UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 95 vii

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON THE DRAFT MENTAL HEALTH BILL

 

 

jOINT COMMITTEE ON THE DRAFT MENtAL HEALTH BILL

 

 

Wednesday 12 January 2005

DR PADDY POWER

MR COLIN McKAY, MR COLIN FAULKNER, MS FIONA TYRELL and DR MADELINE OSBORNE

Evidence heard in Public Questions 633 - 723

 

 

USE OF THE TRANSCRIPT

1.	This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
2.	Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
3.	Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.
4.	Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

 

Oral Evidence

Taken before the Joint Committee on the Draft Mental Health Bill

on Wednesday 12 January 2005

Members present:

Barker, B Carlile of Berriew, Chairman Carter, L Cumberlege, B Eccles of Moulton, B Finlay of Llandaff, B Mayhew of Twysden, L McIntosh of Hudnall, B Murphy, B Pitkeathley, B Rix, L Turnberg, L

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

________________

Witness: Dr Paddy Power, Lead Consultant Psychiatrist and Honorary Senior Lecturer, South London and Maudsley NHS Trust, examined.

Q633 Chairman: Good morning, Dr Power, and welcome to our session this morning. I think you have probably been told that you are on your own this morning.

Dr Power: Yes, my colleague has dropped out unfortunately.

Q634 Chairman: Can I just remind you, as all witnesses are reminded, that this is a public evidence session and that a transcript will be produced and will be available on the Internet after about a week. You are free to make any textual corrections that you wish to do but not any corrections otherwise altering the sense of what has been said. Can I ask you to speak up, please, because although we look as though we have a superb microphone and loudspeaker system, it does not work as well as its technology would visibly suggest. Can I begin by asking you to look with us, please, at the arguments we have heard against community treatment orders. Service users and many mental health organisations as well as some professionals feel nervous about community treatment orders because they think they will become too plentiful and ubiquitous and will be used as a method of increasing the number of people under Mental Health Act restriction. Why do you think there is such a groundswell of opinion against community treatment orders?

Dr Power: I think there are some genuine problems with the wording of the new Act and some of the components of the provisions of the new Mental Health Bill. That is certainly one reason. I am not really familiar with the new Mental Health Bill but, from what I have read from submissions, for example the submission from the King's College Group, there do seem to be genuine problems with some of the wording of the new Bill. Also, I think there are other factors. Clearly, there are concerns about change and new procedures which may have an impact on the way in which people work and there is a general concern about the State's intrusion into personal choices, a misunderstanding about the nature and intent of CTOs and maybe a misrepresentation of some of the findings as well from studies overseas.

Q635 Chairman: What is your personal view on this issue?

Dr Power: Having gone through the experience of CTOs being introduced in Victoria in Australia, many of those concerns failed to materialise in practice when the legislation was brought into effect and the more extreme concerns essentially were unwarranted. However, there clearly are some problems with new legislation and some of the procedural aspects of it that may be overly cumbersome or may impact in a unwieldy way in the way people work or on people's lives and that certainly needs to be taken into consideration to see how that can be minimised.

Q636 Chairman: Using your knowledge of Victoria, could you give us a snapshot of the most restrictive things that are done in Victoria as part of community treatment orders.

Dr Power: I suppose that the most restrictive aspect was initially when the community treatment orders were introduced. They were introduced for the duration of a year and then can be renewed after that. I think that is overly long. I think the changes that were made later were quite appropriate where the period was reduced to six months and where there were better review procedures put in place as well to ensure that people were not left on the orders for a necessarily long time without review. I think that was certainly one aspect. There were very few criteria set in the orders or very few components. It essentially directed people to receive treatment from a specific clinic. It did not specify, for example, the frequency at which they had to attend the clinic nor the actual nature of the components of that treatment. The other aspect of the order was that they might have to reside in a particular residence. That was rarely used. It was mainly the component that related to treatment from a particular clinic. So, it was not, in my view, terribly restrictive compared to some other orders which are used in some other states in Australia. For example in Canberra in the ACT, they have a very much broader range of conditions to the orders which include, for example, not being able to move within certain areas of the state and that is clearly overly restrictive.

Q637 Mrs Browning: In terms of the Mental Health Services in the community, we are starting from a very, very low baseline in terms of resources and trained personnel and this is also going to involve the immediate relatives and carers of the patient. Do you have concern that if community treatment orders were to come, albeit not immediately, there simply is not the resource and the expertise in the community to deliver what perhaps is intended by this Bill but which, in practice, could never be delivered to a satisfactory standard?

Dr Power: I agree that there would need to be a significant increase in the resources in community services to meet the requirements of these new provisions in order that community mental health teams can effectively provide a service in the community for people within the conditions of these orders. In some well-resourced areas, I am sure they can, with whole treatment teams and assertive outreach teams and mobile rehabilitation schemes, meet the needs of these new provisions but, in other areas where they are poorly resourced, I would be very concerned that these orders would be implemented in a very simplistic way and in maybe an over restrictive way because you will not be able to add in the richer components of service provision to go alongside with these orders.

Q638 Mrs Browning: Is it not in practice going to be that the resources needed to implement these orders are going to move resources away from another group of people who quite legitimately require resources in their own right, that there is going to be a transfer of resources away from one group of people rather than additional resources coming in and it is simply going to be a ratcheting up of resources going at the top end leaving all those people who at the moment are not receiving the services they need and thus expanding the number of people who, through lack of resources, end up being, if I may use the terminology that has been used, non-core and core and your non-core group are going to become your core group? Is that likely?

Dr Power: Maybe I can answer with three particular points. In Australia, the states where community treatment orders were introduced actually had better community resources going alongside with those introductions. In fact, it was the more advanced and progressive states in Australia where community treatment orders came in first. When I say "advanced and progressive", they have much more community services or the proportion of funding for mental health was much greater for the community resources. So, that is one aspect. I do not agree with this concern about community treatment orders in a sense substituting for good community care. I do agree that there is maybe a danger of that, that it could substitute for impoverished community care, but I think that has not happened in practice certainly in Australia. That is my first point. The second point is that there possibly is a danger of community resources being focused purely on those people who have serious mental illness at the exclusion of people with less severe forms of mental illness and I agree that that is a concern, but that is a more general concern than relates to the whole issue of the legislation. The third point I would like to mention is that, if you introduce a form of legislation provision that is overly complicated in its administration, for example if you have an overly complicated method of initiating these orders where you have a number of complicated steps that you have to get through or you have an overly complicated system of review or an overly complicated system of supervision and revocation, then it is going to make these orders very, very unworkable administratively and consume huge amounts of clinical time with clinicians attending hearings. There are some mental health review tribunal hearings that I go to which take five hours to deliberate and that is a whole session of outpatient time that a clinician has to find time for. I worry that the administrative aspects of these new provisions need to be looked at much more closely and made as simple as possible with the least change possible to the present system.

Q639 Chairman: Just to be contextual for a moment, a number of us visited the South London & Maudsley Trust and we understand of course that the Trust serves a very large population, but I think many of us had the impression that it has a pretty wide range of facilities provided, many of which are community facilities. I do not know if there has been any discussion about this Bill in the Trust but, either on the basis of that or from your own knowledge, do you feel that that Trust could adapt reasonably speedily to a community order system if that were introduced or would it present huge problems?

Dr Power: I think they can adapt to it quite easily as long as the administrative aspects of the procedures are relatively simplistic and do not involve another layer of bureaucracy to administer. I do not think it will make a huge difference. The other aspect of community treatment orders is that they are, in a sense, old legislation dressed up in new clothes. There is already quite a wide-ranging use of extended leave. When community treatment orders were introduced in Australia, extended leave was abolished. Someone could not go on leave from a hospital for more than two days. Therefore, you had to find some other legal mechanism if people were away on leave from hospital for longer than that and partly community treatment orders became a substitute for extended leave provisions with virtually the same mechanism of operation and I think that is probably what will happen to a large extent in the UK as well where there is a reasonable use of extended leave, certainly in South London anyway though I am not sure about the rest of the country.

Chairman: A number of my colleagues have questions that they wish to put to you.

Q640 Lord Turnberg: On this resource issue, from your experience in Victoria, do you know if the resources that are needed to keep a patient under a community treatment order are greater than those required to keep a patient in hospital or in an institution? My other point is about the administrative aspects. Are the administrative aspects not the same in both cases?

Dr Power: Australia versus the UK?

Q641 Lord Turnberg: No, in the community versus in hospital if they run properly?

Dr Power: Yes. The community services in Victoria, for example, compared to the hospital resources would in general be a little cheaper to provide. They do have a very rich variety of community resources including home treatment teams, crisis teams and mobile support rehabilitation teams. The majority of their mental health funding is for community resources rather than hospital resources. Hospital stays are very, very short there: on average they are ten days in the acute ward which is dramatically shorter than in the UK which is on average maybe about a month. So, to a large extent, they are able to manage acute situations relatively more effectively in the community in that sort of setting. The administrative components of it, when you look at, say for example, the administration of the review process, the Mental Health Review Tribunal, that, I agree, is virtually the same.

