Draft Mental Health Bill Draft Mental Health Bill

House of Lords House of Commons Joint Committee on the Draft Mental Health Bill Draft Mental Health Bill

Session 2004-05

Volume III Written evidence

Ordered by The House of Lords to be printed Wednesday 9 March 2005 Ordered by The House of Commons to be printed Wednesday 9 March 2005

HL Paper 79-III HC 95-III Published on 23 March 2005 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £35.00

The Joint Committee on the Draft Mental Health Bill

The Joint Committee on the Draft Mental Health Bill was appointed by the House of Commons and the House of Lords on 22 July 2004 to examine the draft Mental Health Bill and report to both Houses by 31 March 2005.

Membership

Lord Carlile of Berriew (Lib Dem) (Chairman)

Liz Blackman (Labour) Erewash Mrs Angela Browning (Conservative) Tiverton and Honiton Mr David Hinchliffe (Labour) Wakefield Mr George Howarth (Labour) Knowsley North and Sefton East Tim Loughton (Conservative) East Worthing and Shoreham Mr Paul Marsden (Lib Dem) Shrewsbury and Atcham Laura Moffatt (Labour) Crawley Ms Meg Munn (Labour) Sheffield Heeley Dr Doug Naysmith (Labour) Bristol North West Mr Gwyn Prosser (Labour) Dover Dr Howard Stoate (Labour) Dartford Hywel Williams (Plaid Cymru) Caernafon

Baroness Barker (Lib Dem) Lord Carter (Labour) Baroness Cumberlege (Conservative) Baroness Eccles of Moulton (Conservative) Baroness Finlay of Llandaff (Cross Bench) Baroness Flather (Conservative) (Discharged 29 November 2004) Baroness Fookes (Conservative) (Discharged 14 September 2004) Lord Mayhew of Twysden (Conservative) (Appointed 14 September 2004) Baroness McIntosh of Hudnall (Labour) Baroness Murphy (Cross Bench) (Appointed 29 November 2004) Baroness Pitkeathley (Labour) Lord Rix (Cross Bench) Lord Turnberg (Labour)

Powers

The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet away from Westminster, to meet at any time (except when Parliament is prorogued or dissolved), to appoint specialist advisers, and to make Reports to the two Houses.

Publication

The Report and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Joint Committee (including press notices) are on the Internet at: www.parliament.uk/parliamentary_committees/jcdmhb.cfm

Committee staff

The staff of the Joint Committee were drawn from both Houses and comprised Glenn McKee (Commons Clerk), Chloe Mawson (Lords Clerk), Annette Toft (Inquiry Manager), Manjit Gheera (Legal Adviser), Alison Mara (Committee Assistant), Richard Dawson (Committee Assistant), Lisette Pelletier (Team Manager), Jonathan Coe (Senior Office Clerk), Tes Stranger (Senior Office Clerk), and George Fleck (Office Support Assistant). This inquiry was run from the Scrutiny Unit in the Committee Office, House of Commons.

Contacts

All correspondence should be addressed to the Clerk of the Joint Committee, House of Commons, 7 Millbank London SW1P 3JA. The telephone number for general enquiries is 020 7219 8363 the Joint Committee’s email address is [email protected].

List of written evidence

Volume III

Sandra Banawich (DMH 1) (DMH 440) Ev 717, Ev 1174 Pat Cull (DMH 2) (DMH 379) Ev 717, Ev 1134 Stewart Ingram (DMH 3) Ev 718 Sam Ismail (DMH 4) Ev 718 Mr Ralph Hill (DMH 5) Ev 719 Dr Michael Cavadino (DMH 7) Ev 721 Mrs A Edwards (DMH 8) Ev 722 Grethe Hansen (DMH 9) Ev 723 Julie Knighton (DMH10) Ev 723

Patrick Olszowski (DMH13) Ev 724 Keith Kinsella (DMH 14) Ev 725 Leslie Carr (DMH 15) Ev 725 Keith Halsall (DMH 16) Ev 726 Janet Cresswell (DMH 17) Ev 727 Dr P Lepping, Prof D Menkes, Dr G Harborne, Dr R Poole, Dr M Zinkler (DMH 18) Ev 727 Gary Elliott (DMH 22) Ev 728 Mental Health Alliance in West Yorkshire (DMH 23) Ev 728 Alan Craig (DMH 25) Ev 729 Mr Clive Hawkins (DMH 26) Ev 732 John Short (DMH 27) Ev 734 Martin Jermiah (DMH 28) Ev 734 Victoria Hanson (DMH 29) Ev 734 Trudy Allen (DMH 30) Ev 735 Annie Flores (DMH 31) Ev 736 Eric Stark (DMH 32) Ev 737 Bridgend Approved Social Workers (DMH 35) Ev 737 ForUs and Rhymni Valley Mind (DMH 36) Ev 737 Steven Dawes (DMH 37) Ev 741 Victoria Dawes (DMH 38) Ev 742 C Stevenson (DMH 41) Ev 744 A J Rimmer (DMH 43) Ev 744 N Morris (DMH 47) Ev 745 The Schizophrenia Association of Great Britain (DMH 48) Ev 745 Carolyn Godfrey (DMH 49) Ev 747 Leslie Smith (DMH 52) Ev 748 Ronald Archer (DMH 53) Ev 749 Miss Emma Clarke (DMH 54) Ev 750 Lynda Oakley (DMH 55) Ev 751 Mr and Mrs C Waldren (DMH 56) Ev 752

Letchworth Mind (DMH 58) Ev 753 The Welsh Assembly Government’s Learning Disability Implementation Advisory Group (DMH 59) Ev 754 George Talbot (DMH 62) (DMH 82) Ev 756, Ev 784 N Fletcher (DMH 63) Ev 758 A Colgan (DMH 65) Ev 758 Derbyshire Mind Advocacy Service (DMH 66) Ev 759 Peter Campbell (DMH 67) Ev 760 Mrs Swierkocki (DMH 68) Ev 761 North East Lancs Association for Mental Health (DMH 69) Ev 761 C Perris (DMH 71) Ev 762 B Diamond (DMH 72) Ev 762 Nottingham Mental Health Alliance (DMH 73) Ev 763 Dr George J Lodge (DMH 74) Ev 764 A Bruce-Kingsmill (DMH 75) Ev 767 Michael Elvin (DMH 76) Ev 772 Professor David Pilgrim (DMH 77) Ev 773 Mr John Allman (DMH 78) (DMH 411) Ev, 775, Ev 1163 Mrs C J Hillman (DMH 80) Ev 777 King’s College London (DMH 81) Ev 779 Carol Jeavons (DMH 83) Ev 785 Keith Cornford (DMH 84) Ev 787 Robert Cary Fogg (DMH 85) Ev 788 Tony Gray, on behalf of Service Users (DMH 87) Ev 789 Dr A Perera (DMH 88) Ev 790 James D Hargreave (DMH 89) Ev 790 L Booth (DMH 91) Ev 790 R Voyce (DMH 92) Ev 791 Camden and Islington AIM Advocacy Partnership (DMH 93) Ev 791 S Clark (DMH 94) Ev 793 Cardiff Mind Ltd (DMH 95) Ev 793 A Mitchell (DMH 96) Ev 795 Dr Melluish (DMH 97) Ev 795 Heather Armitt (DMH 98) Ev 795 The Welsh Nursing and Midwifery Committee (DMH 100) (DMH 401) Ev 798, Ev 1161 Dr Richard House (DMH 101) Ev 800 Dr Steve Jefferies (DMH 102) Ev 800 Vera M Marx (DMH 103) Ev 801 R C and II Reichardt (DMH 108) Ev 802 Sheffield Mental Health Advocacy Service (DMH 109) Ev 803 Isobel McEwen (DMH 110) Ev 804 North East London Mental Health Trust (DMH 112), (DMH 113) Ev 805, Ev 807 Mike Cox (DMH 114) Ev 809 Working Futures (DMH 115) Ev 814 Lizzie Maitland (Local Mind Group Organiser) (DMH 116) Ev 816

Diane Wright (DMH 117) Ev 817 Matilda MacAttram’s Independent Race Relations Health Consultancy (IRRHC) (DMH 118) Ev 817 Mark Sacco (DMH 119) Ev 820 Mind in Bexley (DMH 120) Ev 822 J Rowland (DMH 121) Ev 823 Redcar and Cleveland Mind (DMH 122) Ev 824 Mr R Keys (DMH 123) Ev 825 Hospital Managers’ Committee, North East London Mental Health Trust (DMH 124) Ev 828 Citizens Advice (DMH 125) (DMH 282) Ev 829, Ev 1019 S Holt (DMH 126) Ev 834 Simon Charrington (DMH 127) Ev 836 Sallie Cooper (DMH 128) Ev 837 West Sussex County Council (DMH 129) Ev 839 Salford Primary Care Trust (DMH 130) Ev 841 W A Leason (DMH 131) Ev 843 St Anne’s Community Services (DMH 132) Ev 844 Janet Lally (DMH 133) Ev 845 C Pelikan (DMH 134) Ev 846 T Lewis (DMH 135) Ev 847 Dr Wendy Franks (DMH 136) Ev 848 Mary Kibblewhite (DMH 137) Ev 849 Mr M K Foolchand (DMH 138) Ev 849 P D Green (DMH 139) Ev 851 Leeds Mind (DMH 140) Ev 852 Crewe and Nantwich Mental Health Sector Planning Group (DMH 141) Ev 854 Alan Priestner (DMH 142) Ev 855 Members of the Bude Mental Health Resource Centre (DMH 144) Ev 856 Charles and Maxine Wilson (DMH 145) Ev 856 Lindy Herrington (DMH 146) Ev 857 Pauline Bispham (DMH 147) Ev 857 William Aldred (DMH 149) Ev 858 S Byhurst (DMH 151) Ev 858 The Approved Social Work Interest Group (ASWIG) (DMH 153) Ev 860 J Rosen-Webb (DMH 154) Ev 861 Mind in Birmingham (DMH 155) Ev 862 The National Mental Health Partnership (DMH 157) Ev 863 Touchstone (DMH 158) Ev 865 Mental Health Act Steering Group on behalf of Leicestershire Partnership NHS Trust (DMH 159) Ev 866 Gloucestershire Survivors Forum (DMH 160) Ev 867 Sylvia Landells (DMH 163) Ev 869 Robert Mundy (DMH 164) Ev 870 Alison Leslie (DMH 165) Ev 870 David Hutchinson, Chairman of Mind in Manchester (DMH 166) Ev 871

Shaun Johnson (DMH 167) Ev 873 Mind in Manchester (DMH 168) Ev 874 Steven Richards (DMH 169) Ev 874 J Hembrow (DMH 170) Ev 876 Cardiff and Vale of Glamorgan Mental Health Service User Forum (DMH 171) Ev 877 South Westminster Involvement Group (DMH 172) Ev 877 Mr Edwin Martin (DMH 175) Ev 878 S.B. (DMH 177) Ev 879 People currently in receipt of hospital care in Epsom, Surrey (DMH 178) Ev 881 Derbyshire Patients Council (DMH 180) Ev 882 Committee of Leeds Consultant Psychiatrists (DMH 182) Ev 882 Sarah Dewey (DMH 183) Ev 883 PLUS (DMH 184) Ev 883 Dr David Fryer (DMH 185) Ev 885 Albertine Euphemia McNeill (DMH 186) Ev 886 Sefton Recovery Group (DMH 187) Ev 888 Sam Button (DMH 189) Ev 892 T Basset (DMH 190) Ev 895 Depression Alliance Cymru (DMH 195) Ev 895 Xpress Advocacy (DMH 197) Ev 900 J Simpson (DMH 198) Ev 901 Leeds Mental Health Teaching NHS Trust (DMH 199) Ev 901 A group of mental health service users and voluntary sector mental health workers in the London Boroughs of Tower Hamlets and Newham (DMH 201) Ev 904 J Cave (DMH 202) Ev 905 Hambleton and Richmondshire Primary Care Trust (DMH 203) Ev 907 W Aldred (DMH 204) Ev 909 Eating Disorders Association (EDA) (DMH 205) Ev 910 Independent Police Complaints Commission (DMH 206) Ev 911 Practice Based Evidence (DMH 207) Ev 913 Suffolk User Forum (SUF) for Mental Health (DMH 209) Ev 913 Miss E Lyons (DMH 211) Ev 914 Wedge Black (DMH 212) Ev 915 Emma Pheby – Independent Mental Health Advocate (Information), Mind in Tower Hamlets (DMH 213) Ev 915 John Parker (DMH 214) Ev 917 Wendy Andrews (DMH 215) Ev 918 Self-Injury Support in North Cumbria (DMH 216) Ev 920 L. L., Stockport Mind (DMH 218) Ev 921 Transcultural Psychiatry Society (UK) (DMH 219) Ev 923 Lifecraft (DMH 220) Ev 926 South Cambs User Forum (SCUF) (DMH 221) Ev 928 The Mental Health Team of the Gwent Association of Voluntary Organisations (GAVO) together with the Monmouthshire Rural Outreach Project (DMH 223) Ev 930 Esther Cook, East Suffolk Mind (DMH 224) Ev 933

South East Advocacy Project (DMH 225) Ev 934 Malcolm Turner, Chair, Peterborough and Fenland Mind (DMH 226) Ev 936 Imagine (DMH 228) Ev 938 Mental Health Foundation and the Foundation for People with Learning Disabilities (DMH 229) Ev 940 U Parker (DMH 231) Ev 945 Ernest B Upton (DMH 232) Ev 947 Allen Barker (DMH 233) Ev 947 Wales Senior Nurse Advisory Group (DMH 234) Ev 948 Mr John Myers (DMH 235) Ev 948 Herefordshire User Group (HUG) (DMH 236) Ev 949 S Davey (DMH 237) Ev 950 Approved Social Workers of the London Borough of Hammersmith and Fulham (DMH 238) Ev 953 AAA Anonymous memorandum (DMH 239) Ev 956 National Voices Forum (DMH 240) Ev 957 Dr Adam Dierckx (DMH 244) Ev 964 Harrow Users Group (DMH 245) Ev 965 G Woodward (DMH 246) Ev 966 Service Users and Staff from the forensic low secure wards at Leeds Mental Health Trust (DMH 247) Ev 967 South London and Maudsley NHS Trust (DMH 249) Ev 969 Bristol Mind and the Service Users Reference Group (Avon) (DMH 250) Ev 971 Mind – Basildon (DMH 251) Ev 974 Andy Atkins (DMH 252) Ev 976 S Cramp (DMH 253) Ev 977 Steven Miller (DMH 254) Ev 977 Debra Ramchurn (DMH 255) Ev 978 J Sen (DMH 256) Ev 979 Anne Dawson (DMH 257) Ev 979 D Smith (DMH 258) Ev 982 Verity Murricane (DMH 260) Ev 982 Dr Bob Johnson (DMH 261) Ev 983 A Priestley (DMH 262) Ev 985 Savitri Hensman (DMH 263) Ev 986 Barnet Voice for Mental Health (DMH 264) Ev 988 WISH (Women in Secure Hospitals) (DMH 265) Ev 994 Professor Anselm Eldergill (DMH 266) (DMH 399) Ev 995, Ev 1146 J Millington (DMH 270) Ev 1015 JUSTICE (DMH 272) Ev 1016 Justice for Patients (DMH 281) Ev 1019 Nottingham Senior Medical Staff Committee (DMH 284) Ev 1020 Dr Niall Moore (DMH 285) Ev 1022 Nottingham Healthcare NHS Trust (DMH 286) Ev 1023 A Woodcock (DMH 287) Ev 1025

US NETWORK (All Wales User Survivor Network) (DMH 288) Ev 1025 Religious Society of Friends (Quakers) (DMH 289) Ev 1026 Manic Depression Fellowship (DMH 290) Ev 1029 Citizens Commission on Human Rights (DMH 291) Ev 1033 College of Occupational Therapists (DMH 292) Ev 1035 Stoneham (DMH 293) Ev 1038 Leeds North West Primary Care Trust (DMH 294) Ev 1040 Parkinson’s Disease Society (DMH 295) Ev 1041 Maca (DMH 296) Ev 1043 Bevan Brittan (DMH 297) Ev 1047 Mission and Public Affairs Council of the Church of England (DMH 298) Ev 1050 P Howes (DMH 299) Ev 1052 Alcohol Concern (DMH 300) Ev 1055 Vicky Yeates (DMH 302) Ev 1057 M Jessop (DMH 303) Ev 1059 Songhai (DMH 306) Ev 1060 Bedfordshire, Buckingham, Luton and Milton Keynes Consortium (DMH 307) Ev 1062 Dr Andrew S Horne, Consultant Forensic Psychiatrist, Broadmoor Hospital (DMH 308) Ev 1062 People currently in receipt of hospital care, Epsom General Hospital (DMH 309) Ev 1064 All Wales Senior Nurse Advisory Group (DMH 311) Ev 1066 African and Caribbean Mental Health Commission (DMH313) Ev 1066 R Brunstrom, BSc (Hons), Chief Constable, North Wales Police (DMH 314) Ev 1072 J Capon (DMH 316) Ev 1073 Mrs D Phillips (on behalf of a Service User) (DMH 317) Ev 1074 W & G Enderby (DMH 318) Ev 1074 Hampshire Partnership NHS Trust (DMH 319) Ev 1076 E Penrose (DMH 320) Ev 1079 Ms J Andrews (DMH 321) Ev 1079 Penny Priest (DMH 322) Ev 1080 V D Medley (DMH 323) Ev 1080 Wayne David Frost (DMH 325) Ev 1082 P Houghton (DMH 326) Ev 1082 T Riding (DMH 327) Ev 1083 General Medical Council (GMC) (DMH 329) Ev 1083 A Leader (DMH 331) Ev 1087 Christians Against Mental Slavery (DMH 332) Ev 1087 L Nixon (DMH 333) Ev 1090 B Sutton (DMH 334) Ev 1091 R Moore (DMH 335) Ev 1094 SURE (DMH 336) Ev 1096 B Broderick (DMH 337) Ev 1097 Janey Antoniou (DMH338) Ev 1098 A Davies (DMH 339) Ev 1100 C Smith (DMH 340) Ev 1101

J Bostock (DMH 341) Ev 1102 M Colquhoun (DMH 342) Ev 1103 User Voice (DMH 343) Ev 1103 Amanda Collins (DMH 344) Ev 1106 Anthony R Burton (DMH 345) Ev 1106 Commission for Social Care Inspection (DMH 346) Ev 1107 Ms N Hays, University of Leicester (DMH 348) Ev 1108 Michelle Caine (DMH 349) Ev 1109 John Moffett (DMH 351) Ev 1110 British Geriatrics Society (DMH 352) Ev 1111 User Group Members, Lambeth Mencap (DMH 353) Ev 1111 Service User Committee at Southside Partnership (DMH 354) Ev 1111 IMHL and Peter Edwards Law – Solicitors (DMH 355) Ev 1112 Scarborough and Rydale Mind (DMH 356) Ev 1122 Mr Ian Smith (DMH 369) Ev 1124 Nina Clarke (DMH 370) Ev 1124 LINXS House, Hull and East Yorkshire Mind (DMH 371) Ev 1125 MIND in Barnet (DMH 372) Ev 1127 Jay Watts (DMH 373) Ev 1127 SANE (DMH 374) Ev 1128 Rachel Ball (DMH 375) Ev 1134 G A and E Albiston (DMH 380) Ev 1137 Ealing Meeting of the Religious Society of Friends (Quakers) (DMH 383) Ev 1138 Imma Maddox (DMH 384) Ev 1138 Rebecca Farrant (DMH 386) Ev 1139 Dr J Soffe (DMH 387) Ev 1139 C Griffiths (DMH 388) Ev 1140 D McKay (DMH 390) Ev 1141 Dr A Forrest (DMH 391) Ev 1141 Lee Mark Langford (DMH 392) Ev 1142 Phillip Partridge, Co-Ordinator of the Supporting Carers Better Network (DMH 395) Ev 1143 Tom Hamilton, Maca (DMH 397) Ev 1144 Hull and East Yorkshire Mind (DMH 398) Ev 1145 Dr Jill Peay (DMH 407) Ev 1161 Dr J C O’Grady, Consultant Forensic Psychiatrist (DMH 409) Ev 1162 B Harris (DMH 412) Ev 1164 M Telfer (DMH 416) Ev 1164 Robin Williams (DMH 417) Ev 1165 Clerk / Chief Executive of the Scottish Parliament (DMH 423) Ev 1166 Presiding Officer, National Assembly for Wales (DMH 424) Ev 1167 Clerk to the Northern Ireland Assembly (DMH 425) Ev 1167 Clerk of the House of Commons (DMH 426) Ev 1168 Mark Vero (DMH 430) Ev 1168 Advocacy Safeguards Agency (DMH 432) Ev 1169 Stone Ashdown Trust (DMH 443) Ev 1174

Mental Health Act Commission (DMH 452) Ev 1175 Department of Health (DMH 453) Ev 1177 Government (DMH 456) Ev 1180 House of Lords Select Committee on Delegated Powers and Regulatory Reform (DMH 457) Ev 1205 Policy Study Institute (PSI) Health of the Muslim Patients & Carers International Health Foundation (DMH 421) Ev 1206

List of unprinted written evidence

Additional papers have been received from the following and have been reported to the House but to save printing costs they have not been printed and copies have been placed in the House of Commons library where they may be inspected by members. Other copies are in the Record Office, House of Lords and are available to the public for inspection. Requests for inspection should be addressed to the Record Office, House of Lords, London SW1. (Tel 020 7219 3074) hours of inspection are from 9:30am to 5:00pm on Mondays to Fridays.

Mrs M J A Turner (DMH 6) (DMH 422) Mr Jeffery Thomas (DMH 12) Mr Stephen Weelderburn (DMH 33) Ms Mary Wren (DMH 34) Confidential (DMH 39) Mrs C E Statham (DMH 40) Cecil Foggitt (DMH 42) Miss Vivienne Norgate (DMH 51) Confidential (DMH 57) Confidential (DMH 70) Ms Freda Gray (DMH 79) Sheila B Howe (DMH 86) E Booth (DMH 99) Robert James Lewis (DMH 104) Mrs Iris Linton (DMH 106) Susan A Nicholson (DMH 143) Mr W J Clark (DMH 148) Mary Bannon (DMH 150) Confidential (DMH 152) C Gillen (DMH 173) Emma Burraway (176) Anne Kathleen Pringle (DMH 179) Sefton Recovery Group (DMH 188) (DMH 357 – 364) (DMH 366 & 367) B Bertie (DMH 273) Lis Brown (DMH 274) M Hashim (DMH 275) Alison Wyatt (DMH 276) Adam Foreman (DMH 277) Miss S A Jefford (DMH 278) May Henry (DMH 279) Jackie Moeffeli (DMH 280) Confidential (DMH 347) East Living (DMH 350) Jill and Hamish Walker (DMH 365)

Opendoor (DMH 368) Confidential (DMH 376) Fiona Bloomfield (DMH 385) Croydon Voluntary Action (DMH 403) G Cornell (DMH 437) West Yorkshire Mental Health Alliance (DMH 441) Dr Kevin Murray (DMH 447) John Bowis OBE MEP (DMH 449) Gabriel Adamson (DMH 450) Gillian Downham (DMH 451) Mental Health Act Hospital Manager’s Committee, Cardiff and Vale NHS Trust (DMH 454) Rhona Brankin (DMH 455)

Joint Committee on the Draft Mental Bill: Evidence Ev 717 Written evidence

Memorandum from Sandra Banawich (DMH 1) Chairman, I would like to comment on the Government’s Draft Mental Health Bill and include some of my personal experiences of Mental Health Services. In particular I am concerned with Government proposals for compulsory medication in the community and extending powers to cover people who may commit an oVence, on the oV chance they might, Government proposes to “treat” them. How does this stop these people making a decision to hurt or kill someone? In my experience medication doesn’t stop you thinking. Many sane people carry out crimes every day. If someone on medication still commits a crime what will the Government do next to the Mentally ill community? This Bill is misguided and drawn in haste as an answer to a media driven psycho-phobic public. If you want to punish someone who has committed an oVence already then we have Laws for that but to do it by way of medication seems barbaric. Make Life mean Life and protect our right to innocence until proven guilty. Compulsory treatment in the community is in my opinion as a Schizophrenic service user and former councillor with responsibility for chair of Social Care and Health Scrutiny is both not needed and ﬂawed. Medications for my condition are at best unpleasant and sometimes harmful. In my case I was prescribed Zyprexa (olanzepine) for schizophrenia and developed type two diabetes in using it. I now have a very serious illness as a result of taking my medication, if it were to be forced on me what redress would I and thousands of others have? Will there be a compensation fund for victims of damage caused by forced medication? Will we have redress through the courts via Human Rights freedom from torture legislation? I am serious about these questions as this issue aVects my life on a daily basis. The playing ﬁeld between psychiatrists and service user is already not level why put more mistrust and helplessness into the balance, we need better and safer drugs and people who treat us as responsible people with choices and freedoms that other mainstream patients have. Sectioning already exists if necessary the whole point of being in the community is to live a normal life not be in a form of oppression. It is OK for professionals to argue about these things but I would urge you to consider the service users themselves and how these decisions aVect them we are real people with real lives not the Schizo knifeman as portrayed by the media. September 2004

Memorandum from Pat Cull (DMH 2) From Pat Cull—carer (long term). Member of National Schizophrenia Fellowship (Now Rethink). Have previously given feedback to the Richardson Committee.

ANSWERS TO SCOPE (PARTICULAR INTEREST—SCHIZOPHRENIA) 1. The Bill must recognise people as unique individuals, with diVering needs and backgrounds—family, ethnic, and religious. 2. Definitions of mental disorder are changing with the improved scan technology, but this is not available to many patients. 3. It is the human rights of mentally ill people to receive appropriate treatment and care for their condition. The decision will at times need to be made on their behalf when their mental capacity is either temporarily or permanently impaired by illness. Schizophrenia is a fluctuating condition, depending on the appropriate treatment being given, and backed up by social provision relevant to the patient’s residual abilities. Many/most are unable to work, but require occupation. Their abilities should be recognised in their assessment which takes TIME, as many are able to maintain a perfectly normal condition for a short space of time. The illness is, however very exhausting. 4. There are too few psychiatric beds and other suitable placements available. There are too few staV trained in the psychiatric discipline. 5. As in four. Too few beds/placements, some in secure accommodation. 6. There needs to be adequate training of staV, and adequate checking of their qualifications and experience in undertaking a very stressing and distressing condition. Also family involvement can be restricted by the confidentiality which exists in the professions, and the Data Protection Act. This can be assisted by group work with families, with explanation of the disability and its aVect on thought processing. There should not be confusion between severe and enduring mental illness and personality disorder. 7. Too few staV, too few resources—too little inter-disciplinary communication. Too much increase in suicides, resulting in long and expensive enquiries, which remove funds from patient care, and give great distress to family members. Ev 718 Joint Committee on the Draft Mental Bill: Evidence

8–9. Special attention is required for patients suVering from ﬂuctuating illness such as schizophrenia, and a continuum of care maintained, possibly for life-time. This may include a register of patients at risk, which brings into question the Human Rights Act. Refer back to three. 10. Finances have already been cut by 5% in some Trusts for those with severe and enduring mental illness. This is antagonistic to the statement made by Sir Nigel Crisp—“in all of these areas attention needs to be given to addressing inequalities in access to services and health extremes, with special eVorts made to reach the most disadvantaged in society”. (Who more disadvantaged than those with severe and enduring mental illness?) People with mental illness are unable to negotiate the complexities of the Beneﬁts system, unlike many physically disabled people, who anyway arouse sympathy from their apparent condition. This should receive attention before the patient is discharged into the community. Many also require special needs housing. I would also suggest that more diversionary schemes are put in place when a mentally ill person enters the penal system, usually through neglect of medication, and of follow-up by the M H services should the patient default from appointments. September 2004

Memorandum from Stewart Ingram, Primary Care Facilitator—Mental Health (DMH 3) I recently attended a seminar in Newcastle on the above Bill run by NIMHE. I have some concerns which I understand I can make known via this address. The limitations of the current legislation are well known to those who use it and those who are subject of it, however I believe many of the limitations result as much from the poor implementation of the legislation as from its inherent weaknesses. I fear the new legislation will merely mask a suspicion of and reluctance to work to legislation by some mental health professionals and will face similar diYculties as the operation of the present Act. Whilst it is clear that the philosophy and principals of the new legislation should be established first, I am concerned that the practical diYculties, such as training, recruitment, resourcing and monitoring the new system of tribunals, expert panels and specialist advocacy will not be addressed before implementation or they will be passed to SHA or PCT level as “operational matters”. These issues are crucial to the eVectiveness of the new legislation and need to be acknowledged and resolved. Finally whilst the introduction of judicial or semi-judicial scrutiny of all compulsory treatments and detentions after 28 days provides independent scrutiny of the processes involved, it potentially leaves the initial detention of the person to doctors and professionals traditionally subject to the authority of doctors. It is suggested that Regulations made under the Bill will specify the qualifications and experience of at least one of the doctors and seek to ensure there will be no conflict of interests between any of the examiners. These issues are dealt with in the current legislation and in my opinion, are suYciently important to be included in the new legislation rather than relegated to regulations. The Bill also suggests that the local authority will approve the mental health professional but I am unclear as to how their competence, independence and performance will be monitored by the local authority. I trust the issues I have outlined will be addressed before the new legislation is enacted. September 2004

Memorandum from Sam Ismail (DMH 4) Dear Sirs, I would like to enquire about how one could give some valuable evidence to the committee from a practical point of view. I am a Mental Health Act Practitioner, who ﬁnds the Bill absolutely unworkable in terms of implementation when it comes to the automatic right to appeal to a Mental Health Tribunal within 28 days of detention. This most certainly is very expensive to implement with or without a Code of Practice. The current system that we have between the Home OYce and the Mental Health Review Tribunal is under enormous amount of diYculties from staV training issues to the lack of legal and medical members to suYcient funding, all of which resulted to several litigations and Judicial reviews and challenging legal proceedings. The new draft is not compatible with the Human Rights Act 1998, and the replacement of the so called “Common Law” by a forthcoming Capacity Act to avoid more “Bournwood” Scenarios is not going to safeguard patients’ rights when locked up against their will under Community Treatment Orders. Also Joint Committee on the Draft Mental Bill: Evidence Ev 719

giving the Healthcare Commission more tasks than they could handle is NOT in practical terms going to assist the new role of the Mental Health Act Commission. I think it is vital that Committee Members are informed of all the possible constrains that this Draft represents from an operational perspective. A Bill which is focused on public protection rather than patients’ needs is certainly going to create unbearable diYculties for all Mental Health professionals including practitioners who will be expected to co-ordinate Hearings and Appeals whilst working collaboratively with a Tribunal OYce that is already dysfunctional without the “28 days” constraint. I hope the committee will take this carefully when scrutinising the Bill. September 2004

Memorandum from Mr Ralph Hill (DMH 5)

The enclosed three pages were ﬁrst sent to Mr David Stone, Parliamentary OYcer for MIND on 7 July 2004. As requested Mr Stone did visit Runwell Hospital and suggested that he may arrange visits by MPs or Ministers. This has not happened. My direct correspondences to the great and powerful, go without meaningful reply, or face to face meetings. May I request that Home OYce permission is granted for inmates of Harman Ward Runwell Hospital to present verbally to the Joint Committee (nine clients). I would like to present verbally, to help and assist those who can not represent themselves through incapacity. Would your Committee be prepared to travel to Runwell Hospital and take evidence? I am active and serve on a number of SE Essex Partnership NHS Trust Committee and have high degree of involvement with client related committees, who work in partnership with the MIS Trust. September 2004

RE: Affects of Living on £15.50 Per Week After Interviews with Other Clients 1. As you can see I am an in-patient of only three months, but with history that dates back to 1991. Treated under care in the community, which I believe failed. 2. Clients spoken request that you visit them in Runwell and that I be allowed to verbally represent to the Parliamentary Sub-Committee and the Secretary of State responsible.

Clients 3. Varied from older age group of 60!, 30–35 age group, 45–60! age group. Some are long term Home OYce section, as condition is client conﬁdential it is not disclosed to, but clients agree to talk to you face to face.

Issues Poverty 4. Poverty is resolved by stealing from other clients, dealing in drugs or other contraband, selling of sexual favours IE prostitution. Smokers need on average £30 per week to maintain the habit. Lack causes increased stress, violence and is detrimental to improving client morale and eVective treatments. 5. Simple matters like buying birthday cards for friends, relatives and others are made impossible by the ﬁnancial penalty of losing beneﬁts. 6. In eVect the penalty for long-term sickness is guaranteed loss of income, dignity and the ability to save towards discharge. This is a constant worry, which aVects state of mind, outside family commitments and any attempt at a “normal” life style. 7. I would challenge any MP or Government Minister to spend 14 days on a Rehabilitation Ward or preferably Locked Ward without monies, change of clothes and no tobacco. They would not last past seven days. Yet there are clients who are serving in excess of 12 years on £15.00 per week. Could you do it? Ev 720 Joint Committee on the Draft Mental Bill: Evidence

Loss of Self Respect 8. As a grown man or woman how would you feel having to ponce for a change of clothes or shoes? Not to have the monies to aVord shoes (£30.00 % no fags for 14–21 days) Track suit non designer (£30.00 % ditto ditto ) Coat for winter wear (£115 % 10 weeks of nothing ) 9. This applies to both sexes, but the ladies have additional cost in dresses, blouses, and having a change. Now apply this to a fashion conscious younger person. I believe the devastating eVects are self- explanatory.

Legal Issues 10. The regulation removing beneﬁts is Disability Discrimination law Sect 1 & Sec 2 of the DDA Act 1995 & 2000. The determination is irrational, illegal, perverse and procedural impropriety law Law Lord Diplock, as determined in the GCHQ V Rex 1984. It is a breach of the European Convention of Human Rights article 9 The right to dignity. There is no dignity living on £2 a day. 11. Matters could be resolved with the support of the Bar Pro Bono Unit to supply a QC to prepare a brief to correctly challenge these points. First in Royal Courts of Justice, then the House of Lords, then via MEP and Judiciary in European Court.

Diagnosis and Prognosis 12. Some clients will never leave hospital protection. Others will. But penniless and in dire abject poverty. Why? Do you really expect to resume normal productive life in these circumstances?

Stereotypical Assumptions Clients interviewed 13. Clients were multi skilled in art, poetry, cooking and normal activities such as ambulant, capable of social discourse, reasoned thinking, planning and self-aware. This huge un-tapped resource is not utilised fully in the treatment of the poor souls who can become institutionalised cabbages.

Perceptions 14. Clients with mental health issues walk around with knuckles in contact with the ground and are dead between the ears. FALSE. Your condition is communicable to visitors. FALSE. We have no feelings and are ignorant of due legal process. FALSE.

Perceptions 15. We do not need deodorants, new clothes, to take pride in appearances. FALSE. 16. As a client I wish to invite the responsible MP/Ministers to spend 14 days in Runwell. Subjected to the nightly sleep depravation through banging doors, sweaty feet, farting, crying, stroppy clients kicking oV, which is not conducive to eVective treatment of the paranoid, depressives, lifers and staV who live this life long term. 17. Add to that lack of self-respect, through Government inspired theft of entitled beneﬁts. 18. At 12 months we do not magically get better. 19. But we do lose between £50–£100 per week. 20. Must be of great pride to MPs to harass the sick, inﬁrm and incapable who are poorly represented, with the exception of organisations such as MIND.

Request 22. That this letter without modiﬁcation is circulated to every Member of both Houses of Parliament, with a request for formal written responses from recipients. 23. That the same, to mass market papers such as the Sun, Daily Mirror. 24. That you visit us in Runwell, within 20 days. Ralph Hill Joint Committee on the Draft Mental Bill: Evidence Ev 721

Memorandum from Dr Michael Cavadino (DMH 7) 1. Dr Michael Cavadino is Reader in Law in the SheYeld University Centre for Criminological Research, Department of Law, University of SheYeld, author of several works on mental health law including: Mental Health Law in Context: Doctors’ Orders?, Dartmouth, 1989; “Community Control?”, Journal of Social Welfare and Family Law [1991] 482–493; “Commissions and Codes: A Case Study in Law and Public Administration”, Public Law [1993], 333–345; “A Vindication of the Rights of Psychiatric Patients”, Journal of Law and Society, 24 (1997), 235–51; “Death to the Psychopath” (Editorial), Journal of Forensic Psychiatry, 9 (1998) 5–8; “New Mental Health Law for Old: Safety- Plus Equals Human Rights Minus”, Child and Family Law Quarterly, 14, (2002) 175–89. 2. My article “New Mental Health Law for Old: Safety-Plus Equals Human Rights Minus”, Child and Family Law Quarterly, 14, (2002) 175–89, is appended. This article contains my overall views and arguments concerning some of the main proposals in the draft Bill, which also appeared in the 2000 White Paper Reforming the Mental Health Act (Cm 5016). I also append my article “A Vindication of the Rights of Psychiatric Patients”, Journal of Law and Society, 24 (1997), 235–51. 3. I wish to respond brieﬂy to questions 1 to 4, 6, 8 and 9.

4. Q1 Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? In my opinion, no. I have set out the principles which I argue are appropriate and desirable in the article “A Vindication of the Rights of Psychiatric Patients”, appended. I argue here that the right to autonomy should not be infringed unless there is a “vivid danger” of serious harm. The draft Bill would allow much greater infringement than this.

5. Q8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? The philosophies of the two Bills appear to be seriously at odds with each other. The Mental Capacity Bill attempts to give eVect, as far as is possible, to the autonomy and will of the individual patient, including in respect of their decisions to accept or refuse medical treatment, stating speciﬁcally that a patient’s right to choose will not be infringed simply because his or her actual decisions are believed to be unwise. The draft Mental Health Bill seems to be operating on a diVerent principle in allowing, for example, compulsion in cases where self-neglect is feared.

6. Q2. Is the deﬁnition of Mental Disorder appropriate and unambiguous? I would argue that legislation of this kind should only be concerned with mental illness and not “personality disorder”. Variations in personality should not be regarded as medical disorders, especially when there is little good evidence or agreement about the nature and aetiology of such “disorders” and over whether there is any appropriate treatment. If legislation is thought to be required to deal with non-mentally ill dangerous persons, it should be framed in terms of their veriﬁable dangerousness rather than on what can only ever be a highly contentious diagnosis.

7. Q2. Are the conditions for treatment and care under compulsion suYciently stringent? No, specifically clause 9(4), which allows compulsion provided it is thought “necessary— (a) for the protection of the patient from— (i) suicide or serious self-harm, or (ii) serious neglect by him of his health or safety, or (b) for the protection of other persons, that medical treatment be provided to the patient.” Ground (a) should contain the requirement that there is a substantial risk of the serious harm occurring in the absence of compulsion. Ground (b) should require that there is a substantial risk of serious physical or psychological harm to another person or persons. As (b) stands, compulsion could be “justified” on the basis that there is a small risk of nuisance to others, since it does not say how great the risk needs to be, nor does it define what others need to be “protected” from. 8. These are not legal nuances but vital distinctions in a liberal society. The freedom of the individual should not be invaded unless there is good evidence of a significant risk of a serious nature. 9. Furthermore, in conjunction with the broad definition of mental disorder in cl 2(5) and other provisions, the Bill would allow people with diagnoses such as “personality disorder” to be detained indefinitely on the grounds that it is “necessary for the protection of others” even if they have never Ev 722 Joint Committee on the Draft Mental Bill: Evidence

committed a violent or dangerous act. The 2000 White Paper (Cm 5016, Part II, para 2.13) claimed that it would be “highly unlikely that any individual without a long track record of increasingly serious oVending will be aVected by these new powers”. If this is the intention, then the Bill could easily be amended to give eVect to it. It could for example state that long-term detention for the protection of others (whether via civil or criminal proceedings) may only be ordered where the patient has been convicted on two or more occasions of oVences of serious violence.

10. Q2. Are the provisions for assessment and treatment in the Community adequate and suYcient? Compulsory treatment in the community is an unjustiﬁed infringement of liberty: see my article “A Vindication of the Rights of Psychiatric Patients” (appended). Note also recent Australian research indicating that such community treatment orders, far from acting as a less intrusive and more eVective alternative to hospital admission, actually lead to a higher number of admissions (S R Kisely, J Xiao and N J Preston, “Impact of compulsory community treatment on admission rates: Survival analysis using linked mental health and oVender databases”, British Journal of Psychiatry (2004) 184: 432–438).

11. Q3. Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?

Q4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? No, see above, paras 4–10.

12. Q6. Are the safeguards against abuse adequate? In cases where the Bill allows treatment to be imposed on an unwilling patient, clear criteria should be spelt out. These should include that the patient’s refusal is unreasonable and is a result of mental disorder. (It is probably more common at present for a doctor providing a second opinion to ask, not whether the patient’s refusal might be reasonable, but whether the doctor wishing to treat is reasonable in wishing to do so. This is the wrong question. It is not the doctor’s autonomy which is at stake, but the patient’s.)

13. Q9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act? I doubt it: see my article “New Mental Health Law for Old” (appended)1 and above, paras 4–12. October 2004

Memorandum from Mrs A Edwards (DMH 8)

I have recently read that the draft for a new Mental Health Bill will seriously restrict the rights, choices and well being of many people in the public domain. In that those of us who have had, are suVering from, or will have in the future a mental illness will lose our voice and freedom in society. Some no longer trust the system, and this would create a withdrawal from others and an inability to function, particularly to those of us who suVer from, depression and/or schizophrenia. We will become the “hidden people”. This is already happening to some extent—particularly thinking of the Milton Keynes area, where many are no longer able to, or permitted to attend “drop-in” clubs, in fact these are now called therapeutic day-centres. I think the system has got worse. Milton Keynes is expanding its numbers, not diminishing. If we lose our ability to communicate with others in this area, it does not mean that we do not exist. Also, what has happened to the Advocacy service in Milton Keynes? Currently, there isn’t one. When Mental Health patients got into diYculty, at least there was a friendly, helpful face, listening to our needs, this was run on a voluntary basis, so there was no checking up of time-limits—and monetary concerns, the “patients” came ﬁrst. September 2004

1 Not printed. Joint Committee on the Draft Mental Bill: Evidence Ev 723

Memorandum from Grethe Hansen (DMH 9)

I am involved in education and training of both mental health service users and staV (from both statutory and independent sectors). I therefore am in a position to hear about mental health services from a range of perspectives. This has let me to the following views about the draft mental health bill: — The draft Bill does not meet the needs of people with mental health problems but is likely to alienate many people who need services. — The values underpinning the Bill appears to be in conﬂict with the welcome and strong message to services to ﬁnd ways of developing partnerships and socially inclusive services for people with mental health problems. — Service users and staV are particularly concerned about the proposed in relation to compulsion for dangerousness: this reinforces the negative image of people with mental health problems and colludes with the damaging view that people with mental health problems are ALL potentially dangerous. This image is one of the most diYcult problems for service users to live with. — Compulsion in the home is a bad idea in theory and totally unworkable in practice. — Advanced Directives is a very welcome development. Grethe Hansen Senior Lecturer, Mental Health September 2004

Memorandum from Julie Knighton (DMH 10)

I am a mental health service user, a Manic Depressive and I am the Northamptonshire user rep for NIMHE. I attended a bill roadshow and although received an answer there still feel worried. The part of the bill where you guarantee service users advocates. Being part of the User Support Service in Northampton that has had advocates for a long time I know that although they have trained many but they have not gone on to be advocates and therefore left the few that did become one struggle with workload. I was told that a woman is looking at advocates and the number quoted for as many as she thought she would need country wide was ridiculously inadequate knowing the large need in my county for advocacy and we are only a relatively small county. And retaining them once trained will be a big problem it was for us in USS. Also I worry that the tribunals themselves will be too scary for the patients and urge anyone considering these to remember they are dealing with very fraught and upset people in all the roadshow I felt that the fact we were talking about real people. October 2004 Ev 724 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Patrick Olszowski (DMH 13)

My name is Patrick Olszowski, and I work as the Public AVairs OYcer for Great Ormond Street Hospital. As such I come into contact with children suVering mental distress. I have for the past twelve years also suVered from very severe panic attacks. Summary I am writing in connection with the draft Mental Health Bill, which I feel is brutally ill focused in addressing the real issues that aVect people, like me who have needed/need help. As I see it, the Bill focuses too much on compulsion and does too little to address the key problem—the overcomplicated nature of accessing services. P1—I feel compulsion is utterly wrong. P2—My panic attacks started at school, following a severe depression of a year. During this period, all the GP could suggest was medication. P3—Despite feeling scared all the time, and occasionally suicidal—I felt strongly however this was not what I wanted. I wanted to get better under my own steam and I was worried that drugs would not be a resolution, merely an abating of the symptoms. Aged 14, I am not quite sure how I made it through. But Idid. P4—Under your new legislation, my own wishes could have been swept aside, and I could have been forcibly medicated, a decision I believe could have led to me being far further back than I am now. I urge you to rethink. Being mentally unwell, does not mean you abdicate your right to choose what goes into your body. P5—After over 12 years of severe panic attacks, last year I took the very painful decision to try and address the root causes. Your belief that treatment in the community can form the corner stone of mental health treatment is flawed—as access is also phenomenally diYcult. P6—After seeing my GP, I was told he would fax the Community Mental Health Team and get me an appointment. Yet this was just the beginning of what was to be a tortuous travail: — Sending the fax took a week. Bear in mind admitting to needing help is a major issue for most people, and so this delay was not welcome. — A further two weeks on, I was finally given the number for the centre and told to chase the appointment myself. Now I am a cogent, middle class, white, professional communicator, of 27 and yet accessing these services was phenomenally diYcult. — Reception staV didn’t have any record of my GP’s fax. They didn’t know by whom I was to be seen (or how the caseload was shared in the Centre). The therapist was then the only person who held her diary. — From my initial cry for help, it took seven weeks to get my first appointment and that was just because I was so obstinate. Many others, in worse positions, than I, would probably not have persisted. Joint Committee on the Draft Mental Bill: Evidence Ev 725

P7—From my own experiences, I want to say, the answer is not to cover up the under funding of community mental health services and kowtow to public fear of “knife wielding schizos” (quite possibly the most evil characterisation of feeling so “ill ﬁtting” within one’s own skin) with compulsory treatment, and not addressing over bureaucratic access routes. P8—Simplify, understand—don’t compel, complicate. October 2004

Memorandum from Keith Kinsella (DMH 14) I am writing with very great concern over the draft content of the Mental Health Bill soon to enter the scrutiny stage of legislation. I am currently working as a Graduate Primary Care Mental Health Worker and I have experienced mental ill-health in the past. I would be grateful, therefore, if you would consider the following reservations. 1. Compulsion—I have read the draft Bill and I am very concerned over the resort to compulsion the legislation will take. It would seem that patient’s rights are undermined at each stage of the care pathway. To begin, the ability for consultants to override advanced directives seriously undermines the ability of a patient to feel in control of their condition both when they are well and when they are experiencing a crisis. It is one thing living in the knowledge that one could be sectioned against their will but quite another to live in the knowledge that even under section informed decisions taken pre-emptively can be ignored. The right to advanced directives should only be taken away when the patient is likely to cause harm to others or themselves. I fear that unless this harm principle is clearly defined patients will lose what little feeling of control they feel they have over their condition and treatment. For example somebody given “emergency” ECT under the new Bill may have clearly expressed their desire not to receive this treatment in an advanced directive. The Bill needs to keep the right to advanced directives and consider ways they can be used to empower patients at the same time as limited to ensure they receive the care their condition requires when a crisis occurs. In essence some consent to clearly defined compulsion could be given when the patient is well enough to understand it is in their best interest. 2. Aftercare—I consider the limits placed on available aftercare, the stronger reliance on tribunals and the exclusion of carers/responsible adults from proceedings to be highly paradoxical. There is a lack of aftercare available and I strongly doubt that by decreasing periods of stay less demands will be placed upon it. In essence people will be forced to stay in secure care for longer periods; thus delaying their reintegration into the community; without the benefit of having a responsible carer/adult able to demand their discharge. More investment in respite care is obviously needed and a Bill that seems to paper over the cracks in the service at the expense of patient and carers rights will do little to stop this fault from widening. 3. The exclusion of carers/responsible adults at the assessment stage of care seriously undermines the concerns this stakeholder has been making in recent years. Not only will a patient no longer be able to rely on advanced directives, they will be placed in an intimidating environment without a guardian who has more knowledge of their emotional needs. I think we need to ask ourselves who the real expert is in these circumstances—I come to the conclusion that both the psychiatric consultant and nominated carer have a role to play especially if the draft Bill will take away the right to demand discharge from this group. Once again the Bill looks at how to restrict user stakeholders instead of empowering them. 4. Compulsion in the Community—I find the draft proposals of this particularly abhorrent and believe that they strongly contradict patient’s basic human rights. If people need this level of compulsory treatment they should surely be in hospital and not living in society like second class citizens. The CPA approach clearly looks at ways a patient can reintegrate into society and feel empowered in their recovery—demanding somebody attends a clinic or depot injection contradicts not only patient choice but the whole ethos of recovery in the community. I feel that this level of compulsion will delay the inevitable re-hospitalisation whilst taking away fundamental human rights. The above reflect my own opinions as somebody who has been a user of primary care mental health services and who now works in mental health. I apologise for any factual errors or assumptions but hope that my sentiments can be carried along to the Committee before a so obviously draconian and unworkable piece of legislation is passed. October 2004

Memorandum from Leslie Carr (DMH 15) I am submitting this as an individual rather than a member of an agency. As an approved social worker working in an Acquired Brain Injury Rehabilitation Unit whilst also sitting as a Justice of the Peace I am particularly interested in the relationship between the proposed Mental Health Bill and the proposed Mental Capacity Bill and I am oVering a suggestion concerning “moving” people without capacity from the mental health ﬁeld to the mental capacity ﬁeld. Ev 726 Joint Committee on the Draft Mental Bill: Evidence

1. One of the achievements of the MH Bill and the MC Bill is to move those with a learning Disability and acquired brain injury out of the field of Mental Health into a new field of Mental Capacity by removing the diagnoses of Severe/Mental Impairment from Mental Health legislation. 2. This is likely to be beneficial as working in the area of ASW/ABI for several years I have had, on several occasions to use the 1983 MHA when the health or safety of the ABI suVerer has been at risk. Although this is legal it has always felt uncomfortable as it has often meant an individual with specific ABI needs left inappropriately on a psychiatric ward for several weeks. 3. At present there is nothing outside MH legislation for the care and control of those without a MH diagnosis except common law and the rare use of a High Court statutory declaration. The MC bill will of course change this with Lasting Power of Attorney and Court Appointed Deputies. 4. However it is unclear as to whether the MC bill will cope with emergency intervention as not all will have a LPA and a CAD is unlikely to be available in the few hours that a genuine emergency requires. 5. As such it is likely that many suVerers of acquired brain injuries or learning disabilities when in an emergency will become under the remit of the MH Bill and admitted to psychiatric hospitals under its powers. 6. Although it is likely that clinicians and practitioners will take steps to transfer such individuals to the mental capacity field it is unlikely to prove a speedy resolution and it will take weeks and probably months before their care is transferred, leaving them in a totally inappropriate environment for far too long. 7. What appears to me to be one possible option is to extend the power of the Mental Health Tribunal at the 28 day stage. If it appears to the Tribunal that the individual needs to be managed under the Mental Capacity Bill rather than the Mental Health Bill then the Tribunal should have the power to impose an Interim Court Appointed Deputyship, perhaps to the chief executive of an appropriate body like a Health Trust or Social Services, for a period of 28 days. 8. This would achieve the goal of removing the individual with ABI/LD from the mental health field, keep an element of care and control in place for emergency situations whilst ensuring a review within 28 days by a court qualified to deal with issues of mental capacity. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 727

Memorandum from Janet Cresswell (DMH 17)

THE MENTAL HEALTH ACT

Psychiatric treatment is counter-productive—the damage has been suppressed, hence the protests at it: — The ILLA used to advise their child care workers not to press parents who missed their children’s psychiatric appointments as it was recognised that children were more badly behaved after treatment than before. Why is the new Act extending services to include more children? — Eight women a day are cut down at Holloway Prison. The attempted suicide rate was nothing like this prior to the advent of psychiatrists with their drugs. This applies also to other prisons and mental hospitals. — Police have used the MHA as they do not have to appear in court to qualify committals and mental hospitals ask no questions. NB Detected crime rate is barely 3%—the bulk of those in prison or diverted to mental hospitals have been easy to detect or have given themselves up. This stirs up the community, it does not provide peace and security nor reduces the crime rate. Personally my life was wrecked at the age of 34—I am now 73—by unwanted, unneeded psychiatric treatment (shown by the fact that I worked for 28 years without problems); in all I have sustained four operations (two very major) to counteract the eVects of forced medication and my back problems stemmed from needless ECT. I was so traumatised at being committed without explanation and made to believe I was suVering from something only others could see that, when pronounced cured and allowed to leave “hospital”, I hid myself away. When I did realise a cover-up by a doctor’s rape was probably the cause I became determined to get the psychiatrist to court which I could not do through normal (solicitor) channels. I thus took the law into my own hands and attacked a doctor, solely with the aim of getting the case to court. For this I was committed, drugged and made ill again. Although unaware of it I was put on the police station list as a mental patient. In 1976 after submitting a petition to No 10 appealing for the Abolition of Forced Psychiatric Treatment I was committed with no explanation by the police (who appeared to be boosting their low arrest ﬁgures) so attacked the psychiatrist to get the case to court (where I was hushed up) and was sent to Broadmoor. I am still being detained (in an expensive RSU) apparently because I do not match the untrue committal statements made (in 1976!) which requires that I receive treatment which I do not need for an ailment I do not have and which makes me ill. Years ago oVers to emigrate were turned down but I am certainly soured at paying taxes into this country’s “social services” and am aghast at the proposals for Care in the Community. October 2004

Memorandum from Dr P Lepping, Prof D Menkes, Dr G Harborne, Dr R Poole, Dr M Zinkler (DMH 18) You have invited comments regarding the Draft Mental Health Bill 2004. Given the high quality of the Scrutiny Committee’s Report on the 2002 Bill, we would like to concentrate on the changes made to the Bill between 2002 and 2004. The main change between the two proposed bills is the tightening of criteria for involuntary detention, and an increased emphasis on risk. At the same time the very broad definition of what constitutes mental illness has been maintained. In our opinion this is exactly the wrong way round and emphasises the wrong principles. As psychiatrists we have expertise in treating those who are actually mentally ill. Sometimes involuntary detention is necessary to prevent further deterioration of health, even in the absence of a current risk to the patient or others. This useful clinical strategy amounts to secondary prevention, since further deterioration usually does confer such risk. The new Bill would force psychiatrists to wait until there is an actual risk and prevent action in patients’ best interest, even when the likely course of events is painfully obvious. On the other hand, the significant criticism about the broad definition of mental illness has not been resolved at all since the government has insisted on retaining the broad definition. In view of recent remarks by senior police suggesting that Mental Health Services should be providing the police information about which individuals might be dangerous, psychiatrists’ ethical concerns cannot be emphasised enough over this issue. It is of deep concern that even slightly abnormal or bizarre behaviour may potentially provide grounds for involuntary detention in the absence of what we would describe as mental illness. This emphasises the stigmatisation of mental illness as something dangerous and would force psychiatrists to take on a policing role, which they not only clearly detest, but which is inappropriate, unethical and likely to prove ineVective. Furthermore, it is unethical to detain people in hospital without a clear benefit to their health. The Royal College of Psychiatrists has made clear its concerns about the threat that this would pose to the doctor-patient relationship and the patient’s willingness to seek help in many situations. Furthermore, it would further damage recruitment to force psychiatrists to do use a Mental Health Act they object to on ethical grounds Ev 728 Joint Committee on the Draft Mental Bill: Evidence

In summary, the government’s response to criticism of the 2002 Bill has taken us in exactly the wrong direction. Rather than changing the detention criteria they have made action in the patient’s best interest more diYcult by focusing entirely on risk. Ultimately this would jeopardise rather than protect patients’ rights. It is disappointing that the government has not returned to the Richardson expert committee’s emphasis on principles and values, which are shared by the whole mental health community. We fully appreciate that one argument for a broadened definition of mental illness is the attempt to incorporate people who suVer from alcohol dependency. Interest groups have long lobbied the government to increase the capacity for detention when alcoholics present with suicidal ideation. However, there is no evidence to indicate that hospitalisation of individuals with alcohol dependency reduces the risk of suicide or otherwise improves treatment outcomes. Indeed, the evidence indicates that such favourable outcomes could only be achieved with well-funded Drug and Alcohol Services including eVective rehabilitation options. With regard to the changes to the Community Treatment Order, the new Bill will please neither supporters nor opponents of community treatment. This is because the provisions in the new Bill are hardly any diVerent to the provisions of the Section 25 of the 1983 MHA. Therefore, it will not provide any of the potential benefits of community treatment whilst those opposing Community Treatment Orders on the principle that it erodes patients’ rights will see the mere existence of this provision as problematic. In conclusion, there are clear ethical concerns regarding the obvious shift from rights-based principles towards utilitarian principles in the proposed Bill. We suggest the Scrutiny Committee consider recommending the reintroduction of the clause that makes detention possible to prevent deterioration of health. At the same time one can only hope that the government will look again at its definition of mental illness and its lamentable focus on risk rather than the patient’s best interest. Dr P Lepping, MRCPsych MSc Consultant Psychiatrist/Honorary Lecturer—N.E. Wales Prof D Menkes MD PhD FRANZCP Honorary Consultant Psychiatrist—N.E. Wales Dr G Harborne MB ChB MRCPsych Consultant Psychiatrist—N.E. Wales Dr R Poole Consultant Psychiatrist/Honorary Clinical Lecturer Dr M Zinkler, MD MRCPsych Consultant Psychiatrist—London September 2004

Memorandum from Gary Elliott (DMH 22) Increasingly since Tony Blair became prime minister I ﬁnd myself turning to newspapers such as the Independent and Guardian for an accurate interpretation of events as they occur. The latest infringement on my human rights now appears to be the new Mental Health Act. I suVer from paranoid schizophrenia and as far as I can ascertain this means I will not have the same rights as a non suVerer. When such distinguished doctors and writers all combine to say how unfair and detrimental to their profession and patients this Act will be then I’m afraid I believe them and not Blairites. I think I face enough discrimination and diYculty in life as it is with the stigma and consequences of this disease without the government adding to my problems. Trust is paramount with schizophrenia, if the doctor treating the patient is obliged to betray that trust (in the patient’s eyes) then I think I can safely say treatment will be more diYcult if not impossible. October 2004

Memorandum from Mental Health Alliance in West Yorkshire (DMH23) This is our formal response to the Draft Bill. 1. The Mental Health Alliance in West Yorkshire is a campaigning group made up of local service users and carers, and of workers from the local Mental Health Trust, Social Services and voluntary sector organisations. 2. We feel compelled to act to try and prevent a damaging and unworkable Bill from passing into law. We want to work positively to help to produce a piece of legislation that is ﬁt for the 21st century. Joint Committee on the Draft Mental Bill: Evidence Ev 729

3. Opposition to the ﬁrst draft Bill was widespread and united most stakeholders. We had hoped that the 2nd draft would be more appropriate and that it would have been informed by the nature and strength of opposition to it and the responses which were made. 4. Whilst there have been some changes, we still have serious concerns about the new draft and the likelihood that it would alienate the very people whom it seeks to help and support. This alienation will be extremely counterproductive. 5. We are particularly concerned about the following aspects of the proposed legislation: 6. The Bill will not achieve the right balance of protecting the personal and human rights of people with mental health problems, and concerns for public and personal safety, due to the proposed use of compulsory treatment and powers. (a) The Bill extends the use of compulsion in individual’s homes and communities. (b) Whilst we note that treatment will not be forcibly administered in the community, individuals who are not compliant face being removed to a treatment unit with all the distress inherent in that experience. (c) This may well involve police oYcers as well as mental health staV; it will be very visible and will increase fear and stigmatisation in the community. (d) This is entirely contrary to the agenda for social inclusion currently also being promoted by this Government. (e) This aspect of the Bill will have an extremely detrimental eVect on the role of professionals and the way they are perceived. (f) A number of our members know that they will be reluctant to contact mental health services at all because of the increased fear of intrusion and coercion which they feel they may be subjected to if this draft legislation were to become law. (g) Furthermore, the potential for staV to feel that they are oVering a therapeutic relationship is severely compromised when they are “policing compliance”. (h) The power dynamics of these relationships would be radically altered if this legislation were put in place as currently proposed. (i) This means in turn that the Bill will, in eVect, be unworkable. (j) It will also be extremely ineVective, and even counterproductive, because many of the people who need treatment and support will not seek it. (k) We want to work with people in the community to support their independence and to focus on recovery. 7. Our second key concern is around the right to eVective treatment and support for people who need it. (a) We very much welcome the inclusion of the right to independent advocacy. (b) This right does not come early enough in the process, which means that there is not adequate safeguard for people prior to assessment. (c) It is crucial that advocacy is genuinely independent, and we are not convinced that enough resources will be available to make this happen. (d) We note that while on the one hand there will be compulsion on patients, there is no legal obligation for authorities to provide treatment and support as agreed in a care plan, which would be a major step forward. (e) We greatly regret the absence from the Draft Bill of advance directives, the use of which would be an extremely important safeguard in how people are treated when in crisis. (f) We note that in the Draft Bill it will be possible for people to be given electro-convulsive therapy (ECT) against their consent, “in an emergency”. We believe that ECT should never be given against consent. 8. We hope you will give serious consideration to our concerns about this Bill. We would very much welcome the opportunity to give oral evidence to the Committee. 9. Please note that one of our members, Louise Relton, is enclosing her own personal statement with the hard copy of this submission. This is not attached in the email submission, for reasons of conﬁdentiality. October 2004

Memorandum from Alan Craig (DMH 25) I am an ex-ASW and I also was authorised under the 1959 Act. I have also passing acquaintance with mental heath legislation in other jurisdictions. I have been a manager of Community Mental Health Teams, involved in the Training of ASWs and sec 12(2) Doctors. I was also the “Lead ASW” for an authority giving Ev 730 Joint Committee on the Draft Mental Bill: Evidence

ASWs advice both on practical and legal aspects of their work. I have worked in the substance misuse ﬁeld and currently work for NIMHE but I stress these comments are entirely personal and are not to be taken as representing either my current or past employers. There are a lot of good developments in the Bill. The nature of a document such as this is that it focuses on my perception of the weak points. I have not attempted to answer the Scrutiny Committee’s questions directly but have grouped my comments into issues. They are in no particular order. I would be happy to expand on any of these points on request.

Relevant Conditions Clause 9(8) needs close scrutiny. As it is written it is the source of much of the criticism of the Bill as apparently focussing on control, dangerousness, and the need to reduce public disorder. Since the issue of dangerous/criminal behaviour is dealt with in para (7) and in part 3 I do not think (8) adds anything to the process. In my view it could be safely deleted without aVecting the determination of the relevant conditions in any way and may go some way to restoring conﬁdence by patients that they are being assessed for their mental disorder and not for their potential criminality. Para (6). Much discussion has gone on around what this means in the context of lack of beds. It is clearly inappropriate for patients, as now, having to stay in police cells for some time while bed is found for them. Another scenario which I heard of recently is where although all the conditions for the current Act were met the RMO and hospital refused admission as they assessed that the hospital could not contain the risk and that the risk of leaving him in the community was less that the risk to the hospital and other patients of admitting him. Either the Bill or the Code will have to be very clear on relative responsibilities if there is a delay in ﬁnding appropriate treatment.

Definition of Mental Disorder I welcome the removal of the exclusions in the 83 Act. The proposed new definition focuses on behaviour rather than diagnosis. There is a danger that this definition could exacerbate the over representation of black and ethnic minority people within the detained population as, without an ethnically sensitive assessment, mis-identification of behaviour as mental illness may occur. Therefore here as elsewhere I would welcome a reference to cultural sensitivity. I think it should be mentioned in the Bill and expanded in the Code and not left entirely for the Code. The encouragement (by omitting the exclusion) of treatment for people with co-existing mental health and substance mis-use problems is to be welcomed. It will however increase the pressure on beds which is already overwhelming in most areas. The “losers” in all this may well be those who would otherwise have agreed to voluntary admission but cannot be oVered a bed. It may well also have the impact of increasing the percentage of inpatients who are detained.

Carers While the emphasis on carers’ rights is to be welcomed the Bill appears to be inconsistent in the times where cares are consulted. They are not informed by the Hospital of the appointment of the Clinical Supervisor. They are consulted over the formulation of the care plan but not sent a copy (including after a Tribunal). They cannot apply to the Tribunal. These anomalies need rectifying or justifying.

Nominated Person The patient’s right to choose is the correct formulation. However the Bill seems to allow the AMHP too much ﬂexibility in ignoring the patient’s wishes. While no doubt the Code will give helpful guidance the Bill should stress that the patients wishes can only be over-ruled in very deﬁned circumstances. As it is written the patient could nominate someone they know will be a “thorn in the side” of the professional services. The AMHP, knowing this, may refuse the request. However the other side to that argument is that the professional services should have a mechanism for setting aside the nominated person (possibly via appeal to the tribunal) if they believe the NP is acting against the patient’s best interests (ie something to replace the “displacement of nearest relative” procedures in the current Act).

Local Authorities The Bill gives 2 responsibilities to Local Authorities (and mentions its responsibilities to children under other legislation): — the appointment and training of AMHPs; — being the nominated Person where there is no other suitable person. Joint Committee on the Draft Mental Bill: Evidence Ev 731

Consideration should be given within the Bill or regulations as to whether these powers can be passed over to a Healthcare body by virtue of sec 31 of the Health Act (the ﬂexibilities) or Care Trust status, and if they can what that means for the presumed desire for an independent social care perspective. Given the relative marginalisation of Local Authorities within this Bill some indeed many may decide to divest themselves of all mental health responsibility by delegating these powers if they are allowed to do so.

Clinical Supervisors I think the Bill has failed to recognise the multi-disciplinary nature of modern mental health work. As the Bill is framed it is up to the Clinical Supervisor to develop the care plan in Hospital or the community for non resident patients. In reality it is a team approach. While the Bill may want to retain the leadership of the medical profession it should recognise that other professions are also involved by stressing consultation with the care team.

Care Plans The emphasis on care plans is valuable. However the Bill sets up the procedures for writing and distributing the care plan without reference to other care planning activity notably the care programme approach. I think, partly to reduce the need for separate care plans, the Mental Health Bill should link directly to the CPA process perhaps, for the purposes of the Bill, putting the CPA on a legal footing. This would in turn link back to the Local Authority responsibility for care planning under Community Care legislation.

Tribunals Assuming the estimate of nearly doubling the number of appeals is accurate, the additional administrative burden on professionals will be enormous. The workforce estimates feel on the low side and it also erodes some professional satisfaction as the preparation of reports and attendance at Tribunals is time taken away from clinical work. The current infrastructure of the Tribunal system is not coping with the demand. So, to ensure proper safeguarding of patients rights, the new Tribunal must be properly resourced with both professional and administrative staV.

AMHPs The notes point out that this role is to give a social care perspective on the assessment. However all three professionals are expected to make judgement on the relevant conditions. While no doubt the relevant roles will be spelt out in the Code some mention of the diVerent perspectives on the face of the Bill would be helpful. In particular some mention of cultural/disability/gender awareness would improve the Bill. It does not need to be complicated “interview in an appropriate manner” and “all the circumstances of the case” from the 83 act together with explanation in the Code would be suYcient. The appointment of AMHP by each Local Authority to operate in its own area is unhelpful. The formulation in the 83 act is much better. Probably with the diVerent jurisdiction there would have to be separate approval for England and Wales. The ability to work wider than the authority’s boundary is needed without complex inter-authority agreements. Community services are now often using PCT or GP practice boundaries which pay no attention to Local Authority boundaries. Assuming a body such as the General Social Care Council ensures robust national standards for accreditation and training then a national authorisation could be arranged. Attention will have to be given to the role of the Local Authority (provided it keeps the role, see above) vis a´ vis the AHMPs it appoints who are not its employees. Potentially it puts the LA into a disciplinary type role (as it must be able to withdraw approval) which may have consequences for salary and possibly continued employment for people it otherwise has no authority over.

Police Powers Clause 225(5) changes the 83 act and allows the police to take the person without being accompanied by a mental health professional. In my view this is a retrograde step as, while the police are experts at apprehending individuals, they are not so expert in dealing with mentally disordered people. In my view they should always be accompanied so as to reduce the risk of harm coming to the person due to inexperience on the police’s behalf even if this is diYcult for the mental health service to provide Clause 227(1) repeats the 1959 Act wording which in turn was in the 83 act. The wording in my view is old fashioned and could do with being reworked for the 21st century even if the eventual eVect of the new words are the same as the old. Ev 732 Joint Committee on the Draft Mental Bill: Evidence

The widening of the deﬁnition of mental disorder may encourage the police to use their powers more often. It is my impression that the vast majority of the current people who are detained under sec 136 who are not subsequently admitted to psychiatric hospital have substance misuse problems. It is very diYcult even for a trained professional to quickly diVerentiate between acute intoxiﬁcation and a substance induced/ exacerbated mental disorder.

Community Powers A likely scenario for someone treated as a non-resident patient is that they refuse to accept medication by injection which is a key part of their care plan. Since forcible medication can only be given in hospital (quite rightly) then it would be reasonable for the Clinical Supervisor to recall the patient to Hospital as eVectively an out patient, forcibly inject the patient, and immediately discharge them home. Is that the intention of the drafters of this Act? In which case many service users will see this power as draconian and possibly encourage some to “hide” from services.

Aftercare I regret the loss of free aftercare although I recognise the strength of the argument linking to the six week period of intermediate care. Thought will have to be given to transitional arrangements for the group that is currently receiving free care under sec 117 of the 83 Act particularly as some are only accepting the care as it is free and to start charging may put the care plan in jeopardy. Thought will also have to be given to the eVect of mental health legislation on other funding streams notably “Supporting People” as currently sec 117 services do not attract supporting people funding which makes after-care planning unnecessarily diYcult. October 2004

Memorandum from Mr Clive Hawkins (DMH 26)

1. A Right to Services Having worked as a social worker in and around “Mental Health” services and other services linking to these services and aVected by relevant legislation I have a “both sides of the fence” overview as I have been a service user of mental health services since 1998. My observations are alarming to say the least, when I initially sought help for PTSD and severe and diYcult to treat depression I was denied services by a key “specialist in his field” in this health authority area. I was told I had “nothing wrong with you, you don’t want to be treated for something that you don’t have, do you?” My GP who diagnosed me with “Compensationitis” saw the error of his initial judgement and persisted in referring me to another Psychiatrist. I sought counselling of my own through MIND, and was visited by SSAFA. Both were alarmed at my condition, as was my pharmacist and others. I was suicidal and had all of the known symptoms of PTSD and had had them since 1982. I was first seen by a doctor in 1986 as they thought my chronic fatigue and severe sweating fits were malaria, the tests proved negative and the search for my condition ended in 1997. I was then examined for rheumatoid arthritis (investigating the link of chronic headaches and body pains to the previous investigations) and ME, again these proved fruitless, once again investigations were abandoned in 1998. So basically from 1986 to 1999 I was denied access to services that I should have had, and all the doctors I had seen had not put all the symptoms together to diagnose PTSD, meanwhile I had become psychotic. I re-visited the first psychiatrist, I saw his colleague who said “just because you have PTSD does not mean you can be violent!” (anger problems being symptomatic of PTSD). He refused to assist me or help me with the management or treatment of my psychosis even though I took the extremely diYcult step of telling him that “I feel I present a serious threat to the lives of my family!”

2. Compulsion Should be the Last Resort During 2002 my condition deteriorated rapidly and persistently, my psychiatrist desperately tried to stop my decline. In doing so he inadvertently gave me two medications that should not have been mixed. One was a “one in a thousand” risk of an adverse reaction by the central nervous system, Subsequently over the next few months my central nervous system began to shut down, in August I went to my GP as I had lost the use of my legs. I was carried into the surgery by my wife and another woman. The GP wanted to see me try to walk, I fell to the ﬂoor, and he gave my wife a prescription for 10 diazepam and sent us away. Joint Committee on the Draft Mental Bill: Evidence Ev 733

Half an hour later my psychiatrist arrived at my house, I was collapsed at the doorway unable to walk, in great pain and yellow. I was admitted to Caerphilly Miners Hospital with renal failure and paralysis (chest down). I was given an ECG admitted to a ward and given six times the dosage of the medication which had caused this condition (secondary overdose on top of a toxic level). I initially refused this dose but was instructed by the nurse that the doctor said “you have to take it!” in a state of distress and confusion I complied.

3. Advocates and Nominated Persons I told my wife what had taken place, I then became delirious hallucinogenic and refused food and water and remained that way for ﬁve weeks. I hovered on the verge of death, catheterised and fed intravenously for the duration. If my wife had not intervened and had the psychiatrist stop medication I would not be here writing this letter today.

4. Advance Directives IsuVer from signiﬁcant memory loss, confusion and panic attacks. I had made it abundantly clear (to my GP, psychiatrist and wife) that under no circumstances was I to be given ECT. Yet during my time prior to hospital and during my admission my psychiatrist has insisted at every opportunity that I have ECT. This included the period during my hospital admission when I was unable to communicate my wishes. It was only through the perseverance and persistence of my wife that he was prevented from doing so.

5. A Right to Aftercare When I was discharged from hospital I had not fully recovered my mobility. I could not stand or walk un-aided. I could not climb stairs, wash/shave or even clean my teeth. Yet there was no follow up, my son had to carry me up or down stairs and to the toilet. My GP did not even visit the hospital or communicate with my family throughout or after discharge. Social services sent occupational therapists to assess me three weeks after discharge. There never has been involvement by a CPN (except at my request prior to hospital admission, this was short lived and never followed up). There has never been a link between “Combat Stress” (the clinic which I attend) and the statutory services (NHS or SSD). I have never had an appropriate network or explicit care-plan relating to my PTSD and the diYculties that I experience in living in the community and the eVect this has on my family (support and after-care).

6. Conclusion It is apparent from the above that the services provided are inadequate, arbitrary and inconsistent at the very least. That had a “professional” had the overriding decisions in my care and treatment, at the very least I could have permanent brain damage, paralysis and permanent dialysis treatment to add to what I already have (especially had the psychiatrist and police had the power to administer by force or detain me to administer under the MHA). Had my wife (as my advocate) not intervened (and had the ability to do so) I would quite probably be dead (this happened to a woman admitted to a nearby hospital with the same set of circumstances). Had my wife not intervened the psychiatrist would not only have poisoned me, but caused a secondary poisoning and administered an ECT against my explicit wishes (the side eVects of which would have exacerbated my current memory and confusion problems). I feel that the draft Bill is flawed in many aspects, I have only touched on one or two here. In this day and age of greater consumer/client rights (Human Rights Act etc) I am alarmed at the amount of power swing from user involvement to enabling of compulsive treatment. Most of this proposed legislature is based upon media influence of societal moral panics. This in-turn is based on biased media coverage of the rare but unfortunate instances (generally associated with paranoid schizophrenia and psychosis/delusions derived from failure to adhere to medication regimens) where mentally ill people in the community have attacked, injured or killed people whilst in the community. Where is the comparative change in legislature to accommodate the rise in violent crimes (with similar or same outcomes) perpetrated by other sections of society (specifically young males)—can they be detained and have medication administered which will enable them to become less violent? What about pro-hunt demonstrators? (statistically they injured more police oYcers in one day, than are injured in a year by mental health service users). Do you propose to incorporate in the draft bill measures to change the law in relation to people without mental health problems abusing, discriminating against and failing to provide services and after-care for those with mental health problems? Once I have had the opportunity and well being to investigate the draft bill further I shall undoubtedly be writing to your good selves again (within the spirit of working in partnership, user involvement and consultation) October 2004 Ev 734 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from John Short (DMH 27)

The new Mental Health Bill explicitly allows for the development of separate “codes of practice” for England and Wales. I ﬁnd this quite understandable, given the devolution of power to the Welsh OYce, but it could cause cross-border services like mine, great diYculty. In Shelton Hospital, Shrewsbury, we admit detained patients from England (Shropshire County and Telford and Wrekin) and Wales (Montgomeryshire). The development of separate codes of practice will potentially cause us signiﬁcant administrative diYculties and patients, in the same ward, being treated diVerently. I would like to see the Mental Health Bill amended to ensure that a single code of practice is developed. Thank you Sent on behalf of John Short Director of Mental Health & Learning Disability Services Shropshire County Primary Care Trust October 2004

Memorandum from Martin Jeremiah (DMH 28) My name is Martin Jeremiah and I would like to submit the following feedback on the draft Mental Health Bill in the light of my daughter’s experience. I am writing as an individual but I am also a member of MIND.

1. Compulsion I am extremely distressed that the new Bill introduces more compulsion over the treatment of a patient and takes away further, patient choice. My daughter was prescribed a then unlicensed drug in February against her will. It was forced on her by the use of a second opinion under Form 39. As we know from the Harold Shipman case, second opinions can be very loosely applied. This prescription was experimental and unnecessary because there were three other licensed alternatives available. Indeed, she responds to the lowest dose of Clozapine totally. The unlicensed drug was then upped in dosage to the maximum allowable limit. The drug turned her into a violent, aggressive animal. If such a dose is now legally prescribed to patients in the community, then other people could be at risk. She also cut her own wrists whilst coming oV the drug. I was powerless to stop them giving it to her for a month because the West Sussex Health & Social Care Trust said that they could not intervene in medical decisions.

2. Right of Discharge for the Nearest Relative I understand that this is to disappear under the new proposed Bill. My daughter had an independent report done, dated 18 May 2004, which recommended that she should not be detained in hospital. Additionally the ward staV of the ICU where she was being held under Section wrote on 7 July that she was at severe risk mentally and physically by remaining on the ward. On 23 August, I was forced to apply for her discharge as Nearest Relative. I was amazed at how much the environment had dragged her down mentally, as her mental state recovered within a day of being out of the hospital. Unfortunately however, I have still had to work very hard on her re-introduction to normal life as a result of her being institutionalised in hospital for such a length of time. If this Bill had been law already, then my daughter would still be rotting away in an ICU instead of starting a new and fulﬁlling life elsewhere. I would urge you to think again about the direction that this proposed Bill is taking us and the consequences for both patients and their relatives if you remove what little voice they have. October 2004

Memorandum from Victoria Hanson (DMH 29) 1. I am writing as an individual to express my disquiet at the increased provisions in the draft of the new Mental Health Bill for compulsory treatment of those individuals with diYcult mental health problems. 2. In 1986, due to a terrifying sequence of events when I was a 19 year old student, I had a nervous breakdown. I was sectioned in a mental hospital for four weeks. In Scaleboro Park I was surrounded by women who were routinely attempting suicide (I saw two fellow patients slash their wrists and one overdose). I was pumped full of medication to which I had violent side eVects. I was told that I had to take Joint Committee on the Draft Mental Bill: Evidence Ev 735

these drugs (which made me violently sick, blind, slaver, fall over and drowsy) or I would be held down and forced to take them. 3. This treatment did not make me better. It made me worse. It has left me with a lifelong terror of psychiatrists, doctors and psychiatric medication. 4. What I really needed was to be in a convalescent home, where I could have peace and quiet, good food and time to get well. Because I was subject to the provisions of the current Mental Health Act I still routinely have nightmares about my treatment. 5. If doctors have more powers to subject patients to compulsory treatment there will be many more people left with the feelings of violation and dehumanisation that I still have. I fully accept that there are some individuals who do need compulsory treatment. However, unless one has been through this experience, it is quite impossible to express how degrading and terrifying it is. I was nearly murdered in 1986. I have fully come to terms with those events because I can accept that the individual who wanted to kill me was motivated by evil. Yet when I had a breakdown on the back of those events, the law stripped away my human rights and let me be tortured on a daily basis for four weeks. I needed love and compassion, what I got was abuse. Originally submitted by email for consideration by the Draft Mental Health Bill Committee on the above date. NB, as a post script (and I did not include this in my email) I know several people who have been sectioned. It seems to me that the people who know the patient best, ie family and friends, are usually not consulted about compulsory treatment in any capacity by the medical profession. This is quite wrong because they are the people who know the suVerer best and have the most informed picture about the nature of the illness. No decisions about a patient’s treatment should be made before discussion with the people closest to them. Also, the patient is never asked about their condition, they are just treated as a stupid nonentity October 2004

Memorandum from Trudy Allen (DMH 30) Please see below my comments on the new mental health bill. I currently manage an advocacy service for adults with a learning disability, some of whom could be aVected by the bill. I’m concerned about the sections of this bill relating to advocacy and the impact that these could have on the whole advocacy movement across the county. I’m particularly concerned that there seems to have been little consultation with independent advocacy organisations which would have assisted in the development of a clear understanding of the principles and practices of advocacy. Advocacy is a rich and diverse movement in this country and it is vital that it is this community, and the people that it serves, who dictates what advocacy is and isn’t. I don’t get the impression with this bill that this is what has happened. From what I can see of this bill advocacy appears to be: — Restricted to those who have been sectioned, therefore denying those who are voluntary patients; — being dictated by service providers and service funders and not by the advocacy services or service users; — at funding risk; funding is to be attached to this bill speciﬁcally for advocacy services, which is fantastic, but it will not be provided as ring-fenced money. If this funding isn’t ringfenced then local authorities are at liberty to cut the current, and often sparse funds, they commit to advocacy services and replace them with this funding, rather than building on and developing existing services. This in turn will reduce advocacy organisations to being funded to provide services to only those who are sectioned and a signiﬁcant reduction to the levels of preventative work undertaken, which can often provide the support needed by service user preventing the need for hospital care or intervention. If funding is to be attached to this Bill then, I believe, this needs to be ringfenced and safeguards needs to be attached to protect existing funding, contracts and services. In addition to these comments regarding advocacy I am also concerned about the proposal to remove the need for ASW’s when considering the need for intervention or sectioning. I believe that it is vital to have an oYcer with a social care background involved, and it has been proven that on many occasions a social care professional has been able to suggest alternative courses of action that do not necessitate a hospital stay. Should this bill be adjusted so that three medical professionals can make the decision to section a person without the involvement of a social care professional, I strongly believe that many people who could have been supported to seek treatment and support from within the community will instead be forced into an unwanted hospital stay. October 2004 Ev 736 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Annie Flores (DMH 31)

After attending a recent briefing on the proposed Mental Health Bill I am writing to express my concerns around its eVect on advocacy provision. As an advocacy provider on a county-wide basis, we feel we are providing a much needed service, and that the demand for our services outweigh our present manpower quite considerably. We are already restricted in the service we can provide by our staYng capacity and funding sources, the thought of additional constriction is quite alarming. I know that you will deny that the Bill limits existing advocacy provision, and that it is intended to enhance existing services but in practise that seems unlikely. Presently although there are no dictates surrounding advocacy provision, it is seen as good practise, therefore many advocacy services are presently being supported by statutory funders. Within the advocacy advisement in the new Bill there are allocations for 140 full time advocacy positions, but the funding will not be ring fenced. The possible outcome of this is that statutory funders will only to see the import of funding advocacy provision as outlined under the new Bill. The new Bill indicates that advocacy should be provided for those seen as most vulnerable, these being sectioned patients and their carers. Presently a very large proportionofourworkis withvoluntary/informalpatientsandthosebeingsupportedin thecommunity.Ifwe were to lose funding for our support of those individuals it would be a terrible loss for the advocacy providers as well as the individuals we serve. I see this as an unwitting side eVect of the present draft Bill. I understand that the study undertaken by Di Barnes at the University of Bristol and sponsored by the Department of Health was foundational in drafting the recommendations for advocacy within the Bill. The organisation I work within, South East Advocacy Projects consists of four individual specialist advocacy services, and is a major advocacy provider within the South East. Over a year ago we took the time to attempt to comment on the study and were told that comments were not being accepted at that time. A major concern for us around the study is that it presents one view and is not representative of the views or practise of all advocacy providers. Because advocacy is by its very nature a user led and empowered process and service, it will obviously diVer greatly in its practise and implementation dependant upon clientele and their needs and wishes. To formulate advocacy provision definitively I see as being quite problematic. We as a service see all our clients whether sectioned or informal as being equally vulnerable and any precepts that limit our service provision to this very vulnerable group of people would be quite tragic. I urge you as policymakers to take another look at this section and possibly to consider consultation with a wider cross section of advocacy providers and service users. I also would ask that you consider ring fencing the financing allocated for the provision of advocacy services. Annie Flores Mental health advocacy service County Manager (East Sussex) October 2004

Memorandum from Eric Stark (DMH 32)

1. I am writing to express my concern at the proposals contained in the draft Mental Health Bill and hope that the Joint Committee will advise the Government that much of the proposed content is harmful and likely to exacerbate problems for service users. I have been diagnosed as having manic depression and have had six short hospital admissions in the past 10 years including under section. I am writing on my own behalf. 2. I am particularly concerned about the prospect of increased compulsory treatment. I ﬁrmly believe that compulsion should be the last resort. People in mental distress should only be put under compulsion when they are truly in crisis, in danger, and when they have lost the ability to make choices for themselves. I was forcibly injected during one admission because I did not want to take the pills I was prescribed in hospital as the staV would not tell me what they were or their side eVects. This compulsion, like so many, could have been avoided. And compulsions often leave a lingering feeling of grievance. As my friend and Mental Health campaigner the late Pete Shaugnessy said “What I needed was an arm round my shoulder not a shot in the arm”. 3. I object to the compulsion aspects of the draft Bill because they are unnecessary. People working in mental health care can take action under existing law to deal with the situation. These aspects will also reinforce the prejudice that people with mental health problems are dangerous, whereas the great majority are not. Regarding ECT I believe that this must never be given to a person who has the capacity to make his or her own decisions about this controversial treatment. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 737

Memorandum from Bridgend Approved Social Workers (DMH 35)

1. The core trouble with the Mental Health Bill is that it is exceedingly long (like the Lunacy Act of 1890); that (like the Lunacy Act) it tries to cater for all conceivable eventualities; that it is very prescriptive; that it leaves little discretion to professionals. In these respects it represents a backward step. 2. Clause 9 of the Bill is marked by fear about what people who are “dangerous” and/or “mad” may get up to. A small minority of people must be “mad” because they are “dangerous”, albeit unconvicted. (The provisions for those convicted or on remand appear to be fine.) How big will this small minority end up being? In other words, how many people will be drawn into the “net”. We know from history that if you set up a facility (eg 19th century asylum beds) for awkward and inconvenient people, then the demands on this service tend to expand over time. 3. How are the members of the small minority supposed to be treated? Are they supposed to be locked up indefinitely? When do you find grounds to release them? Who will have the courage to do so? 4. The small minority should be covered by separate legislation (if civil rights considerations allow), and (arguably) separate provision. Are they being treated like foreign terrorists—detained without trial? 5. Look, in detail, at Clause 9. The wording of the “relevant conditions” runs quite smoothly, until you reach the point where the fourth “condition” is disapplied for those over 16 who may “cause serious harm”. 6. The meaning of subsections 6 and 7, taken together, is not really clear, even on repeated re-reading. What they appear to mean is that medical treatment is “available” for most patients subject to this Part of the Bill, and that patients should receive it. However, for the small minority who may “cause serious harm”, some sort of treatment is to be provided, whether real treatment is available or not. The “treatment” is not specified in the Bill. Does detention amount to treatment? 7. I think the Bill needs to be more honest and open about this topic. After all, the Bill is supposed to comply with human rights legislation. 8. Practitioners are going to have great diYculties operating this legislation, and indeed will probably have conscientious objections to operating subsection 7 of Section 9 and applying it to real people. 9. The Mental Health Acts of 1959 and 1983 recognised the diYculty of treating the untreatable. The legislators were wise. 10. Clause 9 subsection 7 should simply be deleted. In the context, subsection 8 needs to be removed too. October 2004

Memorandum from ForUs and Rhymni Valley Mind (DMH 36)

A FORUM FOR MENTAL HEALTH USERS IN CAERPHILLY COUNTY BOROUGH

We are writing in response to the Scrutiny Committee’s invitation to submit evidence on the Draft Mental Health Bill. The draft has been considered at some length by members of both ForUs and Rhymni Valley MIND and we have agreed joint observations on the specific questions posed by the Committee. We also enclose a joint submission outlining our concerns in relation to the draft Bill and a summary of those concerns. In relation to the specific questions asked, our comments are as follows: 1. Although not explicitly stated, the principle underlying the draft Bill appears to be the desire to provide a vehicle to enable the state to restrict the liberty of/impose treatment on those considered to be a potential threat to members of the public. As the majority of people in that category do not suVer any form of mental disorder we consider it entirely inappropriate and unacceptable that a Mental Health Bill should be used for that purpose. Our belief is that it will further stigmatise those with a mental disorder and serve to dilute human and financial resources away from those aspects of mental health services where significant improvements are required. (See paragraphs 1 and 2 of our submissions). 2(a) The definition of “mental disorder” is unacceptably wide and ambiguous. It could be taken to include people with conditions such as epilepsy and in fact appears designed to encompass almost any condition to justify bringing people who may not have any recognised psychiatric condition within the scope of the Bill. We believe that internationally accepted definitions of psychiatric conditions should be used. (See paragraph 3(b) of our submissions). (b) We are concerned that Community Treatment Orders might drive some people underground. If the Government wishes to pursue this idea it should first pilot the scheme in a number of carefully monitored local trials. (See paragraph 3(d) of our submissions). Ev 738 Joint Committee on the Draft Mental Bill: Evidence

3. The balance struck is not acceptable. People with mental disorder require early intervention and understanding treatment and support. If resources are diverted into operating the provisions of the Bill these early front line services are likely to be diluted. As argued above, people with a mental disorder are only a minority of those who present a risk to the public and that problem should not be addressed in a Mental Health Bill. 4. We do not believe the proposals contained in the Bill are necessary. We are not aware of any fundamental concerns about the operation of Mental Health Review Tribunals (other, perhaps, than questions about the adequacy of their administrative support). In our view implementing the proposed new systems is likely to become very time-consuming and bureaucratic. 5. We do not feel equipped to comment on this question. 6. No, the safeguards against abuse are not adequate. In particular there is no reference to Advance Statements. We believe these should be encouraged as a fundamental safeguard (see paragraph 3f. of our submissions). We are also concerned that the clauses allowing opt-outs from consultation with interested parties may be open to abuse (See our paragraph 3(e)) 7. No, the balance between what is included on the face of the Bill and what is to go in the Code of Practice is not always appropriate. This is particularly true in relation to the Bill’s General Principles (see our paragraph 3(a)) 8. We have not yet had an opportunity to study the Mental Capacity Bill so cannot comment at this stage. 9. We do not believe the Bill is in full compliance with ECHR. In particular we believe the following three areas could well not be in compliance: (a) The provision that the Code of Practice can over-ride general principles (Section 1(4) of the Bill); (b) The provision that compulsory powers can be applied to an adult considered to be at substantial risk of causing serious harm to other persons even if treatment can lawfully be provided without compulsion (Section 9(7) of the Bill) (c) The fact that there is no appeal against the imposition of an order which may deprive a person of his liberty other than on a point of law (Section 249(1) of the Bill). 10. We do not think the Government has realistically assessed the human and ﬁnancial resource implications of enacting this measure. We have not seen an assessment of the anticipated increase in the number of Tribunal hearings to be held. A local psychiatrist told us that he is normally involved in some two to three MHRT cases per year but that he would be likely to have to prepare for 65 or more MHT hearings per year. If that increase in workload is mirrored across the country the system will be unable to cope. Richard Jones, author of the standard Mental Health Act Mannual, said at a Conference we organised on the original consultation proposals that if he were to become mentally ill and those proposals were in force, he would want to be treated compulsorily because he did not think there would be a service left for anyone else! We rest our case Emrys Roberts Chair of ForUs John Collins Chair of Rhymni Valley MIND PS: We enclose publicity leaﬂets for our two organisations. Since the ForUs one was produced we have initiated a user self-evaluation project and have secured Big Lottery Funding to establish a Mental Health Service Users Council for the borough — both with the backing of our voluntary and statutory providers. Rhymni Valley MIND and ForUs

Summary of our Comments on the Mental Health Bill 2004 NB. The paragraph numbers below relate to the paragraph numbers in our full submission. 1. Implementing the measures contained in the Bill would be very resource intensive and divert resources away from other aspects of mental health care in much greater need of improvement. 2. Only a small number of potentially dangerous people have a mental disorder. The problem should not be addressed in a Mental Health Bill; to do so further stigmatises mental illness. 3(a) The Code of Practice should not be allowed to override the Bill’s General Principles. (b) The deﬁnition of mental disorder is far too vague and should relate to internationally recognised psychiatric conditions. (c) It should not be possible to apply compulsory powers to someone who is willing to consent to treatment informally. (d) If the Government wishes to pursue the idea of Community Orders it should undertake a number of controlled trials to assess their impact. Joint Committee on the Draft Mental Bill: Evidence Ev 739

(e) Where clinicians decide not to consult patients! carers/parents they should record their reasons in the patient’s file. (f) The Bill should include a section encouraging the preparation of advance statements. (g) There should be strict control of the circumstances in which a one or two person Tribunal should be permitted. The right of patients to free legal advice and representation should be specified. (h) As Mental Health Tribunals have the right to deprive a person of his liberty, there should be a general right of appeal to a Mental Health Appeal Tribunal rather than merely on a point of law. (i) The role of Approved Social Workers should be retained: their greater independence gives patients added confidence in the system, (j) The Mental Health Act Commission’s special expertise and focus should be retained.

(4a) Tribunals should be required to approve after-care plans. (b) The patient should be required to sign a certificate indicating consent to ECT. (c) The medical expert considering applications to use ECT without consent should be required to consult any Advance Statement and the nominated person and/or advocate, (d) The patient himself should sign the certificate indicating his consent to Type A medical treatment. (e) The fact that a clinical supervisor has been appointed should not, of itself, be suYcient authority to provide Type B medical treatment. (f) If non-medical panel members are appointed to advise on a case, they should be required to provide a written report. (g) If Hospital Managers refuse an advocate access to the patient’s records they should record their reasons in the patient’s file. (h) It should be made clear that anyone acting in a professional capacity or for a recognised service provider would be guilty of an oVence if he abused or mistreated a patient even if the patient is not formally under his custody or care. Rhymni Valley MIND and ForUs

Comments on the Mental Health Bill 2004

1. We believe the Bill, if enacted, will seriously damage mental health services for the following reasons: (a) Many urgent improvements are required to mental health services. This Bill is not one of them. The greatest needs are more professional staV of all kinds to ensure easy and rapid access to appropriate services, improved crisis intervention and outreach services, more meaningful therapeutic and social activity to ensure community integration, a full range of appropriate accommodation and community support services and a much more active programme of back-to- work initiatives. (b) The current framework for compulsory treatment is working reasonably well (though some minor amendments may be needed to ensure it complies with the European Convention on Human Rights). (c) The system proposed requires a very substantial investment in a non-priority area. It will involve a great deal more of the time of professionals working in the ﬁeld and thus dilute rather than strengthen current services. Large numbers of patients who might have been treated successfully in the early days of their illness will develop much more acute problems.

2. Protection of the public

(a) Only a small minority of people with a mental disorder are potentially dangerous—and most of them are much more likely to harm themselves than other people. If there is a need to take new measures to protect the public against potentially dangerous persons, that should be of a general nature encompassing all potentially dangerous people rather than merely those who have a mental disorder. (b) By including such measures in a mental health bill, the Government is adding weight to the perception that all persons with a mental disorder are potentially dangerous. It will further stigmatise those with mental health problems whereas the Government claims its policy is to reduce stigma. In those terms, the Bill is entirely counter productive. Ev 740 Joint Committee on the Draft Mental Bill: Evidence

3. Major concerns If the Government insists on introducing the Bill, there are some serious flaws which need to be addressed: (a) General Principles: We welcome the fact that General Principles have been incorporated on the face of the Bill rather than in a Code of Practice. However, the Bill states (in Section 1(4)) that the Code of Practice may stipulate that those General Principles need not apply in some cases. This in eVect means giving the Code of Practice precedence over the Bill and is totally unacceptable — and probably renders this section contrary to ECHR. (b) Definition of Mental Disorder: We agree that the significant factor is not the originating cause of a condition but rather its impact. However, we do not think it helpful (in Section 2(5)) to define mental disorder as “an impairment of or a disturbance in the functioning of the mind or brain”. This seems to us to include (in our view quite inappropriately) conditions such as epilepsy more specifically than did the wording in the 2002 draft. The definition is far too loose and capable of being applied to almost any condition. We would urge the use of internationally recognised definitions of psychiatric conditions. (c) The Relevant Conditions: On the whole, the conditions are acceptable. What is not acceptable is that Section 9(7), disapplies the fourth condition in cases where persons over 16 are deemed to be at substantial risk of harming other persons. In eVect, this means that even if the patient concerned consents to the treatment, he will still be subjected to compulsory powers. We believe that is unnecessary and unacceptable and contrary to the ECHR and to the General Principle enunciated in Section 1(3)(c) of the Bill. (d) Compulsion in the Community: We welcome the clear statement that no treatment will be provided against the patient’s wishes in the community. However, we are concerned that the imposition of compulsory conditions on patients living in the community may well drive some “underground”:—ie they will leave home and become drifters. — in order to avoid the conditions imposed. If the Government wishes to pursue this option we would urge it to test it in practice in a number of controlled local trials before deciding to introduce it across the board. (e) Consultation with patients, carers and parents: We welcome the emphasis on the need for consultation with patients, carers and parents. However, on almost every occasion the professional concerned is authorised not to undertake such consultation where deemed “inappropriate” or “impracticable”. Whilst in some cases this might be reasonable, we would urge that it be made explicit that this should be the exception rather than the rule and that whenever consultation does not take place that fact and the reasons for it must be recorded in the patient’s file. (f) Advance Statements: There is no reference in the Bill to Advance Statements. We believe there should be a section devoted to Advance Statements in which the clinical supervisor should be required to encourage patients with capacity to complete Advance Statements and to discuss the contents with them and with their Nominated Person so that these can be used as a firm guide to the patient’s wishes in circumstances where he can no longer exercise his right to consent. (g) Mental Health Tribunals: (i) Experience elsewhere in the tribunal field indicates that where single member tribunals are allowed there is a tendency to use them widely. We would like much stricter control over the power to appoint anything other than a three person tribunal (Schedule 2, paragraph 4(1))—eg only where relatively minor procedural issues are to be determined. (ii) There should be specific reference in the Bill to a patient’s right to free legal aid in connection with tribunal hearings. h) Mental Health Appeal Tribunal: We note the proposal that a patient should have the right to appeal to the MHAT only on a point of law. Because a Mental Health Tribunal has the power to make orders which deprive a person of his liberty, we believe that in this regard their powers are more akin to those of a court than those of other tribunals. As a serious deprivation of a basic human right is involved, there should be provision for appeal on the facts and the determination of the original tribunal as well as on points of law. i) Approved Mental Health Professionals: We do not support the intention to establish a new category of AMHP to work alongside/supplant Approved Social Workers. The main advantage of ASWs is that they are employed by a diVerent authority. They thus have a much more independent status than other mental health professionals working within the same management structure as the clinicians. If patients are to have confidence in the system, this independence must be preserved. j) Mental Health Act Commission: We do not support the abolition of the MHAC. There is a danger that monitoring the working of the Mental Health Act would become a relatively insignificant part of CHAI’s functions. We also believe that some of MHAC’s functions in safeguarding the well-being of individual patients would not be performed to the same standard by CHAI. MHAC works well and we believe its separate expertise and focus should be retained. If MHAC is abolished, this will further undermine the confidence patients will have in the new system. Joint Committee on the Draft Mental Bill: Evidence Ev 741

4. Other details a) Sections 61 and 63: There is no requirement in either of these sections for the Tribunal to approve the after-care plan. In our view there should be. b) Section 179: We would urge that, when consenting to ECT, the patient himself as well as the clinician should sign the certificate to indicate that he understands the nature of the treatment, its purpose and possible side-eVects and has agreed to it. c) Section 181: There should be a provision here that the medical expert appointed to consider an application for provision of ECT without consent must have regard to any Advance Statement prepared by the patient and must also discuss the matter with the patient’s advocate and/or nominated person. d) Section 193: Again, the patient should be required to sign the certificate indicating that he has understood the nature, purpose and possible consequences of the Type A medical treatment proposed and has given his consent. e) Section 197: It is not clear in paragraph (3) whether all or any one of the conditions listed need apply. This should be clarified. Assuming that any one condition is suYcient we would urge that paragraph (a) be deleted. f) Section 219, paragraphs (4) and (8): If (one of) the experts appointed is a Medical Expert he must prepare a report. There is no requirement to appoint a Medical Expert, and, if one is not appointed, no requirement on any other expert to make a report. There should be. g) Section 247 paragraphs (4) and (5): It should be emphasised that where Hospital Managers refuse an advocate access to the patient’s records, the reasons for doing so should be included in the patient’s records. h) Section 280, paragraph (3): The wording should be amended to clearly include anyone visiting or interviewing a patient or client even if the patient/client is? October 2004

Memorandum from Steven Dawes (DMH 37) My name is Steven Dawes and I am writing as an individual who has had experience of mental health issues. I wish to voice my views about this proposed change in mental health legislation. These are parts of the proposed legislation that give me great cause for concern and I am voicing my objections.

Part 2. Compulsion should be the last resort The purpose of mental health legislation such as this Bill, is to force people to have treatment (usually hospital treatment) against their will because doctors believe it is necessary for their protection or for the protection of other people. Under current law, a patient may be kept in hospital compulsorily for at least six months and often for much longer. The proposed new law makes compulsion more likely to happen than under the current law. The new provisions would allow compulsory assessment and treatment to be carried out in the community. And, taken together, they increase the prospects for any individual person of coming under compulsory treatment powers. Personally, I believe that people who are in mental distress should only be put under compulsion when they are truly in a crisis, in danger, and when they have lost the ability to make choices for themselves. It is an oVence against human rights for a person to have treatment forced upon them when they do not want it and are able to make that choice. No one can force you to have chemotherapy if you have cancer (even if it might save your life). Why are people with mental health problems diVerent? I believe that the thinking behind the Draft Mental Health Bill is wrong. In the detail of the Bill, the Government has greatly enlarged the reach of compulsory treatment. This is not the answer to the needs generated by mental distress and ill health in our society. Also I believe it infringes on the human rights of an individual and their right to fair representation.

— they will drive vulnerable people away from seeking help when they need it — they are unnecessary. People working in clinical mental health care can, and do, take action under existing law to deal with the situation once they are aware of a genuine risk of this kind — they do not deal with a more signiﬁcant problem: the denial of help to some perpetrators of violence who are refused help prior to the crisis due to lack of resources — they are discriminatory. There is no preventive detention of many people who put others at risk, such as dangerous drivers or people who abuse their partners, even if the risks of oVending or repeat oVending is likely.

Part 5. Advocates and nominated persons I strongly believe that if a person is in crisis and put into hospital, several things need to happen right at the start. They need a friend or advocate who can help to explain what is happening, to negotiate with the medical team and possibly get agreement to the course of action that is best for the patient. Such a person should be someone trusted by the patient and who knows them well. It may be a carer, a friend, a member of the family or a professional advocate. They need that person to be able to have a say in what will happen, including a right to object to the patient being put under compulsion. Also I believe it infringes on the human rights of an individual by denying their right to fair representation by an informed person of their choosing. Under the proposed new law an informal carer (such as a family member giving substantial care) will be consulted during the examination stage. This is a period of up to ﬁve days in which doctors decide whether to go ahead with compulsory assessment. The patient can be kept in hospital during the examination stage. But the consultation on examination cannot be with a paid carer, or even a volunteer who is working with a voluntary organisation, no matter how well they know, understand and are trusted by the patient. The nominated person (chosen by the patient) is not appointed unless, and until, the formal assessment stage is reached. The current law allows the nearest relative to take steps to discharge a patient under compulsion. Under the Draft Mental Health Bill this provision will disappear and I think this a safeguard that should still be in place for the best interests of the patient.

Part 8. The tribunal system At present a person can be discharged from compulsion by the Responsible Medical OYcer (clinician in charge) or by their nearest relative or by the Mental Health Review Tribunal. Under the proposed system, the new Mental Health Tribunal will have a greater say in when and whether a person can be discharged. I am aware that, at present, there can be real delays with getting a hearing at tribunal. I think the Committee should be aware of this and of the distress this causes to patients.

Part 9. Electroconvulsive therapy (ECT) I disagree with the new law that does allow ECT to be given against a person’s consent in an emergency. I believe that ECT must never be given to a person who has the capacity to make his or her own decisions about this controversial treatment. The treatment is controversial and does not have a good rate of success regarding rate of relapse. The idea of electric current passed through a person’s brain is barbaric, if it were done to animals there would be an outcry. There are other therapies such as talk therapy that are available, but take time and money. Also there is so much controversy amongst psychiatrists with all these diVerent theories it is diYcult to get a broad consensus of agreement. If in doubt . . . DON’T. October 2004

Memorandum from Victoria Dawes (DMH 38) My name is Victoria Dawes and I am writing as an individual who has had experience of mental health issues. I wish to voice my views about this proposed change in mental health legislation. These are parts of the proposed legislation that give me great cause for concern and I am voicing my objections.

The new provisions would allow compulsory assessment and treatment to be carried out in the community. And, taken together, they increase the prospects for any individual person of coming under compulsory treatment powers. Personally, I believe that people who are in mental distress should only be put under compulsion when they are truly in a crisis, in danger, and when they have lost the ability to make choices for themselves. It is an oVence against human rights for a person to have treatment forced upon them when they do not want it and are able to make that choice. No one can force you to have chemotherapy if you have cancer (even if it might save your life). Why are people with mental health problems diVerent? I believe that the thinking behind the Draft Mental Health Bill is wrong. In the detail of the Bill, the Government has greatly enlarged the reach of compulsory treatment. This is not the answer to the needs generated by mental distress and ill health in our society. Also I believe it infringes on the human rights of an individual and their right to fair representation.

Part 3. Dangerousness and compulsion More than under current law, the Draft Mental Health Bill is based on the notion that people with mental health problems present a risk to others. It is designed to ensure that a person, particularly with a personality disorder, can be forcibly admitted to hospital, even though the treatment or therapy oVered might not have a beneﬁcial eVect on their health. I object to these powers because: — they reinforce the prejudice that all people with mental health problems are dangerous and, as a result, stigmatise all service users — they will drive vulnerable people away from seeking help when they need it — they are unnecessary. People working in clinical mental health care can, and do, take action under existing law to deal with the situation once they are aware of a genuine risk of this kind — they do not deal with a more signiﬁcant problem: the denial of help to some perpetrators of violence who are refused help prior to the crisis due to lack of resources — they are discriminatory. There is no preventive detention of many people who put others at risk, such as dangerous drivers or people who abuse their partners, even if the risks of oVending or repeat oVending is likely.

done to animals there would be an outcry. There are other therapies such as talk therapy that are available, but take time and money. Also there is so much controversy amongst psychiatrists with all these diVerent theories it is diYcult to get a broad consensus of agreement. If in doubt . . . DON’T. October 2004

Memorandum from C Stevenson (DMH 41)

I totally agree with the opposition to the Draft Mental Health Bill, The current mental health provision is disgraceful, this Bill can only increase the violation of basic human rights that already exists within the system. Recent numerous reports in the media on health medication, from both sides, along with my own experiences of the NITS and those of the people around me, indicate that mental health drugs are being administered to more and more people. I would like the following questions to be asked in Parliament: 1. Are so many people really “mentally ill” and if so why? 2. Do the drugs really help or do they simply create the illusion for those who take them that this world is a better place than it really is? 3. Is the current NHS penchant for the use of the “chemical cosh” to treat all health conditions both physical and mental really necessary or could the problems that people face be more eVectively solved by tackling other “social ills” such as the vast amounts of money wasted on bureaucracy.. 4. Did a man who hears voices and his side-kick take this country to war with Iraq to ﬁght for freedom and democracy or was really about money and oil? 5. Mental health drugs aVect the way people think. Are the “Thought Police” ﬁnally among us? It is my very considered and well-supported opinion that all mental health problems and the vast majority of physical ones stem from living in a crazy world run by warmongering megalomaniacs. A recent “Quote of the Day” in The Independent newspaper from Robert Mugabe, President of Zimbabwe says it all: “We are now being coerced to accept that there is but one political Gad, George W Bush, and Tony Blair is his prophet.” October 2004

Memorandum from A J Rimmer (DMH 43)

Yet again the Government response to tragedy is to force draconian, knee-jerk, mental health legislation which will help no-one. Despite a 12 year gap, the Mental Health Bill can only be described as “knee-jerk”. Before they do this they should make three simple considerations: Before killing Jonathon Zito in 1992, Christopher Clunis knew his mental health was deteriorating and he sought help from 12 or 13 diVerent health and social services. For a variety of reasons, (including racism) he was turned away. Existing legislation (the 1983 Act) was perfectly adequate—but services were not. Similar tragedies have happened since, mostly with mental health users harming and killing themselves— events which rarely reach the media. Secondly, even in 1992, we were campaigning for more preventative resources as it was well known that early preventative measures such as self-directed groups, were and are highly successful in providing 24 hour monitoring, support and friendship. Such groups are ill-funded and co-ordinated and have never been taken seriously by a Government steeped in traditional stereotypes of helplessness and dependancy. Preventative resources for Black service users are particularly scarce—hence the other well known fact—that Black people often reach crisis point before help is forthcoming—and it is often too late. Finally, in all this furore, we should not forget that the 1983 Act was welcomed as it tempered the power of Doctors to compulsarily detain people in hospital. It enabled Doctors to share this onerous power with Social Workers, who, having investigated the person’s social and family situation, were able to make an holistic assessment and decision about detention. Prior to this, Doctors were detaining high numbers of people (especially “unruly” women) often for reasons of social control or “to be on the safe side”. The medical establishment (apart from Harold Shipman) no longer see themselves as “God”. They are no more able to predict murder than Mystic Meg. We are all crying out, not for legislation, but for resources, resources, resources. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 745

Memorandum from N Morris (DMH 47) 1. I am writing as an individual who is concerned about some clauses of the Draft Mental Health Bill, having heard of the Bill through Mind, the mental health charity. I feel that some aspects of the proposed Bill impinge upon certain personal freedoms that all people have a right to and, shift the emphasis away from issues which deserve more thoughtful attention. I would like this memorandum to be treated as evidence by the Joint Committee on the Draft Mental Health Bill. Three subjects I am particularly concerned by are: compulsory treatment, — alterations to the laws regarding advance directives; and — the issue of aftercare, once a patient is discharged from hospital. 2. Compulsory treatment. People who are seen as suVering from “mental disorders” should not be forced to undergo compulsory treatment when they have the ability to make a choice regarding their well-being. A person should only be put under compulsion when they are unable to make the choice for themselves. Widening the criteria under which people can forced to have treatment against their will seems unnecessary. Under the current law mental health professional are already able to take action once they become aware that someone could become a risk to themselves and others. I am pleased that the use of Electroconvulsive therapy (ECT) is restricted by the proposed Bill, but do feel that ECT is a highly controversial treatment that should never be given against a person’s consent, even in an emergency. 3. Advance Directives. I believe that being able to give a person control over what happens to them is extremely important. Advance directives currently allow someone to decide what treatment to receive in case of a future crisis in their mental health, if they then become unable to make decisions, and I do not feel that this law should be changed. 4. Aftercare. I do not feel that longer periods of compulsion are any substitute for enabling a person to be discharged and to live with proper support and care outside of hospital. There should be more investment in proper aftercare services, which will help prevent the recurrent admission of patients to hospital when it is avoidable. Six weeks is not a realistic time period for a patient to fully recover, and resources should be put into providing health and social care services that can span a reasonable amount of time. October 2004

Memorandum from the Schizophrenia Association of Great Britain (DMH 48) The Schizophrenia Association of Great Britain was founded in 1970 and was the ﬁrst association for schizophrenia in the UK.

Scope of the Committee’s Inquiry 1. As the drafters of the Bill appear not to understand psychotic illnesses and the approach that should be made to them the answer to this question must be “No”. Those drafting the Bill should have made it simple for the layman trying to understand it. The legalistic approach to a medical problem is daunting. Lawyers do not understand mental illnesses and neither, very often, do psychiatrists have a consistent or common approach to such illnesses. A wholly medical therapeutic approach should have been adopted in this bill with minimal legal input. If such an important Draft Bill is put before the interested public it should at least be intelligible. It strikes me as being largely gobbledegook. One wonders if the families of the patient and the patients themselves understand what is happening to them. How will busy psychiatrists understand easily what implications the Bill will have for them? Will they be able to cope with the extra work involved? Why should the law be able to so enmesh a branch of medicine? 2. Diagnosis in psychiatry is often inexact. Patients are often given diVerent diagnoses over time. It seems that some patients with an initial diagnosis of schizophrenia are being discharged from hospital as having an “untreatable personality disorder” for whom treatment was thus not available. Everyone with a schizophrenic illness has their personality altered by their disease. This does not mean they have a personality disorder. It could mean that the medical treatment given for their schizophrenia has been only partially eVective. The one diagnosis, “mental disorder”, would satisfy the inexact diagnostic procedures extant, but it would seem to be absolutely essential for the drafters of the Bill to state very clearly those diagnoses which would be included within that very general term of ‘mental disorder’. For example—are those extraordinary terms Personality Disorder (PD) and Dangerous Severe Personality Disordered (DSPD) to be included? Mr Hilary Benn wrote to me, when in the Home OYce, saying that ‘personality disorder’ was a clinical condition but that ‘DSPD’ was not. I do not understand how adding two adjectives, dangerous and severe, to personality disorder changes it from a clinical to a non-clinical condition. In the 20th century about half the patients in the big psychiatric hospitals were diagnosed as having personality disorder, of which the most severe form was said to be psychopathic disorder (now called DSPD). They must have been considered ill as they were hospitalised. Ev 746 Joint Committee on the Draft Mental Bill: Evidence

25.8% of 1,524 members of the Schizophrenia Association of Great Britain had their diagnosis of schizophrenia changed to one of personality disorder or psychopathic disorder or both during the course of their schizophrenic illness, sometimes before and sometimes after that diagnosis had been made. It is important therefore, to understand that diagnosis is not reliable in psychiatry and that the diagnosis will often change with the psychiatrist. It is potentially very dangerous to be labelled DSPD. If this label is applied (I hesitate to use the word diagnosed) and that patient had committed a criminal oVence he might be whisked oV to Frankland or Whitemoor prisons. After his sentence had been completed he might either be discharged or, if thought to be not well enough, sent to one of two top security hospitals Broadmoor or Rampton, for an indeterminate time. If, on the other hand, he had not committed a criminal act he might be sent for an indeterminate time to Broadmoor or Rampton. What hope have such patients? A cover-all diagnosis of “Mental Disorder”, if not itself defined, could lead to much confusion and this may, on reflection, do more harm than good were such terms as PD and DSPD to be covertly applied to patients. 3. Again—“No”. The mentally ill have one need and that is for their mental illness to be adequately treated in a compassionate setting (ie hospital) until their most severe symptoms have been controlled by minimal medication. Secondly, they should be thoroughly physically examined in the search for diseases aVecting the body which might indirectly aVect the brain. If found, any such disease would be the probable cause of their psychotic symptoms. It is known that gut disease, heart disease, endocrine disease and infections have a raised incidence in schizophrenia and a raised mortality rate from a similar list of illnesses. Nevertheless the psychiatric establishment are largely thinking of psychotic diseases as being confined in their symptomology and pathology to the brain It is highly likely that physical disease of the body is undiscovered because it is unlooked for. Diseases of the body are probably the direct cause of the psychiatric symptoms in many cases. To seek to inject powerful and frequently toxic, always palliative, drugs into the patient in the community, even in a clinical setting, is wholly wrong. Those who are injected with those drugs should be observed closely (always in hospital) and the dose adjusted to achieve the maximum stabilisation with the minimum dosage. It is not known how these injected neuroleptics exert beneficial eVects. They have many serious, sometimes lethal, side-eVects. For example, they frequently cause huge weight increases, especially the now more popular and hugely more expensive drugs, olanzapine and clozapine. These weight increases, sometimes causing a doubling of the patient’s weight, can lead to diabetes and consequent heart disease. As heart disease, as noted above, already has a raised incidence in schizophrenia, these drugs are likely to increase this risk greatly. Hospital is the only place for patients who are greatly disturbed. As to the balance between their human rights and the safety of others it must surely be of much more importance to give the patient back their mental health than any concerns about their “rights”. I don’t think rights should come into the picture. It is the need of the patient to be treated in hospital until they are well without bringing rights into it. A patient who is very disturbed will not understand the severity of his illness. I know that lawyers in the mental health field see it as their brief to “liberate” patients from hospital. This is totally wrong. Lawyers should be kept as far away as possible from the problems of the mentally ill. It is quite ridiculous to give patients the opportunity to ask for a Tribunal for their “release” soon after being hospitalised, when their chief need is for medical care and not the liberty to be free and very ill in the “Community” where they may be at risk also of harming others. When made well in a hospital they will be able to live happily in the community. The patients will then be thankful that their worst psychiatric symptoms had gone. They can again live stable lives. Patients do not like being angry and violent. They need urgent help and if hospital is necessary patients will understand, when they are made well, how necessary it had been for them. 4. It is doubtful if the proposals are workable. They are neither eYcient nor clear. Their costs will probably be phenomenal. If this money were used to improve the physical health of the mentally ill it would be a better use of money. 6. It has been my experience that parents with disturbed children find it very diYcult to get help from doctors. It should be much more widely understood that, in the initial stages of a psychiatric illness, whether it is a child or an adult, they are not symptomatic for much of the time and parents may not be believed when they seek help because the symptoms are not displayed when confronted with those outside the four walls of home. As one Senior Consultant said ‘Intelligent patients are very good at hiding their symptoms’. Families must always be carefully listened to when they report disturbed children. Much can be done to help. There is increasing evidence of a genetic relationship between celiac disease and schizophrenia. The early institution of a strict grain-free, milk-free diet plus a general vitamin/mineral supplement plus fish oil may actually cure such a child. Why are doctors so unwilling to consider such a simple non-toxic therapeutic approach to the treatment, both of children and adults, who are mentally disturbed? Joint Committee on the Draft Mental Bill: Evidence Ev 747

Psychosurgery should never be performed. It destroys brain tissue which, once removed, can never be replaced. As one psychiatrist said “Broadmoor is full of failed cases of psychosurgery”. Such operations are always dangerous and likely to fail. The brain symptoms should, in most psychotic illnesses, be reversed when adequate attention is paid to the physical health of the body. ECT may occasionally be justiﬁed in adult cases of very severe depression. In such patients ECT may produce miraculous results. Why go to all the trouble of introducing this Bill, ostensibly protecting the human rights of the patients, whilst it is obvious that the human rights of patients behind bars in prison are denied theirs. There is no logic in it. Currently there are 75,000 in our prisons. Nine out of 10 of these are mentally ill or suVering from drug or alcohol abuse. Gwynneth Hemmings

Memorandum from Carolyn Godfrey (DMH 49) I have ﬁve major concerns about the proposals in the Draft Mental Health Bill. These are as follows:

The Relevant Conditions Section 9(2) The first condition is that the patient is suVering from mental disorder and under 9(3) it is of such a nature or degree as to warrant the provision of medical treatment to him. “Mental disorder” means an impairment of or disturbance in the functioning of the mind or brain resulting in any disability or disorder of the mind or brain and “mentally disordered” is to be read accordingly. My concern is that this definition is too broad and the appears to create a paradox between a disturbance (which may be a temporary state which includes all people under the influence of drink/drugs) and a disability or disorder which is defined by the disability discrimination act 1985 as being a condition that has lasted or is likely to last at least 12 months. Section9(8)...adetermination as to whether a patient is at substantial risk of causing serious harm to other persons is to be treated as part of the determination as to whether all of the relevant conditions appear to be or are met in this case. My concern is that the word “part” is open to wide interpretation—it can mean some but not all, or an essential element or constituent. If it is the intention of this legislation to be interpreted as the latter, as I expect in practice it will be, then not only should it should actually say this, but the word immediate should be added so that substantial risk becomes substantial and immediate risk.

Patients Concerned in Criminal Proceedings Section 87 (1), (2), (3) and (4) appear to be fundamentally sound. However, they may well have unintended political consequences. I suspect there are thousands of prisoners currently serving sentences of imprisonment who will be eligible to appeal against their conviction and or their sentence on the grounds set out in the Mental Health Act 2004. It will not be diYcult to satisfy the conditions for medical treatment set out in Section 96 (1) and (2), however, diYculties may well arise in relation to (3) which concerns the provision and availability of suitable treatment. I am sure that diYculties in relation to the capacity of the health service to cope with the demands made upon it by this new legislation will not prevent applications for appeal being lodged and then refused due to lack of appropriate medical treatment. Whilst I strongly believe that people with mental health problems should receive treatment rather than punishment and that the rising number of prison suicides adds increasing urgency to this issue, I feel that it would be wise to undertake an evaluation and assessment of the likely impact of this part of the legislation and consider incorporating transitional regulations to address this.

Medical Treatment:Emergency ECT Conditions My main concern here is that in my view ECT should never be given to a patient who has the capacity to make his own decision about this controversial treatment. Whilst section 182 is written as a life saving option the proviso on it (not being irreversible) is not included in section 182 (2) whereas it is in 182 (3) and 182 (4). This would surely mean that a patient who suVers unfavourable irreversible physical or psychological consequences as a result of a ﬁrst emergency treatment has no redress. I therefore suggest that the proviso is added to section 182 (2). Finally, I feel that in conjunction with this act the Government must do more to ensure that people get the care and treatment they need when they need it. The focus must also simultaneously be on mental health crisis prevention with assertive outreach support, telephone help-line advice/support and community walk- in emotional health and wellbeing centres. October 2004 Ev 748 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Leslie Smith (DMH 52) I am at present detained under the provisions of Sections 37 and 41 of the Mental Health Act 1983, I was sentenced to life imprisonment at the Central Criminal Court of the Old Bailey in April 1994 for the attempted murder of a doctor who had provided medical services to my parents. I was transferred to the Lifers Unit at Wormwood Scrubs and on 12 September 1994 transferred to Broadmoor under the provisions of Sections 47 and 49 of the Mental Health Act 1983. The Section transferring me was signed by two doctors employed to work at Wormwood Scrubs, neither of whom had any contact with me or ever interviewed me. I was transferred at the request of a Psychiatric Registrar from Broadmoor who also had no contact with me and who had not and indeed never has ever talked to me. In 1995 the then Responsible Medical OYcer (RMO) diagnosed me as suVering from a Paranoid Psychosis and applied to the Mental Health Act Commission for a Second Opinion Appointed Doctor (SOAD), for the purposes of instigating forcible treatment with the twentieth century torture drug Depixol. This individual also had no contact with myself and has never spoken to me. A Section 58 form 39 Certificate was duly signed by the SOAD despite the fact that the SOAD also had no contact with me and has never spoken to me. I was then interviewed by Professor Malcolm Lader who until his retirement this year was regarded as the leading expert in the world in the field of Psycho- Pharmacology, Professor Lader (who did examine me and did talk to me) diagnosed me as not psychiatrically disordered. At this time Dr Lader was the fifth Psychiatrist (all of whom talked to me) to diagnose me as not psychiatrically disordered. On this occasion the Certificate was not acted on, I was not forcibly medicated and the certificate was withdrawn. In 1998, after I had complained about the treatment of vulnerable and dependent patients on the ward and precipitated two independent enquiries into conditions on the ward. Allegations were made by staV that I had expressed the verbal threat that I hoped a named member of staV encountered black ice on the way to work and fell oV his motor bike. I was transferred to a high dependency ward and the then RMO applied to the Mental Health Act Commission for another SOAD opinion. Once again this opinion was not acted upon and I was transferred to the Intensive Treatment Ward. After a series of painful and diYcult surgical operations at the local general hospital, I was readmitted to Broadmoor and placed in the infirmary, upon my arrival I received a letter from the Director of Medical Services to inform me that I would not be returning to the Intensive Treatment Unit as I was unsuitable for this ward and taking up a bed space required for other patients needing intensive care. I remained on a six bedded ward with four psycho-geriatric patients until my transfer in May 1999 to the admissions ward by the then RMO, who also had not talked to me, to be forcibly medicated with the drug Depixol. He called in a SOAD once again who spoke to me in the strip cell where I had been man-handled by eight staV who stripped me and forced me into secure clothing for the SOAD to interview. One of the staV said “when we’ve got the certificate, rush him, “turn him over and go for his ass”. That is exactly what they did. At no time was the SOAD ever made aware of the (by then) seven opinions, all by psychiatrists who had examined me, that I was not psychiatrically disorder. The SOAD simply supported what the RMO wanted to do. During this period of some 10 months or so before I was transferred to yet another ward, I suVered severe extra-pyramidial side-eVects, cog-wheel rigidity, akathisia, bradykinesia, my lips became cracked and bleeding, I developed a facial skin disease and an infected toe, my eyes became infected and I could not read or write properly. I could not wash or shower, I could not clean my teeth, I was incontinent of faeces and unable to clean myself, I could not walk properly and I could not stand still or sleep for any period of time. 999999 enjoyed the experience of watching my suVering and boasted amongst 99 999 and contemporaries that 9999 succeeded where others had failed. During this period of time 99 took a forcible blood test for (allegedly) physical medical reasons and conducted an experiment on myself using force to do it once again. The staV left me to suVer without help saying that I was acting, until the intervention of the Mental Health Act Commission and they were ordered to provide me with assistance. At no time were my legal representatives able to access any means through the courts to interrogate or challenge my treatment. The opinions that I was not psychiatrically disordered were ignored and 99999 999 . Individual staV who had known me prior to this period of treatment stated that they thought I had sustained a stroke and that I had aged by twenty years over night. All these facts are verifiable within the medical record they are all recorded fact. At no time throughout my detention (I was detained at Broadmoor for nine and a half years) have I ever been involved in an incident, I am not violent by nature. I believe (as do a significant number of other people, many of them Mental Health Professionals) that my treatment by other doctors is directly related to the index oVence of shooting my parents general practitioner. For nine and a half years I was brutalised, ill-treated and systematically tortured by other doctors in retribution. I have not read the Draft Mental Health Bill in any depth, however, it is my tentative understanding that the Bill incorporates proposals for the establishment of a tribunal system whereby issues of dispute over forcible medication may be adjudicated upon before a court. If this is true then it is a welcome development indeed. I would also hope that rule 22 subsection (2) of the Mental Health Review Tribunal Rules 1983, could be expanded upon so that the patient may address the Tribunal without the RMO or representatives of the hospital facility where he or she is detained being present. Joint Committee on the Draft Mental Bill: Evidence Ev 749

Many patients have personal and confidential information that they would like to give to the Tribunal, but are inhibited from doing so by the likelihood of reprisals after the hearing is concluded. When the Mental Health Act 1983 was made law, it is clear that the majority of Parliament believed they were bringing into force an Act that would protect the patient, in fact all that they eVectively did was to bring into force an Act that protects the interests of the doctor and makes the figure of the RMO all powerful. The RMO can literally do what he or she likes and there exists no incumbency upon the RMO to consider any opinion other than his or her own. The judgment of Simon Brown in R (Wilkinson) v Broadmoor Special Hospital Authority and others 200] EWCA Civ 1545 and the judges observations Obiter Dictum have lead to false hope for thousands of brutally ill treated people detained under the provisions of the Mental Health Act 1983. In Herczegfalvy v Austria 1992 15 ECHR the European Court of Human Rights said: The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of article 3, the requirements of which permit no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist. A report by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment in August 2000, 8–General Report reads: Patients should as a matter of principle, be placed in a position to give free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances. Under the provisions of the Mental Health Act 1983 these high blown principles are largely ignored and punitive ill-treatment and torture are explained by calling them medicine. As the law stands at this present moment in time there exists in law no practicable means of appeal against the decision of the RMO. The Royal College of Psychiatry fields an active and influential lobby in parliament and it is this voice, as the voice of the self-styled and self-proclaimed expert, that is listened to not the voice of the suVering and brutalised patient. Aleksander Bukovsky described the abuse of psychiatry as “punitive medicine”, punishment through the ancient discipline of torture explained away in a liberal democracy by calling it medicine October 2004

Memorandum from Ronald Archer (DMH 53) I write to you with some concern regarding the proposed new Mental Health Bill in particular the proposed regulation concerning enforced treatment, it is stated that there will be safeguards but taking into account my experiences this does not leave me with a lot of conﬁdence. I was self-referred to the local Mental Health in 1989 because of relationship and social interaction problems. I was diagnosed as having a Personality Disorder and there was no treatment for it, I disengaged from the service. Christmas 1994 my long-term partner left me with two children to look after. I re-engaged with the Mental Health Team as I was distraught, although they could not help me, I was referred to a local day care centre, after a time I was barred from this day centre with the unfounded accusation that I was taking advantage of vulnerable women. I felt unable to cope and placed my children into care. After two major illnesses of Meningitis (one case of brain infection) I started to visit my local Mind centre were I was subjected to sexual innuendo from the Manager. I approached her on various occasions to bring to her notice that her conduct was causing me some distress without success, on the last occasion I became agitated and was barred with the untrue accusation that I had threatened her. I started a campaign of harassment by attacking the building with paint, was sectioned and diagnosed with a psychosis, at my appeal it was stated that I had interfered with a patient’s treatment and that I had taken advantage of vulnerable women whilst attending the day care centre, I believe these accusations were put forward to alienate me from the appeal board and show me in a bad light. I had complained about the conditions at the hospital and the lack of therapy on the ward in particular reference to one female who appeared to be suVering, as to the accusation concerning vulnerable women, at the time I was employed as a taxi driver and it was my job to give not only them but male clients lifts as well. I have only recently become aware that these accusations were put forward having just received copies of my case notes. Ev 750 Joint Committee on the Draft Mental Bill: Evidence

I was placed on medication and eventually released on supervision; the medication had an adverse aVect of sexual dysfunction, acute apathy and paranoia. My personal hygiene began to suVer to the extent that social services arranged for a home visit by the psychiatrist who placed me on further medication that aVected my ability to urinate. I eventually stopped medication as I was having such diYculties and over two years I gradually improved. During this time I was receiving visits from social services who found it diYcult to contact me because of my acute apathy and inability to get out of bed and they said that I should come oV supervision, I agreed to a meeting with the psychiatrist as I did not think that he would remove me from the register taking into consideration my problems and I thought he may be able to help me. Unfortunately this was not the case as he was dismissive, not interested in my problems, removed me from the register and withdrew all services. I registered a complaint with the services and you can see from the enclosed letters the diYculty I have had accessing the complaints procedure. During the time I was on supervision I had access to the day care centre but since all services have been removed I have become totally isolated, because of my personality disorder, lack of social skills and confidence I have no friends and my family have become alienated because of these experiences so I never go out except to the shops and I rarely speak to anyone. However taking into consideration my experiences after getting involved with the Mental Health Services I find it much preferable even taking into consideration my continuing problems that the medication has left me with and the thought of being forced to go back on it fills me with dread. I know the bill refers to therapy but my personal experience is that there is none and I suggest that because of shortage of funds and increased demand for bed space the services will resort to medication and discharge regardless of personal circumstances. October 2004

Memorandum from Miss Emma Clarke (DMH 54) My name is Emma Clarke and I am submitting evidence as someone who has mental health problems, as a member of Mind Link, as a former volunteer for Stockport Mind and also as someone who has written a dissertation on the subject as part of an honours degree in Law and Business. I wish this memorandum to be treated as evidence. I have three major concerns about the proposals in the Draft Mental Health Bill. These are as follows: 1. The Bill focuses too heavily on public protection and not enough on improving rights to mental health services. The mental health professionals I interviewed as part of my research all expressed concern about the focus on public protection and the widening of the definition of “mental disorder” introduced in order to bring more people within the scope of the Act. Too much emphasis is put on being able to compulsorily treat people rather than give them rights to mental health care. 2. Because of 1 the Bill will reinforce the public’s perception that people with mental health problems are dangerous and violent This increased stigma will deter many people from seeking help for mental health problems and this delay will make their problems worse in the long run. As part of my research I learned of many people who had decided not to seek help if the Bill was made law and many people who became distressed at learning of the Bill’s proposals to compulsorily treat people. In addition, due to the extremely general definition of mental disorder I, who have a history of depression, would fall within the scope of the Bill. I object to being perceived as a potential danger and someone who may need to be compulsorily treated, as do many people I know who have various mental health problems and also fall within the scope of the Bill. I am in agreement with Mind when they ask why should only people with mental health problems be subject to a preventative detention regime when other groups (such as alcohol and drug abusers) that pose higher risks to society are not covered. 3. There are not enough resources and staV to enforce this Bill. The mental health professionals that 1 interviewed were concerned that there are not enough psychiatrists and Approved Social Workers to provide an adequate service now, let alone when an increased number of tribunals is introduced. Recruiting new staV will be incredibly diYcult due to the fact that most doctors and nurses object to being “social control police”. In my view, the Draft Mental Health Bill would be enormously improved if: (a) There needs to be a clearer and narrower definition of “mental disorder”. The safeguards of the 1983 Act should remain ie Section 1(3) that a diagnosis of mental disorder can never be found solely on evidence of promiscuity, immoral conduct, sexual deviancy, drug abuse or irrational behaviour. The “treatability” clause should also be retained to prevent more people than necessary being subjected to compulsory treatment. Joint Committee on the Draft Mental Bill: Evidence Ev 751

(b) Use the Bill to promote rights to mental health care rather than social control. Do not use the Bill as a criminal justice legislation wrapped up in mental health care. (c) More money needs to be put into the prevention of mental health problems, as well as making sure people have access to services when they ﬁrst seek them. GPs need to be better trained in really listening to patients rather than automatically prescribing medication. There should be more money available for mental health practitioners to train in psychotherapy and cognitive behavioural therapy to prevent the wide spread use of drugs with disabling side eVects. More resources should go to improving psychiatric services both in hospital and the community, rather than being used on compulsory treatment. I believe that these measures will vastly improve people’s mental health and thus will remove the need for a Bill that focuses on social control. Miss Emma Clarke 13 October 2004

Memorandum from Lynda Oakley (DMH 55)

1. Introduction 1.1 My name is Lynda Oakley. I have had mental health problems for nearly 30 years. I have experienced a whole range of mental health services including in-patient and community care. I have also worked as a volunteer for Coventry Mind and the In-patient Advocacy Service at the Mental Health Unit. I am currently a member of the Coventry Patient and Public Involvement Forum although the views expressed here are my own. I am very concerned that the proposed introduction of compulsion in the community will cause great distress, harm and increased risk to patients, their families and friends and the general public. I think this proposal needs to be dropped from the Bill completely. I wish this memorandum to be treated as evidence by the Committee.

2. Compulsory Treatment in the Community 2.1 If this is introduced it will create great distress, harm and fear for people with mental health problems, their families and friends and the general community. 2.2 People I know have already expressed the fear that being subjected to compulsory treatment in the community will make them feel that the sanctity of their homes is being violated. They will be deprived of the safety, security and autonomy which we all have a right to in our own homes as long as we are not breaking the law. 2.3 EVorts to forcibly remove people from their homes for treatment will be degrading, and frightening and distressing both for the patient, any of their family and friends (which may include children) and for any of the local community who witness it. I have been with someone when they were sectioned into hospital and I found the whole procedure harrowing to witness. Such scenes will stigmatize the patient in their community and increase public perceptions of mentally ill people as dangerous, leading to greater alienation and exclusion of mentally ill people from their communities. There will be an increased risk of the patient or those around them being physically injured if people are forcibly removed from their homes. Patients are likely to be forcibly removed from their homes a lot more frequently for compulsory community treatment than would be the case for compulsory hospitalization. For example Depot injections generally have to be given every two weeks. A patient could end up being forcibly removed from their home every fortnight. 2.4 It is cruel and irresponsible to leave someone in the community who is at serious risk of suicide, neglect or harming others. If they are living alone it could have tragic consequences. I know from my own experiences and those of friends that a person’s mental state can change radically from one minute to the next when they are acutely ill. It is impossible for the patient or anyone else to predict when a suicidal urge or aggressive impulse will overwhelm them. A patient neglecting themselves may not eat for days. It is cruel to leave them in that situation. In hospital at least they would be fed. If a patient is so ill it warrants sectioning then they need and deserve twenty-four hour care and observation. Ev 752 Joint Committee on the Draft Mental Bill: Evidence

Even if someone at risk of suicide, neglect or harming others is living with family or friends it is unfair and irresponsible to put those family or friends in the position where they have to act as untrained, unpaid psychiatric staV trying to prevent the patient from attempting suicide, neglecting themselves or harming others while trying to make them comply with their treatment order. This will put an intolerable burden on carers who could be injured, become ill themselves because of the stress or experience terrible guilt if they ‘fail’ to prevent the patient from harming themselves or others. Compulsion in the community could therefore irreparably damage the patients relationships with those closest to them.

2.5 The use of compulsory powers in the community will lead to anger and resentment from patients subject to it. this will mean greater not lesser risk of aggression towards mental health workers and the general public.

It will also lead to patients avoiding any contact with mental health services. Their health and well-being will suVer and the risk to themselves and others will increase.

2.6 If medication worked eVectively without side-eVects, if day-care was stimulating and enjoyable and if mental health workers were pleasant and supportive you wouldn’t need compulsion. People refuse treatment either because they are too ill to recognise they need it or because it is so unpleasant. Either way patients who refuse treatment tend to feel very strongly about it and be very determined to reject it. The threat of hospitalization is not going to persuade them to comply. Most of these patients have been hospitalized many times. Being sectioned into hospital is not eVective at getting people to comply with treatment after discharge now, even though they know they can be sectioned again. There is no reason why compulsory treatment should be any more eVective.

2.7 Finally, there are not enough psychiatric beds now. The last time I was in hospital (three years ago) two of the patients on my acute ward had to walk across the road every night to sleep in the annexe for long- term patients because there weren’t enough beds for them to sleep on the ward. Where are all these non- compliant patients from the community going to be accommodated? October 2004

Memorandum from Mr and Mrs C Waldren (DMH 56)

1. The acceptance of compulsory treatment is abhorrent to the mental health suVer. The freedom to choose medication, which, after all it is understood, aVects people diVerently is paramount.

2. The current Mental Health Act provides for people who are unruly for one reason or another whereby “sectioned”. If this system is being implemented as it should then the ground is already covered.

3. To my way of thinking the largest majority of mental health suVerers in my vast experience as a mental health suVerers for 27 years has proved they are caring, sensitive and very lovely people who deserve the right to say for themselves what medication suits them and what doesn’t. They are in more ways than you can imagine more normal than a great many so called people out in society who have had it easy in comparison to the kind of suVering that goes with schizophrenia and depression etc.

4. To give doctors even more powers than they already have would smack of the days when people would be “certiﬁed”, and is very much a step backward not forward. The fact that the Government has even suggested this shows just how out of touch they really are in dealing with people who suVer from a mental illness of whatever kind.

This letter has been compiled by Sally, my wife, and myself Chaz Waldren, who have been and still are long term mental health suVerers. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 753

Memorandum from Letchworth Mind (DMH 58)

1. Introduction 1.1. I have been Secretary of Letchworth Mind, a local mind association, for about eight years. I have also run a drop-in for people with mental health problems at my local church since 1991, and visited Fairﬁeld Psychiatric Hospital on a weekly basis from 1974 until it closed in 1999. 1.2. I am writing about: Compulsory treatment; Compulsion in the community; A right to aftercare; Electroconvulsive therapy; and A right to better services.

2. Compulsory Treatment The Draft Mental Health Bill appears to be based on the idea that people with mental health problems present a risk to others. It extends doctors’ existing power to decide whether to assess or give treatment for mental disorder without the consent of the person concerned, in the following ways: — The definition of mental disorder is wider; — The conditions that justify compulsory treatment are wide; and — Each stage of the process towards compulsory treatment can take place inside a hospital or for the first time, in the community. The eVect of these extended powers is that more people could fall within the scope of provisions for compulsory treatment. The danger is that these new powers: — will drive vulnerable people away from seeking help when they need it; — will reinforce the prejudice that all people with mental health problems are dangerous and as a result, stigmatise all service users; — are discriminatory and deny human rights. There is no preventive detention of many people who put others at risk, such as people who abuse their partners; — they are unnecessary. People working in clinical mental health care can, and do take action under existing law to deal with the situation once they are aware of a genuine risk of this kind; — they do not deal with a more significant problem: the denial of help to some perpetrators of violence who are refused help prior to the crisis due to lack of resources.

3. Compulsion in the Community

This aspect of the draft Bill is the one that causes most anxiety to the people with mental health problems attending Letchworth Mind Club and other local drop-ins.

Under this Bill the clinical supervisor can decide to put a patient under compulsion in the community rather than in hospital. Conditions can be imposed on patients in the community, such as requiring a patient to take a particular drug, or to live at a certain place. If the patients refuse they are likely to be taken to hospital and given a depot injection or other treatment. It is likely that it would be diYcult for a patient to get a discharge from a community order, or to get a change in the treatment regime. I agree with Mind that: — if people are in crisis where compulsion is the only option, they would be better in hospital where they will be safe, and where there is the staV to help and to monitor the eVects of medication and to treat adverse eVects quickly; — compulsion in the home is likely to be disruptive and interfere with people’s domestic life, denying them the human right to privacy and family life; — community nurses and psychiatrists do not want or need to police their clients in this way. It will damage trust in their relationships with their clients. Ev 754 Joint Committee on the Draft Mental Bill: Evidence

4. A Right to Aftercare

Over many years of running drop-in centres for people living in the community after discharge from hospital, I know that someone trying to rebuild their life may need several months or even a year or two in special, supported living arrangements, before moving on to independent accommodation. Under the Bill, the right to free aftercare is restricted to just six weeks. Six weeks is a negligible period of time for the type of adjustment that many long-term inpatients must make on discharge. It is an arbitrary period and takes important judgements away from service users and those planning their social care. Many people in hospital could be given leave or be discharged if suitable social care arrangements were in place, but should social care service provision not be ready, the Draft Bill allows for a further compulsory hospital treatment order to be made. This will help disguise the lack of services that support recovery and prevent further admissions, while unfairly lengthening the compulsory stay in hospital.

5. Electroconvulsive Therapy (ECT) The Draft Bill allows that a person with capacity to consent should not be given ECT unless they do consent. However, in an emergency ECT will be given against a person’s consent. Members of Letchworth Mind Club believe that ECT must never be given compulsorily to a person who has the capacity to make his or her own decision about this treatment.

6. A Right to Better Services People often recognise they are reaching crisis point and seek help immediately to avert it, but they do not always receive that help. This must be due to the overloading of the mental health service, including community health teams. If the Government is serious about public safety and patients’ health, it should do more to ensure that people get care and treatment when it is needed.

Case Study Our local mind association had a recent enquiry from the mother of an adult son who had been given incorrect medication, causing his mental state to deteriorate. The local mental health Team kept promising help, but weeks had past, and it had not been delivered. The son was beginning to show signs of violence, so in desperation the mother went to the local police station and they suggested she should contact Letchworth Mind. We referred her to a local professional advocate who could oVer her advice and support. October 2004

Memorandum from the Welsh Assembly Government’s Learning Disability Implementation Advisory Group (DMH 59) The Welsh Assembly Government established the Learning Disability Implementation Advisory Group to advise it on implementation of the All Wales Strategy for People with Learning Disabilities. It has wide membership representing stakeholder interest groups, including people with learning disabilities, family carers, statutory agency professionals, voluntary bodies. It has two Co-chairs, Professor David Felce from CardiV University and Mr Glayne Walker from Caerphilly People First. The LDIAG considered many aspects of the Bill together with related legislation including the current Mental Health Act (1983) and the Mental Capacity Bill in a recent meeting. The following summarises the main concerns. 1. The need for reform of mental health legislation is understood and supported. It is important that such reform is ﬁt for our current times and represents an advance in providing opportunities for better treatment and protection for people with mental health problems. A mental health act does not stand alone in this, greater investment in the provision of a wide range of skills and services together with work on public awareness, reduction of stigma and tackling some of the contributory factors to mental health such as poverty, discrimination and employment are all essential. 2. For people with learning disabilities, as with anyone else, new legislation must represent a step forward and must be fair, ethical, practical and eVective. In our view this Draft Bill is none of these. We believe that it is unfair, discriminatory, potentially stigmatising and unworkable. 3. Under present legislation, people with learning disabilities may come under the remit of the Act if they are suVering from mental disorder ie mental illness, mental impairment, severe mental impairment or psychopathic disorder. The category of mental impairment requires not simply that a person has a learning disability (impairment of intelligence and/or social functioning) but that it is also associated with Joint Committee on the Draft Mental Bill: Evidence Ev 755

“abnormally aggressive or seriously irresponsible conduct”. While this terminology is not perfect, the development of a body of case law over time has enabled a focussed, needs-based use of the Act for people with learning disabilities. 4. The Draft Mental Health Bill has a single definition of mental disorder, “an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain”. This encompasses a wide range of causes of dysfunction of the brain, including intellectual impairment. If there was any doubt that this would be the case then one only has to consult the Explanatory Notes (page 11) where it states that “examples of a mental disorder include schizophrenia, depression or a learning disability”. More starkly still, in the section on “What the words mean” in the Easy-Read version of the Bill (page 25) Mental Disorder means “having a mental health problem or illness, this includes having a learning disability”. Having a learning disability is not equivalent to having schizophrenia or depression (though some people with learning disabilities may suVer from these mental illnesses). Learning disability (intellectual impairment ) is not in itself a mental health problem, nor is it necessarily an illness. 5. If there is a broad definition of mental disorder then we would have hoped that the criteria for compulsion under this Bill would have been narrow in order to prevent the unnecessary and inappropriate detention of a large number of people. This is not the case and we are particularly concerned that there is no longer a clear requirement of therapeutic benefit arising from treatment in order to detain someone under the Act. This has the potential to lead to a greater number of people being detained for longer. 6. Part 4 of Clause 9 (describing the conditions to be satisfied before someone can be brought under the formal powers in Part 2 of the Bill) requires that “medical treatment cannot lawfully be provided to the patient without the patient being subject to Part 2 of the Bill”. We are aware of the progress of the Mental Capacity Bill, under which health and social care could be provided to people who lack the capacity to decide for themselves. Many people with learning disability requiring medical treatment (and treatment as defined in the Draft Bill) would lack such decision-making capacity and, provided there were adequate safeguards could be treated appropriately under the provisions of the Mental Capacity Bill once enacted. 7. This leads us to conclude therefore that the Draft Mental Health Bill is only concerned with the compulsory treatment of people who have the capacity to decide for themselves on whether or not to accept treatment. In our view, no distinction should be drawn between consent to treatment for a mental illness and to treatment for a medical illness where the individual is capable of making that decision. Compulsion to treatment against the person’s wishes is unethical and unfit for modern legislation. 8. People with learning disabilities, their families and carers, knowing that an individual with a learning disability can be subject to a Mental Health Act without a clear requirement that they have a treatable mental health problem are likely to regard it as something to be feared rather than something to protect. There are already diYculties in interpreting the aetiology of challenging behaviour and its relationship to psychiatric diagnosis among people with learning disabilities. Such diYculties and those relating to appropriate medical and non-medical treatment could be exacerbated without a narrower definition of mental disorder within the proposed Bill. 9. In this context, we are concerned about the proposal for who can apply to the appropriate authority for an assessment of whether the relevant conditions are met for application of the provisions of the Bill. Currently, this is restricted to an approved social worker or the patient’s nearest relative. Opening the possibility that any individual can make such an application is worrying as it could provide opportunity for members of the community to object to the presence of neighbours with learning disability on prejudicial grounds. 10. We are concerned about the abolition of the Approved Social Worker in favour of Approved Mental Health Professionals, a role that does not necessarily have to be filled by a social worker. We believe that the ASW role in the past provided an important link between health and social services, ensuring that the latter maintained an ongoing commitment to the social care of people subject to the Mental Health Act. If the AMHP were not a social worker, we fear that it would be easy for the local authority to reduce their commitment to these individuals. 11. Many people with learning disability have long established and eVective working relationships with an advocate. Were they to be detained under the new Act as it is proposed, our understanding is that they would have to be represented by a diVerent, mental health advocate. This is an unhelpful disruption to good advocacy relationships. It may take advocates a long time to get to understand and know an individual with learning disability, their past, their family, their own wishes and those of others. We find it diYcult to imagine how a mental health advocate would be able to fulfil this task adequately and eVectively without a clear requirement for working alongside already established advocates. 12. In conclusion, we would strongly urge you to consider our view, that learning disability, or intellectual impairment alone, should be excluded from the definition of mental disorder within the Bill and as a ground in itself for the application of the provisions of the Bill. This would pave the way for a Mental Health Act, subject to many other improvements, to be used only where an individual with a learning disability has a co-existing mental illness. (We are aware that this is the case in New Zealand ). The foundation of a credible, ethical and integrated piece of Mental Health Legislation, that is consistent with human rights, lies in the issue of an individual’s ability to make their own decisions about their care and treatment. The tone and implications of this proposed legislation are entirely inconsistent with the Ev 756 Joint Committee on the Draft Mental Bill: Evidence

fundamental principles and values underlying the All Wales Mental Handicap Strategy (Welsh OYce 1983)*, a strategy that was rekindled and endorsed in the Welsh Assembly Government’s recent response to the Learning Disability Advisory Group’s report “Fulfilling the Promises”. 13. As currently drafted, we consider the provisions of the Bill to be contrary to the principles of the All Wales Strategy in applying to the complete population so labelled without distinction. The overly broad definition of mental disorder is unjust in establishing a legal framework for a pre-determined sector of the population in the way that would be unthinkable if it were done on the grounds of ethnicity, religious belief or colour. The Bill is discriminatory in establishing this group of people as more vulnerable to its provisions than other people. It is stigmatising in equating learning disability with mental illness and mental disorder and with issues of public safety. More needs to be done to establish a positive reputation for people with learning disabilities consistent with the first and third principles of the All Wales Strategy*. The Bill will not help in this regard and represents a regressive step in legislation for people with learning disabilities. * The three principles of the All Wales Mental Handicap Strategy established the rights of people with learning disabilities: (i) to normal patterns of life within the community (including as full a range of life opportunities and choices as others, and the opportunity to become respected members of the community and not devalued because of their intellectual impairment), (ii) to be treated as individuals (including the recommendation that no universally applicable formula or pattern of service should be prescribed for all their needs), and (iii) to receive additional help and support from the communities in which they live and from professional services in developing their maximum potential. October 2004

Memorandum from George Talbot (DMH 62) 1. Recently, the mental health charity Mind has urged people to write to the Joint Committee criticising the current Mental Health Bill. In the late 70s, I started to study mental illness and myself partly because none believed I had suVered two nervous breakdowns, the first in 1970 when 33. So I write to warn the Committee of compulsion and to oVer insight into mental illness relevant to the new Bill. 1.1 In paragraph 2, I explain why my experience of seeking help when very distressed causes me to fear compulsion. 1.2 In paragraph 3, I support two of Mind’s criticisms of the Draft Bill. 1.3 In paragraphs 4–9, I use my understanding of mental illness to comment on Government’s wish to reduce danger by compelling people to receive treatments, mainly drugs prescribed by medical doctors. 2. I have carefully read Government’s helpful document on the Bill, Improving Mental Health Law— Towards a new Mental Health Act (IMHL). 2.1 But nowhere is the possibility that anyone might lie mentioned. Yet decisions to imprison someone indefinitely are made in closed courts with an appeal process which appears unconcerned with facts: See IMHL, para 3.72. 2.2 When I became a voluntary patient, I truthfully described what had happened to the ward doctor, as I had to several relevant professionals. However, my parents discounted this, saying it was an invention to excuse problems at work. Only during the second breakdown did I discover this and that all involved believed I had feigned two breakdowns and fabricated a sad childhood because I was upset about my work. But by then much damage had occurred and much more has followed. So I oppose allowing a system intended to provide voluntary treatments the long term control of a criminal justice system. 3. Mind describes Government’s proposals as “neither workable nor necessary. They will alienate service users from mental health care. They will put at risk people who need care and increase the likelihood of unnecessary compulsory treatments.”; Speak your mind, Introduction. 3.1 I cited similar conclusions from experts in an Appendix to my reply to Government’s 2002 consultations: See paragraph 10 below. 3.2 And media reports over several years confirm Mind’s claim that often those desperate for help cannot get in (because of a lack of staV and beds); Speak your mind, One, s1. 3.3 So I share Mind’s opposition to more compulsion and its extension to those without hospitals. And I add, the increase in staV proposed by Government is relatively small. 4. The Ministerial Foreword of IMHL opens by asserting that sometimes, as a last resort, a mentally disordered person must be treated for his own safety or to protect others. This may sometimes be convenient or the best available but it is rarely necessary. 4.1 Consider the judge who says “You are a very dangerous man, I am sending you to prison for many years!”. He is protecting the public but he does not require compulsory treatment. Joint Committee on the Draft Mental Bill: Evidence Ev 757

4.2 Several types of treatment have proved eVective in prisons. The first two are quite voluntary. At Parkhurst, Dr Bob Johnson tamed some of the most dangerous men in the prison system. The therapeutic regime at Grendon has been so successful that more similar prisons are being built. And prisons for lifers achieve low recidivism for those released after their careful preparations. 4.3 Nor does someone who threatens his own life or person have to be treated. He could be physically restrained. This may be painful to endure and to administer but it leaves his mind intact. This may assist a secure recovery. 4.4 I don’t mean to prevent cautious use of psychotropic drugs but by relying on them, doctors have produced millions who depend on them to appear better. 5. IMHL, paragraph 1.2 says “The purpose of mental health law is to protect patients and others from any harm that can arise from mental disorder”. How extraordinary to cite any harm on the first page of chapter 1 when paragraph 1.1 is concerned with treatment and due process! And what about asylum? 5.1 And how sinister that paragraph 1.2 says the law sets out when it becomes necessary to treat someone without consent. I noted lots of necessarys in chapter 3 but no recognition that treatment is more likely to succeed when it enjoys the willing consent of the patient. 5.2 Obtaining consent may initially be more expensive but that is a choice the Committee should urge Government to ponder. The long term costs of mental illness are huge! 6. Underlying Government’s reform program are laudable wishes to improve patients’ lives and protect the public. But neither discipline nor deterrent punishments are mentioned. Rather, despite the disclaimer in IMHL, fig. 2, para. 3., Government appears to be asking health professionals to become responsible for public protection. I judge this a double fault and claim Government’s reforms are wrongly based. In the next two paragraphs, I explain how discipline and deterrent punishments could help to achieve Government’s aims without compromising the willing consent so helpful to treatment mention in the previous paragraph. 7. I urge the Committee to recognise the importance of discipline including painful punishments, to the mentally ill. Without it, a minority become impossible and evoke demands for their removal from society. Current reforms require doctors to finesse this problem. 7.1 Since the Enlightenment, punishment has been justified by free will; by choosing to behave badly, someone justifies punishment. 7.2 Then a mentally ill person is judged innocent when his illness, for which he is not responsible (by definition), is supposed to cause his badness. 7.3 But nature uses fear to curb damaging actions. Without the fear of punishment, the ill person cannot contain his badness. 7.4 Both their profession and our culture discourage doctors from disciplining their patients since this must involve hurting them. But because the mentally ill are, in general, more likely to behave badly, they need disciplining more than others if they are to live freely in society. 7.5 Doctors avoid this dilemma when they use drugs to improve behaviour. 8. Current reforms were driven by public fears of psychopaths who were obviously dangerous but who could not be held in mental hospitals because no eVective treatment was available and who could not be imprisoned because they had not committed a crime. 8.1 I believe psychopaths can, in principle, be treated so I accept Government’s relaxation the test of treatability; IMHL, paragraph 1.8, item 9. But I note dangerousness is not a medical diagnosis but a social judgement. So I want long term committals heard in social courts in public. And I note we are all prone to violence when provoked by life. We should not encourage people to deny this as it damages the treatment of many mental illnesses and causes some. 8.2 Until recently, those guilty of grave crimes were executed so this problem rarely arose. As a compromise, I advocate the death penalty for a second grave crime. This traditional deterrent of grave crimes would reduce the dangerous tendencies to underestimate how dangerous people are and to make them less dangerous with drugs that damage their life force. 9. A much criticised feature of current proposals is to describe someone who should be treated as mentally disordered. 9.1 I judge this phrase meaningless as it implies an ideally ordered mind from which some fall short. Delusion, disorder and danger abound in our civilised world! 9.2 In Human Motivation, I described how we are driven by instinctive and learned emotions as are the other mammals even though they lack verbal language. And I explained how two sorts of mental illness can be caused and treated. I called these repressed emotions and faulty expectations. See also paragraph 10 below. 9.3 Unfortunately, both can only be inferred while repressed emotions are only evident after successful treatments. These psychological features of human nature do not allow treatments to be based simply on eVects as Government wants: See IMHL, para. 3.11. But convenient as treating symptoms has been, it has resulted in the widespread use of drugs which suppress symptoms rather than of psychological treatments Ev 758 Joint Committee on the Draft Mental Bill: Evidence

which can cure. I fear these reforms are intended to reinforce this bad practice rather than to create the trust needed by good treatments. As IMHL considers form far more than substance, I urge the Committee to question Government closely on the treatments it expects its reforms to promote. October 2004

Memorandum from N Fletcher (DMH 63) Thank you for the opportunity to submit this evidence for consideration. I have suVered mental health problems over a number of years and am well aware of the issues that are uppermost within the mental health community. I therefore submit this evidence from a suVerer perspective. I have never had need to be sectioned and my treatment such as it is comes through primary care. However, I believe this new bill will have serious implications for people such as myself. 1. Reform is much needed and there is an opportunity through a proposed Mental Health Bill to really help people who suVer from these debilitating illnesses. But so far the proposals have just thrown up more controversy. One positive thing that has happened in the past 10 to 20 years is that mental health groups and charities have gained proper recognition for suVerers in fighting prejudice and ignorance. But this could be significantly undermined if the new Bill becomes law. The Government has said that there will be suYcient safeguards and the proposals make provision for the representation of patients’ interests. But as yet there has been little detail of just how this will work. Instead, this legislation just seems to give huge powers to health professionals and others over the treatment of the mentally ill. These include the provision to incarcerate mental health suVerers who—in the opinion of just a few professionals—pose a threat to the public or themselves. There does not need to have been a crime committed by the individual, just the suspicion that they could be a danger to others or their own person. I believe this could seriously undermine human rights. 2. Another of the new powers would be to compel all mental health suVerers into forced medication programs against their will if the same few professionals felt this necessary, giving no choice to individuals who disagreed with this form of treatment for themselves. This new legislation seems to have been born out of a few high profile cases. The publicity that invariably follows such cases has forced the Government into a knee-jerk response based upon public misconception. But is totally disproportionate to the real situation. In reality there are very few individuals who need the protection of a secure environment for their own and public safety. In fact, Home OYce data shows that a person suVering from mental illness is more at risk of being the victim—rather than the perpetrator—of violent crime. The implications of this strategy could be totally negative, not only for the patient but the community as a whole. Perhaps my biggest concern is that this proposed new legislation would take us back to Dickensian times, when people with health problems were locked up and mocked. Mental health suVerers have always been ready scapegoats for many of society’s ills and failures but, just at a time when the tide seemed to be turning, along comes this legislation. 3. There are already thousands of suVerers who do not have the confidence or trust to be able to approach mental health services. Most live within our communities, suVering in silence, coping, often alone with their problems. One consequence of this legislation will be that mental health suVerers will find it even more diYcult to come forward for treatment. They will believe that what few meagre rights they may posses at present would be swept away for the sake of political opportunism. Mental health service users are usually experts in their own condition. We know the beneficial aVects of having a choice of treatments. We know the positive aVects of taking into account the social, socio-economic and ethnic background, preferences and lifestyle of service users. Without the provision to take account of these fundamental realities, the clock will be turned back as far as mental health care is concerned. 4. It will be impossible to nurture the trust needed between mental health suVerers and those who are supposed to be the providers of care and healing if the Government does not take seriously the voice of those who are better-placed than anyone in knowing what kind of provision is called for when caring for and treating mental illness. The new proposals do not include rights that would make suVerers lives better. Mental illness whatever form its takes, is never something anyone chooses to suVer from. The causes are many and varied but one thing I have found eVective is a compassionate, open and caring approach to the suVering of those most vulnerable in our society. After all, is this not the yardstick we are able to judge any society by? October 2004

Memorandum from A Colgan (DMH 65) My evidence is from the point of view of a survivor of mental and emotional distress. The term “survivor” may be vague or over-used. What it means to me is to wake up each morning and to go to bed at night feeling blissfully grateful not be wracked with emotional pain. I have never taken anti-depressants, but I am well. Joint Committee on the Draft Mental Bill: Evidence Ev 759

This would not have been possible if I had tried to work alone; what has made it possible is that I have had the assistance of therapists. In my present job, as an administrator with a mental health organisation, the phone rings frequently and people ask for help. Because of my own experiences I have a pretty good idea that these people are feeling much as I used to feel. It is deeply saddening to know that most of them will not get access to the sort of therapies which made such a diVerence in my case, because they cannot aVord them. Chapter 11.12 of “Towards a New Mental Health Act” states that the bill will require a paltry 200 additional nurses, therapists and clinical psychologists. In other words no provision has been made for people to do the real work of emotional healing. I am training as a therapist at The Karuna Institute. The associates of this institute and others like it have understanding of the roots of mental and emotional distress, and experience of healing clients. Healing can happen through the compassion and empathy of the therapist. It may take time, but what happens is lasting healing. The day to day reality for thousands of people with mental health problems is that their GPs have little understanding, compassion or empathy, and the best that clients are oVered is drug therapy, or hospitalisation, leading to the phenomena of “revolving door patients” who get a bit better before presenting again. Many patients stop being able to go to work; many, especially male patients, commit crimes; many work out their problems on their families; some kill themselves. The cost to society is incalculable, and the cost reaches into obscure corners of society, as for example when teachers and social workers become drained and burnt-out working with people and their diYculties. I would wish for everyone to have access to therapeutic services soon enough, before they become too desperately ill. I feel that this is the biggest division between rich and poor in our society today. October 2004

Memorandum from Derbyshire Mind Advocacy Service (DMH 66) Our organisation currently employs ﬁve paid advocates providing advocacy support to both in-patients (formal and in-formal) and community clients. Our comments are therefore focused on the provision of advocacy within the Draft Bill. 1. Advocacy for those subject to compulsion is welcome. 2. We are concerned that insuYcient resources will result in reduced access to advocacy for those who are not subject to compulsion. It is essential that adequate additional funding is available to that the advocacy provision already in place is unaVected. 3. The absence of advocacy at the examination stage has not been adequately addressed. Where the examination is non-urgent and there is a ﬁve day timescale it is not necessarily impractical for an advocate to become involved and to ensure the persons views are clearly put forward at this crucial stage. 4. It is essential that the advocacy service is funded and managed in ways which guarantee its independence from statutory service providers. 5. Advocacy should and can only be a safeguard for the person subject to compulsion (not their nominated person) and this should be clearly stated in the bill. 6. There will be people subject to compulsion who are unable to communicate their views and wishes to an advocate. We are concerned as to what safeguards will be available to them. 7. We are concerned that the new tribunal system will mean that the tribunal will be complicit with compulsion. Nick Green (Service Manager) Sarah Marchbank (Senior Practitioner/Advocate) Robert Sentance (Advocate) Jill Henderson (Advocate) Vickie Hunter (Advocate) Cathy Durrant (Advocate) October 2004 Ev 760 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Peter Campbell (DMH 67) 1. Introduction I am writing this as a long-term user of mental health services (37 years). I have regularly been detained and treated under provisions of the 1959 and 1983 Mental Health Acts. Since 1990 I have been a freelance trainer and writer in the mental health ﬁeld.

