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

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON THE DRAFT mental HEALTH BILL

 

 

DRAFT MENTAL HEALTH BILL

 

 

Wednesday 19 January 2005

MS ROSIE WINTERTON MP, PAUL GOGGINS MP,
PROFESSOR LOUIS APPLEBY, MR ADRIAN SIEFF and MR NIGEL SHACKLEFORD

Evidence heard in Public Questions 813 - 870

 

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Joint Committee on the Draft Mental Health Bill

on Wednesday 19 January 2005

Members present:

Carlile of Berriew, L (Chairman) Carter, L Cumberlege, B McIntosh of Hudnall, B Pitkeathley, B

Mrs Angela Browning Mr David Hinchliffe Mr George Howarth Tim Loughton Laura Moffat Dr Doug Naysmith Mr Gwyn Prosser Dr Howard Stoate Hywel Williams

________________

Witnesses: Ms Rosie Winterton, a Member of the House of Commons, Minister of State, Department of Health, Paul Goggins, a Member of the House of Commons, Parliamentary Under-Secretary of State for Correctional Services and Reducing Re-Offending, Home Office, Professor Louis Appleby, Mental Health Clinical Director, and Mr Adrian Sieff, Head of the Mental Health Legislation Branch, Department of Health, and Mr Nigel Shackleford, Deputy Head of the Mental Health Unit, Home Office, examined.

Q813 Chairman: Could I welcome the two ministers and the three recidivists - if they will forgive me describing them thus, having appeared before. Could I deal with the formalities before I ask you to introduce yourselves. Could I remind you that this is a public evidence session and I am please to see that we have a large public gallery, including some regular attenders who are always welcome. There will be a transcript produced. It will be on the internet within about one week and available for textual correction if appropriate. Would you like to introduce yourselves, starting with you, minister.

Ms Winterton: I am Rosie Winterton, Minister of State at the Department of Health.

Mr Goggins: Paul Goggins, Parliamentary Under-Secretary at the Home Office, with responsibility for prisons, probation and, in this context, mentally disordered offenders.

Mr Shackleford: Nigel Shackelford, official Home Office mental health representative

Professor Appleby: National Director for Mental Health

Mr Sieff: Adrian Sieff, official from the Department of Health.

Q814 Chairman: Thank you very much. I understand that you would like to make a short introduction, Ms Winterton, so would you like to start.

Ms Winterton: Thank you, Lord Carlile. I would really like to say how pleased we are that the Committee is scrutinising the Bill. We have undertaken a lot of consultation, certainly since the draft Bill in 2002, and I think this is an extremely important part of that scrutiny process and will be very valuable in making sure we get this Bill right. I think there has been long consensus that we do need to update our mental health legislation. I think most people are agreed on that and I think there are three main reasons for that. First, in the developments that have taken place in terms of the provision of mental health services and particularly in terms of the community-based services that we now have, I think it is important that we put a new focus on the individual, particularly because of developments in human rights law and also because there is a great need to strengthen the safeguards for patients who are treated without their consent. We believe the draft Bill, because of the new safeguards (such as the choice of representative, access to advocacy and the fact that the mental health tribunals will have to authorise any treatment beyond 28 days), provides some very key safeguards and also ensures that patients receive appropriate treatment (for example, by requiring individual written care plans for compulsory treatment) and makes sure that that treatment must be available before anybody can be brought under formal powers. Compulsory treatment is necessary for the very small number of people with mental health problems who need to be treated against their wishes, normally for their protection but occasionally to protect other people. By ensuring that people who need treatment receive that treatment, we are able to ensure that the public generally is protected. Also through this Bill we believe we will be able to ensure that offenders who have serious mental disorders are diverted away from punishment into treatment. So there are many balances that need to be struck in this Bill. We believe we have found that right balance but we are also very clear that your scrutiny will help us to inform the process.

Q815 Chairman: Thank you. I understand that you do not want to do an introduction, minister.

Mr Goggins: No.

Q816 Chairman: Thank you. As good a place to start as any is the beginning. The history of this Bill has been of some interest to the Committee. It has had the gestation period of two elephants; a conception aided by an expert committee which reported a considerable time ago. The Bill starts in clause 1(1) with a requirement to the appropriate authority to publish a code of practice, in clause 1(2), setting out the "general principles to which a person must have regard whenever coming to a decision under or in pursuance of this Act in respect of a patient." Given the underpinning principle and the time there has been, the Committee has been puzzled as to why draft codes of practice were not ready when the draft Bill was published last September, so that we could see what those principles were. Are you able to assist us on why the draft codes of practice have still only reached a contents list?

Ms Winterton: I would say that it is, sort of, normal practice for work to begin on code of practices once a bill has been drafted. What we wanted to do here and what we intend to do is to introduce the code of practice when the Bill is introduced to Parliament itself. I do not think that is unusual. With the Scottish Mental Health Bill the code of practice was produced about a year after the bill received royal assent. With the Mental Capacity Bill the code of practice was introduced when the bill went into committee. We did not want to pre-empt the parliamentary process by setting up an advisory group, putting together a code of practice that would then, in a sense, have been put together before Parliament had even seen the second draft Bill. We have now set up the Implementation Advisory Group. We will be working with them on the code of practice. But it is important that we put that together with the recommendations that this Committee makes so that we can ensure that the code of practice is fully relevant to the provisions of the Bill when we introduce it into Parliament. But we have, as you say, sent the table of contents forward and we would hope to be able to pass on as much information as we can from the work of the Implementation Advisory Group.

Q817 Chairman: It has troubled us that as a general principle we now have a procedure which involves scrutiny of draft bills which is quite different from the general run of bills to which I think you have been referring. Particularly where one has so much time in which to prepare a bill and where the code of practice is actually the foundation stone of the whole draft bill, where this procedure is used do you not think that it might be more informative for a committee if a draft code of practice were produced and also draft regulations were made available, given that there are many important questions left to ministerial regulation? After all, you have produced a draft bill, so why on earth not a draft code of practice and draft regulations? It seems logical, if we are going to have a meaningful joint committee of both Houses, draft consideration and scrutiny procedure, we should be able to scrutinise the whole of the legislation that is proposed and not just a bit of it.

Ms Winterton: I do take your point. The difficulty we have had is that if we want properly to engage stakeholders in the code of practice - which we do need to do because it is about implementation, it is about how clinicians will work, it is about what different organisations will want to see in terms of some of the principles that are adhered to - we do want to make sure we are engaging in that proper consultation. In a sense, if we publish, at the same time as Parliament sees the draft bill, a code of practice, then we could be accused by stakeholders and others of not consulting them properly. That is our difficulty. We are damned if we do and damned if we don't, because we cannot say we have engaged stakeholders properly unless we do that in an open sense. If we publish something prior, at the same time as the Bill being published, then I think we could well be accused of riding roughshod over what would be considered to be a proper consultation process. I would go back to the Mental Capacity Bill and say that actually the code of practice there, where that went through PLS, we did wait until it had been through that process before starting on the code of practice, because there certain changes were obviously made after PLS which then had an impact on the code of practice but it was introduced at committee stage. We are trying to do better than that and produce a code of practice when the Bill is introduced into Parliament.

Chairman: Having made that point, I think we can move on. I cannot speak for the Committee because we have not decided what we are going to say, but, although certainly you are going to be damned if you do and damned if you don't, I think you may find that you are slightly more damned if you don't than if you do in this instance! Let's move on, in any event.

Q818 Tim Loughton: Minister, general principles, which you are not proposing to put on the face of the bill. Why not? What was so objectionable about accepting substantially the principles that were put forward by the Richardson Committee?