Q642 Lord Turnberg: Am I right in thinking that it is cheaper to have a patient at home than in an institution providing you have the people you can do it with?

Dr Power: Yes.

Q643 Mrs Blackman: One of the points that have been put to us is that the use of community treatment orders would break the trust between the patient and the approved safety worker and undermine assertive outreach. Again, with your knowledge of Australia and other places, has that been borne out in reality?

Dr Power: I can only speak anecdotally. It does run the risk of that in a small number of cases. Once the vast majority of people whose care I become involved with on community treatment orders have recovered, they can understand the rationale behind the initiation of the order. There are a small proportion of people who never maybe agreed with the rationale for the order and will bear a longstanding grudge and it will in fact be quite a negative aspect.

Q644 Chairman: That is not specific to community treatment orders, that relates to all forms of treatment.

Dr Power: Yes, but community treatment orders as well. In my experience and in the study that I did from Australia, there is a very small proportion of people for whom community treatment orders are very aversive and quite destructive resulting in them taking quite extreme steps to avoid the conditions of the order, for example moving out of state in an attempt to avoid the legislation in that particular state, but that is a very small proportion.

Q645 Ms Munn: I just want to come back to what you said earlier about the kind of things that might be specified in a community treatment order and taking also the point you made about trying not to have too much over administration. How would you think that a community treatment order could best fit with the current care programme approach because it seems to me that a number of the things which you were saying might be in a community treatment order you would want as a matter of good practice to have as part of the care plan in any case. So, is there an argument for making sure that, if we did go the route of that, there was a close fit between those two?

Dr Power: The care plans as they are devised nowadays are very broad in their remit including a wide range of psychological and social treatments including family interventions, care issues of children and they are very much wider than the remit of what is normally part of the legislation in community treatment orders generally which tend to be quite narrow in their remit.

Q646 Ms Munn: My point was the other way round, not that the community treatment order should include everything that was in the care plan but that everything that was in the community treatment order you would expect to be in a care plan in any case or are you saying that would not be the case?

Dr Power: I think I would worry personally in my practice if the community treatment order included a wide range of interventions that the person had to agree to as part of the order because you cannot coerce people to attend psychological interventions or modes of rehabilitation or family interventions. Personally, I think that the community treatment order should be limited to medical treatments and to attending a particular clinic.

Q647 Chairman: Just in that context, I have two points. In Victoria, are there compulsory components of a care plan beyond residence, taking medicine and clinic attendance? Connected with that, have you experienced a community plan in Victoria that specified any input from the carer or family?

Dr Power: No. I have not been there now for about four or five years but, before I left, the community treatment orders had a very narrow range of specifications, as you will find, without any reference to anything like that. For example, it did not include carers. However, the ACT, the Australian Capital Territory, did and I think that the Northern Territories also had legislation that covered a wider range of interventions.

Q648 Baroness Cumberlege: Thank you for the presentation you gave us when we came to visit you. Listening to what you have been saying about Australia and the jettisoning of extended leave and some of the other applications that were there already and bearing in mind that we have those at the moment and a range of things like guardianships and assertive outreach teams, do we actually need these community treatment orders?

Dr Power: That is a very good point. I would imagine that the provision of community care in terms of assertive outreach, early intervention services, crisis services and the range of other services out there will markedly reduce the need for community treatment orders. I do not think it will ever reduce completely but will certainly reduce it to a large extent. Also providing much more sophisticated psychological interventions, relapse prevention, counselling, psycho-education, care and support, all those forms of interventions will assist in reducing the need for more restrictive procedures in legislation like this.

Q649 Baroness Cumberlege: So you are saying that we do need them?

Dr Power: I think that we will still need them for a small number of people but increasingly small as you provide better community services.

Chairman: That leads directly to Lord Rix's question about the numbers.

Q650 Lord Rix: I must apologise to all concerned but I have such roaring tinnitus this morning that I am only picking up around 40 per cent of everything that is being said and this question could have been asked by the Chairman at the outset! The definition of mental disorder in the draft Bill is so wide, it appears that many more people could be, as it were, sectioned and placed under compulsion in the community. Of course I am particularly thinking of people with slight behavioural problems of the learning disability.

Dr Power: I very much agree with that and I agree with the submission that was made by the King's College group from London on this particular topic. I would suggest that community treatment orders should be restricted to people with very serious mental illness which has clear evidence of risk of relapse associated with risk of self-harm and violence and serious neglect and I would worry if the provisions and the definitions of mental disorder were expanded beyond that to include substance use, to include dementia and to include head injury, behavioural problems and personality disorder. Some of those other disorders may be better provided for by legislation that cover, say, mental incapacity, for example dementia, brain injury and intellectual disability. Those more permanent disabilities or incapacities may be better provided for by a Mental Incapacity Act or guardianship provision.

Chairman: What you are saying is consistent with a lot of evidence that the Committee has received.

Q651 Tim Loughton: The paper that you gave us was an article published in 1999, a few years ago, and one of the points you make there is regarding the paucity of research into clinical efficacy and you cite a few minor studies particularly in the States. Has that situation changed now, five or six years on? Is there much better definitive evidence about the efficacy of these orders now or not? Your article was largely based on Australia with references to America and a little to Israel but nothing about the rest of Europe. Do you have experience of other European countries?

Dr Power: I am not aware that any other European country has provisions for community treatment orders though I might be wrong about that. Most of the states in North America have at this stage, including Canada and the northern states in Australia and New Zealand now have as well. There are a number of studies that have come out since that article in 1999. Again, most of the studies tend to be rather equivocal in their results with some benefits being shown in some areas and not in other areas, so there are still considerable doubts over the overall benefits of community treatment orders.

Q652 Tim Loughton: So, there is no definitive clinical evidence to justify these proposals on the basis that they produce much better outcomes for the health of the patients to whom they are directed.

Dr Power: There is no definitive evidence. There is some evidence of improvements for some patients on these orders. For example, the study in Australia in which I was involved did show benefits to the majority of patients on the orders. In that particular study involving 125 patients on these orders in the early 1990s in Melbourne, 60 per cent of the patients improved on a range of factors during the time of their order compared to the time before the order, for 30 per cent there was no change in their outcomes, for 35 per cent there was a deterioration on at least one of the outcomes and for five per cent there was a deterioration on all the outcomes.

Q653 Tim Loughton: But theoretically that 60 per cent might have been 70 per cent if they had been subjected to residential orders rather than community treatment orders, for example.

Dr Power: That is speculation.

Q654 Tim Loughton: But it is highly possible?

Dr Power: I do not know.

Q655 Lord Mayhew of Twysden: Just on that point, you deal with it at the top of page 13 of your helpful article and I was struck by the finding in your survey that the group that experienced the best clinical outcome of your sample were significantly over 28, were in mid phase of their overall illness history and had significantly worse compliance with community treatment before the CTO. That is rather interesting because the criterion in Victoria requires that they had refused treatment beforehand or their consent was not available. I wonder if you have an opinion as to why that finding should be so.

Dr Power: I think that the group who did best on the community treatment orders were those people who had longstanding illness with clear evidence of poor adherence treatment before the onset of the order. The group who did least well were the younger group in the early phase of their illness, maybe without the full experience and impact of the illness on their lives and maybe with less respect for mental health legislation generally, and I wonder whether it was, to a certain extent, a generational aspect, that the older group were maybe more respectful of legislation than the younger group. The younger group were a group often with dual disability, with substance use problems and a range of other complicated social problems for who maybe respect for legislation and the law was less paramount.

Q656 Baroness Barker: You have gone a considerable way to answering quite a number of the questions that we have put this morning but I suppose the ones which have yet to be fully nailed down are these. First of all, was it simply the availability of treatment that was the distinction because you talked about the requirement of people to turn up to clinic? Was that really the key factor? Secondly, you have been helpfully narrowing down for us the range of people for whom these orders may be appropriate but are community treatment orders appropriate for people with personality disorders?

Dr Power: That is outside my area of experience. I have not worked in services which provide specifically for people with personality disorders, so I could not really comment on that. I would personally have reservations about orders covering disorders such as personality disorders because there is considerable debate about the benefit of treatment in this area.

Q657 Baroness Barker: In your experience in Australia, to what extent were the feelings of carers and family to the treatment orders a deciding factor in whether or not they were effective?

Dr Power: Generally, the carers were very keen for better provision of a safety net for their relatives and were quite supportive of the orders. They were not directly consulted or involved in the initiation of the orders.

Q658 Baroness Barker: Was that because the orders carried a degree of reciprocity, people would receive treatment if they were under an order?

Dr Power: Yes.

Q659 Chairman: Should a patient have the right to say "no" to a community treatment order in your view?

