Health Committee - Minutes of EvidenceHC 584

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Oral Evidence

Taken before the Health Committee

on Tuesday 26 February 2013

Members present:

Mr Stephen Dorrell (Chair)

Rosie Cooper

Andrew George

Barbara Keeley

Grahame M. Morris

Andrew Percy

David Tredinnick

Dr Sarah Wollaston

________________

Examination of Witnesses

Witnesses: Alison Cobb, Senior Policy and Campaigns Officer, Mind, and Chair, Mental Health Alliance, Simon Lawton-Smith, Head of Policy, Mental Health Foundation, Dr Julie Chalmers, consultant psychiatrist, lead on Mental Health Act, Royal College of Psychiatrists, and Naomi James, National Survivor User Network, gave evidence.

Q1 Chair: Good morning. Thank you for joining us this morning. This is a relatively new form of inquiry by a Select Committee, looking not at what the effect of a piece of legislation is going to be but at what the effect of a piece of legislation has been, five years after it was passed, in order to try to draw out some of the experiences that we should recognise and to inform policy for the future. It is an important part of this Committee’s work. Welcome to this session. Can I ask you to begin by introducing yourselves briefly to us?

Alison Cobb: Hello; my name is Alison Cobb. I am the senior policy and campaigns officer at Mind, the mental health charity, and I chair the Mental Health Alliance.

Simon Lawton-Smith: I am Simon Lawton-Smith. I am head of policy at the Mental Health Foundation.

Dr Chalmers: I am Dr Julie Chalmers. I am a consultant psychiatrist. I am the specialist adviser on mental health legislation to the Royal College of Psychiatrists.

Naomi James: I am Naomi James. I work for NSUN-the National Survivor User Network.

Q2 Chair: Thank you very much. I would like to open the questioning by asking you what you think the impact has been of the change in the test under the 2007 Act, which introduced the test of "appropriate treatment" rather than "treatability". I remember that when I was Secretary of State I was told that there was a very small group of patients for whom compulsory treatment would be in their and society’s interests, but for whom that was felt by some professionals not to be possible within the current legislation. Has that problem been addressed by this change of wording in the Act? Have there been any other changes that you would like to draw to our attention?

Dr Chalmers: It is a very interesting question. As you know, it caused considerable debate at the time. From the psychiatric perspective, certainly, there was a lot of concern around preventive detention. As you say, that change focused on a very small group of people with antisocial personality disorder. I think that it has had very little impact on the practice of psychiatrists, perhaps because the approach to personality disorder is going to be shaped not particularly by legislation but by new initiatives and other treatment methods. Putting that to one side, has there been any impact? I can really give you only anecdotal evidence, from talking to my colleagues in the forensic faculty. They would say no. Some hard evidence I might be able to give you would be to look at the rates of admission under part 3, which relates to admissions from court under the Mental Health Act. The figures suggest that, unlike civil detentions under sections 2 and 3, where there was a rise of 5% last year, we are seeing a kind of static picture. There has not been an explosion in this group of people-acknowledging, of course, that it was a small group. So, as far as we can tell, there has been no significant impact.

Q3 Chair: Was the change motivated specifically by that concern about people with personality disorder, or was there a broader policy reason for changing the test from "treatability" to "appropriate treatment"?

Dr Chalmers: I was not part of the alliance at that point. Alison Cobb, who was, may be able to answer that for you.

Alison Cobb: At the time, there was certainly a discourse around public protection. I think personality disorder was part of that, but there was a more general feeling that there might be people who, in some sense, should be treated who might not be able to be detained if there were not some more flexibility over the definition. Of course, I am now speaking to the policy intention behind the legislation. As the Mental Health Alliance, we would tend to assess the impact by the alliance’s values and the ambitions that we would have had for legislation. However, I think the policy intention behind the Act was around a sense of having to ensure that people could be detained if that was felt to be necessary.

Q4 Chair: There have been rising numbers of detentions. Why is that? Is it true that people have been detained under the new Act who would not have been detained under the old Act, or is it simply a rising incidence of conditions?

Alison Cobb: As Julie said, leaving aside community treatment orders, which are, of course, new-

Chair: We will come on to them.

Alison Cobb: Leaving those aside, I do not think there has been a particular change in the reasoning and the clinical decision making. There are quite a lot of reasons that could help to account for the rise in detention, which concerns us very much.

Dr Chalmers: As I said before, the main rise in the number of detentions is under part 2 of the Act-people coming under section 2, which is the assessment section, or section 3, for treatment. In fact, there has been a subtle change in the balance between sections 2 and 3, with more section 2s occurring and the number of treatment orders under section 3 dropping. Overall, since last year there has been a 5% increase. That has to be concerning to all of us, because the trend is for the number to rise, although I think it is flattening out a little bit.

The interesting question is: why is that occurring? I do not think there is a simple answer to that. There are complex reasons, and different factors may operate in different areas. However, the one bit of research evidence that we have, which would certainly chime with professional experience, is a study in 2011 by Patrick Keown and colleagues in Cambridge, which showed that there was an association-I am not saying that this is a causal link-between the reduction in bed numbers and, in the next year, an increase in involuntary admissions. Beds seem to be part of this story. The CQC presents a very powerful argument in its most recent report outlining what it is like on some psychiatric wards. It recognises that there is good practice in some areas but also highlights one of the key things for me as a practitioner-the fact that bed occupancy is extremely high. In over 50% of the wards that the CQC surveyed there was more than 90% occupancy. You might think, "Well, there is 10% leeway," but you need quite a lot of wiggle room in order to move people in and out of hospital. In around 15% of hospitals surveyed, I think, the wards were 100%-plus occupied; there was a report of 27 people in 19 beds. That has the effect that the concept of a stitch in time-a voluntary admission to prevent deterioration-is no longer open to us, because there is so much pressure on the beds. You have to be very unwell before we would think about bringing you into hospital.

Again, the CQC reports discussions with AMHPs-approved mental health professionals-that suggest that, in some areas, being detained is the ticket to getting a bed. Even worse, there are cases where people have been detained under the Mental Health Act but no bed has been found. In fact, there was a case that went to the European Court in which somebody was left in a police station awaiting a bed. That was found to amount to inhuman and degrading treatment. So there is an issue around beds. I think something about the reduction in the number of beds and the nature of the in-patient experience is having some impact on the increasing rates of detention.

Q5 Chair: The implication of what you are saying is that, on occasion, people are being sectioned because it is the only way of getting them into hospital.

Dr Chalmers: People are saying, "We don’t want to come into wards because they are overcrowded." Because people are very unwell, they can be very disturbed environments. Again, the CQC highlights that, while there is good practice in some areas, on some wards there is little access to psychological treatments or even to meaningful occupation in the day. I know that Naomi can expand on that for you, if it would be helpful.

Naomi James: I think there are a number of different reasons for the increase in detention. Last year NSUN conducted a member survey that revealed that 11% of our membership of community groups and peer support services had been cut. That was not including those that had actually been closed. People felt that there was a real reduction in their quality of life. They saw being in hospital as an absolute last resort, because of the deterioration in quality of care. That is in addition to evidence such as the national study by King’s college that over a third of approved mental health practitioners are under high stress, have low job satisfaction and, indeed, meet criteria for depression themselves.

There are a number of different factors. NSUN itself has produced a report on care plan approach, conducted by Dorothy Gould. That was particularly interesting. It revealed that, essentially, people felt that in their experience of CPA the choice and control that were promised by the cross-Government strategy "No health without mental health" and parity of esteem were not being achieved. Choice and control have been recognised as a major component of getting well. The value of people being involved in joint care planning for risk and for when they reach crisis has been proven, but that is still not happening on the ground. A lot of the people who are seeking help before it gets to that stage are finding that, to quote them, it is actually a system of neglect. Largely, our membership is finding that people are being turned away again and again. There is no access for 18 months to things like therapy.

Equally, the IAPS programme is failing. It is being reported that people are having to wait longer than 28 days: we are talking two to three months. In addition to not having that support, when people phone their AMHPs they are usually told, "The only option for you is to go to A and E." If that is the only thing available in medication, I think things will get worse. One of the key things that I would like to bring up is the fact that the East London NHS Foundation Trust, with which we are working, needs to, and is striving to, move people from secondary to primary care. Of course, discharging 900 patients across the commissioning cluster will have a significant impact, and readmission rates may continue to increase over the time.

Q6 Chair: We are primarily interested here in readmission rates under compulsion. Do you have statistics on that?

Dr Chalmers: I do not think that the Information Centre reports on individuals being readmitted, but it is a critical figure.

Q7 Chair: Are you saying that it is critical but not available?