Ms Winterton: I am not opposed in principle to having the principles on the face of the Bill but we felt that it was better to have them in the code of practice because it may well be that, as practice develops over time, we might want to look at whether it was necessary to alter the emphasis of some of the principles and it is easier to do that with the code of practice. It is important for the legislation to have those underlying principles, I agree with that. We have tried to set out the objectives in clause 1 that we believe the Bill should work from, but, as you say, we have said that the principles will be set out in the code of practice. If we have those principles in the code of practice, it allows them to retain currency, as I have said, if they needed to be changed over time. I think there have been examples of changes in that sense. If we were to have the principles on the face of the Bill, I would want them to reflect the balance between the need for patient autonomy and the principles of least restriction and s on, but balancing that with the right of society as well in terms of public protection and the need to make sure that you have that balance right in the principles. As I say, we believe that the code of practice can fairly reflect those principles and there are arguments for saying that it should be in the code of practice in order to ensure that there is a degree of flexibility within them. If they were to be on the face of the Bill, I just would want to be clear that it would be about reflecting that balance that runs throughout the Bill between those two very sensitive issues.

Q819 Tim Loughton: Minister, we are talking about principles here; we are not talking about latest trends and fashion. A principle is a principle. It is not there to reflect something; a principle is there to underpin the rights of whoever, as you say. You have said in principle you are not against it. Would you agree that actually putting the principles on the face of the Bill would carry more weight than having them in a code of practice, and, secondly, why is this Bill, for example, so different from the Children Act 1989? - which did have overriding principles on the face of the Bill which are just as relevant today as they were when they were written 15 to 16 years ago. Why is it so different in this case?

Ms Winterton: In a sense, the issue here is about the code of practice being able to reflect the way that the Bill itself is applied in practice. For example, there can be discrimination against women, discrimination against people from black and ethnic minorities, and society's view, in a sense, has changed over a long period. We would want to see within the code of practice, if there were instances, where some principles about how people are treated have changed. You could look, for example, at the issue of people being treated in the community, where in a sense there is a slightly different principle now, about, so far as possible, looking at how people can be treated in a way that is nearest to their home, nearest to their family, etcetera. There are some principles there that may change. As I say, if we could get that balance right, and look also at some of the issues around dis-application, I am not necessarily opposed to having them on the face of the bill

Q820 Tim Loughton: Are we making some progress? Because we have heard that in principle you are not against it but now you are saying that you may be moving towards it. Again, we are talking about principles and a lot of what you have been talking about is practice. If you take the principle of non-discrimination or take the principle of non-racial discrimination. Quite rightly, that is a principle that I would hope will not be changing in our lifetime, so when is racial discrimination applicable? Why in clause 1(4)(a) do you have the dis-application facility of "circumstances in which its application would be inappropriate or impracticable". When is it inappropriate or impracticable not to be against racial discrimination?

Ms Winterton: I would not use that as an example where ----

Q821 Tim Loughton: It is your example.

Ms Winterton: -- that would be the case. I said that society's attitude towards racial discrimination and gender discrimination had changed over time and some of the principles which you might have put on a bill, say, 30 years ago would not necessarily ... You would move on in the way society has moved on. When we talk about dis-application, let me give you an example that I think would be helpful to the Committee. If you had a situation whereby the general principle would say the patient should have the maximum amount of information available to them. If a care worker felt that they were given information but to pass that information on to a patient might put the care worker at risk, then that would be a situation where you might say, "the general principle of giving the patient maximum information would be dis-applied at that time." If a relative or a neighbour were in the same position and were passing information on to, again, a clinician, and that information was not passed on to the patient because it might well put the neighbour or carer relative in a difficult position -----

Q822 Tim Loughton: But no one is recommending that principle.

Ms Winterton: -- then that would be an example of when you would dis-apply the principle.

Q823 Tim Loughton: It is not an example that was in the Richardson recommendation. It is theoretical but does not actually apply.

Ms Winterton: It is an example of what I am saying.

Chairman: I think Lady Cumberlege is interested in this issue as well.

Q824 Baroness Cumberlege: Yes. I would like to follow on from what Mr Loughton was saying in terms of not only the Children Act but the Mental Capacity Bill which is before our House at the moment and that has principles. We have heard a lot from witnesses throughout this exercise, and the witnesses have told us that if they have the principles on the face of the Bill it will give confidence not only to service users but also to practitioners and tribunals in interpreting and applying the Act. We all know this is a very difficult exercise we are going through. You talked about balance and we appreciate that. We feel that having the principles on the face of the Bill would actually be a very strong indicator of what the balance was and we find it very difficult to understand your reasons for not putting them on the Bill.

Ms Winterton: I have looked at the points that have been made. Obviously we both have. I do not know whether Paul wants to come in here in regard to the issue of balance as well, but, as I have said, it is a point of saying: Do we lose some of the flexibility we might want to have in the code of practice? Can we get the balance right which, I think, the Bill does represent? - the balance between patients' rights, the need for safeguards, the least restriction, patients' right to information, etcetera. Can we on the face of the Bill in those principles get the balance right between that and the need obviously for the very small minority of people who may present a risk to others that that can be reflected? As I have said, we will obviously look at the recommendations of the Committee. I am glad that you said that you recognise that if we were to put those principles on the face of the Bill it would be absolutely right to reflect those different needs.

Q825 Chairman: We are jolly glad you will look at the report of the Committee, we were sure you would, but, in considering the question of enduring principles - and you have made a powerful point about that - of course you do have the option of having an affirmative resolution procedure which would allow for the evolution of scientific knowledge of mental health, would enable the principles to be on the face of the Bill, but allow amendments, subject to, probably, the Committee might prefer, affirmative resolutions, over the years that follow. Do either of you have any comments on that suggestion?

Ms Winterton: Certainly any changes to this code of practice we have said would be subject to the affirmative resolution itself, so the same, if you like, principle might apply there.

Q826 Chairman: Do you want to add anything, Mr Goggins?

Mr Goggins: I feel I am getting closer to my first contribution, Lord Carlile.

Q827 Chairman: You were offered the opportunity.

Mr Goggins: Indeed. I do not want to take up time by re-stating things that Rosie has already said. It is clear, however, that the Bill is not without principles. It has clear principles which are written through it. The question is one of whether they should appear on the face of the Bill or through the code. I would simply echo what Rosie has said to the Committee, welcoming the remarks that were made about the need to strike that balance between, on the one hand, the autonomy of the individual but also the protection from harm for the individual and, indeed, for wider society. It is making sure that however principles are expressed and whether it is on the face of the Bill or through the code that that balance is absolutely clear. Because it is a balance that is in the Bill, and if it becomes unbalanced in the statement of the principles then we have a real problem with the legislation.

Q828 Lord Carter: The draft Mental Incapacity Bill did not have the principles in the draft Bill, and of course the Government accepted the recommendation of the joint committee to include them and they have done so. On the example that you gave of the carer, surely the crucial thing is that the practitioner had to have regard to the principles; and the carer can clearly show they had regard to the principles, they considered them and it was not in the best interests of the patient, for all the information that we have supplied, because it might have led to violence between the patient and the carer.

Ms Winterton: Yes. Again, it is getting that balance between the two, is it not? I suppose it is giving the scope to somebody not to feel, in the particular instance that I gave, that, because they had regard to the status - which is quite strong - if there was a challenge to that, legally one has to prove that there were very good reasons for that - and, in a sense, it is the cover of dis-application in order to make it clearer for those operating in that way that there is the ability to do that in the circumstances that, one would hope, would be rare but nevertheless can be real.