Dr Power: Very much so. I think there should be very important safeguards put in place to review the orders. In Victoria, as I remember, the orders were reviewed within four to six weeks by the Mental Health Review Tribunal routinely and again if they were renewed as well six months later, then they were reviewed by the Mental Health Review Tribunal. If the patient disagreed with the outcome of the Mental Health Review Tribunal, they had the opportunity to appeal to the Administrative Appeals Tribunal which could essentially override the decision of the Mental Health Review Tribunal.

Q660 Chairman: Does it follow from that that you would exclude the use of force in a community treatment order? If I can give you a simple example: to take medication when the patient attends a clinic. Would you exclude the use of force as part of such an order?

Dr Power: Yes and the clinicians in no way want to use force in those situations.

Q661 Chairman: Because it undermines the whole concept of voluntariness and cooperation which you would regard as a foundation stone of someone being part of a community treatment order?

Dr Power: Yes. The usual practice in Victoria was that, if the conditions of the order failed after numerous attempts at trying and pulling out all the stops, if you like, to try and ensure that every attempt was made to make the order work, then the order was revoked resulting in the person being brought back to hospital.

Q662 Baroness Cumberlege: I would like to follow upon what the Chairman was saying. At these Review Tribunals, were the families' evidence taken into consideration or the evidence of close informal carers because the impact can be quite considerable?

Dr Power: Yes, the family views were taken into consideration, sometimes even heard independently of the rest of the hearing in confidence.

Baroness McIntosh of Hudnall: I apologise for coming late into the discussion, but I am slightly confused, which may probably be my fault. I am beginning to lose track of what the element of compulsion is in a community treatment order that is carried through in the way that you have described to us and particularly, when the Chairman asked the question about whether the patient could refuse a community treatment order and you said very firmly "yes", I perhaps wrongly assumed that he was asking whether the patient could at the outset refuse a community treatment order.

Chairman: You are right, that was the basis of the question.

Q663 Baroness McIntosh of Hudnall: You replied in a way which actually discussed how it might be reviewed. I am beginning, as I say, to find it difficult to understand what the element of compulsion within a community treatment order is and what it should be.

Dr Power: I am sorry, I misunderstood the question. My understanding was that there should be an element of appeal process. If the person refuses the community treatment order from the outset, then the clinicians involved in initiating the order is highly unlikely to issue the order because they would not be able to get to a point of agreement about the conditions of the order. There needs to be some element of agreement around the conditions of the order before the order is initiated.

Q664 Baroness McIntosh of Hudnall: I think it would be fair to say that that kind of community treatment order differs very significantly from sectioning under the Mental Health Act as it currently exists where, as I understand it - and this is a layperson's understanding - there is no possibility of somebody who fulfils the conditions for being sectioned under the Mental Health Act to refuse to be sectioned.

Dr Power: It does to a degree. Community treatment orders are generally used as supervised discharge orders or conditional discharge from hospital. They are used in that way as a substitute for hospitalisation, as a condition of release from hospital, as a supervised discharge order. That is generally the way in which they tend to be used.

Q665 Chairman: Baroness McIntosh's question, if I may say so, is a very powerful one because it asks the fundamental question, if the Bill is proposing a compulsory community order as part of sectioning, how on earth that can be voluntary? If you are going to have a voluntary system of community treatment orders, why do we need compulsion at all in that context would be the other way of looking at the same question.

Dr Power: In practice, it is not as black and white as that. The orders are only going to persuade the persuadable, if you like. There has to be an element of agreement around the conditions of the order if they are to work. If you cannot get agreement around that, then there is no point in issuing the order.

Q666 Baroness Murphy: What you are describing - and correct me if I am wrong - is the current guardianship order beefed up with more conditions and a specific treatment plan.

Dr Power: The supervised discharge order, yes.

Q667 Baroness Murphy: The current proposals in the draft for the non-resident order look then, in your view, like the current guardianship but with treatment attached; would that be correct?

Dr Power: That is correct and that is the way they are certainly in the Australian states and they are essentially extended leave provision or conditional discharge from hospital. There are very, very few orders proportionately initiated there from the community.

Q668 Baroness Murphy: There is of course within the draft a power to convey and that requires picking somebody up who is not complying and taking them to a clinic where they will get treatment. How do you view that part of the draft?

Dr Power: I think you have to have an element that covers that within the provisions so that, if the conditions of the order fall down, then you need to have some mechanism of revocation. The clinicians themselves are highly unlikely to want to resort to any coercive practices in the revocation of an order, so they will tend to rely on agencies such as maybe the police to assist with that.

Q669 Chairman: Does this mean that you are really in favour of a change to the present system or are you perfectly happy with the present system of conditional leave? What you have just been saying suggests that under a system where conditional leave is given, then if there is a breakdown, following Baroness Murphy's point, a decision can simply be made to convey under the compulsory powers which remain.

Dr Power: The current system unfortunately does not cover medical treatment, that is the difficulty. It covers everything else potentially but not the very important aspect of treatment and I think that is where the breakdown is. In my view, it should be the other way round.

Q670 Mr Howarth: Just to try and make the situation clearer following on from Baroness McIntosh's question, is it helpful, in terms of compulsion, to look at the question in terms of what the choices are because it is not a choice between liberty, community treatment order and compulsory hospital treatment, it is just between two and not three, is it not? The compulsion is that either you are treated in the community or you are treated in the hospital, either way it is compulsory.

Dr Power: In practice, that is certainly the way it is in the Australian states. It is either hospital or community treatment under some kind of order, yes.

Q671 Lord Turnberg: It is the same question, really. What you are suggesting sounds rather like a parole system: if you disobey the rules, you are back in.

Dr Power: Yes.

Q672 Hywel Williams: I have some questions about resources and the structures that are needed to implement community treatment orders. You have already answered Mrs Browning in this respect saying that most are introduced by the community facilities that are available. In Wales, we still have some large psychiatric hospitals used as a hub and services are said to be ten years behind those in England. Would you envisage therefore that community treatment orders could be introduced in Wales in those sorts of circumstances?

Dr Power: I cannot see why not but I think that providing for legislation around community treatment orders may encourage and enhance the development of community mental health services generally, so it may force the hand, if you like, of service providers to beef up the community agencies' services for patients to supplement the provisions outlined in the orders.

Q673 Hywel Williams: That has been your experience in Australia at least in that they were introduced where there were already good community services rather than being a mechanism for promoting?

Dr Power: I think if the state or country is moving down the route of much more improved community mental health services, then the legislation has to follow it.

Q674 Hywel Williams: Can I ask you a question that arises from your paper in which you say that community treatment orders are useful in treatment adherence and when there is treatment resistance. It has been suggested to the Committee that they might be useful in rural areas where inpatient facilities are remote and now that is categorising patients by their social circumstances rather than by their condition. What is your response to that?

Dr Power: One would be very concerned if community treatment orders became a substitute for good community care forcing people to attend a clinic a long way from their residence rather than providing home-based care near their place of residence.

Q675 Lord Mayhew of Twysden: As Lord Turnberg has elicited from you, it can be described as having the characteristics of a parole system. Might not another way of looking at it be that it is a means of enhancing the quality of life of the patient while ensuring, because he lives in his community, that he does take the medication which is essential and which at present is compulsorily administered in hospital?

Dr Power: I very much agree with that. From my experience in the Victoria system, I would very much agree with that view that it does enhance, it does support people remaining at home who are acutely unwell and ensures that the services are contracted to provide for them in their home and thus reduce the need for hospital treatment even if it is viewed maybe as described as a system of parole.

Q676 Baroness Barker: You have described some of the people that you think these orders are best used for as people who have very serious illness, people who are at risk of self-harm, neglect or at risk of violence too. Since you wrote your paper, have there been instances of community treatment orders not working and people becoming seriously ill as a result of harming themselves or others?

Dr Power: Have there been instances of ...?

Baroness Barker: Where community treatment orders have failed.

Q677 Chairman: Can I associate that with something I wanted to ask you because there has been a lot of publicity in this country about dangers presented by people with severe mental disorder and the risk of harm being caused to entirely innocent people who happen to come into their path, the sort of more extreme publicity there has been. In Australia where community treatment orders have been used, do you know of any let us call them tragedies that have occurred as a result of people being the subject of community treatment orders who have committed extreme acts whilst in the community or generally has the control available been sufficient to avoid that?

Dr Power: I am not aware of any individual cases, no. I am aware of cases certainly from the study in Victoria in places where I have worked of cases of people on CTOs who have fared worse whilst they were on CTOs and for whom it has become a major bone of contention between them and the services and they have gone to extreme lengths to appeal against the orders.

Q678 Chairman: But this is a normal consequence of all medical treatment, is it not? Sometimes it works and sometimes it does not work quite so well.

Dr Power: Exactly.

Q679 Chairman: The same goes for the pills too.

Dr Power: It is very much a very, very small minority, in my experience anyway, but there are cases and there are cases of people that I am aware of in hospitals where I have worked who have left the state in order to avoid the provisions.

Q680 Chairman: Another question that I want to ask you arises from something that you said in response to Mr Williams. You have experience of Australia which includes a very large rural community. Is it your view that rurality is not an issue which should militate in any way against using community treatment orders and, arising from that, do you feel that, in rural areas, actually having the availability of community treatment orders may enhance the general availability of an acceptable and beneficial range of mental health treatments?