2. The Experience of Compulsion Compulsion has widespread implications for mental health services. For many of those compulsorily detained and treated it has a negative impact that can have long-term consequences. Important freedoms are lost, sometimes for long periods. These include control over one’s own physical integrity (forced treatment). Compulsion also has implications for those not directly aVected, having a clear eVect on perceptions about the whole service system and discouraging potential service users from seeking treatment.

3. Extending Compulsion As a result of the above, it is essential that compulsory powers should not be extended in a new Mental Health Act. The definitions and criteria in the Mental Health Bill have been changed so that it is inevitable more people will be compulsorily treated. The definition of treat-ability in the Bill weakens the connection between compulsion and therapeutic benefit and will make compulsory treatment even less acceptable and justifiable to service users. The Mental Health Bill takes us in the wrong direction—away from mutually agreed and consensual care.

4. Community Orders Extending compulsory powers into the community is widely opposed by service users. It is not practical, not necessary, and will have negative eVects on relationships between service users and mental health workers. The reasons for service users stopping their medication and getting into diYculties are complex. The inadequacy of community support is an important factor. Improving services is a better way of addressing the problem than increasing the power to threaten and compel. The Committee should consider what it could be like to live “on licence” in the community and address the possibility that once on a community order the service user will remain on it indeﬁnitely. The fact that many mental health workers are reluctant to be involved in the proposed arrangements is signiﬁcant.

5. Capacity It is discrimination for people with a mental disorder to be compulsorily treated while retaining decision- making capacity when this is not possible for people with physical disorders. The Mental Health Bill should respect capacity. At the very least Advance Statements made at a time of capacity should receive statutory recognition. It is not suYcient for it to be left to mental health workers to decide when and how to action Advance Statements.

6. Advocacy The inclusion of independent advocacy in the Mental Health Bill is welcome. Nevertheless it is essential that service users should have access to an advocate from the start of the examination stage. This is a critical point in the process when the service user needs all the support available. The proper use of an advocate at this time could do much to avoid the need for further consideration of compulsion.

7. Rights to Aftercare Reducing the rights of detained patients to aftercare after discharge goes against the grain of good community care and can only be a cost-cutting exercise that will make re-admissions more likely. Allowing service users to be kept in hospital because service providers cannot provide a service is wrong and unacceptable.

8. Conclusion I hope the Committee will give due consideration to the above points and recognise that there are similar long-standing and continuing concerns from mental health workers, service users and carers that demand to be addressed October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 761

Memorandum from Mrs M Swierkocki (DMH 68) I am aged 50, had three bouts of mental distress and experienced horrendous treatment at the hands of the caring profession. 1. Aged 18–19 1971–72 roughly in the armed forces due to abuse by oYcers. I had an almost complete breakdown—the care I received in Germany was excellent. 2. Aged 25 roughly 1980’s mental distress lasted eight years, was sectioned—terrible experience, I lied myself out. 3. Was given drugs with terrible side eVects eg throat going in to spasm my tongue slipped down throat almost chocked to death twice! Why twice? Because my GP insisted I use the drug again, who was I to disobey! Just a lab monkey but free from a cage!! 4. No support in the community either for myself or my family . . . All those years I never received any beneﬁt, why? Because no one told me I could? . . . I never knew to ask the question! 5. Aged 47 2000 depression lasted almost three years . . . did not trust the caring profession!! Would not take drugs . . . did not want to be a lab monkey again. My GP gave me talking therapy IN HIS OWN TIME! Which was a big help, that got me better enough to get back to work and have been for two years. 6. No support for depressives in the community . . . it’s diVerent to enduring mental health . . . people need day centres to enhance their quality of life. 7. People suVering mental distress need care plans and advocates. 8. People suVering mental distress need long term housing ranging from 3 months to one year please give them a ﬁghting chance to get better. 9. Good quality community care would help to keep people out of the mental health wards. 10. I would never trust the caring profession ever! The terrible experiences have ruined my belief of people with power. I struggle at work due to the fear of what people with power can do to you. 11. Treatment safe guards help to gain trust in the carer. 12. Criminal justice needs to be more empathic by looking at supportive measures. 13. I oVer support by email for people suVering depression. 14. Please help those who are unable to help themselves . . . humanly. October 2004

Memorandum from North East Lancs Association for Mental Health (DMH 69) I am delighted to see you are on the Committee scrutinising this Bill and would like to draw your attention to some serious concerns. I am writing as Chairman of North East Lancs Mind Association, our group having discussed this draft, and also in my own capacity as a retired psychiatrist with 20 years of consultant practice. I also take the liberty of enclosing a letter from John Hutton in response to writing to my MP Gordon Prentice in 2001 after the first White Paper was published.2 1. I am not at all happy with the much broader definition of Mental Disorder without any exclusions, and the inference that so-called dangerous, severe personality disorder is sectionable. What are the safeguards against this measure being used, or abused by possible future more authoritarian governments to serve wider social control? What prevents its application to behaviour considered deviant from prevailing social norms? The misuse of psychiatry in the USSR and in China are all too well known. Secondly, am worried that patients who have troubling violent or sexual impulses and fantasies and who could be helped and their impulses contained, will fail to present themselves for treatment if they think that revelation of their tendencies might lead to incarceration! 2. The “Approved Mental Health Professional” no longer needs to be a Social Worker—we think that no professional working in the same team as the certifying Doctor should act in this capacity, as their independence must be assured, and this should be laid down in the Act. 3. Compusory Orders in the Community. We feel this should only apply to the very few patients where past clinical experience has shown that lack of compliance with treatment invariably leads to relapse. We also think that the wider conditions placed on a patients behaviour could be oppressive and unfair—there are legitimate reasons why a person does not fit into eg a particular day centre. 4. After consulting with colleagues still serving on the present Review Tribunals, I have serious doubt whether enough professionals can be recruited for the much more frequent sittings of the Mental Health Tribunals. It is not a matter of adequate training or finance, the numbers are just not there, and will lead to endless delays and diYculties.

2 Not printed. Ev 762 Joint Committee on the Draft Mental Bill: Evidence

I sincerely hope the Bill can be amended to take the above concerns into account. October 2004

Memorandum from C Perris (DMH 71) I speak as a service user with over 30 years experience of manic depression. For most of that time, I have controlled the mood swings without medication and had a successful career as a soldier and as a lawyer specialising in legal ethics. Now I choose to use medication because of a deterioration in my mental state. I had to ﬁght to get medication and have had a diYcult time getting it appropriately adjusted. I am very unhappy with the Draft Mental Health Bill as it stands and in particular I am very concerned about the proposals for CTOs. I am particularly concerned about: 1. Inappropriate use of hospitals as punishment for non compliance. 2. Reduced hospital peer pressure for inappropriate prescribing. 3. Lack of choice in what and whom the user has to comply with. 4. Loss of option of not taking medication that is harming the user. 1. To send people to hospital for not taking medication, where they are not a risk to themselves or anyone else, ie where the current sectioning process would not cover the situation, is to use hospitals as prisons. This is inappropriate and will take up valuable scarce beds. 2. Just as a minority of psychiatrists abuse existing sectioning processes, so a minority of psychiatrists will abuse CTOs. But under the current system of only being forced to take medication when in hospital, there are more checks and balances and more opportunities for other professionals to observe and censure inappropriate drug use. In particular, review by a tribunal allows for a psychiatrist to put on a good show for the day, (versus a user who may not know what the alternative treatment options are), whereas inpatient treatment applies more peer pressure to the psychiatrist to treat his patient appropriately over a longer period of time. 3. Users are often faced with no choice of psychiatrist and therefore no choice of prescribing practices. Psychiatrists vary widely between the extremes of medical model and social model. It is diYcult to change psychiatrists because of the shortage of psychiatrists coupled with geographic allocation of patients to doctors. It is also often diYcult to get to see a psychiatrist quickly. This means that a user is usually stuck with one psychiatrist’s prescribing practices, with little possibility of changing their medication regime. However, a user may wish to use medication diVerently from how their psychiatrist wishes to prescribe it. For example, there is a currently accepted practice, used by many of the highly successful assertive outreach and early intervention teams, of varying medication to provide a rapid response to early warning signs, and tapering oV the medication to a minimum dose or even no dose as soon as possible after a crisis begins to fade. This is in contrast to more common prescribing practices. A user who is at odds with their psychiatrist over prescribing practices may well be faced with ignoring a CTO, (with the possible punishment of incarceration in a mental hospital even if not unwell), or to disengage. I myself would prefer to disengage. 4. Like others, I have had experience of inappropriate prescribing where there are viable alternatives (for example continuing to prescribe a drug that I have a sensitivity to, continuing to prescribe a drug that gave me ulcers, and continuing to prescribe a drug that was making me increasingly manic) and of prescribing medication without doing the necessary blood tests. Without having a CTO hanging over me, I am free to refuse to take medication until I am given the relevant blood tests or until a safer or more appropriate drug is prescribed. After two years of no liver tests I refused to take carbamazepine further and told the mental health team. My likely response to a CTO in these circumstances would be to lie to my psychiatrist about what I was taking, or if necessary to protect my health would be to disengage and go underground. I believe that CTOs are being brought in by the government in response to a public misperception that users do not take medications that would make them well (which they do not necessarily do) and then become dangerous (which is unusual). I believe that CTOs would have the opposite eVect from that desired. They would drive many people away from the mental health services, both people already in the system who will disengage, and those who will avoid the system in the ﬁrst place. I urge the Government to reconsider its plans to introduce CTOs in the light of the damage that they will do. October 2004

Memorandum from B Diamond, Clinical Psychologist (DMH 72) I welcome many of the proposals of the above draft Bill, including: — The provision for advocates; — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal; Joint Committee on the Draft Mental Bill: Evidence Ev 763

— The single assessment process; — The ability to appoint a “nominated person” (but not its reduced role); — Improvements to treatment safeguards for patients undergoing ECT; — Special provisions for children and young people; and — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within mental health law and go a long way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some, I am troubled to find, remain exactly the same as the concerns that were expressed by myself and many other respected organisations following the Draft Bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to serious consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards my work as a clinical psychologist in the NHS: — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, tribunal) as for civil patients. — The right to an independent advocate. — A complete prohibition on the administration of ECT on capacitous patients. — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. I trust that the concerns I have raised above will be considered by the Committee and I look forward to your response. October 2004

Memorandum from the Nottingham Mental Health Alliance (DMH 73) The Nottingham Mental Health Alliance is a voluntary group representing many views and experiences, our common aim is to promote person-centred, meaningful mental health services. We are independent from the national mental health alliance and would request that the following views are considered about the Draft Mental Health Bill. We welcome many of the proposals of the above Draft Bill, including: — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Improvements to treatment safeguards for patients undergoing ECT. — Special provisions for children and young people. — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within mental health law and go along way towards introducing constructive and meaningful mental health legislation. However, we are concerned about the fundamental flaws that remain within the current proposals, some, we are troubled to find, remain exactly the same as the concerns that we expressed along with many other respected organisations following the Draft Bill’s first introduction in 2002. Our concerns are as follows and we would ask the committee to serious consider Ev 764 Joint Committee on the Draft Mental Bill: Evidence

addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive mental health services in the NHS. — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic beneﬁt and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — A complete prohibition on the administration of ECT on capacitous patients. — Legally binding safeguards to protect people from potentially hazardous practices, and speciﬁcally that doses above BNF limits should not be given without informed consent. We trust that the concerns we have raised above will be considered by the Committee and we look forward to your response. October 2004

Memorandum from Dr George J Lodge (DMH 74)

Personal Details Recently retired from 24 years as a Consultant Psychiatrist, latterly as adult mental illness lead and risk assessment lead in Avon and Wiltshire Mental Health Partnership NHS Trust. I had special interest in rehabilitation of patients with severe, enduring and recurrent mental illness. Currently part time judicial member of the Mental Health Review Tribunal and Associate of the General Medical Council, sitting on Fitness to Practice panels.

1. Summary Having reached their conclusions on the content, the Committee should remit the whole Draft Bill for a complete revision. At 283 pages this bill is more than twice as long as the Act it is designed to replace. It is extremely tortuous and unnecessarily repetitious. Drafted, as it is, with references to multiple subsections of other sections, it is diYcult to follow. Any new Act will have to be used by mental health professionals. They need an accessible, primary and, as far as possible, unambiguous source of law that they can implement. One fears that the length and complexity of this draft legislation will obfuscate and prevent others from penetrating its impact and intention. It has certainly prevented me from digesting the whole of its contents. There is persistence, in this draft, of the Government’s original intention to facilitate the indefinite detention of potentially dangerous personality disorders, even though they may not be amenable to treatment. This should not be permitted. Throughout the draft, the “clinical supervisor” is required to “consult” with or “inform” certain individuals. Whilst good practice, I foresee mountains of forms being demanded to confirm these consultations and information giving. This legislation already threatens to paralyse the service with the increased report preparation and time spent in Tribunals. The Government should be advised not to require formal confirmation of these consultation and information requirements to evidence compliance. Joint Committee on the Draft Mental Bill: Evidence Ev 765

2. Detailed Comments

2.1 Section 9(4)(a)(ii)—“health”

The criterion of “health” as a necessary “condition” for detention is omitted. It is only included in the context of “serious neglect . . . of his health or safety”. Because their failure to understand their condition and to accept the need for treatment may not be regarded as “serious neglect” of their health, this has the potential to allow thousands of mentally ill people to drift through life in a chaotic chronically disordered state. The criterion of “health” as it exists in the 1983 Act, should be included in any new Act.

2.2 Section 9(7)

This section permits the detention of people for whom no treatment is available and potentially meets the Government’s original objective of incarcerating personality-disordered individuals, even though no treatment may be available. No such provision is necessary. Given the broad interpretation given by the courts to the meaning of medical treatment, including nursing care, psychological treatments and habilitation, it would be possible to appropriately detain individuals with mental illness even though they may not be particularly responsive to physical treatments (drugs etc). Any new Act should not be used to incarcerate in hospital those individuals who are considered dangerous to society but for whom no treatment is available. If the Government wishes to legislate to detain such people, then it should legislate separately, for custody in a separate non-clinical environment. There are, however, objections to this, given the poor reliability of risk predictions. The outcome of such legislation would be the incarceration of individuals, many of who would not have committed an oVence of violence. Without the prospect of treatment and therefore change, there would, be no prospect of such individuals ever being released. Section 9(7) should, therefore, be deleted.

2.3 Section 15(3)(a)

should read: “secure that the assessment may be carried out, if further assessment is necessary, or”

2.4 Section 15(3)(b)

It cannot be assumed that the examiner will determined that criterion of risk will have been met. This subsection might read: “protect his health or safety or other persons against risk, if the examiner determined the third of the relevant conditions was met”

2.5 Section 15(6)(c)

A mechanism is needed to identify and limit to a single person, “any carer”, speciﬁed in this subsection.

2.6 Section 24

This section is excessively verbose. It is simply necessary to say is that: the hospital must ensure that a patient, liable to assessment or treatment, is under the care of an approved clinician, who will be the “clinical supervisor.”

2.7 Sections 28(5)

Whilst it is appropriate to admit an emergency patient within a short timescale [S.28 (5)(a)], it is not necessary to reduce the time limit for other compulsory admissions from fourteen days in the 1983 Act to ﬁve days in this draft [S.28(5)(b)]. The 14-day period can be helpful in the case of a patient who is diYcult to track down. Ev 766 Joint Committee on the Draft Mental Bill: Evidence

2.8 Section 34 This is unnecessarily verbose and could be reduced to saying: any references to the Tribunal in chapters 5, 7, 10, 63, 64 and 65 are references to the Mental Health Tribunal etc . . .

2.9 Section 35(2) There is no need for two subsections. The meaning of both is identical.

2.10 Sections 35(4) As above, there is no need for two subsections.

2.11 Section 46(2) I don’t consider it appropriate to consult with a nominated person or carer prior to the modiﬁcation of a care plan as speciﬁed in this subsection.

2.12 Section 46(5)(a) and (c) It is inappropriate that the Tribunal should be able to restrict the clinical supervisor’s power to discharge or grant leave. It is signiﬁcant that these powers are subject to regulations promulgated by the Secretary of State, again raising the spectre of the Government’s preoccupation with dangerousness. This could make the clinical supervisor an unwilling custodian. These subsections should be deleted.

2.13 Section 48(3) and (7) There is no sensible reason to specify a time limit for the patient’s admission as short as 24 hours. If a patient were to make himself absent there would be a need for time to locate him and arrange admission. 14 days would be appropriate rather than 24 hours.

2.14 Section 49(5) See comments on Section 46(5) (a) and (c) above.

2.15 Section 51(4) and (9) See comments on Section 48(3) and (7) above.

2.16 Section 54(8) It is unclear whether the leave, referred to, is to be given in advance, at the ﬁrst or subsequent hearings, or on consideration of a written submission.

2.17 Section 57(4)(a) and (5) See comments re. S. 48(3) and (7) above. In any case, this would be more simply drafted by including the speciﬁed time period within S.57(4)(a) and deleting subsection (5)

2.18 Section 58(6)(c) It is unclear what is intended. Does this refer to treatment that is not for the psychiatric disorder? If so, a patient’s other medical needs may change frequently and can only be provided with the consent of the patient or, in the case of mental incapacity, using the best interests justiﬁcation under the common law. Such a proposal is impractical and unnecessarily bureaucratic. Joint Committee on the Draft Mental Bill: Evidence Ev 767

2.19 Section 62(5) It is inappropriate that the clinical supervisor should have responsibility to inform others of the decision of the Tribunal.

2.20 Section 63 This is an eminently sensible innovation

2.21 Section 71(2) and (3) This means that if, as a result of oversight, the clinical supervisor fails to submit an application, the patient will be discharged. The Tribunal should be able to adjourn, if it has oral or written submissions that the clinical supervisor wishes to make an application.

2.22 Section 75 This section illustrates the tortuousness of the chapters on compulsory treatment and assessment. It could be eliminated and simply expressed by eliminating S.75 altogether, amalgamating the provisions of S.76 and 77 and putting as a preamble to the new section: if a patient is liable to assessment or treatment as a resident or non-resident patient under any provision in chapters 3 or 6 and the clinical supervisor determines that responsibility for that assessment and/or treatment should be transferred to another hospital then . . .

2.23 Section 76(9) It is unhelpful to introduce a deadline of 14 days. It creates diYculty for no good purpose.

2.24 Section 88 and 96 Conditions should also include that the Court is satisﬁed that the patient can be admitted to the hospital within a reasonable time scale (28 days).

2.25 Section 90, and 95 There appears to be no limit to the number of times a prisoner/patient can be further remanded or committed for reports or treatment. There should be a limit, after which the patient should be referred to a Mental Health Tribunal.

2.26 Section 180(3) It appears that a patient who can understand the nature of what is proposed can refuse ECT even though they may not understand that he is so ill as to need ECT. This would risk the lives of patients. ECT under compulsion should be able to be authorised if the patient is unable to understand the nature and/or the severity of their condition. October 2004

Memorandum from A Bruce-Kingsmill (DMH 75) The following account stems from the direct personal experiences of Anne Bruce-Kingsmill and therefore oVers individual and substantial reasons for the perspective being presented with regard to the assessment and treatment available to people who have the misfortune to find themselves in the grip or aftermath of extreme and unusual mental experience. I am now of the firm opinion that such distresses are a product of adverse pressures, misunderstandings, social confusions and exhaustion that can only be eVectively resolved, with time and patience, through analysis and an undiminished, unhampered and balanced mind that is emotionally fully integrated. This means entirely liberated, free of drugs, labels, stigma and superstition, a state in which reasoning may shine. Mental debilitation in the context of distress or crisis is intermittent, a functional hiccup and should not be treated, in any way, as permanent. It is inappropriate to foster a belief that the condition is an irreversible impediment, that medication is the only option for relief, that drugs will have to be taken indefinitely and that institutional confinement looms, ever threatening if one resists or refuses the medication or treatment that a professional determines. This is a shocking indoctrination that is not conducive to any future presentation or observation of good health and well-being by anyone (prescriber or recipient) subscribing either in part or to all of the formula! Ev 768 Joint Committee on the Draft Mental Bill: Evidence

The mind of a person in distress may go well beyond ordinary functioning, experience and capacity but it is a myth to suppose that the person is potentially more dangerous than anyone else. There is also a distinction to be made between this content and responses and reactive defenses to inappropriate handling and treatment. Often the latter would provoke quite the worst human responses in anyone. It is extremely distressing to be entirely overpowered. It is bewildering to have one’s experiences and utterings dismissed as delusional, hallucinatory and unreal without any attempt to appreciate or unravel the content. Even the illusionary aspects of the experiences are entirely real to the person whose experiences they are and these are in themselves frequently terrifying. The delusion is perhaps more in other peoples misunderstanding and belief that they know better and how to treat the presentation and also in social and legal expectations that there should be a body of people, who have little direct personal experiences into the extremities of the mind, who can none-the-less adequately do the latter without being impeded by preconceptions. People without direct experience, and regardless of their certifications, need to take on board that those people with first hand experience have a breadth of insight into the human mind that, given suitable physical circumstances, consideration and social acceptance, may, in due time, debunk some of the current assumptions of traditional psychiatry and provide a degree of understanding that can extend to and be beneficial for everyone in society. It is therefore beholden on the Government to appreciate the plight of people who are in terror and trauma. They are, temporarily extremely vulnerable even before coming face to face with either professional misunderstanding and arrogance or social indiVerence and rejection. A Government policy needs to protect the vulnerable rather than shield the powerful. The policy itself should be respectful and should further require provisions that are of the highest standard with regard to respect. People can and will overcome poor facilities but psychological abuse and spiritual assassination is another matter. If respect is not implicit in The Bill it is certain that respect will not flourish nor understanding, appreciation and good mental health improve throughout the general populace. A policy with any measure of tyranny present will give license and leash to the tyrannical. It always has in the past; copying is how we all begin to learn. Whilst some will develop from the unsatisfactory and continue to serve philanthropic and humane principles their will be others who will wander far from these and often without ever realising that they have done so. This might justly be called “mental disorder” alongside the notion that an observational assessment, even in multiple, has more validity than a personal analysis of experience and that it is in anyway acceptable for the observer to render another human being unable to relate or understand either their initial extraordinary experiences or the subsequent, often quite brutish, treatment. Please do not inflict on the entire country a policy that legalises a disproportionate and unpoliceable capacity for arbitrary control over disorientated people who have no defence available to them. Please do not render dumb the distressed. Please do not put the tormented up for experiment, test or any further trial or disempowerment. Please Think. If you were disorientated distressed and confused what conditions and what treatment would best serve your recovery? For myself I know I would like to be in a warm, supportive and non-judgmental environment, preferably with people who I love and will begin again to recognise as I come out of “the bleak and lonely night”. I know that my appearance has in the past been alarming and scary for my friends and relatives but now they are familiar with the unique nature of my mind full journeys they really are the best people to be present as I resume social being. How much easier would it have been for them if they had been prepared by the professionals instead of having to gain their appreciation over 10 years and through all the shock and disbelief of what one or more people may do, within a medical/professional guise, to another? Relatives and friends need and deserve medical and social recognition of their superior position in the recovery process of their nearest and dearest and maybe some practical assistance within the home. The person needing care needs constant reassurance. There is no better place for this to happen than in the persons own home and surrounded by familiar people. This is perhaps an ideal but the ideal would be good for anyone, which is considerably preferable to being a thorn in the side of an overstretched system or of people extensively motivated in their job by financial remuneration, social status and power and often imbued with ideas that create flummoxing contradictions and tensions instead of trying to emulate, as a first priority, a united and protective family environment. This is particularly essential for those people who do not have close family and social ties for assistance.

“Speak Your Mind or Lose Your Voice” The above quote is the picture caption used in Mind’s appeal for evidence from people with direct personal experience of extreme distress and subsequent treatment. I wonder if, in choosing the picture and caption, the Mind Editor fully appreciated the horrifying impact that this would have—more on a person that has had their voice negated by everyone over an extended period than on a person that has no such direct experience and is largely dependent on imagination, received opinion, or media representations as a guide for their attitude. Joint Committee on the Draft Mental Bill: Evidence Ev 769

Last year and early this year I wrote, as an exorcism of some confusions and grievances, a couple of personal accounts of experiences and subsequent treatment, which included a number of admittances to hospital, both private and National Health, over the previous 10 years. The two accounts are entitled “From a Voiceless Enigma—ten years on” and “Ten Years On—another exposure”. These titles and Mind’s visual image are highly signiﬁcant and need to be kept in mind when considering the following questions and indeed any that may arise from the ensuing testament. Do you want to impose a sentence that will eVectively render another person mute, particularly when that person has not done any deliberate harm to any other person yet they have already endured alarming, disorientating and grave confusion? Is experience of greater importance than any observation or bookish notions? Do you refer or defer more to observational interpretations and received diagnostics than to actual experience and independent assessment? Would you deem these things more valuable in understanding than the opinions that can be gleaned from secondary sources? Are you yourself prepared to test, even for a very short period, mind diminishing, and emotion suppressing medications? Can you justify as appropriate drugs and other precarious treatments that have a litany of ill-eVects even to fatality and the incitement of suicide and that have never yet healed a spiritual condition or restored lucidity in the disclosure of an experience and its implications.

Can you justify empowering a group of people to inflict their preconceptions over individuals who, due the very nature of their predicament, can have no challenge or redress? Can you make a distinction between the content of a mind in exhaustion and breakdown to that of a drug and treatment induced distress and depression. Both have illusionary qualities not necessarily distinguishable even by the person whose experiences they are? And hallucinations are a known side-eVect when withdrawing from certain drugs. How much more diYcult then is it for an observer to make an accurate distinction? None-the-less our society does appear to require and believe this possible of health professionals. This is a mental disorder not the mental apparitions of an individual delving deep into their own mind and to the exclusion of the external world! Can you appreciate that by the very act of overriding a person’s autonomy or confounding their reasoning and emotions with unwarranted confinement or drugs it follows that succinct actual accounts are likely to be very few and quite insuYcient to challenge misconceived diagnosis, preconceptions and prejudices? Furthermore, such action is likely to provoke outbursts of frustration that, in turn, may be observed as aggression. In itself such an assessment will be detrimental to the main protagonists circumstances and future. A hunted animal will run and when it can run no longer it will use claw and tooth to escape its captors. Even in defeat it will patrol the very perimeter of its cage looking for its liberty but appearing demented. I am not saying that there are not some reasons for supporting some people in safe community homes. I am merely pointing out that compulsion very often infringes civil liberties and personal autonomy with no more justification than a subjective observational diagnosis or even just an implied diagnosis through the drugs that are, all too readily, prescribed. This is arguably grossly unsound and might well be itself a symptom of an ethically disintegrating, socially corruptive practice that keeps people in prolonged unnecessary distress and dependency and destroys the ability to live and think free of mind distorting medications. Where then is the mental disorder or disability? Perhaps it is not so much in the person being treated as it is in those doing the treating. When I had my first breakdown there were significant and identifiable reasons for the occurrence. In all subsequent consultations concerning this initial breakdown these reasons were scarcely considered by professional participants much less deemed relevant and instrumental in the event or sensible and telling in the content of the experiences. The content of my mind was harrowing, vast and challenging to my every belief and certainty. As such it was inevitable that my initial utterances were disjointed and largely unintelligible attempts to converse and convey something of the inner picture. The experiences were, for me, utterly unprecedented. I did not have any reference points nor did I have a vocabulary for the experiences. I was wholly dependent on professional assessment and on their choice of vocabulary muddled with our combined preconceptions and superstitions. A person needs all their faculties intact to unravel such a conundrum and recognise a distinction between natural manifestations in mind extension (not a disorder or disability) as opposed to substance-induced delirium. I was, for several days, unaware of external events and pressures. During this time medication was administered, the like of which is often used as a consequence to a diagnosis of hallucinations, delusions and a variety of other nouns so wide of definition and so open for misunderstanding I now think it is appropriate to shun their use. At no time was I ever briefed on the many and alarming potential side-eVects of the drug and, more to the point, nor were any of the people who love me, not least my partner. He was himself Ev 770 Joint Committee on the Draft Mental Bill: Evidence

extremely alarmed and very frightened by events. He too was at the mercy of the professional advisors and obviously he was inclined to favour their opinion over my inclination and intuition. The same was also true for most of my relatives and friends. It is a very daunting and disturbing thing to have the validity of one’s own understanding and judgment eroded by the very people one most cares for and loves and to know that they have been largely persuaded in this action by professional people. Hallucinations and delusions are reputedly a side eVect of withdrawal from certain medications. These were for me distinct from my initial experiences though they were never, in doctoring terms, distinguished as such and were further used as a reason to impose continuing medication. This included a number of physical infringements and psychological violations in the form of depot injections. The organic damage of bruises healed rather more quickly than the spiritual/emotional wounds. The drugs in this category are stupefying! Where is there any merit in rendering a person desensitised? How is anyone under such influence supposed to analyse their circumstances, events and experiences or fully distinguish the adverse side eVects or properly assess any benefit? The very idea is ludicrous even more so if an observer thinks he or she can or is even entitled to do so. On one occasion, and in my own home, I resisted medication and was threatened with being sectioned! The psychiatrist did not know anything at all about my situation in fact he had only just met me. He asked two entirely irrelevant questions and on the strength of this brief encounter prescribed a hefty dose of something completely vile; a zombie zoom. I challenged the strength suggesting that I take the minimal dose of one quarter of that which he was prescribing. He retorted that in America I would be given 10 times the dose and that if I did not conform he had the power to have me sectioned. Why?—My question is without an answer for who can explain the human capacity for insensitivity (without an excuse for the condition that is medically determined through imposed drugs)? A follow up meeting did not improve my impression of the man. Several years later and subsequent to writing my first account I was again admitted to hospital. Upon recovering my faculties I asked to leave the hospital (the facilities were extremely inadequate and the company was both oppressive and tragic). I was advised that the consultant, referred to above, would have to give his consent. My husband, in view of my earlier encounters, decided that this was entirely inappropriate and to this end presented a copy of my account to the hospital staV in order that they could properly understand the situation and arrange for me to see someone else. His eVort and concern were ignored and my account only very selectively skimmed accompanied with a statement to the eVect that the man in question was the only person who could authorize my discharge and that the junior psychiatrist did not have the time to read personal documents. Naturally I was irritated by this crassness that came hot on the heel of a nurses refusal to share with me what she had witnessed and her impression of me whilst I was unable to interact with other people. Her contribution would have dramatically improved my appreciation and ability to distinguish the shared from the private reality. I was compelled to see the senior consultant and I was given no intimation as to the nature of the impending consultation. I was freshly out of some very raw and alarming experiences. One would suppose that this being obvious the people assigned to care would endeavour to care or at least be gentle—some were some were not. I opened the door to a panel of faces comprising of the senior consultant, the junior psychiatrist (who I had very briefly met the day before) and five or six further attendants (all strangers to me). Clearly the team were merely performing as per instructions for surely if any of them had been thinking independently they would not have chosen group intimidation? I had asked my partner to witness the meeting—his incredulity was palpable. I suspect my disgust was also apparent. The meeting was brief and it certainly did not deserve any kind of justification or approval. I asked to be discharged but even this was tempered with the consultant’s proviso that I see a counseling psychotherapist, which was a relationship, that like so many encounters with an authoritative or professional structure, I had, throughout the previous 10 years, resisted or dodged. Had the man known anything at all about me he would have appreciated why. But appreciation and understanding, I fear, are not the objectives of this man’s psychiatry anymore than healing is. Such relationships had a distinct contribution to my original breakdown and were highly significant in the content of my unusual extreme and private forages of the inner self and subsequent treatment. At this point I run over the Committee’s stipulation that such a summary as this (which is only a minute glimpse of just a very few occurrences taken from a period of experiences of over 10 years) should not exceed 1,500 words, should concentrate on the major issues arising from the Draft Mental Health Bill, should have numbered paragraphs and should have a summary of the summary if the original summary exceeds 500 words. Is the secondary summary inclusive in the 1,500 words? I’m sorry I haven’t been able to work that one out. It is an interesting phenomenon that academics, organisations and Governments liberally produce literature that is undirected, hugely extensive and largely unintelligible to a layperson yet a social minnow is asked and expected to conform to a particular format and repressive stipulations including being directed into a distorted and entirely unacceptable interpretation, not least, in the definition being applied to mental Joint Committee on the Draft Mental Bill: Evidence Ev 771

disorder. (See basic definitions for purposes of Act—DMHB page 3(5)) The implication here is that a summary of a summary is all that is necessary from such a lowly person as an oVering in elucidation, appreciation and understanding and that it is not necessary to question the most basic of premises in The Bill. It is precisely such dubious notions and impositions that put so many people into mental crisis! How can anyone know whether or not a person has a valuable contribution to make without giving them the scope to direct their own text and without doing them the courtesy of reading that text in full and with reflection. Challenging, dismissing as too simplistic (or too diYcult), or discarding the content altogether might well arise out of failure to grasp the concept. Where the Bill itself is concerned this would not be at all surprising considering how convoluted, weighty and impenetrable the document is. In addition to this the stipulations create a nasty niggle that the request for personal evidence is not sincere but merely patronising. Even more sceptical than this, is the thought that truth, even when it bites, is still often met with cries for verification. Truth is sacrosanct, not the number of those able to recognise and honour its status. Yet, often, it is sacrificed in favour of a notion of democratic proportion or pacifying social maneuvering. My experiences have left me in no doubt at all that the gravest injustices are done by “the great and the good” even to the very least threatening of people and it is these very injustices that provoke animalistic forms of defence or even attack as distinct from aggression and anti-social behaviour being a natural and accompanying component of unusual mental apparitions. The latter, most certainly, is not so. This raises a considerable number of questions not least with regard to diminished responsibility and how this is assessed and used in legal matters. Drugs that are used on the pretext of treating emotional and spiritual conditions are in the same category as mind altering illegal concoctions and they need to be recognised and regarded as such. The confinement of a person while they are in a distressed conditions should only be considered appropriate when there is no other possible way of caring for the person, easing their diYculties and resolving the confusions, both theirs and everyone else’s. With regard to Care Plans, which I presumed to be Advanced Directives, I was invited to prepare one. I could not complete the pre-prepared form. It was an inane rendition from a one form fit all brigade and just one more example of time and resource wastage, in compilation, in ghost-contrived completion and in any ensuing interpretive lala-ing and mimicry! I needed just one clean A4 page and though it now states all the necessary I am not convinced that everyone involved would have time to read it and be prepared to observe the requests but then that is the measure of experience speaking. This individual account supports the conviction that the directive and suppressive tendencies within mental health, within education and within our general society are the very conditions that contribute and perpetuate human distress, mental confusion and create apparent complexities and incomprehensible contradictions that in natural order lead to breakdowns. It further supports the conviction that many diagnoses and array of stigmatising labels are just two symptom of the real mental disorder in our society. Each document must stand or fall on its own merit. Each evaluation and assessment must be based on integrity and the ability to recognise the accurate, the valuable and the truthful from the contrived and also distinguish the experience and understanding from the superstitious, the presumptive and the observational. I trust that the conclusions that the Committee draws with regard to ambiguity, basic principles and definitions within the Bill, as it stands at present, are not dissimilar to mine. Experience has demonstrated to me that there is much more to be considered than is currently accepted as authentic.

Draft Mental Health Bill (October 2004) I do not have to tell you more than my name and what I’m for. I do not need to tell you less than the truth—all truth is blessed. In this social playing field do not the powerful give a shield, But raise a policy ever true of humane distinction through and through. Employ an imperative of Kant’s kind view, Do to others, as you would have them do to you. Permit, in liberty, a telling tale, less our wit should ever fail To rise above conceited flaw, or keep compassion free of chore. So allow forgiveness with good grace, A filigree in original pace, Expecting from each an single face, And of confusion not a trace. Thus raising evidence in worthy statement, Ev 772 Joint Committee on the Draft Mental Bill: Evidence

Not dumb statistics of proportional abatement Or fragmented bites and paraphrasing, IndiVerence or kind wills abrasing. Then shout aloud that all might sense a gift That’s born without pretense, with inner peace, And certain favour, And a hope we all may savour. October 2004

Memorandum from Michael Elvin (DMH 76) My name is Michael Elvin and I suVer a diagnosed serious mental illness and I wish this memorandum to be treated as evidence. I am concerned about forms of compulsion in the Draft Mental Health Bill. I am certain that it is the case the erosion of liberties for people with a mental illness has been ongoing for the last few years. The Mental Health Bill is an extension of the erosion of liberties and an attempt to legitimise oppression in law. A direct comparison can be made with the policies of the present Labour Government and the previous Tory administration. I have been active in “patient involvement” for many years and seen a distinctive shift towards social control and a weakening of the patient’s voice, despite claims by the Government that they are committed to ending social exclusion. The Mental Health Bill allows a satisfaction for all the discrimination and prejudices existing in society against people with a mental illness. The determinations and diagnosis of mental health becomes more a social product than for the needs of an individual. It surely must be the case that if compulsion and liberties are an issue and the Government is concerned about social mores it would be better to separate such matters from a bill dealing with mental health. It is my view that there should be two bills—one covering the issues of concern to society, and the other dealing with matters of health. To blend the two, whether or not there are appropriate measures to safeguard liberties, allows social prejudices and discrimination to flourish because the average person is not the average legal expert. I live in Birmingham and have been a member of an organisation called The Search Team since 1989. The Search Team was created by Birmingham City Council and is regarded as a “watchdog” for social services (nowsocial careandhealth).The SearchTeamconsistedof “specialinterestgroups”which includedathriving and mental health group and a forum, of over 60 people, for BMEs. These two groups no longer exist. The BME forum, what is left of it, has joined with the elderly persons group. There are less than five members of The Search Team who have a mental illness. The decline in membership from people with a mental illness can be correlated with the tenure of the present Government. Service users of a particular social services day centre (patients with mental health problems) wanted to do their own audit of services. The audit presented to Birmingham Social Care and Health was to use a sophisticated and established method and the proposal was rejected. Birmingham Social Care and Health preferred to employ people and engage a team of questioners, paid at the rate of £10 per your, to survey day centres. These questioners were not recruited from The Search Team for the above reasons—the reduction in representationofpeoplewithmentalhealthproblemsandBMEgroups.Itisclearthatserviceproviderswould rather waste public money to create the illusion that social engagement and “empowerment” is occurring. It is a sham. The audit approach put forward by service users would have been eYcient and at minimal cost to the tax payer. The same story can be found in other parts of the country. I would like to give a further example. I am currently the chair of the Patient and Public Involvement Forum for Birmingham and Solihull Mental Health NHS Trust. At the time of writing this I am not sure even if I am still the chair—people concerned with important issues such as the MH Bill are being marginalised. On Monday, 18 October 2004, I was informed that I was a “dormant” member, not an “operational” member. This is the reason I was given when I queried the absence of my name from the CPPIH web site. I have reason to believe that I am the only member of the above PPIF who has a diagnosed mental illness. The issues I’ve taken on include services for BMEs. It is extraordinary how many obstructions I’ve been confronted with. For example, it is normal practice to expect volunteers to receive expenses. Yet, I am forced to making a claim in the county (small claims) court for my expenses. It is possible that this is unprecedented, and this fact alone should be enough to realise that the Government is insincere when it claims to be creating law and policies to benefit the mentally ill. I have been reduced to the status of that of a beggar. IampreventedfromusingtheInternetatbothsocialcareandhealthdaycentres.BirminghamCityCouncil, under the previous Labour administration, has broken agreements brokered through the Disability Rights Commission for me to have Internet access. They have not provided any reason, only excuses. I campaign for rights and justice and at a health care day centre they told me I could develop my web sites on the computers. Joint Committee on the Draft Mental Bill: Evidence Ev 773

However, when they discovered the content of my web sites I was eVectively banned and felt unable to attend oneparticulardaycarefacility. Iwouldlikeyouto examinetherightsand justiceIstruggleforonmylatestweb site which I am not allowed to even access at the day centre I attend even as I am writing this evidence for you. http://mysite.wanadoo-members.co.uk/jarmi http://jarmi.mysite.wanadoo-members.co.uk Now that you have visited my web site do you see any reason why I should not be allowed to use the Internet at a day centre? This restriction does not apply in the voluntary sector. The Government is practising Soviet style domination of people with a mental illness. As a member of a PPIF I am a public appointee and it is disgraceful that I am not allowed to access the Commission for Public and Patient Involvement in Health web site at social and health care day centres. The Government’s claims are a sham and any legislation they propose concerning people with a mental illness should be regarded with suspicion. The Government will claim that the legal experts have assured that safeguards are built into the Act. Well, the legal experts do not run health and social care facilities or, yet, determine the views of society. The abuses will, and do, occur because the Mental Health Bill is not easy to comprehend unless you are a legal expert. There are clear ongoing abuses of the Human Rights Act, blatantly violating freedom of expression. If the freedom of expression by vulnerable people receiving care supplied by the State is abused it is diYcult to see how the Draft MH Bill will not be abused at a later date regardless of the claim to apparent safeguards. Finally, I respectfully request an opportunity to be called before the Committee to provide verbal evidence and be subjected to in depth cross examination. I feel that as a public appointee it is in the national interest that my evidenceand claims arethoroughly tested becauseof the controversial nature. I believethat a failureto test the evidence I am putting forward would not beneﬁt democratic processes or the rights and dignities of all vulnerable peoples. October 2004

Memorandum from Professor David Pilgrim (DMH 77)

PROBLEMS IN DEFINING MENTAL DISORDER AND THEIR IMPLICATIONS FOR THE DRAFT “MENTAL HEALTH” BILL

Professor David Pilgrim* BSc, MSc, MPsychol (Clin), PhD This memorandum provides a critique of the definition of mental disorder, within the Draft Mental Health Bill viz:— “Mental disorder” means an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain; and “mentally disordered” is to be read accordingly. (DH, 2004: page 3 Section 5). Although this is relatively short and it reads superficially like an ordinary English sentence, its precise meaning is by no means clear. Given the political implications for the citizenship and human rights of any person being defined as mentally disordered, especially if their liberty is removed without trial, this ambiguity invites some critical scrutiny. Moreover, if the Bill becomes law, utilising this definition, advocates for patients will consume large amounts of time and resources quite properly challenging it in its practical application to individuals. Problems with the definition are as follows: — First, the interdependent constituent parts of “impairment”, “disturbance”, “disability” and “disorder” are not explained. — Second, the word “disorder” is used to mean both the whole and a part, with no clear logical distinction (if one is intended or could be justified) between the two roles in the definition. — Third, the pointed inclusion of the word “brain” twice suggests that many patients suVering from neurological diseases could now be framed as being mentally disordered. This may not have been intended (organic conditions such as dementia, confusional states and drug induced psychosis probably underlie this inclusion) but once inserted in this undiVerentiated way, other interpretations from any reader are then invited. This might lead to those not intended as the target of the definition, finding themselves included and dealt with accordingly. — Fourth, the word “functioning” is used to connote functional criteria (side-stepping the diYculty of most mental health problems being of unknown or contested origins). However, within a few words we have the risky claim of “resulting from” implying that causes are known. This promise of etiological certainty is then immediately withdrawn though by what follows- the antecedents suggested are simply a re-statement of dysfunction in the mind or brain (the use of the words “disability” and “disorder”). The brain connotation is fine, provided that clear neurological signs Ev 774 Joint Committee on the Draft Mental Bill: Evidence

are genuinely present and not merely speculated about. However, the mind connotation is not because there is no consensus on what this term means or its precise role in explaining (not merely defining in a circular way) mental disorder. The problems noted here are not unique to those charged with drafting a legal definition in England and Wales but reflect a general diYculty in pinning down the meaning of mental disorder. An ordinary language definition could be given, which is less mystifying than the one examined: “Mental disorder refers to the conduct and speech of people who are mad, bad, frightened or miserable and who upset others”. This definition (invented by the author for argument) uses ordinary language and refers to behaviour which is socially judged (by the person themselves or others). It is transparent about the role of value judgements. By contrast, the one oVered by the Department of Health oVers provides a misleading gloss of logical or scientific objectivity. It avoids talk of madness or misery and whether or not these states upset people enough to warrant action. There is a noteworthy silence about the powerful reactions of others driving the daily construction of mental disorder. Mental disorder appears to exist inside patients, without reference to the needs, interests and judgments of those around them. This grossly misrepresents the way in which mental disorder is actually negotiated on a day to day basis between lay people and professionals.

Previous Problems with Attempts at Defining Mental Disorder These can be summarised as follows: Circularity. Circular definitions take two forms. First, in the case of functional mental disorders, a condition is defined by symptoms but the symptoms are accounted for by the condition tautologically. The second problem of circularity is in relation to attempts to define mental disorder by clinical populations. That is, those who are in contact with health services (especially psychiatric services) are mentally disordered but those who are not in contact are not mentally disordered. This social administrative definition is undermined by evidence of the “clinical iceberg”, with community prevalence studies revealing a pyramid of mental abnormality, both treated and untreated. Cultural relativism. This is a serious problem for eVorts at providing universal definitions of mental abnormality. The flamboyant norm in Mediterranean culture overlaps with the symptoms of “histrionic personality disorder”. The diYdence of many Eastern cultures overlaps with the symptoms of “dependent personality disorder”. Successful “normality”. This problem is highlighted by the ambiguities in the social expression of unusual psychological attributes. Are politicians, light entertainers, professional boxers and mercenary soldiers personality disordered or they just successful people or both? Are creative artists extraordinarily talented human beings or are they mentally disordered or both? Overlapping disordered states. It is common for patients to present with symptoms from other diagnostic categories. Depressed patients are often anxious and vice versa, undermining the validity and utility of each separate diagnosis. Those we might agree are personality disordered often present with symptoms from more than one type. For example, the classic “psychopath” contains elements of histrionic, anti-social and narcissistic types. For a diagnostic category to be valid it should be distinguishable from others—this expectation is often not met in relation to mental disorder. The meaning of “insight” Whilst it is generally agreed that the greater the psychopathology the less insight manifested, it is possible for people with no formal symptoms of mental disorder to be unaware much of the time of themselves or how others see them. Indeed, such people may be happy with their lot, are well socially adjusted and oblivious of, or unconcerned about, their idiosyncrasies and personal presentation. They may go through life showing no distress and not taking kindly to personal feedback. In psychodynamic terms these people would be “highly defended” and symptom free. By contrast, most people with a diagnosis of some form of neurosis are highly insightful (to the point of self-absorbed pre-occupation) about their distress and dysfunction. And yet, these people are mentally disordered, according to professional convention. Thus, some “normal” people lack insight, some “abnormal” people are very insightful and some are not. The issue then is not whether people lack insight but the manner in which they lack it. It is only specifically relevant to the legal definition of mental disorder, when it is in relation to a person’s failure to render their behaviour intelligible when required because of rule infraction. It is in this circumstance, of the common social obligation to account for our actions when rules are broken, that insight is invoked as a defining feature of mental disorder, not in others. Thus mental disorder cannot be defined objectively—it is negotiated inter-subjectively by parties holding varying amounts of power. Committee decision-making. More recent authoritative attempts to define mental disorder by committee, such as in DSM-IV from the American Psychiatric Association, settle on a pattern of behaviour, which is associated with (i) current distress; or (ii) disability (impairment in one or more areas of interpersonal functioning); and (iii) which increases the probability of suVering, death, pain, disability or freedom. These defining features should not be accounted for a by a temporary reaction to culturally sanctioned circumstances (eg mourning). Political, religious or sexual non-conformity are explicitly rejected as diagnosable mental disorder. Attempts on the part of the APA to neatly separate diagnosis of true mental disorder from attributions of social non-conformity are simply not persuasive. The problem of circularity returns because dysfunction refers to conduct in its social context. There is no objective birds-eye view of Joint Committee on the Draft Mental Bill: Evidence Ev 775

mental disorder, nor does it simply reside, awaiting observation, inside individuals. It is socially negotiated in the ﬁrst instance by lay people. These decisions are then rubber stamped (or occasionally challenged) by mental health professionals. The DSM committee of the APA simply oVers professionals some conﬁdence in consistently attributing a diagnostic code to mental abnormality brought to their attention. But reliability (consistency) is not validity.

Conclusions — The definition oVered in the draft Bill is flawed by its tautological character. — Mental disorder is defined not by logic or empirical evidence but by the power of one social group (those sane by common agreement) over another (those not sane). — Tautology is the lowest common denominator which permits those who are sane by common agreement to control those amongst them whose behaviour creates anxious or disapproving incredulity. — The current Bill is a misnomer. It should be called “The Draft Social Control of Mental Disorder Bill”. It has little or nothing to do with mental health. October 2004

Memorandum from Mr John Allman (DMH 78)

Submission 1. The Committee has set itself term of references which include the following question: “Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?”. The question envisages keeping two conflicting considerations in “balance”, but omits entirely to countenance the existence of a third consideration (which is at least valid, and which is arguably paramount), which also needs to be kept in “balance” with the two considerations which are acknowledged. The protection of the human rights of each individual who is not mentally ill, but whom one or more psychiatrists believe mistakenly (or perhaps dishonestly claimed to believe) to be mentally ill, is immensely important. Logically, to omit this third consideration from the Committee’s terms of reference would only be appropriate if the Committee could be sure that all psychiatrists were invariably infallible, incorruptible, and immune to intimidation. 2. There should be an express, statutory obligation for those sectioned to be given a copy of the sectioning order made and a cogent written explanation of the precise grounds. Judicial review of unreasonable decisions to section citizens (ie unreasonable in the Wednesbury sense) should be an available route to justice, alternative to the problematic tribunal system. 3. Nobody sectioned merely for assessment should be medicated against his or her will. 4. There should be a statutory obligation for psychiatrists to refrain from diagnosing delusion before conducting investigations capable of determining scientifically whether the beliefs considered to be delusional were potentially true, or manifestly false, with the patient being given the benefit of any doubt. Until manipulation weapons have been banned worldwide and existing stocks placed beyond further use (as requested in our petition, an outcome which the present government declines to pursue), this should expressly include an express obligation to eliminate rigorously (using Faraday Cage shielding if necessary) any possibility that the genesis of symptoms is the abuse by third parties of electromagnetic manipulation weapons. Any inability of a victim to explain why he should have been picked for non-consensual experimentation should no more be grounds for diagnosing “delusion” than the inability of a rape victim to explain why the rapist picked on her, amongst all the women (some of them prettier) the rapist could have chosen to rape, would be considered adequate grounds for inferring automatically that the rape victim was fabricating any rape allegation brought. 5. Presently psychiatrists exercise multiple—and conflicting—roles, leading to manifest unfairness. Essentially, psychiatrists appear as “expert witnesses” in “courts” in which they fulfil the roles of both “judge” and “jury” and, after delivering their “verdicts”, and passing their “sentences”, proceed to “execute” those “sentences” themselves. Obviously, a proper “separation of powers” is long overdue. The role of psychiatrists should be confined to that of expert witnesses, whose testimony can be challenged by cross- examination (even by lay advocates), with others, who are not themselves psychiatrists, making impartial findings, of fact and law, aVecting the lives, liberty and welfare of (often unwilling) “patients”. 6. There should be objective and subjective impartiality. It is unacceptable, for example, that somebody who perceives himself to be the victim of harrassment by members of a secret society (eg of the type which meets in “lodges”), to which he is publicly, stridently and vociferously opposed, should be diagnosed as “paranoid” by a psychiatrist who is himself a member of exactly the same secret society, or even of one with a similar ethos. A psychiatrist finding himself thus embarrassed, by a conflict of interests, should be obliged, by law, to disqualify himself ab initio from “hearing” the “case”. Ev 776 Joint Committee on the Draft Mental Bill: Evidence

7. Sectioning should be used only against those who are demonstrably and gravely dangerous to themselves or others, or (with compassionate intentions) upon those who are manifestly incapable of forming and communicating an informed decision as to whether they wish to be hospitalised and/or treated. The people who turn to me for help are all self-evidently capable of deciding for themselves not to be hospitalised and/or treated, and communicating those decisions coherently and (usually) indignantly, even though they may have made decisions (as is their right) which others, including their psychiatrists, might think are not in their own best long-term interests. Their wishes should become paramount under any new legislation worthy of being described as “reforming”, even if what they decide happens to conflict with medical advice, and even if they might actually be genuinely “mentally ill” (whatever that means!), but not so mentally ill that they cannot form and express a preference as to whether or not they wish to have unwanted “psychiatric services” “delivered” to them. 8. Obviously, nobody should lose their liberty, or endure trespass against the person, without the availability of legal redress, merely because of what mischief somebody else guesses or (perhaps reluctantly, under statutory pressure) predicts, (pseudo-scientifically) that they might get up to, if they were left at large. 9. Compulsory treatment in the community isn’t expensive enough for civil liberties to remain protected by sheer economics, even to the limited extent that civil liberties remain so protected already. Nowadays, slow release implants of anti-psychotic drugs that nobble people for a whole year are being developed. Inflicting treatments like these, non-consensually, and even forcibly, upon members of the public, inside hospital, still more outside, would allow vastly larger numbers of ordinary people to be impaired long-term by these drugs, without the sheer cost of this widespread oppression becoming prohibitive. No treatment as debilitating as this should be imposed upon anybody who has no unspent convictions, nor without long and exhaustive due judicial process, in which psychiatrists’ only have the role of expert witnesses, not that of decision makers too. This concern must be understood in a global context. In the USA, for example, the present President’s family has commercial interests in the pharmaceutical industry. That President has proposed a programme of compulsory “screening” of Americans for “mental illness”, and promulgated the outrageous hypothesis, by way of rationale, that a large proportion of the American population are (for the time being, apparently, undetectedly) “mentally ill”, including children, whose parents, it is proposed, won’t have the right to refuse that their children should be thus screened, and perhaps “treated”, to the pecuniary advantage of the President’s family, and without the consent of the children’s own families. Two centuries ago, by contrast, the cliche´d and ill-defined, metaphorical phrase “mental illness” was a phrase humaity managed to live without using, almost entirely, as part of our day-to-day vocabulary. 10. Patients wrongly sectioned and subsequently freed by due process, after appealing against summary sectioning, or the expiry, without justifying diagnosis, of police-made “emergency” orders (presently Section 136), should be entitled to receive, automatically, compensation, on the same terms as prisoners found later to have been wrongly convicted. 11. Access to medical records should become unimpeded by the present bureacratic rigmarole which, under the guise of “policy”, NHS trusts promulgate nowadays, apparently calculated as this rigmarole is to obstruct such access. 12. Force and restraint should be confined strictly to cases where the patient is a danger to himself and others. It should not be used merely to inflict, upon a placid, rational and articulate patient, treatment which the patient expressly declines to receive. Methods of “restraint” that continue to inflict physical pain upon patients who have long since ceased to resist that restraint should be abandoned and outlawed. The aggressive hitting or punching of patients on the part of nursing staV should stop. The exposure of patients’ buttocks, for the purposes of drugging them intra-muscularly, in front of other patients and/or visitors to the ward, should also stop. 13. The present practice (reminiscent of techniques of psychological torture used on Robben Island) should be outlawed, whereby a patient can be given a date and time for a tribunal hearing, weeks or days ahead, and informed only hours or minutes before the scheduled tribunal hearing was due to take place that the hearing has been cancelled, dashing cherished hopes of freedom. Escalative changes to, or commencement of medication should not be made during the period just before a tribunal hearing, rendering hitherto coherent appellants unfit to argue their cases alertly at tribunal or other hearings at which their very liberty is at stake. 14. The outrageous practice recently allowed by the Royal College of Nursing, of adding medication to food, or otherwise administering medication clandestinely, should cease. 15. Mental patients should no longer be held in eVective solitary confinement, nor deprived of recreation (such as the playing —quietly and skillfully—of musical instruments which they have brought to hospital at their own expense), or prevented from communicating with the outside world, or forbidden to receive “unapproved” visitors, or to read books, or to watch television. Politically correct persecution of perfectly legal tobacco use in mental wards should also cease. 16. Opportunities should be mandatory for mental patients to attend acts of religious worship consistent with their own expressed religious beliefs. Access on demand to ubiquitously available sacred texts such as the Bible and the Koran should become obligatory. Medication so severe that it impedes the ability of patients even to read sacred texts (or other books) at all should be banned. Joint Committee on the Draft Mental Bill: Evidence Ev 777

17. The occasional need which my wife experiences to prevent an adamant elderly confused resident of the private care home where she works from leaving the premises distresses her, has no legal basis, and leaves my wife vulnerable to a charge of false imprisonment. The present opportunity to address this defect in the law should be addressed too. I am happy to give oral evidence supplementary to this written submission. October 2004

Memorandum from Mrs C J Hillman (DMH 80) I have presented my evidence as a mother of a young lady at present under section of the Mental Health Act. I am the mother of a young lady, of 34 years, under Section of the Mental Health Act. Admitted in March 2004 to Burston House Hospital, Burston, Diss, Norfolk. A Special Needs Psychiatric Clinic. I present this memorandum as evidence and hope our experience will be beneﬁcial to the wording/working of the new Draft Bill My evidence includes a brief history of my daughter’s condition, plus reasons of great concern about the new Draft Bill including; 1. Compulsory Treatment 2. Who Is Involved? 3. Treatment Safeguards 4. Aftercare 5. The Tribunal System 6. Electro Convulsive Therapy (ECT)

Brief History Being born with brain damage due to a lack of care during labour in 1970. My daughter has complex disorders including Learning DiYculties, Autism, Turrets Syndrome, Extreme Anxiety Behavioural Problems, CBS etc Despite this, she has spent the majority of her adult life working positively within the community on work schemes, voluntary work, college courses, etc.Her most recent work involves research work with Norah Fry Research Centre, University of Bristol, including presenting a Paper at a Conference in Rome, September 2003. Since the age of 17 she has lived in a mix of Social Services Residential Homes. In the early 1990’s becoming a member of a local charity enabling people to have their own homes.In 1925 becoming a tenant with two friends, in the charity’s ﬁrst home. During the week of moving my daughter suVered the sudden and unexpected loss of her father aged 51, with whom she had had a very close relationship. Her grief was extreme, suVering periods of challenging behavioural problems, resulting in the need to be admitted voluntarily to receive treatment, at a Special Needs Unit. Owing to time taken for treatment she was forced to give up the tenancy to her home. On release she returned to a residential home. She was very unhappy, depression became an issue. The loss of her father became too much to cope with. In 1999 she suVered another period of aggressive and challenging behaviour. She was admitted voluntarily for treatment at a clinic in Bristol. Staying for 11 months she became “homeless”. The only placement available was in South Wales, 210 miles away. Nowhere could be found in her area near her family. This placement worked well, she was happy and enjoyed the company and was a positive inﬂuence to the home. After three years the company re-arranged its policy. Their home was changed towards “people with higher dependencies”. All residents were oVered accommodation with staV support, in a new complex of bed sits. My daughter declined and requested a return to her local area. During October 2003, with the help from a “Circle of Support”, she was oVered with a Supported Living agreement, the tenancy of maisonette in Bath. In January 2004 she recognized she was becoming unwell and asked for help. Arrangements were made for a monthly meeting with her psychiatrist. February 2004 while her support staV were taking her for an appointment, my daughter became distressed, and aggressive towards her staV. The psychiatrist had no option but to call the police. During the next eight hours while my daughter was in a police cell, she was sectioned and found the nearest bed available, four hours drive away.

1. Compulsory treatment (a) Because my daughter has a complex mental history due to birth damage she will always, according to the new Draft Bill suVer from a “mental disorder”: As the new deﬁnition will not be based on causes (illnesses or disorder) but on eVects (mental distress or abnormal behaviour). Ev 778 Joint Committee on the Draft Mental Bill: Evidence

(b) It makes her very vulnerable in the future to being given Compulsory Treatment unnecessarily, even if she isn’t a danger to the public. (c) It is very worrying that she will not be given the same chance as any other member of the public, (without a mental disorder) to suVer from depression, without the strength of this new Act being put into action.

2. Who is involved? (a) If my daughter had had more robust support at the stage she identified her need; if as her mother/ carer I was able to advise; if past history was made available quickly; stress and money would have been saved. (b) Before commencement of treatment, contact with family, carers, professional having knowledge of my daughter’s needs, would have been beneficial to the consultants diagnoses. The new draft bill does not require this. In my opinion it is essential. (c) Psychiatric Consultants find my daughter’s symptom’s diYcult to diagnose, anyone less qualified may misdiagnose.

3. Treatment safeguards (a) If she requests help and receives treatment voluntarily as before, or is under “compulsory treatment” it would not have to be a “therapeutic benefit to her”, but “appropriate in the patient’s case”. This can lead to very dangerous consequences as recently in my daughter’s case, after being sectioned in February 2004, the drug Haloperidol was administered. This drug had severely paralysed my daughter in 1987. At that time an emergency anti-dote was administered, the GP wrote a cover note to advise any further treatment must NOT include Haloperidol. (b) This information was NOT made available for the consultant during my daughter’s most recent admission. (c) Recent use of Haloperidol continued, in spite of written evidence from me and concerns from nursing staV. The side eVects were so acute and distressing, making no improvements to my daughter’s symptoms, after five months it was withdrawn. In no other situation would a patient be treated with drugs that had such negative side eVects. (d) People with mental health must have the same rights as anyone else receiving treatment. It must be for their benefit. The new Draft Bill does not protect the patient from this happening. (e) An “Advance Directive” for the person whilst in good health, “On beneficial treatments along with treatments that should not be used”, should be included in a Continuing Care Plan. The Draft Bill should cover this area to uphold the patients Human Rights. At present under the new Draft Bill a person’s rights to this would be taken away, if they receive Compulsory Treatment.

4. A right to aftercare (a) My daughter and her Support group had worked closely with Social Services devising a Crisis Management Plan before her latest move. Due to lack of funding/local services this was unable to follow through successfully, at the time of need. My daughter and myself believe this is the way forward, supported with better funding. (b) My daughter has spent more time than necessary in hospital after receiving treatment. Mostly due to the fact there is nowhere suitable for her. The South West in particular, is infamous for its lack of suitable accommodation. Each time and without choice she has only been given one option. Each time away from her family, out of her local area. (c) She now has accommodation. With suitable support, with an Aftercare Programme adequately funded she could have a successful future, contributing to society. (d) Under the new draft Bill, the right to free aftercare is very restricted and lasting only six weeks. My daughter’s history would prove this woefully short of her needs, months are often necessary, and surely individual cases need individual assessments, as an element of the Aftercare Programme. (e) Available, suitable Housing has always been a major stumbling block to the advancement of mental health/special needs patients back into society. Every consideration should be made in this area to the new draft Bill, less restrictions on timing/funding, not more. Joint Committee on the Draft Mental Bill: Evidence Ev 779

5. The tribunal system (a) My daughter has been detained since 20 February 2004. A tribunal was requested by my daughter, after three months this was not followed through for reasons my daughter was not informed of. A hearing is in the process of being arranged. To date (eight months after admittance), my daughter nor myself have been given a date. I have contacted various people to find out my rights to be represented, whether I have any input to the hearing etc Lack of information has caused me extra distress. The social worker has taken a statement from me, of my daughter’s background. Her report had to meet a deadline. What about mine? (b) Due to the high dosage and mix of drugs my daughter is at present prescribed, her ability to understand/contribute to the hearing will be minimal. “Easy Speak Text” information should be made available for anyone if beneficial. Everyone needs access to an Independent Advocacy Service, allowing time to build confidence before the hearing, to ensure their rights are upheld.

6. Electro Convulsive Therapy (ECT) (a) The fact the new Draft Bill allows this treatment in an emergency, without patient’s consent is very worrying. New evidence suggests more research should be done into this very controversial treatment. No other patient in the NHS would be forced to have unproven treatment. Mrs C J Hillman

Memorandum from King’s College London (DMH 81)

King’s College London is a multi-faculty college of the University of London comprising 10 schools, six of which are health-related. These include nursing and midwifery, the Guy’s, King’s and St Thomas’ School of Medicine, and the Institute of Psychiatry. The last is the largest postgraduate institution in Europe dealing with research and teaching in mental health, and has a strong international reputation for academic excellence. Mental health practice has changed significantly over recent decades. The government has made major strides in supporting improvements in mental health services, through positive policies and substantial investment. Reform of mental health legislation to support these developments is warranted. A number of innovations in the Draft Mental Health Bill are welcome. These include the provision of advocacy, the role of Mental Health Tribunals in determining that involuntary treatment is warranted, the ability to appoint a “nominated person”, and the attempt to create a single assessment process. However, the fact that a Mental Health Alliance, drawing its 60 or so members from almost every stakeholder group involved in mental health care (organisations representing patients, carers, doctors, nurses, lawyers, social workers) has come together in criticism of many provisions in the 2002 Bill and this one, indicates that there are serious questions that must be addressed. We find it diYcult to believe that legislation that does not command the confidence of any group to be involved in its implementation can work in practice.

1. Is the Draft Mental Health Bill rooted in a Set of Unambiguous Basic Principles?Are these Principles Appropriate and Desirable?

1.1 Core principles defining the purpose and framework of the legislation are not stated on the face of the Bill. The major unstated principle is that “risk of harm”, especially to others, outweighs health benefit to patients. How this gains expression through the Bill is discussed below. 1.2 Three less general principles are stated (least restriction, patient involvement in decision-making, and fair and transparent processes) but these are not internally consistent with a number of clauses in the Bill and can, in any case, apparently be “disapplied” to categories of patient by regulation. 1.3 The Richardson Expert Committee (1999), set up by the government to scope changes to mental health legislation, recommended a number of underlying principles, which in our view accurately reflect the aspirations of mental health practice today and which are consistent with government mental health policies (for example, the National Service Framework for Mental Health). The Richardson Committee proposed: non-discrimination, respect for patient autonomy, informal care wherever possible, least restrictive alternative, consensual care, reciprocity, and respect for diversity. We commend these principles. Ev 780 Joint Committee on the Draft Mental Bill: Evidence

2. Is the Definition of Mental Disorder Appropriate and Unambiguous?Are the Conditions for Treatment and Care Under Compulsion Sufficiently Stringent?Are the Provisions for Assessment and Treatment in the Community Adequate and Sufficient? 2.1 The definition of “mental disorder”, as well as being circular, is extremely broad. It would include all mental disorders listed in the commonly used classifications of diseases (including, for example, the addictions), as well as neurological disorders aVecting the brain (for example, multiple sclerosis). Other diseases indirectly aVecting the brain through, for example, metabolic or toxic eVects would also be included. We do not believe this is the intention. 2.2 A broad definition would perhaps matter less if the conditions for compulsion were tightly drawn, as proposed, for example, by the Richardson Committee. Otherwise it is essential that exclusions be clearly stipulated, or the scope for compulsion is widened beyond that in any jurisdiction we know. The exclusions should be the commonly stated ones—that persons should not be construed as suVering from a “mental disorder” solely by reason of: cultural, political or religious beliefs; sexual behaviour; dependence on drugs or alcohol; and, commission, or likely commission, of illegal or disorderly acts. 2.3 The “relevant conditions” setting out the criteria for compulsory treatment cause us major concern. In association with the broad definition of “mental disorder”, and the similarly broad definition of “medical treatment” (which includes simply “care” or “education or training in work, social or independent living skills”), the scope for compulsion becomes extraordinarily wide. Furthermore it appears that the definition of “medical treatment” is in part dependent on regulatory powers which will define the requirements for approval of professionals to become “clinical supervisors”. This leaves too much undefined in the Bill. 2.4 Space does not permit a detailed discussion of our concerns about the “relevant conditions”. The most serious matters are: the criteria for involuntary treatment when there is a risk of harm to others; the absence of a requirement that the proposed treatment have therapeutic benefit; and the absence of a criterion of impaired decision-making ability. 2.4.1 The “third relevant condition” states that protection of the patient should be on the basis of serious self-harm or serious neglect of his health or safety. Yet the “protection of others” is not qualified by a phrase containing the word serious. A diVerence in threshold for compulsion is thus implied. This conclusion is reinforced by Clause 9(7) which states that the fourth condition (that medical treatment cannot lawfully be provided without the patient being subject to these provisions) is waived when there is a “substantial risk of serious harm to other persons”. So the risk of harm to others is to be divided into two classes, the former (for the “protection of others” in the third relevant condition) being less than “substantial” and “serious”. Thus the “protection of others” applies to risk which may be substantial but not serious, or serious but not substantial, or neither serious nor substantial. It is thus very unclear what is meant by the “protection of others” and what others are to be protected from. Does this mean protection from annoying behaviour, or the anxiety induced by the presence of a mentally ill person nearby? A related point is the inaccuracy in predicting infrequent events, such as acts of major violence. This is not simply a question of poor predictive tools, but reflects inherent statistical limitations on the prediction of rare events. Applying even the best of our current predictive instruments will result in very large numbers of “false positives”, people predicted to be violent, for example, who would not have been3. The likely impact on black and ethnic minority patients, who are already grossly over-represented among patients subject to compulsory detention, needs also to be born in mind. 2.4.2 The waiver in Clause 9(7) of the requirement that no lawful alternative exists to the use of compulsion (the commonest alternative being the patient”s acceptance of informal treatment) is a radical departure in mental health legislation, whose underlying philosophical basis has not been discussed. It is contrary to the “least restrictive alternative” principle. Our concerns are further heightened by our understanding that the eVect of Clauses 16(4) and (5) when read together with Clause 9(7) is to remove any discretion in relationship to the waiver. If the patient is judged to pose a “substantial risk of serious harm”, he or she must be formally compelled, not may be compelled, even when he or she is actually requesting treatment. This will prove a very eVective means of deterring patients from seeking help from mental health services. The health benefit to the patient, in our view the primary purpose of mental health legislation, threatens to be subverted by the primacy of avoiding risk to others. 2.4.3 Yet a further problematic consequence of the concern with risk to others is the granting of powers, in civil cases, to Mental Health Tribunals to reserve to themselves the decision to grant leave to or to discharge a patient. This is a form of “restriction order” like that used in the forensic arena. It means that the clinical supervisor”s decision that it is appropriate for the patient to now be treated informally can be overriden by the Tribunal. We cannot see a justification for a restriction order for civil patients. It will further reinforce patients” perceptions of the services as coercive. 2.4.4 The fifth condition requires that medical treatment be available which is “appropriate in the patient”s case, taking into account the nature or degree of his mental disorder and all other circumstances of his case”. “Appropriate” is ambiguous and has no necessary connection with therapeutic benefit. When read together with the broad definition of “medical treatment” it is unacceptable. We strongly recommend that the treatment must have therapeutic benefit.

3 See, for example, Szmukler, G (2003) Risk assessment: “numbers” and “values”. Psychiatric Bulletin 27, 205–207. Joint Committee on the Draft Mental Bill: Evidence Ev 781

2.4.5 There has been much debate about the place of “capacity to make treatment decisions” in mental health legislation4. We do not intend to rehearse the arguments here, but our conclusion is that if one accepts the principles of non-discrimination and patient autonomy, the case in favour is compelling. There is growing support for capacity-related criteria in many circles and it is appearing in legislation elsewhere. We see, however, that mental health legislation which is purely capacity-based may be unacceptable in this country. But we strongly recommend an additional relevant condition stating the requirement that “the patient has impaired decision-making capacity in relation to the treatment”. This would signiﬁcantly assuage fears about the breadth of the scope of the Bill. It would also, in relation to an interest in the patients” own health and safety, reduce the emphasis on the seriousness of risk to self in the third relevant condition. It would be preferable if patients could be treated if they suVered from impaired decision-making capacity, and treatment were available that was of therapeutic beneﬁt having regard to all of the circumstances of the case (thus approximating the “best interests” concept in the Capacity Bill).

2.4.6 We know there are concerns about the practicality of a capacity criterion. We now have research evidence from the Institute of Psychiatry that high levels of agreement can be achieved between clinicians on whether capacity is present or not in patients recently admitted to hospital5. We have also found in a series of 112 patients recently admitted to the Maudsley Hospital that 44% lacked capacity. Of those admitted on a section of the Mental Health Act, 85% lacked capacity, showing a close relationship between the use of the Act today and patients” capacity. However, the 15% of compulsory patients who did retain capacity expressed high levels of “perceived coercion”6. The issue of “ﬂuctuating capacity” is also commonly raised. We do not have strong research evidence on this, but it did not emerge as an issue in the research mentioned above. The ratings by two clinicians on assessments carried out on separate occasions 1 to 7 days apart were highly correlated.

2.4.7 There is an argument that a capacity-based criterion in cases of the highest grades of risk to other persons is not appropriate. In our view it is very unlikely that a patient would be considered to pose this level of risk without having committed a serious oVence—past behaviour is the best guide to future oVending. We suggest that this group of persons is best dealt with under the forensic parts of the Bill, where decision- making capacity might be regarded as taking second place to the need to protect of the public. Such patients are far removed from those who are seen in everyday practice. An alternative approach is the one recommended by the Richardson Committee in its suggested criteria for compulsion, where a patient retaining capacity could nevertheless be treated if there is “a substantial risk of serious harm to the health or safety of the patient or to the safety of other persons if s/he remains untreated, and there are positive clinical measures included within the proposed care and treatment which are likely to prevent deterioration or to secure an improvement in the patient”s mental condition.”

2.5 The provisions for assessment and treatment in the community cause us considerable concern. Given the broad and ambiguous criteria for “mental disorder”, “medical treatment” and the “relevant conditions”, and the fact that the ﬁnite number of hospital beds will no longer provide a “ceiling” on the number of people treated on a compulsory order, we can envisage the potential for a large increase in patients on orders. This may be further promoted by the risk-averse society in which we live today, and the consequent pressures on clinicians not to take chances. Clinicians who “get it wrong” may be subject to punishing responses from their employing organisations, NHS authorities and the media. It is thus essential that the criteria for compulsion discussed in 2.4 are robust. Unless they are tightly drawn, it may prove almost impossible for a patient to ever come oV a community order. We also support the view that community orders should only be used after a period of inpatient treatment.

2.6 The Committee should also be aware that the research evidence that community treatment orders are eVective in reducing relapse and readmission to hospital is limited. High quality community services are essential if there is to be a beneﬁt, but the better the services the less likely will be the need for community orders. We have research evidence that patients likely to beneﬁt most in terms of preventing relapse and readmission will comprise a relatively small group of “revolving door” patients, who presumably suVer from a psychosis which is responsive to treatment with medication. The range of treatments that can be compelled are limited, injectable medications being the most obvious. Some patients respect community treatment orders and will comply (sometimes because they have false ideas about what will happen if they do not). For those that do not, the consequences of non-compliance are important. Given the endemic shortage of psychiatric beds, readmission of a patient who has not complied with his or her treatment conditions but is not seriously symptomatic is unlikely. A brief admission for an injection would be an option, but may be diYcult to arrange in practice. If restraint is used, a period of close observation will be required.

4 See the Expert Committee (Richardson) Report (1999); Szmukler & Holloway (2000) Mental Health Law: Discrimination or Protection? Maudsley Discussion Paper No 10 (available at: http://admin.iop.kcl.ac.uk/maudsley-publications/maudsley- discussion-papers/mdp10.pdf) 5 Cairns et al, manuscript in preparation. 6 Cairns et al, manuscript in preparation. Ev 782 Joint Committee on the Draft Mental Bill: Evidence

2.7 We are concerned that the provisions we have discussed in this section make the Bill unnecessarily coercive, and that in doing so, the outcomes for patients may be the opposite of what is intended. Patients will be deterred from seeking help from mental health services and bad outcomes, both in terms of harm to patients or to others, will be more likely rather than less likely.

3. Does the Draft Bill Achieve the Right Balance Between Protecting the Personal and Human Rights of the Mentally Ill on One Hand, and Concerns for Public and Personal Safety on the Other? 3.1 Our responses to question 2 show that we do not believe the balance to be right. 3.2 We note also that the powers of the nearest relative to object to admission, or to discharge a patient, have been lost. The nominated person or advocate will not be available to assist the patient at an early stage in the proceedings. There are to be signiﬁcant limitations on who can become a nominated person. 3.3 Incorporating the Mental Health Act Commission into the Healthcare Commission risks losing its special focus on compliance with the rights of patients detained under the Act.

4. Are the Proposals Contained in the Draft Mental Health Bill Necessary,Workable,Efficient, and Clear?Are There Any Important Omissions in the Bill? 4.1 The proposals are certainly not clear. We have found it impossible to understand many parts of the Bill. An example, which may be of signiﬁcance in interpreting the criteria for compulsion, is a sub-clause of Clause 9: The Relevant Conditions. Despite many re-readings and consultation with others, we cannot determine what 9(8) means. 4.2 If those who are expert at understanding legislation ﬁnd much in this Bill that is incomprehensible, how can we expect it to be understood by those who will later be charged to implement its provisions, or by those who will be aVected by them? 4.3 We have serious doubts that the Tribunal system as planned will prove practical. This is related to workforce issues, which we discuss later, but also to the new range of issues Tribunals will have to consider. These include the quality of care plans and the range of restrictions on patients” behaviours that they may be asked to endorse. It also seems that Tribunals will lose some of the discretion they have under the 1983 Act. If the relevant conditions continue to be met, it appears that a patient cannot be discharged from their treatment order. 4.4 It is not clear from the Bill how a diVerence of opinion about the care plan between the clinical supervisor and the clinician from the Expert Panel is to be resolved. The Tribunal is left with the problem of how to decide, and this will require negotiation with the clinical supervisor. This seems very ineYcient compared to the “second opinion approved doctor” (SOAD) system under the 1983 Act.

5. Is the Proposed Institutional Framework Appropriate and Sufficient for the Enforcement of Measures Contained in the Draft Bill? 5.1 Setting up the advocacy service will be a huge challenge. 5.2 “Clinical supervisors” will apparently be drawn from a number of professions including psychiatrists, psychologists and nurses, and perhaps others. New ways of working will be required both within professions (for example, psychologists do not have a tradition of out-of-hour cover arrangements) and across professions (for example, a psychologist clinical supervisor having some degree of responsibility for the medication being prescribed for his or her patients, or for the work of junior medical staV under his or her direction). An expert panel clinician may be from a diVerent profession than the clinical supervisor; there may thus be disputes over their respective competencies in relation to certain treatments.

6. Are the Safeguards Against Abuse Adequate?Are the Safeguards in Respect of Particularly Vulnerable Groups, for Example Children,Sufficient?Are there Enough Safeguards Against Misuse of Aggressive Procedures such as ECT and Psychosurgery? 6.1 It is curious that capacity and consent become important in relation to ECT and psychosurgery but play no role in other parts of the Bill. This further points to a gap in the “relevant conditions” that we have mentioned in relation to the value of a capacity-based criterion (see 2.4.5 to 2.4.7). Joint Committee on the Draft Mental Bill: Evidence Ev 783

7. Is the Balance Struck Between What has been Included on the Face of the Draft Bill, and What goes into Regulations and the Code of Practices Right?

7.1 As we have stated under Question 1, the basic principles should be on the face of the Bill and not in the Code of Practice. If they are to be in the Code of Practice, they should be available for comment now.

7.2 Regulatory powers are proposed for some fundamental issues under the Bill—for the deﬁnition of who may be a “clinical supervisor”, and thus what constitutes “medical treatment” and “medical disorder”, and thus the interpretations of the “relevant conditions”; categories of patient who may be placed on a community order directly from a community assessment; and, categories of patient who will be subject to civil restriction orders (2.4.3 above). This is unacceptable in relation to such basic powers.

8. Is the Draft Mental Health Bill Adequately Integrated with the Mental Capacity Bill (as Introduced in the House of Commons on 17 July 2004)?

8.1 There is serious scope for confusion. We have found no mention of the Capacity Bill. Yet, despite two totally diVerent approaches to the treatment of patients identically deﬁned in both Bills (having “an impairment of, or a disturbance in the functioning of the mind or brain”), no attempt has been made to decide when one or the other legal regime is appropriate. There are substantial areas of overlap where either the Mental Health Bill or the Capacity Bill could apply. An example is under Clause 9, the “relevant conditions”. The fourth condition states that if treatment can be provided “lawfully” without invoking the powers of the Bill, then these should be used. For those patients with mental disorder who lack capacity, the use of the Mental Capacity Bill would be lawful. Thus, one interpretation of the scope of the Mental Health Bill is that it applies only to patients who retain capacity. This is probably not what is intended. There will be a major challenge in deﬁning under which of the two regimes patients suVering from impairments or disturbances in the functioning of mind, which are conceptually identical, should be treated—and why.

9. Is the Draft Mental Health Bill in Full Compliance with the Human Rights Act?

9.1 We do not have the expertise to answer this question, nor have we had suYcient time to consult with those who do. However, it appears likely that there will be many challenges to those provisions that could lead to what might be construed as arbitrary or preventative detention. The proportionality of the provisions in the Bill in relation to the need to “protect others” could also be disputed.

10. What are Likely to be the Human and Financial Resource Implications of the Draft Bill? What Will Be the Effect on the Roles of Professionals?Has the Government Analysed the Effects of the Bill Adequately, and will Sufficient Resources be Available to Cover any Costs Arising from Implementation of the Bill?

10.1 It is likely that the use of compulsory powers will increase. Data concerning this are diYcult to find. Researchers at the Institute of Psychiatry have been involved in analyses of the Victorian (Australia) Psychiatric Case Register. Here we find that between 1993 and 2000 the number of patients treated on community treatment orders rose from 1,255 to 2,260 (an 80% increase), and numbers admitted to hospital involuntarily rose from 5,279 to 7,736 (a 47% increase). This was a period when community treatment orders, were becoming established in Victoria. The Annual Reports of the Mental Health Review Board in Victoria show an increase in Tribunal hearings consistent with these increases, from 3,535 in 1992–93 to 6,244 in 2002–02 (a 70% increase). About 70% of hearings involved cases on community treatment orders. There is a diYculty, however, in interpreting these data. There was a 40% increase in total admissions during the period of 1993 to 2000, a period when the number of beds in the state reduced significantly. Nevertheless the increased use of compulsion outstripped the increase in admissions and Mental Health Review Board hearings have continued to increase year on year.

10.2 These statistics suggest there will be a signiﬁcant increase in the use of compulsion in this country with serious implications for human resources. These will be further exacerbated by the increased complexity of matters to be considered by Mental Health Tribunals and members of the Expert Panel. We thus have doubts whether the Bill could be implemented in its current form. October 2004 Ev 784 Joint Committee on the Draft Mental Bill: Evidence

Further memorandum from G C A Talbot (DMH 82)

Public Order Trumps Personal Health I have been interested in mental illness for over three decades and replied to Reform of the Mental Health Act 1983.7 So I ordered the Draft Mental Health Bill with its Explanatory Notes and Consultation Document to which I reply after some general comments. What a disappointment! While patients want prompt access to treatments, especially psychological ones, and doctors and voluntary groups advocate less compulsion, the Draft Bill oVers mainly medical treatments on the basis of summary assessments, which patients could be compelled to take when deemed dangerous even though without hospital. To satisfy the Human Rights Act, medical courts have been devised to authorize compulsion despite the inevitable delays and costs and the extra work for senior practitioners. And I cannot accept the Draft Bill’s repeated assertions that compulsory treatment will reduce danger when diagnosis and treatment depend on self-reported symptoms and on willing support for often painful therapies. The definition of mental disorder in clause 2(6) is so broad that anyone could be included while the definition of medical treatment in clause 2(5) allows anything an approved clinician could prescribe. These two clauses permit an unscrupulous government to use medical cover to drug into submission anyone whose behaviour it finds threatening. If society must control dangerous persons (and this will always be a dangerous process), it should hold them safely if they are dangerous to themselves and securely if they are dangerous to others. Then appropriate treatments should simply be oVered to them. Distinguishing between badness, madness and dangerousness allows punishment for proven badness to be promptly determined, treatments to be willingly accepted as trust develops and causes are understood8 and physical restraints to be humanely applied if necessary for safety and security. Then much else helpful can be deployed voluntarily. The Mental Health Act 1983 has been much criticized for failing to confine psychopaths who are manifestly dangerous but who do not appear mentally ill. Government claims the broader mental disorder will include them by avoiding reference to mental illness but its conditions for compulsion still require treatability which implies illness unless any action can be called treatment! With my distinctions, psychopaths can be held because they are judged dangerous while treatments for them are explored with them by practitioners subject to consent. My reply to the recent consultation on psychopaths titled Weak on Fundamentals is dated 10 April 2000.9 Rather than introducing compulsory treatment for those in the community, I urge government to phase it out of hospitals. And it should not introduce it into prisons. If dangerous people are to be held for long periods, authorization should be by conventional courts sitting in public. Then the restraints for the short periods allowed to hospital staV could be relatively simply authorized. Curbing dangerousness requires the threat of adequately deterrent punishment; for example, the death penalty for a second grave crime. Thereby high security prisons and hospitals would be safer. Publication of the Draft Bill has evoked powerful criticisms in the Guardian, several from psychiatrists and one from a mental health lawyer. The Appendix10 contains brief extracts from eight articles and letters which I commend. I could have easily cited more! Below I comment briefly on Issues for Consultation. I urge government not to increase inspection or to introduce advocacy until it has rethought the fundamentals. Surely, with voluntary treatment, a second opinion would suYce? I want to restore the age of majority to 21 and introduce youth between 17 and 21. A youth could make his own decisions providing he had consulted with one of his parents. Likewise, parents should decide for their child providing they had consulted with him. And I am even more reluctant to allow parents’ decisions to be over-ridden than I am to allow those of mentally ill adults. I would keep existing arrangements for protecting staV from compulsorily detained patients. I would remove the specific exclusions. I prefer sharing information to defending privacy but if this causes data to be withheld, it could reduce the information available. I don’t know where the optimum lies. Prisoners should not have the same rights as those at liberty. But treatment for mental illness may reduce crime so is doubly welcome.

7 Not printed. 8 See introductory paras of this memorandum. 9 Not printed. 10 Not printed. Joint Committee on the Draft Mental Bill: Evidence Ev 785

I oppose restricting letters between prisoners and others because they might be upset by them. Letters to a reluctant recipient should be marked with the sender’s name and prison so the recipient can destroy them unread: And in exceptional circumstances, a letter whose content might severely upset a prisoner could be delayed and presented more opportunely. But being denied important information can be upsetting too! One person tribunals to determine trivial matters sounds like a contradiction in terms resulting from a reluctance to trust people to do their jobs! G C A Talbot October 2004

Memorandum from Carol Jeavons (DMH 83) I have been a carer of my son who developed a serious mental illness over eight years ago, who at the time was in his early twenties. As a carer I have seen the consequences of no care, bad care, and good care and treatment. I have used my experiences and those of others, to inform my views on the Bill and I have read all the Government’s publications—the Plan, Mental Health Framework, Guidance Documents etc., and the proposed Mental Health Bills. My son has had experience of Acute services under section and voluntarily, of no services in the community, and of good community services, etc I have seen how local services at PCT and county level have been developing, and the proposals for their future developments. My views are based on the above. (Please note that having managed, eventually, to get a change of psychiatrist a second opinion, and intensive input from other professionals’ that our son has now achieved, eight years on, a good level of stability, a job, and hopefully a fully integrated normal life in the future. It took good care and treatment to achieve this, not the containment policy of this Bill.) This submission is based on the ﬁrst few pages of the booklet Improving Mental Health Law, owing to length of Bill, summarising what is said to be in place and what is being proposed, and the consequences of what is proposed. 1. The increased additional investment has not come through to mental health services nor will future money. The proposals in the Bill will legitimise the rationing of services and the charging for services. 2. Some limited new community services have come into place, but the staV and the money have been taken from existing resources—future staV and resources for community services still required will also have to come out of existing resources. 3. The mental health law will not be improved because: 3.1 It will criminalise those users who have never committed any crime. 3.2 It will criminalise carers who refuse access to their home for the forceable treatment of the user/child. 3.3 It will not protect patients from harm, as they will abscond through fear, disengage, and because patients will have no right to good care and treatment prior or after section. Patients will also be treated prior to any decision making/discussion with carers or other advocates. 3.4 It will not protect patients from harm as their Advance Directives need not and will not be complied with. 3.5 It will not protect others as patients will abscond or will not access treatment if they know they are getting ill. (40 persons are killed a year by the mentally ill, 1,000 patients die a year who have had contact with the services in that year. Greater numbers of killings are committed each year by partner on partner (three times the level) and by black on black, but no treatment is proposed to be forced on them, only the sick, the mentally ill.) 3.6 It will not promote social inclusion as all will view those sectioned in the community as dangerous. (when a user is very ill it is likely that their symptoms, viewed by all, will enhance the stigma.) 3.7 It will not raise the threshold of harm to the users as 95% will not be able to access good, any, treatment. The Bill is based on what is available, not required. 3.8 It will not raise the threshold of harm as users and carers will have to pay for treatment six weeks after discharge from section. They cannot aVord it—section and forced treatment will be the only option, which will not be based on recovery but on containment. 3.9 It will not provide new support for patients because there is no protection in place to stop a psychiatrist from deciding that the carers should not be the Nominated person. Nominated persons cannot care/treat the user 24/7 as many carers do. There is nothing in the Bill to protect the Nominated person from the psychiatrist requesting something with which the Nominated person disagrees. 3.10 It will not increase choice for patients under compulsion as there will be no good choices available— it will be; have an injection, forceably, every three months, with medication which may not suit your condition; make yourself available for blood tests etc otherwise you could die; come to outpatients even Ev 786 Joint Committee on the Draft Mental Bill: Evidence

though the medication will ensure you have no motivation etc; go into hospital if there are any beds available; further section/forced unsuitable treatment, or nothing. There is no choice in the Bill of good care/ treatment prior, to prevent section, during, or after section, just forced treatment. 3.11 Only some patients will be well enough and only some carers deemed compliant enough by the psychiatrist will be involved in decision making, and only after treatment has already started. 3.12 There is no right to good treatment, a second opinion, a change of psychiatrist, only treatment based on fear, and containment.

The Consequences of Implementing this Bill

4. Users 4.1 They will not present themselves to the services when getting ill. 4.2 New users will not present themselves because only treatment by force will be available. 4.3 Will increasingly become antagonistic to all professionals even if they are the good ones. 4.4 Will become increasingly fearful leading to absconding, increased suicides, self-harm and disengagement from the services. 4.5 Will move to Scotland and go to law to ensure that they are not transferred back to England for forced treatment. 4.6 Will never recover and will be on section for the rest of their lives.

5. Carers 5.1 Carers/parents, will be deemed unsuitable to be nominated persons. 5.2 May sue Nominated person if the user dies from not receiving 24/7 good care and treatment. 5.3 May be imprisoned or ﬁned when they refuse access to their homes to the mental health police. 5.4 May refuse to have users home and accommodation will be required for the user. 5.5 Will have no right to ask for an assessment of the user when he/she may be getting ill, only if it is considered “reasonable”. 5.6 Will never be able to have work outside the home, will never pay taxes, will be expected to house the user for the rest of their life, will never have a normal life again. In order for the user to get any treatment, housing, etc they will have to refuse to have the user back home.

6. Trusts: who provide the services 6.1 The good mental health professionals will leave the service—many ASWs have already left. 6.2 StaV turnover and sickness rates will continue to increase. 6.3 Bed use has increased in some units to 107% occupancy, over the last three years—the Bill will require more units and beds. 6.4 Will eventually have no services or staV left except for those on section under this Bill. 6.5 StaV will have no options open to treat the individual based on the needs of that individual.

7. PCTs 7.1 Some PCTs will not provide suYcient money to the Trusts for the implementation of the Plan, the Framework, etc, or the Bill. 7.2 Some PCTs will give good treatment for the few, whilst other PCTs, a few miles away, will have nothing. 7.3 Complaints etc will increase at all levels. 7.4 GPs, who the Government recognises cannot even diagnose 75% of those with depression, 50% of those with severe depression and 25% of those with psychosis, will be expected to look after 95% of the mentally ill, leading to a worsening of every aspect of care and treatment, jeopardising the safety of users and all others, and increasing suicide and death rates of the users. Joint Committee on the Draft Mental Bill: Evidence Ev 787

8. Police 8.1 Will have to enforce the Bill and their status and respect will fall substantially, as again and again it is reported that they have broken down doors and into houses, to take a patient to hospital for the three monthly injection. 9. To give an understanding of what can and does happen in practice at present, and what will be made worse under the Bill, the Case Studies as set out under Chapter 2 have been used, and some questions posed, the answers/the safeguards, to which have not been covered in the Bill. 9.1 Study 1—it is more likely that under the new Bill mental health staV will not know that D is getting ill as there is no duty for treatment to be provided prior to section; the neighbour may ring someone, but no one will come out as no staV or treatment is available, or it is felt the request is unreasonable; the user will deteriorate; the police will come out and the process of forced treatment will begin. Alternatively, one part of the mental health service may inform another that someone is getting ill, but as there is no duty in the Bill for one professional to take any notice, or action, of another’s concern nothing will be done until the crisis occurs. 9.2 Study 2—what necessitated B being brought into hospital and who brought him in and how long was he left by the services before going to hospital? Why wasn’t his illness picked up sooner? Where were the services in the community? 9.3 Study 3—why has P got to go to hospital and why is there no duty on the professionals to visit P at home? If P does not turn up is anyone going to visit him to see if he is safe and well? Where is the duty for ongoing care after section in hospital or in the community? 9.4 Study 4—where is the duty in the new Bill for liaison with other services to ensure the welfare of all aVected by the illness eg the children. How can you stop psychiatrists giving ECT when they say it is an emergency and it is not, where is the deﬁnition of “emergency”? 9.5 Study 5—what happens if there is no/insuYcient prison in-reach services? if the carer does not wish to have N returned home? 10. The Bill appears to have been designed to give as little good care and treatment as possible, rationing what is available, whilst criminalising the sick. It has been designed around the presumption that all mentally ill people are dangerous, that most are murdered by the mentally ill, that sectioning in the community, with no absolute duty to provide good care and treatment at any time, will address the issue of safety of the public and the user, and improve treatment. It will not. It will only ensure that users of the system, once sectioned, will always be on section for the rest of their lives. Carol Jeavons October 2004

Memorandum from Keith Cornford (DMH 84) I am writing to express my concern regarding two issues within the above Bill and wish this to be submitted as evidence to the Committee. I was nursing in the Mental Health Service during the 1960s and served as a Voluntary Mental Health Act Manager at the Mental Health Unit, Coventry for some eight years in the 1990s. In addition, I am a Trustee with a local Mind Group (20 years) and with Mind (NAMH) (six years). There is good legislation in the Draft Bill which I believe, will be lost in the problems created by failure to address a range of issues including those which concern me, namely: 1.1. As indicated above, I served as a Psychiatric Nurse in the 1960s at one, the big Asylums which held a wide range of people who were considered to be mentally ill. However, a significant number had been admitted many years before, possibly because of mental illness but more likely to be due to less socially acceptable behaviour, eg unmarried pregnancy; stealing milk. In the 1970s–1990s there was a move to closing these Asylums by providing more adequate community care for people who were not mentally within the meaning of the 1983 Mental Health Act but who could be considered to be “vunerable”. 1.2. My concern is that the proposed Bill seems to be moving back to those days with its extension of compulsory treatment orders and the widening of the definition of “Mental Disorder” coupled with the reduced need to ensure that compulsion and therapeutic treatment are treated equally. 1.3 I would like to see the Draft Bill amended in such a way that compulsion and treatment go hand in hand with the individual’s ability to understand what is happening and can agree with any proposed treatment plan. There may be a need for compulsion before treatment but this should be a minimum period of days, much as at present in existing Mental Health legislation. 2.1 Of significant importance is the position of those individuals who could be seen as lacking in mental capacity. These are often referred to as “Bournewood patients” and come closer to those admitted to Asylums in the early part of the 20th century and for whom the Draft Bill has excluded from its provisions. Ev 788 Joint Committee on the Draft Mental Bill: Evidence

2.2 The situation for “Bournewood patients” is more complicated and requires additional well thought out legislation under the Bill. The intention should be to safeguard individuals’ rights both under the Draft Mental Health Bill and within Human Rights legislation. 3.1. One of my duties as a Mental Health Act Manager was to hear patient appeals against being compulsorily detained (Sectioned). One of the major concerns we had was the lack of a Care Plan should the decision be made to release the patient from the Section under which held. When this did happen the Panel were in a diYcult dilemma because it was aware that without an adequate care plan in place it was likely that the patient would leave hospital having to cope on their own. 3.2. The Draft Bill acknowledges that one of the main issues in care plans is that of adequate and appropriate housing. It suggests that should a person be about to be discharged and provision not yet available then the patient can be detained in hospital for a further eight weeks. This a recipe for Mental Health and Social Service staV to not put the patient ﬁrst by having a care after plan in place by the date that detention should ﬁnish but rather see it as they have a further eight weeks to achieve a satisfactory outcome. 3.3 After care plan provisions should be seen as a key factor for the patient. An eight-week delay in discharge is totally unacceptable. Any delay in formulating it should be seen as poor practice and the individual and/or agency responsible should ensure that this is not allowed in any circumstances—the emphasis must be on having the plan in place at least a week before discharge. Any failure in this area should be reported to the PCT Board as a matter of urgency Keith Cornford

Memorandum from Robert Cary Fogg (DMH 85)

I believe the Bill should include a section to deal with TV programmes that may encourage people to play inappropriate practical jokes on people with mental health problems. I believe the last series of big brother was such a group of programme. This being based on my experience of being attacked a number of times in my life. I also believe the Bill should include a section on professional rules related to workers in the mental health ﬁeld. As a mental health service user I have concerns given the number and nature of complaints in relation to the programme that professional codes of conduct need to be revised in consultation with service users. I became ill when on a social work course and have experienced a range of services for my health problems and other problems these have created. Services, apart from the voluntary sector, have often been inappropriate for my needs and not providing safeguards for either myself or society. Such services increasing the distress I have experienced with inappropriately labelling. A way forward for me was — To give myself the right to a problem and to do something about it. — Look at what made me feel better and what made me feel worse. — Learn new coping skills. — Learn to recognise and deal with my emotions. — Give myself the right to own my own feelings even when diVerent to others expectations. — Learn to recognise that feelings like anger do not necessarily mean someone has done something wrong. — Recognising the diVerence between internal and external created emotions. — Trying to gently to create a balance which is right for me at a given time. Services have often been contrary to this process with professionals trying to dictate my life and suggesting the only possible solution being drugs. I believe a number of professionals have been trying to cure me of a health problem without taking into consideration that the following of my needs have often not been met. — Sexual. — Emotional. — Romantic. — Tenderness. — Informational. — Constructive feedback. — Goal orientational. — Achievement. Joint Committee on the Draft Mental Bill: Evidence Ev 789

With the mental health Act I believe the following points needs raising: — Bill fails to shift responsibility: — from professionals being responsible for the behaviour of patients; and — to professionals having a balanced responsibility both to patients and wider society for there actions as professionals. — Bill fails to deal with prevention and support and appears to be about social control: — Should be about providing a service. — Capacity: — Bill fails to deal adequately with the issue of place of safety for people who are ill and lack capacity to make informed choices. — Bill fails to allow people to make informed choices where there is capacity. — Compulsion: — Only where there is crisis, danger and when person has lost the ability to make choices for themselves. — Least invasive forms of treatment and to beneﬁt of patients. — Place of safety. — Drug treatments not necessarily the answer. — Human rights: — Balance. — Bill should provide a balancing act for everyone’s needs. — Freedoms when people have capacity and are not committing a criminal oVence. — Place of safety when lacking in capacity. — “Treatment” will be seen as “drug treatments” rather than “appropriate care and support.” — Bill fails to deal with the issue of improving professional knowledge and standards. — Bill fails to deal with the issue of public education re mental health and mental ﬁtness. — Positive mental health and good living promotion. — Lack of appropriate safeguards: — Bill likely to leave venerable people without a service and protection when needed: — Bill likely to increase the chance of people being sectioned for making informed choice diVerent from “the norm”. — Right to advocacy and patient nominated adult from start of process. — Advanced directives and patient feedback. — Right of information to patient and patients nominated representatives. — Joint working and enabling people to take responsibility for there own health care when there is capacity. — Mental Heath, Physical Health, and Social Circumstances are all interconnected. This needs to be recognised. — Mental health and illness not one problem but a whole range from feeling fed up to seriously confessed thoughts to inability to think through issues quickly etc This diversity and the number of solutions needs to be recognised. Needs to be an Act based on care and support, rights and obligations. I believe a mental health service is about shared rights and social responsibilities, awareness, choice, knowledge, learning, a service for people who need help for mental distress and good public education. Robert Cary Fogg

Memorandum from Tony Gray, on behalf of Service Users (DMH 87) On behalf of the users of Brookside Centre. We would like to raise an objection to the new proposals for measures to replace the current Mental Health Act, with even more draconian measures to incapacitate further people who are by no fault of their own diagnosed with a mental illness. Measures to enforce medication without patient agreement is against human rights and also detrimental to patient care. Tony Gray October 2004 Ev 790 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Dr A Perera (DHM 88) The proposed definition for mental disorder in the draft of the new Mental Health Act is meaningless for the following reasons: 1. It does not make sense. 2. There is an assumption that science has an adequate understanding of the workings of the brain in relation to human behaviour and mental illness or disorder. 3. It is too broad as a definition. History has shown us that where there is a broad definition of mental illness or disorder there will be an inevitable abuse of people, who are regarded as having such a condition. The 1983 Mental Health Act has a better definition of mental disorder. I propose that this definition can be modified to:— 1. Consider the co-morbidity of alcohol and drug use with depression, psychotic disorder and psychopathic disorder. 2. Consider the co-morbidity of depression and psychosis in people with learning disabilities. I recognise that it must a challenge to create a new Mental Health Act. I hope that my comments are clear, focussed and helpful to you in your work. October 2004

Memorandum from James D Hargreave (DMH 89) For the past few months I have been working as a part time chaplain in a Community Health Trust, with the specific task of visiting acute assessment units. Whereas I recognise the most valuable function these facilities fulfill, in terms of providing a safe haven for people experiencing intense mental distress, I have often been struck by clients’ sense of bewilderment, confusion and anger during their first few days after admission. It seems to me that a comprehensive system of advocacy is vital particularly at this stage of treatment. There is a need for a greater depth of explanation of the direction the treatment is likely to follow, and of the implications of a section order. In view of the fact that I am in the process of moving house, I am giving the Beverley Mind OYce as a temporary address. October 2004

Memorandum from L Booth (DMH 91) As a former mental health service user and now working as a service provider, I would like to register a few concerns regarding the Draft Mental Health Bill and have them considered as evidence.

1. A Right to Service When I became ill and asked for help, I received nothing until I hit crisis point—it then took me several years to recover from the resulting breakdown. I now often hear from people for whom the same is happening. I feel that preventative services and early intervention—for all forms of mental ill-health—are a priority.

2. Compulsion I feel that compulsory treatment could prove very dangerous in that it may stop people who need help from seeking it—because they are frightened of the possible consequences. I feel that if statutory mental health services were friendlier and could oVer really positive help for people—and more treatment choices— more people would seek help earlier on. There is a great terror among people with mental ill-health regarding getting “sucked in to the system” and losing their right to liberty.

3. Advocates It is really important for all people admitted to a psychiatric unit to have an advocate or some other person to help look after the patient’s interests. Time and time again I hear of people who are not given suYcient information about their own treatment and other arrangements concerning them. Early support from family, friends or carers could make a big diVerence to how the patient views his or her treatment. Joint Committee on the Draft Mental Bill: Evidence Ev 791

4. Advance Directives I believe that these are a very good idea and should have some legal status. Many people move up and down the continuum of good/poor mental health and I feel it shows a great sense of responsibility for an individual to plan for the next crisis. Perhaps advance directives could be agreed between the patient and relevant service at a time of stability—this would ensure that what the individual wants is compatible with services that can be oVered.

5. A Right to Aftercare I believe that this is vital but often hear from people that they are discharged with no follow-up plans or support. Returning to the community after being an inpatient can be terrifying and lack of support at this important time can lead to an increase in the “revolving door” problem.

6. The Tribunal System Any delay in discharge by having to wait for a tribunal decision—rather than one made by an RMO— is likely to cause more distress and hamper recovery.

7. ECT I don’t believe that ECT should be given to anyone without their consent. Patients should be given other support and treatment until they are in a position to make a more informed choice.

8. Police Powers I am unclear as to why the police need further powers and am worried that entering private premises without a very clear need for this being necessary could infringe vulnerable people’s right to privace during times of distress. October 2004

Memorandum from R Voyce (DMH 92) I wish to comment on the recent discussions on the proposed mental health legislation. On the evidence given by Profesor Richardson and Mr Heginbotham, I thoroughly agree that there needs to be a clearly understood distinction between MH clients and others with substance abuse problems. Particularly where general factors are involved such as user representation, I have always had a diYculty with MH clients representing substance abuse clients, and vice versa, substance and alcohol clients speaking for MH clients, especially when intoxicated. The same goes for LD clients, as mooted by Lord Rix. I support the provision of advocacy services. This is vital for informed choice. I would like to see the validity of advance directives, “living wills”, being enshrined in law. I have been sectioned three times, and would like to advocate that any review or appeal should include aspirations or other positive wishes to be included in a MH review tribunal. I have found that the inclusion of the re-commencement of university study in my own case was beneﬁcial. This enhanced section 117 aftercare. It would be good if all sectioned people could have something to look forward to, as part of their CPAs. The continuance of community care is good for me and many others. However, I am not so sure about having CTOs as well as community care. Would this mean the police and CPNs arriving to give an injection, something I believe staV and clients will resist. October 2004

Memorandum from Camden and Islington AIM Advocacy Partnership (DMH 93) The AIM Advocacy Partnership comprises the independent advocacy services of three separate registered charities working in the London boroughs of Camden and Islington: Assert Advocacy Project Islington Mind Mind in Camden. It is funded by Camden Primary Care Trust, and, by way of a part time development worker plus part time manager, is resourced to support 5.5 FTE independent advocates working at four psychiatric hospital sites and on a smaller scale within the community. Ev 792 Joint Committee on the Draft Mental Bill: Evidence

Our comments focus on the sections relating to Independent Mental Health Act Advocates (IMHAAs), ie section 247. However, before making these, we would like to express our concern at the very short timescale for consultation: we would have liked more time to make a more considered response on the implications of proposed measures. 1. Our experience suggests that the assessment process can be made less traumatic for the detained person by oVering access to an independent advocate. If one is requested by the patient, the advocate can assist with communication between the patient and clinical/care staV, as well as reassuring her/him and helping to safeguard her/his rights. We feel there should be an enforceable right to IMHA advocacy throughout the examination/assessment process. From our clients’ point of view, we feel this would be most beneficial. 2. We feel the Bill should state clearly and strongly that clinical/care staV should have a responsibility to tell patients about advocacy at key times: — on admission to hospital; — whenever special, particularly invasive treatments are concerned (ECT, psychosurgery, hormone implantation to reduce sex drive, etc); — on review of care or treatment; — at discharge or transfer from hospital or release from compulsion; and — when any other significant decisions are being made. 3. The patient and her/his IMHA advocate must have the right to meet in private. The confidential nature of the relationship between the advocate and client is an established advocacy principle that should be upheld. Meaningful discussions between advocate and client would not be possible in an atmosphere of tension that could ensue if medical staV are present. 4. The IMHA advocate should not have the right of access to the patient’s records without the patient’s express permission. Rather the act should read that the patient has “the right to instruct their advocate to apply to access his/her records on their behalf”. 5. With regard to clause 247(3)(a) and (b), responsibility for giving all information to the patient and explaining the treatment, including the patient’s rights under the Act, MUST remain with the multi- disciplinary team and MUST NOT pass to the advocate. 6. We feel that it is inappropriate for the nominated person to be given more or less the same right of access to IMHAA as oVered to the patient. IMHAA should only be able to work with nominated persons when this is a specific instruction of their client. The current wording however puts the emphasis on the patient to advise the advocate not to work with their nominated person if they feel it is not in their interests. This places an unnecessary burden on the patients to act assertively in a situation where there is potential for manipulation and where complex relationship dynamics may exist. We feel that it is important that nominated persons are supported and given access to advocacy. However, there is a conflict of interests if there is an expectation that the same advocate will provide a service to both them and the patient 7. We feel the levels of resourcing for IMHA advocates of 140 that are currently suggested (we understand these are 2002 estimates) are not adequate. Resource levels in the order of at least five times higher are more realistic. The current proposal would allow for less than one advocate per MH Trust in England and Wales. This is well below estimated current levels of Mental Health Advocacy provision and does not appear to take into account the additional responsibilities/workload that the new act is proposing for advocates. This includes working with clients under Community Treatment Orders and providing advocacy to carers. 8. Following on from the above, from our point of view as service providers, there needs to be suYcient funding provided to enable ALL detained patients to be seen and to be seen within any timescale that may be specified. This funding should be additional and should not jeopardise:— — services oVered to informal patients — other existing services in the community by drawing funding away from them. Service commissioners need to be reminded of the value of these other services and be strongly encouraged to adopt local advocacy strategies that reflect the Durham proposal. This is explicit in recommending that IMHAA should not be seen as an alternative to current advocacy provision but embedded within it. Therefore it should exist alongside other forms of advocacy not instead of them. Martin Cobley (AIM Advocacy Co-ordinator) and Tom Costley (Mind in Camden Advocacy Manager) on behalf of AIM Advocacy Partnership. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 793

Memorandum from S Clark (DMH 94) The scope of the committee’s inquiry lists 10 main points for scrutiny. Number 6 states, “Are the safeguards against abuse adequate?” The existing Mental Health Act 1983, clause 15(1) “Rectiﬁcation of applications and recommendations” states, 15 (1) If within the period of 14 days beginning with the day on which a patient has been admitted to a hospital in pursuance of an application for admission for assessment or for treatment the application, or any medical recommendation given for the purposes of the application is found to be in any respect incorrect or defective, the application may, within that period and with the consent of the managers of the hospital be amended by the person by whom it was signed; and upon such amendment being made the application or recommendation shall have eVect and shall be deemed to have had eVect as if it had been originally made as so amended. This existing clause in The Mental Health Act 1983 is a licence for abuse by approved Social workers, GPs and Section 12 doctors (and the police). The new Mental Health Bill needs to ensure that this licence to abuse patients and other individuals is closed. October 2004

Memorandum from CardiV Mind Ltd. (DMH 95)

1. Introduction 1.1 I am writing in my current capacity as Chief Executive OYcer of CardiV Mind Ltd. Previously I was Director of a Local Authority Social Services Department and a member of the Local Health Board. 1.2 I would wish to comment on the following issues/themes: 1.2.1 A right to services 1.2.2 Compulsion should be the last resort 1.2.3 Dangerousness and Compulsion 1.2.4 Compulsion in the Community 1.2.5 Advocates and nominated persons 1.2.6 Advance Directives 1.2.7 A right to Aftercare 1.2.8 The Tribunal System 1.2.9 ECT 1.2.10 Police Powers

2. A Right to Services 2.1 In my experience there is a signiﬁcant underinvestment in preventative and support services that can be accessed at an earlier stage in the process. Without this investment not only are people denied the opportunity to take control of their own lives but also access to service provision becomes routed via hospitalisation.

3. Compulsion Should be the Last Resort 3.1 We need to be very careful that the provisions which extend the potential for compulsion do not develop in a way to deny people their basic human rights and choices. Whereas I accept the need to ensure that the rights of the individual need to be balanced against the need to protect them from danger it appears likely that given media concerns an overly cautious approach would develop at the price of human rights.

4. Dangerousness and Compulsion 4.1 There is an assumption that people with mental health problems present a risk to others and consequently it is in order to subject them to treatments to control rather than beneﬁt their health. 4.2 The assumption will undoubtedly generate a more general perception that all people with mental health problems present a risk to society—a prejudice already well established—we need to reduce not reinforce stigmatisation. Ev 794 Joint Committee on the Draft Mental Bill: Evidence

4.3 The heightened proﬁle of presenting a risk will discourage vulnerable people from seeking help when they most need it. 4.4 The existing law oVers clinicians suYcient tools to deal with genuine risks once they are identiﬁed. 4.5 There seems to be a desire to use the law to paper over the real issue of inadequate resources to help and support perpetrators of violence in crisis. 4.6 If the aim is to protect society from risk by the use of preventative detention, then why have such principles not been extended to other categories of society such as abusers of various types, dangerous drivers and so forth? This constitutes discrimination against one group in an arbitrary way.

5. Compulsion in the Community 5.1 We believe that compulsion should be the last resort and consequently should be a response to a crisis situation which in turn needs to be carefully monitored and therefore best takes place in hospital. 5.2 Compulsion in the home is disruptive and will undoubtedly aVect the domestic situation—perhaps even to the extent whereby the support network is threatened or even destroyed. 5.3 Community Nurses and psychiatrists would inevitably be cast in the role of policing the order which may well damage the relationship.

6. Advocates and Nominated Persons 6.1 Experience tells us that better outcomes are achieved by working in partnership and using advocacy if appropriate. Although there is an opportunity under the new law for an informal carer to be consulted during the examination stage this is not extended to formal carers or volunteers who may actually be in a better position to provide insights than those informal carers. 6.2 The nominated person is seemingly not only unless and until the formal assessment stage is reached, but also is to be denied the current right to take steps to discharge a patient under compulsion.

7. Advance Directives 7.1 It is somewhat disingenuous to assume control of treatment decisions on the basis that the person experiencing the crisis is not able to make their own informed decision whilst at the same time removing the current opportunity to make such decisions in advance via an advance directive. 7.2 There is evidence to suggest that advance decision making can make an important contribution to cutting compulsory admissions. Moreover it increases empowerment and partnership working.

8. A Right to Aftercare 8.1 There is a lack of investment in community care support services for people experiencing mental health diYculties The option to extend a compulsory order when care is not ready masks the lack of services provision. It would make more sense if there were arrangements whereby the penalties available under Delayed Transfers of Care were ‘directed” into provision of a care package in the community. 8.2 It would be more appropriate if the free aftercare arrangements were driven by an agreed multi- agency discharge plan which reﬂected realistic timescales for the individual rather than an arbitrary and universal timescale.

9. The Tribunal System 9.1 The extension of the Mental Health Tribunal’s role needs to be accompanied by a more eYcient system that provides fewer delays.

10. ECT 10.1 Whereas the requirement for consent to ECT is to be welcomed, there are concerns that it can still be given in emergencies. This is a particularly important issue given the fact that there is an intention to remove the right to advance directives. Joint Committee on the Draft Mental Bill: Evidence Ev 795

11. Police Powers 11.1 We need to be very careful that there are proper protocols in place to ensure that the extra powers of entry are not abused. 11.2 Given the overwhelming number of “incidents” that take place in police cells one must question whether they can ever be regarded as safe places for people who are clearly in need of urgent treatment for a medical condition. October 2004

Memorandum from A Mitchell (DMH 96) I welcome many of the proposals of the above draft bill, including: — The provision for advocates; — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal; — The single assessment process; — The ability to appoint a “nominated person” (but not its reduced role); — Special provisions for children and young people; — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go a long way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some, I am troubled to find, remain exactly the same as the concerns that were expressed by many respected organisations following the Draft Bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS. — A right to assessment of mental health needs; — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed; — A limit to the conditions for the use of compulsion in the community; — The right to advocates and nominated persons where possible to take part in the examination stage; — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient; — A statutory recognition of the role of advance statements; — A reconstituted tribunal with a role for non-medical members and users; — A duty to provide aftercare; — A removal of the police power to enter private premises without a warrant; — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients; — The right to an independent advocate; — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. I trust that the concerns I have raised above will be considered by the Committee and I look forward to your response. Annie Mitchell Clinical and Community Psychologist October 2004

Memorandum from Dr Melluish (DMH 97) I welcome many of the proposals of the above draft bill, including: — The provision for advocates; — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal; Ev 796 Joint Committee on the Draft Mental Bill: Evidence

— The single assessment process; — The ability to appoint a “nominated person” (but not its reduced role); — Special provisions for children and young people; — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go along way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some, I am troubled to find, remain exactly the same as the concerns that were expressed by many respected organisations following the draft bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS: — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. I trust that the concerns I have raised above will be considered by the committee and I look forward to your response. October 2004

Memorandum from Heather Armitt (DMH 98)

1. Introduction 1.1 I am submitting evidence as someone who has worked in a psychiatric hospital, worked with adults with learning disabilities, suVered from mental health problems myself and am currently an informal carer for an adult with mental health problems. 1.2 I am most concerned about—The breadth of the Draft Bill—Compulsory medication—Compulsory orders and restrictions placed on people in their own homes—The Bill is likely to deter patients going forward for treatment—Police entry into homes and the length of time police can hold patients—Emphasis of the bill on aggressive and violent behaviour—No provision for policing theft and street drugs in psychiatric hospitals—Just anyone can ask for an assessment on someone—six post discharge weeks free care/housing.

2. The Breadth of the Draft Bill 2.1 Many sections of the bill try to cover too many people with (now called) mental disorder (eg the ordinary public with mental health problems, drug and alcohol addiction, people on remand, prisoners, the elderly and people with learning disabilities. 2.2 Most of the categories in 2.1 above have diVerent specialist psychiatrists for their particular treatment and needs both inside and outside hospital. Just to lump them all together in the bill without diVerentiating where necessary is insulting and lacks insight. Joint Committee on the Draft Mental Bill: Evidence Ev 797

2.3 The most vulnerable ie the elderly and people with learning disabilities should have special safeguards built into the bill to protect their legal and human rights. Legislation should ensure that all these groups are not lumped together in the Bill or in hospital.

3. Compulsory Medication 3.1 The proposals about compulsory medication will cause many patients to feel degraded and humiliated. Depot injections are the usual compulsory method and if patients do not comply the injection is administered “mob handed”. 3.2 Compulsory medication takes away an individual’s right of choice especially if there is no guarantee that it will cure them. 3.3 The patient’s right to refuse or choose medication must be respected. The Bill should be amended to reﬂect this.

4. Compulsory Orders and Restrictions Placed on People in Their Own Homes 4.1 The fact that people can have compulsory orders and restrictions placed on them in their own homes is an infringement of liberty. 4.2 Any comings and goings of professionals or having to attend a certain place will alert the neighbourbood to any problems and increase the stigma of having a mental illness. 4.3 This should be removed from the Bill for all patients other than those who have been found guilty of criminal activities

5. The Bill is Likely to Deter Patients Going Forward for Treatment 5.1 Items 3. and 4. above are likely to make patients stay away from going for psychiatric help as long as possible. 5.2 The fear of Sectioning and compulsory treatment will make them will lose any trust they have with their known mental health professionals and the system as they know it.

6. The Fact that the Police CAn Enter Someone’s Home Without a Warrant is Frightening. 6.1 This is a violation of personal rights and privacy. Also the fact that the police can pick up someone from anywhere and hold them for up to 72 hours with a magistrate’s order in a police cell is inhumane. 6.2 The police do not have the necessary empathy, training and patience to deal with people with mental health problems or learning disabilities. From experience I know they assume that people are either drunk or on drugs and treat them with contempt. Being locked in a police cell is not conducive to the well-being of anyone with mental health problems. 6.3 The 72 hours limit should be greatly reduced for anyone who is not charged with a criminal oVence.

7. Emphasis of the Bill on Aggressive and Violent Behaviour 7.1 The Bill’s assumption that all people with mental disorders are likely to be violent is not the case. 7.2 A large proportion of people with mental health problems recover, return to work and lead perfectly “normal” lives. A large percentage of people with learning disabilities are not aggressive or violent. A study amongst people with bipolar disorder showed that they had no more tendency to violence than the “normal” population. 7.3 The Bill’s emphasis on the problem of aggression/violence for people with mental disorders should be removed.

8. No Provision for Addressing Theft and Street Drugs in Psychiatric Hospitals 8.1 There is no mention in the Draft Bill of the current problem of theft of personal belongings and the availability of street drugs in psychiatric hospitals. 8.2 It is well known in psychiatric hospitals that whatever you do not carry around with you is likely to go missing. I visited a patient in psychiatric hospital for several months and had to keep buying him new clothes (even underwear) because his were being stolen by other patients. I have also been oVered street drugs within hospitals by patients and visitors. The staV accept the stealing as common place (which it is and has been for years) and at worst only discharge a patient or ban a visitor if caught with street drugs. 8.3 The Bill needs to address these problems and provide a fair but ﬁrm system for dealing with them inside our psychiatric hospitals Ev 798 Joint Committee on the Draft Mental Bill: Evidence

9. Just Anyone Can Ask for an Assessment on Someone 9.1 The fact that just anyone can refer a person for an examination which could lead to compulsory treatment is wide open to abuse. 9.2 The knowledge of a person’s previous mental health problems could easily lead to threats/blackmail of referral by an unscrupulous person/relative/carer/neighbour. The patient must also be able to choose a representative who understands them to speak for them at the examination stage and not just be allocated their nearest informal carer. 9.3 The Bill must be changed to limit the people able to refer someone for an examination and for the patient to be able to choose their representative at the examination stage.

10. Six Post Discharge Weeks Free Care/Housing 10.1 Six weeks post discharge free care/housing is insuYcient. 10.2 After a major breakdown it can take much longer than six weeks rehabilitation before the patient is capable of living in the community on their own. 10.3 The length of time for rehabilitation must be linked to the severity of the psychiatric illness. Psychiatric professionals must be allowed to use their own judgement for these cases. October 2004

Memorandum from the Welsh Nursing and Midwifery Committee Pwyllgor Nyrsus A Bydwragedd Cymru (DMH 100) Thank you for the opportunity to comment on the revised draft Mental Health Bill. This response will largely address itself to the broad issues relating to nursing workforce planning, and the practicalities of implementing the Bill, if enacted in Wales. We would bring to the Scrutiny Committee’s attention the responses from the Welsh nursing advisory groups on Adult Mental Health Nursing, Child and Adolescent Mental Health Nursing and Learning Disabilities Nursing.

1. About the Welsh Nursing and Midwifery Committee (WNMC). The WNMC is the statutory independent advisory committee to the Welsh Assembly Government on professional issues relating to Nursing, Midwifery and Health Visiting practice. The scope of the WNMC includes advice relating to workforce planning, the contribution of these professions to service delivery and the professional development required to deliver an eVective health service.

2. Summary of this Response. The WNMC acknowledges the eVorts made to update Mental Health Act legislation, and the responses to the initial consultation to the 2002 draft. Nevertheless areas of concern remain in relation to: — The capacity of mental health services in Wales to deliver the requirements of the Act, and the eVect this will have on assessment and treatment services. — The lack of detail regarding the “yet to be drafted” regulations and Code of Practice. — A focus on compulsion rather than entitlements to assessment and treatment. — The removal of the need for two agencies to be represented in the “initial examination process”. — The removal of some existing rights for carers. — The possibility that groups currently excluded from Mental Health Act provisions will be included under the current Bill, if enacted. — The erosion of some rights and protections available under the current Act.

3. Welsh Policy and Resources to Implement the Act in Wales. The WNMC is concerned that the Westminster Government has tasked the Department of Health (DoH), which has no responsibility for the NHS in Wales, with developing this Bill. This is not to suggest that colleagues in the DoH would discriminate against Wales, but to recognise that there are no systems in place to enable the DoH to take into account the circumstances and resources of Mental Health Services in Wales. These systems reside within the National Assembly for Wales. The Commission for Health Improvement has raised concerns about the level of development of mental health services in Wales: 10 years behind England in the implementation of the Care Programme Approach, and still largely reliant on Victorian institutions as the “hub” of care delivery. Very few resources have been Joint Committee on the Draft Mental Bill: Evidence Ev 799

released to support the Welsh Adult Mental Health and Child and Adolescent Mental Health Strategies and there are no published plans from the Welsh Assembly Government to do so. The Adult Mental Health National Service Framework has hardly been implemented, and there are acute shortages of psychiatrists, mental health nurses, and other key mental health professionals in Wales. It is the view of the WNMC that the calculations given in the Bill regarding the increased workforce that will be required to implement the Bill are over-optimistic, and fail to take into account the situation in Wales. Issues of rurality are an important issue; NHS trusts serving rural communities are ﬁnding it increasingly diYcult to recruit appropriately qualiﬁed and experienced mental health professionals. The implementation of this Bill in Wales will require resources to be reinvested into managing legal processes, and away from assessment and treatment services. The WNMC keenly awaits the proposals from the National Assembly for Wales of the development of the Code of Practice under the Act. As the implementation of the Act depends on the availability of the Code of Practice, we would also like to know the implications of the Code being available in England or Wales before the other country’s Code is ready.

4. The Effect of the Act on the Role of Nurses In general, nurses have more contact with their patients than any other mental health professional. The therapeutic relationship between nurses and their patients is at the heart of clinical practice, and relies on collaboration rather than compulsion. The WNMC believes that the most eVective way of working with patients is to oVer early engagement and treatment, often at the point where the patient is actively seeking help. The WNMC is concerned that the adoption of the role of the Approved Mental Health Professional (AMHP) by nurses may jeopardise this therapeutic relationship. The WNMC supports a multi-disciplinary approach to decision making, however there is not yet enough detail available from the Welsh Assembly Government regarding how the role of AMHP will be developed to comment further on this. Of particular concern is the impact on Services created by the removal of Mental Health Nurses from their therapeutic role for training as AMHPs. The WNMC recognises, and welcomes, the requirement in the Bill for a non-medical view to be considered in the initial examination process. We also recognise that the training and approval of the AMHP by Local Authorities is an attempt to retain the independence of the AMHP currently held by the Approved Social Worker. Nevertheless, the WNMC views the possibility that under the new Act that both the medical staV and the AMHP undertaking the initial assessment may be employed by the same organisation, as an erosion of the protections provided by the present Act.

5. The Basic Principles of the Bill The WNMC welcomes the review of the existing Mental Health legislation and we believe that the new Bill positively addresses some issues relating to patient choice and protections that are not provided for under the 1983 Act. We also welcome the revisions and strengthening of protection of parts of the Bill, in response to the consultation to the 2002 draft. The WNMC would echo the concerns raised by organisations representing patients that very often patients seeking help in the initial stages of their mental health diYculties fail to receive it. There is scope to incorporate into the Bill rights to earlier treatment, which would help to balance the focus of the Bill and would help to create a more clinically and cost eVective service.

6. Definition of Mental Disorder The WNMC suggests that the removal of existing exclusions contained in the new Bill is an erosion of the public’s protection, and may not be compatible with the Human Rights Act. The removal of these exclusions eVectively broadens the grounds for compulsion. This coupled with the removal of the “treatability” provision in relation to mental impairment or psychopathic disorder may lead to a signiﬁcant increase in the number of people who are made subject to formal powers. If “treatment” continues to be construed as widely as under present legislation, than we believe that concerns about the proposed powers constituting a form of ‘preventive detention’ may be justiﬁed.

7. Remaining Areas of Concern The WNMC is concerned that the fact that anyone could request that somebody be examined with a view to the use of formal powers would appear to open the door to malicious or excessive requests and unwarranted intrusions. The WNMC is concerned that there remains scope in the new Bill for Tribunals to be heard by just one person. The WNMC view the removal of the powers of the Hospital Managers and the “nearest relative” to discharge a patient to be an erosion of protections provided in the current Act. Ev 800 Joint Committee on the Draft Mental Bill: Evidence

The WNMC is concerned about the use of Non Resident Orders (NROs). There appears to be no evidence from research studies that compulsion in the community improves outcomes for patients. Of further concern is the possibility that NROs could drive individuals away from the services that they need. The WNMC believe that there is still much detail missing from the current Bill, particularly those areas which will be the responsibility of the Welsh Assembly Government and have not yet been drafted. October 2004

Memorandum from Dr Richard House (DMH 101) I welcome many of the proposals of the above Draft Bill, including: the provision for advocates; the role of the Mental Health Tribunal and the Appeal Tribunal; the single assessment process; the ability to appoint a “nominated person” (but not its reduced role); special provisions for children and young people; and, enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go a long way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some remaining exactly the same as the concerns that were expressed by many respected organisations following the Draft Bill’s first introduction in 2002. My concerns, which I would ask the committee to seriously consider addressing, are that the following points need to be addressed in the Bill if it is to contribute constructively towards positive developments in mental health services in the NHS: — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity and retaining a test of therapeutic benefit. — A limit to the conditions for the use of compulsion in the community. — The right of advocates and nominated persons to take part in the examination stage; — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. October 2004

Memorandum from Dr Steve JeVeries (DMH 102)

I am writing about my concerns regarding the current draft Mental Health Bill. I am a Chartered Clinical Psychologist working in the NHS with working-age adults. I am concerned about the potentially detrimental eVects on the psychological well-being of the people I work with if the Bill as presently drafted becomes law. I welcome many of the proposals of the above draft Bill, including: — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Special provisions for children and young people. — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go a long way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental ﬂaws that remain within the current proposals, some, I am troubled to ﬁnd, remain exactly the Joint Committee on the Draft Mental Bill: Evidence Ev 801

same as the concerns that were expressed by many respected organisations following the draft Bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS: — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. Dr Steve JeVeris. BSc (Soc Sci), DClinPsy Chartered Clinical Psychologist October 2004

Memorandum from Vera M Marx (DMH 103) I am a 75 years old mother caring for my son who was diagnosed with Schizophrenia in l994. I am happy to be his carer and the arrangements we have with society for his carer are ﬁne. However, the items which cause me great concern in the proposed new Mental Health Bill are: 1. To take away from the patient’s relatives the right to discharge under Section 23, of the 1983 act with the agreement of the doctors. It is the relative who takes the patient to hospital when necessary. It is the relative wishes to discharge the patient they must have the law to do so. If the family do NOT wish it or cannot support the patient they will not use the law. Please do not cover us all under the same proposal. The 1983 act has good features in it, so PLEASE do not throw out the baby with the bath water. My experiences of mental health services frighten me. 2. I am also concerned about the removal of the free integrated social care services that are part of the law, presently supplied by the local authority (L.B.Richmond-u-T). To have his own ﬂat, with his own possessions around him, with his parents nearby to care for him, has resulted in some progress in his illness condition. Lately he has had more support from the local authorities and I am more hopeful of his eventual recovery. 3. BOURNEWOOD PATIENTS:—I have seen intelligent people being reduced to a vegetative state due to drugs and lobotomy operations. They must be protected by law as not all doctors are “all- knowing”, a lot of the time it is a matter of trial and error. You will be aVecting the lives of people who are the most vulnerable in our society. Ex-patients have told you and me more than once that MENTAL HOSPITALS ARE THE PITS. An afterthought:—A day in mental hospital of restriction and boredom seems like A MONTH (!) to a patient who, after being told of his discharge and then having it prolonged by four to eight weeks of further detention . . . it’s not conducive to his hopes of recovery. The quality of, and frequent change of staYng in any institution is detrimental to its inmates. 4. CARE PLANS: My present local authority (Richmond-u-T) do NOT issue care plans. (They used to but then did not abide by them). THE NEW BILL IS FLAWED, PLEASE, PLEASE SCRAP IT. October 2004 Ev 802 Joint Committee on the Draft Mental Bill: Evidence

Memorandum submitted from R C and I I Reichardt (DMH 108)

Our younger son has suVered from Bi-polar disorder since 1991 and has twice been sectioned, having spent time at the Towers Hospital in Leicester and the Warneford Hospital in Oxford for compulsory treatment. We have both acted as carers for him supported by mental health professionals and our family GP. We have read the analysis of the Draft Mental Health Bill produced by the mental health charity Mind and would urge all concerned with this legislation to carefully consider their very valid comments. We have several major concerns about the proposals in the Draft Mental Health Bill. These are as follows: 1. Definition of Mental Disorder We are concerned about the definition of Mental Disorder in the Draft Mental Health Bill. Mental disorder is defined as “an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain”. Such a disturbance in the functioning of the mind or brain could manifest itself as mild depression (which might only be temporary or could be treated at home by medication prescribed by a GP.) possibly caused by bereavement or some traumatic experience from which the patient might recover without compulsory assessment or treatment. This definition of mental disorder is wider than the current definition and therefore more people could become liable to compulsory treatment and sectioning, putting an additional burden on psychiatric treatment facilities, which are widely regarded as underfunded and limited, so that often beds in hospital are not available when urgently required. The fourth condition which must be met to justify compulsory assessment or treatment is defined as follows: The person concerned does not consent to treatment and accept it voluntarily. But when a person is believed “at substantial risk of causing serious harm to other persons”, compulsory assessment or treatment can go ahead, even if he or she consents voluntarily to treatment. Compulsory treatment could arguably lead to longer detention in a psychiatric hospital than voluntary treatment, causing greater disruption to the patient’s pattern of life in the community and family relationships. 2. Medical Treatment We are concerned that the Draft Mental Health Bill stipulates that, when compulsory powers of treatment are to be used, the treatment would not have to meet a statutory condition of therapeutic benefit, as under the current law. The Draft Mental Health Bill states that the treatment must be “appropriate in the patient’s case”. This implies that the treatment could be targeted at simply over-sedating the patient into a zombie like state rather than finding appropriate medication to improve his or her condition. 3. Patient’s Rights At present the patient only has the right to ask the Mental Health Review Tribunal or the Hospital Managers to review the legality of his or her detention. Although, under the new law, the hospital would still have legal responsibility for discharging patients who no longer qualify for compulsory treatment, patients and their representatives will lose their current rights to put the case for a discharge to the Hospital Managers. The new law will place all such decisions in the hands of a new Mental Health Tribunal with wider powers. We are strongly opposed to the elimination of the right of the patient and his carers to put a case for discharge from the psychiatric hospital. When our son David was sectioned in October 1991, he appealed to the Mental Health Review Tribunal and, with the support of our GP. and ourselves was discharged from compulsory detention in hospital, to be looked after by ourselves and our GP at home, which we considered to be more appropriate in his situation and would be cost eVective for the NHS. 4. Mental Health Professionals The Clinical Supervisor, who must be appointed during a compulsory assessment, must have “special experience in the diagnosis or treatment of mental disorder”. Under these new proposals the clinical supervisor need not necessarily be a doctor, eg a Consultant Psychiatrist. We are very concerned that this lower level of medical qualification could lead to a lower standard of treatment. In our view, the Draft Mental Health Bill would be enormously improved if these concerns were taken seriously and would result in amendments to the proposed Mental Health legislation. RCand I I Reichardt October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 803

Memorandum from SheYeld Mental Health Advocacy Service (DMH 109)

Introduction

SheYeld Mental Health Advocacy Service oVers independent advocacy for adults who use mental health services in SheYeld. We enable people who experience mental health problems to put forward conﬁdently their views and opinions about the services they want. The project consists of both paid and voluntary advocates and we encourage people who have themselves used mental health services to work as advocates. We would like to submit evidence speciﬁcally about the provision of advocacy within the Mental Health Bill.

1. Specialist Independent Mental Health Act Advocates (IMHAA)

We support the safeguard for patients of access to specialist Independent Mental Health Act Advocates. We feel that the law should go further by making advocacy an enforceable right. However, if it was an enforceable right we would have concerns about realistically delivering this with the resources that are to be made available and about whether we, the advocacy project would be culpable if we were unable to meet this demand. We believe that advocacy should be available to anyone who is engaged with mental health services and that people should be helped to access advocacy as early as possible. Early involvement of advocacy could prevent the need for sectioning.

2. Functions for IMHA Advocates

Regarding the clause that states that advocacy must include help in understanding treatment being provided. Advocates do help people to become informed, but we are not medically trained. We do not feel that it is the job of the advocate to put forward the viewpoint of the mental health professional.

3. Access to Records

We feel that the proposal that authorised advocates having access to medical records should be scrapped. Instead patient’s access to records should be safeguarded and improved, if this is needed. An advocate’s role is to help the patient to access their records. The only exception would be when a patient lacks capacity. (See point 10)

4. Information about Advocacy

We believe that there should be broader trigger points for being made aware of advocacy, such as the ﬁrst point of contact with services. The right to advocacy should be reinforced throughout their treatment.

5. Advocacy for the Nominated Person

We believe that advocacy for the Nominated Person should be provided separately. There could be a conﬂict of interest. Our project began by providing advocacy to both service users and carers and we found that we had to change to just advocating for the service user. This was because there was a conﬂict of interest. We found that when we started to work with a carer and discovered that the service user needed an advocate that we were unable to work with the service user. We couldn’t advocate for both carer and user independently and were eVectively closing the door on the service user when we engaged with their carer. Ev 804 Joint Committee on the Draft Mental Bill: Evidence

6. The Right to Meet We would like the right to meet an advocate in private to be included.

7. Regulation We believe that an independent, separate agency should oversee quality of IMHAA.

8. Independence We support the recognition that advocacy should be independent but are concerned about this being a requirement as far as is practicable. We feel that independence should mean independence and not “independence as far as is practicable.”

9. Criminal Justice System People should be given information about a right to advocacy when they arrive at a place of safety.

10. Capacity We feel that the bill should include a very vulnerable group of people, those who lack capacity and that the Capacity Bill does not oVer the same level of safeguards as the Mental Health Bill does, such as access to an advocate and tribunals. People who lack capacity need an advocate to help them to become involved in the decision making process as far as they are able and to safeguard their interests. People who lack capacity should be visited by an advocate who can explain their role in a way that they understand. When a person’s decision-making capacity is impaired and they cannot consent to information being shared on their behalf, information should be made available as needed to advocate eVectively. October 2004

Memorandum from Isobel McEwen (DMH 110) 1. Introduction I am concerned about certain aspects of the Draft Mental Health Bill and wish this memorandum to be treated as evidence. I believe that it is wrong of the Government to propose that compulsory treatment should be increased, as this will not address the needs generated by mental distress and ill health in our society. I have particular concerns relating to the following: — A right to services. — Dangerousness and compulsion. — Compulsion in the community. — Electrocompulsive therapy. — Police powers.

2. A Right to Services Through my own experience of depression I know how diYcult it is to get access to the care and treatment needed at the time that it is needed. I recognised that I needed help but this help was not available until I reached crisis point. Rather than increasing the reach of compulsory treatment resources should be available to deal more eVectively with problems at an early stage thereby alleviating the need for crisis action to be taken.

3. Dangerousness and Compulsion/Compulsion in the Community We live in a society where there is still stigma attached to mental ill health. Increasing compulsory treatment reinforces the prejudice that all people with mental health problems are dangerous. This is not the message, which an enlightened government should be promoting. Compulsion is currently used when it is necessary and when there is a potential risk, increasing compulsion will result in people who need help not seeking it for fear of facing the possibility of compulsory treatment. Joint Committee on the Draft Mental Bill: Evidence Ev 805

Instead of increasing the reach of compulsory treatment there needs to be more resources available to people when they seek help because they believe that they could be a risk to themselves and others. If illness has reached the stage where compulsory treatment is needed the correct environment for this is hospital not the community. In hospital you are monitored and have access to professionals 24 hours a day. In the community the burden of compulsory treatment will fall on the individual and his or her family. This is an unfair and potentially frightening situation. My father had a severe breakdown and prior to his admission to hospital—which did not happen early enough in his illness—he had some treatment at home. The impact on the family was immense and compulsory treatment at home would mean that the strain of dealing with mental illness would be passed back almost entirely to the family members at a time when they are least able to deal with it.

4. Electrocompulsive Therapy Under no circumstances should ECT be given to a person who has the capacity to make his or her own decisions about this treatment. Under the new law ECT can be administered against a person’s consent in an emergency. This treatment is highly controversial and should not be administered even in an emergency without this consent.

5. Police Powers The proposed extension of police powers feeds into the perception that all people who suVer from mental ill health are dangerous and there is potential for these powers to be abused. The power of the police to enter private premises needs to be closely regulated by the issue of warrants.

6. Summary The treatment of mental ill health requires more resources and professional staV dedicated to the long process of recovery. The patient professional relationship is built on trust. Most people who can be deﬁned as mentally ill are capable of making decisions about their treatment and any treatment should be discussed and agreed with the patient. Extending compulsory treatment will erode a basic right in a society, which applauds itself for its good record in human rights. Compulsory treatment feeds into the general public’s perception that all people who are suVering from any form of mental ill health are dangerous and further increases the public’s fear of mental ill health. The Government has the responsibility to enlighten society and encourage open debate about mental illness not impose compulsory treatment which harkens back to Victorian days. The only way to help people when they are at their most vulnerable is through education and eVective treatment at an early stage. Professionals already have the option to impose compulsory treatment when necessary and extending this facility will achieve nothing more than cause greater distress for suVerers and their families. My views are based on my own experience and the experience of my family. October 2004

Memorandum from North East London Mental Health Trust (DMH 112)

The Definition of Mental Disorder and Conditions for Use of Compulsory Powers Larry is a 50-year-old man with borderline learning disability and poor social skills. He admits to feeling sexually inadequate and wanting relationships with young boys. He has made paedophile contacts and accessed “chat-room” web sites to talk to children. An alarmed parent asks for a mental health assessment. The consultant can see no sign of disordered thinking, but has young children herself and believes paedophilia to be a form of personality disorder. She is not sure if it is of a “nature” to warrant specialist treatment, but she decides it may be. The GP is doubtful but does not want to disagree with the specialist and in any case finds Larry a bit distasteful. The AMHP is a CPN who is not in the habit of disagreeing with consultants. He is also worried about the risks. After discussion, all three agree that treatment is necessary to prevent serious harm to others. When it is discussed with him Larry agrees to initial treatment but the professionals find there is no alternative to compulsion if there is a risk of serious harm to others. The treatment is a behavioural programme and social skills teaching. The hope is that after a short admission Larry can be discharged onto a non-residency order, which will continue the programme under a psychologist. There will also be specific conditions eg not to access chat-rooms or leave the house in school holidays/weekends. Later it is found that Larry improved his paedophile contacts whilst an inpatient, was shown by other patients where to obtain pornography and continues to pursue children. Ev 806 Joint Committee on the Draft Mental Bill: Evidence

Lessons The board deﬁnition of mental disorder and the absence of exclusion clauses around (eg) sexual deviancy and immoral conduct, leaves the door open for the detention of people who do not have a clinical condition although they do deviate from society’s norms. The absence of a clear treatability test will allow the compulsory treatment of people who will not beneﬁt from treatment, however available. It is unethical and unnecessary to insist upon compulsion even when the patient agrees to treatment (if that is they pose a risk of serious harm to others).

The nominated person Sasha is an 18-year-old woman of black-African origin. She has a continuing relationship with her parents, though she does not live with them. She starts to “hang-out” with a new set, including Mala, a drug- user. Under their influence Sasha starts to experiment with cannabis and other street drugs. After some dangerous episodes (she tries to jump from a window in order to fly) Sasha is compulsorily detained. The AMHP asks Sasha who she wants to be her Nominated Person. She chooses Mala, concealing her drug use. She insists she does not want her parents informed (she has rowed with them about drugs) and claims (untruthfully) that her father sexually abused her. The AMHP respects her desire for privacy. Sasha is detained for six weeks, with psychosis linked to cannabis use. The assessment is protracted due to trying to establish if Sasha has schizophrenia. Throughout Mala only visits once briefly, “as hospitals get on her nerves”, and on that occasion is believed to have supplied Sasha with cannabis. Her parents know nothing of the admission and at one point are so distraught they contact the police.

Lessons

The abolition of the nearest relative undermines the family in favour of acquaintances who may not have the patient’s best interests at heart. The nominated person has no powers over and above what the patient can do for themselves in applying to a MHT. Close family members may be unaware of admissions after patients suVering disordered thinking insist their family should not be told.

Appeals

Robert has been suVering from depression for some time, aggravated recently by the loss of his job and girlfriend. The depression is compounded by heavy drinking and leads to compulsory detention. Robert decides to appeal and is likely to get a hearing in 14 days. However, his advocate cautions him against this because his clinical supervisor may use the hearing to apply for a longer period of detention. Reluctantly Robert agrees and instead attends a MHT on the 26th day of detention. There his Clinical Supervisor does apply for a longer period of compulsory treatment. Robert is detained for a three month period. He immediately wants to appeal as the ward is violent, lacking in privacy and away from his family and friends. However, his advocate explains that there is no appeal right for a three month detention. This depresses Robert still further. At the end of three months there is another MHT. Robert dreads it will lead to another three month detention, which would further deprive him of appeal rights. Luckily, he is detained for six months and manages to appeal. The MHT takes place four weeks later and upholds Robert’s detention despite some improvement in his condition. Four weeks later Robert feels better. His depression has lifted and he longs “to get on with his life”. His clinical supervisor however is cautious and refuses to discharge him. Robert will not get a further appeal hearing until almost six months later.

Lessons

The dual role of the MHT—as both detaining and appeals body—combines two functions that are incompatible. For patients on three month orders not to have a right of appeal is a breach of human rights. The loss of the “hospital managers” severely reduces the rights of the detained patient. Patients will be intimidated from appealing during the initial 28 day period. Joint Committee on the Draft Mental Bill: Evidence Ev 807

Non-Residency Orders Nina has been discharged from detention onto a non-residency treatment order. She has a bi-polar condition combined with dependence upon drugs. Three months of medication and a drug-free environment have led to a substantial improvements. Consequently, the MHT agree to a non-residency order. As well as taking depot-medication and seeing her consultant, Nina is required to live with her parents, avoid an ex- boyfriend who does drugs, and not got out in the evenings. Two months after discharge Nina is taking her medication. However, she is no longer living with her parents and has moved in with her ex-boyfriend. Her social supervisor calls a case conference and explains to Nina that the breach of her conditions render her liable to readmission. Nina tells the supervisor to “...oV”. Fearful of the consequences of not implementing lawful processes the supervisor arranges for compulsory admission. This requires police, ambulance and doctors and Nina sustains severe cuts and bruises whilst the boyfriend is arrested for breach of the peace. Once in hospital Nina refuses to agree to live with her parents, saying she can’t stand them any longer. Since she is not acutely disturbed the clinical supervisor allows some leave and Nina strikes a balance between hospital and community. Four months later she is still there.

Lessons Community treatment orders are unworkable if they are applied to broad conditions of life such as residency, associates, life-style. Since the only sanction for breach of conditions is admission to hospital, hospital episodes will be used as a social punishment. Admission for breach of conditions will be an inappropriate use of valuable beds.

Post-discharge Phillip is 42 and has schizophrenia and a long history of admissions some compulsory. His most recent was precipitated by failure to take medication, becoming homeless and taking street drugs. He is detained for 28 days, then six months and finally discharged midway through a second six month order. His care plan reflects his complex needs. Accordingly, he is placed in supported accommodation, with a warden and a care package, which includes medication, a CPN and out-patient appointments. Phillip’s advocate explains that he is entitled to six week’s free services, but must then contribute to the costs from a small inheritance. Phillip is secretly resistant to this, but pretends to agrees to get out of hospital. Phillip stays for eight weeks in the placement, but leaves because of the cost. He has nowhere to go and lives rough. He is out of contact with all services for three months, during which time his mental state deteriorates and he has delusions about people trying to harm him. At last services regain contact but find the supported placement is no longer available and the local authority refuses to find another because Phillip left the first one of his own accord. Phillip’s advocate explains there is no right to aftercare, even for formerly detained patients. It takes months to find a placement. Meanwhile Phillip lives in B&B where there are worrying moments due to the lack of structured support .

Lessons The abolition of free aftercare under section 117 will make vulnerable patients pay for services which consequently they may refuse . The abolition of the right to individual aftercare under section 117 puts patients at risk of not receiving necessary services. November 2004

Memorandum from North East London Mental Health Trust (DMH 113)

Is the definition of Mental Disorder appropriate and unambiguous? NO The move from a symptomatic (MHA 83) definition to an overall “catch all” definition (MHB) leaves too much to individual interpretation. This will allow for inconsistent and inappropriate use of the powers of detention according to the idiosyncrasies of the individual clinician’s approach. Any attempt to provide more definition should be in the Act itself, not in the Regulations or the Code. The strictness of the definition is the first and most important safeguard against wrongful detention. At the moment, the definition fails to act as a safeguard at all. Ev 808 Joint Committee on the Draft Mental Bill: Evidence

Are the conditions for treatment and care under compulsion suYciently stringent? NO This can be tested by asking whether an aggressive, active paedophile could be detained under the MHB. The process would be as follows: — Do they have a mental disorder according to the definition in the MHB? In the opinion of some psychiatrists/psychologists paedophilia is a form of personality disorder. — Is it of a nature or degree to warrant medical treatment? Arguably, yes. — Is it necessary for the protection of others? Yes, for the protection of children. — Is medical treatment available and appropriate? Yes, if, as is the case in the MHB, medical treatment is broadly defined to include therapeutic and educational programmes or control and management. This would not be possible under the MHA due to the treatability and exclusion clauses. There is nothing in the MHB to prevent the above scenario. It is unlikely in practice due to professional scruples, but they might fall victim to public pressure. The important clause—not in the draft Bill—that medical treatment must be available which is appropriate to the patient’s case is helpful, but needs to be strengthened by adding: — That the treatment is actually available ie realistically available to a particular patient — That the patient is likely to benefit from the treatment.

Are the provisions for assessment and treatment in the community adequate and suYcient? NO Whilst the proposals for assessment and treatment in the community may work for a compliant patient they will, like section 7 and section 25 under the MHA, break down given a determinedly non-compliant patient. This is so because the only sanction for non-compliance with treatment is admission to hospital. Given that the area of non-compliance may not even be medication, but may relate to place of residence, choice of associate, use of alcohol, illicit drug taking and that the patient in question may not be unwell at the time, this reduces hospital admission to a punishment regime. Such admissions are therefore unlikely to happen. If they did, it would contribute to an untherapeutic ward environment and blocked hospital beds. The MHB needs to be clearer that non-resident assessment/treatment orders constitute compulsory treatment in the community. Statement to the contrary (eg “But under no circumstances is forced treatment outside hospital permitted”, Improving Mental Health Law, Summary DoH) are misleading and dishonest. The Code of Practice tells us that “Consent is the voluntary and continuing permission of the patient to receive a particular treatment . . . Permission given under any unfair or undue pressure is not ‘Consent”. If patients are made to adhere to treatment on threat of summary readmission, that is undue pressure and is therefore compulsion, even if medication is only ever compulsorily administered in hospital. Use of parental authority alone to give treatment to children under 16 is at odds with the increasingly early maturity of children and the concept of Gillick competency. Safeguards do not include a right of appeal and are therefore non-ECHR compliant.

Does the draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on the one hand and concern for public and personal safety on the other? NO The failure to continue the existing section 117 protection leaves vulnerable mentally ill people without the guarantee of adequate free aftercare. This fails to protect their rights and contributes to public danger as patients may fail to receive services or drift away from support because of the costs to them. The oVer of free services for six weeks is derisory. Despite an estimated doubling in Tribunal-type hearings, patients detained for three months have no appeal rights. This is a clear breach of ECHR. Patients detained for 28 days will be intimidated from appealing because of the likelihood that the clinical supervisor will seek a longer-term treatment order. It is wrong for the MHT to have a dual role of both detaining body and appeals body. It is fair to say that some Trust staV regard the hospital managers as anachronistic, with no place in modern psychiatry. However, the abolition of the hospital managers reduces all patient’s appeal rights eg a patient detained for six months whose appeal fails at six weeks, has no second appeal opportunity until six months later. At the moment, they would enjoy one or more additional appeal opportunity to the hospital managers. Joint Committee on the Draft Mental Bill: Evidence Ev 809

For patients detained over 28 days, the right of appeal is to the same body as the one that detained them. There is a big diVerence between asking such a body to reconsider its decision and being able to appeal to an independent body. The appeals Tribunal should be independent of the original MHT.

Is the proposed institutional framework appropriate for the enforcement of measures contained in the draft Bill?

The main concern is about the proposed MHT. There is a departure from the concept of the RMO/ Clinical Supervisor as the single focus of medical responsibility for the patient. The MHT “medical expert” may disagree with the Clinical Supervisor about the care plan or—in the case of “dangerous patients”— about whether to discharge or on what basis. Such disagreements are inevitable, but mitigate against the Clinical Supervisor’s individual approach. Clinical Supervisors will be asked to implement a care plan that they may fundamentally disagree with. There is a concern at having to prepare a care plan within ﬁve days of compulsory powers being used. This is too short a period to allow for thorough assessment. Since treatment can only be carried out if it is in the care plan, it may lead to unlawful treatment. The existing MHRT is in extreme administrative diYculties. This may be systemic, arising from a dispersed and irregularly available workforce and a centralised HQ. If so, these diYculties may carry over. Trusts will lose control over the central driving process of detention. There could be extremely serious consequences if MHTs fail—eg a hearing is cancelled at 28 days and a detained patient is allowed to go free. There is no provision in the MHB for what to do in such circumstances.

What will be the eVect on the roles of professionals?

The AMHP will detract from the specialism of ASWs, and may, therefore, be less attractive to SWs. CPNs/OTs etc, who become AMHPs, may struggle to assess independently of a medical model. Training may not alter an established mind-set. Health staV within community teams are also more susceptible to control from psychiatrists. Thus, there could be a loss of independence and social perspective. The link with local authorities through independent ASWs will be lost. Psychiatrists will be subject to controls on their clinical autonomy—eg over care plans, discharge. All professional staV will have to attend more tribunal hearings of a bureaucratic nature, taking time away from front-line care. Community teams will have to struggle with unenforceable community assessment/treatment orders eg to have a non-resident patient who is not complying with conditions of conduct (eg going out at evening) puts staV in a position of having a duty to detain them in hospital. The reality however is that such admissions will be so inappropriate they are unlikely to occur. This will still put such staV under extreme stress due to not using an available power and running with a level of risk. CPNs and others who take on the AMHP role will spend less time on face to face contacts and will be drawn into co-ordinating MH assessments, hearings etc.

Has the Government analysed the eVects of the Bill adequately and will suYcient resources be available to cover any costs arising from implementation of the Bill?

No one can predict accurately what the eVects of the Bill will be if it is enacted. To this extent, there is an element of risk to be managed. Since extra resources means above all psychiatrists, these may not be available even if the funding is there. The MHT may prove unworkable and unsafe due to recruitment diYculties. If there is an increase in compulsory admissions, this will place extreme pressure on beds. November 2004

Memorandum from Mike Cox (DMH 114)

The statements and opinions expressed in this paper, unless stated otherwise, constitute my personal response to the Draft Bill and are not representative of any other person or organisation. I oVer this response primarily as a National Health Service User with experience of mental health services but also as a retired qualiﬁed social worker and former Approved Social Worker and Mental Welfare OYcer with 30 years’ practice experience and substantial experience in national healthcare developments. Ev 810 Joint Committee on the Draft Mental Bill: Evidence

1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles?

1.1 My immediate response is: What principles? Clause 1(1) says: “The appropriate authority must publish a code of practice.” Clause 1 (2) says: “The code must set out general principles to which a person must have regard whenever coming to a decision under or in pursuance of this Act in respect of a patient.” From the point of view of a National Health Service user as distinct from a lawyer or mental health professional my simple mind asks: “How can I be consulted and comment on whether or not “principles”, which have not yet been published and I therefore have no knowledge of, are unambiguous.

1.2 These as-yet-to-be-stated principles are also going to be couched in a document all too vulnerable to political change. The Code of Practice should have the full force of law and should be included in the Bill and a future Act.

1.3 The Bill does proceed to state three standards or guides in Clause 1 (3) (a), (b) and (c) but, again, to my simple mind, principles are immutable. These elements are so hedged around by caveats, derogations (as in Schedule 1 of the Bill) and potential derogations (eg in future Ministerial regulations) that I must question them being termed “principles”.

1.4 I do recognise that the derogations in Schedule 1 of the Bill relate overwhelmingly to criminal proceedings. However, it is my belief that criminal proceedings have no place in legislation which should be purely about the provision of treatment and care for people suVering from mental disorder and there should be separate and distinct legislation for criminal matters relating to mental disorder. Only in this way can this Mental Health Bill be “rooted in unambiguous basic principles”. An example of quite dangerous ambiguity as it stands is that Schedule 1, 4 (4) would allow a mental health order to be made with a total disregard to human rights.

2. Are these principles appropriate and desirable?

2.1 The ﬁnal section of MIND’s commentary on “Reform of the Mental Health Legislation in England and Wales”. Entitled “The Great Debate” was written by Larry Gostin, the then Legal Director for MIND, in 1982 and, of course, referred to reform of the Mental Health Act 1959. It could have been written in response to this present Mental Health Bill. It nicely indicates that there are important issues to do with the way compulsion in mental illness is used in the UK which have been around for a long time; some of which remain unaddressed to this day; some of which have been partially attended to. I think it is very hard to improveon.Itsays:“...theBillfailstointroduce imaginative or inspiring measures which would fundamentally alter the approach to mental health legislation. MIND has persistently argued that mental health legislation should not be concerned principally with the exercise of compulsory powers and attendant safeguards, but with the creation of a comprehensive legal framework for treatment and care, predominantly within a normal community environment. Health legislation could impose meaningful and enforceable duties on local authorities (as well as health authorities) to provide a full range of community alternatives for people suVering from mental distress, including ordinary and specialised accommodation, employment and training, and medical, nursing and social support. The Bill is lamentable for its failure to take initiatives to meet the needs and safeguard the rights of informal patients. Yet there are clear steps which can be taken in mental health legislation on behalf of informal patients: (i) to include them within the remit of the Mental Health Act Commission; (ii) to introduce some form of independent review (eg by Mental Health Review Tribunals) particularly for those who have been in hospital for many years or those patients who are most vulnerable such as children; (iii) to require hospital managers to inform them of their rights on entering the hospital (and periodically thereafter) and if their legal status is changed from formal to informal or vice versa (iv) to introduce a system of patients’ friends or advocates.” I should not have to point out that the latter part is particularly relevant to the Bournewood determination.

2.2 In 1998 the Government appointed an Expert Committee chaired by Professor Genevra Richardson, “commissioned to take forward the ﬁrst phase of the review of the Mental Health Act” (1983). The Expert Committee recommended the inclusion in new legislation of the principles of Autonomy, Consensuality, Respect for Diversity, Non-discrimination, Reciprocity, Informal Care, Least Restrictive Alternative, User and Carer Participation and EVective Treatment.

2.3 Learning from the success of the Children Act 1989 a statutory requirement “that the Service Users welfare is paramount” should be written into the Bill.

2.4 The minimum “appropriate and desirable” principles should be those set out in 2.1., 2.2 and 2.3 above. Joint Committee on the Draft Mental Bill: Evidence Ev 811

3. Is the definition of Mental Disorder appropriate and unambiguous? Are the conditions for treatment and care under compulsion suYciently stringent? 3.1 Let’s begin with a definition: “Mental disorder refers to a clinically recognisable set of behavioural or psychological problems, accompanied by distress or disability (that is, impairment in one or more important areas of functioning) or with a significantly increased risk of suVering death, pain, disability, or loss of freedom. Neither deviant behaviour in itself, nor a conflict that is primarily between the individual and society, is a mental disorder unless the behaviour or conflict is a symptom of a dysfunction.” (World Health Organisation). 3.2 If we compare this with The Mental Health Bill definition we can see that very clearly that the Bill’s definition does not stand alone as unambiguous. In fact, not only would it extend to the deviant behaviours and societal conflicts that the WHO definition excludes (both have frequently been described as arising from “disturbances of mind or brain”), it would also apply, for example, to people with Epilepsy and those with diabetes experiencing hypoglaecemia. And of course (the underlying agenda behind this Bill) the unscientifically invented (by the Home OYce) quasi-diagnosis: Dangerous Severely Personality Disordered (DSPD).” (See my memorandum at appendix 10 to the Joint Committee of Human Rights’ report on the Draft Mental Health Bill, HL Paper 181, HC 1294). 3.3 The Authors of this Draft Mental Health Bill have attempted to dodge around these ambiguities by setting five conditions for compulsory Examination, Assessment and Treatment. However, if we take any of the kinds of conditions referred to above these conditions are also threaded through with readily challengeable ambiguities, for example: 9(2) Just what is a “disturbance of mind or brain”? 9(3) What’s the interpretation of “nature or degree”? 9(4) What constitutes serious neglect? 9(5) Is treatment under Common Law suYcient to meet Human Rights?—and probably the highest earner for lawyers if this Bill becomes law—9(6) What is appropriate treatment for any given case? 3.4 One of the points made here is that if this Bill becomes law it will take years of testing in the courts for the ambiguities to be ironed out by precedent. In the meantime there will be a huge risk of floods of injustice. Surely no responsible Parliament can allow that? 3.5 There are important considerations here which make the diVerence between good and bad law but they almost require a clean slate: 3.5.1 A seminal European Court decision (Winterwerp) introduced the importance of the concept of freedom from arbitrariness as a requirement of medical evidence for compulsion. This should be built upon. The current position of loose and expandable definitions of mental disorder which lend themselves to wholesale abuse is outdated and not acceptable today. Taking account of continuing advances in social, psychiatric, psychological, neurological, and biochemical science and research, I diVer with the opinion that mental disorders cannot be classified accurately. 3.5.2 Taking this further, the condition which causes problems of serious risk to the person or others and which necessitates compulsory action is the mental incapacity arising out of it; not the mental disorder or mental illness itself. I am convinced that criteria for involuntary placement, help care and treatment should be strictly confined to mental incapacity to make informed, undistorted decisions and choices arising out of tightly defined mental disorders. I would, of course, include in a broad definition of mental incapacity those serious distortions of volition and judgement that are typical of mental disorders, such as depression. 3.5.3 Such a shift would have many beneficial consequences. Not the least of these would be the beginnings of a move away from the stigma of mental illness. It would also necessitate a move away from the obsessively narrow and dysfunctional medical focus that prevails around the imposition of involuntary detention and help. 3.5.4 Our UK society should take a rigourous look at our fundamental attitudes and approaches to the phenomena we have labelled “mental disorder” and “mental illness”. To my mind one massive problem is that the context of what little debate there is, is almost exclusively focussed around a medical perspective. That confined and institutionalised context narrows and skews cognition and sets up preconceptions.

4. Are the provisions for assessment and treatment in the Community adequate and suYcient? 4.1. Given the ﬂaws as stated above, they cannot be.

5. Does the draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 5.1 Firstly I must ask you to be more careful with the language you use: the stigma experienced by people with mental illness is not diminished by reference to them as an amorphous group “the mentally ill.” 5.2 This Bill is exclusively focussed on the compulsory treatment of people with a mental illness (see 2.1.) and still has an underlying agenda making its primary purpose public control of DSPD. The various derogations written into the Bill make it possible to incarcerate people without the involvement of the Courts or recourse to a proper trial. It cannot possibly be said to protect human rights. Ev 812 Joint Committee on the Draft Mental Bill: Evidence

6. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? 6.1 Obviously not.

