit more stringent. Q793 Tim Loughton: Are there problems with the system as it stands at the moment? Ms Wilkinson: I do not think there are great problems with the system as it stands at the moment. If ECT is given in an emergency at the moment under section 62 to a detained patient, for example, that person has to be assessed before every single application. Section 62 has to be invoked before every single application, and the understanding is that a second opinion will be sought as a matter of urgency. The provisions in the draft Bill appear to be suggesting that you can give a course of ECT, rather than a single application, based on one determination that this person requires ECT in an emergency situation. Q794 Chairman: Dr Bullock, if a patient who is capacitous for the time being were to give an advance statement that they never wished to have ECT again and then they became incapacitous, if such a statement was to be regarded as having some authority, what would your reaction be to that situation? Dr Bullock: I hesitate, because it is a very difficult issue. I am fearful that the view of clinicians is often that it is hard for a patient in advance to truly anticipate their state at another time. Having said that, the status of advance directives is gaining broader acceptance, and I would think that we may have to accept that sort of situation in the future and failure not to give treatment; but I think it is an incredibly difficult issue and I, as a clinician, find the idea of not treating people when potentially successful treatment is available very difficult to confront, and I am sure very many clinicians share that view. Q795 Chairman: What about the principle of autonomy of the patient? We are postulating a autonomous patient at the time when they give the directive. They may have had an ECT in the past and may have found it profoundly unacceptable in its consequences. What about that? Why should one not give primacy to the autonomously expressed view of a patient when they are fully capacitous? Dr Bullock: I do not take issue with that, I simply express the view that it is difficult, when potentially effective treatment is available, for someone who is a clinician to accept that they are going to stand by and watch a patient deteriorate and die. I would find that difficult. I do not feel that I would want to make a statement that is appropriate to undermine the autonomy of a patient making an advance directive, but I do not think it is easy for clinicians to do this. Q796 Chairman: Has your Trust ever applied to the High Court for an order to enable you to carry out treatment where a patient has, in effect, refused the treatment, so far as you are aware? Dr Bullock: Certainly. Could I turn to my colleague who works in the forensic services. Q797 Chairman: Yes. I am sorry; I was not meaning only to address the question at you. You just seemed an obvious target; that is all. Anybody else who would like to answer, please contribute. Mr Taylor: I have been involved in such a situation in respect of a patient suffering from eating disorder where application was made to the court for a compulsory intervention. Q798 Chairman: Was that a minor? Mr Taylor: It was not, no. Q799 Chairman: It was a person of full age? Mr Taylor: It was a woman of 24 years of age. Q800 Chairman: What was the result of the court application? Mr Taylor: The court agreed that intervention should take place. Q801 Chairman: In your view is that a satisfactory way of dealing with these extremely difficult questions? I have heard the view expressed, certainly informally, by judges that they find that procedure very valuable on the whole and feel that it is one of the areas in which they make a great contribution to the sum of the parts of human life? Mr Taylor: I would agree with that, and I would say, just to add to Dr Bullock's point, that the gravity of the moral situation in which clinicians find themselves is extraordinarily burdensome and can be relieved by the intervention of judicial authorities, and I think it is a very reasonable, effective and appropriate action to be taken. Q802 Chairman: So that is perhaps the other side of the story about advance directives. Thank you. I think that is quite a helpful piece of evidence. Care in the community: would you like to give us your collective view, if you have one, on care in the community? We have heard a lot of evidence about this. I am interested, and the Committee will be interested, to know what your view as witnesses is, particularly the NHS Confederation, on the whole issue of care in the community and whether it should be available or at all on a broad front or on a very narrow front? Mr Edwards: We are at one mind on this, and I think Dr Bullock is our most able spokesman on this point. I will then defer to colleagues. Dr Bullock: We support the idea of community treatment. It is of great benefit to a smallish number of patients who are influenced by the coercive power of the law and are able to comply with treatment when this is in place but do not comply when such a direction is not in place. Without such capacity within the Act these patients are heavy users of inpatient services, are not treated in the least restrictive environment and do rather poorly and, with this power in place, do rather well and live in their