Dr Power: One would hope so.

Q681 Chairman: Would you like to give a clinician's view having worked out there in the great outdoors?

Dr Power: I worked in what could be considered as the outback in Western Victoria about three or four hours out of Melbourne and that area worked very well and provided for community services with satellite clinics scattered throughout fairly remote rural areas and the community treatment orders were very helpful for a very small number of people in those areas. In my view, it was not much different to inner city areas where it is very, very hard to maintain contact with some people in very chaotic living environments within inner city areas, sometimes even more difficult than it is in rural areas which are much more tightly-knit communities.

Q682 Mrs Browning: Could I just ask you about the supervision of medication under these community treatment orders because clearly an awful lot turns on whether people are willing to take their medication as prescribed on time and, in order to supervise that in the community, where they are resistant during that or where they may lapse away from taking their medication, are you able to tell us what the view is of the staff who would be responsible for supervising this because, in the past, there has been quite a lot of concern expressed by people who feel they are having to enforce medication on their own - and I am assuming that it would only be one person who would be busy - and also the practicality of ensuring that that medication is administered on time. People's schedules do not always mean that the person supervising can turn up within a two-hour framework of somebody having to take daily medication. What is your assessment of the staff out in the community and their ability to deliver medication where it is being resisted?

Dr Power: There are a number of practical difficulties in supervising medication in the community. It may involve carers in the process, it may require a range of other support agencies as well, say, for example, if somebody is in a supported accommodation option, that may involve the staff in that supportive accommodation providing some supervision of medication. So, there may be a range of individuals involved in the supervision of the medication. I think it is sensible in any kind of order to identify one person as being responsible for overseeing the supervision of treatment and, if the order is a treatment order following medical treatment, then really that should fall on the responsible treating medical officer or the RMO in the community. To involve other people really complicates the picture considerably and also complicates it administratively in terms of how it is reviewed as well when it come to review tribunals. So, I personally would favour a system which is quite simplistic in terms of accountability so that there is one identified person who is accountable for the supervision of medication provision, not necessarily taking the practical onus of administering it but they are responsible for overseeing it.

Q683 Chairman: Dr Power, thank you very much for coming to give evidence to us here today. I am sure the Committee would agree that you have added something to our deliberations, particularly with your experience of working in Australia and we are very grateful for everything you have done for the Committee during our deliberations up to now.

Dr Power: Thank you very much for the invitation.

Memorandum submitted by Scottish Deputy Minister for Health Services and Community Care

Examination of Witnesses

 

Witnesses: Mr Colin McKay, Scottish Executive, formerly Leader of the Mental Health Bill Team, Mr Colin Faulkner, Scottish Executive, Policy Officer working on Implementation of the new Act, Ms Fiona Tyrell, Scottish Executive, Implementation Team Leader, Mental Health Act, and Dr Madeline Osborne, Deputy Director of the Mental Welfare Commission for Scotland, examined.

Q684 Chairman: Welcome and thank you for coming. I am going to ask you to introduce yourselves in a moment. There are one or two preliminaries. Can I make a desperate plea to all witnesses and indeed all members of the Committee to speak up. The middle-aged among us are aurally challenged occasionally by the loudspeaker system in this room. Secondly, can I ask you to note that this is a public evidence session and a transcript will be produced and be available on the internet after about a week and you will have the opportunity to make corrections to the text, not to the sense. Would you like to introduce yourselves, please.

Ms Tyrell: I am Fiona Tyrell from the Scottish Executive Health Department and I am leading the team that is implementing the new Mental Health Act in Scotland.

Mr Faulkner: I am Colin Faulkner; I am a member of that implementation team with policy responsibility for implementing civil provisions of the Act including community treatment, cross-border provisions and liaison with the English Mental Health Board.

Dr Osborne: I am Madeline Osborne; I am a psychiatrist and Deputy Director of the Mental Welfare Commission for Scotland. We have been heavily involved in the development of the Act and are also heavily involved in providing safeguards for people subject to its provisions.

Mr McKay: I am Colin McKay. I was the Secretary of the Millan Committee which was the report which led to the Scottish Mental Health Act and I was also the Manager of the Bill Team for the Mental Health Bill and also was Secretary to the MacLean Committee which dealt with serious violent and sexual offenders including offenders with personality disorder.

Q685 Chairman: But you have not done anything else!

Mr McKay: No!

Chairman: Thank you all very much and please remember to keep your voices up. We are very interested in the Scottish experience and are studying it closely.

Q686 Lord Carter: As I am sure you are aware, there is much debate about the draft Bill that we are looking at and whether or not it should include a statement of general principles on the face of the Bill. What are the effects of including the general principles on the face of the Scottish 2003 Act and what difference will it make to the operation of mental health services in Scotland and are they directly enforceable?

Mr McKay: Perhaps I could begin by explaining something about the principles, how they appear in the Act and the intended effect, and then Dr Osborne might say a little about practice and the effect they should have on practice. The Millan Committee certainly set great store by the principles that it articulated in its report which were, I have to concede, to some extent influenced by some of the principles set up by (?) Richardson in the English report and they were very influential in actually formulating the policy on the Bill, and particularly the principles around use of restrictive alternative, for example, was very influential in shaping the Committee's thinking on issues like treatment in the community which you have just been discussing. The Committee very strongly recommended that they should be part of the legislation and that was very strongly supported by the mental health community, both practitioners, service users and carers. For a number of people, in terms of getting support for the provisions in the Bill, it did provide considerable reassurance that the principles would be a safeguard and that the Bill would not be misused. I think they felt they were particularly significant because the Act is really the interface of a number of different professional disciplines and a number of different intellectual domains, as it were. It is about the crossover between law ethics, the duties of care, the rights of the individual and having some sort of clear steer as to how you apply particularly complex individualised orders. When you try and draw together all these things, it was felt to be very, very helpful. It was certainly difficult in the process of drafting the Bill to translate what was in the Millan principles into what lawyers would accept were defined legal propositions and I think the first print of the Bill, the first version of the Bill, did not have the principles because it did take us some time to sort that through. In terms of how it works, the general duty in the Scottish Act is that practitioners, including the tribunal, doctors, social workers and so on, have to have regard to the various principles articulated at the beginning of the Act. I think the idea of having regard to some things is a fairly well understood legal concept, so I do not think there is any fundamental difficulty in having that in a piece of legislation in terms of the practical effect. I think it is particularly relevant because of the tribunal and because the tribunal will be evaluating care plans and the particular powers that are sought in an individual case and will be evaluating the extent to which the patient has been involved in that and whether or not there are any alternatives which might have been considered, either different powers being sought or no powers being sought at all, I think it will guide the tribunal in assessing those care plans and the powers sought and therefore will influence how those care plans are put together because the duty is also binding on the practitioners. So, the intention of having the principles actually on the face of the Act in some form is that it should have a direct effect on the way that the care is thought about and organised including some things like the duty to involve carers, for example, because there are obviously well-known problems regarding issues around confidentiality and so on and I think that a number of people felt that it was helpful to have those duties articulated on the face of the Act in order that people had a clear understanding of what matters practitioners ought to be taking into account in formulating packages of care for people. Dr Osborne might want to say a little more about how the profession and the Commission feel that will actually operate in practice.

Dr Osborne: Just to go back a little to talk about how it might change practice under the Act, there was a huge enthusiasm amongst service users, carers, voluntary organisations and professional bodies associated with mental health services because we thought it would be a guide to good practice under the Act and we thought that the action of a legal framework and how things are actually done in practice requires an extra steer particularly in relation to some of the innovative aspects like community based compulsory treatment orders. Having a set of principles to guide practitioners, the tribunal and the Mental Welfare Commission in carrying out its duties was very reassuring to service users and carers. Apart from having an effect in the operation of the Act, we thought and we hoped - and there are signs that it may be happening already - that it would affect the wider culture of mental health services and that having a well-established set of principles and treating people subject to compulsory powers would inevitably seep into the way that people who are not subject to compulsory powers are treated and so, over time, there would be a shift in the culture of mental health services. As we go around the country talking to people about the implementation of the Act, there are already signs of that happening, that people are starting to think about using the principles in their everyday practice whether or not they are dealing with patients who are subject to compulsory powers.

Q687 Chairman: Have any downsides been identified from having the principles on the face of the Bill? One I could suggest as a lawyer might be the otherwise entirely laudable effect of giving a large amount of work to lawyers to challenge the principles or to try and enforce them.

Dr Osborne: Yes and that is obviously a possibility. There are other possible downsides and Colin has alluded to the fact that issues of confidentiality may conflict with the duty to take into account the views of carers and to give information to carers and those are issues that will have to be worked out as the Act is operated.

Q688 Lord Carter: Could it be a fundamental principle to include a duty to protect the public from harm by people who are mentally ill?