7. Are there any important omissions in the Bill? 7.1 “the creation of a comprehensive legal framework for treatment and care, predominantly within a normal community environment.” (see 2.1) 7.2 Full integration with the Mental Capacity Bill.

8. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill? 8.1 I’m not clear what is meant by “institutional framework” here. If the meaning includes—as it should—the social and administrative institutions (ie bingo halls, coVee shops and transport companies), the bureaucracies (ie welfare beneﬁts) and the roles and functions within those (ie parking wardens and school teachers); then obviously no.

9. Are the safeguards against abuse adequate? 9.1 I am convinced they are not. Just one factor in this is the modified framework for assessment and examination. In my personal response to the Mental Health Bill 2002 (at appendix 1)11 I looked at the proposals to replace the ASW role with that of AMHP. A fundamentally essential component of the ASW role has been independence of employer, institution and professional culture (I say “has been” because this is diminishing with the secondment of ASWs to NHS employment). That fundamental independence has been a very eVective safeguard against some abuse. Training and professional standards for ASWs are probably amongst the highest in professional groupings in the UK. 9.2. There is a general acknowledgement that the roots and causes of mental disorder are heterogeneous but there remains a stubborn tendency in practice to take a narrow approach to the treatment and care of those people experiencing mental disorder via the “medical mindset”. From the thousands of consultant psychiatrists and section 12 doctors I worked with in a 30 year professional career as MWO then ASW the substantial majority were skilled, ethical, caring, conscientious and ready to put the welfare of their patients first by considering x“all the circumstances of the case” (Code of Practice, Mental Health Act 1983); albeit amazingly diverse in their (sometimes unscientific) psychiatric beliefs and practices. Unfortunately there was also a sizeable minority who were bigoted, egotistical, arrogant, dismissive of any alternative to their self- promotional course of action and ready to cavalierly remove someone’s liberty in order to get back to the golf course in the shortest time possible. Any AMHP employed in the same service as those in that minority would find it impossible to make an independent decision or take independent action (one of the roles of the ASW is that of advocate and it is an axiom of advocacy that you cannot advocate against your own employer). Additionally, because of the hierarchical occupational culture that exists in the NHS it would also be diYcult for an AMHP from a diVerent trust to get managerial support for any decision made contrary to a consultant psychiatrist. 9.3. I have suggested elsewhere that protections against abuse can be strengthened by introducing three separate professional strands independent of each other into the assessment/examination framework (see appendix 1, section 3). I have now, being convinced there should be a strong legal strand, consolidated those views. They are: (a) recommendations for the removal of a person’s liberty and compulsory treatment should only be made jointly by a consultant psychiatrist and a practising mental health lawyer; and (b) the application can only be made by an AMHP fully trained in line with ASW standards and functions (see appendix 1, section 3.3) and employed separately by the Healthcare Commission. 9.4.1 Strongly believe that the term “wherever it prefaces treatment” should be removed from the Bill.

10. Are the safeguards in respect of particularly vulnerable groups, for example children, suYcient? 10.1 I think the “person” person proposals are generally constructive and the “advocacy” proposals a huge advance. However, the training and numbers of advocates needs looking at—they are astoundingly few for the work they would carry out and training standards will need to be rigourous. 10.2 Expertise in language services (especially BSL and Makaton), comparative religion and cross cultural studies needs to be readily available on a positive basis. People with hearing disabilities are poorly served by this Bill (especially by the deﬁnition of mental disorder). 10.3 Again with reference to the Children Act 1989, all tribunals should have access to an appropriate professional in a Guardian ad Litem role.

11 Not printed. Joint Committee on the Draft Mental Bill: Evidence Ev 813

11. Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? 11.1 1983 Act safeguards are adequately codiﬁed but too often poorly observed in practice. The MH Bill proposes strengthened safeguards but there are those practitioners who will always try to ﬁnd shortcuts in the name of professional convenience. A great deal will depend on the availability, access to, acceptance of and standards of advocacy and the new role of independent consultee via the Mental Capacity Bill.

12. Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practices right? 12.1 No. See paragraph 1.2.

13. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? 13.1 Are they integrated at all? Is there a good case which says legislation dealing with mental incapacity renders legislation dealing with the compulsory treatment of mental disorder redundant? The very fact of that being a valid question demands that legislation dealing with both should be FULLY integrated.

14. Is the Draft Mental Health Bill in full compliance with the Human Rights Act? 14.1. No. I have said elsewhere (The Draft Mental Health Bill 2002, a personal response, at appendix 1): “I am also certain that principles written into new legislation should be cross-referenced to specific articles in the forthcoming Human Rights Act: Article 2—the right to life, in determination of those who pose a risk to themselves or others; Article 3—in relation to treatment considerations; Article 4—with respect to the management of those who are detained or subject to conditions; Article 5—with respect to liberty and security of the person; Article 6—in relation to tribunal practice and the right to a fair trial, including representation, especially for those who lack capacity; Article 7—with respect to the prohibition or protection of professionals against legal action by service users and carers; Article 8—in relation to respect for private and family life—which will aVect correspondence, visiting rights, entry into one’s home and the right to conjugal visits; Article 9—freedom of thought, conscience and religion; Article 10—freedom of expression; Article 11—freedom of assembly and association; Article 12—the right to marry and have a family; Article 14—prohibition of discrimination; and First Protocol articles 1, 2 and 3—the right to peaceful enjoyment of possessions, the right to education, and the right to free elections.” 14.2 In the same paper I give a clear example of how the Mental Health Bill 2002 failed to observe ECHR. This example remains relevant to the present Bill: “There is an issue here which I think is a clear breach of Article 8 ECHR, This is the question of initial referral and, consequent upon that referral the initial intrusion into someone’s privacy and liberty (for “initial examination”). I suppose the nearest analogy here (to ECHR) is the tenet that “Arrest is only lawful if it is based on a reasonable suspicion of having committed an oVence” (Blackstone’s Guide to the Human Rights Act 1998, John Wadham and Helen Mountfield). There are some extremely vulnerable people with mental health problems not warranting compulsion but who might become very disturbed at three people barging into their life to “examine” them, something which could become a self-fulfilling process. Additionally, the Bill’s requirement of an examination “if requested to do so by ANY person” seems to risk an invitation to make malicious referrals.”

15. What are likely to be the human and ﬁnancial resource implications of the draft bill? 15.1 There should no charge for any service or treatment consequent upon a compulsory order.

16. What will be the eVect on the roles of professionals? 16.1. No comment.

17. Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill? 17.1. No comment.

Summary — Principles should be fully and unambiguously stated in the Bill itself and not left to an as yet unpublished Code of Practice or Ministerial Regulations. The Code of Practice should have statutory force and should be annually reviewed by Parliament; Ev 814 Joint Committee on the Draft Mental Bill: Evidence

— mental health legislation should not be concerned principally with the exercise of compulsory powers and attendant safeguards, but with the creation of a comprehensive legal framework for holistic provision, treatment and care, predominantly within a normal community environment; — Following the precedent of the Children Act 1989 there should be a statutory requirement that the service user’s welfare is paramount; — there must be the empowered right to make choices to accept help on a voluntary basis before compulsion is considered. That means a duty on health trusts and local authorities to provide suYcient services of suYcient quality to enable viable choices; — given those viable choices, compulsion should only be considered where a person lacks mental capacity to make the choice; — There should be a statutory safeguard to ensure that when a service user has special needs (ie Makaton, Braille, Interpreter, Cultural or Religious Mentor) that these have been properly taken into account by someone with the relevant expertise during the compulsory assessment. — Determinations of disorder and risk must be based on scientifically validated objective criteria. — mental disorder should be redefined concomitantly; — it is a basic moral premise that those who have their liberty removed by society by means of mental health legislation should expect that legislation to do so primarily in the interests of their health and safety and by the least restrictive means; — advocacy services should be readily available and fully accessible. They should be available at the point of interference with the right to respect for private and family life. There must be full and eVective protections to ensure people are not wrongly detained and treated (ie for political, economic or cultural reasons, or reasons of professional convenience) and full, eVective and accessible means of appeal for those subject to compulsion; — a new distinct profession of Approved Mental Health Professional should be established. AMHPs should be trained to the same standards as ASWs (and that means a social work qualification and approval by 05CC) and with skills in mental capacity assessment and with a special qualification compatible with NVQ level 5. — AMHPs should be fully independent from the NHS or local authorities. I suggest it would be a positive move for AMHPs to be employed by one of the separate regulatory bodies. — Mental Health Act reform must be fully compatible with the Human Rights Act. — The Tribunals should have access to an investigator/guardian ad litem where necessary. — There should no charge for any service or treatment consequent upon a compulsory order. Mike Cox October 2004

Memorandum from Working Futures (DMH 115) Having read the Mental Health Bill I would like to make the following observations.

1. Representation My observations are based upon 35 years of working within the Mental Health System in a number of capacities, including: Co-ordinator of Voluntary Services, Social Worker, Mental Welfare OYcer, ASW, Operations Manager within the Voluntary Sector, Consultant in Mental Health and Recovery Practice, Development OYcer—Valued Occupation. My role in recent years has brought me into a close working relationship with a large number of people with a lived experience of mental distress, working with them as colleagues, in a listening role, and within forums and seminars where this has been a subject of discussion and debate. My views are my own but they incorporate the views of many people who have experienced the full impact of the Mental Health Act and those people who live under the implications of the Act and who are fearful of the powers contained within the Bill. Some of these people feel their voice is not being heard, as many of the organisations representing their views, have sought to make compromises with the Government, on the assumption that an Act, with compulsory powers, will be passed anyway.

2. In Summary Practitioners working within the Medical Model have successively failed to meet the needs of many people who experience mental distress. The primary need for a Mental Health Act derives from this failure and the Government’s inability to provide appropriate services based upon the Social Model, and a holistic/ recovery-orientated approach. Insofar as there may still, at this point in time, be a need for a Mental Health Act, it should address this failure rather than adding to the stigmatisation and victimisation of the Joint Committee on the Draft Mental Bill: Evidence Ev 815

individual. That is, the Mental Health Act should be invoked to draw in resources appropriate to the needs of the individual, rather than the individual being compulsorily detained and treated in a resource that often has little relevance to their particular circumstances and in a way that can leave them with even more diYculties to overcome. Where the current Mental Health Act and more particularly the Mental Health Bill seek to invoke the Act for reasons of social control these matters should be dealt with through other existing legislation, such as the criminal law. The vast majority of people, who experience mental distress in their lives, should no longer continue to be stigmatised by a small minority of people, who sometimes behave appallingly, and are able to excuse this behaviour, within the context of the Mental Health Act and by pleading “diminished responsibility”, as a consequence of their experience of mental distress.

3. A Right to Services We know from the research, that about 87% of people using mental health services, have experienced some form of trauma or a substantial period of stress. Mainstream services often fail to address this factor. The Medical model dominates assessment procedures, with its preoccupation with the diagnosing and treatment of the symptoms associated with “mental illness”. Whereas, from what we know, “mental illness” is often better understood as a side eVect of trauma, stress, or a predisposition to a set of symptoms, under particular circumstances. Research into psycho-neuro-immunology has shown that the circumstances within which treatment/support are given can account for up to 70% of the beneﬁts of the treatment. The emphasis of the Bill, with its concern for compulsory detention and treatment, maintains the victim status for people with a medical diagnosis, rather than giving them the right to the treatment, support and hope, that recognises, and listens to, the circumstances that gave rise to their distress and their aspirations for a hopeful future.

4. Compulsion Powers of compulsion lead to the professionals involved being forced to make decisions based, less upon what is best for the person in distress, and more upon what may be the consequences for me if I do not compulsorily admit this person to hospital. They can also lead to the person in distress being, on the one hand, forced to lie to the professionals conducting the assessment to avoid the potential consequences, or to them dropping any personal responsibility for their behaviour, associating it with their “illness”, and the behaviour becoming the responsibility of the professionals. This does not provide the foundation for a healthy mental health service. Nearly all of the enquiries into tragic events associated with people in extreme distress have shown that the person has tried to access services in the period leading up to the crisis. For compulsory powers to be helpful they would force service providers to unlock resources appropriate to the speciﬁc needs of the person.

5. Advocates Key to the release of resources as above will be the role of advocates who either, speak as though they were the person, or support the person to speak on their own behalf. This kind of professional advocacy service is currently under resourced and if people are to be able to appoint their own “nominated person” this will need to be underpinned with support and training opportunities provided through the advocacy service.

6. Advance Directives For Advance Directives to be eVective they need to have some legal authority. They are a resource that should be available to everyone but they are particularly valuable to people who have recurring bouts of distress. A vital part of the continuing recovery of a person, subject to these recurring episodes, is for them to be involved in planning how they are best managed in a way that encourages learning and hope for the future. Advance Directives need to evolve out of a process that enables the person to draw upon the skills of a team of professional mental health workers, supporters, and advocates to manage very diYcult situations in a way that allows the person to pick up the pieces of their life once the crisis has subsided. There are a group of people who ﬁnd that they beneﬁt from the compulsory powers contained within the existing Act, and such an agreement could include the use of such powers. Compulsory powers by agreement with the individual!

7. Alternative Powers There is a wide range of legislation within diVerent parts of the law for dealing with health and criminal emergencies. There is no need to have compulsory powers incorporated within the proposed legislation. Treating people diVerently, under the law, because of their mental distress, contributes in a major way towards stigma and discrimination. Mental distress is understood in terms of changes in the way a person feels, thinks and behaves. Changes, however, do not mean that these are “out of control”, and the person no longer has any responsibility for the consequences of their actions. Being “in love” changes the way in which people feel, think and behave. These changes can in certain circumstances lead to “crimes of passion”, but we do not need a separate legal framework to protect society, or people in love, from the potential consequences of the actions of this small number of people whose behaviour becomes unacceptable. Ev 816 Joint Committee on the Draft Mental Bill: Evidence

8. Personality Disorder

The powers within the Bill that invest in health professionals the right to predict future behaviour in some people are possibly its most controversial elements. In research carried out by NSF (now Rethink), in Cheltenham (1995), into the circumstances of a number of people, who were well known to a range of authorities, but who were not diagnosed as mentally ill, and who gave rise to fears about their potential behaviour, we found that these people were 10 times more likely to be the victims of violence. If they did retaliate, even in a minor way, they were held to be dangerous and the instigators of the incident. The preconceived notions of the authorities, the often-poor communication skills of the person, and the powers invoked by the authorities over the person, did sometimes lead to the predicted violent behaviour. The subsequent non-statutory work that was undertaken by NSF, following this research, demonstrated that a non-authoritative approach led to very positive outcomes for many of these people and the defusing of the predictive concerns about their potential behaviour. In recent years we have changed our approach to supporting people, who self-harm, recognising the self-harming, in most cases, as a coping strategy. This has changed the relationship between the person and the professional supporter to one of trust. Introducing the “predictive powers”, contained within the Bill, will completely undermine all that we have learnt about working with people.

9. Conclusion

The Bill, as currently drafted, fails to recognise the advances that have been made over the last two decades in listening to, and working with the consent of people who experience mental distress. The Bill perpetuates the myth that health and social care professionals are responsible for the future behaviour of people who experience mental distress. A holistic/recovery-orientated approach places the responsibility back with the person so that they can build a relationship based upon trust. People, who chose, or who are not in a position to take this responsibility, are still subject to the same laws as the rest of society. November 2004

Memorandum from Lizzie Maitland (Local Mind Group Organiser) (DMH 116)

1. This being an important new Mental Health Bill please may the Joint Committee consider our evidence on the subjects and clauses written below. As a Religious Education teacher and spokeswoman for the local Mind group in Rutland we are concerned with the entire mental health system at the moment and are delighted something is about to be done about it. For sometime many mental health service users have felt the professionals (pyschiatrists, doctors, social workers and nurses) have too much power. No-one should be forced to take drugs or go into hospital against their will. What does this say about human rights or the freedom to consent? We are hoping this new Mental Health Bill will change history to the eVect that in the future patients have freedom to choose and freedom from fear. Many clauses in this bill are good but some will not create the right eVect so that the mental health system can be destigmatised. 2. Firstly we hope “compulsion should be the last resort” (Part 1, clause 1–5) and the act will make sure every eVort should be made to listen to suVerers and their needs. For example the act will protect suVerers from professionals and, rather than being forced to take drugs against their will, allow suVerers to use alternative therapies and remedies. 3. Secondly “compulsion in the community”. (clause 7) To me this sounds like the lesser of two evils. Rather than forcing suVerers into hospital against their will they can stay in their own homes with support. However, there should be directives in the Act to enable suVerers to take alternative remedies rather than pyschiatric drugs. 4. Thirdly “Advance directives” (clause 23–25) — these will enable suVerers to choose “nominated persons” who will make sure their wishes will be met instead of being pushed around by “the closest relative”. 5. Most suVerers will agree this act is being made to protect us from the professionals and misinformed relatives who are acting out of ignorance and stupidity. We believe the majority of users will beneﬁt from this bill as long as we have the opportunity, from now on, to choose our own treatment (as suVerers in the NHS do when they have a physical complaint). On the whole we believe this act is a step in the right direction but it could do with just a few changes named above. We thank the Joint Committee in advance for helping us to achieve this freedom and peace of mind. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 817

Memorandum from Diane Wright (DMH 117)

As an individual who has suVered mental distress and subsequently experienced hospital treatment, often against my will, please allow me to submit my concerns about the proposed Mental Health Bill. Little or no considerations is given to the needs of a distressed individual by dictating treatment and taking away their rights. Time should be given to assertain the cause of their mental state and various forms of treatment including those not currently commonly available should be oVered rather than forced upon the suVerer. Many people nowadays are suVering through bad diet. This is a problem which deserves greater attention. There are many nutritional experts who have accomplised great successes with people with apparent Schizophrenia, since the mental capacity is badly eVected by dietry deﬁciencies that can be corrected. Moods are highly responsive to food types and education in this area could be improved to prevent the increase of mental disorders in general. Chiropractice treatment has also been found eVective in treating schizophrenia and other mental health problems, this is so because the spinal column often suVers from subluxations which, even when not painful, can prevent normal neural relays that aVect the brain. Why is this treatment not available on the NHS? If the Mental Health Bill goes ahead in its present state many people will lose this option as a treatment and as a result be incarcerated in hospital for a much greater time and at much greater cost in every sense. Finally—we have Care in the Community but still, in times of severe distress, mental health patients are given no option but to go into hospital. Presently there is often just no alternative. My children’s lives have been disrupted by my own hospital admissions. I would like to have an alternative which involves allowing them to stay at home and if possible me too. I am certain the reduced disruption to daily life would help hasten my recovery and others too. That is a very condensed rendition of my viewpoint and experience and I hope that you appreciate how important it is for you to look more closely at the issues I have raised. November 2004

Memorandum from Matilda MacAttram’s Independent Race Relations Health (IRRHC) Consultancy (DMH 118)

1. Preface Matilda MacAttram’s Independent Race Relations Health Consultancy (IRRHC) specialises in researching health issues in ethnic minority populations. The consultancy provides organisations with knowledge and understanding the need to develop products and services that truly meet the needs of the diverse communities that make up multi cultural Britain. IRRHC also plays a key role in developing and analysing race relations policy and legislation informed by the needs and concerns of Black groups in Britain. IRRHC is committed to Christian principles and aims to encourage positive social change and justice for all. IRRHC is keenly aware of the need for both equitable and socially inclusive Mental Health legislation and welcomes the opportunity to contribute to the pre-legislative scrutiny process. Historically, legislation based on compulsion and forced detention has been used against the black community. African Caribbean’s are over represented in every custodial setting. Department of Health ﬁgures show African Caribbean people are over ﬁve times more likely to be detained in high security units and six times more likely to be sectioned than their white counterparts. This ethnic group is also far more likely to be over medicated, despite the prevalence of common mental health problems being fairly similar across diVerent ethnic groups.12 While we appreciate that the Government faces the diYcult challenge of protecting the public, the Bill’s emphasis on perceived risk means that people with mental illness have been unfairly singled out for preventative detention,13 including anyone who appears to be “very dangerous” adding weight to the consensus that this is a law and order Bill. This will inevitably infringe on African Caribbeans’ civil rights and is a provision that is unlikely to fully meet the requirements of the Human Rights Act. IRRHC believes that legislation that aims to improve mental health service and delivery must be racially and culturally appropriate. We would like the Draft Mental Health Bill to develop stronger and more visible links with relevant anti-discrimination legislation in line with joined up Government, in particular the Race Relations (Amendment Act) 2000, The Disability Discrimination Act 1995, the Children’s Act 1989 and the Human Rights Act 1998.

12 Mental Health Social Exclusion Report, OYce of the Deputy Prime Minister June 2004. 13 Taylor & Gunn, 1999 Homicides by people with mental illness: myth and reality: British Journal of Psychiatry 174. 9–14. Ev 818 Joint Committee on the Draft Mental Bill: Evidence

This draft Mental Health bill will have a greater impact on African Caribbeans’ than any other group. We see it is vital that this new Bill should incorporate safeguards against the continuation of racial inequalities and disproportionate misdiagnosis wherever possible. It has been known for many years that African Caribbean patients suVer racial discrimination and this was highlighted in the Inquiry Report into the Death of David Bennett, published in December 2003. Secretary of State John Reid is expected to introduce a plan of action based on the Bennett Inquiry Report recommendations before the new year addressing the issue of institutional racism within the NHS which Sir John Bloeﬁeld said “besmirched the good name of the NHS”. NIMHE (The National Institute for Mental Health England) is also working to address widespread discrimination through its Delivery Race Equality Programme in BME Mental Health. Legislation that protects the public, patients and service users is welcomed but the Bill’s emphasis on perceived risk leans towards popularly held stereotypes of people with mental health issues as being dangerous and posing a threat. IRRHC would like to see the emphasis focused on provision and delivery of racially and culturally appropriate mental health services, protecting the public while caring for, rather than stigmatising, those who need help. This consultation presents the only opportunity to voice African Caribbean concerns about this draft bill which is likely to last for another 10 years. IRRHC sincerely hope that our calls for the changes that need to come out of this consultation are incorporated into the Bill.

2. General Principles

Part 1 Introductory

1. Code of Practice: General Principles and Guidance We commend the general principles and guidance in this Bill made in the introduction under Part 1 and recommend that this bill be cross referenced with other Government initiatives and anti-discrimination legislation. This should be done with regard to the Race Relations Amendment Act, The Disability Discrimination Act, The Children’s Act and the Human Rights Act.

3. Definition of Mental Disorder

Part 1 Section 2 (5) Mental disorder means an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain; and “mentally disordered” is to be read accordingly. IRRHC believe that the definition of mental disorder to far too wide and will invariably worsen the racial inequalities that are already the focus of concern for the African Caribbean community. As the definition stands it covers any condition such as drug or alcohol abuse. On canvassing a number of Black voluntary mental health services for research commissioned by the African Caribbean Mental Health Commission on this issue IRRHC’s findings indicate that unless this Bill is changed, mental health services will lose whatever trust remains within the BME community. It will also make the work of professionals, who are for the most part making great strides toward providing non-racist, culturally sensitive care, very diYcult. A definition suitable for a multicultural society of the 21st century needs to be applied. At the very least the definition should have specific exclusions, such as those in the current Mental Health Act 1983. Exclusions ensure practitioners consider carefully the basis for compulsory treatment; these exceptions also protect people from society’s tendency to incarcerate its socially undesirable members.

4. Admission Criteria

Part 2 Examination, Assessment and Treatment

Chapter 1. Interpretation etc. Our consultancy is concerned at the addition of this provision to this Draft Mental Health Bill detailed below: Paragraph 9 (7) “The fourth condition does not apply in the case of a patient aged 16 or over who is at substantial risk of causing serious harm to other persons. Paragraph 9 (8) For the purposes of this Part, a determination as to whether a patient is at substantial risk of causing serious harm to other persons is to be treated as part of the determination as to whether all of the relevant conditions appear to be or are met in his case.” Joint Committee on the Draft Mental Bill: Evidence Ev 819

IRRHC notes that paragraphs (7) and (8) are new to the Bill and strengthen the bias of the Bill towards being a law and order Bill. They emphasise the risk to the public rather than the provision of a service, which IRRHC sees as misplaced, the emphasis for the legislation needs to be on helping a patient recover from their illness. IRRHC is completely opposed to paragraph (8). “Substantial risk” should not be part of the determinations as to whether a patient suVers “mental disorder” and/or requires treatment. There are no reliable objective grounds on which a doctor or any other professional can estimate “substantial risk”. These two paragraphs conﬁrm the consensus among human rights and race equality and mental health specialists that this is a “Public Order Bill”. IRRHC request that both of these provisions be removed from the bill.

5. Treatment

Part 1 paragraph 2 (7) states: “References to medical treatment are references to treatment for mental disorder provided under the supervision of an approved clinician; and for this purpose ‘treatment’ includes: (a) nursing; (b) care; (c) cognitive therapy, behaviour therapy, counselling or other psychological intervention; (d) habilitation (including education, and training in work, social and independent living skills; and (e) rehabilitation (read in accordance with paragraph (d))”. IRRHC sees this deﬁnition of treatment as too wide compared with the draft Mental Health Bill 2002. The inclusion of therapies listed under (c) are not justiﬁed. These therapies cannot be on a compulsory basis. We are hopeful that unethical practice is unlikely to be carried out under these provisions but as this bill is likely to last for another 10 years it should protect people from possible misuse of psychiatric power in the future. IRRHC’s view that it is drug therapy that would require compulsion. All other forms of therapy would require the patient’s co-operation. It would be unethical to detain someone on the basis of requiring therapy that they need to co-operate in receiving. IRRHC believes that it is not necessary to include therapies listed in (d) and (e) as they are not therapies that justify compulsory detention and requests that they be deleted from the Bill. If paragraphs (7) and (8) referred to above were used in conjunction with (d) and (e) it would allow for abuse of sectioning, detaining people on apparently “medical” grounds which are tantamount to preventative custody for social reason. In line with joined up government and the Race Relations (Amendment) Act 2000 and anti discrimination legislation IRRHC recommend that wherever treatment is mentioned, the need for it to be “culturally appropriate” is inserted into this Bill. This wording should be applied in all instances of treatment.

6. Advocacy

Chapter 2. Independent Mental Health Advocates.

IMHA advocates Access to independent advocacy is essential for people liable to compulsory treatment. IRRHC welcomes section 247 on Independent Mental Health Act Advocates. That said, we feel that it is imperative that the right to an advocate is at the initial examination stage rather than the assessment stage as specified in the bill. The examination stage of the process can last up to five days (or maybe seven) and the Bill specifically excludes the involvement of an advocate during this period, but it is this initial stage, when a patient’s cooperation or non-cooperation will be likely to determine whether compulsory power will need to be invoked that an advocate is needed. Research indicates that mental health professionals invariably perceive African Caribbean’s as “big black and dangerous”14, this evidence makes the presence of an advocate essential, as they will play a vital role in interpreting and conveying the patients wishes and negotiating between the parties and assisting a resolution to avoid compulsion. IRRHC is calling for the right for all patients detained under this Bill to have access to an independent advocate trained in cultural diversity at the initial examination stage, IRRHC requests that this provision be embodied in the draft Mental Health Bill.

14 Breaking the Circles of Fear Report, The Sainsbury Centre for Mental Health. Ev 820 Joint Committee on the Draft Mental Bill: Evidence

IRRHC cannot emphasise enough the importance of appropriately trained advocates who are well schooled in cultural diversity given the disproportionately high numbers of African Caribbeans currently in the mental health system. We would like to ﬂag up a concern about the ﬁgure of 140 advocates which we feel is too small and raise the question of who will train them. The right of an advocate at the initial examination is particularly important in the case of BME communities and it is appropriate for such a right to be incorporated within the Mental Health Act itself.

7. The Removal of Section 117 The removal of Section 117 of the Mental Health Act 1983 which places duties on both health and local social services to provide free aftercare services until they are satisﬁed that the discharged patient is no longer in need of support is deplorable. The six week period for free continuing care does not take into account individual’s needs or local gaps in service provision. When discharged from a compulsory order people often need intense support. Making people pay for their care after six weeks may prevent many from continuing to engage with services and seriously endanger recovery. Again the change will disproportionately aVect African Caribbean’s leaving the mental health institutions because of over representation within the system. IRRHC recommends a clause that includes a duty on authorities to provide continuing care services following discharge from an order, equivalent to Section 117 including the provision of free care until such time as the care is no longer required.

8. Tribunals

Schedule 2 Section 4 Constitution of Mental Health Tribunals for England and Wales Schedule 2 of the Draft Bill states that the new Tribunal should consist of a legal members, a clinical member and another member with such experience who is not a legal or clinical member. IRRHC believes as a matter of principle that wherever possible be from the BME community, preferably with experience of mental health services so that the Tribunal is reﬂective of the client group it has been set up to serve. IRRHC would like to be consulted on the make up of Tribunals.

9. Expert Panel

Part 1 Introductory, Section 7 Paragraph 7: BME mental health agencies should be approached to give nominations for membership for the expert panel. In order to be in line with the Race Relations Act our Consultancy recommends that the Department for Constitutional AVairs actively recruits BME members to so there is a healthy reserve of BME member for consideration to the Panel membership.

Memorandum from Mark Sacco (DMH 119) Summary IoVer my experience of treatment and recovery from an acute psychotic episode as evidence to the Joint Committee. My experience as a voluntary patient in the care of Newcastle, North Tyneside and Northumberland Mental Health NHS Trust has been very positive. I am concerned that aspects of the Draft Mental Health Bill might undermine the quality of support oVered to others. I suggest that the Draft Bill could be improved by: — a right to services—to provide assurance that people will gain prompt access to the care and treatment appropriate to their needs; — compulsion as a last resort—to recognise the long-term value of a co-operative approach; — no compulsion in the community—this extremely oVensive proposal would alienate people, undermine the eVectiveness of treatment and ultimately increase the risk to individuals and to society; and — a right to aftercare, to recognise that the period of readjustment following a severe mental illness is much greater than six weeks. Joint Committee on the Draft Mental Bill: Evidence Ev 821

1. Introduction 1.1 I am a mental outpatient under the care of Newcastle, North Tyneside and Northumberland Mental Health NHS Trust. I have recent experience of an acute psychotic episode triggered by work-related stress and admission to North Tyneside General Hospital where I was an in-patient for several months. I have now returned to full-time work and acknowledge the excellent care and support I have received. I am concerned that aspects of the Draft Mental Health Bill might undermine the quality of support oVered to others. I wish my experience presented in this memorandum to be treated as evidence by the Joint Committee. 1.2 I am concerned about: — A right to services. — Compulsion as a last resort. — Compulsion in the community. — A right to aftercare.

2. A Right to Services 2.2 When I was reaching a crisis point I sought help immediately to avert it. I went to an accident and emergency department, explained that something was badly wrong and asked for this to be assessed by qualiﬁed staV. This was done and I was promptly admitted to hospital. Prompt action was vital to enabling me to co-operate with service providers; the action was taken while I was still in control. 2.3 The Draft Bill does not provide suYcient assurance that people will gain prompt access to the care and treatment appropriate to their needs. 2.4 The Draft Bill could be improved by providing a right to services.

3. Compulsion as a Last Resort 3.1 I have a co-operative and constructive relationship with the team assigned to my care. I have contact with representatives of the team for about one hour every two months. With this minimum level of supervision, I take all prescribed medication daily, arrange repeat prescriptions as necessary and provide open and honest feedback to the team to enable monitoring. This arrangement is eVective because I am willing to co-operate. I have never been subject to compulsory care and am convinced that if I ever was my desire to co-operate would be replaced by a desire for complete autonomy. The destructive consequences of compulsion should be recognised. 3.2 The Draft Bill makes compulsion more likely to happen than the current legislation. 3.3 The Draft Bill could be improved by reserving compulsion as a last resort.

4. Compulsion in the Community 4.1 The notion of compulsion in the community is extremely oVensive. If I was subjected to this manner of treatment then severing contact with mental health services would become a priority in my life. In these circumstances I would have no conﬁdence in the mental health team and would seek liberation from monitoring and medication at the earliest opportunity. I suggest this would be a natural and predictable reaction to such a vile intrusion. 4.2 The Draft Bill provides for compulsion in the community. This would alienate patients and hence undermine the eVectiveness of treatment which depends on the relationship with patients as well as the administration of drugs. Compulsion in the community would therefore ultimately increase the risk to individuals and to society. 4.3 The Draft Bill could be improved by reserving compulsion for those extreme situations when it is genuinely needed. In such circumstances, admission to hospital is essential to provide the necessary level of supervision. The provision for compulsion in the community should therefore be removed.

5. A Right to Aftercare 5.1 Following discharge from hospital it was three months before I was able to return to work. A phased return over six months then provided a gradual increase in my working hours and my range of responsibilities. I was very fortunate to have a supportive employer, a supportive wife and access to a sick pay scheme that maintained my income. Even under these excellent conditions it took a long time to rebuild my life and my longing for a speedy recovery did not accelerate the process. I am now at least as eVective in my role as I was before. Credit is due to those who have provided care throughout my recovery. Ev 822 Joint Committee on the Draft Mental Bill: Evidence

5.2 The Draft Bill restricts the right to free aftercare for people that have been in hospital under compulsory powers to just six weeks. This period is negligible in comparison with the time needed to readjust to the world following severe mental illness. 5.3 The Draft Bill could be improved by the removal of the six-week constraint on free aftercare. The Joint Committee is asked to recognise the need for a signiﬁcantly longer period of readjustment following severe mental illness and the need for a high level of practical support during this vulnerable time. November 2004

Memorandum from Mind in Bexley (DMH 120) Mind in Bexley is a local charitable organisation, aiming to provide support to residents of the London Borough of Bexley who have mental health problems. I am writing on behalf of the organisation with regard to the Draft Mental Health Bill, which is currently undergoing pre-legislative scrutiny by a Joint Committee of Parliament, and would wish this memorandum to be treated as evidence to this Committee. 1. Firstly, we would like to suggest that this proposed Bill appears to increase the medical, or clinical, dominance of the approach to mental health and mental health service users, while seeking to diminish the ability of service users to assert their own views with regard to their treatment. It is alarming to discover that an individual has no recourse under the proposed Bill to the resources of an organisation, eg for independent advocacy at the “examination stage”. This, in eVect, disempowers the service user by not providing the opportunity to be fully informed of their position. In addition, the proposed Bill does not appear to allow for social or environmental solutions within the therapeutic process, concentrating as it does increasingly on compulsion to medical treatment. 2. Secondly, it appears to us somewhat ironic, that while the OYce of the Deputy Prime Minister, via the Social Exclusion Unit, is currently issuing guidelines promoting the “social inclusion” of “people aVected by mental health problems”, the proposed Bill, in eVect, seeks to promote their social exclusion. This can be seen in the discussion in the above paragraph (1), where people with mental health problems are not given the right as citizens to access advocacy services for support. In addition Mind in Bexley feels that the proposed “compulsory treatment orders” socially excludes people with mental health problems by the act of compulsion to treatment, an approach no other section of society (with the possible exception of those within the criminal justice system) is expected to endure. Indeed the proposed Bill appears to establish mental health service users as being on a par with those found guilty within the criminal justice system, by suggesting that those with mental health problems are dangerous and need to be compelled to take medical treatment either at home, or to be forcibly removed to a hospital setting should they continue to refuse. This appears to be based solely upon whether the individual is complying with taking their medication, and not whether the individual is actually suVering from an acute mental health problem at the time of compulsion. Thus, the service user could be well enough but simply refuses to comply with medical treatment. Currently that would not be enough to admit them to hospital under section. This appears to us to equate refusal to comply with a criminal act, further marginalising mental health service users within their community, and within society as a whole. 3. Furthermore, it is understood that the intention of the draft bill is for criminal courts to have similar powers to mental health tribunals so that the detention under a criminal section should be subject to the same degree of scrutiny as that under a civil section. In itself this is a sensible and fair approach, however Mind in Bexley would ask the committee to consider how the proposed criminal sections would work in practice. Lay justices, District Judges (Magistrates’ Courts) and their legal advisers have no particular expertise in mental health, neither do most advocates appearing in criminal courts. Further, hearings in which a defendant may wish to contest his/her care plan must be accommodated in magistrates’ court lists. Mind in Bexley is concerned the result will be that defendants are not properly represented and their cases are considered by those with no proper training and insuYcient time to time to devote to diYcult cases. It appears that in a magistrates’ court could even be asked to authorise care plans, as part of a ﬁnal disposal, which include electro convulsive therapy (clause 79 (4)); there is a clear danger that defendants could see such treatment as part of a punishment for an oVence. 4. Following on from this Mind in Bexley believe that the proposed Bill will reinforce the prejudice and stigma associated with mental health, and therefore, with people with mental health problems. The proposed Bill appears to suggest a link between mental health and “dangerousness”, especially regarding those diagnosed has having a “personality disorder”. As outlined above (paragraph 2), the proposed Bill appears to criminalise mental health service users through the use of compulsory treatment and forcible removal to hospital. In addition it is noted that the proposed Bill seeks to extend the powers of the police, by allowing them to enter an individuals private premises in an emergency without a warrant (our emphasis) where it is believed that someone is in urgent need of treatment. This only serves to reinforce the prejudice and stigma associated with mental health in wider society, suggesting the dangers of those with mental health problems, implying a threat to the wider community. It also appears to reinforce the popular, or tabloid view, that people with mental health problems need to be “locked up” for the safety of others. It is our experience that the reality is quite the opposite, with people with mental health problems being vulnerable, frightened, bullied, and becoming, as a result, socially isolated. Thus it is not the behaviour of people with mental health Joint Committee on the Draft Mental Bill: Evidence Ev 823

problems, or even the refusal to comply with medication, that leads to social exclusion and stigma, but the imagined threat, subsequent attitude, and resultant behaviour of society to mental health issues and those with support needs. We believe that this proposed Bill, if accepted, will only reinforce these attitudes, leading to the further exclusion of mental health service users within British society. 5. For all of the above reasons (paragraphs 1-3) Mind in Bexley believes the proposed Bill to be regressive in its approach to mental health in the United Kingdom. A lot of work has been done, and continues to be done, in the mental health ﬁeld over the past years to bring mental health, and mental health service users, in from the outer edges of society toward a more socially inclusive position. Within this, and of great importance, has been the eVorts to develop trust with people who have mental health support needs and who therefore use mental health services, both statutory and voluntary provision. In addition, work has been done to educate wider society concerning the reality of mental health issues, and the reality of people with mental health problems. Our concern is that areas of this proposed Bill will seek to undo this work, leading to the marginalisation, and social exclusion, of people with mental health support needs once more. To introduce compulsion to treatment, reduce people’s access to support and advocacy, suggest that people are dangerous, extend police powers, and introduce time-limited aftercare, can only take mental health back a couple of decades, as opposed to moving it forward in the 21st century. 6. Mind in Bexley believes, therefore, that the implications of the proposed Bill have not been fully considered with regard to new and existing users of mental health services. As outlined above, we feel that the proposed Bill is medically dominated, would lead to social exclusion, promote negative attitudes, reinforce the stigma associated with mental health, and be regressive in its approach. This being the case, we feel it is inevitable that, as a consequence of this proposed Bill, many existing and potentially new users of mental health services will decide not to seek help with their problems. This would be due directly to the perception of service users to the implications for their rights as individual citizens should they enter into the statutory mental health system. This could lead to many vulnerable people not receiving the care they need, and could have a far-reaching impact, not only with regard to people not receiving the care and support they need, but also with regard to professional crisis management, hospital bed pressures through increased emergency admissions, and the local economy as people’s income reduces due to unclaimed welfare beneﬁts. The above constitutes Mind in Bexley’s evidence to the Joint Committee. We trust that these views will be considered by them, and we thank you for your attention. October 2004

Memorandum from J Rowland (DMH 121) I welcome many of the proposals of the above draft bill, including: — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Special provisions for children and young people. — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go along way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals. Some appear to remain exactly the same as the concerns that were expressed by many respected organisations following the draft bill’s first introduction in 2002. I would ask the committee to seriously consider addressing my following concerns before proceeding any further with what could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS: — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. Ev 824 Joint Committee on the Draft Mental Bill: Evidence

— A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and speciﬁcally that doses above BNF limits should not be given without informed consent. I trust that the concerns I have raised above will be considered by the committee and I look forward to your response. November 2004

Memorandum from Redcar and Cleveland Mind (DMH 122)

We are writing to you with some of our concerns about the Draft Mental Health Bill and we wish this letter of concern to be treated as evidence. 1. Compulsory Treatment—we think the category “mental disorder” is open to too much subjective interpretation and may lead to people being assessed as requiring compulsory treatment inappropriately. Our concern is that rather than enabling appropriate and speedy treatment that the person feels able to request freely, the act will in fact deter people from seeking treatment because they will feel more likely to be unnecessarily detained or treated without regard to their wishes made either in advance or while they have capacity which is not recognised. The National Service Framework External Reference Group recommended that people with mental health problems should be involved in planning and delivery of their care and that services will deliver high-quality treatment and care which is known to be eVective and appropriate and suited to those who use them. We believe that the current Bill detracts from this aim. It is a basic human right (accepted in physical medicine) that people who have capacity have the choice of treatment and whether or not to refuse it. We believe it is wrong for the Draft Bill definitions to be so wide that many more people may at risk of compulsory treatment and loss of liberty. Furthermore, the whole emphasis of the Draft Bill is skewed by the concerns around dangerousness, which reflects the endemic stigma against people with mental health issues in society as a whole. We are very concerned that the Draft Bill will itself reinforce the stigma and lead to more people disengaging from mental health services as a result. It is also inherently discriminatory—few other laws oVer preventive detention of people who may put others at risk—for example people who may abuse their partners, become drug dealers, or dangerous drivers; who are already misreported as being “lunatic”, “psycho”, “mad” in the majority of the media. 2. Legal Protections—we are concerned at the reduction of the powers of the nominated person to contribute to the care package and very concerned that they lose the present right of the nearest relative to discharge the patient. We have confidence that the nominated person who is actively and openly included in the care decision-making process will not inappropriately discharge a patient. We believe that this reduction in the powers vested in the nominated person will contribute to a loss of confidence that the care team is meeting the best interests of the patient. We believe this vital legal protection should remain with the nominated person in the same way as the present Bill empowers the nearest relative. Whilst welcoming the provision for independent advocacy we believe that this should be enabled at the start of the process of someone being engaged with mental health services and particularly before any detention or compulsory treatment order is made. 3. Aftercare—at the moment people who have been in hospital under compulsory powers on discharge are entitled to free aftercare which includes a safe place to live and community care services. We are very concerned that a limited arbitrary six weeks is the only provision in the new Draft Bill. This is totally inadequate for someone seeking to rebuild a place in their community of choice or return to the community where they have established social networks and services available. It is essential that people have a place they consider safe to live in and the support of a network of people and service provision that enables their recovery and prevents relapse and readmission. We believe that this draconian limitation on aftercare is in direct contrast to the aims expressed in the OYce of the Deputy Prime Ministers’ Report “Mental Health & Social Exclusion” which emphasises “recognition of the fundamental importance of people’s relationships, family and caring responsibilities, a decent home, and participation in social and leisure facilities and health &socialcareservices....”.Buildingaplaceinacommunitytakes time in the best of circumstances; people after discharge from compulsory detention often have to start again from a much lower level of social inclusion. November 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 825

Memorandum from Mr R Keys (DMH 123)

SAFEGUARD AGAINST WRONGFUL COMPULSORY TREATMENT

Safeguard: MHA 1983 Mental Health Bill Comments MHB safeguard (MHB) ! or –

Definition of Mental Disorder Clause 2 defines mental The MHB gives a broad Safeguard Minus Section 1 specifies that patients disorder as “an “catch-all” definition, which can only be detained on longer impairment of or a since it includes “any” term sections if they meet one or disturbance in the disability or disorder, is more of the following categories: functioning of the mind eVectively no definition at — Mental illness or brain resulting from all. Whilst the MHA gives — Mental impairment any disability or no definition of mental — Severe mental impairment disorder of the mind or illness it provides definitions — Psychopathic disorder. brain.” of the other categories which Patients with “any other guide clinical practice in disorder or disability of mind” areas where treatment is of can only be detained on less certain benefit than for emergency or assessment mental illness. sections. Mental illness is not defined but the other categories have a written definition. Conditions for use of formal Clause 9 requires the Because formal powers are Safeguard Minus powers following before “formal no longer linked with Section 2 states that mental powers can be used”. detention in hospital, but disorder must be of “a nature or — The person must can mean assessment or degree which warrants the have a mental disorder treatment in the community, detention of the patient in a — It must be of a the scope for compulsion hospital for assessment”. Section nature or degree to has necessarily been 3 states that the mental disorder warrant specialist broadened. Under the MHA must fall within the four-fold treatment a patient has to need categorisation and be of a — Treatment must be hospital admission, though nature or degree which makes it necessary to protect this is linked to a broad appropriate to receive medical against suicide, serious concept of “health safety or treatment in a hospital. self-harm, or serious safety of others”. Under the Detention for assessment or self-neglect of health or MHB there is no necessary treatment is only permitted if safety, or be for the link with hospital. The first there is no other way of protection of others. two conditions would providing them except through — The situation must include all current patients compulsory admission to be such that medical of mental health services. hospital. The assessment or treatment cannot However, the conditions treatment must be necessary for lawfully be provided tighten “health” to become the patient’s health, safety or the except under formal “serious self-neglect of safety of others. powers. health.” Much would depend on how broadly this is interpreted. If a broad interpretation is allowed the ability to use compulsion is considerably widened. Treatability Clause Clause 9 states that Clause 9 goes some way Safeguard Minus Section 3(2) attaches a medical treatment must towards reinstating the “treatability test” to mental be available “which is “treatability test” but is not impairment and psychopathic appropriate to the clear enough that as well as disorder. The eVect is that patient’s case, taking treatment being available it people can only be detained for into account the nature must also be such that the those disorders after the initial and degree of the patient will benefit from it. assessment period if treatment is patient’s mental disorder likely to alleviate or prevent a and all other deterioration of their condition. circumstances of his/her case.” Exclusion Clauses No equivalent clause. Sexual deviancy and Safeguard Minus Section 1 states that no one may addiction, at least, can be be said to have a mental seen as examples of mental disorder “by reason only of disorder. If they were promiscuity or other immoral interpreted as mental conduct, sexual deviancy or disorders of a nature or dependence on alcohol or degree to warrant drugs”. compulsory treatment, no Ev 826 Joint Committee on the Draft Mental Bill: Evidence

Safeguard: MHA 1983 Mental Health Bill Comments MHB safeguard (MHB) ! or –

speciﬁc protection in the MHB would prevent this. Process of Detention Assessment Agreement by two Similar provisions, but it is Safeguard Minus Recommendations from two doctors for initial unlikely that AMHPs will doctors (S.2) or just one doctor assessment (up to 28 have the same managerial, (S.4) and application by days) or one doctor for professional and cultural Approved Social Worker emergency order (72 independence from doctors (ASW). S.2 is for 28 days, S.4 hours) and agreement by as ASWs. AMHPs can be for 72 hours. If two doctors, one AMHP. If two doctors social workers but will often must be S.12 approved. one must have expertise be nurses, OTs or others in mental health. with a closer allegiance to medical values. Treatment under Section 3 Treatment must be Since decisions to detain for Safeguard Plus As for S.2 but no equivalent preceded by assessment. over 28 days must be subject emergency power. It must be authorised by to scrutiny by the MHT, the MHT who will safeguards in the MHB scrutinise and, if against wrongful detention appropriate, endorse an are stronger. application by the Clinical Supervisor. No legal requirement for there Compulsory treatment In practice patients have Safeguard Plus to be a care plan. can only proceed on the care plans already so it is not basis of a statutory care clear how much extra plan, which can be protection a statutory care modiﬁed by the MHT, plan will give except that the in agreement with the MHT must agree to it. Clinical Supervisor. Consultation Nominated Person The nominated person does Safeguard Minus The nearest relative is chosen by the patient not provide a safeguard determined by reference to a set subject to a veto by the since they have no power the order laid down in S.26. The AMHP. Does not have patient does not have. The nearest relative: to be a relative. MHA balances power — Must be informed of a S.2. Must be informed of an between professionals and — Must be consulted about a application for use of family. The balance within S.3. compulsory powers, the MHB is tilted towards The diVerence is that the nearest though only after it has professionals. The result is a relative can prevent a S.3 unless taken place. No power more professionally displaced by a Court on the to object. controlled Bill with no lay or grounds that their objection is family role. unreasonable. Nearest Relatives can apply to a Nominated Person can In practice patients apply Safeguard MHRT or Hospital Managers apply to the MHT. themselves. Neutral on the patient’s behalf. Nearest Relatives can discharge Nominated Person has There is no safeguard for a Safeguard Minus a patient subject to (a) giving 72 no power to discharge. family member or other hours notice in writing (b) a person to discharge from barring order by the compulsion someone who is Responsible Medical OYcer on not dangerous. the grounds of dangerousness. No equivalent, though in Informal Carers have Again, consultation does not Safeguard practice this will often happen. right to be consulted give the power to object. Neutral about key decisions (Clause 12). No equivalent right to an MHB provides for In practice, many patients Safeguard Plus advocate. access to independent already access advocacy advocacy for all patients services, but this change is to subject to compulsory be welcomed. powers. Appeal Process MHT Despite information about Safeguard Plus MHRTs Right to appeal to Must endorse any rights, up to 50% of detained MHRT. Once in each period of decision to use patients do not appeal. detention. compulsory powers over Under the MHB all uses of Joint Committee on the Draft Mental Bill: Evidence Ev 827

Safeguard: MHA 1983 Mental Health Bill Comments MHB safeguard (MHB) ! or –

— Once against S.2 (28 days) 28 days. compulsory powers will be — Once against S.3 (6 months) Patient can appeal subject to scrutiny. Not — Once against S.3 renewed against compulsory being able to appeal against Safeguard Minus (6 months) powers. 3 month treatment orders is — Once against S.3 renewed — Once within 28 days a clear breach of the ECHR. (one year) — Once within a 6 The current MHRT is — automatic referral to month treatment period, focused solely on appeals . Safeguard Minus MHRT if a S.3 is renewed but not if the treatment The MHT has a dual without the patient having is for only 3 months*. function: appealed. *It is not clear if the — To provide authority patient gets a right of for compulsion powers after appeal if a 3 month 28 days treatment period is — To hear appeals against followed by a second 3 us of compulsory powers. month treatment period. One body cannot perform both functions without loss of focus. It is likely to tilt the balance towards detention rather than discharge. The right of appeal should be to an independent body. Hospital Managers No equivalent in MHB. By abolishing Hospital Safeguard Minus Lay panels appointed by Trusts No role for the Managers the patient’s right but run at arms length. They: layperson except as the to appeal is weakened — provide the legal authority specialist lay member of despite the MHT. eg A for detention. the MHT. patient detained on S.3 — hear appeals against whose appeal to the MHRT detention. Patients can appeal fails at the sixth week can an unlimited number of times appeal to the Hospital (though in practice they do not Managers and be heard at do so) (eg) the twelfth week and be — monitor use of the MHA discharged. The same and standards of patient care patient under the MHB (eg via ward visits). would have no further right to appeal after a hearing at the sixth week until the second 6 month period of detention. In modern psychiatry, a lot can happen in 6 weeks in terms of mental improvement. Safeguard Minus The involvement of the local community in monitoring mental health care will be greatly diminished. Discharge Under MHB, the MHT The MHB subjects doctors Safeguard Minus Patients on S.37/41 and S.47/48 can reserve to itself the to control in dangerous (ie criminal oVenders who are right to discharge (and cases. This is designed to directed to hospital via the authorise leave or “safeguard” the public from Courts) can only be discharged transfer) in “dangerous” ill-considered or premature by the MHRT or Home OYce. cases (to be deﬁned in discharges. It may result in a Patient discharged on S.41 are Regulations, but refusal to discharge or a subject to conditions in the unlikely to be restricted permission only to community, and can still only be to patients who have “transfer” the patient to discharged by the MHRT/Home broken the law.) “non-residency”. OYce. For patients it means that there are two doors to go through to obtain discharge; — the Clinical Supervisor — the MHT. For them it is the opposite of a safeguard. Most of these patients will not have broken the law, but may struggle to obtain discharge even with the support of their Clinical Supervisor. Ev 828 Joint Committee on the Draft Mental Bill: Evidence

Safeguard: MHA 1983 Mental Health Bill Comments MHB safeguard (MHB) ! or –

Aftercare Clause 53 provides that An important safeguard Safeguard Minus S.117 provides a legal right to where a service must be against vulnerable people free aftercare for patients who “accepted” as a not receiving aftercare is have been on a treatment compulsory condition in seriously weakened. The six section. Local Authorities and the community no week period is derisory in Health Authorities have a duty charge may be made comparison to the length of to co-operate to provide services (with the exception of time patients can remain in assessed as being necessary. “ordinary need of aftercare. S117 is accommodation”). often invoked to obtain Clause 143 specifies that services a patient would not charges cannot be made otherwise get. Patients who for local authority are charged for a service services for a period of 6 often decline it. weeks from discharge from compulsion. Transfers The patient and their This is an improvement and Safeguard Plus No specific requirements around nominated person must builds in additional transfer from one hospital to be notified and given 7 safeguards. another beyond: days notice of transfer. — completion of Form 24 If either objects the under S.19 decision to transfer must — re-reading of S.132 rights be referred to the MHT. after transfer. There are no rights for patients or nearest relatives to object to transfer

November 2004

Memorandum from Hospital Managers’ Committee, North East London Mental Health NHS Trust (NELMHT) (DMH 124) This submission for the enhancement of the role of Hospital Managers under the Draft Mental Health Bill is made on behalf of the Hospital Managers’ Committee, North East London Mental Health NHS Trust (NELMHT). Membership of the Hospital Managers’ Committee comprises six Non-executive Directors of the Trust together with 27 Associate Hospital Managers. 1. The bill makes provision for a considerably reduced function for Hospital Managers when compared with the role they currently fulfil under the Mental Health Act 1983. 2. The new duties for Hospital Managers are such that they would be carried out by managers of the hospital and not, as at present, by non-executive directors and associate hospital managers. Within an NHS mental health trust they will be delegated to MHA Administrators, with—perhaps—one non-executive director taking a lead on the Act to be the point of reference for the Board. 3. The Hospital Managers within NELMHT currently comprise six non-executive directors together with twenty-five Associate Hospital Managers. 4. The NHS in general and mental health services in particular would lose the expertise and commitment of people from the local community who currently fulfil the function of Hospital Managers. 5. Hospital Managers are lay people recruited from, and representative of, the local community. They provide independent scrutiny on behalf of the community. 6. Hospital Managers’ Panels should be retained to hear appeals from detained patients. The Mental Health Tribunal (MHT) and the Mental Health Appeal Tribunal (MHAT) will be perceived as bodies representing the professional establishment, whereas Hospital Managers would be seen as being representative of the local community. 7. The MHT is both the detaining and the appeal body and will be perceived as such. Retaining the right to appeal to Hospital Managers under the bill would be seen by detained patients as recourse to an independent appeal body. 8. For appeals within the 28-day assessment period the hearing before the MHT will serve a double function—it will hear the patient’s appeal and may also hear the Clinical Supervisor’s application for a longer period of detention. A patient may, therefore, not only see their appeal fail but receive a longer term of detention at the same hearing. The general feeling is that this will act as a considerable disincentive to Joint Committee on the Draft Mental Bill: Evidence Ev 829

appealing at all within the initial 28 days. Retaining the right to appeal to Hospital Managers under the bill would oVer detained patients an additional right of appeal within 28 days without the risk of the imposition of a longer term of detention should that appeal fail. 9. Under the Mental Health Act 1983, Hospital Managers are empowered to review care/detention at their discretion. One important result of this is that Hospital Managers regularly adjourn appeal and renewal panels to ensure that appropriate care and, where appropriate, the funding for that care are available. And where they are not, Hospital Managers pursue a course designed to ensure that appropriate care is provided. Currently, where PCTs are reluctant to fund specialist placements, Hospital Managers are able to exert pressure; MHRTs are presently unwilling to do so. It is feared that MHTs and MHATs will not have the local community interest of Hospital Managers in following these issues through for the beneﬁt of patients by calling for adjournments. 10. The Scrutiny Committee should be aware that currently the Mental Health Review Tribunal appears to be in a state of major disarray. Tribunal hearings are being cancelled at short notice due to the lack of members. The logistics of organising Tribunals are taxing the administration to near breaking point. It has been estimated that currently some 10,000 Tribunals are convened with a similar number of Hospital Managers’ Panels, and that some 40,000 MHTs and MHATs will be required under the Bill. The MHRT seems to be overstretched coping with its present workload; it would, therefore, make sense to retain the appeal role for Hospital Managers to ensure that patients’ rights to appeal are not denied to them. 11. As part of their scrutiny role in ensuring that the Mental Health Act 1983 is being applied lawfully, Hospital Managers visit wards and units where patients are detained. This enables members of the local community to meet with those who are detained and with informal patients, too, and to listen to any concerns they may have regarding treatment and the environment. Reports are prepared, with recommendations and responses are monitored. Community Health Councils, who carried out similar inspections, have been disbanded. Unless the bill gives Hospital Managers this power, there will be no independent inspection and checking by representatives of the local community. 12. Hospital Managers should be retained under the bill with clear guidelines on recruitment, appointment, competences, training and appraisal to ensure a high level of performance and with eVective processes in place to make this capable of achievement. 13. There is a case for Hospital Managers being appointed by a body independent from an NHS mental health trust to ensure that those managers are seen to be independent. The Appointments Commission, which currently appoints Trust Chairmen and Non-executive Directors, would be an appropriate body to make such appointments and to provide support, training, etc There is a view that for Hospital Managers to be clearly independent of the NHS mental health trust, they should not include non-executive directors of that Trust. November 2004

Memorandum from Citizens Advice (DMH 125)

Summary (a) It is regrettable that people with mental health problems who have capacity will be treated diVerently under the Mental Health Bill from others with capacity and from all other health users. The provisions in the draft Bill are quite inconsistent with the Mental Capacity Bill’s presumption of capacity at all times for all decisions, unless proved otherwise on a functional test. (b) The Bill broadens the criteria for compulsory detention, without any guarantee of treatment and care in the community. This raises the prospect of people’s condition deteriorating to the point of being treated under compulsion when this could be avoided. (c) This is of particular concern given extensive evidence of the sometimes slow and patchy development of services and from CAB evidence on how services currently fail to help many people when they most need assistance. (d) The failure of agencies in the community to take responsibility and co-ordinate help, raises concerns about “delayed discharges” and people being detained in hospital until services have organised themselves. (e) Prescription charges mean that some people struggling on low incomes neglect taking their medicine. If this is a condition of their being treated in the community they are at risk of compulsory detention for want of the means to purchase their medicine. (f) Broader criteria for detention will deter people from using mental health services for fear of compulsory treatment, so making it more diYcult to ensure that people have appropriate help early in their illness. Ev 830 Joint Committee on the Draft Mental Bill: Evidence

(g) Citizens Advice welcomes the provisions for advocacy but believes greater clarity is needed about the duty to provide this service. Access to advocacy and a nominated person needs to be introduced at “examination” when decisions about eligibility for compulsory treatment are being made. Advocacy also needs to be available to voluntary patients. 1. Citizens Advice welcomes the opportunity to comment on the Draft Mental Health Bill and makes observations on compulsion, access to service provision in the community and how this bears on the use of compulsion, and rights to advocacy 2. This response is based on evidence from CAB advice work. During 2003–04 CAB gave independent and impartial advice and information from over 3,200 locations, helping people resolve more than 5.6 million problems. 1154 of these locations were in health settings such as GP surgeries/health centres (751) psychiatric hospitals (75) and mental health day centres (165). More than 100 CABx run special projects for people with mental health problems and a few without such projects have estimated that more than half of their clients have or have had a mental health problem. 3. Of general concern is that the draft Bill: — loosens the criteria for compulsory detention with no guarantee that such action will improve someone’s chances of recovery through appropriate treatment; and — extends compulsory treatment to the community which may contribute to the stigma and discrimination people with mental health problems suVer across society.

Question 1 Are the conditions for treatment and care under compulsion suYciently stringent ? 4. The draft bill broadens the definition of mental disorder to take in a wider range of conditions than previously (Clause 9). More people may also be subject to compulsion because care only needs to be “available”’ and “appropriate” (Clause 9), and not as now to alleviate or prevent deterioration of a condition. This broader scope is of concern because Citizens Advice evidence suggests people will be deterred from using mental health services for fear of compulsory treatment. This will make it more diYcult to ensure people have appropriate help early in their illness. 5. The registration of a non-resident patient (Clause 23 [4]) is authority to require him/her to comply with conditions such as taking medicine. This is often a means of stabilising a person’s condition so enabling them to live in the community. However, current policy on prescription charging undermines this. Many people on incapacity benefit for mental health reasons get only a few pounds more a week than people entitled to free prescription on income grounds. The length of time for which a drug is prescribed also aVects cost. If a GP moves from a three month to once a month or even weekly prescription routine for clients in danger of overdosing, this significantly increases costs. 6. Citizens Advice has a lot of evidence to show that prescription charges mean that some people neglect taking their medicine15. As a result not only may their health deteriorate, they are at risk of compulsory detention for want of the means to purchase their medicine if taking it is a “condition” of their residing in the community. It cannot be right or the intention that people should be subject to compulsory detention when ill because they are unable to pay for their prescriptions.

Question 2 Are the provisions for assessment and treatment in the Community adequate and suYcient ? 7. The Bill proposes the use of compulsion to wider categories of illness with no guarantee of treatment and care. Without such guarantees, people’s conditions may deteriorate and lead to compulsory treatment. Citizens Advice has examples of people unable to access help prior to a crisis in their illness. We have the prospect of control when illness becomes severe in a wider range of conditions than previously but without the guarantee of treatment and care in the early stages to minimise that prospect. This is of grave concern. 8. It is of paramount importance that full health services in the community are available and properly complemented with advice and support to cover beneﬁts, income and housing which helps people with mental health problems to manage their lives16. Without these services people’s condition may deteriorate17. This seems more than likely given the patchy and sometimes slow development of new critical services such as early intervention, assertive outreach and crisis resolution teams. Proposed multi-disciplinary teams oVer alternatives to hospitalisation but shortfalls put people at risk of hospitalisation and the number of mental health trusts without any star rating has doubled18. 9. Citizens Advice evidence raises concerns in particular about:

15 See Background notes for examples. 16 See Out of the Picture: CAB evidence on mental health and social exclusion, 2004. 17 See Background notes for examples. 18 Healthcare Commission, NHS Performance Ratings 2003/4. More than a third of trusts have failed to set up satisfactory assertive outreach teams and more than a third have failed to meet care programme standards on recording information. Only half (175) of the 335 mental health crisis resolution teams required by NHS plan for Dec 2004 are in place. Joint Committee on the Draft Mental Bill: Evidence Ev 831

— access to treatment and care which is limited because of staYng issues, long waits, withdrawal of care, poor attitudes, lack of interpreters and some GPs refusing to register patients in case they become violent; — lack of non-medical therapies and long waits when it is available leave people without choice and the help they may need; — a focus on clinical issues with the system failing to refer clients for advice to maintain beneﬁts and housing at hospital discharge and other times. Community mental health teams and psychiatrists do not always support beneﬁt applications. Large numbers have to struggle with debt as well as cope with illness; and — discharge and after care where patchy and poor services give rise for concern as this can lead to unnecessarily prolonged stays in hospital. 10. These failings are important because of the personal consequences to the individuals who need help. The stress of coping with such diYculties puts people at risk of becoming more unwell. Citizens Advice has evidence of: (a) People not having access to services as a crisis develops and their condition deteriorating to the point of self harm and/or hospital admission.19 (b) Withdrawal of services leaving clients unable to manage their illness and their aVairs.20 (c) Lack of co-operative working between agencies and confusion about responsibilities leaving clients without support.21 11. The draft Mental Health Bill makes provision for a deferred discharge where no after-care plan has been made and gives hospital managers the right to detain patients for up to 8 weeks until such a plan is in place (Clauses 63-67). Patchy and sometimes poor services can lead to unnecessarily prolonged stays in hospital depriving people of their freedom and putting them at risk of future re-admissions because of the lack of adequate support.22 12. The right to free aftercare is to be restricted to six weeks (Clause 68). It is the experience of Citizens Advice that for clients with severe and/or long term illness, this is far too short a period to facilitate their accommodation into the community and setting up structures to help them manage their daily lives.

Question 3 Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?

13. With its single definition of mental disorder without exclusions, the Bill extends to more people than the 1983 Act the possibility of being compulsorily treated and/or detained but: — it does not address the issue of distinguishing between capacity and non-capacity. Especially worrying is the possible use of compulsion on the loose definition of considering a person to be in serious neglect of their health or safety when they may have full capacity. (See paragraph 19) — guidance refers to “clinically appropriate” treatment23 without defining what is meant by this. Clients can be detained if treatment is “available” and “appropriate” but the Bill makes no references to choice of suitable treatment—a huge problem given some of the very damaging side eVects of some medicines. In some areas, therapeutic services are not available on in-patient wards.24 14. The provision that medical treatment is warranted “for the protection of other persons” (Clause 9) is very wide and could be argued to include protection from verbal abuse. This should be tightened to “prevent serious harm or violence to others”.

Question 4 Are there any important omissions in the Bill?

15. Citizens Advice welcome the opportunity created for nominated persons and for advocates to help and represent people. We hope the right to access specialist advocacy translates into real provision on the ground but are concerned that this will not be the case.

19 See Background notes for examples. 20 Ibid. 21 Ibid. 22 Ibid. 23 Explanatory Notes, Regulatory Impact Assessment, section E, paragraph 26. Cm 6305–II. 24 See Background notes for examples. Ev 832 Joint Committee on the Draft Mental Bill: Evidence

16. The Bill states that “the appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons, to be known as Independent Mental Health Advocates to be available to qualifying patients and to their nominated persons.” [Clause 247(1)]. Evidence from ICAS services is that advocacy provision is “patchy and ad hoc”25. Greater clarity is needed about the duty to provide this service. 17. Access to advocacy and a nominated person needs to be introduced at “examination” when decisions about eligibility for compulsory treatment are being made to ensure that people who may be compulsorily detained are fully consulted and involved in the process26. Advocacy also needs to be available to voluntary patients. 18. There is no over-arching body for advocacy services and thought needs to be given to building on current good practice and establishing minimum standards.

Question 8 Is the draft Mental Health Bill adequately integrated with the Mental Capacity Bill? 19. It is regrettable that the draft Mental Health Bill’s provisions on compulsion (Clause 9) are quite inconsistent with the Mental Capacity Bill’s presumption of capacity at all times for all decisions, unless proved otherwise on a functional test. People with mental health problems who have capacity will be treated diVerently under the Mental Health Bill from others with capacity. Citizens Advice is very concerned about the threat of compulsory treatment for mental health without reference to capacity, which is at variance to the attitude to all other health users.

Background Evidence to Citizens Advice Submission on Draft Mental Health Bill

Paragraph 6 A bureau in Wales is helping a client who is single, lives alone and suVers from schizophrenia. He takes Magadon, Valium and has injections once a week. His income is long-term incapacity beneﬁt of £87.30 per week; he does not qualify for free prescriptions because his income is too high. (If he was on income support plus disability premium he would have an income of £79.35 a week and be entitled to free prescriptions.) He receives housing beneﬁt and pays £6.80 rent and does not pay Council tax. He has a National Health debt of £310.00 because he signed as being exempt from prescription charges when he was liable to pay. He pays this debt oV at £5.00 per week but because he does not have a bank account, has to do so by postal order which costs him an extra £2.00 per week plus postage (they will only accept cheques or postal orders). He pays a lot on prescription charges but does not get all of his tablets because he cannot aVord to pay for them.

Paragraph 8 A bureau in Wales helped a client with mental health and addiction problems. He suVers from paranoia, anxiety, depression, hallucinations and blackouts. He struggles to care for himself but frequently falls and becomes disorientated. His neighbour found him during an attack when he was hallucinating. He had not taken medicine nor eaten for four days. The local authority duty oYcer said referrals could not be taken after 12 noon so a fax was sent for the next day. The CAB was then told they were in touch with the wrong team and the fax forwarded to the community mental health team. The referral was then forwarded to the community drug and alcohol team. The original request for help was made on 11 February. On 4 March the community drug and alcohol team referred the client back to the community mental health team saying the client was “inappropriate” for them although they may do a secondary assessment. The client had still not been visited on 11 March.

Paragraph 10(a) A Midlands CAB advised a client who acted as the main carer for her friend. The friend became suicidal and the client was very concerned for her safety. Both met with her consultant to request help but the consultant refused to admit the friend. The next day she killed herself.

Paragraph 10(b) A London bureau helped a man originally diagnosed as suVering from borderline personality disorder who was discharged as “cured” in 2001 leaving him without any medical treatment. He then invested his energy in bringing courts proceedings against anyone he had had dealings with over the previous 25 years— around 80 cases, including his consultant psychiatrist. The court referred the client to the OYcial Solicitor who sought a report from the client’s original psychiatrist who refused the request unless given a written guarantee that there would be no proceedings against him. The OYcial Solicitor eventually arranged for a

25 Ibid. 26 See Background notes. Joint Committee on the Draft Mental Bill: Evidence Ev 833

senior consultant psychiatrist to see the client who diagnosed him as suVering from psychosis and incapable of looking after his own aVairs, strongly recommended treatment at the Maudsley and arranged for new more powerful anti-psychotic drugs. In accordance with NHS procedure, this report went to the client’s GP who sent it on to the local psychiatric service, which employed the client’s ﬁrst consultant psychiatrist. The client is now very anxious and unhappy and fears not getting the treatment he needs. His GP has diYculty setting doses for his new drugs because of lack of experience with them. The bureau is exploring how the client can be referred on to the Maudsley hospital.

Paragraph 10(c) A Dorset bureau helped a client aged 68 who had assaulted his wife. A court appearance is imminent and he has been placed by police in hotel accommodation and must have no contact with his wife. He came to the bureau in a very distressed state, threatening suicide. The mental health team and the social services elderly care team each thought the other should be responsible for him.

Paragraph 11 A CAB in Lancashire helped a recovering alcoholic discharged from a mental health ward with no support. He had been evicted whilst in hospital and all his belongings, private papers and furniture lost. When the bureau spoke with the hospital she was told the GP was responsible for organising support but the GP contradicted this and said it was the hospital’s job. No one would accept responsibility. The bureau is trying to get him into a hostel and then a supported tenancy and to arrange meetings with the local drugs and drink unit. A CAB in Hertfordshire helped a client who faced imminent eviction, had diYculties with beneﬁts, pending court orders and faced possible imprisonment, following recent discharge from hospital. Social services sent the client to the CAB rather than helping him, wasting valuable time. A CAB in Lancashire is helping a client of 81 who is about to be released from a psychiatric ward. She has been oVered no help when she comes back into the community although she is going to need 24 hours and seven day attention. She has not been advised she could or should claim Attendance Allowance. A home visit has been arranged but hospitals should contact all relevant agencies to ensure all round support.

Paragraph 13 and Paragraph 10(c) A bureau in Surrey report that they are increasingly aware of elderly patients on short term assessment wards for many months, where there is no family contact, pension goes unclaimed and problems at home such as broken windows are not dealt with. Ward staV and social services both deny that such issues are within their remit.

Paragraph 16 A bureau in Worcestershire are helping a client, ill since 1991 with paranoid schizophrenia and depression who gave up his tenancy because of rent arrears and an inability to cope despite being in work, paying full rent and £17.00 per week to supporting people scheme. He went to live with his parents prior to hospital admission in August 2004 but they refused to have him back when discharged. The client does not want to live alone and gets depressed when doing so. His social worker found a property £50.00 per week rent, plus £25.00 service charge, plus £150 supported living costs. The client wanted to return to work but did not want to live in this property because he could not aVord it. Nevertheless, the arrangements went ahead and he took up the tenancy with help applying for housing beneﬁt. He stayed only two nights and then began sleeping rough. Unable to go to work, he lost his job because it couldn’t be kept open any longer. Arrangements are now being made for him to move in with his sister. Her house is not big enough so she is seeking an exchange. The client is in considerable debt. Would specialist advocacy have prevented him from being put in housing that he never wanted, incurring further debt and in him sleeping rough? With help from an IMHA, would he have been listened to with regard to his concerns and the choices being made for him? Would earlier negotiation with his family have resulted in him moving directly from hospital to his sister’s house?

Paragraph 18 A bureau in Cheshire describe a client who was sectioned when she became very upset after losing her cat. Her father who also has mental health problems called 999 and the client was taken to accident and emergency where her sister told the doctor the client was schizophrenic. The client was referred to another hospital that sectioned her for four weeks; the client objected to this. The client was later diagnosed as having a hyperactive thyroid and feels her condition was exacerbated by being in hospital. November 2004 Ev 834 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from S Holt (DMH 126)

1. Introduction 1. I am a mental health service user who has been diagnosed as having manic depression for 14 years. During that time I have been compulsorily detained under the current Mental Health Act many times, and also been admitted to hospital voluntarily in times of crisis, I have received support from both health and social care on discharge. I am writing to you as I feel the Draft Mental Health Bill goes too far and will further stigmatise people like myself, I ask that you treat this memorandum as evidence. 2. I am writing to you regarding, 1. A right to services, 2. Compulsion in the community, 3. Advance Directives, 4 A right to Aftercare and 5 The Tribunal System.

Summary

1. Right to Services Familiar workers whom I can contact not just in a crisis. Meaningful day services, not drop ins, and not work.

2. Compulsion in the Community There will always be a need for psychiatric hospital beds. Greater investment in psychiatric wards.

3. Advance Directives Aid me to take some responsibility for my health and my life.

4. A Right to aftercare Good aftercare leads to long term recovery.

5. The Tribunal System The current system is too slow; this needs to be addressed.

Evidence

1.1 A Right to Services 1. As a mental health service user I instinctively know what I need before I hit crisis point. Often I need to know what is happening to me as I am more bewildered than anything and fear and worry fuel my negative thoughts about the world and myself. Mental Health workers seem to be trained how to deal with people when in crisis, ie admission to hospital or to see a psychiatrist who will add more medication, but this was not what I wanted. 1.2 Often I need to talk to someone, who is familiar with my situation, illness, who can reassure me about my options. 1.3 Recently I was reaching crisis point. My husband decided to contact the services, as are indicated upon my enhanced after care plan. My social worker was on holiday so he knew that that was not an option, so he telephoned my psychiatrist, he was told to contact our GP, which neither of us felt OK with as she gives me repeat prescriptions only, I see my mental health workers more. My husband then tried the duty social worker as we were informed; however, they did not answer the telephone. In the end I administered an increase of medication myself. 1.4 Neither my husband nor myself felt content with this. 1.5 Support to do something during the day that is meaningful to me, which doesn’t necessarily mean, “drop ins” or work. I would like support to do a mainstream college class. 1.6 More money put into mental health service user led and run services. Joint Committee on the Draft Mental Bill: Evidence Ev 835

2. Compulsion in the Community 2.1 As I have said I have been in hospital many times. I for one did not want to be there at those time as being in a psychiatric hospital is not the best place; they are usually dirty, smell of cigarette smoke and are generally not safe places to be. That is on top of the stigma of being there, that you feel about yourself and that others display outwardly, by not visiting, calling etc 2.2 Saying all that, I think the Draft Mental Health Bill is not considering my well being, by saying I could be treated at home. I know that this would be far too chaotic upon myself and my family, my husband would need to give up work as under the current staYng levels in Rochdale, someone popping in for one hour wouldn’t be enough. 2.3 At the height of my illness I became very psychotic and even ran through the wards naked. My neighbours would be quite clearly shocked by this behaviour. I would be stigmatised further than they knowing that I have a mental illness, they would witness my behaviour too. 2.4 This would aVect my recovery as I would be further paranoid regarding what and who was talking about me etc 2.5 My son would be bullied and ridiculed at school, as I am sure people would gossip and tell their own children to not go near him. 2.6 We would need to move, however, clearly if my care team thought that was inappropriate, I would be unable to do so, under the Draft Mental Health Bill. 2.7 I have also been admitted to hospital when severely depressed and I know that by being there helped to lift the suicidal ideas. I could not have dealt with this at home.

3. Advance Directives 3.1 At the start of my diagnosis I was unsure about my illness, however, over time I have become the “expert by experience” 3.2 Over time I have built up a degree of trust with my care team, however, some areas like my faith still are issues for discussion. 3.3 Advance directs would be helpful for me in case I was to be re-admitted, drawn up alongside my care team whilst well. 3.4 I would like to use an Advance Directive to plan for my wishes regarding treatment and hospitalisation for the future. 3.5 I regard an Advance Directive as separate to a Care Programme Approach care plan as often that is still directed very much by the care team. 3.6 An Advanced Directive would also me some responsibility over my life.

4. A Right to Aftercare 4.1 In the early days I was discharged from hospital with very little aftercare, this didn’t help me in the long run it meant re-admissions. 4.2 As a mental health service user I rely upon several things to keep me well, medication, information, my care team, my family, my faith, my friends and hobbies. 4.3 It is a ﬁne balance if someone, something is taken away I will crash, for me that has meant hospitalisation. 4.4 A time limit cannot be put upon a person for how long they will receive care. Surely, it has to be on an individual basis. Fitting the service around the person not the other way around.

5. The Tribunal System 5.1 I was once sectioned under section 3 of the Mental Health Act 1983, which is for up to six months. 5.2 It means that you can be treated. 5.3 I did not feel that six months was necessary 5.4 I applied to the Tribunal, the same day I was sectioned. 5.5 The tribunal came through the week that I was due to be discharged. 5.6 If the new Mental Health Tribunal is to have greater say when and whether a person can be discharged surely the delays in receiving a hearing need to be looked at. November 2004 Ev 836 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Simon Charrington (DMH 127)

1. Introduction 1.1 Having been compulsorily detained under legislative powers on three occasions, I have first hand experience of mental health care services. 1.2 With reference to the first occasion (1984): I was immensely grateful that the service existed. Two friends remained with me throughout the examination/admittance/detention process. I was restored relatively quickly (within two months) to normal life without the need for continuing medication. 1.3 The subsequent occasions (2001 and 2002) were clumsily handled not, I hasten to add, through incompetence (I think?) or insensitivity by medical/social staV, but because the present system (and indeed that proposed) does not require advocacy during examination before detention. 1.4 Medication was given compulsorily by injection during the occasions in 1984 and 2002. I accepted oral medication voluntarily on the 2001 occasion. Although the experience in 1984 was very distressing, I do not feel uncomfortable with the justification for the injections administered then. With regard to 2002, however, I feel a great sense of injustice at the assault, and further injustice that in the particular circumstances it was (and still would be) deemed legal. 1.5 Since 2002 I have worked very carefully on an advance directive to express what treatments/ approaches I feel work best for me as well as dealing with other practical matters. My directive, for example, allows the use of emergency enforced injection of medication to restrain or relieve pain—this is despite the 2002 experience, because, in my view, that is over-ridden by the 1984 experience. Unfortunately there is an apparent reluctance in mental health professionals to engage with the drafting of this type of document. 1.6 I also feel, as a general point, that medication is routinely over-prescribed and, because of the debilitating eVect of it, return to normal life is thus delayed or even scuppered altogether. 1.7 The subjects I write about here, therefore, are: — advocacy; — beneficial eVects of advance directives; and — over-prescription of medication generally.

2. Terminology 2.1 I am not a lawyer and I have not tracked through the Draft Bill word for word. 2.2 From having read commentaries by third parties eg the charity MIND, I have tried to read and understand the parts of the Draft Bill I am most concerned about, and I have identiﬁed certain section numbers. Given the complexity of cross-referring etc these are not exhaustive. 2.3 The words I use, however, should as far as possible be read as having their common lay meaning, rather than an over-precise legal meaning. I am happy to be invited to clarify for the committee and their legal drafters the points I am making, for putting into legal form.

3. Advocacy 3.1 Section 19, Notification of Determination, states that a mental health professional must notify the patient of the help available from IMHA advocates under the arrangements under Section 247. 3.2 The extent and timing of this proposed help is too little, too late, and doesn’t reach the heart of the matter. Section 14 requires the appropriate authority to make a determination “if requested to do so by any person”. I am certain that individuals must be given the opportunity of advocacy at the initial examination stage (ie S.14) prior to Notification of Determination (S.19). If this opportunity is declined an advocate should nevertheless attend as observer for the individual, and the opportunity repeated again at S.19. 3.3 My reasoning is that with the detention process, doctors and social workers (and, sometimes, relatives) ultimately have to make a judgment about the individual and his/her detention in hospital. If the judgment is to detain, then the individual, who is probably already in some state of distress, may find him/ herself totally emotionally isolated and alone. 3.4 This, I believe, only exacerbates the distress at a time when what is really needed is extra support and understanding, not less: enforced medication causes further alienation. 3.5 What I am talking about here is the grey area between individuals who are not a 100%, but no “risk”, and those where the risk of harm to themselves or others is real. It is unusual in matters of science to have such greyness (there’s no blood test, or the like); hence the need for appropriate checks and balances in matters of perceived degrees of mental illness. Joint Committee on the Draft Mental Bill: Evidence Ev 837

3.6 So an IMHA advocacy service, or similar, provided as a requirement during the initial examination prior to notiﬁcation of detention, would, I feel, be a reasonable proposition. The advocate would help the individual in expressing/exploring problems (as well as the help envisaged in S.247), and for these to be heard and addressed, without the advocate ever having to make any judgment about the individual or his/her condition. 3.7 This approach, by having procedures in place that help the individual express and understand matters, would improve individual-focussed care, looking not purely for signs of “illness”, but for signs of well-being underneath the symptoms that have been the cause for the request for a determination (S.14). 3.8 I am certain this is a more compassionate way of proceeding. It would aide all parties and, at the same time, it protects them.

4. Advance Directives 4.1 I understand that the individual’s right for Advance Directives to be respected and followed is to be taken away under the Bill. 4.2 The thinking behind this is, I feel, the wrong way round. When individuals are well, they want to stay well, and at that time have good insight into treatments they know work well for them and those that do not. 4.3 The medical/social professionals must embrace the concept of Advance Directives and, if requested, help and advise individuals in drafting them. They must see them as an opportunity not a threat. 4.4 Comprehensive Care Plans contain much the same sort of issues but are prepared and signed by the professionals for the individual then to sign-up to. 4.5 The right way round would be to provide a series of “prompts” for the individual, in discussion with the professionals. The individual then “owns” their plan and which could, if required, be converted into a directive by the individual. 4.6 In genuine emergencies, presumably directives can be over-ridden anyway? There is no need to prejudge matters in legislation such as is being proposed.

5. Over-prescription of Medication 5.1 I have experienced very strong medication which has a very debilitating eVect. 5.2 In these circumstances I reduced the dosage over a period of time to doses that were smaller than are even manufactured. I did this by cutting the tablets, with a knife, into halves. 5.3 After a while I came oV the medication altogether, but the psychiatrists have, in eVect, consistently been one stage behind: very cautious. 5.4 Advocacy/representation from day one (S.14) would assist the medical/social professionals in understanding more about the individual at an earlier stage and generally assist with communication, both ways, including re medication and so on.

6. Summary of Improvements to the Draft Bill 6.1 Individuals must be given the opportunity of advocacy at the initial examination stage prior to Notiﬁcation of Determination. If the opportunity is declined an advocate should nevertheless attend as observer for the individual. 6.2 Medical/Social professionals must embrace the use of Advance Directives and the right for the validity of these must not be removed. 6.3 Medication must be limited to that necessary to relieve the symptoms without causing side-eVects out of proportion to the risk of relapse. I hope and trust you will carefully consider the evidence and necessary improvements set out above for incorporation into the ﬁnal Bill. November 2004

Memorandum from Sallie Cooper (DMH 128) To the Joint Committee on the Draft Mental Health Bill, I am writing because I have many concerns about the proposed new Mental Health Bill. — I am a Service User having had mental health problems most of my life, but have been receiving help with these from Local Mental Health Services for the past twelve years. I suVer from severe chronic depression with frequent acute episodes and have a borderline personality disorder. I am Ev 838 Joint Committee on the Draft Mental Bill: Evidence

aware that the latter is considered untreatable by the Government but am fortunate in having a psychiatrist who does not share this view and through long-term interventions has enabled me to make signiﬁcant progress in areas of my life aVected by the disorder.

— I am submitting evidence to the committee as an individual with both past and present involvement with the local Mental Health Services, and a very real interest in the proposals of the Draft Bill.

I am in no way a danger to other people and am prepared to accept responsibility for the risk I may be to myself from time to time. I have on many occasions been admitted to hospital when this risk has become unmanageable and see no reason why I should be considered a risk to anyone else, or in need of a compulsory treatment or assessment order at any time in the future.

— I am very concerned that I should be able to access help from the services when I become aware that a crisis is imminent, and while I am privileged to have an excellent team in charge of my mental health care in the community, I have many friends who have tried to be assessed and helped by the local Crisis Response and Resolution team only to be told they are not in crisis and do not need help and who then deteriorate swiftly and seriously over a few days and feel unable to access help again because of the response they received at an earlier stage of their crisis. If ever I did need to receive treatment under compulsion, then the only safe place for me to receive appropriate treatment and care would be in hospital, hopefully for a relatively short period of time.

— I live alone with my only family living some considerable distance away, and therefore in the case of being detained under the Act, would have to choose a local friend to be my “nominated person” and act as such from the very beginning of my detention, not having to wait until assessment has been completed as has been proposed. The earlier I can be aware of my friend’s support under such diYcult circumstances, surely the better for me?

— Advance Directives.I note that the new Draft Bill does not make any provision for the acceptance of Advance Directives as legal documents if signed oV by a medical or community team. I wrote an Advance Directive a couple of years ago detailing the early signs of my becoming unwell, and asking friends and relatives if they have a copy to draw it to the attention of a member of my team—(all named and telephone numbers given). It also lists the things that have proved helpful in the past. When I have become ill since writing and distributing this carefully, it has been of immense value and greatly facilitated my care and treatment both in the community and in hospital. It concerns me that all provision for Advance Directives having any legal enforcement have been left out of the proposed Bill when they are becoming more prominently used within the mental health services generally, and they can be shown to be so helpful.

— I feel it is an absolute violation of human rights to have ECT possible without fully informed consent. I would be devastated if it were to happen to me, as I feel so strongly that such treatment is in itself inhumane and works or not purely by chance. This provision should deﬁnitely be removed from the Bill.

In conclusion:

1. I feel very strongly that ECT should NEVER be given without consent.

2. No-one should be considered untreatable.

3. Advance Directives should be given the force of law.

4. That compulsory treatment in the community is nothing more than house arrest—if someone is ill enough to require compulsory treatment then they are ill enough to need the care and safety of a hospital setting.

5. That treatment should be available and accessible at the point at which a patient or carer sees a crisis looming, not have to wait until after a period of assessment. Most people I know who suVer from any sort of mental disorder are aware when they are becoming unwell. This is the point at which treatment is required not days or weeks later when they have become a risk to themselves or others.

I trust that these points and this evidence shall be accepted and weighed in the balance as the Joint Committee discuss and make their recommendations to the Government. September 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 839

Memorandum from West Sussex County Council (DMH 129)

1. Introduction:Who am I and What is the Service IRepresent? 1.1 I am employed by West Sussex County Council Social and Caring Services as its Practice Development Manager with responsibility for mental health social work practice. The post was established as a direct consequence of the National Service Framework for Mental Health. In 2002, three years after I was appointed, the West Sussex Health and Social Care NHS Trust was established, integrating the work of three previous mental health NHS Trusts and a portion of the County Council’s Social and Caring Services Department. Some 90 County Council staV have been seconded to work in that organisation—not including myself, as I retain lead management responsibility for the Approved Social Worker (ASW) Service in West Sussex. 1.2 I am also an ASW in my own right, and contribute in that role to the County Council’s Out of Hours Emergency Service. I originally trained as an ASW in 1989 and was appointed to work in that role in 1990. I was most recently re-appointed as an ASW in September 2004 (for a period not exceeding ﬁve years). 1.3 I am aware that representations are being made to this Scrutiny Committee by a number of national organisations, lobby groups, and professional associations. Accordingly, this evidence submission does not seek to repeat the arguments advanced elsewhere. 1.4 Social and Caring Services in West Sussex recognises the importance of working in partnership with the NHS and other agencies to promote the use of services which support mental well-being. We recognise and support the intention to enable mental health provider NHS Trusts to take the lead role for civil admissions in future. We will therefore continue to work closely with West Sussex Health and Social Care NHS Trust and will work together to implement the new Bill when it eventually becomes law.

2. Feedback on the 2002 Proposals:What We Said Then 2.1 Social and Caring Services in West Sussex made representations in 2002 on the then draft Mental Health Act proposals. ASWs liked a number of things about the 1983 Mental Health Act which they wanted to see carried over to any new legislative proposals. These included: — The checks and balances role of Approved Social Worker. — The right of appeal against detention. — The guidance in the Code of Practice. — The opportunities for a professional discussion prior to making an application. — The good faith principle underpinning professional practice. 2.2 There were, however, concerns about what was wrong with the 1983 Act. These included: — The emphasis on hospital-based treatment in the narrowest, chemical, sense. — The Nearest Relative process being inﬂexible and cumbersome. — The Conveyance to Hospital arrangements being strong in terms of ideology, but weak in implementation (Ambulance Services do not prioritise MHA work in general). — The unhelpful and confusing arrangements for providing treatment for children with/without parental consent. — The Mental Health Act Commission being powerless in relation to the care and treatment of informal patients. 2.3 A number of observations were then made in our feedback report to the Consultation Document. That feedback report is available from the Department of Health.

3. Mental Health Bill 2004: Initial Observations 3.1 September 2004 has seen the publication of a revised Draft Mental Health Bill. The range of signiﬁcant improvements over the 2002 version is welcomed.

4. Mental Health Bill 2004: Specific Observations 4.1 Our immediate concern is that the principle of quality care for vulnerable people is ambiguously worded (and compromised) in the 2004 Bill. There is no independent scrutiny function for initial applications for compulsory detention (MHA Orders lasting up to 28 days) and this is a weakness. At the present time the ASW—not employed by the detaining authority—provides this opportunity for independent scrutiny. In a future scenario, the Approved Mental Health Professional will be on the payroll of the detaining authority. The independent scrutiny is therefore lost. It would be worth re-considering why the drafting team felt that such scrutiny was not needed in the ﬁrst 28 days of a proposed MHA Order. Ev 840 Joint Committee on the Draft Mental Bill: Evidence

4.2 Needs-based assessment must be a core feature of assessment. Ideally, that assessment will be holistic in its application, and include reference to social care perspectives and to needs which are likely to have already been assessed under the auspices of the Care Programme Approach. There is an expectation of that link under the current Act and the Care Programme Approach but too often in practice the link is in fact diYcult to achieve. Having a single and inclusive Care Programme Approach and MHA Care Plan (Clause 31) would seem to make sense and should be considered. 4.3 The Government clearly expects Approved Mental Health Professionals (AMHPs) to have a mental health professional qualification and have undertaken recognised training in assessing non-medical aspects of care and treatment. We wait with anticipation to see what this will mean. At present, the basic training for ASWs consists of a 600-hour course—including mental health law, academic and practical work—the content of which is set by the General Social Care Council. This is delivered to local social services authorities through a variety of higher education providers. This training, the General Social Care Council’s Mental Health Social Work Award, must be undertaken before the formal process of appointment to work as an ASW can be considered by any local social services authority. 4.4 Our appointment and re-appointment arrangements in West Sussex are, I believe, of a high standard. Our Appointment Panel includes senior managers from Social and Caring Services, a senior operational manager from West Sussex Health and Social Care NHS Trust (the integrated mental health NHS provider Trust in the county), and a service user from the Capital Project Trust. 4.5 Future appointment and re-appointment arrangements for AMHPs will need to build significantly on the Department of Health and General Social Care Council guidance which are currently used. It may be helpful for any future Guidance to reference examples of eVective arrangements that currently exist, whilst allowing for local discretion. Despite the current level of general expertise in assessing the competence of social work practitioners, local social services authorities may need additional help to be able to respond eVectively to the challenge of appointing AMHPs who do not come from a professional background in social work. 4.6 Additional factors which need consideration with regard to AMHPs are the responsibility to ensure asuYcient number is available to practice, and the sustaining of their continuing professional development leading to re-appointment. Under the current Mental Health Act the former is a duty on the local social services authority (S.114 Mental Health Act 1983), whilst the latter are covered in the expectations from the Department of Health and the General Social Care Council. Presumably (but this is not clear) in future this will be the responsibility of NHS Trusts. Will that duty need to extend to requiring all qualified mental health practitioners—of whatever professional background, other than medicine, to undertake AMHP training and appointment? 4.7 It would be useful if the Scrutiny Committee considered whether the appointment and re- appointment arrangements for doctors working under the Mental Health Act need to change. Should these arrangements be similar to the requirements regarding AMHPs, for instance? As a member of the current S.12 (2) Approvals Panel for the South East, I am only too aware of how comparatively slack are the requirements on doctors seeking appointment and re-appointment. There is, for instance, a requirement to attend only one MHA legal update training session every five years. Most significantly, there is no requirement to produce any evidence of competence (which is essential for ASWs seeking re-appointment). It should rightly be expected that approved clinicians/clinical supervisors under the 2004 Mental Health Bill will operate to the highest possible standards of professional practice. Service users, carers, AMHPs and the general public all need to be reassured about this. These perhaps are not matters for the Bill itself, but will surely need to be incorporated in Regulations. 4.8 Some confusion in the drafting of the 2004 Bill seems to have resulted in the rather awkward and perhaps unworkable proposals for registering a service user/patient who has been assessed at home in the community for MHA detention (Clauses 22 and 23). A simple solution would be to allow for this registration to take place by telephone or even electronically, thus enabling the AMHP to remain with the service user/ patient being assessed. 4.9 One eVect of registration is the authority it provides to instigate and co-ordinate the conveyance arrangements. Unfortunately it is still the case that NHS ambulance services do not prioritise requests for Mental Health Act conveyance. Such conveyance needs to be a duty in the 2004 Bill, and not left as at present to the discretion of local ambulance service NHS Trusts. In Sussex, whilst this responsibility is written as a “duty” in our multi-agency Conveyance of Patients policy (May 2002), it still does not guarantee a service! 4.10 It is also worth remembering that police assistance is often needed to assist with conveyance arrangements. Sometimes this is the police assisting the ambulance service, and on other occasions undertaking the conveyance task directly. Current arrangements are very much dependent on goodwill. Could this matter be resolved by having a clearer direction and/or duty in the 2004 Bill? It causes a lot of headaches for ASWs, and no doubt for police authorities as well. 4.11 The general thrust is on the reduced use of compulsory powers, and for approved clinicians to evidence the need for compulsory powers to the new Mental Health Tribunal, if further Orders are sought. Our concern is that single member Tribunals, emphasising purely legal matters, will not be able to benefit Joint Committee on the Draft Mental Bill: Evidence Ev 841

from the wider social care knowledge and expertise of the current lay representation. An additional concern is that if a single member Tribunal needs to consult with its Expert Panel that this process may take some time. 4.12 There are likely to be capacity issues for mental health teams and practitioners in responding eVectively to requests for reports/care plans for Tribunals, particularly if more, rather than fewer, Tribunals are scheduled in future. Ideally, the care plan (Clauses 39 and 40, subsection 3 in each case) will be written from a multi-disciplinary and holistic perspective. This would be in line with current assessment and care planning practice within the Care Programme Approach. Perhaps the 2004 Bill needs to be clearer about this, as the role of the Care Programme Approach is not mentioned. 4.13 We have expended a lot of eVort in West Sussex in developing a range of “places of safety” for the purposes on both S.136 and S.135 of the current Act. Part of that eVort has been spent in training those who use these sections—particularly Sussex Police as far as S.136 is concerned—not to see them as authority to move a service user/patient from one “place of safety” to another. We are therefore mystiﬁed why the Government should seek to introduce such a provision in the 2004 Mental Health Bill (Clause 229). 4.14 There is a great deal of reliance in the documents thus far published on the ability of the as yet, unpublished, Code of Practice and the Regulations to deal with practical operational matters associated with the Mental Health Bill. In general terms, this seems sensible. However, there are a number of elements of the current Code of Practice—such as the use of seclusion—which have been successfully challenged in courts of law. This highlights a need to consider the actual status of the Code of Practice. To what extent will its content be purely advisory, promoting good practice? Would some elements sit better in the primary legislation? I am sure that the Committee will want to reﬂect on this, in the light of a number of submissions. Our overall view is that some of the publicly contentious issues, such as the interviewing arrangements for service users and carers, the role played by advance agreements, and the interface between the roles of the Nominated Person and the Mental Health Act Advocate, need to be incorporated in the primary legislation.

5. Summary 5.1 We welcome the opportunity, which the Government has provided, to comment on the draft Mental Health Bill 2004. The level of interest in the proposed legislation is indicative of the need to change the current mental health legislation to make it ﬁt for our 21st century mental health services. I have made a number of comments in this submission to the Committee, principally concerning the process of civil admission under the Mental Health Bill, and have also referred to the need to tighten further the arrangements for the training, appointment and re-appointment of both Approved Mental Health Professionals and approved clinicians/clinical supervisors. 5.2 We wish the Committee well in its deliberations and look forward to reading its report in Spring 2005. October 2004

Memorandum from Salford Primary Care Trust (DMH 130) We have explored with Tony Marlow, Mental Health Service Design Co-Ordinator, and other colleagues within the Trust an opinion to inform the consultation on the Draft Mental Health Bill. Below are the detailed comments.

Introduction Current mental health laws, though revised in 1983, largely date back to 1959 and a totally diVerent world of healthcare. We therefore need to welcome these reforms. More than anything, existing laws needed to be brought fully in line with the European Convention on Human Rights and this new bill appears to be suitably compatible with and embracing those convention rights.

General Positive Comment Compulsory treatment provisions—the issue of providing a legal structure that requires mentally disordered people to submit to compulsory treatment, without necessarily requiring them to be detained in hospital is not without controversy. However, many will welcome this as a very necessary, and in many ways “liberating” step. Care should always be oVered in the least restrictive environment to the person suVering and this provision will allow treatment of those, who may not have a great level of insight into their state of health and associated risks, in settings other than busy inpatient wards. The creation of a new mental health tribunal body that authorises any detention/treatment beyond 28 days ...whichmaysubjectpeopletocommunity-basedorders, also seems to be a necessary step forward. The reality of current day provisions is that a person could be detained for up to six months without their case coming before any independent tribunal (unless they formally oppose detention). This means there can Ev 842 Joint Committee on the Draft Mental Bill: Evidence

be subtle forms of abuse of the act eg someone is very well and sent home on leave for two or three weeks while being kept under restrictions of section 3 ...usingthementalhealthactasakindof“longleash”. Bringing in a tribunal to look at all cases of need for detention and/or compulsory treatment beyond 28 days can only be a good thing ...though not without very signiﬁcant resource demands in administrating an eVective, frequent process. Safeguards for patients—Ministers have promised a code of conduct/practice on how the new laws should be applied and this is very reassuring. Additionally we should applaud the following aspects: — Introduction of new safeguards for informal patients with long term incapacity who cannot consent to treatment, but are not resisting it. —ForoVenders, the courts will have powers to make an order for treatment in the community instead of a criminal justice disposal. Given the often adverse eVects on a persons well-being and future lifestyle from a term in prison, this is a positive amendment. — Patients will be able to choose a nominated person to help represent their interests and they will also have access to new mental health advocacy services. There are bound to be teething problems in implementing new mental health law, and the more that is done to advise and support patients and carers the better. — Clinical supervisors will have to discharge patients when the conditions for compulsion are no longer met, unless the mental health tribunal has reserved this decision to itself. Yet another measure that will safeguard against violation of human rights and potential abuse/misuse of mental health law. Protecting children—there is a refreshing balance in the new Bill of protecting children and young people who could otherwise be treated against their wishes, but with their parents’ consent, and the rights of the parents themselves. This endeavours to strike a fair balance between the rights of the child to liberty and the rights of the parents to respect for family life. Linking law and evidence-based practice—another positive reform is the requirement that compulsory treatment will only be possible on the basis of evidence from clinical professionals who are in a position to provide a care plan detailing treatment relevant to the individual’s needs, and subject to independent judicial scrutiny. Balancing the rights of patients, and the rights of care workers—the potential for a patient to bring inappropriate or vexatious claims against mental health staV has always been a great area of concern. Special protection has existed for some time. The new Bill reverses this provision ie instead of placing onus on the complainant to prove that professionals acted in bad faith, the person complained against will have a defence of good faith and reasonable care and if this can be well demonstrated the process will halt there. Again, this is potentially a controversial aspect but it is clear that a lot of thought has gone into this.

Cautionary Comments Workforce issues—In line with the NHS Confederation’s concerns, most healthcare organisations will be troubled that the Mental Health Bill could dramatically increase the workload of psychiatrists and other key mental health staV and could lead to workforce crisis. Potentially there could be a 50% rise in the number of tribunal hearings and a doubling of the workload for psychiatrists, social workers and administrative staV. The implication is that signiﬁcant staV increases will be required in due course just in order to manage existing caseloads. If, as some predict, the Bill leads to a signiﬁcant increase in the number of people detained for compulsory treatment, then workforce pressures would be heightened even further. Legal risks—linked with the above, capacity problems in the proposed tribunal system could lead to a backlog, which in turn could result in increasing judicial reviews Equity—clinicians could ration existing resources by diverting treatment towards patients who are formally detained, thus disadvantaging patients who are not subject to mental health legislation If the new Bill is to deliver better care for patients, then major workforce planning will be vital to avoid an intolerable strain on already hard pressed mental health services. Generally making it work—there is an incredible amount of work to be done yet in awareness raising, alleviating concerns, and moving to a position where all stakeholders are more positive towards the legislation, have a better understanding of it and a willingness to work with it. The Bill has provoked strong opposition from health care professionals, patients groups and a whole raft of other stakeholders. The Royal College of Psychiatrists primary position was certainly to brand the Bill as “unethical and unworkable”, and to suggest that Government had taken a conservative view of the workforce implications if and when the Bill becomes law. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 843

Memorandum from W A Leason (DMH 131) I am a partner in Hempsons Solicitors specialising in advising and acting for NHS bodies in Mental Health Law and issues relating to consent and capacity. I am also a part-time legal member of the Mental Health Review Tribunal. My comments are made in a personal capacity and relate to the following paragraphs concerning the scope of the Committee’s enquiry:— Paragraph 8 “Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill?” Paragraph 4 “Are there any important omissions in the Bill?” In my view the two Bills taken together provide a: Lack of adequate protection for and clarity in respect of compliant incapable patients. The position of this group of patients, particularly those who are elderly with dementia and those with a learning disability who require treatment to which they cannot consent (and which may require force to administer) and detention (however it is defined) remains unclear. This will not only aVect such patients themselves, but those professionals caring for them. The Draft Mental Health Bill and the Mental Capacity Bill between them have not properly filled the so called “Bournewood Gap” identified by Lord Steyn in the House of Lords’ Judgment in R v Bournewood Community and Mental Health NHS Trust ex parte L[1998] 3 All ER 289 HL. The 2002 Draft Mental Health Bill did contain provisions for “informal treatment of patients not capable of consenting” (cl 121–139). These included consideration and formal approval of the care plan for such patients by an independent medical advisor appointed from the Expert Panel. If the medical advisor did not approve of the care plan, the clinical supervisor had to apply to the Mental Health Tribunal which would either approve the care plan or dismiss the application. There was a formal system for review with the Tribunal making a decision if there was a dispute about the outcome of the review. Under clause 136 the incapable patient or his nominated person could apply to the Tribunal for discharge from hospital. These provisions have completely disappeared from both Bills. The Government says that such provisions have now been shifted into the Mental Capacity Bill. There are indeed some such safeguards in the Mental Capacity Bill. However in general these enshrine in statute current common law principles such as setting down detailed tests for the assessment of capacity and best interests including the principle that everything must be done in a manner least restrictive of the patient. There is a general protection against liability for certain acts done in connection with the care and treatment of a person lacking capacity and provision for the appointment of an independent consultee where “serious medical treatment” is to be provided for an incapable person if there is no-one else it would be appropriate to consult (cl 35). There is also provision for the appointment of a donee under a Lasting Power of Attorney or a Court appointed deputy who might be empowered to take health and welfare decisions on behalf of the incapable individual. However these provisions fall far short of the scheme envisaged in the 2002 Draft Mental Health Bill as outlined above. They also appear to ignore the recommendations of the Joint Parliamentary Committee on the Draft Mental Capacity Bill. In para 227 the Joint Parliamentary Committee on the Draft Mental Incapacity Bill recommended “that the provisions for obtaining a second opinion currently available to patients detained under the Mental Health Act should be extended to compliant incapacitated patients requiring specified forms of treatment for mental disorder or physical conditions, whether in hospital or the community”. Such provision is to be found in neither Bill. There is a lack of clarity about when the general powers under the Mental Capacity Bill will be suYcient, when an application ought to be made to the new Court of Protection and when powers in the new Mental Health Act should be used. There is at present a lack of clarity and concern amongst many mental health professionals whom I advise as to when formal powers under the Mental Health Act 1983 should be used for particularly in relation to elderly patients with dementia who require ECT, and patients with a learning disability who might require forcible treatment and/or restraint. It is unclear in a number of circumstances whether they should be formally detained under the Mental Health Act or they can be dealt with under the common law doctrine of necessity. Respected legal commentators such as Richard Jones in the Mental Health Act Manual [see 1-028 9th edition] are critical of the practice of detaining under the Mental Health Act incapable elderly patients with dementia who require ECT. On the other hand many psychiatrists working in this field are very uncomfortable about providing ECT in such circumstances without being able to obtain the consent of the patient unless they can be aVorded the protections which would given to them if they were detained under the Mental Health Act. Under the new legislative regime (Draft Mental Health Bill and Mental Capacity Bill) such patients treated on an informal basis will not be subject to the regime of independent reviews, second opinions and the ability to challenge both their treatment and detention at the new Mental Health Tribunal that patients detained under the new Mental Health Act will have. The Draft Mental Health Bill does contain specific provisions in relation to ECT (cl 177–190). However the position with regard to incapable patients set out in cl 180 remains unclear in that it applies only to those patients who are registered under the Act. It fails to address the question of whether a patient without capacity can be given ECT if they are not detained under the new Mental Health Act. Can it be given under the general powers in the Mental Capacity Bill? Ev 844 Joint Committee on the Draft Mental Bill: Evidence

It may be that the eVect of the Judgment of the European Court in HL v The United Kingdom, Judgment 5th October 2004, Application No. 45508/99 will in fact mean that all such patients will need to be subject to the formal powers in the new Mental Health Act. However this decision relates to detention rather than treatment and the position remains unclear. Taken together, the provisions of the Mental Capacity Bill and the Draft Mental Health Act still fail to provide adequate protection for this group of patients, or clarify their position. The vulnerability of such patients is accentuated because generally if they are not brought within the formal provisions of the Mental Health Act they will not have a solicitor scrutinising their case and acting on their behalf. This issue is something which is not only of concern because of the lack of safeguards it gives to incapable patients, but also because it causes considerable confusion and concern to those mental health professionals caring for them. November 2004

Memorandum from St Anne’s Community Services (DMH 132) St Anne’s Community Services is a major provider of social care and supported housing services operating throughout Yorkshire and the North East of England. I am writing on behalf of the organisation to express our very real concern about provisions contained in the current Mental Health Bill because of how we believe they will impact on current and potential users of our St Anne’s provision. I will outline these concerns under the relevant sections below and ask that this memorandum be treated as evidence submitted to the Joint Committee. The subjects that I am writing about are: — Access to services. — Compulsory treatment. — Right to aftercare. — Electro-convulsive therapy.

Access to Services Unfortunately the experience of support staV within St Anne’s is still that people who are becoming unwell are still not able to access services as quickly as they need and therefore are still ending up in hospital or sometimes losing their accommodation. It is still too often the case that people only receive a service when they reach a crisis and that this then means their recovery takes longer to achieve. As many people experience mental distress at some point in their lives and the evidence demonstrates that maintaining your home, work and relationships assists with faster recovery it is vital that people are able to access services as soon as they realise that they need help. It is also crucial that services are person centred and that the experience and expertise of the individual asking for help is recognised and respected, which again in too many cases does not happen.

Compulsory Treatment There is a still a strong emphasis within the Bill on compulsion, whether this relates to treatment or detention. As you will be aware for many people experiencing mental health problems loss of control is a real fear and can compound individuals’ becoming more unwell. Compulsion or the fear of compulsory treatment can also lead people to avoid contacting the very services they require leading to signiﬁcant deterioration in their condition. Treatment needs to be provided on the basis of building trusting relationships between people requiring services and practitioners providing those services. The link between “dangerousness” and compulsion is also extremely worrying and surely can only add to the stigma faced by people experiencing mental health problems and runs counter to the recent Social Exclusion Report on Mental Health. St Anne’s recognises that there is a need to update mental health legislation but considers that the focus should be on a legal right to care and treatment.

Right to Aftercare As a provider of community based social care and support services we are well aware of the benefit to individuals’ of appropriate, person centred support services. We have numerous examples of people who are being supported in the community who have remained well, maintained positive relationships, taken up education and work and whose self-confidence and self-esteem have grown significantly. This sort of support needs to be given greater priority and to be more widely promoted so that people know it is available. It is therefore of concern that the Bill allows for further compulsory hospital treatment in some circumstances where social care provision is not available. It is also of great concern that whereas under the current legislation people who have been compulsorily detained are entitled to free aftercare services, the Bill Joint Committee on the Draft Mental Bill: Evidence Ev 845

restricts this provision to six weeks. For many people this is completely insuYcient time to enable someone to re-settle and to establish themselves in the community and be expected to manage independently. This will lead to increased anxiety and for many people a fast deterioration in their mental health. People should have the right to free care and treatment for as long they need it.

Electro-Convulsive Therapy (ECT) The Bill allows for ECT to be given without individuals’ consent in an emergency. St Anne’s believes that ECT should never be imposed against the will of a person who has capacity to consent, even in an emergency. Although there are still many problems in accessing appropriate mental health provision for many people, much positive work has been achieved both within the statutory and voluntary and community sectors to provide more holistic, person centred services over recent years. The Mental Health Bill in it’s current form threatens to seriously undermine this and we urge the Committee to consider this and the many other representations that we know are being made. November 2004

Memorandum from Janet Lally (DMH 133) I am writing in my capacity as someone who has worked in the mental health voluntary sector in the London Boroughs of Camden, Islington and Hackney for over seven years. During this time, I have had the privilege of working with an enormous range of people, with diverse life experiences and diVerent experiences of mental distress or mental health problems. I have worked closely with the statutory sector, including psychiatrists, GP, CPNs and Social Workers, during this time. I would like this document to be submitted as evidence against the letter and the spirit of the Draft Mental Health Bill. Most of the content of the draft Bill horrifies me, from a Human Rights and Civil Liberties perspective. I would particularly like to provide evidence against the removal of a right to services and aftercare for some of the most vulnerable people in our society. I would like to address the unworkable disgrace of compulsion in the community and the inaccurate, stigmatising and discriminatory use of “dangerousness” and the extension of police powers contained in the draft Bill. Removing people’s rights to services unless they are under a compulsory treatment order goes against all current government rhetoric about “patient choice” in health care, and exposes the hypocrisy in much- flaunted but little explained principles of “person centred care”. Imagine the outcry if such was suggested for physical health care, for example people having no access to GP services, A&E or smoking cessation classes unless under compulsion. On a moral and political level, we should all have the same right to access mental health services as we do a library. My experiences of working in mental health services strongly suggest that such moves will further increase the stigma attached to mental distress and deter people from seeking help. The reduction of rights to aftercare following a compulsory hospital admission (from the current six months allowed for by section 117 to just six weeks) is clearly a poorly thought-out cost-cutting measure. It fails to address the reality of life for people leaving hospital, often with no secure accommodation, little benefit advice, and possibly no access to employment or education, experiencing chronic isolation and battered self-esteem etc Whilst the government measures to increase opportunities for vocational advice and support for socially excluded people are commendable in principle, there needs to be a sustained commitment to their implementation in order for them to provide a realistic opportunity for people to develop their lives rather than a quick-fix towards meeting some ill-conceived target. Working in supported housing demonstrated to me that people leaving hospital need considerably longer than six weeks to be able to find their feet. This is also true of the services themselves, given that most are horrendously overly subscribed and becoming increasingly bureaucratic and diYcult to access as they too struggle to meet targets to ensure their funding. I would like to see the net being opened up, so that services are accessible both practically and psychologically when people need them. I would also like to see a properly sustained responsibility towards people who are deemed to be in need of compulsory treatment. This would include a meaningful discharge plan, where all relevant parties participate to address all areas of a person’s life, rather than a hastily cobbled together bit of paper which the patient often hasn’t even seen as so often happens at the moment. Also that this plan entails a longer-term vision, of providing decent, secure accommodation, meaningful activities and occupations and opportunities to develop fulfilling relationships rather than simply keeping someone oV the streets and medicated until a compulsory duty to them is up. In my many years’ experience in mental health, I have had the privilege of meeting many people who had been detained under the current Mental Health Act. Whilst each had their individual story to tell, one thing people often have in common is the enormous eVect that being “sectioned” had on their life. It aVects their employment and/or education, their relationships, their self-esteem and sense of self, often their financial, housing and family situations. Nor surprisingly, an enormous sense of powerlessness, fear, mistrust and Ev 846 Joint Committee on the Draft Mental Bill: Evidence

injustice is shared by many people who have been “sectioned”. Get to know people a little better, and it becomes apparent that a personal history of misfortune, neglect, trauma, abuse and, in short, finding the world a threatening and unwelcoming place is at the root of many expressions of mental distress. It appals me that any government can possibly believe that the appropriate response to these experiences can be to heighten the extent of coercion and control over the lives of some of the most vulnerable people in our society, and increase the numbers of people it treats in this way. To deny people the right to decide if they are ill and what type of help they need is to exacerbate the experiences of being ignored and disregarded that all too many people have grown up with. I am especially concerned about the use of the word “dangerousness” in the proposed bill. As I’m sure that you are aware, very few people with mental health problems present a danger to others; people are far more likely to present a danger to themselves. As government statistics show, less than 5% of violent crime or homicides are committed by people with mental health problems, and this has remained stable since “community care” (MHF, 2003). Discussions about “dangerousness” should not form a significant part of a Bill supposedly concerned with supporting and treating people in distress. To take compulsory measures “in case” people may be dangerous is damaging and discriminatory to people with mental health problems. We do not compel other groups of people who have been dangerous to society, like smokers, drunk drivers or foolhardy cyclists to adhere to treatment orders. Moreover, the police do not have rights to enter the homes of other groups of people without a warrant as you are proposing within the new bill. This is clearly against the most basic principle of privacy enshrined the Human Rights Act. It would be useful if the government could see past the (inaccurate) link between violence and mental health problems, which the media, in particular, has been so expert at creating. This would mean a very diVerent sort of bill, less concerned with compulsion and “public safely” and more focused on a commitment to quality, workable services aimed at supporting people to make the most of their lives. I would especially like the government to take the first step in acknowledging that sometimes it’s the legislative framework, and not the people, that is the problem. November 2004

Memorandum from C Pelikan (DMH 134) My name is Cathy Pelikan and I am a survivor of mental health services; I am deeply concerned about some of the proposals in the draft Bill and would like this email to be treated as evidence. A paper copy will follow. I am especially concerned about the proposals to extend the powers of compulsion. I would like to comment brieﬂy on: 1. Compulsion. 2. Dangerousness and Compulsion. 3. Compulsion in the Community. 4. Advance Directives. 5. Mental Health Tribunals. 6. Electro-convulsive “Therapy”.

1. Compulsion Having both used and worked in mental health services for some 18 years—most of those years in a representative capacity, representing other mental health users—I do not feel either that new powers of compulsion are necessary or that they will be helpful. Many people feel that if the services they need were readily accessible they would choose to access these. Many of those who do not use services do not use them because they have found services unhelpful or oppressive. Forcing people to use such services is therefore a retrograde step. Instead, eVort should be put into creating services which people will use and which will help them.

2. Dangerousness and Compulsion I feel that existing powers for dealing with people deemed to be dangerous are adequate. There is no exact science for predicting who presents a risk to others before any crime has been committed. To introduce preventive detention for people diagnosed as having a “personality disorder” is highly discriminatory, since no other category of persons deemed to present a risk to others is treated thus. If the Bill becomes lay this is likely to increase the stigma to those of us (including myself) with the diagnosis of personality disorder. There is already enormous prejudice against us and it can be impossible to (for instance) ﬁnd work with this diagnosis. The proposed measures will stop many people seeking help from services—since services will be seen as likely to deprive people of their freedom: this is very likely to increase risk to the public. Joint Committee on the Draft Mental Bill: Evidence Ev 847

3. Compulsion in the Community Many people die every year from prescription psychiatric drugs. Many of these deaths are not attributed to the psychiatric drugs because of very low levels of awareness and of reporting. Many users of psychiatric drugs ask—clearly and repeatedly—for more treatment choices and for choices which do not have such ghastly side eVects as psychiatric drugs often have. The proposals in the Bill, for example that people have to live in a certain place, are discriminatory and will be enormously stigmatising to an already stigmatised group of people. The proposals will cause immense damage to relationships which rely on the development of trust— relationships between mental health professionals and service users. This loss of trust may again cause people to move away from the services they need—meaning that more people will reach crisis point with the resulting enormous disruption to their lives.

4. Advance Directives There is a great deal of evidence (in the world of health promotion) that participating in one’s own life enhances health and wellbeing. Many users of mental health services, particularly long-term service users, have asked to have the option of Advance Directives by means of which they can state their wishes in case of a mental health crisis. Such Directives will help preserve the individual’s dignity and self-respect, which are—of course—integral to their well-being and therefore to their recovery.

5. Mental Health Tribunals It is impossible to describe to someone who has not experienced it the agony of those imprisoned against their will who are forced to wait long periods for a review of their case. There can currently be long waits for access to tribunals. It is crucial that guaranteed speedy access to review must be key to the provision of any new Mental Health Tribunal.

6. ECT In common with very many of those who have been subjected to involuntary electro-convulsive treatment, I do not feel that there can ever be any justiﬁcation for giving this treatment without the full, informed consent of the subject. ECT can cause long-term physical and psychological damage. I feel very strongly indeed that ECT should only ever be administered with the fully informed consent of the subject. November 2004

Memorandum from T Lewis (DMH 135)

1. Introduction 1.1 My name is Teresa Lewis and I am concerned about the proposals put forward in the Draft Mental Health Bill. I am a user of mental health services and a volunteer with a mental health charity. I wish this memorandum to be treated as evidence. 1.2 (a) Deﬁnition of mental disorder (b) Compulsion in the community (c) Widened deﬁnition of treatment (d) Appointment of a nominated person

2. Definition of Mental Disorder 2.1 This subject is important because the deﬁnition is too wide and is open to interpretation. People with relatively minor disorders should not be subject to compulsion. 2.2 Few people with mental health problems are dangerous especially people who are distressed, depressed or exhibit “odd behaviour”. 2.3 More resources put into mental health services for promotion of mental health and for those with a diagnosis in order to maintain health. However using of such services should be on a voluntary basis. Ev 848 Joint Committee on the Draft Mental Bill: Evidence

3. Compulsion in the Community 3.1 There should not be compulsion in the community. 3.2 It is unwise to force people to take medication in the community where they cannot be monitored. If people take medication on a voluntary basis they can decide to discontinue where there are adverse eVects. 3.3 People who are in a crisis and who are therefore compelled to take medication should be in hospital where they can be monitored.

4. Widened Definition of Treatment 4.1 This includes attending a day centre, anger management therapy and counselling. 4.2 These forms of treatment work only if people are encouraged to make use of them and rather than be compelled. It also makes therapy diYcult for therapists and fellow users. 4.3 More resources should be put into counselling both in the statutory sector and the voluntary sector. People with mental health problems will be able to use them as they wish before a crisis happens.

5. Appointment of a Nominated Person 5.1 The nominated person is not involved until the formal assessment stage is reached, if at all. The nominated person cannot be a paid carer or a volunteer with a voluntary organisation. 5.2 Patients need earlier support from friends, carers and family. 5.3 The nearest relative should be allowed to make decisions as to whether a patient needs to be detained until a nominated person is appointed. November 2004

Memorandum from Dr Wendy Franks (DMH 136) As a Chartered Clinical Psychologist working in the NHS, I oVer the following comments regarding my views about the Draft Mental Health Bill. I welcome many of the proposals of the above draft bill, including: — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Special provisions for children and young people. — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go a long way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some, I am troubled to find, remain exactly the same as the concerns that were expressed by many respected organisations following the draft bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS: — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. Joint Committee on the Draft Mental Bill: Evidence Ev 849

— A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and speciﬁcally that doses above BNF limits and electro-convulsive therapy should not be given without informed consent. Clearly any new legislation regarding the use of compulsory powers should be considered in the context of human rights legislation. I believe the mental health bill as it currently stands may potentially further stigmatise people who experience mental health problems. The bill should oVer a clearer statement to acknowledge that people with mental health problems are no more likely to pose a danger to society than people who do not have mental health problems. It is my view that the bill’s primary function should be to protect and advance the rights of people with mental health problems. I trust that the concerns I have raised above will be considered by the committee and I look forward to your response. Dr Wendy Franks, BSc, Clin.Psy.D, CPsychol. Chartered Clinical Psychologist October 2004

Memorandum from Mary Kibblewhite (DMH 137) 1. More stringent criteria for detention, based on evidence of risk of harm and not supposition, with burden of proof on detaining authority. 2. Compulsory medication only when risk of harm as above. Not automatic with detention. Therefore no detention in order to enforce medication. 3. Retention of nearest relative, with power to order discharge from detention. 4. More stringent criteria as No 1 for removing nearest relative. 5. No compulsory treatment in the community. 6. No detention of people diagnosed with severe personality disorder on supposition of risk of harm. 7. More frequent right of appeal, and of discharge order by nearest relative. 8. Tribunals to include a psychologist and a user, and to aim for gender balance.

General: Complete dismantling of present legislation and fundamental re-drafting, based on human rights criteria.27 Re-allocation of responsibilities, rights and powers between patients, carers/relatives, psychologists, social workers and doctors. Mary Kibblewhite October 2004

Memorandum from Mr M K Foolchand (DMH 138) I wish to express to you my very serious concerns about the above Bill. I wrote to the DOH in 2002 expressing my serious concerns about the Draft Mental Health Bill of 2002. After much opposition to the 2002 Bill, it seems that the September 2004 Bill is little diVerent. To this end, I am making some more comments and objections on this Bill. The reasons are: The government states that the Bill aims to make mental health services more focused on the individual. This is utter nonsense. Mental Health Care has never been delivered in a way to meet the needs of the individual. Once one is sectioned, this person is seen as a diagnosis. He/she is seen as having the “problem” and the problem is in need of medication and control. The Sainsbury Centre for Mental Health (1998) after its research in Acute Problem states “no individualised approach is oVered, sensitive to the needs of

27 And taking into account recently-emerging information (from Bellmarsh Prison) of the harmful psychological and emotional eVects, leading to psychiatric problems, of long-term detention without term. Ev 850 Joint Committee on the Draft Mental Bill: Evidence

patients”. Furthermore, you are well aware of the stigma and stereotypes that are attached to those who suVer from mental health problems. Unfortunately, the staV who work in mental health institutions are not immune to those socially constructed values. There is a view put forward by the document “Towards a New Mental Health Act” that fewer bed days are being used and there is reduced use the of the Mental Health Act 1983. I have information to indicate that these assertions are not accurate. The 10th Biennial Report by the Mental Health Act Commission (2001–03) states that there is significant pressure on beds, sometimes with occupancy levels of 200%. There is also very strong evidence to indicate that patients are being sent on leave or discharged so that their beds can be used for other patients. With reference to the reduced use of the MHA, the same report indicates that since the inception of the MIHA in 1983, the use of sections 2 and 3 have risen from 6,000 to 15,500 and from 1,900 to 13,800 respectively. Moreover, more and more clients are entering mental health institutions informally, (voluntarily) and then find themselves detained under Section 5/2 (6339) and 41 under Section 5/4 between the period of 2001–02. The detention of clients (according to the Bill) is dependent upon the provision of “appropriate” treatment. The Bill has a very elastic definition of treatment and hard-pressed doctors and nurses would be more likely to use the chemical cosh to control and manage clients. The hospital environment has also come into some criticism. The Sainsbury Centre for Mental Health (SCMH) 1998 points out that hospital care is non-therapeutic, unpopular, many wards lack basic amenities, many patients feel unsafe and suVer from sexual and racial and other forms of harassment. This is not likely to help in the patients’ recovery!! Incidentally, the mental health service of Child and Adolescent are in my view quite diabolical. The DMH Bill argues that individual clients would have a written care plan, which must then be approved by the Mental Health Tribunal. The plan of care will only be a plan. It is hardly likely to be implemented, as this is already evident now. Patients have fantastic care plans and hardly anybody looks at them. Hard- pressed nurses are far too busy observing clients, dealing with emergencies, admissions and have little time to spend with patients. The DOH (1999) Mental Health Nursing: Addressing Acute Concerns, states that “stress levels of nurses in in-patients are unacceptably high” and this is compounded with staV shortages and an over-reliance on bank and agency staV, inadequate education are resulting in a increasingly custodial nature of care. Furthermore assaults on staV and patients are unacceptably high. The Bill states that there is a “clear” gateway to treatment. This is designed to ensure that formal powers are not used inappropriately. This assumes that there are “objective tests” to determine if one is suVering from a mental disorder (this is also an over-inclusive term). In reality, many professionals see that they want to see, and of course, this depends on their own views, opinions, beliefs and not “facts”. Many will err on the side of caution and will detain people simply to cover themselves. All some clients have to say is this “if you do not admit me I will kill myself” and the doctor then has little option but to admit them. The Bill argues that ill and vulnerable people will get their treatment in the community. There is little evidence that community treatment orders have made any impact to date. But on a more specific point, I argue that this form of powers will further alienate these individuals. Many will change addresses, become homeless or simply be driven underground. This form of community coercion is unlikely to encourage service users to come forward, especially when they need extra assistance. Furthermore, there is a view that professionals are likely to say to the clients in their homes “if you do not have the treatment at home you will have to come to hospital”. This is in my view not a choice but an ultimatum. Of course many will choose not to go to hospital and the family members will be left to look after them. This will turn into Community Care on the cheap!!! In general, the Bill will lead to a return to the days of “Once flew over the Cuckoo’s Nest”. It signals the return of locked wards, locked rooms, nurses locked in their oYces, only coming out to give medication and poorly trained attendants patrolling the ward corridors. I can see patients being allowed out of their room for meals and maybe to watch TV StaV morale is already very low, most people are either looking forward to retirement or actively seeking other jobs. Many psychiatrists are already nearing retirement age and not enough are coming through the ranks to fill in their shoes. The problems that exist in Mental Health Institutions are not going to be resolved by this hideous Bill, but with a sustained growth in the infrastructure of the Mental Health Service. This means more nurses, doctors, OT, physiotherapists, Counsellors etc but not more coercive legislation which does little more than linking mental disorder with criminality. The government will say that so many millions of pounds are being spent in the NHS. This is not the reality on the front line. What money is being spent on Mental Health is being spent on building medium secure institutions. The reality is that those who suVer from mental disorder are more likely to be victims of violence, stigma and social exclusion. So please confine this Bill to the bin and let’s start again by listening to the clients and significant others. Mr M K Foolchand October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 851

Memorandum from P D Green (DMH 139)

As a Trustee of Leeds MIND, and as an individual in my own right, I am writing to express my concern at some of the proposals in the draft Mental Health Act. I appreciate that considerable eVorts have been made to redraft the Bill based on the huge amount of feedback expressed from all quarters—both professional and lay. However I still have some fundamental concerns about the new draft, which are to do with making an Act that is fair, humane, and workable. The detailed issues are represented by the comments attached. These have been collated by Leeds MIND (an independent charity, aYliated local association of National Mind, with a signiﬁcant client group including those who have serious and enduring mental health problems), and The Mental Health Alliance in West Yorkshire (a campaigning group made up of local service users and carers, and of workers from the local Mental Health Trust, Social Services and voluntary sector organisations.) I trust that you will consider these issues and arguments again, and produce a further redraft of the Mental Health Act.

Extracts from Submission Compiled by Leeds Mind

Discouragement

While there have been some improvements in this draft, which goes some way to making the proposed Act workable at ground level, it remains ﬂawed to the extent that it will discourage service users from approaching services, increase rather than reduce the likelihood of patients complying with planned treatments and undermine the best eVorts of committed staV to help people improve their mental health. At worst it will work against the governments intentions to reduce hospital admissions and delayed discharge as well as provoking negative reactions through increased use of compulsion. We urge the Scrutiny Committee to rethink this piece of legislation in order that we do eventually get an Act ﬁt for the 21st Century.

Compulsion

It is our understanding that the Government was seeking to reduce the number of violent episodes and decrease the need for hospitalisation. We wish to point out that the proposed legislation will certainly achieve the opposite eVects. Over the last four decades compulsion has been reduced in terms of mental health legislation. This has served to reduce the amount of discrimination people with mental health problems experience. The idea of compulsion is very threatening to many people with mental health problems for whom the importance of personal control over their aVairs is paramount. We have already been informed of many people withdrawing from their prescribed medication in order to be free of mental health services by the time an Act is passed. There is every chance that such fear will drive people away from using services and prevent others from approaching them in the ﬁrst place. This will make preventative work and early intervention impossible in many cases. It will also vastly increase the likelihood of untreated illness leading to unpredictable and possibly violent incidents, most often directed against the self. Later presentation of mental health problems also increases the likelihood of hospitalisation. This will make it likely that by the time people do present to services they will be more distressed and less in control of themselves.

Trust

Most eVective interventions in the ﬁeld of mental health involve the willing choice by a service user to engage in beneﬁcial work with someone they trust. The role of professional staV under the proposed legislation will become markedly more coercive, in the sense that their role will have a greater emphasis on ensuring the compliance of the person with a Care Programme. The Act as it stands drives a wedge between staV and service users which can only discourage people from using services.

Stigma

We understand that it is diYcult to get a balance between diminishing the stigma attached to mental health problems and ensuring public safety. In our view the Act as it stands places the emphasis far too heavily on the “need to protect the public”, particularly from people given the label “Personality Disorder”. Anyone familiar with the mental health ﬁeld knows that this is a label of exclusion. It neither adequately describes a “condition” nor indicates a course of treatment. It is therefore an unsafe diagnosis. Ev 852 Joint Committee on the Draft Mental Bill: Evidence

Autonomy In general, we conclude that the proposed Act increases the use of compulsion and therefore reduces a person’s autonomy. It is better known now, that increasing a person’s sense of control over their life directly improves their mental health. Reducing the control they have will have the opposite eVect together with the attendant negative outcomes associated with a deterioration in mental health.

Aftercare The reduction in the provision for aftercare proposed in the Bill will have some very negative eVects for people with mental health problems. It is likely to mean extended periods of compulsion (where community services do not exist). The restriction of free aftercare to six weeks will severely restrict a person’s capacity for recovery and the increased likelihood of readmission to hospital. In our area, the dearth of community mental health services will lead to delayed discharge and extended periods of compulsory detention.

Extracts from Submission Compiled by The Mental Health Alliance in West Yorkshire

Conclusion The Bill will not achieve the right balance of protecting the personal and human rights of people with mental health problems, and concerns for public and personal safety, due to the proposed use of compulsory treatment and powers. We want to work with people in the community to support their independence and to focus on recovery. This aspect of the Bill will also have an extremely detrimental eVect on the role of professionals and the way they are perceived. It is contrary to the agenda for social inclusion currently also being promoted by this Government. This means in turn that the Bill will, in eVect, be unworkable. It will also be extremely ineVective, and even counterproductive, because many of the people who need treatment and support will not seek it.

Independent advocacy and advance statements We very much welcome the inclusion of the right to independent advocacy. This right does not come early enough in the process, which means that there is not adequate safeguard for people prior to assessment. It is crucial that advocacy is genuinely independent, and we are not convinced that enough resources will be available to make this happen. We greatly regret the omission of a right to advance directives statements, nor an obligation on the clinical team to respect and follow them. The use of such statements would be an extremely important safeguard in how people are treated when in crisis.

ECT We note that in the Draft Bill it will be possible for people to be given electro-convulsive therapy (ECT) against their consent, “in an emergency”. We believe that ECT should never be given against consent. October 2004

Memorandum from Leeds Mind (DMH 140) 1. Introduction Leeds Mind is an independent charity serving the Leeds Metropolitan District (population 750,000) and working annually with more than 1,000 users of mental health services. We are an aYliated local association of National Mind. Our contact with the people who will be aVected by a future Act of Parliament is daily and close—we provide 10 mental health services including Counselling, Housing, Day Care, Employment and Information projects. Our client group is broad and is made up of those who have serious and enduring mental health problems. Many of these people have contributed to this submission.

2. Compulsion 2.1 Over the last four decades compulsion has been reduced in terms of mental health legislation. This has served to reduce the amount of discrimination people with mental health problems experience. The idea of compulsion is very threatening to many people with mental health problems for whom the importance of personal control over their aVairs is paramount. We have already been informed of many people withdrawing from their prescribed medication in order to be free of mental health services by the time an Act is passed. There is every chance that such fear will drive people away from using services and prevent Joint Committee on the Draft Mental Bill: Evidence Ev 853

others from approaching them in the first place. This will make preventative work and early intervention impossible in many cases. It will also vastly increase the likelihood of untreated illness leading to unpredictable and possibly violent incidents, most often directed against the self. Later presentation of mental health problems also increases the likelihood of hospitalisation. This will make it likely that by the time people do present to services they will be more distressed and less in control of themselves. It is our understanding that the Government was seeking to reduce the number of violent episodes and decrease the need for hospitalisation. We wish to point out that the proposed legislation will certainly achieve the opposite eVects. 2.2 Most eVective interventions in the field of mental health involve the willing choice by a service user to engage in beneficial work with someone they trust. The role of professional staV under the proposed legislation will become markedly more coercive, in the sense that their role will have a greater emphasis on ensuring the compliance of the person with a Care Programme Approach Care Plan. The Act as it stands drives a wedge between staV and service users which can only discourage people from using services. The positive alliances, which are possible at present between staV and service users, will be put under pressure and you may expect a haemorrhaging of dedicated staV from these services as the possibilities for eVective work dries up. 2.3 We understand that it is diYcult to get a balance between diminishing the stigma attached to mental health problems and ensuring public safety. In our view the Act as it stands places the emphasis far too heavily on the “need to protect the public”, particularly from people given the label “Personality Disorder”. Anyone familiar with the mental health field knows that this is a label of exclusion. It neither adequately describes a “condition” nor indicates a course of treatment. It is therefore an unsafe diagnosis, one often used if a patient “gets up the nose” of a psychiatrist. That it should become easier to detain such a person is in breach of the Human Rights legislation this government introduced. On the ground it is causing great anxiety among those who have been in receipt of this diagnosis. The possibilities for Human Rights abuses and miscarriages of justice under the proposed Act will be greatly increased. 2.4 In general, we conclude that the proposed Act increases the use of compulsion and therefore reduces a person’s autonomy. It is better known now, that increasing a person’s sense of control over their life directly improves their mental health. Reducing the control they have will have the opposite eVect together with the attendant negative outcomes associated with deterioration in mental health.

3. Aftercare

3.1 The reduction in the provision for aftercare proposed in the Bill will have some very negative eVects for people with mental health problems. It is likely to mean extended periods of compulsion (where community services do not exist). The restriction of free aftercare to six weeks will severely restrict a person’s capacity for recovery and the increased likelihood of readmission to hospital. In our area, the dearth of community mental health services will lead to delayed discharge and extended periods of compulsory detention.

4. Summary

4.1 While there have been some improvements in this draft, which goes some way to making the proposed Act workable at ground level, it remains ﬂawed to the extent that it will discourage service users from approaching services, increase rather than reduce the likelihood of patients complying with planned treatments and undermine the best eVorts of committed staV to help people improve their mental health. At worst it will work against the governments intentions to reduce hospital admissions and delay discharge (particularly due to the planned reduction in aftercare) as well as provoking negative reactions through increased use of compulsion. 4.2 It will be detrimental to staV/client relationships by reducing the amount of autonomy people have and making the role of professional staV more coercive. 4.3 It discriminates particularly against people with a “Personality Disorder” label in making it easier to detain them. 4.4 We urge the Scrutiny Committee to rethink this piece of legislation in order that we do eventually get an Act ﬁt for the 21st Century. Julian Turner Chief Executive, Leeds Mind October 2004 Ev 854 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Crewe and Nantwich Mental Health Sector Planning Group (DMH 141)

1. Summary The implied underpinning of the revised Bill is that there should be a balance between the protection of society, protection of the individual and the accessibility of treatment, and a greater tolerance of individual behaviour hopefully leading to a tolerant and just society. However, both the accessibility to treatment, resources, and the greater degree of control placed in the agents of state, the partial reversal of an individual’s self-determination, the reduction in state-funded care on discharge from compulsory treatment and the deﬁnition of mental disorder are matters of great concern.

2. Severe Personality Disorder 2.1 Now that this syndrome is regarded as a severe mental illness, people with this condition might expect appropriate treatment. It is curious, therefore, that the government has dismantled the residential provision in our locality, Webb House (administered by Bolton, TraVord and Salford MR Trust), after setting it up just a few years ago at great cost. The argument that such services should be placed in the community is partly right, there should be a range of modalities. Institutions—even very benign ones—are regarded as leading to institutionalisation, which does not need to be the case (the special treatment units in HM Prisons, where a change of culture massively changes the success). Therapeutic communities require very high commitment by its residents, and the behavioural outcomes are good (without any drugs!). 2.2 Widening the criteria of the condition may lead to greater secrecy and self-deception, making it more diYcult to acknowledge the possibility of a problem. 2.3 The idea that persons who self-harm (but are not mentally ill) may be subject to compulsory measures is generally not acceptable. Such patients need prolonged help in taking control of their lives—within their own community—rather than (enforced?) CBT etc The Cochrane papers acknowledge that studies are of insuYcient size to enable an evidence base to be devised, and a meta study is not possible since the small scale research is so diverse. 2.4 And where are the therapists for deliberate self-harm? In this area of Mid Cheshire (population circa 215,000) the only resources are one or two voluntary organisations, grievously under-funded. Psychologists will no longer be having caseloads of their own. Other professionals with the necessary skills are few. Greatly increased resources for the non-statutory sector must accompany legal changes. 2.5 And where is the funding? Literally dozens of frozen nursing posts because of the Trust overspend; wards being declared unsafe to practice due to poor staYng levels with consequent closure of a psychiatric intensive care unit to boost staYng on other wards—and the catalogue of resource problems could go on. 2.6 The realistic solution is an eclectic mix of resources and routes into services, but greater compulsion is to be deplored. No matter how we wince at the thought, deliberate self-harm is a choice emanating from a distorted way of coping. Help, yes. Compulsion (except in extreme circumstances and as part of a frank mental disorder,) no.

3. Control 3.1 Professionals of all kinds often have a profound diYculty in viewing the world other than through their patriarchal eyes. If it were otherwise, there would be no real need for a nominated person or mental health advocates etc If viewing other people from their own perspective, (it used to be called empathy), was a reality, treatment would be a (generally) co-operative process rather than the imposition the Draft Bill implies. 3.2 Imposition would be arguably less of a problem if the treatments led only to positive outcomes, or that the undesirable outcomes were honestly acknowledged and the risk/harm ratio balanced. But of course we have, in many respects, been led up the garden path. The so-called atypicals with a lower risk of side eVects, have been comprehensively criticised by the ex-editor of the BMJ, Richard Smith. Prozac, Corticosteroids, the new generation of anti depressants—the list is considerable. So much for an evidence base. 3.3 And as for (implied?) ECT for young people, even in an emergency, personally I, and I guess many other people, will ﬁnd that reminiscent of a gulag. 3.4 No matter how carefully and professionally the new Act is implemented, the fact that the words could allow detention of people whose beliefs or behaviour could be construed as a manifestation of distorted brain functioning, poses political and human rights problems. The deﬁnition(s) of what legitimately constitutes grounds for an assessment must be much tighter, with very rapid access to a Tribunal if the patient disagrees, and not be seen to theoretically extend into old style Soviet catch-all phraseology. Joint Committee on the Draft Mental Bill: Evidence Ev 855

4. Patriarchy 4.1 The Royal College of Psychiatrists issued advice, in the form of a booklet, some years ago advising patients of the searching questions they should use when in consultation with a psychiatrist. The underpinning philosophy was that patient views count—as do those of carers—which seems largely lost on the civil servants who have drafted the Bill. 4.2 Of course, some patients will have lost insight (in our terms), but most will have insight when well, and can make sensible comments about how best they can be helped when mentally ill, and in particular what creates fear and dread, and what makes them feel worse. More sensitive exploration of a service users reﬂections when well, could probably shorten a later acute phase, and hasten recovery. 4.3 There is the acceptance within the draft Bill, that staV are capable of only unidimensional functioning—they are unable to stand outside of themselves and examine their behaviour from a patient’s perspective. It used to be called empathy. Why else would it be necessary to expand the numbers of mental health advocates? While some patients may need help to express themselves and be more assertive—when advocates are invaluable—the underlying empathic malaise is depressing. In reality, the Bill is right to emphasise their importance, and accreditation, but only as a result of professionals’ limitations. 4.4 Advance directives should be valid unless they imperil the patient to a life-threatening degree.

5. Consent 5.1 The often dismissive attitude to consent is deplorable. Professional staV should have an enabling or health enhancing role, not the patriarchal “do it my way”, “iron ﬁst in velvet glove” manner. Except in very tightly deﬁned situations, joint exploration should be the sine qua non. Consent should also be regularly reviewed, not a once-for-all event, particularly as the patient recovers and nascent abilities recovered.

6. Aftercare 6.1 With the increasing amount of home treatment in the acute phase, aftercare becomes a natural continuum. Nevertheless, a package of care for all patients, free and comprehensive, must be in place if costly recurrent breakdowns are to be avoided. 6.2 The foreshortened period of six weeks’ aftercare (previously S. 117), is unacceptable, particularly for patients whose hospitalisation has been prolonged.

7. Compulsion in the Community 7.1 Guardianship under previous legislation was intended for use within a mental illness context (as well as in learning disability), but was seldom implemented for a number of reasons, particularly that of liability by local authorities. The liability issue remains. 7.2 It was also impractical for the same reason as in the draft Bill, because it is based on ﬂawed reasoning. 7.3 If a person does need to be “compelled” under the Mental Health Act, it presupposes that the patient is either non-compliant, unreliable, or unpredictable. Therefore, someone within that circle is at risk, possibly a life-threatening risk. Safety, therefore, has to be permanent and hospitalisation expedited. November 2004

Memorandum from Ann Priestner (DMH 142) Could you please put it into the New Mental Health Act there’s got to be a simple and straightforward way for notes to be corrected. MIND did put in a proposal for this. I fear that the reason why it was without success is because you do not accept it that a Social Worker would get it wrong in the ﬁrst place. Please see the enclosed letter from my solicitor and how it took them three years to apologise for saying (a) I’d pilfered paper from oV a charity (b) I’d been admitted into hospital under a section of the Mental Health Act when I hadn’t been, never been anywhere near it. That by the way is only two of the mistakes she made, it was line after line with everything wrong in it, starting oV on the top of page one with my address and previous address wrong, which meant my next of kin’s was wrong too and when I complained about it they told me she was very eYcient. (“Works with thoroughness” were the exact words). As regards this alleged pilfered paper, psychologists think she felt guilty about using headed note paper from Social Services and that was how she managed to dream it that I had done this. She also said what I wrote on it was libel. Again psychologists think this may be because she feared it was libel to write it in my notes that I had taken this paper. During the three years I persevered with trying to get it corrected, I was harassed so much by their visits, with made up information on what I’d done, that I could no longer live in Ev 856 Joint Committee on the Draft Mental Bill: Evidence

my own home. I was getting symptoms that the coronary prevention group say need avoiding. Ulcers in the mouth and on the face, visual disturbances associated with migraine headaches, a stiV neck and sleeplessness. They put up a big ﬁght not to have to correct it and to say the only problem was a psychiatric one, the only help I needed was psychiatric and social and that their only interest in it was to help me, and to see to it I got the correct treatment. Ann Priestner November 2004

Memorandum from Members of the Bude Mental Health Resource Centre (DMH 144)

We are writing to you as members of the Bude Mental Heath Resource Centre to express our concerns about the draft Mental Health Bill. Between us we have experienced a wide range of mental health issues and therefore feel we are well equipped to give our views on the draft Bill. We feel very strongly that our views should be heard as the Bill would not help the majority of people who suVer a mental illness. There is too much emphasis on control over vulnerable people, compulsory medication and on keeping people in hospital. Our major concern is that the Bill will make an even bigger stigma of mental illness. This would stop people seeking help until they were really unwell because of fear of being sectioned. We would like to see care in the community actually working, with adequate funding. We wondered if any member of the Committee had ever visited a Mental Health Resource Centre like ours, which increases people’s conﬁdence and autonomy and makes them feel like a valuable member of the community. You certainly do not get this from being sectioned. We have campaigned for 10 years for larger premises without success; resources should be put in the direction of real care rather than hospitalisation and control. We do not feel the Bill as presently drafted would improve things for mental health. We would be grateful if you could bring our letter to the attention of your colleagues on the Committee and to the relevant Minister. October 2004

Memorandum from Charles and Maxine Wilson (DMH 145)

1. Our daughter has bipolar aVective disorder and receives help from the mental health service. We wish this memorandum to be treated as evidence. 1.1 The subjects we are writing about are: a right to services; advance directives; and a right to aftercare.

2. A Right to Services 2.1 It is important for mental health services to respond quickly and eVectively to requests for help when patients or their carers ask for it. This is far preferable to having to be compulsorily detained later when their condition worsens. 2.2 Last time our daughter became ill, we asked the crisis team for help. They did not help and later that day our daughter had to compulsorily detained under the Mental Health Act (1983). This could have been avoided if the service had helped when we asked them to.

3. Advance Directives 3.1 It is important for advance directives to be legally enforceable. 3.2 Last time our daughter became ill, the crisis team refused to acknowledge that she had an advance directive in place. If a patient has an advance directive in place then the mental health services should be made to acknowledge and work with that document. Joint Committee on the Draft Mental Bill: Evidence Ev 857

4. A Right to Aftercare 4.1 It is important for people who have been compulsorily detained to receive help free of charge for as long as they need it. 4.2 Our daughter gets help under section 117 aftercare. This helps to maintain independence, prevent relapse and steadily promotes her recovery. Any part of the Mental Health Act (1983) that is seen as useful by users and carers of the mental health service should not be taken away. Charles and Maxine Wilson

Memorandum from Lindy Herrington (DMH 146) 1. I have bipolar aVective disorder and I have help from the mental health services. I wish this memorandum to be treated as evidence. 1.1 The subjects I am writing about are: a right to services; advance directives; and a right to aftercare.

2. A Right to Services 2.1 It is important for mental health services to respond to requests for help when people know they are becoming ill. This could save having to be detained compulsorily when their condition worsens. 2.2 Last time I became ill, my Mum and I asked for help from the crisis team. They would not help me. Later that day I had to go into hospital under the Mental Health Act. This could have been avoided if I had received help earlier.

3. Advance Directives 3.1 It is important for advance directives to be legally enforceable. 3.2 I have one in place, signed up by all involved in my routine care. At present the crisis team will pay no attention to it. It would help us all if they were made to acknowledge and work with it.

4. A Right to Aftercare 4.1 It is important for people who have been compulsorily detained to have a right to receive help free of charge for as long as they need it. 4.2 At present I get help under section 117 aftercare. This helps to prevent my relapse and steadily promotes my recovery. Any part of the Mental Health Act that is seen as helpful by service users should not be taken away. Lindy Herrington

Memorandum from Pauline Bispham (DMH 147) As a mental health service user, these are my concerns regarding the Draft Mental Health Bill. The Bill will not achieve the right balance of protecting the personal and human rights of people with mental health problems, and concerns for public and personal safety, due to the proposed use of compulsory treatment and powers, as follows. The bill extends the use of compulsion in individual’s homes and communities. (a) Whilst treatment will not be forcibly administered in the community, individuals who are not compliant face being removed to a treatment unit with all the distress inherent in that experience. (b) This may well involve police oYcers as well as mental health staV; it will be very visible and will increase fear and stigmatisation in the community. (c) This is entirely contrary to the agenda for social inclusion currently also being promoted by this Government. (d) This aspect of the Bill will have an extremely detrimental eVect on the role of professionals and the way they are perceived. (e) People will be reluctant to contact mental health services because of the increased fear of intrusion and coercion which they feel they may be subjected to if this draft legislation were to become law. Ev 858 Joint Committee on the Draft Mental Bill: Evidence

(f) Furthermore, the potential for staV to feel that they are oVering a therapeutic relationship is severely compromised when they are “policing compliance”. (g) The power dynamics of these relationships would be radically altered if this legislation were put in place as currently proposed. (h) This means in turn that the Bill will, in eVect, be unworkable. (i) It will also be extremely ineVective, and even counterproductive, because many of the people who need treatment and support will not seek it. Pauline Bispham

Memorandum from William Aldred (DMH 149)

I was sectioned in March 2000 and since that time I have been challenging the incorrect information which has been entered into my medical record. Despite being supported by my GP, my complaint is still not resolved and is, at the time of writing, under consideration by an Independent Review Panel. I would be pleased to provide additional information to confirm the sincerity of this letter. Acting on false allegations made to the police by an unidentified person, the assessing doctors diagnosed me as potentially violent and I was admitted to the secure unit of the Warneford hospital. The police records confirm that I was in no way violent during my arrest and that I have no police record. The hospital record shows that I became angry and aggressive after being subjected to enforced medication and the psychiatric reports go on to record my denial of wrong doing as proof of mental illness. The Trust Directors have now acknowledged that the account of my detention, given in the medical record in preference to my own, is not supported by evidence or named witness and a partial correction has now been entered into my notes. However my experiences demonstrate that information is entered into a patients medical record without the safeguards which are aVorded in a court of law and this appears to violate basic principals of the Data Protection Act. The directors maintain that the diagnoses based on this incorrect information are valid and confirmed by ward observations, but I have received no response to my written request for details of these observations. In the course of pursuing my complaint, I have made a number of suggestions to the trust directors for service improvement. I can see no reason why a sane person should deny these basic rights to a patient, there is simply no need to assume the worst and act accordingly. (a) Voluntary admission should always be oVered and only its refusal need result in formal admission procedures. Police could be issued with simple forms explaining the detainee’s situation and oVering voluntary admission. This would save the cost and inconvenience of calling out doctors; protect the doctors from potentially dangerous situations; help determine the level of capacity; and reduce the number of compulsory admissions. (b) Oral medication should always be oVered and only its refusal should justify enforced medication. This would also help to determine the level of capacity and would avoid unnecessary trauma. A video camera in the admission area would be consistent with similar protection used by the police in interview rooms. William Aldred October 2004

Memorandum from S Byhurst (DMH 151)

1. Introduction

1.1 As a suVerer from clinical depression I have been a user of NHS mental health services for the last 12 years. I have studied the proposals contained in the Draft Mental Health Bill and I am very concerned that some of these would be detrimental to the proper care of persons suVering from mental illness. I wish this memorandum to be treated as evidence.

1.2 The subjects that most concern me are detailed below. Joint Committee on the Draft Mental Bill: Evidence Ev 859

2. A Right to Services 2.1 In my experience it is extremely important that anyone who has mental illness should have access to care very quickly. When I ﬁrst realised I was ill my GP gave me anti-depressants but the real help I needed was to talk to someone who had the time and the training to listen to what I had to say and help with solutions. It was eight weeks before I saw a CPN and I had an even longer wait to see a Counselling Psychologist. As a result of not getting the care I needed early enough I suVered from debilitating depression for much longer than I need have done. 2.2 Having spoken to many others in a similar position to me I am certain that my experience is not an uncommon one. People are not getting access to services soon enough and the proposals in this Bill appear to do nothing to address this. 2.3 It is my belief that the Bill must contain proposals which emphasise the need for quick access to help for those who are in acute pain. A person with intense pain due to a physical cause is usually seen very quickly by someone who has the time and knowledge to treat them properly. Why should mentally ill people be treated diVerently?

3. Compulsion in the Community 3.1 I believe that no one who has mental illness should ever be put under compulsion to do anything by someone who may not understand the person well. Personally I was very worried that I may be forced into treatments which I didn’t understand or want. A distressed person does not need to be forced into doing anything, they need to be able to trust the people who help, care and support them, not be afraid of them! 3.2 Under this Bill, the clinical supervisor can decide to put a patient under compulsion in the community rather than in hospital. It is important that this proposal doesn’t go through. 3.3 If people are in a real crisis where compulsion is the only option so that they don’t hurt themselves or others, they need to be in hospital where they can be safe and properly monitored. It is clear that compulsion in the community would be a big mistake and I believe it may even lead to a higher suicide rate.

4. Advocates and Nominated Persons 4.1 It is extremely important that better and earlier support from people close to an ill person be encouraged by mental health services. When I was very ill it was an immense comfort to have my partner with me, knowing that he would be able to speak to health professionals about me and what my wishes regarding treatment would be, even if I couldn’t. 4.2 The Bill restricts the consultation during the examination stage of a person’s condition to family or informal carers. 4.3 It doesn’t matter in what sort of capacity someone knows the ill person, any person who knows the patient well and has their best interests at heart should be consulted.

5. Advance Directives 5.1 It is an important right that service users must play a part in helping to decide what is the best treatment for them and in particular what they would be happy with should they have a crisis. I am sure that having health professionals listen and help me to make decisions about the best treatment for me was crucial in my recovery. 5.2 This Bill will take away the right to have an advance directive of care followed if a person is put under compulsion. 5.3 This is clearly wrong and goes against basic human rights.

6. A right to Aftercare 6.1 Social and clinical care in the community is vital and should be given much greater priority. 6.2 This Bill proposes to allow persons to be detained in hospital if community care provision is not ready. 6.3 Compulsory detention because of lack of resources rather than clinical need is clearly unjustiﬁable.

7. Police Powers 7.1 It is always very important that people with a mental illness feel that those “in authority” have some understanding of their condition and treat them with respect. 7.2 This Bill proposes that the police will have extra powers to enter private premises without a warrant where it is believed that emergency treatment is required. Ev 860 Joint Committee on the Draft Mental Bill: Evidence

7.3 These powers would be excessive and inappropriate. Instead there should be more provision for twenty-four hour crisis teams who can attend emergencies like this. It doesn’t take much imagination to understand how a police team forcing their way into an ill person’s home would further distress the person and make a diYcult situation worse. November 2004

Memorandum from the Approved Social Work Interest Group (ASWIG) (DMH 153) The Approved Social Work Interest Group (ASWIG) was formed by Approved Social Workers in 1993. ASWIG is an independent professional group of Approved social workers, trainers, researchers, lecturers and professionals who are interested in promoting ASW practice. ASWIG covers the geographical area of the north-west of England and north Wales. ASWIG is an independent professional group of social workers concerned with all aspects of the role of the ASW under the terms of the Mental Health Act 1983 and other relevant legislation. ASWIG is the largest organisation in the UK representing the ASW’s voice. ASWIG aims to provide: — Peer group support for ASWs, trainee ASWs and those people committed to developing the role of the ASW. — Networking for the dissemination of information and research, including national, regional and local initiatives for wide debate amongst ASWs. — Formulate a perspective on developments in mental health policy from the viewpoint and social work perspective of ASWs. — Links with other organisations concerned with mental disorder. — Promote multi-disciplinary working. — Promote the consideration of carers’ views in the provision of services. — Promote the consideration of users’ views in the provision of services. — Provide a channel through which ASWs can voice their professional concerns. — Provide professional advice to relevant organisations on the role of the ASW. — Promote anti-discriminatory practice. The present ASW role is laid down in statute and makes a major contribution to social care, admission, detention, appeals, discharge processes and aftercare. The ASW’s training combines social care theories and practice with an underpinning theoretical knowledge base of mental health, social policy, law and anti- discriminatory practice. The ASW’s role is to investigate the service user’s social situation and to identify, with others involved, the extent to which social and environmental pressures have contributed to the service user’s behaviour. To use professional skills to help resolve any social, relationship, or environmental diYculties which have contributed to the crises, and to mobilise community resources appropriately. To know the legal requirements and to ensure they are complied with. To form their own opinion following interview with the service user and others involved, as to whether compulsory admission is necessary, having regard to alternative methods of resolving the crises and of securing the necessary care or treatment. To ensure care and treatment is oVered in the least restrictive conditions. Under the Bills proposals the AMHP’s role will not safeguard the social care perspective presently provided by the ASW. ASWIG have yet to see any explanation or justiﬁcation for such a major change in the ASW role. The Bill removes many of the duties presently held by local authorities but retains the appointment of the AMHP. With the modernisation of mental health services and the transfer of social care staV to NHS Trusts would the appointment, re-approval, training, continued professional development and safeguards for social work within mental health services, be better serviced by the Social Care Inspectorate within the Health Care Commission? ASWIG fails to see how opening up the AMHP role to other professionals will enhance the quality of the service oVered to service users. The Bill does not reﬂect the nature of the present ASW co-ordinators’ function, the whole social dimension of the assessment and care planning process has been dismissed and in the future the importance of a recommendation from an independent professional presents major diYculties in our view. ASWIG draws the committee’s attention to the excellent piece of research conducted by Alan Quirk and colleagues, at the Royal College of Psychiatrists’ research unit, “Performing the Act: A Qualitative Study of the Process of Mental Health Act Assessments”. Safeguards are needed to maintain a Social Work perspective to the multi-disciplinary process of assessment and care planning, this is to ensure that: Joint Committee on the Draft Mental Bill: Evidence Ev 861

The AMHP brings a separate professional perspective and model of mental disorder. The AMHP is trained to assess social factors, is experienced in social care and community resources. The AMHP is equipped to provide comprehensive risk assessments. The AMHP is trained to explore the least restrictive alternatives to hospital admission. The AMHP is trained to manage the practical tasks involved in the assessments and admissions to hospital. A social Care system for training people to be competent under mental health legislation already exists. The AMHP needs to bring a social work knowledge base to the process of assessment and care planning that balances the medical perspectives of mental illness. In our previous responses the majority of organisations, public bodies and voluntary organisations all stated the continued need for the ASW role to be maintained focusing on the social care aspects rather than the medical and legal processes. In conclusion ASWIG feels the social work and social care dimension of the multi-disciplinary process could be compromised, marginalised and possibly ignored in the future if there are no safeguards to retain a social work component to this process. This would be to the detriment of the people who use mental health services. November 2004

Memorandum from J Rosen-Webb (DMH 154)

I write to you in both my capacity as a trainee clinical psychologist and a sister of someone with severe mental illness who is currently under section 3 of the Mental Health Act. As part of our training we have discussed the current Mental Health Act and the proposals in the Draft Mental Health Bill. I welcome many of the proposals including— — The provision for advocates; — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal; — The single assessment process; — The ability to appoint a “nominated person” (but not its reduced role); — Special provisions for children and young people; and — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law. However, I am concerned about a number of points that remain within the current proposals. Some, I am troubled to find, remain exactly the same as the concerns that were expressed by many respected organisations following the Draft Bill’s first introduction in 2002. I see the following as extremely important elements to include in a modern and person-centred Mental Health Act and would urge you to (re)consider including them— — A right to assessment of mental health needs and a duty on the state to provide aftercare (to include non-medical therapies) for as long as is clinically appropriate; — A statutory recognition of the role of advance statements; — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent; — The right to advocates and nominated persons where possible to take part in the examination stage; — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient; — A limit to the conditions for the use of compulsion in the community; — The right to an independent advocate; — A reconstituted tribunal with a role for non-medical members and users; — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients; and — Narrower conditions for the exercise of compulsory powers— in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. Ev 862 Joint Committee on the Draft Mental Bill: Evidence

I trust that the concerns I have raised above will be considered by the Committee and I look forward to your response. November 2004

Memorandum from Mind in Birmingham (DMH 155) Mind in Birmingham employees over 160 people and supports over 600 people experiencing/recovering from mental health diYculties. The majority of the people who use our services have experienced hospital admission either formally or informally. A meeting of staV and service users took place to discuss the proposed Mental Health Bill and many concerns were expressed. We have restricted ourselves to the ﬁve areas that concern us the most, two general points and three speciﬁc points. The summary of these areas is as follows: 1. The increased amount of power the Bill will give professionals and therefore the decrease in power for people experiencing mental health diYculties. 2. The impact the proposed Bill will have on community resources if formal powers are used in the community. 3. The lack of Advocate provision at the examination stage and the underestimation of the number of advocates required. 4. That Care Plans will not take into account Advance Directives or previous care plans/crisis plans drawn up by the service user. 5. Deferred Discharge whilst awaiting community resources is against a person’s human rights.

Mind In Birmingham’s Concerns: 1. Decrease of power—General Point 1.1 We are concerned that overall the proposed Bill further decrease the power that people with mental health diYculties will have. 1.2 The areas where we feel this is highlighted are: (a) Wider deﬁnition of the term mental disorder (b) Police powers to go into people homes (c) Lack of support of Advance Directives (d) Taking the therapeutic part of the treatment that needs to be available away when considering formal powers (e) Asking professionals to undertake tasks they do not wish to do will undermine good working relationships. 1.3 People experiencing a mental health crisis will feel very powerless in their situation. Due to the proposed increase in the powers available more people are likely to become subject to formal powers and the powers available will be more coercive which will mean more lives damaged by the mental health system.

