Scrutiny Watch

Links to evidence and transcripts

2005-03-31T08:45:00.000Z

Links to all of the Joint Committee meetings are now permanently on Scrutiny Watch's front page, in the sidebar on the right under "Evidence sessions".

The full corrected transcripts of all of the sessions, and all published written evidence submitted to the Committee, are now online here.

Mental Health Alliance welcomes scrutiny committee report

2005-03-24T15:35:00.000Z

The Mental Health Alliance issued the following press release in response to the publication of the Joint Committee's report:

Alliance welcomes scrutiny committee report into Draft Mental Health Bill

"The Government's plans for a new Mental Health Act have reached a dead end following today's scrutiny committee report into its second draft Bill," Mental Health Alliance chairman Paul Farmer said today (Wednesday 23 March 2004).

Speaking on the day the report by a committee of MPs and Peers was published, Paul Farmer said: “The Mental Health Alliance now calls on the Government to withdraw its current proposals and consider in detail the committee’s report. We propose that Alliance members, the Government and all political parties now work together to formulate a new Bill that is based on these recommendations.

“The committee has clearly listened to service users, carers, professionals and charities. It has described Government’s proposals as ‘fundamentally flawed’ and warns that the powers in the draft Bill would lead to too many people being treated against their will.

“We welcome the report’s call for compulsory mental health treatment to be used only where there is no alternative; where it has therapeutic benefit; and when the person concerned is unable to decide for themselves about treatment.

“The committee has also clearly understood the stigma that surrounds mental illness and the important role the Mental Health Act should play in improving services and tackling popular prejudices.”

Members of the Mental Health Alliance also commented today on the report:

Gil Hitchon, Chief Executive of Maca, said: "Having submitted its draft Mental Health Bill to a thorough scrutiny the Government has to heed the committee's advice and radically alter its plans for reforming the law. For the past seven years the united voice of the mental health sector has been saying that the proposals are out of step with what is needed. The Government now has to work together with those with experience of mental illness and the organisations providing services to get the legislation right."

Sophie Corlett, Director of Policy at Mind, said: "It is now high time for the Government to go back to the drawing board. The committee's conclusion is a clear wake up call to supporters of this ill-conceived Bill. It cannot possibly deliver better healthcare for service users. It cannot even deliver better management of the tiny percentage of seriously ill patients who pose a risk to the public. All it can possibly deliver is fear and mistrust among ordinary people who rely on front line mental health services in times of crisis. What they want - and often fail to get - is help and support. The last thing they need are threats to their civil liberties and a health care system in crisis."

Lord Victor Adebowale, Chief Executive of Turning Point, said, “There are a whole host of people who do not receive appropriate support for their mental health problems, be it in the community or in hospitals under mental health legislation. This is particularly true amongst Black and Minority Ethnic communities whose needs are not met, and are under-represented in community treatment, but are over-represented and treated against their will under current mental health legislation. New mental health legislation will only be worthwhile if it does something to tackle this imbalance, backed up by the necessary investment to address the shortage of staff in hospitals and the community. I would urge the government to follow the committee's advice, scrap this unworkable Bill and start again.”

Cliff Prior, Chief Executive of Rethink, said: "The committee's report will be warmly welcomed by people with mental illness and their carers. It's time to bring all parties together and create balanced, workable and ethical leglislation."

Dr Tony Zigmond, Vice-President of the Royal College of Psychiatrists, said: "Patient care is markedly improved when there is a trusting relationship between a patient, their carer and psychiatrist. The draft Mental Health Bill would have undermined that trust. The Joint Committee's recommendations, if adopted by government, would ensure an ethical and practical framework for mental health legislation."

Angela Greatley, Chief Executive of the Sainsbury Centre for Mental Health, said: “The scrutiny committee has clearly listened to the evidence presented to it and produced a report that sets out a workable way forward for a new Mental Health Act. It rightly states that any Bill will need to have sufficient resources attached to it and clear national standards for staff to follow.”

Marjorie Wallace, Chief Executive of SANE, said: "We continue to fight for a humane mental health system which values compassion over compulsion and protects individuals affected by mental illness by achieving a better balance of rights between service users, their families and carers, and the community. But changing the law alone will not work unless we ensure proper care and treatment, which are still so often lacking. The government needs to make good the desperate shortage of doctors, nurses, skilled front-line staff and supervised accommodation, whether in hospital or the community, if patient and public trust in the mental health system is to be restored."

Dr Andrew McCulloch, Chief Executive of the Mental Health Foundation, said: “The Government should now withdraw its discredited Bill. It has a once-in a generation opportunity to improve the lot of those who use mental health services, and drive mental health care up the political and social agenda. Service users, professional organisations and charities have been and remain very willing to work constructively on a better way forward for everyone.”

Joint Committee report condemns "fundamentally flawed" Bill

2005-03-24T15:23:00.000Z

The Joint Committee published its report on Wednesday, accompanied by the following press release:

Mental Health Bill Needs Radical Overhaul
Government plans to reform mental health provision will force too many people into compulsory treatment and will erode their civil liberties.

That’s the conclusion of a joint House of Commons and House of Lords Committee that recommends the draft Mental Health Bill gets a radical overhaul before it’s put to the vote.
MPs and Lords believe the bill places too great an emphasis on protecting the public from a small minority of dangerous mentally ill people. The Committee believes this will be at the expense of the civil rights of the majority who pose no risk to others.

Compulsion

The Committee accepts the merits of having a broad definition of mental disorder, but the draft Bill needs to have clear exclusions ensuring that legislation cannot be used as a means of social control.
The Committee fears that the powers granted in the current bill could potentially be used as the equivalent of a mental health ASBO – enforcing treatment on those who might be a ‘nuisance’ but who don’t pose any significant risk to the public.