Chairman: As we move on, can I just make this comment: I think one of the things he Committee has observed is hat the drafting of clause 1(4) appears to be very broad and therefore we have not had perhaps as much clarity as we would have wished about the circumstances in which the principles could be dis-applied. It occurs to me that the example you gave, Ms Winterton, of the health worker who may be worried about their safety, might be something that actually fits quite comfortably within clause 1(5) as opposed to a dis-application of principles in clause 1(4). In other words, it is a matter of practice rather than principles. I simply leave that thought as we pass on to Mrs Browning.

Q829 Mrs Browning: Thank you. Minister, could I ask you about the changes that the 2004 Bill makes to the definition of mental disorder and the consequences for the people who would be caught within the definition who are not currently identified within the 1983 Act.? Could you tell me why the Government think it is right to change the definition of mental disorder to encapsulate other categories of people who are outside the existing legislation? Could you also, when you reply, tell me what you think the differences as far as definition is concerned are between the 2002 bill and this Bill?

Ms Winterton: Certainly we supported the broad definition recommended by the Richardson expert Committee. I think Professor Richardson was happy in general with the broad definition in the draft Bill. We changed the definition after consultation on the 2002 bill because many people felt, after the consultation, that there was a danger that definition would encompass purely physical conditions. We were obviously anxious that no-one could automatically be excluded from compulsion because they had any particular physical condition, if they otherwise than that physical condition met the other five conditions within the Bill. But it certainly was not the intention that it would encompass people suffering from, say, diabetes or epilepsy without the other psychological dysfunction as well. We were trying to make clear in the changes that it was the effect of the mental disorder rather than the underlying cause that was important. That was the change that we were trying to get through the changes in the wording. We did not think that was a substantial change, but if there is still felt - and we are still looking with our lawyers at this, to make sure that what we were trying to bring about is actually brought about by the change in wording ... I do want to assure the Committee that we are aware that people feel there might be confusion here. Our intention I think was to meet the concerns that came out of this consultation but we want to be absolutely clear with legal advice that the intention is met by the change in wording.

Q830 Mrs Browning: You mentioned Professor Richardson. She was one of our first witnesses, as you will know, and in fact she was unconvinced that there had actually been a change in the definition between the 2002 and the 2004 drafts. I know the Government has said and you have just repeated it about the psychological dysfunction rather than the underlying cause, but, through this legislation, to bring within its scope everyone who has, for example, a learning disability or an autistic spectrum disorder, whether or not they display a psychological dysfunction - and I quite accept that both of those groups could well have a genuine mental health problem overlying their condition - is surely a huge infringement of civil rights on a lot of people who would have to declare by law surely that from then on, if ever asked, "Have you ever suffered from a mental disorder?" purely by definition of their diagnosis would have to tick the "Yes" box whether they had ever seen a psychiatrist or not. I would just remind the minister, because I know she is familiar with this - we have discussed it in the context of the Mental Capacity Bill - that the Bournewood case was a classic case in point. Mr HL, whom I have met, has an autistic spectrum disorder on the more moderate to severe end of the spectrum, for whom the consequences of demonstrating challenging behaviour on one occasion resulted in him being taken into the Bournewood Hospital - and the minister is familiar with what happened then. In fact, for many people who look at what happens to autistic patients, there might well have been a much more appropriate way of dealing with that emotional outburst in behaviour, which is what it was at the time, than taking him through the mental health services. From now on, however, if this Bill becomes legislation, all of those people will be identified as mentally disordered. I wonder if the minister could let me know how she feels in terms of the civil liberties of those groups, what impact this Bill is going to have on them.

Ms Winterton: It is certainly not our intention to indicate in any way that people with learning disability necessarily have to be brought under the Mental Health Act. Nobody would be brought under the scope of this Bill unless all the conditions were met in terms of detention. We have tried, in terms of the change of wording, to clarify that that is the case. It is also true that we would not want exclusions that, in a sense, somehow created the impression that, if somebody had a learning disability but fulfilled all the other conditions, somehow they would not be able to be treated. It is for clinicians to be able to make the judgment whether an individual meets all the conditions for detention. There is absolutely no desire to single out in any way people with learning disabilities or people with autism or Asperger's syndrome but it is a question of making sure we have wording which does not exclude people but makes it clear that it is the combination of all five conditions being met before somebody can be detained.

Q831 Chairman: Could I try to distil what I think is an essential point from Mrs Browning's question. I am looking now at the definition of mental disorder in clause 2(5). Is it the Government's view that a person who is suffering from an autistic spectrum disorder, without there being any statement of an exclusion or requirement of an overlaid condition to bring them within this Act, should be defined throughout their life as suffering from a mental disorder? Because if this definition stands undiluted, then any person suffering from a condition - and we will use autism as an example - anywhere in the autism spectrum, will have to answer the question: Have you ever suffered from a mental disorder? with the answer yes. Is that what the Government believes is right or not?

Ms Winterton: I think we are trying here not to put that type of label on people, and to say that there can be a number of factors that would lead to ... I think in the Scottish Act it is called mental impairment.

Mr Sieff: The current Scottish Act I think refers directly to learning disability. The 1983 Act referred to mental impairment.

Ms Winterton: So that has been changed there. Certainly we would not want to do the type of labelling that you are talking about, no.

Chairman: That is very helpful. Could I bring in Mr Prosser at this point.

Q832 Mr Prosser: Minister, another area of the Bill where there has been a widening of application if not definition is clause 9, with regard to the conditions under which a person can be compelled to receive treatment or care. To highlight the extent to which this has been broadened, the Law Society have told us that in theory even a smoker who has tried to give up smoking and failed - you might have heard the example - could be compelled to receive treatment under the law. Although that is an extreme example, it does highlight a change in application. The danger in it being so broad, similarly perhaps to the dangers of the definitions being so broad, is that you are putting an awful lot of onus on practitioners and health care professionals to decide whether or not to apply the legislation, and that has its own dangers. What would you like to tell us about that?

Ms Winterton: There has been a confusion at present in terms of whether, for example, somebody who has substance abuse problems or alcohol problems can actually be treated. We have tried to broaden the definition so that people who require the treatment are able to get it and to remove what has been confusion in the past, sometimes by what can be taking out what is, for example, substance abuse from people who want to have treatment or we feel it is necessary to have treatment under the Bill. I did see the evidence about smokers. I would say that is somewhat of an exaggeration in terms of what we are trying to achieve.

Q833 Mr Prosser: We do not want to alarm people unnecessarily.

Ms Winterton: No, no.

Q834 Mrs Browning: Coming back, minister, just to make the point: clearly, under your own definition of appropriate treatment, the Bournewood case showed that the treatment of that autistic man was not appropriate. What is appropriate treatment in respect of personality disorder?

Ms Winterton: As you may well be aware, there are a number of projects around the country looking at people with personality disorders and what treatment can be available. Very often people with personality disorder can be helped to manage, for example, aggression, or can be assisted in terms of depression that might be going alongside it. I think it is a difficult area, because, in a sense, when we talk about personality disorder people would say, "Is there what we conventionally would think of perhaps as a 'cure'?" Obviously there is ongoing work in terms of whether that can be achieved, but I would say that there is therapeutic treatment available to people with personality disorder, not least in the management of symptoms, as I have said. I personally have met people who have said that the treatment or the care they have received has enabled them to manage symptoms and lead a better life. I do think that treatment is there. There are pilot studies going on, looking particularly at severe personality disorder, as to further treatment that is being developed.