2. Impact on Community Resources—General Point 2.1 We believe that compulsion in the community is not only questionable in the legality but has not been suYciently thought through in terms of resources. If more people are in crisis in their own homes (including supported housing and residential care) then who is going to provide them with the extra support that they need? 2.2 An example could be of a person living in our supported housing. If they were under formal powers in the community our support staV (not funded to undertake care or crisis work) would be left in the position of deciding if: (a) They should not provide the additional support the person needs and leave them in crisis. (b) Provide extra support at the risk of losing the funding for their role and taking time away from the other tenants that also need the support. 2.3 We have already seen this with one of our Day Centres. Over the last few years the advent of Home Treatment teams have meant that members continue to come to the Day Centre even when in crisis. Despite proving this to the Commissioners of the service we were unable to secure suYcient extra funds for the workers needed to provide the extra support to those in crisis whilst continuing to support the other people there. Joint Committee on the Draft Mental Bill: Evidence Ev 863

2.4 If the proposed Bill is accepted in its current form this type of situation will only get worse in all community services. People need support and care if they are in a mental health crisis. In particular they need people around them to ensure that they are not having an adverse reaction to medication or causing harm to themselves. They need people to help to support them through the crisis in whatever way works for them. Statutory Community Teams already struggle to see their clients and often those in supported housing and residential are rarely seen as resources are concentrated on those living in un-supported housing situations. Our staV play a vital role in providing daily support to people and working with people to try to prevent crisis situations. We do not have the resources to support people under formal orders in the community nor do we feel it is appropriate that we may be asked to take on a formal monitoring role 3. Insufficient Advocates 3.1 Section 248 Interpretation. Subsection (2) 3.2 Advocates are vital safeguards within the Mental Health Bill. They provide independent information and advice at a point in someone’s life when they have little power or control. 3.3 The clause as it stands only allows for advocates at the point formal powers are invoked. 3.4 Advocates must be available from the point of examination onwards. 3.5 In addition the estimated 140 Advocates needed (DoH Improving Mental Health Law) is not suYcient even to meet the obligations under the proposed Bill. The need for Advocates in Birmingham greatly outweighs the number available due to insuYcient funding in this area. 4. Care Plan 4.1 Section 31 Subsection 4 4.2 Care plans are powerful documents as they can prescribe treatment for someone, potentially against their wishes. 4.3 In subsection 4 the Clinical Supervisor must consult with “a) the patient, unless inappropriate or impracticable”. It does not insist on any previous care plan, Advance Directive or Crisis plan being taken into account. 4.4 By including an extra clause that will insist that the Clinical Supervisor takes the above into account you will be increasing the person’s choice and control ensuring that a truly patient centred plan of treatment. This will fit into the concept of Expert by Experience and working in partnership. In particular, Advance Directives are allowed in other areas of medical treatment and feel the same rights must be awarded to people experiencing a mental health crisis. 5. Deferred Discharge 5.1 Section 63—Duty to make a deferred order 5.2 It is proposed that deferred orders can be made if the required accommodation/care in the community that it is felt that the person needs is not available. 5.3 It is a breach of people’s human rights to keep a person in hospital against their will due to insuYcient community resources. If the conditions to make the order are no longer met then that order must be immediately discharged and the person free to leave. The point of discharge must be considered at the point of admission onwards to avoid any delays. 5.4 In addition by only allowing six weeks of free aftercare people will be financially penalised as they will have to pay for services they may well disagree that they need. In particular people often end up in residential care as there is insuYcient joint funding in supported housing to allow for flexible care and support to be given. In residential care people’s weekly allowance is only just over £17, which is inadequate for people’s needs. At least under the present Section 117 those people who have been assessed as needing residential care are able to keep their benefits and therefore can use that money to support them to do things in their life that will promote their recovery. November 2004

Memorandum from the National Mental Health Partnership (DMH 157) We welcome the opportunity to comment on the proposals for the new legal framework set out in the draft Bill and on the other consultation issues raised.

General These comments are based on views from a wide range of staV including doctors, other mental health professionals, union representatives and Mental Health Act Administrators. Social service colleagues have also contributed to the debate. Ev 864 Joint Committee on the Draft Mental Bill: Evidence

There are concerns from these groups on specific aspects of the Bill which require clarity. These include: — The definition of mental disorder — Criteria for compulsion considered too broad — Loss of the “independent” view of the approved social worker — Funding and organisation of mental health tribunals to meet the new 28 day deadline, including the implications for senior medical staV time and the impact on the provision of day to day services — The implications for community staV of Community Treatment Orders, including resources — The likelihood of increased admission rates under compulsion and the impact of this on patient care and resources — Funding and training of advocates Psychiatrists will also be making separate and strong recommendations via the Royal College of Psychiatrists about their specific professional concerns. The following comments are oVered on specific points:

Scrutinising the Proper Application of the Act The role suggested for the new specialist arm of the healthcare inspectorate is broadly welcomed although due consideration needs to be given to the particular nature of activities currently carried out by the Mental Health Act Commission to ensure these are not lost in the new system. The replacement of the approved social worker (ASW) by the Approved Mental Health Professional needs consideration in respect of the potential loss of independent scrutiny that the ASW role currently gives. It will be important to maintain the number of ASWs in the interim and training of approved mental health practitioners should be considered at an early stage in preparation for the implementation of the legislation.

Protecting Children with Serious Mental Disorders The clariﬁcation given in the Bill in respect of 16 and 17 year olds is welcomed and the recognition of the rights of these young people to have a greater say in their care is a positive step. Proposals to extend parental authority in respect of children who are refusing treatment also seem appropriate. There is a view that the new legislation could increase the work of Mental Health Tribunals in relation to young people and this would obviously have implications for the training of people involved in respect of young people’s needs and rights. Opportunity could be taken within the Act to create speciﬁc duties in relation to service provision and procedures for children and adolescents to ensure appropriate care and treatment of young people.

Respecting the Legal Rights of Patients and Health Care Workers It is agreed that the current necessity requiring a patient under compulsory power to take additional steps prior to making a legal complaint against a health care worker is not appropriate. The future requirement for health care professionals to be able to defend their decision-making is agreed as fair and equitable.

Focusing on Individual Needs,Removing Exclusions Health care professionals have concerns with regard to the removal of the exclusion under Section 1(3) of the 1983 Act. It is felt that it would be better to interpret this section clearly in the Code of Practice for the new Act than to remove it due to previous misunderstanding. Separate Codes of Practice for England and Wales will cause problems with cross border services if the Codes are signiﬁcantly diVerent.

Sharing Information to Improve Patient Care The proposals requiring agencies to share information on patients to improve patient care and minimise risks is welcomed and supported. There will need to be very clear protocols, however, to ensure appropriateness of information sharing and to deﬁne the involvement of patients in the process.

Better Care for Prisoner Patients Any improvement in services for prisoner patients would be welcomed. The need to ensure safeguards as outlined in the consultation document is supported, as it would be inappropriate for the provisions of the Act to deny prisoners transfer to an NHS hospital when required or an inferior level of care within the prison system. Joint Committee on the Draft Mental Bill: Evidence Ev 865

Patients’Correspondence In general these proposals are supported but would need to incorporate a right of appeal and would need to include clear criteria for the exercise of these powers, taking into account the provisions of the 1998 Human Rights Act.

Mental Health Tribunals—Single Member Sittings Interpretation of “simple issues of fact” has been raised as an issue with regard to single member sittings, although it is recognised that this is a pragmatic response to potential workload issues. In general this proposal is supported but would need close scrutiny to ensure there is no prejudicial decision-making.

Detention It is not clear whether detention in hospital counts as treatment. The proposal is that somebody cannot be “sectioned” unless the “appropriate treatment is available”. The implication of this is that people with personality disorders who are untreatable may not be detained. “Medical” treatment may not be the most relevant—“clinical” treatment might be more appropriate.

Summary A number of concerns are raised regarding specific proposals contained within the Mental Health Bill and clarification is needed on a range of issues which are not yet outlined in detail. The need for a Code of Practice well in advance of the implementation date is definitely a requirement. The Partnership welcomes the opportunity to improve the delivery of treatment to our patients whilst safeguarding both individuals and members of the public. It is recognised, however, that there will be considerable implications in terms of overall cost, training and operational implementation. Without careful thought in advance of implementation of the proposed legislation to all of these matters, the situation for people receiving and providing care will deteriorate, which is clearly not the intention of the proposals. We thank you for the opportunity to comment on these proposals. October 2004

Memorandum from Touchstone (DMH 158) I am writing in my capacity as Director of Touchstone, a mental health charity operating in Leeds for 20 years. I am hoping that the excellent work of the National Standard Framework for mental health will be supported by the new Bill and not, as I fear, contradict it. Mental health is a complex and sensitive issue. I have been heartened by the thoughtful introduction of the NSF and also the Social Exclusion Unit’s report on re-engaging people with mental illness through employment and other participation. I would hope that the new Mental Health Bill would build on this positive start and as such, I would like to point out some of the areas where I believe further thought needs to take place. 1. The Bill is likely to lead to increased use of compulsory powers. The extension of the deﬁnition of mental disorder as well as the conditions that justify compulsory treatment will mean more people than before being detained. 2. There is insuYcient detail in relation to care planning during compulsory treatment. In order to oVer safeguards for patients and their carers, this detail needs to be provided and consulted on prior to implementation. The emphasis since 1991 has been on co-ordinating care for people in touch with Mental Health Services through the care programme approach, which the voluntary sector has fought to be included in. I would hope that the principles of multi-agency planning, involving users and carers, could be continued and enhanced through the new Bill. The proposals for advocacy are welcomed but more thought on how these are to be funded needs to take place. 3. The risk of contravention of human rights is increased by the proposed arrangements for imposing mental health treatments within the Criminal Justice framework. The conditions for imposing compulsory treatment are reduced for the Courts and this will directly discriminate against those involved in the Criminal Justice system. 4. The abolition of the current free integrated health and social care services for those discharged from compulsory hospital treatment is a concern. That this abolition could also lead to an unjustiﬁed extension of hospital detention of up to 8 weeks, is regrettable and I believe will be challenged. Ev 866 Joint Committee on the Draft Mental Bill: Evidence

5. The dropping of safeguards for “Bournewood cases” is an opportunity lost. The ﬁrst Draft Bill recognised the need for these patients to be protected. Why has this protection been removed when the Government made assurances that they would be introduced following earlier legal action? 6. Similarly, the failure to give legal standing to advance statements is a retrograde step which makes advance statements themselves totally worthless. 7. The extra work on the statutory services of the additional examinations, assessments and Tribunals proposed in the Draft bill are likely to lead to more demands on the Voluntary Sector Community Mental Health Services. The Draft Bill appears to require a large input of resources without any clear explanation as to where those resources will emanate. I hope that you will be persuaded by my comments, as well as those of others, and that the areas of the Bill which are proving contentious can be re-thought. Alison Lowe Director October 2004

Memorandum from the Mental Health Act Steering Group on behalf of Leicestershire Partnership NHS Trust (DMH 159) The Mental Health Act Steering Group is a multi-disciplinary group which is responsible for the operation of the current Mental Health Act within the Trust. As such it has considerable experience and expertise in the working of mental health legislation.

Considered Evidence on the Committee’s Scope 1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? The Mental Health Act Steering Group (the Group) is concerned that the Act’s guiding principles are to be incorporated into the Code of Practice and not in the body of the Act itself. The Group would recommend that the guiding principles drive the Act and that the Code of Practice be written based on those guiding principles in the same way as the Scottish Act of 2003. 1.1 Are these principles appropriate and desirable? The Group considers the guiding principles to be both appropriate and desirable in essence, however concerns remain that the overall ethos of the Bill remains rooted in compulsion and public order.

2. Is the definition of Mental Disorder appropriate and unambiguous? The Group recognises the ambiguity of the definition under current legislation, however there remains a number of reservations relating to appropriate inclusion under the definition proposed in the draft Bill in that it is too broad. 2.1 Are the conditions for treatment and care under compulsion suYciently stringent? The Group welcome the higher threshold ie “serious neglect” and “suicide/self harm”, however the reservations outlined for “definition” remain. 2.2 Are the provisions for assessment and treatment in the Community adequate and suYcient? The Group agree the provisions given are adequate, however would recommend further consideration be made to the continued development of support services in the community that would negate compulsion in the community.

3. Does the draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? The Group retains its concerns outlined above in relation to the guiding principles of the Bill. The Group considers that those principles, based foremost in compulsion and public order may render the Bill vulnerable to challenge—see point 9 below.

4. Are the proposals in the draft Bill necessary, workable, eYcient and clear? The Group recognises that current legislation is now out of date and considers there is a deﬁnite need for the Bill, however the complexities of the proposed Tribunal system, in the main, could not be considered workable with the investment in terms of workforce and training which is proposed. The draft Bill, in comparison to current legislation, is long and complex in its interpretation and language. Joint Committee on the Draft Mental Bill: Evidence Ev 867

4.1 Are there any important omissions in the Bill? The Group would like, in particular, to see the following inclusions: — Duty placed on the police/ambulance service to assist — Duty to provide suYcient numbers of approved doctors and approved mental health practitioners

5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft Bill? The proposed institutional framework should fully support the guiding principles of the proposed Bill, the Groups concerns are outlined at point 1 above. Future legislation should provide a framework that provides continued monitoring of the use of the legislation and it’s enforcement.

6. Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, suYcient? Are there enough safeguards against misuse of aggressive procedures such as ECT and Psychosurgery? The Group recognise and acknowledge the safeguards within the draft Bill, however they await assurance that adequate resources will be made available to enable a timely response.

7. Is the balance struck between what has been included on the face of the draft Bill and what goes into Regulations and the Code of Practice? The concerns of the Group are outlined in point 1 in relation to the inclusion of the principles within the Bill itself and the danger of reliance on the Code of Practice.

8. Is the draft Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? The Mental Capacity Bill was welcomed by the Group, however they feel there are insuYcient links and are disappointed that the interests of informal patients who lack capacity are not fully represented.

9. Is the Draft Bill in full Compliance with the Human Rights Act? The broad deﬁnition of mental illness, together with previous comments relating to the emphasis on compulsion, particularly through the legal process, could, in the opinion of the Group, render the Bill vulnerable to challenge under the HRA.

Memorandum from Gloucestershire Survivors Forum (DMH 160)

Who We Are &What We Are We are a self-help group and, we each have direct experience of receipt of mental health services at the present time or, in some cases, in the past; we are therefore what doctors call patients, other health professionals call clients and other less understanding people call “users”. Our experiences we feel make us eminently suitable to comment on this draft Bill. What follows is a consensus of the opinions of nine of our members who have each been supplied a copy of the Department of Health document “Improving Mental Ev 868 Joint Committee on the Draft Mental Bill: Evidence

Health Law” and had access to a copy of the Draft Mental Health Act. Both documents downloaded from the “net”. This draft submission was then circulated to them and another 14 members for their comment and approval. Therefore, we respectfully make the following comments.

Comments When the Home OYce Minister first announced in 1998 a “root and branch” overhaul of Mental Health Law,hesaid—“...forexample, non compliance with agreed treatment plans is a non-starter”. We knew from that, that we were going to be in trouble. The assumption here was that the patients had at all times agreed with the treatment plan. Yet our experience is that this is not always so, in fact, it is far from so. However, when in April 1999 the Scoping Study Committee published their Draft Outline Proposals, we were reassured with their statements of General Principles that would “set the tone for the new act and thereby guide its interpretation.” It struck us then that chief amongst these principles was one of “Reciprocity”. These Principles appear to be missing from the new Draft. Yet, in any Act of Parliament, never is such a principal needed as much as it is needed in Mental Health Law—when you are to take away our freedom or, if that is not convenient to you, then our choice! When all that is wrong with us is that we are ill!! We have heard the argument that Mental Health Law is not about service provision and can only support change—that its role is to provide the framework for treatment without consent. Why then remove the treatability test from compulsion? Why else would we be forced to accept undefined treatments? Even then, there appears to be an over expectation that the treatment shall be drug therapy. Medication is a controversial subject and will remain so as long as we are not listened to. We are not here to complain that we don’t get noticed when we say we don’t want to take it, but we are not even listened to when we tell them it is not working! For example, over the past two years we have lost three of our friends who were saying their medication was wrong and they needed more. Two of them had even got themselves admitted into hospital, but still they were not listened to. All three suVered so much but were not listened to so made the ultimate choice and took their own lives. It is true, doctors bury their mistakes. So if you are going to use a big stick on us to make US listen to them, then please also use one on them to make them listen to us! We fail to see the advantage of removing the one “independent” voice, that of the Approved Social Worker from the process of Assessment. This especially so when it was that person’s role to make an assessment with regard to “all the circumstances”. The ASW is also a specialist in “Community Care” and is aware of all the facilities available in their communities, social as well as medical. We believe it to be a dangerous precedent to have three medical professionals, albeit, two doctors and one Approved Mental Health Professional involved in the assessment process, surely, the non-doctor will be expected to follow what the two perceived seniors say “clinically”? We believe that a person subject to compulsion must have a right, if left in or returned to, the community—to have access to a range of community care services including psychotherapy, training and rehabilitation, housing and other support services, and, that such a right should not be subject to time limitations—they, (the services), should be there until all agree they are not needed. In our view, the saving grace of the 1983 Act is the mandatory right to after care—with the presumption that as long as medication is needed, then other aspects of “care” will also be needed. We believe that the law should impose minimum standards in relation to in-patient care and treatment. This should include patient-centred care plans and facilities, which ensure the safety, privacy and dignity of those using them. Single sex wards and facilities should be standard in all units. We accept that any mental health law has to be based on risk—however, we feel that capacity should play a bigger part—that is, any person deemed to have capacity, as defined in the Mental Capacity Bill, has a choice with regard to treatments and, such a right to choice, should be a requirement of the Act. We believe that if a person is failing to comply with treatment that is deemed necessary to manage their risk in the community then they should be removed to hospital—we do not believe Community Treatment orders will work or should be used. It has been extremely hard to wrestle with over three hundred clauses and would liked to have had more time to examine the Draft Bill. It is for this reason that we are unsure of the role of the Expert Panels and Tribunals; however, we understand that there will be occasions when only one person will form a Tribunal. Should this be so, then we believe such a move to be out-of-line with natural justice and that any Tribunal should be one of three people. It appears to us that the proposed Tribunals will be made up of too many professionals and we can not understand why it is necessary to dispense with the present system of a hearing in the first instance, by three of ones peers, the Mental Health Act Managers. We welcome the right to be able to choose what amounts to be The Nearest Relative. However, we take the view that the proposed Act still makes it too easy for “the system” to remove and replace the person performing this role if that person should not perform as they “the system” would like them too. We feel that there is a place here for the Courts to play a part and, such a part should be by a Judge not a Magistrate, with a case having to be made for a change and a defence being made as to why not. Joint Committee on the Draft Mental Bill: Evidence Ev 869

We believe and have long believed that independent advocacy provision to assist any person subject to compulsion is an inherent need and right of that person. However, we do not think that the Draft Act is clear enough on the grounds of the need for such advocacy services to be independent. We would like to see the CPPI Patient and Public Forums, (with the help of their support organizations), tasked with the employment and management of such services. October 2004

Memorandum from Sylvia Landells (DMH 163)

1. Introduction 1.1 I work as an Approved Social Worker in Leeds, West Yorkshire, but I am writing to you in my personal capacity as someone who looks after people with mental health problems at work and as a former carer of a relative with mental health needs. I wish to give evidence to the Scrutiny Committee, to express to you my concerns about the Draft Mental Health Bill, and how I would like it to be changed before it becomes law. 1.2 I fully support the written submission by the Mental Health Alliance in West Yorkshire, of which I am a member. I wish to emphasise three major points about the proposals in the Draft Mental Health Bill. These are as follows: the use of compulsion being extended into the community; the broadening of the deﬁnition of mental disorder, and widening the number of people who may request examination.

2. Extending the Use of Compulsion Into the Community. 2.1 This subject is important because, although the Bill does not propose the extension of forcible treatment into the community, it does suggest that people discharged from mental hospital may be subject to compulsory treatment in the community. 2.2 I would not ﬁnd it acceptable to take people back to the hospital, as part of my job, if they were in breach of their care plan, and not necessarily because they were extremely mentally distressed, as at present. I have acted as a Social Supervisor to people who are subject to Section 41 of the Mental Health Act 1983, mainly successfully. As such I have supervised service users in the community who have committed violent oVences while they were seriously mentally unwell, which I have seen as part of my duty of care. However, I would not wish to attempt to control the behaviour of other service users in the community who were not serious oVenders. 2.3 In my view, the Draft Mental Health Bill would be enormously improved if it did not extend the use of compulsion into people’s homes, but instead provided more investment in high quality services in the community that people would be attracted to use, and continue to use, on a voluntary basis.

3. Broadening the Definition of Mental Disorder.(Clause 2.5) 3.1 I am most concerned that the definition of “mental disorder” has been widened so that it covers “ any disturbance in the mind or brain”. 3.2 I believe that this may bring a wider range of people with mental health distress, and also those with acquired brain injury or stroke or multiple sclerosis, within the ambit of the Mental Health Act. They may well be excluded after initial examination by the conditions laid down in the Bill in Clause 9. However, this may alienate many people from seeking help for fear of being stigmatised as a mental health patient, and it may involve workers in many unnecessary examinations and assessments. 3.3 If this definition is not to be more refined, one of the demands would be for fully recognising advance directives and fully funding the proposed advocacy services to hand some power and control back to the person concerned at what may be the most vulnerable time of their life.

4. Widening the Number of People who may Request Examination.(Clause 14) 4.1 The proposal that the appropriate authority will have a duty to arrange an examination, if any person requests it, will potentially lead to a great increase in the number of requests for this and possibly to malicious requests. 4.2 My experience of arranging assessments under Section 13(4) of the Mental Health Act 1983 is that I would always ask for a GP and psychiatrist to assess the person, as well as the ASW, before making any care plans (or none) for the person. Consequently, the widening of the number of people who can request examination is likely to lead to a great demand on the time of these professionals at the examination stage. This will detract from the resources that can be applied at the assessment and Tribunal stages. Also, in my experience, people who do not know a person tend to make more conservative decisions and so this proposal may lead to an increase in the number of admissions. Ev 870 Joint Committee on the Draft Mental Bill: Evidence

4.3 Greater funding of Crisis Resolution Teams will be required to carry these community assessments out to prevent more admissions to mental health units. November 2004

Memorandum from Robert Mundy (DMH 164)

1. Introduction 1.1 I am a current service user concerned with the wide-ranging powers of compulsory detention implied in the Bill, and I submit the following as evidence for the insertion of an exclusionary clause within the Bill. 1.2 I spent seven years as a grammar school pupil, in a developing London overspill town in the years 1969–76. In my ﬁnal year, I was one of two deputy-head boys in a school which had grown from 168 boys to being a fully amalgamated boys and girls school of 700 pupils, with a handful of ex-secondary modern boys pursuing A-level studies. I was a cadet in a village Air Training Corps squadron which had members from two grammar schools, a secondary modern, and a private boarding school. I re-sat my A-levels at a college of further education. I went to the University of Aston in Birmingham to read a BSc (Hons) degree in Ophthalmic Optics, and spent a short time working with Handsworth Social Services, as a student volunteer. I was in Birmingham over the period of the Lozenge Road race riots and Poll Tax riots. I have worked in a hospital as a temporary operating department orderly. I have worked as a community service volunteer in a key senior probation hostel, administered by the Home OYce, working with young men who could not be tolerated in other hostels. I worked for Manpower Ltd., for two and a half years, as an industrial operative, and then for an animal feed-mill, for nine years, as a mill-operative, where I was a member of the TGWU. In 1992, I was admitted into a psychiatric hospital suVering psychosis. I believe I owe my life and recovery to the psychiatric care and after-care service within the NHS. During all the years above I acted VOLUNTARILY. 2. Compulsory Detention. 3. I am disturbed by the Draft Mental Health Bill’s clause on compulsory detention as it infringes on human rights. I would like the Bill to contain the exclusions (as set out by the recommendation of the Royal College of Psychiatrists in its “Evidence submitted to the Joint Committee on the Draft Mental Health Bill”:namely: “Nothing in the conditions for compulsion shall be construed as implying that a person may be dealt with under this Act as suVering from mental disorder solely by reason of: cultural, political or religious beliefs or promiscuity, sexual deviancy or other immoral conduct or dependence on, or misuse of alcohol or drugs or impairment of intelligence or the commission, or threat, of illegal or disorderly acts”. November 2004

Memorandum from Alison Leslie (DMH 165) My name is Alison Leslie and I have a serious mental illness. I am also one of the directors of MIND in Manchester. I have found in the last 25 years since I was diagnosed that Britain is a very miserable place to live if you have mental health problems. I have been sectioned several times in hospital. Although I am from an upper class family, I feel that being diagnosed as having a serious psychiatric condition has relegated me to the very lowest section of society. I understand that the Draft Mental Health Bill favours the frightened general public, who are afraid of being attacked by a psychiatric patient. I would like to put forward the case of people like myself who would never attack another person, but have had a miserable 25 years, facing the full force of discrimination against people with mental health problems. Also having problems getting a job in my area of expertise (I was on the performer’s course in cello at the Royal Northern College of Music). I have not been able to pursue my career because of discrimination because of my illness. Staying in a psychiatric hospital in this country is a dangerous experience; a member of staV attacked me very seriously. Joint Committee on the Draft Mental Bill: Evidence Ev 871

It will not be a good idea to ﬂood an already over-loaded service with more categories of patient when I feel psychiatric hospitals in this country are not adequate as it is. I feel that mentally ill people are not treated with the respect that is given to a person with a physical illness. My self-respect has been terribly damaged by the medical staV that have treated me since I was diagnosed. November 2004

Memorandum from David Hutchinson, Chairman of Mind in Manchester (DMH 166)

1. Introduction 1.1 Several years’ experience with Mind in Manchester’s Information Service has made me aware of various recurrent diYculties encountered in relation to the existing Mental Health Act. Many of these issues are not addressed by the Draft Bill and in some cases may be exacerbated. It is in the hope of highlighting these concerns that I wish this memorandum to be treated as evidence by the Joint Committee. 1.2 I am restricting my evidence to issues relating to compulsion, duty to arrange examination, and the deﬁnition of mental disorder.

2. Compulsion 2.1 Apart from the human rights implications, compulsion is an important issue due to its huge potential for perpetrating injustice—often compounded by psychological or physiological injury. The Committee should note that inappropriate psychiatric detention is already a signiﬁcant (if under-publicised) problem, while compulsory admission or treatment can be a harrowing experience leaving the subject traumatised and reluctant to engage further with psychiatric services. 2.2 The negative implications of the compulsion proposals would include creating many more cases of inappropriate incarceration and enforced treatment—often with neuroleptic drugs. Mind receives reports of patients being forced to take drugs producing serious adverse reactions which mental health staV sometimes dismiss as “somatising”, “attention-seeking” or “hypochondriasis”. Those aVected may be among the estimated 10,000 Britons who die each year due to adverse drug reactions28 or the 1,000-plus people who commit suicide annually after having contact with mental health services.29 2.3 The following is a representative case study: Mind member Kay experienced horriﬁc side-eVects after being wrongly diagnosed as having schizophrenia. After resisting further medication she was hauled back into hospital and forcibly drugged. She said: “The sense of frustration knowing that this treatment was wrong, together with the dreadful side-eVects and being consistently told that I ‘lacked insight’ into my condition eventually took its toll and over the next four and half years I attempted suicide three times”. Eventually doctors realised her diagnosis was wrong and she was compensated.30

3. Duty to Arrange Examination It is a matter of concern that in Chapter 2, Section 14 “Duty to arrange examination etc”, clause (1) states: “The appropriate authority must, if requested to do so by any person, determine whether all of the relevant conditions appear to be met in the patient’s case” (Italics mine). Most such examinations will involve detention. 3.1 Psychiatric detention is rarely preceded by a comprehensive investigative procedure: often witnesses are not questioned, statements challenged or allegations looked into. The experience of both the current 1983 Mental Health Act and its 1959 predecessor is that the “appropriate authorities” too readily persuade themselves that information regarding psychiatric patients is accurate and made in good faith. Consequently, unscrupulous individuals can abuse psychiatric procedures from a variety of motives: eg to evict inconvenient tenants; settle scores with siblings; wreak revenge on disputant neighbours or others. 3.2 Representative case study: David, a depressed and withdrawn young man, was diagnosed as having mental illness and his relatives were eager to evict him from a family house. In his absence his step-brother removed a low-power but realistic-looking air-pistol from his bedroom and told doctors he had “taken a gun” oV him. David was forced into hospital under an emergency section where his protestations that relatives had misrepresented events were dismissed as paranoia. (Twenty years later he still has no psychotic symptoms or history of violence).

28 Medicines Killing 10,000 people. BBC News Online. 02 July 2004. 29 Appleby, L. (1999) Safer Services: National Conﬁdential Inquiry into Homicides and Suicides by People with Mental Illness. Dept. of Health. 30 Mind News, Policy and Campaigns: ‘Landmark Settlement for Wrong Diagnosis of Schizophrenia OVers Hope for Hundreds Misdiagnosed’. Thursday 8th February 2001. 31 Johnstone, L, (2000) “Users and Abusers of Psychiatry” Routledge. Ev 872 Joint Committee on the Draft Mental Bill: Evidence

3.3 Senior NHS clinical psychologist Dr. Lucy Johnstone31 has commented: “The account that appears under ‘previous history’ in the medical notes will probably be derived entirely from [relatives or others] and will be treated as the true version of events . . .Meanwhile the patient’s point of view is discounted, because, after all, the patient is mad”. 3.4 The draft proposals could allow this problem to escalate unless more stringent safeguards are adopted. Conditions for detention must be made explicit and detaining authorities obliged to make a full and impartial investigation whenever a detainee gives a credible alternative explanation to the case made for detention. Existing procedures seem heavily weighted against actual or potential patients eg they are usually denied the ‘beneﬁt of the doubt’ which is central to our judicial system, and mental health workers sometimes seem concerned to be able to justify hospitalisation retrospectively when making case-note entries. 3.5 Representative case study: Following her detention, Angela remarked that she had met Russian dissidents who had been detained for their beliefs—an analogy with her own situation. Later, in her notes, she found the statement that [Angela] “continues to refer to herself as a Russian dissident”. She writes: “My case-notes contained inaccuracies and omissions yet seemed to form a cohesive argument for my detention. Events which had actually taken place were referred to as ‘distressing beliefs’. I would have wished for the right to have all interviews with staV taped to provide a lasting and accurate record”.

4. The Definition of Mental Disorder Clause 2 “Definitions” (Explanatory notes page 11) makes the definition of mental disorder over-inclusive and could extend the scope of this legislation to people with a huge variety of non-psychiatric conditions. It seems that the intention is to by-pass the currently unsatisfactory judicial process in regard to serious and recidivistic oVenders whose personalities (eg immature or anti-social) make them dangerous and who are sometimes accorded quasi-psychiatric status. Arguably these oVenders should be dealt with by the criminal justice system; not the psychiatric system—unless they have an authenticated psychiatric condition. 4.1 As the President of the Royal College of Psychiatrists, Dr. Mike Shooter32 commented: “The Bill will extend use of compulsory powers to a wider group of patients than is medically necessary . . .” The Bill would also tend to bring psychiatry into disrepute as an “agency of social control” and undermine its aspiration to be regarded as a scientific branch of medicine.

5. Conclusions The main thrust of the draft legislation appears to biased towards protecting the public from the over- stated risk from psychiatric patients and lacks eVective countervailing safeguards to protect patients from abuse and injustice. Legislators should bear in mind that the concept of “the public” must also incorporate the estimated one in four members of the population who experience psychiatric diYculties. 5.1 The Committee should also consider that many psychiatric services are overstretched already: it is diYcult to see how they could cope with additional categories of clients. The Department of Health has estimated that the Draft Bill’s proposals would require 900 additional staV (including an extra 130 psychiatrists). We must question where satisfactory personnel are to be recruited. While many mental health professionals are well-meaning and dedicated, the NHS psychiatric sector does not have a reassuring track- record of being able to recruit suYciently ethical and sophisticated people to take charge of society’s more vulnerable members. 5.2 Mind’s recent Wardwatch Report found that 51% of inpatients reported being verbally or physically threatened during their stay; while 20% (1 in 5) reported actual physical assault. Only 20% felt staV treated them with respect and dignity. The horrifying revelations from Manchester’s Withington Hospital earlier this year where the authorities admit patients were “slapped, stamped on, starved, kicked and taunted” provides a timely reminder of the vulnerability of those members of the public who become psychiatric patients.33 5.3 Professor Peter Beresford34 has commented: “Mental health service users face some of the most diYcult discrimination, the most ready hostility, the least understanding, the greatest loneliness and isolation, the most routine poverty and exclusion, the greatest rejection and pain, of any group in society”. This substantial section of the public should not be further disadvantaged by legislation responding to scaremongering and mis-information. As the Mental Health Alliance’s Chairman Paul Farmer35 commented: “...legislation based on the view that being ill automatically makes you dangerous will deter people from seeking help and put clinicians under pressure”. October 2004

31 Johnstone, L, (2000) “Users and Abusers of Psychiatry” Routledge. 32 Shooter, M, (2004) Viewpoints: Mental Health Bill, BBC News Online 8 September. 33 Camber, R (2004) “Inhumane” Manchester Evening News. Tues February 10. 34 Beresford, P. (2004) Speech made to the Mental After Care Association published in The Independent on 15 September under the headline: An Assault on the Rights of the Mentally Ill. 35 Farmer, P (2004) “Risk Factor” Guardian Letters, 11 September. Joint Committee on the Draft Mental Bill: Evidence Ev 873

Memorandum from Shaun Johnson (DMH 167) I am a service user of the psychiatric system, and have been over the last 15 years, and last experienced hospitalisation earlier this year. I would like to make the following points about the Draft Mental Health Bill 2004, in the hope that some consideration will be given to them during the pre-legislative scrutiny phase of the Bill. — whilst welcoming the change from Nearest Relative to Nominated Person, I find it worrying that the Nominated Person will not have the same rights as given to the Nearest Relative at the moment, for example the right to discharge the patient. It is also worrying that the patients’ choice of Nominated Person can easily be refused by mental health professionals (these are in Part 8 Chapter 1 of the Bill). To me as a service user, these new proposals hand even more power to mental health professionals than they already have. I think it is diYcult to imagine how disempowered psychiatric patients in hospital already feel (even when not on a section), and this will only make this disempowerment worse. — the change in the definition of “mental disorder” in Part 1 Section 2 of the Bill is worrying, because it widens the definition and eVectively means more people could be forced into hospital against their wishes or be given compulsory treatment. It is open to abuse, meaning those classed as having addiction issues, or are promiscuous, or may be classed as in any way “deviant” by social standards may be classed as mentally disordered (and possibly locked away) purely because they oVend the moral standards of a medical or mental health professional. — the new definition relies on the medical model (“disability or disorder of the brain”) which is actually medically inaccurate. A number of studies (eg “Toxic Psychiatry” by Dr Peter Breggin and “Beyond Prozac” by Dr Terry Lynch) have stated that there is no medical evidence to support the view that those experiencing mental health diYculties are suVering from an illness caused by chemical imbalances in the brain. In so defining ‘mental disorder’, the Government would be accepting a view of mental health diYculties that is not just questionable but scientifically untrue. — forced treatment in the community should not be a part of this Bill (or any other) (this is in Section 119). I can see no justification for doing this to people. There should at least be the means there to explore why someone is not taking their medication. This is often due to it having devastating eVects on the rest of their lives, making it impossible to function, to have relationships, to have a sex life, to think straight, etc as well as drugs like SSRIs making people on them often feel more self-destructive, violent and suicidal, as well as many neuroleptics making people fat when they feel horribly unattractive or very body-conscious anyway. — in Chapter 8 Section 68, it states that a patient who has been compulsorily detained will only be permitted six weeks free care services and only “intermediate care” regarding accommodation after discharge. If someone has been so ill as to require compulsory detention, then they would need the long-term (and free) aftercare that is there at the moment. Six weeks care is nothing really, as it takes many weeks to get readjust after being in hospital for a few weeks, and if someone has been in there for months, or years, this would take much longer. It is not fair to take away the long- term aftercare required for someone who has been in hospital, and the length of aftercare provision should be—at the very least—be left at the discretion of mental health workers to judge on an individual-by-individual basis. If this doesn’t happen, the relapse rate ( and the requirement for more psychiatric hospital beds ) will increase dramatically for those discharged. — whilst welcoming the tightening of safeguards on ECT in Section 182 to allow someone on a section to refuse ECT, I do not think these are adequate, in the sense that there is a get-out allowing ECT to be given in a so-called “emergency”. I cannot think of any situation for example where ECT can be justified in the “emergency” of being “necessary to save life” (Section 182 again). Is there any evidence that ECT has ever been required as a life-saving measure? Could it ever be justified as such? In my experience, every service user I have met who has received ECT has regretted ever consenting to it, since they have lost many precious memories (often whole years of their lives), have only ever found it helpful—if at all—on a very short term basis, and have found their distress greatly increased in the long-term because of the side eVects of this treatment. I do not think there are any situations in which ECT should be allowed on an “emergency” basis, overruling the wishes of patients, because there are no situations in which ECT is applicable as an emergency — I am concerned that the important safeguards and care standards for in-patients who lack mental capacity that were in the original draft Bill have been removed. These should, in the very least, be reinstated. — because the Government has stated that the Mental Health Bill will take precedence over the Mental Capacity Bill (which gives force of law to advance directives), patients under compulsory treatment could have their advance directives legally ignored, and I think this is unfair because the Mental Capacity Bill at least recognised an issue that has been important for many service users for many years, and the Mental Health Bill would seem to overrule this important step in the right direction. Maybe advance directives could be supported in the Mental Health Bill in support of the Mental Capacity Bill? Ev 874 Joint Committee on the Draft Mental Bill: Evidence

— compulsory detention no longer being based on treatability is an outrageous violation of human rights. If someone is ill and can be treated, they should be allowed the option of treatment if possible, but locking people up just because they are “bad” or because they have yet to commit a crime for which they can be jailed oVers a frightening vision of the future and is (very obviously) open to abuse by any government that wished to quash any form of dissent. — the heavier use of tribunals is to be welcomed (although it is worrying that their decisions can then be overruled by a patient’s clinical supervisor), although it is of great concern to me that many of these tribunals will consist of only one member (this is mentioned in Schedule 2 of the Bill) and I believe this will lead to many unfair decisions. Tribunals should consist of a minimum of three members is order to be in any way fair (and be seen to be fair). Thank you for considering my views on this matter. November 2004

Memorandum from Mind in Manchester (DMH 168)

1. Introduction 1.1 Mind in Manchester is concerned about the Draft Mental Health Bill as we believe that it will infringe on the basic human rights of people diagnosed with mental illness. Fear of what may happen will lead to people opting out of the mental health system, which could lead to them not getting services that they need. We wish this memorandum to be treated as evidence because of the concerns of our members who have had bad experiences under the current Mental Health Act and believe that the proposed Act would lead to worse treatment. 1.2 Our areas of concern are compulsory treatment in the community and dangerousness and mental health.

2. Compulsory Treatment in the Community 2.1 The new provisions would allow compulsory assessment and treatment to be carried out in the community. This means that any person would be more likely to be held under the new Act. Fear of being compulsorily detained will deter people from approaching services that could help them. 2.2 We are concerned that compulsory treatment in the community will result in medication being used more than at present. Many of the drugs used for compulsory treatment can cause toxic reactions, including death in some cases. Although the Bill states that people will not be detained if they have the capacity to make their own decisions, it is not clear who decides if an individual has capacity or not. 2.3 We believe that people who are in mental distress should only be put under compulsion when they are truly in a crisis, in danger, and when they have lost the ability to make choices for themselves. It is an oVence against human rights for a person to have treatment forced upon them when they do not want it and are able to make that choice.

3. Dangerousness and Mental Health 3.1 The proposed Mental Health Bill seeks to close a loophole in the existing legislation which means that patients may only be detained if they are treatable. If it became law, mental health professionals would then be forced to detain people who were not treatable, putting them in the position of being “jailers”. 3.2 If people are dangerous to themselves or others but are not suVering from a treatable mental illness then they need to be dealt with by the criminal justice system, not by mental health professionals. 3.3 The proposed Mental Health Act should deal only with people who have a treatable mental illness— dangerous psychopathic individuals who cannot be treated due to their actions being caused by a basic personality defect need to be dealt with by the criminal justice system. If the justice system cannot deal with such individuals then changes need to be made to it rather than mental heath law. November 2004

Memorandum from Steven Richards (DMH 169) Background: In-patient Mental Health Advocate for Matrix Advocacy and previously Mind. Formerly worked within the NHS as a Mental Health Act Administrator at the Maudsley Hospital and co-author of “The Maze” a practical guide to the Act distributed to GPs and hospitals nationally. Joint Committee on the Draft Mental Bill: Evidence Ev 875

Summary The deﬁnition of mental disorder is not appropriate and will lead to greater use of the Act with no positive outcome. The deﬁnition of treatment as only needing to be “appropriate” does not protect the human rights of the mentally ill. The criteria for detention in the community are not suYciently stringent and will adversely aVect people with mental health problems. The framework for Tribunals is not appropriate and will reduce their ability to act as a safeguard for patients against prolonged detention. There not enough safeguards regarding ECT for those with capacity in an emergency. Advocacy is an eVective safeguard against abuse but it is limited in its scope under the Act. The balance of the Act is not appropriate as gives too much ground to public concern and should include rights to services for people with mental health problems.

1. Definition of Mental Disorder It is much broader than at present and does not exclude alcoholism and other exclusions present in the current Act. This makes it open to far greater interpretation and extension of what a mental disorder is and will increase the use of the Act for no clear reason and quite possibly inappropriate reasons. People with learning disabilities will also be more likely to be detained in the future, as the current deﬁnition applied to them is absent. The argument for this change is that it limits the old Act, but in fact it provides protection for people so that someone for example who is sexually deviant cannot be detained unless they have a mental disorder.

2. Treatment Treatment only has to be “appropriate” rather than “likely to alleviate or prevent a deterioration in condition” as presently. This means treatment, which has no beneﬁcial eVect can be given to someone who has capacity but is detained. It should be a fundamental ethical matter that if you are going to give treatment against someone’s will then it is at least going to prevent a deterioration in their condition.

3. Detention in the Community The criteria for the new Act are widened to include treatment in the community. At present, professionals must agree that the person needs treatment in hospital. With this removed the number of people detained will increase dramatically over time. If someone is well enough to live at home, make their own meals, go out shopping etc they should be free from detention. It will be very diYcult for people to get discharged from Section if the criteria are reduced in this way. I know many people who have mental health problems and live in the community in a way they want without taking medication. They may not always be well but they are well enough not to need hospital treatment and therefore avoid being detained at present.

4. Mental Health Tribunals (1) At present Tribunals have three members. The new Act proposes one, two or three depending on the view of the chair. This could open the way for one person regularly making decisions about detention and losing the balance provided by three people. In a local area one person may end up taking all the hearings at a hospital as a full-time job. Although a medical expert will provide a report this could be several weeks before a hearing takes place and the persons mental health could be greatly changed by this time.

5. Mental Health Tribunals (2) The present system of appeals to the Tribunal oVers people on a Section a real option for discharge with nothing to lose. In the year ending March 2001 there were approx 14,500 hearings in England and Wales and 1,470 discharges. If you exclude restricted (criminal) cases, which have a much lower discharge rate, the general rate of discharge is considerably more than 10%. In addition approx 20% of all appeals never reach a Tribunal hearing as the RMO (Consultant Psychiatrist) discharges the patient before the hearing date. From my experience the majority of these discharges are directly related to the fact the person has a Tribunal hearing coming up and the consultant knows the person will win the hearing and so discharges them before it. This is because the Tribunal is seen as eVective and applies the criteria of the law properly. With the new Act the changes mentioned above at 1, 2 and 3 mean the Tribunal will ﬁnd it very diYcult to meet the grounds to discharge anyone. In addition people will not appeal to it because doing so could mean they end up on a longer term Section more quickly because of the new dual power of the Tribunal.

6. ECT The Act allows for the use of ECT in an emergency for people who have capacity but do not consent. ECT should not be needed in an emergency as normally a person’s condition deteriorates gradually when ECT is the recommended treatment. Medical teams should manage this and call for a Tribunal rather than be given this clause to allow emergency treatment, especially when the person remains well enough to have capacity and refuse the treatment. The Act should state more clearly time limits for the Tribunal and medical expert to make a decision when ECT is proposed in this case. Ev 876 Joint Committee on the Draft Mental Bill: Evidence

7. Advocacy The right to advocacy is only once the examination period is ended. Advocacy should be a right from when a Section is being proposed (before and during examination period) and it should be available to all people irrespective of whether they are under the Mental Health Act or not. You do not have to be on a Section to be aVected by the Act. If you are a voluntary patient and want to leave a ward you have to consider if you may be sectioned, as staV do not agree with your wish. Everyone in the community living with a mental health problem is aVected by the Act. When they see professionals and are oVered medication their consent is tempered by the knowledge that refusal could lead to being put on a Section. This will become worse with the new act as its scope is much greater (see para 1, 2 and 3). The new Act should also state that when a person wants to see an Advocate the hospital should provide a private meeting room if so required.

8. Right to Services The act provides no balance in terms of giving rights to people about access to services. I have worked with many people and carers who complain they have been asking for more help at home or admission to hospital for weeks and nothing has happened. They feel they have been failed and had to endure a serious deterioration in their condition until they are admitted to hospital. This is often very distressing for the person and families concerned and makes it harder for the person to recover, as they have had to get so ill to get a hospital bed. Many people are told they will get services in the community that never appear. I know of people who have been oVered regular visits from social workers that have been only every three weeks and then ended when the worker left their post and was not replaced for six months. The Act should make services more accountable and set minimum standards, such as a right to psychological therapy within set time frames.

9. Care Plan The care plan agreed by the Tribunal for extension of detention (assessment to treatment) under the new Act should be legally binding. This would mean that services in the plan must be provided such as talking therapy, activities on the ward, help with beneﬁts advice, and regular meetings with a consultant psychiatrist.

10. “Peter” Peter is someone I have advocated for and has given permission to use his case in this submission. Peter has schizophrenia and recognises this and is distressed by his experiences when he is ill. He admitted himself to hospital recognising he was getting ill and asked to speak to a psychologist to help him. The ward had no psychology service (standard practice on most acute wards) and could only oVer speaking to a nurse brieﬂy each day who was not trained in psychology and seeing his consultant once a week brieﬂy at a ward round. After staying on the ward for a week and only being oVered medication he attempted to leave the ward. He was put on a Section and given medication. On discharge he stopped taking medication after six months and took Tai Chai and computer courses to help him direct and control his thoughts rather than use medication. This has worked and he is living successfully in the community. The new act will aVect Peter in several ways. He could well be put on a Section in the community, as he would meet the criteria. His refusal of medication can be taken as a risk that he will neglect himself in future. Under the present law he is not detained, as he is not ill enough to be in hospital. Under the new Act he could remain on a Section in the community for years, as his schizophrenia is a long-term condition. The new Act will not oVer him any services such as psychology even if he is detained. It will make him take medication as this is the appropriate treatment prescribed by doctors and will not recognise alternative methods of treatment. He would like to be referred to a supported work project but his doctor has said no and there is no right to act on this despite it being in his care plan as a recognised need. November 2004

Memorandum from J Hembrow (DMH 170)

Draft Mental Health Bill The Draft Mental Health Bill is based on the notion that people with mental health problems present a risk to others. This is not my personal experience; I had a brother in law, and have a cousin with schizophrenia, neither of whom present(ed) a risk to the public. The Bill is designed to ensure that a person, particularly with a personality disorder, can be forcibly admitted to hospital, even though the treatment or therapy may not have a beneficial eVect on their health. The Government’s way of defining who qualifies for treatment against their will is far too broad. It will force professionals to bring too many people in for compulsory treatment and damage the trust, which is so necessary between doctors and patients. Already resources in my borough are stretched to the limit. If this Bill were to become law, when and how would the extra resources become available? How would they be funded? Joint Committee on the Draft Mental Bill: Evidence Ev 877

Service users need to feel they are understood, respected and treated with compassion. Making them feel like they are being punished for being ill, will mean fewer people coming forwards to receive the care they need, when they need it. They will then be at risk and increase the likelihood of unnecessary compulsory treatment. This Bill could seriously violate innocent people’s fundamental human rights. Under the present law there is a right to free aftercare services for people who have been in hospital under compulsory powers. This includes housing, as well as community care services, for as long as it takes to get a person settled to live independently. The Bill proposes that the right to free aftercare will be for just six weeks, which just isn’t long enough. If this Bill were to become law is would be a step backwards, as a carer I am continually ﬁghting against stigma, we need to be working towards a greater understanding and acceptance of those who have the misfortune to become mentally ill. There are now greater opportunities for recovery and for the mentally ill to be included in all kinds of areas of society. The nearest relative would not have any power to discharge their loved one should he be so unfortunate as to have been put under compulsory powers in order to carry out an assessment. October 2004

Memorandum from CardiV and Vale of Glamorgan Mental Health Service User Forum (DMH 171) I am writing to you on behalf of the CardiV and Vale of Glamorgan Mental Health Service User Forum about the Draft Mental Health Bill. We have examined the Draft Bill with great interest and as current or former service users have highlighted below some major concerns that we have. These are as follows. 1. The new deﬁnition of mental disorder described as “presence of psychological dysfunction” emphasises eVect rather than the underlying cause. This is still too broad a deﬁnition. We are concerned about who makes the decision, how it is made and that more people will fall under it. 2. We are also concerned at the increased likelihood of individuals coming under compulsory treatment powers; this includes those who have not necessarily been sectioned in the past. We feel strongly about a persons right to refuse treatment if they have capacity to do so. 3. We object to the notion that people with mental health diYculties are a risk to others. This Draft Bill is designed to ensure a person can be forcibly admitted to hospital even if this is not the best course of action. This action: (a) reinforces the prejudice that service users are dangerous; (b) causes stigma of mental health service users; and (c) results in vulnerable people being afraid to access services. 4. We oppose the Draft Bills correlation that people who self harm in particular are a risk to others. There is no evidence of this. 5. We are concerned about the extension of the assessment function to include people such as Community Psychiatric Nurse’s; this will seriously interfere with their therapeutic role. 6. We are also worried that additional power may come through secondary legislation. Thank you for your consideration of these matters. David Hussey Vice Chair, Service User Forum October 2004

South Westminster User Involvement Group (DMH 172) The contents of this letter have been discussed and agreed by the South Westminster User Involvement Group, which is recognised and funded by Westminster Primary Care Trust. As support worker, I am signing the letter on the group’s behalf. The group recognises the reality and to some extent the validity of the fears in society concerning mental illness. Though rare, and over-emphasised by an irresponsible press, incidents do keep happening that are real and tragic and reinforce the link in people’s minds between mental ill-health and violence. As long-term users of the mental health services, we fear and deplore violence as much as anyone and know that this is true of the vast majority of users of mental health services. We do not constitute a danger to society, though occasionally some of us have been a danger to ourselves. However, all of us suVer greatly from society’s view of us as being potentially dangerous and we deplore what still remains the main thrust Ev 878 Joint Committee on the Draft Mental Bill: Evidence

of the proposed Act, insofar as it is imbued with and encourages this same view. Of course the Act has to grapple with some verv major problems for which solutions are diYcult. Recognising that, we feel that the Act still reflects and panders too greatly to a tabloid view of mental health which already does so much harm to service users. The same Government that has produced this Act has also produced the commendable National Service Framework initiative (NSF). Unlike the Act, the NSF seems based on real knowledge of the needs and addresses them eVectively. As the practice required by those measures becomes more constant throughout the country, above all those concerning Crisis, Assertive Outreach, and closer partnership between agencies, so the odd mishap such as Clunis, etc, will become rarer and rarer. This improvement in resources and practice that will do more to make community care successful than draconian control measures which may well lead to a whole set of new abuses. In this regard the Act still appears to undermine and cancel out the Government’s own good work. The blame culture is still thriving in our society and will ensure that any widening of the definition of mental illness in the Act will lead more and more to precautionary sectioning, not for the sake of the user so much as to protect professionals from possible criticism. We therefore agree with MIND’s opposition to the new, wider definition and welcome the tightening that can now be seen in the latest draft. The Act’s attempt to make psychiatrists responsible for assessing and perhaps restraining people with a personality disorder who might be dangerous, is in itself an expression and intensification of the blame culture. It is setting up a new tier of scapegoats for when something goes wrong. It will do harm to the functioning and quality of a discipline which in recent years has been showing signs of becoming far more user-friendly than traditionally it has been. However we welcome some developments in the new Act. The nearest relative requirements have been replaced by something that looks as it might be an improvement; and we like the recognition that access to advocacy should be a legal right (however, we feel this right to advocacy should exist from the very beginning, ie at the first assessment, especially in cases where the person is in police custody). The new Act’s provision for the advance directive to become stronger is also good news. Still on some of the detailed provisions: we are concerned that the proposed tribunal can consist of just one individual. We disagree with MIND’s acceptance that one person could be enough for “purely procedural or other technical hearings”; we feel a tribunal this small is a tribunal too weak to take decisions—however technical they may be—as carefully and independently as possible. By the same token, the least restrictive care plan should not be put together by just one person, either. This gives too much power, and also too much responsibility, to one person, clinician or otherwise. We consider the provision that will allow police to force entry into people’s houses in order to coerce them into hospital to be unacceptable ; we also believe it will be unworkable. We agree, too, with MIND, in believing that drug or alcohol addiction should not be a bar to receiving mental health services. More generally, we also feel that our rights should definitely be safeguarded in legislation without so much allowance for variation in NHS regulations. There have been improvements in the drafting of the Bill and we must acknowledge these. And we can accept that earlier fears of enforced treatment “over the kitchen table” were not realistic. Nevertheless, we continue to fear that the following words will turn out to be true. They come from an editorial written for the Independent on Sunday in June 2002: “It is a Bill that threatens to turn mental hospitals into prisons and doctors into jailers in order to reassure the public that it is safe from largely imaginary perils.” Rogan Wolf Signing on behalf of South Westminster User Involvement Group October 2004

Memorandum from Mr Edwin Martin36 (DMH 175)

My main concern is about the use and lack of data of Electro-convulsive treatment (ECT). First, I would applaud the new draft Bill for allowing patients with capacity to refuse ECT. This is a positive step. However, I am still concerned about term Emergency and how it diVers from the present Mental Health Act. Can psychiatrists override a patients refusal if the clinician deems the patient to come under the term Emergency? I hope the new tribunal will be supportive of the patients wishes. According to the charity called the National Association of Mental Health (MIND) about 80% of patients at present undergo ECT voluntary (and under coercion by some clinicians).

36 Previous correspondence referred to not printed with this memorandum. Joint Committee on the Draft Mental Bill: Evidence Ev 879

My concern with the draft Bill is that ECT usage is not required to be collated and thus data about ECT is unknown. I would like to see the Healthcare Commission be given powers to tabulate and publish data annually on ECT usage, for the voluntary and sectioned patients and also its use both in the NHS and private hospitals. I support most of the views of the Mental Health Alliance, MIND and the National Voices Forum (Rethink national user group) about the concerns they have on various aspects of the Bill. I hope my response to the new Draft Bill is helpful to the Parliamentary Scrutiny Committee and I look forward to their report to be published in April 2005. Edwin Martin 28 October 2004

Memorandum from S.B. (DMH 177)

1. Introduction

1.1 I am a well educated 27 year old, who suVers from mental health problems. I have been receiving treatment for the past ﬁve years and have spent lengthy periods of time on a psychiatric ward, both as a formal and informal patient. I have been tried on several combinations of medication and have received group therapy and Cognitive Behavioural Therapy. I have received diVerent diagnosis at diVerent times but am at present being treated for depression. I am concerned about the Draft Mental Health Bill, as it will have a direct eVect on my treatment and that of many of my friends. I wish for this memorandum to be treated as evidence. 1.2 I will be writing about A right to services, Dangerousness and compulsion, Compulsion in the community, Advocates and nominated persons, A right to aftercare, Electroconvulsive Therapy (ECT) and Police Powers.

2. A Right to Services 2.1 This clause is very important as, if treated early enough, much suVering can be either reduced or arrested before the situation becomes critical. 2.2 Only a few months ago I knew I was reaching the point of crisis. I went to the mental health outpatient services and made it clear that I was in trouble. I was advised to self-medicate. I knew that was not enough. Over the course of that day and the next I took three overdoses, one of which resulted in me being taken to resus by ambulance, unconscious. I was depressed, suicidal, angry and desperate. Had there been more substantial help available there is a chance that would not have happened.

3. Dangerousness and Compulsion 3.1 People with mental health problems continue to face stigma, whether from people they know, their employers, their neighbours or strangers. However, the truth of the matter is that most people with mental health problems are not violent and pose no danger to anyone around them. 3.2 My friends and I are not violent, whether well or unwell. I am also concerned that it is assumed that someone with a personality disorder is automatically violent. There are several types of personality disorder and only certain people within these subdivisions will be violent. Being sectioned on the basis of a label would be unjust. A friend of mine who has been diagnosed as having borderline personality disorder would have her career either ruined or completely undermined if she was ever sectioned. She is a medical student who shows promise of making an excellent doctor. Could she practice medicine with a history of being sectioned?

4. Compulsion in the Community 4.1 This subject is important because I believe very strongly, based on my own experience, that if someone is that distressed they need and deserve a safe environment, such as a hospital, in which to receive treatment and get better. People with mental health problems should have a right to a free life outside of hospital. They are not criminals who need to be tagged and monitored constantly. Ev 880 Joint Committee on the Draft Mental Bill: Evidence

5. Advocates and Nominated Persons 5.1 This subject is vital because when people are mentally at crisis point they do not always have a full reasoned understanding of what is happening. To have someone there, in whom they have trust, with the power to be involved in their care makes a great diVerence to how they cope with the situation. Friends, family and conﬁdantes are the people who know the patient best after all. It concerns me that under the Draft Mental Health Bill a paid carer or volunteer with a voluntary organisation could not be consulted during the examination stage. 5.2 I am fortunate to have supportive friends. But sometimes when I’m very unwell I become paranoid and suspicious of other people. It could get to the point where I only trust the person who has been befriending me for over a year at the Samaritans. Under this law he could not be my nominated person.

6. A right to Aftercare 6.1 Aftercare is often the diVerence between someone staying out of hospital or having more frequent relapses. It is vital that aftercare is organised and available when the patient is well enough to receive it, not when services get around to sorting it out for them. To keep someone in hospital simply because such care has not been set up is an infringement of human rights. 6.2 I was in hospital for about 10 months last year. I think that if there had been greater formal support available in the community I could have left the ward sooner. Keeping someone in hospital for such lengths of time can be detrimental and the risk of them becoming institutionalised is high.

7. Electroconvulsive Therapy (ECT) 7.1 I am concerned about this subject because no one really knows how ECT works and patients who are being considered for this treatment may well have reached the point of not caring what happens to them. ECT causes a seizure as experienced in epilepsy. One of the key features of epilepsy is amnesia so it is only logical that ECT would cause amnesia. There is compelling evidence of brain damage being caused. A patient normally against the use of ECT may not care whilst unwell but regret treatment later.

8. Police Powers 8.1 People with mental health problems are, when unwell, extremely vulnerable and often fearful of themselves or others, or both. Many of them have had no real contact with the police and would be terriﬁed by having the police arrive, without a warrant, in uniform, and be forced to go with them to either a police station or a hospital. 8.2 I know of an eight year old girl who watched as the police broke in, handcuVed her mother and put her in a police van. The girl was taken to a carer. The mother had committed no crime. She was unwell but posed no threat to her child. In this case there were circumstances that made it lawful. But if this Draft Mental Health Bill were passed situations like this would arise more frequently. This is an unnecessary extension to police powers.

9. Conclusion Mental health problems do not always happen to someone else. Illness can happen to anyone at any time and for a series of very complex reasons. If it doesn’t happen to you it could happen to your partner, your child, your work colleague, a family member or your friend. It could be one clearly deﬁned episode of illness or several episodes over a period of time or an ongoing illness that doesn’t ever quite leave. We need to have in place a sensible law that truly protects ourselves and our nearest and dearest if and when the situation arises. People with mental health problems deserve to be protected and given the best possible treatment at the time that we need it most. We should also have a voice that is heard. Whenever possible our opinions, wishes, privacy and dignity should be of paramount importance. Inevitably there will be situations where someone is too ill to make an informed decision for himself or herself and it is at this time more than any other that the law should serve their best interests. Emphasis should be on the least intrusive, heavy-handed treatment. A safe environment should be made available when necessary and good quality aftercare available as soon as the person is ready for it, and for as long as the person requires it; six weeks is not long enough. People with mental health problems should be taken seriously when they say they are in trouble, given appropriate and humane treatment and if necessary a safe environment and suYcient aftercare and formal support. When you have mental health problems it can be very hard to be taken seriously when you express your opinions, wishes and fears. We need to know that safe and sensible laws are in place to protect us and help our voices be heard. SB. . Joint Committee on the Draft Mental Bill: Evidence Ev 881

Memorandum from people currently in receipt of hospital care in Epsom, Surrey (DMH 178) We respectfully ask that this letter be treated as evidence for consideration by the Joint Committee. Due to the concerns people have about the Draft Mental Health Bill, discussions were held at Elgar Ward, Epsom, Surrey. With and on behalf of the people present their views have been collated for your attention. The following specific subjects of concern are: 1. The extension of Police powers. 2. The provision of community services and Community Treatment Orders and the discharge of people from hospital without adequate support. 3. The reduction in hospital bed numbers, and pressure on existing staV such as community psychiatric nurses. 4. Demoralised staV/hospital conditions. 5. The ability of anyone potentially to request a mental health assessment for someone else. 6. The inspection programme. 7. Powers of the psychiatrist. 8. Advocacy, legal representation and tribunals. Specifically: 1. Police Powers: Several instances of excessive force were described, where the police had broken down doors to get to people. On one of these occasions, an elderly relative suVered shock and diYculties with their heart. The Draft Bill may increase such incidents, as a warrant will not be required. With adequate training, force is mostly unnecessary, and the current Mental Health Act provides adequate safeguards. 2. There are potentially good services already for supporting people after their discharge from hospital. The Crisis Action Treatment team, for example, in this area is there to help someone with their recovery at home. A therapeutic service which sadly, was under funded from the start, and poor communication systems mean supported recovery turns into a readmission for some people. The Draft Bill, with Compulsory Treatment Orders at a person’s home, is a reminder of the negative experiences leading to readmission to hospital. This will increase the stigma people experiencing mental distress already have to face. 3. Too many hospital beds have been lost to mental health services. This puts too much pressure on other services. The Draft Bill adds more pressure on existing services, as crisis situations will need more and more to be managed in a community setting, which is not always appropriate. Community psychiatric nurses are already having to work with more people than time and resources allow. 4. Demoralised staV/hospital conditions: An example was given where a daughter of one person present had left nursing because of pay and conditions. A lack of respect by policy makers for the mental health services and staV turns into situations of a lack of respect for service users. With very few meaningful activities, the people detained under the current Act, have few outlets for expressing themselves. Mixed sex wards are disliked immensely. There is a shortage of gym or other recreational equipment—an example given was the young men on the ward who have very little to occupy their time. The ward here needs refurbishment. The Draft Bill does not address the need for a therapeutic place to recover from mental distress. 5. It is not clear who can refer someone else for an examination of their mental health. This is very worrying, as it could potentially be an area where personal grudge comes in. We think this referral route’s scope is too wide, and open to misinterpretation. 6. The inspection programme for hospital and community services are areas of concern. A much more regular programme of independent inspection is asked for. It is also currently diYcult to know how to contact the relevant inspection authorities. 7. Someone can be Sectioned under the current Mental Health Act because the psychiatrist holds diVerent beliefs to the “patient”. The psychiatrist’s beliefs hold supremacy. Along with the extra powers in the Draft Bill, these instances will be more prevalent. 8. Currently not enough time is available to meet with a solicitor for a Mental Health Act Tribunal. In one instance relevant notes were handed to the solicitor and patient five minutes before commencement of the hearing. Medical notes were stated as not available for certain people. If this happens now, what will happen with the profusion of applications the new Bill will generate? A positive: ECT—the Draft Bill is an improvement on the previous one because of the choice given to patients to refuse their consent. Ev 882 Joint Committee on the Draft Mental Bill: Evidence

Summary The overall negative stance of the proposals in the Draft Bill is one of horrifying possibilities. People do not want to be isolated at home. A holistic approach to health is desired. This includes suitable housing, but this should not stop an overall approach to fulfilling equally important facets of their needs for good health. We hope you will fully consider our views, and perhaps visiting or experiencing our comments from the “shop-floor” is necessary to achieve a common-sense and just decision when final action is taken regarding this Bill. Mrs Anne Pringle, Mr Philip Ruthen, With and on behalf of people present at Elgar Ward These points were collated from discussions by Philip Ruthen, Mind Link National Advisory Panel representative, on the invitation of those present at Elgar Ward. October 2004

Memorandum from Derbyshire Patients Council (DMH 180) We have just held our monthly Patients Council meeting where we discussed the broad concepts of the re-drafted Bill. Members of the Council wish to stress how dismayed they are at the minimal amount of time given for evidence to be submitted to the Scrutiny Committee. It has not given us enough time to provide information workshops, hold discussions and produce a formal response. This proposed Bill has potentially far reaching consequences for them and they are very unhappy that insuYcient time has been allowed. They feel there is a sense of it being “rushed through”. Particular concern lies around how much easier it will potentially be for someone to be admitted to hospital on a section. Service users feel it is too easy as things stand and they feel they are sometimes the scapegoat because it is so easy to admit them (as if the problem all lies with them when very often it doesn’t). They feel there should be more stringent measures in place to prove that it is necessary and beneﬁcial for the person. There was also some concern about the fact that currently a relatives signature may be required for sectioning. They hope that this will be removed in cases where abuse from relatives has led to the person needing treatment! It is a totally unfair position to put the service user in. This is very rushed and brief but we simply have not had the time necessary to respond properly and we wish to register our unhappiness about that. November 2004

Memorandum from the Committee of Leeds Consultant Psychiatrists (DMH 182) The Committee of Leeds Consultant Psychiatrists (CLCP) responded to the draft Mental Health Bill of 2002 and welcomes the opportunity to respond again. We recognise and welcome the fact that the Government have listened to concerns expressed, and have made some changes to the proposed legislation, but feel that significant areas of concern remain. These fall broadly into two groups —diYculties with the ethos of the Bill itself — practical diYculties with implementation We recognise and welcome the proposal for new legislation; much has changed since 1983. There is pressure from users and carers, from service providers and from society for improving access to a full range of evidence based psychological and medical treatments from an adequate and trained workforce, and for improving awareness of Mental Health issues within society whilst reducing stigma and discrimination. Legislation must be a part of this but only a part. In the absence of draft Codes of Practice for England and for Wales, it is diYcult to understand fully how a new Act based on the draft Bill might work in practice. CLCP were particularly concerned about conditions for compulsion. We feel that the definition of mental disorder would be satisfactory if combined with much tighter conditions and limitations. As it stands, we feel that the numbers of people subject to compulsion under the new Act would be significantly greater than under the 1983 Act, where already the numbers of people subject to compulsion have risen substantially over the years. Joint Committee on the Draft Mental Bill: Evidence Ev 883

We would wish to see on the face of the Act itself, clear exclusions for people presenting only with promiscuity or sexual deviancy, alcohol or drug misuse, or the commission, or threat of illegal/disorderly behaviour. We would wish to see a Capacity based Act. In the absence of that, we believe that people with capacity who consent to a full assessment and/or treatment plan should not be subject to compulsion (the fourth condition, patients at substantial risk of causing harm to others). We are not clear if the draft Bill is suggesting that dangerousness is of itself mental disorder, a concept we see as very inappropriate. In relation to Community Treatment Orders, (CTOs), we welcome the removal of compulsion in prison. We believe however that CTOs in the community should only continue to be appropriate whilst the person continues to have impaired decision-making capacity by reason of mental disorder. The full conditions relating to CTOs are not made explicit, which makes it diYcult to comment further, and it is not clear why these conditions have not been included in the Bill itself. In connection with ECT, we feel very strongly that ECT should never be given to capacitous refusers, and that it should not be authorised for use in such people “in an emergency” as at present in the draft Bill. In general, we welcome increased access to Tribunals (though there are serious issues around workforce, see below), and we welcome the abolition of Managers’ Appeals, which duplicate appeals processes currently. We would like to see no limitation of the right to discharge by the Clinical Supervisor for those detained under civil sections. We hope that the rights currently available to the Nearest Relative will continue to be open to the Nominated Person. The role of the Clinical Supervisor replaces that of the RMO, and is open to qualified practitioners of mental health professions other than psychiatrists alone. We have seen the memorandum from the British Psychological Society, which discusses the possible role of psychologists in this capacity. They recognise some of the diYculties introduced into the therapeutic relationship in relation to being able to detain patients (a problem which also arises for CPNs, as the ASW role in detentions is replaced by the Approved Mental Health Professional). There are also serious issues regarding non-medical Clinical Supervisors and prescribing of medication and ECT, which are unclear in the Bill. We fear that the draft Bill will result in more patients having greater fears of being subject to compulsion, with a corresponding fear of accessing services and the concern that people will therefore remain untreated, with all the risks that this entails. We would like to see the same rights and safeguards for patients in the Mental Capacity and Mental Health Bills. The draft Bill should be fully compliant with the European Convention on Human Rights, and with recommendations of the Council of Europe. The recent judgement in relation to Bournewood must be reflected in the Bill. We are concerned that the greatly increased workload for practitioners will result in worse services for those subject to compulsion (because timeframes in the new Bill cannot be met) and for those willingly accepting assessment and treatment (because of a disproportionate redirection of services to those subject to compulsion, away from voluntary patients). We feel that the figures for extra workforce quoted are firstly a serious underestimate of the numbers required, and secondly that the necessary expansion, even to numbers predicted in the draft Bill, is unachievable. This alone might render the new Act unworkable. There is already a severe lack of psychiatrists and other mental health professionals, and major issues around recruitment and retention nationwide. If the new Act is perceived as ethically unsound and practically unworkable, issues of recruitment and retention will get worse, not better. We hope that the Government will continue to listen to users, carers, Mental Health professionals and voluntary service providers, and deliver a new Mental Health Act that will be ethically sound, practically workable, and a major part of developing excellent mental health services for the twenty first century. Dr Vivien Deacon Chair, Committee of Leeds Consultant Psychiatrists November 2004

Memorandum from Sarah Dewey (DMH 183)

Sarah Dewey:Service user of Secondary Mental Health Services, both in Hospital and CMHTs, for 10 Years My main concerns over the draft bill are: The emphasis of the bill appears to be on crisis and protection not prevention, in doing so it reinforces the link between dangerousness and mental illness. Ev 884 Joint Committee on the Draft Mental Bill: Evidence

The Bill does not legally enforce good practice or the right to treatment before crisis. — For example: The NSF states that inpatients are oVered timely access to an appropriate hospital bed. This year the poor physical design and pressures on staV and resources has meant this was not my experience.

Extending powers of compulsory assessment and treatment into the community: — The proposed legislation will allow conditions can be imposed on patients in the community, eg, to take certain medication or attend a clinic on a regular basis. No other area of medicine enforces such compliance even when that person’s life is at risk (chemotherapy). — Such conditions could impose further strain on family relationships and could change the relationship between CPN’s etc and service users. There is already provision to detain people in hospital if they are a risk to themselves or others—why does this need extending? If someone is at serious risk and needs compulsory treatment that person should be in hospital where medication or alternative treatment can be monitored if necessary. — The Bill is supposed to build in legal safeguards but the reality in Bucks is that there is one MH lawyer for the whole county. Qualiﬁed legal advice is not readily available even if asked for, beyond a leaﬂet given upon detention. This should be addressed before bringing in new legislation. — Compulsory treatment has been broadened to include not only medical treatment but also education and training, counselling, CBT and “other psychological interventions”. Many people would like to access these services before crisis and avert the need for compulsion but provision is patchy and there are often lengthy waiting lists. — When someone is being assessed they should have the right to an independent advocate at the point of examination stage before formal assessment. — More resources need to be put into all types of advocacy services: professional, voluntary and peer advocates who are themselves are service users. November 2004

Memorandum from PLUS (People Like Us—a service-user group for West Berkshire) (DMH 184)

1. Introduction 1.1 We are users of mental health services in West Berkshire. We believe that the thinking behind the draft Mental Health Bill is wrong and that the proposals are neither workable nor necessary. It enlarges the reach of compulsory treatment and is a wasted opportunity for positive change in mental health services. We are concerned that if this Bill becomes an Act it will: — damage the relationship between service-users and professionals; — discourage openness and alienate service-users from mental health care; and — increase risk to people who need care and members of the public. 1.2 We are writing in regard to the following subjects addressed within the Bill: — The right to services. — Compulsion. — Advocates and nominated persons. — The right to aftercare. — Electroconvulsive therapy.

2. The Right to Services 2.1 We believe that the Bill should include a statutory right to mental health services such as: — Day services in the community. — Counselling services. — Access to Care Managers. — In-patient hospital care. — Crisis and respite services. This is important because a lack of access to services can only exacerbate conditions. Joint Committee on the Draft Mental Bill: Evidence Ev 885

Case Study Abbey had been diagnosed schizophrenic by a consultant psychiatrist in 2002 but it was over a year before she received any support from local services despite being in constant crisis and quite literally begging for help on a regular basis. She now has irregular contact with a social worker but no other support.

3. Compulsion 3.1 We believe that increased powers of compulsion will damage relationships between service-users and professionals as well as deterring people from seeking help or being honest about the symptoms they are experiencing. This can only increase risk to their own or others safety as well as exacerbating conditions that would have responded to earlier intervention. 3.2 It is an oVence against human rights for a person to have treatment forced upon them when they do not want it are able to make that choice. Compulsion is not considered in other health areas—why are mental health problems being treated diVerently? There is no preventive detention of many people who put others at risk, such as dangerous drivers or perpetrators of domestic violence, even if the risk of repeat oVending is likely.

4. Advocates and Nominated Persons 4.1 We believe that better and earlier support from a person known and trusted by the patient (such as family, friends, carers and advocates) is essential as they will be familiar with the individual’s history and wishes, and will be able to articulate these at a time when the patient may be unable to speak eVectively for themselves. 4.2 We are concerned that the proposed Bill will: — place unnecessary restrictions on who can provide advocacy; — delay eVective advocacy; and — threaten the provision of advocacy services.

5. The Right to Aftercare 5.1 We believe that the right to aftercare is very important for the continuing improvement of service users’ mental health and a necessary step in aiding full recovery and reducing further burden on already over-stretched mental health resources. 5.2 Under the Bill, the right to free after-care is restricted to just six weeks. This is an insigniﬁcant and unrealistic period, given that service users may have spent months or even years reaching this stage in their recovery.

Case Study “Kim” was hospitalised after several weeks of severe distress during which he attempted suicide on a number of occasions. Having spent a week in hospital, on being discharged he was promised more support than he had previously received. This, however, was not the case, with the result that after eight weeks “Kim” had to return to hospital.

6. Electroconvulsive Therapy 6.1 We believe that the proposed Bill is an improvement on current law regarding ECT. However, it will allow ECT to be given against a person’s consent in an emergency. 6.2 We believe that ECT must never be given to a person who has the capacity to make his or her own decisions. November 2004

Memorandum from Dr David Fryer (DMH 185) I welcome many of the proposals of the above draft bill, including: — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Special provisions for children and young people. — Enhanced powers in the criminal courts to acquire mental health reports. Ev 886 Joint Committee on the Draft Mental Bill: Evidence

The above are positive developments within the proposed mental health law and go along way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some, I am troubled to find, remain exactly the same as the concerns that were expressed by many respected organisations following the draft bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS. — A right to assessment of mental health needs; — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. — Guidance that ECT should never be given to a person without their consent. — A clear statement to acknowledge that people with mental health problems are no more likely to pose a danger to society than people who do not have mental health problems. I trust that these concerns will be considered by the committee and I look forward to your response. Dr David Fryer CPsychol FBPs FSCRA Community Psychology Group University of Stirling, Scotland November 2004

Memorandum from Albertine Euphemia McNeill (DMH 186)

1. Introduction 1.1 I was an outpatient of the West London Mental Health Trust (WLMHT) between 2000 and 2001. I would like this memorandum to be treated as evidence. 1.2 Access to appropriate treatment. Compulsory treatment and the risk of misdiagnosis. The perception of dangerousness.

2. Access to Appropriate Treatment 2.1 Some of the problems that the Draft Mental Health Bill seeks to prevent could be dealt with by providing the right help at the right time. At present this is not happening because of the lack of staV.It takes far too long to get an accurate diagnosis and as a result there is an unacceptable delay in the provision of treatment. This is very frustrating for someone who is desperate for a return to normal life. I have had personal experience of this. 2.2 My condition is an unusual one, a combination of physical and mental symptoms, and is not always apparent. Strangers react in a way that suggests that they ﬁnd my behaviour frightening or funny. This leads to panic attacks and agoraphobia. My GP referred me to a local Mental Health Resource Centre (MHRC). Over the next few months I had several appointments with two successive locum psychiatrists. The ﬁrst Joint Committee on the Draft Mental Bill: Evidence Ev 887

claimed to be treating me, the second said that he could not treat me, he could only make a referral. Over six months after the GP referral I was assessed by a psychotherapist who advised me of an 18 month wait for a place in NHS treatment. 2.3 Ten months after the GP referral I entered private treatment. I realised almost immediately that psychotherapy would be of little use to me and eventually dropped out. The NHS locum psychiatrist reluctantly suggested cognitive behaviour therapy. When I expressed my displeasure at the 15 month wait for an accurate assessment and treatment he suddenly diagnosed Tourette Syndrome, although I do not have enough of the associated “tics”. The cognitive behaviour therapist diagnosed Obsessive Compulsive Disorder, which is partially accurate. He conﬁrmed that psychotherapy was inappropriate. Poorer, wiser and very angry I withdrew from contact with the MHRC. I sent a letter of complaint to the WLMHT. (See copy submitted as background material). I now felt suicidal and depressed. I had used up my “nest egg” on useless treatment at a time when I was unable to work 2.4 I received a letter from Robert Creighton, Chief Executive of Ealing Primary Care Trust, in which he states “It is true that WLMHT has struggled to recruit a sixth consultant for your area. Funding last year for mental health services was targeted on providing an assertive outreach service and 24 hour access to services targets set out in the National Service Framework for Mental Health. This left little funding for another consultant post.” (See copy submitted as background material). Mental Health Trusts are already having to prioritise services and as a result are failing to meet the needs of the vulnerable. (See article, copy submitted as background material).

3. Compulsory Treatment and the Risk of Misdiagnosis 3.1 I am particularly concerned about proposals to compel individuals to undergo treatment. I have little confidence in the ability of the Mental Health Trusts to correctly identify the illnesses and needs of patients. If the wider definition of mental illness is allowed through this will undoubtedly lead to a greater number of cases. An NHS therapist told me that an estimated 50% of cases of mental illness are misdiagnosed, a sign that the system as it exists cannot cope. I am certain that the proposed measures will lead to even more people receiving the wrong treatment but this time they will not have a choice in the matter 3.2 The current state of mental health care in the UK is such that staV are reduced to “processing” patients as quickly as possible rather than taking the time to assess them properly. If you do not fit into a category such as “schizophrenic”, “depressive”, or “psychotic” they are at a loss as to what to do with you, or they try to make you fit. It is rather like turning up at Casualty with internal bleeding and being told that they do not know what is wrong with you but they can give you a brain scan or put your arm in plaster. 3.3 During my contact with mental health professionals I was told repeatedly that my problems were caused by depression and oVered anti-depressants. As an intelligent 35 year old I found it hard to tolerate the overbearing attitude of some NHS staV who dismissed the information I gave them as irrelevant. The thought that the same people could one day force me to take this medication fills me with dread. As a direct result of my fears I have decided not to ask the NHS for further help. 3.4 I believe the authority to compel treatment should not be available to the representatives of a body with such a poor record in the area of diagnosis. However even if the situation were to be improved by increased funding it does not seem right to me that anyone should be forced into treatment.

4. The Perception of Dangerousness 4.1 Public concern about murders committed by the mentally ill is understandable and it may seem logical to try to prevent them by incarcerating potential oVenders in advance. Doing so will reinforce the perception of all mentally ill people potentially dangerous. “Warehousing” these people will do nothing to prevent the majority of murders, committed by those regarded as sane. The current proposals could also lead to the detention of those regarded as anti-social who are actually less dangerous than most football hooligans. 4.2 My personal experience of public fear came in 2002 when I took a part-time job as caretaker at a block of ﬂats. The residents clearly regarded me as eccentric but were grateful for my hard work and encouraged their children to talk to me. I was often asked to baby-sit but refused in case I had a panic attack. Everything changed after the murders of two girls in Soham. As soon as the caretaker at their school became a suspect some of the residents became frightened of me and would rush past to avoid speaking to me. I became very distressed and resigned. I am glad that I did not agree to baby-sit as any incidents could have been blamed on my condition. 4.3 It is not only the general public who may misinterpret symptoms. In the case of someone with Obsessive Compulsive Disorder, in which obsessive and unwanted thoughts about causing harm to others may cause enormous distress to the suVerer, assessment and treatment may diVer according to the practitioner that person is referred to. A cognitive behaviour therapist would recognise that the suVerer is not dangerous and that those thoughts can be controlled relatively easily. A psychiatrist might take these thoughts at face value and take more serious measures. Ev 888 Joint Committee on the Draft Mental Bill: Evidence

4.4 Danger is often in the mind of the beholder, especially where mental illness is concerned. There should be a greater emphasis on raising awareness of the issue and increasing tolerance, rather than providing the taxpayer with a false sense of security. It would be wiser for the authorities to investigate actual crime rather than allay the fears of over-anxious citizens by locking up those who are guilty of being ill.

5. Summary 5.1 The mental health care system is already failing to provide appropriate treatment for everyone who needs it because it is so under funded. The pressure of work means that the staV sometimes have diYculty correctly identifying the needs of those referred to them. As a result some individuals may be compelled to undergo treatment that is not right for them. The prospect of compulsion will put people oV asking for help. Legislation to allow compulsory treatment is a misguided attempt to prevent the relatively small number of murders committed by the mentally ill. The fact that these measures will be available to the authorities will reinforce the negative stereotype of mental illness in the minds of the public. Background material provided with this memorandum:37 — Letter to West London Mental Health Trust, 27 February 2004; — Letter from Ealing Primary Care Trust, 8 May 2002; and — Article, Ealing Leader, 1 March 2002. November 2004

Memorandum from Sefton Recovery Group (DMH 187) We are writing to you to express our emerging concerns about the Draft Mental Health Bill.

1. A Right to Services When They Need Them? If the government were serious about public safety and people’s health, surely they would do more to ensure that people got the care and treatment they need when they need it. People often recognise they are reaching crisis point and seek help immediately to avert it, but they do not receive that help.

2. Compulsion Should be the Last Resort The purpose of the MH legislation such as this Bill, is to force people to have treatment (usually hospital treatment) against their will because doctors believe it is necessary for the protection of other people. Under current law, a patient may be kept six months and often much longer. The proposed new law makes compulsion more likely to happen than under the current law. The new provisions would allow compulsory assessment and treatment to be carried out in the community. And taken together, they increase the prospects for any individual person of coming under compulsory treatment powers. People who are in mental distress should only be put under compulsion when they are truly in a crisis, in danger, and when they have lost the ability to make choices for the themselves. It is an oVence against human rights for a person to have treatment forced upon them when they do not want it and are able to make a choice. No one can force you to have chemotherapy if you have cancer ( even if it may save your life).Why are people with mental health problems diVerent?

3. Dangerousness and Compulsion More than under current law, the Draft Mental Health Bill is based on the notion that people with mental health problems present a risk to others. It is designed to ensure that a person, particularly with a personality disorder, can be forcibly admitted to hospital, even though the treatment or therapy oVered might not have a beneﬁcial eVect on their health. We object to these powers because: — they reinforce the prejudice that all people with mental health problems are dangerous and as, a result, stigmatise all service users they will drive vulnerable people away from seeking help when they need it they are unnecessary.

37 Not printed. Joint Committee on the Draft Mental Bill: Evidence Ev 889

— People working in clinical mental health care, can , and do, take action under existing law to deal with the situation once they are aware of a genuine risk of this kind they do not deal with a more signiﬁcant problem: the denial of help to some perpetrators of violence who are refused help prior to the crisis due to lack of resources. — They are discriminatory. There is no preventive detention of many people who put others at risk, such as dangerous drivers or people who abuse their partners, even if risks of oVending or repeat oVending is likely.

4. Compulsion in the Community Under this Bill, the clinical supervisor can decide to put a patient under compulsion in the community rather than in hospital. Conditions can be imposed on patients in the community. For instance, such a patient could be required to take particular medication, to stop taking particular drugs, to live at a certain place and to attend a clinic on a weekly basis. If you refuse to attend a clinic on a weekly basis. If you refuse to comply you will most likely be taken to hospital to be given a depot injection or other treatment. Once a person is on a community order, it could be quite diYcult to be discharged from it. It will be harder for a patient to get a change in treatment regime if the psychiatrist disagrees. If people are in a crisis where compulsion is the only option for them, they need to be in hospital where they will be safe, and where there will be medical and nursing staV to help, for instance, to monitor the eVects of medication and treat adverse reactions quickly. Compulsion in the home is disruptive and can interfere with people’s domestic lives, denying them the human right to privacy and family life. Community nurses and psychiatrists do not want or need to police their clients in this way. It will damage trust in their relationships with their clients.

5. Independent Mental Health Advocates and Nominated Persons We believe that if a person is in crisis and put into hospital, several things need to happen right at the start. They need an independent mental health advocate who can help to explain what is happening, to negotiate with the medical team and possibly get agreement to the course of action that is best for the patient. Nominated persons: Such a person should be someone trusted by the person and who knows them well. It may be a carer, a friend , a member of the family or advocate. They need that person to be able to have a say in what will happen, including a right to object to the patient being put under compulsion. Under the proposed new law an informal carer (such as a family member giving substantial care) will be consulted during the examination stage. This is a period of up to ﬁve days in which doctors decide whether to go ahead with compulsory assessment. The person can be kept in hospital during the examination stage. But the consultation on examination cannot be with a paid carer, or even a volunteer who is working with a voluntary organisation, no matter how well they know, understand and are trusted by the patient. The nominated person (chosen by the patient) is not appointed unless, and until, the formal assessment stage is reached. The current law allows the nearest relative to take steps to discharge a patient under compulsion. Under the Draft Mental Health Bill this provision will disappear.

6. Advanced Agreements People tell us that one of the most helpful ways to give a person some control over what happens to him or her in a crisis is to participate fully in treatment decisions and, in particular, decide in advance what should happen in a crisis. This can be achieved with an advance directive, which is a statement of wishes and instructions for what should and should not happen, at a time when the person is not well enough to express their wishes and make decisions for themselves. In particular, it would include what treatment should and should not be given. Legally, a statement of the treatment that should not be given must be followed in most circumstances. But this right will be taken away under the Draft Mental Health Bill once a person is put under compulsion. An important study has shown that use of advance decision making by established service users, in cooperation with the clinical team, cut compulsory admissions for patients with severe mental illness over a two year period. Ev 890 Joint Committee on the Draft Mental Bill: Evidence

7. A Right to Aftercare Many people who are detained in hospital could be given leave or discharged, if suitable social care arrangements were in place. Good clinical practice arrangements were in place. Good clinical practice includes securing care services to support discharge from hospital as soon as possible. The Draft Mental Health Bill allows for a further compulsory hospital treatment order to be made in some circumstances when care service provision is not ready. This will help disguise the lack of services that prevent further admissions. It will also result in unjustiﬁable compulsory detention just because services are not being provided. Under the present law, there is a right to free aftercare services for people that have been in hospital under compulsory powers. This includes housing, as well as community care services. Someone trying to rebuild their life may need several months or even a year or two in special, supported living arrangements before moving on to independent accommodation. Under the Bill, the right to free aftercare is restricted to just six weeks. The accommodation that would be covered by the new arrangements is further limited. Six weeks is a negligible period of time for the type of adjustment that many long term inpatients must make on discharge. It is an arbitrary period and takes important judgements away from service users and those planning their social care. These proposals run contrary to the good practice that the Government claims the Draft Mental Health Bill supports: continuous, holistic care designed to prevent admissions to hospital.

8. The Tribunal System At present a person can be discharged from compulsion by the Responsible Medical OYcer (clinician in charge) or by their nearest relative or by the Mental Health Tribunal. Under the proposed system, the new Mental Health Tribunal will have greater say in when and whether a person can be discharged We are aware that, at present, there can be real delays with getting a hearing at tribunal. We think the Committee should be aware of this and of the distress this causes to patients.

9. ECT The proposed Bill is much better in part than the current law on ECT. It will not be possible to give ECT to a person with capacity to consent unless they do consent. However the new law does allow ECT to be given against a person’s consent in an emergency. We believe ECT must never be given to a person who has the capacity to make his or her own decisions about this controversial treatment.

10. Police Powers The police will have extra powers under this Bill to enter private premises without a warrant in an emergeny where it is believed there is someone in urgent need of treatment. We believe this is an unnecessary extension to police powers. Police will retain the right to take people to a place of safety and this will continue to include police cells. Without doubt the Draft Mental Health Bill flies in the face of recent government policy on social inclusion; anti-stigma and discrimination, choosing health, the expert patient programme and “Recovery; the over pinning vision for the future of Mental Health Services” National Institute for Mental Health in England; NIMHE strategic objective 2003–06. We feel the Draft Mental Health Bill would be enormously improved if: (i) The Scrutiny committee review the evidence for Recovery (oriented services and practices are well advanced in the US and New Zealand) and how Recovery research and practice must change the paradigm for our field ; including the role of people with direct experience of mental illness services, service providers (Expert by Experience governed services), policy makers, paid and unpaid workers; family, friends and community; and implications for ongoing development of Recovery oriented systems; Allott, P, NIMHE Fellow for Recovery et al Discovering Hope For Recovery From A British Perspective: A Review Of A Selection Of Recovery Literature, Implications For Practice And Systems Change. (Copy attached). In the NIMHE statement on Recovery; Recovery is defined to include the following meanings: A state of wellness (eg following an episode of depression) Achievement of a quality of life acceptable to the person (eg. following an episode of psychosis) Joint Committee on the Draft Mental Bill: Evidence Ev 891

A process or period of Recovering (eg. following trauma) Guiding principles which form the basis for the development of the Recovery process include: The user of services decides if and when to begin the recovery process and directs it; therefore service user direction is essential throughout the process. The mental illness system must be aware of its tendency to promote service user dependency Recovery from mental illness is most eVective when a healing holistic approach is considered Clinicians and practitioners initial emphasis on “hope” and the ability to develop trusting relationships influences the recovery of users of services People with direct experience of mental illness services should have the choice of developing a recovery self management or wellness recovery action plan. This plan focuses on wellness, the treatments and supports that will facilitate recovery and the resources that will support the recovery process Community involvement as defined by the user of service is central to the recovery process and all It is argued we do not have mental health services in this country we have “mental illness” services with a total emphasis upon illness, vulnerabilities, risk and coercion; rather than wellness; individual strengths; potential and self agency. Additionally the work of NIMHE on values in mental health care and what is of value to people is guided by three principles of values—based practice: “Recognition of the role of values alongside evidence in all areas of mental health policy and practice Commitment to raising awareness of the values involved in diVerent contexts, the role/s they play and their impact on practice in mental health Respect for diversity of values and will support ways of working with such diversity that makes the principle of self agency a unifying focus for practice. Respect for diversity in mental health is also Dynamic—it is open and responsive to change Reflective—it combines self- management with positive self—regard Balanced—it emphasizes positive as well as negative values Relational—it puts positive working relationships supported by good communication skills at the heart of practice’ Ref: Emerging best practices in Mental Health Recovery: Poster and companion PDF file: Approved by NIMHE 2004: Principal Editor: Allott, P et al. (ii) We must be cautious of pandering to the myths of the gutter press “all people with mental illness present a risk to the public” and invest resources in Recovery and self management approaches to mental illness which give hope for a future, and build on the strengths, self responsibility, self agency; human rights and resilience of people to self manage their condition across shared care services. This cannot be achieved without the support of mental health services, friends, family and independent mental health advocates; at each and every stage of the Recovery journey. WRAP presents a system developed and used successfully by people with a variety of emotional (and physical) symptoms. It has helped them to use self management skills more easily to monitor their symptoms, decrease the severity and frequency of symptoms, and improve the quality of their lives. Through developing activities for everyday well being; tracking triggering events and early warning signs; preparing personal responses if symptoms increase and creating a plan for supporters to care for you if necessary. The enthusiasm for this program continues to be overwhelmingly positive. People across the world are reporting that by developing and using this simple planning process, they are achieving ; in collaboration with supporters ; family, friends and mental health professionals; levels of wellness that they had never dared dream of. (iii) Further we feel attention needs to be given to the “distribution of wealth” within mental illness services; with a disproportionate amount of total spend on specialist mental illness trusts; to the detriment of; voluntary (some) and expert by experience governed services and importantly independent mental health advocacy services. (iv) The proposed new law makes compulsion more likely to happen than under the current law. Compulsion in the home is disruptive and can interfere with people’s domestic lives, denying them the human right to privacy and family life; and denying their children; dependents; family and friends the human right to privacy and family life. Ev 892 Joint Committee on the Draft Mental Bill: Evidence

To scapegoat the one in four people in this country who will at some point in their lives, experience mental distress (a quarter of the population) will not lead us toward the Recovery of individuals, organizations and communities; inclusion, human rights, expert patients and choosing health. Further there are enough powers within the 1983 mental health act. There is no need for an extension of statutory/police powers. Further seemingly there is almost an inverse correlation between “as some may say” lack of competence of the specialist mental illness trust’s and levels of coercion for the recipients of that very same system. What we need is support proportionate to the needs of individuals; including a decent, safe place to live; and drug treatments free from hideous side eVects; and staV (and services) who are measured on their level of helpfulness and not just upon “credentials”. Currently there is a gap between the vision for the future of mental health services and our reality. The whole idea of a vision is to pull us into the future. Implications for a recovery vision at a systems level will require belief in and strong commitment to recovery and the capacity to support recovery orientated ways of working within an environment (human and ﬁnancial) which enables recovery. (v) With support (from the outset and throughout) from the Fellow for Recovery NIMHE 02 to date; Sefton Recovery Group in successful cross platform collaboration with Southport College of Further Education and Seaforth Adult Education Centre have provided Wellness Toolbox sessions as part of our developing borough wide WRAP program. We have and continue to educate our local specialist mental health trust; PCT and community groups in the Recovery of individuals, organizations and communities; in 2003 we gained local agreement WRAP run alongside EVective Care Co-ordination. Recently our Local Implementation team signed up to Recovery the vision for the future of mental health services and we are now working to gain agreement for a total Recovery focus through our Local Strategic Partnership. In concluding, public opinion shapes government policy. We feel you would be receiving many more letters of the same; if the 1 in 4 people (their family and friends) who may directly be aVected by these proposals were aware of this Draft Mental Health Bill. We feel this Bill is nothing more or less than a knee jerk reaction to the “gutter press” as well as others. Additionally this is clearly the backdoor in as far as treating people; with a deemed mental illness on the “cheap” and sadly “nasty”.

Note: Similar submissions to the Committee’s inquiry we also received as DMH 188, DMH 357–364, DMH 366 and DMH 367. These submissions are not printed.

Memorandum from Sam Button (DMH 189)

1. Introduction 1.1.1 My name is Sam Button and not only do I live with Manic Depression and Post Traumatic Stress Disorder I am also a member of Mind Cymru, Mind Aberystwyth, Aberystwyth Manic Depression Fellowship, Ceredigion Mental Health Forum and Stiwdios GAP Studios (a local voluntary organisation that specialises in therapeutic art works). I am concerned about the Draft Mental Health Bill as not only will I be directly aVected by it but so will a large number of my friends, acquaintances and people that I care about. I wish this memorandum to be treated as evidence. 1.1.2 The subjects I am writing about are: 2. A right to services 3. Compulsion should be the last resort 4. Dangerousness and compulsion 5. Compulsion in the community 6. Advocates and nominated persons 7. Advance Directives 8. A right to aftercare 9. The tribunal system 10. Electroconvulsive Therapy (ECT) 11. Police powers Joint Committee on the Draft Mental Bill: Evidence Ev 893

2. Subject:ARight to Services 2.1.1 I received no help from my local Psychiatric Day Hospital during June 2003 and February 2004 when I became unwell. In February 2004 my CPN (Community Psychiatric Nurse) was on annual leave, my Psychosocial Interventions worker (also Ward Manager) was also on annual leave and my appointments with both had constantly been cancelled as well as those with my Consultant Psychiatrist. My Keyworker was also less than helpful to say the least. 2.1.2 In both years I requested help when I began to feel unwell, However, these requests were either ignored or not taken seriously due to no staV being available and my Keyworker being useless. 2.1.3 In February 2004 I had been calling the Crisis Line for a week before admission to hospital. I had been into the ward to deliver a spare copy of my Advance Directive as the Ward Manager (also my PSI worker) had not put a copy in the folder by the Crisis phone as he said he had. Due to the lack of help I received it ended in the CMHT (Community Mental Health Team) and Police attending my Father’s house because I was extremely ill. As soon as I saw this as an option to escape my Father and go onto the ward I willingly left and was taken to the ward in the Police car. 2.1.4 I still experience problems with appointment cancellations, especially with my Psychiatrist and PSI Worker. I am on monthly recall with the Psychiatrist as I am reducing my medication but have not had an appointment since 29 July 2004 as all others have been cancelled.

3. Subject:Compulsion Should be the Last Resort 3.1.1 Due to the lack of help I received in February 2004 I ended up being sectioned (Section 4, 72 hours) despite the fact I went into the ward voluntarily and was more than happy to stay. 3.1.2 Compulsion does not help and anyway I had already agreed to stay on the ward voluntarily. 3.1.3 Having drugs forced upon you, especially those that don’t suit you, is extremely unpleasant, distressing and often unnecessary. 3.1.4 In 2002 during a hypomanic episode I spent April–August in hospital and was forcibly given a number of drugs that did not suit me. The eVects ranged from making me feel increasingly angry and irritable (wanting to lash out but that’s not my style and I wouldn’t do it) to completely beyond suicidal. Part of this admission was under Section 3 (Compulsory Medication). 3.1.5 I do not suit a lot of medications, especially the newer anti-psychotics and anti-depressants.

4. Subject:Dangerousness and Compulsion 4.1.1 Not everyone is dangerous so this is reinforcing the prejudice and discrimination as well as stigmatisation of mental health service users. 4.1.2 Vulnerable people need help and should not be discouraged from seeking this help. 4.1.3 The lack of resources available to deal with perpetrators of violence currently denied help needs to be remedied. 4.1.4 Why lock up someone who has a mental health problem like for example depression, who presents no risk to others when wife beaters and dangerous drivers who do pose a danger to others are never detained preventively?

5. Subject:Compulsion in the Community 5.1.1 Appropriate help is needed, not compulsion. 5.1.2 The idea of compelling a person in the community to take speciﬁc medications, stop particular drugs, live at a certain place and attend a clinic on a weekly basis or face hospital detention if they refuse denies them their basic human rights and invades their privacy and family life. 5.1.3 People will become fearful/resentful towards their care workers and if they are in crisis where compulsion is the only option they should be given hospital care with medical and nursing staV on hand to help and monitor any adverse medication reactions. 5.1.4 If compulsion in the community is foisted upon us, many, many more people will commit suicide to escape it.

6. Subject:Advocates and Nominated Persons 6.1.1 I agree that better and earlier support from family, friends, carers and advocates is essential. Ev 894 Joint Committee on the Draft Mental Bill: Evidence

6.1.2 If no nearest relative or next of kin is available it is crucial that someone who both knows me (or any other patient) well and is trusted by me (or them) should be able to represent my (their) views and explain what is going on. 6.1.3 It is very frightening being unwell and this may be the only way to help some people feel calmer/ less distressed, and where possible if someone can be discharged to a safe, familiar place where they feel comfortable it is in their best interests.

7. Subject:Advance Directives 7.1.1 I have an Advance Statement so that the hospital knows which drugs do and do not suit me. This saves a lot of time and I feel more conﬁdent knowing that the care I have agreed with my Consultant Psychiatrist should be followed up during any admission. 7.1.2 If this is no longer listened to or adhered to I could end up in hospital for an unnecessarily prolonged period of time like in 2002, extremely unwell or at worst dead. 7.1.3 I have recently been advised that Ward staV do not feel that they have to follow the instructions given in an Advance Directive if the patient says otherwise while in hospital. Surely this denigrates the whole point of having an Advance Directive and is against the recently published NICE Guidelines. Advance Directives are written when a patient is in sound mind and is signed by the Consultant Psychiatrist as witness to this and agreement with the requests it contains.

8. Subject:ARight to Aftercare 8.1.1 I think priority should be given to getting people back into the community as soon as possible when they are well enough to leave hospital, so they have the time and support necessary to adapt and integrate back into their life as they wish it to be rebuilt in the community. 8.1.2 When trying to rebuild my life after an admission to hospital I need time and support to allow me to adapt. It takes time to re-establish a suitable routine that is not too stressful, then slowly build up my involvement in previous activities. 8.1.3 Care planning and regular reviews are important to ensure I (the patient) beneﬁt from the available services and have an appropriate and suitable level of activities throughout the week. 8.1.4 Section 117 aftercare meetings are an important opportunity to consult with the Consultant Psychiatrist, Social Worker (ASW) and Keyworker and ensure the care plan is eVective and appropriate.

9. Subject:The Tribunal System 9.1.1 Being able to request a Tribunal and be discharged from a Section is very important to many patients. 9.1.2 However, I have often seen incidences where people have been given Hearing dates after their Section ends. 9.1.3 It is extremely distressing having to request a Tribunal, let alone waiting for the Hearing. To be given a date after the Section expires is insulting and destroys people’s conﬁdence in the system.

10. Subject:Electroconvulsive Therapy (ECT) 10.1.1 I believe that ECT must never be given to anyone who has the capacity to make decisions for themselves about this antiquated treatment.

11. Subject:Police Powers 11.1.1 I think it is excessive to enable Police OYcers to enter a person’s home without a warrant. I appreciate why this is perceived as helpful but there are numerous examples of Police incompetence regarding treatment of people with mental health problems already. 11.1.2 Do we really need the added threat of being forcibly removed from the safety of our own homes when someone has probably inaccurately judged the situation? 11.1.3 If Police OYcers smashed my door down or even just walked in I feel I would be paralysed with fear which would only exacerbate the situation as I would not be able to speak up for myself either. November 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 895

Memorandum from T Basset (DMH 190) I should like to point out that Government policies have actually helped to create the climate for the increasing opposition to such things as Community Treatment Orders. When Frank Dobson launched the modernisation agenda in mental health in 1998, he promised a “root and branch” review to lead to substantial changes to mental health legislation. Shortly afterwards in 1999, The National Service Framework for Mental Health was published with a strong emphasis on social inclusion (Standard 1). Some years on, in this year—2004, we have seen the publication of the Social Exclusion Unit report on mental health together with various other related publications. Over these past five years the idea of social inclusion and its strong link to fighting discrimination has really taken root within mental health and other related services. This has been a great success, although clearly still much work needs to be done. One product of all this activity has been to strengthen the resolve and increase the numbers of those who do not wish to see an extension to compulsory powers in the community. It is quite simple. People think “How can we best fight stigma and discrimination in mental health and encourage social inclusion?” And then decide “We can all fight together to oppose socially exclusive legislative proposals.” So my message to the Government would be: “You have helped to create the climate in which it will be virtually impossible to bring in Community Treatment Orders. Well done, your policies on social inclusion are beginning to bear fruit.” October 2004

Memorandum from Depression Alliance Cymru (DMH 195) 1. Depression Alliance Cymru is the Wales Branch of Depression Alliance, although we are in the process of devolving to become an independent Welsh company and charity42. We seek to encourage self-help and mutual support, improve access to all appropriate services, reduce stigma and discrimination and promote research into the prevention, causes, identiﬁcation, assessment, treatment concordance and self- management of depression. 2. Depression Alliance Cymru works to promote mental health and quality of life and to assist in the prevention and relief of depression in Wales by: — Bringing together a wide range of stakeholders with an interest in depression and issues aVecting people aVected by depression, with a view to initiating positive change. — The development of self-help and self-management services and the provision of accurate and appropriate information about all aspects of treating and managing depression. — Raising awareness of depression among the Welsh people, and making information about depression readily available to all interested parties. — Ensuring that the voices of people aVected by depression are heard and acted on by decision makers at local, regional, national and UK level. — Promoting and conducting research into the causes, prevention and treatment of depression and disseminating the results of such research. 3. We look forward to a future in which depression is recognised, understood and acknowledged to be a common preventable and treatable condition, and where those aVected are provided with the information, support and understanding necessary for optimal work/life balance. A membership organisation with currently around 600 members and supporters in Wales, Depression Alliance Cymru acts as a conduit for information both from policy makers and service providers to users and carers, and from users and carers to policy makers and service providers.

Introduction Depression Alliance Cymru makes its response to the Joint Committee on the Draft Mental Health Bill against a background of historically under-resourced services within a socio-economic and cultural environment that serves to undermine mental health, and within a policy environment that prioritises acute health care over mental health promotion and early (preventative) interventions. Around 280,000 people in Wales are in receipt of treatment for depression and related mood disorders at any one time (Welsh Health Survey 1998). The overwhelming majority of these people are treated in primary care, using only antidepressant medication. In Wales there is much greater reliance on older, Tricyclic

42 Depression Alliance Cymru will be formally launched as an independent Welsh company and charity in April 2005. Ev 896 Joint Committee on the Draft Mental Bill: Evidence

antidepressants than in England—a particular concern as these drugs are considerably more toxic than SSRIs, and have provided suicidal individuals with the means to end their own lives. Other services, such as cognitive behavioural therapy, are limited to those with the most severe conditions, and are available only after waits of anything from six months to two years. Anecdotally, when Depression Alliance Cymru started operating in 1998, most of our calls were from newly diagnosed people wanting to know more about their condition. In the last two years, we have seen a significant increase in the number of severely ill individuals and/or their families who are being denied services despite being at significant risk of serious neglect, self-harm or suicide. We note that, according to the Home OYce (Safety First, 2001), that 75% of suicides each year are by people aVected by depression. We also have a concern with homicide-suicides in which people kill close relatives (often children) as part of their own suicide. We are concerned that with severely under-resourced services in Wales, it is hard to distinguish those areas where change to legislation is actually necessary from those where problems stem from shortages. This is a particular problem in Wales, where the National Service Framework for adult mental health has yet to be implemented. Depression Alliance Cymru believes that a new Mental Health Bill should not be enacted until mental health services have been properly resourced, so that we can more properly see where changes to legislation can be made. While we acknowledge that there will always be a case for detaining a relatively small number of people, whose illness has severely impaired their mental capacity, because they pose an immediate risk of suicide or serious self-harm, we do not believe that this is a proper response to national suicide figures (over 5,000 per year in England & Wales, ONS 26/6/02) that are significantly greater than the number of road deaths (over 3,500 per year in Great Britain, Times 25/6/04). Rather, we believe that mental health promotion and early intervention should be the basis of national policy and legislation. With this in mind, Depression Alliance Cymru finds nothing in this Draft Mental Health Bill 2004, which makes it worth giving support to. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? It is wholly unacceptable for Parliament to give Ministers the right to create, and alter at will, the Code of Practice setting out how the legislation should operate. Legislation relating to the possible indefinite detention and compulsion of UK citizens has to be governed by principles embedded in the legislation itself, so that Ministers would be obliged to return to Parliament in order to make further amendments. This is especially so in the case of this Bill because of the weakness of the few principles set out in the bill. “Involving” patients (s1 (3)(a)) is far from abiding by their wishes unless they lack capacity and there is compelling medical reason to follow an alternative course—one might argue that a pig is “involved” in breakfast, but that it is hardly a guarantee of its best interests. The issue here should be mental capacity— a patient with capacity must have the absolute right to agree or refuse treatment, a patient with impaired capacity should still have the right to refuse or agree treatment, with practitioners being obliged to take all necessary steps to ascertain his or her wishes, and with medical necessity being the only reason for not acceding to the patient’s wishes. “Involvement” is simply inadequate. Depression Alliance Cymru is further concerned with clauses s l(4), s l(6) and s l(7) that seem to disapply the code of practice and principles from unspecified persons, cases, or on grounds of impracticality. We are also concerned that an apparent requirement to consult over the code of practice s l(8) is immediately (s 1(9) and s 1(10))overturned. We read the government’s failure to have produced a draft code of practice to accompany the Bill as evidence of confusion within the Department of Health as to how the legislation should operate. Without such a draft code of practice, we believe it would be irresponsible for Parliament to pass this Bill into law. Is the definition of Mental Disorder appropriate and unambiguous? Are the conditions for treatment and care under compulsion suYciently stringent? Are the provisions for assessment and treatment in the Community adequate and suYcient? We note that there has been a 100% increase over the last decade in the number of people detained under the current Mental Health Act in Wales (Royal College of Psychiatrists 2002). We note that the only trend that correlates to this is a growing public anxiety about risk in general, and about the risk of stranger-attacks by people with mental illness. We are concerned that many of the 12,000 or so “informal” patients within the Welsh mental hospital system fall within the definition of mental disorder and meet the criteria for treatment under the draft bill 2004, and would become “formal” patients if they withdrew their consent to treatment. Depression Alliance Cymru takes as read that the intention of any mental health legislation must be to limit the use of compulsion to the smallest number of people. We do not believe that this is achieved in this Bill. Indeed, we are concerned that if this Bill were to be accompanied by increased resourcing of acute mental health care in Wales, we would see a dramatic increase in the number of people subject to compulsion. Joint Committee on the Draft Mental Bill: Evidence Ev 897

Depression Alliance Cymru believes that the broad definition of mental disorder would have to be accompanied by a series of exclusions that, in and of themselves, could not be treated as evidence of a mental disorder. These would have to include: — Religious belief and activity — Political belief and activity — Cultural views and behaviours — Sexual practice and/or orientation — Criminal or antisocial behaviour — Drug/alcohol abuse With these exclusions in place, a broad definition of mental disorder is acceptable provided that the conditions for compulsion are narrow. Unfortunately, in this Bill they are not. The only realistic restriction on compulsion is in 9(4) and 9(5), because treatment is now defined so broadly as to stretch credibility ı anyone with mild depression who could benefit by an anxiety management course would meet the conditions of 9(1) and 9(2). 9(5) eVectively allows patients to volunteer to be compelled. However, since, in practice, volunteering is done in the knowledge that a failure to volunteer will result in compulsion, it is hardly a restriction. Were are concerned that “harm to others” (s9(4)(b)) is potentially very broad, and may result in compulsion in the community (non-resident orders) operating as a kind of mental health ASBO system that is about social control rather than appropriate treatment. If the government is proposing a public right to an ECHR Article 2 (right to life) protection, based on Osman v UK, then this should be explicit. That is, the clause should state that the person presents a real and imminent threat of homicide or serious physical assault to one or more persons. If the government intends to use the harm to others clause in ASBO terms, to proscribe antisocial behaviours, we believe this is an illegitimate use of mental health legislation. (although we have no objection to people experiencing mental distress who infringe criminal justice provisions being dealt with in the same way as an other member of the public). It is also worth noting here that a “harmful” person has no right to volunteer for treatment because of the exception in 9(7). This may well deter potentially dangerous individuals from seeking help at an early stage, and may result in more assaults and homicides of the kind that this law sets out to prevent. 9(4) appears to restrict the numbers subject to compulsion. It does not. It relies on psychiatric science being capable of identifying risk, when day-to-day practice shows that this is not possible. Similar conditions operate under the current Mental Health Act. However, the driver for compulsion is public perception of risk, not of risk itself, while the factor restricting compulsion remains the shortage of beds. Genuinely suicidal people are routinely turned away from hospital. Safety First (2001) found that 40% of suicides were by people with mental illness who were discharged as not being at risk within the seven days before their deaths. Depression Alliance Cymru believes, sadly, that the reason for this is that hospital authorities are more concerned about the hostile media coverage that accompanies stranger-homicides than by the muted media response to most suicides. Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? Probably not: simply broadening the definition of “mental disorder” and “treatment” is unlikely to prevent successful cases being brought under ECHR Articles 5 and 8. If Professor Appleby is to be believed, it is the mentally ill who need protecting from the public. If you have a mental illness, you are six times more likely to be the victim of homicide than the public at large! Homicides by people with mental illness (including those with alcohol problems) are less than 3% of all homicides. A growing proportion of these are suicide-homicides in which individuals kill nearest relatives as part of their own suicide. We see nothing in this draft bill that will improve this. While recognising that democratic governments have to be cognisant of public opinion, in a representative government, when the public are simply misled and ignorant, their leaders should be setting the record straight, not producing legislation that, in public protection terms, simply will not work. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? Are there any important omissions in the Bill? Depression Alliance Cymru does not accept the need for this Bill at this time. We note the almost unanimous opposition to the numerous variants of these proposals since 1998, and we remain unconvinced that there is a lack of mental health legislation in Wales. We believe that the issues that government is attempting to resolve using legislation are largely the product of historical under-resourcing of mental healthcare in Wales. We note that government has had to make alterations to the working of tribunals and to the “nearest relative” clauses within the current Act. However, we believe that these are better resolved by amending the 1983 Act rather than by sweeping change. Ev 898 Joint Committee on the Draft Mental Bill: Evidence

The first question here (if we accept the government’s view that the purpose of a new Mental Health Act should be to cut the numbers of homicides, suicides and assaults by people with mental health problems), is whether this legislation will result in a lowering of homicides, assaults and suicides by people with mental health problems. In the absence of adequate resources to fund modem mental health care in Wales, the most likely outcome of this legislation is almost all of the resources being channelled into managing the new system. The kind of preventative care, crisis interventions, assertive outreach etc services that act to prevent homicides, assaults and suicides on a daily basis will be removed from those who need them most. This, coupled to the natural desire on the part of patients to avoid a more coercive mental health system, will make things much worse. Depression Alliance Cymru believes that investment in mental health promotion, preventative early intervention services and appropriately funded aftercare promise a considerably better impact on homicide, suicide and self-harm than compulsion legislation based on risk that will most probably deter those most at risk from seeking help. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill? The proposed institutional framework is based on a managerialist approach to processes that will result in most of the mental healthcare resource being diverted away from non-compulsory treatment. We are particularly concerned with the proposal to disband the Mental Health Commission, and subsume its functions within the general, quality assurance functions of a new super Commission for Healthcare Audit and Inspection. The apparent justification for this move is that the government wishes to cut the number of health agencies and quangos; ie, the drive is to avoid being seen to be spending too much on bureaucracy, not to provide the best outcome for patients at risk of considerable coercive state powers. The Mental Health Commission, like so much else in mental healthcare, has suVered from a history of under-funding, and has many faults as a result. Nevertheless, its role is very diVerent to the quality assurance bodies being set up by the Department of Health, in that its role is to ensure that Mental Health Act legal standards are met and improved. As such, it is one of the few bodies that exists to protect patients from the arbitrary use of coercive state power (the new Tribunal cannot do this because it lacks an inspectorate, and because its powers are limited to either upholding or overruling the use of coercion). Given the extension of powers of compulsion, coupled to the large degree of power handed to the clinical supervisor over the Tribunal, the scope for abuses of power within the new proposals is even greater than that in the existing arrangements. With this in mind, rather than disbanding the Mental Health Commission, we should be strengthening its role and guarding its independence We are concerned that the proposed tribunal is only empowered to approve or overturn compulsion. AVording the “clinical supervisor” a veto over treatment and conditions of compulsion in the—community in the face of the wishes of patients and/or their carers aVords a degree of faith and trust in the judgement of the medical profession which should not be relied on in law—medical practitioners do not always have their patients’ interests at heart (eg, Shipman, Allitt, et al) and may, on occasion, display frightening feats of incompetence (see Dr Goel and Mr Roberts recent removal of the wrong kidney from a Welsh patient). The tribunal must be required to ascertain patients’ treatment preferences (including the use of advance directives), and must be empowered to overturn or amend the care plan put forward by the clinical supervisor. Without these safeguards, there is considerable scope for the lawful abuse of thousands of patients. We doubt whether resources exist in Wales to allow the institutional framework to operate in practice. We are particularly concerned about the eVects on mental health services provided to voluntary patients if this measure is not accompanied by significant increases in resources. Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, suYcient? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? The proposals to restrict the use of certain treatments appear, at first reading, to be a step forward. However, on careful reading of the clauses relating to ECT, we discover that in an “emergency”, ECT may be administered compulsorily in the face of a refusal from a mentally capable person. It is far from clear what government is thinking here. Although we are concerned that the “emergency” exclusion will lead to many more cases being defined as emergencies in order to force an unwanted treatment on a non- compliant patient. First, we have a real diYculty with the concept of a mental health “emergency”, since it would be extremely rare for a mental health condition to become so severe as to equate to a physical health emergency (perhaps a heart attack, stroke or serious accident), within which the patient retains mental capacity. Second, it is far from clear under what circumstances ECT would be a reasonable response to an “emergency”. In the case of a person who is at immediate risk of suicide, for example, removal to a place of safety and, possibly, sedation would be a more appropriate response than ECT. Joint Committee on the Draft Mental Bill: Evidence Ev 899

Again, this confusion seems to relate to the focus on risk/dangerousness rather than capacity. Quite simply, as with physical health care, if a patient has mental capacity, no matter how reckless the medical practitioners may believe their choice to be, if they choose to refuse a course of treatment, then that should be the end of the matter. Depression Alliance Cymru believes that patients with mental capacity should enjoy the same rights as patients with physical illness, and that the draft mental health bill should make clear to practitioners that if they use any treatment without the consent of a competent patient, they will be guilty of assault. Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practices right? Health, including mental health, is a devolved area of policy from the UK government to the National Assembly for Wales. The use of codes of practice and regulations within the draft bill has a particular resonance within Wales, because it through this mechanism that the current devolution settlement is achieved. It is widely believed within Wales that the Codes of Practice and regulations should be as broad as possible, to allow the National Assembly for Wales to use them to give legal force to its mental health strategies and National Service Frameworks. However, the result of using codes of practice and secondary legislation to allow devolution to operate is that far too much power within a very coercive piece of legislation is devolved to Ministers. This is seen to beneﬁt Wales, insofar as the current National Assembly for Wales takes a considerably more liberal approach to mental health care than does the UK government. However, none of us can know what the government after next will do. Given the broad deﬁnitions and lack of exclusions within the draft bill, there is considerable scope for a future Home Secretary, Secretary of State for Health or Welsh Assembly Government to use mental health law as a means of internment. This cannot be acceptable. A piece of legislation designed to allow for the detention of people who have committed no crime, and the compulsory treatment of competent patients against their will, it is wholly unacceptable that parliament allows this power to fall into the hands of individual Ministers. This may work to undermine devolution. However, Depression Alliance Cymru believes that the devolution settlement would be better served by disapplying those sections of the Bill where devolution is an issue, so that they only operate in England. A separate section of the Bill could then be used to enable the National Assembly for Wales to create its own “secondary” legislation within a clear set of principles established by Parliament.

Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? In short, no. Since the Mental Capacity Bill is still subject to amendment by Parliament, we cannot know what it will look like, or how, if at all, it will relate to the Draft Mental Health Bill. This said, we note that during the pre-legislative scrutiny of the Mental Capacity Bill, Ministers expressed their opposition to the provisions extending to those subject to the (current and future) Mental Health Act. We take this to mean that government wishes to reserve the right to treat people with mental illness against their will, even where they have mental capacity. This, we believe, amounts to state sponsored assault; not least because the usual reason for declining treatment concerns the side eVects and impact on quality of life of many of the drugs used for the treatment of mental illnesses. There is no reason why patients with mental illnesses who have capacity should not enjoy the same rights as those with physical illnesses. For this reason, Depression Alliance Cymru believes that patients with mental illnesses should, at a time when they have capacity, be able to make advance directives, and that these should be given the same legal force as those for physical illness in the Mental Capacity Bill.

Is the Draft Mental Health Bill in full compliance with the Human Rights Act? This will be a matter for case law. However, Depression Alliance Cymru sees scope for cases to be brought under ECHR Articles 2, 3, 5 and 8 if the Draft Bill is enacted as currently drafted. We do not see that simply changing the definitions for “mental disorder” and “treatment” would change the material basis of an improper detention. Nor do we believe that compulsion in the community would necessarily escape the definition of “imprisonment” in human rights terms. What are likely to be the human and fmancial resource implications of the draft bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill? The draft bill has been presented as if it were addressing a mental health vacuum. The state of mental health services (especially in Wales) does not seem to have figured highly. Nor has much account been made of the performance of existing services. Ev 900 Joint Committee on the Draft Mental Bill: Evidence

This is of concern because two, apparently paradoxical, phenomena may be occurring. First, we are witnessing shortages in just about every area of mental health care. Second, those mental health services that are available to voluntary patients may actually be highly eVective at preventing the problems of homicide, assault and suicide by people with mental illness, that government claims this legislations is required to address. The resources issue is a particular concern in Wales. It will be for English organisations to conﬁrm or deny the UK government’s assertion that new services created out of the English NSF will allow the draft bill to pass into law without severely impacting on services. In Wales, where the NSF has yet to move from the policy to the implementation phase, services are simply not available to prevent increased use of compulsion. But shortages of services do not necessarily equate to poor quality services. Depression Alliance Cymru has concerns that too many people are unable to access services at an early stage in the process of their illness. However, with one of two exceptions, mental healthcare services appear to be highly eVective in treating those who do receive them. The new proposals set up a series of new functions for mental health practitioners. They also change the relationship between therapist and patient from one of cooperation to one of coercion. Depression Alliance Cymru believes that these changes will alter the quality as well as the quantity of services available. That is, we believe that they will make the protective elements of mental health care (to prevent harm to patient and others) much harder to achieve. In other words, we believe that there is a real danger that the transfer of staV to new functions, coupled to the destructive eVect on therapeutic relationships, could result in more instances of harm to patients and/ or others. Depression Alliance Cymru has yet to see any convincing government analysis to the contrary. October 2004

Memorandum from Xpress Advocacy (DMH 197) Xpress Advocacy Service is a project working to the executive committee of South East Advocacy Projects, a registered charity No 1080679. Xpress is an independent and conﬁdential advocacy service for children and young people aged 8–21 years. Xpress has a contract with the local authority to provide independent advocacy and an independent visitor service to looked after children in East Sussex. We would like to make the following comments, however due to the time constraints regarding the consultation period of the Bill we have been limited in what we have been able to cover.

Definition The definition of mental disorder—“an impairment of or a disturbance on the functioning of the mind or brain resulting from any disability or disorder of the mind or brain.” The definition needs to be set against the conditions for compulsion. The conditions include the treatment of the “dangerous patient”; the distinction between the adult and young person’s, as a “dangerous patient” and “best interest” may be lost by the general public and the media. Because of the definition being so broad and the widening of treatment being both hospital and community based Xpress feels more young people could fall within the scope of compulsion under this bill.

Consent to Treatment Xpress is fully supportive that young people have the same rights as adults however is concerned that this is limited to 16–17 year olds regarding consenting and refusing treatment. Under 16 years a child or young person can only be treated if parental consent is given, this can also be obtained from any one who holds parental responsibility for the maximum of 28 days, thereon after treatment can only be authorised by a Mental Health Tribunal. Any disputes between parents and children regarding consent should become the Tribunals responsibility, this should help to eliminate all forms of abusive form parents and act as another safeguard.

Nominated Person Children and young people will have the right to an authorised Nominated person of their choice providing the person is suitable, they will also have the right to a specialist advocate and to challenge their treatment through the Mental Health Tribunal in the ﬁrst 28 days, only once, this seems extremely restrictive. It seems that it would be more beneﬁcial for the service user if the advocate and or the nominated person was appointed at the initial stage. Joint Committee on the Draft Mental Bill: Evidence Ev 901

Gaps There is a lack of continuity regarding Under 16’s within the legislation: — Children and young people have the right to refuse physical treatment via Gillick competency; there is no reference to this within the Bill. — Children Act 1989 gives the right of assessment regarding social need therefore this should be taken into consideration when assessing children and young people. — If Children and young people are detained under the Mental Health Act what happens to their education? There is no mention of: — Professionals working with children/young people being subject to CRB checks and should be children/young people specialists this should also include the specialist advocate. — Where children and young people have special requirements eg, language needs, learning disabilities, or physical disabilities; professionals should have access to specialist skills/tools. — Where the MHT (Mental Health Tribunal) is refusing children/young peoples wishes, there must be a rationale for the decision that is acceptable to the service user. Concerns that young people will feel deterred from seeking help re: depression, suicide, bullying and sexuality; they may feel due to the breath of he deﬁnition and the widening of treatment they will be held under the new Act and forced to take medication and could be detained indeﬁnitely. October 2004

Memoranda from J Simpson (DMH 198) Memorandum of evidence to the joint committee on the draft Mental Health Bill from service users and carers who work with the County Durham and Darlington Mental Health Service User and Carer Involvement Team. The involvement team held an event to go through some key factors within the Mental Health Bill and this is a summary of the main issues that arose. Firstly if a person is put under a mental health order will they be given a criminal record? Secondly how will be being detained eVect a persons beneﬁts under the new bill? Thirdly where do public protection registers ﬁt within the new bill? Finally service users and carers have a couple of queries regarding the consultation of the draft Mental Health Bill. Will you be looking at who the evidence has come from to understand diVerent stakeholders views and would it be possible to see a summary of this. Are the consultation periods of new bills usually this short as the County Durham and Darlington Mental Health Service User and Care forum only meet bi-monthly and therefore have not had the opportunity to give a more formal response. Thanks Jenny Simpson User Led Project Worker October 2004

Leeds Mental Health Teaching NHS Trust (DMH 199)

1. Summary Taken as a whole, the prevailing view in this submission is that the Draft Bill represents a qualified advance on its predecessor. Welcome changes have been made which address some of the serious concerns encountered in the first draft. Nevertheless there are significant and worrying flaws still apparent in the current draft. The Trust welcomes the opportunity of inviting the Joint Committee to consider these in the hope that the proposed legislation can be further shaped to ensure it is fit for purpose, and that it does not result in eVects not intended by Parliament.

2. Background Leeds Mental Health Teaching NHS Trust is a specialist provider of Mental Health and Learning Disability services. With some 2,500 staV and an annual budget of around £90 million, the Trust provides a wide range of services for all age groups except children and adolescents. Its core services are provided to the population of Leeds (some 720,000 in total), but the Trust is also involved in providing a range of specialist services throughout Yorkshire region and beyond. Ev 902 Joint Committee on the Draft Mental Bill: Evidence

3. Compilation of Response This evidence has been produced following consultation amongst mental health professionals and service users in the Trust, as well as formal presentation and discussion in the Trust Board. In view of the timescale for submission, it has not been possible to secure absolute consensus for all the views here expressed, but there is widespread agreement on the key points submitted.

4. The Response In respect of the specific questions posed by the Joint Committee, the response is as follows: 4.1 Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? There remains substantial and worrying ambiguity regarding the underpinning principles. This appears evident in relation to where the balance is intended to lie between (i) protecting individual rights as opposed to the public interest and (ii) respecting individual autonomy as against intervening in the face of capacitous refusal. So long as these principles remain ambiguous, it is diYcult to say whether they are appropriate and desirable, but on the face of it the balance in favour of public protection and also compulsion despite capacity appears both undesirable and unduly stigmatising. 4.2 Is the definition of Mental Disorder appropriate and unambiguous? Are the conditions for treatment and care under compulsion suYciently stringent? Are the provisions for assessment and treatment in the Community adequate and suYcient? 4.2.1 It is noted that the definition and “relevant conditions” have changed from the first draft, and the move towards introducing a “treatability” equivalent is welcome. Nevertheless concerns remain regarding how the definition and conditions will be interpreted and the undesirable eVect this may have on the threshold for compulsion. 4.2.2 Firstly, the definition as set out in clause 2 could be taken to include individuals with neurological conditions (such as Multiple Sclerosis or Parkinson’s Disease) who have no evidence of mental disorder as currently construed. This appears perverse and undesirable.

Recommendation 1 The introduction of a test of “impaired decision making” into either the deﬁnition or the relevant conditions would be one mechanism for addressing this problem, as well as reﬁning the scope of the Bill to ensure it is consistent with its intended purpose.

4.2.3 Secondly, the third “relevant condition” (clause 9, 4 (a) ii) would have the eVect of unduly restricting the applicability of the Bill, specifically where it may properly be needed to treat those with moderate illness for whom compulsion may be both necessary and in their best interests. 4.2.4 Thirdly, the fifth condition (clause 9, 6) goes some way to introducing the notion of treatability. As worded, however, it appears open to wide interpretation and it fails to specify any test of either therapeutic benefit or “best interests”. Consequently this may have the perverse and unintended eVect of substantially lowering the threshold of compulsion, thereby significantly increasing the numbers subject to it. In turn this could dissuade people with mental health problems from seeking necessary treatment. A local view amongst service users is that: “A number of our members know that they will be reluctant to contact mental health services at all because of the increased fear of intrusion and coercion” 4.2.5 Finally, clause 9,7 has the eVect (in the circumstances described) of dictating that compulsion must be applied despite compliance on the part of the service user. This flies in the face of the principle of using the least restrictive option, set out not least in Part 1 of the Draft Bill itself (clause 1 (3) c). This is ethically questionable, and would further serve to alienate potential service users.

Recommendation 2 The deﬁnition and relevant conditions should be reworked to address the points above, taking into account the desirability of using the minimum restriction necessary, as well as incorporating some explicit requirement for therapeutic beneﬁt.

4.3 Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? Ultimately this is a matter for Parliament to decide, but from the above it can be seen that there is suYcient ambiguity in the Draft Bill to create uncertainty about where this balance would actually or intentionally lie. This could well lead to eVects not intended by Parliament. Joint Committee on the Draft Mental Bill: Evidence Ev 903

4.4 Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient and clear? Are there any important omissions in the Bill? Covered in responses to other questions. 4.5 Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill? The transfer of responsibilities from the Mental Health Act Commission to the Healthcare Commission makes sense in the interests of integrating its work into the wider regulatory framework for health services. The Joint Committee may, however, wish to seek reassurance that regulatory arrangements will be appropriately streamlined without compromising the focus on protecting the rights of those subject to compulsion. The expanded remit of Mental Health Tribunals (especially in respect of the being the “gateway” to treatment orders) is welcomed in so far as this protects patients’ interests. The workload and resource eVects, however, are referred to below. 4.6 Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, suYcient? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? No comments oVered. 4.7 Is the balance struck between what has been included on the face of the draft bill and what goes into Regulations and Code of Practices right? Matters of significant substance and concern are left to be dealt with in Regulations. These include the question of what powers the Tribunals may reserve to themselves, and what rules will govern the circumstances in which compulsion in the community may be applied (“non-resident orders”). Once again the answers to such questions may have a major eVect on the impact and applicability of the legislation, suggesting that more should appear on the face of the Draft Bill to guard against unintended and undesirable consequences. 4.8 Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? The Mental Capacity Bill is still proceeding through Parliament. Until it achieves its final form it appears diYcult to judge how well the two Bills are integrated. That they should be so integrated, however, is beyond question, not least in light of the recent European Court of Human Rights Judgement concerning the “Bournewood” case. 4.9 Is the Draft Mental Health Bill in full compliance with the Human Rights Act? This is a matter for legal advice, but on the face of it the Draft Bill in its current format has features where legal challenge could be envisaged. 4.10 What are likely to be the human and financial resource implications of the draft bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill? As a provider of Mental Health services, the Trust finds these questions of major concern. The key issues are as follows: 4.10.1 The fact that “Approved Mental Health Professionals” and “Clinical Supervisors” can be drawn from a wider range of professional groups is in principle welcomed. More attention must be given, however, to ensuring that such practitioners have the requisite competencies to go with their new roles and responsibilities. This in turn will have significant training and hence resource implications. 4.10.2 The establishment of Independent Mental Health Act Advocates is welcomed though there is concern that the projected numbers may be insuYcient to accommodate the work required in this important role. 4.10.3 It is noted that work has been done to assess the possible workforce and resource requirements stemming from the Draft Bill. From the available documentation, however, that assessment appears to lack rigour and to be based on potentially flawed assumptions. 4.10.4 Foremost amongst these is the fact that the calculations (“Explanatory Notes” p134) assume that there will be no overall increase in the numbers subject to compulsion. From comments made above, it can be seen that this is a distinctly risky assumption. 4.10.5 Even if that assumption is well founded, however, concerns remain about how the workforce requirements as stated might be delivered. For instance, the projections suggest an additional 130 psychiatrists (wte) will be needed. Currently Consultant vacancies in the UK are somewhere between 12 and 15% (ca 400 psychiatrists). There is a danger that the Draft Bill would have the undesirable and possibly dangerous eVect of exacerbating shortages, consequently drawing psychiatrists away from providing direct clinical care. This would pervert the very principles underlying the need to modernise mental health legislation in the first place. Similar observations apply to other professional groups. Ev 904 Joint Committee on the Draft Mental Bill: Evidence

Recommendation 3 Steps should be taken to ensure that the workforce assumptions connected with the Draft Bill are fully determined and the risks associated with them comprehensively understood. Following that, work should be done to identify the full resource requirements, and means found to deliver them in such a way that it can be guaranteed that resource is not diverted away from direct clinical care.

October 2004

Memorandum from a group of mental health service users and voluntary sector mental health workers in the London Boroughs of Tower Hamlets and Newham (DMH 201)

1. Introduction 1.1 We are group of 10 mental health service users in the London Boroughs of Tower Hamlets and Newham and four members of staV at Mind in Tower Hamlets, a voluntary sector community mental health service provider. We met to discuss the draft mental health bill on 25 October 2004. Most of those present had used statutory mental health services themselves and many had at sometime been detained under the Mental Health Act 1983. 1.2 Subjects addressed in this document are: compulsory treatment in the community; the deﬁnition of mental disorder; aftercare; advance directives; and independent mental health advocacy.

2. Compulsory Treatment in the Community 2.1 Care and support in the community is absolutely crucial for recovery and rehabilitation. People need to be educated about what is wrong with them and fully informed about their treatment choices. One member of this group discovered by chance, eight months after discharge from hospital that she had been diagnosed schizophrenic. Only by being fully informed can service users make real choices about their care and treatment. 2.2 In relation to this part of the draft bill we would like to raise the following points: — We feel that forcing people to take tablets when they are relatively well takes away their freedom and choice. A person can decline treatment for a physical health problem even if they might die as a result, as long as the person has the capacity to make that decision. The same right should apply to a person with a mental health problem who has capacity. It seems totally wrong that these diVerences should apply. — It seems as though service users may be forced to take medication when they would prefer to try adiVerent type of treatment such as homeopathy or aromatherapy. Some treatments such as psychotherapy or counselling absolutely require trust and co-operation between professional and service user, compulsion in these circumstances would render the treatment ineVective. The medical model approach to mental health is completely dominant in Tower Hamlets and psychiatrists rarely take a holistic approach to a patient. It is possible that the new Act will limit treatment options to purely medical ones and not allow the user the choice of anything diVerent. Some medications can make the user feel “terrible”, ‘like a zombie’ and very isolated. It is much more therapeutic for the service user to be able negotiate with a psychiatrist over medication and other treatment without the psychiatrist having the power of compulsion. — The draft bill takes no account of the state of services locally and what choices are available — In the draft bill the right to appeal is not available until the end of the assessment phase; we think this should be earlier. — It is not clear how compulsory treatment in the community could be enforced. This would seem to be unrealistic as well as non-therapeutic. — On a more positive note we would welcome the fact that Tribunals will see a care and treatment plan for a service user and have to power to agree to it or not. We would also hope that if an agreed treatment were not to be provided by statutory service then the service user would be able to go back to the Tribunal to question this. We would want the treatment provider to have a duty to provide what the Tribunal has agreed and that there would be some way for the user to enforce this. In Tower Hamlets, the Care Programme Approach is not adequately implemented and many users never see a care plan and when they do, they do not always receive what is stated in their care plan. If this were to be the case we would welcome this clause. — There is an important need for service users to develop and keep support networks. Social networks, housing and environmental factors have a big impact on mental, as much as medication. We would want care and treatment plans to take account of this. Joint Committee on the Draft Mental Bill: Evidence Ev 905

— A panel of service users could be trained and supported to sit on Tribunal panels as lay members. 2.3 Overall we would like to see compulsory treatment in the community removed from the bill. We would also like to see a real attempt made to ensure that service users are fully informed of treatment options, have access to mutually agreed treatments and that care plans which are agreed by Tribunals can be enforced by service users.

3. Definition of Mental Disorder 3.1 The definition of mental disorder in the bill determines who will be subject to the Act. This definition is much broader that that of the current 1983 Act. 3.2 We are concerned that this is too broad a definition covering many more people than the current Act. This is potentially open to abuse and could see many more people being brought under its umbrella than previously. We are worried that the new Act will be used more broadly than the current Act and this will not benefit mental health service users. 3.3 We ask the committee to look again at the definition of mental disorder and to narrow its focus.

4. Limitation for Aftercare 4.1 Aftercare for those who have been detained is absolutely crucial. 4.2 We are concerned that limiting aftercare to six weeks is too short and does not take account of individual diVerences. Some people need much more support than others. Some people have more support from friends and family than other people. 4.3 This time period for aftercare should be extended and take into account people’s needs.

5. Advance Directives 5.1 When they are well many people are able to reﬂect upon their previous experiences and identify what has and what has not been beneﬁcial to their care and treatment. Advance directives are a very useful way for service users to record their wishes for their future treatment when they are unwell. Service users are experts by experience and want to share this with those responsible for their care and treatment. 5.2 The draft bill does not seem to give much weight to advance directives. 5.3 We feel that advance directives are very important and should be taken seriously and valued by those considering the treatment of a detained patient. This should be part of the new Act and professionals should be required to seriously consider user’s wishes as outlined in their advance directive and disregard these only if they can prove good reason to. There should also be more publicity about advance directives so that users can prepare for future ill-health, when they are well.

6. Independent Mental Health Advocacy 6.1 It is very important to have access to independent mental health advocacy. 6.2 The statutory right to independent mental health advocacy is welcomed by service users. However, there are concerns as to how many advocates will be provided and how well resourced they will be. 6.3 Advocates will need to be totally independent of statutory services and fully resourced so that they will be available to all subject to the Act when needed including evenings and weekends. The statutory right to advocacy should begin from the examination phase. Users would like to see an advocate present at all Tribunals and in the absence of an advocate the Tribunal should not go ahead. Finally, we feel that it is essential for the Parliamentary Scrutiny Committee to meet face to face with service users and hear their views directly. Representatives from this group would like to meet with the committee. October 2004

Memorandum from J Cave (DMH 202)

1. Make Voluntary Treatment Legal Right for All I have been denied services I need and subjected to bullying to try and force me to go back to services that admitted making mistakes and errors in my treatment and care and to take anti-depressants instead of have the less invasive eVective psychotherapy I am recommended for. I have been denied access to CPN, social work, and help to return to employment having got treatment out of area after struggling for it for years. Ev 906 Joint Committee on the Draft Mental Bill: Evidence

I left a theraputic community I voluntarily went to due to others illegal drug taking on the premises. I was pressured to return. I then saw a therapist in another county who wrote reports to medical director who had blocked my getting therapy—she did so against my wishes I had medical director removed using human rights act. Then left therapist as she had abused my human rights. The medical director was then cited in relation to psychiatrist who was struck oV for having sex with a patient—the medical director had told the woman patient involved that she couldn’t make a complaint as the psychiatrist had moved to another area. My out of county psychiatrist retired I was not told. A replacement has not been found. It’s now over 9.75 years since I ﬁrst voluntarily saw a psychiatrist for problems that research shows could be fully ameliorated with intensive psychotherapy within two years. Cost in quality of life I don’t know how to put a cost on that cost in lost earnings about £1.2 million and includes cost in taxes and national insurance of over £350,000, I am a graduate. The cost to no graduates and the country would be a bit over half of these ﬁgures based on national average earnings.

2. Compulsion I am 100% against compulsion in the community it is killers (NHS kills 40,000 and disables approximately 250,000 a year) locking up and or removing the freedom of people who might do something based on an unscientific unproven basis and criteria (people with experience of mental distress kill about 40 a year a factor of 1,000 less than the NHS kills). Based on NHS figures. The Bill is based on the prejudice that people with mental health problems present a risk to others. It seeks to ensure that a person, particularly with a personality disorder, can be forcibly admitted to hospital, even though the treatment or therapy oVered might not have a beneficial eVect on their health. I object as they: — Reinforce the prejudice that all people with mental health problems are dangerous and, so, stigmatise all service users. — Will drive vulnerable people away from seeking help when they need it. — Are unnecessary. People working in clinical mental health care can, and do, take action under existing law to deal with the situation once they are aware of a genuine risk of this kind. — Do not deal with a more significant problem: the denial of help to some perpetrators of violence who are refused help prior to the crisis due to lack of resources. — Are discriminatory. There is no preventive detention of many people who put others at risk, such as dangerous drivers, or people who abuse their partners, even when risks of oVending or repeat oVending is likely.

Compulsion in the community This Bill, would make it harder for a patient to get a change in treatment if the psychiatrist disagrees. Mind believes that: — If people are in a crisis where compulsion is the only option for them, they need to be in hospital where they will be safe, and where there will be medical and nursing staV to help, for instance, to monitor the eVects of medication and treat adverse reactions quickly. — Compulsion in the home is disruptive and can interfere with people’s domestic lives, denying them the human right to privacy and family life. — Community nurses and psychiatrists do not want or need to police their clients in this way. It will damage trust in their relationships with their clients.

3. Advocates and Nominated Persons A person in crisis, put into hospital, needs several things from the start. They need a friend or advocate who can help to explain what is happening, to negotiate with the medical team and possibly get agreement to the course of action that is best for the patient. Such a person should be someone trusted by the patient and who knows them well. It may be a carer, a friend, a member of the family or a professional advocate. They need that person to be able to have a say in what will happen, including a right to object to the patient being put under compulsion and to be able to discharge a person under compulsion. Advocacy must be provided from initial contact with services including in primary care.

4. Advance Directives Is a most helpful ways to give a service user some control over what happens to him or her in a crisis is to participate fully in treatment decisions and, in particular, decide in advance what should happen in a crisis. This can be achieved by advance directive—a statement of wishes and instructions for what should and should not happen, at a time when the person is not well enough to express their wishes and make Joint Committee on the Draft Mental Bill: Evidence Ev 907

decisions for themselves. In particular, it would include what treatment should and should not be given. Legally, a statement of the treatment that should not be given must be followed in most circumstances— right to this must be retained even under under compulsion. An important study has shown that use of advance decision making by established service users, in cooperation with the clinical team, cut compulsory admissions for patients with severe mental illness over a two year period.

5. Right to Aftercare The health services and social care services are failing to provide the least invasive intervention for huge numbers of people and a right to treatment is needed and to free treatment which must include therapy support to return to work and social support and free prescriptions and free access to exercise, gym membership (drug addicts get it so should we). The Bill allows for a further compulsory hospital treatment order to be made in some circumstances when care service provision is not ready. This will help disguise the lack of services that support recovery and prevent further admissions. It will also result in unjustiﬁable compulsory detention just because services are not being provided. The right to free aftercare services for people that have been in hospital under compulsory powers must be kept without time limit and include housing, and community care services. Someone trying to rebuild their life may need several months or even a year or two in special, supported living arrangements before moving on to independent accommodation. The proposed six weeks is a negligible period of time for the type of adjustment that many long term inpatients must make on discharge. It is an arbitrary period and takes important judgements away from service users and those planning their social care.

6. Tribunals At present a person can be discharged from compulsion by the Responsible Medical OYcer or by their nearest relative or by the Mental Health Review Tribunal. Under the proposed system, the new Mental Health Tribunal will have a greater say in when and whether a person can be discharged. We are aware that, at present, there can be real delays with getting a hearing at tribunal. We think the Committee should be aware of this and of the distress this causes to patients.

7. Electroconvulsive Therapy ECT should be abolished. It has already been abolished in some other european countries. I consider it torture and to be cruel inhumane and degrading treatment. ECT lacks suYcient research evidence to justify the claims made for its eYcacy and that it is used much wider range of cases and situations than any research indicates it is useful for. The new law does allow ECT to be given against a person’s consent in an emergency. Mind believes that ECT must never be given to a person who has the capacity to make his or her own decisions about this controversial treatment and I agree with mind on that.

8. Police Powers These powers are excess and wrong. They form a breech of human rights due to lack of: provisions around assessment, provision of right to Treatment and choice of treatment provision of right of access to advocacy from ﬁrst contact with mental health services including at primary care level. I believe that they contain within them the substantial probability of abuse by prejudiced and discriminatory members of mental health services and the public to victimise and abuse people with experience of mental distress. I believe that it is wrong to detain people with experience of mental distress in a police cell as a place of safety it is degrading and abusive. October 2004

Memorandum from Hambleton and Richmondshire Primary Care Trust (DMH 203) I have set out below the written evidence for consideration by the joint committee from the service users and clinicians associated with the mental health services provided by Hambleton and Richmondshire Primary Care Trust. It should be recognised that the 2004 Draft Mental Health Bill has undergone some changes following the 2002 consultation. However, it is diYcult to ascertain what changes have been made in response to the consultation, as the responses have never been published. Also it does not approach the guiding principles proposed by Professor Genevra Richardson’s original work. Ev 908 Joint Committee on the Draft Mental Bill: Evidence

Theme 1—Unambiguous Basic Principles — Concern that the Bill is more aimed at societies protection than treatment of patients. — Concern that the Bill increases stigma by emphasising dangerousness.

Theme 2—Definition of Mental Disorder — Deﬁnition of mental disorder considered too broad, as the current exclusions of promiscuity, immoral conduct, sexual deviancy, or dependence on alcohol or drugs are not included.

Theme 3—Balance between Public Protection and Individual Human Rights — “Treatability test” disappears and is replaced by “appropriate medical treatment is available”. — Medical treatment definition widened to include education or work training. — Because of this widening of the definition clinicians may be pressurised by public safety concerns to hold people with no mental illness, but may fit the wider definitions of mental disorder and medical treatment. — The Bill does not identify who might detain on short-term powers. — The Bill allows one doctor to admit a patient if they determine that an assessment is urgently required. — The reliance on regulation rather than statute allows changes to be made to the Bill without return to Parliament.

Theme 4—Proposals Workable — A complex Bill that will lead to further clariﬁcation being sought by legal challenges. — Shortage of professionals to make the Bill workable. — Greater requirement for Tribunals that already are diYcult to deliver. — Greater requirement upon production of reports and care plans in a short time frame potentially before assessments are completed. — Lack of accommodation in hospitals for a greater number of tribunals.

Theme 5—Institutional Framework — It remains to be seen whether the current problems with adequate staYng for tribunals can be overcome for the greatly increased number of tribunals proposed which may lead to a centralisation of tribunals as in employment tribunals making attendance by patients and staV diYcult.

Theme 6—Safeguards — The Bill removes the right of patients who do not consent to treatment to an independent second opinion. — Definition of hospital setting has not been made so unclear where medication can be given. — Clarification is required over medication without consent in peoples homes. — Power to regulate ECT stays with Secretary of State not statute. — Allows patients to select own nominated person rather than have nearest relative selected for them. — Cancels powers of nearest relative to object to admission and to request discharge. — Provides for specific advocacy, but only after section applied. — Removes payment for aftercare, currently section 117. — Reduces the powers of Hospital Managers. — Possible loss of independence when all three examinations are performed by employees of one authority. — Possible loss of social care view when approved social worker becomes an approved health professional.

Theme 7—Statute versus Regulation and Code of Practice —DiYcult to comment on as the regulations have not been produced. — Easier to change regulations than to change the new Bill. Joint Committee on the Draft Mental Bill: Evidence Ev 909

Theme 8—Integrated with Mental Capacity Bill — Apparently no mention of the Mental Capacity Bill. — “Bournewood” decision by European Court requires clarity on the usage of Mental Capacity Bill or Mental Health Bill.

Theme 9—Compliance with Human Rights Act — Our legal advice is that the Bill is not in full compliance with the Human Rights Act, particularly sections 3 and 5, and this will lead to legal challenges and possible litigation claims.

Theme 10—Human and Financial Resources Implications — There are major workload implications in the Bill and therefore financial and human resources implications. — Estimated that double the Mental Health Act administrative staV will be required. — The tribunals will require an increase of legal and consultant staV that are currently not available and both have nation-wide vacancies in this field. — The change of Approved Mental Health Workers to Approved Health Professional and Responsible Medical OYcer to Clinical Supervisor may spread the responsibility across other professions. However, other professions may not wish to accept those responsibilities and would also require extensive training. — Training at all levels will be required, although extent remains unclear without having seen the regulations and code of practice. — New specific advocacy will require funding, training and recruitment. — The tribunals will require support arrangements when visiting hospital sites in terms of parking, accommodation, administration that are not available currently. The general concern of the service users and clinicians mainly relate to the approach the bill has taken with regard to dangerousness and the resultant impact on stigma, the over inclusivity of definitions both for the people that may be held under the bill and the wider understanding of treatment, and lastly the reliance on regulation rather than statute for important sections of the bill. This leads service users and clinicians to regard the bill as one for social control rather than treatment. Paul Farrimond Director Mental Health and Integration October 2004

Memorandum from W Aldred (DMH 204) I was sectioned in March 2000 and since that time I have been challenging the incorrect information which has been entered into my medical record. Despite being supported by my GP, my complaint is still not resolved and is, at the time of writing, under consideration by an Independent Review Panel. I would be pleased to provide additional information to confirm the sincerity of this letter. Acting on false allegations made to the police by an unidentified person, the assessing doctors diagnosed me as potentially violent and I was admitted to the secure unit of the Warneford hospital. The police records confirm that I was in no way violent during my arrest and that I have no police record. The hospital record shows that I became angry and aggressive after being subjected to enforced medication and the psychiatric reports go on to record my denial of wrong doing as proof of mental illness. The Trust Directors have now acknowledged that the account of my detention, given in the medical record in preference to my own, is not supported by evidence or named witness and a partial correction has now been entered into my notes. However my experiences demonstrate that information is entered into a patient’s medical record without the safeguards which are aVorded in a court of law and this appears to violate basic principals of the Data Protection Act. The directors maintain that the diagnoses based on this incorrect information are valid and confirmed by ward observations, but I have received no response to my written request for details of these observations. In the course of pursuing my complaint, I have made a number of suggestions to the trust directors for service improvement. I can see no reason why a sane person should deny these basic rights to a patient, there is simply no need to assume the worst and act accordingly: (a) Voluntary admission should always be oVered and only its refusal need result in formal admission procedures. Police could be issued with simple forms explaining the detainee’s situation and Ev 910 Joint Committee on the Draft Mental Bill: Evidence

oVering voluntary admission. This would save the cost and inconvenience of calling out doctors; protect the doctors from potentially dangerous situations; help determine the level of capacity; and reduce the number of compulsory admissions. (b) Oral medication should always be oVered and only its refusal should justify enforced medication. This would also help to determine the level of capacity and would avoid unnecessary trauma. A video camera in the admission area would be consistent with similar protection used by the police in interview rooms. October 2004

Memorandum from Eating Disorders Association (EDA) (DMH 205)

I am writing on behalf of Eating Disorders Association (EDA), the leading UK wide charity providing information, help and support for people aVected by eating disorders, with our comments on the Draft Mental Health Bill 2004. In this submission we have restricted our comments to those whose interests we represent. Generally EDA welcomes the changes from both the existing legislation and the previous draft of the Bill published in 2002. However there are specific issues that we have detailed below which if addressed will considerably improve the prospects for recovery for people with eating disorders. Specifically we have five concerns:

1. Part 2, Chapter 1Section 9—Examination,Assessment and Treatment

There is a severe shortage of specialist eating disorder services throughout the UK meaning a patient living outside a major city is unlikely to have access to appropriate medical treatment within a hundred miles or so from their home. Studies have shown that general psychiatric treatment for an eating disorder (although local) is often ineVective and can lead to an enduring condition with long term consequences to physical and mental health. Treatment also needs to be timely. To delay commencement of treatment for someone with an eating disorder, who is motivated and ready to engage, can seriously and in many cases, permanently aVect treatment outcomes. Inappropriate treatment and a lack of understanding of these complex and life threatening conditions can also result in poor recovery rates and in severe cases, precipitous loss of life.

2. Section 31 Care plans—NICE Guidelines for the Treatment of Eating Disorders

In January 2004 The National Institute for Clinical Excellence published the clinical guideline for the treatment of eating disorders. It is vitally important that these guidelines and the Draft Mental Health Act are mutually supportive and do not conﬂict with, or constrain clinical judgement. We therefore propose that all sections referring to care plans include reference to any appropriate NICE guideline, for example—that care plans should be drawn up after consideration of and in line with the NICE guideline recommendations, where such guidelines exist.

3. Care Plans:Supplementary Section 32, 210 etc Due to the nature of an eating disorder, the patient is often in strong denial and unwilling to undertake treatment. It is vitally important that carers are kept informed about care plans, in order to take an active role in supporting them, without compromising patient conﬁdentiality. This is particularly important for subsequent recovery beyond the period of treatment under the act when the patient returns to their carer. This is particularly true in the case of patients during adolescence.

4. Free Care Services After Discharge.Section 68 Eating disorders commonly last over 60 months. In the light of this extended need for care, the provision in section 68 of only six weeks free care services after discharge is clearly impractical and unrealistic. With eating disorder patients there is a substantially increased risk of suicide during the transition from inpatient to outpatient or discharge. The NICE Guideline recommends at least six months outpatient care. Joint Committee on the Draft Mental Bill: Evidence Ev 911

5. Investigations into Circumstances of Deaths.Section 262 Section 263 (3) says the CHAI may investigate the circumstances of a death. We feel it is essential that every death is investigated in order to ensure that any mistakes in treatment are not repeated and that lessons which can save lives in the future are learned. We welcome this opportunity to submit our comments and concerns. We are happy to discuss or comment further on any of these issues, and we would be most grateful to be kept informed of future developments regarding the Draft Mental Health Act including any proposed or subsequent amendments. Further information about eating disorders and Eating Disorders Association can be found on the EDA website at www.edauk.com October 2004

Memorandum from the Independent Police Complaints Commission (DMH 206) 1. The Independent Police Complaints Commission (IPCC) has been established under the Police Reform Act 2002 and assumed its statutory powers on 1 April 2004 when it replaced the Police Complaints Authority (PCA). The scope, powers and duties of the Commission diVer significantly from those of the PCA and, with substantially greater resources available to us, the Commissioners and staV now operate from four regional oYces covering England and Wales. We have investigative powers and staV employed as investigators which are already being used in a number of significant and high-profile investigations such as into police fatal shootings and deaths in custody. In addition, the Commission is required under the Police Reform Act to secure and maintain public confidence in the system of arrangements for dealing with public complaints against police and the investigation of police misconduct. 2. Accordingly, the Commission must be alive to issues that aVect general policing and from our early experience the importance of mental health as an issue aVecting policing has been widely noted. To reflect this the Commission has made this topic area one of its main priorities for policy development and inter- agency liaison and this topic is likely, also, to feature in the Research and Publications programme of the Commission during its initial years. We draw your attention to the research undertaken by the PCA prior to its abolition, which had begun consistently to draw attention to the presence of those with mental health problems amongst the “at risk” groups in contact with the police service whose behaviour and needs can present some of the greatest challenges. We wish to make the following observations upon the contents of the Government’s Draft Mental Health Bill.

3. Impact of New Powers of Compulsion on Police Contact with the Public In its philosophy and speciﬁc powers, the Mental Health Bill envisages the greater use of compulsory powers in relation to patients living in the community. Conventionally, compulsion in psychiatric treatment has been restricted to institutional care and nursing staV are neither trained for nor expect to use forcible treatment methods with regard to patients living in the community. Accordingly, the police only become drawn to assist in the apprehension and forcible conveyance of those subject to powers and requiring compulsory treatment in an institutional setting. Where the threshold for admission is serious mental disorder and the person’s incapacity to make appropriate health care decisions for themselves, then the removal to hospital and involvement of the police may, though often distressing for the person, nevertheless be reasonably necessary and the police involvement a necessary precaution. Where, however, a person’s failure or refusal to participate in compelled treatment in the community (under a non-residential treatment order) triggers their return to hospital when they are still largely capable of making their own decisions, then we envisage it will be much more problematic for the police to become involved in support of psychiatric carers. This will be so particularly if a person in such circumstances must be forcibly removed to institutional care and physical restraint must be used to do so. The IPCC envisages complaints concerning police involvement to be likely to follow such incidents and, indeed, for these to pose a high risk of harm where the physical resistance to action is sustained and police training or resources deﬁcient.

4. Warrant to Take or Retake a Patient We note that Clause 225 enables a Constable to enter premises speciﬁed in the warrant issued under this Clause, if need be by force, and remove the patient there and when they do so may be accompanied by any person who is a registered medical practitioner or an authorised person. Later in the Bill we note that under clause 227 the police presence and actions are part of a multi-disciplinary intervention, where a constable must be accompanied by at least one approved mental health professional and at least one registered medical practitioner and under clause 228 the constable must be accompanied by at least one approved mental health professional. There seems no evident logic to these variations. We would commend to the Committee this multi-disciplinary approach and the beneﬁts of applying the principle consistently to all those interactions when the need to employ police powers brings them in contact with a patient required to be detained under mental health legislation. Ev 912 Joint Committee on the Draft Mental Bill: Evidence

5. Urgent Removal to a Place of Safety The provisions of clause 228 are a new provision compared to the 1983 Act providing just such a multi- disciplinary approach which we commend to the Committee. Information from an approved mental health professional triggers an intervention by a constable permitting entry to premises, forced if necessary, and the removal of the person there to a place of safety for a limited period of time (six hours). A Justice’s Warrant may provide for further detention but not beyond 72 hours. It is an approach which would meet with our approval, save in relation to the comments below about the period of time for permitted detention.

6. Removal to a Place of Safety from a Public Place Section 136 of the Mental Health Acts 1959 and 1983 has now been reproduced in Clause 229. Under this power, the police will continue to arrest and detain for assessment in a “place of safety”, very often comprising a police cell, persons found in public who appear to be disordered and require some form of care or control. The possible facilities speciﬁed as aVording a “place of safety” are reproduced from the previous legislation. There is no attempt in the draft clause (it refers back to the wording of Clause 227) to limit the occasions a police station will, inappropriately, be used for the detention of a person arrested in these circumstances. The Commission recognises that, on some occasions, hospital or other premises are simply not available and a police station must, as a last resort, be used for the purposes of temporary detention. However, the draft legislation makes no attempt to limit the circumstances in which this happens only to wholly exceptional occasions. Since 1990 the Mental Health Code of Practice has strongly discouraged the use of the police station as a place of safety (as does current Home OYce guidance), in the interests of the person detained and to ensure early and eVective assessment. Current evidence suggests that far too often now a police station cell is the ﬁrst not last resort, routinely used for this purpose. 7. If the Committee considers it necessary to retain a police station under the bill for use on rare occasions as a last resort then, at least, the Commission considers— 7.1 That there should be a positive duty placed under the bill upon the relevant health authority to assess need and provide/procure adequate such facilities (for example, registered care provision) to act as intermediate care prior to assessment and a decision on residential detention, in a similar manner to which other intermediate care facilities are provided for other patients in need of healthcare; 7.2 That a period of detention of 72 hours in police station is wholly inappropriate for the purposes of the assessment needed. An assessment when a police station is used should be completed within a maximum period of 12 hours.

8. Use of Force by Police when in Hospital or Other Institutional Settings The Commission is aware that, from time to time, hospital or residential care staV seek the assistance of the police to deal with violent or threatening behaviour by a patient being treated in that institution. In particular, CS spray has been used in hospital settings; police oYcers have been required to restrain patients brought to hospital for assessment or treatment for lengthy periods as part of the admission process and police oYcers also become involved when moving a patient from one facility to another or even to quell a disturbance which erupts in a ward setting. The Commission regards it as generally regrettable when this occurs since the appropriate response to a person’s mental health crisis is the employment of highly trained and skilled therapeutic staV who are well-informed as to the cause or causes of the person’s disordered behaviour and are able to use physical restraint if this is necessary, but within the context of the person’s treatment. It is often entirely inappropriate for police staV with no knowledge of a patient, who are uniformed and carry self-defence weaponry, to become engaged in these types of incidents, particularly in secure unit settings. 9. We would look to the Mental Health Bill, or to regulations made under it, more closely to regulate the management of restraint in psychiatry to ensure the human rights of patients are fully and eVectively respected and police oYcers are not drawn into these events unnecessarily, inappropriately and possibly on occasions unlawfully. 10. In addition to improvement of the legislation there needs to be greater clarity possibly in the code of practice about application. Too often at present, when a mentally disordered oVender is diverted from the criminal justice system to hospital it is the police who are called to escort the oVender when the duty rests on the health service. 11. The IPCC wishes to engage fully in the debate over the reform of mental health law and would be happy to participate in the Committee’s inquiry as it ﬁnds useful. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 913

Memorandum from Practice Based Evidence (DMH 207)

IMPROVING MENTAL HEALTH LAW: TOWARDS A NEW MENTAL HEALTH ACT

Response to Second Consultation Period Please give your consideration to the following points, and to the copies of original drafts of two articles that will help to explain the messages I feel are seriously omitted from development of the Draft Bill. — I welcome the level of detail outlined in the above document. It clearly demonstrates the constructive consideration that was given to the volume of comment in response to the first consultation exercise. — The Approved Mental Health Professional role could be an important development, but it is essential to protect and reflect further the recognition of the ASW function. The document recognises that ASW’s are likely to form the majority of the AMHP positions, but it would be useful to emphasise the importance of ASW training being opened up to individuals from other professions, not just referring to appropriate competencies. This should give greater reassurance to ASW’s about the recognition of their position, and that it will be a minority of others that need to “graduate” through ASW type training. — Fundamentally, I feel the whole premise on which the draft Bill is based is flawed! Compulsory community treatment remains a central theme elevated to a level of importance that is totally misrepresentative of mental health services as a whole. It is based on a gross exaggeration of the public safety agenda, reflecting the whole mental health arena through the extremely narrow focus of a few rare (but tragic) events. — We already have mechanisms in place for good risk management. The revisions of Mental Health Law would be better served in focusing attention on and tightening up the measures we already have, in order to better reflect contemporary community mental health services. — The draft Bill is wholly reactive to real and perceived threats and dangers, with no reference or recognition of the importance of proactive mental health practice, including the promotion and support of appropriate “positive risk-taking”. — New developments such as Assertive Outreach are first and foremost teams that focus on constructive engagement of people through creative and flexible working. They are definitely not the means for implementing negative and restrictive policy requirements, only serving to drive people away from the very services that should be working with them to promote better mental health and social inclusion. — The references made to services demonstrating they can provide appropriate treatments are welcomed, but do not go far enough. It needs more explanation of the broad range of medical, psychosocial and practical support . . . otherwise it remains too easy to interpret this very narrowly as taking medication or removal to a place of enforced medical treatment. — Overall the draft Bill does nothing to address the dangerously damaging stigma perpetrated by media misrepresentation of people experiencing mental health problems. The broad range of government policy is very good at establishing conflicting agendas ie personal liberty and service user involvement alongside public safety . . . but in practical terms clearly only addresses the latter priority. — I attach two original drafts of articles to help articulate what I feel is missing from the draft Bill: — “Re-shaping the Risk Agenda” (submitted to Mental Health Today). — “Positive risk-taking: an idea whose time has come” (published by Health Care Risk Report in October 2004).43 Please give consideration to the above points and the messages contained in the following pages. Steve Morgan Practice Based Evidence October 2004

Memorandum from SuVolk User Forum (SUF) for Mental Health (DMH 209)

I am Anthony Dooley. I am the Chair and founder of the SuVolk User Forum (SUF) for Mental Health. I recently attended a meeting of the SuVolk Mental Health Voluntary Providers that took place on 15 October. It was agreed at that meeting that SUF should seek to organise a meeting with the MP for Ipswich,

43 Articles not printed. Ev 914 Joint Committee on the Draft Mental Bill: Evidence

Chris Mole, to enable people to express their thoughts about the draft mental health bill in time to submit this to you. Prior to that meeeting a briefing session on the draft bill was given by East SuVolk MIND who were co-organisers. 1. Accordingly, a meeting was arranged with Chris Mole on Friday 22 October. About 30 people attended. Those present included psychiatrists, other Mental Health Trust staV, representatives of voluntary organisations, as well as Service Users and Carers, ie all Stakeholder Groups. It was a productive meeting in that Chris Mole clearly had an open mind to the various concerns that were expressed, but he was keen to receive in writing detailed evidence from the stakeholders about the issues raised. He was keen to facilitate our involvement in the pre-legislative process, especially as there are no representatives from SuVolk on the committee. 2. At this stage we are seeking to put together a document in accordance with Chris Mole’s request, to which we would like the opportunity to speak, if invited by the Committee. It was the wish of the meetings referred to above that Service User and Carer representatives should, if possible, be the ones to speak to the document. Those representatives would be from SUF and SuVolk Carers. 3. It was clear to us from listening to Chris Mole that the intent of the bill is to address what is perceived to be concerns about the potential behaviour of people given the label “dangerous personality disorder” in our community. This is not a diagnosed mental health condition and is not treatable as a mental health condition. In short the Draft Mental Health Bill is not a Mental Health Bill at all and if passed unamended would create a definition of “mental incapacity” which is so wide as to be meaningless and dangerous in terms of Human Rights. We would want to argue for a Rights-based and genuine Mental Health Bill that would address the substantial issues arising from mental health problems experienced within the community. The current draft would need significant amendment to achieve that objective, one which is shared by all stakeholders from the evidence of our meetings. Anthony Dooley October 2004

Memorandum from Miss E Lyons (DMH 211)

1. Introduction 1.1. I am writing to you as a suVerer of a mental health condition. I am concerned that the Draft Mental Health Bill if accepted as law, will seriously curtail the rights and liberty of hundreds of thousands of mental health suVerers in an attempt to prevent violence by a small minority. People with mental illness are more likely to be victims of crime than perpetrators. An example of this is that I myself have been (wrongly, in my opinion) diagnosed with “personality disorder” yet it is other people who shout at me in the streets. I wish this memorandum to be treated as evidence by the committee. 1.2. Subject list: 2. Compulsory detention and treatment 3. Electroconvulsive therapy 4. Use of advance directives

2. Compulsory Detention and Treatment 2.1 This is important because if the rules are too broad, many people would be unnecessarily detained which would prove to be detrimental to their health. 2.2 The deﬁnitions of the criteria for holding people without their consent and forcing treatment upon them are too wide and open to interpretation and abuse by decision-makers. If adequate provision for the treatment of voluntary patients in the community were made, people may not come to the point where they need to be detained. In my case, I have found that I have had to ﬁght very hard to even be assessed by a mental health team and still await an appointment with a psychologist eleven months after my initial assessment. Compulsory community orders will criminalise and severely restrict a person’s liberty, and I myself am now very fearful of being involved with the mental health system because of the threat of sanctions on my liberty. 2.3 Better provision needs to be made for voluntary patients, so that people are less likely to gat to a point of crisis where they may be detained against their will Joint Committee on the Draft Mental Bill: Evidence Ev 915

3. Electroconvulsive Therapy 3.1 This is important because ECT is so invasive and controversial, having severe side-eVects and an unknown level of therapeutic beneﬁt. 3.2 A person who is capable of consenting should always be listened to, even in the case of an “emergency”. If such a person says “no” they should have the right to refuse treatment, as they have the right to refuse treatment for a physical ailment.