Under current proposals, treatment can be enforced simply ‘for the protection of other persons’. The Committee believes that conditions should be tightened to ensure that legislation cannot be used inappropriately. It concludes:
That people should only be forced into compulsory treatment if they pose a significant risk of serious harm to others.
That patients should never be treated under compulsion unless their decision making is impaired.
That compulsory treatment must be of therapeutic benefit to them.
The wide definition of treatment in the bill means people diagnosed with personality disorders or learning disabilities could be detained on the grounds of public safety rather than benefit to their health. Not all treatments may help a patient to recover from their mental illness, yet doctors may be forced to detain them regardless.
Separate Legislation
MPs and Lords also recommend that people who can’t benefit from treatment – which includes dangerous and severe personality disorders (DSPD) – should be dealt with by separate legislation.
As a consequence of the inclusion of criteria of therapeutic benefit and impaired decision making (see above), a small group of people with DSPD may not meet the conditions for the use of compulsory powers, hence the need for separate legislation.
What the Bill should focus on:
The primary purpose of mental health legislation should be to improve services and safeguards for patients and to reduce the stigma of mental disorder. The fundamental principles underpinning the legislation must be set out on the face of the Bill. This will provide clear guidance for professionals and tribunals and provide assurances to users of mental health services.
Whilst the committee supports compulsory treatment in the Community it believes it should be more restricted than under current proposals. There should be clear criteria about who can be treated at home and time limits should be set as to the length of their treatment. The Committee are concerned that people could be treated indefinitely with little hope of ending their compulsory treatment.
Finally, MPs and Lords also have major concerns about the resources needed to implement the Bill. Without adequate staffing and funding, the new tribunal, for example, will fail to improve patient safeguards, and mental health could remain the ‘Cinderella service’ of the NHS.
Lord Carlile said:
“This is an important reminder to the Government that the Bill is fundamentally flawed. It is too heavily focused on compulsion and currently there are neither the financial resources nor the workforce to implement it."
Far too many people could be forced into treatment unnecessarily.
They can be detained even though the treatment they receive does not help their condition. And they can be detained compulsorily even if they are perfectly capable of making their own decisions.
This is well beyond what is required and the Committee believes that ministers should consider redrafting significant sections of the Bill.
At present, the draft Bill is too focused on addressing public misconception about violence and mental illness, and does not do enough to protect patients' rights.”

You can download the full report here.

Report publication date announced

2005-03-18T17:28:00.000Z

The Joint Committee on the Draft Mental Health Bill will publish its report on Wednesday 23 March at 00:01 am.

Tick-box exercises and discretion

2005-02-24T17:04:00.000Z

In the thirteenth evidence session, Roger Hargreaves of BASW explains that the professionals who have to decide whether someone meets the conditions for compulsion will have much less discretion under the Bill than they do under the current Act. This would make it more difficult for them to decide not to detain someone - and could lead to an increase in the number of people receiving compulsory treatment (uncorrected transcript):

Q954 Baroness Pitkeathley: My question is for our colleagues from BASW, please. In your evidence you point out that there is an absence of a discretion in the Bill not to take action even where the minimum conditions are satisfied. Surely, if somebody meets the conditions in clause 9 they are going to be seriously mentally ill and therefore in need of treatment, so I am not quite sure what is the purpose of providing a discretion.
Mr Hargreaves: The conditions of clause 9 are so broad that they would in fact encompass thousands of people who are definitely not seriously mentally ill in the way that we generally understand that term. In Appendix 2 of our evidence we give as an example two very large groups of people who are constantly coming to the attention of mental health services but who are very rarely detained under the present Act although they are often admitted informally into hospital and who would very clearly meet all the conditions in clause 9 of the Bill.
The present Act would also allow many of those people to be detained, although not all of them because some of them would be explicitly excluded by the exclusions. At least they would be detained for the first 28 days until the conditions become tighter under the present Act. However, that does not happen automatically at present because the doctors and the approved social worker have discretion. They are not forced to detain somebody simply because the minimum conditions in the Act are satisfied.
The Bill, however, takes away virtually all of that discretion. It is basically a simple tick box exercise. If all the boxes in clause 9 are ticked then compulsion must be imposed and this means that the doctors and the AMHP cannot take into account any factors which have not been explicitly envisaged in clause 9. In particular, they cannot take capacity into account. There has been a lot of talk about the need for a capacity test in this Bill. I think it has been overlooked that the present Act does allow capacity to be taken into account because that is one of the areas where the doctors and the ASW can exercise discretion. In practice, that is one of the most common reasons for not detaining somebody when the minimum conditions are satisfied. The Bill therefore removes the capacity test which is inherent in the present Act even though it is not explicitly stated.

Hargreaves continues:

...it very much narrows the range of discretion and it would result in very large numbers of people being made subject to compulsion who we would never consider making subject to compulsion at present.

Carers, confidentiality and consultation

2005-02-15T12:20:00.000Z

During the fourteenth evidence session, Imelda Redmond of Carers UK gives an example of what can happen when carers are left out of the decision-making process about what should happen to the people they care for:

Q1013 Baroness Pitkeathley: You talk about the human rights of the carer, but some would say that giving information to the carer against the wishes of the user would be a denial of the user's rights, so how do we wrestle with that?
Ms Redmond: I think there are two things. I think advance statements are absolutely key to quality mental health services and when the person is not so ill, better discussions can take place that involve the carer. If the person is adamant that they do not want the carer involved, then what you do is separate out the issues that specifically will impact on that carer and consult with the carer on those issues. It is absolutely reasonable for somebody to say, "I cannot be there when this person is discharged next Thursday because I work full-time".
A carer I was talking to just last week went for a planning meeting at the hospital and the hospital said, "You can take your husband home now. He could do with a day at home". She said, "No, I'm going back to work", and they said, "But you are here now". She said, "But I've only got half a day off work", and they said, "Well, you can take him home". She phoned in work and said, "Can I have the day off?", and she got carer's leave. Then they rang her and said, "Would you mind now keeping him?", and she said, "I'm afraid I can't. I really have to go to work, but he can come back in a taxi", to which they said, "No, he can't go out unescorted". That was the first point she had been told that. In that situation, he was not saying, "Don't tell my wife anything". Had he have been, she still has an absolute right to her own consultation about, "Are you prepared at this point to give up some work or to stop working and to remain in the house in order to support this person?" Now, that is not about the confidential issues of the service user, but it is actually about their own separate human rights.