Dr Chalmers: I would have to double-check with the Information Centre on the data that it produces. It may be somewhere in one of the tables. We will have to come back to you on that one.

Q8 Chair: It would be worth reviewing, particularly since you describe it as critical.

Dr Chalmers: In terms of evidence with regard to that, my experience as a clinician is that people have to be more unwell to go in and, because of the bed pressures, are less recovered when they go out. This is something that the CQC is highlighting when it reviews a range of services. However, I cannot quote the figures at the moment.

Simon Lawton-Smith: If I may interpolate quickly, we do know readmission rates for people under a community treatment order, because they are actually counted as the community treatment order is revoked and people are returned to hospital-to a hospital bed, not just for treatment-and then sent out again. About 25% of people discharged under a community treatment order end up having their community treatment order revoked and go back into hospital. However, that is that particular cohort, not all people discharged.

To pick up the point you made earlier about whether there has been an increase in incidence or prevalence rates of severe mental disorder, which is the sort of disorder that might mean that somebody had to be sectioned under the Mental Health Act, the answer is no, as far as I am aware. We are not looking at an increased cohort in the country of people with a psychotic illness-a diagnosis of psychosis or bipolar disorder. What we are looking at is people who may have been in the community, for whom beds were available when they became unwell, but for whom beds are not now available. The threshold for admission to hospital has also risen, so people are that much iller before they can get into hospital.

Q9 Chair: But there is a third explanation-the purely bureaucratic one-that, because of the bed availability, a clinician may section somebody whom they would not previously have sectioned, merely in order to get them into hospital.

Simon Lawton-Smith: That is possible.

Q10 Chair: Can we put any kind of quantum on that? That is a serious civil rights issue.

Dr Chalmers: There is a policy position on this, which is that there was a move towards community care, and crisis and home treatment teams. I think the pendulum swung in the direction of "hospital bad, community good"-the idea that it is a failure if you have to admit somebody. That may have percolated through psychiatric practice. People try their best to keep people out because that is a good thing in itself. It is very hard to get them in, so you want to try to avoid getting to that situation wherever possible. However, nobody detains somebody without great thought; people are detained because there is a reason to detain them and because they fulfil the criteria. I think it is just the situation we find ourselves in because of the complex strands.

I would also like to pick up on one of Simon’s points. The rates of illness may not be increasing, but the types of things that help full recovery may be reduced. Access to housing is a major issue-not just a bedsit, but supported housing. The same applies to access to meaningful daytime activity-or even support to get back into some form of work-and support for carers. There is a whole range of other things that need to be in place in order to make the services work effectively.

Q11 Barbara Keeley: What patient benefit do you think has been derived from the creation of mental health advocates? Is there evidence that having mental health advocates has improved patients’ understanding of their legal status and their ability to exercise their rights?

Naomi James: I would like to begin answering that question. We are really pleased, especially at NSUN, to see the increase in access. According to the CQC annual monitoring of the Mental Health Act, it seems to have improved. In fact, there is still some work to do, because it shows that in 2011 65% had access to an independent mental health advocate on ward, moving to 74% in 2012. I must mention that there was disproportionately less access for those on CTOs, which is an important factor. The number of people who are statutorily eligible for the service continues to increase, as people are held under detention, but a quarter of people still do not have access to it. There are a number of different reasons for that. Although there is a statutory requirement, people are not accessing IMHAs early enough. Staff are often unaware of the legal duty on the wards to inform patients. Some of the poor commissioning has meant that people are just not aware of the duty and role description of the independent mental health advocate. It is concerning that, crucially, quite often staff on the ward may make a decision on behalf of a patient and decide that it is in the person’s best interests to have an advocate, or not to have an advocate. In either case, that could point to a human rights problem. As thousands are denied their rights, I think there is still work to do. I constantly get people calling me in distress because they want support on the wards or under a CTO and are not getting it. There is also huge confusion between the mental capacity advocacy role and the independent mental health advocacy role. So I think there is little equity of access and the style of provision is variable.

There is also a huge concern that I would like to bring up. People who are in voluntarily feel that they are not given information that they are in on voluntary terms and that they are not given access to an independent mental health advocate. They have certainly been reporting that they feel as if they are under detention when they are not, that they are being held against their will, and being told by staff on the ward, "If you try to leave, we will put you under section." That compulsion goes against choice and control; quite often people report that that happens for weeks before a care plan is discussed with the service user who is there in distress. That is a major concern. Quite often the language used is all about treatment and not about supporting people. An independent mental health advocate could support people with housing and with planning, but that is not their only role. It is their legal duty to inform patients, as it is the duty of ward staff. It is quite important that that is not seen just as the advocate’s role.

Q12 Barbara Keeley: I will ask about that in a moment. While you are talking about the feedback that you have had and the variability in practice that exists, should we be content with the role of advocates and the fact that it is limited by their not being able to act as formal advisers? Is there a case for extending their remit so they can give more direct expert guidance? You talked about their being involved in various aspects of planning. Is that something that should be looked at?

Naomi James: Yes, I think so. I would strongly recommend that.

Alison Cobb: The IMHA role is one of the key improvements to the legislation. It is a really valuable provision and safeguard for people who are in a very powerless situation. The university of Central Lancashire report "The Right to Be Heard" really gives a lot of insight into the value of advocates to individuals. The primary thing is to make sure that this right to an advocate is real for everyone who is eligible, but looking at the scope of the role would also be very worth while.

Simon Lawton-Smith: The commissioning of IMHA services is passing to local authorities in April, so there is a question about local authorities’ skills in commissioning them, their knowledge of what is needed and their assessment of levels of need. I am not saying there will be a problem, but there is potentially an issue there, where local authorities pick up this responsibility from primary care trusts. We will want to keep a close eye on whether an adequate number of IMHA services are, in fact, paid for. The money is moving from health to local authorities to pay for it, but I do not believe it is ring-fenced as such. With local authorities under a great deal of pressure on spending at the moment, I think we need to keep a very close eye on whether the money they have been given to establish good IMHA services around the country is actually being spent on doing that.

Q13 Barbara Keeley: We come back to the point about the balance between what the advocates do and what the ward staff do. Do you agree with the CQC’s warning that the existence of the advocates means that some hospital staff are not fulfilling their duties to inform patients of their legal rights? You have alluded to that point. Given that 21% of care plans showed no evidence of patients being informed of their legal rights, it seems that some people are falling between staff not telling them and their not even knowing that they have a right to an advocate.

Naomi James: That is right. Even in cases where they are trying to access one, people are simply not available. As the new commissioning is happening, even in those gaps where it has been transferred, there is no support for people-and by that point it is too late.

Q14 Chair: That is a more serious issue about the standards of professional practice on the wards, isn’t it? These advocates are important, but it is also part of the professional responsibility of the doctors and nurses to engage with the patient in that way.

Naomi James: Yes.

Q15 Barbara Keeley: Do you think it is directly linked and that, the minute advocates became available, staff said, "Oh, I can retreat from that. I don’t need to inform them of their legal rights"? Do you see that link?

Naomi James: I think there certainly is a link. That is certainly consistent with the report "The Right to Be Heard" and with NSUN’s CPA report, both of which suggest that that is true. A lot of work needs to be done to bridge that gap. That is in addition to the actual availability of advocates; sometimes they are just not available. As the rate of detention increases, there are just fewer people to go round. I think there are a number of reasons, but one of the key things is to extend the service to people who are in voluntary detention because they have equal concerns about their rights being breached. It is very important to look at that.

Q16 Chair: Can I push Dr Chalmers on this? You said that you are an adviser to the Royal College of Psychiatrists. This is an issue for the Royal College of Psychiatrists, isn’t it? Of course it is an issue for resourcing, commissioning and so forth, but it is also a professional issue.

Dr Chalmers: It is a professional issue for everybody on the ward, including the nursing staff. It is usually the nursing staff’s core job to present the rights and to go back to patients. In the first few days of admission, people may be very distressed and may not want to engage in a discussion about rights, so that should be re-presented repeatedly. That is a requirement. If it is not happening, that needs to be picked up by the CQC and the trust board, and those responsible need to feed it back.

Q17 Chair: To return to a theme the Committee returns to quite regularly-particularly post-Francis-it is also an issue for every professional working on a ward, if they see this not happening, to challenge the fact that it is not happening.

Dr Chalmers: Yes, absolutely. I think I was saying that. Although that is not the medical staff’s key responsibility on admission, I guess, if they see that people do not understand their rights, they should direct them towards advocacy, if it is available. To echo Naomi’s point, access to advocacy is variable. We know that, where it works, it can work very well. I am not sure-we would have to debate it a wee bit further and look for evidence-that there is a clear link, and that, where there is advocacy, the nursing and medical staff are not doing that; it may represent something else. That needs further examination.