4. Use of Advance Directives 4.1 This is important because people should have the right to make informed decisions regarding their treatment should they become unwell. People are able to make advance directives refusing treatment or intervention regarding their physical health, so they should be able to regarding their mental health too. 4.2 Under the Draft Mental Health Bill, advance directives do not need to be considered when assessing a patient for compulsory treatment. This will serve to break down trust in the mental health system and is a direct assault on the basic human rights of the individual. 4.3 Patients’ advance directives should carry the same weight as they do in other areas of medicine. October 2004

Memorandum from Wedge Black (DMH 212)

1. Introduction 1.1 My name is Wedge Black and I am part of the Management committee of LifeSIGNS, a Voluntary Organisation that aims to raise awareness about the syndrome of self-injury. I would like this memo to be considered as evidence against the Draft Mental Health Bill as I hope that my voice will be one of hundreds against the compulsion clauses within the Draft Bill.

2. Compulsion 2.1 It appears this bill legislates against the entire population, when it aims only to control a very small minority. The right to refuse treatment will be taken away by this act. 2.2 It is wrong to subject people who have not been clinically diagnosed to a Mental Health Act. 2.3 This act should allow people to be medically treated in a way that they ﬁnd suitable. Only in a minority of cases should a person be compelled to take treatment.

3. Dangerous Personality 3.1 Using recognised and established medical diagnostic criteria is an imperative. 3.2 To create a legal judgement of “Dangerous Personality” is misleading and un-measurable 3.3 A person should only be detained for treatment if the treatment is therapeutic in nature, and agreed therapies are only available for diagnosed problems, not made up judgments. October 2004

Memorandum from Emma Pheby—Independent Mental Health Advocate (Information), Mind in Tower Hamlets (DMH 213)

1. Introduction I trained as a solicitor and have worked for the last 20 months as an independent mental health advocate and information worker for Mind in Tower Hamlets. I work with Tower Hamlets mental health service users both within the community and in St Clement’s Hospital. I frequently help service users to request the services they require and to raise complaints about the inadequate service that they feel they have received from East London and the City Mental Health Trust. As an information worker I also make sure that I read reports and studies relating to both local and national Ev 916 Joint Committee on the Draft Mental Bill: Evidence

issues concerning mental health service users. A number of recent reports both local and national (HAS, CHI, CHAI, MHAC and Patient’s Council reports) have raised concerns about the mental health services provided and the involvement of service users in making decisions about their care and treatment. I have provided a number of service user case studies to help illustrate some inadequacies of the present mental health system and the short falls of the mental health bill.

2. Right to Services/Right to Aftercare 2.1 As a mental health advocate I am very aware that some service users do not receive services that they feel they need from the community mental health teams and/or from St Clement’s Hospital. The inadequacy of services or the inability to provide services quickly has appeared to result in some service users being admitted to hospital. The mental health bills widening of compulsory powers (through removal of “treatability criteria”, the widening deﬁnition of mental disorder and the introduction of compulsion in the community) is of concern when the real issue often appears to be that service users needs for care and treatment are not met.

2.2 Case studies Mr Y is a long term mental health service user. Mr Y was pleased to get a council flat in Tower Hamlets. However when Mr Y moved into his flat it lacked basic facilities so he had no carpets, curtains, cooker or fridge for example. Mr Y was receiving welfare benefits and could not aVord to purchase these facilities. Mr Y was taking a high dose of an anti-psychotic medication yet he was not able to eat properly as he did not have the appropriate facilities. Mr Y’s Social Worker was on annual leave. Mr Y asked for help to get funds from the CMHT, charities and local advice services. After waiting some weeks Mr Y became increasing frustrated that nothing had been done and he eventually went into a church to ask for help and when they were unable to help him he became angry. At this stage Mr Y was compulsorily admitted to hospital again. Mr Y believed that had adequate support been provided before he reached crisis point he would have been able to stay out of hospital. Ms X is a long-term mental health service user. Ms X is diagnosed with bi-polar aVective disorder. Ms X asked her psychiatrist, at an outpatient’s appointment, to refer her to the CMHT. Ms X explained to her psychiatrist that she was feeling particularly isolated. Ms X further explained that she strongly felt that she needed to have activities to attend in the day and that she needed regular appointments with a mental health professional from the CMHT. Ms X’s most recent care plan did not have any provision for community services. The care plan focused on her adult son stating that he should provide care for Ms X. Ms X’s son no longer lived with her and they did not have much contact any longer. Approximately six weeks after the initial referral was made by Ms X’s psychiatrist Ms X met with two social workers from the CMHT. At this meeting Ms X was told about a local project at a day centre and asked if she was interested in attending this project. Ms X stated that she was keen to attend this project and explained why she wished to have the intervention of a social worker. However one month after this meeting Ms X had not heard anything from the CMHT. After making several telephone calls to the CMHT Ms X was told, over the telephone, that the CMHT were not going to take on her case (although they did not explain why). However the social worker (who she had previously met) then explained to Ms X about the same project that had previously been discussed with her. This social worker again asked Ms X if she would like to attend this project. Ms X however had been led to believe that this referral was made over a month previously. Ms X became particularly distressed by the lack of support that she was being oVered. Shortly after this time Ms X was compulsorily admitted to hospital under section 2 MHA83. Ms X strongly believed that had she had been provided with some services from the CMHT in the two months prior to her hospital admission she would have been prevented from going into hospital. 2.3 The processes involved that enable mental health service users to get support from the community services are often extremely lengthy and sometimes simply unavailable. The inability of statutory services to act quickly, or at all, when a service user feels at their most vulnerable and urgently needs assistance can lead to the service users’ right to freedom being curtailed as they are detained under the Mental Health Act 1983. It is worrying that the new mental health bill will widen the power to curtail personal freedom when the fundamental issue of the inadequacies of services is not adequately addressed.

3. Compulsion in the Community 3.1 Another concern regarding the use of compulsion in the community is that it will further breakdown positive communication between service user and their medical team. This further erosion of mental health service users’ autonomy could ostracise the service user from the very people that it is important that they feel able to engage with. Joint Committee on the Draft Mental Bill: Evidence Ev 917

Service users sometimes ask independent advocates to attend ward rounds, CPA reviews and other key meeting with them as they feel disempowered by their medical teams and unable to raise certain issues. However, sometimes service users do not want the issues that concern them to be discussed with their medical teams and simply ask advocacy for information.

3.2 Case study 3.2.1 Since Mr Y had been taking his new medication he was wetting his bed at night. Mr Y was too embarrassed to raise this issue with the medical team as he did not feel they listened to him. 3.2.2 Ms X was also particularly concerned about the long term side eVects of taking her medication. As an outpatient Ms X did not want to discuss her side eVects as she felt embarrassed by them and she did not trust her medical team. Ms X usually sees a diVerent psychiatrist at each of her CPA reviews or outpatient appointments and she does not feel that this enables her to be able to build the trusting and therapeutic relationship needed. Ms X was considering stopping her medication but she did not feel able to discuss this with the medical team. Ms X expresses that if she does stop her medication she will not consult her medical team. 3.3 Both the above clients and a number of other advocacy clients have sought information from independent third parties about their medication as they did not feel able or want to involve their medical teams. The use of compulsory powers in the community will surely only make service users feel more disempowered and disengaged from their medical teams. October 2004

Memorandum from John Parker (DMH 214)

1. Introduction I am a carer for a person who has suVered bouts of mental ill health over a number of years and who has been treated as both an in-patient and out-patient but always as a voluntary patient.

2. Patient Representatives The patient I have cared for was at one stage being treated for a condition but it did not improve. The doctor progressively increased medication levels but the situation grew steadily worse. As a carer I sought a second opinion which was given by a doctor at specialist hospital in another district. His review of the case resulted in a new diagnosis and a new treatment programme which resulted in a long lasting and stable recovery. I understand the Bill will reject certain representatives from being involved in a patient’s treatment regardless of what evidence and support they may have to oVer. In the instance I describe the patient would have suVered if representation had been denied. I can see great value in any patient representative being included in determining a patient’s needs.

3. Dangerousness and Compulsion The most eVective treatments have been as a result of early involvement by health professionals, careful handling of the crisis situation and then leaving the patient to re-build a life at home. In crisis this patient has been reluctant to seek help when needed for fear of being forced into hospital for an indeﬁnite period. I am concerned that if the Bill becomes law it will deter people from seeking help. A patient will view increased powers to enforce compulsory treatment as an even greater threat than currently exists. As a result a patient will be less willing to co-operate in seeking timely help when it is most needed. Furthermore, I think the patient should always feel that he/she can seek help on the basis of trust, understanding and compassion and that the provider will seek to understand the background before administering any form of treatment. Unfortunately, ignorance and media hype has prejudiced many people’s views about mental health issues. In such a climate, it is understandable that any person determining a course of treatment would make this compulsory in order to cover themselves from criticism or redress. The Bill, in oVering wider power, could result in decisions being made out of fear for any consequences rather than what is in the best interests of the patient. Ev 918 Joint Committee on the Draft Mental Bill: Evidence

4. Criminal Justice System

Experience has shown that patients being treated in the same ward were there as a result of their involvement with the criminal justice system. This was not conducive to rapid recovery of the patient I care for and the prospect of being admitted to such a ward has been a deterrent to seeking help when it was needed. Applying less stringent conditions in the criminal justice system will inevitably increase the population of these patients in the mental health care system. I think this is inappropriate and more thought needs to be put into the ways in which people involved in the criminal justice system and those seeking sanctuary, whilst they overcome a short term crisis in ordinary life, are treated.

5. Conclusion

As a concerned carer I ask that the Joint Committee on the Draft Mental Health Bill consider the above points. October 2004

Memorandum from Wendy Andrews (DMH 215)

Paul Andrews Deceased

I was the mother of Paul Andrews until 1 August 2004 when he took his life while being cared for in the QE2 Mental Unit Welwyn Garden City Herts. I looked after Paul for 12 years and feel let down—for this reason I believe I have great insight into mental health and below are policies I feel should be in practice. I would so very much like to be involved with new policies—it would be so easy for me to just now get on with my life but to Paul’s tribute I wish to save others from his traumas. I did go on a committee including Doctors Heads of Departments but nobody can understand how people feel with a mental illness but because I was so very close to Paul I feel I have much more of an idea. I know this is probably not the way you would like things set out but I am still in pain for the loss of my beloved son but felt I must put pen to paper. Please consider the following:

Distribution of NHS Cash

I feel this is main problem it is all down to cash—never enough—Invest in mentally ill as much as been given to Cancer and Aids that will certainly give them more dignity.

Mental

Young children say “are you mental” without any thought. The word just lacks respect how about a national poll to come up with a new name—I know when Paul was in hospital and I was at the main hospital I had many words with people commenting about the mental unit asking them to come and meet the people in there—they were all too scared—why can’t it be Department for Brain Technology it is another organ but we know so little about it—my son was an awesome guy just very misunderstood by most but I would like any MP to have been at his “farewell” amongst Buddhist monks who have more care than anyone I know.

Loving Kindness, Compassion and Hope

I know the government wish to change the stigma of mentally ill—I feel doctors nurses and carers of the mentally ill should be taught this—during the last two years not only has Paul been ill but alongside my best friend has been suVering from cancer she died on the 2 September Paul and Maggie often talked about the diVerence in the care and dignity they were given —they never gave up hope for Maggie—so surely before educating the public you should educate the staV. Joint Committee on the Draft Mental Bill: Evidence Ev 919

Catchment Areas I have evidence to show how this policy caused us so much pain. I feel everyone but the mentally ill have a choice of hospitals so surely this is discrimination.

Ward Policies Medication—not having to queue up for medication apparently this is a policy set I would like an MP to watch them queue up like cattle at medication time it is so humiliating—in private mental hospital patients are treated with dignity—their medication taken to their beds also a cup of tea in the morning and a drink before sleep—there is plenty of staV on the wards to enable this to happen. We think the standard of dress by staV is atrocious you never know who is staV and who is patient some with skimpy fashion items.

Treatment Environment is paramount in recovery—when my son was depressed he often said he wished he was in the calmness of a hospice—also why not include alternative medication as well as conventional (drugs are so expensive we all know how rich the multi-national drug companies are—the side eVects are often worse than the illness) why not use some of this money on massage—reﬂexology proved to have so many beneﬁts and would make patients feel cared about—I know it is oVered to cancer patients.

Belief in Friends and Families When patients are unwell they do not always realise—surely carers should be listened to—calling an ambulance and because the patient does not want to go they are not taken or taking patients to A and E and having to be watched by other people—and being turned away by A and E ﬁve times because the staV would not listen to us—what dignity is that for the mentally ill. For a patient who has a history of mental illness—I feel it would be better for all concerned that an agreed carer be authorised by the patient when they are well—to have the power to make certain decisions which would secure the right treatment if they became unwell.

Housing Accommodation How is it girls who become single mothers get such great treatment—My son did not ask to be ill— apparently according to psychiatrists it is genetic and because he was such a deep thinker and extremely artistic—why was he treated as a well 30 year old. There are a very few places available for patients stay when released from hospital the few there are seem to be used for long term use—I have many stories to tell if you have time to listen. I do hope someone will take the time to read this—I am available to help at any time as I feel this is the only way for me to be able to sleep at night knowing that the dignity and care of mental patients will be improved. I was at St Pauls Catheral and heard prayers for the mentally ill—after the service I asked why and was taken to the crypt where the launch of a new promotion from the Government concerning mental health and the church was taking place—I looked round and saw all these people drinking wine and thought of my son’s bed in the QE2 with sick stains on it from a previous patient—because of Paul’s illness he could not drink wine. They opened their speech with what mental patients need: a home; a job; something to do at the weekends. Wrong—They need loving kindness compassion and hope. — I kept my calm—Paul found it hard to live let alone work he hated being the sick one. — I didn’t see a carer doctor nurse or patient at the launch—where were the people at grass roots— I do hope you have some of them when sorting out the new policies next year—my husband and myself are willing to give up our time free of charge without wine. October 2004 Ev 920 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Self-Injury Support in North Cumbria (DMH 216)

1. Introduction 1.1 SIS is a voluntary and independent organisation that provides a free information and support service to people who self-injure or self-harm and to those people who support them in North Cumbria. As Manager of this organisation, I wish to express our service’s concerns that the proposed Draft Mental Health Bill is both unnecessary, wrong and fails to meet the needs of those people experiencing emotional and mental distress. We wish this memorandum to be treated as evidence. 1.2 I am writing about the following: 1.2.1 Compulsory treatment. 1.2.2 Advocates and nominated persons. 1.2.3 Advance Directives. 1.2.4 ECT (Electroconvulsive therapy).

2. Compulsory Treatment 2.1 SIS feels that compulsory treatment should only be used as a very last resort and when all other possible voluntary treatments have been attempted. SIS is concerned that the combined eVect of the extended powers being added in this Bill, will mean that more people fall within the scope of provisions for necessary treatment for mental disorder. In our view extended powers are neither necessary or desirable and that alternative options should be considered and used. 2.2 SIS and its service users believe that people who are emotionally and mentally distressed should not be put under compulsion unless they are truly in crisis, in danger and when they have lost the ability to make choices for themselves. We feel that it is an oVence against human rights for a person to have treatment forced upon them when they do not want it and are able to make that choice. SIS is concerned that people who self-injure or self-harm can be considered to be dangerous to either themselves or to others. In our experience people use self-harm as a coping mechanism and not, what is often assumed, as a suicide attempt. A person usually self injures or self-harms, for example by cutting, drinking to excess or taking large amounts of prescription or other drugs, to get relief from or blot out unbearable feelings, emotions or memories. It is an attempt to “stop” what is going on in their minds and the release or relief from self-harm can be enormous and very necessary to that person at that moment. Self-harm can be a very eVective coping mechanism, makes people feel better for a while, and certainly prevents a person from becoming more distressed and suicidal. People who self-harm use it to cope with how they feel and it relieves emotional distress that might otherwise build up and lead them to feel suicidal or be “a danger to themselves”. Self-harmers “hurt” themselves—not other people and are therefore not a danger to other people. SIS is concerned that some mental health professionals still consider that people who self harm may be a danger to themselves or other people. SIS and our service users feel very strongly that people should be allowed to have choices about their self-injury and self-harm and be supported in understanding the meaning and purpose of the self harm and in ﬁnding alternative coping mechanisms. 2.3 Case Study: “S agreed to voluntary hospitalisation for medical treatment for serious physiological imbalances arising from her long-term eating disorder. Once her medical condition had been stabilised, a re- feeding programme was prescribed for S. S expressed severe anxiety about being able to manage the proposed re-feeding regime alongside continued tube feeding. At this point she felt she could not accept the proposed regime as she felt it was introducing increases in her nutritional intake that felt too great for her to contemplate psychologically and asked that a more gradual increase in re- feeding be considered. At this point S was accused of being manipulative and threats were made to S by a psychiatrist, that unless she agreed to the proposed treatment she would be “sectioned” and ‘forced’ to accept the treatment. SIS feels that ‘threats’ and ‘compulsory treatment’ were completely unnecessary and worked against S being able to achieve an improvement in her dietary intake. S was willing to accept support to achieve a change in the delicate balance of her physiological levels but was very aware that for herself this could only be achieved by a slow and steady regime of re-feeding with appropriate and understanding support. To support S in her wishes to challenge the threat of compulsory treatment, S was oVered advocacy support through agencies supporting her wishes; this was instrumental in helping S to have a dialogue with her medical and psychiatric team and her wishes respected and considered in reaching a joint agreement for treatment.” 2.4 SIS feels that surely a spirit of cooperation is far more eVective and more conducive to the complete recovery of an individual than if a person is threatened or forced to do something against their wishes. Joint Committee on the Draft Mental Bill: Evidence Ev 921

2.5 In our experience, local mental health services, generally now appear to be respecting the wishes of individuals with regard to hospital admission and that admissions and compulsory treatment are very much used as the last resort. We have seen evidence that this approach is far more eVective for those people who are able to express their wishes and make choices. Usually our service users are able to recognise when they need help and either ask for or accept help when it is needed, so that the build up to a crisis can be averted. There is though a huge lack of resources in place at present to ensure that people in pre-crisis can access appropriate support and treatment. SIS believes that to prevent crises developing, more provision needs to be available at community level and that the voluntary sector needs to be recognised as both alternative and additional support networks for people in mental distress.

3. Advocates and Nominated Persons

3.1 SIS believes that if a person feels they are heading for a crisis or in crisis, then they need a friend or advocate of their choosing, who can help explain what is happening to them, to negotiate with the medical team and hopefully get agreement to the course of action that is best for the individual patient. Such a person should be someone trusted by the patient and who knows them well and whom the patient chooses to be with them. It may be a carer, paid or voluntary worker, member of the family, friend or professional advocate. They need that person to be able to have a say in what will happen, including a right to object to the patient being put under compulsion.

4. Advance Directives

4.1 SIS service users tell us that they need to know that they are in control of what happens to him or her in a crisis and that it is helpful to them if they can decide in advance what should happen in a crisis. This can be achieved with an advance directive, which is a statement of wishes and instructions for what should and should not happen, at a time when the person is not well enough to express their wishes and make decisions for themselves. 4.2 SIS and our service users are concerned that this right will be taken away under the Draft Mental Health Bill once a person is put under compulsion. 4.3 SIS believes that advance directives should be used and that when they are, they are beneﬁcial and prevent compulsory admissions.

5. Electroconvulsive Treatment

5.1 The proposed Bill is an improvement on the current law on electroconvulsive therapy (ECT). It will not be possible to give ECT to a person with the capacity to consent unless they do consent. 5.2 However SIS is concerned that the new law does allow ECT to be given against a person’s consent in an emergency. 5.3 SIS believes that ECT must never be given to a person who has the capacity to make his or her own decisions about this controversial treatment. October 2004

Memorandum from L.L., Stockport Mind (DMH 218)

1. Introduction

1.1 I am a mental health service user concerned about some aspects of the Draft Mental Health Bill and I wish this memorandum to be treated as evidence. 1.2 Subjects of concern: — Compulsion. — Dangerousness and compulsion. — Compulsion in the community. — Police powers. Ev 922 Joint Committee on the Draft Mental Bill: Evidence

2. Compulsion 2.1 Many more people will be subject to compulsion under this Bill. 2.2 The proposed new law makes compulsion much more likely. This will be carried out in the community. Example:When I was ﬁrst diagnosed at 16, I was told I was schizophrenic and that I would be on medication all my life. I was advised not to have children. In the diagnosis of the hallucination I experienced, which was of a religious nature, no account was taken of the disturbed family background and religious fervour that I was being exposed to at home. I did not believe the diagnosis and stopped taking the medication, which was making me feel ill and depressed. I remained well until some 15 years later, when I was very ill again and a psychiatrist diagnosed that I was manic-depressive, not schizophrenic. I have since needed regular treatment for this condition, but I have led a relatively “normal” life and have four children, three of whom have done and are doing degrees and the fourth doing well at school. They are all high achievers and very well balanced. I work full time for a mental health charity. Under the new Bill I would have been subject to compulsion. If I had stopped taking my medication, I would most likely have been admitted to hospital where it would have been forcibly given. There would have been no opportunity to discover that I had been misdiagnosed and was taking the wrong medication. It is highly unlikely that I would ever have been able to have children and unlikely that I would have been able to work because of the serious long-term eVects of neuroleptics. My life would be unrecognisably diVerent if I had been subject to compulsion. Example 2:My son had a serious episode of mania and psychosis at the age of 18. He had to be admitted under a section of the Mental Health Act. It was believed that he had inherited my condition of bi-polar disorder. Under the proposed Bill, had he stopped taking the medication, he would have been taken into hospital and medication enforced upon him. My son did stop taking the medication and he never again had any further episode whatsoever of mental illness. He went on to do a masters degree in chemistry. Would he have done this on medication? He is now 24 and very well indeed. There are many, many people who have only one episode of psychosis. They will not have the choice to come oV their medication. Their clinical supervisor may decide to keep them on it and they will have no say. 2.3 People should only be subject to compulsion when they are truly in crisis, in danger, and when they have lost the ability to make choices for themselves. It is an oVence against human rights for a person to have treatment forced upon them when they do not want it and are able to make the choice. No one can force you to undergo a medical procedure if you have a physical illness (even if it might save your life). Why are people with mental health problems diVerent?

3. Dangerousness and Compulsion 3.1 More than under the current law, the Draft Mental Health Bill is based on the notion that people with mental health problems present a risk to others. It is designed to ensure that a person, particularly with a personality disorder, can be forcibly admitted to hospital, even though the treatment or therapy oVered might not have a beneﬁcial eVect on their health. 3.2 This reinforces the prejudice that all people with mental health problems are dangerous and, as a result, stigmatises all service users. This will drive vulnerable people away from seeking help when they need it. These powers are unnecessary. People working in clinical mental health can, and do, take action under the existing law to deal with the situation once they are aware of genuine risk of this kind. This is discriminatory. There is no preventative detention of people who put others at risk, such as dangerous drivers, people who abuse their partners or binge drinkers wreaking havoc at weekends, even if the risk of oVending or repeat oVending is likely. 3.3 This clause should be removed. No one should be subject to compulsion that has not committed any oVence, just because it is deemed that this may be likely.

4. Compulsion in the Community 4.1 I am concerned that conditions may be imposed upon a patient in the community, eg to stop taking particular drugs, to live at a certain place and to attend a clinic on a weekly basis. If they refuse to comply they will most likely be taken to hospital and given a depot injection. 4.2 If people are in crisis and compulsion is the only option, they need to be in hospital where they will be safe and where they can be monitored for eVects of medication and treat adverse reactions quickly. Compulsion in the home is disruptive and can interfere with people’s domestic lives, denying them the human right to privacy and family life. Community nurses and psychiatrists do not want or need to police their clients in this way. It will damage trust in their relationships with their clients. 4.3 There should be no compulsion in the community. The present act is adequate in that if someone is a danger to themselves or others they can be treated in hospital. Joint Committee on the Draft Mental Bill: Evidence Ev 923

5. Police Powers 5.1 The police will have extra powers. 5.2 Where it is deemed that someone is in need of treatment the Police will have greater powers to enter their home. I believe this will lead to abuse of civil rights and may be used against political activists. 5.3 This is an unnecessary extension of police powers. They have enough power already. The Bill should be changed to reﬂect this. I believe that if this Bill is passed under its present form it will damage the well-being and future prospects of having a decent life for many people and it will be an abuse of civil liberties. October 2004

Memorandum from the Transcultural Psychiatry Society (UK) (DMH 219) The Transcultural Psychiatry Society, UK, (TCPS) aims to stimulate thinking, attitudes and research that will promote appropriate multi-cultural approaches to mental health. The TCPS is an umbrella body bringing together service users and a wide range of mental health professionals oVering a forum for debate and discussion on issues of “race” and mental health.

1. Summary 1.1 We welcome many of the points made in the introduction under Part 1, especially the general principles and guidance. While approving the intention that patients should be involved in making decisions and that decisions are fairly and openly made, we wish to draw attention to the fact that “patients” are not all of one type. In particular, it should be noted that British society is multicultural and multiracial. From this flows a need for legislation that is concerned with “mental health” to reflect the nature of issues around “culture” and “race”. Further, when such legislation impinges on human rights—and the Bill provides a framework for just that—it should ensure that it counteracts pro-actively the acknowledged tendency for many British institutions to be institutionally racist. We suggest that such an intention should be a principle for this new Act and the wording throughout the Act should reflect this principle, wherever possible. 1.2 In our view, the wording of the Mental Health Bill 2004 as it stands increases the risk of black and minority ethnic (BME) people being detained unjustly from that currently present under the 1983 Mental Health Act. Another problem is that, once someone is detained in this way and given medication, vicious circles arise: For example, the eVects of medication are likely to be seen as symptoms of illness and the diagnosis of ‘illness’ gets re-enforced; and groups of people (eg BME people) subject to unjust detention lose trust in the system and/or fear the system and therefore fail to seek help even when they can be helped by the system (see appendix 1 for more background information). 1.3 We make specific suggestions for changes in the Bill and give these under four headings—definition of mental disorder, conditions for compulsory care, treatment, and advocacy.

2. Definition of Mental Disorder 2.1 We believe that this is far too wide and will almost certainly exacerbate the racial inequalities that are already a focus of concern for BME communities. If this Bill is enacted with such a wide definition, it will obviate any action for counteracting racism and cultural insensitivity taken by the Department of Health (DOH) in pursuance of proposals set out in recent documents. We believe that, unless the Bill is changed, there will be greater numbers of BME people sectioned unjustly with a serious infringement of their human rights. The communities will lose any trust they now have in mental health services and render the work of professionals, who by and large wish to be non-racist and culturally sensitive in their practices, extremely diYcult. 2.2 We believe that a modern definition suitable for a multicultural society of the 21st century can be devised. At the very least the definition should have specific exclusions, such as those that exist in the current (1983) Act. We are willing to engage with the DOH in achieving a suitable definition. It is regrettable that the DOH appears not to have consulted properly with BME communities on this matter so far.

3. Conditions for Compulsory Detention 3.1 The relevant conditions under which sectioning may be implemented is stated in the new Bill in Chapter 1 paragraph 9 (1) to (8): 3.2 We note that paragraphs (7) and (8) are new to this Bill (compared with the earlier 2002 Draft Bill) and clearly tends to strengthen the bias of the whole Bill towards being a “law and order bill” rather than a mental health bill. We consider that the emphasis on what is called “substantial risk of causing serious harm to other persons” is misplaced. The emphasis should be on helping the patient to get over the “mental Ev 924 Joint Committee on the Draft Mental Bill: Evidence

disorder” however it is defined. In particular, we are totally opposed to paragraph (8). “Substantial risk” should Not be part of the determination as to whether a patient suVers “mental disorder” and/or requires “treatment”. There are no reliable objective grounds on which doctors or any other professionals can estimate “substantial risk”. This is not a medical matter. Such determinations should be within the province of the judicial system where evidence from a variety of sources can be weighed up in a legal framework that takes on board human rights enshrined in our legal system. On the other hand, doctors and other mental health professionals are able to estimate the likelihood of a patient benefiting from medical treatment. 3.3 We suggest therefore that paragraphs (7) and (8) as they stand should be removed. In their place we suggest the following paragraph we have called (7): (7) For the purposes of this Part, a determination as to whether a patient is likely to benefit from medical treatment is to be treated as part of the determination as to whether all of the relevant conditions appear to be or are met in his case.

4. Treatment (Supervised by “Approved Clinician”) 4.1 Part 1 paragraph 2 (7) states: References to medical treatment are references to treatment for mental disorder provided under the supervision of an approved clinician; and for this purpose “treatment” includes: (a) nursing; (b) care; (c) cognitive therapy, behaviour therapy counselling or other psychological intervention; (d) habilitation (including education, and training in work, social and independent living skills); and (e) rehabilitation (read in accordance with paragraph (d). 4.2 The above paragraph should be taken in conjunction with paragraph 3 (1) or (2) where the approval of clinicians is described: (1) A person is an approved clinician if he is approved by the appropriate authority for the purpose of this subsection. (2) Before approving a person for the purposes of subsection (1), the appropriate authority must be satisfied that he has special experience in the diagnosis or treatment of mental disorder. 4.3 In our view the types of treatment listed in paragraph 2(7) are far too broad ranging. Compared to the 2002 Bill, the treatment listed in (c) are new to the 2004 Bill. We think this is a retrogressive step but possibly one that is highly significant. Although the treatments listed under (d) and (e) may be seen as justified because one can think of the “revolving door” patients whose main need is for habilitation and/or rehabilitation, the inclusion of the therapies listed under (c) are certainly not justified. These therapies (eg psychotherapy) cannot possibly be given on a compulsory basis unless it is a form of “brainwashing” or some other “treatment” (such as that depicted vividly in the book and film called “Clockwork Orange”) that passes for “psychological therapy” although ethically very problematic. We realise that unethical practice is unlikely to be carried out under present conditions but this Bill is likely to last a long time and it should be there to protect people from possible misuse of psychiatric power that may occur some time in the future. 4.4 We accept that some of the therapies listed in paragraphs (c) to (e) may be possible and indeed desirable for someone who is compulsorily detained and may be provided together with drug therapy—and indeed sometimes may be possible only when combined with drug therapy. However it is the drug therapy that would require compulsion and not the other forms of therapy which all require the patient’s co-operation. It would be wrong to detain someone on the basis of requiring therapy that s/he needs to co-operate in receiving. If someone who is already detained is agreeable to have any of the therapies listed in (c) to (e), it is likely that s/he would be given these if available (since it can only be given if the patient co-operates)—it is not necessary to include them in a list of therapies that justifies compulsory detention. 4.5 Although this does not apply to the therapies listed under (d) and (e), in the case of those listed under (c), it is not only unnecessary to include these but there is a serious potential danger in doing so in the immediate future. Including these therapies (especially if paragraphs (7) and (8) referred to above are kept in, opens the way for abuse of sectioning for the purpose of detaining people on seemingly “medical” grounds which amounts to preventive custody for social reasons. For example, someone diagnosed as suVering from “personality disorder” and likely to gain from psychotherapy could be liable to be detained legally where the care plan envisages psychotherapy, but then not receive the therapy because he would not co-operate. Such compulsory detention could go on indefinitely—essentially as preventive detention by the back door. 4.6 We suggest that, for the purposes of an Act (such as this one) that enables compulsory powers to be used to force people to have (medical) treatment, “medical treatment” should be defined narrowly, possibly limited to physical interventions (with drugs and ECT) and nursing care. This is how treatment is interpreted in the current (1983) Act and widening it (as a part of compulsory detention) is both unnecessary and potentially dangerous. Joint Committee on the Draft Mental Bill: Evidence Ev 925

4.7 From the point of view of cultural diversity in what therapy means, it is important that, wherever treatment is mentioned, the need for this to be “culturally appropriate” is inserted. This should be applied in all instances of “treatment”. Also, the clinician in charge should be adequately trained to be culturally sensitive. Thus, the appropriate authority approving a person as an “approved clinician” should be satisﬁed that s/he has special experience in cultural diversity of mental health and illness and cultural diversity of therapies available.

5. Advocacy 5.1 We welcome the section on Independent Mental Health Act Advocates (paragraph 247) but consider that the right to advocacy for any one who is detained compulsorily should be embodied in legislation to be available at the time when sectioning is being considered. To have access to an advocate after one has been sectioned is really too late. Such a right is particularly important in the case of people from BME communities. Further, we consider that the right should be for patients to have access to appropriately trained advocates and that the training should include training in cultural diversity. Therefore, in appointing advocates, the appropriate authority (designated in paragraph (1)) should be obliged to appoint a suYcient number of people from diverse communities with adequate training. Dr Frank Keating On behalf of Transcultural Psychiatry Society (UK) November 2004

APPENDIX 1

Background Information The Transcultural Psychiatry Society (TCPS) has known for many years that Black and minority ethnic (BME) people are disproportionately subjected to sectioning and compulsory treatment, disproportionately diagnosed as schizophrenic, etc There have been recent reports on how some of the issues involved may be addressed (see publications in 2002 and 2003 by NIMHE, Sainsbury Centre and Department of Health) and a recent report on the need to address racism in mental health services (see independent inquiry into the death of David Bennett). These publications are listed below. Further, there is a large literature on the problems of diagnosis transculturally and well-documented evidence of the negative experiences of many people from Black and minority ethnic communities in their engagement with mental health care and treatment in the U.K. (We can provide references to published work if the Committee wishes.) It should be noted that many of the racial inequalities mentioned above are closely connected with the implementation of the current (1983) Act. So it is important that a new Act should incorporate safeguards against their continuation wherever possible and at least not impede attempts to deal with the problems.

Background to diagnosis and treatment in psychiatry Psychiatry has arisen in a western cultural setting and tends to base its understanding of “illness” and “therapy” on values that are often ethnocentric to social and political contexts that influenced its development and still influence its practices. The cross-cultural validity and/or usefulness of basic “diagnoses” of western psychiatry are seriously questioned. It is clear from the literature and experiences of service users from non-western cultural backgrounds that therapies practiced within the remit of psychiatry, such as cognitive therapy and many forms of psychological treatment, have to be modified if they are to be useful cross-culturally. In short, it is possible in a multicultural society for a person’s attitudes, religious beliefs, lifestyle choices or expressions of cultural identity to be pathologised into a diagnosis for illness. When disparities of understanding are extreme and complicated by the eVects of stereotypes and misconceptions, there is a likelihood that serious mental illness, such as “psychosis”, can be erroneously arrived at. This is the context within which we need to consider a legal framework for compulsion based on diagnosis and treatment of “mental illness”. For the above reasons, it is our view that if wrongful detention is to be minimised and unjust imposition of drugs and other therapies avoided in a multicultural society, it is important that: — (a) “Mental disorder” is carefully and tightly defined when it is being used to deprive people of their human rights so that mistakes arising from wrongful diagnosis, misunderstanding and prejudice are avoided. (b) The conditions under which legal detention is permitted overtly address issues of race and culture. (c) The question of therapy for “mental disorder” addresses the diversity of what therapy means in practice and how it is administered. Ev 926 Joint Committee on the Draft Mental Bill: Evidence

(d) When someone who comes from a non-western background is dealt with within the system they have a legal entitlement to help through advocacy that is appropriate and culturally consistent.

References Keating, F, Robertson, D, McCulloch, A and Francis, E (2002) Breaking the Circles of Fear. A Review of the relationship between mental health services and African and Caribbean communities (London: Sainsbury Centre for Mental Health). National Institute for Mental Health in England (2003) Inside Outside Improving Mental Health Services for Black and Minority Ethnic Communities in England (London: Department of Health). Department of Health (2003) Delivering Race Equality. A Framework for Action. (London: Department of Health Publications). Norfolk, SuVolk and Cambridgeshire Strategic Health Authority (2003) Independent Inquiry into the death of David Bennett. (Chairman: Sir John Blofeld) (Cambridge, England: Norfolk, SuVolk and Cambridgeshire Strategic Health Authority).

Memorandum from Lifecraft (DMH 220)

1. Introduction 1.1 Lifecraft, is a user run, user led, mental health Charity, based in Cambridge. It oVers a number of services including a daily social club, information and advice service, a free counselling service, daily groups and an out of hours telephone helpline. Lifecraft is open 365 days a year. Members of Lifecraft actively campaign against stigma and discrimination towards Mental Health, and consistently raise awareness about mental health. 1.2 The Subjects Lifecraft wishes to respond to are: (a) Change to the deﬁnition of mental disorder (b) Wider powers to the Mental Health Tribunal (c) Patients and their representatives will lose their current rights to request discharge (d) Nominated person (e) Advocacy (f) Aftercare (g) Police Powers (h) Approved Mental Health Practitioner

2. Subject 1: Change to the Definition of Mental Disorder 2.1 The change to the definition of mental disorder as “an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain”. This is important as the broadening of the definition will bring others under the powers of the act and the change in emphasis that it is the eVect rather than the cause is also of concern. 2.2 This change broadens the definition, and as it will be about the eVect it is therefore a matter of behaviour. Lifecraft believes that the emphasis on behaviour could lead to individuals being treated under the act for acts of behaviour which may not be considered “the norm”. 2.3 This clause could be improved by re-addressing the change in definition to mental disorder, to reconsider what “mental disorder” is and redefine so it is not so broad. Also, the emphasis the eVects and resulting behaviour should be removed and changed so that it is not so ambiguous and open to abuse.

3. Subject 2: Wider Powers to the Mental Health Tribunal 3.1 Lifecraft believes that the Mental Health Tribunal is important as this body has a large amount of control over a persons’ treatment and assessment. 3.2 The clause causes concern as the decision making for detaining people will sit with the Tribunal. The initial period of assessment within ﬁve days could lead to someone being detained for up to ﬁve days without assessment with no alternative to being detained in hospital. The automatic target of 28 days from the start of assessment has led some service users to question how this will work in practice. Who will the review panel comprise of and will the consultants and other members of the panel be known to the person or have been involved in their care previously. Joint Committee on the Draft Mental Bill: Evidence Ev 927

3.3 Lifecraft believes improvements could be made by looking at how this will work in practice. The composition of the panel is important as this could have positive and negative eVects upon a persons’ assessment depending on whether a member of the panel is known to the person and the relationship that they have. If any party is known to each other, these should be declared. There should be a right to request another member of the tribunal if the person under assessment wishes. An alternative to being detained in hospital during the initial ﬁve day period is needed.

4. Subject 3: Patients and their Representatives Will Lose their Current Rights to Request Discharge 4.1 This is important as this will mean that patients can be detained at the discretion of professionals, and does not consider the views of the patient and their representatives to inﬂuence their care and recovery. 4.2 This puts all decisions in the hands of the new Mental Health Tribunal. (Concerns with Mental Health Tribunal started in Paragraph 3.) The loss of the right to request discharge by patients and their representatives takes away the right for people to be able to take decisions and inﬂuence their own care. If the Tribunal holds the decision making powers then this could lead to a delayed assessment as the tribunal may take time meet. 4.3 Patients and their representatives should have the right to request discharge.

5. Subject 4: Nominated Person 5.1 This is important as the nominated person has the ability to inﬂuence the care and treatment of the patient. 5.2 The change from nearest relative to nominated person is positive and this allows service users to be able to request whom they want to act on their behalf. The concern is that there will be no power to request discharge. 5.3 The right to request discharge to the nominated person should be reinstated. Wherever possible the Service User should have a right to nominate a person in advance. This would ensure that the nominated person has been considered whilst someone is well and the nominated person will have had the chance to discuss issues relating to a persons care and assessment in advance.

6. Subject 5: Advocacy 6.1 The proposed changes to advocacy in the Bill are important as the work and powers of advocates may be changed. The Bill places the Government with the duty to establish a scheme of Independent Mental Health Advocates to help detained patients only. There is some uncertainty where the other parts of advocacy will go. It was felt that Advocacy would become regulated, with a more speciﬁc remit by being hospital based. Advocacy in the community is considered important, as well as the role of voluntary sector advocates. The automatic right for advocates to inspect medical records was deemed unnecessary by both service users and advocates. 6.3 Clariﬁcation on the role of advocacy in the community and the role of voluntary advocates is needed. Service Users believe that there should be a role for advocates, which does not solely focus on detention. This should include any issues, where appropriate, a service user may want an advocate to support them on. Automatic access to a persons’ medical records by an advocate is not necessary. Access should only ever be given by the person themselves.

7. Subject 6: Aftercare 7.1 This is important as the Bill proposes severe changes to a persons’ care and treatment, which could be detrimental to the individual. 7.2 The abolition of the current provision of free integrated health and social care for those who are discharged from compulsory hospital treatment is a concern to service users. To be replaced by only six weeks of similar support is seen as completely inadequate. Service Users fear that this will mean people will become part of a revolving door, where they are continually discharged without the support they need and therefore ﬁnding themselves returning to the system quickly. Service users questioned what will happen after six weeks. Where provision is delayed, what will be provided when patients can be subject to up to eight weeks further detention in hospital. Many believed that this will have a major impact on those who have long-term illness, and also an impact on rehabilitation wards. 7.3 Lifecraft believes that the current provision for free integrated health and social care should be reinstated and the six weeks should be removed from the Bill. Lifecraft feels that this will be beneﬁcial to a persons health and well-being. Ev 928 Joint Committee on the Draft Mental Bill: Evidence

8. Subject 7: Police Powers 8.1 By giving police extra powers under the Bill to enter private premises without a warrant in an emergency where it is believed there is someone in urgent need of treatment is a major shift. Service Users felt that this could be open to abuse by the police and other professionals. Where the bill allows anyone to request an assessment, this could lead to the powers to be abused for domestic reasons, for example neighbour disputes. This was seen as a major infringement to some basic human rights. This could mean that anyone who comes under the new deﬁnition of mental disorder could have their premises entered by the police. This is a frightening experience, and may be detrimental to someone who is ill. 8.2 It was felt that the police powers are severe. In certain cases some service users believed that these powers could be of beneﬁt to someone who was ill, but that any action by the police should be requested by a mental health professional. If an entry had to be made, the police should be accompanied by a mental health professional. It was also stated that the police should have extensive Mental Health Awareness Training under the Bill.

9. Subject 7: Approved Mental Health Practitioner 9.1 The development of this new role is deemed important as the Approved Social Worker role will be abolished, and the new role will fulfil a number of functions under the new Bill. 9.2 The main concerns raised by Service Users were that although the new Approved Mental Health Practitioner would in eVect be the ASW role, the AMHP would not necessarily be trained social workers. This would lead to the only social element in assessment and treatment being removed, if people such as nurses could train in this role. This is important as the AMHP is part of the assessment team deciding whether people meet the five conditions. 9.3 Lifecraft believes that the focus for the AMHP should be social, and not medical, and that the social element should be an integral part of training and qualification that are being developed. October 2004

Memorandum from South Cambs User Forum (SCUF) (DMH 221)

1. Introduction 1.1 The South Cambs User Forum (SCUF) is for service users and ex-service users of adult mental health services in Cambridge City and South Cambridgeshire. The Forum meets regularly to discuss local issues regarding local service developments in mental health and also actively responds to other issues including stigma, discrimination and other issues on user involvement. SCUF is co-facilitated by Cambridge Independent Advocacy Service (CIAS). 1.2 The Subjects SCUF wishes to respond to are: (a) Change to the deﬁnition of mental disorder (b) Wider powers to the Mental Health Tribunal (c) Patients and their representatives will lose their current rights to request discharge (d) Nominated person (e) Advocacy (f) Aftercare (g) Police Powers (h) Approved Mental Health Practitioner

2. Subject 1: Change to the Definition of Mental Disorder 2.1 The change to the definition of mental disorder as “an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain”. This is important as the broadening of the definition will bring others under the powers of the act and the change in emphasis that it is the eVect rather than the cause is also of concern. 2.2 This change broadens the definition, and as it will be about the eVect it is therefore a matter of behaviour. SCUF believes that the emphasis on behaviour could lead to individuals being treated under the act for acts of behaviour which may not be considered “the norm”. 2.3 This clause could be improved by re-addressing the change in definition to mental disorder, to reconsider what “mental disorder” is and redefine so it is not so broad. Also, the emphasis the eVects and resulting behaviour should be removed and changed so that it is not so ambiguous and open to abuse. Joint Committee on the Draft Mental Bill: Evidence Ev 929

3. Subject 2: Wider Powers to the Mental Health Tribunal 3.1 SCUF believes that the Mental Health Tribunal is important as this body has a large amount of control over a persons’ treatment and assessment. 3.2 The clause causes concern as the decision making for detaining people will sit with the Tribunal. The initial period of assessment within five days could lead to someone being detained for up to five days without assessment with no alternative to being detained in hospital. The automatic target of 28 days from the start of assessment has led some service users to question how this will work in practice. Who will the review panel comprise of and will the consultants and other members of the panel be known to the person or have been involved in their care previously. 3.3 SCUF believes improvements could be made by looking at how this will work in practice. The composition of the panel is important as this could have positive and negative eVects upon a persons’ assessment depending on whether a member of the panel is known to the person and the relationship that they have. If any party is known to each other, these should be declared. There should be a right to request another member of the tribunal if the person under assessment wishes. An alternative to being detained in hospital during the initial five day period is needed.

therefore ﬁnding themselves returning to the system quickly. Service users questioned what will happen after six weeks. Where provision is delayed, what will be provided when patients can be subject to up to eight weeks further detention in hospital. Many believed that this will have a major impact on those who have long-term illness, and also an impact on rehabilitation wards. 7.3 SCUF believes that the current provision for free integrated health and social care should be reinstated and the six weeks should be removed from the Bill. SCUF feels that this will be beneﬁcial to a persons health and well-being.

8. Subject 7: Police Powers 8.1 By giving police extra powers under the Bill to enter private premises without a warrant in an emergency where it is believed there is someone in urgent need of treatment is a major shift. Service Users felt that this could be open to abuse by the police and other professionals. Where the Bill allows anyone to request an assessment, this could lead to the powers to be abused for domestic reasons, for example neighbour disputes. This was seen as a major infringement to some basic human rights. This could mean that anyone who comes under the new deﬁnition of mental disorder could have their premises entered by the police. This is a frightening experience, and may be detrimental to someone who is ill. 7.3 It was felt that the police powers are severe. In certain cases some service users believed that these powers could be of beneﬁt to someone who was ill, but that any action by the police should be requested by a mental health professional. If an entry had to be made, the police should be accompanied by a mental health professional. It was also stated that the police should have extensive Mental Health Awareness Training under the Bill.

8. Subject 7: Approved Mental Health Practitioner 8.1 The development of this new role is deemed important as the Approved Social Worker role will be abolished, and the new role will fulfil a number of functions under the new Bill. 8.2 The main concerns raised by Service Users were that although the new Approved Mental Health Practitioner would in eVect be the ASW role, the AMHP would not necessarily be trained social workers. This would lead to the only social element in assessment and treatment being removed, if people such as nurses could train in this role. This is important as the AMHP is part of the assessment team deciding whether people meet the five conditions. 8.3 SCUF believes that the focus for the AMHP should be social, and not medical, and that the social element should be an integral part of training and qualification that are being developed. October 2004

Memorandum from the Mental Health Team of the Gwent Association of Voluntary Organisations (GAVO) together with the Monmouthshire Rural Outreach Project (DMH 223) Introduction Our team consists of three Mental Health Advocacy Workers, one Rural Outreach Worker, two Mental Health Development OYcers, and one Manager/Supervisor for the team. We cover ﬁve county areas in South East Wales, broadly covering the former Gwent County—Monmouthshire; Newport; Torfaen; Blaenau Gwent; and Caerphilly. As voluntary sector mental health workers, we have several major concerns about the impact of this Bill, if enacted without signiﬁcant changes. Only a few minor aspects of the draft Bill would be welcome and we question whether new legislation is required at all. We suggest that the current Mental Health Act (1983) is better than that proposed, if it was resourced suYciently.

Summary of Major Concerns (a) The Bill is diYcult to understand. This is acknowledged by recognised experts. (b) No right of appeal to Tribunal except on point of law. (c) No mention of right to free representation. (d) Loss of independence of social perspective, (AMHP vs. ASW). (e) Trust between patient and medical carer could be damaged. (f) Reduction of existing services as resources are absorbed by new compulsion duties. (g) Erosion of important principles and deﬁnitions. Joint Committee on the Draft Mental Bill: Evidence Ev 931

(h) Some principles may exist in Codes of Practice, which can be changed without reference to Parliament or National Assembly Wales. (i) Stigma will be raised. (j) Contradiction of principles set out in National Service Framework. (k) Potential serious breaches of Human Rights.

Major Concerns (a) The Bill—as drafted—is very diYcult to understand. Courts will have diYculty in implementing justice—especially important as personal liberty is at stake. The process will be time consuming and expensive. (b) There is no right to appeal against a Mental Health Tribunal decision, except on a point of law. This constrains detainees’ rights to be less than that of a criminal, and may contravene their Human Rights. (c) There is no mention of whether a person may have a right to free legal assistance or representation. (d) Potential loss of independence by changing from requiring an Approved Social Worker (ASW) to the new “Approved Mental Health Professional” (AMHP). That person could be in same team as the Practitioner sanctioning detention, and may feel conflicting obligations. If AMHPs are medical professionals—even with training in social matters, their primary influence could be the Medical Model of care, rather than—at present—giving the essential balance of the social perspective. (e) If the AMHP is already involved in the patient’s care, this could severely damage trust and confidence between patients and professionals. (f) Changes in compulsory powers will lead to increased consumption of already stretched resources (especially in Wales) and is likely to result in severely reduced services. For example, Clinical Supervisors will be heavily involved in Tribunal preparation and attendance; already limited in-patient beds may be required for extra detainees; Doctors are likely to safeguard themselves by seeking extended detention where there is doubt about safety or relapse. (g) Poor and diluted definitions of important principles. The definition of “mental disorder” has become so wide it is no longer useful—it is essentially a “catch all” definition. The words “Care Plan”; “Advocacy”; and “Assessment” have been redefined to become so restrictive in the context of detention, that their accepted usage is severely devalued. A Care Plan normally means the core part of the Care Programme Approach—but in the context of the Bill appears to be just enough of a plan to justify that at the point of detention some treatment is identified. What is done to the patient after the point of detention is not constrained, in the Bill, to be therapeutic and beneficial. Advocacy is about speaking for—or enabling—a person, to help them understand and pursue their rights in a wide context. The Bill constrains this to the detained person being enabled to understand why they are being detained. That is not Advocacy. (h) Too many important principles have been left oV the face of the Bill. eg Equality. If principles are left to secondary legislation there is too much scope for a future Secretary of State or the National Assembly for Wales to alter how the Bill works without full reference to Parliament or the democratic process. Principles contained in the code of practice may be over-ridden [Section 1(4)]. There is scope for the abuse of vulnerable people. This is not acceptable. (i) Stigma will increase. (j) There is contradiction of important principles in the Welsh National Service Framework for Adult Mental Health Services, eg the Empowerment of Service Users vs. new aspects of Compulsion. (k) There is potential for breaches of Human Rights. While the revised 2004 draft appears to have been improved since 2002, significant danger areas remain. Our team feel it would be better to commit to resourcing the current legislation adequately, rather than to introduce a new Bill, which is likely to fail to improve services. The new Bill attempts to enable the detention of a very small number of dangerous people (closing a “loophole” in other legislation where those people cannot be detained). There are many people in our society who could be classed as dangerous to others; the vast majority are not mental health patients or service users. The use of Mental Health legislation to detain a tiny minority of these would result in increased stigmatisation of people with mental health issues—eVectively strengthening the illusion that people with poor mental health are generally dangerous to others. It is not appropriate to use Mental Health legislation for this purpose, and would be contrary to the Government’s claim to be taking measures to reduce stigma. Ev 932 Joint Committee on the Draft Mental Bill: Evidence

Response to the Scrutiny Committee’s 10 Questions 1.— Not enough Principles are set out on the face of the Bill—too much left to be addressed in the regulations/Code of Practice—providing scope for ambiguity and manipulation in the future. — Part 1 Section 1 (4) is an open exclusion clause—where the setting of principles is left to the Code of Practice, these can be selected to not apply for vague reasons. — Principles must have a practical relevance and be resourced. — Part 1 Section 1(3). To what extent will users be “involved”? Should assert “active participation” (infers sharing). — Stigma will be increased. 2. The definition of Mental Disorder is so wide that it has become almost meaningless. It is not appropriate in that it encompasses those with learning disabilities; people who abuse substances; people who may be temporarily upset eg a diabetic who displays irrational behaviour whilst suVering low blood glucose; and also many others who would not presently receive a mental illness diagnosis. 3. It is unbalanced in that public safety is held in higher esteem than people suVering with mental health problems. An ill patient detained for treatment under the proposed Bill could be at life threatening risk from being held with people detained because they are dangerous to others. This could represent a two-tier Rights situation which would be contrary to Article 2 Rights under the European Convention on Human Rights (ECHR). There is a strong criminal justice and public order element throughout, as though the government wants to be able to lock up dangerous people who cannot conveniently be detained by other legislation, by labelling them mentally disordered—even though there is no therapeutic treatment for them. This could result in a raising of social stigmatisation of people in genuine need of care—the public and press could well link “dangerous people” being detained with all suVerers of mental health problems—the vast majority of whom are of no danger to others. SuVerers would then be less likely to seek treatment voluntarily, for fear of being labelled in this way. There is no relationship with the essential need for appropriate treatment. 4. The Bill makes significant changes to the rules for detention. The capacity of the Mental Health system to detain people is already stretched, so the changes may not be workable. It would be better to properly resource the operation of the current Mental Health Act (1983), and make some minor amendments to include some good aspects of the proposed new Bill eg allow the detained person to nominate his/her representative, but for that person to have similar rights to the existing “nearest relative”. Or better still retain nearest relative, but give the patient the right to appeal for another nominated person—extending or transferring the rights that relatives have at present to the nominated person. 5. It is considered that the Bill could significantly increase the number of detainees. The framework, with the resources so far proposed, may well be insuYcient to accommodate this expansion. Carers, parents and family, and community workers may feel obliged to take the role of policing / jailer in the case of a non-resident patient. This is not appropriate to maintaining essential relationships, and recovery. The National Service Framework has not yet been implemented in Wales, as it has in England. In Wales many locations are rural and remote from services—thus it is often hard to access the few therapeutic resources due mainly to transport diYculties / distances, and costs. 6. There appear to be no safeguards against inappropriate assessment, which now involves a greater range of people. Approved Social Workers are to be replaced by Approved Mental Health Professionals— who may not be independent from clinical / medical team personnel and management. There is concern that they may not be as well trained in the social perspective, which is an essential aspect when considering withdrawal of liberty. The Advocacy role (Wales NSF) has been very severely devalued. The Bill supports only the patient’s right to understand why they are being detained. This serves merely to take that responsibility away from the health service and pass it on to the advocacy service. This will result in the much broader service currently available to patients being weakened, in order to provide the restricted service required under the new Bill. This would represent a major backward step, and would be contrary to the Wales NSF. Advance Directives—it is unclear if the Mental Capacity Bill would adequately addresses this right of choice. Undefined “emergency”—why would a patient need emergency ECT rather than eg sedation. Section 182(2)—Is there any evidence that ECT saves life? Section 183(1–4) Unclear as to whether 1 or more/all conditions to be met. Should include Choice ! appropriate treatment depending on personal histories—in line with current Welsh NSF proposals 7. As no code of practice exists or any draft has been made available, this is impossible to determine. Please see response to Question 1 on this matter, to save repetition. Joint Committee on the Draft Mental Bill: Evidence Ev 933

A fundamental example of a Principle could be Equality. 8. Need to see the Mental Capacity Bill in action before deciding. Inherent danger in having two separate definitions of Mental Disorder and Mental Capacity. Mental capacity should be the default until proven otherwise. Having a mental disorder should not be the default. Advance Directives—it is unclear if the Mental Capacity Bill would apply or adequately addresses this right of choice within the context of Mental Health eg choice about whether or not to have ECT, or to choose a previously successful medication and reject one which previously had unpleasant or dangerous side eVects. 9. Appears to contravene Articles 2, 3, 5 & 8 of the ECHR. An example of recent case law is ECHR Judgment (Strasbourg 5th Oct 2004). CASE OF H.L. v. THE UNITED KINGDOM (Application no 45508/99) New “Right” to nominate can be over-ruled by professionals—seems to be a pseudo-right. 10. It is already diYcult to obtain treatment, and particularly appropriate treatment in the community, in Wales, which is predominantly rural. The Wanless report, examining the Welsh situation, stated that there is currently a £65 million deficit in Health Services. How then can the extra costs of this MH Bill be delivered? The RCP estimate the need for an extra 70 Psychiatrists to implement the current proposals. There are already unfilled Consultant vacancies. The Bill seems likely to swallow up existing monetary and professional resources, and consequently further reduce baseline services. There is likely to be irrecoverable damage to trust within the relationship between mental health professionals and the patient (policing/jailer). Stigma will increase—contrary to the NSF intention. According to recent research on rural mental health, high levels of suspicion and stigma colour the perception of mental health services by people in rural areas (University of Exeter Rural Stress Review). Rural people with mental health needs already find it diYcult to seek help, despite eVorts from workers to break down barriers in local communities. The proposed Bill is likely to cause potential patients in all areas to avoid seeking help, and could exacerbate disengagement from services, with consequences for community health. The experience of Social Stigma is one of the factors which adds greatly to the suVering of patients, and to the un-necessary fear of the public. It serves the insensitive and agitating elements of the media, and associated cynical political manipulation. October 2004

Memorandum from Esther Cook, East SuVolk Mind (DMH 224) 1. Introduction 1.1 I have been asked to write to you on behalf of East SuVolk Mind about our concerns re: the Draft Mental Health Bill. We have been monitoring the progress of this piece of legislation for some time, as we have concerns that this Bill, should it become law, will extend the powers of compulsion to an extent which would render the services we provide much less eVective in supporting people in their recovery from mental health problems, and could in fact be a threat to the human rights of the people who use our services. As it stands, the Bill is a great missed opportunity in terms of the rights to treatment and advocacy. Because of these concerns, we have held brieﬁng workshops and a public meeting with our local Ipswich MP, Chris Mole MP. We have been able to gather some of the concerns of people with frontline experience of mental health, whether as service users, carers, workers or volunteers from these meetings. I therefore wish the committee to treat this memorandum as evidence. 1.2 I will deal with the following: — Compulsory Treatment — Right to treatment — Individual choice

2. Compulsory Treatment 2.1 The feedback we have had shows that while most people agree that there is a case for compulsion as a last resort, there are concerns that the new bill will increase the likelihood of an individual coming under compulsory treatment. 2.2 The Bill increases the likelihood of compulsion for several reasons: Ev 934 Joint Committee on the Draft Mental Bill: Evidence

— The definition of “mental disorder” is far wider than previously. — The definition of “treatment” which falls under compulsory powers is far wider than before and includes things like counselling. — Anyone can refer anyone else for examination, and this includes the capacity for detention in a mental hospital. — There are no enough safeguards around ECT/psychosurgery. — In addition, the widening of these definitions means that people will no longer trust mental health services. For instance, people are concerned that people using services would feel unable to talk honestly about what was worrying them. This is likely to lead to service users bottling up worries, becoming unwell, and compulsory powers being used as a result. 2.3 There should be more provision for advance directives, advocacy and account taken of the capacity of the person. The definition of both mental disorder and compulsory treatment should be review in line with current mental health good practice. Powers of referral for examination should be limited. No one should be forced to undergo treatment against their wishes.

3. Right to Treatment 3.1 People are not gaining access to services voluntarily fast enough. We have countless examples of people waiting for services such as hospital care, social workers, counselling and so on. If people had access to these services more quickly on a voluntary basis, people would be much more eVectively supported in their recovery 3.2 There is no provision for the right to treatment in the current Bill. 3.3 Provision should be made in law for access to services to underpin current policy eg National Service Framework.

4. Individual Choice 4.1 This is important because if the person with mental health problems is involved in their treatment they are much more likely to get the right treatment for them and therefore recover more quickly. The feedback we have received is that people are concerned that the current Bill does not provide for the individual’s rights to choose their treatment or to choose the support they have in upholding these rights. 4.2 There is not enough provision in the Bill for the person with mental health problems to choose who they want to support them, eg at examination stage provision is only made for an informal carer to be involved, not a paid worker, even though in some cases the person may prefer the latter. There is also not enough provision in the Bill for recognition of advance directives made by people specifying the treatment that they want to receive and the people they want contacted in crisis. 4.3 Provision should be made for the person with mental health problems to have a choice of nominated person. Provision should also be made to uphold advance directives. October 2004

Memorandum from South East Advocacy Projects (DMH 225) Mental Health Advocacy, My Choice, Xpress Advocacy Service and ICAS are all projects working to the executive committee of SEAP (South East Advocacy Projects), a registered charity No 1080679. SEAP provides advocacy and related services to a wide range of client groups across the South East including: — Adults with mental health issues. — Children and young people who are Looked After, left care, have a physical or learning disability or who have a mental health diYculty. — Adults with learning diYculties. — Anyone wishing to make a complaint about their NHS healthcare. Due to the time constraints regarding the consultation period of the Bill we have been limited to responding jointly on the following themes:

Definition The definition of mental disorder—“an impairment of or a disturbance on the functioning of the mind or brain resulting from any disability or disorder of the mind or brain.” The definition needs to be set against the conditions for compulsion. The conditions include the treatment of the “dangerous patient”; the distinction between the adult/young person’s, ‘dangerous patient’ and Joint Committee on the Draft Mental Bill: Evidence Ev 935

“best interest” may be lost by the general public. Because of the deﬁnition being so broad and the widening of treatment being both hospital and community based more young people could fall within the scope of compulsion under this bill.

Consent to Treatment For 16–17 year olds the Bill gives the same rights as to adults they can consent and also refuse treatment as adults. Under 16 years a child or young person can only be treated if parental consent is given, this can also be obtained from any one who holds parental responsibility for the maximum of 28 days, thereon after treatment can only be authorised by a Mental Health Tribunal. Disputes between parents and children regarding consent be should the Tribunals responsibility to resolve this should help to eliminate all forms of abusive form parents and act as another safeguard.

Young People Under 16’s have Children / young people have the right to refuse physical treatment—Gillick there is no reference to this % level of understanding and consequences. Children Act give the right of assessment regarding social need therefore this should be taken into consideration when assessing children and young people. If Children and young people are detained under the MH Act what happens to their education? All professionals working with children / young people must be subject to CRB checks and should be children / young people specialist this should also include the specialist advocate. Where children and young people have special requirements eg, language needs, learning disabilities, or physical disabilities; professionals should have access to specialist skills/tools. Where the MHT is refusing children / young peoples wishes, there must be a rationale for the decision that is acceptable to the patient. Concerns that young people will feel deterred from seeking help re: depression, suicide, bullying and sexuality; they may feel due to the breath of he deﬁnition they will be held under the new Act and forced to take medication and could be detained indeﬁnitely.

Advocacy Concerns Presently although there are no dictates surrounding advocacy provision, it is seen as good practise, therefore many advocacy services are presently being supported by statutory funders. Within the advocacy advisement in the new bill there are allocations for 140 full time advocacy positions, but the funding will not be ring fenced. The possible outcome of this is that statutory funders will only see the importance of funding advocacy provision as outlined under the new bill. The new bill indicates that advocacy should be provided for those seen as most vulnerable, these being sectioned patients and their carers. Presently a very large proportion of our work is with voluntary / informal patients and those being supported in the community. If we were to lose funding for our support of those individuals it would be a terrible loss for the advocacy providers as well as the individuals we serve. We see this as an unwitting side eVect of the present draft bill. We understand that the study undertaken by Di Barnes at the University of Bristol and sponsored by the Dept of Health was foundational in drafting the recommendations for advocacy within the bill. South East Advocacy Projects consists of four individual specialist advocacy services, and is a major advocacy provider within the South East. Over a year ago we took the time to attempt to comment on the study and were told that comments were not being accepted at that time. A major concern for us around the study is that it presents one view and is not representative of the views or practise of all advocacy providers. Because advocacy is by its very nature a user led and empowered process and service, it will obviously diVer greatly in its practise and implementation dependant upon clientele and their needs and wishes. To formulate advocacy provision deﬁnitively we see as being quite problematic. We as a service see all our clients whether sectioned or informal as being equally vulnerable and any precepts that limit our service provision to this very vulnerable group of people would be quite tragic. We would urge you as policymakers to take another look at this section and possibly to consider consultation with a wider cross section of advocacy providers and service users. We also would ask that you consider ring fencing the ﬁnancing allocated for the provision of advocacy services. Ev 936 Joint Committee on the Draft Mental Bill: Evidence

Nominated Person Children and young people will have the right to an authorised Nominated person of their choice providing the person is suitable, they will also have the right to a specialist advocate and to challenge their treatment through the Mental Health Tribunal in the ﬁrst 28 days, only once this seems extremely restrictive It seems that the advocate and or the Nominated person was appointed at the initial stage. We also see it as a conﬂict of interest for Specialist Mental Health Act advocates to be acting as supports for both service users and their nominated persons. We do not deny that nominated persons may well need advocacy support but we do feel that it should clearly be a separate support.

Approved Mental Health Act Practitioner The loss of the Approved Social Worker role will have a major impact on those individuals experiencing mental health diYculties, as well as people with learning diYculties, children and young people. It could potentially mean a totally medical assessment team and seems at odds with the accepted good practise of a medical/ social balanced approach to care. We as an organisation are very pleased at the elements of the bill that address patient choice and allow for more support within a community setting but would like to voice our concerns over the above issues in the present draft. Ros Starling County Manager Xpress Advocacy Service Trudi Allen County Manager My Choice Advocacy Service Annie Flores County Manager Mental Health Advocacy Service October 2004

Memorandum from Malcolm Turner, Chair Peterborough and Fenland Mind (DMH 226)

1. Introduction 1.1 Peterborough and Fenland Mind provides a range of mental health services across Peterborough City, Fenland DC and Cambridgeshire C.C. User involvement is central to our mode of operation and we are therefore in a position to submit this evidence to the joint committee about user concerns regarding some of the current content of the Mental Health Bill. 1.2 The subjects that concern us are: — A right to access services. — Compulsion should be avoided if possible. — Advocacy. — Advance directives. — Aftercare and support services that are socially inclusive. — Tribunals. — Police powers.

2. Access to Services 2.1 A frequent concern expressed to us by service users is that they often have diYculty in accessing services when they are needed. People often know when they are feeling unwell and in the absence of community based services seek admission or support from ward based staV. This support when not available then results in people continuing to get unwell to the stage where crisis point is reached they are admitted compulsorily. This is not helpful to people and is a poor use of resources. 2.2 The Care Programme Approach (CPA) has been in place since 1991 but in many places is still not eVective. CPA could be a powerful tool in providing person centred care that would improve outcomes for people, their carers and for staV. 2.3 Poor discharge arrangements and lack of post discharge support does add to the revolving door syndrome. Joint Committee on the Draft Mental Bill: Evidence Ev 937

3. Compulsion Should be a Last Resort 3.1 For many people hospital admission is a very negative experience compulsion aggravates this negativity. These proposals will increase the numbers of people subject to compulsion. The accompanying process of tribunals etc will divert resources from services into bureaucracy. 3.2 People with mental health problems suVer discrimination more than any other group. Compulsion to receive treatment when a person has mental capacity increases this level of discrimination and further endorses public perceptions of dangerousness. 3.3 Many people have poor experiences of the mental health service and avoid contact if they can. If compulsion becomes easier they will again not want engagement. 3.4 Such people may often ﬁnd it easier to engage with voluntary sector services. The voluntary sector though is usually under funded and ﬁnds diYculty in getting positive support from clinical services. 3.5 People on a section already have diYculty in getting properly discharged from hospital. If they are subject to a community compulsion order how readily will they be discharged from the order? 3.6 To what extent will being on a community order prevent people from obtaining accommodation, employment, bank account etc? 3.7 Compulsion is not something that aVects a person in isolation. It impacts on the whole of their life, family, friends, employment, and accommodation. Viewing compulsion from a clinical perspective alone may (and often does) have a devastating eVect on a persons life which for some is never recovered.

4. Advocacy 4.1 Advocacy services are currently under provided and are limited in scope. The proposals in the bill are broadly welcomed but access to an advocate should be made available at the examination stage. 4.2 As above a paid carer or volunteer should be available if the person so desires. It should also be recognised that relatives do not always willing or able to represent the clients best interest. 4.3 In current practice there are often tensions between advocates and clinical staV with the latter being unwilling to co-operate and to accept the involvement of advocates.

5. Advance Directives 5.1 As outlined in 2.1 above people know from experience what works and what doesn’t when they are or are becoming ill. This may extend beyond treatment and may include arrangements for ﬁnance, employment, pets etc These may be of real concern to a patient where compulsion is being considered and their satisfactory resolution may help reduce the crisis. As individuals we are usually happier when we feel in control of any situation advance directives oVer patients some of this control. 5.2 Advance directives are increasingly recognised in other spheres and disability groups. There is an opportunity for them to be enshrined in this piece of legislation.

6. Aftercare Services 6.1 There is a need to ensure that people receive necessary support and treatment after discharge. Current local discharge arrangements are inadequate, there is limited supported accommodation, CMHTs work from 9–5 Mon to Fri. Vocational support and employment opportunities are also limited. 6.2 Given the paucity of limited community based services it is inevitable that people who have been admitted under compulsion remain in hospital for longer than is necessary. This cannot be in any one’s interest nor sit easily with civil liberty. 6.3 The OYce of the Deputy Prime Minister recently published a report about social exclusion and mental health. The new bill should take this as its underlying theme. Treatment and compulsion should all be geared to helping people remain in the community. 6.4 Too often at present people remain within the mental health system for so long that they lose the social and living skills. Inactivity on the wards creates dependency. Maintaining a persons skills and independence while on the wards would be a more eVective approach.

7. Tribunals 7.1 The existing system of tribunals is time and resource expensive. People often have diYculty in understanding the system and there are long delays in getting a hearing. 7.2 The present levels of advocacy services is inadequate and patients face delays in seeking advice. 7.3 The bills proposals will make this process even more complex and also is weighted toward the system rather than to the patient. People will remain in hospital for longer than is necessary. Ev 938 Joint Committee on the Draft Mental Bill: Evidence

7.4 Most other parts of the NHS are trying hard to reduce the length of time people stay in hospital and there are rules and penalties for delayed discharges. This has led to a number of initiatives that provide for community based support services. Why should this not also be the case for the Mental Health part of the NHS?

8. The Police 8.1 The police at present do have some diYculty in operating within the present system. At a recent local incident the police delayed becoming involved because a) they were not aware that the person was on a section but on home leave and b) were unsure that the location of the incident was in a public place. 8.2 It does not seem to be necessary to extend police powers but rather to improve joint training so as to improve police awareness of mental health issues. October 2004

Memorandum from imagine (DMH 228)

SUPPORTED BY WELFARE ORGANISATIONS COMMITTEE

Summary of the Submission 1. This submission makes reference to the following points about the Draft Mental Health Bill: — The conﬂict between the draft bill and the social inclusion agenda. — The concern that people will become more isolated. — The anxiety people would experience over compulsory treatment. — The unequal relationship that would be created by compulsory treatment. — The diYculty that people may not seek help because of compulsory treatment. — The concern over proposals to be able to give ECT without consent. — The fact that the balance is weighted towards protecting the public. — The independent advocate becoming involved in the process too late. — The need for the advocate to be completely independent. — The belief that Section 117 aftercare rights should remain.

Brief Introduction about imagine. 2. imagine is a leading mental health charity working primarily in the North West of England. We currently support 1,500 service users, employ 200 staV members and are fortunate to have the support of many volunteers. 3. We have a positive approach to mental health and work to promote opportunities for people to live a full and independent life. We provide services in the two main areas of Accommodation and Life Opportunities. 4. imagine’s Accommodation schemes provide quality housing and support. We provide numerous housing services, including specialist schemes, such as women’s only supported housing projects. Our Life Opportunities services give individuals the chance to develop skills and friendships, as well as explore dreams and ambitions. 5. Our pioneering Mainstream social inclusion project involves people who experience mental ill health in mainstream activities and pursuits of their own choosing. 6. Mainstream was recently recognised as a model of good practised in the Mental Health & Social Exclusion Report (ISBN: 1851127178) from the OYce of the Deputy Prime Minister’s Social Exclusion Unit. We have also been highly commended by the National Institute for Mental Health in England (NIMHE) for our work promoting social inclusion. 7. imagine has recently been selected by the Department of Health to provide the High Support Women Only Funded Pilot for the North West. The accommodation scheme will be located in Salford, Greater Manchester. It is speciﬁcally for women being discharged from medium and secure care services, will be gender sensitive and responsive to the individual needs of the women. Joint Committee on the Draft Mental Bill: Evidence Ev 939

The Submission 8. At a recent meeting of 200 people, most of whom were service users, we discussed the following proposals and agreed to make this submission. 9. This submission is supported the Welfare Organisation Committee in Liverpool (WOC). WOC has a membership of over 110 voluntary health and social welfare charities with a citywide remit and / or networking role. The committee provides a forum for the consideration of policy and planning issues, articulating the voluntary sector’s voice and supporting voluntary sector input on key planning bodies for health and social services. 10. WOC aims to be a voice on behalf of adult health and social care organisations to public bodies and other agents and to be a channel for statutory and public bodies to communicate with voluntary organisations. 11. imagine feels that there is a great deal of conﬂict between the values of the this Draft Mental Health Bill and the social inclusion agenda which is being promoted by the OYce of the Deputy Prime Minister’s Social Exclusion Unit. 12. We strongly believe that the Draft Bill will increase stigma and will pander to ignorance if it becomes law, while the work of the Social Exclusion Unit works to challenge this. 13. We feel that the Government agenda of social inclusion should be further pursued and that there needs to be uniﬁed social inclusion messages being disseminated by the Government. 14. At imagine we are concerned that the Draft Bill, if it were to become law, would result in isolating the people who require help and support. 15. We feel that it is important to stress the anxiety that service users would experience if this Draft Bill were to become law, especially in relation to compulsory treatment. 16. We believe that the proposed introduction of compulsory treatment would lead to an unequal relationship between the people providing and people receiving support. 17. We feel that the element of compulsory treatment might result in a number of people who require treatment not wanting to contact mental health services. We believe that this will result in social exclusion, which is the exact opposite of what is required to create a more socially inclusive society. 18. It is recognised that the Draft Mental Health Bill states that there is the possibility for electroconvulsive therapy (ECT) to be given without the consent of the person receiving the treatment. We feel that this is not appropriate and do not support such practices. 19. In response to the question of whether the Draft Bill achieves the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other, we feel that the right balance has not been achieved. At the moment the balance is greatly weighted towards concerns for public and personal safety. We strongly believe that this balance needs to be redressed. 20. We believe that the introduction of the right to an Independent Mental Health Act Advocate (IMHAA) is a positive development, however the right to an independent advocate is not available until after assessment has been made. 21. We strongly believe that the role of the independent advocate should be introduced prior to assessment, so that the rights of the person being assessed are safeguarded, and that they have the support that is required during this part of the process. In addition to this, we feel that the advocate should be a completely independent representative. 22. We believe that Section 117 Aftercare Rights should not be removed, as it safeguards the well being of people at a crucial stage in their recovery.

Conclusion 23. In response to the question of whether the proposals contained in the Draft Mental Health Bill are necessary and workable imagine feels that for the reasons outlined above this is not the case. 24. imagine believes that if this bill was to become law in its current form then the good work that has been done to achieve greater social inclusion would be seriously undermined. 25. We hope that you will take these comments into consideration when considering this matter. Thank you very much for taking the time to read this submission, your assistance is much appreciated. October 2004 Ev 940 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from the Mental Health Foundation and the Foundation for People with Learning Disabilities (DMH 229)

1. Introduction and Summary 1.1 The Mental Health Foundation, incorporating the Foundation for People with Learning Disabilities (“the Foundation”) is the leading charity in the UK working in mental health and learning disabilities. We work to promote mental well-being for everyone and encourage improvements in the quality of life for people with mental health problems and people with learning disabilities. We seek to achieve these goals by supporting improvements in policy and services across the UK, through a range of activities including, research, training and information provision. The Foundation is a member of Mental Health Alliance. 1.2 We have serious concerns about the proposals set out in the draft Mental Health Bill 2004 (“the draft Bill”) While there are some positive aspects, such as the specific safeguards for children and young people, the main provisions of the draft Bill are misconceived and fundamentally flawed. Our main concerns are summarised as follows: — The combination of the broad definitions of mental disorder and medical treatment, together with the conditions for compulsion may lead to an increase in the number of people subject to compulsion and cause confusion about the application of compulsory powers. — The Bill is lengthy and confusing, thereby compounding the diYculties for all those seeking to understand the procedures involved, which are cumbersome and complex. Its introduction will seriously undermine the positive aspects of mental health policy and is likely to give rise to the infringement of the rights of individuals with mental health problems. — While the introduction of independent mental health advocates is welcome, we consider that the Bill should provide an enforceable right to advocacy. — There should be an independent specialist mental health body, which has similar powers to those of the Mental Welfare Commission, as set out in the Mental Health (Care and Treatment) (Scotland) Act 2003. — There is insuYcient integration between the Mental Capacity Bill and the draft Mental Health Bill. Neither of these Bills provides the necessary safeguards for individuals who lack capacity to consent to their admission to hospital and treatment for mental disorder. The European Court of Human Right’s decision in HL v the United Kingdom has highlighted the failings of the current legal system to protect the rights of such individuals and we urge the Government to take action to remedy the situation as a matter of urgency. — The circumstances in which people with learning disabilities may be made subject to the compulsory provisions of the draft Mental Health Bill is unclear. It is imperative that the relationship between “common law”, mental health legislation and mental capacity legislation are clarified in order to enable practitioners to apply the law appropriately and ensure respect for the rights of people with learning disabilities and others who lack capacity to make treatment decisions for themselves. 1.3 In conclusion, we consider that this draft Bill will do little to improve the experience of those who use mental health services. The proposed compulsory powers are likely to exacerbate, not alleviate, the stigma attached to mental ill-health and increase the social exclusion of people with mental health problems.

2. Mental Disorder and the Conditions for Compulsion (Theme 2) 2.1 The combination of the broad deﬁnitions of “mental disorder” and “medical treatment”, together with the conditions for compulsion may lead to an increase in the number of people subject to compulsion and cause confusion about the application of compulsory powers. 2.2 Potential increase in the number of people subject to compulsion The deﬁnition of mental disorder is tautological and too broad. Under the Mental Health Act 1983 (the MHA 1983) individuals can only be subject to compulsory treatment powers, if they are assessed as requiring treatment in hospital. This link has been removed by the draft Bill. Furthermore, whereas the MHA 1983 states that individuals cannot be treated as having a “mental disorder” “by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs”, there is no such exclusion in the draft Bill. 2.3 We share the Government’s desire to ensure that certain people are not excluded from receiving treatment that they need. However, the purpose of mental health legislation is to provide treatment and care for people with mental disorder, not to set up mechanisms for controlling people whose behaviour deviates from prevailing social norms. We are concerned that the draft Bill extends compulsory powers beyond the care and treatment of mental disorder. For example, under the draft Bill, individuals could be required to receive counselling for a drug dependency. Whereas there are circumstances in which individuals can be required by a court order to comply with a treatment plan for their drug dependency following a criminal conviction, the draft Bill will apply to individuals who have committed no criminal oVence. Furthermore, Joint Committee on the Draft Mental Bill: Evidence Ev 941

he evidence suggests that such counselling is only eVective if the individual is motivated to overcome their dependency problems and works as a partner in their own treatment. This cannot be achieved by compulsion. 2.4 Potential to create confusion The fourth condition for compulsion (medical treatment cannot lawfully be provided without the patient being subject to formal powers) suggests that where a person, for example an individual with learning disabilities, could receive treatment under “common law” (or perhaps, in the future, a Mental Capacity Act) the powers under the draft Bill cannot be used. However, this should be made clear on the face of the Bill. This raises the lack of clarity on the relationship between the draft Mental Health Bill and the Mental Capacity Bill (discussed below). 2.5 However, the draft Bill provides that the fourth condition does not apply to individuals over 16 who are considered to be “a substantial risk of causing serious harm to other persons”. The Explanatory Note states that in such cases “no proof is required that it was necessary to bring the person under formal powers”. This seems to contradict the principle of taking the least restrictive alternative, described in Clause 1(3). Furthermore, it is not clear whether formal powers must be used where the person is considered to be dangerous or whether this is discretionary. Clause 9(8) states “a determination as to whether a patient is at substantial risk of causing serious harm to other persons is to be treated as part of the determination as to whether all of the relevant conditions appear to be or are met in his case.” The meaning and eVect of this provision is not clear. 2.6 Conditions of compulsion highlight the emphasis on “risk” The points made in paragraph 2.4 above highlight the emphasis on risk. This is also clear from the third condition for compulsion. This condition can be met if it is necessary for the “protection of other persons” that medical treatment be given to a person. While we recognise the Government’s responsibility for protecting the public, we are concerned that there is insuYcient clarity on what level of risk to others would come into this category. Whereas the same phrase is used in the MHA 1983, its application is far more limited as it is linked to the need for detention in hospital. For example, section 3 of the MHA 1983 would apply to a person assessed to have a “mental illness” if this is considered to be “of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital” AND “it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.” Without the links to the need to require medical treatment in hospital we are concerned that the vague concept of “protection of other persons” may apply to a wide range of situations which would not fall within the MHA 1983. This is of particular concern given the wide definition of “mental disorder” and “medical treatment”. 2.7 Impact on people with learning disabilities is unclear The confusion surrounding the compulsory treatment provisions of the Bill is of particular concern in relation to people with learning disabilities. Under the Mental Health Act 1983 long term compulsory powers may only be applied where a person with learning disabilities exhibits “abnormally aggressive or seriously irresponsible conduct”. However, given that the broad definition of mental disorder is used for all compulsory powers under the draft Bill, the circumstances in which such powers may be applied to people with learning disabilities is unclear. For example, as discussed above in paragraph 2.4, presumably if a person with learning disabilities can be treated under “common law” (or, in the future, under Mental Capacity legislation) then the Mental Health Bill’s provisions will not apply unless the person with learning disability is considered to present “a substantial risk of causing serious harm to other persons”. However even where a person is considered to pose a risk to other people, it is not clear whether the formal powers under the Bill must be used. It is imperative that these issues are clarified in order to enable practitioners to apply the law appropriately and ensure respect for the rights of people with learning disabilities and others who lack capacity to make treatment decisions for themselves. 2.8 Lack of clarity on care planning and conditions imposed on non-resident patients The process for deciding what conditions may be imposed on non-resident patients is unclear. For example where the Mental Health Tribunal (MHT) makes an order authorising medical treatment in relation to a non-resident patient, the MHT must specify the conditions to be imposed to “secure that the treatment may be provided to him”. The Bill gives little detail on the type of conditions that may be imposed, stating that they can include requiring the patient to attend specified places at specified times, reside at a specified place and “make himself available for treatment during specified periods”. However, clause 53 makes clear that they can also include a requirement to accept “care services”. The definition of “care services” includes all the services defined under the NHS & Community Care Act 1990, save for section 117 MHA 1983 (the draft Bill does not include an equivalent provision) and the Explanatory Note suggests that such services will include home helps and day care services. This means that non-resident patients can forced to receive services such as “home help” and “day care services”. 2.9 The Government states that the care plan in the draft Bill refers to the compulsory element of the care plan, which is “only one element of the CPA process”. Thus, presumably a non-resident patient’s plan under the Care Programme Approach (CPA) may include the provision of some services which the person must accept and some that the person may decline from time to time (if the patient refused services consistently Ev 942 Joint Committee on the Draft Mental Bill: Evidence

this should, in theory, trigger a review of the CPA care plan). However, it is not clear how the decisions are reached about what, if any, conditions should be imposed on a non-resident patient and, where this includes requiring the person to accept services, who will be responsible for ensuring that these services are provided. 2.10 Similar concerns were raised in relation to the initial draft Mental Health Bill. Paragraphs 4.4. and 4.5 of Improving Mental Health Law—Towards a new Mental Health Act (Department of Health, September 2004) sets out the areas of concern and the Government’s response as follows: 4.4 Issue: There was concern that those responsible for the CPA will have no formal right to input to the care plan or make representations to the Tribunal. There was also concern that professionals may have to implement decisions to which they object, and about which they have not been properly consulted or given the opportunity to make representations and which they may consider are not in the patient’s best interests. Respondents also noted that the focus of the care plan may be on medical treatment, but that it should cover both health and social care needs. 4.5 esponse: In reaching a decision, the Tribunal will have regard to the report received from the Expert Panel member(s) who may visit, interview and examine the patient and inspect any relevant records. Any changes proposed by the Tribunal will need to be agreed by the clinical supervisor and the detail in the care plan in principle will need to be agreed with service providers. 2.11 The Government has failed to address what seems to be the major concern raised in this “issue”, namely that the important role of the range of agencies and professionals who should be involved in the planning and provision of individuals’ care is not recognised in the Bill. This is a serious omission from the draft Bill. The potential negative impact on joint working is discussed below.

3. Are the Proposals in the Bill Necessary,Workable,Efficient and Clear?Are there any Important Omissions in the Bill?(Theme 4) Is the Bill in Full Compliance with the Human Rights Act?(Theme 9) 3.1 The Bill is misconceived and fundamentally ﬂawed. It is lengthy and confusing, thereby compounding the diYculties for all those seeking to understand the procedures involved which are cumbersome and complex. If introduced, the Bill would seriously undermine the positive aspects of mental health policy, such as the emphasis on joint working between agencies to address individuals’ health and social care needs. It is also likely to give rise to the infringement of the rights of individuals with mental health problems. Some particular areas of concern are as follows: 3.2 Undermines joint working between agencies involved in mental health care We are concerned that the draft Bill threatens to undermine the practice of joint working within mental health care. Despite the development of multi-disciplinary mental health teams and the emphasis on joint working in key policy documents such as the National Service Framework for Mental Health and legislation such as the Health Act 2000 (which allows NHS bodies and local authorities to pool budgets and delegate functions to each other), no mention is made of the role of the diVerent agencies in providing care and support to people subject to the Bill’s compulsory powers. 3.3 For example, the Bill reduces the involvement of social care professionals to a minimum. While AMHPs will be appointed by local authorities and are intended to have similar training to ASWs, their input is limited to the examination and assessment stages. No mention is made of social care professionals in relation to the preparation of the care plan or the application to the Mental Health Tribunal. In fact the focus of the care plan is “medical treatment” and the clinical supervisor has sole responsibility for preparing it 3.4 By comparison, care plans under Mental Health (Care and Treatment) (Scotland) Act 2003 must include much more detailed information, such as the community services to be provided and requires the person preparing the care plan to consult with those who would provide medical treatment, community care services and other treatment or services. 3.5 InsuYcient provision to address the needs of people who use mental health services A major omission of this Bill is its failure to provide a right for individuals to have a comprehensive assessment of their mental health needs and to have these needs met by good quality services. This is particularly important given that individuals can be required to accept services as non-resident patients. If the conditions imposed on individuals are unnecessarily restrictive or intrusive, these may constitute a breach of article 8 ECHR (the right to private and family life). 3.6 Compulsory powers exercise control over people without the means of ensuring that they receive the care and treatment that they need For example, the Mental Health Tribunal must defer the discharge of resident patients for a period of up to eight weeks if a plan for the individual’s aftercare is not in place. However, there is nothing in the Bill to require health and social services to work together to assess the person’s aftercare needs. There is no equivalent of section 117 MHA 1983 which makes clear that health and social services must provide individuals who have been detained under the longer term treatment provisions of the MHA 1983 (such as section 3) with the aftercare services that they have been assessed to need. This failure to establish a clear legal framework for joint working may result in the deferral of discharge for many patients. Although the Joint Committee on the Draft Mental Bill: Evidence Ev 943

European Court has confirmed that discharge may be delayed for a reasonably time, a further eight weeks of detention may not be considered reasonable in all circumstances. It would also be costly and might impose an unnecessary burden on inpatient services. Conversely, because there is no equivalent of section 117 patients might be discharged prematurely by their clinical supervisor where there is no agreement or consideration given to their aftercare needs or other factors such as pressure on beds. 3.7 Drastic limitation to provision of free after care services Limiting the provision of free social care to the first six weeks after detention in hospital is likely to mean that individuals will either not pay for the services provided or will stop receiving them. This is a major step back from the current position. 3.8 Advance Statements We are extremely disappointed that the Government has declined to include advance statements in the draft Bill. Research undertaken by the Foundation and others on the use of advance statements in mental health practice suggests that while there are significant barriers to their general use (such as lack of guidance on their use and concern that they can be ignored) advance statements can enable service users to have a greater input into the care and treatment that they receive.

3.9 The Government’s view that advance statements should not override formal powers when treatment is necessary, is not a good reason for omitting them from the Bill. The Health (Care and Treatment) (Scotland) Act 2003 addresses this by providing that advance statements should be taken into account but also stating that if decisions are made which conﬂict with the advance statement, the reasons for this must be recorded in writing. We consider that where individuals have made an advance refusal of treatment, such treatment should not be given unless this is speciﬁcally authorised by a Tribunal. 3.10 Advance Refusals of Treatment Under existing case law individuals have right to make advance refusals in relation to treatment for their physical disorders. This right is enshrined in the Mental Capacity Bill. It includes provision for people to make advance refusals of treatment whereby a person with capacity clearly states the circumstances and treatment they would wish to refuse should they lack capacity to consent in the future. However, these could be over-ridden if the person is subject to compulsory treatment under the existing Mental Health Act 1983 and there is nothing in the Mental Health Bill to indicate that this would not continue to be the case. 3.11 This would therefore appear to discriminate against people with mental disorders who should have the same rights, unless there are exceptional circumstances such as the likelihood of causing imminent and serious harm to self or others, as people with physical disorders. This seems particularly anomalous when one of the Government grounds for defending the inclusion of advance refusals in the Mental Capacity Bill is that they can be used to enable people to exercise some dignity and control over their treatment and care at the end of their lives, yet prevent advance refusals from being used by individuals in non-life threatening situations solely on the basis that they have a mental disorder.

4. Adequacy of Safeguards (Theme 6)

4.1 Mental Health Advocates While the introduction of independent mental health advocates is welcome, we consider that the Bill should provide an enforceable right to advocacy. Without a clear right to advocacy and the necessary funding to ensure that such advocacy is available we are concerned that this right will not be realised for many people. Advocacy services should be not be limited to when the compulsory powers are engaged. For example the assistance of an advocate will be crucial, for many people particularly those with learning disabilities, at the examination stage when they may want to have information about what is happening and why. Again, the Mental Health (Care and Treatment) (Scotland) Act 2003 is a helpful comparison—it provides a right of access to independent advocacy to all mental health service users. 4.2 Abolition of MHAC We consider that there should be an independent specialist mental health body, which has similar powers to those of the Mental Welfare Commission, as set out in the Mental Health (Care and Treatment) (Scotland) Act 2003. If the MHAC is to be replaced by CHAI, it is vital those staV and members of CHAI responsible for overseeing the exercise of the functions of the new mental health legislation have a range of expertise in mental health. While the inclusion of powers to visit and interview patients is welcome, we are concerned that this still falls short of the regular visits carried out by the MHAC, which provided patients with an opportunity of meeting with individuals who were independent of the hospital and could take up issues on their behalf. Ev 944 Joint Committee on the Draft Mental Bill: Evidence

5. Integration with the Mental Capacity Bill (Theme 8) 5.1 There is insuYcient integration between the Mental Capacity Bill and the draft Mental Health Bill. 5.2 Context: Lack of safeguards for people without capacity In HL v the United Kingdom (2004), the European Court of Human Rights held that a man who lacked capacity to agree to his admission to hospital to receive mental treatment for his mental disorder was detained and that there were insuYcient safeguards to protect him from arbitrary detention. While this decision was issued after the publication of both the Mental Capacity Bill and the draft Mental Health Bill, the Government has been aware of the lack of safeguards for those people who are unable to make decisions about their admission to hospital for treatment for mental disorder since 1998. In that year the House of Lords held that people who lacked capacity to consent to their admission to hospital for treatment for mental disorder but did not object to this could be admitted informally ie without the need to detain them under the MHA 1983. The eVect of this judgment was that none of the safeguards for those detained under the MHA 1983 are available to such informal patients. This was described by one of the Law Lords as an “indefensible gap” in mental health law and is commonly referred to as the “Bournewood Gap”. 5.3 Failure to address the “Bournewood Gap” Neither the Mental Capacity Bill nor the draft Mental Health Bill addresses the concern raised by the European Court. The range of safeguards that were included in the initial draft of the Mental Health Bill (contained in Part V) have been omitted on the basis that provisions for the informal treatment of patients not capable of consenting have been taken forward in the Mental Capacity Bill. 5.4 However, the key safeguards that were set out in Part V of the draft Mental Health Bill 2002 are not included in the Mental Capacity Bill. Under the Mental Capacity Bill individuals who lack the capacity to make such decisions for themselves can be admitted to hospital and/or treated if this is considered to be in their “best interests”. Such actions can be taken if they are “acts in connection with care or treatment”. No court order is required. Where it is proposed to give the person “serious medical treatment” or admit the person to NHS or local authority accommodation and there is no relative or other interested person to consult, an “independent consultee” must be asked to advise on whether such actions would be in the person’s best interests and this advice must be taken into account. 5.5 The safeguards included in Part V of the initial draft Mental Health Bill were as follows: — the requirement for a plan of care and treatment to be drawn up with regular reviews; — a nominated person appointed to act as the person’s representative; — advocacy to be made available to the patient if s/he so wish; — a second opinion doctor to be available for certain situations; — procedures for resolving disputes; — the patient or his/her nominated person to have the right to apply to the Tribunal for discharge. — All of these safeguards were available irrespective of whether the patient had a relative or other interested person to consult. We do not believe that the “independent consultee” and the—as yet to be clearly deﬁned—process of appeal to the Court of Protection (whose location and accessibility are also unclear) are the equivalent of these safeguards or meet the requirements of the European Courts ruling. It is imperative that the Government takes action to remedy the situation as a matter of urgency. 5.5 ECT and individuals who lack capacity One of the discrepancies that arise from the failure to consider the relationship between the draft Mental Health Bill and the Mental Capacity Bill is the stark contrast between the provisions relating to ECT. Those patients who are detained under the draft Mental Health Bill and lack capacity cannot be given ECT (save in emergencies) unless a MHT has approved such treatment. No such independent approval would be necessary under the Mental Capacity Bill. 5.6 Lack of clarity on the application of legislation The failure to address the potential overlap of the proposed legislation, the existing common law and MHA 1983, means that there is a huge potential for confusion and perverse incentives may be created which will require subsequent correction by Parliament. For example: — — “Non-compliant patients” and the Mental Capacity Bill: Although this Bill speciﬁcally prohibits the provision of treatment for mental disorder when the person’s “treatment is regulated” by the compulsory treatment provisions of the MHA 1983, this applies only to those individuals who are at the time detained in hospital under the MHA 1983. The Mental Capacity Bill allows individuals to be admitted to hospital and treated for mental disorder, if they lack capacity to make decisions about their admission and treatment. The Bill also allows force to be used to admit a person into hospital if this is considered to be a proportionate response to the risk that the person who lacks capacity may suVer harm. It is not clear whether this provision would override the House of Lords’ Joint Committee on the Draft Mental Bill: Evidence Ev 945

decision that a person who lacks capacity may only be admitted informally to hospital for treatment for mental disorder if s/he does not object to the admission. This needs to be clarified in either the Mental Capacity Bill or the draft Mental Health Bill. — Confusion may also arise when the health of psychiatric patients, already in hospital on a voluntary basis, deteriorates but they express a wish to leave, against clinical advice. StaV may be very unclear as to whether to use common law, mental capacity or mental health legislation if they try and restrain the person from leaving. StaV may also attempt to use the Mental Capacity Bill for longer periods to detain someone in hospital if they perceive it as an “easier” and less bureaucratic option than mental health legislation. Thus, far from closing the Bournewood Gap, it could be greatly increased to include far more patients unless there is absolute clarity, and/or equivalent safeguards in the two Bills. — Individuals likely to be a danger to others and the draft Mental Health Bill: Clauses 9(5) & (7) state that the draft Bill’s compulsory powers cannot be used if the medical treatment can lawfully be given by other means. However this does not apply if the person is considered to be at substantial risk of causing harm to other persons. This suggests that, under the current law, individuals who lack capacity but do not object to their admission to hospital would continue to be admitted and treated informally, unless they posed a danger to others. Where they present a risk to others they would be subject to the compulsory powers of the draft Mental Health Bill. The same would apply if the provisions under the Mental Capacity Bill were in force, save that, as discussed above, clarification would be required as to whether the Mental Capacity Bill could be used to admit people to hospital to receive treatment for their mental disorder even if they objected to their admission. 5.7 In addition to these points we would also draw the Committee’s attention to these further issues: — “Best interests”: Professionals and carers are likely to experience considerable diYculty in the situations outlined above in weighing up the issue of “best interests” for a person without capacity to consent to treatment. For example, would the less procedurally bureaucratic approach of the Mental Capacity Bill be preferable over the Mental Health Bill, particularly given the stigmatisation that many people experience as result of being detained and treated under mental health legislation. — “Least restrictive alternative”: Clause 1(3) (c) of the Mental Health Bill states that “the interference to patients in providing treatment to them and the restrictions imposed in respect of them during that treatment are kept to the minimum necessary to protect their health or safety of other persons”. Clause 1(6) of the Mental Capacity Bill states that “before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as eVectively achieved in a way that is lees restrictive of the person’s rights and freedom of action”. As with “best interests” these similar (though significantly diVerent) principles are likely to cause confusion among professionals and carers when deciding how best to treat someone without capacity to consent. Confusion will also arise when professionals and carers are clear about which legislation to use in general terms but less clear about the exact intent; the principle in the Mental Health Bill implies that a decision has already been taken to provide treatment but that it should involve minimal interference where as the principle in the Mental Capacity Bill demands that less restrictive alternatives should be considered before a decision is taken.

6. Conclusion 6.1 We consider that this draft Bill will do little to improve the experience of those who use mental health services. The proposed compulsory powers are likely to exacerbate, not alleviate, the stigma attached to mental ill-health and increase the social exclusion of people with mental health problems. October 2004

Memorandum from U Parker (DMH 231)

1. Introduction 1.1 I am the contact person for ECT Anonymous and receive phone calls from people considering ECT and also, more often, from those who feel they were deceived into agreeing to ECT treatment by the positive picture they were given of its likely beneﬁts without any information on its possible drawbacks. People telephoning me about ECT treatment sometimes need to talk for an hour or two about their experiences which may be years past, but they still feel the negative eVects and often have a sense of betrayal. Consequently I am glad that there is some increased regulation with regard to ECT, but do not think it is suYcient. I have experience of being treated with ECT and have also myself experienced some of its unfortunate consequences. Ev 946 Joint Committee on the Draft Mental Bill: Evidence

1.2 Summary I am writing about Safeguards and ECT, Patients capable of consenting, Emergency Treatment, (Detained) Patients not capable of consenting, ECT treatment and children, and IMHA advocates.

2. Safeguards and ECT: (Clause 182 Subsections 1–5) NB Most of the information in this section (2) can be found in submissions to the NICE Review of ECT Treatment (2003). 2.1 It is not helpful to be treated with a “therapy” that can do damage. In surveys done by. Mind (418 responses, 2001), ECT Anonymous (200 responses, 1999) and United Kingdom Advocacy Network (306 responses 1996) approximately one third found it helpful, but about a third felt it had not helped at all and a third felt they had been harmed by it. This indicates that the reference in the draft Bill (clause 182 subsection 3, 4 and 5) to a course of ECT “not being irreversible” is untrue, since “a course of ECT is irreversible if it has unfavourable, irreversible physical or psychological consequences”. (clause 182 subsection 5a). 2.2 The unfavourable consequences people have experienced after ECT are cognitive, psychological, and physical. Cognitive damage reported includes persistent memory loss of events and information known prior to ECT treatment: for example a taxi driver could no longer work because of loss of memory of routes; after ECT memory aVected such as inability to recognise new faces on meeting them again, confusion and diYculty concentrating on new learning and diYculty recalling attempted new learning. Psychological damage includes a sense of worthlessness and extreme loss of conﬁdence, diYculties in social situations, and even both patient and carers feeling that the patient has a changed personality. Physical damage includes long-term persistent headaches, palpitations, back pain, and even the onset of epilepsy. 2.3 ECT not being “hazardous” (Clause 182, subsections 4 and 5b). There is a study in Texas that shows a mortality rate as high as 1 in 200 amongst elderly patients in the fortnight following treatment, and a study in Nottingham which followed ECT patients over seven years after treatment found a signiﬁcantly higher rate of early mortality than amongst a control group. 2.3 (a) A submission from the Royal College of Anaesthetists to the NICE Review of ECT Treatment contained the following sentence: There is no such thing as a “risk free” or “minor” anaesthetic (UMP’s italics), and whilst anaesthesia for ECT is considered “low risk” this situation can only be maintained by the rigorous, informal risk assessment of each patient recommended for treatment. 2.3 (b) A series of ECT treatments is typically six treatments over three weeks, which gives a repeated hazard from anaesthesia as well as from the ECT itself. 2.4 An Advance directive which sets out the patient’s wishes about possible future treatments should have legal force with regard to ECT Treatment.

3.1 ECT: Patient Capable of Consenting:(Clause 179)

Informal patients should be entitled to independent advocacy if ECT treatment is being recommended by medical staV. This aims to ensure that unbiased information is provided concerning the possible negative eVects of the treatment, as well as the partial information that is usually given. (See 1.1 above) There should also be a printed information leaﬂet with content agreed by service users who have experienced ECT negatively as well as those who consider it has helped them in addition to professionals who advocate its beneﬁts and those who make no use of it.

4.1 ECT: Patient not Capable of Consenting:(Clauses 180 and 184) When ECT is given to detained patients without their consent, it is experienced as having traumatic results similar to those following torture. Even when ECT is given apparently with consent there can also be trauma as a result of the detained patient feeling there was no point objecting to the treatment as he/she would be given it anyway. See also sections 2.2 and 2.3 above. It is not right to put patients unable to consent, to these risks. Joint Committee on the Draft Mental Bill: Evidence Ev 947

5.1 Emergency Treatment:(Clause 182) Provision for Emergency Treatment should be removed from the Act. When ECT is given “to save life” (ie when someone has stopped eating and drinking or has attempted suicide) there is no evidence that the patient would have died without the treatment, though assertions may well be made that that is so. Some psychiatrists do not use ECT at all and at times they encounter patients in such deep distress. Those psychiatrists ﬁnd other ways of treating their patients, so it is clear that there is never any need for ECT to be given to anyone “in emergency”.

6.1 Children Treated with ECT: Clauses 185, 186, 187, 188, 189 (a) In the absence of research evidence on the eVects of ECT on the developing brain it would seem reasonable to assume that administration of ECT to children is clinically inappropriate, especially in view of the surveys mentioned in paragraph 2.1 above. (b) If, however, the clauses are accepted it is important that the “medical expert” (Clause 187) has expertise in brain development and neurology.

7.1 IMHA Advocates (Clause 247) (a) Anyone being recommended for ECT Treatment should be entitled to an independent advocate, even when an informal patient. This is also necessary for patients aged 16 to 18, whatever treatment is being oVered. (b) As well as paid professional advocates, advocacy services should include trained volunteers who have themselves used hospital mental health services. October 2004

Memorandum from Ernest B Upton (DMH 232) A speaker on radio four recently said that successful health projects analysed : demand, diagnosis, treatment and outcome, but that the NHS ignores the first and last. The demand seems to come from voters who read in newspapers about the relatively few killings and assume all the mentally disordered are a threat to their lives and should be controlled. I take some comfort that the bill is drafted widely enough for the really dangerous personalities—motorists responsible for 3,000 deaths a year—to be referred for examination. Otherwise the bill worsens the stigma against the mentally troubled. Voluntary patients will be deterred and find it harder to obtain a service. Four years ago in my previous North London home a couple drove to the psychiatric unit as the husband was unwell. They were sent home where he killed his wife. Encouraging and funding voluntary patients would prevent them deteriorating to the point that they are dangerous, mainly to themselves. I first received help over 30 years ago. Outpatient group therapy was available evenings and Saturday afternoons. I soon obtained a job at an NHS computer centre that I held for 18 years. After redundancy I deteriorated but there was an 18 month wait for psychotherapy. I was eventually made a voluntary inpatient. Due to NHS penny pinching there were not as many beds as in the bad old days so I was taken to a private hospital at taxpayers expense. I had climbed a ladder a bit when I hit a long snake. At no notice I was sent to the NHS unit, missing an evening meal. I understand why the elderly mentally ill die so easily when moved. I have just been told that my old PCT has lost a star, hence money, because of a failed smoking target. This impacts on planned mental health improvements. I suggest a care programme should attract a statutory and realistic budget, something like a special needs statement. An analysis of demand is needed to see what mental health should cost. It is no use having “appropriate” treatment or anything. What is appropriate is decided by the budget holder to fit the budget. Please use the word “reasonable” instead whenever possible— it has a clearer meaning in law. From my work I know no outcome is recorded with an episode, only whether the patient is discharged alive. The Mental Health Minimum Data Set specifies numerous entries of “HONOS” scores, but these are not collected in Gloucester. It would take large resources to do so. My outpatient consultant here often asks “how do you feel—marks out of 10”. Much easier. October 2004

Memorandum from Allen Barker (DMH 233) I am submitting this evidence in support of Mr John Allman and the positions which he has expressed quite well in his own submission to your committee. (I am not a citizen of the UK, although Mr Allman is.) Ev 948 Joint Committee on the Draft Mental Bill: Evidence

Those positions concern the process of evaluating citizens for potential mental illness. Besides the basic questions of fairness and human rights protection, it is also important that mental health workers be informed about the existence of certain technologies and techniques which can be quite purposely used against a person to make it appear that the person is suVering from a mental disease. I hold a PhD in computer science from the University of Virginia, as well as an MS in that subject and bachelor’s degrees in physics and mathematics. I have been studying these particular issues for at least nine years. I can assure you that devices which can be used to mimic the symptoms of mental illness and to harass citizens deﬁnitely do exist. For example, there are several technological means by which “voices” can be sent to a person which he or she then perceives as a “voice in the head.” These devices are pernicious in that they can be used covertly to harass and injure a person in a way that is deniable. Complaining of such abuses will tend to discredit the victim as mentally ill if he or she is not well-informed about such issues and well able to describe what is really happening. In many cases victims do not know the exact technology being used, and victims may also be subjected to purposeful deceptions intended to convince them of some discrediting story. A person without technical training, without thorough knowledge of such devices and techniques, and traumatized by being hideously abused can hardly be expected to give an exact and technical description of exactly what is being done to him or her. In summary, I hope your committee will seriously contemplate, discuss, and act on the very serious and real issues which Mr Allman is raising. Over time these sorts of cases are only going to become more and more common, as the technology improves and becomes more available to more people and groups. Mental health professionals need to consider what sequelae and symptoms would result from this sort of abuse and harassment, assuming in a conditional Bayesian sense that it has taken place. October 2004

Memoranda from Wales Senior Nurse Advisory Group (DMH 234) The All Wales Senior Nurse Advisory Group (Learning Disabilities), is formally acknowledged by the Welsh Assembly Government, through the OYce of the Chief Nursing OYcer. The group represents all Learning Disability Nurses working for the NHS in Wales. The group has consulted on the draft bill and consider the response from the Royal College of Psychiatrists to fully cover the main areas of concern that learning disability nurses have. Rather than replicate this comprehensive response, The AWSNAG is seeking to support it. Thank you for considering the AWSNAG response as being best represented through the response of the Royal College of Psychiatrists. October 2004

Memorandum from Mr John Myers (DMH 235) I wish to make one speciﬁc point on the bill. This is on the concern that the powers it contains to direct people not resident in hospital will lead to a proliferation of the use of compulsion. I suggest that there should be a clear condition that this power may only be used when otherwise it would be necessary to detain the person in hospital. There could be two aspects to this. (a) It must be demonstrated that the situation is so serious that the person concerned would otherwise have to be detained in hospital (if applying to someone being discharged “on trial” this might apply after a period—eg six months). (b) that the person concerned should have the option to choose hospital admission. I think that (a) would guard against this provision being extended to apply to people who would not be subject to compulsion at present (b) would also guard against this and also answer the criticism that this provision is invasive of domestic privacy as the patient would have the choice to be treated elsewhere. Other uses of non-resident compulsion eg those under current guardianship provision should be a matter for the Mental Incapacity Act not the Mental Health Act. Generally I support the views of the Mental Health Alliance. I write as an individual and former mental health professional. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 949

Memorandum from Herefordshire User Group (HUG) (DMH 236)

Draft Mental Health Bill I am General Manager of HUG, a user led mental health charity, serving the city of Hereford and the surrounding county. Only users or ex-users of mental health services are eligible for full membership, and all staV and volunteers have used services—some extensively. I am the only exception, having been blessed with good mental health throughout an eventful life. In addition to core self-help groups, the charity operates an extremely active mental health advocacy unit, working both in the acute psychiatric unit and in the community at large. For this latter work the charity has established a sound reputation throughout our region and has recently won national acclaim, both in the national press and on national radio. The views expressed here are those of staV and full members of the charity, attendees at self-help groups, members and staV of Herefordshire MIND and members of the Herefordshire Mental Health Forum. Some 60 people from all around the county have lent their views, and many of them have personally experienced the full eVect of the current Mental Health Act at work, either as patients or as carers.

1. General It is felt that there is a need for a complete dismantling of the present legislation and a fundamental redrafting which safeguards human rights and which enshrines the many positive changes which have taken place in mental health since the current Act was passed. There should be a fresh examination of the roles, responsibilities and powers of all parties involved in both the delivery and the receipt of mental health services. The new Act should be acceptable to both patients and practitioners alike and should be workable. The Herefordshire view is that many components of the Bill are neither acceptable or remotely workable, and while there are some positives, it is felt that a major opportunity to bring the delivery of mental health services firmly into the twenty first century has been missed. The need for public safety and reassurance is acknowledged, but the reality that the public is much more at risk from those under the influence of drink or drugs rather than from those with a mental health problem should also be aYrmed. It is felt that only in the tabloid newspapers are “axe murderers” and mental health service users always synonymous.

2. Compulsory Assessments and Treatment As it stands, the new Bill gives doctors additional powers to impose assessments and treatment without the patients’ consent both in hospital and, worryingly, in their own homes. There is considerable disquiet about the very broad deﬁnition of “mental disorder” and that this will no longer be based on cause or illness, but on behaviour. It is felt that this will put anyone who leads an unconventional or eccentric way of life at risk, and the reported conditions that may be imposed on people in their own homes are, as the Guardian of 27 October 2004 reports, a monstrous breach of their human rights—a sentiment we all agree with. It is felt that the criteria for detention and compulsory treatment should be more stringent under new legislation and not less than at present. There is considerable concern about “appropriate treatment” in that it will no longer have to be therapeutic, but we ﬁnd the wider range of options for “treatment” more encouraging, although the inclusion of “training in work” is somewhat sinister. The widening of the compulsory treatment net, which will potentially ensnare many more people than at present, is hardly enlightened. Compulsory treatment could be foisted upon people with no previous connection with services, particularly as it appears that anyone can refer a person for examination without reference to a third party, or for those known to the service, without reference to any existing care plan or advance directive. Compulsory treatment at home is, to us, wholly unacceptable

3. The Mental Health Tribunal Whilst noting the changed status and purpose of the Tribunal, it was felt that the make up of the body should change to a clinical member, a legal member and a service user, who would have the required “knowledge and experience of the provision of mental health services”. A professional mental health advocate would also meet this requirement. The treatment order periods give concern, and it is considered that the ﬁrst period should be for no more than three months—not six as suggested in the Bill. The existing function of allowing patients to challenge detention is welcomed.

4. Treatment Safeguards Compulsory treatment should be based on an authorised care plan, as ratiﬁed by the Tribunal; such a plan should follow the CPA procedure and all parties should have copies of the plan. It is unclear under what circumstances ECT can still be administered, but some choice in the matter for those thought to have capacity is to be welcomed. Service users would like to see this practice outlawed altogether, seeing it as barbaric. The lack of a deﬁnitive list of “other treatments” in the Bill is a key omission and is greeted with some cynicism. Ev 950 Joint Committee on the Draft Mental Bill: Evidence

5. Carers,Nominated Persons and Independent Mental Health Advocates To many, this is the most encouraging area of the new Bill, although the removal of the power of discharge from the Nominated Person, who may well be the patient’s nearest relative, is disappointing. Consultation with family member carers at examination stage is to be welcomed, but the patient’s wishes must be taken into account before this occurs. The role of the advocate will be oYcially recognised at last, but the Bill places the responsibility upon the Government to “set up a scheme of independent Mental Health Advocates”. These advocacy services must be truly independent, and not similar to the present ICAS and PALS services, which purport to be independent but are an integral part of the NHS system. Advocates should be salaried and should be drawn from the many existing mental health advocacy services, some of which are excellent. A uniform national system of accredited training should be established and the services should be fully funded, provided that they meet the required standard within a period of, say, one year. The notion that service user volunteers have no part to play in this (Louis Appleby, quoted in The Observer, 25 July 2004), is both insulting and absurd. The role and responsibilities of the advocate under the new Bill meet with the approval of those already performing that function without oYcial sanction in Herefordshire.

6. Aftercare The proposals under the new Bill seem to be ill conceived, and the abolition of the current system, which works well in many cases, and its replacement with something untried and for only six weeks duration seems foolish in the extreme. This will lead, we feel, to bed blocking and unjustiﬁable further detention—all because of the probable inability of community agencies in our area to get the accommodation and support in place. To us, knowing the way that services work in Herefordshire, this part of the Bill is wholly ﬂawed and should be urgently reconsidered.

7. Conclusion There are aspects of the new Bill that meet with partial approval, but it is extremely disappointing that after all of the consultation that has taken place with professionals, mental health charities, carers, service users and their representatives, that nothing better and more acceptable has appeared. It is unworkable without massive investment, and as those of us who work in mental suspect, this is unlikely to be forthcoming. With Government time being taken up with vital issues such as the welfare of foxes and with an election looming, it seems unlikely to me that the Bill will become law, possibly giving the opportunity of a fresh look at it. Philip Pankhurst General Manager—Herefordshire User Group October 2004

Memorandum from S Davey (DMH 237)

Summary — Advance Directives REDUCE FEAR for users, recognise recovery and herald an essential era of partnership. — Psychiatry must increasingly recognise that psychosis is episodic (not continuous) and can be a healing and valuable process. — Psychiatry itself is a very imprecise “science”, trying to hammer the fascinating mysteries of this universe into tiny pigeon-holes. Whilst many teams are excellent, many powerful individuals are arrogant and ignorant—the latter must not be given too free a rein by changes in legislation and tools should be developed to expose those who overuse the Act and who have many people die whilst in their care. In 1999 I was treated within the same episode of psychosis by very diVerent treatment methods because I was transferred back to my home County. The first method was archaic and destructive, compounding every fear I already had about how dreadful psychiatry could be and giving me every reason to stay away from it if at all possible (something which I think is really dangerous, especially in young people). The second was progressive and kind, giving me hope that my very occasional psychosis could be managed in a low- key, non-invasive way and therefore encouraging me to seek appropriate help quickly should I need it again. In the first I was “Sectioned” and put into solitary confinement—treated like a cross between an animal and a criminal I closed right down. My young son later wrote this Haiku about what he saw: “Sectioned” Held and imprisoned against your own precious will Joint Committee on the Draft Mental Bill: Evidence Ev 951

silenced and drugged; sad. In the second hospital I was eVectively released from “Section” immediately, allowed the freedom of the ward, put on appropriate medication and was HOME WITHIN THREE DAYS (I know for a fact that the regime in the previous hospital would have meant I would have been there at least three more weeks, would have been released on far too much of the wrong medication, ie seriously doped up, and with inadequate post-discharge support. I know this because: (a) I was so appalled at everything that happening I kept links with the hospital and checked up on them and (b) my friend had exactly this happen to her there shortly afterwards and, after the most terrible abuse at their hands (well documented including letters from her partner to the Prime Minister), she was DEAD WITHIN FOUR MONTHS at 49 (a fall not suicide)). Since this time I have been more willing to “come out” as a mad person which—aside from kissing goodbye to most paid work—has been quite fascinating, with a variety of interesting opportunities and special friendships. I have learnt that, given even the smallest opportunity, many mad people are exceptionally hard working and conscientious—particularly men—and they have the highest integrity. I have so much respect for the ones I know and I just challenge and doubt now so much of what I thought I had learnt through College and during my 12 years as a Mental Health professional. Most startling—and disconcerting—of all was to go through all this “experience” and be mad twice during this period and yet at no point EVER to hear the concept of recovery in connection with psychosis. Recovery is a FACT which throws so much of accepted psychiatry out of the window but—possibly even more importantly—it oVers HOPE where none was ever given before. In what other area of medicine is it still so socially acceptable to give people a life sentence and a life-time’s medication with no oVer of any hope of a cure being found? So many things about psychiatry are shocking when you start to look a little from the outside, which—to our deep blessing—you (on this Committee) are all able to do. I want to BEG you not to authorise ADVANCE DIRECTIVES being taken away from us when we are “Sectioned”. The right to an Advance Directive gives me a huge sense of security, it gives me a chance to explain to professionals what I am like when I am well and what I most need at those brief times when I “lose it” for a while—particularly important if I am away from home, if we moved to a diVerent area or if those who know me are not available). IF all Psychiatrists could be trusted to implement these small changes themselves we would not need this legislation—many already do so voluntarily but MANY CANNOT BE SO TRUSTED: it is as simple as that. Legislation designed to remove people’s liberty must also include some safeguards, some evaluation: psychiatrists who consistently overuse the Act instead of ﬁnding other ways of achieving their aims MUST be MORE accountable now: I’m not a great lover of “league tables” but I think such a system could be implemented to show up consistently high abuse of the Act under certain Consultants and in certain geographical areas and that this might, in this instance, be a valuable thing . It would also be good for people to see which Consultants have more of their patients die in their care than others, too. Safeguards are already written in , ie “if A. or B. . . . then you can ignore the Directives . . .”, so WHY remove Directives from us?: (a) the COST implications are MINIMAL—more than that: humane RECOVERY BASED treatment WILL (does) cost much LESS. (b) They NEGATE the LIE of CONSTANT ILLNESS which is too prevalent, not only among professionals but amongst the general public. Most of us with a vulnerability towards some psychosis are only psychotic for small amounts of the time. With a few simple tools we can learn to understand our vulnerabilities and our needs and communicate these to others. (c) As above, they reduce a huge amount of the FEAR we feel: even when we are well there is the nagging doubt that someone will misinterpret something we say, something we do . . . and the whole miserable oppression will be sent back into full force with our liberty removed. Advance directives give us a small sense of HOPE that someone will acknowledge our needs and our knowledge OF OURSELVES and that we will be oVered treatment that is helpful in getting us through a brief vulnerable time rather than, in fact, (as too often happens) just make everything far worse. (d) They are a superb monitoring tool, an aid to increasingly good practice: WHO?: which key workers are regularly requested and which are not?: What are the former doing so right and how can the latter learn more of these skills? (GENERALLY SPEAKING THESE WILL NOT BE SKILLS AT ALL BUT ATTITUDES AND ATTITUDES DO NOT COST MONEY THEY “COST” LOVE (compassion) AND WILLINGNESS). WHAT?: are the key things that service users are repeatedly asking for?—are they being provided by the existing service? If not, how could they be? (e) MOST CRUCIALLY OF ALL THEY HERALD IN A WHOLE NEW ETHOS: one of PARTNERSHIP. It now already exists in for example cancer and heart specialties and is long overdue in psychiatry. Traditionally mad people are done TO for the safety of society. There needs to be a huge shift towards professionals and users working together. Advance directives and tools Ev 952 Joint Committee on the Draft Mental Bill: Evidence

such as the Wellness and Recovery Plan (WRAP) are positive steps in this direction: service users learn how to keep themselves more and more well, professionals get the satisfaction of seeing genuine growth, change—even recovery—in those under their care. Overall, my attitudes to much of Psychiatry can be summed up by Shakespeare in Hamlet: “There are more things in heaven and earth, (Horatio), Than are dreamt of in your philosophy.” : 1. Psychotic breakdown can be the beginning of a whole new depth, richness, appreciation and quality of life. Is this so impossible to understand in 2004?!: we all limit our minds by outdated world-views, inadequate information, incomplete experience . . . What a blessing (for some) to have the whole thing exploded by psychosis once in a while and let it settle down into a more usable configuration! The criminalisation of this process as “illness”—the solitary confinement, the labelling, the making wrong and the enforced heavy medicating . . . etc. of “Sectioning” and then the subsequent long-term stigmatising works against this beautiful healing process. 2. TELEPATHY and “hearing voice”-related phenomena DO exist and with this acknowledgment most serious psychiatric symptoms evaporate: we need new tools, understanding and explanations. If you doubt it: (a) ask up to twenty people (ie until you find ONE—you probably won’t need to ask as many as 20) in your personal circle whether they personally know of somebody (who they trust) whose life has been saved/serious accident avoided by taking note of a voice or “message” to “slow down” “pull over”, etc. (or similar such instruction/situation) (b) explain this fairly common phenomenon; 3. Psychiatric diagnosis is not a science, Consider a symptom as bizarre, laughable and fear-inducing as a mad person who believes they are Christ or God. Then look at most of the major spiritual disciplines through the ages and around the world and consider how most of them endeavour to help us become closer to the divine within. It is well-recognised that madness walks a fine line with genius:—intellectual, creative, spiritual—too many of us are STILL pushed so harshly long-term over the line into (expensive) mad careers when we could be helped back over into (relative) genius after a short time on the wrong side of the line— inappropriate “Sectioning”, careless diagnosis and ignorance all add to this. My friend who died was diagnosed with Schizophrenia—abused by injection month in, month out, misunderstood, stigmatized ... then one day after over 30 years a diVerent psychiatrist threw his limited diagnostic gambling device in the air and it fell down face-up with the branding of “bi-polar”. Another friend endured decades of mis-diagnosis as psychotic and almost unbelievable quantities and combinations of drugs when in fact—it is now recognized—he has never had a day of psychosis in his whole life. I wish these were the exceptions but they are not. If we question our diagnoses we “lack insight” or “are paranoid” or are unreasonable; if we occasionally become infuriated by the indignity and misery of it all we “have violent tendencies” (and “need” more medication, more incarceration . . .). Psychiatric “Diagnosis” is a game in which one side consistently has all the strength and power, in which the rules are MUCH too vague and in which the weaker side too often LOSE THEIR LIVES. This is not JUST figurative : too many of us DO die: is it because of our madness or because we have been stigmatised and had HOPE, our children, our livelihoods, our homes . . . taken from us? I have a very deeply held belief that madness is NOT a terminal illness (caught early, treated appropriately, better UNDERSTOOD) and that we can all really turn this around over the next five to nine years. 4. The attitudes we struggle against are so overwhelming sometimes. Now every School Governor—ie the more influential members of smaller Communities, often also employers—and every parent in every school gets a letter saying, in eVect, “don’t worry, we won’t let mad people help make decisions for your children” (and not even just mad people: anyone with “a mental disorder”: (bring out the fancy dice again and the postcode lottery . . .) Perhaps I’m just biased and bizarre but I believe mad people can make equally good school Governors as sane people (and oVer invaluable insights and perspectives) but what really worries me is: (a) to what extent will this be the tip of an iceberg in areas in which we become increasingly legislated against from contributing our valuable life skills and experience? (b) what message does this give to the older youngsters who may already be struggling mentally “a future?: don’t even think about it!”. (c) WHERE is the acceptance of RECOVERY?: it’s like saying “anyone who has ever had cancer can never become a school governor”. Similarly, I was encouraged by medical staV to be creative with the truth to the DVLA to get my driving licence back. Apparently it looked better to the tick-box bureaucracy to say I was still taking medication (”complying with treatment”) than that in fact I was (genuinely) fully well without medication. The psychology and implications of such deep-seated attitudes throughout the profession, establishment and society are absolutely sickening to me. (Ps When you’ve dealt with the MH Bill will SOMEone PLEASE sort out the bureaucratic nightmare of the DVLA and sickness—thanks!!) Joint Committee on the Draft Mental Bill: Evidence Ev 953

I know it is a huge job for you to tread the correct line between risk and our abuse but I do hope that you can understand the many things that are being said by a whole amalgamation of wisdom from Psychiatrists and many others that much of the present proposals WILL set us backwards rather than take us on towards a much more acceptable future. THANK YOU. (Ps this is separate from my word allowance above—which I know I am a BIT over but I’ve tried and tried over several weeks to get it down ...... ): OFFER OF SUPPORT: my son—who is 11, going on 61—and I wrote and performed a short visual, humourous but not light, sketch/playlet about “Sectioning” for a recent local MHA/Mental capacity training day for Consultants, etc. We are very willing to perform this for the scrutiny Committee if you give us 12 (10–14?) minutes (just before or just after a lunch break?). We would be very happy to adapt it to cover any two or three issues over which you are particularly exercised by, eg, February/early March (give us clear guidelines and at least two weeks)—we have suYcient access to user networks to be able to contribute a reasonable overview of those particular things. (ps don’t be too scared: I’m gentler than I sound on paper!) October 2004

Memorandum from Approved Social Workers of the London Borough of Hammersmith and Fulham (DMH 238) We welcome the opportunity to comment on this further draft of the Mental Health Bill. We are broadly happy with the existing Mental Health Act. We acknowledge that there is room for improvement to reflect the progress in practice and associated legislation since the 1980s. However, we feel a more beneficial approach would have been to amend the current Act rather than to undertake a whole scale rewrite and we had hoped to see more elements of the current Act remain in place. This draft reflects some concerns raised during earlier consultation but remains problematic. Throughout, we are concerned that definitions are too broad and therefore unhelpful and open to misinterpretation.

1. Definition of Mental Disorder We remain concerned that the deﬁnition of mental disorder adopted in the Bill is too broad. This will not help mental health professionals to identify those in relation to whom it is appropriate to intervene and could lead to more people coming within mental health legislation than appropriate. The lack of speciﬁc exclusion for drugs and alcohol remains of particular concern. There is no allowance made for any diVerentiation between acute and chronic illnesses nor for diVerent types of dementia and personality disorder. There are funding implications for local authorities and the National Health Service if people with personality disorders are included, requiring both assessment and treatment. Whilst we anticipate more detailed guidance, there appears no allowance for individuals to “sober up” before examination. We are concerned that there will be a shift of responsibility towards mental health professionals, in a context where there is little scope for refusal.

2. Conditions We agree in principle that a series of conditions may assist professionals in maintaining consistency of approach and safeguarding appropriate individual freedom. One condition is that a serious mental disorder must be present before an assessment is undertaken. However, we would argue that assessment is necessary to determine whether a person is indeed suVering from such a mental disorder. It is not the case currently that all those expressing ideas of suicide or self harm will be sectioned. If this were to become common practice, the impact of compulsory treatment would be widened considerably. National ﬁgures presently indicate that only between one in three and one in ﬁve people committing suicide have ever been known to mental health services.

3. Assessment and Treatment The Bill is silent on the cultural aspects of mental disorder and perceptions of this. This is of concern, given the disproportionate numbers of people from black and minority ethnic communities who are in receipt of mental health services presently. We would hope to see that culturally sensitive services are included within the deﬁnition of appropriate treatment. At the point of assessment it is not clear that the hospital will be obliged to register a person presenting for registration. The lack of such provision will put additional strain on those carrying out the examination. The relationship between examination, assessment and treatment is not straightforward. It is clearly stated that no treatment may be given without consent unless described in the care plan. However, it is suggested that conditions on assessment may be imposed on a non-resident patient. The example suggests Ev 954 Joint Committee on the Draft Mental Bill: Evidence

that one condition may be to attend regular counselling sessions, which would be deﬁned as treatment. Likewise, if a patient requires sedation during the assessment period, it is questioned whether a care plan would need to be in place before this could be administered. It is not possible for compulsory treatment to include counselling and psychotherapy. The nature of these interventions is such that there must be some level of engagement in order for them to be deemed even to be underway. EVectiveness clearly requires a higher level of engagement. We would wish to see conditions requiring treatment to have some therapeutic outcome before being undertaken. We are concerned that non-therapeutic treatments could be administered excessively for people with dementias. It is not clear how compulsory treatment in the community will be ensured. There are signiﬁcant implications for staV to ensure that individuals living in the community under section follow the conditions imposed upon them. There is the wider implication too of the extension of the non-voluntary aspects of treatment to a person’s home, so that the distinction between home and hospital would become blurred. That their home—symbol of their independence—become both hospital and place of compulsory treatment could be distressing. The Bill is understandably silent on the implications for resources, both for local authorities and the NHS, of residential treatment being made compulsory. Many local authority budgets are already fully committed within the application of the current mental health legislation. We would, therefore, wish to see full consideration given at an early stage to a review of funding to support the provisions in this Bill. We fully support the onus on doctors to prove the continuous need for treatment.

4. Treatment Order The Tribunal will now in eVect be making clinical decisions and cannot therefore eVectively review those decisions. We understand that appeal to the Tribunal is on law and not substance, which leaves very limited review/appeal capacity. It is our view that a review process needs to be in place as a matter of priority. We are particularly concerned as to how electro-convulsive therapy can be challenged and that this could be open to abuse. We would question how realistic it is, given other responsibilities, for all the conditions to be kept under review by the consultant.

5. Nominated Person We note that the nominated person does not have the powers of the nearest relative. As this person can be appointed after assessment, we are concerned that there is scope for exploitation. We welcome the choice available to service users but are worried that when the nominated person is selected, the individual is likely to be in crisis. We would query the appropriateness of a new nominated person for each episode of serious mental disorder. We are not conﬁdent that the role of nominated person will improve upon the problems currently experienced with the nearest relative regulations. Carers are often excellent sources of information regarding the details of an individual’s illness and should be involved at the earliest opportunity.

6. Advocacy We fully support the high proﬁle which advocacy is aVorded in the draft Bill. To ensure that advocacy takes its appropriate role we would wish to see it supported with clear standards—of service provision and workforce—and widely available in a timely fashion, ie within 24 hours. There is a national shortage of secure funding for advocacy and we hope that this Bill will help to attract stable and long-term funding for advocacy services. We are concerned that access to advocacy will become seen as an alternative to specialist legal advice. We believe that individuals should retain access to good legal advice.

7. Clinical Supervisor Whilst the role of clinical supervisor is clearly a relevant one, we do not believe that the suggestion of a consultant psychiatrist or psychologist to carry out the role has been well thought through. These consultants are highly stretched and a supervision and co-ordination role is not one necessarily best suited to their clinical skills. Joint Committee on the Draft Mental Bill: Evidence Ev 955

8. Approved Mental Health Professional We have deep reservations about the proposals which remain in this draft of the Bill to bring to an end the Approved Social Worker (ASW) role and to replace it with the Approved Mental Health Professional (AMHP). It is our belief that the ASW brings a unique, and uniquely important, perspective to the process of detention under mental health legislation. The ASW has a broad, community-based and social perspective to bring to the sectioning of an individual, which is wider than the medical approach taken by the medical professionals involved. The ASW has a duty to look at all circumstances of a case. An important element would be lost if this wider social view—which sets the individual within their family, home and community—were not to be safeguarded. The AMHP as outlined does not have an ongoing role but is involved just for the assessment. We believe that the tension between the roles of social worker and approved social worker can be fruitful—and certainly that it will be important for AMHPs to have experience of working with individuals over the long-term. As a minimum, we would expect that a person who knows the client is involved as this can be helpful to the process. In this regard, we would press that one medical doctor at least must know the patient. We are concerned that the AMHP is not aVorded the same status as the ASW is in current legislation and therefore will not receive the appropriate level of training or professional support. The independence of the ASW is fundamental—we are pleased therefore that the approval function remains with the local social services authority. It is not clear which authority would monitor the quality and practice on a day to day basis. One current safeguard of the independence of ASWs is their right to speak alone to Mental Health Act Commissioners—we would hope a similar provision would be in place to safeguard the independence of any successor. The rights to supervision from another ASW and for forums for ASWs should be protected in any future draft. Also, the 1983 Act ensures protection where ASWs are acting in good faith. We would press for similar provisions to ensure that they are able to act with independence and without fear of compromise in very diYcult situations.

9. Aftercare We believe that the proposals for six weeks of free aftercare will place providers in a very awkward position. It is not always feasible to ﬁnd a particularly diYcult placement within eight weeks and would question the need for a time limit. We fully appreciate that there should not be drift and that from the service user’s point of view there may be merit in a time limit. However, we are concerned that, in order to comply with these time limits, individuals will be placed in inappropriate accommodation.

10. Conclusion It will be evident from this response that we are not conﬁdent that this draft of the Bill eVectively responds to concerns previously raised. We would hope that, as a minimum, the good elements, values and processes of the current Act are preserved and carried forward into the new legislation.

Case Examples (Anonymised) for Response to New Mental Health Bill The case of B, a 33 year old lady with a recent history of schizo-aVective disorder and substance misuse problems, who had been presenting to A&E departments in various parts of London over previous days and was several times assessed, but not considered as in need of admission. Her lifestyle was rather chaotic and she did not engage well with services in any one place. She set her room in her B&B on fire one morning and presented to our local A&E department straight after, the police being called and taking her—still voluntarily—to the Emergency Psychiatric service. Under the present Act she was assessed and papers were made up for a section 2 MHA 1983 application, but the hospital declined to provide a bed for her in the unit. The hospital bed managers kept trying, and she remained voluntarily at EPS late into the evening. She was eventually arrested and taken into hospital through the court system. The case of H, a 50 year old man with occasional contacts with mental health services over the years, and one emergency admission five years before. He could be angry and deluded, and had tried to imprison his girlfriend recently. He was visited by the assessment team and the police with a s.135 warrant, and it was understood that a bed would be available. It was expected that he would come in quietly if police were present. He refused to answer the door and when a locksmith was half-way to opening it he appeared indoors with a hammer and smashed the glass window in the door, and continued to wave the hammer at the police. In this case the team had to withdraw and he was later brought in under s.136 from a public place. Both these cases seem to raise diYculties already with the existing arrangements, but they are not unusual for a busy inner city ASW duty team. The particular concern is that under the proposed Bill, whilst the examination can only conclude that formal assessment (community or hospital) is required if appropriate treatment is actually available, which seems to imply that there is an identified bed, the hospital is not asked to register the patient until after the examination is completed. Ev 956 Joint Committee on the Draft Mental Bill: Evidence

In the case of B, the proposed examination would proceed much as the old assessment did, but the hospital would almost certainly decline to register the patient—the more so if as is implied in the Summary the registering hospital should be the one that will be responsible for her care and treatment. It is possible that without a s.140 equivalent in the proposed Bill the bed managers would not feel that they had a duty to seek a bed at all, whether they had been consulted earlier or not. If B had just arrived in the borough, was not registered with a GP locally or was considered to be of no ﬁxed abode, as is also quite possible, or if it was felt that her diYculties were substance-abuse related and required specialist in-patient assessment, the diYculties might be still more considerable. At 6pm, when the ASW was able to go home with some assurance of a bed being found, the AMHP would instead be in an impossible position. In the case of H, the same diYculty would arise because the patient’s assessment needs appear to have changed dramatically during the course of the attempted assessment. Again the hospital may have agreed a bed when it was thought that he would come in quietly, but decline to register H when it was clear he was going to be violent, and would need extra resources. The examining team could be left having to conclude that the relevant conditions for a formal assessment were met but without any means to eVect it. The risks would not permit of the leisurely post-examination process suggested in the Summary example. Other possible occasions where registration may prove problematic are where the age or special needs, whether medical or psychiatric, of the patient require specialist assessment; and when (as is far from unusual) there may be anything up to eight urgent cases waiting for allocation to a psychiatric bed on a particular day. The only alternative under the proposed Bill would seem to be to make much more frequent use of emergency powers, whether the new equivalent of s.4 MHA 1983, or those of ss.135(1) and 136, which appear to allow a patient to be admitted to hospital without being registered, but which would not be a step forward, either for patient care or for patient liberties. October 2004

Memorandum from Katharine Timberlake (DMH 239)

1. Introduction 1.1 I am a 37 year old single mother who had diYculty in accessing mental health services when I was married. I am concerned because the provision of Mental Health Services is being addressed in this new Bill, but in such a way that I would still have diYculty in receiving treatment and support if I found myself in similar circumstances again. 1.2 I am writing with respect to the right to services that everyone should be able to expect to receive, and with respect to education in society which the Bill in its current form does not address at all.

2. A Right to Services 2.1 My relationship with the children’s father became so that I was receiving more and more emotional abuse. I sought counselling or therapy when I started questioning my husband’s behaviour to me and my response, which was considering leaving the relationship. I was very upset, not able to concentrate on my duties as a mother and I felt that I could not cope with the busy life and the options that I had to consider. My doctor did not think that I was suYciently distressed to be assessed as in need of counselling or therapy. He told me I would need to have a total nervous breakdown before I received help with the current state of provision of mental health services, even though I was seeking treatment to decrease the risk of something more serious later on. I stopped considering my marital issues as it placed me under too much stress and it took me a year and a half to realise that it was the right thing to leave the relationship. 2.2 I want mental health services to be provided to all individuals under stress when they seek it.

3. Mental Health Education in Society 3.1 How one’s own mental health is aVected by one’s responses to oneself and to others is not considered by people with no experience of such situations. This Bill does not suggest how society can be educated so that it is better able to understand and respond to individuals under stress. Indeed the Bill does not consider how its instigation of compulsory measures will aVect society’s perception of mental health. 3.2 I want the Bill to introduce a consistent programme of education for society about the causes of mental distress and how these eVects can be ameliorated by understanding. October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 957

Memorandum from National Voices Forum (DMH 240) Summary of Points

1. Definition of Mental Disorder The deﬁnition of mental disorder does still not appear to clearly exclude physical illnesses or deviant behaviour.

2. Non-Resident Orders (a) It is very unlikely that Non-Resident Orders are necessary, appropriate, or therapeutic—they may instead be counterproductive and unworkable. (b) Government have not deﬁned the so-called “revolving door” group—it is felt that their deﬁnition may be much wider than is at all acceptable.

3. Public Requesting Assessments Public should not be able to request a formal assessment since this could lead to victimisation. This power should be restricted to only a Nominated Person, Carer (substantial and regular), Approved Mental Health Professional or Police.

4. Entering Private Property (a) Police should not be able to enter anyone’s property without a warrant, unless there is an emergency. (b) An AMHP should only be able to enter if accompanied by police with a warrant, and if they have reasonable grounds to believe there is a serious risk to an occupant’s health and safety.

5. Criminal Justice Route Mental health law concerning people coming through the Criminal Justice system should as far as possible mirror the civil system.

6. Advance Statements (a) Everyone should be given information and support to draw up an Advance Statement when they are well, if they wish, and it should have legal weight. (b) Tribunals should have a duty to consult it. (c) An Advance Refusal should only be over-ridden by the Tribunal if all other options have been exhausted and there is an imminent risk to life. (d) The AS should be reviewed regularly, and the Nominated Person speciﬁed in it should remain in abeyance if someone stops being under compulsion.

7. Care Plans and Choice Any treatment a person under compulsion suggests or is willing to accept should be considered ﬁrst and provided if at all possible.

8. Right to Assessment NP or Carer (substantial and regular), should have a right to request a formal assessment within a speciﬁed time, but if the service user doesn’t meet conditions for compulsion, be given a written explanation of the decision. Also, in this event, the service user should be oVered services/support on a voluntary basis.

9. Nominated Persons (a) Service users should be given the option of choosing a NP when they are well and have this speciﬁed in an Advance Statement—not only choose one at the time they come under compulsion, since they then may be acutely ill, and possibly unable to make a reasonable choice. (b) NP should be available from the Examination Stage. (c) AMHP should only disqualify a person’s choice of NP if they are abusive, exploitative or if they lack capacity (as deﬁned in Mental Capacity Bill) to carry out the role—not because they are deemed “unsuitable”. Ev 958 Joint Committee on the Draft Mental Bill: Evidence

10. Advocates (a) Advocate should be available from the Examination Stage and they and the service user should have the right to meet in private. (b) To avoid conﬂicts of interest this advocacy service should be funded by central government—not same local statutory body that imposes the compulsion.

11. Carers We agree that a service user’s wishes and feelings about consulting their Carer must be ascertained before doing so—and also feel if they are very uncomfortable about it and so maybe don’t want their Carer involved, their wishes should be respected. However, we also appreciate that a Carer may have a useful contribution to make, so feel they should be involved, if the service user is OK with it.

12. Appeals Service users should be able to appeal directly to Mental Health Appeal Tribunal—not apply for leave to do so.

13. Approved Mental Health Professionals AMHPs should not be permitted to come from a medically trained background.

14. Membership of Expert Panel It needs to be ensured that the Expert Panel will not end up consisting of retired professionals with out- of date knowledge.

15. Safeguards for Treatment (a) Neurosurgery should strictly only be given with a service user’s fully informed consent—never authorised on behalf of someone who lacks capacity to consent. (b) ECT should never be given to a person who has capacity without their consent and only to an incapatious person if there is an immediate risk to life. It should be not be permitted for under 16s. National safety standards must be adhered to. (c) Doses above British National Formulary Levels should only be given with a service user’s fully informed consent and authorisation of the Tribunal or if lower loses are not working and there is a life- threatening situation. Also Tribunal only should authorise medication outside product licence, if nothing else has worked, and Tribunal should also authorise polypharmacy. (d) Legal right to regular physical health checks for those on long-term compulsory medication, should be included in this Bill, to pick up and treat, or alleviate serious illnesses caused by medication.

16. Human Rights Act and Potential Offenders Is it ethical or in compliance with Human Rights Act to use this legislation to lock up potential oVenders? Predictions of dangerous behaviour are very unreliable and there are many kinds of potential oVenders in society who do not have mental health problems—people with certain suspected mental disorders are being singled out.

17. Specific Inspectorate Monitoring of this Act should not be the responsibility of Healthcare Commission—there needs to be a speciﬁc mental health act Inspectorate, since the proposed compulsion system is so extensive. [IR1] Joint Committee on the Draft Mental Bill: Evidence Ev 959

NATIONAL VOICES FORUM

Complete Submission to Pre-Legislative Scrutiny Committee

What is National Voices Forum? NVF is a major service user group that is run by and for people who have had schizophrenia or similar conditions—so we directly represent many people with severe mental illness who may be aVected by this legislation. Although, it is technically part of the charity Rethink, it is constitutionally aVorded the freedom to decide on its own aVairs, including its policies—hence our submission may not reﬂect that of Rethink and vice versa. NVF is also a core member of the Mental Health Alliance.

Oral Evidence NVF would be happy to give oral evidence on the beneﬁts of Nominated Persons (how people’s peers can help), Choice, and Advance Statements. Also, we could talk about the personal reality of taking powerful medication on a long-term basis (ie living with side-eVects and risk of getting serious physical illnesses), and give illustrations of how many people already live successfully in the community, with no compulsion, through the philosophy of the “recovery model”.

NVF’s Response to the Committee’s Questions

(NVF is not Commenting on Question 1)

Question 2 Is the deﬁnition of Mental Disorder appropriate and unambiguous? Are the provisions for assessment and treatment in the Community adequate and suYcient?

2.1 Definition of Mental Disorder NVF feels that the Deﬁnition of Mental Disorder is still too wide and could include people with physical brain damage caused by other illnesses or accidents, and also maybe include kinds of deviant behaviour. In the former, it is to assumed that the person, not ever having been mentally ill, should automatically be entitled to make their own decisions—in the latter it should be ensured that this Bill will not end up being used as a tool for public order, when it is supposed to be piece of health legislation. The Dept of Health has said that the deﬁnition in this draft Bill is clearer, (so as to maybe exclude physical illnesses?)—but the only diVerence is that the sentence has been reversed round—it appears to mean exactly the same as in the last draft Bill.

2.2 Non-resident Orders 2.2(a) NVF is opposed to Non-Resident Orders. Although there has been a small improvement in government policy in that it is now envisaged that they will mostly only be imposed subsequent to a hospital admission and that someone cannot be forcibly treated in the community, NVF still has grave concerns about the ethics and practicability of them. 2.2(b) Firstly, we strongly disagree that there is a need for them—most people function relatively well in the community—and really value being able to make their own choices about what they do and where and when they do it. In fact it is this freedom that enhances people’s chances of recovery—the current law enables people, after hospital, to take up responsibility for their own day-to-day life by allowing them to make their own decisions—and so confidence and self-esteem can be built up as people set out to achieve aims (however small), they have set for themselves. It also can relieve depression as service users (like any other person) enjoy be able to do what pleases them. This is the basis of modern psychiatric thinking—a snapshot of a “recovery model”—it is the way forward for psychiatry—Non-Resident Orders are a step backwards. 2.2(c) NROs are by definition compelling someone to do things they would not like to do. One significant consequence of them is some people will end up on long-term compulsory medication with dreadful side- eVects, including causing life-threatening illnesses (please see Section 6 on Safeguards). These medications can also have unbearable side-eVects for someone in the here and now. NVF is extremely concerned that some people will be unable to overturn Tribunal decisions and be stuck with medication that is making their life a misery. Please note, that 50% of all prescribed medication for any illness is not taken as prescribed, due to similar reasons—so why are psychiatric patients being singled out for compulsory medication? The same circumstances could arise for any of the requirements of a NRO—ie someone could be required to live in a badly run and uncaring hostel/home and suVer in silence, or someone could be required to attend a day centre where there are other people he/she just doesn’t get on with and so this could be a potential flashpoint etc. Finally, some people may find their lives made so miserable by NROs they could go underground or Ev 960 Joint Committee on the Draft Mental Bill: Evidence

commit suicide. And what of the ethics of someone being told if they don’t comply they will be taken into hospital? This is where medical care will become blurred with public order—the consequences of not complying will be seen as punishment, be bitterly resented and also destroy some doctor/patient relationships. 2.2(d) It has been stated by government that they envisage that long-term NROs will probably mainly be used for so-called “revolving door” cases. But, although repeatedly being asked, the Department of Health has never defined this group—NVF is of the opinion that what the Government defines as “revolving door” is likely to be much wider than our definition—and we feel that the details of this policy may be being withheld. It also says in the Bill that particular patients, that are to be “defined in the regulations”, can be subject to an NRO without prior admission to hospital. NVF would respectfully like to ask the Pre- Legislative Scrutiny Committee to question the government as to what is their definition of “revolving door” and who are these people who will be later “defined in the regulations”? 2.2(e) Also, NVF is concerned about the implication that the community could be an alternative to hospital. For someone in a crisis or acutely ill it may not be safe for them to remain in the community—it needs to be ensured that people will still have access to hospital beds, when needed. People should not be kept in the community just because it is cheaper—or because it is perceived to be the following of government policy. 2.2(f) Finally, NVF is concerned about the proposed timescales. Rather than there having to be two 6 month Orders before yearly ones can be imposed—why not four 6 month Orders prior to a year? NVF strongly believes that this will give people a better chance of getting oV an Order since they may improve earlier and it would give more opportunities to have it terminated. Also, it may be diYcult for some service users to avoid continuous renewals, due to the broad criteria—so having four opportunities to try to get oV them before they become yearly will give someone a better chance. Surely in the long-run it is better to have as few people on NROs as possible? Also our proposed timescales would ensure that people would have their Care Plans oYcially reviewed by the Tribunal, over a longer time, since the Clinical Supervisor will need to obtain their oYcial approval.

Question 3 Does the draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?

3.1 Requests for Assessment by the Public NVF feels very strongly that it should not be possible for just anyone to request that someone with an apparent mental health problem is assessed since it will be open to abuse. We believe that a service user’s problem neighbours, people they may have fallen out with, bullies, or even strangers etc. could inappropriately request an assessment. It is better that the power to do this without the consent of a service user, is restricted to only the Nominated Person (as speciﬁed in an Advance Statement), Carer (speciﬁed as one who gives substantial and regular care), Approved Mental Health Professional or the Police. Otherwise people with apparent mental health problems will be at risk of being victimised by their community.

3.2 Powers to Enter Property without Warrant NVF feels strongly that, without an emergency, no-one should be able to enter a service user’s property without a warrant. When there are dire emergencies in which life and limb is at stake, police already have a general power to enter property in these situations. We are completely opposed to a new power of entry relating speciﬁcally to those with apparent mental illness, since we feel it could be open to abuse—the existing law should be suYcient. Secondly, it is unacceptable that an AMHP should have a power to enter and inspect a person’s home, just because they have grounds to believe the “person has a mental disorder and is not under proper care” (section 226). An AMHP should only be permitted to enter, accompanied by the police with a warrant, if they have grounds to believe there is a serious risk to the occupant’s health and safety.

3.3 Lower Thresholds for those in Criminal Justice System We are concerned about the lower threshold for compulsion for those coming in to it through the Criminal Justice route. The vast majority of people coming before the courts will not be violent oVenders—they may be accused of petty crimes like shoplifting—so we do not feel it is right that they should be more easily compulsorily treated than others. Also, this Bill provides for compulsion to take place even if someone has not been convicted of an oVence—just being on remand is suYcient—surely this is unjust? We also have grave concerns about Courts authorising medical treatment—they lack qualiﬁcations in mental health. We endorse the Mental Health Alliance’s view that the part of the Bill concerning these people should as far as possible mirror the civil system. Joint Committee on the Draft Mental Bill: Evidence Ev 961

Question 4

Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? Are there any important omissions in the Bill?

4.1 Advance Statements

4.1(a) It is a very signiﬁcant omission that there is no mention of Advance Statements in this Bill. In the previous draft Bill, (of 2002), they were speciﬁed as a tool to help inform the Tribunal’s decisions. Advance Statements or Refusals could be crucially important in enabling a service user to get the best possible care and treatment—they should have an appropriate legal weight—and there should be a duty on the Tribunal to consult an AS if there is one.

4.1(b) Many people could specify in advance, whether for example, they experience unacceptable side- eVects with a particular drug or conversely what drugs have been beneﬁcial in the past. They could also indicate an Advance Refusal of certain treatments such as ECT and neurosurgery. It is stated in the Bill that if someone shows they have capacity to understand the treatment of ECT (and it is not an emergency) they can refuse it—an AS could unequivocally tell the Tribunal that. NVF believes that only the Tribunal should be able to over-ride an Advance Refusal and then only if all other options have been exhausted and there is an imminent risk to life. If the Tribunal does this they should document the reasons why and make these records immediately available to the service user and their NP and/or Advocate—this would lessen the distress of a person who has had their wishes over-ridden when they are in a crisis.

4.1(c) A whole range of what a person feels helps or needs, but also what does not work could be in an AS—without them the Tribunal may end up making educated guesses as to what to do, with maybe detrimental consequences. Therefore, it is of utmost importance every service user is given an opportunity to draw up an AS and also given any information or support they require to do so by their care team—it should also be reviewed regularly.

4.1(d) NVF also feels very strongly that a service user’s Nominated Person should be stated in their AS— and should remain in this record, even if they stop being under compulsion, so their NP can be easily enacted again if they become subject to compulsion in the future. (Please see 5.1 on Nominated Persons)

4.2 Care Plans

NVF feels that when a Care Plan is being drawn up by the clinical supervisor that is going to be compulsory, then a duty is placed on the Tribunal to ensure that any treatment a service user requests or is willing to agree to, is fully considered first and provided, if at all possible. For example, a person could say at the time, or alternatively could specify in an Advance Statement any treatments they may have found helpful in the past, but also those with which they have had unacceptable side-eVects. (Please see 4.1 on Advance Statements) NVF believes that the less disempowered a person feels when under compulsion, the less distressing it will be for them—so their outcomes will be better—and also the relationship with their mental health professionals will be less harmed. If a specific request for a treatment is refused then the service user (and NP and/or Advocate) should be given an immediate written explanation. Basically, the more chance a person has of getting treatments they find most acceptable or helpful—the better for everyone.

4.3 Right to Assessment

NVF feels that since a service user’s NP or Carer (on a substantial and regular basis) is personally involved in their care, then if either of them request an assessment, there should be a duty to do it within a speciﬁed time. Also, if a service user is assessed and it is not thought compulsion is necessary, then written reasons for that decision should be given to the person who made the request. Secondly, even if a service user does not meet the criteria for compulsion they should still be referred to the mental health team and/or oVered extra services/support on a voluntary basis—the user could then choose whether or not to accept it. Also, it should be possible for a service user to informally ask for an assessment for themselves or instruct their NP or Advocate to request one. Ev 962 Joint Committee on the Draft Mental Bill: Evidence

Question 5

Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill?

5.1 Nominated Persons 5.1(a) NVF welcomes the abolition of the Nearest Relative and the introduction of the Nominated Person. However, we feel very strongly that a service user’s NP should remain on record in an Advance Statement, even if a person stops being under compulsion, as it may be unfair to ask someone to choose an NP at the time they come under compulsion, since they then may be acutely ill and possibly unable to do so. So unless it hasn’t been possible because it is a service user’s first contact with mental health services, we feel it would make more sense for people to have the option to choose an NP in advance, when they are well, so they will have more chance of making the best decision—then if they become subject to compulsion their NP can automatically be enacted. 5.1(b) Also, as with Advocacy someone’s NP should be available to them from the Examination Stage— not after it has been decided that they should come under compulsion. 5.1(c) In relation to the fact that the Approved Mental Health Professional has to appoint the NP, (albeit that it is said that most often a service user’s own choice will be appointed)—we are concerned about the AMHP’s power to block a person’s choice—especially the statement that the NP must be “suitable”—what does this mean?—the Bill does not elaborate on this. NVF feels an NP should only be disqualified if the NP is clearly abusive or exploitative or if they are unable to fulfil the role due to their own lack of capacity, as defined in the Mental Capacity Bill. At present the wording is so loose that an AMHP could block a choice purely because they don’t “approve” of them. 5.1(d) Please note, it is very important that the AMHP does, in almost all cases, appoint the service user’s own choice. A person is very likely to choose a close friend to be their NP, such as another service user who knows them really well—as a peer. This NP is likely to be very useful, since they may have a very good knowledge of the system and their personal experience of being ill will enable them to better understand, and communicate to others, their friend’s wishes and feelings. They will also importantly be someone a person in crisis will trust—since they have chosen them.

5.2 Independent Advocacy 5.2(a) Although NVF welcomes the introduction of this, we strongly feel it should be available from the Examination Stage onwards—NOT from the point when it has been decided that compulsion should be applied. Unless it is not practicable because it is an serious emergency, this late availability is unfair because the service user may want an advocate to help demonstrate they don’t meet the criteria for compulsion in the ﬁrst place. It is also very important that a service user and advocate have the right to meet in private. 5.2(b) Secondly, the advocacy service needs to be truly independent—ie not funded by the same local statutory body that is involved in the process of compulsion. To avoid conﬂicts of interest, we recommend that the said advocacy service be funded directly by central government.

5.3 Carers 5.3(a) We completely agree that people must ascertain the feelings of a service user before consulting their carer, to decide whether it would be appropriate (or helpful) to consult them. But also, if the service user is OK with it, to gain information and maybe ask the carer’s point of view. However, in certain sections in the Bill, it is stated that if they do consult the carer, they MUST ask the carer about medical treatment etc. We feel they should only do this if it seems they are knowledgeable about mental health care and it is ascertained that they are primarily interested in the service users best interests. 5.3(b) Please note, that in the vast majority of cases there will be no conflict between service user and carer—it is true that if a person finds their carer supportive—they will want them involved—problems around information sharing/involvement only arise when there is a conflict. It is a fact that some service users do not find the involvement of their parents helpful—in spite of this these parents can remain convinced that they are and still know what is best. For example, it is sometimes highlighted that the reason a service user may not want their carers consulted is because they are paranoid about them—NVF would say even if this was true they should still not be consulted because of the extreme distress it would cause to the service user in a time of crisis. NVF contends that a person’s well-informed PEER is more likely to understand their situation, to empathise, and to be more in tune with their wishes and feelings. It is a source of conflict amongst service users and carers in the mental health world that it does appear, rightly or wrongly, that sometimes carers can put themselves above the rights of the person who actually has to live with the condition. For these reasons, if a service user is very uncomfortable about their carers being consulted, then their wishes should come first. Otherwise, the Bill will also provide for compulsory carer involvement—which many service users will see as another part of the compulsion process—and it may end up being greatly resented. Joint Committee on the Draft Mental Bill: Evidence Ev 963

5.4 Appeals NVF is very concerned that now a service user has to apply for leave to appeal from the Chairman of the Tribunal that imposed the Order, or the Mental Health Appeal Tribunal. In the interests of justice we feel strongly that people should have a legal right to appeal and do it to the MHAT directly.

5.5 Approved Mental Health Professionals Whilst we agree this person need not be social worker, NVF does feel that it is very important that they are not from a medical background (eg a nurse or doctor). Several types of people that are not medically trained, but professionally qualiﬁed in other ways work in mental health teams—the ability to train as an AMHP should be restricted to them.

5.6 Membership of Expert Panel

We are concerned about who will make up the Expert Panel which is to advise the Tribunal. NVF feels there is a danger this panel will end up comprising of retired professionals who want a bit of part-time work who maybe have out-of-date knowledge—not experts in current treatment practices.

Question 6 Are the safeguards against abuse adequate? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery?

6.1 Treatment Safeguards 6.1(a) Neurosurgery—NVF is adamant that this should strictly never be given without a service user’s fully informed consent and this is verified with the procedures using the three independent people to confirm this as described in the Bill. But, we also feel very strongly that under no circumstances should an oYcial body, even the High Court, decide on behalf of someone who lacks capacity to consent, that they should have it. Neurosurgery for mental illness is still in its infancy—previously the medical profession cited the practice of lobotomy as supposedly beneficial, only to have it entirely discredited, due to the later realisation that it caused devastating brain damage. There is no evidence that current surgery for mental illness is any less safe. 6.1(b) ECT —NVF feels very strongly that ECT should never be given to a service user who has capacity without their consent. It should also only be given to an incapactious person against their wishes, if there is an imminently life-threatening situation and nothing else has worked. We are also totally opposed to the Bill’s broad description of what constitutes an emergency for its purposes of giving ECT to someone who does not consent to it—our description of an emergency is that there is an immediate risk to life. Please note, as with neurosurgery there is much evidence that ECT may be harmful. Secondly, we feel it should never be given to those under 16—recently the Committee for Safety of Medicines banned SSRI anti-depressants (such as Seroxat and Prozac) for children—it seems an inconsistent policy to allow ECT for developing persons. Thirdly, ECT suites should meet national safety standards—it is scandalous that ECT is given by untrained staV with out-dated and sub-standard equipment in some areas. 6.1(c) Medication Doses Above British National Formulary Levels or Used Outside of Product Licence or Polypharmacy—NVF feels that doses above BNF levels should only be given with a service user’s fully informed consent and authorisation of the Tribunal, or after there is clear evidence lower doses are not having suYcient therapeutic eVect and there is a life-threatening situation. Also, medication should only be used outside product licence with authorisation of the Tribunal if nothing else has worked. Finally, only the Tribunal should be able to authorise polypharmacy. 6.1(d) Long-Term Compulsory Medication—NVF is extremely concerned about the likelihood of some people being on indefinite Non-Resident Orders involving a requirement to take particular medications. All psychiatric medication has side-eVects—some causing severe illnesses such as diabetes, osteoporosis, heart problems etc. It is therefore imperative that if a Tribunal imposes medication, the service user is legally entitled to have physical health checks—maybe (if they wish to have them) every six months. This is very important since these checks could pick up on some serious illnesses caused by medication. By changing someone’s medication, problems like tardive dyskensia (Parkinson’s-like symptoms) can be reversed if caught early, the progress of illnesses such as diabetes can be slowed and heart failure prevented—since heart arrhythmias could be identified early. The inclusion of this clause in the Bill would bring it into line with other government policy where in the new GP contract people can have annual physical checks. However, although it was controversially decided that GPs can opt out of the above scheme—NVF very strongly feels that if someone’s medication is compulsory they should legally get a reciprocal right to have these checks. (NVF is not commenting on Question 7 or Question 8) Ev 964 Joint Committee on the Draft Mental Bill: Evidence

Question 9 Is the Draft Mental Health Bill in full compliance with the Human Rights Act?