Mr Goggins: Perhaps I could add, Lord Carlile, that it seems to me important in this Bill that we move from a test of treatability to a test of availability of treatment. Certainly the Government has not been slow to develop the kind of sophisticated intensive treatment facilities for people with severe personality disorder - a condition which in the past people regarded as non-treatable: frankly, it was in the "too difficult" box. We are putting together a programme which, if it cannot cure a condition such as that, can at least help to manage it. At Franklin Prison and Whitelaw Prison, along with Broadmoor and Rampton Hospital, we are developing now intensive programmes for 240 individuals, with step-down, medium-secure facilities and community facilities that will be on-stream later this year, altogether providing 300 places for dangerous and severe personality disorder offenders for whom we think we can really make a substantial difference. It is very important that we have shifted the focus from treatability to availability of that treatment.

Q835 Baroness Eccles: Could I pursue that, please, Mr Goggins. You referred to pilots, and also we are talking about the number of people who have severe personality disorders. I suppose it is important for us to understand at this stage the proportion of people who fall into that category to whom this would apply, and whether, by using the term "availability", this again could imply that it would be only a very small proportion of people who fall into this category who would either be able to respond to treatment or for whom the treatment would be available. It is a question of scale, I think, that I am trying to pursue.

Mr Goggins: From the assessment we made, we made a commitment to provide these facilities for around 300 people at any one time - and I might say with a substantial investment. The capital investment to provide these programmes is £85 million and the cost each year is between £40 million and £45 million. So this is a substantial investment in trying to help to manage people who in the past were simply regarded as simply too difficult to deal with. We are not talking about everybody who falls into the category of these various conditions requiring this level of interventional programme, but, for those who do need it, the facilities are increasingly there. I think professional opinion seems to be very much moving in that direction: that we can make a difference and we have an obligation to make a difference with these people who in the past were regarded as just too difficult to deal with.

Q836 Chairman: We could spend the whole meeting on clause 9, the relevant conditions. Indeed, I know that the Committee would like to raise a number of issues on clause 9 that we will not have time for. Could I draw your attention particularly to clause 9(4): "That it is necessary .... (b) for the protection of other persons, that medical treatment be provided to the patient." The Council on Tribunals has said to us that the "authorisation of compulsion for the protection of other persons in clause 9(4)(b) specifies no boundaries as to protection from what, so even protection from minor nuisance could be included," and, as a result, they suggested - and they are not a body given to exaggeration or wild statements - "mental health legislation could be used to create a sort of psychiatric ASBO, where the patient can be required to desist from specified conduct." Having read that evidence, I was thinking of some work that one of my children used to do as a mediator in big blocks of flats in South London where one tenant was complaining about anti-social behaviour from another tenant in the flat above, below or next door. I can see that sort of behaviour potentially falling within clause 9(4), whereas there are much friendlier ways of dealing with this than compulsory detention under the Mental Health Act. Do you think the addition of words such as "from serious harm" might provide for greater clarity and still meet the Government's intentions in relation to clause 9(4), the third condition?

Ms Winterton: First of all, with regard to the point about ASBOs I would say that the issue here is that the person cannot be detained unless appropriate treatment is available. To do so, and to continue detention, obviously after 28 days the Mental Health Tribunal would have to make sure that within any written care plan treatment was available. The person would have to meet all the conditions of detention and have appropriate treatment available that would be checked by the tribunal itself, so I think the idea that it could somehow be used as a controlling mechanism for sort of noisy neighbours would not really be the case.

Q837 Chairman: But why not add the words "from serious harm"? What would it diminish from your target?

Ms Winterton: Would you say again where it would go.

Q838 Chairman: Clause 9(4), paragraph (b), at the end of the paragraph "from serious harm" or words to that effect. You will note that the first part of the third condition is "that it is necessary - (a) for the protection from - (i) suicide or serious self-harm, or (ii) serious neglect by him of his health or safety ..." So there are repeated criteria of seriousness.

Ms Winterton: Right.

Q839 Chairman: Why not have parallel criteria of seriousness in relation to "other persons". I think you will be aware that this particular part of the provisions has caused a considerable amount of anxiety in the form in which it stands unamended as at present.

Ms Winterton: Yes. I think throughout the Bill we are looking to the fact that clinicians will be looking themselves at the risk of harm and they will have to make an assessment as to how serious that is. So I would hope that that would be covered there.

Q840 Chairman: I think that is a yes, is it not?

Ms Winterton: I mean will take back what you are saying and look at it.

Mr Howarth: Could I step in at that point. I think we are in danger of conducting an exercise which perhaps we should be starting to conduct this afternoon. You keep using the word "we" and I am not sure that I agree with you on this. I think, first of all, we need to be a bit more careful in our choice of language as to what we are agreed on, and, secondly, we need to be a bit more clear of precisely what it is we are here to do this morning rather than this afternoon.

Chairman: I think it is certainly in order for the Committee to ask questions of this kind, of which the ministers have had notice.

Mr Howarth: Sure, I was not questioning the order of it, I was questioning the wisdom of it.

Q841 Chairman: All right. There we are. We have had an answer. I take the rebuke on the chin but I thought the answer was somewhere near to a yes, in fact. Mr Goggins?

Mr Goggins: Chairman, could I make two or three points here. First of all, it is important to recognise that these decisions are of course taken by two doctors and a mental health professional, people who are skilled in making these kinds of very difficult judgments. But two options in terms of the legislation. One is that we do not want to bring forward in this legislation a threshold of harm which is lower than that which is contained within the 1983 legislation. We certainly do not want to do that. We do - and this reflects principles - differentiate between the level of harm to self and the level of harm to others and we place a higher threshold on the level of potential harm to self than we do to others. That is quite right and that reflects a greater autonomy to the individual, but of course we have to pay very, very urgent regard to the protection of harm to other people in society. We place a higher threshold on self than on others. We certainly do not want a threshold which is lowered as a result of this legislation as compared with the 1983 Act.

Chairman: Thank you. Mr Hinchliffe.

Mr Hinchliffe: I am not sure I want to pursue specifically what you have been looking at. I want to talk about the approved mental health professional role. Are you happy for me to do that at this point.

Chairman: Please do, yes.

Q842 Mr Hinchliffe: I wanted to raise with the Department of Health witnesses the issue of the proposal to replace the approved social worker with the different definition of an approved mental health professional. I understand obviously the background to the move in that direction with far more team work in mental health and I understand the logic. I would like to know, in evaluating the impact this will have on the operation of our future mental health laws, what steps have been taken by the department to evaluate the likely impact of this change, in particular have you undertaken any analysis of the operation of the current ASW role within the sectioning procedures to look, for example, at where the operation of that role has resulted in alternatives to a compulsory admission in certain circumstances.

Ms Winterton: We certainly have an implementation group that is looking on the workforce implications of the Bill.

Mr Sieff: We have not looked at that specific question. Because I think that would be quite a significant research project.

Q843 Mr Hinchliffe: Could you speak up, Mr Sieff. It is difficult to hear you.

Mr Sieff: I am not aware that the department has done any specific research against that question. It is certainly something to consider but it would be quite a significant piece of research. One would have to be able to develop quite a significant research protocol to identify and follow people through the system and identify which ones were diverted - I think is what you are suggesting - away from potential use of the Act. It would be quite a significant piece of costly research to undertake.