Autistic Spectrum Disorders and the conditions for compulsion

2005-02-15T11:33:00.000Z

A helpful exchange during the twelfth evidence session with the National Autistic Society, which helps to explain why the NAS and others think that the definition of mental disorder is currently too broad, and what they think should be done about it:

Q898 Mrs Blackman: ... The Government is currently saying there are sufficient safeguards, if we look at the definition of mental disorder and what clause 9 in the Bill has to say, to ensure that people with ASD are not wrongly taken down a pathway to compulsory treatment. Would you agree with that?
Mr Mills: No, but my colleague will answer that.
Dr Crocombe: No, we would not agree with that. In our opinion, the definition of mental disorder - as shared by a number of other psychiatrists and professionals - as currently defined is too broad, and could be applied to the majority of people with an autistic spectrum disorder. An additional concern is that the second condition is also too broad when the definitions of medical treatment are taken into consideration, and, taken to extremes, under the powers of the draft Bill it is conceivable that a person could be detained for no other reason than that they have an autistic spectrum disorder and that this is of a nature or degree as to require, for example, training in work. Finally, the third condition as currently stated in the draft Bill gives scope for an over-cautious interpretation of the requirements necessary for the protection of the patient from serious neglect by him of his health or safety.
Q899 Mrs Blackman: What should be done to safeguard somebody with ASD being inappropriately treated? Would you like to see something in the code of practice or a specific exclusion on the face of the Bill?
Dr Crocombe: We would have a number of suggestions. Firstly, we would recommend that the definition of mental disorder within the Bill be revised, we would believe to include reinstatement of the requirement that the mental disorder is also associated with behaviour that gives cause for serious concern. You will be aware that in the 1983 Act there was a requirement in the example of people with severe mental impairment that this be associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned. At the time of the introduction of that Act, it was noted that the inclusion of that requirement was to acknowledge the need to distinguish the small minority of people who need to be detained from the majority who do not, and we believe that for people with autistic spectrum disorder it is important that this distinction continues to be made. We do however acknowledge that the exact wording in the 1983 Act did leave quite a lot of scope for interpretation of what was meant by abnormally aggressive or seriously responsible.
Q900 Chairman: Forgive me for interrupting, could you help us as to which of the words in clause 9(4)(a) you object to. You have: suicide; serious self-harm; serious neglect by him of his health; serious neglect by him of his safety. Which are the objectionable parts of that, so we are absolutely clear what you are saying?
Dr Crocombe: It is: serious neglect by him of his health or safety. With regard to that particular part we would recommend that there would be some clear guidance, possibly within the code of practice, for that respect, to assist practitioners in making sound judgments when considering what degree of neglect of health or safety warrants detention and treatment, and this would be to protect against over-paternalism which has been recognised ----
Chairman: I am glad I asked the question because I understand your answer more clearly now.

Aftercare and the abolition of section 117

2005-02-14T16:48:00.000Z

During the twelfth evidence session the Committee questions the witnesses from the Alzheimer's Society at length on the Draft Bill's proposed abolition of section 117 of the Mental Health Act, which guarantees free aftercare services for as long as they are needed to patients released from compulsory detention. Professor Clive Ballard explains the difficulty of forcing someone to pay for care which is being imposed on them (uncorrected transcript):

It is a particularly difficult issue when you are imposing residential or nursing care on somebody as what you think is the only safe option, but then insisting that that individual pays for the care. I think it does create an ethical dilemma and also, often, a practical dilemma if you have to try and make the resources available to pay for that.

Lord Mayhew asks whether the cut can be justified for any reasons other than the need to save money:

Q947 Lord Mayhew of Twysden: Can there be any justification for fixing an overall period of time? Can there be any explanation for doing that other than an economic one, a desire to save money, and if you get it wrong in the case of an individual does that not suggest a greater likelihood of that person going back into residential care because the aftercare cannot be protracted to the extent that that individual requires?
Professor Ballard: It is difficult to see advantages other than economic of the time limitation, and I also would agree that it is true that if that jeopardises the long-term success of the care in the longer run that might increase the cost through hospital readmission.

Lord Carlile asks Clive Evers why there should be any difference between the level of aftercare provided for patients with a physical illness and those with a mental illness:

Q949 Chairman: Acting as devil's advocate for a moment, if I come out of hospital following a physical illness I am not entitled to on-going, permanent, unlimited aftercare free. Why should the situation be different for people who have been suffering from a mental condition; suppose people had been suffering from a physical condition?
Mr Evers: Because if you are discharged from hospital having suffered a physical condition, it is assumed that you are recovered. If somebody has a mental illness like Alzheimer's disease or another type of dementia, those conditions are not reversible. There are treatments to help but they do not stop or reverse the condition.

Prof Ballard adds the following key point to the answer:

For me, in addition to the other issues that Clive raised, the other thing that is actually different is that in a situation where you are imposing a particular care plan on somebody that they might not want to have imposed on them because you think that is the safe way or in their best interests within the definition of the Act, that is slightly different to somebody with a physical illness who is choosing to opt for particular types of aftercare.