9.1 Ethics of detaining people when there has been no oVence NVF would like to question the ethics of this legislation potentially being used to lock up people with a supposed Dangerous Severe Personality Disorder (DSPD), even if they have committed no oVence. Please note, that predictions of future dangerous behaviour are notoriously unreliable—many people will be deprived of their liberty unnecessarily. Also, there are many potential oVenders in society—for example, inner city gangs, politically extreme groups, football hooligans, serial drunk drivers etc. No-one is proposing to lock up any of these people prior to a conviction—DSPD people (or thought to be) are being singled out. Surely this is against the Human Rights Act? Also, please be aware, NVF is not an apologist for people who have committed horriﬁc crimes—we are just concerned that so many people could end up becoming a victim of the state through unnecessary detention—for no concrete reason.

Question 10 What are likely to be the human and ﬁnancial resource implications of the draft bill? What will be the eVect on the roles of professionals?

10.1 Monitoring the act by the heatlhcare commission NVF is very concerned that when the Mental Heath Act Commission is abolished, responsibility for the monitoring of the new mental health act will be part of the remit of the Healthcare Commission. Surely, a piece of legislation that uniquely imposes treatment on people and deprives them of their liberty should have a dedicated watchdog? Also, NVF feels that there should be a duty on mental health professionals to record every decision taken in each service user’s case during a course of compulsion—and that this individual documentation should be made available to the inspectorate in the event of a complaint. Also these records should be used to compile detailed reports by the inspectorate to monitor the operation of the Act. Finally, it is a paradox in NVF’s view, that the body monitoring the new Act, which provides for more compulsion, will be a weaker body than the old one that monitored less compulsion! That just doesn’t make sense—we need a new speciﬁc mental health act inspectorate. September 2004

Memorandum from Dr Adam Dierckx (DMH 244)

I write to oVer a brief opinion of the proposals in the draft mental health bill. In my view there is no need for such a bill. Mental disorder can be treated in exactly the same way as other illnesses. We already have statutory provision for the treatment of illness where incapacity alters the suVerer’s ability to make decisions for themselves. The separate provision for treatment under compulsion by virtue of mental disorder discriminates against this group of patients and perpetuates stigmatising notions in the wider population. Mentally disordered patient should retain the right to determine their own treatment until such time as the same rules about capacity for the whole population apply to them also. (One simple yardstick would be to ask yourself or your doctor whether either of you would wish to be treated under the provisions of the present or proposed Acts). Any attempt, such as that contained in this bill, to enourage mental health professionals to act as agents of social control is to be regretted and should be abandoned. Such measures will undermine already fragile trust in the therapeutic relationship. It is hard to see how a patient subject to compulsory treatment in the community (ie outside an inpatient setting) would ever secure discharge from such an order. If still unwell the patient “needs” to continue, if well then “the order is working” and should continue! The community nature of the orders would undermine the “least restrictive alternative” safeguard in the present Act. Thank you for your time. Dr Adam Dierckx MRCPsych Specialist Registrar in Psychotherapy Warneford Hospital October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 965

Memorandum from the Harrow Users Group (DMH 245)

The Harrow Users Group is a group of mental health service users whose aims are to represent the service users within local mental health services, to make sure that these services meet adequately the needs of the users and to promote a positive image of mental health. The group is at the moment composed of 270 members. It is one of the largest users group in England. The group recently met to discuss the proposed new Bill, to share concerns about the current draft and to make constructive suggestions to ensure that the legal framework reflects the reality of mental health and adopts a modern vision of care and support. This letter will sum up the content of the discussions that took place between members. The group hope that the Joint Committee will take into account and act upon the concerns and evidence submitted in this letter. The Harrow Users Group have five major concerns about the proposals in the Draft Mental Health Bill. These are as follows. 1. The Draft Mental Health Bill defines the conditions that would justify and lead to compulsory treatments. These conditions are wider than in previous legislation with the potentiality than more people could now fall within the scope of the proposed new legislation. The definition of mental disorder is remarkably vague and broad and doesn’t reflect the complexity and specificity of mental ill-health. The previous exemptions that excluded from the definition people with only drug or alcohol problems and people showing “sexual deviancy” have been lifted increasing therefore the prospect for arbitrary detentions. Under the new Bill, the therapeutic benefits of treatments are no longer required which means that people could be subject to detention with no prospect for recovery. Under the new Bill the capacity of an individual to make a decision is taken away from him/her because some people might think that it is necessary for his/her protection or the protection of others. It is an oVence against Human Rights for a person to have treatment forced upon them when they do not want it and are able to make that choice. There are existing and more eVective ways of ensuring that patients’ autonomy and freedom of choice is being valued and respected. The Harrow Users Group wonder whether the new Bill aims at reinforcing social control or whether it aims at respecting and promoting the civil rights of the patients and their health? In our view, the Draft Mental Health Bill would greatly improve if it included the following points: (a) Ensure that people get the help they need when they need it. Too often patients are put under compulsion because they haven’t received the care they needed at a very early stage and were turned away. The new Bill should contain provisions to make sure that the authorities have a duty to carry out prompt assessments and that the needs of the patients are being met promptly. (b) Ensure that compulsive treatments guarantee health benefits for the patient. (c) Ensure that patients participate fully in treatment decisions and are being involved and consulted in a way whereby their wishes are respected. The new Bill should contain provisions regarding the patients’ ability and capacity to make decisions. Advance directives should be included in the Bill as a way of making sure that the patient remains aware of what might happen in time of crisis. The Bill should aim at narrowing the scope for compulsion not increasing it. 2. The Draft Mental Health Bill does not recognise the diVerent cultural conceptions and perceptions of mental health in our society. It oVers a limited and narrow view of abnormal behaviour that does not recognise the diVerent conceptions of “abnormality” across society. Without the recognition of cultural diversity and of the diVerent cultural definitions of health and ill-health, the new Bill discourages greater understanding and inclusion of ethnic minority groups in our society. It does therefore not encourage trust and engagement with current mental health services. It holds the potentiality for greater cultural alienation and social exclusion. It goes against the government’s current agenda for social inclusion and tolerance. In our view, the Draft Mental Health Bill would greatly improve if it included the following points: (a) Ensure that the new Bill recognises the diVerent conceptions of mental health across society. The new Bill should contain provisions to meet the health needs of the diVerent cultural groups in our society. (b) Ensure that the new Bill recognises the diVerent needs of diVerent cultural groups and ensure that services are designed to meet these needs. The new Bill should oVer clear guidelines to prevent misdiagnosis amongst people from diVerent ethnic background. (c) Ensure that the new Bill promotes social inclusion. 3. The Draft Mental Health Bill oVers an image of mental health that has been badly aVected by what has been conveyed through the media. It reinforces stigma and prejudice against people with mental health problems by presenting them as dangerous for society and its members. It is a false assumption that does not reflect the reality of what it is like to live with a mental health problem. More than protecting society against mentally-ill patients, it is these patients who need greater protection and understanding from the rest of society. The Bill oVers a dated vision of mental health that surrenders to fear and ignorance. It seems now that an entire population of people suVering from mental health problems is being penalised for a minority of people who might represent a significant risk to society. It is not for a Mental Heath Act to look at this Ev 966 Joint Committee on the Draft Mental Bill: Evidence

group of disturbed people. It is for the Criminal Justice system to deal with them appropriately. The Mental Health Bill should promote the health of people in distress, not punish them for a crime they haven’t committed. In our view, the Draft Mental Health Bill would greatly improve if it included the following points: (a) Ensure that the new Bill promotes pro-active ways of supporting and caring for people with mental health needs (as opposed to reactive ways). (b) Ensure that the new Bill protects people from stigma and discrimination by supporting mental health promotion. 4. The Draft Mental Health Bill introduces Compulsory Treatment in the Community (CTO). People with mental health problems will now face the possibility to be detained not only in hospital but also in their own home. We consider as users that this new measure is a serious violation of our own privacy. We feel that patients should be treated in an appropriate therapeutic environment conducive to their recovery. Some of us have children at home and are concerned of the impact compulsive treatments at home might have on them. We also feel that our home is a “free zone” where we shouldn’t have to be reminded about our own distress. We also recognise that when people will realise that they have greater chance to be subject to compulsion now that the boundaries of detention have been enlarged, they will be less likely to come forward for treatment. People will be driven away from services and will lose trust in the clinical staV and their supporting team. In our view, the Draft Mental Health Bill would greatly improve if it included the following points: (a) Ensure that the new Bill protect people’s human right to privacy and family life (b) Ensure that the new Bill recognises that only an eVective and safe therapeutic environment where the needs of the patient can be met is conducive to recovery. 5. The Draft Mental Health Bill is giving the Mental Health Tribunal new roles and powers. The Tribunal will face new responsibilities that will increase the number of decisions that will have to be made. As users we are concerned that the time the Tribunal might take to publish decisions can mean that people will have be detained unnecessarily until the decision reaches them. We are also concerned that the Mental Health Act Commission is no longer in the new Bill as an independent body and examiner. A lot of us have had experiences of psychiatric services whereby we were very much left by ourselves with no independent help for information about treatments and rights. We feel that users should never lose their rights to be informed and to be supported in their decision. Independent persons of our choice should be involved from the very early stages of a crisis to support us in the decisions that are being made about us. In our view, the Draft Mental Health Bill would greatly improve if it included the following points: (a) Ensure that the new Bill considers eVective ways for the Tribunal to fulﬁl its new roles and responsibilities to guarantee that patients are not detained for unnecessary reasons. (b) Ensure that the new Bill promotes the rights of patients by enabling independent, specialist and trained advocates to be present from the early stages of the compulsion process (examination phase). We hope that our views will contribute to a signiﬁcant revision of the Draft Mental Health Bill in a way that eVectively promotes a positive image of mental health and the rights of mental health service users. Eamon O’Connoll October 2004

Memorandum from G Woodward (DMH 246)

1. My name is GeoVrey Robin Woodward I am a mental health service user, a member of Hereford Mind Day Centre and a member of National Mind. Also Trustee and Volunteer of Herefordshire User Group for people with mental health problems. Through this Bill the Government has greatly enlarged the reach of Compulsory treatment. This is not an answer to the needs generated by mental distress and ill health in our society. If the Government was serious about public safety and patients health they would do more to make sure that people got the care and treatment they need when they need them. 2. This Bill is to force people to have treatment against their will. Compulsory treatment should only happen when they are at risk of harm to themselves and others. 3. This Bill is discriminatory. Why are people with mental health problems diVerent from those for example who have cancer refusing chemotherapy? 4. I believe that if a person is in crisis where compulsion is the only option for them, they need to be in hospital where they will be safe and where there is medical staV to look after them. There should be no compulsory treatment in the community. Joint Committee on the Draft Mental Bill: Evidence Ev 967

5. When a person is put in hospital they need a friend or an advocate straight away to explain what is happening and negotiate with the medical staV an agreed course of treatment that is best for the patient. This cannot happen under the proposed Bill until the formal stages are reached. An advocate should receive payment for these services (from the mental health authorities) and still retain their independence. 6. One of the best ways to give service users more control of their life is to participate fully in their treatment decisions and in particular decide in advance what should happen in a crisis. This can be achieved with an Advance Directive which is a statement of wishes and instrutions for what should and should not happen when the person is not well enough to express their wishes. This right will be taken away under the Bill once a person is under compulsion. 7. Under the Bill the right to free aftercare services for people held in hospital under compulsory powers such as supported housing and aftercare is to be limited to six weeks. Someone trying to rebuild their lives may need several months or longer in supported housing before moving on to independent accommodation. These proposals run contrary to good practice. 8. At present there can be long delays in getting a hearing before a Tribunal. The Committee should be aware of the terrible distress that this causes to mental health patients. Tribunals should include a psychologist and a mental health service user and aim for gender balance. However, overall I do believe that this Bill needs a fundamental redrafting, based on human rights. October 2004

Memorandum from service users and staV from the forensic low secure wards at Leeds Mental Health Trust (DMH 247)

1.1 I am writing on behalf of the service users and some staV from forensic services in Leeds. We have discussed the Bill and would like our comments to be considered as evidence—which is outlined in this memo. 1.2 The list of subjects we are concerned about are as follows: — Language used. — Prevention of incidence. — Conﬂicting values for workers. — Stigma and discrimination. — Risk. — Deﬁnition of mental disorder. — Advance directives. — Danger of misinterpreting diverse cultural behaviours. — Aftercare. — Nominated persons ability to request discharge.

2. Language Used 2.1 The language used in the Bill is not accessible to many people, and if the Bill is not openly transparent there is often something to hide. For example the Bill seems very defensive. 2.2 The idea of using the phrase “compulsion” reminds many of olden-day psychiatry—not the future vision around promoting recovery and social inclusion. 2.3 The Bill should be around building on people’s strengths and abilities to “cope”. This could be portrayed in the wording of the document.

3. Prevention of Incidence 3.1 The fact of being able to treat someone with compulsion, even if they consent to treatment, has a backhanded signal that people with mental health problems bring risk to their communities. 3.2 Relationships cannot be made to increase trust when they inadvertantly are there to police people. The public will pick up on this issue. 3.3 Take this part out, due to blurring of boundaries. Ev 968 Joint Committee on the Draft Mental Bill: Evidence

4. Conflicting Values for Workers 4.1 Mental health care professionals are fed information around how to empower people and improve individual’s ability to live a better life. How can the values needed to practice in this way complement many issues arising from this Bill, as it stands at the moment. 4.2 There is a real conﬂict in practice around how diVerent models of care impact on the proposals stated in this Bill. 4.3 Listen to what all stakeholders say about moving mental health care forward, and how to promote opportunities for people in the community, and whist they are in hospital.

5. Stigma and Discrimination 5.1 This Bill is riddled with information for “the public” to increase stigma and discrimination. 5.2 Therapeutic cultural environments cannot be strived for when there is national legislation which gives the public/staV ideas that people should be locked up without evidence that any criminal act will occur. 5.3 There needs to be extra resources available across diVerent services to provide a balance of viewpoints.

6. Risk 6.1 Risk should be put into context. 6.2 Saying that “all people with mental health problems are a risk to society” is blatantly inﬂammatory language. 6.3 Risk should be carefully assessed and managed using appropriate tools. All staV should be trained in using such materials.

7. Definition of Mental Disorder 7.1 This is too broad. There is the prospect that most people alive today could potentially be given a compulsory treatment order. 7.2 People should be examined/assessed with regard to their health/illness at any given time. Behaviours of people should not be the main focus of the treatment they are compulsory given. 7.3 Be speciﬁc.

8. Advanced Directives 8.1 These should be relevant to people being cared for under a compulsory treatment order also. 8.2 Taking someone’s plans for their crisis away undermines conﬁdence in the NHS. 8.2 Advance statements should be used when writing any care plans, as consideration to the involvement of any service user is a key element to empowerment.

9. Dangers of Misinterpretating Diverse Cultural Behaviours 9.1 DiVerent cultures behave in diVerent ways. It is important that cutural diversity is understood and someone’s ignorance does not ever cause someone to be unsuitably detained. 9.2 If behaviours are steering/inﬂuencing a person’s prospect of being detained, all AMHW’s need to be culturally aware. 9.3 Employing advisors that are available to promote understanding of these issues.

10. Aftercare 10.1 Aftercare should continue to be free for at least six months. 10.2 There is a transitionary period when someone is discharged out of hospital, which includes a signiﬁcant amount of stress. Having to be burdened with the thought that this care may not continue (due to lack of funds) is enough to cause another relapse—and even a criminal act in order to be taken to somewhere more safe. 10.3 Aftercare should be free for as long as an individual requires it. Joint Committee on the Draft Mental Bill: Evidence Ev 969

11. Nominated Person’s Ability to Request Discharge

11.1 This possibility should not be lost in the Draft Bill, as it may be a lifeline that the service user and their nominated person would like to use. 11.2 Without this mechanism, the Bill is communicating that this possibility is not valued/not important. The decision to stop this appears to be a punishment/more work for people to do. 11.3 We request that this opportunity still applies to the new laws. Joanna Wright Service User Involvement Facilitator Forensic Services Leeds Mental Health NHS Trust October 2004

Memorandum from the South London and Maudsley NHS Trust (DMH 249)

(NB: At the end of each paragraph, Q*, refers to the Joint Committee’s Question) The South London and Maudsley NHS Trust has considered the Draft Mental Health Bill and the request for written evidence to the Joint Committee and wishes to submit the following comments. We welcome the positive aspects of the proposed new legislation, but, given the restriction on words, and the speciﬁc questions posed, we have concentrated on areas of the current draft of the Bill which we would wish to see improved upon.

1. Overview

1.1 Having carefully reviewed the substance of the Bill, the Trust does not believe that it would significantly enhance our ability to deliver eVective mental health care. 1.2 The Bill contains many areas of concern and risk, including major resource implications, which could have a distinctly negative eVect on our services. Not the least of these is the potential to increase the stigmatisation of mental health service users. 1.3 In particular, we are concerned about the emphasis, throughout the Bill, on avoiding “risk” (to the client or others) rather than providing “benefit” (through appropriate treatment interventions). There is a danger that the impact of the Bill will overwhelm mental health services with people who might be a risk to the detriment of those who would actually benefit from care. The result of focussing services on people who present a risk is that it may deny those people who, though not a risk, still require mental health services. It also makes it diYcult to provide health promotion and preventative strategies. 1.4 The Bill is lengthy, complex and diYcult to read. We would suggest that a comprehensive, “plain English” version should be produced to make it easily understood by all those it will aVect.

2. Definitions

2.1 The definition of Mental Disorder remains very broad and open to individual interpretation. People with serious learning diYculties could be liable to permanent detention. In particular, the lack of exclusions around substance misuse raise concerns about the inappropriate use of detention and increased load on services. (Q2 & 3) 2.2 The definition of Medical Treatment which must be available to justify compulsion is exceptionally broad, and open to potential abuse. In particular the reference in Clause 2 (7) (b) to “care” as a form of treatment in itself is all-encompassing, subjective and unhelpful. This has the potential to considerably widen the number of people who may be subject to compulsory powers without significant benefit. The Bill would make it possible for a patient being treated under a non-residential order to be admitted to Hospital for failing to attend an education class. (Q2, 4 and 6) 2.3 Too much of the detail is to be included in the, as yet unpublished, Code of Practice and Regulations. In order to fully assess the Bill’s eVects, we consider that it should have been published with the Draft Code and Regulations to enable fuller consideration of the whole range of changes envisaged in the new Mental Health legislation.(Q7) Ev 970 Joint Committee on the Draft Mental Bill: Evidence

3. Stigma and Public Confidence 3.1 The close association between mental disorder and dangerousness implicit in the Bill may convince many service users that the primary purpose of mental health services is the protection of public safety rather than the provision of health and social care. Combined with the increased range of options for compulsion and the broadening of relevant deﬁnitions, there is a risk that it will result in people who require help refusing to engage with services and, indeed, going “under ground” to avoid them. The net eVect, therefore is likely to be the opposite of that intended.(Q1 and 3) 3.2 Similarly, the eVect of the Bill, its deﬁnitions and provisions on public perceptions of mental health service users is likely to be negative. It risks substantially increasing the stigmatisation of a vulnerable group, contrary to the entire thrust of current mental health and social care policy. (Q1 and 3)

4. Effect of “non-residential” assessment and treatment powers 4.1 Generally, non-residential assessment and treatment orders appear to have few advantages over arrangements under the current Section 25 of the 1983 Mental Health Act in terms of enabling patients to engage with care options. It will also make it considerably easier to admit or readmit people to Hospital which may increase the use of formal admissions and add to pressure on in-patient units.(Q4 and 6)

5. Safeguards 5.1 We do not support the loss of autonomy involved in the Approved Mental Health Professional being potentially employed within the same team as the medical staV who are also conducting the assessment. Similarly, we are concerned about the inability of the Approved Mental Health Professional to veto the use of compulsion, unless supported by one of the two doctors carrying out the assessment. This removes the independence of the Approved Social Worker role. We believe that these proposals may have a negative impact on the functioning of our community teams and eVectively disempower individual clinicians within them. These factors aVect the rights of patients but could also compromise our ability to recruit to these roles. (Q3) 5.2 The Bill obliges the Trust to consider a formal assessment of any person at the request of any other person. Accepting that it is suggested that there will be safeguards in practice guidance, this appears to be open to abuse and could place a strain on staV resources. We believe that this clause should be substantially revised or removed. (Q3 and 10) 5.3 We do not support the loss of Managers’ reviews of patients’ detention or believe it is appropriate that the Tribunal which approves compulsory orders will also be responsible for hearing appeals. The latter suggests a conflict in role and may breach the Human Rights Act. The loss of the nearest relative power of discharge removes another avenue of review. We also strongly believe that patients may be reluctant to appeal, as a Tribunal may result in the imposition of a longer term treatment order at an earlier stage. (Q3) 5.4 There is a risk that the process of reviewing care plans and related decisions to introduce or maintain compulsion will be insuYciently robust. One person panels must be the absolute exception and should be held on the basis of clearly defined criteria rather than administrative convenience. (Q3) 5.5 In the light of the above, we regard the loss of the obligation to seek the patient’s consent, or a second opinion, for treatment with medication for longer than three months as a significant erosion of patient protection. (Q3) 5.6 The role of the Tribunal in reviewing changes in care plans may have the unfortunate result of rendering those plans anodyne and non-specific. This would be contrary to developing best practice in mental health services currently (Q3) 5.7 We are further concerned that the Tribunal will have the right to restrict the discharge of any patient subject to compulsion, whatever the clinical circumstances of the case (Q3) 5.8 We consider that the replacement for Section 5 of the 1983 Act, which has significant power, should be contained within the Bill and not within the schedules. as currently drafted. (Q3, 4 and 7)

6. Resource Implications 6.1 The costs of implementing the Act are likely to be high, and the on-going expenditure to support its operation is diYcult to estimate. At present, there are shortages of staV both at the Tribunal and within the mental health services, we are concerned at how this shortfall will be overcome. Clarity is required as to whether the additional staV will be placed within the Tribunal system or Trusts. A further concern is the cost of the additional resources and how this will be funded. (Q10) 6.2 Additional responsibilities for clinical staV working as Approved Mental Health Professionals are likely to aVect grading and remuneration and both will have resource implications. (Q10) Joint Committee on the Draft Mental Bill: Evidence Ev 971

6.3 The broadening of the term mental disorder to include substance misuse will increase the number of admissions to in-patient units with obvious resource implications. This is also likely to complicate the role of Liaison Psychiatry in Accident and Emergency Departments with the potential to disrupt these services which are already under pressure. (Q10)

7. Summary 7.1 Implementation of the Bill would pose signiﬁcant risks to the development of the safe and eVective services which it is speciﬁcally intended to promote. It would also be hugely expensive in terms of both human and material resources 7.2 It is not evident that it oVers suYcient advantages over the current Mental Health Act to justify that expense and those risks. 7.3 The Trust welcomes the opportunity to continue working with the Department on positive approaches to modern mental health legislation. October 2004

Memorandum from Bristol Mind and the Service User Reference Group (Avon) (DMH 250) Bristol Mind and SURG would like to express grave concern at the tone and content as well as at some serious omissions in the Draft Mental Health Bill. The local user community which we represent strongly supports the views of the Royal College of Psychiatrists whose members have expressed “grave anxieties in terms of civil liberties, ethics, practicality and eVectiveness” (8 September 2004). Dr Tony Zigmond believes that there could be as few as a dozen people who meet the criteria (described by Ministers as having dangerous and severe personality disorder or DSPD) in the community. He criticised the government for drawing up a new mental health law “designed to deal with a dozen people that would aVect 50,000” (Guardian, 9 September 2004). There does not appear to be anything in the Bill that addresses the cycle of exclusion identiﬁed in the Social Exclusion Report (June 2004) including stigma and discrimination, a lack of clear responsibility for improving vocational and social outcomes for adults with mental health problems, diVerent services not always working eVectively together, poor quality of diagnosis and over focus on medical symptoms etc. (p21) These are proven factors in causing or making worse a person’s mental health problems. The Bill does nothing either to work towards eradicating stigmatisation but instead increases the criminalisation of mental Our response tackles the issues raised by the “Overview of the entry and exit routes for civil patients under the Mental Health Bill” (in Improving Mental Health Law, DoH, September 2004, p12) and it oVers other comments and suggestions on other areas of concern. The fact that the Guidance has not yet been published, our comments are made in the light of current practice. Overview of the entry and exit routes for civil patient (very user unfriendly expression which most people won’t understand) under the Mental Health Bill, we would like to make the following comments:

What is Missing? — Positive structures and a genuine will to empower service users in this process. — Holistic vision (over emphasis on the medical model) which also limits the care pathways available. — Emphasis on planning to avoid compulsory admissions as much as possible, which highlights a lack of forethought: — The process appears to wait until situations have deteriorated and have become emergencies. — No mention of Advance Directives and no emphasis on care planning and the Care Programme Approach (CPA) process early on. — No mention of the concept of crisis cards (for existing service users) which could be used very early on and used to signpost to a nominated person (or persons) as well as to Advance Directives. — Where are and what the safeguards to ensure that formal powers are not used inappropriately? — A congruence between the Bill and the Social Exclusion Report. — A right to aftercare: although it is in the Bill, it would only be for six weeks, which is risible and totally ineVective. — A lack of routine good quality information about services available that might be useful to service users and carers (Bristol Mind, September 2004: “Crisis . . . what crisis?”, User Focused Monitoring , www.bristolmind.org.uk) — Enough services to support what it claims to do. Ev 972 Joint Committee on the Draft Mental Bill: Evidence

— Enough choice and range of options for treatment. — A right to and availability of advocacy from the entry point.

What is Not Working/is Wrong with the Overview Diagram? — A big divide between those who meet the conditions to receive mental health services as in-patients and those in the community who may be very distressed and do not get services or the right level of services. — Lack of diVerent options in terms of care pathways and over emphasis on the medical model. — What does a right to treatment mean when services are not available or when access to these services is extremely restricted either by waiting lists or diagnosis or where the person lives? — The appointment of the nominated person only appears half way down the process when it should happen at the earliest possible stage, which makes it tokenistic. — Nothing about care plans and care planning. — Tribunals: — The possibly unrealistic reliance on Tribunals to settle disputes or make the appropriate decisions when it is clear that these are already under get strain to perform within the time constraints. — It is very diYcult to comment on the structure of these Tribunals given that there are still too many uncertainties in the Bill as it currently stands. — The question of who provides the evidence to the Tribunals is not answered. — The change in the nature of the Tribunals may lead to a situation where service users’ views may be represented or may even be absent from the proceedings, which is disempowering. — The principles of advocacy and consultation with the service user not built into the Tribunal process. — The role of the nominated person may be severely curtailed or fraught with obstacles by the very nature of an inquisitorial Tribunal, in so far that they may not be able to represent the person or challenge the formal powers in their decisions. — The time constraints to meet the diVerent stages of the process are unrealistic unless more staV are available.

Suggestions for Improvements to the Overview —OVer a more holistic view of mental health, taking into account both medical and social aspects of a person’s care. — Support the implementation of the true nature of the Care Programme Approach (CPA) where the service user should indeed be at the centre of the process, with rights and they are empowered, and not a tokenistic add-on. — Bring the principles of advocacy right at the beginning of the process. — Introduce and support the principle of Advance Directives early on in the proceedings through the implementation of CPA. — Empower and support the service user to make decisions whenever possible. In particular, People could be sectioned when there appears to be no alternative: where is the evidence to support that the Bill will actually do what is says when the Bill actually contradicts itself in these regards, such as the ability of the formal powers to override a person’s wishes, or the lack of proper information given to people about any of the processes (assessments, ICPA, rights and responsibilities of these powers etc). How then can any of the elements the Bill talks about be implemented? (from summary p11)

Right to Services and Right to After Care: Choice and options of services. Crisis: what people want: quote the report; more emotional support than medication; a lot of people thought that their crisis could have been avoided if their crisis had been better understood and acknowledged. What the report found out is that there is a need for a range of options to respond to the varied experiences of people. If people had more of a choice of services, they might “comply” more. If people had a right of services when they needed it, they may not be pushed into a situation where people become “dangerous”. Dangerousness and compulsion. Joint Committee on the Draft Mental Bill: Evidence Ev 973

Disproportionate focus on dangerousness when the evidence shows that most people are dangerous to themselves rather than to other people. The law of unintended consequences: what happens when people are forced to act in a certain way? Contradiction in the discourse.

Social Exclusion (and Crisis): Looking at the social exclusion report and fact sheets about best practice. Still lacking imagination in what it proposes to do. — Access to talking therapies, in consultation 11% asked for more access to them and less. Access is also restricted by the low availability of NHS talking therapies. NICE guidelines support the idea of providing more talking therapies. OVer a less view of mental health that works towards eradicating stigmatisation rather than criminalise it.

Advance Directives and Advocates and Nominated Persons: Still lacking imagination in what it proposes to do, should be wider and more practical than just medical treatment. Copies of them should be included in the care plan (standard and enhanced levels). Disempowerment embodied in the Advance Directives as they stand in the new Bill. What will be the process by which formal powers decide that it can be overridden? What safety nets and guarantees will be in place? When it does not exist, advocates or nominated people need to be properly consulted. Their position needs to be clariﬁed and be the person’s choice. Right to advocacy is about empowerment.

Sectioning Process:Lack of Checks and Balances in the System The powers of sectioning are going to be extended. There is a need to clarify the “other person”: what will their position be, could they be in danger of being overwhelmed and overpowered by medics or paying lip service to what the medics say? AWS: was independent from the medical establishment. Who is this approved mental health professional? Not independent from the medical establishment any more.

Dangerousness and Compulsion Where would the hospital under the compulsory treatment option?: would A&E for instance count as hospital? Fails to acknowledge the sometimes very raw side eVects of medication that mean that some people may not want to take or keep taking medication plus poor monitoring of medication, plus rapid changes, plus polypharmacy. A right to services should also mean a right to choice, eg talking therapies instead of medication. Since the Draft Bill proposes that the right to treatability is going to be removed, will people like Michael Stone be treated or rejected. How can people with learning disabilities are put together with people with depression or schizophrenia? How can they also be treated as treatable? Certain categories of people could ﬁnd themselves more at risk or being treated compulsorily. If someone has been treated in hospital it is like a black mark against your record that allows formal powers to compulsory treat you in the community: How long ago in time? Or arbitrary time period? if someone has not had an had epileptic episode for three years, allowed to drive again. Why diVerent in mental health? Added stigma that never disappears, a life long sentence that is imposed on people. October 2004 Ev 974 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Mind—Basildon (DMH 251)

1. Introduction 1.1 I am secretary of the above association and have been instructed by our Executive Committee to write to the Joint Committee expressing our concerns about the proposed provisions in the Draft Mental Health Bill. These are summarised below. We wish this memorandum to be treated as evidence. 1.2 We are particularly concerned about the following aspects of the Draft Bill. (i) The basic right to services is not stated as a prime aim of the Bill. (ii) There is an increased use of compulsion. (iii) The forced admission of patients not necessarily for their own beneﬁt. (iv) Compulsion in the community where hospital treatment would be more eVective. (v) Changes in procedures leading to compulsory treatment particularly in relation to loss of early support from family, friends, carers and advocates. (vi) Removal of legal status of advance directives under new proposals. (vii) The restriction in availability of free housing and community care post compulsory hospital care. (viii) The proposed increased powers of the Mental Health Tribunals will actually cause considerable delays in the discharge of patients who are being treated compulsorily. (ix) The new powers for Electroconvulsive Treatment to be given without consent in an emergency. (x) The new powers to be given to police to enter private premises without a warrant.

2. Subject:Lack of Stated Basic Patient Right to Mental Health Services 2.1 If the Government was serious about public safety and patients’ health they should do more to ensure that people get the care and treatment they need when they need it. 2.2 This aim should be clearly stated in the Bill and should be the primary aim of the Bill.

3. Subject:The Whole Thrust of the Bill is Towards the Increased Use of Compulsion 3.1 The Bill gives increased powers to new Mental Health Tribunals when existing procedures work reasonably well. 3.2 The areas of the Bill relating to the new provisions should be reviewed in consultation with representatives of mental health professionals and relevant voluntary bodies representing service users.

4. Subject:The Particular Emphasis in the Bill on the Forcible Admission to Hospital of People with Mental Health Problems Even Though the Treatment or Therapy Offered Might Have No Beneficial Effect on Their Health 4.1 We feel that this emphasis has the eVect of reinforcing public prejudice against people with mental health problems; that it will drive vulnerable people away from seeking help when they need it; they are unnecessary as people working in clinical health care currently can, and do, take action under exiting law to deal with the situation once they are aware of a genuine risk of this kind; and, lastly, powers sought do not address a more signiﬁcant problem: the denial of help to some perpetrators of violence who are refused help prior to the crisis due to the lack of resources. 4.2 As in 3.2 above the relevant clauses should be reviewed in consultation with representative of the people actually dealing with such cases with a view to achieving a sensible workable legal framework—that is one not driven by prejudice against the mentally ill.

5. Subject:Compulsion in the Community Where Hospital Treatment Would be More Effective 5.1 Under this Bill patients may be put under compulsion in the community rather than in hospital. Patients could be required to take certain drugs, to stay in a certain place and to attend certain clinics. It appears that once a patient is on such an order it would be diYcult to be discharged from it. Additionally, it would be diYcult to get a change of treatment regime if the psychiatrist disagreed. Basildon Mind feel that if in a crisis situation where compulsion is the only option people need to be in hospital where there will be medical and nursing staV to monitor the eVect of medication and treat adverse reactions. Compulsion in the home is disruptive and can interfere with people’s domestic lives, denying them the human right to privacy and family life. Community nurses and psychiatrists do not want or need to police their clients in this way. It will damage trust in their relationships with their clients. 5.2 The relevant clause should be amended or deleted to remove this power. Joint Committee on the Draft Mental Bill: Evidence Ev 975

6. Subject:Changes in Procedure in Relation to use of Advocates and Nominated Persons in Proceedings Leading to Possible Compulsory Treatment 6.1 Basildon Mind believes that as soon as a person is deemed to be in crisis and is put in hospital that person needs a friend or advocate to explain what is happening, to negotiate with the medical team and, if possible, get agreement to the course of action that is best for the patient. Such a person should be someone who is trusted by the patient and who knows them well. Under the new Draft Bill such a nomination does not take place until the later formal assessment stage of the procedure. Also, under the new Bill, the right of the nearest relative to seek to have the patient discharged while under compulsion will be lost. We feel that it is essential the current right of a patient to have the early support of family, friends, carers and advocates is essential. We also feel the loss of the right for relatives to seek the release of a patient is a retrograde step if the aim is improving the care available to patients. 6.2 We feel that the relevant clause in the Draft Bill should be deleted or amended

7. Subject:The Removal of the Legal Status of Advance Directives Under the New Proposals 7.1 Basildon Mind has always felt that the existing right of patients to make advance directives as to their care in the event of their being unable to express these wishes in time of crisis is an extremely valuable one. Indeed, a recent study has shown that use of advance directives in cooperation with the clinical team has cut compulsory admissions over a two-year period. Under the new Draft Bill this right will be lost when a person is put under compulsion. Basildon Mind feels that the loss of this option will adversely aVect the rights of patients and will have deleterious clinical eVects. 7.2 The Bill should contain clauses that will maintain the status quo.

8. Subject:The Proposed Restriction in the Availability of Housing and Community Care Post Compulsory Hospital Care 8.1 We at Basildon Mind are seriously concerned at the proposed powers under the Draft Bill for the extension of compulsory hospital detention if suitable care service provision is not available. We feel that this will disguise the lack of services which support recovery and prevent further admissions. It will result in unjustiﬁable continuation of compulsory detention just because services have not been provided. Furthermore, the Bill restricts the right of community care and housing after discharge to just six weeks. In our view six weeks is a negligible period in which to allow patients to adjust to life outside hospital particularly for those patients who have been discharged after long-term hospital stays. These proposals seem to run contrary to the Government’s claim that the Draft Mental Health Bill supports continuous, holistic care designed to prevent admissions to hospital. 8.2 Basildon Mind feels that the relevant clauses in the Bill should be amended or deleted.

9. Subject:The Proposed Increased Powers of the New Mental Health Tribunals Will Actually Cause Considerable Delays in the Discharge of Patients After Compulsory Treatment 9.1 Under the present legislation a patient can be discharged from compulsion by the Responsible Medical OYcer, or by the patient’s nearest relative or by the Mental Health Review Tribunal. Under the proposed legislation the Tribunal will have increased powers in this area. We foresee that considerable delays will occur under the new arrangements, as even now it is sometimes diYcult to arrange a hearing at a Tribunal. We feel the new arrangements could add greatly to distress to patients while they await discharge. 9.2 The relevant clauses in the Bill should be reviewed.

10. Subject:The New Powers Under Which Electroconvulsive Treatment Can be Given Without Consent in an Emergency 10.1 While Basildon Mind does agree that the proposed Bill is much better than the current law on Electroconvulsive Therapy we are concerned that the new powers to give ECT to patients without their consent in an emergency are excessive. We do not believe that ECT should ever be given to patients without their consent. 10.2 The relevant clauses should be amended.

11. Subject:The New Powers to be Given to Police to Enter Private Premises Without a Warrant 11.1 We feel that there are suYcient existing powers available to the police to deal with situations where they believe people in private premises are in urgent need of treatment. 11.2 The relevant clause should be deleted from the Draft Bill. October 2004 Ev 976 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Andy Atkins (DMH 252)

I am an Approved Social Worker with 17 years experience and have made a minimum of 300 Mental Health Act assessments. I work in a Community Mental Health Team (CMHT) serving an under 65 years of age diverse population in an inner-city area of Leeds. The views below are from members of this CMHT which include four Community Psychiatric Nurses, an Occupational Therapist, and myself.

The Effect on the Roles of Professionals

The service we provide.

I don’t think it is in doubt that all mental health professionals try to work in a collaborative way with the clients they serve. The development of trust and honesty is fundamental in any successful relationship. It deeply concerns our team that this could be jeopardized by the introduction of powers in the community (a care plan stipulating “requirements” which will be approved by the tribunals—Part 2, Chapter 6, Sections 38–41). Our fear is that some psychiatrists will be eager to put in place “compliance with medication” as a requirement for a non-resident patient. Whilst this might be done with the very best of intentions, many clients prefer to exercise choice about the substances that they put into their bodies because they put on weight, lose their libido, or suVer other symptoms such as lethargy, loss of concentration, etc. One of our roles is to counsel and advise clients about medication and help them decide for themselves about the benefits of medication. If they have the threat of being returned to hospital for non-compliance of a “requirement” eg medication compliance, then a client will probably consider not telling us if they are prescribed oral medication and if they are on depot medication ( the preferred option of psychiatrists ) then our role has definitely changed from therapeutic to a policing role. It is significant too that Section 81 gives a responsibility to AMHP’s to “take patients who abscond or who are absent without leave into custody.” It is our belief that more of our clients ( who are defined as having moderate to severe mental health problems and more likely to be those considered “revolving door” patients) will be subject to compulsion given the risk of harm to themselves. We feel this wasn’t the original intention of the new Act as the concerns from Ministers were the risks posed to members of the public from people considered to be dangerous and having a mental health diYculty. From personal experience of the hundreds of clients I’ve tried to help over the years, only a handful have I considered dangerous and they have been referred on to specialized teams such as Assertive Outreach Teams or Forensic Services.

The Approved Mental Health Practitioner (AMHP)

In Leeds the current approved social work service is monitored by the Mental Health Unit of Social Services. A duty ASW rota system exists to serve ﬁve PCT areas of Leeds. When an ASW is requested to make an assessment under the Mental Health Act it is unlikely the ASW will have previous knowledge of the client. The independent role of the ASW is very clear during the process and in respect of my ASW career, one in six of the ASW assessments which I undertake will not result in an application. Under the reforms proposed it is not clear how and who will take responsibility for managing AMHP’s and the assumption seems to be that the AMHP will probably be part of a client’s/patient’s psychiatric care team. Should this be the case then it raises the questions of independence and objectivity of the AMHP eg. How likely will it be for a Community Psychiatric Nurse or other NHS professional to object to two recommendations by doctors ? We also have concerns as to how many professionals other than social workers will want to become AMHP’s. Mental health nurses and occupational therapists are certainly aware of the diYculties and stresses involved in duties which can remove a persons’ liberty and are not taken in by the rather simple case study illustration ( No. 1 in the DoH Summary “Improving Mental Health Law”) implying “D” willingly complies with compulsory powers and “arrangements are made to drive D to hospital”! All professionals know that assessments under the Mental Health Act can be complicated and distressing for all involved parties.

The Definition of Mental Disorder

We are worried that the deﬁnition of mental disorder will no longer be based on causes and therefore more people will become subject to compulsory treatment. We feel it is a mistake not to exclude certain conditions such as immoral conduct, sexual deviancy, dependence on alcohol and drugs, etc. Joint Committee on the Draft Mental Bill: Evidence Ev 977

The Effect on Resources There are positive ideas in the Draft Bill. The replacement of the nearest relative with a nominated person and the increased role of advocacy. However, the latter is so sparsely funded in Leeds currently then it begs the question of funding and training to meet the requirements which are proposed. The Care Plan within ﬁve days of admission to hospital is also an excellent proposal but it will be an onerous task for clinical supervisors who have so many other commitments.

The Effect on Service-users There is nothing new in the Draft Bill that will alleviate the stigmatization of people suVering mental health problems and the general misconception by the public that mental illness equals dangerousness continues to be perpetuated. The new compulsory powers that will be available to clinical supervisors to use on non-resident patients/clients will we believe when known widely by the general public, prevent people seeking help from psychiatric services. This of course, is contrary to the supposed intentions of the new legislation. Andy Atkins Psychiatric Social Worker October 2004

Memorandum from S Cramp (DMH 253) Introduction My Name is Simon Cramp and I am man with a Mild Learning Disability and I sit on a board called New Dimensions Group which is an organisation who provides Supported Living Services for people with Learning Disabilities is also working towards being a person centred organisation. Also I have done a lot of work on Valuing People published in March 2001 but also I have done a lot of work around the Mental Capacity Bill and I think also some of the issues overlap hopefully I will be able to develop my argument in my submission. I am writing in a personal capacity.

The Draft Bill No I don’t think the Government has got the balance right because if there is a chance for people to ask the question re a decision with the chance to go to the Court of Appeal well who can aVord it you can’t get it under Legal Aid because it I believe would not qualify for Legal Aid. In terms of also people with a learning disability who have communication issues and the idea the government is proposing about advocacy just does not hold water for me because in the scrutiny of the Mental Capacity Bill when a number of us with a learning disability called for advocacy but the government said they could not write a blank cheque and have changed the words to independent consultie I am hoping Members of parliament will be pushing for amendments So really I am confused with diVerent elements for where the Mental Capacity Bill picks up the stuV or Mental Health Bill . So I am interested in what the committee says in it report to government. October 2004

Memorandum from Steven Miller (DMH 254) 1. I am writing regarding the Draft Mental Health Bill. I am an individual with no particular aYnity to any organisation; I am a “user” of the system. I would describe myself as severely manic-depressive with paranoiac problems. I feel that much of my confusion comes from being very uncomfortable with my behaviour, my interactions with others, etc. I have had dealings with social services, my GP and various counsellors for several years, with little apparent result. No one seems to know what to do. 2. I can only speak from my own experiences and from my knowledge of the experiences of others I know in similar situations. I don’t know how people who are beyond self-awareness or rational thought can be dealt with, except to be seen as extreme examples. I don’t know how you can quantify being cured, whether it is being well enough to work or being comfortable within oneself. 3. I was made aware of the proposed changes to the Mental Health Act via the organisation Mind and feel strongly, as they do, that these changes may lead to great segregation and stigmatisation of the “mentally ill”. I wonder who will beneﬁt or who is intended to beneﬁt. I ask for as much compassion as is possible with regard to this issue. Ev 978 Joint Committee on the Draft Mental Bill: Evidence

4. Many “ill” people are fragile and I believe the Bill would not allow for these sensitivities, the very thing that it should be intended to safeguard. Many “ill” people are aware enough to deal with their problems themselves, they are capable of intelligent choice and can take honest criticism or feedback. They can create their own solutions to their problems provided the correct help is oVered. Surely the most sensitive and sensible option is to allow them to work through these problems in their own time and allow them to integrate on their own terms as much as is possible. 5. There is a lot of informal information available amongst communities. Again awareness is the key. A community-based approach is a good thing, I am sure, because it builds some kind of strength of understanding. I often have great problems because I am very verbally aggressive; people seem to ﬁnd it confrontational. But it is just an annoyance, not a danger, hopefully! 6. People who have such problems need guidance, not control. This often adds to the confusion already felt. People do not need to be labelled, but alternately need to have an outlet for, and comprehension of, their feelings. Surely this is where the emphasis should lie, not in being “correct” in terms of behaviour. People I have met often seem to place little faith in the medical world, because of things like this. Certainly methods such as ECT and chemical coshes should surely only be used as a last resort, not popularised as maybe have been. 7. Personally speaking, I am sure that techniques such as psychodrama, Gestalt, and in particular those mentioned in the book “The Primal Scream” (personal rejection and body memory) by Dr Arthur Janov are central to mental illness (not necessarily brain disorders). Meditation and the abstraction of behaviour back to the conditioning process allow much grief to be uncovered. These approaches oVer a genuine hope to me. I don’t pretend to speak from any position other than that of an independent but emotionally damaged young man. This has run in my family and they had little genuine support from the system also. It is quite frustrating. 8. I am sure that with less dangerous cases, a community-based approach is beneﬁcial and practicable, even with the therapeutic approaches I have mentioned. So, continue with care in the community please! Please. Information and awareness are the key factors, not segregation. Thank you. October 2004

Memorandum from Debra Ramchurn (DMH 255) I am writing on behalf of mental health service users in Andover, Hampshire working with Andover MIND. Mental Health Service Users have been consulted from various meetings and groups including inpatient services in Melbury Lodge Winchester. This is our response: 1. The definition of “Mental Disorder” is far too broad, unclear and very misunderstood. 2. The bill increases stigma and discrimination in which this project and mental health service users are trying to combat. The work of educatiing the public in reducing stigma will be ineVective. With the guidelines and principles of the Social Exculsion report will not be workable and ineVective . The Bill reinforces the public misconceptions about how mentally ill people are dangerous to society. 3. Service Users have also fedback that they will fear of contacting and engaging in services if they become unwell being more at risk of compulsory detention in the community or hospital. 4. Service Users also feel if they become very unwell and pose a risk to theirselves with the pressure of in- patient bed shortages they would be kept in the community on a non-resident compulsion which in turn will not keep them safe. 5. It seems very unclear the reasoning of being on a non-resident compulsion what are the aims to keep service users safe from harming theirselves or others? 6. The current use of Advance Directives as part of the Integrated Care Plan Approach will be ineVective as all human rights will be dismissed along with identified needs that service users would like when they become unwell. 7. In respect to the rights of carers and the next of kin this will be removed. A case where a service user felt very concerned about this issue. On becoming unwell the service user became very paranoid about her husband and didn’t want any information passed on due to being so unwell. On recovery this was not the case it was only during her psychotic episode that she wanted this. With the Mental Health Bill her husband would be totally excluded. 8. Many service users have said with the unreasonable non-resident order how will services be able to cope with the demands of policing people in this way. The Government is very much aware of the problem of shortages of qualified mental health practitioners even creating new services for example Crisis Resolution Teams the staV shortages still remain for a eVective service. Will service users have a trusting relationship with their care co-ordinators and medical staV when they will be policed in the community in this way. Joint Committee on the Draft Mental Bill: Evidence Ev 979

9. It mentions in the Bill that the right to have more Advocates. Where are they going to come from? Advocacy services for the mentally ill is very poor in this area. Due to the shortage of Advocates trained in mental health cases. This is a feedback from the people in which if this Bill is passed will have a devastating eVect on their lives and those of their families and friends. October 2004

Memorandum from J Sen (DMH 256) My name is Joseph Sen. I wish this memorandum to be treated as evidence. The Mental Health Bill proposes to allow people to be compulsorily treated in the community. I am concerned at the infringement of personal liberty this would entail. From experience I have learned how distressing it is to be made to go into hospital and take medication against ones will and even despite the fact that the latter brings more side-eVects than benefits. Under the present act this can only be done in hospital but the new Bill would allow this to happen in the community. I am also concerned that this would be allowed to go on for a very long time given the broad criteria that are permitted for Doctors to seek a renewal of a section. It seems the Bill would allow a person to be sectioned for possibly years in the community. I do not think medical authorities should have this kind of power to determine peoples lives for years at a time or even indefinitely, especially when a person is capable of making decisions for themselves. The present proposals would also discourage people from exploring alternatives to psychiatric drugs for dealing with their psychological diYculties. It is incongruent that people can choose whether to take medication for illnesses other than mental illness. Why is it that people with mental illnesses have to be treated so diVerently? Certainly, in the media they are presented as dangerous and are rarely shown in a positive way. Legislation should be designed to deflate not enforce this prejudice. October 2004

Memorandum from Anne Dawson (DMH 257)

Summary As someone who has used mental health services on an intermittent basis since 1985 and who also manages a local mental health charity the concerns that I raise in my evidence include: 1. The wider definition of mental incapacity within the Draft Bill means that far more people come within its scope. This includes people with epilepsy or muscular sclerosis (like a late friend of mine), as well as people who may be morally judged as putting other people at risk because they are gay or sexually promiscuous. There is also a risk that some paedophiliacs will be considered mentally ill when their behaviour is simply criminal. People will be treated even when the treatment is not beneficial to them—and this will aVect people with personality disorders in particular. 2. The Bill fails to recognise that many people are being refused the treatment they request before they reach crisis point—because there are not enough services available. This leads to people become alienated from services, their families and friends experiencing unnecessary stress, and their eventually needing to receive help compulsorily if they haven’t already taken their own lives. (I know two cases where this has happened locally). 3. The Bill appears to be based on the premise that people with mental health problems can be violent. This reinforces prejudices and stigma, and is discriminatory. There is no preventative detention of other people who may put others at risk (such as the partners of the people I worked with who had suVered domestic abuse) and the treatment they receive does not have to be beneficial. Compulsory treatment should only be given as a last resort, in hospital, when people are truly in crisis and incapable of making decisions for themselves, and their medication monitored. 4. The Bill should be clearer about the role of advocates and the need for them to be lay people independent of the mainstream mental health system. Advocates should be available to people during the examination stage. 5. At the examination stage the views of formal as well as informal carers should also be sought. 6. By allowing people to be compulsorily detained in hospital longer than is necessary because suitable social care services are not in place the Bill would enable the shortages of services to be hidden. In addition, by allowing people free access to mental heath services for only six weeks after their compulsion ceases, rather than for as long as thought necessary under the current Act, would mean that vulnerable people would stop using services which are benefiting them and is likely to lead them to have another crisis. Ev 980 Joint Committee on the Draft Mental Bill: Evidence

7. Rather than taking away the legal right of people to have advance directives outlining the treatment they would not want to receive in a crisis respected, the Bill should additionally give legal backing to directives which outline the treatment and care that people do want to receive.

1. Introduction 1.1 As someone who has used mental health services (on and oV since 1985), has also been an advocate for other people with mental health problems, and who also manages a local mental health charity (Carlisle Mind) I have several concerns about the Draft Mental Health Bill, which I would like to be treated as evidence. 1.2 The subjects I most have concerns about are: — Wider deﬁnition of mental incapacity. — A right to services. — Compulsory treatment. — Advocates and nominated persons. — A right to aftercare. — Advance Directives.

2. Wider Definition of Mental Incapacity 2.1 The Bill has a much wider definition of mental incapacity than does the 1983 Act. This is important because it enables many people to be inappropriately compulsorily treated. 2.2 (a) It appears that people like my friend who had a severe muscular sclerosis type illness could be included. She was severely disabled and consequently also became clinically depressed and before she died often spoke of euthanasia/committing suicide, perhaps understandably. If she had been sectioned this would not have helped her and would have had a detrimental eVect upon her—she was already coping with so much. (b) People with personality disorders are brought into the scope of the Bill. How can someone be given medical treatment if it is not going to have any beneficial eVect for him/her? I have seen many people re-diagnosed from having schizophrenia, to manic depression, to having a personality disorder because their consultant could either not decide what was wrong with them, or because the individual was seen as being “stroppy” because they questioned the care they were receiving. (c) Unlike with the 1983 Act, which specifically excluded these people, the wording of this Bill could inadvertently allow doctors could make the moral judgement that someone needs treatment because they are gay, have gender dysphoria, or can be considered sexually promiscuous and therefore could be dangerous to others. There is also the danger that someone who is a paedophiliac could automatically be classified as being mentally ill—whilst they might be purely criminal.

3. A Right to Services 3.1 People often realise when they are reaching crisis point and ask for help and do not receive it and being unable to access it their condition deteriorates so that ultimately, after they have suVered a great deal of unnecessary additional distress and placed a lot of stress on their families and friends, they either have to be sectioned, cut their contact oV with services altogether, or even take their own lives. 3.2 The Bill does nothing to address this issue. I have known two people, who were already known to mental health services, take their own lives after they tried to obtain help and were not given it. One of these was sent from the local accident and emergency department to the psychiatric hospital, which turned him away, so he then threw himself oV the motorway bridge on the hospital site! 3.3 The Bill should be amended so that as far as possible people do not need to be sectioned to receive the help they need. It is far better for a person when they are in mental ill-health to work in partnership with services so that their health improves rather than they become angry and disillusioned and refuse to cooperate.

4. Compulsory Treatment 4.1 More than with the present Act the Draft Bill seems to be based on the premise that people with mental health problems present a risk to others. Many more people will be compulsorily treated and treatment can take place within the community. This will reinforce the stigma that people face, drive vulnerable people away from services, and is discriminatory. Joint Committee on the Draft Mental Bill: Evidence Ev 981

4.2 (a) People with mental health problems, particularly with personality disorders can be admitted to hospital without the treatment or therapy they are given being beneﬁcial to them. There is no preventative detention of many people who put others at risk, such as of the partners of the women I used to work with who had suVered domestic violence. People I work with who have been diagnosed as having personality disorders are very scared that they will be detained unnecessarily. When clinical staV are aware that there is a real risk of harm to other people they already have the necessary powers to take action. (b) Compulsion should be the last resort when someone is truly in a crisis, in danger and when they have lost the ability to make choices for themselves. It is an oVence against human rights to forcibly give someone treatment if they have the ability to choose that they do not want to take it. It is an extremely distressing experience to be treated against your will, to be injected when you do not want to be. People become very scared and upset when they are compulsorily detained and often become angry and frustrated with the professionals caring for them, and with the people who sectioned them and their families for placing them in such a situation. (c) If people are in crisis where compulsion is the only option surely they need to be in hospital where they will be safe and their medication and its side eVects can be properly monitored? Community treatment orders are likely to destroy trust between mental health professionals and their clients who do not want to police their clients in such a way. Orders will be diYcult to enforce, and once someone is under one it could well be diYcult to become discharged. They will not only institutionalise people but will also make it far more diYcult for them to regain their conﬁdence. It will disrupt their home and family life, infringe their right to privacy, and put much more pressure on carers. To tell people where they live and what they should do also infringes human rights. 4.3 The Bill should be amended so that compulsorily treatment can only be given in hospital and as a last resort.

5. Advocates and Nominated Persons 5.1 It is good that the Bill recognises the role of advocates. However, it is unclear from the wording of the Draft whether advocates are meant to replace the current role of solicitors, or are simply the current solicitors qualiﬁed to represent people at mental health tribunals. This is not the role of an advocate. They need to be independent lay people, with enough knowledge to support people whilst they are within the mental health system. 5.2 The Bill does not recognise how frightening it is for someone to receive a mental health assessment. The presence of an advocate could help them to feel supported and not alone at the initial examination stage. Additionally, paid carers, and volunteers are often the people who know someone with a long-term mental health problem best and it would be beneﬁcial for their views to be able to be taken into account. 5.3 The Bill should be clearer about the role of advocates, and the separate role of solicitors—and also recognise the need for advocates to be involved throughout the process. It should also recognise what formal carers can oVer the examination stage.

6. Right to Aftercare 6.1 The Bill allows for further compulsory treatment in some circumstances when suitable social care arrangements are not in place. This helps to disguises where there is a lack of community services available. Additionally, when people are discharged from a treatment order they will only be able to access free social care and accommodation for 6 weeks unlike under Section 117 of the present Act where they can receive free care for as long as it is thought necessary. This change will deter vulnerable people from continuing to use services and in the longer term make it far more likely that they will reach crisis-point again.

7. Advance Directives 7.1 The Draft Bill takes away the current right that people have when they are well to make a statement, which must be legally respected in most circumstances, of the treatment they should not be given if they are put under compulsion. 7.2 When people I know have had advance directives both they and their psychiatrists have found them helpful. It enables professionals to know what they really want, and also them to know that what they would like to happen when they are in crisis will be respected so that they do retain some control of their life. 7.3 Everybody I know who uses mental health services, and many of their carers, would like to see advance directives, setting out their wishes for both the treatment and care they would like to receive as well as the treatment they do not want, be legally recognised and acted upon. The Bill is an ideal opportunity for this. October 2004 Ev 982 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from D Smith (DMH 258)

I am writing to you to express my total dismay regarding the proposed changes to the Mental Health Draft Bill currently being prepared to be put before parliament. The changes proposed seem deliberately designed to provoke fear and anxiety in the most vulnerable members of our communities, the very same people who should in fact be receiving our understanding and compassion in dealing with mental health problems. Having suVered from a mental health problem myself following being attacked nine years ago I speak from ﬁrst- hand knowledge of the problems faced by many who suVer this kind of stigma and alienation. I myself developed post traumatic stress disorder following my assault. I suVered a breakdown after my case was completely mismanaged by the health services and as a result of not being treated when I repeatedly approached my GP and local mental health service in SheYeld where I live was unable to ﬁnish the course of study I was engaged in at that time. The proposed changes, aside from, in my view being morally reprehensible are totally counter productive. If people feel afraid to approach the services they need because of coercive and un-empathic treatment the eVects will only serve to widen the circle of people aVected by mental illness and create more problems than it solves. The criminalisation of the ill is no way for a civilised society to treat its most vulnerable members. New Labour seems to increasingly punish the vulnerable for the excesses of the powerful, whilst abdicating its own stewardship, they chant the mantra of rights and responsibilities. People who suVer mental health problems have a right to be treated with dignity and respect for their humanity, not criminalised and punished for a situation they are the victims of. Poverty and social exclusion breed mental illness and with the gap between the rich and the poor being at its widest for forty years it is my belief that this proposed legislation is a discriminatory attempt to punish working class people for being unable to access the same provisions as are available for more aZuent members of our society, with the result that they are criminalised for the injustice of those who purport to be legitimate in their exercise of authority over them. New Labour can no longer claim to be anything other than a wolf in sheep’s clothing hiding behind left wing sound bites which, if this legislation is anything to go by conceals (and not too well) a deeper agenda of control and despotism designed to trample the human rights of the poor and the vulnerable. I will never vote for New Labour again. October 2004

Memorandum from Verity Murricane (DMH 260)

I am a service user and chair of the West Berkshire Mental Health Forum. I am concerned because I feel that this Bill represents a wasted opportunity to improve services, and by destroying the trust between service users and staV will increase rather than reducing the danger to the public and service users. I wish this memorandum to be treated as evidence. I am particularly concerned about: 1. The lack of a right to treatment 2. The lack of a right to aftercare 3. The lack of a right to advocacy 4. Compulsion in the community 1. The lack of a right to care. Within west Berkshire there are severe and ongoing problems with access to all areas of mental health care. This includes access to respite and crisis care, access to counselling and therapy, assignment to care managers and access to in-patient care. This situation leads to unnecessary deterioration in health, added strain on carers, and potential risk to the public. While I appreciate that this is an issue of resources rather than legal obligations, I believe that a clear legally stated right to appropriate and timely treatment for all individuals with a mental health problem would assist in remedying this position. Such a statement would provide a comprehensible and equitable framework for both professionals and users. It would prevent inequalities of treatment between areas, and by being legally enforceable would assist regional and national health bodies in making appropriate health decisions. 2. The lack of a right to aftercare. Again within west Berkshire patients are being discharged from hospital without adequate aftercare. This results all too frequently in relapse and often rapid readmission. A clear statement that anyone, whether they are detained or voluntary has a right to an appropriate package of aftercare would prevent this situation arising. It would assist carers, professionals, and service users in challenging the situation where such aftercare was not delivered. Joint Committee on the Draft Mental Bill: Evidence Ev 983

3. The lack of a right to advocacy. When people are going through a period of severe mental distress they are often unable to clearly articulate their wishes. In these situations the presence of somebody who knows them and understands their wishes while they are well is essential. If this Bill is to be workable then a right to have an advocate of your choice present at all stages is essential. This must be regardless of whether they are a relative or other informal carer, a paid carer, or a trained advocate. 4. Compulsion in the community. I am aware that this measure has been widely criticised by both professionals and service users as unworkable, and I agree with this opinion. If it is to be eVective in practice it will require both considerable extra resources, and gross infringements of personal liberties. It will also break the bond of trust between service users and professionals, preventing people disclosing relevant information if they believe it will result in them either being placed under a community treatment order, or being subject to compulsion through an order already in place. Like most service users I am aware that there are a minority of people who ﬁnd it diYcult to comply with drug or other treatment regimes. However, there are more eVective means of assisting these individuals, in particular by increasing resources to assertive outreach programmes, which work in cooperation with clients rather than through compulsion. October 2004

Memorandum from Dr Bob Johnson (DMH 261)

Preamble

1. Psychiatry is currently in crisis. Having myself been trained in the early 1960s, when humane enlightened and above all optimistic teachers were available to me, I have seen my specialty lurch disastrously to the Right. Two books testify to this. The first is the DSM-IV (the Diagnostic and Statistical Manual of Mental Disorders 4th Edn. 1994), which derives from a Right Wing clique which took over the revision of the standard psychiatric text in 1980. The second is “Mad in America” by a Massachusetts journalist cataloguing with care and all too abundant evidence the disastrous indeed tragic black hole into which current psychiatric trends have landed us. 2. If the Committee wishes to do more than scrape the surface of this vital topic, then it must, in my view, give due consideration to these two books—reading at the very least their prefaces. So vital do I consider “Mad in America” to be, in portraying a realistic and devastating indictment of our current practices that I would happily supply every member of the Committee with a copy, if so permitted. The book’s full details are—“Mad in America: Bad Science, Bad Medicine, and the Enduring Mistreatment of the Mentally Ill” by Robert Whitaker, Perseus, ISBN 0738203858 www.madinamerica.com 3. The DSM-IV is more readily available since every psychiatric patient must now receive a codification from it. Yet psychiatry based on the current DSM-IV is grievously flawed. Support for this view comes from an unimpeachable source—the preamble and introduction of the DSM-IV itself. There we can read, on page xxiii, that “. . . a diagnosis”, according to the DSM-IV, “does not carry any necessary implications regarding the causes of the individual’s mental disorder.” [My emphasis]. No other branch of medicine would tolerate such a cavalier disregard of causative factors. Without insight into causes, successful therapy is purblind— to revel in their absence in this way, borders on negligence. In strictly medical terms, the DSM-IV is indefensible 4. The human mind is the most fascinating item in the entire cosmos, yet the DSM-IV tries to bury it under a “mind/body dualism” which it dismisses as “a reductionistic anachronism”. [page xxi] Such muddled thinking would fail even an elementary philosophy exam. It certainly fails any practical exposure to psychiatric problems. No psychiatrist who listens attentively could arbitrarily exclude “death of a loved one”, as a potent cause of serious mental disease. The DSM-IV does just that on page xxi. 5. The Committee may or may not be disposed to take the review of these matters to this depth. But I would assure the Committee that no great medical expertise is required to appreciate the issues involved— indeed the absence of a training in psychiatry could prove a positive benefit. In my own book, “Emotional Health”, for instance, I criticise psychiatry based on the DSM-IV, for anathematising stress, emotions, the mind, and intent, thereby exposing us all to being mindless unfeeling robots. It’s not hardware that fails, but software. 6. My Background—I worked for five years as Consultant Psychiatrist in Parkhurst Prison in the Special Unit for those prisoners too violent for Broadmoor—today’s DSPDs. I testified before the Fallon Inquiry at Ashworth Hospital being perhaps the only consultant with a clear workable definition of psychopathy, and solid experience of curing it—viz—while in Parkhurst Prison, no alarm bells were rung in C-Wing for three years, a unique record worldwide for any maximum security wing. Since 2000, I have prepared numerous Tribunal reports for long-term patients in all three Maximum Security hospitals, and am seriously dismayed by what I observe to occur therein. Ev 984 Joint Committee on the Draft Mental Bill: Evidence

The Committee’s Questions

7. (1) unambiguous basic principles? appropriate and desirable? 1.1 Currently established psychiatric principles may appear self-consistent and are often robustly and too successfully defended, as I have found. But, like all Right Wing strategies, the DSM-IV is based on a single slender fact, whose simplicity may at ﬁrst appeal, but which inevitably unravels when exposed to complex human realities. The DSM-IV explicitly excludes human values, human aspirations, enlightened philosophies and above all, hope. It perpetrates a fraud on our psychiatric clientele. It is not too far fetched to call the result “voodoo psychiatry”. After all, the benign and widely held notion that psychiatrists concern themselves with the childhood origins of mental disease is explicitly condemned and proscribed.

8. (2) definitions; conditions for treatment; provisions for Community assessment and treatment? 8.1 The prolific definitions provided in the DSM-IV are in practice, neither appropriate nor unambiguous. The string of symptoms which follows each “diagnosis” is ill-defined, impractical in application, and with the exception of Post Traumatic Stress Disorder (PTSD), more confusing than helpful. Compulsion in therapy (which occurs in no other branch of medicine) touches on a serious contradiction in terms, which has been little thought through. 8.2 The defining question here is why schizophrenics recover faster in non-Western cultures. This is the challenge which prompted Whitaker to write his book—see his preface. Every psychiatrist should read this preface every year, and put in writing what they are going to do about it—everyone else should check that they do so. Whitaker cites The Retreat in York (1796-1850), as providing more cures for psychoses than ever since. The Soteria Project by Loren Mosher confirms this.

9. (3) balance between human rights of the mentally ill, and safety? 9.1 This is always a diYcult balance to achieve. It is posed every day in Category A prisons. But there is false comfort to be had in supposing that the more draconian, the greater security. My work in Parkhurst Prison taught me that real security is “dynamic security” ie security achieved by persuasion followed by consent. I would happily impose coercion when faced with, say, a mad axe man—but in the long term, self- confidence, self-esteem and emotional maturity are the only civilised safeguards available to a civilised society. And these must be inculcated in the oVender from day one. My experience indicates that wisely and robustly applied, they suYce. 9.2 The Draft Bill errs too heavily on compulsion, in my clear view, and not nearly enough on tailoring treatment to the individual such that they consent to it. 9.3 Further, the Mental Health Review Tribunals I have participated in and observed first hand, often appear ill-equipped to support a judicious balance. Too many Tribunals set out to find reasons to err on the cautious side and to not-release. Continuity of disease, as per Wintwerp, has too often been glossed over to further that end. Legal precedents have been cited to me to the eVect that where RMO and independent psychiatrist disagree, the Tribunal should favour the former—hardly encouraging of confidence in the system—since this is the only circumstance in which Tribunals matter at all. 9.4 A particular case which might be of interest to the Committee is that of a 67 year old man with heart disease, who in a psychotic episode 34 years ago killed a girl. He improved with treatment in the early 1980s, such that a Tribunal in 1983 recommended his release. This was then vetoed by the Home OYce, a practice dubious both clinically and judicially. Though no violence has occurred in the last 21 years, and despite his recent Tribunal agreeing that he was not currently “abnormally aggressive nor seriously irresponsible”, it was illogically concluded that he should remain in hospital to maintain this status quo—exactly the reverse, as I understand it, of the Wintwerp ruling.

10. (4) proposals necessary; workable, eYcient, and clear? omissions? 10.1 Edward Fitzgerald QC during a lecture he gave to our small charity’s annual conference asserted that this Bill was unnecessary. I would happily email the relevant pages. He assured us that the Courts had abundant adequate legislation to cope with current problems. And when doctors usurp judicial functions, civilised society is compromised—something we are already perilously close to at times. 10.2 Judging by what I have seen of the current Mental Health Act in operation, even the present arrangements have serious, unaddressed ﬂaws. Moreover, the new one is likely to impose catastrophic demands on currently available expertise to man the Tribunals, a problem even more acute in Scotland, as I gather. 10.3 The chief omission of course, is the emphasis on a more humane approach, predominant in the 1960s, as described above. 10.4 No one reading Whitaker as above, could then support compulsory treatment with today’s psychoactive drugs—the side-eVects are simply too dangerous. Joint Committee on the Draft Mental Bill: Evidence Ev 985

11. (5) Is the institutional framework appropriate and suYcient for enforcement? 11.1 At a recent lecture, a prominent professor from Broadmoor assured us that though he would be happy to spend his proportion of the £270 million allocated to DSPD units, he would be content to see the beds soon blocked, which he regarded as the end of the matter. He assured us that he had no notion of how to treat severe Personality Disorders. He was unaware of my work in Parkhurst Prison.

12. (6) safeguards? for example children? against misuse of ECT and psychosurgery? 12.1 Having prepared medico legal reports on a dozen individuals seriously damaged by ECT (I have a 14 minute video conﬁrming this), I have no conﬁdence that this seriously invasive treatment will be adequately monitored. I would refer the Committee to the Texan Consent Form for ECT. I would also be happy to supply a copy of an Informed Consent Form which I drew up myself based on a more realistic assessment of the issues involved.

13. (7) and (8) no comment 14. (9) Is the Draft Mental Health Bill in full compliance with the Human Rights Act?

14.1 After almost half a century of clinical medicine, including a BA degree in psychology at Cambridge, there is no question in my mind that Human Rights are therapeutic. In other words, by assuring individuals that they matter, that their views will be taken into account, that in eVect they themselves “count” as individual citizens with rights and responsibilities—this approach increases self-esteem, self-confidence, and thereby augments mental stability. 14.2 The current draconian restrictions on some of my patients approach those of Kafka or the Gulag. If I might include one I am supporting at the moment, whose Tribunal comes up in November. He was convicted of Aggravated Bodily Harm after hitting a man coming drunk out of a pub. Sentenced to six years, he was due for release on 1 August 2004. On 30 July he was bundled oV to Rampton, where his letters are opened and read, where his detention is now indefinite, and he has to cope with the burden of undue Home OYce restrictions (s37). I have no confidence that his Tribunal will amend this situation. This is one of several in my current work load.

15. (10) human and ﬁnancial implications? eVect on professionals? Analysis of eVects, and costs? 15.1 I could wax voluble on these fascinating questions, but have already exceeded my wordage. If I can assist further, I should be happy to do so—the oVer with respect to Whitaker’s book still stands. Dr Bob Johnson Consultant Psychiatrist October 2004

Memorandum from A Priestley (DMH 262) I am writing to endorse the reservations and objections MIND has made about the proposed new Mental Health legislation. I am concerned that the new Mental Health Bill will: (1) Give more powers for patients to be compulsorily given drugs and other treatment against their wishes. In many cases this will lead to the wrong drugs being prescribed to the wrong person. I was lucky enough to have a sympathetic GP who was prepared to listen to my own dilemma and who prescribed me drugs that we mutually thought would be helpful. Too many GPS don’t have a clue about how serious mental health disorder can be and throw packets of vallium or librium, willy nilly, at the problem. (2) ECT should be stopped except in extreme cases where all other treatment has failed. (3) More time and money should be invested in after care. Free housing, free nursing and counselling etc. (4) The Government should make the public more aware of the numbers suVering from a whole range of mental illness, help people to recognise the syptoms and to make them aware of the help that is available. (5) I endorse all the other propopsed amendments to the proposed new Mental Health Bill that MIND has called for. October 2004 Ev 986 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Savitri Hensman (DMH 263) 1. Summary 1.1 The draft Mental Health Bill contains some useful provisions, including the right to advocacy. However, certain aspects are not in line with the wider policy framework for improving health and promoting equality and social inclusion. This submission proposes a more precise deﬁnition of mental disorder, and a right to treatment for people who are mentally ill and seeking care, while recognising that there may be occasions when compulsion is necessary. In addition it is suggested that there should be a tightening of the conditions in which statutory bodies and health professionals can override the wishes of people with mental health problems, their families and friends; and that a prospective patient’s language, cultural, social and spiritual needs should be taken into account during assessment and treatment.

2. Background and Principles 2.1 I have worked in the ﬁeld of health and social care for 10 years, promoting partnership between the statutory sector and voluntary organisations, service users and the public. This has included coordinating a local forum led by black and minority groups focusing on racial equality and cultural diversity in health and community care, serving as a co-optee on a social services committee and helping to develop multi- sectoral training across NHS, social services and voluntary sector staV. At present I am head of research and policy in an organisation supporting over a dozen patient and public involvement forums. I have been extensively involved in community and voluntary organisations in an unpaid capacity, including at one time chairing a London-wide counselling project. And for 16 years I have been a carer, supporting more than one family member in living mainly independently in the community despite having severe mental health problems. 2.2 I welcome the government’s intention to modernise mental health law. The Richardson Committee’s principles of non-discrimination on grounds of mental ill health, informal care, the provision of the least restrictive alternative compatible with the delivery of safe and eVective care, consensual care, reciprocity, respect for diversity and the recognition of the role of carers, along with human rights and equality legislation and the National Service Framework for Mental Health, have helped to create a setting for a mental health act for the twenty-ﬁrst century. In addition the NHS Plan and NHS Improvement Plan have promoted the ideal of eVective, eYcient, patient-centred and joined-up services oVering choice, and schemes such as expert patients have encouraged people with long-term conditions to take greater control over their own health. Unfortunately, while some aspects of the Mental Health Bill are positive, the current wording is not fully compatible with these principles.

3. Definition 3.1 The deﬁnition in the Bill of mental disorder as an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain (see Section 2) is too broad. A stroke or brain lesion, for instance, can impair various functions of the brain linked with the senses and physical coordination without disturbing mental clarity. 3.2 Mental disorder could be deﬁned as in New Zealand—an abnormal state of mind shown by delusions or disorders of mood, perception, volition or cognition. It would be useful to specify that a person’s political, religious, or cultural beliefs, or sexual preferences, or criminal or delinquent behaviour, or substance abuse, or intellectual disability would not, in themselves, constitute mental disorder: though it should also be made clear that nobody with a mental disorder should be refused treatment solely on any of the above grounds.

4. Compulsion and Access 4.1 I agree with those who have drafted the Bill that mental illness can sometimes aVect people’s judgement to the extent that they behave in ways that endanger themselves and others. In such circumstances, compulsory treatment may be the least undesirable option. 4.2 However, compulsion should be avoided when unnecessary, and the patient encouraged to assist in decision-making: — to conform with human rights and equal opportunities principles; — because greater health improvement and beneﬁt to society can be achieved when the patient is an active partner; — because formal proceedings can use up money and staV time which could better be spent in treating patients; — because the threat or use of force is often distressing and harmful to health, can undermine trust, use up valuable police time which could better be spent on combating crime and exacerbate divisions, especially if ethnic minorities are particularly aVected; — because there is strong evidence that some drugs can have a serious adverse eVect on physical health, which can lead to ethical and potential legal dilemmas in compelling patients to take them. Joint Committee on the Draft Mental Bill: Evidence Ev 987

4.3 Section 1 should state that patients’ views (where known) including advance directives will always be considered in making decisions about their treatment, though sometimes their preferences will be outweighed by other factors. 4.4 At present, people not fluent in English or with physical or learning disabilities sometimes find it diYcult to communicate clearly with professionals let alone to get appropriate care. The Bill should state that, where practicable, interpreting will be arranged during assessments and Tribunal hearings, and that the cultural, social, spiritual and language needs of patients and prospective patients will be taken into account throughout. 4.5 If NHS services are truly to be centred on patient need rather than what is convenient for services, the Bill should include the right of a person to be assessed if he or she requests this and, if found to have a mental disorder which significantly aVects quality of life, treated. Such treatment could usually be provided in a community setting though hospital or other residential care will sometimes be required. If the right to assessment and treatment is not included, the Bill appears unbalanced, and may place people seeking voluntary treatment at a disadvantage. 4.6 With regard to approved mental health professionals (section 3 etc.) there should be safeguards to ensure that they are truly independent of the medical practitioners involved with them in making decisions about compulsion, and can confidently challenge views which they regard as wrong. 4.7 If the clinical supervisor (section 24), patient (with the support of the nominated person) and carer agree, provided the patient has not committed any oVence, it should be made possible, with a minimum of bureaucracy and expense, for the patient to: — be transferred to another hospital closer to his or her home or with which he or she already has a connection; — have his or her medication changed; — be discharged from hospital. Tribunals should be used primarily where there is disagreement (see part 2 chapter 5 etc.). 4.8 The circumstances in which a patient or other relevant person may be denied information about treatment should be more clearly defined (see section 284). 4.9 The intention of those drafting the Bill in including the imposition of treatment on a patient living in the community and conditions determining what he or she must or must not do (sections 39, 56, 80 etc.) is understandable. However I believe such measures are likely to prove counter-productive: — friction between clinical supervisors and patients may be increased; — trust between patients and care providers operating in the community and indeed carers may be eroded, and these may be placed in an awkward position if the information they provide could trigger the use of force; — breaches may be minor and understandable, and could be better dealt with by negotiation, but patients may be deterred from talking problems through with professionals; — breaches might not result in any harm to the patient’s health, whereas use of force might, and in addition could exacerbate stigma and distress others living at the same residence, who may include children; — a clinical supervisor might act on information incorrectly suggesting that a patient had failed to comply, with serious consequences. The resources required for determining and monitoring compliance with such conditions would be better used in proving community support, which would pick up health lapses. 4.10 Anyone taking a mentally ill person into custody (section 81 etc.) should be suitably trained in mental health issues, not simply a person authorised in writing by hospital managers. 4.11 The consultation of carers (section 12) can be valuable, and reduce the risk of expensive mistakes. For example, I recently witnessed an instance when mental health professionals had made arrangements to detain a former in-patient. They had been to court, even made preparations to break down the door if she refused to let them in. The day before, they contacted the carers, who were concerned that such a move would set back the patient’s recovery. They arranged for a member of the mental health team to meet the patient and talk with her, after which he realised that detaining her was unnecessary, and instead arranged for more community support. 4.12 A carer should always be consulted if practicable about any aspects of the care plan which require his or her co-operation. It is not only unfair to carers but also unsafe for patients if assumptions are made about capacity and willingness to care which might not be justified. 4.13 Furthermore, while it is right that anyone who ill-treats or wilfully neglects a mentally disordered person in his or her care by any legal or moral obligation or otherwise should be guilty of an oVence (section 280), it should be made clear that this does not apply to an unpaid carer who notifies the authorities that he or she is unable or unwilling to provide care on a temporary or permanent basis. Otherwise this is a deterrent to becoming a carer. Ev 988 Joint Committee on the Draft Mental Bill: Evidence

4.14 While there might be circumstances in which a mental health professional might justiﬁably enter and inspect a private dwelling if he or she has reasonable grounds to believe that someone suVering from mental disorder is living there and not receiving proper care (section 226), there should be safeguards to protect the privacy and right to family life of people with mental health problems and those who live with them. There should also be strict conditions governing the right of persons authorised by the Commission of Healthcare Audit and Inspection to enter and inspect private dwellings where patients live or have lived and remove documents or other items (sections 271, 272). Obstruction (section 278) is too broadly deﬁned. 4.15 Likewise the penalty for assisting a patient to absent himself or herself without leave (section 281) are too heavy, and making this an oVence (except perhaps where the patient has been remanded for or convicted of a serious oVence) could place family members and friends in a diYcult situation. For instance, if a patient prone to self-harm turns up on his sister’s doorstep deeply distressed at having been bullied in hospital and refusing to return, she should not have to choose between betraying his trust and risking imprisonment.

5. Conclusion 5.1 Some changes are needed to the Draft Mental Health Bill if it is truly to promote eYcient and eVective care and social inclusion. While compulsion may sometimes be necessary to protect people with mental health problems and others, more provision should be made to ensure patient-centred services in which participation is encouraged. October 2004

Memorandum from Barnet Voice for Mental Health (DMH 264) I am writing in response for requests for comments on the above Bill. As a user-led, user-managed and user-staVed organisation we have responded to the two previous consultations on the proposed changes in legislation in March 2000 and September 2002. Barnet Voice held an open Forum meeting on 27 October about the Bill. This was attended by 40 people. Most were service users, with two carers and a handful of professionals also present. The response reﬂects the views of the Forum together with other relevant concerns expressed at our earlier meetings on the subject, together with other views obtained in the past two weeks. Unfortunately, due to time constraints, this response does not deal in detail with all aspects of the Draft Bill. The statements that are bulleted are direct quotations or concerns raised from those attending the Forum.

1. A Right to Treatment The Forum meeting was very vocal in its view that much compulsory treatment could be avoided if the right help and support were provided when it was ﬁrst asked for. It is not good enough for the Government to impose the likelihood of more compulsory treatment without ensuring that services are in place that would reduce that compulsion. Listed are some of the comments on this: — When you go for help why do they turn you away so that life becomes so unbearable that it makes you think of suicide? — Why, when you are discharged from a psychiatric day unit, don’t you get follow-up? — When I asked for treatment the CPN sent me home to “take the medication”. In the state I was in I was unable to do so. It took six weeks for the situation to right itself. — Two to three years ago I was trying to get hold of the Crisis Team but was seen by my GP as someone considered to be stable. He asked what the problem was and had I not just come out of hospital? I had to wait for 12 hours to see the Crisis Team, during which time things became progressively worse. — I am concerned that if you are able to voice your needs then you are deemed not to need care. — When I asked for a CPN I was told “no” because it will make you worse. — If you ask for help you are given medication and left on it for a long time. This can often be the wrong medication but it is hard for the individual to make a rational decision about this. I have concerns that with the new Bill there will be less opportunity to challenge medication choices. — Already the threat of a section is used if you don’t conform but they don’t give us what we need in the way of help like psychotherapy. They don’t look after us any more. — Carer was of the view that it had been a great battle and taken a long, long time to get care for her son. Things got so bad that if a section had not ﬁnally been placed on him (with no previous care given) she feared that she might have been killed. Joint Committee on the Draft Mental Bill: Evidence Ev 989

— If someone in the community is creating a disturbance there is always the case for medication appropriately used, but treatment must include complementary and other therapies. Medication is the first port of call and nothing else is oVered. For instance, the NICE Guidelines on Schizophrenia call for CBT—how many get it? — Concern that money, which is supposedly allocated by the Government for specific mental health services (eg CRHTTs), does not always find its way into those services in some areas, as the money is not ring-fenced. — A person spoke of a friend who self-harmed but despite requests was never allowed to go into hospital.

2. Compulsion Should be the Last Resort 2.1 There were concerns that as the definition of “mental disorder” is so wide there it is likely that more people will be either compulsorily detained in hospital or the community. — For instance, with regard to personality disorders there are three clusters, each with their own definition and specific need for specialist treatment. Will professionals look at the specific clusters and give the required treatment, or just treat them all the same? It was noted this currently happens to people with manic depression and other diagnoses. — The criteria of Borderline Personality Disorder was queried. The Government plan is in eVect forcing treatment on people even though they may not get better. 2.2 The results of compulsory treatment are not always recognised. When training professionals we often use an exercise where we get them to think of their feelings when a decision was made for them. Amongst others, invariably the following feelings are expressed: — Anger. — Feeling devalued. — Fearful. — Ashamed. The long-term consequences of compulsory treatment are many. Below are just a few: — lack of confidence and self-worth; — a feeling of needing to conform so as not to “upset anyone” and risk being sectioned again; — shame and the fear of stigma if the fact of “sectioning” is known to people such as friends or employers; — ongoing anger or fear regarding professionals, which prevents help being sought even when it is needed; — disruption of relationships. 2.3 The eVects of compulsory treatment leave and indelible mark. Below are some comments from the Forum: — You are not told how long you are going to be in hospital. It’s as if they are taking away the key. — Although my sister was allergic to Haleperidol I was given it whilst in hospital and had to be taken to A&E because I couldn’t breathe. I was finally stimulated to breathe by a friend, who was a doctor, who had to slap me. — The first time I saw this black man in hospital he was OK. Two to three days later I saw him lying on the floor with a cricked neck. He was left there by the staV for three days, day and night—he hanged himself. — I missed two months of my life. I wasn’t given the option to make decisions for myself. When depressed and quiet, and therefore not making a fuss, I am deemed to be acceptable. When happy I am told I am in denial. — Being on the wards is not always a safe place. I was unjustly assaulted by staV. — Most dangerous thing on a psychiatric ward is the psychiatrist. — There is the issue of individual consultants making decisions about medication or denying treatment with little chance of getting a second opinion. I wanted a second opinion whilst on a section but this wasn’t allowed. — People have legal rights but these don’t work. I felt as if I were treated as a substandard individual. There were at least six cases when the law was broken regarding rights, eg not being allowed to go oV the ward (with staV member) after being in hospital for three days. This caused anger and deterioration in my condition. I had felt fine until I got into hospital. I now felt like an innocent person caged in a hospital. — I did not want a particular medication because of the required blood tests. With this Bill will it mean that there can be compulsion to take medication that you do not want? Ev 990 Joint Committee on the Draft Mental Bill: Evidence

— It might be important for there to be compulsory treatment in order to keep a person safe. I have concerns that “opening the door” (with regard to the criteria of mental disorder) will lead to social control and that compulsory treatment will be used inappropriately. — If a person goes into hospital voluntarily and then their health deteriorates in that environment, and also because of the medication, would they then be subject to compulsory powers? 2.4 As the use of compulsory treatment has such long-term detrimental eVects on those who have been subjected to it, in any new legislation much thought needs to be given as to whether this will become more likely. The Crisis Resolution and Home Treatment Team in Barnet (CRHTT) is based on the philosophy of working with a person to ensure that the crisis is averted and hospital admission is not necessary. If receiving treatment from the CRHTT were part of the compulsory treatment plan for someone in the community, the whole basis of the relationship between the individual and the team would be destroyed. Their whole aim, to prevent compulsory admission and suicides would be undermined. 2.5 Currently voluntary patients in psychiatric units comply with medication or staying in hospital because they know that if they do not they will be subject to a section. This culture of fear will increase and will do nothing to improve either the mental health of people or their readiness to engage with services. 2.6 The whole question of capacity to make decisions regarding one’s own needs or the way you want to live your life will be undermined by the proposed legislation. The draft Bill states that the treatment must be necessary for the protection of the patient from suicide, serious self-harm or serious neglect of their health or safety, or for the protection of others. As, has happened, a CPN might not inform a patient about the side eVects of medication because of the concern that they will not take it if they knew. This demonstrates a culture, often well-meaning, over protection. 2.7 Professionals make judgements as to the “capacity” of their patients to make choices for themselves. As an organisation we hold very strongly to the view that people have the right to make their own mistakes. The right of people to determine and negotiate their own mental health problems could be seriously undermined if the criteria for capacity were too broad. 2.8 Some people at our previous meetings did not feel that the recovery of their mental health could be brought about by medication. There is concern that if their view is contrary to the clinical team in this matter that this would be overridden by means of a compulsory treatment order.

3. Dangerousness and Compulsion 3.1 There were underlying concerns about what was underpinning the Draft Bill. The view was expressed that the Government is really trying to protect their reputation for those who call for people to be locked up—“trying to keep the voters happy”. 3.2 This new Bill will do nothing to reduce stigma, in fact it will probably increase it by making the public think that many people in the community with mental health problems should be subject to compulsory powers. Knowing that anyone can request an examination for an assessment under the new legislation will introduce a culture of social control. People with mental health problems will also be living in fear that, if they display any behaviour not acceptable by others, this might lead to someone requesting an examination. Paranoia will have a basis in reality. — Research indicates that although homicides have gone up ﬁgures remain the same for people with mental health problems killing others (two a year). Therefore the proportion of homicides by mentally ill people has decreased. — Due to bad media portrayal people in the community do not understand about “sections”. — People will be locked up before they have committed a crime. — The thought that anyone can to ask for an examination for an assessment would be “horrendous”. For example, in the case of a couple undergoing divorce, where one person has a mental health problem, the other party might put forward “reasonable” grounds. This will probably result in a lot of court cases before the deﬁnition of “reasonable” is established. In the meantime a lot of distress will have been caused. — The legislation is about potential dangerousness. This should not be in a Mental Health Bill—it should be with the Home OYce. It leads the public to believe that mental health problems equal dangerousness. The Bill forms a link between those in prison and those in hospital. Thoughts about people in a psychiatric hospital are similar to those about people in prison. A confusion in the public’s mind about whether people are “mad or bad”. — 3,000 people are killed on the roads every year therefore all bad drivers should be the subject of compulsory “care”. — Concern that human rights will be denied. — A person with Asperges Syndrome queried whether it would be a good idea to carry a card so that if arrested due to bizarre behaviour they would be better treated. Joint Committee on the Draft Mental Bill: Evidence Ev 991

4. Compulsory Treatment in the Community 4.1 The meeting was asked the question: If you had been in hospital for three months and were told that compulsory treatment would now take place in the community what would be your response? The following comments were obtained: — A compulsory treatment order for someone in the community is much quicker under this Bill. — People might be deluded/persuaded into thinking it was better to go home. — It will be a lottery which doctor you are under as to whether you are treated in hospital or in the community. — If a mental health problem is caused by post-traumatic/depression there is not always decent treatment. — Sounds less scary to be in the community, but fear that compulsory treatment would happen more easily because the use of a bed would not be involved. It would be more cost eVective to treat people in the community. — Better to be under compulsion in hospital. — Even though at home they will have control over your life. — If hospital was a safe therapeutic place then I would be able to consider these points in a diVerent way. — Scares me that under community treatment order police can enter home without a warrant. — Because of shortage of beds compulsion is rarer at present—it will be easier with this Bill. — It is important that there is a safe place to be when a person is unwell. — There will be a problem if you are seen at home on a compulsory order. You need support and back up especially if you have both a psychotic and OCD condition. — One person thought that for the initial examination for an assessment there should be three sets of people: three doctors, three former patients, three lay people to give a fighting chance of a fair assessment. — What will in-patient units become like in the future? Already their therapeutic value is questioned by many people. With more people either not going into hospital because of the eVectiveness of the Crisis Resolution or Home Treatment Teams or because they are being compulsory treated at home, the level of distress on the wards will be considerably higher. — I fear that the new Bill is moving towards more violent people in hospital. — Already staV in inpatient wards aren’t very good in dealing with people who manifest their distress in noisy ways, with the use of restraining techniques or rapid tranquillisation being the usual answer. This is likely to increase if more people are acting in this way. Will there be more staV training on how to diVuse situations? — For someone who actually feels they want to be in a safe place they will potentially become very scary places, as they will for those who have to stay there compulsorily. There are not enough alternatives to hospital admission (eg crisis houses). 4.2 The Government need to listen to the concerns of both service users and professionals when thinking of introducing more widespread compulsion in the community. One of our local psychiatrists was approached by the Royal College of Psychiatrists who were trying to find any psychiatrists who are in favour of the use of these more widespread compulsory powers. 4.3 Although one of the four relevant conditions for treatment is that treatment must be actually available for the individual patient which is appropriate to their case before someone can be subject to compulsory powers there is real concern that the use of medication will be seen as “appropriate” treatment. People are generally very concerned about the side eVects of medication and feel that prescribing patterns may increase to ensure that people are contained within the community as an alternative to hospital admission. There is a fear that as injections are the easiest way to administer medication (and it is more easily monitored) there would be an increase in this method. In addition, the more expensive new anti-psychotics with fewer side eVects are not injectable. There was a concern that they would not be used as often for this reason. 4.4 Taken with the fact that the definition of mental disorder now emphasises the presence of psychological dysfunction, that is the eVect rather than the underlying cause, many “eVects” can be dampened by medication. The real treatment that can deal with the underlying cause ie psychological interventions, are not readily available for most people. Many more people will now be subject to the “chemical cosh”. 4.5 If the purpose of compulsory treatment orders was to minimise risk to both the public and individuals, that risk would increase if people felt that they could not talk honestly about their feelings of self-harm for fear of being subjected to compulsory treatment. “Thoughts of killing oneself fluctuate—often on a daily basis.” For many this would be preferable to being over medicated. — It will be taking away the rights of people to choose (re: self-harm) Ev 992 Joint Committee on the Draft Mental Bill: Evidence

— If euthanasia were legal, doctors might discover people were depressed before they killed themselves. 4.6 The discussion then took us to considering that suicide is the logical conclusion to self-harm. People can refuse chemotherapy or blood transfusions. The point was made by one person that the analogy was not the same. Chemotherapy or blood transfusions related to life and death issues and in relation to chemotherapy the person might have only a short time to live anyway. It was questioned whether a person should be stopped committing suicide. However, another view was that if their internal pain, or the quality of life, is so bad it may well seem the logical way out for them, and shouldn’t they have the right to choose. 4.7 It is stated that one of the basic intentions of the Bill is that if risk for some people (who are “revolving door patients”) can be appropriately managed in the community, it will no longer be necessary to detain them in hospital in order to treat them. This will not work unless the community resources are in place and will undoubtedly result, yet again, in the over prescription of medication. As someone said at the meeting, “There is no compulsion to provide loving care”. 4.9 Again, it is for clinical and social care staV to decide whether, in their professional judgement, the conditions for compulsion are met. This is likely to be a very subjective decision. — If you get better the psychiatrists say it’s because of the medication. However, you can come oV medication and still get better; but it is diYcult to ﬁnd a way of coming oV it. Sometimes you are kept on medication for many, many years. Do we have to stay on it until we’re 65 and then be allowed to reduce?

5. Nominated Person 5.1 Although welcoming the choice given to people about who their nominated person will be we are under the impression that this cannot be someone who has a mental health problem themselves. Many people feel very supported by someone who can identify with their own mental distress. The question has therefore been asked whether, if the proposed nominated person has suVered from mental distress in the past but is now OK, can they be nominated?

6. Advocacy 6.1 There were concerns that there will not be enough people, or enough money, to ensure that advocacy is available for all those who will need it. Someone had been told that there would need to be 120 new advocates for the country in addition to current levels. If 50,000 are currently sectioned (who don’t all get mental health advocacy) and advocacy services are stretched, already the resource implications have not been thought through. 6.2 In addition, current advocacy services also provide invaluable support to those who are not under section, thereby empowering people to take control of their lives and have their voice heard in their care and treatment. There is a fear that this aspect of their work will be sidelined. 6.3 There was also concern that maybe legal services will jump on the bandwagon to deal with the number of tribunals. However, this will not be for ethical reasons but merely for financial ones. 6.4 It is understood that the consultation on examination cannot be with a paid carer, or even a volunteer who is working with a voluntary organisation, no matter how well they know, understand and are trusted by the patient. The meeting was in agreement that this is the very time that you need someone to support you through the process. The meeting was unclear about how the new advocacy arrangements will work. — Will it be possible to keep the advocate you have or is a new advocate provided? — It makes a huge diVerence to have an advocate present at the initial examination—the advocate wrote a letter and asked all the necessary questions. — The advocate referred me to a lawyer to sort out the basic problems that put me in hospital. — There could be a period of five days before a decision is made to decide whether the conditions for a compulsory treatment order is met. By that time you would be worn down. 6.5 It is also understood that advocates will have the right to see patients’ notes. This is against all the ethics of both advocacy and the right to confidentiality.

7. Approved Mental Health Professionals 7.1 There was concern that the current role of the ASW would be replaced by an approved mental health professional. It was thought that professionals from a nursing background might not be able to override the opinion of clinicians who may see the best treatment as medication. From experience it was noted that ASWs, coming as they do from a diVerent training background, can add a diVerent perspective to the medical model. — Mental health professionals are in awe of psychiatrists but some social workers do challenge— therefore I feel safer with them. Joint Committee on the Draft Mental Bill: Evidence Ev 993

8. Assessments and Tribunals 8.1 Having to wait ﬁve days to wait for an examination as to whether the conditions for the use of compulsory powers have been met might not seem long to those who have never been in hospital. However, as has been shown above the whole process will, in itself, be likely to cause further deterioration resulting in the unnecessary use of those powers. 8.2 The point made earlier regarding the need of people who have had mental health problems being part of the assessment process is equally relevant when it comes to Tribunals. If the fact that a patient can be discharged from treatment under formal powers relies on the fact that any relevant condition is no longer met it needs to be noted that one of the conditions is the provision of appropriate treatment. As has been demonstrated above many people fear that this appropriate treatment will in fact be medication. The input of people who have had mental health problems themselves will give balance to any tribunal process 8.3 The whole system of Tribunals and appeals will not possibly work unless huge ﬁnancial resources are poured in to them. Many people on Section 2 of the current Act (28 days) do not bother to appeal as experience has shown them that it is unlikely that their appeal will be successful. Now everyone is to have a Tribunal hearing after 28 days. There is also concern that there will be serious delays in the Tribunal system.

9. A Right to Aftercare 9.1 The implications of the proposal that free aftercare will be limited to six weeks caused grave concerns. For many people who have been in hospital under section for a long time the period required to adjust to life on the “outside” is considerably longer than six weeks. 9.2 Currently many people remain in hospital longer than they need because suitable accommodation is not available. Without the ﬁnancial resources to provide for this accommodation many more people are liable to remain in hospital under compulsory powers. — At present residential care is free. Some places in the Community are in excess of £1,000 per week. As with older adults and residential care, people may have to sell their homes to realise assets to pay for the care in the community

10. Electro-convulsive Therapy (ECT) 10.1 Whilst welcoming the fact that ECT cannot be given without consent, where a person has the capacity (except in emergency cases), again the question of who decides on that capacity arises. 10.2 The view has also been expressed at previous meetings that, as ECT is known to cause extensive memory loss for some people, it should never be given. It came to our attention two years ago that it has been banned in Norway, and that California has obtained a temporary ban. This would indicate that there is a growing international concern about the use of this treatment. In addition to memory loss (which can be the loss of signiﬁcant life events, like the birth of a child) it has been reported that other diverse symptoms have occurred eg impaired sense of direction, personality change, aVects to handwriting, increased anxiety and some have committed suicide as a direct result of this treatment. Hundreds of people are taking group court action and this needs to be thought of when any new legislation is being considered. It is known that many psychiatrists are also against its use. 10.3 One person has recounted the gripping fear they experienced each time when lying on the bed waiting for the muscle-relaxant/anaesthetic injection. The person received 18 sessions of the treatment in total. Her husband told her that there were occasional short-lived improvements in her depression. This in no way compensated for the fear of the treatment, the resulting memory loss, and some other side eVects, which have been mentioned above. It was a totally de-humanizing experience. Another person has spoken of losing seven years of their memory. I very much hope that the very heartfelt views expressed above will help convince the Scrutiny Committee that many of the proposals in the Draft Bill are neither welcomed by mental health service users, nor by many professionals. The huge amount of money which will be needed to make the Bill work could be better spent in providing more psychological input in the community and inpatient wards, better housing provision for those needing support in the community, and providing more Community Mental Health Team resources. These could then oVer the help and support requested by people with mental health problems, thus greatly reducing the need for compulsory treatment, with the consequent prescribing of unnecessary medication. In addition, many more resources are already needed to make inpatient treatment both meaningful and therapeutic. If they were, and if community resources were also improved, much of the “revolving door” syndrome would be a thing of the past. October 2004 Ev 994 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from WISH (Women in Secure Hospitals) (DMH 265) Who are WISH WISH is a unique national charity, working with and on behalf of women during, after and at risk of containment in high security hospitals, medium and low secure units and prison psychiatric units. WISH also supports women when leaving the system and during the complex process of re-building a new life in the community. WISH successfully engages with women in these dire circumstances to enable women’s silent voices and invisible experiences of being detained, heard and responded to by Government, service providers and commissioners in both the public and private sectors of provision. WISH have been campaigning successfully over the past 13 years for the recognition that women’s needs when receiving and being detained for care and treatment for their mental distress, demands, out of necessity, to be rooted in a gender sensitive philosophy and service approach with women themselves being at the very heart of the process. Over the past 13 years WISH has developed and published cutting edge research, policy and women centred philosophies of care that have informed and influenced new ways of approaching the delivery of care to women. Demonstrated by the fact that nationally a wide variety of services who provide care and treatment to women in this category have used WISH’s work to improve their services and achieve best practice and oVer a better deal to women. Finally and more importantly the core work of WISH is our ability to maintain and sustain meaningful relationships with women in all the settings where WISH operates based on a relational security model developed by WISH. WISH achieves this through regular contact with women in the system through professional support, visits, women centred advocacy, briefings, newsletters (that women themselves contribute and edit) and sponsored “Feel Good Day” events. Currently there are over 100 women who are members of WISH. Two recent consultations with women in the system (June/July August 2004) demonstrate that women benefit from, continue to want and value WISH’s involvement during and after their journey through the current Mental Health system. As such WISH feel that we can claim to represent a large proportion of this small but significant group of women.

Giving Evidence WISH do not propose to comment upon the Draft Bill paragraph by paragraph as we do not have the legal capabilities to do so but rather place before the committee WISH’s views regarding areas of the bill that raise concerns and areas where we are seeking assurances that women’s rights are not further eroded by proposed changes emanating from the current draft and suggested inclusions to the bill and the code of practise. — WISH are concerned that the new compulsory treatment provision will adversely eVect women, currently women are detained for longer periods in Mental Health secure services than is necessary and any changes to the current act that increases this risk will be detrimental to women in this category. — Current evidence suggests that women are more likely to receive a diagnosis of border line personality disorder than men and as such would under the new “treatability” test proposed in the draft be at greater risk of being detained than under the current act. WISH are seeking assurances that this will not be the case. WISH endorse MIND’s concerns here from women perspective and have real anxieties that women who experience extreme self harm will now be at risk from being detained and would by definition be more afraid of seeking help in the knowledge that this could lead to them being involuntarily detained as would other instances where women might seek help for mental distress. — WISH are concerned that there appears to be under the new Draft Bill proposal a lack of legislative “right” for people to access good quality mental health and social care services with assured standards of care. This lack will and does have an adverse eVect upon women’s ability to receive care and treatment based upon appropriate gender sensitive assessment. Too often in WISH’s experience women have been spiralled up the secure forensic health provision due to lack of early intervention and recognition that women’s life experiences can and do impact upon their mental well-being. (see “Into the Mainstream” Strategy for Women’s Mental Health DOH 2002, and the Implementation Document 2003 that accompanies the strategy) for evidence and confirmation that women’s mental health needs and that includes new Mental Health legislation, should as all current evidence indicates, be delivered within a gender informed framework. Women as observed time and again by WISH to not be receiving appropriate assessment, care and treatment in a mental health system that fails to have any understanding of the gender specific needs as presented by women. — WISH are concerned that the new Bill appears to make it more complex for people leaving the secure system to receive the right support and treatment during these diYcult transitions. six weeks of free care is not enough and in the case of women would put them at great risk of re-call thus enforcing their sense of personal failure. It is imperative that the bill is clear and unambiguous about how after-care is managed. This is imperative for women to feel safe, secure and supported for as long as it takes. Joint Committee on the Draft Mental Bill: Evidence Ev 995

— WISH are pleased to note that Advocacy is to be recognised as essential prerequisite for strengthening the defence of patients Human Rights while being detained. WISH are concerned that at the preliminary stages before an order is made no provision has been made to include the right to an advocate. WISH urge reconsideration of this on the grounds that a woman is most vulnerable at this time and most isolated and needs independent support and advice should she want it. WISH would urge that specialist advocacy for women be promoted as recommended by “Into the Mainstream” Women’s Mental Health Strategy DOH 2002. — WISH are concerned that under the new Bill women’s advanced directives (that are still not fully part of the current mental health forensic service opportunities for women patients) though upheld under Mental Capacity Bill may well be denied under these new proposals, WISH seek assurances that this will not be the case. Finally, in our submission WISH urge that both in the Revised Bill and the Code of Practice mention is made of the need to administer both the acts and the code in the knowledge of gender awareness within mental health services and how currently that awareness is now becoming part of service delivery and therefore should be an intrinsic part of both the new bill and the code. This is an opportunity to place on record how the ways in which women and men experience Mental Health distress is diVerent in Britain today, all the evidence available now points to this and as such should be reﬂected in modern laws and codes that should be at the forefront of leading good practice and upholding the civil and human rights of both women and men rather than replicating a gender neutral law and code that makes invisible the signiﬁcant and important distinctions that are experienced by women and men. October 2004

Memorandum from Professor Anselm Eldergill (DMH 266)

This paper was drafted for the Institute of Mental Health Act Practitioners, in order to assist the Institute with its submissions on the draft Mental Health Bill. Passages which were not incorporated in IMHAP’s submission are marked in red. Each of the following headings refers to a theme on which the Committee has indicated it particularly wishes to receive evidence:

Section 1 Basic Principles Section 2 Deﬁnition of Mental Disorder and Related Deﬁnitions Section 3 Conditions for Compulsion and Detention Section 4 Separation of Powers and the Executive Section 5 Safeguards concerning Forced Medication and ECT Section 6 Safeguards against Abuse Section 7 Safeguards—Abolition of Mental Health Commission Section 8 Omissions Section 9 Compliance with the Human Rights Act Section 10 Balance between Collective and Individual Rights Section 11 Integration with the Mental Capacity Bill Section 12 Practicality of the Proposals Section 13 Concluding Remarks Section 14 Contact Details Appendix A—Principles of Mental Health Legislation Appendix B—The Principles of Legislating for Risk Appendix C—Legislating for Personality Disorder44

Section 1. Theme—Basic Principles The Committee has indicated that it wishes to receive evidence on the following theme: “1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable?” The Government has not set out a set of “unambiguous basic principles”. It has stated that the existing Act does not adequately protect people from “the signiﬁcant risk posed by a minority of patients”, and that it “remains based on treatment in hospital, and too often has allowed severely ill people outside hospital to drift out of contact with services.”

44 Appendices not printed. Ev 996 Joint Committee on the Draft Mental Bill: Evidence

However, the proportion of violence in society attributable to mental illness remains low, and people are better protected from violence of this kind than from most other kinds. Violence has much more to do with education, upbringing, alcohol, drugs and testosterone than mental illness. That is not to say that it is appropriate to detain and treat people in these classes under mental health laws. The principles upon which any new legislation is based should include those set out in Appendices: — A (“Principles of Mental Health Legislation”). — B (“The Principles of Legislating for Risk”). — C (“Legislating for Personality Disorder”).

Section 2. Theme—Definition of Mental Disorder and Related Definitions The Committee has indicated that it wishes to receive evidence on the following theme: “2. Is the definition of mental disorder appropriate and unambiguous?” The definition of “mental disorder” must be understood together with the definitions of “medical treatment” and “hospitals”, and it is necessary to consider their combined eVect. The approach taken in the Bill is essentially a reworking of the consultation document on “dangerous severe personality disorder” that was published by the Home OYce and the Department of Health in July 1999. In this document, the two departments advocated that risk alone, as well as mental disorder and criminal punishment, can justify detention. As a result, consideration was given to detaining such people in “third units”, in essence adult secure accommodation of the kind presently provided for some behaviourally- disturbed children. The “third-unit” option seems to have been abandoned, probably because it was thought that indefinitely detaining non-oVenders in civilian accommodation risks infringing the European Convention on Human Rights. Article 5(1) permits the detention of convicted persons and those of unsound mind in appropriate facilities (prisons and hospitals, respectively), but does not in clear terms permit the detention of citizens who have not oVended merely because there is a risk they will do so in future. Detention in secure non-hospital accommodation rather rules out pleading mental disorder, and a need for treatment, as the justification, and nor can punishment or lawful sentence be pleaded, because the individuals are not serving a term of imprisonment. Probably for these reasons, therefore, the Government seems to have retreated, at least for the present, to the justification that such people are mentally disordered: they require medical treatment in hospital or medical treatment under supervision in the community.

Key Point Further Explanation Meaning of “Mental Disorder” The definition of “mental disorder” is Unlike the present Act, the Bill does not provide that no one too broad. may be dealt with as mentally disordered by reason only of promiscuity, immoral conduct, sexual deviancy or dependence on alcohol or drugs. Thus, one is entitled to assume that the Government intends that it will be lawful to compulsorily treat individuals on the sole ground that their behaviour is of such a kind. See Clause 2(5). Meaning of “Medical Treatment” The definition of “medical treatment”, References in the Bill to “medical treatment” are references to which includes education and work treatment for mental disorder provided under the supervision training, is too broad. of an “approved clinician”. The term “treatment” includes education, work training, and training in social skills. See Clause 2(7). Consequently, a person who is drug-dependent and whose behaviour is anti-social and alarming may be said to have a mental disorder that warrants providing medical treatment, in the form of work training or social skills training, under psychological supervision. Meaning of “A Hospital” The definition of “a hospital” includes What constitutes a hospital is broadly defined: see Clause 2(3). private houses that provide compulsory A private establishment, such as a converted Edwardian education, work training or social skills house, is a hospital if its main purpose is to provide medical training under psychological supervision treatment for mental disorder to persons subject to Part 2 or 3. Joint Committee on the Draft Mental Bill: Evidence Ev 997

Key Point Further Explanation to people with personality, alcohol or Because people with “personality disorders”, substance abuse drug dependency problems. problems or sexual deviancy may now be categorized as having a mental disorder, and education or training under psychological supervision constitutes medical treatment, an establishment oVering such a service is a “hospital”. Provided it is suitably registered, it may detain people who meet the conditions for compulsion. Combined EVect of the New Deﬁnitions The consequence is that social Deﬁning anti-social people as mentally disordered, supervised interventions that most people do not social interventions as medical treatments, and establishments think of as medical treatments, given to which detain such people or provide social services as individuals who most people do not hospitals, enables adult secure accommodation to be dressed regard as mentally disordered, constitute up for European Convention purposes as hospital treatment medical treatments for mental disorder. for persons of unsound mind.

Section 3. Theme—Conditions for Compulsion and Detention The Committee has indicated that it wishes to receive evidence on the following theme: “2. Are the conditions for treatment and care under compulsion suYciently stringent? Are the provisions for assessment and treatment in the community adequate and suYcient?” For obvious reasons, this part of the paper is divided into three parts: — The conditions for short-term compulsion (up to 72 hours). — The conditions for compulsory assessment and treatment under Part 2. — The conditions for compulsory treatment under Part 3 (criminal provisions).

Key Point Further Explanation The New Short-term Powers It is constitutionally inappropriate that a The Bill provides that a doctor may authorise the detention for doctor may detain someone s/he believes up to 72 hours of an informal in-patient who appears to requires assessment in the community. require, not detention in hospital, but assessment in the community. See Schedule 6. It is constitutionally inappropriate that A “person falling within a description described . . . in who is authorised to detain an informal regulations” may likewise detain such a person for up to six patient is not deﬁned and left to hours: See Schedule 6. Who is authorised to use this power will regulations. therefore be determined by the Minister after Parliament has enacted the legislation. It may be that the power will remain reserved to suitably qualiﬁed nurses. However, the Bill does not require this. It is constitutionally inappropriate that a The new “section 4” emergency hospital admission procedure single doctor may authorise a citizen’s is set out in Clause 17. It provides that the patient shall be compulsory admission and detention if admitted to hospital if the doctor—rather than both the approved mental health professional professionals, as at present—determines that the person’s accompanying her/him is not also of the assessment is an urgent necessity, and that awaiting a second opinion that detention is appropriate or medical examination would involve undesirable delay. that there is any urgent necessity for this. Because the professional opinion is This is unsatisfactory. Although the approved mental health evenly divided, the citizen’s detention is professional’s opinion is that the relevant conditions for not then founded on reliable evidence, compulsion are met, it may also be their opinion that which is a Convention requirement. admission and detention are inappropriate. If so, the individual’s detention is then founded on one medical opinion with which the approved professional disagrees, and that possibly from a general practitioner, or a doctor with no previous acquaintance of the patient. Furthermore, even if the approved professional believes that detention is appropriate, s/he may not agree that detention or assessment is urgently necessary, or that it is undesirable to await the second medical examination, for example from a consultant psychiatrist. Ev 998 Joint Committee on the Draft Mental Bill: Evidence

Key Point Further Explanation The conditions that govern when a The new section 135(1) power (Warrant to remove a person to warrant to remove a citizen to a place of a place of safety) is set out in Clause 227. It adopts the existing safety may be issued require amendment, statutory grounds and, because they remain unchanged, so in order to bring them into line with they remain defective. Whether a person can care for practice. themselves, or is being ill-treated or neglected, is not the same issue as whether the only way in which a statutory assessment can be undertaken is by forced entry and removal. Although this is the usual reason for using the power in practice, it continues not to be a ground for issuing the warrant. It is constitutionally inappropriate to use The most controversial short-term provision is the urgent mental health legislation to allow removal power in Clause 228. Necessarily, this power, as with constables to remove citizens who are all of the others, extends to people who are alcohol or drug drug or alcohol dependent from their dependent, or “sexually deviant”. In other words, they too are homes without any need for a warrant. liable to be removed to a place of safety by a constable acting We are concerned that the power may be without a warrant. misused.

The “relevant conditions” for compulsion under Part 2 The relevant conditions for compulsion The statutory criteria for compulsion under the civil provisions must be understood in the context of the in Part 2 are called “the relevant conditions”. See Clause 9. statutory definitions of “mental The conditions for compulsion must be understood in the disorder” and “medical treatment”. context of the very broad definitions of “mental disorder” and “medical treatment” referred to above. The meaning of the word “lawfully” in In most cases, compulsion under Part 2 is only permissible if Clause 9(5) needs to be clarified. “medical treatment cannot lawfully be provided to the patient without him being subject to the provisions of this Part.” The word “lawfully” has been added here, and it is ambiguous. Is it intended to mean that the person cannot be “sectioned” if s/he consents to informal treatment, or does it mean that an incapacitated person cannot be “sectioned” if s/he can be treated instead under the Mental Capacity Bill or the common law doctrine of necessity? This is an important point that needs to be clarified. In contrast to the present Act, the Bill The Bill abolishes the existing “treatability test”. allows for the compulsory treatment of In other words, where a person has a learning disability or people who are not treatable. If they are personality disorder, it will no longer be a condition of longer- not treatable why force treatment on term compulsory treatment that treatment is likely to alleviate them? their condition or prevent its deterioration. The equivalent condition in the draft Bill is that “appropriate medical treatment is available”. This “appropriate” medical treatment may, of course, consist of nothing more than education or work training not provided under any medical supervision. “Appropriate” is a very general word, and the Bill does not say that treatment is only appropriate if it is likely to alleviate the patient’s condition or prevent its deterioration.

Because what constitutes “medical Because “treatment” only constitutes “medical treatment” if it treatment” may be extended by making is “provided under the supervision of an approved clinician”, regulations that extend who is an and who is or may be approved will be determined by the “approved clinician” under the Bill, so Secretary of State after the legislation has been passed, it can the relevant conditions for compulsion be seen that the grounds for compulsion can periodically be may be extended by regulations. varied by secondary legislation. This is unsatisfactory, and may be unlawful. For example, because it enables the conditions for compulsion to be varied periodically by Ministers without going back to Parliament.

The criteria for detention in hospital under Part 2 Provided a citizen meets the relevant The new Clause 15(2) provides that, “If the patient falls within conditions for compulsion, the Bill leaves a description speciﬁed by the appropriate authority in to regulations the issue of whether s/he regulations, each of the examiners must, in carrying out an Joint Committee on the Draft Mental Bill: Evidence Ev 999

Key Point Further Explanation should be liable to be detained in a examination, also determine whether it is appropriate for the hospital. This is constitutionally patient to be detained in a hospital while an assessment of him inappropriate, and is unlikely to comply is carried out.” with the European Convention. It is therefore proposed that Parliament should be silent as to the circumstances in which citizens will be liable to detention, imposing no conditions or safeguards, entrusting instead the “liberty of the subject” to the executive and regulations made by the Minister from time to time.

The Bill provides that a citizen may be Clause 16(5) then provides that provides that a person who detained even though the medical meets the conditions for compulsion may be detained in evidence is evenly divided as to the need hospital if an approved mental health professional and one for detention. Again, we are sure that doctor consider it “appropriate”, notwithstanding that the this does not comply with the European other doctor, who may have special expertise in psychiatry, Convention, which requires that considers it to be inappropriate. Thus, the individual’s detention is founded on reliable evidence. detention is authorised even though the medical opinion is evenly split, with the expert opinion being against detention. The test for detention is as subjective as such tests can be. Not “is the individual’s mental disorder suYciently severe to warrant deprivation of liberty?”, or “is depriving this individual of their liberty justiﬁed by the risk of harm?”, but “does a professional person think it is appropriate to detain them while an assessment is carried out?”

Admission to hospital of non-resident patients

In certain circumstances, the Bill The Bill provides that the consultant of a non-resident patient authorises the detention of a citizen to be may sign a statutory form, upon the completion of which the founded upon a single medical opinion, patient may be conveyed to hospital and detained there: See and this an opinion that may conﬂict Clauses 28, 48 and 51. Thus, although detention at the time of with the determinations previously made the original examination is only possible if an approved mental by three practitioners. Again, having health professional agrees it is appropriate, once that regard to Convention requirements, the examination has been completed the patient’s detention may lawfulness of this must be doubtful. be founded on one medical opinion—an opinion which conﬂicts with, and overturns, the decision of three examiners or a tribunal as to its inappropriateness. Reexamination by three examiners would be preferable.

Imposing conditions on non-resident patients

The conditions which may be imposed on The conditions that may be imposed on a non-resident patient a non-resident patient are not properly include those speciﬁed in Clause 15(4). The use of the word speciﬁed. “include” leaves open, and unclear, what other conditions may lawfully be imposed, and this is unsatisfactory.

The conditions for compulsion under Part 3

The conditions for compulsion under The conditions for imposing longer-term compulsory Part 3 are too lax. It suYces that the treatment under the criminal provisions in Part 3 are much oVender has a mental disorder (eg laxer. It suYces that the individual has a mental disorder of a substance dependency) of a nature that nature or degree that warrants providing medical treatment to warrants providing medical treatment them, and that appropriate medical treatment is available under psychological supervision (eg (Clause 116). social skills training) and that this This is a matter that requires the most careful consideration, “appropriate treatment” is available. given the broad deﬁnitions of mental disorder and medical treatment, and the number of people with personality or substance-dependency problems who appear in court.

Section 4. Theme—Separation of Powers and the Executive

The Committee has indicated that it wishes to receive evidence on the following theme: “7. Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practices right?” Ev 1000 Joint Committee on the Draft Mental Bill: Evidence

Key Point Further Explanation Balance between legislation and regulations The drafting of the Bill is “back-to- The drafting of the Bill is “back-to-front”. It is silent about front” and reserves constitutional issues matters that one would expect to find defined by Parliament, aVecting “the liberty of the subject” to such as the grounds upon which a citizen can be detained, and regulations made by the Secretary of prescriptive about matters that are probably not intended to State. be legally enforceable, eg the numerous requirements to consult and notify people and to keep the status of patients under review. As already noted, who may detain an informal in-patient for up to six hours, when a person is liable to detention for assessment under Part 2, and who is an “approved clinician” (and, therefore, what constitutes medical treatment) are all matters left to regulations. The Bill even states that the Secretary of State may prescribe matters that must be dealt with in tribunal applications (see, eg, Clause 39), a function that surely belongs to the Lord Chancellor. It also enables the Secretary of State to regulate the giving of ECT without the usual certificates (see Theme 5).

Section 5. Theme—Safeguards Concerning Forced Medication and ECT The Committee has indicated that it wishes to receive evidence on the following theme: “Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery?”

Key Point Further Explanation Safeguards Concerning Medication Given Without Consent, etc The Bill abolishes the existing right of Fairness and commonsense dictate that decisions to authorise patients to an independent, binding, treatments that can be given by force should be subject to second-opinion concerning the safeguards. appropriateness of the medication they The Government’s intention appears to be that anti-psychotics are forced to take. This seems contrary and other drugs given for mental disorder constitute “Other both to common-sense and recent court medical treatment”, and will be governed by Clauses 198 decisions, so that it is doubtful whether it to 200. complies with the European Convention. Clauses 199 and 200 provide that the consent of a patient who is liable to assessment or treatment under Part 2 or 3 is not required in respect of any medical treatment of such a kind provided it is described in her/his care plan (or care plan as approved by the tribunal with modiﬁcations). The Expert Panel should be given this Because a tribunal can only modify the medical treatment in a function to perform. care plan with the patient’s consultant’s consent, this amounts to abolishing the right that patients detained for treatment presently have to a binding second-opinion on their drug treatment from an independent consultant psychiatrist appointed by the Mental Health Act Commission. The Bill could, but does not, transfer this protective function to the new Expert Panel.

Administering medication without consent in “hospital settings” The broad deﬁnition of what constitutes The Bill allows for administering medication without consent a hospital leads to a correspondingly in a hospital (Clause 198). Medication may be given without broad list of places where citizens may consent in an NHS clinic, in small “mental nursing homes” be held down and given medication by that are willing to provide this service, and small private force. establishments that constitute “hospitals” for legal purposes.

Administering medication without consent in non-hospital settings If one takes “patient consent” to mean In practice, it is likely that consultants or tribunals will impose that that the patient freely consents to a requirement or condition that the patient takes prescribed treatment then it is inevitable that drug medication, in addition to a requirement that s/he attends Joint Committee on the Draft Mental Bill: Evidence Ev 1001

Key Point Further Explanation treatments will often be given to people hospital as required. It will be pointed out that there will be no in their own homes without their consent. need to require the patient to attend hospital, or to convey After all, if they accept the need for them there, if an injection can be given at home. The patient treatment there is no need for it to be has this option. given under a compulsory order. It may be objected that any medicines given in such circumstances are not given with consent, for if the person truly consented a compulsory treatment order would be unnecessary. Against this, the procedures for patients liable to compulsory treatment under the 1983 Act provide for medicines being given with or without consent. The current statutory position is therefore that a patient may give a valid consent to medication notwithstanding that a refusal may result in administration by force. If this is the case, home treatment and assertive outreach teams will be giving medication within the home to people who would refuse it if free to decide. To the non-lawyer, this amounts to administering medication without the person’s consent outside hospital settings. Safeguards concerning ECT given without consent, etc It will be too easy in practice for The safeguards concerning ECT, though modified, remain consultants to by-pass the protective unsatisfactory. They are set out in Clauses 177 to 190. scheme set out for ECT. Under Clauses 182 to 184, a patient may eVectively be given a whole course of ECT if their consultant certifies at the outset of the course of treatment that the treatment is immediately necessary to alleviate serious suVering. That being so, it is unclear how often consultants will decide that it is necessary to apply to a tribunal for authorisation. Here again, the Secretary of State has reserved to himself the power to regulate the scheme although, by constitutional convention, all significant encroachments on the liberty and security “of the subject” should be determined by Parliament and entrenched in statute law.

Section 6. Theme—Safeguards Against Abuse The Committee has indicated that it wishes to receive evidence on the following theme: “6. Are the safeguards against abuse adequate?” Many safeguards against the poor or inappropriate use of compulsion are abolished. In addition to those already mentioned: The Bill: — fetters the new Mental Health Tribunals; — revokes the powers of a patient’s nearest relative; — provides that the guidance in the Code of Practice may be qualiﬁed; — abolishes the statutory duty to provide long-term after-care; — revokes the discharge powers of NHS bodies and local authorities; — may endanger professional independence; and — does not provide for an independent, standalone, Mental Health Commission.

Key Point Further Explanation Mental Health Tribunals Tribunals should continue to have a The powers of the new tribunals are limited. In particular, they discretionary power to discharge people have no discretion to discharge a person who meets the from compulsion. statutory conditions for compulsion. Here too, practitioners are prohibited from taking into account matters not referred to in the Government’s test. As a result, more patients will be subject to perennial compulsion, because some people with chronic illnesses never satisfy the statutory test for discharge. Ev 1002 Joint Committee on the Draft Mental Bill: Evidence

Key Point Further Explanation That is not to say that they ought not to be discharged once they are functioning at their optimum level, provided that neither they nor anyone else is at signiﬁcant risk.

The Bill should provide that a tribunal Whether a patient who meets the conditions for compulsion is must release a citizen from detention actually released from detention is left entirely to the tribunal’s unless it is satisﬁed that clear grounds discretion, there being no grounds which qualify when which Parliament has determined justify detention is or is not lawful. depriving a citizen of her/his liberty are met.

If citizens who have not committed an A notable feature of the new scheme is that people who have oVence are to be subject to restrictions of not committed an oVence may be placed under restrictions on the kind imposed on dangerous oVenders discharge, transfer and leave of the kind now imposed by the then similar protections should be put in Crown Court on oVenders who pose a risk of serious harm to place. the public.

Where a person applies to be discharged Where a person who has been detained for up to 28 days asks from short-term compulsory assessment, the tribunal to review the grounds for the detention, it can it is undesirable that a tribunal should be extend the period of compulsion by up to six months. empowered not only to refuse their Necessarily, many patients will be wary of challenging their application to be released but also to detention, given the purpose and possible consequences of extend the period of compulsion by up to independent review. This wariness is likely to be reinforced by six months. the fact that their perception of tribunals will change. Instead Because the rules will no doubt provide of being the independent body that can order their release, it that where two applications are will be seen as the authority that imposes long-term outstanding they may be heard together, compulsion. It must still be doubtful that these provisions it is better to leave it to the clinical satisfy Article 5. supervisor to decide whether to apply for a further order.

It is a matter of concern that a tribunal Where a detained Part 2 patient does not meet the relevant may authorise a person’s further conditions for compulsion in the community, the tribunal detention for up to eight weeks when it must in some cases authorise her/his detention for a further has just determined that s/he does not eight weeks. See Clauses 63 and 64. satisfy the relevant conditions for compulsion, let alone detention.

Nearest relatives and nominated persons

A patient’s spouse or partner should A person’s nearest relative has several important powers under retain their existing power to object the present Act, two of which protect patients against the reasonably to admission to hospital. inappropriate use of compulsory powers. Why get rid of the right to lodge a The Bill abolishes the nearest relative as a legal entity, and reasonable objection? with it the family’s right to these protective powers. That person should also retain the The existing powers recognise the importance of the family in existing power to discharge from people’s lives, and the need to limit the circumstances in which detention a patient who is not likely to the state may interfere with individual and family life. A act in a manner dangerous to her/himself balance is achieved between the state’s claim to provide or others. protective compulsory care and the right claimed by families If the patient has no spouse or partner, to care for their loved ones, and to cope with and manage V any relative who is her/his ordinary carer behaviour that mostly a ects only them. (as deﬁned in the Bill) should also have these rights. A scheme of this kind still enables necessary treatment to be given as a non- resident patient. It is questionable whether the A new “nominated person” replaces the nearest relative. “nominated person” is given a However, this person has but one power, which is to apply to suYciently useful role to justify all of the the tribunal for the patient’s discharge. consultation and notiﬁcation requirements. Joint Committee on the Draft Mental Bill: Evidence Ev 1003

Key Point Further Explanation The functions of independent MHA Patients and nominated persons have a right to help under the Advocates include explaining things such Bill’s advocacy provisions. However, their statutory role is as as the requirements imposed on the much concerned with explaining the consultant’s treatment, patient—who are they advocating for— and why the patient must comply with it, as it is with and it is not clear how their independence protecting or promoting the patient’s legal rights. of the detaining authority (who may well Such advocates will be appointed by the NHS—and probably be paying them) is to be guaranteed. often by the detaining trust in practice—and the detaining trust may refuse the advocate access to the particular patient’s records. See Clause 247. The rights given to carers by the Bill are Carers who provide regular and substantial care must also be welcome, but they are carers’ rights, not consulted about some decisions. However, by definition, these patients’ rights. rights are carers’ rights, and of course their advice may be that the patient should remain subject to detention or compulsion. Qualified Code of Practice The Secretary of State has excluded her/ The new Code of Practice may provide that one or more himself from having to comply with good general principles shall not apply in circumstances in which its practice requirements set out in a Code application would be “inappropriate”, or in relation to of Practice, and that it is considered specified decisions or persons. inappropriate in certain circumstances to A new sub-clause now also provides that certain matters are say what is good practice. excluded from the remit of the code. Almost all of these matters relate to functions of the Secretary of State. In other words, the Secretary of State will not himself be subject to the Code of [Good] Practice. See Clause 1 and Schedule 1. Abolition of Section 117 As a general principle, where a person The Government indicated in the White Paper that patients has been so ill as to require long-term would not be charged for services they are compelled to detention and compulsory treatment in a receive. psychiatric unit, it a good thing that the Clauses 53 and 68 deal with free care services before and after after-care authorities should be under a discharge. duty to provide them with such after-care Patients who are required to reside in accommodation that is as is reasonably necessary to minimise their ordinary place of residence may be charged all or part of the risk of relapse and readmission. the cost of that accommodation. It is unfair to require people to pay for treatment they are compelled to receive. Powers of Hospital Managers and Others The managers of a hospital should retain Hospital managers, Health Authorities, NHS trusts, and local the power to discharge a person detained authorities all lose their powers to discharge individuals from by them if they are of the opinion that compulsion. Only the patient’s clinical supervisor or the the statutory conditions which make tribunal may discharge a patient. detention lawful are no longer met. The “independent” MHA advocacy service is not an adequate substitute for the protection presently aVorded to citizens by co-opted independent managers. Professional Independence It is a matter of concern that all three The existing separation of powers, which requires that the examiners may be employed by the applicant is independent of the doctors recommending prospective detaining authority. compulsion, is abolished. Subject to regulations, in future examinations may be conducted by three health service colleagues employed by the detaining body. See Clause 14. Abolition of Mental Health Commission This constitutional issue is so important that it is dealt with under a separate major heading immediately below.

Section 7. Theme—Safeguards—Abolition of Mental Health Commission The Committee has indicated that it wishes to receive evidence on the following theme: “6. Are the safeguards against abuse adequate?” When vulnerable people are subject to detention or compulsory medical treatment, the law has usually sought to protect them by requiring that a specialist, independent, legal body visits them periodically, in order to ensure that these powers are not being abused. Ev 1004 Joint Committee on the Draft Mental Bill: Evidence

Agreed international standards now require governments to provide for this: See, eg, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, adopted by United Nations General Assembly resolution 46/119 of 17 December 1991. Inspections must be suYciently frequent to ensure that the conditions, treatment and care of patients comply with international principles. The Mental Health Act Commission presently performs this essential function. However, the Bill provides for the Mental Health Act Commission’s abolition, and it also abolishes the visiting function. The Government proposes that henceforth the Commission for Healthcare Audit and Inspection (CHAI) will exercise some functions in relation to the new Act: see Clauses 256 to 277 and 289 to 292. However, the allocation of some functions to a large agency like the Healthcare Commission fails to recognise the importance of having an independent specialist inspectorate/agency to ensure that the Act is being properly applied and administered for the beneﬁt of those individuals subject to it.

Functions of CHAI [Healthcare Commission] CHAI has eight main functions under the Bill:

1. To give information and advice But not advice to patients subject to compulsion, Mental Health Tribunals, courts or the Secretary of State (in relation to the exercise of her/his functions).

2. To gather and publish information about the use of the new Act This function is self-explanatory.

3. To keep under review the exercise of relevant functions in relation to relevant patients But there is no duty to visit patients subject to compulsion. This is, however, the way in which the 1983 Act ensures that the MHAC reviews that way in which powers and duties are being exercised in practice. The Home Secretary has excluded from review by CHAI the way in which her/his functions are exercised. The term “relevant patients” excludes persons removed to a place of safety, and informal in-patients who have been detained so that they can be examined, and it may also exclude people who are examined by two doctors and an approved mental health professional under Part 2.

4. To investigate the exercise of relevant functions “in relation to relevant patients if it considers it necessary or expedient to do so” The phrase “in relation to relevant patients” [plural] suggests that this is a general power, not a power to investigate a particular patient’s case. This interpretation is reinforced by the fact that a copy of any report that is published must be made available to the Secretary of State and/or NHS trust, but not to any patient or patients whose cases form part of the investigation. According to the Bill, a patient who is aVected by the investigation may inspect the report at CHAI’s oYces—which is impractical if s/he is detained—or obtain one by post upon payment of a reasonable fee. As before, there is no power to investigate the use of the short-term powers referred to above, and the Home Secretary has excluded the way in he exercises his functions from investigation. This is relevant to decisions concerning restricted patients (leave, transfer, recall to hospital) and those aVected by the transfer from prison to hospital provisions.

5. To investigate the death of a “relevant patient” This discretionary power applies only to “relevant patients”. Regulations may provide that the relevant hospital publishes an action plan.

6. To investigate complaints made by or in respect of relevant patients But only if regulations so provide. Furthermore, such regulations may require a patient who complains, or about whom a complaint is made, to pay a fee speciﬁed in the regulations. The regulations may specify who may make a complaint (and therefore who may not); complaints that need not be considered; and matters excluded from consideration. Joint Committee on the Draft Mental Bill: Evidence Ev 1005

7. To correct any minor defects in statutory documents There is a limited power to correct any document that is found “to be in any minor respect incorrect or defective”.

8. To review decisions to withhold a patient’s correspondence Where requested by the patient. This function is presently performed by the MHAC, and is in similar terms.

CHAI’s Functions Under Other Statutes CHAI is also taking over the work of the Commission for Health Improvement, the Audit Commission’s work on value for money, and the National Care Standards Commission’s remit to inspect private hospitals. It is to be responsible for inspecting NHS hospitals, the Government’s star rating system, the imposition of special measures for failing organisations, the licensing of private hospitals, the conduct of NHS value for money audits, the scrutiny of patient complaints, and now way in which some Mental Health Act functions are performed. Keeping compulsory treatment powers under review thus forms a relatively small part of an extensive remit, the remainder of which is concerned with ensuring that trusts implement the Government’s NHS Plan and modernisation agenda. Here, it may be observed that the attention of public bodies which monitor standards focuses on one of two things:— — Quality standards (setting, monitoring and enforcing quality standards; patient safety; implementing service reforms designed to improve quality). — Legal standards (including the maintenance of ethical standards that may not be legally enforceable). Almost all of the public bodies that the Department of Health has created, and for which it is responsible, exist in order to ensure or improve the quality of care. They have been created, not to ensure compliance with constitutional rights, but to drive forward the Government’s NHS agenda. In 1999–2000, the DoH’s 64 non-departmental and non-provider public bodies employed 14,780 staV and received £715 million in public funding. The Mental Health Act Commission employed 32 of the 14,780 staV, and received just over £3 million (or 0.4%) of this £715 million.

Summary

Getting rid of a small, standalone, semi-independent, specialist Mental Health Commission will do enormous harm. A much better funded specialist Mental Health Commission, with a clearer and more focused remit, would be a better and more positive development, rather than hiving this function oV to a large Healthcare Commission whose remit is far too broad and politically sensitive to do justice to this relatively small and vulnerable group of patients. These patients are citizens who are being detained, and in most cases medicated against their will. A separate Commission is essential, given the number and range of people who will be liable to compulsion; the fact that compulsion will now take place in the community; the position of incapacitated people; and the overall reduction in safeguards for those subject to compulsion. The danger is that the constitutional imperative will be consumed by the larger political imperatives if the MHAC becomes one small division within a super-Commission dedicated to monitoring compliance with the NHS programme. When CHAI budgets are set, “mental health legal money” will compete with NHS performance-targets, and be diverted to the inspection of acute care—in the same way that funds announced for mental health initiatives are now sometimes diverted by Health Authorities to reducing waiting list times. It must also be doubtful whether any merger will achieve its stated aim of reducing NHS bureaucracy. Visiting patients, and ensuring that they are being treated kindly and lawfully, does not increase regulation. It is not a regulatory exercise. CHAI does operate as a regulatory body, since it is a paper-heavy organisation concerned with general management systems. Furthermore, merging “quangos” so that they exercise their functions as divisions of one “super-quango” does not reduce regulation. This requires reducing the range of functions performed. Furthermore, one can only successfully join institutions that perform similar functions. Ev 1006 Joint Committee on the Draft Mental Bill: Evidence

Recommendation There should continue to be an independent, standalone, Mental Health Commission, the functions of which comply with agreed international standards. This Commission should perform the following functions: 1. To review the care and treatment of patients, and to visit them. 2. To review the exercise of the powers and duties in the Mental Health Act and the Human Rights Act 1998 in respect of patients. 3. To exercise protective functions in respect of persons who may be incapable of adequately protecting their persons or their interests. 4. If appropriate, to discharge from detention or compulsion a patient who is being detained or subjected to compulsory assessment or treatment unlawfully (other than patients whose detention, assessment or treatment has been authorised by a tribunal). 5. To inquire into any case where it appears there may be ill-treatment, deficiency in care or treatment, or the improper detention, compulsion or supervision of any person who may be suVering from mental disorder. 6. To advise the Secretary of State and specified agencies on matters relating to the Act. 7. Where appropriate, to undertake formal inquiries, for example after a homicide. 8. To publish an annual report and a code of practice. 9. To investigate and prosecute oVences under Part 11 of the new Act. 10. To review decisions to withhold detained patients’ correspondence or to restrict or interfere with their communication with other persons. 11. To review, and where necessary terminate, solitary confinement (seclusion) and mechanical restraint. In 1982, Parliament amended the last Mental Health Bill by strengthening the role of what was to be the new Mental Health Act Commission. It is to be hoped that it will again perform a similar valuable service. If it does, there is much to be said for placing the Mental Health Commission on the same footing as the Health Service Commissioner: that is, accountable to and funded by Parliament, or (if this is not possible) accountable to and funded by the Department of Constitutional AVairs.

Section 8. Theme—Omissions The Committee has indicated that it wishes to receive evidence on the following theme: “Are there any important omissions in the Bill?”

Key Point Further Explanation Seclusion and Mechanical Restraint The Bill should regulate the use of For reasons that are obvious, the Bill should regulate the use seclusion and mechanical restraint of seclusion (solitary conﬁnement) and mechanical restraint. Rehabilitation provisions The Bill does not include any The Bill does not include any rehabilitation provisions of the rehabilitation provisions kind set out in the Mental Health (Northern Ireland) Order 1986. If a person’s detention or compulsion does not exceed 28 days, s/he should not be required to state in any future employment or insurance application that s/he has been “sectioned”. OVences Who has the duty to investigate and The Bill seems to make no provision. prosecute oVences under the new Act should be made clear.

Section 9. Theme—Compliance with the Human Rights Act The Committee has indicated that it wishes to receive evidence on the following theme: “9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act?”

Key Point Further Explanation Non-compliance Issues Some of the Bill’s provisions in relation These matters have been dealt with above. to detention and compulsory treatment are likely to breach the European Convention. Joint Committee on the Draft Mental Bill: Evidence Ev 1007

Section 10. Theme—Balance Between Collective and Individual Rights

The Committee has indicated that it wishes to receive evidence on the following theme: “3. Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?”

Key Point Further Explanation Whether the Bill Achieves the Right Balance? No. Patients are themselves members of the public, so the law must ensure that members of the public are not unnecessarily detained, and also that they are protected from those who must necessarily be detained. The Bill removes many important protections against abuse that either have no impact on the risk of self-harm or harm to others (such as the abolition of the Mental Health Act Commission and its visiting function, of second-opinions concerning antipsychotic drugs, of clear criteria for detention) or only a minimal impact that is outweighed by the protection aVorded to citizens (such as the abolition of managers’ powers). It is this fact, perhaps more than any other, that has given the impression of callous disregard and caused such opposition to the Department of Health’s proposals. Even if people are inadequately protected from the actions of people who have a mental disorder, this may not be a fault of our laws. It may be due to insuYcient resources, poor government, poor service management, poor risk management, faulty practice, a faulty understanding of the law, or simply part of the human condition. In other words, a limitation that is to a significant extent replicated across a world full of diVerent mental health laws. Implicit in any discussion about the need for new laws is the assumption that modifying their content modifies outcomes. However, the extent to which this is true is unclear. Legislation is actually a relatively ineVective means of modifying behaviour. Although it can provide a framework for managing violence associated with mental disorder, it cannot significantly reduce these risks. That this is so is clear from the many homicide inquiry reports. Had the professional carers foreseen what was about to happen, they already had power under the present law to intervene. That they did not intervene was due, not to any lack of legal powers, but to the fact that they did not foresee what was about to occur. Yet no amount of new legislation can improve foresight.

Section 11. Theme—Integration with the Mental Capacity Bill

The Committee has indicated that it wishes to receive evidence on the following theme: “8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill introduced in the House of Commons on 17 July 2004?”

Key Point Further Explanation Mental Capacity Bill and Common Law Powers The Bill does not refer to the Mental The Draft Bill does not refer to the Mental Capacity Bill Capacity Bill or to common law powers. introduced in the House of Commons on 17 June 2004. That being so, it must be the case that it It is clearly important that considerable attention is given to is not integrated. the extent to which the various powers, duties and rights concerning incapacitated patients set out in the Mental Health Bill, the Mental Capacity Bill and the common law conﬂict. The interplay between the diVerent statutory and common law schemes is a potential mineﬁeld that could take years to resolve, and be very expensive for healthcare providers. Ev 1008 Joint Committee on the Draft Mental Bill: Evidence

Section 12. Theme—Practicality of the Proposals The Committee has indicated that it wishes to receive evidence on the following theme: “4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? 5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill?” 10. What are likely to be the human and ﬁnancial resource implications of the draft bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill?” Having regard to these requirements, and the many demands already made on the time of Mental Health Act administrators, doctors and other health service professionals, many of the provisions may be unworkable.

Key Point Further Explanation Drafting Ambiguities and Errors The Bill would beneﬁt from being The Bill contains many drafting ambiguities and errors, and it redrafted. is certainly highly repetitive and unnecessarily complicated. It would be sensible for the Department of Health to seek further legal advice. Implementation issues If the Bill is viable, it will be necessary to The time allowed should take the following considerations into allow those who must implement it a account: lengthy induction period before it comes — The extension of compulsion to community settings. into force. — The extension of the population liable to compulsion. — The transitional provisions in Schedule 14. — The need for services that today are not involved in compulsory procedures to familiarise themselves with practice in this area, eg psychology departments and substance-dependency services. — The need for hospitals to recruit additional staV in order to comply with the Bill’s extensive consultation and notiﬁcation requirements. — The anticipated increase in the number of tribunal applications (applications for discharge, assessment orders, treatment orders, further orders, applications relating to transfers or leave, applications to vary orders). — The need for the tribunals to reorganise and for the Legal Services Commission to make the necessary arrangements for patients to be legally represented. — The requirement that NHS trusts determine whether a citizen appears to meet the relevant conditions for compulsion every time it is requested to do so by any person. — The requirement that NHS trusts arrange for every person who appears to meet these conditions to be examined by two doctors and an approved mental health professional. — The duty to record the many kinds of determinations provided for by the Bill and the reasons for them. — The need to organise the necessary nominated person and advocacy services. — The need to put into place systems for approving clinicians and mental health professionals. — The many formal requirements imposed on the managers of hospitals, eg to “secure” that clinical supervisors make tribunal applications when required to do so by the terms of the Bill, to appoint clinical Joint Committee on the Draft Mental Bill: Evidence Ev 1009

Key Point Further Explanation supervisors, to secure that patients are assessed and that care plans are prepared, to require patients to comply with conditions imposed on them, to deal with requests for determinations, to register patients, to record changes in the status of resident and non- resident patients, to process tribunal applications, to liaise with the new tribunals and the Expert Panel, to furnish reports and other prescribed information, etc. — The many formal duties imposed on clinical supervisors, eg to review and amend patients’ care plans, to make tribunal applications when required by the Bill, to keep the legal status of all patients under review, to comply with the consent to treatment provisions, etc. — The need to retrain all doctors, social workers, nurses, managers and other mental health professionals who will be involved in implementing the new Act. They will need to be familiar with the Act, regulations, statutory forms, rules, Code of Practice, and the guidance issued by the Department of Health, Home OYce, CHAI and Mental Health Tribunals. — The need to make arrangements for the inevitable increase in NHS litigation, and to allow the NHS and independent hospitals time to agree satisfactory legal cover and insurance. Training Training is a crucial issue. Substantial It will be necessary to retrain all those doctors, social workers, time and money will need to be set aside nurses, hospital managers and other mental health for training on the Bill. professionals who will be involved in implementing the new Act. Services that today are not involved in compulsory procedures will need to familiarise themselves with practice in this area, eg psychology departments and substance-dependency services. They will all need to be familiar with the Act, regulations, statutory forms, rules, Code of Practice, and oYcial guidance. Sharing of Information The clauses that deal with “information Having set out what seems to be a new set out statutory duties sharing on request” (Clauses 286 to concerning the sharing of information, this part of the Bill 288) are extremely unhelpful. then ends with, “Nothing [above] authorises the provision of information if such provision would be prohibited or restricted under or by virtue of any enactment or by any rule of common law.” In other words, the poor practitioner is told to decide for her/ himself whether any of the “duties” in the Bill is a new duty or a breach of conﬁdentiality.

Section 13. Concluding Remarks The Government has attempted to address the concern expressed by many people about the criteria for civil compulsion contained in the original Bill, and the introduction of new safeguards for children aged under 16 is a further welcome development. Unfortunately, in most other respects the contentious provisions of the original Bill remain unaltered. Indeed, the relevant conditions aside, the new Bill is if anything less satisfactory in terms of the constitutional balance it strikes between those persons in positions of authority and those subject to their authority. Of special concern are the abolition of a specialist Mental Health Commission, the way in which central government departments have excluded themselves from the Code of Practice and other safeguards, the fact that matters such as the criteria determining whether a citizen is detained are left to regulations, the length of the Bill, the quality of the drafting, the practicality of the proposals and the complexity and expense involved in administering it. Ev 1010 Joint Committee on the Draft Mental Bill: Evidence

APPENDIX 1. It is unsatisfactory to seek to determine principles by reason only, without regard for human experience of the world within which principles are formulated and applied. Our value judgments are judgments about experienced objects. 2. There are many reasons to limit state intervention in people’s lives: errors in law spread their negative eVects throughout the nation as opposed to individual errors that are limited in scope; the damage of erroneous laws aVect citizens more than legislators, who are thus less inclined to repeal them; it takes longer to repair the damage done by legislation than the damage done by individuals by their own private choices; because of the constant watch of critics, politicians are less inclined to publicly admit error and undo the damage done; politicians are more inclined than citizens to make decisions based on political gain and prejudice, rather than principle.1 3. The British constitution separates powers, the aim being to keep executive powers in check and under proper scrutiny, and so to secure good government. This is necessary because the “whole art of government consists in the art of being honest”,2 and “it is not by the consolidation, or concentration of powers, but by their distribution, that good government is eVected.”3 4. Promoting liberty, protecting individuals from harm caused by those at liberty, and those not at liberty from abuse by those who are, alleviating suVering, and restoring to health those whose health has declined, are all legitimate objectives, in that they reflect values embraced by virtually all members of our society.4 5. We are, however, “faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others.”5 Whether individuals “should be allowed certain liberties at all depends on the priority given by society to diVerent values, and the crucial point is the criterion by which it is decided that a particular liberty should or should not be allowed, or that its exercise is in need of restraint.”6 6. When enacting mental health legislation, Parliament has generally sought to erect a balanced legal structure that harmonises three things: individual liberty; bringing treatment to bear where treatment is necessary and can be beneficial; the protection of the public.7 Those we describe as “patients’ are themselves members of the public, so that the law must seek to ensure that members of the public are not unnecessarily detained, and also that they are protected from those who must necessarily be detained. 7. The use of compulsion has been permitted when significant harm is foreseeable if an individual remains at liberty. Its purpose is to protect the individual or others from those risks that arise when a person’s capacity to judge risks, or to control the behaviour giving rise to them, is impaired by mental disorder. 8. Other risks are, constitutionally, matters for citizens to weigh in their own minds. The purpose of compulsion is not to eliminate that element of risk in human life that is simply part of being free to act and to make choices and decisions. A person who obeys our laws is entitled to place a high premium on their liberty, even to value it more highly than their health. Subject to the stated limits, people are entitled to make what others regard as errors of judgement, and to behave in a manner which a doctor regards as not in their best interests, in the sense that it does not best promote health. 9. This desire to determine one’s own interests is common to human beings, and so not to be portrayed as an abuse of liberty. On the one hand stands liberty, a right which Parliament and the law should always favour and guard, on the other licence, a wilful use of liberty to contravene the law, which the law must of necessity always punish. 10. Any power given to one person over another is capable of being abused. No legislative body should be deluded by the integrity of their own purposes, and conclude that unlimited powers will never be abused because they themselves are not disposed to abuse them.8 Mankind soon learns to make interested uses of every right and power which they possess or may assume.9 11. This risk of abuse is multiplied if the individual is not free to escape abuse, is incapacitated or otherwise vulnerable, or their word is not given the same weight as that of others. Children and adults with mental health problems are particularly at risk, and the law has usually aVorded them special protection. 12. This protection involves imposing legal duties on those with power, conferring legal rights on those in their power, and independent scrutiny of how these powers and duties are exercised. The eVectiveness of such schemes depends on whether, and to what extent, they are observed. 13. This is a matter of constitutional importance, for the observance of legal rights and the rule of law are the cornerstones of all liberal democracies. The rule of law “implies the subordination of all authorities, legislative, executive [and] judicial . . . to certain principles which would generally be accepted as characteristic of law, such as the ideas of the fundamental principles of justice, moral principles, fairness and due process. It implies respect for the supreme value and dignity of the individual.”10 14. In any legal system, “it implies limitations on legislative power, safeguards against abuse of executive power, adequate and equal opportunities of access to legal advice and assistance,...proper protection of the individual and group rights and liberties, and equality before the law . . . It means more than that the government maintains and enforces law and order, but that the government is, itself, subject to rules of law and cannot itself disregard the law or remake it to suit itself.”11 Joint Committee on the Draft Mental Bill: Evidence Ev 1011

15. In framing these principles and laws, Parliament has sought to be just, justice being “a ﬁrm and continuous desire to render to everyone that which is his due.”12 16. If new laws are necessary, they should impose minimum powers, duties and rights; provide mechanisms for enforcing duties and remedies for abuse of powers; be unambiguous, just, in plain English, and as short as possible. 17. Because there is a long record of experimentation in human conduct, cumulative veriﬁcations give these principles a well-earned prestige. Lightly to disregard them is the height of foolishness.13

The Principles of Legislating for Risks—Anselm Eldergill It is impossible for mental health services to be totally safe, and Governments should take account of the natural limits of practice before they introduce legislation: — Risk cannot be avoided and even a very low risk from time to time becomes an actuality. However careful the assessment, it is inevitable that some patients will later take their own lives or commit a serious oVence. — Any decision to detain an individual, or to compel them to have treatment, involves balancing competing risks, of which the risk that others may suVer physical harm is but one. For example, detention and compulsory treatment risk loss of employment, family contact, self-esteem and dignity; unnecessary or unjustified deprivation of liberty; institutionalisation, and disabling side-eVects. — The purpose of compulsory powers is not to eliminate that element of risk in human life which is a consequence of being free to act, and to make choices and decisions; it is to protect the individual and others from risks that arise when a person’s judgement of risk, or their capacity to control behaviour associated with serious risk, is significantly impaired by mental disorder. — Good practice relies on good morale and a feeling amongst practitioners that they will be supported if they act reasonably; it is unjust to criticise them when decisions properly made have unfortunate, even catastrophic, consequences. — The occurrence of such tragedies does not per se demonstrate any error of judgement on the part of those who decided that allowing the patient their liberty did not involve unacceptable risks. — An outcome is often the result of a complex series of events, and the choice of one particular causal factor may be arbitrary. —SmalldiVerences in one key variable can result in vastly diVerent behaviours and outcomes: just as a sudden change in the physical state of water into steam or ice occurs with the rise or fall of temperature beyond a critical level, so the addition of a small additional stress on an individual may have a profound eVect on their mental state or behaviour. — All violence takes place in the present, and the past is a past, and so unreliable, guide to present and future events. — Understanding the situations in which a person has previously been dangerous, and avoiding their repetition, can give a false sense of security about the future. Although life is understood backwards, it must be lived forwards, and the diVerence between explanation and prediction is significant: explanation relies on hindsight, prediction on foresight, and the prediction of future risk involves more than an explanation of the past. — Unless the individual’s propensity for violence has a simple and readily understandable trigger, it is impossible to identify all of the relevant situations; some of them lie in the future, and will not yet have been encountered by the patient. — Predictions are most often founded not on fact but on “retrospective predictions” of what occurred in the past (“retrodiction”). — A risk can in theory be measured and is the basis of actuarial prediction—in theory because in practice all of the critical variables never are known. The risk depends on the situation but the situations in which the patient may find themselves in the future can only be speculated upon. — Because future events can never be predicted, it is important to put in place an adequate system for supervising an individual whose own safety may potentially be at risk or who may pose a threat to the safety of others. However, this approach is not fail-safe: it is based on the assumption that most attacks do not erupt like thunderstorms from clear skies. In reality, as with weather systems, only the pattern of events for the next 24 hours can usually be forecast with some accuracy; and contact with supervisors is less regular. — All human beings, regardless of their skills, abilities and specialist knowledge, make fallible decisions and commit unsafe acts, and this human propensity for committing errors and violating safety procedures can be moderated but never entirely eliminated. Ev 1012 Joint Committee on the Draft Mental Bill: Evidence

Whether our laws are at fault Even if people are inadequately protected from the actions of people who suVer from mental disorder, this may not be a fault of our laws. It may be due to insuYcient resources, poor government, poor service management, poor risk management, faulty practice, a faulty understanding of the law, or simply part of the human condition. In other words, a problem or limitation that is to a significant extent replicated across a world full of diVerent mental health laws. Implicit in any discussion about the need for new laws is the assumption that modifying their content modifies outcomes. However, the extent to which this is true is unclear. Legislation is actually a relatively ineVective means of modifying behaviour. Although it can provide a framework for managing violence associated with mental disorder, it cannot significantly reduce these risks. That this is so is clear from recent homicide inquiry reports. Had the professional carers foreseen what was about to happen, they already had power under the present law to intervene. That they did not intervene was due, not to any lack of legal powers, but to the fact that they did not foresee what was about to occur. Yet no amount of new legislation can improve foresight. Nor can it improve insight, for “he that complies against his will, Is of his own opinion still.”14 The key to progress must rest with improving government, resources, diagnostic tools, treatments and training, and, most fundamentally of all, with education: “I believe that education is the fundamental method of social progress and reform. All reforms which rest simply upon the law, or the threatening of certain penalties, or upon changes in mechanical or outward arrangements, are transitory and futile....Butthrough education society can formulate its own purposes, can organize its own means and resources, and thus shape itself with definiteness and economy in the direction in which it wishes to move . . . Education thus conceived marks the most perfect and intimate union of science and art conceivable in human experience.”15

Legislating for Personality Disorder—Anselm Eldeergill

Who is mentally disordered? It is necessary to define or describe who within a population is mentally disordered before it is possible to estimate the level of violence for which they are collectively responsible. If persons with anti-social or psychopathic personalities are categorised as being mentally disordered, it is necessarily true that other people are relatively more at risk from the mentally disordered than if they are excluded. Furthermore, if our definition of a psychopathic disorder requires abnormally aggressive or seriously irresponsible conduct, as it does under the 1983 Act, it is inevitable that people within the definition will often have been violent. Such a concept is bound to produce such a statistical finding, the whole aim being to detain those who, though not mentally ill, put others at significant risk. Conversely, if such people are excluded, the level of violence committed by what may be called the anti-social element in society will be that much greater, and the contribution of the mentally disordered that much less. The definition of mental disorder in the 1983 Act includes people categorized as having a psychopathic disorder, but does not include people by reason only of promiscuity, immoral conduct, sexual deviancy or dependence on alcohol or drugs. It is clear, however, from the draft Bill that the Government considers that such persons have a mental disorder. By implication, it counts them as part of the group of mentally disordered persons who commit violence, violence from which the public are inadequately protected. It will later be argued that this all-inclusive approach is artificial and unjustified...

Whether the human personality is a proper subject for medicine The Home OYce and the Department of Health have for some time now been considering the introduction of new laws aimed at protecting the public from individuals who have a “dangerous severe personality disorder”. In July 1999, the two departments published a consultation document, setting out proposals intended to ensure “that DSPD people are kept in detention for as long as they pose a high risk. The approach the Government has developed . . . involves the idea of detention based on the serious risk such people present to the public.”16 The Government was therefore advocating that risk alone, as well as mental disorder and criminal punishment, can justify detention. As a result, consideration was given to detaining such people in “third units”, in essence adult secure accommodation of the kind presently provided for some behaviourally- disturbed children. This is a quarantine argument; one which holds that, subject to problems of identiﬁcation, the civil detention of dangerous people is justiﬁed even if they have not committed any violent oVences. The contrary argument is that the civil detention of dangerous non-oVenders is never warranted, because it is a Joint Committee on the Draft Mental Bill: Evidence Ev 1013

fundamental principle that citizens who obey our laws have a right to be at liberty. To imprison a person who has not yet committed the oVence one fears is the criminal justice system of Alice’s Wonderland: “No, no!” said the Queen. “Sentence first—verdict afterwards.” The “third-unit” option seems to have been abandoned, probably because it was thought that indefinitely detaining non-oVenders in civilian accommodation risks infringing the European Convention on Human Rights. Article 5(1) permits the detention of convicted persons and those of unsound mind in appropriate facilities (prisons and hospitals, respectively), but does not in clear terms permit the detention of citizens who have not oVended merely because there is a risk they will do so in future. Detention in secure non-hospital accommodation rather rules out pleading mental disorder, and a need for treatment, as the justification, and nor can punishment or lawful sentence be pleaded, because the individuals are not serving a term of imprisonment. Probably for these reasons, therefore, the Government seems to have retreated, at least for the present, to the justification that such people are mentally disordered: they require medical treatment in hospital or medical treatment under supervision in the community. It is, no doubt, with the anti-social in mind that the criteria for compulsion, and various key statutory terms—such as mental disorder, medical treatment, hospital and clinical supervisor—are defined as they are. Indeed, the proposals for the compulsion of civilians seem designed to deal with people who habitually threaten, harm or alarm others, whatever the cause. It is in eVect a “well dodgy” Act, designed to sweep from the streets, or to supervise and control, anyone whose conduct causes the public significant concern, but whose behaviour—in the absence of actual evidence or proof of serious oVending—does not allow the police or the courts to place them in custody. Much of the recent debate has centred on whether or not the NHS and other agencies are resourced to provide such an extensive service. However, this assumes that such people may properly be dealt with on the basis that their conduct is evidence of a medical condition that requires medical intervention. The arguments for not permitting this are compelling. Kurt Schneider defined personality as, “the unique quality of the individual, his feelings and personal goals; the sum of his traits, habits and experiences and the whole system of relatively permanent tendencies, physical and mental, which are distinctive of a given individual.”17 In short, personality is what makes one individual diVerent from another. It is who I am. This observation immediately gives rise to two important questions: Are people said to have disordered personalities injured, ill or diseased? And, is the human personality a proper subject for medicine? The evidence suggests that present medical interventions have, like liberal prison regimes, the reformation of the individual as their aim. This is unacceptable because the proper function of medical science and practice is to treat individual suVering attributable to disease or injury, not to alleviate the suVering of society; and, in the field of mental health, to treat those diseases or injuries which interfere with the development or expression of an individual’s personality, not to reform her or his personality by reference to some social or political norm. The mental state and behaviour of an individual said to have a personality disorder is abnormal, in the sense that it deviates from the social norm, but normal in relation to their own individual norm: that is, it is consistent with what is known about their development and functioning over time. Here then, the individual is only abnormal by reference to a social norm, and such a deviation cannot be said to constitute a disease because mere social deviation is not evidence of biological disorder. This requires evidence of injury or deviation from the individual norm. If there is no evidence of either then one is simply confusing individuality with ill-health: treating as biologically abnormal an undiseased, uninjured, creature living its natural life, so that medicines are pesticides. The motivation for this social control is transparent. People want to live in a cultivated society, and they cultivate society in much the same way they cultivate nature in their gardens. This involves eradicating disease in the garden, but also weeding it and controlling pests, that is containing or destroying organisms which are doing nothing more than expressing their natures. There is nothing unique in this, for the same power is claimed over animals and unborn life, and most other things that interfere with personal survival or fulfilment. But it is why CS Lewis wrote that, “To be cured against one’s will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles and domestic animals. But to be punished . . . because we have deserved it . . . is to be treated as a human person made in God’s image.”18 Although many people would not today understand the issue in religious terms, the argument retains its inner strength: there is more human dignity in punishment than in medicalizing anti-social or violent behaviour. This is an uncomfortable message for an age that is uncomfortable with the notion of punishment, the more so when the debate involves issues of responsibility and free will, and the extent to which some people’s personalities do not enable them to refrain from anti-social behaviour. However, our conscious thinking and deciding are embodied in the workings of our brains, and consequently our behaviour is determined by our thinking and choosing. While determinism provides an explanation for our choices and actions, it is humans beings, not deterministic rules, that cause events. The fact that an individual’s personality, as Ev 1014 Joint Committee on the Draft Mental Bill: Evidence

determined by their genes and previous experiences, dictates the choice s/he makes does not mean that s/he has not chosen between alternatives. Furthermore, whilst not everyone has the same capacity. to eschew the wrong, this does not preclude us from judging their actions, because whether an action is harmful is not aVected by its antecedents. In short, our conscious decisions and actions are matters of personal choice: each chooses what suits their personality, not that of others, and must be accountable to others for their choice. The counterpart of freedom and autonomy is accountability for acts freely and autonomously done. The view presented here therefore is that those persons presently categorized as psychopaths are not mentally disordered, and they should be excluded from mental health legislation. We are simply medicalizing “deviant behaviour”.19 Believing this, there is no inhumanity in holding that they should be imprisoned if their oVence and forensic history merits it. If we are satisfied that our prison system is the best that can be devised for the prevention of crime, and the reformation of the criminal, then we may rest satisfied that it is the best treatment for the sort of insanity from which criminals suVer. If, on the other hand, we are not satisfied that prisons are reformative then why this is so needs to be the principal focus of our attention.20 What cannot be justified are mental health or social protection laws that permit the preventive detention of law-abiding citizens who are free of injury or disease. It would be unjust to detain them for crimes they have not committed and are actuarially unlikely to commit. It would be immoral, because the old maxim that “you shall not do evil that good may come” is applicable in law as well as in morals. It would be inutile, because any impact on the rates at which serious oVences are committed is likely to be marginal. There is little gain in detaining a handful of notionally dangerous civilians each year when guilt in criminal proceedings must be proved beyond all reasonable doubt, because every year we release without penalty thousands of rapists and other violent oVenders. Lastly, it would be unwise. For, when the public perceives that they are no safer despite such a reform, rather than realise and learn from their folly, they will demand that basic freedoms be further curtailed and the penalties made more severe. Such demands misunderstand the functions of the law and its natural limits. It is not within the power of the law, given the venality of the times, to cleanse the Augean stable. As Montesquieu observed, in “moderate governments, the love of one’s country, shame, and the fear of blame are restraining motives, capable of preventing a multitude of crimes. Here, the greatest punishment of a bad action is conviction . . . In those states a good legislator is . . . more attentive to inspire good morals than to inflict penalties.”21 Only those who know the cost but not the value of our freedoms would embark upon such a journey. Nothing which has great value is without cost, and the value of anything is what one is prepared to sacrifice for it. The value attached to trial by one’s peers is the financial cost of the jury system; the value of justice is demonstrated by a willingness to see the guilty go free rather than risk convicting the innocent; and the value of liberty is demonstrated by stoically bearing the many evils which liberty permits. If the defence of these freedoms was worth the sacrifice of millions during two wars then, unless society has become wholly degraded, it must withstand the death of a few during peacetime. Such a scheme has no utility which can justify its innate immorality and the infliction of such great injustice; and it would be highly imprudent to interfere with public liberties in the name of public safety when the necessity of such a scheme has not been firmly established.22

References: 1 Benjamin Constant: Political Writings (trans. and ed Biancamaria Fontana), Cambridge University Press 1988. 2 Thomas JeVerson: Rights of British America, 1774. The Writings of Thomas JeVerson, Memorial Edition (ed, Lipscomb & Bergh), Washington, DC, 1903–04. 3 Thomas JeVerson: Autobiography, 1821. The Writings of Thomas JeVerson, Memorial Edition (ed, Lipscomb & Bergh), Washington, DC, 1903–04, 1:122. 4 Eldergill, AC, Mental Health Review Tribunals—Law and Practice (Sweet & Maxwell, 1997), p 45. 5 Berlin, Sir I, Four Essays on Liberty (Oxford University Press, 1969), p 168. 6 Dias, RWM., Jurisprudence (Butterworths, 5 ed, 1985), p 109. 7 Hansard, HC Vol 605, col 276. 8 Thomas JeVerson: Notes on Virginia Q.Xlll, 1782. Memorial Edition (supra), 2:164. 9 Thomas JeVerson: Notes on Virginia Q.Xlll, 1782. Memorial Edition (supra), 2:164. 10 David M Walker, The Oxford Companion to Law (Clarendon Press, Oxford, 1980), p 1093. 11 Ibid. 12 Justinian, Inst, 1, 1. 13 Dewey, J, Human Nature and Conduct (Allen & Unwin, 1922). 14 Butler, Hudibras (1663), Part 3, Canto 3. 15 Dewey, J, My Pedagogic Creed (1897), in The Essential Dewey, Volume 1 (ed Hickman L and Alexander TM), Indiana University Press, Bloomington & Indianapolis, 1998, p 234. 16 Home OYce/Department of Health, Managing Dangerous People with Severe Personality Disorder, Proposals for Policy Development, July 1999. 17 Schneider, K, Clinical Psychopathology (5th ed, trans. Hamilton MW, Grune & Stratton, 1958). 18 Lewis, CS, The Humanitarian Theory of Punishment, University of Melbourne Law Review (1953) 228. Joint Committee on the Draft Mental Bill: Evidence Ev 1015

19 In Conrad’s opinion, the conditions for the medicalization of deviance are that: (1) a behaviour or set of behaviours must be deﬁned as deviant and as a problem in need of remedy by some segment of society; (2) previous or traditional forms of social control must be seen as ineYcient or unacceptable, eg corporal punishment or penal servitude; (3) some medical form of social control must be available; (4) ambiguous organic data as to the source of the problem must exist; and (5) the medical profession must be willing to accept the deviant behaviour as within their jurisdiction. Conrad, P, On the Medicalization of Deviance and Social Control, in Critical Psychiatry: The Politics of Mental Health (ed D Ingleby, Penguin Books, 1981), pp 111–118. 20 Maudsley, H, Responsibility in Mental Disease, 4 ed, 1885, Kegan Paul, Trench & Co., London, p 27. 21 Montesquieu, Baron de, The Spirit of the Laws (Cambridge University Press, 1989). 22 This passage is taken from Eldergill, A, Psychopathy, the Law and Individual Rights, Princeton University Law Journal, Volume III, Issue 2, Spring 1999. Reproduced in Eldergill, A, A Greater Evil, The Guardian, 20 July 1999.