Q844 Mr Hinchliffe: My anxiety is that in making this proposal we ought to have some basis of evidence to understand that this would not undermine the protections that have existed for many years, with the ASW, and MWO prior to that, as a check on the use of compulsion where alternatives to an admission under section can be brought about. The worry I have - and this is the area where I do feel we need to raise questions - is if you have people who are working within the same team, within the same trust, albeit from different professional perspectives, involved in the sectioning procedure of one particular patient. I understand there are changes obviously in the role of the tribunal with this legislation, but does that not to some extent reduce the safeguards that are there at the present time where, certainly in my experience, the ASW can sometimes bring about alternatives to a person actually being sectioned. I would have thought that was helpful sometimes.

Ms Winterton: I think earlier on you also touched on the reality of the situation as new services develop which is that in many of the community teams you might well have a social worker working alongside a psychiatrist, so effectively if there were pressures, because I think that is what you are saying, that if you had, for example, a community psychiatric nurse who in a sense felt that the psychiatrist, because of them being in the same trust or the same team, might not want to cross the opinion of another, there might be a conflict of interest, I would just say that I do think that, because of the way that the teams work at the moment, that situation might arise anyway in terms of the social worker being on some of the new teams that we have where you might have that crossover. I would hope and certainly expect the training would be given and the safeguards in terms of the care plan and there is the fact that any patient would go before the Mental Health Tribunal after 28 days, so if it was felt that there had been that conflict of interest, it could be challenged at that time. I understand the point you are making, but what I would say is that I would hope that we would be able to ensure not only through things like the codes of practice, but also principles of least restriction and so on that you would not get that kind of effect.

Q845 Mr Hinchliffe: Without wanting to denigrate nursing colleagues, it is certainly my view that you are more likely to have a nurse agreeing with a doctor in such circumstances and the CPN agreeing with the doctor possibly than you are in some instances a social worker by the nature of the relationship between those professionals. We have got a nurse on the Committee, so I am treading very carefully here because she is a very tough lady! I had better leave at this point, Chairman! I think the Minister understands. I do not want to over-generalise, shall we say, but I think you understand the point I am making.

Ms Winterton: Yes.

Chairman: Do you want to add anything, Laura? If looks could kill, you have just killed Mr Hinchliffe!

Q846 Laura Moffatt: Absolutely. It is a view that has been offered, but I do not share it of course, naturally I do not. I do not believe that nurses are in the pockets of doctors. They are independent. Nursing is a completely different profession than it used to be and it is not something that I think we need to consider as a problem.

Ms Winterton: I also understand that the Association of Directors of Social Services have felt that the new role would be effective and that there should not be those kind of conflicts. I feel fairly confident that what is being devised will be effective, but obviously that is evidence which you have had.

Chairman: Well, can we move on now to the very important and discrete issue of interface with the Mental Capacity Bill.

Q847 Lord Carter: Minister, when you wrote to us on 6^th January, you said that, "It is to avoid...inflexibility that we want to preserve discretion for professionals to decide when compulsory treatment under the Mental Health Bill is to be preferred to treatment in a patient's best interests under the Mental Capacity Bill". We have had evidence from the Mental Health Commission who said, "It would be possible for a compliant incapacitated person to be treated under either Bill even though the lack of capacity might be due to a diagnosed mental illness which falls squarely within the definition of mental disorder under the Mental Health Bill". Would this not lead to considerable confusion in practice with different professionals diagnosing a different treatment and, although the Committee understand the Government's wish to retain flexibility, is there not real room here for confusion?

Ms Winterton: Well, I know it is an extremely complex area. We did try previously to see whether you could make a more rigorous distinction, but in fact if we are to make sure that we have, first of all, clinical discretion in terms of where an individual might be treated, I think we do need that flexibility and, secondly, with any more rigid interpretation, I think the difficulty might be that you would find people who perhaps did not have capacity, but who for perhaps a short period might resist treatment which might not necessarily be due to a general resistance, but perhaps, for example, being in unfamiliar circumstances where they might be indicating that they did not want treatment. Now, if you were to say, "Well, what we'll do is treat all those people under the mental health legislation", the difficulty that I think would happen is that relatives, carers or organisations might feel that because there can be stigma obviously associated with being compulsorily detained, actually that might be an inappropriate response. Therefore, whilst I accept that it can be complex, there may be different times when the different Bills apply and I think that we do have to be clear that there are decisions taken already that can be quite difficult, but clinicians do do it. We will obviously through the code of practice and the code of practice in the Mental Capacity Bill be trying to tease out or give some examples of how people might be involved in those different decisions. I do not know whether you would find it helpful for Professor Appleby to add anything at this point in terms of the two.

Professor Appleby: I think that is absolutely right. I think these are decisions which clinicians already have to make in relation to different routes of handling complex problems. One analogy is with the current mental health legislation and child protection powers where, when you are faced with someone with mental illness who also has parenting responsibilities, you do have to decide where the balance lies, what is the right route to help people in that predicament, so clinicians are used to saying, "Well, this is more appropriate to mental health legislation", often because of the severity and the risks associated with mental disorder, or, "This is more suited to a different route which in this case is about protecting children". I think that kind of balanced decision-making is already part of medical practice.

Lord Carter: On the subject of the use of the two Bills, the Mental Capacity Bill and perhaps the use of the new Mental Health Bill, it brings us to the Bournewood gap which has been mentioned already. It would be helpful to the Committee, I am sure, if the Minister could tell us how far the Government is on its thinking about how to close the gap and I would be interested in the Minister's response to a suggestion I made when we debated the Second Reading of the Mental Capacity Bill. I think you all understand the problem that the Government faces of the type of consultation, whether it has to be done through legislation or through guidance, and of course the resource implication. Would it be possible though to place on the Mental Capacity Bill a clause which sets out the criteria for treatment in dealing with a compliant incapacitated patient and link that to an order-making power? If your consultation and legal advice shows that you do not need to go down the route of legislation and you can use the order-making power, you have got the criteria there and if you do need to go down the route of legislation, you can then use the order-making power and you would then give the Government some time to consider how to deal with this.

Q848 Chairman: Before you answer the question, I think it is right to thank you for all the trouble that has been taken and the time that has been taken by you and your staff in responding to issues on this point. I think I speak for the whole Committee, at least in the absence of Mr Howarth, when I say that the Committee has found it genuinely very difficult to get our heads around the reconciliation of this issue.

Ms Winterton: I think it is a very fair point and something that we are looking at as to whether that could be done. There will be difficulties in a sense as to whether you could frame something that would be wide enough to allow the scope that we might perhaps need. We will be issuing the consultation on the Bournewood issue fairly shortly and obviously there will be a three-month consultation period during that time. We are very aware that if primary legislation is needed, and we increasingly think that it probably will be, a vehicle for it could well be the Mental Capacity Bill, but it is really a question of whether we would be in a position to be able to include enough in any amendment to enable us to make the necessary changes later, but it is something that we are looking at actively.

Q849 Chairman: Can I ask you what the Government's view is about advance statements in the context we are discussing? I know it is a very difficult issue, but why has the Government decided not to include provisions for advance directives or advance statements in this Bill?

Ms Winterton: Well, there are two things that I would say here. The first thing is that I do believe that it is extremely important that if individuals do make statements about the type of treatment that they wish to have, clinicians should take that into account. I personally think it is very important in this field because of the sensitivities around the different treatments that can be available. However, at the same time obviously this Bill is about providing a framework where people are resisting treatment, therefore, it is also the case that there will be times when clinicians will override perhaps what an individual has said they want in terms of treatment or which they will refuse in terms of treatment. Whilst I think there is a principle here where, as far as possible, even when somebody is under detention, if they have made known previously the type of treatment they prefer, that should be taken into account, I also have to say that because this does deal with the very difficult issue of giving treatment where people say they do not want it, there is naturally a conflict there in terms of advance directives.