own homes, and we have seen this by the extended use of section 17 leave in the past. So there have undoubtedly been patients who benefit from this and we would therefore support this power. However, there is a caution in than, if this provision comes to be accepted as part of a general risk‑management package and therefore is put in place more indiscriminately, because the sense is if this is not in place then a full risk‑management package has not been provided, then it would lead to a greatly increased demand on the resources we have available to manage this and would be applied to individuals where it probably has very limited benefit, in as much as once out of hospital they have no sense that any people coercive power makes any difference. Therefore, it does have its utility, but I think there are potential dangers as well. Q803 Baroness McIntosh of Hudnall: Can I follow that up with you, Dr Bullock? You said that you were able currently, using the 1983 Act, to get the same effect. I paraphrase what you said, but you are talking about the use of leave and of guardianship presumably? Dr Bullock: Yes. Q804 Baroness McIntosh of Hudnall: Occasionally. Do you see that there is anything in the Bill as it is currently drafted which significantly adds to the range of options that you have when you are trying to deal with patients of the kind you have described? Can I ask you also to tell us whether, if there were no change, if the new provision for community treatment order were not there and you were forced therefore to continue to rely on what you have at present, whether you would feel that you were significantly at a disadvantage as a clinician? Dr Bullock: Yes, I think for the majority of my practising lifetime the capacity to extend the section 17 leave has been quite limited by the decisions of the court, and, therefore, it was a relatively short‑term community treatment. The patients who will benefit from this are those who have a predictably recurring mental illness in the face of failing to comply with engagement in services and treatment, and therefore these undertakings of non‑residential treatment are going to benefit people over the longer term. Obviously the courts have made some changes in their thinking about how this leave can be applied, but what the new Bill proposes is some regularisation of this with better controls in place, and has it as a more mainstream activity rather than a slightly marginal and distorting sort of activity, as it has been at the moment, taking the existing 1983 Act and not using it entirely how it was intended. I think it makes it more regularised and there are better controls in place. Q805 Baroness McIntosh of Hudnall: I understand that, but you have said that you can see the potential, if I understood you rightly, for what is in the current draft being used too extensively or in the wrong context. Would you envisage that the group of people for whom it is valuable would in the main be people who have at some point in their past history been detained under the Mental Health Act or its successor, i.e. people who have had a period of residential detention? Dr Bullock: Absolutely certainly. Q806 Baroness McIntosh of Hudnall: Would you and your colleagues think that the Bill should specify that it is that group of people to whom the community treatment order should apply? Dr Bullock: I have thought about this, and in my own practice, as a general adult psychiatrist working in the group between 18 and 65, I think that would very much be the case. I could see cases dealing with the elderly where the possibility of community treatment from the off may be useful, and, therefore, my response would not be a blanket acceptance of what you have said. I think, working with older clients, there may be some times when community treatment could be beneficial right from the start. Q807 Ms Munn: I want to ask another question about community treatment orders. We have heard from service users a general fear that they would be applied very widely and would go on ad infinitum. In a sense, you are saying we need to be very careful about the kinds of problems that people have which would necessitate this kind of treatment. This morning we heard from somebody who had had experience in Australia who seemed to be saying that the community treatment orders seemed to be more effective if they were much more time limited, rather than being long on‑going orders. Are there times when you could see that it would be of benefit to them being literally only for a short period, or are they for the sort of people who perhaps need that longer on‑going support in the community which, in fact, could go on ad infinitum? Dr Bullock: I think that across England in general we are only in the relative infancy of the implementation of a lot of the community teams: crisis resolution, home treatment teams and search and outreach out teams. One of the things Australia has done is implemented these sorts of teams rather before us. There could well be a role, particularly in shorter‑term usage, in the function of these teams. These are obviously promoted by the Mental Health National Service Framework, and mandated by the Mental Health National Service Framework. I think that our practice is changing and I think that shorter term use of these orders would anticipate