Q18 Barbara Keeley: Can I come back to the point that was made about voluntary patients? There seems to be not just an absence of advising patients about their rights; there seems to be some confusion. I refer to the use, with a voluntary patient, of the threat that if they try to leave they will be detained.

Dr Chalmers: That is something I feel very passionate about. In my training, I repeatedly say, "Do not do that." People want to go along with it. If you know that if someone goes in voluntarily and then says, "I don’t want to stay because the wards are very disturbed," you will section them, that is not very fair. The college is well aware of this issue of de facto detention, which is picked up repeatedly with the CQC. We are trying to make it clear that we have to champion people’s rights. If we think that they are in that situation, and that the patient is the only person who does not know they will be detained if they try to leave, that is not okay. We should be using the Act, because at least it is clear for them and there are safeguards. I think that is bad practice, and there is no way that we would not challenge it when we saw it.

Q19 Chair: I have quite a lot of people wanting to come in now.

Simon Lawton-Smith: I want to make a very quick point on the right of voluntary patients to an advocate. I may be wrong here-colleagues may be able to confirm whether I am right or wrong-but Wales has passed some mental health legislation. Wales is subject to the Mental Health Act 1983, as amended by the 2007 Act, but later it also published extra legislation that gave extra rights to patients. I think one of those extra rights may be that voluntary patients also have a right to advocacy. If that is right-I am afraid that I do not have the papers in front of me-there is a precedent in the UK for giving a right of advocacy to voluntary patients.

Chair: I am conscious of time.

Q20 Rosie Cooper: I will be very quick. I have two quick questions. I think that everybody should have a right to advocacy-absolutely-but I want to come slightly from left field and look at a contradiction in what is happening. If, on the one hand, we are saying that there is huge pressure and you cannot get people into hospital and into beds, why would there be pressure within the unit to try and detain people who could leave, unless that was absolutely essential? Why, therefore, would you be duplicitous and not be honest? I just think that is dishonest.

Dr Chalmers: You are relieved when people agree to come in and you do not need to use the Act, but you have to be very cautious when you make that decision. In fact, the figures for people who come in voluntarily and are subsequently detained are dropping; I think there is a difference of 1,000 over a couple of years. That suggests that, at the point of assessing someone for admission to hospital, we may actually be asking these questions and saying, "Are we just allowing this to go ahead or are we protecting people’s rights?" There is a view that that reflects good practice. It should drop to very little, shouldn’t it, because it is still a large number of people?

Q21 Rosie Cooper: Absolutely. If it is very little, it is not the big point that you are making. It is either one or the other.

Dr Chalmers: It is an issue just now.

Q22 Rosie Cooper: I believe it is an issue.

Dr Chalmers: I could refer you to the figures. It was about 15,000. I think it has dropped to 13,000, so the trends are downwards, but there are still 13,000 people.

Q23 Rosie Cooper: If you were one of the 13,000, you would not be very happy.

Dr Chalmers: Absolutely. If it will assist you, I can tell you that the number of admissions and detentions of voluntary patients was 13,680. Previously-in 2007-08-it was 14,839. It is a consistent trend downwards, but that is too many.

Q24 Rosie Cooper: Rather than just concentrate on the numbers, shouldn’t we ask why a system, a hospital or a ward would work to keep in people who do not want to be in, not give them the advocacy and help they need to move out, should they wish, and then also maintain that there is huge pressure on beds and it can’t get in the people it needs to get in? How does that work?

Dr Chalmers: The people who are in voluntarily and the people who are detained are probably not really different in terms of their level of need; they are all very unwell. Probably the only thing that distinguishes them is the decision making that occurred at the point when they came into hospital.

Q25 Rosie Cooper: I will leave that; I think that the point has been made. What about people with extra disability such as deafness and communication problems? How do they get their advocacy? I think you said, "Advocacy is variable." Is it a hell of a lot more variable if you come in with additional disability?

Dr Chalmers: I do not have any facts on that, but I imagine it would be a challenge. One of the problems with advocacy services-this highlights Simon’s point about all services going to local authorities-is that there are different kinds of advocacy. Sometimes the same person may have to wear different hats. I presume that advocacy services should have links with organisations that could help with sign language or ways of communicating with people with communication difficulties. I do not know whether Naomi can shed any light on that.

Naomi James: Essentially, there is a broader systemic problem in mental health services in general with choice, control and recognising someone’s needs. Every day we have phone calls in which it is quite distressing to hear what people have gone through, let alone what it must be like for them. We have cases where someone has reached an absolute crisis, through lack of services in their own area, has had no access to support and has ended up in the Bethlem hospital for five weeks before a care plan was even gone through. By that point, they had not discussed their needs in terms of communication. I do not want to go into absolutely specific details, but this is not uncommon. You would not really believe it without seeing it, but, being a service user myself, I have been in the same hospital under section and I can well believe that five weeks can go by before someone comes and asks you what your care needs are, or even gives you a bit of paper with some information about advocacy.

Q26 Rosie Cooper: Are we saying that the core of the problem is that the system is poorly managed, not just that there is a shortage of resources? It is stupid that somebody could be in a hospital waiting for a care plan for five weeks.

Naomi James: A lot of service users who are regularly in and out of a community mental health service say that they have never seen a care plan. You have to fight and advocate on your own behalf even to see what the care plan is, let alone look at what the crisis plan might be. It happens before you reach a hospital-before you reach the ward. Once you are in the ward, the staff are under huge pressure and stresses. It might seem like there is money around, but the staff themselves are not able to deliver and provide a therapeutic environment. It is quite focused on risk; that is one of the key factors. Service users have felt that it is focused more on that and on watchful waiting than on action and looking at what your care needs are-simple, basic things that you need, rather than just the medication to keep you calm. One thing that is misunderstood is that, when people are fearful or getting upset, that is co-produced as opposed to just existing within the individual service user. I do not know whether that completely answers your question, but I think it starts with people having a bad experience of care before they go into hospital, so that they are already frightened and scared on the hospital ward-

Rosie Cooper: And they spend five weeks in a hospital waiting for somebody to find a care plan as well as some medical treatment. That does not seem like a good resource.

Q27 Chair: I think we have probably covered that ground.

Simon Lawton-Smith: On the question of IMHAs and advocacy for people who may have a disability, I am afraid that we do not have on us the data for physical disability co-morbid with mental illness. However, I used to work for a charity called Together, which provided advocacy services. I know that there were certainly systems in place to ensure that, if English was not a person’s first language, they got advocacy support from somebody from the same community who could therefore do any translation of issues. The answer might simply be for a local authority to include specific clauses about the need also to meet any assessed physical health needs-or communication needs, I should say-every time it issues a contract for IMHA services in the future.

Rosie Cooper: Absolutely. Then it can be ignored, like it is mostly in every other service that has it.

Chair: At least if it’s written down we’ve got a challenge.

Q28 Andrew George: I want to test the merits of the individual basis on which independent advocates operate. The background I come from is partly community work. When mental health forums were established in my area and those with experiences of the mental health services came together, some of them, at least, found that process more empowering and were able to learn from one another and have shared experiences. It was also a benefit to the service itself, in that it provided a very effective way of establishing feedback and ensuring that there were links between mental health services and other services such as housing. Is there a risk that, by focusing advocacy purely on an individualised, independent basis, you may lose the opportunity to look at a wider picture and bring people together? Or is that a rather old-fashioned way of looking at it, which you would not want to go back to?

Alison Cobb: I will start. What you are saying about empowerment is very important. Peer support, for instance, is extremely valuable in assisting people to recover and to feel more empowered. Bringing people together in support groups and action groups to plan and feed into service design, for example, so that they have a much greater say in how services are developed, is really important. Bringing the community, if you like, into the hospital and supporting people to engage in the community, often through the peer support of people with similar experiences, is extremely powerful. I am not sure that that is a substitute for individual advocacy, or if they quite do the same job-but Naomi may have other perspectives as well.

Naomi James: Independent mental health advocates, as they stand at the moment, are for people who are under compulsory detention, If we look at the wider social determinants of health, not just the medical model of mental illness, and understand mental illness in terms of social deprivation, there is a huge argument for peer support and peer advocates in the community. One thing we have worked on is improving the networks of service users, particularly in Hackney, where we have worked with the local health authority commissioner and are now working with the clinical commissioner for mental health. We are trying to look at services in terms of choice and control and to move them towards not just involvement in what happens in your life but co-production and discussing that in communities. That is as important as the need for an independent mental health advocate when you have reached crisis.