Chairman: Can we move on now to Part 3 of the Bill and the question of offenders. Perhaps before I ask Baroness McIntosh to ask the first question on this, it might be useful if I just gave you a snapshot of some of the evidence that we have had. Some of the hundreds of people who have contacted us have found it difficult to get their heads around Part 3, complaining that it is pretty hard to follow and that seems to result in some measure from the fact that some of the rights of Part 2 patients are given to Part 3 patients by Schedules 5 and 8 and these provisions make the rights of Part 3 patients extremely difficult to ascertain and in that respect the Bill is not particularly user-friendly, so it is said, and people have found it hard to follow, as the statement I have just made may have made self-evident. Perhaps that is just a preface that you might like to bear in mind which I think is merely a mirror image of some of the evidence we have had.

Q850 Baroness McIntosh of Hudnall: Well, the question or questions I want to ask may also evidence the fact that I struggle to understand some of what is in the Bill currently, so forgive me if it does not come over as clearly as I would like. We are talking here about the tricky business of mentally ill offenders. The first issue I want to raise with you is that the Royal College of Psychiatrists have submitted to us some anxieties about the way that hospital directions arise in the draft Bill and they have said that they are concerned that this order, the hospital direction, may supplant the mental health order and this may, they say, undo the hitherto enlightened legislation in England and Wales which took the view that mentally ill patients should not be subject to punishment when they meet the criteria for detention under the Mental Health Act. The first question I wanted to ask both Ministers, if they would be good enough to answer, is whether they support the principle that mentally ill offenders should not be subject to punishment when they meet the criteria for detention under the Mental Health Act, and if you do support that principle, why is the power to make hospital directions needed given that the Bill already contains powers to transfer patients from prison to hospital for treatment? I would like to be rather sneaky and add in another related, though separate, question which is to do with the relationship between the conditions that have to be met for mentally ill offenders to be detained under the Act as against the conditions that need to be met for mentally ill patients who have not committed an offence. The obvious difference between the two is that the criteria that need to be met for mentally ill offenders do not include the reference to risk to other people in particular or risk to themselves. Now, I wonder if you have any comment for us when it comes to the discharge of mentally ill offenders as to whether or not they meet the criteria under clause 147 that apply which do not include reference to risk as opposed to the criteria under clause 9 which do, given that these may be, and I am talking about restricted offenders now, some of the more dangerous or risky people who might be subject to compulsion.

Paul Goggins: Perhaps I can begin and perhaps, in doing so, I could share some of the pain of members of the Committee because this is extremely complex territory and I think that those who have made submissions to you are quite right to point that out, but it is our duty of course to try and work through this. In relation to the first question of hospital directions, this of course is a power that is there at the moment and very little used. At the moment there are just 21 people in the country as a whole who are subject to a hospital direction and we do not expect under the new system that the hospital direction will supplant the mental health order. Our intention is to provide the widest possible range of disposals for the court and we expect of course in most cases that they will use a mental health order either to detain somebody or indeed to see them treated in the community, and that is something we very much support as a progressive move enshrined in this Bill, that more mentally disordered offenders can be dealt with in the community in the future under mental health orders. However, there may be some individual cases, some difficult cases, where the court feels that a hospital direction is the most appropriate disposal in a specific set of circumstances. Of course such a direction does have the advantage of meaning that the offender would go immediately to hospital to receive the treatment and then subsequently, when recovered, would go into prison rather than the other way round and it would give some immediacy to that treatment. Of course we continue to ensure wherever possible that people are transferred from prison where that is necessary, but it would give the court the power to ensure that that treatment began immediately, but nonetheless that the individual was transferred to prison subsequently.

Q851 Baroness McIntosh of Hudnall: Can I just be clear about that because I think this is quite important. The implication, Minister, of what you have said, if I have understood you, would be that, for instance, somebody who had been convicted of an offence and suffered from a mental illness might be committed to hospital to be treated for the mental illness on the basis that, once recovered from the mental illness, he or she should then be returned to prison to serve the sentence. The implication of that would be that there was not a relationship between the mental illness and the offence because if there were a relationship between the mental illness and the offence, then it would be the Royal College of Psychiatrists' anxiety that somebody who had committed an offence because they were ill was being punished when they should be treated.

Paul Goggins: I simply say in response to that that the world is not simply black and white and that there are some difficult decisions to make between the two. This provides the court with the opportunity of having a disposal which could reflect those rather difficult circumstances where there perhaps is a grey area and a difficult judgment to be made, but which ensures that the individual gets the treatment, because we are absolutely committed to making sure that mentally disordered offenders do get the treatment, but where the protection and indeed the punishment is provided in relation to the prison sentence as well. I do not deny that this is a tricky area. We do not expect it to supplant the mental health order. We do expect this to be scarcely used, but we want to leave it in because it may be in certain circumstances the most appropriate way to dispose of the particular case.

Q852 Chairman: Those who sit as judges, and I occasionally do myself, express a degree of frustration, Mr Goggins, at the fact that they sometimes have obviously mentally disordered offenders in front of them for whom there is no apparent psychiatric disposal available. Now, this is not a new problem and this is not a criticism of this Government at all because it has been for ever during my 30-something years practising criminal law, but do you feel that any progress is being made in resolving that situation so that more mental health disposals will be available to reduce, in some cases, up to 50 per cent of prisoners in prisons who are suffering from mental illness?

Paul Goggins: Well, I explained before what we are doing in relation to the dangerous and severe personality disorder facilities and, along with investment from the Department of Health who of course will largely be responsible for the healthcare generally in our prisons from April of next year where most prisons will have an NHS service run by the NHS within them, we have put in place 300 additional psychiatric nurses now working in the prisons to deal with the 5,000 or so people in the prison system today who have a serious mental health problem. Of course we have to provide that route through from prison to hospital for those who need it and last year 844 people in prison were transferred across into hospital. Is there sometimes a delay in that transfer? Yes, there is. There can be at any one time around 40 people waiting, but we are determined to make sure that we continue to reduce that number and make sure that the capacity is there to deal with those who have a mental health problem. Absolutely crucial to this also is that what we do not want to see are people with a mental health problem going to prison because they have got a mental health problem. We want to be able to deal with people appropriately in the community and we are taking powers in this Bill, but increasingly of course through the Criminal Justice Act 2003 it will be possible to provide community sentences with mental health treatment conditions attached which will mean that people will not be imprisoned, but will be at home and in the community.

Q853 Chairman: Could I just ask you to deal specifically with Lady McIntosh's question as to what is the reason for the apparent discrepancy between the criteria for discharge for mental health order and restriction order patients?

Paul Goggins: I will do my best, Chairman. Clearly there are differences and the Committee will be familiar with the fact that where there is no restriction, then once the Mental Health Tribunal indicates that the person is better, then they can return to the community, and for restricted patients the Home Secretary retains powers there. Of course one of the important things to emphasise is that where restricted patients are conditionally discharged into the community, at the moment there is continuing supervision of their condition in the community and where they deteriorate, they can be recalled into hospital and indeed at the moment around three patients a week are recalled into hospital because of their deterioration and all of those decisions are sanctioned by me and I see each and every one of them on advice from officials. Therefore, I hope that I can reassure you that this is an issue that is taken extremely seriously indeed and people are followed through in that way.