Dr Osborne: We felt that was part of the structure of the legal framework of the provisions of the Act. It almost went without saying that that was one of the principles of the Act. There are other principles that would need spelling out for some practitioners and for some bodies.

Q689 Lord Carter: Is it a serious point that it is only implicit in the Act instead of being actually stated?

Dr Osborne: It is stated that if other grounds are there and there is a risk to the safety of other persons, then compulsory powers can be used.

Q690 Lord Rix: Both the Scottish Act and the draft Mental Health Bill contain wide definitions of mental disorder. The Committee has received a substantial number of submissions criticising the breadth of the definition in the draft Bill whereas the Scottish definition has generally been supported. I have two questions. Can you explain the key differences in the definitions and make any suggestions as to how we can improve our definition of mental disorder and could you also explain for my personal peace of mind why people with learning disability, however caused or manifested, are automatically categorised to be suffering from a mental disorder. Why have you expressly included learning disability within the definition of mental disorder because I see your Scottish Deputy Minister for Health said, "The definition of mental disorder has been drawn widely to ensure that no-one who needs these services is excluded from them by the provisions of the Act" and I think that is very laudable but, on the other hand, I would have thought that for the majority of people with learning disability, there is absolutely no need whatsoever to say that they need the services provided by this Act.

Mr McKay: If I may start again and I will deal with the two questions in turn. On the general issue of the definition, there is a different definition in the Scottish Act. I wonder whether the practical difference is as huge as might be thought. I suspect that it would be a rare person who would be mentally disordered in the English Act who is not mentally disordered in the Scottish Act or at least one who would be likely to come within the remit of the Act, but there are some areas of difference I suppose and I wonder if the concern about the breadth in the definition in the English Act partly relates to how it interacts with other provisions of the Act and other, as it were, gateways into compulsion. So, it is not just about the opening gateway. Certainly, Millan felt that the initial gateway of, does the person have a mental disorder at all, should be fairly broadly drawn. The issues around compulsion is where it narrows and it should narrow in relation to the justifications for an individual compulsion in an individual case not, do you fit into some particular category. The two primary differences I suppose are that the Scottish definition has sub-categories of mental disorder and also it has specifically stated exclusions. The sub-categories in the Scottish Act are learning disability, mental illness and personality disorder. I think it was felt by the Committee and by the Executive that it was helpful to make clear that the three different, as it were, kinds of mental disorder were all encompassed by the Act particularly because there had been some doubt under the previous legislation about the status of personality disorder within the Scottish Act. That was not specifically to greatly increase the number of people detained with personality disorder, in some respect it was actually to give people with personality disorder the benefit of the enhanced duties to provide services which actually apply to voluntary patients as well as to detained patients and that is also relevant for a learning disability and your other question. It was also helpful to have sub-categories because one of the specific provisions in the Act is that, if you have a change in diagnosis, that should automatically trigger a review particularly perhaps if a person was initially admitted on the basis of an assumption that they had a mental illness and it was later ascertained that it was in fact a personality disorder or possibly even a learning disability and that that ought to trigger some review of their care. I think there are downsides to these sub-categories because you then have other ambiguities about conditions such as Ausberger's Syndrome and conditions such as head injuries and so on. The policy intention is that all these people potentially could be covered by the Act if the other criteria, the narrower gateways underneath, apply. On the issue of exclusions, there was considerable debate about whether we did need to exclude certain things from mental disorder and the argument against excluding them obviously from a legal point of view is that if something is not a mental disorder, you do not need to say it is not a mental disorder in legislation and, even if you do say it is not a mental disorder, it then casts doubt on other things that you have not implicitly excluded. So, there is certainly a difficulty there but, on balance, the Committee supported having exclusions and there were very strong representations from the field to maintain the exclusions. I think one reason was that some of the conditions which are covered by the exclusions are still in some clinical definitions of mental disorder and some of the international classifications of mental disorder, so there could be some genuine doubt about whether or not a person with, for example, a sexual deviancy or who is involved in antisocial behaviour might be categorised as having a mental disorder solely because of that. So, it was felt to be helpful to make it absolutely clear on the face of the legislation that, on their own, these conditions could not bring you within the ambit of the Act. I think it is not an absolutely clear-cut preference of one or the other, it is very much a balanced argument but the balance of the argument and certainly the views of people involved were very much in favour of both, of having a broad definition with the sub-categories but particularly stating the exclusions. Again, Dr Osborne might have more to say about how the professions might apply these.

Dr Osborne: I do not know if I have any more to say about that, but just to say a little more about the learning disability inclusion. I think many of the practitioners were uneasy about that. It was difficult to think of any better way of providing services compulsorily to some people with learning disability who might need them. Our Adults with Incapacity Act does not allow compulsory treatment and we come across a small number of people with learning disability who do behave in ways that put other people at risk and, at the moment, we have no better way of treating them compulsorily. However, there was a commitment by the Executive to review the position of people with learning disability as far as legislation was concerned and we are hoping that that will be the next step.

Lord Rix: Could I express the wish that indeed the Executive will change their minds in regard to this. I am not persuaded by the arguments. I think to actually include learning disability, however caused or manifested, is such a wide-ranging target for people with learning disability that it could mean anybody really in that category and the vast majority of people with learning disability do not have behavioural disorders and are not likely to come within the ambit of this Act and to place them right at the beginning of the Act as being included automatically I think is (a) very dangerous speaking from a parental point of view or a carer's point of view and is (b) extremely demeaning. After all, we are trying to make people with learning disability part of the community and I think this is just designed to further the exclusion of people and to take away all dignity because it is a straightforward flatfooted relevance to learning disability however caused or manifested. I cannot possibly accept your argument.

Chairman: That is a set of arguments that has been enormously well laid out, if I may say so, before the Committee.

Q691 Lord Carter: Dr Osborne, you mentioned the Adults with Incapacity Act, the 2000 Act, and I am sure you are aware that there is interest on this Committee in the interplay between the Mental Incapacity Bill which we hope will become an act in the spring and the draft Mental Health Bill that we are working on. What has been the experience so far in this? I appreciate that the 2003 Act is not in force completely until 2005, but what is the experience so far of the relationship between the two acts?

Dr Osborne: I have to say that there is some confusion and that might clarify when the 2003 Act is implemented. The intention is fairly clear, that compulsory treatment would not be authorised by the Adults with Incapacity Act, that the Mental Health Act will have to be used for that though other measures obviously could be authorised.

Q692 Lord Carter: That is a clear point. What are the other and the grey areas where the two acts are overlapping, interfacing or whatever the word is?

Dr Osborne: There is obviously an issue about compulsory treatment for physical disorder which neither Act would authorise. The Adults with Incapacity Act does authorise the use of force in certain circumstances but for as short a period as possible, so the clear intention is not that it should be used for a prolonged period of compulsory treatment for physical disorder. There are issues about how far guardianship can be used to enforce non-medical aspects of care such as residency, attendance and those sorts of aspects of care. The Act has provision for getting a compliance order from a sheriff if the person in question is resisting intervention such as living in a particular place. I am not sure that anyone has ever used that particular provision because it is rather cumbersome and takes a long time. I think there is a problem about enforcing measures which the person is not happy with or resisting.

Q693 Mrs Browning: I would like to return to the issue that Lord Rix raised with you. I can say that I agree with his conclusions here but I just want to get on a fix on this because I have recently, this week in fact, had a reply from the Minister about the potential of this Bill in terms of the broad definition and Ausberger's Syndrome. The Minister has replied, as you rather demonstrated to us today, that this is to enable people to access services that they would not otherwise have. I really do not understand this because, whether someone has a learning disability or a diagnosis of autism, if their behaviour means that they are a risk to other people or themselves, I do not see why, unlike any other citizen, they do not have access to services or protection or people are not protected from them like anybody else. I just do not understand why they need to be singled out as labelled with a mental health condition when in fact not all of them do have one. If they fall into that narrow category, fine, but surely this is a gross infringement of human rights - it has to be - to label a group of people with something they actually do not have in order for them to access services. This is bizarre. I am glad you are reviewing it in Scotland but I just wonder how you ever came to this conclusion in the first place.

Mr McKay: I apologise that I did not say more about how the Millan Committee reached the conclusion that it did. I think the first point is that our understanding would be that learning disability is a mental disorder as generally defined. It is not a mental illness but it is not a mental illness act. The Millan Committee did look at the provisions in New Zealand and took evidence from a professor of mental health law in New Zealand where they did exclude learning disability from the mental health provisions down there but eventually had to come up with a separate act for people with learning disabilities. That may well be an appropriate solution but a number of the provisions are essentially the same. You could say the same about mental illness, that a number of people with mental illness will never come anywhere near being detained. The fact that you have one or other condition is not the only reason to come under the ambit of the Act. If one took a very hard line equality argument, you could say that they have the same right as everybody else to be sent to prison if they commit an offence and that is ultimately would could happen and did happen, we understand, to some people in New Zealand but, if they are not able to be compulsorily admitted to hospital, then the reality is that the alternative, if they will not accept treatment voluntarily, may be a custodial sentence. There was a view of the Millan Committee that they were not prepared to countenance a situation where that might happen and there are people already in the system who might be discharged from the system who would then lose the care that they had. The issue for both mental illness and for learning disability is the issue around impairment of judgment and that is really what the Act is about and that is one of the conditions of imposing an order in the Act, that a person's judgment is impaired so they are not able to make a fully informed decision for themselves about accepting treatment. The Committee did agonise about this and there was a strong view from some members of the Committee that there should be separate learning disability legislation but I think what would be important is not the question of whether you have one act or two acts but what the substantive differences would be between the two parts of legislation and I think that would be an important question to address.