We have had great successes in trying to support people to have a say on what services work. By doing that, people are able to tackle and to report on the wider social determinants-the causes of their distress in their communities. Of course, NSUN is not arguing that sectioning does not have a place, but that really is meant to be as a last resort. Sometimes it has a place largely in order to take people out of a terrible situation in their community, and for extended periods. In our experience at NSUN, short periods in hospital seem to be doing more damage. In the longer term, someone’s care plan can be thought about and careful plans for discharge can be made. However, we have made quite a lot of good inroads in trying to work with commissioners and seeing that service users can get involved in commissioning itself. NSUN has launched Mental Healthwatch, where service users can get together, look at their local services and do research-becoming researchers, and becoming people who can go in and do checks, and enter views on their services. While doing so, they are also developing transferable skills for the future. Mental health problems are partly about isolation; that is how they start.

Q29 Andrew George: Are there well-established service user groups in most areas, or is provision rather patchy? Where there are service user groups or forums, are they funded by the provider of mental health services, by local authorities or by other resources?

Naomi James: Nationally the picture varies. We have been lucky to secure a small grant for a few years to map what is happening across the country. We are still investigating and mapping different areas in terms of service user involvement. We are looking at good practice and how that can be used. Our Hackney project was quoted and used as an example by the Joint Commissioning Panel for Mental Health. We are finding that there are pockets, especially in the west, where there is very little, so we are helping people to duplicate good models of working with their commissioners. Even people in hospital, who are sometimes thought of as lacking capacity or being unable to speak for themselves, can conduct mystery shopping on the wards while they are there, so that they feel that they are contributing towards service change. I think that is important, especially as there are some areas that are well behind. One example that is worth bringing up today-I just want to get the details correct-is NAViGO. Control and restraint has been one of the major difficulties for our members. They feel that when they are discharged, it is quite hard to get over what has happened to them and that it is a further abuse for which they need therapy. I have some information about North East Lincolnshire, where service users and carers have come together. North East Lincolnshire Care Trust Plus just does not use control and restraint. It provides everyone with respect and dignity training and training in other methods, and that seems to be working rather well. We are trying to find all the learning from that, since there have been quite a number of deaths in custody recently, as I am sure you are all aware. We would very much like to find out exactly how this can be replicated in other areas.

Dr Chalmers: Can I make a point to add some balance? I am going to wear my college hat here. It is really important that Naomi highlights good practice, because it is easy to focus on the bad; we have got into that mode a little bit here. I am not defending bad practice at all-it has to change-but there are some places where they are getting it right. I think we should add that balance. I know that a lot of colleagues-colleagues in all the disciplines-are working in very difficult circumstances and trying to do their best. It is very demoralising to get constantly criticised. We need to be criticised and to step up to the mark, but we need to be balanced about that. With regard to the wards, there are some interesting initiatives. Have you heard of the star wards? There is a site called Wardipedia highlighting what makes things good. That is service user-generated. The college, too, has done work on the 10 points that make a good ward. We are trying to drive up standards, in collaboration with service users. I just wanted to give you a more balanced view at this point.

Chair: Thank you. Grahame would like to move this on, I think.

Q30 Grahame M. Morris: The purpose of this session is not to be overly critical but simply to assess how the Mental Health Act 2007 is working. There are lots of areas where we are seeking your views on how it is operating. If you do not mind, I would like to ask you a few questions about places of safety. A little earlier, Mr Lawton-Smith told us that we should not worry about the increasing cohort of patients who are sectioned under the Mental Health Act, but it is a fact that there has been a significant growth in section 136 detentions-at least, detentions into hospital-using the Act. Dr Chalmers mentioned some of the issues around police cells. In your opinion, are the police now more willing to use the powers available to them under the 2007 Act, under section 136, knowing that patients can then be removed to hospital?

Dr Chalmers: I will pick that up. As well as wearing my alliance hat, I am the chair of a college-hosted multi-agency group that involves the police, the ambulance service and a range of people, so I also speak from that perspective. You raise an interesting question. The answer, in short, is no, it was not the power to convey, which was the change that came about with the 2007 amendment-but I think that there is something happening around section 136. One of our problems has been that we have not been able to collect complete data. There have been only two points in the last seven years when we have got a data set. Those were when the IPCC undertook a survey counting the number of detentions in police stations and linked that with the Information Centre figures. Otherwise, the CQC has been able to report only Information Centre figures, which count the admissions to hospital places of safety.

This year, as part of the initiative of the multi-agency group, ACPO collected the most accurate figures that it could from police stations, and we have the Information Centre figures. What those show-if it would be helpful to you to have this level of detail-is that between 2005-06 and last year there has been an overall 26% increase in the use of section 136. The balance has changed, because money was made available to build hospital places of safety but not to provide revenue to staff them. The buildings may be there, but it is not always the case that they are fully staffed all the time. In 2005-06, 11,500 went to the police station and 5,900 were in the hospital place of safety. That has shifted, so now 8,677-to be exact-go to the police station and 14,902 go to a hospital place of safety. So 37% are still going to police stations. This is not acceptable, because the code of practice clearly states that people should go to a police station only in exceptional circumstances. However, it seems that once a hospital place of safety has opened, the police have enthusiastically adopted the ability to take people there. That might be suggested by the numbers, but an unpublished study in Nottingham, where the previous chair of the committee that I now chair works, also showed a doubling in figures for use of section 136 when the hospital suite opened. I do not know what that means.

The police are certainly concerned about vulnerable individuals out there, but when they come to either a hospital or a custody suite we are only detaining less than 20% of them, so there is quite a mismatch with what psychiatrists and AMHPs view as a mental disorder needing to go on to have further treatment in hospital. The Information Centre counts only the detentions, but we will be able to track voluntary admissions. That is another piece of work that we have been doing to try to get better data on this. However, there has been an explosion. It means that last year 23,000 people were picked up by the police, but only a very small proportion of them end up in hospital. That can be a very aversive experience for some people, particularly if they go to a custody suite.1

Q31 Grahame M. Morris: You have answered the other question I was going to ask about what the evidence is anecdotally; you mentioned the case that was taken to the European Court. A little earlier, Naomi mentioned people presenting at A and E and really not knowing where to go-perhaps as a consequence of lack of in-patient beds. I had a really terrible tragedy in my constituency, where a young mother presented at A and E. She was not diagnosed properly, was sent home and strangled her two-year-old little boy. That was an absolute tragedy. What is your general view on the use of police cells or custody suites as places of safety?

Dr Chalmers: I think I have already answered that. I think they should be used only in exceptional circumstances. Distressed people need to come to a hospital setting and be looked after.

Naomi James: Can I add that it is inappropriate to be told to go to A and E as the first point? That is something that could really address the prevention of people’s entry into hospital under detention. I myself am a service user, and I have been there. The first thing they did was take me to a police cell, which was the most distressing thing that has happened in my life. I felt that, if I had been taken somewhere more appropriate, that distress would not have happened, let alone the fact that the detention sergeant did not get an approved mental health professional to see me within 12 hours of detention in that cell. My experience is just one of many where this is happening. To hear that the statistics are not even being kept is just not acceptable. I think it would be hugely important if people could start to collect those data. There is also the issue of the number of transfers within a single admission, because stability within mental health is also quite crucial to people’s experiences of care. That is why people tend to try to wait until there is an absolute crisis point, because there is no easy access in and out to support.

Q32 Grahame M. Morris: Very quickly on that point, are the police reluctant to use the powers they have under the 2007 Act to remove to a place of safety people who are a danger to themselves and others? The CQC said that the police were using powers under the 2005 Act on some occasions because they thought it was perhaps easier to do that.

Dr Chalmers: As I said, the power was to convey from a police station to a hospital. Those data are not kept at the moment, but it is occurring. That was a useful addition to the Mental Health Act. On the MCA, I think that there has been clear guidance. The Met has published a view, after a particular case in which a woman was removed, so I think the police are clear that they cannot use powers under the Mental Capacity Act to remove and detain somebody. I do not think that the police are reluctant to use section 136. There are two things. There is a question about pathways. Our group is trying to work on diversion before the police have to use the powers under the Mental Health Act. In an ideal world, could they phone a crisis team? People who were willing to go to hospital would be diverted there. There are some interesting initiatives. In Tees, Esk and Wear Valleys NHS Foundation Trust there is a street triage team-a mental health professional is out on the beat with the cops. It is in its early phases, but it is an interesting idea, because at least the NHS staff can access crisis teams. That is another thing about thresholds. Crisis teams may be unwilling to accept calls from the police. In fact, crisis teams are often asking the police-in the police’s opinion, perhaps-to do their work for them.