Lord Carlile picks up on the suggestion that it might make sense for clinicians to use CTOs to provide aftercare for free for patients who would otherwise be charged for the care they receive in the community following discharge from hospital:

Q951 Chairman: Do you think the six week provision, if enacted, might lead to clinicians regarding a community treatment order as a neat way to get round the costs issue and therefore might lead to more community treatment orders than would otherwise be the case?
Professor Ballard: I think that is true and most clinicians would say that in somebody with a complex mental health problem six weeks is actually a fairly short period of time to see whether a particular treatment plan will actually be effective or not.

Finally, Lady Eccles asks how many people would actually be affected by the proposal. It isn't at all clear (this is true of patients in general, not just of those with dementia referred to by Prof Ballard) but it seems that the numbers involved are quite small:

Q952 Baroness Eccles of Moulton: Has any research been done into people who are at present receiving continuing services because there is not a six week cut-off period, how many people roughly that would affect and do we know what a difference it would make to existing users?
Professor Ballard: As we have said, it has been very difficult to obtain figures specifically for people with dementia. We might be able to get specific access to those figures, but at the moment the only figures available are for older people generally so I can only really talk to my own clinical experience; during the time I had a catchment area service for older people we would be probably be talking of a few people a year in one catchment area of about 10,000 older people. So I do not think it is huge numbers.

Police cells and places of safety

2005-02-14T16:40:00.000Z

Lord Adebowale, giving evidence at the twelfth evidence session on behalf of Turning Point, argues that police cells should not be seen as "a place of safety" for people who are being assessed before compulsory admission to hospital - and that the problem disproportionately affects people from black and minority ethnic communities (uncorrected transcript):

In section 136 of the 1983 Act, the police can take a person from a public place to a place of safety for up to 72 hours for assessment to determine whether compulsory admission to hospital is needed. This is replicated in clause 229 of the draft Bill. While there are no official figures, we do know that section 136 could be used as many as 10,000 times a year. The detention of people with mental health problems in police cells has hit the headlines, and Nick Hardwick, who is the co-chair of the Police Complaints Commission, estimates that 50 per cent of deaths in police custody have involved people with mental health problems. He puts it quite bluntly: "Whatever a police cell is, it is not a place of safety for people with mental illness." Despite the fact that the current code of practice states that police cells should not generally be used in practice, they are. Mind estimates that police cells are used in about 80 per cent of occasions when section 136 powers are invoked.

This is very relevant to African and Caribbean communities, given the fact that black people are more likely, as you have already heard, to have a negative experience with the police and to be over-policed - without opening up that whole debate again, recalling the McPherson report and the death of Stephen Lawrence, etcetera. Racism aside, it acknowledges that the police, particularly custody officers, do not have adequate training, if any, about mental health issues and especially when a person is distressed and causes disturbed behaviour. To add to that, the Mental Health Act Commission has repeatedly stated in their biannual reports - as many other stakeholders have mentioned - that police stations should not be regarded as places of safety. A police station is not an appropriate place for the care of someone with a serious mental disorder. It is not appropriate for someone to be held there for up to three days whilst arrangements are made for their examination, and the Bill should state that, because we know it disproportionately affects members of BME communities.

CTOs: evidence and ethics

2005-02-14T14:34:00.000Z

Lord Carlile asks Peter Bartlett and Graham Thornicroft in the fifteenth evidence session whether they support the introduction of community treatment orders.

Prof Thornicroft begins by explaining that the evidence for the effectiveness of CTOs is very weak. In any case the situation in England, in terms of existing patterns of compulsion, is different from that in the countries which already use CTOs. This means that it would be difficult to draw firm conclusions about their potential effectiveness here from any studies suggesting that they are effective elsewhere (uncorrected transcript):

Professor Thornicroft: I want to start with the evidence. There is not strong evidence that community treatment orders or their equivalent are effective. Most of the published work comes from Canada or Australia and there are few European studies. They tend to show conflicting results and they have different objectives, but they do not show consistently that these are effective with respect to any of the particular desired targets, such as increased medication compliance or reduced hospitalisation.
One of the most detailed reports came from the RAND Corporation published in 2001 and reviewed arrangements in nine of the United States where now 38 of the states do have outpatient treatment orders or similar arrangements, and they concluded, "There is no evidence to suggest that simply amending the statutory language is likely to produce the required results." I think we also need to look at the wider context within European regions. For example, four of the previous 15 EU States do have outpatient commitment orders. Britain is virtually alone in having an increasing rate of compulsion within its mental health system over the last ten years and although most countries see stable patterns of the use of coercion in these ways, we have seen increasing rates of section 135, which is the compulsory entry to premises, of three times over the last decade, of section 136, which are the place of safety detention orders, of five times, and use of section 3 by 1.4 times over that period. For some reason England is an exception in terms of the trends of compulsory treatment just within the European region, Western Europe in this case.