Q694 Mrs Browning: Is the bottom line not what is and what is not appropriate services for this group of people who have an autism or a learning disability diagnosis but who also, because of their behaviour or because of either an overlying mental health problem ... For example, it is very common for someone with autism to have a diagnosis of clinical depression on top of the autism; it may be an intermittent and sporadic type of diagnosis because it comes and goes, but that is no different to any other citizen regardless of their diagnosis. They are entitled to those services and I do have concern that if you group all people with learning disability or all people with an autism diagnosis in this group in order for them to access mental health services, actually mental health services for all of that group may not be appropriate at all and, at the end of the day, it is what is the appropriate service for the individual and I think you are taking away the individual assessment of what is appropriate and grouping them altogether in a 'one size fits all' situation. Is there not a real danger that there will be inappropriate services delivered for individuals as a result of that?

Mr McKay: No, not because they are in the same bit of legislation. The issue is the kind of orders that are imposed and part of the point of the legislation is to use individualised orders which are customised to the needs of an individual person. The needs for a compulsory order for a person with a learning disability clearly could be very different from the needs of a compulsory order for a person with a mental illness and the needs of one person with a learning disability will be different from the needs of another person with a learning disability. So, the issue is that you get individualised care. The problem is not so much whether or not they have a right of access to services, the fundamental problem is whether or not they are able to or do consent to the services and whether or not it is justified to impose services on people who may not be consenting to them. That is what fundamentally the mental health legislation is about. The ultimate point is that for some people with learning disability - very few but some people - and for some people with mental illness, services need to be imposed on them to which they have not consented and that is, I think, the fundamental reason why learning disability was maintained in the legislation in Scotland.

Baroness McIntosh of Hudnall: I wanted to go back, if I may, to the issue of possible risk of harm to other people, that is people other than a person suffering from a mental illness but I do not want to do that if there is still air in the question.

Q695 Chairman: May I just ask a question before we come to that and it is a question aimed at the Implementation Team. Do you foresee any difficulties arising from different definitions of mental disorder in Scotland and in England, cross-border issues relating to transient people?

Mr Faulkner: No, I do not think so. The only difficulties we might have relate to matching up the two pieces of legislation in that legislative sense but, in the practical sense, we do not believe there will be any great substantial difficulties in, for example, transferring patients from Scotland to England.

Q696 Chairman: I just wondered about the danger of overlapping legal procedures taking place, legal challenges if a patient was, as they may be for good reasons because their carers move for example, moving from England to Scotland or vice-versa but you did not see any great difficulties arising from that?

Mr Faulkner: No. I think, as Colin said earlier, it is unlikely that a patient who is detained under the 2003 Act in Scotland would not be detainable in England under the draft Bill and vice-versa. What will be built into the system, for example, for any patient who arrives in Scotland from England - and it will work very similar in the opposite direction - would be an assessment period once they arrive in Scotland to assess whether they do still continue to meet the criteria of the Scottish Act. So, there will obviously be that assessment process that is gone through. Nonetheless, we do not expect there to be any great practical difficulties on that line.

Q697 Chairman: If a patient moves from, say, England to Scotland and, in England, they have been under the control - and I use that word - of the English and Welsh Mental Health Tribunal system, do they immediately move into the control of the Scottish Mental Health Tribunal system and does the whole procedure start again?

Mr Faulkner: I should explain that, in the 2003 Act, the cross-border provisions are left entirely to regulations. We are in the process of making those regulations at the moment and what is planned is that any patient who arrives in Scotland directly from England will be deemed initially to become subject to the equivalent order in the Scottish legislation, an order which is equivalent to the order to which they were subject to previously in England. They will deem to be automatically subject to the equivalent Scottish order. The orders are equivalent in terms of length and so on and so forth and in terms of how they are granted. They will be assessed in Scotland as to whether or not they are deemed to meet the Scottish criteria which are obviously different from the English criteria and, at that point, whether or not a review by the Mental Health Tribunal takes place is still to be decided. As I say, we are in the process of making those regulations and that is in the process of being worked out.

Q698 Chairman: Who is in the process of making those regulations, the Scottish Executive, the Department of Health or both together?

Mr Faulkner: Both together. The regulations have to be made by the Scottish Executive Health Department. We are liaising very closely with colleagues in the Department of Health to make sure that the two pieces of legislation match up. The first issue that has to be overcome is that the 2003 Act has to mesh with the current legislation and then, at a later date, the 2003 Act will have to mesh with the English Bill. So, we are trying to make sure that any regulations we make now which match up the 2003 Act with the 1983 Act in England will be sufficient to cover the situation when the new English Act comes into effect.

Chairman: Thank you very much. We will go back to the question that Baroness McIntosh wanted to ask which returns us to the issue about duty to protect the public from harm from people who are mentally ill.

Q699 Baroness McIntosh of Hudnall: We heard evidence in an earlier session from a witness who put it to us that the main imperative driving the wish to reform mental health legislation in England was a couple of very high-profile cases in which people with mental illness had caused serious harm to other people, random other people. I wondered if you could tell us to what extent the issue of risk did form part of the deliberations of the Millan Committee and subsequently fed into the legislation. Dr Osborne said it was thought that the issue of risk and the necessity to protect was implicit in the way that the Bill is drafted, but I would certainly be interested to know whether that was as a result of deliberation or not. Could you also tell us whether there was an effect in those deliberations from either the high-profile cases that took place in England or any similar cases in Scotland that had an impact on public perception of mental illness.

Mr McKay: I think the driver for the Scottish review was not any particular high-profile case. The driver for the Scottish review was simply that their 1984 Act was relatively outdated and there were obviously a number of issues around things like whether you have treatment in the community which influenced the decision to have the review, but the review was comprehensive. Certainly, looking at the terms of reference, there was a reference to taking account of issues related to the rights of patients, their families, their carers and the public interest. So, the public interest was certainly in the mind of the Millan Committee alongside issues around the rights of patients and carers. The decision to set up the MacLean Committee which looked separately at issues around personality disorder may well have been influenced partly by some of the cases in England and there was also a case in Scotland of an offender, not necessarily somebody who had been in the mental health system but a dangerous offender who had been released from hospital and had gone on to be felt to pose a threat to the community. So, some of these issues were behind the decision to undertake the review. Certainly the Millan Committee accepted that the issue of risk to other people as well as the risk to the person is one of the determinants of whether or not a person comes into compulsory care and treatment. I guess the fundamental difference is around the treatability criterion and whether or not that in itself, the existence of a mental disorder plus the risk to somebody else, is enough to detain a person under the mental health provisions without evidence that the person is actually in need of treatment and would benefit from treatment. Both the Millan and MacLean Committees looked at that and, certainly in the Scottish context, found little evidence of people who could or should be detained but were not being detained because of the treatability requirement in the current legislation and felt that it was a fundamental principle of mental health legislation that it should be directed at therapeutic benefit although the issue of risk to others is certainly one of the factors which you weigh in the balance in determining whether or not compulsion is appropriate. The MacLean Committee felt that the issue of broader public safety and dangerousness divorced from treating people's mental disorder is not so much an issue of diagnostic labels, it is an issue of the risk assessment and is properly part of the criminal law and they made recommendations which were subsequently enacted which were intended to strengthen the provisions in the Scottish law for high-risk offenders which would include offenders with a personality disorder and essentially introduced a new form of indeterminate sentence for offenders who were established to be high risk even though the offence they may have committed might not necessarily have justified a life sentence in other situations. So, there was a recognition there that there is an issue around dangerousness but it is not necessarily one that best fits within the mental health system. I suppose that, if we are mentioning high-profile cases, we should mention the Ruddle case which was a case which actually happened in the middle of the Millan Committee's deliberations and that was the case of a person who was discharged from the state secure hospital in Scotland on the basis that he was no longer treatable. He had been detained and was discharged. The Executive introduced emergency legislation prior to the Millan Committee report which provided that a person who is already a restricted patient may continue to be detained, albeit not treatable, if they still presented a sufficiently high risk, so more than a particularly high threshold of risk. The Millan Committee considered whether or not to keep it and had some misgivings about it but it ended up in the new Mental Health Act. So, there is still a provision for people who are given a restriction order and who continue to be mentally disordered but are no longer felt to be treatable and they may still be detained.

Q700 Chairman: It sounds a bit like a muddy interface between the criminal justice system and the mental health system to me. Is that an unfair observation?