With regard to the statistics, it has been a real bugbear for us to know just where we stand, but the positive thing is that the college group has been able to join up the key people. I know that in the Information Centre and in ACPO there is a great will to get these statistics right. That is being worked on, and we will be asking more detailed questions of the statistics. That is a positive thing.

Q33 Dr Wollaston: Before I start, can I state for the record that I am married to a consultant forensic psychiatrist in the NHS, who also provides advice as part of the parliamentary liaison committee for the Royal College of Psychiatrists? I would like to turn to the issue of community treatment orders. Does the panel feel that community treatment orders have achieved their original aim of actually improving treatment in the community for people with mental illness?

Simon Lawton-Smith: It is interesting that you say that the original aim was to improve treatment in the community. The original aim, as I understand it from the Department’s literature and what Ministers said at the time, was to make sure that patients took their medication. That is a slightly different thing because, collectively, we would interpret treatment to mean many things other than just medication. It would mean access to psychological therapies, being helped to get good housing and contact with social networks so that you can get on with your life and be helped to recover, rather than just management of the clinical symptoms. Having said that, I think the situation with the community treatment order system that we have is interesting. We know that, on the whole, psychiatrists are in favour of it. A majority of psychiatrists welcome the fact that there is now a power to discharge somebody under a community treatment order and to impose conditions in that order that mean that they have to turn up to take their medication, and that there is a power, if they judge that a person is not complying with the conditions of the order, to bring the person back into hospital to receive the treatment-which is invariably medication-for up to 72 hours.

We know that in some cases it is helping people to stay well in the community. This is evidence that we have from professionals working in the field who have done their own local surveys. For example, a recent piece of published research looking at approved mental health professionals’ perspectives on community treatment orders in the north-west of England-it was published only about a week ago-said that community treatment orders helped earlier identification of relapse, access to housing and reduction in risk of avoidable harm to self and others. What they did not do at all was help with employment, education, training and social activities. At the same time, they added to the stigma of having a mental illness in the community. So there was a perception from that particular cohort of AMHPs that they were useful to a degree. They did help encourage people to take their medication, which was often something that helped people stay well in the community and helped to tackle some of the worst symptoms of serious mental illness. At the same time, patients are very divided about them. Some people are quite happy to say, "Because I am on a community treatment order, I do turn up to have my medication. As a result, I have not been relapsing." Others find it an incredibly severe restriction and feel that it is contrary to human rights and destroys the relationship between themselves and their professionals, because it is not a voluntary relationship of support but a compulsory relationship. So there is a very mixed picture among people who are actually subject to community treatment orders.

I would like to add one or two things very quickly. Earlier I mentioned that some 25% of community treatment orders end up being revoked, with a patient back in hospital. It is difficult to know all the reasons why that would happen. It is possible that people were discharged from hospital earlier than they should have been, maybe to free up a bed. There is no firm evidence on that, but it is obviously a danger when there is such pressure on beds. Maybe people are actually too ill to be in the community, even under a community treatment order. The nature of severe mental illness simply means that, whatever care you get in the community-it may be excellent-you may still become unwell and need to go back into hospital. What that demonstrates is that community treatment orders have not been a panacea in terms of keeping people well in the community if they have serious mental illness. That needs to be borne in mind.

We also need to bear in mind the fact that the 5,000 or so people under a community treatment order at the moment in England have added significantly to the total number of people subject to the Mental Health Act. Before the supervised community treatment and community treatment order power was put in place, as of 31 March 2008, there were 14,500 people detained under the Mental Health Act. As of 31 March 2012-four years later-there were over 17,000 people detained. There has been an increase in the number of people detained on that day-31 March-plus 5,000 under community treatment orders, so there is a significant new cohort of people under compulsion. Of course, there is a view that we should be looking at mental health legislation that is designed, yes, to provide care for people who are very unwell, may lack capacity and need treatment-possibly compulsory-for their own safety or the safety of others, but that at the same time mental health legislation should not be there to increase the number of people detained. We should be looking at systems that actually reduce the number of people detained, because services in the community and voluntary services are good enough for that.

Q34 Dr Wollaston: The number of CTOs is higher than was originally predicted, isn’t it? It was predicted to be about 400 to 600 a year, but in fact last year there were 4,220. Is there any evidence that they are being used inappropriately, or that they are having the effect of reducing the number of people in hospital?

Simon Lawton-Smith: I will take those questions in reverse order. They do not seem to be reducing the number of people in hospital, as there are now more people in hospital under the Act than there were five years ago.

Q35 Dr Wollaston: Those are overall numbers. But of this group of patients-

Simon Lawton-Smith: These are patients whose level of need, it is decided by clinicians, is such that they need to be treated under the Mental Health Act, rather than as voluntary patients.

Q36 Dr Wollaston: What I mean is, has it made it less likely that this particular group of people on CTOs will be in hospital, because they are on CTOs? I am not looking at the wider figures.

Simon Lawton-Smith: I do not think it is possible to pick out that particular cohort and say, "If they were not on community treatment orders, they would be in hospital." You could not put those 5,000 people back in hospital now, because there are not enough beds. It would then be a question of whether those 5,000 people on community treatment orders would therefore just be in the community voluntarily, or whether those 5,000 people on community treatment orders would be in hospital beds, but 5,000 people who are currently in hospital beds would be in the community.

Q37 Dr Wollaston: Can I pick up on the figure of 5,000? I have data of 4,220.

Simon Lawton-Smith: I am sorry. I have been using the figure of 5,000. The latest data we have, as of 31 March 2012, is 4,764. Are those Care Quality Commission data or NHS Information Centre data?

Q38 Chair: It must be NHS Information Centre data, because we have the CQC numbers, which are not quite the same. The order of magnitude is similar.

Dr Wollaston: I just wondered whether we had the same data.

Simon Lawton-Smith: There are significant data issues here. It was 4,764 on 31 March 2012. We know numbers are going up all the time, because more people are being placed on community treatment orders than are being discharged from them. When I say 5,000, that is probably a slightly conservative underestimate, but I think 5,000 is probably accurate as of today. What is quite interesting with the data is that the total number of CTOs made since 2008 is 14,295. If you then remove the 3,509 revocations, for people who have gone back into hospital, and the 3,922 discharges-people who have been discharged from an order and are now just living in the community without an order-you actually end up with a figure of 6,864, so there is clearly some issue around the data. I think 5,000 is probably as accurate as we can be sure of at the moment.

Q39 Dr Wollaston: Right. I come back to the point about whether there is any evidence that they are being used inappropriately, because the other issue is the huge variation around the country. Some places are not using them at all. How do we account for that level of variation? Is it because some people are not using them where they should be using them, or because they are being used inappropriately in some places?

Simon Lawton-Smith: I could not say to you that they are being used inappropriately. I do not have the evidence to suggest they are. Every clinical decision on a supervised community treatment and community treatment order is for an individual clinician to make, with the AMHP.

Q40 Dr Wollaston: But it is extraordinary, isn’t it, that there are some parts of the country where they are not being used at all.

Simon Lawton-Smith: For example, in the survey we did of psychiatrists, I think that of over 500 psychiatrists who responded, 325 said they found them a useful thing to have and 74 did not. I certainly know of one or two individual psychiatrists who have said to me that they would never use them because they think they are unethical; that is their personal opinion as psychiatrists. Some of the variation will come about because of demography. For example, we know that there are higher levels of both detentions in hospital under the Mental Health Act and people being placed on community treatment orders in London. We know there are higher levels of serious mental disorder in London. To a certain extent, the geographical variation may depend simply on things such as the nature of the housing people have, levels of unemployment and levels of income.

Naomi James: We have looked at data from the CQC in 2011 that state there is 19.5% use among BME communities, so there is something around discrimination and race equalities that may need to be looked at.

Q41 Dr Wollaston: We will come on to that specifically later, so perhaps we can return to it. Do you have evidence of patients being returned to detention and having their CTOs revoked because of breaches of the CTO conditions? Is that power sometimes being used unlawfully, in your view?

Simon Lawton-Smith: You may correct me if I am wrong, but under a community treatment order it is up to the responsible clinician of the patient in the community to decide whether it is necessary to take the patient back into hospital. The community treatment order has conditions. If you do not meet those conditions, it is not automatic that you will be taken back into hospital. There should be a dialogue between the patient and the doctor about why the patient did not meet them, whether they can work their way around the issue and whether the conditions need changing. I do not know whether the other witnesses have a view on inappropriateness.

Q42 Dr Wollaston: Is best practice being followed, or are people automatically being sent back to hospital?