Memorandum from J Millington (DMH 270)

I write as an individual Mental Health Professional (an Approved Social Worker) with 20 years experience of implementing the 1983 Mental Health Act. In my view enacting the revised Mental Health Bill would be a costly and disruptive measure bringing no tangible benefits to service users, their carers or the wider community. The proposed change to the legislation was driven by the perception of significant failings in current Mental Health Services (particularly with regard to public safety), however, the failure to shift the focus of treatment outside of the hospital and the failure to meet the treatment needs of personality disordered patients are not caused by shortcomings in the legal framework, rather they are due to deficiencies in clinical expertise and resources. Under the current Act it is possible to admit a patient to hospital, initiate compulsory treatment and immediately allow them to return to their home provided they adhered to their treatment plan. Again, under the current Act it is perfectly possible to treat patients suVering from personality disorder on a compulsory basis. The obstacles to the achievement of these goals are in the first case the lack of personnel to support home treatments and in the latter the lack of suitable psychotherapeutic resources. Pursuing legislative change will divert resources away from the “ front line “ and hamper progress in these areas. Proponents of the Bill have argued that it represents a step forward in the protection of patients rights, in fact it removes many of the checks and balances that safeguard patients civil liberties. Currently a patient subject to detention under the Act can appeal to a Tribunal who will independently judge whether the appropriate criteria have been met. The Tribunal has the power to discharge the patient from detention if they think fit. A patient appealing to a Tribunal currently knows that their worst outcome is that the Tribunal will not support their appeal, in the proposed Bill a patient appealing against a 28 day detention order is liable to find that their Consultant is simultaneously petitioning the Tribunal with the request for a six months treatment order. Patients experiencing this situation are likely to be deterred in future from appealing to a Tribunal. They are likely to perceive the new Tribunal as judge, jury and executioner. Further safeguards removed under the Bill include the abolition of the role of the Nearest Relative and the dilution of the role of the Approved Social Worker. The current Act gives substantial powers to the relative of the patient who is most closely involved with them (defined by a set of objective rules). That relative can request the discharge of a patient and prevent the implementation of a Treatment order. Only if they are found by a Court to be acting unreasonably or if the patient’s consultant indicates that it would be dangerous to discharge the patient can the Nearest Relative be overruled. The Bill proposes to remove the powers of the Nearest Relative and place all the decision making into the hands of the professionals Both the Nearest Relative and the Approved Social Worker function as Applicants under the current Act. ASWs are equipped to provide an independent, non-medical view regarding the case for detention. A substantial part of social workers training is devoted to the utilisation of legislation, including the use of compulsory powers in a variety of circumstances. The principle of intervening in the least restrictive manner appropriate is intrinsic to their professional practice. Social workers are employed by Local Authorities and have line management support for their role as Applicants separate from their colleagues in Hospital Trusts. Historically, unlike other mental health professionals they have not provided treatments under the direction and control of consultant psychiatrists. Diluting the role of the ASW as proposed in the Bill, will not improve patient’s rights. It is anticipated that £100 million will be required to implement the Bill. Given the diYculties in providing basic care for users of mental health services at the moment, would the Committee not consider that better use be made of these monies? October 2004 Ev 1016 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from JUSTICE (DMH 272)

Summary 1. JUSTICE is a British-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law. It is the British section of the International Commission of Jurists. 2. JUSTICE is also a member of the Mental Health Alliance, an umbrella group of mental health organizations and other groups concerned with the proposed reform of the 1983 Mental Health Act. As with other members of the Alliance, JUSTICE recognises that the 1983 Act itself contains significant gaps. Nonetheless, the Alliance considers it essential that fresh mental health legislation should be fully compliant with relevant human rights standards. Accordingly, in addition to endorsing the Alliance’s submission to the Joint Committee, JUSTICE’s own submission focuses on the human rights aspects of the draft Mental Health Bill. 3. We note that the draft Bill is an extremely large piece of legislation and we regret that we have not had as much time as we would like to analyse all the provisions in terms of their compatibility with human rights standards. Nonetheless, this briefing aims to highlight some significant problems with the draft Bill, several of which are similar to those noted in the first draft Bill in 2002:45 — The definition of Mental Disorder is inappropriately broad; — Conditions for compulsory treatment lack suYcient precision; — Provisions for community treatment lack suYcient safeguards; — The draft Bill’s emphasis on public protection is disproportionate; and — There remains a significant gap between the provisions of the draft Bill and those of the Mental Capacity Bill in terms of the protection of compliant persons lacking capacity. Accordingly, the draft Bill appears to us incompatible with the Human Rights Act in numerous respects.

Q2. Is the definition of Mental Disorder appropriate and unambiguous? 4. No. We regard the draft Bill’s definition as unnecessarily broad. Although the Bill’s definition of “mental disorder” may be analytically coherent, the adoption of such a broad definition is problematic where the existence of mental disorder is also a primary condition for the use of compulsory treatment under the Bill.46 5. In particular, JUSTICE is concerned at the absence of any exclusions from the Bill’s definition of “mental disorder” (along the lines of those in the 1983 Act). First, the definition would include persons suVering from conditions such as epilepsy, or drug or alcohol dependency. While it is proper to make provision for the treatment of such conditions, we doubt that it is either appropriate (or indeed eVective) to do so by assimilating them to the existing mental health regime. 6. Secondly, the Bill’s definition would extend to persons with learning diYculties, even in cases where such diYculties are not linked to any “abnormally aggressive or seriously inappropriate conduct” (the requirements under the 1983 Act). We question whether it is sensible to extend the scope of mental health legislation to such a broad category of persons whose learning diYculties are not by and large problematic. 7. Thirdly, the 1983 Act excluded those considered to have mental disorders “by reason only of promiscuity or other immoral conduct (or) sexual deviancy”,47 on the basis that it was similarly inappropriate to subject such persons to a mental health treatment regime. We do not see sound reasons for their inclusion in the draft Bill. 8. The draft Bill’s broad definition of Mental Disorder is even more troubling in the context of Part 3 admissions (persons admitted by way of the criminal justice system). The trigger for both remand on bail (clause 86(3)(b)) and remand in custody for the preparation of a mental health report (clause 88(2)) is the court’s reasonable suspicion on medical evidence that a person has a mental disorder. The existence of a mental disorder is also the first trigger for remand in custody for remand for medical treatment (clause 96(1)). Given the broad definition of “mental disorder”, this would extend the power to remand suspects who appear to have either (a) alcohol or drug problems or (b) learning diYculties. As an illustration of the sheer breadth of these latter categories, alcohol-related crime was estimated in 2004 to account for nearly half of all violent crime;48 aHomeOYce study in 2000 showed 69 per cent of arrestees tested positive for one or more illegal drugs;49 and a Social Exclusion Unit report strongly indicates high rates of learning

45 See JUSTICE Response to Draft Mental Health Bill 2002 (September 2002). 46 Clause 9 sets out the relevant conditions for treatment under the draft Bill. Clause 9(2) provides that the ﬁrst condition is that “the patient is suVering from a mental disorder”. 47 Mental Health Act 1983, Section 1. Emphasis added. 48 Cabinet OYce, Alcohol Harm Reduction Strategy (March 2004), p13. 49 Home OYce Research Study 205, Drugs and Crime: the results of the second developmental stage of the NEW-ADAM programme (2000), p23. 50 Social Exclusion Unit, Reducing re-oVending by ex-prisoners (July 2002), pp 19. Joint Committee on the Draft Mental Bill: Evidence Ev 1017

diYculties among the UK prison population.50 We strongly doubt whether it is appropriate to extend powers for remand and treatment on mental health grounds to what would appear to be the majority of suspects within the criminal justice system.

Are the conditions for treatment and care under compulsion suYciently stringent? 9. No. While we are pleased to see that the criteria for compulsory treatment have been tightened somewhat from the 2002 draft Bill, the proposed criteria remain too broad. The problems with the first condition (the definition of mental disorder) has already been addressed above. Taken together with the third condition—which includes treatment to protect a patient from “serious neglect” of their “health and safety” or “for the protection of other persons”—it becomes possible to envisage forcible treatment for alcohol or drug dependency within a mental health framework. 10. Particularly problematic is the notion of “appropriate” treatment as one of the relevant conditions for compulsory treatment (clause 9(6)). The idea of appropriateness is a wholly uncertain one and, therefore, not a suitable term to use in provisions governing the use of coercive powers overriding individual autonomy. As we noted in relation to similar provisions in the 2002 draft Bill, it is a basic requirement of the rule of law that any interference with fundamental rights must be clearly defined, so that the application of such legislation can be reasonably foreseen.51 As recently as 4 October 2004, the European Court of Human Rights reiterated the necessity of clear rules governing the use of compulsory treatment powers for the sake of “avoiding arbitrariness”.60 The court found such arbitrariness in the mental health context amounted to a violation of a patient’s right to liberty under Article 5(1) of the European Convention on Human Rights (“ECHR”).53 11. A patient’s right to liberty is not the only fundamental right engaged by the use of compulsory treatment powers. It is clear that compulsory treatment may also amount to a violation of a patient’s rights under Article 8 ECHR (the right to respect for private life), where it cannot be shown to be necessary and proportionate response in pursuance of a pressing social need.54 In addition the unnecessary use of compulsory powers may breach a patient’s rights under Article 3 ECHR (the right to be free from torture, inhuman or degrading treatment). We draw the Joint Committee’s attention to these points to underline our concern with certain other aspects of the relevant conditions for compulsion, in particular: — The presumption of detention in clause 16(5) where medical examiners determine that an individual is capable of meeting the relevant conditions in clause 9. If powers of compulsion are to be genuinely a measure of last resort—to be used where only strictly necessary—then it is antithetical to this approach to have a presumption in favour of detention; — The lack of any discretion whether to detain a person whom examiners agree may present a risk to others but who is compliant and willing to undergo treatment (clause 15(2)). As before, if detention is only to be used where strictly necessary then it is inconsistent not to aVord to examiners the discretion whether to exercise it in each case according to their clinical judgement; and — The trigger for assessment is a request by any person (as opposed to a close relative or social worker as is presently the case). Given the intrusive nature of assessment and the potentially serious consequences that may follow upon it, it seems plausible that assessment itself may constitute interference with an individual’s right to respect for their private life under Article 8. Accordingly, a legislative provision that allows any person for any reason to trigger assessment of another for compulsory treatment without further safeguards against abuse may amount to an unjustified interference contrary to Article 8(2).

Are the provisions for assessment and treatment in the Community adequate and suYcient? 12. No. In addition to the obvious interference with a non-resident patient’s right to liberty, the use of compulsory powers in a public setting aVords much greater scope for interference with a patient’s right to respect for private life under Article 8. We are therefore concerned at the absence of any statutory provision or guidance directing clinical supervisors to have regard to an individual’s rights to liberty and respect for

50 Social Exclusion Unit, Reducing re-oVending by ex-prisoners (July 2002), pp 19. 51 See HL v United Kingdom, 4 October 2004, para 114: “given the importance of personal liberty, the relevant national law must meet the standard of ‘lawfulness’ set by the Convention which requires that all law be suYciently precise to allow the citizen—if need be, with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail”; Steel v United Kingdom, 23 September 1998, para 54; SW v. the United Kingdom, 22 November 1995, para 35-36; Kawka v Poland, 9 January 2001, para 49. See also the 8th General Report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment which states that ‘[a]ny derogation from th[e] fundamental principle [that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention] should be based upon law and only relate to clearly and strictly deﬁned exceptional circumstances”. 60 Capacity Bill, clauses 34–37. 53 ibid, para 124. 54 See Kroon v Netherlands [1994) 19 EHRR 263 at para 31: the essential object of Article 8 is “to protect the individual against arbitrary action by the public authorities”. Ev 1018 Joint Committee on the Draft Mental Bill: Evidence

private life when setting conditions for non-resident patients. It is particularly important that clinical supervisors consider whether conditions interfering with a patient’s liberty and/or private life are strictly necessary in the circumstances and that they are the least restrictive means of achieving the therapeutic aim in question. Where conditions for non-resident patients are set by clinical supervisors without regard to these considerations, then any such determination would arguably breach public law principles and the duty of clinical supervisors to act consistently with a patient’s Convention rights under the Human Rights Act 1998. Accordingly, we give particular support to the Alliance’s submission that the determination of whether to require compulsory treatment in a residential or non-residential setting is best made at the time of a care and treatment order before the Mental Health Tribunal. In our view, the potential for unjustiﬁed interference with a patient’s Convention rights is likely to be reduced where the determination is made by a Tribunal rather than a clinical supervisor.

Q3. Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 13. No. As with the 2002 draft Bill, we are concerned that an overriding emphasis on public safety within the Bill risks undermining both its therapeutic objectives and the human rights of prospective patients. 14. First, the broad deﬁnition of “mental disorder” would render persons with personality disorders liable to detention where there are concerns about their dangerousness to others (clause 9(8)). The further requirement that treatment must be “appropriate” does not, in our view, ameliorate the problem of this broadness. We note that Principle 11(6)(c) of the UN Principles for the protection of persons with mental illness and the improvement of mental health care requires that an “independent authority is satisﬁed that the proposed plan of treatment is in the best interest of the patient’s health needs” prior to any compulsory treatment.55 We regard this latter requirement as more balanced towards the need to respect individual rights than the draft Bill’s requirement of “appropriateness”. 15. Secondly, we share the Alliance’s strong scepticism that, in the absence of a previous history of violent behaviour, the dangerousness of individuals with personality disorders is predictable. We note that the great majority of those with personality disorders are not considered dangerous56 and we are gravely concerned at any suggestion that compulsory treatment powers could be used to eVect preventative detention on the basis of suspicion alone.

Q8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? 16. No. As we have already noted in our briefing on the Mental Capacity Bill,57 the October 2004 judgement of the European Court of Human Rights in HL v United Kingdom58 underlines in stark terms the absence of suYcient protection for the rights of compliant persons who lack capacity to consent to treatment (the so-called “Bournewood Gap”): 59 the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act . . . is, in the Court’s view, significant. 17. Despite this, the Mental Capacity Bill is silent about compliant incapacitated patients as a category. This would not be so serious a concern if suYcient protection were provided for such patients as individuals. Although there is provision for the appointment of independent consultees who must be approached in respect of serious medical treatment of an incapacitated person,60 there is no structured protection mechanism in place for compliant incapacitated patients, nor does the Mental Capacity Bill provide the automatic safeguards against inappropriate detention granted to those subject to the formal provisions of the Mental Health Act 1983 or its successor. It is precisely the absence of these safeguards that constitutes the “Bournewood Gap”, which the European Court found to amount to a violation of the right to liberty. 18. In order to close the “Bournewood Gap” and to ensure that the statutory regime envisaged by the new Mental Health Bill and Mental Capacity Bill is compliant with Articles 5(1) and 5(4) of the ECHR, we believe that—at a minimum—the provisions set out in Part 5 of the September 2002 draft of the Mental

55 General Assembly resolution 46/119 of 17 December 1991. 56 Detention of people with dangerous severe personality disorders: a systematic review, Alec Buchanan and Morven Leese, published in The Lancet Vol 358, 8 December 2001 p 1955: A recent analysis of 23 independent studies of systems of preventative detention around the world found that “[u]sing the average positive predictive power of these procedures, six people would have to be detained to prevent one violent act”. 57 JUSTICE, “Mental Capacity Bill: Revised Briefing for Commons Second Reading”, October 2004, paras 4–13. JUSTICE is grateful to Alex Ruck Keene of 39 Essex Street for his preparation of that briefing, upon which this section of the present briefing is based. 58 See ibid, n 7. This was an appeal from the House of Lords decision in the case of R v Bournewood Community and Mental Health NHS Trust, ex p L [199813 WLR 107. 59 Ibid, para 120. 60 Capacity Bill, clauses 34–37. Joint Committee on the Draft Mental Bill: Evidence Ev 1019

Health Bill for patients treated in NHS or independent hospitals (the right to advocacy, the appointment of a “nominated person,” the creation and review of a care plan, and access to a tribunal) should be included in either the Mental Capacity Bill or the Mental Health Bill.

Q9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act? 19. No. For the reasons set out above, we are concerned that the broad scope of powers to detain and compulsorily treat individuals without suYcient safeguards for necessity and proportionality render the draft Bill incompatible with the provisions of the Human Rights Act, in particular the rights of patients under Articles 5 and 8 ECHR. Again, we regret that we have not had suYcient opportunity to deal with all the provisions of the draft Bill in terms of their compatibility, and we would stress that any failure on our part to draw attention to other provisions does not indicate that we consider them to be compatible. Eric Metcalfe Director of Human Rights Policy JUSTICE November 2004

Memorandum from Justice for Patients (DMH 281) We regret that we must oppose the Draft Bill becoming law in its present form. The concerns that we expressed in our response to the original Draft Bill remain. The representations made by a large number of organisations questioning the wisdom of many aspects of the original Draft Bill do not seem to have been used to adequately inform the present draft. While there are aspects of the Draft Bill that are a clear improvement on the present situation and should be included in any new Act, the Draft as a whole is not a satisfactory basis for a new Act that may be in force for 25 years. The broad definition of mental illness, together with the broad definition of what can bring someone within the scope of the proposed Act, fills us with foreboding as to the eVect of its practical application. We anticipate that the implementation of an Act based upon this Draft Bill will be harmful to the interests of mental health service users, reduce willingness to make appropriate and timely use of mental health services both by service users and carers, and thus be more likely to increase possible risk to the public rather than to reduce it. The Draft Bill does not address the situation when someone is inappropriately brought within the ambit of mental health services, by misdiagnosis or otherwise. The “system” does not readily admit error, and this can lead to wholly unacceptable methods being used that act to conceal the error, against the interests of the patient. Such abuse occurs under the existing act. The tribunals as proposed in the draft Bill are inadequate to investigate this. There is no adequate protection proposed in the Draft Bill for the citizen in this predicament. This is apparently not because this dire predicament is not recognised as occurring, but because to make adequate provision and protection would make the proposed Act “diYcult to frame” (answer given by Mental Health Legislation Team during briefing “Roadshow”, morning session questions, 20 October 2004, Avonmouth House, London SE1). The latter is not a minor consideration. In the practical application of any Mental Health Act, many citizens may be misused by the “system” and the medical and bureaucratic cultures to which they are exposed. This can have a serious adverse eVect on the health and well being both of the citizen, and of their family. The proposed Act would only serve to exacerbate, and in its practical application facilitate, such misuse of citizens and their families. Adrian Delemore Project Organiser Justice for Patients November 2004

Further memorandum from the Citizens Advice (DMH 282) Background evidence to Citizens Advice submission on Draft Mental Health Bill Re: paragraphs 5, 7, 8, 9 and 13 Paul admitted himself voluntarily to hospital after he recognised he was experiencing some mental health problems. He was concerned by what he was experiencing and wanted help. Once in hospital he asked to see a psychologist (talking therapy). However as with the majority of acute in-patient units there was no such service (normally it is oVered for those in the community after a 6-9 month waiting time). The nurses Ev 1020 Joint Committee on the Draft Mental Bill: Evidence

were always busy and rarely spoke to him and his consultant saw patients once a week briefly at ward rounds. He was oVered medication but said he did not want this as the first point of treatment but wanted to have psychology to see if this would help. After being on the ward for a week only being oVered medication he decided to leave. At this point he was placed on a Section and forced to take medication. He always felt the medication did not help him and had many side eVects. When he was discharged he came oV medication and looked for alternative ways to keep him well. He took up a computing course and Tai Chai. He has been free from medication for over a year and is well although he admits he has his up and downs but he much prefers this to his experience of being medicated. Under the current act he can be in the community and not put on a Section as he is not ill enough to need hospital treatment and does not meet the conditions met for Supervised Discharge in the community. However under the new Act he could well be put on a Section in the community as his refusal to take medication could be taken as a risk to neglect himself in the future. Paul is very concerned about this fact. The new Act would put him on a Section and force him to take medication that is “appropriate” which means it could be given despite it neither alleviating nor preventing a deterioration in his mental health. The 1983 Act requires that treatment meets the one of the latter two requirements. The old Act and new Act both fail to provide Paul with a right to services such as psychology. When he was on the ward he had no right to request a recognised treatment (psychology) for his illness and get it. Instead his right was to be put on a Section and be given medication. Since his discharge Paul has asked to be referred to a supported work project by his doctor but this has been refused (probably because he is not taking medication). Under the Act (old and new) he has no right to challenge this. When he was on the ward, the Act (old/new) provided for no minimum standards of care despite him being detained there against his will, eg access to psychology, access to activities on the ward, access to benefits advice. October 2004

Memorandum from the Nottingham Senior Medical StaV Committee (DMH 284) The Nottingham Senior Medical StaV Committee welcomes this opportunity to comment on the Mental Health Bill. We appreciate the need for reform of the existing Act, to take into account changes in service provision and human rights legislation.

Question 1 We are pleased that the Draft Bill emphasises the rights of patients and carers. In particular, we value the access of patients to an independent advocacy service and their involvement in selecting a nominated person. We believe that the nominated person should be more involved in the decision making process and that they should receive regular information to carry out that role.

Question 2 This is the area of the Mental Health Bill, which causes us most concern.

Definition of mental disorder The definition proposed is broad and without exclusion criteria. We recommend a clear statement that a person cannot be detained solely for that individual’s political, religious or cultural beliefs, sexual orientation or misuse of drugs or alcohol. Likewise, criminal behaviour or learning disability alone should not be grounds for detention under the Mental Health Act. There is a danger of equating wrongdoing with mental disorder. This would increase the stigma of mental illness, by reinforcing the public perception that the mentally ill are more violent than others. We believe that detention of those with personality disorder, as now, should be for those who are likely to benefit from such treatment or that where it will prevent deterioration in their health. This country has reputation for challenging the misuse of psychiatric treatment in other countries and it needs to be clear in law that such a situation could not occur here. It is clear from the increasing use of the current Act, without evidence of increasing mental illness, that psychiatrists’ behaviour is aVected by the culture in which they work; currently a risk-averse society. It is important that Parliament should determine clearly defined criteria for detention, rather than expecting professionals to interpret the Act until case law develops to inform their decision making. Terms such as “appropriate treatment” and “significant risk of serious harm to others” need clarification. This should be in the Draft Bill and not the Code of Practice. Joint Committee on the Draft Mental Bill: Evidence Ev 1021

Question 3 We are concerned that public safety is emphasised at the expense of individual responsibility. There should be greater consideration of mental capacity in determining whether someone involved in criminal activity should be treated under the Mental Health Act rather than the Criminal Justice system. We believe it is not right that a person could be deprived of their liberty under the Mental Health Act if there is no evidence that the individual will beneﬁt from treatment. We are concerned that a manic patient with impaired judgement resulting in over-spending would not meet criteria for detention. Likewise some with impaired capacity but only moderate risk to themselves or others might not receive the treatment from which they would beneﬁt should they not agree to this.

Question 4

Resources There is an assumption that there will be an 80% increase in tribunals. This assumes that the eVect of the broader criteria for detention will be oVset by the impact of specialist teams such as Crisis and Home-based Care Teams and Assertive Outreach Services. However, given the increased use of detention under the current Act, it is more likely that psychiatrists will be more reluctant to use alternatives to admission if the criteria for detention are broadened. The Bill allows all to request an assessment. If the definition of mental disorder includes substance misuse alone, the number of assessments is likely to increase. It is not clear how this assessments would be carried out with those who are intoxicated or where they would be held before and during the assessment. The tribunals will be more time-consuming as they will also have to agree the care plan recommended by the clinical supervisor. Additional resources are not simply those needed for the tribunal process, but would also include consultation with the advocates and nominated persons, time for care plan reviews etc. The Advocacy Services would need to be well resourced and trained to work with all individuals, including those with learning disabilities. It is essential that those deprived of their liberty should be oVered high quality assessment, care and treatment. It is widely acknowledged that many wards do not currently oVer a therapeutic environment due primarily to a lack of staV. If, as seems likely with the Bill as it stands, there were more detained with challenging behaviours, there would need to be a very significant increase in staV on the wards to contain such behaviour. It is not clear that suYcient trained staV exists and many wards are already over-reliant on overtime and the use of bank and agency staV who do not know the patients. Many psychiatrists are averse to the broad definition of mental disorder and have indicated that they intend to take early retirement should it be introduced in its current form. This will compound the current shortfall of consultant psychiatrists, with a vacancy rate of 18% already existing in general adult psychiatry. Currently most services provide little care for those with personality disorder unless the person is also suVering from mental illness. If under the new Bill someone with personality disorder could be detained on account of their criminal behaviour in the absence of evidence that they would benefit from such treatment, it would stand to reason that those with similar personality disorders in the absence of criminal behaviour would be entitled to similar care on a voluntary basis even if there were no evidence that they would benefit from this. Otherwise the care provided is contingent on criminal activity and the criminal justice route should be used. This potential expansion of those eligible for care from Mental Health Services would have yet further very significant implications for resources, staV morale and safety. The draft Bill stipulates that “appropriate treatment” should be available. We wondered what would happen if the doctors thought that the treatment was not available locally. Would they have to determine whether it was available elsewhere? If that service was not willing to take the patient for whatever reason, what implication would this have with regards to the right to detain that individual under the Mental Health Act? The issues addressed in the previous two paragraphs apply to Learning Disability Services. There would be a need to oVer care on a voluntary basis to those with similar problems but without a history of oVending. Care in these cases is often education, vocational training, social and independent living skills. Again if the resource were unavailable locally, it would be diYcult to oVer a package of care to improve independent living skills at a distance from the individual’s community and home. The resource implications of the draft Bill for Learning Disabilities in part depends on the changes to the Capacity Bill in the light of the recent Bournewood judgment. Three national surveys recently have all shown that not all the money earmarked for Mental Health Services has reached its target. There is a concern therefore that services will be further stretched with the cost of implementing the new Act. We feel strongly that resources should not be removed from those who voluntarily accept treatment in order to implement the Act. Ev 1022 Joint Committee on the Draft Mental Bill: Evidence

Tribunals It is unclear who would have the power to agree changes to a care plan, the independent expert or the tribunal itself. If the latter, it is likely to result in undue delays or else will lead to very general care plans being submitted. It is unclear how disagreements between the Tribunal, the independent expert and clinical supervisor would be resolved. Tribunals can determine that they alone should have the right to discharge a patient. We do not see why, in the absence of criminal proceedings, the clinical supervisor should not have the right of discharge and the nominated person the right to demand this, as at present. It represents a delay in restoring the person’s liberty and thus would be an infringement of their human rights. The removal of Mangers’ Panels is helpful, as often it has resulted in duplication of work, with two tribunals being held days apart.

Question 7 We feel that mental disorder should be deﬁned precisely by the Bill itself and should not be left to the Code of Practice. We look forward to being able to comment on the Code of Practice alongside the draft Bill.

Question 8 We are in support of the Capacity Bill. We wonder how the latest ruling on the Bournewood case, in the European Court will aVect either or both Bills. Are concerned for the problems that will arise for patients with temporary incapacity, eg related to drug or alcohol misuse who may rapidly change from being subject to the Capacity Act to the Mental Health Act. October 2004

Memorandum from Dr Niall Moore (DMH 285) This proposed new legislation has had a long incubation period, with extensive consultation, and unprecedented response from diverse public groups. Notwithstanding this, it manages to be significantly incomplete with extensive references to a Code of Practice as yet unpublished, and to be enormously complex and tortuous to the extent of being almost incomprehensible in parts. It fails to address major areas of professional and public concern with respect to enforced treatment for mental disorder even of those who retain capacity to refuse, and it broadens the criteria for consideration of inclusion under its auspices without exclusion. Despite deletion of some former reference to “dangerous and severe personality disorder”, it still seeks to include such persons into a statutory framework of compulsory treatment without so much as a requirement of benefit to the individual. It is diYcult to form an opinion other than that this Bill represents bad legislation which will have an alienating impact within the profession and defeat many of the other laudable objectives of the Department of Health towards improving the mental health of the nation. The Bill is extraordinarily complex, with over 300 sections, yet both operational detail and issues of principle are omitted and deferred to an as yet unseen Code of Practice. In order to comment fully on the Bill it is essential that this Code be made available forthwith, as its content may have significant impact on the application of the legislation. The complexity of the Bill even without having to co-refer to a Code of Practice would make it a nightmare to operate. Based on experience with the 1983 Act, there would be a long slow learning curve for professionals in many disciplines, with the potential for errors in application, and a massive increase in time consuming bureaucracy. The Department of Health’s assessment of extra personnel required appears not to take into account the extra clinical and administrative time for both learning the new law and applying the “behind the scenes” elements of it. Putting a statutory framework on the application of Care Planning pays no regard to the patchy and incomplete uptake of this process despite fourteen years of practice, nor to the extra workload involved with consulting, drafting, typing, reviewing, consulting again, preparing reports for Tribunal hearings and Appeals within a very constrained timetable, liaising with expert professionals, appearing before Tribunals, consulting with either experts or Tribunals for authority to alter Care Plans. Such activities do not of themselves add to the quality of clinical care, and undoubtedly detract from the enjoyment of professional work, as well as adding greatly to the stress and perception of burdensome blame. The additional bureaucracy alone will have the likely eVect of causing a major exodus of clinicians from a discipline already struggling to recruit. More importantly than any operational considerations, are the issues of principle. The fundamental ethical and moral objection to the enforced treatment of the capable refusing patient remains. In this regard, separating treatment for mental health from other treatments is discriminatory and stigmatising. By inserting either the criterion of severity of illness or risk of harm to others as a substitute for incapacity as Joint Committee on the Draft Mental Bill: Evidence Ev 1023

the trigger for consideration of enforced treatment, the Bill ensures that mental health treatment will remain a subject of suspicion and mistrust for significant sections of society. It will also enshrine distasteful ethical and moral dilemmas into everyday clinical practice for mental health professionals. It may in addition raise the threshold for involuntary treatment too high for some who lack capacity but do not meet the severity criterion, resulting in undue suVering or delay in receiving help. The second fundamental issue of principle is the overly inclusive and broad definition of mental disorder, with no exclusions to allow for cultural, religious, political, sexual or personal beliefs, level of intelligence or use of mind altering drugs including alcohol. This also lumps into “mental disorder” issues to do with personality, as if “disorders” of personality were on a similar dimension to illness. This is clearly not the case, particularly with regard to “treatability”—a concept dropped from the Bill. Such a broad inclusive application, taken together with the substitution of Risk (to the patient and to others) for that of capacity, ensures that the Bill will be perceived as, and may in places be implemented as, a Bill to promote social control, by placing the onus for determining the likely actions of others in the future onto the shoulders of professionals. This will have the added import of blame attributed to the professionals for failing to predict the subsequent harmful acts of a person detained under such a broad definition of mental disorder. It remains unhelpful to blur the boundaries between mental health problems and anti-social behaviour, lumping them together without diVerentiation in the measures contained within this Bill. The absence of a requirement for therapeutic benefit to the patient is both antithetical to good clinical practice and open to abuse. One more detailed concern which is also an issue of principle, is that appealing against the decision to detain for assessment to the body with judicial authority to impose treatment is in concept perverse, and unlikely to lead to a perception of “fair play” by those detained. Additionally, inclusion of disciplines and grades other than consultant psychiatrist in the term Clinical Supervisor potentially allows for those unqualified to diagnose or assess for treatment to be responsible for authorising such treatments including ECT. This too appears perverse. The current concept of Section 12 approval for doctors with special experience in Psychiatry has no apparent such counterpart in this Bill. Similarly, the potential for a Tribunal to restrict the right to discharge by the Clinical Supervisor is antithetical to good clinical care, and may lead to undue delays in changes in treatment responsive to changes in a patients wellbeing. In summary, this Bill represents a poor substitute for the present 1983 Act, and requires significant rethinking. A redraft should attempt to be more comprehensible as well as address the fundamental issues of principle with which there remain major reservations. Niall Moore, MB, BCh, BAO, DCH, MRCPI, FRCPsych Consultant in Old Age Psychiatry Clinical Lead for Older People’s Services, Bristol October 2004

Memorandum from Nottinghamshire Healthcare NHS Trust (DMH 286)

1. Introduction The Trust is one of the largest providers of mental health care in Europe and probably the largest single provider of assessment and comprehensive treatment services for people with a personality disorder, in the world. We have almost 6,000 employees and operate from more than 100 sites across the East Midlands. The new Mental Health Act will have a very signiﬁcant and direct impact on the way we provide services and assess and treat our patents. This paper is compiled by the Chief Executive of the Trust having taken contributions from colleagues in clinical practice and management over a number of weeks.

2. Summary We welcome this reform of the 20 year old Mental Health Act, and particularly this opportunity to contribute to the Committee’s deliberations on the Draft Bill. We wish to stress the need for the Committee to examine adequately issues of reciprocity, also we believe that greater clarity is needed around the deﬁnition of mental disorder. We wonder if the use of the term “appropriate treatment” should be conﬁned to the particular locality or region in which service is delivered and have general concerns about the level of resources that will be guaranteed to be made available for the new approach. We are concerned at the potential loss of expertise locally with the abolition of MHA Associate Managers and the MHAC, and the potential marginalisation of expert medical opinion. We welcome particularly the formalising of the contribution that carers and advocates will make and the independence and professionalism of the new tribunals, although we have concerns at the logistics that are required to establish the new system. The proposed Bill does not address “the Bournewood gap” and the recent ruling by the European Court means that this Bill or the Mental Capacity Bill will need to be altered. Ev 1024 Joint Committee on the Draft Mental Bill: Evidence

The mental health services in the UK have delivered remarkable change over many years and there is the willingness, professionalism and expertise to deliver a new service within the bounds of this new legislation. We ask that we be accorded the necessary time and resources to deliver that service.

3. Specific Points 3.1 The principle of reciprocity is acknowledged within the Human Rights legislation and implicit within the Draft Bill, but there is for any provider of care under the Mental Health Act the question of whether there is suYcient guarantee of resources being available for their to be full reciprocity for the denial of liberty such that might require the provider to ensure that the care plan is delivered under, potentially, pain of legal penalty. 3.2 We employ over 250 psychiatrists within our organisation and can foresee circumstances where there may be no medical opinion available to the new Tribunals, with the replacement of the Responsible Medical OYcer role by that of clinical supervisor and the clinical member of the tribunal not necessarily being a qualified medical practitioner. Mental illness frequently, indeed almost always, requires medical intervention and whilst we may be moving away, quite reasonably, from what might be termed a strictly “medical model” we nevertheless believe that there is a danger that medical opinion may be marginalised. 3.3 With the abolition of the role of the Managers’ Panels and the absorption of the Mental Health Act Commission (MHAC) role into the Healthcare Commission we have a fear that much expertise may be lost to the process of hearing appeals and considering issues of safety and quality of care, locally. MHAC members and Non-Executive Trust Board Directors, along with Associate MHA Managers, provide a largely volunteer workforce of hundreds of individuals across the country who have developed considerable expertise in making non-judicial judgments which are an aid to both patients and local managers. Is all that expertise and considerable public spirit to be lost, and at what cost to the process of delivering an eVective and equitable mental health service in England and Wales? 3.4 The foregoing serves to underline the significance of the change that the government wishes to introduce. That change is manageable and indeed we are experts in managing change in the NHS given the revolutions that we have delivered over many years in the development of mental health and learning disability services. However, change requires time and resources to be achieved. These must be available, both in terms of ensuring that there are a suYcient number of professionals available to service the new tribunals and in planning the change themselves, on the ground. An adequate run-in period, with plenty of opportunity to develop and understand the new Codes of Practice will be essential. 3.5 We believe that our clinical colleagues are right to express concerns to you about the proposed definition of mental disorder and would therefore wish to echo their calls for a clear statement that a person cannot be detained solely for their political, religious or cultural beliefs, their sexual orientation or drug or alcohol misuse. We believe that the Bill itself should more clearly describe what is meant by “appropriate treatment” and “significant risk of serious harm to others”. The balance between public safety and personal liberty is, of course, extraordinarily diYcult to chart in statute, but we share the concerns of Psychiatrist colleagues that under the proposed definitions a manic patient with impaired judgement resulting in personal over-spending would not meet the criteria for detention. Likewise, the proposals suggest an increased potential for a person with impaired capacity but only moderate risk to themselves or others not receiving the treatment from which they would derive benefit, should they not agree to this. 3.6 Staying with the issue of “appropriate” treatment and considering circumstances in which a clinician decides that there may not be treatment that is appropriate available locally, but that there is treatment available elsewhere (for example in the case of local PD services there are 10 national pilots operating at present around the country) would it not be reasonable for that practitioner to declare that there is appropriate treatment available though not within the immediate locality, but elsewhere, perhaps regionally, perhaps nationally, thus generating unplanned demand for those local service from out of area referrals? 3.7 With the exception of a few services, such as our own in Nottinghamshire and the wider East Midlands, there is little provision for those with Personality Disorder (PD) unless they are also suVering from a mental illness. Under the proposed legislation someone with a PD could be detained on account of their criminal behaviour in the absence of evidence that they would benefit from such treatment. If that remained so in the statute it would be reasonable to conclude that those with a similar PD but who had not oVended had an entitlement to treatment on a voluntary basis along the same lines as that available to the patient detained for the oVending behaviour. Again the issue of reciprocity raises its head—but also the issue of resources. Have these considerations been fully explored by the legislators? 3.8 On the matter of Tribunals, whilst welcoming a reinforcement and expansion of the role that is currently carried out in an independent and professional judicial capacity by the Mental Health Review Tribunals, there are some issues of detailed concern particularly around the assessment and development of care plans. It is unclear who would have the power to agree changes to the care plan, whether that would be the independent expert or the tribunal itself. If it were to be the tribunal itself there is a danger that significant delays might ensue, or that “all purpose” care plans might be submitted. Joint Committee on the Draft Mental Bill: Evidence Ev 1025

3.9 On the issue of requests for examinations we share the concerns of many other bodies, practitioners and individuals that anyone can request someone is examined for use of compulsory powers of detention. This seems likely to lead to an increase in the number of inappropriate examinations and have an impact on the capacity of NHS Trusts. We would endorse calls for clear guidance on this issue to ensure that the potential impact of this increased demand is properly understood and incorporated into the workforce and ﬁnancial planning associated with the new MHA. 3.10 There are many aspects of the new Bill we welcome and would particularly applaud the intention to maximise the formal role and contribution of carers and advocates—the latter in the form of the Independent Mental Health Advocate, although this must not be at the expense of a patient’s right to legal representation and legal aid for that representation. We have experience over a number of years in our High Secure and local mental health services of working very closely with carers and advocates and have learned the value that they can bring to the diYcult and challenging process of delivering eVective mental health care on a partnership basis. October 2004

Memorandum from A Woodcock (DMH 287) Thank you for the opportunity The trust covers rural and inner city services so our experience in the provision of mental health care is varied so our experience of the use of the Act reflects this diverse population. The Act appears complex and its referral to the code of practice for guidance makes reading somewhat diYcult at times. The broad definition of mental illness without the treatability clause or the exclusion of sexual, cultural, alcohol or drug dependency could lead to abuse of the Act and will not safeguard the public from misuse. The four criteria for detention does not feel as though it will be easy to detain someone for early intervention,I believe it is good practice to have a care plan written and agreed within five working days I am pleased to see it will be in a standard format. However, this will fundamentally change how care is prescribed and care needs to be taken that this is not perceived as a paper exercise. The review of a change in care plan by the tribunals is to be carefully thought through and not left to the interpretation of the tribunal. The loss of the Mental Health Act Commission is a retrograde step and if they go into the health commission then they still need to see patients detained under the Act on a regular basis. The Mental Health Act Commission has ensured that standards in the trust have been raised and we have worked together on this. Patients detained at home is a very worrying concept as it is aimed at the revolving door patient could lead to year of poor assessment and treatment and the patient being denied a comprehensive in patient assessment. The most concerning area is the appeals process and the automatic tribunal at 28 days and if a care plan is substantially changed. This will increase the workload of all staV to an unrealistic level and could result in patients being taken oV detention at 27 days. It is unrealistic to rely on retired consultants to undertake this work as it is not the knowledge of the consultants that is in question but the fact they are no longer in clinical practice and will not be aware of how the client groups expectation changes as society changes and this happens quite quickly. The tribunal oYce cannot cope at the moment. They have no concept that staV do not always work full time and have commitments outside the workplace, have holidays or are on study leave and cannot attend on the day they insist the tribunal takes place. They will need to work with trusts to arrange alternate days and class these as unreasonable excuses for not attending. The trust cannot keep cancelling clinics for tribunal dates can not see any advantage of the system proposed. What the trust has seen with the 1983 Act is staV have got better at the use of the Act and it would be a retrograde step to change so radically. October 2004

Memorandum from US NETWORK (All Wales User Survivor Network) (DMH 288) My name is JeV Williams. I am the Chairman of the US Network (All Wales User Survivor Network). We are a Mental Health organisation that covers all Wales with a remit of inﬂuencing policy within the Welsh Assembly Government to address the mental health users concerns of poor treatment and social exclusion from the statutory services. I am also the Chairman of the Implementation Advisary Group to the Welsh Assembly Government. The issues that I bring are not my own but those of our members who total over 650. They suVer from a broad section of mental illnesses that can range from mild depression to the severely mentally ill. I have been involved with the network on a voluntary basis for over 10 years. In the last four years we have secured a protocol agreement with the Welsh Assembly Government and a charter for Users and Carers called “Stronger in Partnership”. This is a Policy Implementation guidance document that involves service Users and Carers in the design, planning, delivery and evaluation of mental health services in Wales. Ev 1026 Joint Committee on the Draft Mental Bill: Evidence

1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principals appropriate and desirable? Of course they are not clear. We talk of inclusion not exclusion but on these basic principles alone we are not included only informed. No service has the right to play god with peoples lives and abuse the patient in any way, therefore these principals are neither appropriate nor desirable. 2. Is the definition of Mental Disorder appropriate or unambiguous? Are the conditions for treatment and care under compulsion suYciently stringent? Are the provisions for assessment and treatment in the Community adequate and desirable? The definition of mental disorder is not appropriate or clear because all disorders are being categorised as one single illness and will eventually be treated in the same medical model, this again is not adequate or desirable. 3. Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and contained in the draft bill for public safety on the other? All humans are individuals in their own right and should be treated as such. Public safety is only breached when services break down or are withdrawn. The media thrive on sensationalism. 5. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient and clear? Are there any important omissions in the bill? The Draft Bill will struggle to succeed throughout Wales because of lack of resources these should be looked on as omissions. 6. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the Draft Bill? In the principality the same as anywhere else, without adequate resources one cannot maintain appropriate services. Is every person automatically going to be put on an enforced treatment order? 7. Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, suYcient? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? The safeguards cannot be adequate because abuse is still raising its ugly head. My personal views on ECT and psychosurgery are that I think it is not only abuse of human rights but also a barbaric practice, but after looking at a survey that was conducted in Wales the conclusion that was reached was 50% for and 50% against. With these findings I believe I do not have the right to condemn or condone this treatment. 8. Is the balance struck between what has been included on the face of the Draft Bill and what goes into Regulations and the Code of Practices right? The balance struck between the Draft Bill and the code of practice is on the side of the services. The users have not been included meaningfully in the production of either of these documents. 9. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? The Draft Metal Health Bill and the Mental Capacity Bill can never be adequately integrated unless suYcient resources are forthcoming. 10. Is the Draft Mental Health Bill in full compliance with the Human Rights Act? The Draft Mental Health Bill has made all the right noises to include the Human Rights Act but stopped short before inclusion could be incorporated. 11. What are likely to be the human and financial resource implication of the Draft Bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately? Will suYcient resources be available to cover any costs arising from implementation of the Bill? I don’t think that the Government has analysed the eVects of the Bill adequately, because in the Principality there is not only a shortfall of human resources but also the Bill will not be implemented without any financial backing to increase all services including voluntary sector. October 2004

Memorandum from the Religious Society of Friends (Quakers) (DMH 289)

Introduction 1. The Religious Society of Friends (Quakers) has long-standing experience of working with people who have suVered from emotional distress. We consider that the values of Trust, Autonomy, Consent and Truth need to underpin mental health legislation and that everyone has the potential for psychological growth and development through loving relationships. No one is born evil. Good mental health is rooted in loving and supportive relationships and cannot be considered in isolation from its social and cultural context. The Joint Committee on the Draft Mental Bill: Evidence Ev 1027

Religious Society of Friends has previously made submissions to the joint Home OYce/Department of Health consultation paper on “Managing Dangerous People with Severe Personality Disorders—Proposals for Policy Development.” 2. We consider that there is a need for a sea-change in culture regarding mental health. We remain concerned at the extent to which compulsion rather than a right to mental health services is the cornerstone of the present Draft Bill. 3. This submission will not seek to address the whole range of the Bill and is conﬁned to your question three: “Does the draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?”

Human Rights 4. We have serious concerns about the human rights compatibility of aspects of the Bill. Of the 10 Declarations of Incompatibility under the Human Rights Act that have so far been made and upheld in the Higher Courts, three relate to mental health legislation. [R (On the Application of H ) v London and North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening ) [2001] EWCA Civ 415 , breach of Article 5 (1) and (4), R (D) v Secretary of State for the Home Department [2002] UKHL 46, breach of Article 5 (4) and R ( On the Application of FM ) v Secretary of State for Health [ 2003] ACD 389 ]. In the area of mental health, it is vital that adequate checks and balances are in place especially when people who may have committed no criminal oVence are nevertheless to be detained, whether for their own good or that of others. Any legal framework for treatment needs to ensure that the means of compulsion is proportionate to the ends that it serves of personal and public safety. 5. We are particularly concerned at the preventive detention of so called “untreatable” “personality disordered patients” where they have been neither tried nor convicted of a criminal oVence. In an appendix to the Joint Committee on Human Rights’ Twenty Fifth Report,61 the former Minister of State at the Department of Health, Jacqui Smith considered that powers for the preventive detention of dangerous oVenders in Mental Health (Public Safety and Appeals) Scotland Act 1999 were ECHR compatible, citing the House of Lords decision in R v Secretary of State for Scotland 1999 SC (HL). As acknowledged by the Minister however the “power of detention applied only in respect of people who had been convicted of serious criminal oVences who were being treated for mental disorders and were restricted patients.” These limitations do not appear to apply in relation to the present Draft Bill, which allows for more extensive powers including the preventive detention of patients who have not had contact with the criminal justice system. It is hard to see how such powers would be compatible either with Article 5 ECHR or with the spirit of proportionality that informs the Convention. 6.1 We welcome certain aspects of the revised Draft Bill that seek to maintain a sensitive balance between human rights and public safety. In particular we welcome: 6.2 The right of patients with capacity to refuse Electro Convulsive Therapy; 6.3 The requirement for individual written care plans for compulsory treatment; 6.4 The greater choice of nominated person in the place of nearest relative once a decision has been made to detain; 6.5 The strengthening of safeguards in respect of children who are being subject to treatment on the basis of parental consent. 6.6 Rethinking of previous suggestions that compulsory treatment could be provided in prison. 7. We remain concerned at the extent to which the Bill is premised on a principle of compulsion at the expense of a commitment to a “right to treatment.” By expanding the deﬁnition of both “Mental Disorder” and “Treatment” the Bill provides the scope for the compulsory detention of a far wider group of people for longer periods of time than is the case under MHA 1983. The Bill also provides for an open-ended compulsion for treatment in the community and has the potential for co-opting psychiatrists into the role of public control.

Definitions within the Bill 8. Clause 2 (5) deﬁnes “mental disorder” as: . . . an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain: 9. Clause 2 (7) includes in the deﬁnition of treatment: (a) nursing; (b) care; (c) cognitive therapy, behaviour, counselling or other psychological intervention;

61 11 November 2002. Ev 1028 Joint Committee on the Draft Mental Bill: Evidence

(d) habilitation (including education, and training in work, social and independent living skills); and (e) rehabilitation (read in accordance with paragraph (d)). 10. The breadth of the definition of “mental disorder” and the more expansive definition of “treatment” beyond its conventional psychiatric sense to include “rehabilitation” and “training in work” expands those detainable beyond the scope of MHA 1983. The proposed definition opens the prospect that “personality disordered” people could be subject to preventive detention even where the personality disorder is not serious and they have been neither tried not convicted of a criminal oVence. The widening of the current role of Approved Social Worker to include psychiatric nurses further erodes independent safeguards against detention. While high profile cases such as that of Christopher Bland have been cited in support of the need for stronger powers for the detention of dangerous patients, a more coercive mental health system is not necessarily the best guarantee of public security. Christopher Bland had in fact recently requested and been refused treatment. The more coercive a system becomes the less likely it is that potential patients will seek help. The most pressing need within the Mental Health system is not for greater compulsion but for greater resources and for a right to treatment. Greater use of compulsion can be no substitute for adequate public funding and high quality public education in relation to mental health. 11. We also detect a degree of circularity in the definition in Clause 2 (5). The test of disability or disorder of the mind or brain is presumably evidence of an impairment of or a disturbance in the functioning of the mind or brain. But who is to judge the extent to which the subject’s mind or brain is impaired or disturbed? In the absence of any completely objective test for mental impairment or disturbance, we should be very careful indeed about the powers that we delegate to practitioners in the mental health field. Associated with this is the concept of “cure”. It is well known, for example, that episodes of clinical depression can reoccur: is a person who was treated for clinical depression ten or twenty years ago and who has not experienced a relapse still suVering from a disability or disorder of the mind or brain? We must be very careful indeed before curtailing the liberty of someone simply on suspicion. 12. We are particularly concerned at the philosophy inherent in the concept of personality disorders that some people are untreatable. We do not consider that medicine should be used as a substitute for criminal justice. We consider that dynamic assessment procedures can be for safer and more therapeutic than a static approach to the assessment of patients. It cannot be right that people who have not been convicted of a criminal oVence and are not considered treatable, in the conventional medical sense, should be liable to indefinite treatment under Mental Health Act powers. 13. Clause 9 of the Bill provides that each of the following criteria should be met for compulsory treatment: 9 (3) . . . the mental disorder is of such a nature or degree to warrant the provision of medical treatment to him. (4) . . . that it is necessary— (a) for the protection of the patient from— (i) suicide or self-harm; or (ii) serious neglect by him of his health or safety, or (b) for the protection of other persons. 14. The disjunctive construction “nature or degree” in relation to mental disorder, further expands the breadth of those who could be considered “sectionable.” The intention of providing powers to treat people for their own health or safety, even where such people clearly have “capacity to consent” undermines the principle of informed consent. The power to provide for compulsory treatment “for the protection of other persons” without any qualification of the level of that risk sits uneasily within a framework of medical ethics. 15. The increased use of compulsion to cover those living in the community conflicts with the clinical principle of consent. While we welcome an approach to mental health that seeks to adopt the least restrictive alternative, it is important that this must be genuinely voluntary and it would appear that the safeguards for compulsory treatment in the community are inadequate. Where compulsion is used to ensure a patient‘s taking of medicine to prevent readmission to the hospital, the patient is faced with a reverse onus of proof for ending the compulsory order, an onus that would be eVectively impossible to discharge.

Free Treatment

16. While free treatment is current available to those discharged under MHA 1983 so long as it is required, Clause 68 of the Draft Bill would limit this to a period of six weeks. It is invidious that treatment in the best interests of the patient should be unavailable free of charge if it is likely to prevent a relapse of a patient and his/her subsequent readmission to hospital. Joint Committee on the Draft Mental Bill: Evidence Ev 1029

Prison 17. It is axiomatic that imprisoned patients retain all those rights that are not taken away as a necessary result of their imprisonment [Raymond v Honey [1983] 1 AC 1]. There are still for too many people in prison whose mental ill health goes unrecognised and far too many voluntary patients whose standard of care falls substantially below that in the NHS. A right to good quality health care cannot be taken away simply by virtue of detention.

Recommendations 18. We would recommend in particular: — Rethinking of the grounds for coercion on the basis of a philosophy that compulsory treatment should always be a last resort; — An emphasis on the increasing availability of treatment without stigma as medical right; — Right for after care treatment as long as is necessary; — Greater resources for preventive work especially with young oVenders and at the earliest age. October 2004

Memorandum from the Manic Depression Fellowship (DMH 290) MDF is a national user led organisation for all people who are aVected by manic depression (bipolar disorder). Set up in 1983, we have 4,500 members, a network of 126 groups across England and Wales, and we provide information and support, including our innovative user led and user facilitated Self Management Training and Steady courses, to all those who are aVected by the condition. MDF is one of the original core members of the Mental Health Alliance, recognising the importance of working with others in the ﬁeld to develop a response to the Government’s proposals for new mental health legislation. We support the Mental Health Alliance submission to the Joint Scrutiny Committee. Although we had some serious concerns with the original Expert Committee report, on the whole we welcomed the proposal to introduce new mental health legislation. In particular, we were heartened by the introduction of the concept of capacity as a part of the assessment for compulsion; the recognition of advance agreements; and the involvement of advocates. We have been successively disheartened by the various responses to the Expert Committee Report, and the draft bills. Our position following the publication of the latest draft Mental Health Bill is that given the choice between the current draft and the Mental Health Act 1983, we would prefer to stay with the 1983 Act (as amended to comply with the Human Rights Act) because we feel that this better serves the needs of our members. We are profoundly disappointed to make this statement.

1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? No, it is not. A guide is given about what the principles should cover, which in itself is limited in scope, and a power is given for any of the principles not to apply to particular categories, which does not support the notion of “unambiguous basic principles.” There should be a statement of general principles on the face of the Bill. It is insuYcient to have these to a code of practice; the general principles should be fundamental to the content of the Bill and consequently need to be enshrined within the Bill to ensure that its provisions are consistent—otherwise the code of practice must ﬁt the provisions of a published Act. The general principles must apply to everyone who is subject to the Act; there should be no power to disapply a general principle. Please see the Mental Health Act submission for a list of principles that any statement should include in the Bill.

2.a. Is the deﬁnition of Mental Disorder appropriate and unambiguous? The deﬁnition of mental disorder is too broad. As it stands, it could include people whose mental functioning is impaired, but who do not have underlying mental health problems. Exceptions need to be made clear to ensure that practitioners are given suYcient guidance to focus on underlying mental health problems in making assessments for compulsion. The Manic Depression Fellowship supports the exceptions proposed by the Mental Health Alliance in their submission. Ev 1030 Joint Committee on the Draft Mental Bill: Evidence

2.b. Are the conditions for treatment and care under compulsion suYciently stringent? No, the conditions for treatment and care under compulsion are not suYciently stringent. The criteria for compulsion are discriminatory, coercive and too broad. They are discriminatory because they treat people with mental health problems diVerently to those with physical health problems. In the words of the Mental Health Alliance, “People who are physically ill are not detained in hospital against their will because they refuse to take the treatment that should improve their condition; neither should people with mental illness.” If a person has capacity to make a decision about his/her treatment, he/she should be allowed to do so. They are coercive because they impose compulsion on one category of patient regardless of their willingness to take treatment. If people engage with their treatment, they are far more likely to continue with it; if treatment is imposed, people are far more likely to resent it and consequently try to avoid it. It is bemusing that Government apparently wants to alienate those whose positive engagement would do much to reduce risk. They are too broad because: — mental disorder has a very broad definition in the bill; — medical treatment has a very broad definition in the bill; — “for the protection of other persons” is not qualified or clarified in any way so the breadth of scope is undefined and could be interpreted very loosely; — the fifth condition is likewise very loosely worded, so that it is unclear what the purpose of “appropriate” medical treatment is, and therefore makes it diYcult for mental health practitioners to determine what it is meant to achieve—will it stabilise a person’s condition? Will it improve it? What does “all other circumstances of his case” mean? What bearing does that have on the appropriateness (or otherwise) of any medical treatment? Finally, the clear emphasis of the conditions for compulsion appears to be on safety of others, rather than the well-being of people with serious mental health problems as evidenced by c. 9 (8), “a determination as to whether a patient is at substantial risk of causing serious harm to other people is to be treated as part of the determination as to whether all of the relevant conditions appear to be or are met in his case.” This reinforces the already considerable distrust that people with mental health problems feel towards the proposed new legislation, that their needs are not paramount, that fears about the well-being of others are more important, and that they remain second class citizens in the eyes of the state. MDF believe that no one should be forced to have treatment against their will if they have capacity. Compulsion should only be used where it is necessary to eVect treatment; and the person lacks capacity; and there is a risk of serious harm to the person himself or to others if treatment is not given. If treatment is given under compulsion, there should be a therapeutic benefit for the patient ie. an improvement in the mental disorder, or preventing or reducing deterioration in the person’s mental or physical health.

2.c. Are the provisions for assessment and treatment in the Community adequate and suYcient? No, they are not. There is much concern amongst our membership, and service users in general, about the potential to be subject to a non-residential treatment order (NRO). These concerns arise from the fear that personal autonomy outside hospital will be eroded, so that disagreements with mental health professionals about treatment can now be overridden by use of an NRO. This in turn will reinforce the perception of being a second class citizen, one who does not have the same rights and choices as other members of society; and that defensiveness and the blame culture will lead mental health professionals to use NROs as a means of protecting themselves in case anything should go wrong. If a person is seriously unwell and is unwilling to take treatment to improve his/her condition, hospital provides a contained and controlled environment where that person’s condition can be monitored, managed and improved. It is diYcult to see how an NRO would provide that person with the best support. If a person is seriously unwell, but wants to take treatment to improve his/her condition, there is a choice between hospital and community but (1) that does not involve compulsion and (2) it rests on what the person would prefer and the assessment of the mental health professionals, in consultation with those who know the person well. If agreement cannot be reached or the situation deteriorates compulsion may then need to be considered. However, treatment under compulsion should always be in hospital, because it should only ever concern those who are seriously unwell and who present a high risk of serious harm to themselves or others. MDF does not support any compulsory treatment in the community. Manic depression is an episodic condition, which means that people experience episodes of mania or depression interspersed with periods of stability (which may last for years). Our members are understandably concerned that they could be subject to compulsion in the community at times when they are well, as a precaution against an episode in the future. This will militate against individual eVorts to live successfully with manic depression because personal autonomy is eVectively removed. A key part of our self management programme is taking responsibility for your condition; an NRO takes this away. Joint Committee on the Draft Mental Bill: Evidence Ev 1031

The Mental Health Alliance has carried out an analysis of the evidence about the eYcacy of community treatment orders in other jurisdictions, and we refer you to their submission for more detailed information about this. However, our understanding that one of the key pre-conditions necessary for compulsory treatment in the community to have any beneﬁt for users is for the appropriate services to be high quality, well developed and widely available. This is certainly not the case in England.

3. Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? No, it does not. We have said above that the Bill is discriminatory against people with mental health problems. It lacks reciprocity, creating scope for many more people to be subject to compulsion whilst failing to ensure that they will be supported to make their beliefs, views and judgements known and taken into account as a part of the clinical decision-making process. To achieve a more eVective balance: — Advance agreements should be included in the bill and accepted as a part of the clinical decision- making process. — People should have access to an independent advocate if they are: liable to compulsory treatment; at the point of examination for assessment; under assessment; during periods of compulsory treatment; experiencing a mental disorder but do not need the exercise of compulsion; under aftercare arrangements. — The nominated person should have enhanced powers, similar to those of the nearest relative under the current 1983 Act. Health professionals should not be allowed to judge the suitability of the nominated person and impose their own choice. We support the Mental Health Alliance recommendations in connection with the nominated person. The concerns for public and personal safety from people experiencing mental health problems are disproportionate to the reality. Taylor and Gunn’s research showed that the public are at risk from 600-700 oVences per year recorded as homicide, compared with about 40 homicides by the mentally ill per year (and that number was shown to have reduced since the 1950s). Moreover, the common underpinning factor in homicide by the mentally ill has been service communication failures, not the inability or failure to use compulsion. The emphasis in the Bill on safety and the protection of others simply perpetuates the myth that there is a link between dangerousness and mental health, and reinforces the stigma faced by people living with mental health problems.

4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient and clear? Are there any important omissions in the Bill? We agree with and refer you to the Mental Health Alliance submission on this question. However, we particularly would like to focus on the omission of advance agreements. There is a strong interest within our membership in using advance agreements as a means of communicating, when well, wishes and needs for treatment and wider care issues when unwell. These are as wide-ranging as treatments, whom should be notified about an episode and in what way, who looks after any children, pets, pays any bills etc. Our highly successful self management programme (recognised as a model of excellence in the Chief Medical OYcer’s Expert Patients Report) uses advance agreements as a means of planning for the future. A part of their construction is that the agreements must be communicated with relevant mental health professionals, and one of the many benefits of the programme is that participants often report improved communication with their psychiatrists, which in turn results in greater concordance with medical treatments. This is consequently one example of how supporting people to work in partnership with healthcare professionals is positive for both parties. Including advance agreements in the Bill as a part of the clinical decision-making process will give service users greater confidence that their interests will be respected under compulsion. Properly supported, they could help to build positive partnerships with mental health professionals, and consequently help to reduce levels of compulsion because interventions will be made on a timelier basis.

5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the Draft Bill? We support and refer you to the Mental Health Alliance submission on this question. In particular: — — We do not agree that the Tribunal must have a clinical member, because that expertise can be provided from the Expert Panel. The presence of a clinical member may mean that the evidence at the Tribunal may be heavily weighted towards the medical model of mental health care — Mental Health Tribunals should explicitly include people who have experienced mental health problems to ensure that this valuable perspective is obtained. It may also help to build trust with service users that they are respected as individuals and their views will be taken into account. We know of someone with a mental health diagnosis, who worked at a senior level in a mental health Ev 1032 Joint Committee on the Draft Mental Bill: Evidence

charity, who applied to sit on a mental health tribunal and whose application was turned down without interview on the grounds of insuYcient experience. Without a speciﬁc inclusion, we risk perpetuating this kind of response. — care plans should be comprehensive, including all treatments and relevant social issues.

6.c. Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? No, there are not. We welcome the fact that ECT cannot be used for someone with capacity if s/he refuses. However we are concerned that a capacitous refusal can be overturned if the situation is classified as an emergency. There may be an argument for this if it is “immediately necessary to save his life” (c.182 (2), but not otherwise. In particular the inclusion of “alleviate serious suVering by him” as an emergency condition is worryingly wide We believe that the values of advance agreement come strongly to the fore here. Advance agreements can set out clearly whether and in what circumstances someone would be prepared to accept ECT (including naming someone that they trust to make a decision for them, if they are unable to do so themselves). This will support a clinical decision-making process where someone lacks capacity. We are concerned that the age limit over which ECT can be given is too low. We support the Mental Health Alliance recommendation that 18 should be the lowest age, given that young people have not necessarily completed their physical development at 16. We do not believe that psychosurgery—type A medical treatments—should be permitted at all, since there is no evidence base as to its purpose or eVectiveness. If it is included as an aggressive treatment, it should only be given to those with the capacity to make the decision who consent. It should never be given to anyone who lacks capacity. We are concerned that any other aggressive treatments are not defined in the Bill and are simply categorised as “type B . . . as may be specified as such in regulations.” We believe that doses in excess of British National Formulary limits, and cocktails of medications (ie combinations of 4 or more medications) require additional safeguards before they can be used.

7. Is the balance struck between what has been included on the face of the Draft Bill, and what goes into Regulations and the Code of Practices right? We are concerned that the Bill is insuYciently precise in deﬁning key concepts, and that too much that is vague is being for deﬁnition in the Code of Practice. We refer to and support the Mental Health Alliance submission here.

8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? The Draft Mental Health Bill does not appear to be well integrated. The Mental Health Bill should “sit on top” of the Mental Capacity Bill, but given that the Mental Health Bill does not consider capacity at all, or the implications for someone who is subject to the Mental Capacity Bill, or for either, what happens for people whose capacity ﬂuctuates, which can certainly be the case for our members, integration does not appear to be suYcient. There appear to be grounds for confusion for professionals and service users in their combined operation.

9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act? We do not have the expertise to answer this question, but we understand that there may well be compliance issues for the Draft Mental Health Bill, in particular concerning the risk of preventive detention and the lack of counterbalancing rights for people who are subject to compulsion.

will undoubtedly create tensions. It is significant that so many professional bodies have chosen to join the Mental Health Alliance, to demonstrate that the concerns about the Bill are as much about the impact on the professionals as they are on the people who are aVected by the new legislation. We find it diYcult to see that the expanded Tribunal system will be sustainable, given the diYculties with the current, narrower Tribunal system. Consequently, there are grave concerns about the overall workability of the new system, given that Government has not identified how any shortfalls in human resources will be met. Fundamentally, though, we have to come back to people with mental health problems, who will be caught by the provisions of the Bill. Already a vulnerable and stigmatised group, who are currently let down through poor, patchy and under-resourced service provision, the proposals in this Bill appear to do nothing to redress the balance. Instead, the limited resources in the system are likely to be diverted to meet the proposed system of compulsion, when the cheaper and more supportive option is to invest in primary and secondary care to ensure that fewer people become so ill that compulsion is necessary. Whatever legislation comes in now is likely to be in operation for around 20 years. Parliament needs to consider very carefully the full impact of the proposals both on those it will directly aVect, and on the stigma attached to mental illness. Currently one in four people will experience mental health problems at some stage in their lives, and the incidence of some conditions, eg depression, are predicted to rise, so the numbers of people who could be aVected by this legislation are huge. The strength and breadth of the opposition to the proposals from both service users and healthcare professionals alike is sending a very clear message to Parliament as legislators. We urge you to take notice of it. October 2004

Memorandum from the Citizens Commission on Human Rights (DMH 291)

Introduction CCHR shares the view of many of those contributing evidence to the scrutiny Committee that in its present form the draft Mental Health Bill, read together with the Mental Capacity Bill, does not go far enough to protect the human rights of patients. We urge the Committee to make, in particular, two recommendations which will signiﬁcantly improve the Bill in relation to human rights. 1. The right to decide whether to undergo any medical treatment is a fundamental human right protected by Article 8 of the European Convention on Human Rights. This right is respected in connection with the treatment of non-mental medical conditions. The Bill should incorporate the same standards for mental treatment, whereby the person has the right to decide whether to undergo mental treatment. Moreover, the right to make a “living will” or advance decision, at a time when a person has mental capacity, should be unequivocally extended to all medical treatment, including all mental treatment. 2. The right to have access to proper medical treatment and a correct diagnosis is also a human right (see for example Article 35 of the Charter of Fundamental Rights of the European Union). Many studies have shown that unless patients are given a full medical examination, including tests for physical diseases, toxic poisoning, allergies or dietary deﬁciencies, a misdiagnosis that they have a mental disorder can result along with unnecessary psychiatric treatment. Accordingly the Bill should provide for all patients to be given a comprehensive physical examination and medical tests to rule out underlying physical conditions being misdiagnosed as psychiatric in nature.

The Right not to Consent to Mental Treatment Unlike other areas of medicine many psychiatric treatments remain highly controversial. If a patient has a physical medical condition or deficiency, it can and should be treated medically or nutritionally. But the attempt to cure a mental condition using physically invasive means (such as destroying healthy brain tissue) can often cause long-term harm. The history of psychiatry over the last two hundred years is one of many new treatments being discovered and heralded as scientific advances, and being widely adopted. Then subsequently being abandoned when objective studies concluded that they actually caused more harm than good, and were not in fact supported by any real science. For example, in the nineteenth century, “spinning therapy” was adopted. This involved strapping a patient horizontally to a board that could be mechanically spun at great speeds. Doctors theorised that madness was caused by too little blood circulation in the head, and that by placing the patient with his or her feet at the board’s fixed point of motion, blood would rush to the brain. Another treatment involved immobilizing a patient in something called a “tranquilizer chair”. They were strapped into the chair so that they could not move at all for long periods of time (sometimes days and weeks), and frequently doused with ice cold water. Ev 1034 Joint Committee on the Draft Mental Bill: Evidence

Treatments in the twentieth century have largely concentrated on making patients more docile and manageable. The origin of mental treatments which involve the deliberate destruction of brain tissue, such as ECT and lobotomies, was the philosophy that it is better to be a contented imbecile than a schizophrenic. Ironically, the psychiatric treatments which have consistently enjoyed the most success are those that have not involved dramatic attempts to interfere physically with patients’ brains, but treatments involving a far simpler and gentler approach. According to a 1992 report by the World Health Organisation, studies showed a far better success rate in treating schizophrenia in developing countries, where there was little use of antipsychotic medication, than in developed countries where the use of antipsychotic medication was the norm. Moreover many antipsychotic drugs used to treat mental patients in the past are now considered too harmful to use. And even the use of many current psychiatric drugs is considered controversial, because of unwanted side eVects. Mental problems or diYculties are often the result of exhaustion and stress. The best therapy is frequently simply rest and good food, in a peaceful environment removed from the source of stress. Given the controversy surrounding psychiatric treatments such as ECT, surgery designed to destroy brain tissue, and neuroleptics and other psychiatric drugs, it is not unreasonable that many people would prefer not to have such treatments, and must be granted the right to refuse them. Moreover, it is a fundamental human right to be able to decline potentially harmful treatment. Additionally, people must have the right to decide on the nature of future mental health treatment should they in any way become incapacitated, hospitalised or simply make a predetermined decision about future mental treatment, in the same way individuals are able to refuse certain medical treatments. Therefore, there should be a simple means of registering a decision to opt out of certain mental treatments. This could be achieved by allowing people to send a letter or prescribed form to a national registry, where advance decisions can be recorded against names and national insurance numbers. Where an advance decision has been so registered a person could carry a card to alert others to the fact.

The Right to Proper Medical Treatment and Diagnosis Numerous studies by medical research teams and psychiatrists have investigated the relationship of underlying physical conditions being misdiagnosed as mental illness. These studies have shown that unless patients are given a full medical examination, including tests for physical diseases, toxic poisoning, allergies or dietary deficiencies, a misdiagnosis that they have a mental disorder can result. Here are a few examples which demonstrate the importance of this. In one study, Dr Poldinger and colleagues from Basle University in Switzerland gave depressed patients either an antidepressant or a nutrient called 5-HTP (hydroxytryptophan). 5-HTP outperformed the drug on every measure, resulting in greater improvements in their depression, anxiety and insomnia. Psychiatrist William H Philpott, now a specialist in nutritional brain allergies, reported that symptoms resulting from B12 deficiencies ranged from poor concentration to stuporous depression, severe agitation, and hallucinations. Evidence showed that certain nutrients could stop neurotic and psychotic reactions and that the results could be immediate. Dr. Giorgio Antonucci used physical examinations and standard medical treatment to help schizophrenic and “incurable” patients who had been restrained for decades at Imola psychiatric asylum in Italy. He taught his patients living skills, how to read and write, how to work and care for themselves, and organised concerts and trips to Rome as part of their therapy. Subsequently, many were discharged from Imola to lead successful lives. A study by Hall, Popkin, Devaul, Faillace and Stickney of 658 consecutive psychiatric outpatients receiving careful medical and biochemical evaluation, defined an incidence of medical disorders productive of psychiatric symptoms in 9.1% of cases. The most frequent presentations were of depression, confusion, anxiety, and speech or memory disorders. The presence of visual hallucinations was believed to indicate medical etiology until proved otherwise. Major illnesses presenting with psychiatric symptoms in order of frequency were infectious, pulmonary, thyroid, diabetic, hematopoietic, hepatic and CNS diseases. Forty- six percent of these patients suVered from medical illnesses previously unknown to either them or their physician. A study reported by Dr Koranyi after a careful screening of 2,090 psychiatric clinic patients showed that 43% of this population suVered from one of several physical illnesses. 46% of the physical illnesses remained undiagnosed by the referring source. Among others, diabetes mellitus was a frequently overlooked diagnosis and proved, particularly to produce emotional disturbances. Physicians other than psychiatrists missed one- third and psychiatrists one-half of the major medical illnesses in patients they referred. In another study of 100 mental patients, who were intensively evaluated medically, 46% were thought to have medical illnesses that directly caused or greatly exacerbated their symptoms and were consequently responsible for their admission, while an additional 34% of the patients were found to be suVering from a Joint Committee on the Draft Mental Bill: Evidence Ev 1035

medical illness requiring treatment. A diagnostic battery of physical, psychiatric, and neurologic examinations, coupled with a 34 panel automated blood analysis, complete blood cell count, urinanalysis, ECG, and sleep deprived EEG established the presence and nature of more than 90% of the illnesses detected. Copies of these studies can be provided to the Committee. In simple terms, the studies show that the more extensive the medical screening in a psychiatric setting the higher the percentage of medically induced psychiatric problems can be found. These conditions must be correctly diagnosed and then medically treated, as they are medical abnormalities or illnesses. It is a basic human right to have the correct diagnosis and treatment. The Bill should therefore specify that a full searching medical examination be given to any patient to rule out physical causes of mental or emotional diYculties.

Conclusion All human beings are entitled to basic human rights. With these two simple and sensible recommendations people who have the misfortune of suVering from mental problems, do not suVer from the double misfortune of being deprived of these basic human rights. We therefore urge the Committee to adopt these recommendations. October 2004

Memorandum from the College of Occupational Therapists (DMH 292)

Introduction — The College of Occupational Therapists (COT) is the national professional body representing over 27,000 occupational therapists and support staV across the UK. This response to the Submission to the Pre-legislative Scrutiny Committee on the Draft Mental Health Bill (2004) consultation document has been developed in collaboration with the College’s specialist section in mental health (AOTMH). — Occupational Therapists are one of the main professions whose core skills and knowledge are applied to the purpose of rehabilitation, habilitation and occupation, and it is within this context that occupational therapists work with people with mental health and substance abuse problems throughout the United Kingdom. — The College has had signiﬁcant involvement with NICE and produced evidence for guidelines on a range of Mental Health Disorders. — The College of Occupational Therapists is a core member of the Mental Health Alliance. This response aims to complement the points made by the Alliance and pays particular attention to the impact of the draft bill to occupational therapists working in mental health.

Comments Particularly Requested for the Legislative Scrutiny Committee are:

1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? 1.1 Principles and values in mental health practice are identiﬁed as essential for sound mental health practice (Woodbridge and Fulford 2004). However, it is important that these are transparent and therefore need to be placed in legislation rather than Code of Practice that could be over-ridden under certain circumstances. The College has concerns that the Bill is rooted in the principles of compulsion rather than provision of quality care for vulnerable people.

culture of the organisation that practitioners work in. This proposal could lead to an overly cautious approach, and leave little opportunity to demonstrate any change in relation to risk where treatment orders are ongoing. 2.3 Provisions for assessment and treatment in the Community: The determinants for this process need to be much clearer in relation to the conditions for compulsion (Ch 1 Clause 9). 2.4 Non-resident orders must only be applied where there is evidence that it would reduce compulsory admissions to hospital. This is favourable compared to a compulsory resident order as it can enable people to maintain their routine and social network as a non-resident. These factors need to be made explicit within determinations for a Non-resident order in the Code of Practice. 2.5 If a person is a subject to either assessment or treatment in the community one of the conditions is that treatment is available. It is important that where it is available is also accessible in terms of travel, time, language and physical access. What obligation is there on service providers for this? This will have resource implications.

3. Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 3.1 We are concerned that the proposals within the Draft Bill are not balanced. The Draft Bill may discourage people from seeking help from the mental health services for fear of hospitalisation. The Draft Bill is contradictory to what the Government is aiming towards in tackling stigma, discrimination and social exclusion of people with mental health problems. The Bill is based on the principle of compulsory care to protect the public from risk, rather than any attempts to manage risk through adequate community services.

4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? Are there any important omissions in the Bill? 4.1 Primary care 4.1.1 There is little comment about the role of primary care within the Draft Bill. It is not clear whether it has any role at all in regard to compulsory assessment or treatment in the community. Primary care also has an important role in access to physical health care and therefore must be included where care in the community is considered. 4.2 Aftercare 4.2.1 Free aftercare arrangements are available for people currently held under Sections 3, 37, 47 and 48 of the Mental Health Act under Section 117 until it is agreed by the local authority and health provider that it is no longer required. The proposals to curtail this to a maximum of six weeks represents a major loss of service for people who may have been treated compulsorily for many months. 4.2.2 The suggestion that services need only be provided free for six weeks does not reflect delivery of care based on the needs of service users. Where a person has to be placed on a waiting list for interventions, they may need to pay for it if they have to wait beyond six weeks. It is important that the objective of mental health services is to provide the appropriate treatment for the individual to return to a satisfactory socially inclusive life. 4.2.3 It is also of concern that if people do not attend aftercare following the six week period, they may then become subject to a non-resident treatment order to ensure attendance. 4.2.4 It is important that specific considerations of aftercare are extended for longer than six weeks where a person has an organic condition, such as dementia. The resource is significant to support this Bill and as such the College would wish to see inclusion of a duty to provide suYcient numbers of approved doctors and AMHPs including occupational therapists. 4.3 Reviewing of status 4.3.1 It is suggested that at all times the clinical supervisor must review the status of a person subject to compulsory powers. This review needs to be explicit about frequency and representation.

5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the Draft Bill? 5.1 Expert panel 5.1.1 Where an expert panel is consulted it is important that they can address all aspects of “treatment” as deﬁned in Chapter 1, clause 2, section 7. This is an important safeguard to ensure that all areas are under consideration for the beneﬁt of the service user. 5.1.2 Expert panel must provide a balance of medical and social opinion in regard to someone’s care. Joint Committee on the Draft Mental Bill: Evidence Ev 1037

7. Is the balance struck between what has been included on the face of the draft Bill, and what goes into Regulations and the Code of Practices right? 7.1 No: see comments in 1:1 and 2:1.

8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? 8.1 There do not appear to be clear links between the two Bills (or the Scottish Mental Act or Incapacity Bill). The incapacity measures previously included in the Mental Health Bill for informal patients lacking capacity to consent to treatment have not been represented in the Mental Capacity Bill. These positive measures should be reinstated in full if the human rights contraventions they were designed to prevent are likely to continue. The College has concerns that the greater use of compulsion and lack of incapacity measures for informal patients lacking capacity to consent to treatment may contravene human rights legislation.

9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act? 9.1 See above.

10. What are likely to be the human and financial resource implications of the Draft Bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill? 10.1 There are a number of concerns about the human resource implications for occupational therapists in regard to the draft bill. The Bill’s Regulatory Impact Assessment (RIA) workforce implications are underestimated and will lead to recurring problems. 10.2 Approved Mental Health Professional 10.2.1 If occupational therapists take on the new AMHP role it is important that the performance of the role is recognised and approved by the HPC, the statutory regulator. 10.2.2 The role of AHMP must be performed by professionals with suYcient experience and expertise in mental health practice. Ideally, this should be an optional rather than compulsory responsibility but that will have resource implications. The service capacity required for AHMP functions must be considered alongside the impact of diverting resources from other aspects of patient care. 10.2.3 Recruitment and retention for occupational therapists in mental health has become a concern. Within London in particular the turnover can range from 24% to 45% and the vacancy rate from 0–57% (Genkeer 2003). There is evidence to suggest that some occupational therapists find that their professional skills are not being fully utilised in community mental health teams (Northern Centre for Mental Health 2004). This in turn has been noted as a concern for recruitment and retention of staV in mental health (Sainsbury Centre for Mental Health 2002). It is important to be aware that if occupational therapists are dissatisfied with their role that they are able to work away from mental health in other parts of the health and social care economy. 10.2.4 Within a large number of Community Mental Health Teams (CMHTs) (Onyett, Hepplestone and Bushnell 1994) it is frequently the case that there is only one occupational therapist. This professional isolation is diYcult for some occupational therapists to deal with (Mentality 2003). Where an occupational therapist takes on the AMHP role, this could mean that there will be no occupational therapy input to other areas of patient care while they undertake this role. It is imperative that the occupational therapy role is available to all service users and not reduced as a consequence of the AMHP role. 10.2.5 The AMHP role could be seen as either an opportunity or distraction for occupational therapists. This could be in the form of changed status, perhaps financial reward and further opportunity for consultant grading on one hand and digression from the occupational therapy focus on the other. 10.2.6 The recent publication from the Social Exclusion Unit brings with it many opportunities for occupational therapists to focus on working with service users on leisure, vocation and work. This agenda is one that is essential for positive outcomes for service users and communities. Occupational therapy is concerned with the fulfilment of socially valued roles in people’s lives through occupation and employment. Occupational therapists are well placed to take a lead on social inclusion in services it is essential that they are able to perform this role. 10.2.7 On the other hand occupational therapists are able to consider the impact of physical, psychological social and environmental components in a person’s life. Therefore, with satisfactory training and supervision for the AMHP role, they would be able to achieve a balanced professional approach in this new role. 10.3 Acute inpatient services Ev 1038 Joint Committee on the Draft Mental Bill: Evidence

10.3.1 Under the proposals of the Draft Bill people that are subject to compulsory admission for assessment will require a care plan drawn up within five days. It is important that all treatments (as defined in Part 1, Chapter 1, Section 7) are included in this. Habilitation and rehabilitation fall within the remit of occupational therapy and this is an important role that the College supports. 10.3.2 Where a person has been admitted to hospital over a weekend, it is important that such an assessment occurs as early as is possible. This will require OT staV working extended hours beyond the traditional Monday to Friday, 9–5 periods. There are already OT staV working extended hours in some mental health services and this is a flexibility the College would wish to encourage. It is important that these added workforce implications are addressed as part of the implementation of the Bill. It is important that occupational therapy is available at these early stages to prevent any social exclusion or detriment to the service user. 10.3.3 Once a person has been assessed and the relevant conditions are met there is a Mental Health Tribunal where occupational therapy staV would be required to submit relevant reports or attend. This will increase workload for this workforce and will require administrative support. 10.3.4 Where an individual is subject to compulsion there are implications if occupational therapy is not available. There is currently no recommended remit for the number of occupational therapy staV required per inpatient bed. The current funded establishment of OT staV for acute care is currently being surveyed by the Sainsbury Centre for Mental Health as part of commissioned research about Acute Inpatient services by the National Institute of Mental Health. This is due for publication in Spring 2005. 10.4 Non-resident treatment orders 10.4.1 People subject to compulsion in the community will go through a similar process of drawing up a care plan, tribunal and ongoing review. This has similar implications for occupational therapy staV in terms of availability for assessment and treatment availability.

Conclusions In summary, the College has real concerns in respect of the workforce required to deliver the Mental Health Bill’s intentions. The proposals combining community orders with a wide deﬁnition of mental disorder and is bound to jeopardise the improved mental health care to which the Government aspires.

References Genkeer L, Gough P and Finalyson B (2003) London’s Mental Health Workforce: A review of recent developments. The King’s Fund mentality (2003) Working Well Report London. mentality Northern Centre for Mental Health (2004) Leading Roles in Mental Health: Opportunities and competencies for community mental health occupational therapists. Northern Centre for Mental Health. Onyett S, Hepplestone T and Bushnell D (1994) Organisation and operation of CMHT’s in England: A National Survey. Sainsbury Centre for Mental Health. Sainsbury Centre for Mental Health (2002) Finding and Keeping: review of recruitment and retention in the mental health workforce. London. Sainsbury Centre for Mental Health. Woodbridge K Fulford K W M (2004) Whose values? A workbook for values-based practice in mental health care. London. Sainsbury Centre for Mental Health. October 2004

Memorandum from Stonham (DMH 293) 1. Stonham welcomes the opportunity to comment on the Government’s Draft Mental Health Bill through its submission to the Joint Committee. 1.1 Stonham is a division of the Home Group Ltd. The Home Group is made up as follows: Home Group: Responsible for planning, strategy, ﬁnance and corporate services at the Group Head OYce. Home Housing: Division providing development, management and maintenance services to stock in the Midlands and North of England, and including the Copeland Homes and Nashayman sub-divisions. Stonham: Division providing supported housing and associated care and support services throughout England. Warden Housing: Division providing development, management and maintenance services to stock in the South of England. Home in Scotland: Subsidiary providing development, management and maintenance services to stock in Scotland. Paramount Homes: Market rent subsidiary. Home Group Developments: Subsidiary formed to undertake market housing for sale and land-banking for mixed tenure purposes. Joint Committee on the Draft Mental Bill: Evidence Ev 1039

1.3 Stonham is England’s largest specialist provider of housing related support services for vulnerable people. Stonham directly manages over 4,000 units of supported housing with a further 1,200 being managed on our behalf by other agencies. In addition Stonham provides a range of housing related support services to tenants of local authorities and other registered social landlords. Approximately 20% of our services are specifically tailored for individuals experiencing mental health diYculties. Many of the other service users that Stonham works with may also experience mental health diYculties although they may not be provided for in services which have specifically been designed for people with mental health problems. 1.4 Approximately 70% of our funding is derived through the OYce of the Deputy Prime Minster’s (ODPMs) Supporting People programme. whose purpose is to meet the housing related support needs of vulnerable adults. 1.5 Stonham’s response deals with the Committee’s invitation for evidence in relation to theme 10: 1.6 “What are likely to be the human and financial resource implications of the Draft Bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover costs arising from implementation of the Bill?” 1.7 In particular, Stonham would like to draw the Committee’s attention to the potential financial implications of providing enhanced community based support packages through highlighting some of the learning that has emerged from the implementation of the Supporting People Programme.

2. The Supporting People Programme 2.1 The Supporting People programme aims to meet the housing related support needs of vulnerable adults so as to enable and sustain independent living within the community. Client groups include those with mental heath problems. 2.2 The programme is administered through local authorities, and each Administering Authority must have a Supporting People Strategy for commissioning services. The Strategy is the responsibility of a Commissioning Body in each authority. 2.3 Gary Belfield, Head of Primary Care Access at the Department of Health, has recently written to PCTs reminding them to become involved in Commissioning Bodies, with a view to influencing strategic provision of Supporting People services in their locality. 2.4 We believe that there are a number of lessons to be learnt from the implementation of the Supporting People programme that the Committee may find of relevance when considering the financial costs associated with implementation of the Mental Health Bill.

3. The Supporting People Programme Costs 3.1 The cost of delivering the Supporting People programme was significantly underestimated at its inception. Originally estimated at circa £800 million the programme’s costs rose to £1.82 billion by the time of its first year of implementation. The Committee will be aware of the recent review of the Supporting People’s programme’s budget by the ODPM who have recently announced that the budget will be reduced and now capped at circa £1.7 billion for each of the next three years. The purpose of drawing the Committee’s attention to this is to illustrate how diYcult it can be to size the potential costs, and need for, community based support programmes. 3.2 Stonham would respectfully recommend that carefully consideration is given to the potential financial costs of implementing the Bill and that adequate funding is identified and allocated to the various commissioning bodies responsible for its implementation, in particular to health, social care and housing bodies. In doing so consideration also needs to be given to whether existing health, housing and social care programme budgets have the capacity to respond to any emerging service requirements arising from the Bill.

4. Mental Health Issues Emerging From The Supporting People Programme 4.1 One of the objectives of the Supporting People programme is to help prevent hospital admissions through supporting individuals in maintaining their own tenancies in the community. However, the programme has clear boundaries, and can only support individuals to manage housing related support issues. Where individuals need support with their mental health, social circumstances or determining their care package, Supporting People funding is not available. Of course, many people have both housing support AND care needs, which are interwoven form their perspective. The implications are that PCTs should be looking for positive opportunities to work with Supporting People providers to deliver a single package of support and care to clients. However, PCTs cannot look to the Supporting People to deliver care based service, and should be considering how to budget for joint working. The provisions of the Draft Mental Health Bill could be critical in promoting joined up services for people with mental health problems in their own homes. Ev 1040 Joint Committee on the Draft Mental Bill: Evidence

4.2 Stonham therefore respectfully requests that the Committee considers how the Bill could actively promote joint commissioning across health, housing and social care agencies for the purposes of maximising the eVectiveness of service provision and resources through the provision of integrated community based support packages. 4.3 Finally, Stonham would also like to draw the Committee’s attention to the fact that peripatetic, home based services carry signiﬁcant cost. Thus whilst some establishment costs are avoided all the costs involved with employing staV, including oYce space, training and development, are still incurred. The number of hours support that can be delivered by an individual worker will be profoundly aVected by the locality in which they work. For example, in rural areas, travel time and costs may be high. If the draft Mental Health Bill proposes community based services, the resources available to deliver them will be a critical area to its success. November 2004

Memorandum from Leeds North West Primary Care Trust (DMH 294) This response to the Draft Mental Health Bill has been put together by Leeds North West Primary Care Trust (Leeds NW PCT). Leeds NW PCT co-ordinates adult mental health issues on behalf of other PCTs in Leeds.

1. Definition of “Mental Disorder” The broadening of the deﬁnition of “mental disorder” within the draft Bill and the removal of all exclusions is very worrying. The Act could potentially apply to a large proportion of the public who hitherto have not come under the mental health system, and for whom the application of the Act could be counterproductive. In order to provide safety to individuals and the community the draft Bill is attempting to cast a very wide net to detain a very small number of people. The wide net will inevitably draw in a large number of people who really do not need to be detained. The consequence of this pattern of detention is that people will lose faith in the system, and services will not be able cope with the inﬂation in numbers. It could also be argued that individual human rights might be jeopardised as a result of the application of the Bill.

2. Compulsory Powers Despite the stated aim to reduce the amount of compulsion used under the current Bill the Draft Bill greatly broadens the grounds for compulsory detention. This results from the broader deﬁnition of “mental disorder” and the broader set of criteria for compulsory detention. The requirement for hospital admission has been removed; the requirement of treatability has been removed; there is no requirement to exhaust less restrictive options ﬁrst if the person is considered a danger to others. The removal of these exceptions and exclusions extends the criteria for compulsory detention and removes key safeguards that currently exist within the Bill. We would therefore like the Department to reconsider this clause. The draft Bill seems to impose treatment on people who have the capacity to decide for themselves. We are aware that this is no change from the current Bill, however the Richardson Committee proposed a capacity based test which could be applied, and which is supported by MIND and the Mental Health Alliance. Given the progress of the Mental Capacity Bill through parliament it would make more sense to look at both Bills in tandem, the timing of this Bill does not make that possible.

3. Non Resident Treatment Orders Non resident treatment orders are a major concern to service users. The fear is that the threat of these orders will drive people away from the treatment that they need. It may also prevent service users being able to disagree with clinicians and negotiate a more eVective treatment regime. It could potentially destroy any chance of a therapeutic relationship between service user and clinician. The fact that these orders can be made in the community greatly expands the number of people who could be under compulsion. This has grave consequences on resources as well as the dignity and human rights of individuals. It is not clear how non resident treatment orders will work. The lack of a code of practice to go with this Bill makes it more diYcult to understand how some of this detail will work.

4. The Negative Impact on People from Black and Minority Ethnic Communities The draft Bill potentially increases the likely abuse of power as stated earlier. An expansion on the grounds of compulsion is a cause for concern for minority ethnic people, and the extension of powers into community settings could further increase the negative impact on these communities. Evidence suggests that a larger proportion of people from Black and Minority Ethnic communities are being detained under the Joint Committee on the Draft Mental Bill: Evidence Ev 1041

Mental Health Act, and a larger proportion of people from these communities enter the mental health system via the criminal justice system. Increased police powers will put people in these communities at increased risk of detention and loss of civil liberties.

5. Advocacy The Draft Bill introduces the principle that service users subject to compulsory powers should have access to an independent advocacy service. We welcome this, but would ask you to consider strengthening the provision for this in the Bill and make it an enforceable right. Advocacy is too attached to stages of compulsion as described in the draft Bill, it should be available earlier on in the process.

6. Staff Training and Preparation We are concerned that the lead in time for the implementation of any new legislation is thought through carefully. The change in staV roles and the impact on certain professionals will be immense. Discussions need to be conducted with the Royal College of Psychiatry, the Royal College of Nursing and the National Institute for Social Work and their training bodies about how such changes could be implemented.

7. Code of Practice The absense of a code of practice makes it very diYcult to consider the full extent of the impact this Bill could have on local services and service users. We would strongly recommend that a code of practice is produced before any new Bill is implemented.

8. Implications for Service Commissioning As a commissioning organisation speaking on behalf of other commissioners we would be very concerned about the impact the implementation of the Draft Bill could have. If the use of compulsion increases then in patient bed use could increase, going against all the work that has been done in recent years to reduce bed use. This in turn could increase service demand in primary care. The commissioning implications for planning as well as purchasing services need to be considered before a new Bill is implemented.

9. Resources We are very concerned about the level of resources that will be needed to implement the Act as outlined in the draft Bill. If extra resources are not made available then the implementation of the legislation could seriously impede the delivery of new service that have been set up as a response to the NSF and NHS Plan. We suggest that the Department give due consideration to this issue, as it will be impossible to implement the proposed legislation without the right level of funding made available. October 2004

Memorandum from the Parkinson’s Disease Society (DMH 295)

1. The Parkinson’s Disease Society 1.1 The Parkinson’s Disease Society (PDS) was established in 1969 and now has 30,000 members, 19,000 supporters and over 300 local branches and support groups throughout the UK. 1.2 The Society provides support, advice and information to people with Parkinson’s, their carers, families and friends, and information and professional development opportunities to health social services and care professionals involved in their management and care. 1.3 Each year the Society spends more than £2 million on funding research into the cause, cure and prevention of Parkinson’s, and improvements in available treatments. The Society also develops models of good practice in service provision, such as Parkinson’s Disease Nurse Specialists, community support, and campaigns for changes that will improve the lives of all people aVected by Parkinson’s.

2. About Parkinsons Disease 2.1 Parkinson’s disease is a progressive neurological disorder. It aVects all activities of daily living including talking, walking, communication, swallowing and writing. It is estimated that 120,000 people in the UK have Parkinson’s, with the cause still unknown. That is one in 500 of the general population. Approximately 10,000 people are newly diagnosed with Parkinson’s each year in the UK. Ev 1042 Joint Committee on the Draft Mental Bill: Evidence

2.2 Parkinson’s occurs as a result of a loss of cells that produce the neuro transmitter dopamine. Dopamine is one the chemical messengers that we have in the brain which enables people to perform co- ordinated movements. As yet it is not known why these cells die. 2.3 The three main symptoms are tremor, muscle rigidity and slowness of movement. However not everyone will experience all three. Other symptoms include a lack of facial expression, diYculties with balance, problems with an altered posture, tiredness, speech diYculties, pain and depression. Parkinson’s aVects people from all ethnic background and all ages. The majority of people are diagnosed over the age of 60, however it is estimated that one in 20 people are diagnosed Parkinson’s under the age of 40.

3. Summary As “mental disorder” has been deﬁned so broadly in the Bill the Society believes that people with Parkinson’s and other neurological conditions may be subject to its regulations. The deﬁnition therefore, must be coupled with tight criteria for the use of the compulsory powers outlined in the Bill. People with Parkinson’s may experience one or all of three conditions aVecting their mental health—psychosis, dementia and depression. The Society believes that for anyone with Parkinson’s to be treated under the Bill, the treatment must be necessary in line with the conditions in the Bill and to address the person’s psychiatric symptoms. It is essential that any assessment and treatment is conducted by a specialist in Parkinson’s and that regular consultation is made with a Pd specialist team throughout the course of treatment. Of particular importance in treatment is the interaction between Pd medication and neuroleptics as these drugs are well documented as heightening the symptoms of Parkinson’s. We are therefore in favour of a “Best Practice” guideline being developed for the treatment of the mental health aspects of neurological disorders—including the joint management of mental health symptoms by both neurological and psychiatric health professionals. Finally the Society is concerned that there needs to be in place quality mental health services which have the capacity to treat people with mental health conditions—in particular we support the use of Crisis Resolution Teams to be extended to neurological conditions.

4. Parkinson’s and Mental Health

4.1 Mental health is a very important and sometimes overlooked aspect of Parkinson’s disease and its management. Although not all people with Parkinson’s experience mental health problems, deteriorating mental health is often associated with the advanced stages of Pd. The three most common conditions that people with Parkinson’s experience are psychosis, dementia and depression. One challenging and often misunderstood feature of Parkinson’s is the fluctuations experienced by those diagnosed. These occur without any pattern within a day. It is important that any mental health professional dealing with a person with Parkinson’s has an understanding of the disease, the fluctuations in a person’s condition and the interactions between medications. 4.2 Psychosis, though it can occur at any stage of the illness, is particularly prevalent in the complex and advanced stages of the disease. In comparison to psychosis with a psychological origin, Parkinson’s related psychosis results in more visual hallucinations and sleep disturbances. Disruption of thought processes and delusions are less common. Psychosis is often caused by underlying dementia with Lewy Bodies or as a result of the person’s Pd medication—the latter being a much more common cause of psychosis. When such symptoms develop, the accepted first step is to reduce anti-Parkinsonian medications were possible. However there are currently no clear guidelines on the treatment of psychosis in Parkinson’s. 4.3 Dementia occurs in 15–20% of Parkinson’s cases and the treatment of dementia is a specialist area that requires involvement of a team with expertise in treating both Parkinson’s and dementia. Dementia symptoms in Parkinson’s can be exacerbated by side eVects of the anti-Parkinsonian medication, so sometimes reducing the drug dose or withdrawing a drug may help, particularly with problems such as hallucinations. However a reduction in the dose or the withdrawal of some drugs may result in the symptoms of Parkinson’s being less well controlled. 4.4 Finally problems with mood and depression are common in people with Parkinson’s and many will experience a degree of depression at some time during the course of their Parkinson’s. Though recent studies suggest that “major depression” is only slightly more common in Parkinson’s than in people without Parkinson’s of the same age, as many as 30–40% of people with Parkinson’s may experience significant feelings of depression at some point during the course of the condition. Currently depression, often mistaken for the lack of facial expression inherent in the disease process, is under-treated and again there are no clear guidelines on the management of depression in Pd. Treatment options include counselling, anti depressant drugs and in extreme depression, electroconvulsive therapy—though this is rare and not widely accepted as a treatment of choice. Joint Committee on the Draft Mental Bill: Evidence Ev 1043

5. Concerns with the Draft Bill 5.1 The PDS is particularly concerned with the definition of mental disorder and the conditions for treatment and care under compulsion. We share the concerns of the Joint Committee on Human Rights that the definition of mental disorder is so widely drawn that it could cover conditions such as Parkinson’s or other neurological conditions as these can interfere with brain functioning. We therefore believe that such a broad definition of mental disorder must be coupled with tight criteria for the use of compulsory powers on the face of the Bill, and in accompanying Codes of Practice and guidance for professionals and those working in mental health services involved in implementing the Bill. 5.2 The provisions of the Bill must clearly set out that simply having a diagnosis of Parkinson’s disease or another neurological condition will not automatically mean a person can be treated under the legislation and that only where there are severe psychiatric symptoms which require treatment to protect the person or others can someone be treated under the Bill. 5.3 In cases where Parkinson’s Disease is the primary neurological condition in a person displaying mental disorders, assessment by a specialist in Parkinson’s is the most appropriate first line of treatment. The Bill and its accompanying guidance should reflect this clinical pathway. It should also direct that mental health professionals should regularly and routinely consult with the Pd specialist team throughout the course of psychiatric treatment. See paragraph 5.5. 5.4 The most important practice point in the management of a person with Parkinson’s, with a mental disorder, is caution in or preferably avoidance of, the use of neuroleptic medications that are the mainstay of anti psychotic treatment in other patient groups. These drugs are well documented as heightening the symptoms of Parkinson’s. 5.5 We are therefore in favour of a “Best Practice” guideline being developed for the treatment of the mental health aspects of neurological disorders—including the joint management of mental health symptoms by both neurological and psychiatric health professionals. For both psychosis and dementia in Parkinson’s there are no such guidelines for clinicians. We would also recommend that in addition to the support given by Parkinson’s Disease Nurse Specialists, a key health professional in such joint management should be an occupational therapist specialising in neurology who can therefore provide a combination of knowledge in neurology and community psychiatric treatment. 5.6 Finally the Society is concerned that there needs to be in place quality mental health services which have the capacity to treat people with mental health conditions regardless of whether the conditions or treatment are covered by the Bill. We are keen that services such as Crisis Resolution Teams providing 24- hour emergency support, development of crisis house provision, intensive home help and out of hours social support should be widely available to those in need of mental health support. There is growing evidence that this approach is having the earliest and greatest impact on service quality, eVectiveness and eYciency. While these teams were not originally set up to cater for brain damage or other organic disorders including dementia, the evidence suggests that this specialist approach would benefit people with Parkinson’s. It is vital that once a person with Parkinson’s has been identified as needing mental health support, the services provision is available.

References Playfer J R and Hindle J V Parkinson’s Disease in the Older Patient, Arnold Publishing 2001. Clarke C Parkinson’s Disease in Parkinson’s Disease in Practice, Royal Society of Medicine Press. 2001. Wint D P, MD. Okun M S, MD, Fernandez H H, MD. Psychosis in Parkinson’s Disease, Journal of Geriatric Psychiatry and Neurology Vol 17, No 3, September 2004. Parkinson’s Disease Society Information Sheet 56 Depression and Parkinson’s. Updated May 2004. Parkinson’s Disease Society Information Sheet 58 Dementia and Parkinson’s. Updated March 2004. Parkinson’s Disease Society Information Sheet 38 Drug Induced Parkinsonism Updated March 2004. November 2004

Memorandum from Maca (DMH 296) Maca is a leading national charity serving people with mental health needs and their carers. We work in partnership with health and local authorities, criminal justice agencies, housing associations, voluntary and other independent sector providers to deliver a wide range of community and hospital-based services. These include advocacy; community support; drop-ins and social clubs; employment training; forensic services; respite for carers; supported housing. We are the country’s oldest community mental health charity with a track record of 125 years successfully delivering services. Ev 1044 Joint Committee on the Draft Mental Bill: Evidence

Maca is a core member of the Mental Health Alliance, and we contributed to and support the Alliance’s submission. In this document we focus largely on issues of particular importance to us in our work, but we ask that our submission is read with the understanding that, on issues on which we do not comment here, our view reﬂects that of the Mental Health Alliance. We do not attempt to answer all the questions on which the Joint Committee is seeking evidence. After commenting on questions 1, 2 and 3 in turn, we will take questions 4 and 10 together, and focus our answers on three areas in particular: after-care provision, advocacy and mental health in the criminal justice system. This reﬂects the focus of our organisation’s own work. Our evidence is submitted following a consultation with Maca staV working at the front line of service provision. We would be willing to supply further evidence on the points raised below, and would be delighted to arrange visits by the Committee to Maca services.

1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? 1. This is presumably a reference to the “general principles” described in Part 1, which are not actually laid out at all, but left to a “code of practice” published by “the appropriate authority”. There is some indication at section 1(3) of the general content of the general principles, and we agree with what is set out here, but we cannot comment on the principles themselves. We would hope that, despite section 1(4), there are no circumstances in which it was possible to overrule the principle that “decisions are made fairly”. We believe that basic principles should be on the face of the Bill. 2. We would like to state our disappointment that no codes of practice have been published, despite the fact that here and elsewhere it is impossible to understand or assess important elements of the Bill without them. 3. We believe that the principles underlying any Mental Health Bill should include the presumption of a right to assessment of mental health needs.

2. Is the definition of Mental Disorder appropriate and unambiguous? Are the conditions for treatment and care under compulsion suYciently stringent? Are the provisions for assessment and treatment in the Community adequate and suYcient? 4. The definition of mental disorder at s2(5) is broader than we would like. The Explanatory Notes published with the Draft Bill are explicit about the fact that a learning disability is an example of a mental disorder (p 11); Rosie Winterton has made it clear that epilepsy may also qualify (written answer to John Battle MP, 11 October 2004). Similar concerns have been credibly raised about autistic spectrum disorders, as well as drunkenness and drug addiction. We do not believe that it is appropriate to treat people as mentally disordered solely on the grounds of learning disability, epilepsy, an autistic spectrum disorder or drug addiction (this does not preclude treating people with such conditions as mentally disordered if they have an accompanying mental disorder). 5. The definition of treatment at section 2(7) is extraordinarily broad, and includes a number of techniques, such as nursing, care and habilitation. While such techniques may well be important parts of a patient’s care plan, we do not believe that it would be appropriate to subject a patient to compulsion solely in order to provide, say, nursing care (this does not preclude subjecting a patient to compulsion in order to provide nursing care along with therapeutic treatment). 6. We are concerned that the broad definition of disorder, combined with the broad definition of treatment, combined with the diYculty of predicting the risks laid out at section 9(4), may substantially increase the number of people who may be subjected to compulsion, even if this is not the Government’s intention.

3. Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 7. We would like to note as a point of principle that any distinction between “the mentally ill” and “the public” is false. Anyone who is concerned for the personal and human rights of the mentally ill is, by definition, concerned about the personal and human rights of the public; anyone who is concerned for personal and public safety is, by definition, concerned about the safety of the mentally ill. 8. We are concerned that any focus on “public protection” in the context of a Mental Health Bill may alienate people from trying to access mental health services and therefore make them less likely to receive help in the first instance, and more likely to require compulsory treatment later on. Any public health or public safety measure with this consequence would be absolutely counterproductive. Joint Committee on the Draft Mental Bill: Evidence Ev 1045

4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? Are there any important omissions in the Bill?

After-care payments 9. Under the 1983 Mental Health Act, at section 117(2), detained patients are entitled to free after-care following discharge, “until such time as the Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services, but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject”. This includes people falling under the remit of “supervised discharge”. Section 117 upholds the principle of reciprocity: anyone who is deprived of their liberty and subjected to treatment against their will should not be expected to pay for that treatment or for any further treatment or care consequent on that treatment. 10. In contrast with this, the Draft Mental Health Bill says, at section 68(2), that “no charge may be recovered for any care service provided in respect of the discharged person during the initial six-week period”. This is an extremely significant change, which means that a discharged patient will only receive free care, such as home support or attendance at a day resource, for a period of six weeks, compared to the current arrangement where no time limit is prescribed. Thus people face the prospect of being means-tested, and charged, for services which were recommended in a care plan drawn up while they were in detention, and with which they may not agree. The whole concept of reciprocity has been eliminated. 11. We are extremely concerned that the implications of this change have not been adequately thought through. The DoH publication Improving Mental Health Law argues that charging is simply a harmonisation with the arrangements for people needing intermediate care (p 43). This is a misleading analogy. Intermediate care is a consensual arrangement whereby a patient is provided with support and rehabilitation free of charge for up to six weeks, with charging being applied thereafter. In the case of a patient who has been detained under the Mental Health Act, such a consensual arrangement cannot be assumed, as they have had their liberty taken away from them and forced to undergo treatment to which they did not consent. 12. While cost savings seem to be at the root of this measure, it is likely to make patients less willing to engage with services in the first instance, or to avoid coming into contact with them. Patients are unlikely to accept being charged for services which they feel are being imposed on them and whose therapeutic benefit they do not see. We are concerned that charging patients for services they do not want will encourage them to “opt out” and lose contact with services. This would lead to a strong possibility that they could relapse or suVer a deterioration to their condition. 13. Patients are also likely to be put under stress by the length of time it can often take for the Jobcentre Plus to process someone’s benefits after a period of hospitalisation. With only six weeks of free services, patients may be faced with the pressure of having a charge levied on them for aftercare while still awaiting their benefit situation to be resolved. Alternatively, they may simply opt out of services on the basis of cost. 14. There is an important potential overlap between this change and the introduction of non-residential orders (NROs). Patients who refuse to comply with their care plan following discharge from hospital may be given an NRO to require them to accept care services such as home support or attendance at a day centre. We agree with critics of this measure who have noted the potential similarity between an NRO and an ASBO, but we want to draw attention to a diVerent, related issue. Anyone who is subject to an NRO following discharge from hospital will be entitled to free care for as long as the order remains in force and for six weeks after it ceases to be in force. There is therefore a kind of perverse incentive here—patients who are concerned about having to pay for services they do not really want would do well to opt for an NRO on financial grounds and use their own money for other purposes. 15. Further complexity arises with the question of direct payments, a major Government initiative for the empowerment of service users introduced under the Community Care (Direct Payments) Act 1996. The whole thrust of this policy, which imposes a duty on local authorities to make direct payments available to anyone in need of care services, is towards empowering service-users in choosing how they want their support to be delivered and from whom. 16. If the level and nature of a patient’s support after the six-week period is dictated by a care plan, and if a patient disagrees with what the care professionals want to oVer and is in receipt of direct payments for purchasing his care, then he is unlikely to be willing to pay for home support visits from a local authority Ev 1046 Joint Committee on the Draft Mental Bill: Evidence

home support worker, if he already has an arrangement that meets his needs (so far as he is concerned) with a neighbour or friend. What sanction might the professionals apply in such an instance? Again the threat of an NRO seems present. 17. If the real drive is to save a signiﬁcant amount of the costs currently incurred under section 117, we suggest that the focus of eVort should be on ensuring that the professionals are required to keep the provision of services under very active review to ensure that unnecessary services are not being provided, rather than on penalising patients by charging them.

Advocacy In this section we draw on the experience of our team of independent advocates, who provide advocacy services in a number of secure settings across England, including Rampton and Ashworth Hospitals—two of Britain’s three high-security hospitals. Through our advocacy services we now support over 850 people. 18. We believe that an independent advocate should be available to patients subject to the formal powers in the Bill and their nominated persons, and we welcome the provisions at section 247 and section 248. However, the wording at section 247(1), placing a responsibility on the appropriate authority to arrange for IMHA advocates to be available “to such extent as it considers necessary to meet all reasonable requirements”, leaves a great deal open to question. We would like to see clearer guidelines to ensure that the appropriate authority is not allowed to consider the availability of IMHA advocates to be unnecessary. 19. With the formalisation of the role of the IMHA advocate—a development we welcome—we believe there is a need for advocacy to have recognised codes of practice and conduct. Maca’s advocates already operate under the standards proposed in the Durham Report. We would like to see the creation of a governing body to oversee advocacy services, in order to ensure that national standards are agreed to and followed. Alongside this, we welcome the indication at section 247(10) that advocates may be paid by the appropriate authority. We would go further, however: we believe that IMHA advocates should be paid for the work they do. As a matter of principle, we believe that people providing statutory services should be reimbursed by the state; on practical grounds, we believe that high and consistent standards of advocacy would best be provided by a professionalised service. In the words of one of Maca’s advocates, “Following twenty years service as a Mental Health Advocate both paid and unpaid, I much prefer being paid than volunteering”. 20. We believe that an IMHA advocate should, where possible, be present at the initial examination. The kind of advice and support which advocates provide would be at least as valuable at this point as it is later in the process, and any objection to the presence of advocates at this point is presumably based on practical considerations rather than any principled stance. Given this, we believe that all eVorts should be made, wherever possible, to have an advocate present from the initial examination onwards, if the patient wants one. At the very least, it should be stated in the Bill that an IMHA advocate may be present at this stage. 21. The IMHA advocate must be able to meet the patient in private, if the patient requests this; the wording of the Bill should reﬂect this. 22. The Committee will be aware that considerable surprise and scepticism has been expressed at the DoH’s workforce requirement estimate that 140 advocates will be required. We share this surprise and scepticism.

Mental health in the criminal justice system In this section we draw in particular on the insights of our team of Forensic Mental Health Practitioners working in London boroughs. 23. We believe that any decision to give magistrates the ability to exercise powers under a Mental Health Act should bear in mind that judges and magistrates frequently lack training in mental health issues. We frequently see decisions taken which appear to be based on a fear, or at least a lack of understanding, of people with mental health problems. This often results in overly cautious practice, with people who have mental health problems being subjected to a more restrictive regime than is either necessary or therapeutic. We also see major misconceptions: in the words of one of our Forensic Mental Health Practitioners, “People on the bench often think I can section people”. Any new Mental Health Act which extends the powers of the courts to detain or otherwise dispose of people with mental health problems should be accompanied by significantly improved mental health training for judges, magistrates and others who are not mental health professionals but who will have responsibility for sentencing and disposal. 24. In the light of this, we are not satisfied that the courts have the expertise and experience to approve care plans. We would not expect them to be in a position to oVer meaningful scrutiny of a care plan or to raise appropriate questions with the responsible mental health professionals, and would prefer this role to be in the hands of the Mental Health Tribunal. 25. We note that the conditions for compulsion under a Mental Health Order (MHO) for patients concerned in criminal proceedings laid out in Part 3 are significantly broader than those in Part 2. The patient must have a mental disorder of a nature and degree suYcient to warrant the provision of medical treatment to him, and appropriate treatment must be available, but there is no requirement that the Joint Committee on the Draft Mental Bill: Evidence Ev 1047

treatment is necessary to protect the patient or other persons, nor that the treatment cannot otherwise lawfully be provided to the patient (see section 116(2)–(5)). It is possible therefore that MHOs could be used to give compulsory treatment to people who could not otherwise be made subject to it, and whose mental disorder is not considered to have been a factor in their oVending behaviour, nor likely to lead to future oVending behaviour. In line with our view that compulsory treatment should always be a last resort with maximum safeguards, we do not believe that a criminal conviction, or being placed on remand, should make people subject to compulsion by a “back door”. 26. We have a similar problem with the provision at section 93, which would allow a person to be remanded to hospital for medical treatment on the evidence of two registered medical practitioners, even if he has not been found guilty of any oVence. Again, we do not believe that the simple fact of being subject to criminal proceedings should make a person subject to broader conditions for compulsion than those in Part 2. 27. The Draft Bill makes no mention of Interim Hospital Orders. Although these are rarely used, they can be useful in providing an opportunity for the mental disorder of a convicted oVender to be assessed in hospital before deciding on whether or not to make a hospital order. We would like to see Interim Hospital Orders reintroduced into the Bill.

Conclusion 28. The Bill as it stands is confusingly drafted and lacks regulations and codes of practice which are essential in order fully to understand its content and implications. It contains key elements which appear not to have been adequately thought through and which we do not believe will be able to be implemented as intended. It retains the focus on dangerousness and risk management which characterised previous drafts, and which has done so much to set the Government at odds with those this legislation is designed to help. October 2004

Memorandum from Bevan Brittan, Solicitors (DMH 297)

Introduction Bevan Brittan (formerly Bevan Ashford) is a leading provider of legal services to the NHS and has a strong mental health law practice. The 2004 edition of Legal 500 commends our “absolutely outstanding” health and social care team, which operates across our London, Birmingham and Bristol oYces. Bevan Brittan can count 20 of approximately 60 specialist mental health NHS Trusts amongst its clients. At our recent annual mental health law conferences we addressed and took questions on the key provisions and important implications for mental health services of the Draft Bill from representatives of 71 public authorities. We believe we can respond from an informed position which resonates across law and practice.

Submissions 1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? No. The reader must go to the intended purpose of the guiding principles set out in Clause 1(3) and the relevant conditions at Clause 9. Clause 1(4) undermines the fundamental therapeutic purpose of the Bill. Similarly, Clauses 9(4)(b) and 9(7) suggest that the public protection agenda can overrule the therapeutic aims of the Bill. We support the Mental Health Act Commission’s suggested principles in primary legislation as clear and unambiguous.

There will be no discretion not to use compulsory powers where the relevant conditions apply. Similarly, there will be no discretion given to the Tribunal not to discharge where the relevant conditions apply. The blanket use of compulsory powers for all those who meet the relevant conditions will be detrimental. The removal of discretion is likely to make the legislation susceptible to challenge under the HRA 1998 as it would appear to discriminate against persons who would otherwise agree to “informal treatment”. There is a risk that non-resident patients would remain subject to compulsion for longer. The availability of non-resident orders should not be used as a way of managing the current bed availability crises faced by hospitals as otherwise those who require in-patient treatment may be denied it. The non-resident proposals, by requiring that a non-resident treatment order is likely only to be made where a person has a history as a resident patient, adds nothing to the current state of the law allowing extended section 17 leave. This misses a real opportunity to treat individuals in the community without a hospital admission. The opportunity for “anyone” to apply for an assessment appears inappropriate as it will not prevent malicious or improper referrals. Whilst a single point of entry is welcomed there should still be some “gateway” through which referral is channeled. Currently, Trusts will be duty bound to consider the referral and act upon it (if only to discount it) which raises potential for infringement of individual civil liberties.

3. Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? No, see response to question 1. The broad meaning of “treatment” including anything from cure to containment, and the omission of the “treatability” test opens the door to increased use of compulsory powers weakening the Bill’s therapeutic aims. The ﬁfth condition that medical treatment is available omits the words “clinically appropriate” which should be included. Our clients are concerned they are being forced into a public protection rather than a care and treatment role. The removal of professional discretion exacerbates this will result in the “lobster pot” eVect, described elsewhere. This potentially will lead to human rights challenges by individuals.

4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? Are there any important omissions in the Bill? No, the Bill as drafted is virtually impenetrable. There is too much of importance in schedules (eg the current equivalent holding power under section 5(2) is hidden in Schedule 6) or left to be dealt with elsewhere in the Code of Practice or Regulation. It will be a practitioner’s nightmare and a lawyer’s dream! Our experience is that key powers must be clearly set out to aid practitioners. Its drafting is in stark contrast to the clarity of the Mental Capacity Bill. The complexity of the proposals (317 sections, 12 schedules, Codes of Practice and Regulations) makes it incredibly likely that the legislation will be misapplied. When considering how the workability of the proposals may be improved, careful thought should be given to the layout of the clauses, and in particular the key provisions. See responses to 2 and 3 on omissions. The decision not to include a duty to provide aftercare services beyond six weeks will mean that vulnerable people are unlikely to receive free services aimed at preventing a deterioration in their condition following discharge. The preventative value of free aftercare should not be disregarded. Consequences of excluding aftercare include (a) a multi-tiered system where those who can aVord aftercare services stand a better chance of avoiding future mental disorder, and (b) inappropriate extension of non-resident orders in breach of Article 5(1) ECHR. The demands on resources by increased numbers of qualifying patients and demands on Tribunals will require major human and economic investment so diverting funds from patient groups not subject to compulsory powers. The requirement for the healthcare professional to share information would beneﬁt from further clarity to avoid confusion. The absence of any equivalent consent to treatment protection under section 58 and the SOAD role leave patients only with the protection of the care plan which is likely to be inadequate as plans will be generic to avoid regular returns to Tribunals for amendment.

5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the Draft Bill? The role of the Tribunal as the independent body which both makes the order and hears the appeal creates an opportunity for challenge under Articles 5(4) and 6 ECHR. Additionally, there is major doubt over the ability of the Tribunal to deal with its workload leading to delays. There will be signiﬁcant reliance on the expert panel. Joint Committee on the Draft Mental Bill: Evidence Ev 1049

There is no framework allowing the detaining NHS Trust to apply to the MHAT where it believes there has been an error of law. It will continue to have to rely on the mechanism of judicial review in the High Court (as now) which seems a missed opportunity.

6. Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, suYcient? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? The protections are patchy. There is no protection for children under 16 (unlike the 2002 draft) and we would propose an automatic right to all children to apply to a Tribunal after three months. Children should have increased safeguards to avoid their placement on adult wards, where they face an increased risk of abuse. Why just ECT? What other aggressive or controversial procedures will be safeguarded? In an emergency the clinical supervisor can authorise ECT. Where the clinical supervisor is not a doctor this should be prohibited. The powers and functions of CHAI as successor to the MHAC are not suYciently clear. See responses to 4 and 8.

7. Is the balance struck between what has been included on the face of the draft Bill, and what goes into Regulations and the Code of Practice right? No, but it is impossible to comment in the absence of Regulations and the Code of Practice. Guiding principles and key provisions should be included in the primary legislation similar to the Children Act 1989 and the Mental Capacity Bill. As lawyers we believe too many key questions are left to Regulation and the Code of Practice which makes the legislation susceptible to legal challenges given its key eVect, the deprivation of liberty under Article 5(1) ECHR eg: — which category of person can be treated in the community? — when can the clinical supervisor be denied the right to discharge? — what decisions will be reserved to the Tribunal and their powers? — who can detain under the equivalent section 5?

8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)?

The case of HL v UK highlights a key area left unresolved. There is a lack of clarity around which Bill would apply to this group of patient and in what circumstances. The relationship between the two Bills needs further clarification. Neither Bill safeguards the compliant incapacitated patient, despite the European Court’s comments on the Mental Capacity Bill in HL v UK. This has been recognised by members of this Joint Committee in debate on the Mental Capacity Bill post HL v UK. Provisions similar to those previously found in Part 5 of the 2002 Draft Bill should be included in capacity legislation or there should be an automatic right of appeal to all persons detained in hospital or institutional setting to an appropriate court or tribunal within a specified period to avoid arbitrary use of powers. Clause 28 of the Mental Capacity Bill has clarified how each statute would function in relation to patients subject to compulsory powers. However, the value of eVective mental capacity legislation for the treatment of incapacitated patients who suVer from mental disorder will be diminished by the broad inclusion criteria under the Draft Mental Health Bill.

9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act? No, it could be seen as discriminatory to broad groups of individuals with insuYcient ﬂexibility built into the legislation, particularly around the exercise of discretion by professionals and the Tribunal, to successfully defend challenges. We are particularly concerned about challenges to Articles 5(1) and (4), Article 6, Article 8 and Article 14. Ev 1050 Joint Committee on the Draft Mental Bill: Evidence

See response to 4. We believe NHS Trusts will become a frontline service moving away from secondary/ tertiary provider with the need for signiﬁcant workforce changes. It is unclear whether resources will be available to implement the proposals safely for all stakeholders. Will practitioners and stakeholders be willing to embrace the changes or will there be an exodus of staV? We anticipate extensive need for training and legal advice throughout the life of the legislation with potential scope for challenge by individuals which will leave NHS Trusts vulnerable to legal challenge and costs. Susan Thompson and Stuart Marchant November 2004

Memorandum from the Mission and Public AVairs Council of the Church of England (DMH 298)

The Mission and Public AVairs Council of the Church of England is the body responsible for overseeing research and comment on social and political issues on behalf of the Church. The Council comprises a representative group of bishops, clergy and lay people with interest and expertise in the relevant areas, and reports to the General Synod through the Archbishops’ Council. The Mission and Public AVairs Council is an associate member of the Mental Health Alliance. This submission was prepared with the assistance of the Church of England’s Mental Health Interest Group, whose members have professional and ministerial experience in the ﬁeld, and reﬂects the Church’s extensive involvement through its network of mental health chaplains.

Summary

On the basis of our convictions about human dignity and potential, we believe that mental health care should accord as far as possible with principles of non-discrimination, patient autonomy, consent and reciprocity. We are anxious that the deﬁnition of mental disorder and the relevant conditions for formal powers could lead to excessive and inappropriate use of compulsion (though we recognise the diYculty of dealing with a small number of people who are judged to be both dangerous and untreatable). We are concerned that the provisions for assessment and treatment in the community will prove counter-productive in alienating service users and placing extra pressure on staV. We end by expressing a number of reservations on particular issues: the composition of Tribunals, the role of AMHPs, the rights and powers of nominated persons, independent advocates, care of mentally ill people in prison, provision for aftercare, independent monitoring of detained patients, conditions for ECT and neurosurgery, and resources.

Submission

1. The Church’s approach to mental health issues is decisively shaped by its conviction that all human beings are created in the image of God and endowed with inalienable dignity. We also believe, because of the ministry of Jesus Christ, that God’s purpose for humanity is the restoration of the outcast, the healing of the sick and the liberation of the oppressed. It is our experience that people with mental health problems can oVer to others much that is profound, challenging and life-giving.

2. We believe that mental health care should oVer to those who suVer compassion and acceptance, protection from stigma, restriction and exclusion, and the hope of freedom and fullness of life. These priorities are consonant with widely-supported principles such as those advanced in the Richardson Report: non-discrimination, as far as possible, between mental and physical health care; recognition and enhancement of patient autonomy; consensual and informal care where possible, with compulsion as a last resort; respect for diversity; and reciprocity between patient and health care obligations.

3. We emphasise the importance of people with mental health problems participating in their own care, treatment and support. Although the term “service user” has been adopted for good reasons, it does not adequately characterise the identity of human beings as “subjects of their own history” who must be allowed and enabled to become subjects of their own healing, personal development and growth in relationships. Joint Committee on the Draft Mental Bill: Evidence Ev 1051

Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? 4. The general principles set out—patient involvement in decision-making, fairness and openness in decision-making, and minimum interference and restriction in medical treatment compatible with protection of the health and safety of the patient or others—are unexceptionable, but their force is neutralised by their relegation to codes of practice and their broad liability to be declared inapplicable. More robust general principles should appear on the face of the Bill to provide guidance and reassurance. It would also be helpful for draft codes of practice to be published alongside the Bill. 5. The operative principles to be inferred from the detailed provisions of the Bill show the marks of its origin in anxiety about protection of the public from people with dangerous severe personality disorders. While public safety remains an inescapable consideration in a relatively small number of cases, allowing the risk posed by a minority to mould legislation for the majority carries the danger of excessive and inappropriate resort to compulsion.

Is the deﬁnition of mental disorder appropriate and unambiguous? 6. We remain anxious about the breadth of the deﬁnition, and seek assurance that it will not embrace people with learning disabilities. We believe that the exclusions in the 1983 Act (preventing diagnosis of mental disorder based solely on substance or alcohol abuse or sexual behaviour) should be retained as a defence against using formal powers as a means of social control.

Are the conditions for treatment and care under compulsion suYciently stringent? 7. We are concerned that the eVect of the conditions will be to bring under formal powers many who ought to be treated informally, particularly when the criterion of “the protection of others” is invoked. The removal of the requirement to show the necessity of compulsion when a person over 16 is at substantial risk of causing serious harm to others seems to undermine the possibility of that person receiving treatment voluntarily. The option of compulsion must be available but, if the patient consents, alternatives ought not be discounted solely because of risk. 8. The condition that appropriate treatment is available is at first sight welcome, but we believe that to avoid compulsion without an adequate clinical rationale treatment should normally be required to be of therapeutic benefit to the patient. Intensely diYcult dilemmas of human rights and professional ethics arise when patients are judged to pose a substantial risk of harm to self or others but their disorder is considered to be untreatable. Any special provision for compulsion to meet this situation should take account of the need to explore richer forms of treatment for intractable conditions, which would probably not be eVective without consent and co-operation. 9. The relevant conditions, unlike the Scottish Mental Health Act, take no account of capacity. We think there are moral and practical objections to compelling someone to undergo treatment if they are in a position to understand what is involved and decide to withhold consent—except where there is substantial risk of harm to self or others. The place of capacity and autonomy in the conditions for compulsion should be reconsidered, not least to ensure consistency with the Mental Capacity Bill. We favour advance decisions on treatment when people are willing and able to do so. Such decisions should be capable of being overridden on specific grounds, by professionals or by a Tribunal, but not as an automatic result of compulsion as at present.

Are the provisions for assessment and treatment in the community adequate and suYcient? 10. There are two possible approaches to these provisions: one, adopted by the Government, is to regard them as implementing the “least restrictive” principle: milder interventions, to be applied primarily to those who have previously been treated in hospital. The other is to see them as lowering the threshold of compulsion, inducing fears and negative responses among service users, and thereby compromising cooperation and the success of treatment. 11. The provisions are designed for “revolving door” patients—those prone to cycles of discharge, relapse and readmission—to reduce disruption to their lives and relationships. This is commendable in theory, but we agree with the Mental Health Alliance that in practice there may be considerable problems. From the patient’s viewpoint, compulsory treatment in hospital may often be less restrictive and more supportive than compulsory treatment in the community. 12. Although compulsory treatment will not be enforced at home, troubling elements of coercion remain. Police powers of entry into premises and conveyance to a place of safety threaten to increase fear and stigmatisation, and require safeguards in their application to private property, eg the need for a warrant (compare Section 135 of the 1983 Act). Mental health staV therefore face heightened conﬂict between responsibility for care and “policing” of patients’ compliance with imposed requirements. Ev 1052 Joint Committee on the Draft Mental Bill: Evidence

Are the proposals in the Bill necessary, workable, eYcient and clear? 13. Some proposals either build on the strengths of the 1983 Act or remedy its weaknesses. The use of Tribunals to determine longer periods of detention is a welcome reinforcement of patients’ rights, provided that the system is adequately resourced and eYciently operated. It is a matter of grave concern that Tribunals may sometimes be reduced to one member with legal expertise and no access to clinical input. 14. The principle of multi-disciplinary decision-making at the point of assessment in order to review a patient’s total circumstances is good, but it entails that the contribution currently made by Approved Social Workers must be preserved. While the preference for “competence-based” qualification over fixed roles is justified, it is vital that Approved Mental Health Professionals should be able to assess social care needs and to exercise judgment in independence from employers or clinical staV. 15. The replacement of the “nearest relative” by the “nominated person” corrects a defect in the 1983 Act but we consider that the rights and powers of the nominated person in respect of assessment, admission and discharge fall short of what is desirable. Restrictions on appointment on grounds of “suitability” should be formulated very carefully. 16. The aYrmation of independent advocacy is good, but we deprecate any tendency to distance advocates from the perspectives and interests of service users by professionalising them. Advocates should be involved as early as possible in decisions about assessment, treatment and discharge. 17. We welcome the framework in Part 3 for dealing with oVenders through mental health orders and hospital directions, and are relieved by the abandonment of proposals to extend formal powers to prisons. However, it is essential that people in custody should have access to care equal in quality to that enjoyed by civil patients. 18. Best practice indicates that independent monitoring of detained patients is a crucial element of mental health care. We believe that the transfer of the Mental Health Act Commission’s functions to the Healthcare Commission and the abolition of managers’ hearings would greatly weaken the monitoring system. 19. We are seriously concerned by the removal of the duty of health and social services under Section 117 of the 1983 Act to provide free aftercare for as long as it is needed, and by its limitation, where it is oVered, to six weeks. Should this destabilise patients’ recovery, it will prove a false economy.

Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? 20. We welcome the provision for patients with capacity to refuse consent to ECT. We believe that where capacity is lacking, a Tribunal should authorise ECT only in case of urgent need. The safeguards relating to psychosurgery should be more stringent. Despite the argument from best interests, we believe that Type A treatment (psychosurgery/NMD) should never be undertaken without informed consent.

Conclusion 21. We consider it essential that the impact of the legislation should be carefully and publicly monitored. High quality services cannot be achieved without adequate resources. It will be a test of the Government’s seriousness in reforming mental health law whether it is able to make available the ﬁnancial and human resources necessary to deliver the services required. The Rt Revd Tom Butler Bishop of Southwark Vice-Chair (Public AVairs) Mission and Public AVairs Council October 2004

Memorandum from P Howes (DMH 299) The following memorandum is submitted in response to the Joint Committee of the two Houses of Parliament requesting written evidence on the Draft Mental Health Bill published on 8 September 2004.

Author’s Background 1977 Appointed a Mental Welfare OYcer under 1959 Mental Health Act 1983 Appointed an approved social worker under Mental Health Act 1983 1993–99 Head of Mental Health Services outer London borough 1995–current Appointed Social Work member Mental Health Act Commission 2001–current Appointed Lay member—Mental Health Review Tribunal Joint Committee on the Draft Mental Bill: Evidence Ev 1053

1999–current Mental Health Act Monitoring OYcer NELMHTrust 2001–current Mental Health Trainer, Bucks MHTrust 2001–current Freelance Trainer to the Metropolitan Police Service and Independent Hospitals

Introduction When the Mental Health Act 1983 was passed and subsequently became fully operational, I considered it to be a progressive piece of social legislation giving patients and their carers new rights and entitlements and placing additional responsibilities and duties on Mental Health practitioners such as doctors and Nurses. The Act also introduced many new safeguards for detained patients such as the Consent to Treatment regulations and the establishment of the Mental Health Act Commission to oversee their care and treatment. The other significant development in the 1983 Act was the introduction of Approved Social Workers under S114 of the Act who were given very specific roles and responsibilities when medical practitioners, were considering a person suVering mental disorder should be compulsorily detained in hospital in the interest of their own health and safety or with a view to the protection of others. The crucial role played by ASW in the assessment and detention and care of mentally disordered people has been acknowledged by many mental health organisations (see Royal College of Psychiatrist earlier response to Mental Health Bill and Mental Health Act Commissions 10th Biennial Report 2001–03). The replacement of ASW’s with Approved Mental Health Professional (AMHP) is one of a number of serious concerns I have with the draft Mental Health Bill. Given the Committee request for short responses (1,500 words). I will be concentrating my response on the AMHP proposals and only briefly commenting on a few other themes. The views contained in this memorandum are my own personal views based on 30 years experience of working in Mental Health Care.

Theme 1 I’m not aware that any “unambiguous basic principles” have yet to be published.

Theme 2 I consider the deﬁnition of mental disorder is too broad and concerned that the Bill has removed the speciﬁc exclusions contained in the current mental health act ie “that no one may be dealt with as mentally disordered by reasons only of promiscuity, immoral conduct, sexual deviancy or dependence on alcohol or drugs”. Is it the Governments intention to allow compulsory detention on these grounds alone? If not why remove the exclusions? My concern is that many people with personality disorders or anti-social behavior who for example abuse alcohol or drugs could be inappropriately drawn into the specialist mental illness services. The Bill also abolishes the existing treatability test and given the above is a further area of concern. If its the Government’s intention to try and address the very real concerns about the risks associated with people with such diYculties then I would suggest separate criminal justice legislation be introduced to address these concerns

Theme 2—“Assessment and Treatment in the Community” I believe that Non Resident Orders will drive some people with mental health problems “underground” as they will not wish to engage with mental health services fearing compulsory treatment in the community. This will lead to further social exclusion something the Government has expressly stated it wishes to address. I assume that the Assertive Outreach and Home Treatment teams that are increasingly operational across the country will be given the responsibility of giving medication to people in their own homes, who would in other circumstances refuse it free to do so? This appears to me and to a number of users groups I’ve spoken to as amounting to administration of medication without the patients consent outside a hospital setting. An intervention the Government has expressly stated won’t happen. Additionally these measures will inevitably increase the need to compulsory remove such people should they not co-operate. This will mean at times police involvement to assist in that process. Currently ASW’s already experience delays in police attending ASW’s assessments in the community (MHAC 10th Biennial Report pages 107 and 108) and these measures will only increase the need for police assistance. Many “front line” oYcers I’ve spoken to have expressed their concerns at their ability to, and appropriateness of assisting AMHP forcefully remove “non Resident” people from their own homes to a hospital or clinic for treatment. For the above reasons I have serious concerns whether Non Resident Orders can work in practice.

Theme 3 I do not consider for the reasons outlined in this memorandum that the Bill does achieve the right balance between protecting the personal and human rights of the mentally ill on the one hand and concerns for public safety on the other. Ev 1054 Joint Committee on the Draft Mental Bill: Evidence

Theme 4

I do not consider all the proprosals are necessary and workable. Two examples of my concerns, which I would like to highlight, are the proposed role of AMHP and the new Mental Health Tribunal.

Aprroved Mental Health Practitioners

A mental health crisis (particularly in someone’s own home) is a distressing and often frightening experience for the person concerned and those around them. The use of compulsory powers to remove where necessary such a person to hospital is fraught with practical moral legal and ethical diYculties. The 1983 Act placed the responsibilities for co-ordinating this process on the shoulders of Approved Social Workers. The evidence suggests ASW’s carry out this vital role well. As an example the Social Services Inspectorate in their independent report “Detained—Inspection of compulsory mental health admissions dated 2001 found (page 2): That ASW’s were highly valued both by social services and other professional’s for: — knowledge of social care aspects of mental health supported by the training requirements of Central Council for Education and Training in Social Work (CCETSW); — skills in assessing the needs of people with mental health problems who were often in crisis. ASW’s were the professional group most likely to spend time with people in crisis in their own homes; — skills in working jointly with a range of other professionals including doctors, community psychiatric nurses, police and ambulance and hospital based staV; — the ability to co-ordinate the practical arrangements for hospital admission or the provision of an alternative to hospital where appropriate; and — good levels of knowledge of the Mental Health Act, the rights of users the requirements of the Act in relation to assessments and good quality reports for MHR Tribunal and involvement in aftercare and supervision in the community. Whilst I would acknowledge that other mental health professionals have some of the above skills and others could be gained through training, the core aspects of a social workers training with their specific social care perspective and the statutory independence of the Approved Social Workers under Section 114 of the Mental Health Act means they are the professionals with the right balance of skills to decide whether a citizen should be deprived of their liberty by reason of mental disorder. Often during Mental Health Act assessments in a person’s own home the ASW has to also assist with dependent relatives such as children or elderly parents. Sometimes admission into care is required on other occasions provision of support services are needed. Again an ASW as a Qualified Social Worker has all the right skills, knowledge and training to undertake these tasks. ASW’s as employees of Local Authorities have direct access to other local authority provisions such as care, housing and environmental health services that are often needed during or immediately after an MH Act assessment. If an AMHP who is not a qualified social worker does require any of the above services practical, legal and logistical diYculties will inevitably arise in gaining appropriate, access to these provisions. Further adding to the complexity of any Mental Health Act assessment. My understanding is that many organisations, including Royal College of Psychiatrist have expressed concerns over the proposals to abolish the role of the ASW and replace with AMHP. Why change something, which generally works well? The majority of nurses, occupational therapists and psychologist I’ve spoken to don’t want to become AMHP’s citing ethical, therapeutic and practical dilemmas in the proposals. Whilst there may be shortages of ASW’s in parts of the country this diYculty could be adequately addressed by encouraging and facilitating “non mental health” social workers such as children and families and learning disabilities workers in becoming Approved under the Act. This would have the added benefit of developing Mental Health expertise across all social care provisions and would assist in demystifying mental ill health. In summary I don’t consider the Governments proposals regarding AMHP’s are “necessary, workably eYcient and clear”. Social Workers have had the final responsibility for assessing and where appropriate detaining mentally disordered people for over 40 years. The evidence suggests they carryout this task in a professional and sensitive manner balancing the needs and rights of the person concerned whilst assessing the risks to others. Social Workers don’t enjoy depriving someone of their liberty but accept sometimes it is a necessary role they have to undertake. If the Governments proposals on AMHP become law many ASW’s I’ve spoken to have indicated to me they will “happily give up this additional responsibility and concentrate on their main role as social work practitioners”. This would lead to further recruitment diYculties and response times to MH crises in the community. Recruiting Qualified Social Workers to future ASW training programmers could be problematic in the years leading up to a new Mental Health Act. Joint Committee on the Draft Mental Bill: Evidence Ev 1055

Mental Health Tribunal I am concerned that the proposals for a new Mental Health Tribunal aren’t “workable, eYcient and clear”. My understanding is that these proposals will increase the numbers of Tribunal sittings to either decide whether the conditions for detention are met or to approve a care plan devised by the patients clinical supervisor. As a current Lay member of the MHRT, I don’t see how the Tribunals additional responsibilities can be met without a substantial investment in new members and administrative staV. There are already serious workforce issues in mental health care and these proposals will only add to these problems. Additionally many patients will be concerned about taking a challenge to their detention to the proposed new MHT if the Tribunal not only can uphold the decision to detain but can impose long term treatment. Patient’s perception that Tribunals are an Independent body that can order their discharge will change considerably.

Concluding Remarks I personally support the Government’s good intentions in reviewing and updating Mental Health Act legislation. However, the Government has stated the “existing Act doesn’t adequately protect people from the signiﬁcant risk posed by a minority of patients. It remains based on treatment in hospital and too often has allowed severely ill people outside hospital to drift out of contact with services”. I believe the Government places too much emphasis on risk and insuYcient attention paid to the needs of mentally vulnerable people. The proposed Bill will in my opinion not address the Governments concerns and will lead to some mentally vulnerable, people disengaging with services, thereby increasing risk. I welcome the development of MH Act Advocacy services, although concerned about the level of independence from the detaining hospital. I welcome the additional safeguards for children but am concerned with the abolition of the Mental Health Act Commission and replacing it with the Health Care Commission without a speciﬁc duty to visit and interview detained patients. As I stated earlier I have serious professional concerns about the abolition of the ASW role and the practical diYculties of implementing a new Mental Health Tribunal without substantial additional resources and personnel. Phil Howes CQSW and Diploma in Social Work October 2004

Memorandum from Alcohol Concern (DMH 300) Introduction Alcohol Concern is the national agency on alcohol misuse. It works to reduce the level of alcohol misuse, and to develop the range and quality of helping services available to problem drinkers and their families. Alcohol Concern’s Mental Health and Alcohol Misuse Project aims to inﬂuence mental health policies and develop the capacity of mental health and alcohol services to take account of the impact of alcohol on mental health. Dual diagnosis (co-existing substance misuse and mental health problems) is common and increasing. One third of psychiatric patients with a severe mental illness have a substance misuse problem (most commonly alcohol), and half of clients in alcohol and drugs services also have another mental health problem. Having more than one period of detention under the Mental Health Act (1983) is a risk factor for dual diagnosis. Alcohol Concern is an associate member of the Mental Health Alliance.

Summary — The deﬁnition of mental disorder should be clariﬁed, to make explicit that intoxication is not in itself a mental disorder. — The Bill should make it clear that people who are intoxicated should not be excluded from assessment. — The concept of acute risk should be introduced into the conditions for compulsory treatment, in order to prevent inappropriate use of the Act to address chronic risk behaviours (such as alcohol dependency). — Where there is no acute risk, people who are alcohol dependent, but have no other mental disorder, should not be subject to compulsion. — The compulsory treatment of addiction for people with a dual diagnosis should be excluded, except insofar as this treatment is necessary to enable treatment of the mental illness. — There should be an emphasis on co-ordinated treatment between alcohol and mental health services, in line with other Government alcohol and dual diagnosis policy. Ev 1056 Joint Committee on the Draft Mental Bill: Evidence

— There is an urgent need for adequate resources, training and increased capacity to cope with the inevitable increase in people with a dual diagnosis in the mental health system.

Evidence

Theme 2. Is the deﬁnition of Mental Disorder appropriate and unambiguous? Are the conditions for treatment and care under compulsion suYciently stringent? Are the provisions for assessment and treatment in the Community adequate and suYcient?

1.1 Alcohol Concern welcomes the removal of the exclusion relating to alcohol misuse in the definition of Mental Disorder. We believe that this exclusion in the 1983 Act led to the inappropriate exclusion of people with a dual diagnosis from the protective, often lifesaving, provisions of the Act. In our view, there should be powers to detain for assessment people who are intoxicated or alcohol dependent, when they pose an acute risk to themselves or others. There should be powers to detain for treatment people who have co- existing mental health and alcohol problems, where appropriate. 1.2 The definition of mental disorder needs further clarification to remove ambiguity. We would recommend that it is made explicit that intoxication alone should not be viewed as a mental disorder; it was clearly not the intention that being drunk and being reckless should bring an individual under the scope of the Mental Health Act. 1.3 In addition, the Bill should make it clear that intoxication, although not a mental disorder in itself, should not be a reason to deny an individual assessment under the Act if there is suspicion of other mental disorder. It is important that individuals who are experiencing mental disorder and are posing an acute risk to themselves or others, do not fall through the net of the Act simply because they are intoxicated. 1.4 In the case that an intoxicated person is detained for assessment, assessment periods should be suYciently brief to allow quick exit from the system if it becomes apparent that conditions for compulsion are not met. 1.5 The definition of mental disorder would include alcohol dependency (which appears in the “Diagnostic and Statistical Manual of Mental Disorders”), which creates the possibility of the Act being applied to people on the basis of their drink problem alone, rather than only in the case of a drink problem and mental illness (caused by alcohol or otherwise). 1.6 In view of this, although the raised threshold of harm to self is an improvement on the looser definition in the previous draft, the conditions for treatment and care under compulsion are still not stringent enough. Alcohol dependency in itself could be viewed as serious neglect by someone of their health and safety, and under these conditions could be seen as a basis for compulsory treatment. 1.7 Alcohol Concern would strongly argue that there should not be compulsory treatment of addiction for people with alcohol problems alone. This would cast the net of the Mental Health Act impossibly broadly, potentially to 2.9 million dependent drinkers in England. There is also a risk that fear of compulsory treatment would prevent many people with alcohol problems from seeking help. 1.8 When considering in which circumstances people with alcohol problems should be subject to compulsion, we would like to see a distinction made between acute and chronic risk. Alcohol dependence is in itself a chronic risk-taking behaviour. The intent of the Act is to intervene in acute risk situations. We would argue that where there is not an acute risk of harm to self or others, alcohol dependency alone should be excluded as a condition for compulsion. 1.9 Where there is an acute risk of harm, and the conditions are met, we support the protective provision of compulsory treatment for those who have co-existing alcohol and mental health problems. However, the compulsory treatment of addiction for people with a dual diagnosis should be excluded, except insofar as this treatment is necessary to enable treatment of the mental illness. Similarly, there should not be compulsory treatment of addiction in the community.

Theme 3. Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?

2.1 Alcohol Concern believes that the human rights of alcohol dependent people would be contravened if they were forced into compulsory treatment solely on the basis of their alcohol problem. 2.2 However, alcohol dependent and intoxicated people have the right to assessment to ensure that, where appropriate, they receive the protection of the Act. Joint Committee on the Draft Mental Bill: Evidence Ev 1057

Theme 5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill? 3.1 Removing the exclusion of substance misuse is likely to lead to an increase in compulsory treatment of people with dual diagnosis. To deal with this eVectively, Alcohol Concern would like to see more emphasis on joint working between mental health and specialist alcohol treatment services, as highlighted in other Government policies. The Department of Health’s Dual Diagnosis Good Practice Guide stresses the importance of liaison between alcohol and mental health services, for example when developing care plans. The Alcohol Harm Reduction Strategy for England identiﬁes “a risk that alcohol treatment for vulnerable groups [including people with mental health problems] might fail due to lack of co-ordination of treatments and services”. There should be an emphasis on co-ordinated treatment to avoid this.

Theme 10. What are likely to be the human and ﬁnancial resource implications of the Draft Bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill? 4.1 Removing the exclusion of substance misuse is likely to lead to an increase in compulsory treatment of people with dual diagnosis. This will exacerbate the current lack of knowledge in the mental health ﬁeld on dealing with alcohol problems. 4.2 For the mental health service system to be able to cope with this, there is an urgent need for adequate resources, training and increased capacity. Without this, in-patient services, for example, are likely to struggle to treat people with dual diagnosis, and the treatment of other patients (who may have very diVerent needs) may also suVer. 4.3 The accreditation and training criteria to be developed for the new Approved Mental Health Professional role must include alcohol misuse and dual diagnosis. Knowledge of dual diagnosis is also essential for the other new roles being created. October 2004

Memorandum from Vicky Yeates (DMH 302)

I am Vicky Yeates, Senior Lecturer in Law at the University of Glamorgan, and a carer for someone with a severe mental illness. My concerns stem from the fact whilst there are 5.2 million carers in this country, with over half of this number caring for someone with a mental illness, this Bill proposes an extreme and unwelcome diminution in the rights of those carers to challenge to use of compulsory powers in relation to the person they are caring for. The Bill proposes abolition of the status of nearest relative and its replacement with a nominated person. Nominated persons will not have the same rights as the nearest relative, and, unlike the current nearest relative, their involvement would begin only after compulsory powers have been imposed.

The Removal of the Nearest Relative and the Diminution of Family Rights Under the Mental Health Act 1983 the nearest relative is identiﬁed in accordance with section 26. A person who is a relative and who is providing or intending to provide substantial care will go to the top of the list, so the carer is nearly always the nearest relative, and is entitled to exercise the rights and powers which go with that role. This represents a fair balance of responsibilities and rights necessary to sustain a role that is often arduous, painful, and open-ended.

What are the nearest relative’s rights under the 1983 Act? — Only nearest relatives and approved social workers have the power to apply for the exercise of compulsory powers, whether for assessment, treatment or guardianship. — The right to be consulted when an ASW is considering compulsory admission. This consultation role has been deﬁned by case law in 1986 to mean “ a genuine invitation to give advice, and a general consideration of that advice”. This right provides a ﬂoor of entitlement, which promotes a real and robust process of family involvement at a critical stage on the route to possible compulsion. — The right to have one’s wishes taken into account in relation to detention for assessment (section 2). Although there is no power to block detention for assessment, the nearest relative must be told of their right under section 23 to order the discharge of the patient. Ev 1058 Joint Committee on the Draft Mental Bill: Evidence

— The power to discharge under section 23 is exercised by giving 72 hours notice to the hospital. Unless within that 72 hour period the patient is certiﬁed by his or her psychiatrist to be a danger to self or to others they must be discharged. If the psychiatrist blocks discharge by issuing a barring certiﬁcate, the nearest relative can then apply to a Mental Health Review Tribunal for the issue of danger to self or others to be independently determined. — The right to veto compulsory powers in relation to detention for treatment under section 3. Only if the nearest relative’s objection to detention is unreasonable can s/he be displaced. If the patient is already detained for assessment, the detention for assessment continues until the county court hears the displacement application. Hence under the 1983 Act the family’s role (where there is one) as the primary locus of care within the community care system is recognised in the nearest relative provisions which provide the main protection against medical misjudgement and potential misuse of state power.

How will this change? The Richardson Committee heard legitimate concerns that current law does not allow a patient the right to apply for displacement and replacement of an unsuitable nearest relative. These concerns were reinforced by the case of JT v United Kingdom (2000) where the European Court of Human Rights held that it was a breach of the right of respect for privacy that JT had no right to seek displacement of her mother as nearest relative, when the mother was living with a man who had abused JT. The Richardson Committee responded to these concerns by recommending the removal of the nearest relative altogether, to be replaced by the nominated person, who would have significantly fewer rights. The decision in JT v United Kingdom could have been complied with by simple amendment of the 1983 Act entitling the patient to seek displacement of an unsuitable nearest relative, without abolishing the important powers and rights which go with the nearest relative role. I would have been in favour of this Under the Bill carers have rights to be consulted in their capacity as carers, but the only person with rights to challenge compulsion before the Mental Health Tribunal (other than the patient) will be the “nominated person”. The Bill abolishes nearest relatives’ rights to object to compulsory admission for treatment and to direct discharge of a patient who is not dangerous to self or others. Whilst under the 1983 Act the carer will almost automatically be the nearest relative, the carer will not necessarily achieve nomination as nominated person under the Bill. This is potentially very divisive within families and could damage relationships as the situation is envisaged where the carer bears responsibility for care, but does not even have the powers of the nominated person, limited as they are. The Mental Health Bill recognises two figures with a more limited say in the compulsory process. The first is the nominated person, who has the right to be consulted at various points about the wishes and feelings of the patient, and the right to apply to the Tribunal for discharge or transfer. The nominated person will normally be appointed only after the patient has been made liable to compulsory assessment. The second is the carer. Unlike the nominated person, the carer must be consulted prior to compulsion when the appropriate authority is deciding whether an assessment should be made of the need for compulsory powers. But the carer does not have an automatic right to be consulted. Usually, wherever the carer is to be consulted, the patient must first be consulted (unless inappropriate or impracticable), and then the decision to consult is subjected to an exercise of discretion on the part of the AMHP as to whether it is appropriate to consult, having regard to the patient’s wishes. Even if the carer clears these two hurdles the consultation is limited to merely expressing the wishes and feelings of the patient. The right to challenge the exercise of compulsory powers at an early stage will be eVectively removed, and even the limited right to be consulted is subject to the wide discretionary power of the mental health professionals to determine appropriateness. This prompts the question whether carers who challenge compulsion will fall foul of this discretionary power. Seeking patients’ views when they are deemed ill enough to be considered for compulsion ill is fraught with pitfalls. Although a patient might be deemed capable they may experience temporary skewing of their judgement. AMHPs will find themselves having to make judgements about families against a snapshot view. It seems this Bill replaces the presumption of carer beneficence with one of family dysfunction and this is to be regretted. A family member who meets the definition of carer should be entitled to consultation at the point of deciding about compulsion, and should be entitled to object and to seek discharge if the patient is not dangerous to self or to others The nominated person will not be appointed until after the exercise of compulsory powers. Whilst preference is given to patient choice (the same reservations may apply here as to the consultation with carers—judgments can be skewed and not representative of normal family dynamics) the patient’s preferred person may be overridden and replaced by the “most suitable eligible” person, in the opinion of the appointer. Much professional time will be bound up in implementing a very complicated system of adjudging and appointing. This process may appear to embrace patient autonomy but it is a mere veneer. The greatest protection the patient can be aVorded by another family member is the power to prevent admission in the first place, rather than the belated right to request discharge once detention is already operating. This is particularly relevant given the wide definition of mental disorder in the Bill and the fact Joint Committee on the Draft Mental Bill: Evidence Ev 1059

that any person may make a request for an assessment. For this reason the nearest relative concept and rights should be retained, so that there is someone prior to compulsion with automatic rights to challenge the need for it. In addition to the much reduced rights of the nominated person compared to the nearest relative, clause 239 allows the functions of the nominated person to be further reduced to such an extent that there may seem little point in his/her continuing in the role. The AMHP will also have the power to remove a nominated person deemed to be unsuitable in the opinion of the AMHP. Again, we witness this potential exercise of discretion against a presumption of suspicion towards family members. I feel there is a risk that this amount discretion being vested in the AMHP will inevitably lead to tensions in the essential dialogue between family members and the care team.

Implications of the Bill for Families who care for a mentally ill loved one As well as noting the reduction in rights and the tiling of the power balance away from the family and in favour of the state, it is important to consider the implications of the Bill for the role of carers and family members. How does the Bill see carers? In a certain way it sees them as unpaid members of the care team. The explanatory material accompanying the Bill emphasises the usefulness of carers as sources of accurate information about the patient. Carers are seen as appropriate people to be consulted about the patient’s wishes and feelings and about the impact of any decision on them as carer, and informed if the patient is to be discharged into their care. How does the Bill see family members? So much importance is laid on family relationships in every area of social policy that it is alarming, if not exactly surprising, to see how the presumption that families generally act beneficently to their members is replaced in relation to families of mentally disordered people by what amounts almost to a presumption of family dysfunction. Clearly the idea is deeply unfashionable with policymakers that a person should be presumed to be a bearer of rights by virtue of close family or personal relationship coupled with a role as caregiver to a person with mental illness. A controversial aspect of the Bill is the provision that non-resident patients may be required, by their clinical supervisor or the Tribunal, to desist from specified conduct. There is no limit on the conduct which may be specified. Is the additional role community custodian to be imposed on carers and family members. It will be all too easy to persuade carers to take on the role of enforcing conduct conditions, if this will result in their loved ones avoiding detention in hospital. If carers find themselves having to exercise a policing role in order to ensure compliance on the part of their loved one, this would introduce yet another pressure into an already diYcult caring role. Vicky Yeates University of Glamorgan Law School October 2004

Memorandum from M Jessop (DMH 303) My name is Margaret Jessop and I write as one who has a diagnosis of a serious mental illness. Although I cannot claim to represent anyone but myself, I would like to reinforce the deep concerns about the Draft Bill expressed by so many others—patients, professionals, managers, lawyers and mental health charities alike. In particular I would like to address some of the themes listed by the Committee and the numbering used is as set out by them. 1. It is very diYcult to understand what are the draft bill’s basic principles and aims. Principally, they seem to be a reaction to our perceived dangerousness, but as far as I am aware there has been no perceptible increase in violence perpetrated by those diagnosed as mentally ill for over 20 years, while violence in the “sane” population has soared. The bill also overestimates the ability of psychiatrists to predict the future behaviour of their patients and the “eVectiveness” of the drugs used to treat us. Even the pharmaceutical companies would not claim that they can oVer a core, only alleviate our systems. Compulsion should always be a last resort as both being forcibly removed from one’s home by the police is exceedingly traumatic, as is being pinned down and injected in the buttocks. This last is the reality of forced medication. The above also, of course, applies to compulsion used to protect us from ourselves. 2. I can foresee very adverse aVects from attempting to use compulsion in the community resulting in a complete breakdown of trust between and those responsible for our care. How can one be compelled to use cognitive behaviour therapy or participate in education in any meaningful sense, to cite some of the suggested treatments? It is important that the committee seek evidence from community mental health teams on this. 10. The bill is very long and complicated and even attempting to implement it will involve considerable expenditure in staV training alone. It could also increase staV shortages if imposed against their wishes. How are the expert panels for the tribunals to be recruited? Is the Government intending to provide extra money for this? Have they done any sort of cost beneﬁt analysis? Ev 1060 Joint Committee on the Draft Mental Bill: Evidence

Finally, I would ask members to consider the reality of the existing state of mental health services—a Cinderella service by the Government’s own admission. Certainly in London you have the paradox that the state of far too many psychiatric wards is deﬁnitely untherapeutic and even actually harmful to the mental and physical health of both patients and nurses, yet there is well over 100% bed occupancy. You are therefore unlikely to be oVered admission unless you are extremely unwell. Services are also often diYcult to access, particularly out of hours. I am sure that if clinical staV were able to respond quickly and sensitively to our concerns and those of our carers and friends it would prevent many more tragedies than the proposed Bill. Please also remember that we are supposed to be ill not deliberately evil and that we need to be able to trust that those looking after us have our best interests at heart. Tender loving care could work wonders. October 2004

Memorandum from Songhai (DMH 306)

Introduction

1.1 Songhai is a voluntary sector organisation dedicated to developing modernised mental health services for black and minority ethnic communities (BME). It has played a major role in supporting the establishment of the Black and Minority Ethnic Mental Health Network. Songhai is involved in many alliances and partnership work including the Mental Health Alliance. We have considered the views of several organisations as well as services users and carers in making our submission. 1.2 Our response to the Bill is largely based on our work with members of the black and minority ethnic communities. The issues surrounding race and mental health are well documented and long standing. Our concern therefore is to respond to the proposed Bill in the light of some of these long standing issues so as to ensure that impact of any new legislation does not disadvantage BME communities further. 1.3 The compulsory institutionalisation of BME communities in places that have been proven to be racist is now well versed. It is also common knowledge that members of the BME communities are more likely to enter the mental health system through the criminal justice system. The distrust and fear of services have been critical factors in determining both the pathways into care as well as the onset of more severe conditions before services are sought. 1.4 There is also well documented work which has shown that members of the black and minority ethnic communities are more likely to be misdiagnosed and diagnosed under psychotic conditions and treated using medication which is often of a higher dosage. Culturally appropriate and acceptable behaviour has also been wrongly construed as symptoms of abnormality or aggression. The recourse to advocacy, tribunals and to appropriate care packages has been slow to positively impact on BME communities. 1.5 We welcome the opportunity to be able to comment on the draft Mental Health Bill. We believe that there are some elements in the Bill that can be positive with the appropriate guidance on their interpretation. 1.6 Overall we believe the guidance and general principles will be critical in a Bill that uses broad categories of deﬁnition which can leave a lot to interpretation. As part of the general principles, we think the Bill should be set in the context of human rights and equality, respecting the diversity of people and their individual needs. There should be clear links made to the various equalities legislation, of particular interest to us is the link to the Race Relations Amendment Act and the Delivering Race Equality document currently being redrafted by National Institute for Mental Health in England. 1.7 We support the submissions by National Black and Minority Ethnic Mental Health Network, Mental Health Alliance, African and Caribbean Mental Health Commission and Transcultural Psychiatry Society. Our speciﬁc response to the Bill covers the following areas: compulsory admission, treatment, advocacy and Safeguards.