Prof Thornicroft goes on to argue that CTOs violate national and international principles of mental health care, that they will tend to reinforce the idea that violence and mental disorder are linked, and that they will deter people from seeking treatment for mental illness:

Perhaps I may move on to the ethical aspects. As I mentioned earlier in that summary table, I think the community treatment orders do cross-cut, in fact they violate many of the principles which are established in international as well as relevant national mental health policy, as set out in the relevant documents. I think this is a very difficult balance of judgment. I think the one practical way to increase patient compliance, meaning agreement with a recommended plan of treatment, is to offer choice.
For example, in my own practice in south London we now have home treatment teams, we have crisis houses for women and we have acute inpatient treatments. I can ask a woman who is in a crisis, "Would you prefer to go into hospital, to be treated at home or to go to a crisis house?", and this means that we use compulsion less than we would have done five years ago. We now have new arrangements in the form of a crisis card and there is accumulating evidence that these do reduce compulsory admission rates to hospital.
I think there is an offset or a balance here: on the one hand, it seems likely that CTOs, if properly and narrowly applied, would probably apply to less than one per cent of one per cent of the population, approximately the same numbers as were applied for supervision registers and supervised discharge orders; on the other hand, we need to understand the wider framework and that is this. Of all inpatients, there is evidence that one third of the voluntary inpatients believe themselves to be compulsorily detained and two thirds are not sure whether they are compulsorily detained or voluntary. So we have got forms of pressure and coercion that go well beyond the narrow legal restraints of the powers that are set by our Government.
Therefore, I think, on the one hand, this may provide a limited benefit to a small number of patients, but, on the other hand, I think we need to listen carefully to what service user groups are saying, which is that this will not just stop current patients from wanting to continue with treatment, but it will then reinforce a connection in the public mind between violence and mental illness. We know that of all people with mental illness in England about one quarter are getting effective treatment and that the proportion is far less in many other countries. I suspect that if we were to frame this too widely then we would see more people self‑stigmatizing and not presenting to services because they do not want to be labelled as a mentally ill person because that is connected with violence and we will see fewer people having treatment and that will serve no one for the best in the long term.

Lord Mayhew asks Prof Thornicroft to clarify his argument that introducing CTOs would increase stigma:

Q1142 Lord Mayhew of Twysden: Professor Thornicroft, I am sure it is my fault, but I lost you in the course of your last contribution when you said, as I understand it, that a CTO would serve to increase stigma in the public eye for mentally suffering people. I think the stigma was the propensity to violence. I am afraid I lost you at that point. I did not quite follow the reasoning. Can you help?
Professor Thornicroft: There is little evidence about the extent to which popular opinions of mental illness and the views of people with mental illness about their own conditions are related to the law in any country, so this is a matter of opinion. My view is that a law based upon one central tenet, among others, which is the connection between mental illness and violence, further serves to strengthen that view in the wider population and that will serve to deter people from coming forward when they have symptoms of mental illness for assessment and treatment and also may serve to further exclude mentally ill people from within the mainstream of our society.

Predicting risk

2005-02-14T14:23:00.000Z

In the final session, Prof Graham Thornicroft is asked whether the Draft Bill would make it any easier for mental health professionals to predict and prevent violence by people with mental health problems. The answer is a clear no (uncorrected transcript):

Q1133 Chairman: In your general experience, both of you as experienced and distinguished experts in this field, do you believe that there is any evidence at all that the regime for control of mentally ill people, short of an obviously unacceptable regime, has any effect in terms of enabling clinicians to predict the sort of incident that Lord Carter has referred to [i.e. incidents where people kill after being released from psychiatric hospitals]?

Professor Thornicroft: If we look at the time trend in this country over the last 40 years, we see that the total number of homicides has gone up from about 150 to about 600 per year, of which those committed by people who are probably mentally ill at the time has been more or less constant, about 50 to 60 per year. Over that time period we have seen astonishing change from an institutionally based system to a largely community-based system. It would be hard to imagine a greater transition in the pattern of care than the one that we have been through during the last half decade and yet that has had no palpable effect overall upon the number of homicides committed by mentally ill people. I think that is pretty strong evidence.
Unfortunately mental health professionals are remarkably poor at being able to predict specifically who will commit a violent act in the future, and one of the best reviews was conducted by a Professor Buchanon and Dr Leese who gave an overview of the literature with respect to personality disorder. The question was how many people would need to be locked up to prevent one severe act from taking place and the answer was seven, which meant that the provision based upon, for example, dangerous and severe criteria would, therefore, lead to six innocent people who would not have committed that act being locked up for no particular reason.

Community Care: Cuts in free aftercare may lead users to seek community treatment orders

2005-02-14T10:58:00.000Z

Click here for an article from Community Care reporting on the proposed cut in free aftercare for patients released from compulsory detention (section 117 of the 1983 Act) to just six weeks. Maca and the Alzheimer's Society argue that the cut would create "a perverse incentive" for patients to seek to be given free compulsory treatment in the community under a CTO instead. Maca's written evidence submission on the topic is here.

Lack of posts - an apology

2005-02-14T09:24:00.000Z

Apologies for the fact that there has been no posting here for a while, and no detailed discussion of the final few Joint Committee sessions. This is due to a combination of my annual leave and the long delay in the posting on the Joint Committee's website of transcripts from the last few evidence sessions (the afternoon session from January 26 is still not online at the time of writing). Links will be updated, new detailed posts produced and normal service resumed over the next few days.

Two watches

2005-02-03T13:46:00.000Z

Dr Peter Bartlett, who is a qualified lawyer in Canada, explains at the Committee's afternoon session on 2 February why Canadian laws in general do not include Codes of Practice. He says that a Code of Practice will either mirror the terms of the statute in clearer language (in which case, why not use the clearer language in the statute?) or it will not (in which case it may risk contradicting the statute, or at least introduce uncertainty). He goes on:

"A person with a watch knows what time it is; a person with two watches is never sure."

Fifteenth evidence session: 2nd February 2005, pm

2005-02-03T11:11:00.000Z

In the afternoon session there were three sets of witnesses.

The first group represented the National Forum for Assertive Outreach, and consisted of Mike Firn, Michael Hicks and Judith Fairweather. The NFAO's written submission is here.

The second group gave evidence on international perspectives on mental health law. They were Dr Peter Bartlett, Senior Lecturer in Law at the University of Nottingham, and Prof Graham Thornicroft, Professor of Community Psychiatry at the Institute of Psychiatry, Kings College London, and Director of Research and Development at the South London and Maudsley NHS Trust. Links to their written evidence will be added as soon as possible.