Q854 Baroness Eccles of Moulton: Ministers, this next question is a follow-on from the question that Lady McIntosh has already asked and is to do with Part 3 and offenders. It does appear that the theme of safeguards for the patient which runs very strongly through the Bill is somehow being weakened in this particular proposal. Under Part 3, courts will not be needed to be satisfied that treatment is necessary to protect patients or other people and the courts will not need to be satisfied that compulsion under the Bill is the only way to treat the patient. This is manifested in the point that expert panel assistance will not be deemed to be necessary, only advisable, and also that the Mental Health Tribunal will no longer have an essential input into the decision that is made for compulsion for the offender. Therefore, it would be helpful to us if you could please elaborate in more detail on the rationale behind removing the criteria of risk from the conditions for compulsion under Part 3.

Paul Goggins: I hope, Chairman, I can offer some reassurance to the Committee here because it is precisely to improve the opportunities for treatment that this condition has been removed. If we left in the condition that it was necessary for the protection from harm, then it could be argued that simply by removing somebody from the community and placing them in prison, you have removed that risk, but they do not get the treatment. In removing this, what we want to make sure is that the proper judgment is made as appropriate with the conditions as set out here, that people get the treatment that they need and that that treatment cannot be compromised by the fact that the risk has been removed because they are in prison and not getting the treatment that they urgently need, so this is a very positive step to make sure that actually more people get treatment rather than being simply seen as disposed of and that we are protected from them by their removal into prison where they may not get the treatment that they actually need. I hope that is of some reassurance.

Q855 Baroness Eccles of Moulton: But they are presumably given the opportunity to accept the treatment voluntarily before the compulsion criterion is put into operation?

Paul Goggins: Well, indeed we know that it is very important that people have this opportunity voluntarily to participate in treatment wherever that is appropriate and that is true throughout the Bill. However, we have to face the fact that sometimes that voluntary commitment cannot be relied upon actually to provide the protection that is required, that people may agree with the best of intentions and then not be able to sustain their commitment to the treatment, or they may be more devious than that and see that perhaps by voluntarily agreeing to treatment, they actually circumvent the judicial process, so we do have to be very clear and very careful here that whilst we would always prefer to see people having treatment on a voluntary basis, they are simply too much of a risk in allowing that, as it were, to countermand the other conditions in the Bill.

Q856 Baroness Eccles of Moulton: Does that mean that if you are an offender, you will be compelled to receive the treatment regardless of whether you are capable, willing and able to receive it voluntarily?

Paul Goggins: Well, all of the conditions will apply as set out in the Bill to offenders and elsewhere in the Bill to non-offenders. It is not simply one condition, it is a whole series of conditions which includes whether they have a mental disorder, whether it is so serious, whether the treatment is available and so on, so all of those conditions would need to be satisfied.

Q857 Chairman: Are there examples of the Home Office rejecting risk assessments made by professionals and substituting its own estimates of risk in relation to discharge?

Paul Goggins: Clearly the judgment about discharge is made by the Mental Health Tribunal and the Home Secretary can make representations at that point, but in the end it is for the Tribunal to decide. What we then do of course, and this is partly the answer to the previous question, in partnership with those in the mental health field is to supervise and to monitor those particular individuals and where there is deterioration, where they then become once again a risk to the community, then it is of course quite appropriate that they can be recalled. As I explained, there are around three a week who are recalled and I endorse every decision.

Chairman: Can we move on now to what you rightly referred to as the very important issue of community treatment orders.

Q858 Baroness Pitkeathley: You have mentioned treatment in the community several times and you will not be surprised to know that we have received a lot of submissions that are hostile to the principle of community treatment orders, and not just hostile, but also very anxious about how these would work out. We understand that some of that is because some of it is left to regulation and we have not yet seen the regulations, but of course service users are naturally frightened that this might lead to compulsory house arrest virtually, if you see what I mean, so has the Government now formed a clearer view of the categories of people to whom community treatment orders might apply, what would be their characteristics and, if you have, how would you feel about imposing certain defined parameters on the Bill to prevent misuse of these community treatment orders?

Ms Winterton: Perhaps I could just start by saying why I think that community treatment orders are an important aspect of this Bill. It starts from the fact that service provision has changed considerably in recent years. We do have out in the community crisis resolution teams, early intervention teams and community mental health teams, and it is quite clear that this legislation is based as well on a principle of least restriction. There are instances where people, we believe, can be more effectively treated, even if under compulsion, in the community. That can, first of all, in fact aid recovery frankly if people are not necessarily in the rather restrictive environment of a hospital, it can help in terms of relationships with families and carers, it can reduce stigma because for some people there is stigma associated with being an inpatient, and it can allow a continuity of a person's life insofar as it is possible to do so in what are obviously very difficult circumstances for an individual. That is the principle from which we would work here. Now, after the consultation that we undertook in the draft 2002 Bill, we did look at this very closely and I certainly accepted that there was unease about the idea that somehow people could come under compulsion in the community and would be sort of assessed in the community and that might make it easier to put many more people into detention. Therefore, what we have said in the changes that we have made is that for the majority of people, community treatment orders will be preceded by an assessment in hospital. However, there are ----

Q859 Baroness Pitkeathley: Can I be clear - an assessment in hospital while they are an inpatient?

Ms Winterton: Yes. However, there are groups of people, perhaps what we would call "revolving door patients", who we know will perhaps at the moment be detained in hospital because that is the only place they can be detained at the moment, so they will be detained in hospital, will go into the community, will relapse for one reason or another, whether it is not taking medication or whatever, and then will be readmitted into hospital. We know from discussions and consultation that we have had with people in those circumstances that if there was an element of compulsion that could be carried out in the community, they would respond to that and it would be more appropriate for their care. I am also very aware, through the discussions I have had and meetings I have held, for example, of carers who have said that their relationship with their son, daughter, husband or whoever has been completely broken because there has been only the ability for somebody to be detained in hospital and that has meant that the person they are caring for has felt that their mum has kind of detained them in this way away from home and the effect that that can have on families and on individuals is enormous. They have said that if there can be a different type of treatment available, that would be better all round, so I think we do have to reflect on what are the possibilities that we now have with current service provision. In terms of the other ways then that community treatment orders might work for the kind of revolving door patients where we would say, "Look, you are at a crisis point", and actually we know that if we can say, "You have to turn up, take this medicine and come to the clinic or be available when the psychiatric nurse will call", then that person does not necessarily have to be immediately assessed because they know they will have had a previous assessment within hospital, then we will be consulting on the kind of time limits that you would put on that, so that is one case. There may well be cases where I would use perhaps the analogy of somebody who comes into hospital for a short period and who has not been perhaps detained before, but is assessed for the detention, but then again there is somebody within a care plan where we are returning the person to the community because there is somebody there who will care for them and we believe that once they are in a sense stabilised, although it is still necessary for compulsory treatment in order to ensure that medication is taken, et cetera, or so that treatment can be given, it is appropriate for that person to be within the community. At the same time in terms of the idea of kind of indefinite house arrest, first of all, the Mental Health Tribunal has to look at what care is being offered and that does have to be therapeutic and available, and given that we have a principle of least restriction, it would be very difficult to think that the Tribunal would feel that detention at home for a long period would be (a) least restrictive and (b) therapeutic, so there are the safeguards there to make sure, and these are reviewed at regular intervals, as you know, that a person would have the right to apply to the Tribunal to say that they felt that the care plan, the requirements and the restrictions which were being put were inappropriate.

Q860 Baroness Pitkeathley: Does that mean that you think that the existing preventions of misuse of community treatment orders which you have just outlined are adequate, in your view, or do you think there is a case for putting specific parameters around it?