Mr McKay: It is a slightly muddy interface. I think the Millan Committee felt it should only be there partly as a residual provision for people who may have gone in under the old system. They felt that, with the new system of proper risk assessment when people go into the system ... The ideal is that you should be appropriately assessed and an appropriate disposal made when you go into the system, but it was recognised that there may be some people for whom the wrong disposal was made when they went into the system, essentially people who perhaps fundamentally had a personality disorder and should have received a prison sentence but actually received a hospital order and that turned out to be wrong and they were still deemed to be dangerous and that was the small group. In fact, whether there is anybody in hospital who, doing that test, would be suitably applied (sic) is an open question. It is certainly not something that is detaining large numbers of people. There was an ECHR challenge to it which it survived fairly successfully. That was as far, I think, as both Committees wanted to go in terms of keeping people in the mental health system on the grounds of dangerousness and they were quite strongly opposed to the idea of bringing people into the system purely on the grounds of dangerousness.

Q701 Tim Loughton: Can you elaborate a little more on the treatability side of this. What you have been talking about - and I agree with the Chairman's comments that there is a bit of a grey area here interfaced with the criminal justice system - is largely to do with detaining people, but how are people with a personality disorder actually going to be treated and what sort of numbers of people are we talking about who fall between those two stools given the retention of treatability criteria in the Scottish Act?

Mr McKay: I think the number of people with a primary diagnosis of personality disorder - and Dr Osborne may have more information on this - certainly in state hospitals is very small.

Ms Tyrell: We reckon less than ten people the last time we checked.

Q702 Tim Loughton: What is happening to them?

Ms Tyrell: They are still there. It is appropriate for them to be there. Most people in Scotland with an antisocial personality disorder would probably be in prison or in a psychiatric hospital.

Q703 Tim Loughton: Receiving what sort of treatment?

Ms Tyrell: Whatever psychological treatment the prison think necessary and I think that we do have some good programmes for that.

Mr McKay: There has been a tradition for many years in the psychiatric community in Scotland not to retain people with a primary diagnosis of personality disorder in psychiatric institutions and I think people have tended to be in the prison system. They can be transferred if they require medical treatment but it is not seen as the primary source of dealing with people with personality disorder.

Q704 Tim Loughton: You do not have the equivalent. Broadmoor has this rather innovative wing of dangerous personality disorder people who are almost all people who have been transferred from prison.

Mr McKay: No. There are some specific special units within the Prison Service but not specific services within the Mental Health Service for people with severe antisocial personality disorder, no.

Q705 Ms Munn: One of the concerns about the issue of treatability was that people at times were defined as being not treatable because they had a personality disorder as a way of mental health services, for whatever reason, whether it was resources or whatever, not actually providing any services for them and, from my own experience, I know of people who have been defined as, well, they have a personality disorder, therefore it is not appropriate to section them, but subsequently perhaps have been sectioned and have been given a course of treatment which actually has then benefited them. How clear are you that you are actually able to define treatability? That seems to me one of the real risks of having the treatability issue within the legislation.

Dr Osborne: We are only talking about compulsory treatment here. The Scottish Act includes personality disorder as one of the sub-categories of mental disorder and puts a wide range of obligations on local authorities and health services to provide services for anyone who has a mental disorder. So, the obligation to provide services for people with personality disorder is in the Act. Where the Act would narrow the focus would be when compulsory treatment is required and it introduces more than the concept of treatability but of benefit before compulsory treatment can be applied. So, there are two things going on: one is to try and widen the access of people with personality disorder to services and place an onus on health services, for example, to provide advocacy and those sorts of services but to keep the criteria for compulsory treatment fairly narrow.

Ms Munn: I suppose that brings us back to the fundamental issue which is that we were always told that personality disorders by definition are not treatable. I do not know if you are saying that the views on that within Scotland have moved on because obviously, if what you are saying is that people can receive services and treatment voluntarily, if the treatment is not going to work if you have a personality disorder ... Do you see what I am getting at? It is a view about, are there certain people who can be categorised in certain ways who would therefore be deemed to be never likely to or never to benefit from a particular treatment and therefore compulsory powers would never be available to people in terms of offering them ...

Q706 Chairman: I suppose there is a question connected to this as to what is the meaning of treatable. As you know, the draft Bill contains some very wide provisions which would fall within the definition of treatment.

Mr McKay: The Scottish provision is that the criterion is that medical treatment which would be likely to prevent the mental disorder worsening or alleviate any of the symptoms or effects of the disorder be available for the patient. It is not a case that you have to, as it were, get a drug that will cure you of the disorder. I think there is sometimes a confusion in the discussion of personality disorder between the specific case of antisocial personality disorder as there may be some dispute about whether that is a mental disorder and the broader categories of personality disorder and certainly our understanding was that there are many types of personality disorder and there are many people who have some type of personality disorder who will benefit from some treatment regime, for example people with borderline personality disorder, and that providing there is some therapeutic interventions, whether it is psychological interventions or some degree of structure, which will alleviate the effects of the disorder and allow them to live a better and happier life. Even with people who are dangerous, there are therapeutic interventions which maybe ought to have some benefit. Clearly, it is not the same as a treatment which will cure you of an illness, but all of those kinds of interventions would potentially allow you to meet the treatability test in the Scottish Act.

Chairman: I would like to move on now to issues about resources.

Baroness Murphy: We know that, since the passing of the Scottish Act, the funding for implementation to the Scottish Health Boards has increased by more than a quarter of the original estimate and we gather that more is going to be made available in 2005/06 and we wondered what the reason for that is and if you could tell us what the specific areas are where increased funding has been found to be necessary and whether you were wrong in your original calculations.

Q707 Chairman: We might add to that whether there are fundamental differences between Scotland and the rest of the United Kingdom which make the experience in Scotland different in any way or can we take what has happened in Scotland as a reasonable indication of what will happen in terms of resources in England and Wales.

Ms Tyrell: The money that was identified as being required once the Act was implemented in the financial memorandum of the Bill was the £12/13 million that went to local authorities and another £6 million for health quota(?) which they were not getting but which they had to find from their own resources. The additional money which was made available came from the partnership of commitment of the new administration that came in after the Scottish elections and it was identified as being required to help improve mental health services in general and to help implement the act, not for ongoing service provision but to help make the changes that were needed in order that we could improve the services and local areas could also manage the work that was needed to implement the Act because there were a number of things like training and some redesign of services that were needed as part of the implementation work but which will not necessarily be long-term commitments.

Q708 Baroness Murphy: Was it in terms of new personnel or further resources to professionals? Do we know where the money is being spent?

Ms Tyrell: When we gave the money to the local areas, we gave it to the health boards but they were expected jointly with the local authority partners and other agencies to plan for the implementation of the Act and improvement of services and, in a letter, the Minister mentioned eight areas that we asked to be looked at. They were crisis response and 24 hour service because that is patchy across Scotland; community services, obviously as a result of hospital treatment in the community; hospital services, a wider range of therapies being available; redesign of the workforce because again, with treatment in the community, we felt that the workforce needed to look at different ways of working; organisational issues for the board and local authorities; and resourcing and accountability because, when Dr Grant carried out her assessment of mental health services, she found that it was actually very difficult to know what was being spent on mental health services across the country.

Q709 Chairman: Do you have staffing shortages in various parts of mental health services in Scotland? We heard a lot in Wales, for example, about severe shortages of consultant psychiatrists, a very significant percentage. Do you have that kind of problem in Scotland and, if so, is that going to delay the implementation in its full sense of the new legislation?

Ms Tyrell: There are two issues here. The Act put extra duties on to mental health officers and we recognise from that that we would need additional mental health officers, probably about 40 across Scotland, and there will be extra duties on consultant psychiatrists as well, particularly from the new Tribunal and there already is a small shortage of psychiatrists particularly in some specialities. So, some work has been done to look at how additional resources can be found, not so much additional resources but how we can redesign the way the services work and the way that consultant psychiatrists work in order that they have more time to do the things that they need to do in relation to the Act and the Tribunal. There are projects to look at the redesign of all the mental health workforce, how they are working and whether there are ways that they can improve that and make better use of the resources they have.

Q710 Chairman: How many consultant psychiatrists are you short of in Scotland at the present time?

Dr Osborne: It is a small number.

Ms Tyrell: I do not have the figures; I could provide them for you but it is probably about 40.

Q711 Chairman: Forty out of an establishment of ...?

Ms Tyrell: Seven hundred or so.

Q712 Chairman: So, it is a relatively low percentage compared with some other parts of Great Britain.

Ms Tyrell: Yes.

Hywel Williams: The second of the Millan principles is about non-discrimination and language is mentioned specifically. Can you tell us how that has worked out, for example in the Western Isles in terms of providing services for the medium of gallic?

Q713 Chairman: Is the answer to that, "That was a good question! We would like to write to you and give a response"?

Ms Tyrell: We would be happy to do that, yes.

Q714 Chairman: That was a good question, Mr Williams, and they are going to write to us and give a response!