The final group (postponed from last week) was from the British Medical Association (written evidence here) and the Royal College of General Practitioners (written evidence here). Dr Michael Wilks, Dr JS Bamrah and Dr Robin Arnold represented the BMA, and Prof Andre Tylee and Dr Alan Cohen represented the Royal College of GPs.

A full uncorrected transcript of the session is here.

Fourteenth evidence session: 2nd February 2005, am

2005-02-03T10:50:00.000Z

In yesterday's morning session the Committee heard from witnesses representing carers, and then from witnesses representing mental health advocates.

Carers UK was represented by Imelda Redmond, and Mark Robertson. North Derbyshire Forum for Mental Health Carers was represented by Dr Gwen Wallace, and Linda Landsell. To read Carers UK's written evidence click here and to read North Derbyshire Forum for Mental Health Carers' written evidence click here.

The next set of witnesses were Rick Henderson and Karen Mellanby of Action for Advocacy (written submission here), Hilary Dyter of Leeds Mental Health Advocacy Group, Jonathan Coe of the Association for Mental Health Advocates (submission here), Peter Munn of Cymar (submission here) and Beverley Mills of UKAN (submission here).

A full uncorrected transcript of the session is here.

Mechanical restraints to be reintroduced?

2005-02-02T13:57:00.000Z

Today's Society Guardian has a major feature on the possibility that mechanical restraints for psychiatric patients may be reintroduced into the NHS - it reports that a US manufacturer of restraint products, Handle With Care, visited Britain last December to present to a sub-committee of the government's interdepartmental group on violence and aggression.

Click here to see the company's website, which shows a man in a gorilla suit with the caption "What do you give a 900lb gorilla?". Roll your mouse over the image, and it changes to a picture of a smiling man strapped to a restraining bed, with the caption "The best care in the jungle".

Guardian: Campaigners attack mental health reforms

2005-02-01T15:31:00.000Z

The Mental Health Alliance held a rally in Westminster yesterday. To read a Guardian article about the event, click here.

Community Care: Police stations should not be used for assessments

2005-02-01T15:27:00.000Z

Click here for Community Care's report on the evidence given to the Joint Committee by Turning Point and the BME Mental Health Network.

Thirteenth evidence session: 26th January 2005, pm

2005-01-27T10:02:00.000Z

In the afternoon session the Committee was due to hear from three sets of witnesses, but the meeting was interrupted by a fire alarm.

The Committee heard first from the British Association of Social Workers, the Royal College of Nursing and Unison. Roger Hargreaves and Hazelanne Lewis of BASW's Mental Health Special Interest Group appeared for BASW. Ian Hulatt appeared for the RCN and Gail Adams and Owen Davies appeared for Unison. BASW's written evidence is here, the RCN's is here and Unison's is here and here.

Next, witnesses from the British Psychological Society appeared. Witnesses were Dr David Harper, Senior Lecturer in Clinical Psychology at the University of East London, Prof Peter Kinderman, Professor of Clinical Psychology at the University of Liverpool, Sue Ledwith, Cinsultant Clinical Psychologist and Clinical Lead at North Yorkshire Forensic Psychiatry Service, and Dr Graham E Powell, President-elect of the British Psychological Society. The BPS's written evidence is here and here.

Because of the interruption, there was no time to hear evidence from the witnesses from the British Medical Association and the Royal College of General Practitioners. Their written evidence is here and here.

A full uncorrected transcript of this session is available here.

Twelfth evidence session: 26th January 2005, am

2005-01-26T13:27:00.000Z

This morning the Committee heard from three sets of witnesses. First, Turning Point and the Black & Minority Ethnic Mental Health Network gave evidence. Witnesses were Lord Adebowale, Chief Executive of Turning Point, Ronnie Watson, Turning Point's Mental Health Act Co-ordinator, Dr Joanna Bennett, Workforce Development Manager of the Breaking the Circles of Fear Project, Chinyere Inyama, mental health lawyer, and Nisar Khan, mental health voluntary worker and service user. To read Turning Point's written evidence click here and to read the BME Mental Health Network's written evidence click here.

The second set of witnesses represented the National Autistic Society. Richard Mills, the NAS's Director of Research, and Dr Juli Crocombe, consultant psychiatrist, gave evidence. To read the NAS's written evidence click here.

The Committee then heard from representatives from the Alzheimer's Society. Clive Evers, Director of Information and Education, and Prof Clive Ballard, Director of Research, gave evidence. To read the Alzheimer's Society's written evidence click here.

A full uncorrected transcript of the session is now available - click here.

Winterton/Goggins evidence session: summary

2005-01-21T10:08:00.000Z

Below is a summary of the Joint Committee meeting with Rosie Winterton and Paul Goggins (full uncorrected transcript here), covering the key issues raised:

Codes of Practice
Lord Carlile first asks the minister why draft codes of practice and draft regulations had not been published alongside the draft Bill, given that the code of practice is “the foundation stone of the whole draft Bill”. The Minister responds:

The difficulty we have had is that if we want properly to engage stakeholders in the code of practice - which we do need to do because it is about implementation, it is about how clinicians will work, it is about what different organisations will want to see in terms of some of the principles that are adhered to - we do want to make sure we are engaging in that proper consultation. In a sense, if we publish, at the same time as Parliament sees the draft bill, a code of practice, then we could be accused by stakeholders and others of not consulting them properly. That is our difficulty. We are damned if we do and damned if we don't, because we cannot say we have engaged stakeholders properly unless we do that in an open sense. If we publish something prior, at the same time as the Bill being published, then I think we could well be accused of riding roughshod over what would be considered to be a proper consultation process.