Dr Chalmers: There are mandatory conditions to see the second opinion appointed doctor and to come back to be reviewed by your responsible clinician to consider whether the CTO should be renewed. If you do not stick to these, that could be a reason for recall. Normally it is a point of negotiation and does not involve going to that level of coercion. Then conditions can be put in place. This is a good practice issue, and something on which I have a personal opinion. I certainly do not think we should tell people how to live their lives, but some doctors have felt that they have the power to put in place a lot of unreasonable conditions. There may sometimes be very reasonable conditions about, for example, staying in supported accommodation, if you really think that there is evidence that staying in that setting would maintain your well-being. Are there inappropriate conditions? Again, you do not know the individual clinical details, but the CQC reported-not in this year’s report, I think, but in the previous report-that about 30% of people who had been placed on a CTO had shown no evidence of disengagement. That worries me, because it is against the spirit of what the CTO was about. I am talking about people who have never demonstrated that they have not taken their medication. I do not think we have this level of detail. I would be worried if you had a CTO after your first illness, unless there were exceptional clinical circumstances. It is something about which the college has concerns, and on which we want to issue good practice guidelines. We are waiting for the report of the OCTETO study; there is a very large randomised controlled trial, of which you may be aware, run by Professor Tom Burns. It is about to report and will be published in The Lancet within the next month. It will tell us whether or not CTOs are a good thing. It may start to give us some indications of where psychiatrists have been overenthusiastic, perhaps, in their wish to keep people better.

Q43 Dr Wollaston: Notwithstanding the point you make about geographical variation in the level of severe mental illness, it still strikes me from hearing what you are saying that there is a huge degree of variation, with some doctors deciding that they just happen to think CTOs are unethical and others overusing them. Given the degree of stigma that we have heard is attached to them, is this just a good practice issue or is it actually a professional probity issue?

Dr Chalmers: As Simon said, you work in different settings. For example, as a community psychiatrist, I have only one or two people on CTOs. In other settings where you have assertive outreach teams and people with complex serious mental illness, a lot of homelessness, other social adversities and a history of non-compliance, my colleagues may have up to 20 people on CTOs. So there are practice-setting differences. I think that CTOs split the profession initially. Some felt that they were overly paternalistic, particularly as under the Act as it was there were no impaired decision-making criteria, which felt more ethically correct. Others were quite keen. Tribunals raised the issue continually in the early phases, and I think members of the profession were confused about whether they had clinical discretion. There was quite a push from the tribunal service for us to consider placing people on CTOs. If we did not, they would adjourn and come back and ask us what our decision making was around that.

Q44 Dr Wollaston: The Committee would probably be interested to know whether, in your opinion, this is something that should be left to the profession to sort out, or whether changes to the Mental Health Act are needed.

Chair: Or has NICE been involved.

Dr Chalmers: As far as I am aware, NICE has not made any comments. Of course, recently the Mental Health Alliance did suggest an amendment to the CTO conditions, which was to have a criterion of impaired decision making as part of those, but that was turned down. I look to Alison and Simon for the details on that.

Alison Cobb: The Mental Health Alliance has always argued for significantly impaired decision making to be a criterion for compulsion at all. We did argue the case for having it as a criterion for supervised community treatment during the passage of the Health and Social Care Bill, but that was unsuccessful. Another possibility in terms of strengthening rights might be to include the conditions of supervised community treatment within what can be appealed to a tribunal, and to have tribunals consider those.

Q45 Dr Wollaston: Naomi, what is your opinion from the service users’ perspective?

Naomi James: I want to refer to the recent report on service users’ experiences of CPA and being subject to compulsion. Experiences of those subject to compulsion were the most negative in the report, particularly in relation to the "never" categories; 23% said that they did not feel respected and that their knowledge of self was not respected, versus 4%. On the issue of whether their care plan focused on things that helped them recover, 22% felt that it did not focus on what they thought recovery meant. Again, the focus on risk in the care plan is imbalanced; 29% felt that risk was the major factor. That seems to indicate that things like CTOs and the lack of choice and control have a negative impact on people. There is also the stigma and discrimination of being in the community and having to be subject to this without choice. People could be involved. There is evidence that joint crisis planning reduces compulsion, so I think that there is something that can be done.

Taking into account the fact that 30% of CTOs are used in cases where individuals do not have a history of doing the wrong thing and do actually comply with medication and the support that is offered, I would say that there may be a case for saying that they are overused, and that surely impaired decision making should be taken into account when using CTOs in the future. The "T" in CTO is supposed to stand for treatment, but treatment is more than medication; it is the wider social experience. One of the major issues for people is what happens on discharge. Simple issues such as having no money are causing them to look for other means of income. That is very dire. People feel a sense of alienation, and feel that they do not have access to social networks, or even have a presence in their community, if they are subject to such conditions. I think that tends to hide them away, and they don’t feel part of society when they are under compulsion.

Simon Lawton-Smith: May I add two things very quickly? Scotland introduced a similar system of community treatment orders a couple of years before England. It did have an impaired decision-making clause in the conditions for someone to be placed on a community treatment order. What happened in Scotland was that, after two or three years of the Act, there were about 400 people under community treatment orders in Scotland and 400 fewer people detained in hospital under the mental health legislation up there. That seemed to me to be a perfect position, because, if community treatment orders are meant to offer a least restrictive alternative, I think most patients would say that they would rather be in the community, albeit under an order, than in a not very therapeutic in-patient ward. So I always cited Scotland as having got the balance right. In fact, the data seem to suggest that in the last couple of years the number of people detained in hospital in Scotland has been going up, while the number of community treatment orders has also been going up, so they seem to be having a bit of a reversal of that trend. The worrying thing, particularly for us, is that, as I have mentioned before, community treatment orders in this country do not seem to have led to any reduction in detentions or in the number of people who are detained in hospital under the Mental Health Act at any one time.

I will mention quickly one other thing that has not been picked up so far. An assessment of the Mental Health Act 2007 was made at the time; it was a resource impact assessment of the sort that is made for all legislation. At that time, it was estimated that by 2014-15 the introduction of supervised community treatment in England would have saved the NHS roughly £34 million a year through a reduced number of beds; obviously, people being in the community is cheaper than hospital care. If you are asking questions about the impact of the 2007 Act, it would be interesting to ask how well we are doing in reaching that saving of £34 million that was in the estimate for the 2007 bill.

The other thing I would like to mention relates to the 30% of people who do not have a history of disengaging from services. The way the Care Quality Commission put it was that in 30% of cases of people under a community treatment order there was no history of non-compliance. It is very interesting that, at the time when the Bill was going through, there was a definite feeling-I believe it was given by Ministers as well-that this was an order to help stop the revolving-door syndrome, which was people going into hospital with a mental illness under the Mental Health Act, being discharged, becoming unwell, going into hospital, being discharged and becoming unwell again. It is absolutely admirable that we were trying to tackle that problem. I think there is an issue if someone enters hospital for the first time as a young man with, say, psychosis, and is immediately discharged under a community treatment order, without any evidence that they will necessarily not take their medication, relapse and have to go back into hospital. There is a real danger in that. We would like the Committee to think about asking questions about why there are significant numbers of people under community treatment orders who, it appears, were not intended to be included in the legislation. The Department of Health leaflet on community treatment orders that was issued at the time actually specifies how SCT should be used. During the House of Lords Committee stage, Lord Warner stated, "One thing that has not changed as much as we would like, however, is the continuing number of revolving-door patients," so he specifically mentioned CTOs in terms of revolving-door patients. We are worried that they are being used perhaps inappropriately-that might be one way of looking at it-for patients who do not have a history of continuing non-compliance.

Q46 Dr Wollaston: To come back to my question, is that a problem with the legislation or is it a problem with the way doctors are using CTOs inappropriately? Is this a medical issue or is it something we should change in the legislation on mental health?

Chair: It is too easy, isn’t it, for Dr Chalmers, in particular-forgive me if I take you as representative of the royal college-to say that there is a difference of view and that there is a debate within the profession? It is very difficult to draw up legislation if the professionals responsible, with the psychiatrists in the lead-but not only psychiatrists, obviously-have differences of view about what good looks like, to put it simply.

Simon Lawton-Smith: But the legislation allows somebody to be discharged under community treatment order after one episode. The Mental Health Alliance argued in its early days that there should be something specifically in the Mental Health Act-in the primary legislation-saying that there had to be a history of non-compliance and disengagement. That was rejected by the Government at the time.

Q47 Chair: Okay, but the question for this Committee is: should we be going back to the Government with this and other points? At the very least, it is salient to have a clear view from the professionals on what the right legal framework is to allow them to deliver the best quality of service to patients.