Mr Faulkner: I suppose the one thing to say on that point is that each area produces its own joint local implementation plan and that will no doubt be one issue they will be looking at within the Western Isles local authority and within the Highland Health Board. Those issues will undoubtedly come up in that joint local implementation plan, but we will certainly provide you with evidence of it.

Q715 Chairman: Good try but I think we would like you to write to us. The Scottish Deputy Minister for Health Services and Community Care described the plans for the new Mental Health Tribunal for Scotland and asserted that a full-time president was about to be appointed along with about one hundred each of legal, medical and general members from whom the members for each three person panel would be drawn. If that is true for Scotland, then it has a remarkable and exponential significance for England and Wales. Is it true and what has happened in relation to the re-establishment in their new form with the new legislation of Tribunals in Scotland?

Ms Tyrell: We do not have Mental Health Tribunals at all at the moment, everything is considered by the sheriffs, so we are setting up a Mental Health Tribunal Service from scratch. Over the past year, as well as setting up the administrative structure, we have been recruiting, as we say, a president and 300 members. The legal members and the medical members were interviewed at the end of last year and we now have 95 legal members who have accepted and we expect we will get to the hundred.

Q716 Chairman: All part time?

Ms Tyrell: Yes. We expect them to do about two days a month. It may be that we will look for one or two to do a little more but generally that. We have medical members. We have made 57 offers of appointment and 41 have accepted, but we expect that will go up, so we think we are at about 57 members. We are doing another round of recruitment because 57 is not enough and we hope to get that up and again we think we will manage the loading by having some retired members who will work more than two days a month, they might work two or three days a week or something like that.

Q717 Chairman: Basically, you need to have roughly equivalent numbers of each, do you not?

Ms Tyrell: Yes. We have just advertised for the general members and we have had 485 applications for the 100 posts, so we think we will probably be all right on that front.

Q718 Baroness Murphy: Could I follow up on that question about the current Mental Health Act Commission which in the draft Bill is to be abolished and its responsibilities taken over by the Healthcare Commission. In the Scottish Act, you beefed up the Scottish Mental Welfare Commission. Do you have any comments to make about the proposals in our draft Bill to the abolition of the Mental Health Act Commission?

Ms Tyrell: The only thing I would say is that our Commissions were not identical to begin with. Madeline might know more on this. I think our Commission had a bigger role and I think that we felt that was worth keeping.

Dr Osborne: The Scottish Commission has a different set of duties from the Mental Health Act Commission. The only one that is similar is visiting. We have a duty to carry out inquiries and indeed, by and large, there are no public inquiries in Scotland, it is the Commission that carries out the inquiries. We have a variety of other reporting duties and protective duties. Under the new Act, we have a role in safeguarding the rights of people who are detained and that includes having the power of discharge although we would not want to use that because we are not set up to really give people a fair hearing in the way that tribunals are. We have the power to refer to the Tribunal and, as I say, we have the power to hold inquiries if we think that treatment is deficient or care is negligent. That seems to be quite reassuring to service users particularly in relation to community-based orders and the Commission will be making a special effort to visit people on community-based orders very early in the course of their order to see that treatment is reciprocal, that the principles are being paid attention to, that the grounds for compulsion are still in place and issues like that.

Q719 Chairman: May I ask you now a quite different question. As you know, there has been a lot of publicity, some of it wholly ill-informed, about advance directives. The 2003 Scottish Act contains provisions for some limited recognition of advance directives. How important do you think those provisions are to the ethos of the Scottish 2003 Act or is it something that has been bolted on to satisfy a particular group who have a view about advance directives?

Mr McKay: I think that the advance directives in the Scottish Act are wholly dissimilar to the advance directives which tend to be covered in the media discussion which is around life-saving treatment, refusing life-saving treatment, and those kind of issues were dealt with in the Adults with Incapacity Act. The specific issue of advance directives in the Scottish Bill is around the idea that the whole point of the Act is that you will be required to do things which you have not consented to but that because of the principle at the start of the Act of having regard to the patient's current and past wishes, it is appropriate to have a mechanism by which people can make their wishes known at a period perhaps when they feel well in order that that will influence treatment at a time when they are ill. I think it is one part of the framework which ensures that care plans are drawn up with regard to what the patient would want to happen to them when they are able to express that and that the Tribunal can take account of that and make a decision. It is not a binding thing but it is meant to be one of the tools that will influence the drafting of the care plan and the decisions that the Tribunals make. I think in that respect it is a significant part of that.

Ms Tyrell: Advance statements and appointing a named person are the two things that service users have found really have brought the Bill alive for them and they are all very interested in being able to make these decisions up ahead of implementation.

Q720 Baroness Eccles of Moulton: Putting it at a very simple level, if you are making an advance directive about the sort of treatments you might receive when you are unwell, while you are well, you might be quite prepared to agree to accept the sort of medication which makes you feel absolutely rotten when you are ill and you are not continuing to remember how awful you feel. When you become ill the next time, you are put on to the medication which you have agreed to in the advance directive but which you are finding it extremely difficult to adhere to for the reasons why you did not adhere to it before you made an advance directive. Is it actually something which in theory sounds absolutely great but in practice the patient is probably not going to be any more accommodating of their medication when they are ill than they would have been if they had not agreed to the advance directive and in fact it could be even worse because they could be then put under some sort of pressure because of the advance directive that they would not have been under if it had not existed?

Mr McKay: I think it really helps to get a fuller picture of what the patient's views are. If a patient when well says, "I know that when I am ill this will happen to me and I understand that I will be given the treatment and I accept that" or perhaps says, "There is a particular kind of treatment that I particularly object to and, when I object to it, it is not just because I am ill, it is because I have a fundamental objection to it", then I think those things should influence the decisions that are made and I do not think you can put it any higher than that in legislation because it is a complex balancing of what the person is saying to you now and what they might have said in the past and you cannot really legislate and say that one or other should always prevail but I think it is relevant to know what a patient has said when they are well and to take account of that and, if you have gone to the trouble of a formalised advance directive which you have had signed and witnessed, that probably tells you something about how strongly they feel about it and I think it is helpful to know that.

Q721 Baroness Finlay of Llandaff: You have used the terms "advance directive" and "advance statement" and could you confirm that actually you are talking about a statement and not a directive.

Mr McKay: Yes.

Baroness Finlay of Llandaff: And that you have a proforma of criteria that you would want to see fulfilled to ensure that it is valid and that it is recorded. Does it always have to be recorded in writing or do you expect there to be witness video recordings or transcripts and also I wonder if you could give us a little bit of a feel of whether people are able to state within this that, for instance, when they become ill, they would not want to be looked after on a particular ward or, if there has been a staff member whom previously they have found particularly difficult to relate to, whether they are able to express that in such a statement.

Chairman: Before you answer that question, there is a last question from Lord Carter because Prime Minister's Questions are more than usually attractive today.

Q722 Lord Carter: To pick up on the point Mr McKay made about if you objected to a course of treatment, if somebody said that they strongly objected to the use of ECT for example, would that mean that the doctor who felt that it was eventually in the patient's best interests to use ECT would not be able to use it?

Mr McKay: No. The duty on the doctor or on the person giving medical treatment is to have regard to the wishes specified in the advance statement. It simply means that you have to take account of that and I guess if you were seeking an order to authorise ECT in the face of an advance statement, the Tribunal would want to understand why you would want to overrule the patient's wishes and it is no higher than that. The advance statement itself does have to be in writing and has to be signed by the person and I think has to be witnessed as well, so it is a fairly formal document. That said, there is still the underlying principle of having regard to past wishes. So, if a carer, for example, says, "This person has told me in the past that they would not want this kind of treatment", if the doctor thinks that is true, the doctor should still take account of that. I suppose a tribunal, looking at it, would perhaps give a little more weight to something that someone has gone to the trouble of having signed and witnessed as recording what the genuine wishes are at a period when they are well. It is really just how much weight you place on this statement but it is not binding.

Chairman: I am going to have to stop you. There is a slightly creative ruling that, once you have started your answer, those who are present once you had started were deemed to still be here throughout the answer! We are now inquorate because we have to have two members of each House present throughout our proceedings. Can I thank you very much and also for all the documentation we have received from Scotland. I think I can confidently predict that the word "Scotland" may just appear here and there in our report and we are grateful to you for coming to put some more flesh on some already well-fleshed bones and for your clarity. The meeting has finished but Lord Rix has never been put off by procedural niceties like that!

Q723 Lord Rix: This is purely concerning another Act. The Chairman of the Mental Incapacity Scrutiny Committee which I was on is sitting on my left. The advance directives, as you know, are at the moment being discussed in the House of Lords and of course are going to cause again these sort of problems. Did you have the same problems with your Incapacity Act when you were debating it?

Ms Tyrell: We do not have advance directives but there was a lot of concern about the fact that the Act might allow euthanasia which was quite contentious.

Chairman: Thank you very much indeed. The meeting is over and can I remind you that we are starting again in this room at 2.30.