Lord Carlile comments, “although certainly you are going to be damned if you do and damned if you don't, I think you may find that you are slightly more damned if you don't than if you do in this instance”.

General principles on the face of the Bill
Tim Loughton asks why the Government has decided not to put on the face of the Bill the principles recommended by the Richardson Committee. Rosie Winterton responds that it may be necessary to alter them over time, and that this will be easier to do if they are in the code of practice. She points out that society's views on some issues have changed over time:

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

Tim Loughton asks when the principle of non-discrimination would have to be disapplied, and Rosie Winterton says that it never would - even though it was her example. She goes on to give another example:

If you had a situation whereby the general principle would say the patient should have the maximum amount of information available to them. If a care worker felt that they were given information but to pass that information on to a patient might put the care worker at risk, then that would be a situation where you might say, "the general principle of giving the patient maximum information would be dis-applied at that time." If a relative or a neighbour were in the same position and were passing information on to, again, a clinician, and that information was not passed on to the patient because it might well put the neighbour or carer relative in a difficult position-----
Q822 Tim Loughton: But no one is recommending that principle.
Ms Winterton: -- then that would be an example of when you would dis-apply the principle.
Q823 Tim Loughton: It is not an example that was in the Richardson recommendation. It is theoretical but does not actually apply.
Ms Winterton: It is an example of what I am saying.

Paul Goggins goes on:

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

It does seem that the ministers are not completely hostile to the idea of putting principles on the face of the Bill.

Definition of mental disorder
Angela Browning asks why the definition has been made wider than that in the 1983 Act. Rosie Winterton says that the Government supported the wide definition suggested by the Richardson Committee and narrowed it after consultation on the 2002 draft Bill, but Mrs Browning poionts out that Genevra Richardson herself was not convinced that the definition had been narrowed at all. Mrs Browning goes on:

I know the Government has said and you have just repeated it about the psychological dysfunction rather than the underlying cause, but, through this legislation, to bring within its scope everyone who has, for example, a learning disability or an autistic spectrum disorder, whether or not they display a psychological dysfunction - and I quite accept that both of those groups could well have a genuine mental health problem overlying their condition - is surely a huge infringement of civil rights on a lot of people who would have to declare by law surely that from then on, if ever asked, "Have you ever suffered from a mental disorder?" purely by definition of their diagnosis would have to tick the "Yes" box whether they had ever seen a psychiatrist or not.

Ms Winterton responds with an extraordinary statement:

It is also true that we would not want exclusions that, in a sense, somehow created the impression that, if somebody had a learning disability but fulfilled all the other conditions, somehow they would not be able to be treated.

So she would not want to have a situation in which someone who fulfilled only four out of the five conditions could not be treated - of course, she means treated against that person's will. What, one might ask, is the point in having five conditions if someone who only meets four of them can be treated anyway? She goes on to say that she does not intend to label anybody.

Protection of other persons
Lord Carlile wonders why the threshhold for compulsory treatment for people who are at risk of harming themselves is higher than that for people who are at risk of harming others, and notes that there are fears that the lack of the word "serious" in the risk of harm to others may make it possible to use mental health legislation against anti-social behaviour:

Q837 Chairman: But why not add the words "from serious harm"? What would it diminish from your target?
Ms Winterton: Would you say again where it would go.
Q838 Chairman: Clause 9(4), paragraph (b), at the end of the paragraph "from serious harm" or words to that effect. You will note that the first part of the third condition is "that it is necessary - (a) for the protection from - (i) suicide or serious self-harm, or (ii) serious neglect by him of his health or safety ..." So there are repeated criteria of seriousness.
Ms Winterton: Right.
Q839 Chairman: Why not have parallel criteria of seriousness in relation to "other persons". I think you will be aware that this particular part of the provisions has caused a considerable amount of anxiety in the form in which it stands unamended as at present.
Ms Winterton: Yes. I think throughout the Bill we are looking to the fact that clinicians will be looking themselves at the risk of harm and they will have to make an assessment as to how serious that is. So I would hope that that would be covered there.
Q840 Chairman: I think that is a yes, is it not?
Ms Winterton: I mean will take back what you are saying and look at it.

At this point, the Labour MP George Howarth intervenes, complaining that the Joint Committee is not unanimous about the question of whether the word "serious" should be inserted. Paul Goggins comes in, finally explaining why the Government thinks it is inappropriate to insert the word "serious":

One is that we do not want to bring forward in this legislation a threshold of harm which is lower than that which is contained within the 1983 legislation. We certainly do not want to do that. We do - and this reflects principles - differentiate between the level of harm to self and the level of harm to others and we place a higher threshold on the level of potential harm to self than we do to others. That is quite right and that reflects a greater autonomy to the individual, but of course we have to pay very, very urgent regard to the protection of harm to other people in society. We place a higher threshold on self than on others.

ASWs and AMHPs
David Hinchliffe asks whether the Department of Health has attempted to evaluate the extent to which ASWs have been able to reduce the number of people sectioned by suggesting alternatives to compulsory treatment, and is told that no research has been conducted on this question. He goes on to say that he is concerned about replacing social workers with nurses:

Without wanting to denigrate nursing colleagues, it is certainly my view that you are more likely to have a nurse agreeing with a doctor in such circumstances and the CPN agreeing with the doctor possibly than you are in some instances a social worker by the nature of the relationship between those professionals. We have got a nurse on the Committee, so I am treading very carefully here because she is a very tough lady!