Dr Chalmers: I do not think it is a simple matter, because it is a balance between how much you respect autonomy, and well-being concepts and that kind of paternalistic view. Rather than "paternalistic", which sounds very negative, I should say putting more focus on well-being, which may respect autonomy but also give weight to other factors. You cannot necessarily legislate for that clinical judgment, can you?

Q48 Dr Wollaston: Presumably there might be occasions when you might want to be able to use an order when it was a first admission, if you thought someone was a severe risk to themselves or others. Surely this is something the profession should be getting a grip on.

Dr Chalmers: The evidence was that there was no evidence that they were helpful in other jurisdictions. We have this study-which is very interesting in that it is a randomised controlled trial, so it is scientifically more powerful, perhaps, than some other methodologies-that may give us some indications of how the orders are used. I think the way forward is to have a further dialogue about that, once we have some research evidence, to think about good practice, to look at and debate the ethical issues, to take in the views and to look at the issue again. I can’t give you the answer about how you should change the legislation now. It needs to be looked at very carefully, but I do not think we have all the evidence yet.

Q49 Chair: That is understood. What I do not think is reasonable is to come to the Committee and say, "We are doing randomised controlled trials, but we have not completed gathering the evidence. There is debate within the profession, but we look to the Government to resolve it for us." It is really for service users and the professions to be clear about where the evidence suggests good practice lies.

Dr Chalmers: That is exactly what I was suggesting.

Q50 Rosie Cooper: Could you give us an idea of the consequences of not having adequate access to an independent advocate? Do you think that that is a general problem, or are there particular groups that are not given access to independent advocates?

Naomi James: There is a massive problem with access to independent mental health advocates. We have just discussed the importance of safeguarding in the Act and, indeed, within decision-making processes such as those for CTOs. It would certainly help if people had more access and-I guess I am repeating myself-if people who are not under compulsion also had access. There are specific groups we could look at. I quoted the fact that 19.5% of those on CTOs are from BME communities, so there is a question of disproportionate use there. Having access to an advocate is crucial for specific groups. I think there should be further training and support for the advocates. We have a number of issues about advocates not being able to deliver, or not being in the best position to support people, mainly because they have been brought in too late, when a decision-making process has already happened. Equally, if more people are going to be under CTOs, there needs to be more investment. Having the same amount of money to commission the service will cause a lot of problems. These people need support to be able to do these jobs and to do them well so that they know their role inside out and are able to support people. When an advocate is paired with an individual, it needs to be an appropriate pairing. I think that there are groups that are not gaining access to advocates. I do not have statistics to tell you exactly what the breakdown is, but I am sure I could find some details.

Q51 Rosie Cooper: No, that is fine. Which groups?

Naomi James: Because of the disproportionate use and the potential discrimination that is happening within mental health and the overuse of the Act among BME communities, I would certainly say that that needs to be looked at in detail. As you have pointed out, there are other people who have learning difficulties. We need advocates who are specifically trained in that, because people are just not able to represent their views, or to be involved in very simple decisions in which they could be involved. It is a bigger issue.

Q52 Rosie Cooper: Okay. I will link that to a question I was going to come to in a minute, and will move further on. Do you think there should be a standard definition of deprivation of liberty? If you do, what should it look like and why don’t we have one?

Dr Chalmers: What an interesting question. The judges themselves have struggled with it, haven’t they? Where would my personal opinion sit within that judicial view? The problem you are highlighting is that one of the criticisms of the deprivation of liberty safeguards is that there is no clear definition of deprivation of liberty. While that may be difficult to work with, it also reflects the reality-and actually reflects something about increasing the protection of human rights. Unlike under the Mental Health Act, where detention is seen as being locked up-a locked door in a hospital-the concept of the deprivation of liberty safeguards, the case law and the description of what might constitute a deprivation of liberty are much more holistic. I think it has a value because of that, as it pulls in things that relate not just to article 5, the right to liberty: a lot of the cases have arisen because people are not getting access to their families. There is something quite rich in the concept, but, given that, there are difficulties of definition. I would think that it needs more debate.

Perhaps there could be clearer guidance. At the moment, a number of cases have taken us to very strange places in terms of what may or may not constitute a deprivation of liberty. I am thinking particularly of the case in Cheshire West, where a very disabled person was kept in a body suit. I do not know whether you are aware of that, but there has been a debate through the different levels of the court about whether that was or was not a deprivation of liberty, with very intrusive care and staff exercising full and effective control. A view has been expressed-I think the case is in the Supreme Court or, if not now, then soon-that the very illness itself might constitute a deprivation of liberty, as it reduces your liberty, which might not sit well with wider, softer European law about the rights of the disabled. That case has put people in a tailspin about what exactly deprivation of liberty is.

Elsewhere, at the Department of Health, I have expressed a view on what I think would be helpful. The case law can be very confusing. It was helpful when there was a sort of DOLS group and the Department of Health published a sort of resume of the case law, to give some kind of interpretation-a kind of practical "What does the law mean?" I know it may want to resist that, but somebody needs to do it. Experts need to get together and say, "This is what we think. This is the consensus view on what the law at this point means for practitioners"-a very easy-to-read kind of thing. I think that would be helpful, and I’m sorry that it has been lost. Rather than giving an absolute definition, we need more finessing, understanding and interpretation by the right people of what the case law means for me as a practitioner on the ground.

Q53 Rosie Cooper: As that is almost core to moving on, why hasn’t anyone done it?

Dr Chalmers: Done what I have been suggesting? I know; quite frankly, it frustrates me as well. I think it has not happened because it is a hard thing to do-the goalposts are always moving-but I guess it could be done.

Rosie Cooper: Somebody should stick up a straw man. Let’s get on with it.

Q54 Chair: It does not actually need to be the Government doing that, does it?

Dr Chalmers: I think that practitioners feel so unsure about this area that they do want guidance from some kind of body with authority.

Q55 Rosie Cooper: Okay, I will take you at your word. You say that it is about guidance, professionalism and good practice-all of that-so let us go back to very early in this debate, when we talked about saying to a patient who is in voluntarily, "If you leave, we will section you." Funnily enough, it will not be the health care assistant who says that; it has to be a clinician of some status or standing-a nurse, a doctor, a psychiatrist or whatever. If they are doing stuff like that, do you not think that the board of the hospital, the chief exec and/or the GMC should see the actual threat to a patient to continue to deprive them of their liberty-in what for me is a dishonest way-for whatever reason, as going to the core of the professionalism you are talking about? Everybody is sitting around looking for somebody else to provide all that leadership and professionalism, and nobody is saying, "It’s me. I’m doing it now." Why not? Do you think the GMC and people like that should be dealing with it?

Dr Chalmers: I have already expressed my view on de facto detention and how I think that is unacceptable. Yes, there is an issue for professionalism and training, but you are presenting this as if people are doing it for malicious reasons; you have used very negative language. I think they are actually trying to do their best to protect the person from risk. We as a profession have been driven into being very fearful about therapeutic risk taking, because of the other issues that we have discussed before.

Q56 Rosie Cooper: But, if a policeman did what you have just said and deprived somebody of their liberty, they would have to answer for it. Why doesn’t the medical profession have to answer for what it does?

Dr Chalmers: Because, as you said in your initial question, the definition of deprivation of liberty is a difficult one. The situation that I think you are describing relates to de facto detention on general psychiatric wards. That group of people is different from the ones the deprivation of liberty safeguards are there to protect, because the index case of HL was in a psychiatric hospital, and you could have argued that his rights would have been protected by using the Mental Health Act.

Q57 Rosie Cooper: Let us go to the core of it. Should hospitals and/or the GMC be interested when, for whatever reason, people not telling the whole truth indicate that a voluntary patient will be sectioned if they try to move?

Dr Chalmers: I think that hospitals should be very interested in how they treat their patients and in the fundamental principles of fairness, respect, honesty and all of that. It is not just an issue for the GMC. It is unfortunate that you should focus just on doctors, although we are important in this; it is a wider professional issue. In fact, a lot of these statements may relate to health care assistants, who may misunderstand the nature of this. That is my experience on the wards; you may have a different experience.

Chair: Rosie, you have put the point and got the answer. Health questions start at 11.30, so we are under a bit of pressure this morning. Grahame wants to come in on this.

Q58 Grahame M. Morris: Alison, you have been really quiet. Could you tell us your opinions on this issue of safeguarding? Are there any differences in the application of the safeguards between NHS providers and private sector or independent social care providers?

Alison Cobb: Are you asking about the DOL safeguards, in particular?

Grahame M. Morris: Yes.

Alison Cobb: I do not have data on that. I am not sure-

Q59 Grahame M. Morris: Is there any sort of anecdotal evidence that there are issues here? In terms of our role, is there anything that we should do to support the smaller providers to ensure that proper safeguards-advocacy and so on-are there?