Ms Winterton: Well, I feel at the moment that the added safeguards that are in the Bill would allow challenge to community treatment orders if it was felt that they were being misused, but we would be looking obviously through the code of practice to make sure it was very clear that the idea of indefinite house arrest would not be considered, but I would find it astonishing that clinicians would want to put something in a care plan which involved that if there was not for one reason or another an extremely good reason for saying that it was felt that a person ought to remain in the home.

Q861 Chairman: Professor Appleby, you look as though you want to add something.

Professor Appleby: Just perhaps to emphasise what the problem is that this measure is trying to tackle. We have an unacceptable situation at the moment where people with quite severe illnesses who have had a history of frequent relapse and frequent admissions associated with high risk resulting from lack of treatment are allowed to continue that pattern because there is no power to ensure that treatment is delivered. I think that is putting patients unnecessarily at risk and it is putting clinicians and the patients' families in a very difficult position. Therefore, this measure is there to target that group of people, the revolving door group. The main use, I suspect, will be at the time of discharge from one of those frequent admissions, so a person gets to perhaps their third admission in a year and everyone realises that another admission is inevitable unless some additional steps are taken, so a community treatment order is the next step. Now, other ways of making it clear that that is whom we are targeting this measure for, I think that is what we have to address and my understanding is that that can be done in the regulations, so there is a way of trying to say that this is primarily for the revolving door patients who are already subject to frequent periods of treatment under compulsion.

Q862 Mr Howarth: I think if would be helpful if the Ministers could confirm that the choice that will be exercised with the community treatment order is not between liberty with no restrictions and a community treatment order, but the actual choice is between a community treatment order and some form of detention.

Paul Goggins: Indeed, and particularly from the point of view of the mentally disordered offender it will mean greater liberty, not less liberty, but the choice will be between a safe programme of treatment in the community as opposed to being in prison or being in hospital. That will be the choice and very clearly those people, and we estimate there may be 200 or 300 people who at any one time would be liable to this kind of treatment in the community, all of those people, if they were not being safely managed and treated in the community, would either be in prison or in hospital, so this is a progressive move, but it is not a move that is done without proper supervision and proper treatment. All of these people will receive that, as indeed they would have had to have satisfied all the conditions, the treatment will have to be available and it will have to be provided.

Q863 Mr Howarth: The second point is that there have been a number of very high-profile cases and two I can think of which have resulted in somebody being killed where somebody had previously been receiving treatment while under some form of detention and then they were released because there was no other avenue available to, I think in both cases, the Mental Health Tribunal, which I have in mind. What assurances can you give the Committee that that category of person will not, while under a community treatment order, be at large to have an episode and to kill somebody or perhaps a bit less than that?

Ms Winterton: I think there are two things here and I do not know whether Louis might want to add something in the sense that clinicians do make assessments about risk and obviously within the Bill that remains, that the risk factor is something that they have to take into account. Certainly we would be expecting clinicians to be very clear in terms of who could be given a community treatment order, that, as far as is humanly possible, this would clearly not be people who were at risk either to themselves or to others at the time of being treated in the community. There is also the fact that in the Mental Health Tribunal it is possible for the Tribunal to reserve to itself decisions on discharge and this might particularly be where the Tribunal had worries that perhaps somebody had been previously discharged and they had felt that it was not necessarily appropriate, so that remains within the Bill. On a slightly wider point and going back to your previous question, one of the points that struck me very forcefully during the course of consultation was that there are people who have spoken to me who had mental health problems and who in the past had been detained who have said that there are circumstances they have undergone whereby they have been told, "Take your medication, turn up here and follow this pattern of treatment. If you do not, you will be detained in hospital", and there have been people who have said to me that the important point about this Bill is that what it actually does is give a number of people actual safeguards around that because that person in those circumstances would have the Mental Health Tribunal look at their care plan. In a sense what they have said is that there is a kind of informal sometimes way of treating people that does put that onus on them, but that what this does is in a sense give people the ability to remain in the community, but safeguards if they are not happy with the treatment.

Paul Goggins: Could I just add that the provision of the community treatment order would be very similar to the way that we operate restricted patients who have been conditionally discharged into the community and I explained before about the level of supervision there. If anybody deteriorates or refuses to co-operate or becomes a substantial risk again, they can of course then be recalled, but I hope that will be some reassurance to Mr Howarth and the rest of the Committee that whilst there are sometimes stories in the newspapers that grab the headlines, in fact the reoffending rate for restricted patients who are in the community is but 2 per cent, so I think that is an indication that we can manage these risks effectively.

Q864 Mr Howarth: But the risks can be enormous in that 2 per cent of cases.

Paul Goggins: They can and that is why we will of course need to operate these orders very rigorously indeed.

Hywel Williams: In the first answer, Minister, you said that bringing community treatment orders in was enabled by the fact that there are now good community services. It has also been put to this Committee that such services in Wales are very far behind the services in England, and in fact the National Service Framework in Wales might be perhaps 40 years behind its application in England. Is that your understanding as well? If so and if community treatment orders are such a good thing, do you envisage that they will be used in Wales to the same extent and also what are the implications as to the equity of access, which would be a very good thing, for people from Wales?

Q865 Chairman: I see a hospital pass coming on!

Ms Winterton: Well, obviously I think that some of those questions will be addressed to the Welsh Board and Welsh Ministers. I do not know whether Louis ----

Q866 Chairman: That is the hospital pass answer!

Ms Winterton: Louis has recently analysed the services that are available in England and I do not know whether during the course of that there was any indication of the differences that there might be. I am sure that extra money is being spent in Wales on the provision of services and that they have a similar approach to us.

Q867 Chairman: We have taken evidence in Wales. Did you want to add anything, Professor Appleby?

Professor Appleby: I wanted to say that the Mental Health Act is of course no substitute for having good services and we have tried to establish services which support, with intensive community care, the people who are most vulnerable and very often most at risk. However, the Bill will give community mental health teams an extra authority, an extra power, an extra ability to support people and treat people who are at risk. Whatever your service, it will be, I think, a beneficial addition to what you can provide.

Ms Winterton: Also I think it is important to remember that the Tribunal will have to be satisfied that services are available, so if services were not available within the community as set out in the care plan, then I think there would have to be a rethink as to how the care plan had been devised.

Tim Loughton: Can I just ask a quick theoretical question and this is to Mr Goggins primarily. Who is more dangerous in your perception - a patient with a moderate mental health illness who is declining to accept treatment or a patient who has been diagnosed HIV-Positive who is intent on having consensual, unprotected sex without revealing his condition to a partner?

Q868 Chairman: I am not sure that is fair. I think I am going to protect the Ministers from that question!

Paul Goggins: I am happy simply to say this: that it is an impossible question to answer. Both people can provide a risk and that risk needs to be managed.

Q869 Chairman: I think what we would say is that the question was a very good one, but the answer is too difficult to give.

Paul Goggins: It is an impossible answer to give because they both present different challenges and different risks. Those risks need to be assessed and they need to be provided for, but to compare one risk with another is impossible.

Q870 Chairman: We are no longer quorate, I am afraid, so can I thank you for your care and attention to the questions this morning. Once again can I thank you both, particularly Ms Winterton, for the huge amount of material that you have submitted in response to issues that have arisen during the course of the Committee's deliberations. We are really grateful for the way in which the Bill team have ensured that we have received responses on issues of difficulty as we have gone along. Thank you for coming this morning.

Ms Winterton: Thank you very much.