The nurse in question, Laura Moffatt MP, responds:

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

Mental Capacity Bill
Lord Carter asks whether the Government's desire to allow clinicians to preserve their discretion in deciding whether a patient is best treated under the Mental Health Bill or the Mental Capacity Bill might lead to confusion, given that some patients could be legally treated under both Bills. Louis Appleby responds:

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

Lord Carter goes on to ask where the Government's thinking is in relation to dealing with the "Bournewood Gap". Ms Winterton says that the Government will be consulting on the issue shortly, but that they increasingly think primary legislation will be needed.

Mentally disordered offenders
Mr Goggins answers a question on why mentally disordered offenders can be given compulsory treatment even if they pose no risk to themselves or others by saying that if the risk criterion were left in then offenders would never be able to receive treatment because once they are in prison they no longer present any risk:

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

Of course, as we all know, placing someone in prison certainly does not remove the risk that they will harm themselves, and it does not entirely remove the risk that they will harm others, so this answer seems far from satisfactory.

Community Treatment Orders
Ms Winterton explains that the Government intends CTOs to be used for so-called "revolving-door patients", and claims that carers would welcome this:

We know from discussions and consultation that we have had with people in those circumstances that if there was an element of compulsion that could be carried out in the community, they would respond to that and it would be more appropriate for their care. I am also very aware, through the discussions I have had and meetings I have held, for example, of carers who have said that their relationship with their son, daughter, husband or whoever has been completely broken because there has been only the ability for somebody to be detained in hospital and that has meant that the person they are caring for has felt that their mum has kind of detained them in this way away from home and the effect that that can have on families and on individuals is enormous. They have said that if there can be a different type of treatment available, that would be better all round, so I think we do have to reflect on what are the possibilities that we now have with current service provision. In terms of the other ways then that community treatment orders might work for the kind of revolving door patients where we would say, "Look, you are at a crisis point", and actually we know that if we can say, "You have to turn up, take this medicine and come to the clinic or be available when the psychiatric nurse will call", then that person does not necessarily have to be immediately assessed because they know they will have had a previous assessment within hospital, then we will be consulting on the kind of time limits that you would put on that, so that is one case.

Baroness Pitkeathley asks whether specific parameters should be placed around CTOs to make clear when they are supposed to be used. Ms Winterton answers:

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

This answer contains the odd implication that there may be some circumstances under which clinicians might use a CTO to ensure that a person remained in the home.

Mental health and HIV
The session ends with an interesting theoretical question from Tim Loughton, with far-reaching implications:

Tim Loughton: Can I just ask a quick theoretical question and this is to Mr Goggins primarily. Who is more dangerous in your perception - a patient with a moderate mental health illness who is declining to accept treatment or a patient who has been diagnosed HIV-Positive who is intent on having consensual, unprotected sex without revealing his condition to a partner?
Q868 Chairman: I am not sure that is fair. I think I am going to protect the Ministers from that question!
Paul Goggins: I am happy simply to say this: that it is an impossible question to answer. Both people can provide a risk and that risk needs to be managed.
Q869 Chairman: I think what we would say is that the question was a very good one, but the answer is too difficult to give.
Paul Goggins: It is an impossible answer to give because they both present different challenges and different risks. Those risks need to be assessed and they need to be provided for, but to compare one risk with another is impossible.

Guardian: Civil rights fears over mental health reforms

2005-01-20T16:37:00.000Z

To read the Guardian's coverage of Rosie Winterton's appearance before the Joint Committee, click here.

Eleventh evidence session: 19th January 2005

2005-01-19T16:28:00.000Z

Today the Committee heard from Mental Health Minister Rosie Winterton MP and Home Office Minister Paul Goggins MP. Also appearing were Mental Health Tsar Professor Louis Appleby, Adrian Sieff, Head of the Mental Health Legislation Branch in the Department of Health and Nigel Shackleford, Deputy Head of the Mental Health Unit in the Home Office.

A full uncorrected transcript of the evidence session is available here.

Winterton and Richardson clash on necessity/capacity issue

2005-01-19T15:54:00.000Z

In a memorandum to the Joint Scrutiny Committee (available here), Mental Health Minister Rosie Winterton explains the Government's thinking on the question of whether the decision to give compulsory treatment should be based on a test of necessity (whether or not the treatment is necessary to prevent harm) or capacity (whether the patient is competent to refuse treatment). Of course, the Mental Health Bill is based on a test of necessity rather than of capacity.

Winterton's memorandum explains that the Government's view relies on the advice of the Richardson Committee, set up in 1998, which considered this issue and concluded that, in Winterton's words:

the Richardson Committee report effectively concluded that there were circumstances when necessity (in terms of the risk of harm to self and others) should trump capacity.

Genevra Richardson, who chaired the Richardson Committee, has sent a response to this to the Joint Scrutiny Committee (available here) in which she protests that Rosie Winterton's memorandum misrepresents her Committee's conclusions:

In paragraphs 3 and 4 of the Memorandum the government purports to describe the arguments in the Expert Committee Report. Unfortunately this account elides two distinct issues, harm to self and harm to others, with possibly misleading consequences ... Insofar as paragraph 6 of the Memorandum suggests that our Report simply endorsed the overriding of autonomy on the ground of mere harm, either to self or to others, it is a startling oversimplification.

She goes on to show that there are substantial differences between her Committee's and the Government's interpretations of where the risk of harm should be allowed to trump the patient's individual autonomy:

Whatever the history of the arguments and the accuracy of their expression, however, the main differences between the Expert Committee's views and those of the government would seem to lie in:
the status to be accorded to the assumption of respect for individual autonomy and,
the severity of the risk, whether to others alone or to others and self, which should be allowed to trump that assumption.

So while the Richardson Committee may have endorsed the idea that a patient's autonomy may be overridden where there is a risk of harm to others, it left open the question of whether it should be overridden purely to prevent harm to the self - and the Government would be wrong to claim otherwise.