Alison Cobb: Thinking of smaller providers, there are real issues with support in terms of understanding and applying the Mental Capacity Act as a whole, understanding what the Mental Capacity Act means about working in people’s best interests, understanding at what point the DOL safeguards become relevant, using and applying the safeguards and applying for authorisations. Certainly, when the alliance looked at experience earlier in the introduction of DOLS, there was quite a lot of variation in people’s understanding, even to the point of thinking that, if staff were working in someone’s best interests, DOLS did not come into it because they were working in a person’s best interests-which was completely missing the point. There is a need for training and continuing support, however that is provided. We should have a national focus on DOLS and how they are implemented, and we should support people to do that well. The people who are giving the care and treatment in conditions that amount to a deprivation of liberty are responsible for activating that process. It depends on them, so it is totally fundamental that they know what they are doing.

Q60 Grahame M. Morris: Mr Lawton-Smith may be able to answer this question. In your evidence, you express concern about a "lack of protection for anyone deprived of their liberty in care settings" that are not hospitals or registered care homes. What sort of care settings were you referring to in that regard?

Simon Lawton-Smith: I am sorry; not hospitals or-

Grahame M. Morris: Not hospitals or registered care homes. Some concerns were expressed about lack of protection for people who were being deprived of their liberty. I wondered what settings you were referring to. Are they in the community?

Simon Lawton-Smith: I appreciate that you have asked me the question directly, but I have to say that it would be helpful if I could pass it over to Julie, who is our expert.

Alison Cobb: Is the concern around people in supported living arrangements, to which this law does not apply?

Q61 Grahame M. Morris: I just was not clear. Is that what it is?

Alison Cobb: I think that would be our concern.

Dr Chalmers: Yes, the safeguards are not available to those in supported living. One of the fundamental requirements to be caught by the deprivation of liberty safeguards is that you lack the capacity to make the decision about the arrangements for your care and treatment. People in supported living arrangements have a tenancy, and you have to have capacity to have a tenancy; it is rather circular and convoluted. However, they are vulnerable people, aren’t they? They may or may not need these deprivation of liberty safeguards, but they certainly need safeguards if they lack capacity, because it might be borderline-and capacity is decision-specific. You could have capacity for tenancy but might need the safeguards of the Mental Capacity Act for serious medical treatment.

You asked about the different settings. We know that the majority of patients who are subject to deprivation of liberty safeguards are in care homes, which are mainly in the private sector, aren’t they? The NHS accounts for a small proportion. Of 1,500 people, cross-sectionally, who are deprived of their liberty under these safeguards, only 200 would come from hospital settings. That begs the question: are hospitals picking that up? Care homes seem to be making more of the applications, but they have more numbers. An issue that may be more interesting than the settings is the variability in the application of deprivation of liberty safeguards.

Q62 Grahame M. Morris: Is there any reason why they should not be applied in an independent living environment? Does the Act prevent the application of DOLS?

Dr Chalmers: I know Lucy Bonnerjea from the Department of Health is here, so I will defer to her. However, as I understand it, it does not extend to supported living settings. I raised a point about variability, which is something that the alliance would like to bring to your attention; you are no doubt aware of it. The first thing I would say is that we must have a caveat about raw figures. Currently, that is how it is reported-just in terms of numbers. As far as I am aware, these figures are not currently expressed per 100,000 and then further finessed for skewed age demographics as well. One of the experts at SCIE tells me that, if you look at the raw figures for certain areas, it looks as if they make very few applications, but when you correct them and give the number per 100,000 they come within the national average, so I think we need more definite figures. However, it is curious that in the recently published six-monthly reported figures there is one place that made no applications. That does beg a question. It is either a beacon of exceptionally good practice in use of the MCA-

Chair: Or-dot, dot, dot?

Dr Chalmers: Or not. Or something in between, perhaps.

Q63 David Tredinnick: I want to ask you about ethnicity and detention. Have the reforms in the 2007 Act done anything to tackle the disproportionate presence of some ethnic minority groups within the mental health system, or have the provisions actually made it worse?

Alison Cobb: I will pick this up. I am not sure whether the changes are responsible for making it worse. Certainly, it has not improved. The NHS Information Centre and the Care Quality Commission figures show a continued disproportionate representation of people from some black and minority ethnic groups in both the population of people who are detained and those on supervised community treatment. That applies particularly to black groups-African, African Caribbean and some mixed groups. There is a principle in the Mental Health Act code of practice that addresses diversity and individuals-I cannot remember the exact words-but I do not think that that on its own would provide sufficient leverage to tackle this issue. I am not sure what other changes that were introduced could have had such a reduction as an objective.

There are a number of reasons why this over-representation may be happening. It is an area of real concern to us. Attention has been drawn to it year after year, and it seems very difficult to change. There could be a number of issues, from high levels of illness to coming to services later, when people are more likely to be in crisis, to decision making that may be based on stereotypical interpretations of how someone is behaving. The whole "circles of fear" phenomenon is still likely to be a very important factor. The study on that was done 10 years ago, but I imagine that the phenomenon is still likely to be very current. It suggests that people from black communities may be afraid of services and have fears around being detained, medication or how they might be treated. The impact of that results in damaged trust and people not wanting to engage with services and, perhaps, delaying making contact with services until really late in the piece, when it may be more likely that the Act will be used. There is also an interaction between that and fears within mental health services, which kind of compound each other.

Naomi James: I want to add something from a more recent study by Dorothy Gould, on service user experiences of recovery under CPA. The key findings relating to ethnicity were that, in their answers to the questionnaire, African and African Caribbean men and women were particularly dissatisfied with mental health professionals’ lack of openness to non-diagnostic explanations of mental distress. Their ratings for recovery services provided under the 2008 care programme approach were also mostly lower than those given by participants as a whole. Just to add to that, on the idea of circles of fear, we work with a largely BME group in Hackney, to which I referred earlier. There is great concern about restraint and coercion. I think the deaths of BME health service users have contributed to this circle of fear. Sean Rigg’s coroner’s report last summer described excessive use of force and poor leadership by the Met Police. In addition, the pending coroner’s report is expected to be critical of excessive use of force, again, in South London and Maudsley’s crisis care of Olaseni Lewis. Some of the learning from where trusts have stopped using that, and how that can be replicated, would assist with some of the fear around accessing mental health services, and people leaving it until the very last point and ending up getting sectioned.

Q64 David Tredinnick: Chair, we are very short of time, but I have one other question. No mention has been made of drugs. We have a situation where the black or black British community is 3% of the whole population, 10% of the in-patient population and 15% of those receiving community treatment orders. What impact do you think marijuana and skunk have on mental health in this community?

Dr Chalmers: Probably the same impact that they have on all communities.

Q65 David Tredinnick: The point is that they may be disproportionately used in that community, because there is a cultural aspect to this.

Naomi James: There is a study by Curtis in 2006 about London having higher psychiatric admission rates in deprived, low socio-economic areas. Obviously, high unemployment rates, alienation and people feeling a lack of community, stigma and discrimination can lead to people disconnecting from the community. Of course drugs do have an impact on people’s mental illness, but the issue is why they are using them in the first place, and whether they are using them to manage their condition-from their perspective-or to manage their social condition as well. It is worth bearing in mind as important factors the wider social determinants of where those people actually live and potentially work.

Dr Chalmers: Can I make an anecdotal comment? I work in north Oxfordshire, in the leafy shires, where we have a predominantly white British community. My assumption is that every young person I see is smoking weed, as they say. It seems a common occurrence among the young-and the not so young. I do not think I would focus that concern on one particular community; it is an endemic problem.

Q66 Chair: If we looked at the incidence of in-patient care and CTOs by socio-economic group rather than by ethnic group, do you believe that we would find that the discrepancy for ethnic groups is more about their socio-economic breakdown than about any kind of ethnic breakdown?

Dr Chalmers: It may frustrate you if I say yet again that there is a study that is about to be reported; we have heard preliminary results, but I do not have permission to share those with you. It is the AMEND study, which has looked into the issue of trying to factor out things such as ethnicity and place of residence. I think it may have an interesting contribution to make to that.

Q67 Chair: We look forward to it. When is it likely to be available?

Dr Chalmers: It is by Professor Swaran Singh. The Department of Health may be able to give you more details, but he has certainly presented preliminary results, so it should be available within the next few months or so.

Chair: Okay. We shall act as a trailer for it, if nothing else. Thank you very much indeed for your evidence. I am sorry that we were a bit rushed at the end, but we have to be elsewhere at 11.30.


[1] Ev ?? , paras 2–3

Prepared 9th August 2013