the development of these teams and their effective working, and I can quite easily see where shorter term usage of these might become more widespread as those teams develop and increase their practice. Their current role is to take patients who formerly would have been admitted to hospital or would have stayed in hospital and treat them in the community. There is clearly, therefore, a group who it will be possible to identify who fall into an area where they could be treated by these teams in the community but some level of coercion could usefully be applied, possibly for a short‑term. I think that may well be the future use of these sorts of orders. Q808 Chairman: Mr Towers wanted to add something in relation to the last question. Mr Towers: May I return to a similar theme. I know the Committee have heard a lot of evidence about the problems with the current Mental Health Act. I would like to add to that; I may run the risk of mixing metaphors though. Guardianship and aftercare under supervision have variously been described as lacking teeth and as paper tigers. Our feeling is that what is proposed in the new scheme does significantly improve matters, in the sense that you have a proper power to remove somebody from the community back to hospital as and when necessary, and allied to that, I think, is the fact that the tribunal themselves are required to consider the circumstances in which somebody may relapse or there may be a material change in circumstances. To actually incorporate that into the care plan, I think, is a very helpful move. I think the "what if" being considered is something that is lacking at the moment. Just to say one other thing about section 17 leave which I think was missed. It is apparent to a lot of psychiatrists at the moment that they have the power to, in effect, use section 17 leave as a community treatment order, bearing in mind fairly recent case law, and I think there is also widespread misunderstanding that there is an equal requirement to satisfy the requirement and there is a clear clinical rationale for providing treatment at or in a hospital as opposed to the community. The new scheme anticipates the greater prevalence of community‑based services and in that sense it is better that we are all working from a simplified and standardised practice? Q809 Chairman: You are saying the new scheme follows the developments that have taken place in services? Mr Towers: I believe so. Mr Taylor: Chairman, can I concur with the view that a time limited nature of these orders would be appropriate, say 30 or 60 days, but also reflect on my ten years experience under the Scottish legislation where the provision is available, and, although not often used, we found it to be manageable and effective? Chairman: Thank you for that. I should say that when the bell rings we are going to bring the meeting to a close, for practical reasons ‑ I do not think we have any real option ‑ so we may run out of time very quickly. Please forgive us if we do, but let us try and get Lady Barker's question in if we may. Q810 Baroness Barker: The impact of the draft Bill is somewhat uncertain, and particularly in respect of the number of detentions. Do you, as an organisation which represents the workforce in the NHS, believe that estimations made on the basis of no increase in the number of detentions is a reasonable assumption? I would also like you to comment on the Department of Health claims that there is said to be a substantial increase in the number of consultant psychiatrists in the NHS of some 800 between 2003 and 2008. Do you think that is going to happen? Mr Taylor: I think in regard to the number of psychiatrists it is a very ambitious target, but then the Health Service has responded to these ambitious targets pretty well over the last few years. I am not doubting that we can do it, but it is going to take an extraordinary effort, and many of those, of course, will be female consultants on retainer schemes, and so on. The first part of your question was about the numbers. I think we would say it is unreasonable to issue there will be no increase. The statistics that I see regularly from my services show an increase in the number of sections coming through, particularly in our secure services where in one unit in Leicester we have seen an increase in criminal justice system referrals under orders go from 60 per cent of capacity to now 84 per cent, which means that we are not letting in civil sections from‑‑‑ Q811 Chairman: I am sorry; capacity of what? Mr Taylor: The capacity of the unit itself, the number of beds in the unit occupied by CJS referrals is now 84 per cent. That inevitably means that there is back pressure on the NHS system. Where we used to take referrals from the civil section from NHS providers coping with the difficult patients, those patients are now being catered for, importantly, by general hospital psychiatric services. So the forecasts are that there will be an increase, and it is happening now. Q812 Chairman: That is a grammatic statistic to end the meeting on. Can I thank you, not just for your very clear written submissions, but for the great clarity of your answers this afternoon. I know they have been helpful to the whole Committee. I am sorry we have been under some pressure of time. The meeting is now closed. |