2. Compulsory Admission

2.1 Chapter 1 Paragraph 9 deﬁnes the conditions for compulsory detention. We are gravely concerned about the implications of subparagraphs (7) and (8). We believe that if the Bill is enacted as it stands, it will substantially increase the number of people who are compulsorily detained, without any appropriate treatment being available to them. As with all other forms of detention, we believe that black and minority ethnic people are more likely to be detained under these new categories. We therefore request from the Committee to remove these paragraphs from the Bill. 2.2 If our request is rejected, measures should be put in place to ensure these powers are not used disproportionably against members of black and minority ethnic communities. Joint Committee on the Draft Mental Bill: Evidence Ev 1061

3. Treatment 3.1 We welcome the addition of non-medical forms of treatment including counselling and psychological intervention. However, when a wide deﬁnition of treatment is used within a bill that is largely centred on detention and compulsion, it naturally raises concerns about the coercive nature of these treatments. This could lead to people being detained to receive treatment, but this treatment amounting to no more than staying in hospital.

4. Advocacy 4.1 We believe that access to an Independent Mental Health Advocate is critical for black and minority ethnic communities. Given that BME communities are more likely to be misdiagnosed, compulsorily detained and oVered treatment options that are inappropriate and often harmful, access to advocacy should be immediate and not delayed. The immediate appointment of an advocate would save time in contesting the diagnosis or treatment. 4.2 Beyond this, the advocate also plays a crucial role for black service users because of the services they receive whilst in care. Apart from pockets of good practice, mental health institutions do not adequately deliver to the religious, cultural and linguistic needs of their BME service users. The lack of staV competencies in these areas often results in discriminatory or sometimes racist practices and further isolates and excludes black service users. 4.3 In order for the advocacy to be eVective, we believe that the skills of the advocate are very important. The advocate will need to play a crucial role to challenge any discriminatory practice as well as secure more appropriate provision. This requires advocacy skills as well as a good knowledge and appreciation of the issues relevant to the service user. Training that will equip advocates to best fulﬁl this role is important. We believe that the allocation of 140 extra advocates will be insuYcient if they are to fulﬁl their role eVectively. Properly trained, advocates that are able to deliver to diverse needs and that are not over stretched will ensure a better use of this resource.

5. Safeguards 5.1 We are concerned that many of the current safeguards protecting patients from unlawful detention and inhumane and degrading treatment whilst detained have been removed or substantially reduced under the draft Bill. 5.2 Under the current legislation hospital managers review the detention of the patients when a section is renewed or if the patient appeals. In recent years many Trusts have made an eVort to recruit from their local communities and even service users, ensuring that the managers’ panels reﬂect the diversity of the community they serve. The new recruits have learnt to be independent and to hold professionals to account. In addition, hospital managers are increasingly using their powers to order additional reviews to ensure there is a degree of progress for long-term patients. Under the new proposals this layer of accountability and review will be totally removed. 5.3 Although we welcome some of the additional roles for the tribunals, we believe that by their nature, the tribunals will be more remote from the local populations, and they will be less likely to mirror the cultural and social backgrounds of the patients. 5.4 We also believe that the cost and staYng implications of the tribunals have not been considered adequately. This will lead to much longer waiting times and consequently many people will be detained unnecessarily. Again, disproportionate numbers will be from BME communities. 5.5 We believe that within a relatively short time the detaining authorities will be challenged under various articles of the Human Rights Act for denying access to fair hearings in reasonable time, as more and more cases will be held up waiting for tribunals to take place. 5.6 We are also concerned that the abolition of the Mental Health Commission and inclusion of some of its functions under the Healthcare Commission will dilute this vital role, and will result in the loss of the expert knowledge and skills developed over many years.

6. Conclusion 6.1 We concur with the widely held view that some aspects of this Bill are more concerned with law and order issues rather than care of mentally ill people. 6.2 People from black and minority ethnic communities have consistently been overrepresented and mistreated within the law and order system. We believe that unless this Bill is reviewed and substantially improved it will add to this injustice and increase the alienation and social isolation of substantial sections of the community. October 2004 Ev 1062 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Bedfordshire, Buckinghamshire, Luton and Milton Keynes Consortium (DMH 307) We note some improvements made to the 2002 draft eg carers’ rights to be considered, safeguards for children and young people and ECT for patients over 16.

We are aware that you have received detailed responses to the new draft and we wish to add our voice to the consultation process in order to highlight our remaining concerns about the Bill: — consultation period too short; — new draft does not appear to mention the Mental Capacity Bill; — we are asked about the Regulations and Code of Practice yet they are not due to be published until 2007! — continued concerns about the abolition of the Approved Social Worker role and the introduction of the role of the Approved Mental Health Professional. The ASW role is unique in that the practitioner, employed by the local authority to perform this role, operates independently with personal accountability. We are concerned also that opening the role up to other professionals will detract from their clinical work; — the deﬁnition of “mental disorder” remains vague and too broad; and there are no exclusions as in the 1983 act, exclusions which serve to prevent unnecessary detentions. It appears also as likely to lead to breaches of individuals’ Human Rights; — the introduction of the concept of a “Nominated Person” is good in principle, but for the Approved Mental Health Professional to appoint this person at the time of a patient’s admission seems problematic; — re: Mental Health Review Tribunals; the availability of panel members is currently very limited leading to regular abuse of patients’ rights. Under the new proposals MHRTs will be doubled. The implications are obvious; — there are huge ﬁnancial and other resource implications: — in recruiting advocates, where will they come from? — and recruiting staV into new specialist teams is currently proving very diYcult throughout the country; — we will need, as “available and appropriate treatment”, specialist local community and in- patient units for people with severe personality disorders (acute psychiatric wards are not set up to cope with people with substance abuse and personality disorder); — we are reducing in-patient beds before other community services—including respite beds— are established and then fully staVed. These services will be essential for patients on Non- Resident Treatment Orders. We are very concerned about the transition period between the 1983 Act and the implementation of the new Bill. Trusts throughout the country are in diVerent states of readiness and, therefore, planning and timing is crucial. Rosemary Tolley on behalf of the ASW’s of the Bedfordshire, Buckinghamshire, Luton and Milton Keynes Consortium October 2004

Memorandum from Dr Andrew S Horne, Consultant Forensic Psychiatrist, Broadmoor Hospital (DMH 308) 1. Summary 1.1 Arguments from principles and about the eVective protection of the public suggest that the power of the Home Secretary to authorise the transfer of restricted patients between hospitals and to grant them leave of absence should be given to the Mental Health Tribunal. Under the Bill the tribunal is to have these powers in relation to unrestricted patients, but ss147 (4) and 148 (6) speciﬁcally bar it from changing anything to do with transfer and leave of absence in restricted cases. It is essential that the CHAI should be free to review the handling of restricted patients.

2. Background 2.1 A restriction order may be attached by a court to a hospital order if it considers it necessary in order to protect the public from serious harm, and a restriction direction is imposed by the Home OYce when a prisoner (usually sentenced) is transferred from a prison to a psychiatric hospital. The purpose of the restrictions is to protect the public by ensuring that the psychiatrist does not handle the case in an inappropriate way. The psychiatrist in charge of a restricted patient sends a report to the Home OYce Joint Committee on the Draft Mental Bill: Evidence Ev 1063

annually, and writes to seek permission when he wants his patient to have leave of absence or be transferred to another hospital. When the patient is conditionally discharged reports are required much more frequently and there is normally a social supervisor as well as the psychiatrist. The Home OYce receives copies of MHRT reports, on which it may comment, and the Home Secretary has the right to be heard at tribunal hearings. On very rare occasions the Home Secretary seeks an independent report from a psychiatrist of his choosing, usually if he fears a tribunal may discharge a patient inappropriately. A conditionally discharged patient can be recalled to hospital by the Home Secretary by warrant, normally at the request of the treating psychiatrist. 2.2 The assessment of reports and requests from psychiatrists and the preparation of comments to the tribunal (“no comment” unless a report is recommending discharge) is done by civil servants at the Mental Health Unit. They have no relevant professional qualiﬁcations, and carry out their work by checking the reports against lists of questions to which answers are required. OYcials often write to the psychiatrist for further information, but the virtually never telephone the psychiatrist to discuss the case. Occasionally, where there is disagreement, an oYcial can be persuaded to attend a case conference. OYcials make their decisions without ever having the beneﬁt of an interview with the patient. I have never known an oYcial to meet with a patient or send a psychiatrist to assess a patient in order to assist him with making a decision. 2.3 If the Secretary of State were monitoring the management of conditionally discharged patients eVectively one would expect him to be initiating the process of recall on occasions having concluded that the risk the patient is presenting appears greater than the psychiatrist thinks it is. I am not aware of any case in which this has happened. To the best of my knowledge discussion of recall is always initiated by the psychiatrist.

3. The Issues 3.1 Patients are sent to hospital by courts on hospital orders and from prison on transfer directions for medical treatment. The need for medical treatment should be the only consideration and it is wrong in principle for the executive to have an influence. 3.1.1 If medical treatment is needed then it should be provided. The apparent discretion of the Secretary of State not to authorise the transfer of a prisoner to hospital should be replaced by a duty to authorise it. (Ss 133 (2), 135 (3), and 137 (2). I know of one case where the Secretary of State delayed the transfer to hospital of a seriously ill man for four years. 3.2 When a patient is in hospital his treatment there and any moves to other hospitals to further that treatment and his return to prison, if any, are medical matters. It is wrong in principle for the executive to have an influence on them. 3.2.1 Decisions about leave for and transfer of restricted patients should be taken by the tribunal, not by the Secretary of State. I argue below that the tribunal would be more eVective than the current system. 3.2.2 The eVect of a hospital order and restriction order is very similar to the eVect of a life sentence—a period of incarceration which continues until it is safe to end it. The power to set the tariVs of lifers and the power to determine whether a lifer is released on licence have been removed from the Secretary of State to the courts and Parole Board in recent years, on the principle that such weighty decisions aVecting individuals must be seen to be made fairly and without political influence. The same principle must surely apply to restricted patients. 3.3 The Secretary of State should not be able to over-rule psychiatrists’ decisions about the management of restricted patients unless he has contrary medical advice. 3.3.1 It is only a matter of time before this established in court. Senior oYcials admit that they are not qualified to assess the risk that a patient presents and say that their staV do not do risk assessments, asserting that they merely check the consistency of the reports received from the professionals. This is clearly incorrect, because they do on occasions disagree with the treating psychiatrist about risk quite explicitly, and they do this without obtaining any expert evidence of their own. Under the Bill the tribunal will have a Medical Expert present to advise it about the merits of the case. 3.4 A large majority of the important decisions are already being made by the tribunal. 3.4.1 The important decisions are those about conditional discharge—where a patient is discharged from hospital to live in the community subject to supervision and certain other conditions—and 90% of these decisions are made by the tribunal. Patients time their applications to the tribunal carefully, and it is much easier and more satisfactory from the psychiatrist’s point of view to deal with matter at the tribunal, debating the issues face to face, than to engage in lengthy correspondence with the Home OYce and wait months for the outcome, which still may not be favourable. So the role of the Home OYce is virtually limited to decisions about leave of absence and transfer between hospitals—from high security to medium, and from medium to low—which are mostly low risk decisions. 3.5 The tribunal could perform the task more is eVectively than the present system. 3.5.1 Questions about whether a patient can be granted leave or a transfer to another hospital are answered by considering all that is known about the patient, including his interests and skills and propensities, the relationships he builds with staV, the rate at which his illness deteriorates if he stops taking Ev 1064 Joint Committee on the Draft Mental Bill: Evidence

his medication, the opportunities which the change would make available to him, and so on. The psychiatrist and clinical team know the patient well, having had a relationship with him often for several years, interviewed him on many occasions, watched his interactions with other people, and seen his habitual coping strategies, insight and knowledge of his condition increasing as treatment progressed. When a tribunal considers whether to order a conditional discharge the professionals involved are subject to far more searching questioning that an oYcial at the Home OYce can possibly achieve through correspondence. 3.6 When the Secretary of State makes an erroneous judgement about transfer from high security to lower security there is no eVective appeal. 3.6.1 European law requires that a detained patient must have a right to appeal to a judicial body, and it was as a result of this principle that the tribunal was given the power to discharge restricted patients. However, most patients in high security cannot be discharged because they need a period of rehabilitation in lower security ﬁrst. If the Secretary of State erroneously refuses to allow such a patient to be transferred to lower security the power of the tribunal to discharge is useless to him. His only options are to challenge the secretary of State on a point of law by way of judicial review which is extremely diYcult to do, or to get the tribunal to make an informal recommendation that he should be transferred. Many patients do achieve the latter, often several years running, and the Secretary of State simply ignores the recommendations. 3.7 The oversight of the management of conditionally discharged patients could possibly be best achieved through meetings between the supervisors and the Medical Expert in place of reports to the Home OYce. 3.7.1 The supervision of a conditionally discharged patient in the community is much more diYcult than his management in hospital because of the possibility of the patient deceiving his supervisors or simply not telling them what he is getting up to. Supervision may continue for many years with changes of supervisors as people change jobs and perhaps a change from a forensic psychiatrist as supervisor to a general psychiatrist. It is all too easy for the psychiatrist and social supervisor to become complacent and forget what the patient is capable of. The best way of preventing this is for the supervisors to meet with another person, probably a Medical Expert from the tribunal, to review the case. The Medical Expert’s role would be to monitor the situation carefully and critically and ensure that the facts of the case and the patient’s propensities are always kept in mind by the supervisors. 3.7.2 Clearly this proposal would need to be discussed at length with the Royal College of Psychiatrists and a better solution might well be found. But the Act would only need to specify that the tribunal’s power to oversee the handling of restricted patients, and the details of practice could be worked out later in the Tribunal Rules. 3.8 However the oversight of restricted patients is achieved, it is essential that the process is audited. 3.8.1 Section 260(6)(b) speciﬁcally bars CHAI from reviewing or investigating the management of restricted patients. This is most unfortunate because it means that opportunities to improve the system and so to protect the public better will be missed. CHAI is however free to review and investigate the Tribunal. November 2004

Memorandum from people currently in receipt of hospital care, Epsom General Hospital (DMH 309)

Due to the concerns people have about the Draft Mental Health Bill, discussions were held at Elgar Ward, Epsom, Surrey. With and on behalf of the people present their views have been collated for your attention. The following speciﬁc subjects of concern are: 1. The extension of Police powers. 2. The provision of Community Services and Community Treatment Orders and the discharge of people from hospital without adequate support. 3. The reduction in hospital bed numbers, and pressure on existing staV such as Community Psychiatric Nurses. 4. Demoralised staV/Hospital Conditions. 5. The ability of anyone potentially to request a Mental Health Assessment for someone else. 6. The inspection programme. 7. Powers of the Psychiatrist. 8. Advocacy, legal representation and Tribunals. Joint Committee on the Draft Mental Bill: Evidence Ev 1065

Speciﬁcally:

1. Police Powers Several instances of excessive force were described, where the Police had broken down doors to get to people. On one of these occasions, an elderly relative suVered shock and diYculties with their heart. The Draft Bill may increase such incidents, as a Warrant will not be required. With adequate training, force is mostly unnecessary, and the current Mental Health Act provides adequate safeguards. 2. There are potentially good services already for supporting people after their discharge from hospital. The Crisis Action Treatment team, for example, in this area is there to help someone with their recovery at home. A therapeutic service which sadly, was underfunded from the start, and poor communication systems mean supported recovery turns into a readmission for some people. The Draft Bill, with Compulsory Treatment Orders at a person’s home is a reminder of the negative experiences leading to readmission to hospital. This will increase the stigma people experiencing mental distress already have to face. 3. Too many hospital beds have been lost to Mental Health Services. This puts too much pressure on other services. The Draft Bill adds more pressure on existing services, as crisis situations will need more and more to be managed in a community setting, which is not always appropriate. Community Psychiatric Nurses are already having to work with more people than time and resources allow.

4. Demoralised Staff/Hospital Conditions An example was given where a daughter of one person present had left nursing because of pay and conditions. A lack of respect by policy makers for the Mental Health services and staV turns into situations of a lack of respect for service users. With very few meaningful activities, the people detained under the current Act, have few outlets for expressing themselves. Mixed sex wards are disliked immensely. There is a shortage of gym or other recreational equipment—an example given was the young men on the ward who have very little to occupy their time. The Ward here needs refurbishment. The Draft Bill does not address the need for a therapeutic place to recover from mental distress. 5. It is not clear who can refer someone else for an examination of their mental health. This is very worrying, as it could potentially be an area where personal grudge comes in. We think this referral route’s scope is too wide, and open to misinterpretation. 6. The Inspection programme for hospital and community services are areas of concern. A much more regular programme of Independent Inspection is asked for. It is also currently diYcult to know how to contact the relevant Inspection authorities. 7. Someone can be Sectioned under the current Mental Health Act because the Psychiatrist holds diVerent beliefs to the “patient”. The psychiatrist’s beliefs hold supremacy. Along with the extra powers in the Draft Bill, these instances will be more prevalent. 8. Currently not enough time is available to meet with a solicitor for a Mental Health Act Tribunal. In one instance relevant notes were handed to the Solicitor and patient ﬁve minutes before commencement of the hearing. Medical notes were stated as not available for certain people. If this happens now, what will happen with the profusion of applications the new Bill will generate? A Positive: ECT—the Draft Bill is an improvement on the previous one because of the choice given to patients to refuse their consent.

Summary The overall negative stance of the proposals in the Draft Bill is one of horrifying possiblities. People do not want to be isolated at home. A holistic approach to health is desired. This includes suitable housing, but this should not stop an overall approach to fulfilling equally important facets of their needs for good health. We hope you will fully consider our views, and perhaps visiting or experiencing our comments from the “shop-floor” is necessary to achieve a common-sense and just decision when final action is taken regarding this Bill. Mrs Anne Pringle, Mr Philip Ruthen With and on behalf of people present at Elgar Ward Epsom General Hospital October 2004 Ev 1066 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from All Wales Senior Nurse Advisory Group (DMH 311) I wish to advise you that at a recent meeting of the All Wales Senior Nurse Advisory Group for Mental Health the implications of the Draft Mental Health Bill were considered. The following issues represent the key concerns and considerations in respect of the implementation of a new Mental Health Bill, as outlined in the draft Bill from a mental health nursing perspective.

The Mental Health Workforce — We are concerned about the capacity of the existing workforce being able to meet the requirements of the proposed Bill. There are many services in Wales struggling to recruit appropriately skilled and experienced mental health nurses and there are inadequate numbers of students being trained to meet existing workload demands. If the Bill is enacted within the next three years there will be inadequate resources within the mental health workforce to ensure compliance with the new and somewhat bureaucratic arrangements, which will underpin the Bill. The need to enhance admin and clerical support must also be recognised. — Implementation of the National Service Framework in Wales must be acknowledged as a fundamental pre-requisite to ensure compliance with any new Mental Health Bill. — The value and appropriateness of a separate Code of Practice and Regulations for England and Wales to support the implementation of the new Bill is questioned by the All Wales Senior Nurse Advisory Group. — There will be signiﬁcant training needs for all staV working within the mental health setting, which will need to be considered and supported. — The impact of the Incapacity Bill could have further signiﬁcant implications on the mental health workforce and training requirements. I hope that you are able to consider these comments as a submission of evidence. The All Wales Senior Nurse Advisory Group would be happy to provide further comments if so required. Mrs Mandy Rayani, Chairman All Wales Senior Nurse Advisory Group, Mental Health November 2004

Memorandum from the African and Caribbean Mental Health Commission (DMH 313)

Introduction The African and Caribbean Mental Health Commission (ACMHC) is an independent London-wide strategic forum which works to promote coherence in mental health service planning, provision and delivery and aims to reduce health inequalities in relation to people from black and minority ethnic communities, and in particular, those from African and Caribbean Communities. We welcome the opportunity to comment at this stage of the Bill’s progress through Parliament. We believe that the issues raised by and the implications in relation to its proposed enactment make it imperative that the views of people from African and Caribbean communities are able to inﬂuence its development. It is well documented that people in our communities fare worse under the mental health system— including being subject to greater instances of compulsory treatment under the Mental Health Act 1983; treatment in locked wards; being subjected to instances of control and restraint—which has resulted in the deaths of a number of African and Caribbean service users, tragically highlighted by the death of David Bennett; and by being subjected to high and multiple dosages of medication. Given the historical and generally negative and disadvantageous position in relation to the experiences of people from African and Caribbean communities who use mental health services, we feel we have a huge stake in trying to ensure that our communities are not further disadvantaged by new legislation.

General Comments With regard to changes in the Bill from the 2002 version, ACMHC believes there has been some improvement in some areas. Speciﬁcally, these include: — Advocacy— provision for independent advocacy—(though see below). — Nominated person—provision for nominated person(s), which the patient can chose and who must be consulted at key stages throughout the treatment process (though see below). — Treatment options—the inclusion of non-pharmaceutical options including cognitive therapy, behaviour therapy, counselling or other psychological interventions; Joint Committee on the Draft Mental Bill: Evidence Ev 1067

— Treatment—the requirement that treatment should be appropriate for the patient (though see below). — Care plans—in preparing care plans—there must be consultation with the patient or parent (if applicable), the nominated person or carer. — Part 3 (relating to the Criminal justice system)—allowing for treatment of mentally disordered oVenders in the community. — ECT—no ECT without consent for those with capacity. — Greater safeguards for children. That said, however, as representatives (service users, carers and professionals) of people from African and Caribbean communities, we feel there are a number of major issues and concerns which remain. We will frame our remarks in relation to these issues and concerns in the format of the themes outlined by the scope of the Committee’s Inquiry.

Summary of Proposals — Inclusion of a comprehensive statement of basic principles grounded in equality of opportunity, and which embrace race relations, disability and human rights legislation. — Greater number of exclusions under the definition, including for those whose only disability may be the abuse of drugs or alcohol. — A right to increased access to a range of health care options. — A right to assessment which specifically takes account of social, cultural and environmental influences. — Increased safeguards against mis-directed compulsory treatment based on stereotypical perceptions of risk. — Increased protection against compulsory treatment in the community. — A right to increased access to earlier treatment in primary care. — Greater balance between protecting the rights of the individual and protection of the public. — A re-think of the 1983 Act to focus on localised adjustment rather than wholesale change. — A right to greater safeguards and rights of review against medical decisions, including early access to advocacy and legal advocacy. — Widen the definition of abuse to include over-medication, use of seclusion and other potentially abusive interventions. — A right to safeguards in the use of medication which conform to British National Formulary limits. — A right to age-appropriate care and treatment for children. — Greater linkage and cross-referencing to the Mental Capacity Bill. — A right to greater safeguards against breaches of the Human Rights Act. — A right to more diverse representation on Mental Health Tribunals. — Increase the role of the nominated person to the equivalent role of the nearest relative to make the role more constant, and with equivalent powers in relation to discharge and admission. — A right to after care arrangements in the community.

Q1. Is the draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable?

1. A More Comprehensive Statement of Basic Principles On the face of it, the principles are not objectionable—as far as they go. However, we do not feel they go far enough. There is no mention or cross-referencing of race relations or disability legislation. We believe this is a glaring omission and wish to make the point that it is important to explicitly refer to these key policy areas so that there is less scope for ambiguity and mis-interpretation at local levels. We have particular concerns in relation to sub-paragraph (4) which dis-allows application of the general principles: (a) In circumstances in which its application would be inappropriate or impracticable. In our view, this loophole makes it too easy to ignore or over-ride the principles. Some principles, we believe, should not be subject to being subverted by processes and structures which lack robustness or conviction in promoting equal opportunity and fair play for all. We would prefer to have incorporated into the legislation, a more comprehensively stated set of principles such as that adopted by the Mental Health (Care and Treatment) (Scotland) Act 2003. Ev 1068 Joint Committee on the Draft Mental Bill: Evidence

The Act replaced the 1984 Mental Health (Scotland) Act which was broadly similar to the 1983 Mental Health Act. The 1984 Act was reviewed by an expert committee, the Millan Committee. The review was broadly welcomed by the Scottish Executive with some significant exceptions. There was then scrutiny by the Scottish Parliament and major changes were made so that the Act now broadly reflects the Millan Committee recommendations. The Act is prefaced by a statement of principles that should apply whenever a person is carrying out functions under the Act. The principles were set out by the Millan Committee to represent good practice, and include the following: 1. Non-discrimination—people with mental disorder should, wherever possible, retain the same rights and entitlements as those with other health needs. 2. Equality—powers under the Act should be exercised in a non-discriminatory manner. 3. Respect for diversity—care and treatment should take into account users age, gender, sexual orientation, ethnic group and social, cultural and religious background. 4. Reciprocity—parallel obligation on health and social care authorities to provide safe and appropriate services including ongoing care following discharge from compulsion 5. Informal care—care and treatment and support should be provided without recourse to compulsion. 6. Least restrictive alternative—any compulsion used should be the least restrictive alternative 7. Participation—attempts to ensure service users are as fully involved as possible in all aspects of their care, treatment and support. 8. Respect for carers—a corollary to the above. 9. Benefit—any intervention under the Act should be likely to produce a benefit that cannot reasonably be achieved other than by the intervention 10. Child welfare—welfare of a child with mental disorder should be paramount in any intervention imposed on the child.

Q2a. Is the deﬁnition of mental disorder appropriate and unambiguous? ACMHC believes that the deﬁnition of mental disorder is unambiguous.

2. Greater Number of Exclusions under the Deﬁnition We do not believe it is appropriate, especially in relation to people from African and Caribbean communities. While we welcome the emphasis on the eVect rather than the cause of people’s mental health problems, we feel there is too much scope for mis-application in terms of how people from our communities present to services. We would wish there to be more exclusions under this provision to ensure that eg people who may be in a confused state; or who are angry or afraid are not inappropriately subject to this legislation. In addition, ACMHC believes that people from African and Caribbean communities will be adversely aVected because of the likelihood that they will be regarded as under suspicion for alcohol or drug problems. The application of the diagnosis of “ganja psychosis” is much more likely to be applied to young black men—with possible adverse consequences for care and treatment. Widely documented application of the “sus” laws in relation to African and Caribbean communities, combined with the institutional racism which accepts a stereotypical view of young black people, means that increasing numbers of our young people will become subject to detention under this provision of the proposed legislation. We propose that any consideration of this provision must be made within the context of human rights and race relations legislation, with a view to protecting people’s rights.

2.1 Greater Access to a Range of Health Care Options We also feel that it is important that people who are under the inﬂuence of drugs or alcohol should be referred to appropriate treatment—which should include a range of care options, including: — individual and group counselling, as part of a prevention and treatment programme, that examines issues of harm minimisation, relapse prevention and general health; — GP treatment partnerships for community prescribing and detoxiﬁcation; — NHS specialist services (eg specialist outpatient clinics, residential, rehabilitation and day care units); — community care partnerships with Social Services, providing access to residential treatment, rehabilitation and day care; Joint Committee on the Draft Mental Bill: Evidence Ev 1069

— needle/syringe exchange scheme, available in-house, through local community partnerships and the local Accident and Emergency Departments; — health promotion information and advice; and — dedicated family worker oVering family therapy and support.

2.2 A Right to Assessment in a Social, Cultural and Environmental Context

Finally, on the issue of cause, we would urge that this is also assessed, as necessary, within a context of social, cultural and environmental circumstances.

Q2b. Are the conditions for treatment and care under compulsion suYciently stringent?

2.3 Greater Safeguards Against Mis-directed Compulsory Treatment based on Stereotypical Perceptions of Risk

Again, we question whether behaviour which may be considered culturally appropriate in African and Caribbean communities can be mis-interpreted within the context of this legislation. ACMHC has particular concerns about paragraph 9 (7) and (8). These provisions will require clinicians to place consideration of substantial risk as the overriding feature in any assessment of the need for compulsory treatment under the legislation. The key issue for African and Caribbean communities is will this tackle the issue of over-representation of black people in the mental health system or will it make it worse? In our view it will make it worse; and we would wish to seek reassurance that there will be safeguards to ensure that people from African and Caribbean communities are not disproportionately subject to these exempted categories (ie, made more subject to compulsion); on the basis of stereotypical views and institutional racism.

Q2c. Are the provisions for assessment and treatment in the community adequate and suYcient?

In this regard, we would underscore the importance of independent advocacy at the earliest opportunity (ie, when sectioning under the Act is being considered) to enable people to eVectively challenge assessments which may be inappropriate. Also, in our view there is no objective criteria for assessing substantial risk. We believe the emphasis should be on helping people to recover from their mental distress—however it is deﬁned.

2.4 No Compulsory Treatment in the Community

Compulsory treatment—Finally, we wish to strongly emphasise that ACMHC is opposed to the use of community treatment orders because we feel it will disproportionately aVect African and Caribbean service users, because of the reasons stated above. We believe it is important to protect people’s rights to make informed choices about their place of treatment; and that if they lack the capacity to do so, they should have access to a comprehensive advocacy service which enables treatment to be carried out with a minimum of coercion.

2.5 Increased Access to Treatment in Primary Care

We also feel that people with mental health issues, in particular those from our communities, should be enabled to access primary care services at a much earlier stage, in order to reduce the risk for compulsory treatment. Treatment options in primary care should encompass a holistic approach, including alternative therapies; taking account of people’s spirituality; and an incorporation of ways of communicating which encourages reﬂection in a culturally appropriate context. Ev 1070 Joint Committee on the Draft Mental Bill: Evidence

Q3. Does the bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other?

3. More Balance between the Rights of Individuals and the Protection of the Public In ACMHC’s view it does not. We believe the legislation is heavily balanced in favour of protecting the public from risk.

Q4. Are the proposals contained in the draft Mental Health Bill necessary, workable, eYcient and clear? Are there any important omissions in the Bill?

4. Localised Adjustment vs Wholesale Change On the issue of whether the proposals are necessary, ACMHC is not convinced there is suYcient evidence that the 1983 Mental Health Act needed to be changed. We query whether this is change for change’s sake. To our knowledge, none of the numerous Inquiries into homicides by people with mental health problems has cited the need for a change in the legislation. In a report by the mental health charity Mind, “Key Issues From Homicide Inquiries” (Mind, 1999) the authors identiﬁed 12 key issues arising from 14 major mental health contact/homicide Inquiries in roughly descending order of importance or frequency—as: poor risk management, communication problems, inadequate care planning, lack of inter-agency working, procedural failures, lack of sensible accommodation, resources, substance misuse, non-compliance, involvement of carers, ethnic minority issues and lastly the need for (legal) reform—though there was no consistency on that point. In essence, in most inquiries the conclusions are that had professional carers foreseen what was about to happen, they already had the power under the present law to intervene. That they did not intervene was not due to lack of legal powers but to the fact that they did not foresee what was about to occur. ACMHC believes that no amount of legislation can improve foresight; and while the 1983 Act may require some adjustment (eg more stringent guidelines on the use of control and restraint; limitations on dosage and types of medication; and the importance of involving black families and communities in the care and treatment of service users, where this is appropriate). We do not believe the wholesale change which the current legislation represents is required.

4.1 Workability We believe the current legislation is unworkable because we do not believe that suYcient thought has been given to resource, including workforce, implications.

4.2 EYciency We believe this depends on the intended outcome. If the aim is to make more people subject to the legislation based on their perceived risk to the public, then it is eYcient. However, we are more inclined to accept the view of the Royal College of Psychiatrists—ie that it is not possible to predict risk—in which case, it is ineYcient and unjust.

4.3 Omissions As stated earlier, we feel it is an omission that the basic principles do not explicitly refer to race relations, disability or human rights legislation. In addition, we feel it is an omission not to acknowledge or have greater recognition of the diversity which we regard as one of Britain’s strengths. This in eVect means that the disparities, which this legislation has the potential to visit onto black and minority ethnic communities, have been completely ignored in the Bill as drafted.

Q5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill?

5. Greater Safeguards and Rights of Review Against Medical Decisions, Including Early Access to Advocacy and Legal Advocacy ACMHC acknowledges and applauds the apparent shift away from the medical model of mental health care, but we question how it will work in reality. For example, in relation to the clinical supervisor, although we welcome the multi-disciplinary ethos, in reality, what safeguards will there be against the medical view being paramount in assessment? What training will there be for clinical supervisors and will they be drawn from as wide a population base (ie, people from diVering backgrounds) as possible? Why is there a change from the use of approved social workers (ASWs) in favour of the approved mental health professional (AMHP)? Joint Committee on the Draft Mental Bill: Evidence Ev 1071

5.1 Early Access to Advocacy and Legal Advocacy Finally, again, we believe it is important to ensure that there is adequate provision and resources to oVer people advocates at the earliest opportunity. The explanatory notes to the bill put a ﬁgure of 140 extra advocates. This does not seem suYcient.

Q6. Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, eg, children, suYcient? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery?

6. Widen Deﬁnition of Abuse to include Over-medication, Use of Seclusion, etc We welcome the increased penalties for professionals who abuse patients (Part 11). However, we feel the deﬁnition of abuse should be widened to include safeguards against over- medication; use of seclusion and other potentially abusive situations, which are particular issues for people from African and Caribbean communities.

6.1 A Right to Keep Within BNF Medication Limits We would urge, eg, to include within the Bill the requirement to adhere to British National Formulary limits on medication; and the inclusion of a legal obligation for clinicians to report any breaches to managers.

6.2 Age-appropriate Care and Treatment for Children Children—We support the view of the Mental Health Alliance on the need to ensure age-appropriate accommodation and treatment, which takes account of all of the needs of children, including their educational needs. In addition, we feel the Bill would be strengthened by reference to the Children Act.

6.4 ECT We welcome the change of no ECT without consent, but would like clariﬁcation about what constitutes “an emergency” for its use. If this is cast too widely, it can still mean that many people are subjected to ECT against their will. We believe ECT for children should only be authorised by a Mental Health Tribunal, which is subject to lay review through an Expert Panel.

6.5 Psycho-surgery The Bill contains no safeguards against psycho-surgery.

Q7. Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practice right? No. We believe the omissions in relation to the guiding principles (as stated above) are too open to misinterpretation and local resolution. Important issues such as human rights and equality are too important to be left to guidance; and therefore should be included in the legislation.

Q8. Is the draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)?

8. Greater Linkage with the Mental Capacity Bill We concur with the view of the Mental Health Alliance that this is a problematic area because people can be subject to both sets of legislation which can cause confusion. In addition, the problems of people with ﬂuctuating capacity has not been addressed. Ev 1072 Joint Committee on the Draft Mental Bill: Evidence

Q9. Is the draft Mental Health Bill in full compliance with the Human Rights Act?

9. Greater Safeguards Against Breaches of the Human Rights Act in Relation to Mental Health Tribunal Hearings No. We believe the bill is open to challenge in respect of Articles 5 and 6 of the Human Rights Act which call for access to a fair hearing within a reasonable place and time. The bill makes no mention of safeguards against time limit breaches (delays) in relation to Mental Health Tribunal hearings, which to our knowledge, are widespread.

Q10. What are likely to be the human and ﬁnancial resource implications of the draft bill? What will be the eVect on the roles of professionals? Has the government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the bill?

10. Workforce—More Resources for Training Workforce—we do not feel suYcient account has been taken of the need to have an adequate workforce, suitably trained, in carrying out the provisions of the legislation.

10.1 A Right to more Diverse Representation on Mental Health Tribunals How will the Government ensure there is diverse representation on Mental Health Tribunals, given that currently there is very minimal representation/involvement by black people in the current Mental Health Act Review Tribunals? ACMHC also believes it is imperative to establish a pool of qualiﬁed people from black communities who can inform the decisions that Tribunals make.

10.2 Nominated Persons—More Constant and Equivalent Role to Nearest Relative Under the bill, this role now ends after detention, as opposed to current provision in relation to the nearest relative, who has a constant role. We would wish a similar arrangement for nominated persons under the new bill. In addition, the nominated person should have equivalent powers as the nearest relative to order discharge or prevent admission.

10.3 Professionals We query whether professionals will become agents of compulsion and control; eg, what are the rights of review to decisions made by the clinical supervisor?

10.4 Restoration of After Care Arrangements Costs—Section 117—Aftercare arrangements—this has been removed from the bill entirely. Why has it been removed and what are the safeguards to ensure that people are able to get the care and treatment in the community which has been identiﬁed in their care plans?

Conclusion Finally, ACMHC would like to point out that we do not see how the legislation, as drafted, will help the over-representation of people from African and Caribbean communities in the mental health system. On the contrary, we think it can make this worse, by making people more subject to stereotyping, stigma and discrimination. In a wider sense, we feel this will help to prejudice the future of race relations in Britain because of the inequity enshrined in this legislation. October 2004

Memorandum from R Brunstrom BSc(Hons), MSc, Chief Constable, North Wales Police (DMH 314) I submit this evidence as Chief Constable of North Wales Police. I have considered the draft Mental Health Bill in relation to public and personal safety. Joint Committee on the Draft Mental Bill: Evidence Ev 1073

Part 1, Section 2, Paragraph 5 I am concerned with the current practice of excluding from treatment those who are diagnosed as having a dangerous and severe personality disorder as their condition is considered to be untreatable by certain mental health professionals. I am pleased with the new definition of “mental disorder”. The draft bill has clarified the definition to emphasise that it is the eVect rather than the underlying cause that is important and the definition now reads “an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain”. The 1983 Act’s condition of “treatability” would be removed and therefore there would be no exclusion of people who have a sole diagnosis of mental impairment or psychopathic disorder. I would welcome any proposal in the Bill that would make provision for the treatment of persons with dangerous and severe personality disorders who at the present time are considered “untreatable”. Part 2, Chapter 1, Section 9, Paragraph 4(b) I strongly support the inclusion of the phrase “for the protection of other persons” which will significantly enhance our ability to promote public safety. Part 3 I welcome the proposals made in this Part of the Bill that restrict the release from custody or hospital of persons with severe personality disorders who continue to pose a serious risk to the public, and the proposals to enhance the ability of the courts to obtain specialist medical reports on oVenders where they consider there is a need to combine treatment of the oVender with protection for the public. R Brunstrom Chief Constable November 2004

Memorandum from J Capon (DMH 316) Did life take its toil on me or was I forced to take drugs in a psychiatric hospital whilst sectioned under the Mental Health Act? 1. I am I think a pretty normal 36 year old. A bit like the character Bridget Jones. I work very hard, have a group of close friends and although not yet married have a boyfriend. 2. However, some people including doctors, MPs and members of the public want to lock me up and keep me apart from the rest of society. Indeed I calculate that I have lost in total a year of my life due to psychiatric illness, a considerable part of that in a psychiatric hospital. A huge amount can happen in one year, people die, wars can start etc. I have spent six months in a psychiatric hospital compulsively detained under the current archaic Mental Health Act. 3. Whilst in psychiatric hospital the worst things that happened to me included: — Being locked in a room that was exactly like a prison cell with no windows and only a mattress on the ﬂoor and one blanket. I was also forcibly injected drugs whilst being held down by four nurses, two of them male. The room had a hatch where I was given food through it. I had committed no crime—only been very frightened. That experience changed me I thought ﬁrstly that I was going to be raped and secondly that I was going to die in that room with only a hatch to receive food though and no window only four walls. — The third time I was in psychiatric hospital I was placed in a locked ward with murderers, as there was no room in the acute ward. Again I had committed no crime I was only very frightened. Who wouldn’t be to be detained with murderers? 4. I have been given drugs which are now banned by the Medical Control Agency including Stelazine and Thiridozine. I was also given experimental drugs whose name I was not even told. 5. I was forced to take these drugs by doctors and nurses, following the current Mental Health Bill, which have done untold damage to my brain. How come I have nine O levels, four Highers, a degree and a postgraduate diploma yet sometimes I can hardly string a sentence together either written or orally? I also have terrible memory loss where I can’t remember either what I have just said or done and also what happened in vast portions of my life. 6. Am I a guinea pig? I have had my liberty taken away from me by a Mental Health Bill that wants to lock people up from the rest of society like a leper colony or indeed they did to the Jews and but also gypsies in the Holocaust, locking them in hospitals and doing experiments on them. They still lock people away in mental distress in detention centres only they call them psychiatric hospitals. 7. Surely society has moved on from that? 8. Should this bill be passed we will be taking a huge step backwards in the care and treatment of people who after all are human beings who just feel isolated from the rest of society. Ev 1074 Joint Committee on the Draft Mental Bill: Evidence

9. What we need is better care in the community and not to have to be compulsory treated in a hospital. Compulsion is like having your basic human right to liberty taken away from you. I do not think that a lot of people today in Britain realise that they could be compulsively detained under the Mental Health Act without committing a crime. 10. I don’t want to be force fed drugs which I and a lot of mental health users feel have not helped them. I can be responsible enough to take them as and when needed. I cope by having a lot of help from my friends, a very supportive family and a nice place to work at. I now work for the charity Mind and I have learned how to cope with my mental health issues and have found a life which is not just locked, isolated away from the rest of society but is living within society. 11. I hope there comes a time when there is a drug which I can take that solves schizophrenia (or paranoia illusions) but until that time what we need is proper care in the community and not to be compulsively detained in hospitals especially ones which are like prisons. I am writing in private capacity to express my views on the current draft Mental Health Bill. The view expressed are my own, and not of my employer as I wish to share my experiences with the scrutiny committee of what happened when I have been compulsively detained under the Mental Health Act. Julia Capon November 2004

Memorandum from Mrs D Phillips (on behalf of a Service User) (DMH 317) I am a volunteer with Mind. A member of Mind has written the following: It has come to my attention that a new bill is to be passed restricting the rights of people with mental health problems. Firstly can I say there is still a lot of stigma surrounding “mental illness”. Mental illness ranges from mild depression to more serious states such as schitzophrenia. This proposal seems to stem from rare and isolated cases where a person who is working with people with a severe mental disorder has been attacked. Yes, I have sympathy with the victim, but it does not merit a new law that discriminates anyone who has a mental health problem. Any one, any age, at any time can suVer from mental illness. As I attend my local branch of Mind I ﬁnd it a real help to meet with fellow people with similar problems, with various groups that are oVered to help us cope with everyday living. Whoever is responsible for this bill needs to look at the issues here concerning mental health. Whoever it may concern—beware of the Human Rights Act! As a strong believer in freedom of speech, I think this so-called bill is the start of “Do as I say or shut up!” Mrs D Phillips (Hereford Mind) November 2004

Memorandum from W & G Enderby (DMH 318) As the carers for HL v United Kingdom at ECHR—judgment 5 October 2004. We write with our observations and concerns regarding the NEW proposals for the Mental Health Bill. Because of the close proximity to the Mental Capacity Bill you will ﬁnd that we have to address matters that are overlapping but are nevertheless very important. The previous Draft of the Bill contained Part 5 which included a small measure of provision of Safeguards for the adults lacking mental capacity who are detained “informally” under the current Act. This has now been omitted in it’s entirety. During the scrutiny committte for the Mental Capacity Bill In answer to oral questions and written into the transcript was a statement by the minister Rosie Winterton that she would expect that under the proposals for both Bills we, as carers for HL would be in a favoured position to be the “approved, nominated,appointee” for HL. At the same time the Department of Health had written to the National Autistic Society, in response to their support of our case in the ECHR, that the government, under the new proposals, would not envisage us being high up that list , as paid carers. Clearly there is here a complete breakdown in joined up thinking. In the New MHA Bill Part 5 has been omitted completely, removing all informal patients from the legislation. So no legal mechanism for: Joint Committee on the Draft Mental Bill: Evidence Ev 1075

(a) Protecting people in similar position to HL who fall foul of a single doctor opinion and no recourse to a tribunal/panel/court procedure. (b) No protection from the same situation if these people are dealt with under the Mental Capacity Bill proposals. As you will be aware, that under both Bills, this will be in complete contravention of the ECHR Judgement set out on 5 October 2004. Despite public assurances given in the government response to the Mental Capacity Bill that the result of HL v the United Kingdom would aVect the thinking in the drafting of both pieces of legislation, the government have proceeded without that Judgment and on the basis that they would not lose. This has made for extremely flawed decisions in both Bills. We urge the relevant Committees to proceed with the utmost care and make the alterations required by the ECHR to protect everyone in similar circumstances to HL. In addition we reiterate the other concerns we had and notified to the Department of Health at the Draft Mental Health Bill Stage: 1. That “Carers” especially in the same situation as us, in caring for one individual at home, whether paid or unpaid, are the people that can inform and advise transient “professionals” about the individuals in question and will inevitably carry the “burden” of implementing the decisions, “treatment plans” that these professionals choose to inflict. There is therefore no excuse for not giving them a statutory standing alongside the “professionals” in the legislative proposals. 2. Removal of Hospital Managers—HL only escaped his detention because the Hospital Managers discharged him after the lead clinician refused to do so, even after an independent report by two leading specialists. For HL it would be intolerable to remove this level of protection in favour of concentrating on a medical model. 3. Removal of Nearest Relative—People without legal capacity will be interpreted as not being able to make a meaningful judgment about appointing a “nominated” person. It leaves open the the prospect that an individual without any knowledge of the person may be put forward by the medical supervisor. In HL’s case the medical supervisor would never have chosen us, the very people that every other agency said would have the best interests of HL at heart. Having been through all the current processes and become HL’s nearest relative should he come under the MHA 1983 again, this is an unacceptable erosion of his Rights. 4. Removal of ASW—The shift in balance towards the medical model by opening the previous ASW role to others is unacceptable. At least there is currently some balance with a community based holistic view of any individuals life which will certainly be lost if clinical mental health professionals inevitably working under the psychiatric consultancy team, will be making detention/treatment decisions. Remember that the ECHR at paragraph 121 of the judgement made telling and forthright statements about “eVective and unqualified control” and “procedural safeguards” to protect individuals against any “misjudgments and professional lapses”. It is therefore completely undesirable to lose the “independent” social voice for the individual. 5. Assessment periods—We repeat that the proposed time for assessments in the Richardson Review suggested seven days, while the Royal College of Psychiatrists wanted 28 days. We submit that it would be extremely unlikely that a psychiatrist would leave an admitted patient for 28 days without drug treatment. The damage caused to HL in the initial 4 weeks of his detention was extremely detrimental to his health and took several months to get him back to anywhere close to what he was before his detention. There is absolutely no doubt that he still suVers from the damage caused by the medication regime. It is our contention that the clinician’s will to impose an inappropriate course of action must be guarded against and that the shortest possible time within the clinical environment must be the objective. Seven days has to be enough. 6. Guidance/Code of Practice—These must be of suYcient substance to ensure that clinicians must adhere rigidly to these documents that suYcient weight is given to them that they might as well be incorporated in the Bill. We will of course be prepared to give evidence to the Committee and indeed will be happy to do so. The “Bournewood Gap” has been robustly dealt with by the ECHR and it is now up to the government to ensure that proper and eVective safeguards are incorprated in these current Bills. Sadly, by jumping the gun, the government have so far paid little attention to the rights and the due care that individuals such as HL are entitled to. W & G Enderby November 2004 Ev 1076 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Hampshire Partnership NHS Trust (DMH 319) Hampshire Partnership NHS Trust provides mental health and learning disability services. This response has been approved by the Trust Board. While there are aspects of the draft bill that the Trust welcomes, its overall conclusion is that it oVers insuYcient beneﬁts for patients and clients and would bring signiﬁcant barriers to providing eVective services which properly respect the rights of service users. Its adverse impact on staV morale, recruitment and retention would be very worrying when these are already major problems for mental health services.

General Observations We welcome the recognition that good care planning is the key to eVective care and the attempt to build treatment orders around care plans. However, we believe that aspects of the proposed Bill will in practice undermine this. In particular the requirement to draw up a care plan within ﬁve days (Cl 31) provides too short a timescale. It will encourage standardized programmes rather than individual attention to the needs of patients. In addition, the proposed limitation of the right of clinical supervisors to relieve patients of legal compulsion undermines their responsibility and accountability for the quality of care. This forces an unwelcome separation between the delivery of care and the review of the need for compulsion. We also welcome the recognition that mental health care is no longer dependant on hospitalisation. We welcome the commitment to the provision of advocates, but are concerned that this will not be properly resourced and is merely a general duty to provide, not an entitlement of patients (Cl 247).

1. Is the draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? The Bill reflects two very diVerent purposes, therapeutic and protective. These necessarily lead to ambiguities. The inclusion of general principles serves to raise the profile of therapeutic concerns but is disingenuous because it reduces the visibility of the public protection which underpins the main provisions of the Bill. A clear commitment is necessary to the basic principles of human rights, which require patients’ interests to be respected unless outweighed by the rights of others. We welcome the fact that general principles are set out at the beginning of the Act. However, the current clause 1(2) is not suYcient: (a) It does not refer to human rights, diversity and equal opportunities, or to the principle of reciprocity (whereby patients are entitled to treatment if the need for such treatment is used as the basis of compulsion). There should be an explicit commitment to promoting the best interests of patients, including their right to exercise autonomy. This should not outweighed unless there is a clear risk of significant harm. (b) Clause 1(4) indicates that the Code of Practice can dispense with the application of these principles. There may be times when involving patients in decisions may be impracticable and very occasionally inappropriate if alerting them to the fact that compulsion is being considered would place others at risk. However, the need for fairness and openness and minimal compulsion should always apply.

2. Is the definition of mental disorder appropriate and unambiguous? Are the conditions for treatment and care under compulsion suYciently stringent? Are the provisions for assessment and treatment in the community adequate and suYcient? The definition of mental disorder remains too wide and will cover too many patients. The Trust notes that the recent Council of Europe Recommendation on Human Rights and Psychiatry proposes using “mental disorder as defined in accordance with international medically accepted standards”, and refers to ICD10 Chapter 5 Mental and Behavioural Disorders. This approach is to be preferred as it keeps the definition restricted and objective in accordance with international standards- for example, epilepsy would probably only be included if it caused organic psychosis. While we welcome the fact that mental health needs other hospitalisation are noted, we believe that there needs to be some threshold in the conditions so that all patients are not threatened with compulsion. The White Paper proposed a reference to the need for “specialist” services. This would prevent any need for mental health treatment, however small, justifying coercion, which unacceptably stigmatises patients. Particularly when combined with the obligation on Tribunals to make treatment orders whenever the relevant conditions are met, this means that all patients referred to specialist services will believe that compulsion will follow and will therefore avoid referral. This will undermine the aim of services to achieve the early intervention that improves outcomes for patients. The reference to “medical treatment being available” is still unclear as to whether this means “treatability” or refers to access to services. The redrafting since 2002 suggests that the actual availability of services for this particular patient to access is what is intended, but it remains ambiguous. Joint Committee on the Draft Mental Bill: Evidence Ev 1077

We would like to be reassured that exclusions of the uses of substance misuse and sexual deviance as diagnostic criteria will at least be continued in the Code of Practice, although we do not think that they need necessarily appear in the statute itself.

3. Does the draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on the one hand, and concerns for public and personal safety on the other? The Bill remains unbalanced, pursuing a public protection agenda to the detriment of the rights of the mentally ill. This can be seen in many parts of the Act, for example: — the fact that there is no threshold in cl 9(4) so that ANY harm to others will satisfy the “third condition” however trivial. — The failure to provide for a proper standard of proof in relation to predictions of risk, a notoriously diYcult exercise. — The obligation to make an assessment whenever requested by any person (cl 14) irrespective of the reasonableness of or motivation behind that request. — The mandatory referral to Tribunal (Cl 38) and the fact that the Tribunal is obliged to make an order whenever the relevant conditions are met (Cl 45) irrespective of whether compulsion is desirable or likely to be eVective. The relevant conditions should deﬁne the scope of cases where compulsion may be appropriate and leave discretion as to whether it is in fact appropriate. The current drafting makes it obligatory to exercise compulsion in respect of all patients who fall within the scope of the Act. This makes the fact that the Act is drawn so widely even more concerning.

4. Are the proposals contained in the draft mental health bill necessary, workable, eYcient and clear? Are there any important omissions in the Bill? Consultation with staV, including those familiar with the existing Mental Health Act and accustomed to reading statutes has revealed that the drafting of the Bill has caused confusion. Given that the success of any new legislation depends substantially on health and social care professionals being able to understand their duties under the Act, we regard this as a serious defect in the Bill. We think that it will take considerable eVort to determine whether the Bill can be made to be workable in practice, given its legalistic drafting style, considerable length, complex structure, and the fact that many details will be set out in regulations so that the Bill will not make sense when read alone. As an example of confusion, we would cite that it is unclear when a patient becomes liable to assessment, something which front line staV need to know in order to determine whether they are acting lawfully. Is it only from the point when an examination has been completed (as implied by Cl 17(3)), in which case the assessment would seem to be unlawful unless the patient consents, or does it commence when arrangements are made for an assessment to be carried out (as implied by Cl 18(4)). The workability of the duty to arrange examinations is unclear. There is no mechanism for dealing with vexatious referrals, so services may be swamped by the obligation to make arrangements. In addition it is unclear how the authority can determine whether ALL of the conditions “appear to be met” from the information likely to be supplied. As such a determination needs to be made before an assessment is arranged, this is a crucial stage in the Act’s processes.

5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft Bill? We note that the Mental Health Act Commission will be subsumed into the Healthcare Commission. We believe that functions relating to inspection and complaints can eVectively be carried out by the Healthcare Commission, but would seek reassurance that there will be a specialist division of the reconstituted Commission concerned with developing standards in connection with mental health care and that the power to issue advice would include good practice notes as the MHAC has done.

Young Patients We welcome the continuing provision for informal treatment for those under 16 on the basis of parental consent, believing that to be preferable to routine compulsion. We also welcome the introduction of safeguards when young patients reject or resist treatment. The draft bill fails to address two areas where law reform would be beneﬁcial: Ev 1078 Joint Committee on the Draft Mental Bill: Evidence

— No steps are proposed to ensure that young patients will get the educational and social services support that are necessary to carry their care and treatment through to successful fruition. These agencies should be party to any treatment order and obliged to devote resources to fulﬁlling the care plan. — There seems to be no assistance in dealing with the diYcult question of young patients with ﬂuctuating competence, on which current common law is confusing and unhelpful. We welcome the recognition that sixteen and seventeen year olds should receive full protection and an increased say in their lives.

Aggressive Procedures We believe that the protections in relation to ECT and psychosurgery are suYcient. We support the recognition that these procedures should be available to incapable patients, subject to the necessary independent approvals as we believe that they can sometimes be of beneﬁt and should not automatically be withheld from incapable patients.

7. Is the balance struck between what has been included on the face of the draft Bill, and what goes into regulations and the code of practice right? At a number of places, too much is left to the Regulations and Code of Practice and clearer provisions should be made on the face of the Bill. For example from Part 1 of the Act. — It is not appropriate to permit the general principles to be compromised through the Code of Practice (Cl 1(4)). — Clause 3 needs to identify more clearly what qualiﬁcations and experience are required to be an approved clinician or mental health professional. — Clause 7 should set out the qualiﬁcations for appointment to expert panels. The explanatory notes contain an illustrative list and this should appear on the face of the Bill.

8. Is the draft Mental Health Bill adequately integrated with the Mental Capacity bill (as introduced in the House of Commons on 17 July 2004)? We do not believe that the two bills are suYciently integrated. In particular, it is not clear which Act is intended to prevail. On one reading, the fourth of the relevant conditions would prevent the Mental Health Bill applying to incompetent patients, save where treatment is not in their best interests (because the Mental Capacity Bill would make treatment lawful). Yet the provisions relating to treatment include sections dealing with cases where the patient cannot consent. We believe that further work is required to integrate the bills satisfactorily and that it would be beneﬁcial to consolidate the two pieces of legislation if they are passed.

9. Is the draft Mental Health Bill in full compliance with the Human Rights Act? No. We believe that the lack of thresholds for seriousness of disorder and risk to others mean that the Bill does not ensure that infringements of human rights are made only where this is proportional to a legitimate aim so as to be necessary in a democratic society. We are very concerned that the Government has made a reservation to the Council of Europe Recommendation on Human Rights and Psychiatry because the Bill is not compatible (http://www.coe.int/T/E/Legal–aVairs/Legal–co-operation/Bioethics/News/Rec(2004) 10%20e.pdf). We do not understand why this country alone should be unable to comply with the European consensus on the application of human rights in mental health services.

10. What are likely to be the human and ﬁnancial resource implications of the draft Bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill? We believe that the Government has seriously underestimated the human resource implications of the Bill. The suggestion that all advocacy work indicated under the Bill can be carried out by 140 staV conﬁrms our fears about the commitment to patient’s rights (Regulatory Impact Statement, Table 4). The clearest indication of inadequate resourcing and a major threat to the workability of the Act can be seen in relation to psychiatrists. The Regulatory Impact Assessment estimates that there will be an increase in the number of hearings of 84% but suggests that this can be met by an increase of only 50% in the number of psychiatrists. In Hampshire Partnership Trust there were 399 formal admissions under the MHA 1983 during 2003–04, all of which would require tribunals to be held under the proposed Bill. Only 127 tribunals were held relating to our patients in the same period. Even this is based on the assumption that the number of people under formal compulsion would remain constant. That assumption is patently false when it is noted: Joint Committee on the Draft Mental Bill: Evidence Ev 1079

(a) that the scope of compulsory powers would be broader because of the definition of mental disorder; and (b) that whenever the relevant conditions are met there must always be a tribunal even when no specific benefit arises for either the patient or the public. In addition, we note that at present the Tribunal system is unable to cope eYciently with the current volume of work. Consequently, we have no confidence that the proposed Tribunals can be staVed. No account seems to have been taken of the fact that mental health act assessments are likely to increase due to the proposed duty to assess reducing the exercise of clinical judgment on whether formal assessment is necessary. Finally, the Government has not addressed the risk that clinical staV will seek early retirement if the proposals are forced through. A significant proportion of staV in this Trust (over 16%) is eligible for retirement either at present or within five years. We could not aVord to lose these staV because they resent the legal framework within which they are forced to work. From our soundings, this is a real risk. It is vital that they have confidence in the new system and do not believe that they will be forced to undertake more legal bureaucracy without therapeutic benefits for their patients. Jonathan Montgomery Professor of Health Care Law, University of Southampton Chair of Hampshire Partnership NHS Trust October 2004

Memorandum from E Penrose (DMH 320)

Criticisms/Questions? Why is compulsory treatment orders for the community thought to be relevant given how unattractive this will appear for clients? Should not care plans require agreement with clients as at present? Should not the new advocacy service build upon presently existing independent advocacy service? Surely there is a danger that the new bill would conﬂict with European legislation with regard to community orders? Eric (user) advocacy service committee member. November 2004

Memorandum from Ms J Andrews (DMH 321) Being a person with allopathic drug intolerance, medically identified in 1970, I am driven by commitment to human well-being, social inclusion and human rights to oVer this memorandum as evidence. I am concerned that more people than the current “one in four” may become subject to mental and emotional distress and find nowhere to go for aVordable “safe” help, deepening their distress. Thus people capable of making positive contributions within local communities or more widely if treated fairly, would be disabled further if the draft bill becomes law. This happened to me. During a period of extreme distress subsequent to sudden death of father, (February 1976,) relocation of family, (April 1976) still birth of second child (November 1976) acrimonious divorce (May 1977–September 1979), relocation as lone parent (March 1979) group venture failure (March 1980) I was detained under The Mental Health Act, (section two) and forcibly injected. This added a major trauma to overwhelming shock and suppressed grief. Under threat of losing my young child I was obliged to take a cocktail of allopathic drugs to secure early release and psychiatric support to face a second custody case which I lost. The drugs were then pointless and I stopped taking them. My son, six years old and in foster care until his virtually unknown step-mother had delivered her first born and was strong enough to travel from Australia to collect him for life in Russia, urged me, “Go back to the judge. Tell him I don’t want to go. I want to come home.” In May 1983 a third legal case commenced with evidence of change in my favour occurring so rapidly, the solicitor could barely keep up. By September 1983 we were resettled with family support. My son’s specific educational needs were being addressed in a local private school, paid for from teaching salary, without any contribution from his father or regular contact with him. Only love of my son, commitment to my profession and a set of non-violent human values kept me going. However, such trauma took its toll on both our lives as prejudices, attitudes and opinions of what was right for me were subjects of comment even 20 years later. No matter. The fact is we both survive it with me in hardly a “fit” state to continue working beyond 70 just to pay oV debt accrued not as a result of profligacy but out of need to re-establish life in Britain after a period of voluntary work in India. Ev 1080 Joint Committee on the Draft Mental Bill: Evidence

Since treatments within the spectrum of holistic medicine are not equitably available within the National Health and Social Care Services I plead for people born into areas of deprivation and indeed all people whose lives have been blighted by any kind of violence and trauma, urging you to frame a law in which misinterpretation of bizarre behaviour without examination of background cannot possibly happen even if it’s not the easiest or most proﬁtable option for the government. November 2004

Memorandum from Penny Priest (DMH 322)

I welcome many of the proposals of the above draft bill, including: — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Special provisions for children and young people. — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go along way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some, I am troubled to find, remain exactly the same as the concerns that were expressed by many respected organisations following the draft bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS: — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. I trust that the concerns I have raised above will be considered by the committee and I look forward to your response. November 2004

Memorandum from V D Medley (DMH 323)

I am writing as a mental health service user, and a mother of a mental health service user. I am a member of the Manic Depressive Fellowship. Joint Committee on the Draft Mental Bill: Evidence Ev 1081

1. A Right to Services In my experience, with the illness of my son over the last four years I have endured months of “battling” with the mental health authorities to attempt to gain help for my very ill son. As a mother, watching a son deteriorate, hearing the repeated excuse that he can not be treated, in reality he must deteriorate into a total mentally ill individual to gain help. His physical health will suVer, his social life will be nil, and my health suVers (with admission to hospital twice). When, eventually, several months later he is deemed ill enough to treat under section, he is treated as a criminal. Police cars block the road outside my home, neighbours peer out of windows to see what is happening. My son is attacked by police oYcers. I am in a total state of stress and despair. Who has gained anything from this experience? Certainly not my son. Not me. Maybe it is the civilised world we live in that feels a mental illness should be treated in this way. Maybe it is the fear of the masses inﬂuencing the ignorant. The illness, stigma, life quality are all gone, so is self esteem and trust in a health service. Can anyone explain to me why they believe this Bill is going to help people like my son? Why do you not listen to people who are involved in the suVering, why listen to tabloid scaremongering?

2. Compulsion Should be the Last Resort Having read the comment above, can anyone with any understanding of mental health and a compassion for individuals believe compulsion is the last resort? Where are the early intervention teams, the assertive outreach groups? A person with a physical illness is not treated in such a way as this, with no dignity, no help. Why is a mentally ill person treated so appallingly in this country? It is time for an overall of the services, not a Band-Aid to mollify the tabloid readers of this country, the people with no real experience of suVering. Compulsion in the community is an appalling concept. A person has to live in their home, to be brutalised in their own home, (it is bad enough in hospital) but to experience this pain in your home is a nightmare scenario. Would those who wrote this Bill like to endure this experience? Or their children? Perhaps you don’t get mental illness, like the third class citizens we are now.

3. Dangerousness and Compulsion It would appear that all people with a mental illness are viewed as dangerous to the community. This will cause more stigma, more isolation, a turning away from the health service who will be carrying out a role of “jailer”. Are you also going to jail drunken drivers? Wife beaters? Are they dangerous enough for this Bill, or is it only mentally ill people who are a danger to others? How little you know of people with mental illness. How ill judged is this bill? How discriminatory will the actions be when implemented? Will the European Courts sanction this abuse?

4. A Right to Aftercare Rebuilding your life after a mental illness is painful, diYcult, you have your illness, the treatment, the stigma, the memory of the brutality of admittance. How can you possibly do this in a short space of time? Your life is upside down, you have lost your job, as companies don’t want a mentally ill person (yes this is the reality, your discrimination laws don’t protect us). Mentally ill people need housing, support from the mental health team (cpn, social worker, key worker). How can someone, on drugs, coping with a multitude of problems be left alone to cope, ﬁnd housing, work, integrate into the community they have been alienated from. Someone who has experienced the trauma of illness, hospital and the rest of the pain, needs support not more alienation and told to pay for services. This country is way behind other countries in Europe on mental health support, this bill obviously intends to put us further behind.

5. Electroconvulsive Therapy (ECT) Perhaps those writing this bill would like to experience ECT ﬁrst hand and then decide if patients should have this barbaric treatment without their permission. Would you like to be dragged to a room, injected, tied down, electrocuted, again and again. Loose your memory (yes that happens), but then I suppose a mentally person doesn’t really matter do they. Do what you like to them; they are dangerous scourges of society after all. So, the writings of a mentally ill citizen, or someone unfortunate enough to have an illness despised of the bulk of the country. Both my son and I have been blessed with an illness that destroys a normal life. Should we be treated in the way proposed by the Bill, because we have an illness? This country should be leading the way with humane treatment of people with mental illness. Not turning them into the untouchables of this country. We need help, not abuse. Not discrimination, not more stigma. It is not our fault we have this illness, why are we treated so badly, and this bill will do NOTHING to help. It is time a realistic approach to mental illness, treatment, aftercare, stigma, work, beneﬁts are reassessed. This Bill appears to be making treatment more frightening, the relationship with health service professionals will deteriorate and more stigmas will result from these actions. Where is the progress for patients in this Bill? What we have is a Bill for the “tabloid” readers, who blame mentally ill people for any act of violence. A small percentage of mentally ill people act violently, not the majority. Ev 1082 Joint Committee on the Draft Mental Bill: Evidence

I have no allusions that representation will make a scrap of diVerence. Votes are what matter, not the well being of mentally ill patients. Shame we don’t have the campaigning tactics of the hunt supporters. October 2004

Memorandum from Wayne David Frost (DMH 325) I am writing to express my concerns about the Draft Mental Health Bill. I hope that you will take into account this letter as you consider the evidence the Committee receives. I have submitted evidence on my own behalf, as a member of Rotherham Mind. I have ﬁve major concerns about the proposals in the Draft Mental Health Bill, which are as follows: 1. With regard to the deﬁnition of mental disorder, I consider that the wording of this particularly “believed” is too broad; my worry is, who has the power to state when they believe someone to be a risk to others? 2. I have major concerns with the use of compulsory treatment in the community which are, the infringement of human rights, with regard to specifying where the patient lives and conditions placed upon their behaviour. I also oppose this within the current law. 3. I feel that to take away the current right for the patient or representative to apply for discharge to the hospital manager, will be against the patient’s human rights and I feel that the new mental health tribunal will take away vital powers from the patient regarding his/her own care. 4. With regard to patient examination, I feel that every patient has the right to consultation. I feel that to state “with some exceptions”, is to include yet another loophole with which human rights are removed from the patient. 5. To take away the approved social worker role could result in a person being examined by three professionals, all of a medical background, who may not consider any social aspects of the person’s life, which could have an eVect on the treatment oVered to the person, which may have a detrimental eVect on their health and well-being. In my view the Draft Mental Health Bill would be enormously improved if you took my concerns into consideration. Wayne David Frost November 2004

Memorandum from P Houghton (DMH 326) I welcome many of the proposals of the above draft bill, including: — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Special provisions for children and young people. — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go a long way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some, I am troubled to find, remain exactly the same as the concerns that were expressed by many respected organisations following the draft bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS: — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. Joint Committee on the Draft Mental Bill: Evidence Ev 1083

— A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and speciﬁcally that doses above BNF limits should not be given without informed consent. I trust that the concerns I have raised above will be considered by the committee and I look forward to your response. Phil Houghton Clinical Psychologist November 2004

Memoranda from T Riding (DMH 327) Dear Sirs I am the Network Director for Secure Services at Lancashire Care NHS Trust. We are currently in dialogue with the PCT about the development of mental health services within the local prison. In particular we are being asked to develop a clinical model for inpatient mental health care within the prison healthcare department. Central to this debate is the Mental Health Act. I would, therefore, be extremely grateful if you could oVer any advice on the following points (or at least point me in the direction of someone who may be able to advise): — Will the new Mental Health Bill apply within the prison setting? That is, will there be any scope for prisoners to be detained under the Act and treated against their will whilst they remain in prison? Or will the current arrangements apply whereby prisoners can only be treated with their consent, and those who do not consent must be transferred to hospital if they are to be treated? — Is there any scope for a prison healthcare centre to be registered as a hospital, thus allowing application of the Mental Health Act? Tim Riding Network Director, Secure Services Lancashire Care NHS Trust November 2004

Memorandum from the General Medical Council (GMC) (DMH 329) 1. The General Medical Council licenses doctors to practise medicine in the UK under the provisions of the Medical Act 1983 (as amended). Our objective, as defined in the Medical Act, is to “protect, promote and maintain the health and safety of the public”. Our four main functions are: — to keep up-to-date registers of qualified doctors; — to foster good medical practice; — to promote high standards of medical education; and — to deal firmly and fairly with doctors whose fitness to practise is in doubt. Our governing body, the Council, is made up of both medical and lay members. 2. Within the terms of Section 35 of the Medical Act, we have power to advise doctors on standards of professional conduct and medical ethics. We do this primarily through published guidance, which sets out standards that society and the profession expect doctors to follow throughout their working lives. Copies of our principal guidance booklets are enclosed for information: — Good Medical Practice, 2001 edition. — Seeking Patients’ Consent: the ethical considerations, 1998. — Confidentiality: Protecting and Providing Information, 2004 edition. Ev 1084 Joint Committee on the Draft Mental Bill: Evidence

3. We have an interest in the proposals in the draft Bill as they have implications for doctors’ ability to meet the standards of conduct and care expected in their relationships with a particularly vulnerable group of patients.

General

4. We believe it is important to ensure that people with mental disorders are able to get the treatment and care which they need, and are not subjected to compulsory assessment and treatment without appropriate safeguards of their rights and interests. We would welcome reformed legislation which achieves these aims, taking account of the way that modern mental health services are provided in hospital and the community, and reﬂecting modern human rights law.

5. We also acknowledge that there are diYcult issues surrounding the management and care of the minority of people with mental disorders who pose (or may pose) a serious risk to public safety. On this point, there is clearly a tension between the public interest in protecting individuals’ rights to personal freedom and, on the other hand, protecting the public against risks of serious harm. It is a diYcult task to decide how the balance should be struck. However, it is important that any steps taken to address public safety concerns do not impose responsibilities on doctors which conﬂict with their professional obligations towards patients and their families and carers. 6. It is with these considerations in mind that we oVer comments on the draft Bill. Our response is focussed on those aspects of the Bill which appear to raise substantial points of principle.

Q1. Is the draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable?

7. The draft Bill proposes (Clause 1) that the principles which should guide application of its provisions will be set out in a Code of Practice. We have not seen a draft of the Code and there is little in the explanatory memorandum exploring what the principles should encompass. Even so the Bill allows that, whatever principles are established could be disapplied wherever they are considered “inappropriate” or “impractical” (Clause 1.4). We have reservations about this approach as it creates uncertainty about the scope of the Bill and the statutory protections which would be available to patients.

8. It is important to provide clarity about the scope and purpose of the Bill, so that those working within its framework or aVected by its provisions are clear about the basis on which it is considered legitimate to intervene in the lives of people with a mental disorder. A statement of principles, imposing a statutory obligation on decision makers to give eVect to them, would be a valuable means of achieving this. We note that such an approach is being adopted in the Mental Capacity Bill, which will interact with this Bill, and the principles outlined there seem an appropriate starting point.

9. We also note that the expert committee (Richardson Committee) set up to review the 1983 Act proposed a number of principles which should underly new legislation, and that many organisations representing patient or professional views have expressed strong support for those proposals.

10. The principles in the Mental Capacity Bill and the Richardson principles are consistent with the obligations we place on practising doctors (see the enclosed booklets). In particular we make clear that doctors are expected to respect the wishes of patients who have capacity to make their own decision (about treatment or care or disclosures of conﬁdential information), and to act in the best interests of patients who lack such capacity. These are fundamental principles of good medical practice which we would expect to see applied to decisions involving patients with mental disorders in the same way as those suVering from physical conditions. Therefore, we would expect any statement of principles to include appropriate references to issues of decision-making capacity, consent and best interests, as part of the framework for ensuring that patients’ rights are restricted as little as is compatible with ensuring they receive necessary care and public safety is not endangered.

11. Incorporating these principles would mean taking a diVerent approach, in a number of crucial areas. Principally, it would require more account to be taken of the rights of people who have capacity to consent to or refuse treatment for mental disorder. For example there is inconsistency between the right given to patients to consent to or refuse ECT, whereas consent is not required and refusal is not possible for long term administration of psychiatric medication (Part 5, Clauses 177–201). We note that the Joint Committee on Human Rights, in their review of the draft Bill, have stated that they “. . . have doubts about whether it should be possible to override the wishes of the patient, expressed when capable of making a decision, about treatment.” Joint Committee on the Draft Mental Bill: Evidence Ev 1085

Q2. Is the deﬁnition of Mental Disorder appropriate and unambiguous?Are the conditions for treatment and care under compulsion suYciently stringent?

Mental Disorder 12. The definition of mental disorder (Clause 2) is very broad. Consequently there is a concern that many people for whom compulsory assessment and treatment would be inappropriate could be caught by the Bill’s provisions. This might include, for example, people with learning disability or people who fall within the definition solely by reason of drug/alcohol dependence or anti-social behaviour. We note that a number of organisations with experience of the operation of the 1983 Act argue that the Bill should make explicit exclusions from its scope of such categories of patients, to ensure that mental health laws are not used as a means to contain people who display challenging behaviour. This seems a sensible proposal. 13. Alongside the definition of mental disorder, it is important to establish clear limitations on the scope of the powers which can be exercised under the legislation. However, considered together with other key provisions—the definition of “medical treatment” and the conditions which must be met before compulsion can be used—we believe that the overall scope of the Bill is drawn too widely.

Conditions for the use of Compulsion 14. The conditions (Clause 9) do not provide a suYciently clear or stringent basis for decisions which interfere with a patient’s rights. 15. The first, second and fifth conditions ( that medical treatment is necessary and appropriate treatment is available) are crucially dependent on the definition of medical treatment. We are concerned about the broadness of the definition (Clause 2) in that it includes interventions, such as social care and employment training, which are not generally regarded as medical treatment or as requiring the supervision of an “approved clinician” (if this means a doctor). 16. The third condition includes provision for compulsory treatment “. . . for the protection of others”, but it does not specify from what they might need to be protected such as to justify coercive treatment. Further uncertainty is created by the provision which extinguishes the need for compulsion to be used as a “last resort” in cases where there is “. . . substantial risk of causing serious harm to other persons.” No rationale is provided for creating these two levels of risk with diVerential powers to use compulsion. 17. There is no specific requirement for “treatment” to oVer therapeutic benefit in terms of improving, alleviating or preventing deterioration in a person’s condition or symptoms. 18. Overall, the definitions and conditions set out in the Bill do not establish a clear minimum threshold which would justify intervention in the lives of those with mental disorder. Lack of clarity on such a key point is unhelpful to those expected to work within the framework, or likely to be aVected by the provisions, of the Bill. (See also our comments on Question 3.) We understand that uncertainties about the basis on which powers of compulsion can be used, for people in need of mental health services, can be a powerful deterrent to seeking help voluntarily.

Q3. Does the draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on the one hand and concerns for public safety on the other? 19. We believe that the draft Bill does not achieve the right balance. This is based on our concerns about the eVect of the widely drawn definitions of mental disorder and medical treatment,and the focus on risks rather than therapeutic benefit in the conditions for compulsion (see paragraphs 15–16 above). 20. We acknowledge that there may be circumstances in which the rights and interests of a patient may have to be balanced against those of a third party. On other issues of public safety (for example child protection, communicable diseases) we advise that the threshold which might justify overriding an individual’s freedom is where there is a risk of death or serious harm. For example, we advise that a careful weighing of the competing public interests in protecting a patient’s right to confidentiality and protecting the patient or a third party from death or serious harm may justify breaching confidentiality in a particular case. We are concerned that, as currently drafted, the Bill would enable treatment to be imposed on people with capacity to make their own decision, when they are not at serious risk of harming themselves or others. 21. We draw particular attention to the conditions for using compulsion which propose two levels of risk to third parties, with diVerential rights for patients in each category. Our major concerns are that: (a) The provisions appear to exclude from the protection of the Bill those people who need treatment and lack capacity to decide but do not present serious risk to themselves or others. (b) The provisions appear to allow the use of compulsion for those who meet the risk criteria, but whose condition or symptoms could not be “treated” in terms of providing any therapeutic benefit. Ev 1086 Joint Committee on the Draft Mental Bill: Evidence

Q4. Are there important omissions?

Risk Assessment 22. Use of compulsion will be dependent, to a greater or lesser degree, on the level of risk that a person with mental disorder poses to him/herself or others. To ensure transparency and fairness, it would be helpful if the Bill made clear the process and/or criteria which should be applied to risk assessments. A clear procedure, with provision for patients to challenge decisions and arrangements for external scrutiny, should be part of the safeguards provided within the legislative framework. (The Scottish Mental Health Act oVers a useful model for this approach.) This would seem to be particularly important where the level of risk is seen as justifying increased powers to impose detention.

Use of Restraint 23. No speciﬁc provision is made for the use of coercive control and restraint procedures for the management of patients. The question arises whether inclusion of such procedures in a patient’s care plan provides suYcient legal authority for their use, or suYcient protection against abuse.

Q6. Are the safeguards against abuse adequate? 24. The Bill contains many welcome provisions such as the role of the Expert Panel in advising the Tribunals on decisions about granting assessment and treatment orders and on proposed care plans, and patients’ right to an independent advocate to represent their interests. 25. We are not in a position to comment generally on whether the safeguards are adequate. However, we note with some concern that the Tribunals will be able to authorise continued compulsory “treatment” of a patient who is subject to civil compulsion, irrespective of a decision by the clinical supervisor that the patient should be discharged. This would present doctors with a real dilemma since they have a professional obligation not to provide treatment and care which they consider to be clinically inappropriate or not in the interests of the patient.

Q8. Is the draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced on 17 July 2004)? 26. There are a number of areas of overlap or tension between the two Bills which would need clariﬁcation or further work. The analysis provided by the Royal College of Psychiatrists in their response on this question is very helpful in setting out the key points. 27. The point we would stress in particular is the importance of clarifying the protection for patients who lack capacity and who are compliant with the treatment being oVered. The Government has indicated that provisions for these patients will be included in the Mental Capacity Bill. We are concerned that patients treated under the Mental Capacity Bill have fewer safeguards and protections. For example, whereas the Mental Health Bill provides for formal reviews and inspection of services which are provided without consent to a patient; there is no parallel in the Mental Capacity Bill. We note that the need to ensure proper mechanisms are in place for taking and reviewing decisions and auditing services for these patients was highlighted in the recent ECHR ruling (HL v United Kingdom, judgment of 5 October 2004).

Q10. What will be the eVect on the role of professionals? 28. We would refer the Committee to our answers at Questions 3 and the point made about the powers of Tribunals in paragraph 25. 29. We are concerned that, as drafted, the Bill would require doctors to become involved in preventive civil detention for people who are seen to pose a risk to others; who have not been convicted of a serious oVence; and who can’t be treated in any meaningful way. This would represent a fundamental change in the role of doctors which would be in conﬂict with their professional obligations, for example the duty to make the care of patients their ﬁrst concern and the responsibility to provide treatment and care based on clinical need and the likely eVectiveness of the treatment. 30. If preventive civil detention is to remain a part of the Bill, we would prefer to see a clear separation between the role of doctors providing therapeutic care and treatment and others who might be responsible for providing social care and/or custody for people who are considered to be a danger to society. November 2004

Summary of Key Points — Mental health legisaltion should ensure that people with mental disorders are able to get the treatment and care which they need, and are not subject to compulsion without appropriate safeguards of their rights and interests. Joint Committee on the Draft Mental Bill: Evidence Ev 1087

— To provide clarity about the purpose and scope of the Bill, a statement of principles should be included which imposes a statutory obligation on decision makers. — The principles included in the Bill should be consistent with doctors’ obligations to respect the wishes of patients who have capacity to make their own decisions and to act in the best interests of those who lack such capacity. — We note that the Richardson principles are consistent with our guidance on professional standards and have a wide degree of support. — The definitions of mental disorder and medical treatment should be drawn more narrowly, through specific exclusions and a requirement for therapeutic benefit to the patient. — The conditons for the use of compulsion do not establish a clear minimum threshold which would justify intervention in the lives of those with mental disorders. — The Bill does not achieve the right balance between protecting individuals rights and the concern for public safety. — We consider that the threshold to justify overriding individual rights should be risk of death or serious harm, either to the patient or a third party. — We believe that the legislation should set out the process and/or criteria to be applied to risk assessments to ensure transparency and fairness. — We are concerned about the proposed power of Tribunals to authorise continued compulsory treatment where a doctor has recommended that a patient be discharged. — We would not wish to see doctors become involved in preventive civil detention of people who are considered to be a danger to others, but who can’t be treated in any meaningful way. — We believe it’s important to ensure consistency and clarity between the powers available under the Bill and the Mental Capacity Bill.

Memorandum from A Leader (DMH 331) I would like to suggest that members of the committee consider ways in which they can hear the direct voice of service users who will be eVected by the Bill. Wisely I recognise that the Committee is receiving written evidence and hearing oral evidence, the majority of those doing so are those who either provide services to individuals with mental health problems whether it be through the NHS and local authority or through voluntary sector providers. I an glad however to see that the NO Force Campaign is due to give oral evidence early next week. I would however urge the members of the committee to consider a mechanism where it will be possible for the committee to hear the experiences, views and concerns of individuals that have been subject to the Mental Health Act 1984 and will also be eVected by the introduction of this new legalisle. I would urge the committee to explore ways in which they can consult with service users either by visiting the local psychiatric services in the areas that they represent or by arranging special sittings of the committee in various parts of the country to enable and provide. Opportunities for those who will be directly eVected by the new legislation to have a voice. November 2004

Memorandum from Christians Against Mental Slavery (DMH 332) Six of the 12 formal members of Christians Against Mental Slavery are British. One of the British members is now living in France, but the rest live in the UK. Two others are British residents, one German and the other South African. Another member is South African and living in South Africa. The remaining three members are US citizens living in the USA. The group has far more associates than it has full members, and collaborates with others worldwide who are not necessarily Christians, on what is a serious, but underpublicised humanitarian issue. (For example, there is a copy on our website of the speech made by a British member, on this topic, at a civil rights rally in Houston, Texas this year.) There is a list of the full members on our website, with details of academic qualiﬁcations and profession in some cases.

Background Yesterday, the hearing was held of a successful appeal against the sectioning under the Mental Health Act of a “client” of this group. Earlier this year the client concerned made a complaint at a police station of assault, perpetrated remotely by unidentiﬁable assailants who were apparently armed with the sort of weapons which the European Parliament said it wanted banned, worldwide, in Resolution A4-0005/99 Paragraph 27, but which the Home Ev 1088 Joint Committee on the Draft Mental Bill: Evidence

OYce has told this group explicitly that the present government is determined not even to have discussed publicly, let alone banned. The client was sectioned and forcible injected, merely because a psychiatrist formed the subjective opinion that her complaint to the police was “inherently implausible”. (It was conceded that she had never been a threat to the safety of herself or others, which had never been alleged.) A leaflet published by this group was produced at the hearing, in addition to the somewhat weightier and more scholarly material mentioned below, and expert testimony was given by the group’s secretary, who also cross-examined the psychiatrist. This group has written more than five times to the Royal College of Psychiatrists, without receiving a single reply, asking what scientific tests British psychiatrists use nowadays, in order to determine objectively whether those presenting with symptoms consistent with the abuse of “manipulation” weapons (to use the term used in the relevant European Parliament resolution), and perhaps attributing their symptoms to such a source, are genuine victims of such abuse, or psychotic persons who are hallucinating the symptoms, and deluded as to the cause of those symptoms.

Recommenations 1. There should be a general statutory obligation for psychiatrists to refrain from diagnosing delusion before they have conducted rigorous investigations which are capable of determining scientifically whether the untypical beliefs they consider to be “delusional” are (1) potentially true after all, or (2) demonstrably false, with the patient being given the benefit of any possible doubt. 2. Until manipulation weapons have been banned worldwide and existing stocks placed beyond further use (as requested in our petition, an outcome which the present government declines to pursue), this should expressly include an express obligation to eliminate rigorously before diagnosis (using Faraday Cage shielding if necessary), any possibility must that the genesis of symptoms is the abuse by third parties of electromagnetic manipulation weapons, which can penetrate solid barriers such as walls of brick or stone, and hence can be abused remotely. 3. Any inability of a victim to explain why he in particular should have been picked for non-consensual experimentation with, or operational deployment of, manipulation weapons, should no more be grounds for diagnosing “delusion” than the inability of a rape victim to explain why the rapist picked on her, amongst all the women (some of them prettier) the rapist could have chosen to rape but didn’t, would be considered adequate grounds for inferring automatically that the rape victim was fabricating any rape allegation brought. 4. Due allowance must be made for the fact that those who report manipulation abuse might not be scientifically educated, and might therefore be unable to explain what would, in any case, only be their best guesses as to how the weapons deployed to their detriment function. 5. In view of the known congruence between (1) the documented bioeVects that can be caused, intentionally or maliciously, by microwave radiation and (2) known symptoms of schizophrenia, it is also necessary for microwave causation of symptoms, whether deliberate or accidentally, to be eliminated, before any attribution of those symptoms to a psychiatric cause would be lawful, even in cases where the patient presents without alleging manipulation weapon abuse.

Rationale I shall not rehearse here the more obvious rationales for our proposals, of which the Committee can think or remind itself unaided, rationales that are based upon ordinary notions of public safety and fairness. I shall confine myself here to two novel arguments, which might not have been considered before. 1. The abuse of manipulation weapons is intendedly impossible to prove on the part of any individual plaintiV, against any specific defendant who is perpetrating that abuse remotely, of which remote perpetration such weapons are capable. As with the now acknowleged health risks associated with tobacco use or exposure to asbestos, it can only be proved that such abuse is likely to be taking place amongst a particular population, by the use of statistics. This epidemiological evidence of a tell-tale trend is masked by the routine sectioning of anybody who (for example) attends a police station in order to make a complaint that they are being “zapped” non-consensually, in this way or that, because sectioning complainants discredits their testimony. 2. Psychiatry has failed to rise to the new challenge which the modern age has presented, which, our backing evidence shows, includes the wilfull agenda to develop weapons whose use can simulate mental illnesses, weapons as likely to motivate testing that violates the Nuremburg Code as did atomic weapons, whose aVects we now know were ascertained unethically. It is therefore unsafe to allow psychiatry the luxury of continued “self-regulation”. In the public interest, new statute law must now impose, explicitly, for the first time, the burdens prescribed in our recommendations, which are burdens which psychiatry has shown itself unwilling to shoulder voluntarily. Joint Committee on the Draft Mental Bill: Evidence Ev 1089

Supporting Evidence The following scientific papers are oVered, as material supplementary to this submission, in support of the contention that nowadays it is technologically feasible for unknown assailants to perpetrate, remotely, eVects such as those who complain at police stations of those eVects are apt to find themselves summarily and unjustly sectioned, a factor which impedes the eVorts of those determined to put onto the domestic political agenda the sidelined concerns of the European Parliament. On the Need for New Criteria of Diagnosis of Psychosis in the Light of Mind Invasive Technology Carole Smith http://sysos.co.uk/Brighton/NewCriteria.doc Microwave BioeVect Congruence With Schizophrenia John McMurtrey http://www.slavery.org.uk/MicrowaveCongruenceSchiz.doc Inner Voice, Target Tracking, and Behavioral Influence Technologies John McMurtrey http://www.slavery.org.uk/InnerVoiceTargTrackBehavInflu.doc Review of Literature Related to Recording Microwave Hearing Transmissions by Microphones, and Consideration of Recordings by an AYant to Remote Harassment (short title: Recording Microwave Hearing EVects) John McMurtrey http://slavery.org.uk/RecordingMicrowaveHearingEVects.doc Thought Reading Capacity John McMurtrey http://www.slavery.org.uk/ThoughtReadingCapacity.doc Pinneo’s 1975 Research Into Technological Thought Reading short factsheet by John Allman http://sysos.co.uk/Brighton/pinneo1.doc Feasibility Study For Design of a Biocybernetic Communication System Lawrence Pinneo et al http://www.slavery.org.uk/Pinneo.doc Physiologic Word Recognition From Cognitive State John McMurtrey http://www.slavery.org.uk/PhysiologicWordRecognition.doc Remote EEG Discussion John McMurtrey http://www.slavery.org.uk/RemoteEEGDiscussion.doc Our websites publish some of the correspondence conducted over a period of about nine months with various government ministries, and others, which substaniates our claims appertaining to the political support we receive, and the opposition we encounter. A goodly portion of that correspondence was with the Home OYce’s Security and Intelligence Liaison Unit. We maintain multiple copies of our website because of past experience of a denial of a service attack and other downtime, when we had only a single copy of the website. One such episode was timed to coincide with an appearance made by a group member on national television in the UK. Another (aVecting only one site) took place around the time of the Labour conference, at which we exhibited. The amusing tri-fold leaflet summarising our political position, produced for insertion into the Christian Peoples Alliance party conference delegates’ pack, is viewable at http://www.sysos.co.uk/CPAtri- fildLeaflet.doc. Christians Against Mental Slavery November 2004 Ev 1090 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from L Nixon (DMH 333) I am a UK resident. My sister in Canada has had bipolar aVective disorder since 1976. I therefore have more than 25 years’ experience with mental health services. I wish this memorandum to be treated as evidence. Some of the proposals in the Draft Mental Health Bill are good and will help both people with mental illnesses and the general public. But other proposals seem to reﬂect fear and ignorance of what mental illness and the mentally ill are actually like. The vast majority of people who have some mental illness are not murderous, or otherwise dangerous. And they are still “people”, trying to cope with diYcult and sometimes bewildering conditions. Some of these proposals seem to be denying the fundamental human rights of the mentally ill. It is these proposals with which I take issue.

1. Rights and Compulsion Over the years, my sister has learned to tell when she needs acute treatment. She has occasionally had to be sectioned but it is so much better if compulsory treatment can be avoided. New legislation in the UK should focus on a legal right to care and treatment, cutting down the number of people turned away and reducing the need for compulsion.

2. Extending Compulsion Widening compulsion in the way suggested in the draft bill would curtail the rights of mental health service users. There need to be tighter conditions and clearer deﬁnitions for widening compulsion. People should have the right to show that they retain suYcient mental capacity to refuse treatment.

3. Community Compulsion If the present plans go through, people will face compulsory treatment in the community. This would mean that they could have to live in a particular place and attend interviews, medical checks and community services at speciﬁc times. If someone is so ill that they must be treated against their will, they should be treated in a hospital setting in the ﬁrst instance. Only in very exceptional cases involving “revolving door patients” should community compulsion even be considered.

4. Altered Safeguards Medical staV are not the only people with crucial expertise. Social care professionals also have critical training and in some cases, essential knowledge of the individuals service users concerned. The draft Bill may weaken the role of non-medical staV in compulsion. Safeguards should be designed to ensure the central role of social care professionals, independent from the medical staV, when deciding that someone should be detained against their will.

5. Locked Out Key support people for those facing a mental health crisis will ﬁnd it harder to get their views across at many stages. It is absolutely crucial for specialist advocates to have a role at the very beginning of the compulsion process. Similarly, nominated persons and carers need to have a clearly deﬁned role, and from the beginning of the process. Compulsion is a very serious step. Compulsion can make you even iller than you were to begin with. Look at the weakened mental state of the men imprisoned without trial in Belmarsh: technically they were sane when detained. Most if not all now have some form of mental distress.

6. Free Care Ends People who are subject to compulsory mental health treatment presently have the right to continuing free care when compulsion ends. The government plans will end that right. This proposal is extraordinary. If people are to get well, they need treatment for as long as they need it. At the moment the Government does not say to smokers that they may not have treatment for diseases such as lung cancer which are linked to smoking. People with mental illnesses have done nothing to bring those diseases on. Denying treatment to people who are ill enough to have been compelled to stay in hospital is illogical and inconsistent. Joint Committee on the Draft Mental Bill: Evidence Ev 1091

7. Compulsion in Treatment The government has suggested extending compulsion to people who are already in prison and making it easier for courts to impose compulsory treatment. Again, people who have a several mental illness should be in a secure health setting and not prison. It makes no sense to extend compulsion to prison. The reforms discriminate against people appearing in court, compared with other patients. The reforms will not help people get the treatment needed on a voluntary basis and will widen the number who may end up under compulsion.

8. Special Protection Children and young people subject to compulsory treatment should indeed have rights, including the right to a multi-agency assessment of their mental health. Specialist tribunals should be brought in at an early stage when there is a dispute between parent and child over compulsory treatment.

9. Treatment Issues Electroconvulsive therapy (ECT) and psychosurgery are invasive treatments. Psychosurgery is irreversible; ECT has after-eVects such as memory loss. Both can be terrifying to those on whom they are inﬂicted. Neither should be used unless an individual is in a position to fully understand and consent to treatment. There must be strict safeguards before ECT can be used for people who lack capacity to consent and it should never be imposed against the will of a person with capacity to consent, even in an emergency.

10. Advance Statements An advance statement allows a person when well to set out how they want to be treated when unwell. The government does not mention advance statements in its plans, despite their use becoming widespread in many areas of health and social care. Advance statements are extremely important because they provide mental health service users with a way of managing their own illness. If you have an mental illness such as bipolar aVective disorder, advance statements can be a particularly eVective way to cope over long periods of time. Medical and other staV should therefore be under an obligation to take an advance statement into account before imposing compulsion and to adhere to it as closely as possible even when imposing compulsory treatment. November 2004

Memorandum from B Sutton (DMH 334) Summary 1. Introduction. 2. Principles behind the draft bill. — Apparent underlying principles. — Suggested alternative principles. 3. Deﬁnition of Mental Disorder. 4. Conditions for treatment and care under compulsion: provisions for assessment and treatment in the community. —InsuYcient protection against unhelpful or damaging treatment. — Potential for violation of civil liberties. — Wide powers for community treatment: likelihood of over-use, and suggestion that they should be limited. — Negative eVect on therapeutic relationship. — Earlier involvement of nominated persons. — Compulsory treatment to be associated with stronger requirements on clinicians. — Inadequate provision for aftercare. — Deferral orders unwarranted. 5. Balance between public safety and rights of the mentally ill. — Overemphasis on public safety. Ev 1092 Joint Committee on the Draft Mental Bill: Evidence

— Examples of how patients’ rights are currently undervalued. — Detention of those with mental capacity 6. Omissions. — Provision to protect voluntary patients. — Provision to protect voluntary patients lacking capacity. — Advance directives and advance statements. 7. Safeguards against abuse (not covered elsewhere in my submission). — Role of “approved mental health professional” contrasted with that of the Approved Social Worker. 8. ECT and psychosurgery. — ECT and psychosurgery only to be administered to adults who have given fully informed consent. 9. Balance between the draft bill, and Regulations and the Code of Practices. 10. Integration with the Mental Capacity Bill. — Possible conﬂict with “the right to make what might be seen as unwise or eccentric decisions”. — advance directives. — “best interests” vs “appropriate” as standards for treatment.

1. Introduction I have used psychiatric services intermittently during the past 15 years, as a voluntary patient.

2. Principles Behind the Draft Bill 2.a. Central principles appear to be that the “mentally disordered” are substantially likely to be a threat to the public or themselves, that these threats are inadequately contained, and that psychiatry has a duty to contain them through compulsion. However, this function leads to authoritarian and coercive attitudes, disguised by emollient terminology, and is incompatible with therapeutic practice. 2.b. More appropriate would be: — separating psychiatry’s therapeutic and forensic functions; — emphasising prevention over compulsion; — thereby reducing stigma (and consequent under-employment, isolation, and victimisation of patients), and improving treatment of patients; — patients’ interests to be paramount; and — collaborative, multi-disciplinary treatment to be readily available to all.

3. Definition of Mental Disorder 3.a. This definition is so far open to interpretation as to be meaningless. In an age of ever-increasing medicalisation and pathologising of human experience, it would be highly desirable to have a defined standard against which “mental disorder” should be measured, and some limits, as in the 1983 Act, on what should fall under that description. Under so broad a definition, there cannot be suYcient safeguards against misuse.

4. Conditions for Treatment and Care Under Compulsion:Provisions for Assessment and Treatment in the Community 4.a. Section 9:6 specifies only that treatment should be “appropriate”, whereas the Mental Capacity Bill specifies that treatment should be in the best interests of the patient. It is not apparent that patients with capacity may not be detained, and treated otherwise than in their best interests; nor that patients without capacity would be fully protected. 4.b.1. It appears that this wording, combined with the wide definition of “treatment” in section 2:7, will enable some, whom psychiatry has nothing beneficial to oVer, to be committed and subjected to treatment, on suspicion that they may perform some serious violent act. In the absence of evidence that such behaviour can be predicted62, this would be a gross violation of civil liberties.

62 New Scientist, 31 July 1999. Joint Committee on the Draft Mental Bill: Evidence Ev 1093

4.b.2. As one diagnosed with a personality disorder and having a history of severe self-harm, I am concerned that, had these terms then been in force, I might have been detained, without hope of beneficial treatment. This would have exacerbated the trauma and sense of powerlessness to aVect my own life, which caused my self-injury in the first place. 4.c.1. The stated intention to allow compulsion in the community in the case of “revolving door” patients is not fully embodied in the draft bill. Given the controlling attitudes common in the psychiatric system, these powers will be misused and over-used, unless severely circumscribed. Professionals may imagine that compulsion in the community is not onerous. 4.c.2. The existence of such powers would reduce trust, impair therapeutic relationships, and therefore hinder treatment. 4.d. Regulation and advice from the Secretary of State’s oYce is insuYcient to protect the patient. The threat of such compulsion should not be available to clinicians, to “persuade” patients. 4.e. Before applying compulsion (except emergency powers), clinicians should be required to explore all other options, in consultation with other organisations. 4.f. Involvement by the patient’s “nominated person” or chosen advocate should begin at the moment of examination, as under part 2, chapter 2, or at the earliest opportunity. 4.g. Powers of compulsion in the community should be limited in duration, and to those who have been detained, say, more than once in the previous five years. With proper commitment and a multi-disciplinary approach, three years should be enough time in which to establish a treatment plan which is acceptable to the patient, and which is therefore sustainable. 4.h.1. Workers should be required to listen fully to patients’ concerns, seek alternatives to unsatisfactory treatments, and consider patients’ social needs as part of treatment. 4.h.2. In my experience, staV, while kindly in intent, are often disrespectful towards patients; over-rate malleability as a measure of “health”; commonly misunderstand or disregard patients’ communication; under-rate their competence; under-value their need for citizenhood; and routinely underestimate the side- eVects of medication.63 This can be dangerous: I was outwardly “better” while taking neuroleptics, but akathisia (a common side-eVect of neuroleptics and anti-depressants) and reduced self-awareness meant my self-injury reached potentially life-threatening levels. 4.j.1. The provision for aftercare (clause 68) is derisory. The provision for deferral orders (clause 63), permitting clinically unwarranted detention of patients for want of services, emphasises the need for proper aftercare.

5. Balance Between Rights of the Mentally Ill, and Public/Personal Safety 5.a.1. The draft bill oVers little real protection to the rights of the mentally ill, against seemingly excessive concern for public (and perhaps personal) safety. Psychiatric patients’ rights and interests are routinely under-valued (see 4.h.2, 5.a.2, 6.a.2). 5.a.2. Three quarters of British psychiatrists surveyed admitted to practices, over one month, from placing patients on unnecessarily high observation levels, to admitting patients “overcautiously”.64 One psychiatrist is reported as openly flouting NICE guidelines65: a cavalier approach is common. 5.b.1. It appears to me that under Clause 9, someone with mental capacity, or who would be fit to stand trial, may be detained or subject to compulsion. This should not be permissible, unless his mental capacity is significantly likely to deteriorate within the 28-day assessment period. An exception might be made for recidivist, seriously dangerous criminals, in some form calculated to protect the rights of others.

6. Omissions 6.a.1. The draft bill makes no provision to protect voluntary patients, who are often extremely isolated, and may adopt an institutional attitude of passivity. Many are taking neuroleptics (often as substitutes for minor tranquillisers and sleeping medication), which commonly make people obedient, and anxious to please.66 These factors diminish a person’s ability to protect himself. 6.a.2. I have experienced minor ill-treatment in hospital, and one more serious instance of negligence, about which I would have made formal complaint, had I had any independent source of advice. I have known a number of people who have been threatened with “sectioning”, unless they assented to hospitalisation, or a given procedure. This coerces someone into treatment to which he would not otherwise consent, with none of the protection aVorded to detained patients.

63 BMJ, 22 June, 2002; American Journal of Psychiatry vol 144. 64 Postgraduate Medical Journal, November 2002. 65 Sunday Herald, 11 May 2003. 66 New Scientist, 30 August 2003. Ev 1094 Joint Committee on the Draft Mental Bill: Evidence

6.a.3. Given the costs involved, provision to protect voluntary patients need not be so stringent as for detained patients. Some source of independent advice, with discretion to advocate for voluntary patients, should be available; and patients should be informed of this. 6.b. Provision to protect voluntary patients who lack capacity should, of course, be stringent. A “nominated person” or advocate should be involved at all stages. 6.c.1. Unlike the Mental Capacity Bill, the draft mental health bill makes no mention of advance directives. A requirement for full compliance with advance directives should be explicit. I should also like to see the requirement, in parts 2 and 6, for clinicians to consult the patient when deciding treatment, expanded to include positive statements of treatment preferences. This should mean no significant extra burden on clinicians, and considerable potential benefit to all concerned. 6.d.1. Clinicians should be required to work with all patients to produce advance directives, and to ensure that they are updated at intervals of six months or a year, for so long as a patient’s case is active. I believe that the benefits, in terms of confidence and improved communication, would outweigh any extra work. 6.d.2. Research indicates that such collaboration reduces the need for compulsion.67

7. Safeguards Against Abuse 7.a. I am concerned that there is no precise deﬁnition, in section 3.4, of who may be the “approved mental health professional”. The role of the Approved Social Worker under the 1983 Act provides some protection for the patient against wrongful admission to hospital, which cannot reliably be provided by a mental health nurse (as suggested in the notes)—a person of lower professional status than a psychiatrist, and also medically oriented.

8. ECT and Psychosurgery 8.a.1. (Clauses 180 and following.) Existing research into ECT provides insuYcient justiﬁcation for non- elective use. It has been unequivocally demonstrated that even single “doses” can cause brain damage: there is considerable evidence of lasting memory loss. The description “not . . . irreversible or hazardous” (section 182:4) cannot be held to apply. 8.a.2. ECT and psychosurgery should only be administered to adults who have given fully informed consent. ECT should never be administered to a person against his preference.

9. Balance Between the Draft Bill, and Regulations and the Code of Practices 9.a. See 4.d above.

10. Integration with the Mental Capacity Bill 10.a. I am concerned that the broad deﬁnition of “mental disorder” would permit evasion of the requirement that the individual “retain the right to make what might be seen as unwise or eccentric decisions”. 10.b. See 6.b above concerning advance directives/ statements. 10.c. See 4.a above concerning the standard for treatment. November 2004

Memorandum from R Moore (DMH 335)

“ANY FORM OF AUTHORITY REQUIRES JUSTIFICATION; IT’S NOT SELF JUSTIFIED.” NOAM CHOMSKY 1. I am Rosemary Moore, a full time “carer” of two of my siblings who have diagnoses of mental illness and have chronic conditions. I am also the friend and advocate of people in secure services. I campaign locally (North West Surrey which includes the former Bournewood Trust) and nationally/internationally on the web. 2. There is no need for a new Mental Health Act. Reports—notably the one following the Health Committee enquiry 1992–2003 into proposals for compulsory treatment in the community support the view that the current legislation is adequate but poorly implemented. (Health Committee Fifth Report, Vols I and II, 23 June 1993, inquiry into the Royal College of Psychiatrists’ proposal for Community Supervision Orders.)

67 BMJ, 17 July 2004. Joint Committee on the Draft Mental Bill: Evidence Ev 1095

3. Since 1987 I have campaigned for the use of Guardianship, Sections 7 and 37 of the 1983 Mental Health Act. My submission to the Health Committee can be found in Vol II of the above 1993 Report. I attach a letter to me from the Clerk of the Committee, 29 June 1993. Two of my published articles about the use of Guardianship are are on my website at http://www.mentalmagazine.co.uk/mental—health—law. htm£LIST . . . In 1990 I won an appeal to the Ombudsman against the Social Services refusal to accept my application to be my brother’s Guardian. 4. It has long been argued that the 1983 Act is “hospital based”, yet the proposed changes simply extend the controls allowed in hospital (forced medication and containment) into the community and remove rights to informal care. The proposals also formalise the role of the unpaid carer without any safeguards for either the patient or the unpaid carer. 5. The most illogical and unfair proposal is to allow some patients to be treated compulsorily in the community but NOT if they are in prison! See my website for article from the National Schizophrenia Fellowship’s NSF News 1990 about the massive increase in mentally ill people in prison following the closure of hospital beds—http://www.mentalmagazine.co.uk/mental—health—law.htm£LIST . . . 6. Contrary to the propaganda, the current Act is NOT hospital based. And the proposed changes remove ALL the community elements, which include protections against abuse. In my opinion, the most serious flaws in the proposals are the removal of: Right to informal treatment in hospital: Section 131 (identical to Section 5 in the 1959 Act); Guardianship: Sections 7 and 37; Mental Health (Patients in the Community) Act 1995: Section 25A; all of which are covered by protection against abuse: Section 127. 7. In addition, Section 117 will be scrapped; that is, the entitlement to (free) aftercare for patients who have been compulsorily detained in hospital. 8. The removal of the Nearest Relative—replaced with the Nominated Person (to be chosen by the patient?)—is supposedly satisfying requirements of the Human Rights Act but I do not agree that it does so. The patient (note that although “carer” appears in the proposed Act, “user” does not!) will not necessarily be able to choose their Nominated Person if for some reason the authorities decide that person is unsuitable. Nor will the NP automatically be a “carer” who is defined under the Carers’ (Recognition and Services) Act as someone who “provides regular and substantial care to a relative neighbour or friend” . The powers of the NP are extremely limited and far less than those given to the NR. The appointment of an NP would be cumbersome, bureaucratic and short-term. 9. This contrasts with the 1983 Act where there are important powers attached to the role of Nearest Relative, with an established hierarchy which nevertheless can be amended in various ways—the Nearest Relative can be removed, changed or transferred, all of which includes the option for the patient to choose their NR. 10. Not only am I the Nearest Relative under the terms of the 1983 Mental Health Act of my brother and sister, but also of a man (no relative) who spent more than 35 years in Broadmoor and is still held under Section 37 in a “Ward in the Community” in London (formally opened by Health Minister Rosie Winterton in July 2003). The NR powers were passed to me by his brother by a signed authorisation. I include a copy of this document for information. 11. However, this is a good example of how poorly the current legislation is understood and administered. Although the transfer is a simple procedure, clearly laid down in both the Code of Practice and Regulations accompanying the Mental Health Act, I found that the man’s Solicitors, the Mental Health Act Administrators, the Hospital Managers and his Responsible Medical OYcer, Social Worker and other members of the hospital team, appeared baZed by me taking on this role. A Trust leaflet advising patients on their rights under the Act, states that the role of Nearest Relative is “decided by the Social Worker”. 12. With regard to the case for Guardianship—one of the people for whom I am the friend/advocate is a man who has been in Broadmoor since 1993 after he killed a health worker when an inpatient under Section in a mental health unit in Devon. In 1995 a report into his care and treatment—widely published including in book form in The Falling Shadow—identified that Guardianship had been very eVective and that things had gone wrong after it was removed. 13. Despite recognising the serious failings in the man’s care and the misapplication of the law, over a period of 12 years— including the fact that Guardianship should have continued— the inquiry came to the conclusion that the 1983 Mental Health Act was “obsolete” and recommended an overhaul of the legislation, with the clear inference that compulsion in the community should be considered for some patients. This has of course been followed by years of scrutiny and consultation, starting in earnest in 1998 with the appointment of Genevra Richardson as Chair of the Expert Committee into the Review of the Mental Health Act 1983. 14. The powers of the Nearest Relative and Guardianship provide all that is needed to see that a patient is properly cared for and that paid and unpaid carers are held accountable. Ev 1096 Joint Committee on the Draft Mental Bill: Evidence

15. The Bournewood case which was about a learning disabled man who was held in hospital without being placed on Section, has been discussed ad nauseum in legal terms over the last six years and appears to be a major consideration in the Scrutiny Committee’s deliberations. His carers were paid (their role formalised), yet even with legal representation they were unable to see that the patient was treated properly, which was the reason for their objection to his detention. Why wasn’t Section 127 invoked? 16. Whether someone is being compulsorily treated or not is surely beside the point—anyone is entitled to good treatment. 17. The Mental Health Act Commission introduced by the 1983 Act to protect the rights of the detained patient, has failed and is to be disbanded. The MHAC (Section 121) is a Special Health Authority open to complaints to the NHS Ombudsman but have any ever been made?. Whatever form the replacement body takes (which will probably be served by the same personnel!) it will also fail unless held accountable. 18. Charities provide a great deal of services ( including advocacy) but are in competition with statutory and other independent providers, and each other. 19. The Mental Health Alliance led by Rethink, MACA and Mind, states in its written evidence that it was “formed in 1999 solely for the purpose of working for improved legislation, following the Government’s response to the Expert Committee’s Report of the Review of the Mental Health Act 1983”. Individuals within those charities have been negotiating with the Department of Health over the last two years since the publication of the ﬁrst Draft Bill. The result is a revised Bill which includes compulsory treatment in the community and refusal to treat the mentally ill compulsorily in prisons. 20. The Scrutiny Committee is interested in the interface between the Mental Capacity Bill and the Mental Health Bill. It should, in my view, also be looking at the Carers’ (Recognition and Services) Act 1995, the Carers’ and Disabled Children’s Act 2000 and last but not least the Draft Charities Bill. Activities of many charities overlap, with conﬂicting roles as campaigners, service providers, and advisors to government departments —all this negates their ability to represent the interests of the mentally ill and their supporters. 21. And let’s get rid of the lawyers! November 2004 Attached (to hard copy)68 1. Delegation of Nearest Relative role, May 2003. 2. Letter from Paul Evans, Clerk to Health Committee, 29 June 1993.

Memorandum from SURE (DMH 336)

SURE is a mental health service users group in Vale Royal, Cheshire. We spent some time discussing the proposals in the draft Bill and have put our views together in this letter. We have been told that reforming mental health law is part of the overall strategy in improving mental health services, but we feel that much more could be done in developing community services before doing more to compel us to use inappropriate services. We have a 12-month waiting list for psychological services in our area. People are being treated with medication to control the symptoms of their distress when with earlier help they could be addressing the causes of this distress. We believe that there should be a right to help at the right time. We know when we are not well but the services have nothing to oVer until we reach a crisis. One of our members recently contacted their care team because they felt unsafe at home. They were oVered hospital admission or to ﬁnd their own bed and breakfast accommodation.

1. Examination 1.1. The Relevant Conditions—The ﬁfth condition that appropriate treatment is available—We have no services which support people who self harm, so to compel those who are at risk of serious harm, to have medical treatment, would be likely to increase their distress rather that alleviate it. 1.2 Approved mental heath professional—We are concerned that this will not necessarily be a social worker who can bring a non-medical view to the assessment. They might not be independent of the two medical practitioners called upon to examine the person.

68 Not printed. Joint Committee on the Draft Mental Bill: Evidence Ev 1097

1.3 Advocacy—We think that there should be access to advocacy at the earliest possible point, ie when the request is made for examination. There is a mental health advocacy service in our area and we would want our advocates to support us during the examination and assessment. There is no right to advocacy other than the independent mental health advocate in the Bill. 1.4 Request for examination—We are concerned that neighbours, who already cause problems for some people with mental health problems will be inclined to call the authorities. We are pleased that the services will have to listen to our carers; they are the ones who know when we are becoming unwell. The services should be listening to the carers without the Bill compelling them.

2. Assessment 2.1. Resident or non-resident patient—We think that if someone is at serious risk to themselves or others they should be treated in hospital. We think that it will not be possible to assess someone in the community even if it is planned to impose conditions during the assessment. 2.2. Care plan—we are pleased to see that a care plan will be produced within ﬁve days of registration. Many people admitted to hospital do not know the purpose of their admission or treatment.

3. Tribunal 3.1 We are concerned that the tribunal will be asked to make treatment orders and leave patients with no-one to appeal to if they are not happy with that order unless there has been an error in law. 3.2 We cannot see Tribunals being set up within 28 days of registration. In our experience it is not worth appealing against a Section 2 (28 day) because the section will have expired before a Tribunal is set up to hear the appeal.

4. Treatment 4.1 Electro Convulsive Therapy—We think that ECT should never be given without the patient’s consent even in an emergency. A number of our members have been treated with ECT on the authority of a second opinion doctor under Section 3; they have never forgiven the doctors. One has lost memory of the early years of her children. She feels that the mental health services have deprived her of these years. Another recalls it as such a horrendous experience. How can they rely on these services in the future? 4.2 Advanced Directives—Many people who have been using mental health services for some years know how they would like to be treated when they become so unwell that they pose a risk to themselves or others. Their treatment should be oVered in line with agreed plans in the form of advanced directives. The Bill should ensure that these are complied with.

5. Independent Mental Health Act Advocates We are concerned that they will replace the community advocacy service we already use. We are concerned that the funding for our community service will be used for these Mental Health Act advocates. There need to be arrangements as to how they will work with existing advocacy services.

6. After Care The provision of free care after discharge for the initial period of only six weeks is likely to cause breakdown in community care plans. People may be unable to aVord the care that maintains their mental health and prevents further admission to hospital. The charges imposed on people using community support services already cause hardship in some cases. They have a signiﬁcant impact on the family budget. Even people on Income Support can be charged up to £75.15 per week, if they receive Disability Living Allowance and live alone. People should be supported without having to pay. In conclusion we think that introducing a new mental health Bill reinforces the public perception that people in mental distress are dangerous to others. It works in opposition to the initiatives of the OYce of the Deputy Prime Minister and the Social Exclusion Unit in trying to promote social inclusion of people aVected by mental health problems. October 2004

Memorandum from B Broderick (DMH 337) 1. I am Betty Broderick Mother of Thomas and his carer I am also a committee member of mind. As you know, the Draft Mental Health Bill is currently being scrutinised by a committee. Ev 1098 Joint Committee on the Draft Mental Bill: Evidence

I think that: 2. Patients should have an Independant Advocate. 3. ECT Should not be given without consent by the Patient and not unless there is no other treatment. 4. A clause must be inserted making it clear that the Bill does not permit euthanasia. 5. Invasive medical research on people who cannot give consentshould be outlawed. 6. Patients should have a right to aftercare. 7 Patients with his carer must be consulted before a descision is made toarrange an examination and treatment. 8. I do not think the Police need any extra powers. October 2004

Memorandum from Janey Antoniou (DMH 338)

1. Introduction I give my views as someone who has a diagnosis of schizophrenia and depression and has been detained in hospital and places of safety under various sections of the Mental Health Act 1983 a number of times and subject to section 117 aftercare. I accept the need for an overhaul of the Mental Health Act. I also accept that some people need to be detained compulsorily at crisis points in their life for their own safety or for that of other people’s. In addition I do realise that there can be disagreements between people who do not think that they need medication and mental health professionals who think that they do. However I have major reservations about the new draft Mental Health Bill, published in September this year and they are as follows.

2. The Code of Practice This document has yet to be written and it is obvious from reading the draft Bill that there are a lot of details still to be thought though. The group producing the code of practice should include at least 25% of users and carers voted for by the other members of their respective groups. It is these groups who will have an idea of how the written document will translate to positive action.

3. Definition of Mental Disorder and Accompanying Conditions It becomes very important who is making the decisions about what an “impairment or disturbance in mental functioning” (section 2 (5)) and what the baseline of “normal” mental functioning is. In the Soviet Union in the 1960s and 70s it was ruled that everyone who questioned communism had a disturbance in mental functioning and many people were locked up because of this. Also, the conditions do not make it clear how seriously ill someone needs to be before they are treated and what constitutes “neglect by him of his health and safety” (section 1 (3)(c)). Many people in our society choose to do unhealthy things, why is it those who also have a mental health problem who can be treated by force? These deﬁnitions need clearer boundaries.

4. Non-resident Patients When people are considered to be ill enough to warrant compulsory treatment “for the protection of the patient from suicide or serious self-harm (section 9 (4)(a))” or “for the protection of others, (section 9 (4)(b))”, I cannot see how they can also be seen as having the capacity to comply with a care plan or to obey the “conditions” that they are required to under the Bill (section 15 (4)(a and b)). I feel that in these cases it is justiﬁed to detain them in a protected environment. However, I think that when someone is considered to be well enough to be living in the community, they should not have any less civil liberties than any other person in the community. There are other problems concerned with compulsory treatment in the community, they include: — There may be a tendency of care team and members of the tribunal (who carry the responsibility for their decisions) to put someone who is a low risk on a compulsory community treatment order “just in case” something goes wrong. Especially in the “blame culture” society in which we live. — Continued violation of someone’s personal space (their home) by unwelcome people could actually be stressful and slow down a person’s recovery. There is now anecdotal evidence that where Home Treatment Teams have been set up in this country, many service users have found Joint Committee on the Draft Mental Bill: Evidence Ev 1099

they really dislike the service mainly because there can be lots of diVerent faces on a large team (you have no choice who comes). Some women who live alone may find two male nurses in their home a very distressing experience. — There will be the temptation by the staV to do as much as is feasible over the telephone—which those who hear voices may have a lot of diYculty with (as I do). — The neighbours will know something is happening, and it may stigmatise their view of the person being treated. — And there is the potential for the staV to bully the users who don’t know their rights (“you must take this medication”, etc). — It may put a lot of stress on informal carers and any children in the household. — Overall, the number of people on compulsory treatment will probably increase because it is no longer limited by the availability of beds. — People who really want to get away from their orders will simply leave the area and possibly become homeless. Those who truly wish to have nothing to do with the services will find a way to do it. — There is the possibility that compulsory medication may make doctors with time constraints or budget constraints (or lazy doctors) less thorough about finding the right treatment (medication) for each person, especially if they can continue a given treatment compulsorily in the community. Mental health medication acts in a very idiosyncratic way and can have awful side-eVects. — It is a common experience for people with many diVerent types of chronic illness to deny they need help or medication. Mental health problem are included in this. From personal experience and from talking to friends I have come to the conclusion that the majority of patients (with good professional support) find a mixture of medical treatment and coping skills that will help them for most of the time. But it takes time and experience to do this. How can anyone learn about their own individual survival strategies if they are always subject to the compulsion of the way someone else thinks they should behave? They are always at the base of the learning curve. As the government has promised in other areas of the National Health Service, mental health service users should have a choice of services. If they have the capacity to do so, they should be able to choose whether they are treated in hospital or at home. If they are a danger to themselves or others they should be in a safe environment. There should also be the provision for service users who have used services in the past to make an Advance Directive stating how they would like to be treated if they relapse, and it should be legally binding.

5. Police Powers Except when absolutely necessary, the “place of safety” (section 227 (5)) should not be in a police station.

6. After Care All mental health service users should get after care for as long as it takes to help them stay well. They should not have to choose continued support “if you stay on the compulsory order” over limited support and freedom.

7. Stigmatisation of Those with a Mental Health Problem It is implied by this Bill that only those with mental health problems are a risk to other people, that those with physical illnesses are always capable of making rational decisions about their actions. This is not true; there have been cases of a person with sexually transmitted diseases intentionally having sex with other people in order to infect them. Furthermore, if someone with a known heart condition and slight chest pain (and perhaps not taking their medication), drove, had a heart attack and killed two people, he/she would not be the subject of an enquiry and locked up in a special hospital for an indeﬁnite period. Also, those suspected of terrorism or criminal behaviour are the only other people who have to let uninvited professionals into their home. It is this type of stigmatisation and prejudice that makes living with a mental health problem in the community so diYcult. Janey Antoniou,MSc (freelance mental health trainer). October 2004 Ev 1100 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from A Davies (DMH 339) After attending the NIMHE roadshow in Cambridge last week concerning the draft Bill, I have the following comments and queries, which I make because of my professional interest in these matters. Although I work for Cambridgeshire Independent Advocacy Service as a mental health advocate, these are my own views, not those of the service (with whom I have not, in any case, had the chance to share them).

1. Capacity and Refusal of Treatment It seems anomalous to allow a person with capacity to refuse electroconvulsive therapy (ECT) and psychosurgery without allowing such a person, at a time when he or she (can be shown to have) had capacity, to make a binding direction that refuses such treatment for the future. I submit that this argues for giving such advance directives a stronger footing than intended in the scheme of the Bill and its dependent legislation and guidance, not for abandoning the proposed provision for being able to refuse if there is capacity. Moreover, the anomaly can be seen to be more extreme and unjust on the patient’s ability to choose his or her own treatment when one considers that, within a hospital admission, he or she could “drift in and out” of capacity, but that the refusal of ECT and other such treatment would not always be eVective, only when they actually had capacity, even if they wanted to make a refusal to cover their deterioration in the future.

2. Conditions for Detention In the presentation by the mental health legal team, it was said that the Bill, if enacted, would allow someone “to remain in the community”, but the five conditions that have all to be met for detention to take place, insofar as they refer to the “availability of treatment”, just as much what has to be true of treatment in the community, ie it has to be there. It is submitted that it can be foreseen that, if the legislation is passed as it is understood that it stands, there will be scope for confusion as to where exactly (that is to say, on a ward or in the community) the treatment required has to be “available”, and whether or not that argues for detention or treatment in the community. All this inclines me to submit that some reformulated test of availability should apply, such that detention will not be warranted, even if the first three conditions are all met, if there is an alternative to it in the community that is supported by treatment that can reasonably be expected to continue to exist for the period for which it is reasonably expected that it will be needed. The clinical supervisor is required to continue to monitor the five conditions, so any alteration for the worse could justify detention to safeguard the patient’s continuing receipt of treatment. I submit that this proposal would be more legislatively workable, and that it would lead to a test that a clinical supervisor could actually, reasonably and easily apply, rather than one that is, I suggest, muddled and whose consequences are ill thought through in the context of the supposed application of a principle of least restriction.

3. Review of Detention As I understand them, provisions relating to the review of detention presently allow, if someone is admitted under section 2, that he or she is automatically discharged from detention if the section is not renewed under ssection 3: within the ﬁrst 14 days of detention, he or she has the right to apply to a review tribunal, which must take place within seven working days. By contrast, under the provisions of the draft Bill, there would no longer be separate detention for assessment (section 2) and treatment (section 3), but one form of detention, after 28 days of which a review tribunal would be triggered (although it is not obvious within what further time the hearing must take place, or even if there is to be such a time-limit), although it is unclear whether an earlier review can be applied for, and, if so, again how quickly it has to take place, and what eVect it has on the 28-day trigger. It is then my understanding that there would not be a further review until a year has elapsed. Three consequences follow: (a) It appears that the legal rights of the patient may have diminished in comparison with the status quo, but without any very good reason as to what the present merits and demerits are. (b) Moreover, an initial detention under section 3 lasts for a maximum of six months, at which point, for it to continue, it must be reviewed, whereas this Bill appears to have no automatic review until a year, which is again much later, and diminishes the role taken by the tribunal in reviewing the initial period of detention. (c) Whether or not the patient has the capacity or insight to request a review or is reviewed automatically, there appears to be much greater scope for reviews being more infrequent, not least when there will no longer be the option of applying to the hospital managers or of the replacement role for the nearest relative applying for discharge. When, at present, applications under section 2 are given priority and those under section 3 have been notoriously delayed, it is far from clear— Joint Committee on the Draft Mental Bill: Evidence Ev 1101

unless there is to be no speciﬁed time within which, once triggered, a hearing must take place— how the hearings could be managed by the tribunals as presently established, and what could be done before the Bill comes into force to allow an improvement.

4. Reserved Decisions/Role of the Tribunal I understand that there will be the power for the tribunal to give reserved decisions. Although this makes the hearing more like a court hearing, as does having rules made under powers delegated to The Lord Chancellor’s Department, does it follow that: (a) Tribunal hearing will become even more formal, more adversarial and more rooted in the rules, which will tend both to exclude the patient from his or her own review, and lead to greater scope for procedural objections and challenges? Patients often find hearings stressful and/or daunting as they are, since, whether or not they should continue to be detained, they may be or have recently been in a disturbed state of mind. If tribunals become more legalistic, patients will find them harder to follow, and will increasingly feel themselves to be in the hands or at the mercy of any legal representative. Since there is only the right to public funding before a tribunal, nothing ensures that the views and/or rights of an applicant to a tribunal are respected, if he or she has not chosen to be represented. There will be financial and logistical implications for ensuring a quick and eVective appellate decision, if first-instance decisions become more open to challenge on technical grounds. (b) A time-limit would be put on the period for which promulgation of a decision can be kept back to keep it timeous and so relevant? (c) Tribunal rules would in all cases give the right to a full and reasoned written ruling? I had understood that one of the eVects on the Human Rights Act 1998 on court hearings had been to require written reasons to be provided, so, if this is correct, it would only be consistent with the role of reviewing detention that the tribunal currently exercised for a detailed and reasoned account to be given of the case for continued detention.

5. Principle of Least Restriction Is this so-called principle to be an overriding principle, as is making the welfare of any children paramount under the Children Act 1992? In that Act, everything else is to be interpreted in the light of that principle, or is the model to be that of a principle that is intended to be subject to heavy non-statutory guidance, as in the case of the Codes of Practice made under the Data Protection Act 1998. If this is to be a principle that means anything to patients and is to be for their protection, I submit that the former model should be followed.

6. Criminality and Detention Certain words, such as “section” and “detention”, and certain procedures, such as sectioning and tribunals, have overtones of a criminal process, which, when people are being deprived of their liberty, tends to enhance their feelings that they are in hospital because they are being punished. I submit that a new Mental Health Bill is the time to change terminology so that it becomes clear that patients are required to be on hospital wards against their will for their health or well-being, not because they are part of the criminal-justice system. October 2004

Memorandum from C Smith (DMH 340) I am an accredited psychoanalyst, registered with the United Kingdom Council of Psychotherapists; a member of the College of Psychoanalysts; a member of the Institute of Psychotherapy and Social Studies, of which I am a member of the Ethics Committee. As a psychoanalyst who has worked with people who might well have been diagnosed as schizophrenic and sectioned for expressing feelings and views which would could have been described as “delusional”, I know from experience that the psychotherapies, perhaps most particularly, the psychoanalytical therapies, can enable people to regain stability and insight into their conditions. I am, as a result of my work with such people, increasingly concerned with the medicalisation and labelling of human suVering as pathological, and with the automatic labelling of “schizophrenia”—a term used to describe a wide spectrum of symptoms. The draft of the Mental Health Bill does nothing to allay my fears that there is a diminishing eVort to understand the origins of experience, and an increasing desire to medicalise and control human behaviour, not least of all for the proﬁt of the giant pharmaceutical companies. The recent announcement in the United States that President Bush’s Texas Algorithm Plan is to screen every US citizen—from the age of three—for signs of mental illness, is a gravely worrying sign that such a society is taking the role of setting norms for human behaviour, which are also in the interests of corporate and pharmaceutical proﬁt. Ev 1102 Joint Committee on the Draft Mental Bill: Evidence

The new Draft Mental Health Bill extends the concept of “mental disorder” to include as appropriate for treatment, those who might be deemed to develop what psychiatric diagnosis considers to be aberrant or suspicious behaviour. This is a reactionary policy, based not on enlightened understanding of human behaviour, but on the intolerance and repression of diVerence. It gives even greater power to a profession which is increasingly under the influence of technology, one which, by seeing the mind as synonymous with brain, contributes much to seeing how the brain functions, while remaining closed to the understanding of emotional development and human needs. This is the language of “behaviourism” writ large, and it is the ethos behind the linking of the brain sciences with computers, to develop ways of accessing every human being for the purposes of social control. I want to strenuously oppose also the diagnosis of symptoms which do not correspond to the interviewing psychiatrist’s knowledge or training as “inherently feasible” and therefore termed delusional, and appropriate for enforced medication and perhaps sectioning. I wish specifically to mention a major concern of mine, that of the non-consensual use of civilians for testing of what is described by the European Parliament as “manipulation” weapons, the Resolution A4-ooo5/99 calling for the ban of these weapons worldwide. The failure of governments, notably the British Government and that of the United States, to ban these weapons, has resulted in the continued use of civilians for testing, and as a result of the policy of non-disclosure about their existence and capability, the fast spreading appropriation of them by malign groups and individuals for their own profiteering. The eVects of these on the nervous systems of human beings is a matter of grave concern, and a scandalous example of failure of responsibility to bring this subject to a public debate. Their potential is quite catastrophic for the manipulation of the public, and the creation of power amongst those with secret access and financial resources to use them for various purposes, absolutely opposite to the interests of freedom, justice, democracy, and health. I have known people whose lives are being destroyed by these methods of victimisation,—and who are doubly punished by being labelled psychotic by psychiatrists who order mind-altering drugs or detention—because they have no knowledge of their use. I respectfully submit my paper on the subject, to the Committee. It was written as a result of my experience with such victims, and after considerable research into the subject. It is highly relevant to this draft Mental Health Bill extension of powers, as we have already seen many cases where the victims have been diagnosed psychotic when they turn to their doctors for help for their symptoms. There is every reason to fear that an unethical policy of secret experimentation which has now got out of control, and which the government is not acknowledging, will result in many erstwhile healthy people being made desperate and ill by becoming victims of a vicious and unsupportable system of manipulation of human beings’ minds and the control of physiological processes—cynically concealing their activities through the collusion of silence by those who have developed them—in the name of “state security”. It is imperative that the Psychiatric Profession remembers that they are first and foremost servants to their patients, and not controllers of society. Attached: ON THE NEED FOR NEW CRITERIA OF PSYCHOSIS IN THE LIGHT OF MIND- INVASIVE TECHNOLOGY Published by the academic Journal of Psycho-Social Studies, Vol 2 (2), No 3.69 Carole Smith October 2004

Memorandum from J Bostock (DMH 341) I welcome many of the proposals of the above Draft Bill, including, — The provision for advocates; — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal; — The single assessment process; — The ability to appoint a “nominated person” (but not its reduced role); — Special provisions for children and young people; — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go a long way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental ﬂaws that remain within the current proposals, especially as some of these remain exactly the same as the concerns that were expressed by many respected organisations following the Draft Bill’s ﬁrst introduction in 2002. My concerns are as follows and I would ask the Scrutiny Committee to consider addressing the following concerns before proceeding any further with what really could be a good opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS.

69 Not printed. Joint Committee on the Draft Mental Bill: Evidence Ev 1103

— A right to assessment of mental health needs; — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic beneﬁt, and requiring other options to be tried before compulsion is imposed; — A limit to the conditions for the use of compulsion in the community; — The right to advocates and nominated persons where possible to take part in the examination stage; — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient; — A statutory recognition of the role of advance statements; — A reconstituted tribunal with a role for non-medical members and users; — A duty to provide aftercare; — A removal of the police power to enter private premises without a warrant; — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients; — The right to an independent advocate; — Legally binding safeguards to protect people from potentially hazardous practices, and speciﬁcally that doses above BNF limits should not be given without informed consent. I trust that the concerns I have raised above will be considered and I look forward to your response. Jan Bostock Consultant Clinical Psychologist, Newcastle, Northumberland and North Tyneside Mental Health NHS Trust October 2004

Memorandum from M Colquhoun (DMH 342) Introduction I am Matthew.

1. Alienating people from care Have you ever experienced behaviour so challenging that few people wanted to spend time with you (including a loving family and likeable friends)?

2. Putting at risk people who need care Have you ever experienced hallucinations so frightening that you end up wanting to ask questions about everything that your educators taught you?

3. Increasing likelihood of compulsory treatment Have you ever wanted to experience success beyond terrible experiences but ﬁnd that people mistrust you because you take particular medication?

Summary This is a contribution that I hope will provoke a useful reaction.

Memorandum from User Voice (DMH 343) 1. Introduction 1.1 User Voice is a project promoting user participation in Birmingham and Solihull mental health services. All of its workers have either experienced mental ill health themselves, or worked or cared for those aVected by it. This response has been written as part of a workshop on the Draft Mental Health Bill attended by service users and survivors from the Birmingham area as well as User Voice workers. We have experience of using mental health services and of being at the receiving end of mental health law. We therefore feel that Ev 1104 Joint Committee on the Draft Mental Bill: Evidence

our views on the subject of the Draft Mental Health Bill currently undergoing scrutiny should be regarded as being vitally important. If it becomes law, it will aVect our lives, and the lives of fellow service users and survivors, for at least another 20 years. It is crucial that the direct service user voice along with our expertise and experience is taken into account when scrutinising this legislation, to ensure that it will help rather than harm our mental wellbeing. We would also like to be given the opportunity to provide oral evidence to the Committee, and hope that you will read our evidence with due care and consideration. 1.2 The subjects that we shall be writing about in this response are: — The deﬁnition of mental disorder. — The conditions treatment and care under compulsion. — The provisions for assessment and treatment in the community. — The balance between protecting the human rights of the mentally ill and concerns for public safety. — Omissions from the Draft Bill. — The Draft Bill’s integration with the Mental Capacity Bill.

2. Is the definition of mental disorder appropriate and unambiguous? 2.1 We do not believe that the definition of mental disorder is either appropriate or unambiguous, because it is too broad and unclear in the cases of people with learning disabilities, neurological disorders and people with substance misuse issues. It might not be appropriate for these people to be subject to the Mental Health Act, even though they may be considered “mentally disordered” by this definition. 2.2 The definition of mental disorder in the Draft Bill is based on cause, rather than eVect as it is in the current Mental Health Act. This means that people who exhibit behaviour indicative of mental distress, even if this behaviour is not caused by a mental disorder, can potentially come under compulsory powers. This may aVect many diVerent groups of people, for example: people with diabetes who don’t take their medication leading to impairment in their mental functioning, and even people who become distressed due to excessive alcohol intake. The definition must be amended to clarify who it includes and who it excludes. 2.3 In our opinion, there should be two tests to determine whether or not a person is mentally disordered. The first test would be to verify that there is an impairment of disturbance of the mind. Professionals able to verify this should be specified in the legislation. The second test should be to confirm that the consequences of this mental impairment are of legitimate concern to the person or to others. We feel that these tests would reduce the number of people who could potentially detained under mental health law inappropriately without who present a serious risk, either to themselves or to others.

3. Are the conditions for treatment and care under compulsion suYciently stringent? 3.1 We do not believe that the conditions for treatment and care under compulsion are suYciently stringent because it is not clear what safeguards will be put in place to prevent abuse of the powers available to forcibly treat those with mental disorders. 3.2 Treatment as defined in the Draft Bill includes psychological intervention, habilitation and rehabilitation. Currently, there are not enough resources to provide these forms of treatment to those who want them, let alone those who do not. In reality, compulsory treatment will amount to more forced medication and increased use of aggressive procedures such as ECT. 3.3 A statutory duty must be put in place to provide funding for all forms of treatment and care as set out in the Draft Bill. We are concerned that without this, clinical supervisors will be unable to give the most appropriate treatment to each patient due to human and financial resource implications. 3.4 We believe that forced treatment compounds mental distress because for many patients it is an abusive experience, and for some can repeat past or current patterns of abuse. It should be the aim of the clinical supervisor and their team to involve the patient at every stage of the assessment and treatment process, and to do their best to ensure that the patient’s wishes and concerns with regard to these processes are acknowledged and taken into consideration, with compulsory treatment given as a very last resort. We do not believe that the Draft Bill supports this point of view. 3.5 We are concerned that, because the treatment given to patients has to be appropriate rather than beneficial, this gives scope for treatment being provided that could be deemed appropriate but is of no therapeutic benefit to the patient.

4. Are the conditions for assessment and treatment in the community adequate and suYcient? 4.1 We do not believe that the conditions for assessment and treatment in the community are adequate or suYcient. We feel that there should be some deﬁned burden on somebody to prove the need for a Community Treatment Order, and that there should be a deﬁned standard of proof. We are concerned that without this, more people will be subject to these orders than is necessary. Joint Committee on the Draft Mental Bill: Evidence Ev 1105

4.2 We also note with alarm the obvious similarities between Community Treatment Orders and Anti Social Behaviour Orders, for example, in a CTO the clinical supervisor can stipulate certain behaviours that the patient is not allowed to engage in, just as a judge can with an ASBO. People with mental disorders should not be treated in the same way as criminals just for being unwell. We feel that in many cases, being subject to a CTO could be very stigmatising for patients because it is likely to interfere with their family and private life, contravening Article 8 of the Human Rights Act 1998.

5. Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 5.1 We do not believe that the Draft Bill achieves the right balance between these two considerations. In our opinion, the clauses in the Draft Bill relating to the risk people with mental disorders pose to others are a reaction to a handful of high-proﬁle cases where someone with a mental disorder has murdered or seriously assaulted a member of the public. New legislation should be drafted on the basis of need, not on the basis of scare-mongering by the tabloid press. 5.2 We feel that the Draft Bill takes the issue of risk posed to others by people suVering mental distress out of perspective. The vast majority of people with a mental disorder are far more of a risk to themselves than they would ever be to other people—around 6,000 people a year commit suicide, yet there are about 40 murders each year committed by people with a mental disorder, and this ﬁgure has been falling year on year. 5.3 On the rare occasions when someone with a mental disorder has gone on to commit a murder, the subsequent inquiries have found that the patient’s care in the community was unsatisfactory and often fragmented. We do not believe that compulsory treatment, either in hospital or in the community, will help such patients or protect the public if there is still no continuity of care. The care programme approach should be in place before a person becomes seriously ill so that forced treatment, which could potentially lead to the patient mistrusting their mental health team, is less likely to be needed. 5.4 We are of the opinion that criminal acts should be dealt with in a Criminal Justice Bill, not a Mental Health Bill. To achieve a balance between the rights of an individual with a mental disorder and the rights of the general public, the criminal justice and mental health systems need to remain distinct but work closely together to promote the individual’s rehabilitation and mental wellbeing.

6. Are there any important omissions in the Bill? 6.1 We feel that there are many important omissions in the Draft Bill. We are especially disappointed that Advance Directives or Statements were not included, because not only would these make the jobs of the Tribunal panels and clinical supervisors a lot easier when faced with the diYcult decision of how to treat someone, they would also allow people with mental disorders the chance, whilst they are well, to plan ahead in case they become unwell again. Advance Directives would allow individuals to remain more in control of the assessment and treatment process, which would hopefully remove the abusive and/or punitive aspect of compulsory treatment which many people experience. 6.2 We are concerned that, in light of point 3.2 above, there is no provision in the Draft Bill for medication withdrawal programmes. Many psychiatric medications can produce quite severe side eVects and withdrawal symptoms, so patients need specialist help and support when trying to come oV them. We fear that without setting out a duty in the Draft Bill to provide this, the physical and/or mental health of many patients will deteriorate due to the side eVects and withdrawal symptoms of these medications. 6.3 We also feel that the Draft Bill needs a safeguard with respect to clinical supervisors prescribing doses of psychiatric medications higher than the recommended therapeutic or safe dose. We believe that the clinical supervisor should seek approval from a Tribunal before prescribing high doses, unless the patient can give informed consent. We also believe that prescribing should be more closely monitored, especially in cases of polypharmacy or where high doses are being prescribed.

7. Is the Draft Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? 7.1 We do not believe that the Draft Bill is adequately integrated with the Mental Capacity Bill. Firstly, the Mental Capacity Bill allows people to make provisions for the future when they may lack capacity, in the form of an Advance Directive for example, whereas the Draft Bill does not. Secondly, the Mental Capacity Bill introduces more provisions parallel to those for people who are physically disabled, whereas the Draft Mental Health Bill further widens the gap between the rights enjoyed by people with physical disabilities and illnesses and those that people with mental disorders have. Becky Derham October 2004 Ev 1106 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from Amanda Collins (DMH 344) I am an advocate for a lady with cerebral palsy and know many people with mental health issues. I disagree with the Draft Bill on the following counts: — decisions should not be left to a tribunal, particularly since this is currently a needlessly lengthy and thus painful process, and obviously excludes family, friends and advocates who know the person compared to members of a tribunal who do not; and — someone who is mentally ill has as much right to be heard as someone who is not—early compulsion is fundamentally against basic human rights of freedom and speech. Someone who suVers with mental illness who is part of a society should be shown compassion and understanding and given time and resources to recover, rather than being drugged and locked away out of sight and mind of people who do not want to accept them as part of that society. I hope you will reconsider your proposals. Amanda Collins Marketing consultant and freelance writer October 2004

Memorandum from Anthony R Burton (DMH 345) Whilst recognising the eVorts in drafting the above after extended consultations, and the many improvements that will result to present law, I have concerns still in the following areas: 1. As a “family carer” I feel that the proposals will reduce my rights and give fewer opportunities to press for best care and treatment for the persons I care for. The inclusion of a wide deﬁnition of “carer” is welcomed but I would only have to be consulted, some existing “nearest relative” powers being replaced by the “nominated person” who is to be appointed by the Approved Mental Health Professional. This is alright if the AMHP does not discriminate against the nearest relative (and I accept that in some circumstances the nearest relative is not appropriate). I feel that carers and relatives need to have recourse to challenging the AMHP decision—possibly to the Tribunal. I also think that carers, as well as patients, should have guaranteed access to advocates—particularly when deciding on whether to take the serious decision to apply for formal detention of their loved one and to seek discharge. 2. As a former “Mental Health Act Manager” I always felt that a panel of “ordinary members of the public” were able to bring detachment and common sense into judging detention of their “peers” (a Magna Carta principle). The new tribunals will have a majority of “professionals”. Should not there be at least an equal number of professional and panel ordinary members? 3. On page 46 of the consultative document—Improving Mental Health Law—Towards a new Mental Health Act—it states that Part 5 of the Bill contains key procedural safeguards. It ensures that treatments that may be particularly invasive or sensitive are given only under strict controls. However, as I read the Draft Bill and your department’s commentary, there seems little change from the 1983 Act in respect of the compulsory administration of medicines, other that to reduce the three-month period without a second doctor’s approval, to a 28-day period for a care plan to be approved by the Mental Health Tribunal. In view of the greater amount of evidence accumulated over the last 20 years about serious adverse eVects of psychotropic medicines, on starting and on withdrawal, I feel that the Bill itself should contain safeguards for medicines as included for ECT and psychosurgery. I note that regulations are possible for other treatments, but that seems to imply that medicines are always safer than these other invasive treatments. In the case of my wife and daughter, psychotropic medicines have had very serious eVects—my wife was in a coma for 10 days and had to have major thyroid surgery—my daughter has had one major gastro-intestinal surgical operation and there is a prospect of her having to undergo another—whilst she is currently having severe discontinuation syndrome eVects 18 months after stopping the medicines. Therefore I hope that an additional safeguarding clause can be inserted in the Bill to require at least a second doctor’s authorisation before starting any medicines—particularly if the patient is known to be sensitive to medicines or they (or a carer) have expressed a wish not to be so treated. I understand that such treatments, if not consented to, may (a) violate the code of medical ethics as set out in the Council of Europe’s Convention on Human Rights and Biomedicine which acknowledges the “primacy of the human being”; and (b) also may violate Article 35 of the European Charter of Fundamental Rights. I realise that in drafting the Bill, The Human Rights Act has been considered, but are these other fundamental rights being overridden?” Joint Committee on the Draft Mental Bill: Evidence Ev 1107

4. I note the acceptance of “free aftercare” for six weeks after discharge, but feel that the present unspeciﬁed period is an essential encouragement for compulsory patients to comply. This group cannot be compared to voluntary patients. Please note that the above views are my own, and whilst I have taken into account views expressed at meetings of the above-listed groups, they do not necessarily represent the views of any of those individual groups. Anthony R Burton November 2004

Memorandum from the Commission for Social Care Inspection (DMH 346)

Introduction

1. The Commission for Social Care Inspection is the single social care regulator for England. The Commission is an independent body whose primary function is to promote improvements in social care— across adults’ and children’s services, in local councils, and in the private and voluntary sectors of social care. 2. The Commission’s evidence concentrates on two of the themes suggested by the Committee: the role of professionals; and the human rights of the mentally ill.

Theme 10: Role of Professionals

(i) Approved Mental Health Professionals (AMHPs)

(a) Under the Draft Bill, AMHPs will be approved by local social services authorities, taking account of directions issued by the Secretary of State and the National Assembly for Wales. (b) The policy intention appears to be for an AMHP to be approved by a local social services authority working predominantly in that local authority’s area, but occasionally also working in neighbouring local authorities or, more rarely, further aﬁeld in other parts of the country. The Draft Bill provides that a person approved to be an AMHP in one local social services authority may also carry out AMHP functions under the Act in another local social services authority’s area within the same country. The second local social services authority would, however, need to give authorisation for the approval to be treated as having been made in their area. However, an AMHP approved in England would need to seek separate approval to be an AMHP in Wales and vice versa. The intention is that local authorities should be the guarantor of the AMHP’s professional competence and independence, even if he or she in future works within the health structure. (c) The Department of Health is working with the General Social Care Council to develop the accreditation and training criteria and procedures that will be needed for the new AMHP role.

Comment

(a) By the time the Bill is in force (Spring 2007 by the earliest), the implementation of the Children Bill will impact on Children’s Services and the Adult Vision for Social Care will influence adult social services. In addition, mental health commissioning will be almost entirely joint with PCTs. Further, single line management of mental health services should have been achieved. Statutory Directors of Adult Social Services or Adult Services will still have responsibility for ensuring social care services are provided within their local area, but for mental health they will have delegated the commissioning and the service provision, whilst retaining accountability for the discharge of the function. AMHPs will be entirely employed or managed within health services. (b) Mental health services are focussed on Local Implementation Teams (LITs) and trust boundaries, most of which are co-terminus with council areas—but many of which cover a number of council areas. The local authority will therefore be in the position of having to approve and guarantee the independence of people who may be working across council boundaries. (c) It also appears unclear in the current Draft Bill where the accountability rests for ensuring there is a suYcient supply of AMHPs and who will ensure that deficiencies in supply are addressed. More clarification on this point would be welcomed. Ev 1108 Joint Committee on the Draft Mental Bill: Evidence

(ii) Approved Social Workers (ASWs) (a) One of the reasons Approved Social Workers were approved to work within a deﬁned geographical area was to ensure they had good up-to-date local knowledge of provision, so they could suggest alternatives to admission. This is critical for the outcomes for people using the services. It would be helpful if the rationale behind the system for allowing AMHPs to work out of area could be clariﬁed. For example, is it so they can cover the whole of a Trust area? This may be appropriate where a Trust covers two or three local authority areas, although if this is the case why is approval needed by the local authority and not the Trust? (b) While it may be useful for an AMHP to work out of Trust area on occasion—making an assessment of a well-known service user who is visiting another area—it could also mean that there were numbers of non-locally approved AMHPs—possibly agency workers—who would have no local knowledge or understanding of local facilities and cultures. For example, an AMHP approved in Norfolk would be working with a very diVerent community if she practiced in Newham or Hackney. In such circumstances, the Commission believes that further training and support would be essential. (c) CSCI will discuss these issues with the Healthcare Commission, via its Concordat sub-group on Equalities and Diversity. CSCI will also discuss these issues with the General Social Care Council. This will help ensure that the needs of those with mental health problems are properly addressed in the context of equality and diversity. (d) CSCI and DH may need to consider whether the guidance document, “No Secrets”, on dealing with incidents of abuse concerning vulnerable adults, will require updating in the light of mental health law changes. This will mean that those dealing with incidents of adult abuse concerning mentally ill people will be fully aware of recent legislative changes.

Theme 3: Human Rights of the Mentally Ill

(ii) Valuing diversity and anti-discriminatory practice (a) As with the current Act, the Draft Bill sets out the legal framework for the use of compulsory powers. (b) The Department of Health recognised that if services are to match the needs of black and minority ethnic communities and reduce the present inequalities in all mental health services, they must be planned and implemented in partnership with local communities and must involve people using services as well as carers. To help deliver the improvements needed, National Institute of Mental Health England has established a major programme of work to address the needs of BME users of mental health services. The NIMHE Race Equality Leads and the DH’s Mental Health BME Programme Board will also have an important role to play in driving forward race equality under the Legislation. (c) The disproportionate use of compulsory detention for young black African and Caribbean men has been well documented during the last 20 years. For a recent example from our predecessor organisation, please see the enclosed booklet “Treated as People”. It would be helpful if the Draft Bill contained explicit reference to the eVects of racism and the need for anti-discriminatory practice. While the Code of Practice will make reference to diversity, reference to the race equality and disability legislation within the Bill would highlight the importance of this area. (d) The Department, working with partners, will need to ensure that there are suYcient advocates from culturally appropriate backgrounds, and the Draft Bill ought to give some explicit guarantees around choice of advocate. In addition, Tribunals will also need to reﬂect the communities they are working in and serve in order to promote the most positive outcomes for people using services. (e) The Commission is concerned that the Draft Bill does not suYciently address the over-representation of black men in mental health systems and would wish to see this rectiﬁed. October 2004

Memorandum from Ms N Hays, University of Leicester (DMH 348) I welcome many of the proposals of the above draft bill, including, — The provision for advocates; — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal; — The single assessment process; — The ability to appoint a “nominated person” (but not its reduced role); — Special provisions for children and young people; — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go a long way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental ﬂaws that remain within the current proposals, some, I am troubled to ﬁnd, remain exactly the Joint Committee on the Draft Mental Bill: Evidence Ev 1109

same as the concerns that were expressed by many respected organisations following the Draft Bill’s first introduction in 2002. My concerns are as follows and I would ask the committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS. — A right to assessment of mental health needs; — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed; — A limit to the conditions for the use of compulsion in the community; — The right to advocates and nominated persons where possible to take part in the examination stage; — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient; — A statutory recognition of the role of advance statements; — A reconstituted tribunal with a role for non-medical members and users; — A duty to provide aftercare; — A removal of the police power to enter private premises without a warrant; — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients; — The right to an independent advocate; — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. Ms N Hayes School of Psychology, Clinical Section University of Leicester October 2004

Memorandum from Michelle Caine (DMH 349) I have been a service user of mental health services for ten years plus and continue to use both statutory and voluntary services. I have a strong opinion on the Mental Health Bill and the way it can aVect people in my situation.

Paragraph 1Right to Services I do not believe that it is fair at present that people with mental health problems have to wait until they are at breaking point until they get the help they require. This is due to lack of resources and ﬁnances within the mental health sector, due to the Government not committing enough ﬁnances. I feel that every person suVering from a mental illness, no matter how severe or mild the mental health condition, should be entitled to exactly the same treatment. At present it seems that only crisis intervention is available to those who are at breaking point. Considering one in four people are coming through the mental health system, there seems to be little consideration and consistency regarding those with mental health diYculties. Through my experience when the illness strikes it can be just as disabling for myself, and how I function on a day to day basis as it is for somebody who has severe mental health cognition and impairments. This should be evaluated in the new Bill so that local and national governments can give out the appropriate funding so that it will meet people’s needs at any and all levels.

Paragraph 2Compulsions I disagree with the decision on compulsory treatment as I feel it will cause unnecessary anxiety. Individuals will not be able to relax in the community, as they feel that their basic human rights are being withdrawn. I do agree with crisis intervention for compulsory treatment and this should only be used when people are too unwell to make informed decision for themselves. The mental health bill should allow for individual diVerences and circumstances. Individuals with mental health problems should not be placed in categories where they are stereotyped as being the same and labelled. This can only give rise to more stigma and exclusion within the community as we are seen not to have equal rights and are just seen by the labels we have been given. Ev 1110 Joint Committee on the Draft Mental Bill: Evidence

Paragraph 3Dangerousness I feel that less people will come forward for treatment, as they are fearful of compulsory treatment and labelling. In my opinion the new bill is stating or almost criminalising those with mental health problems. The way it is outlined at the moment may prevent individuals coming forward for the treatment they need and require.

Paragraph 5Advocates I think as it stands at present the carer has no rights and cannot intervene. Therefore I feel that family carers, friends etc should be able to speak on the patients behalf. These people other than the individual with the mental health problem will have the insight as to what type of care or treatment should be given. Equally if someone does not have any representation apart from the local mental health service they use then the service should be allowed to speak on the patients’ behalf with the individual giving prior consent to this.

Paragraph 6Advances I am disagreeing with the Draft Bill as it states that if we are put under compulsion any written request we have previously drawn up when feeling well will not be taken into consideration. This I feel is going back to Victorian times and we are now supposed to be living in a more modern society therefore our views should be as important as our doctors and other professionals.

Paragraph 7Aftercare Care service provision should be in place before the recognised discharge date. If people are purely detained due to a lack of community facilities and resources it will not only be costly to the health service but also costly to the conﬁdence individuals have in the system. Hospital should only be there to treat patients and not used as a halfway house or hostel.

Paragraph 8Tribunal At present it can take months to access a tribunal. Therefore if someone is detained their life is put on hold and no normal way of living can possibly exist. This can only lead to institutionalising people and they will require more social rehabilitation within the community. This will be more costly and I feel a mismanagement of the health services funds. It keeps coming to my attention that the Draft Mental Health Bill as it stands keeps infringing on human rights. Which is a very deep concern and most worrying thought for our future. Michelle Caine October 2004

Memorandum from John MoVett (DMH 351)

My name is John MoVett, I am 60 years old and suVer from Schizophrenia. I will be writing about my concerns regarding suVerers of mental health problems not being involved enough in decisions about the treatment they receive. I will also be writing about resources. I am concerned about the extra powers that doctors/psychiatrists will have if the Draft Mental Health Bill is passed. The fact that the proposed new law makes compulsion more likely to happen really worries me. I have personally felt that in the past I have not been part of the decision making about the treatment that I have received. I am worried that suVerers from mental health problems will have less input in the future and I do not believe that this is a positive change in the Draft Mental Health Bill. I believe that making the users of Mental Health Services more involved in the decisions about the treatment they receive would be an improvement. My second main concern is about resources. I believe that the Government should be putting more money into Health Services. I believe people should be able to access services when they need them. Another aspect relating to resources is about the drugs people are administered with. I have personally been given drugs in the past that have had terrible side eVects and I believe that this may be because drugs that I could need are not aVordable. I also am aware that other people I know suVering from mental health problems have experienced the same problems, such as weight gain and hair loss. I believe that if the Government put more money into Health Services then this would be an improvement. John MoVett January 2005 Joint Committee on the Draft Mental Bill: Evidence Ev 1111

Memorandum from the British Geriatrics Society (DMH 352)

Statement from the British Geriatrics Society to the Pre-Legislative Scrutiny Committee on the Draft Mental Health Act and the Draft Mental Capacity Act As the professional organisation for doctors specialising in geriatric medicine, the British Geriatrics Society: — Aims to improve the quality of support for older people. — Through its collaborative links with the Royal College of Psychiatrists aims to improve the care of people with mental illness and their carers. — Actively engages with major age related charities to ensure appropriate clinical guidance is both sought and acted upon. — Raises medical and public awareness of older people’s issues. — Advises government on legislation pertaining to the medical and social welfare of older people. — Organises scientiﬁc and clinical events to facilitate the continuing professional development of those specialising in the care of older people. — Publishes academic journals and policy documents (see www.bcis.orciuk). — Promotes research into the medical care of older people. — Assists the Royal College of Physicians in setting the standards of training, through examinations and continuing professional development of those wishing to specialise in geriatric medicine (specialist registrars, consultants and general practitioners). The British Geriatrics Society wishes to fully endorse the evidence submitted by the Royal College of Psychiatrists (“the College Submission to the Pre-Legislative Scrutiny Committee”. which can be found at: www.rcpsvch.co.ukIPresS/DarliamentlrespOnses/MHB.draftO4) The British Geriatrics Society would also wish to emphasise the vulnerability and needs of older people, and the need for the Mental Health Act and the Mental Capacity Act to be well co-ordinated so that the needs of vulnerable older people are well met. Dr Jeremy R Playfer President October 2004

Memorandum from User Group Members, Lambeth Mencap (DMH 353) We are people with learning disabilities who speak up for other people with learning disabilities at Lambeth Mencap. We are shocked by the Bill: 1. We have just got some rights under Valuing People. The Bill takes rights away from us again and puts it with the professionals if we get a mental health problem: because professionals can use more force on us. The Bill means they can force treatment on us in our homes, not just in hospital, and can force drugs more easily. 2. Patients with severe learning disabilities no longer get protection under this Bill. We think it is absolutely wrong that the Government has dropped plans to give rights to the sort of patients who came under the Bournewood case. We call on the Government to change both these parts of the Bill. October 2004

Memorandum from the Service User Committee at Southside Partnership (DMH 354) We are people who use mental health services and learning disability services. We are very worried about the Draft Mental Health Bill for the following reasons: 1. The Bill increases compulsory treatment. Compulsion is degrading and adds to the stigma which we face day-in and day-out. 2. At the same time, the free aftercare currently provided under Section 117 of the Mental Health Act is being reduced to six weeks. Yet good aftercare is the key to our getting better. 3. People from black, Asian and other minority ethnic groups already face more compulsion under the Mental Health Act. The extended compulsion which the Draft Mental Health Bill introduces means that people with mental health problems from these groups are likely to fare even worse. We are very concerned about their welfare under the Draft Mental Health Act. Ev 1112 Joint Committee on the Draft Mental Bill: Evidence

4. People with severe learning disabilities who lack capacity no longer seem to be safeguarded under the current Draft Bill. We are thinking of the sorts of patients who ﬁt the Bournewood case. Yet they are some of the most vulnerable people in society. We urge the government to address all these points.

Memorandum from IMHL and Peter Edwards Law—Solicitors (DMH 355) IMHL Founded in 1992 by Dave Sheppard and Peter Edwards, IMHL is dedicated to promoting a better understanding of mental health law. We spend much of our time working directly with those who provide mental health services. In addition, IMHL receives valuable feedback as to the problems they are experiencing in implementing the law. Because we are neither a campaigning group or part of any professional or statutory body we are free to provide a dispassionate analysis of mental health law. Each month we publish a Bulletin providing information on developments in the ﬁeld. An example of this can be seen at www.imhl.com. Our approach in this submission is to recognise that the Government is committed to modernise mental health legislation. What we try to do therefore is to point out areas where, in our experience, they may be diYculties in either implementation or funding.

Peter Edwards Law Peter Edwards Law is a highly specialist solicitors practice that primarily represents those who use mental health services. The ﬁrm is one of the largest specialising in representing clients at Mental Health Review Tribunals, and litigation in relation to the civil rights aspects of mental health law and human rights. It has been involved in many of the leading mental health cases.

CV Peter Edwards is a solicitor and is the proprietor of Peter Edwards Law, He has worked in this ﬁeld since 1971. He is the chief Assessor for the Law Society of the Mental Health Review Tribunal Panel. He is a consultant to the World Health Organisation and is a member of the human rights committee of the World Federation of Mental Health. He is a founder member of the Law Society Mental Health and Disability Committee, and is a member of the Law Society Mental Health panel. He was previously a legal member of the Central Policy Committee of the Mental Health Act Commission and was chair of the mental health charity, Imagine. He was vice chair of the Law Society Mental Health Committee and President of the Mental Health Lawyers Association. He trains extensively in mental health law. Dave Sheppard is an independent consultant who trains extensively on mental law and practice. He left social work practice in 1989, having worked for 17 years in a variety of settings, including 12 years as a Mental Health Welfare OYcer and Approved Social Worker, and as a manager. He worked for the next three years in the Legal and Parliamentary Unit of MIND. He has been a panel member on three inquiries following homicide and is currently chairing an inquiry. He has conducted independent case reviews for both trusts and social services departments. He is a member of the editorial board of the Journal of Mental Health Law and editorial consultant to Mental Health Law Reports. The views expressed in this document represent the views of IMHL and Peter Edwards Law. We would like to thank all those who took the time to contribute and enable us to take a what we hope is a practical perspective.

1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? 1.1 From a legal and human rights based perspective, it is not just the existence of principles that matter, but their enforceability. The bottom line is, what happens if people choose to ignore them? Clause 1 of the Draft Bill states that principles must be set out in the new Code of Practice which people “must have regard to”. 1.2 In fact, existing case law is more powerful than this. In the case of R v (Munjaz) v Mersey Care NHS Trust and others. R (S) v Airedale NHS Trust and others 16 July 2003. The Court of Appeal found that the Code should be followed, particularly where it related to issues concerning an individual’s human rights. 1.3 It held that the Code was an integral part of the protection of human rights. The Court stated: “where there is a risk that agents of the state will treat patients in a way which contravenes Article 3 the state should take steps to avoid this through the publication of a Code of Practice which its agents are obliged to follow unless they have good reason to depart from it. Where there is an interference with the rights protected by Joint Committee on the Draft Mental Bill: Evidence Ev 1113

Article 8 the requirement of legality is met through adherence to a Code of Practice, again unless there is good reason to depart from it. The same will apply where the Code deals with the deprivation of liberty within the meaning of Article 5”. 1.4 There is, however, a clear perception, that matters contained in legislation carry much greater weight than that placed in Codes of Practice.

Recommendation The Principles should be strengthened and clearly set out in primary legislation. In addition, they should reﬂect the current state of the law namely that the requirement of legality is met through adherence to a Code of Practice unless there is good reason to depart from it.

2a. Is the definition of Mental Disorder appropriate and unambiguous? 2.1 We are sure that others will have drawn to your attention concerns about the wide scope of the definition and the removal of the exclusions from the 1983 Act. The Government’s argument is that it will be the criteria that will be suYciently stringent to ensure that the powers of compulsion will be used appropriately. We will examine this below. 2.2 We feel that the power of the current “exclusions” may well have been exaggerated. Section 1 (3) Mental Health Act 1983 states: “Nothing . . . shall be construed as implying that a person may be dealt with under this Act as suVering from mental disorder . . . by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.” 2.3 If therefore a sexual deviant had an underlying psychopathic disorder they would come under the Act. In the case of R v Mental Health Act Commission ex parte X (1988) BMLR the judge, Stuart-Smith LJ said: “In practice, however, it seems likely that the sexual problem will be inextricably linked with mental disorder, so that treatment for one is treatment for the other. . .” 2.4 Lord Rix, in particular, will vividly remember the debates about the possible exclusion of learning disability when the current Mental Health Act was being debated. He will recall the fudge that resulted in the compromise invention of the term “mental impairment”. The new definition of mental disorder will of course mean that all those with a learning disability will now come under the new definition of mental disorder. Bearing in mind that guardianship under ss7 and 37 MHA 1983 will be abolished together with supervised discharge (s.25A), it is likely that many more people with learning disabilities will become non- resident patients under the new Act. This may not be a bad thing but we don’t believe that it has been adequately thought through. 2.5 This also raises the diYculty set out below (paragraph 8) with regards to when to use the Capacity Act and when to use the Mental Health Act.

Recommendation That a set of exclusions are devised to ensure that those whom Parliament do not intend to be caught by this legislation are not.

2b. Are the conditions for treatment and care under compulsion suYciently stringent? and 2c. Are the provisions for assessment and treatment in the Community adequate and suYcient? 2.6 With regards to 2b and 2c let us examine the lowest threshold for the use of compulsion. What is the least that has to be established for someone to lose their liberty by virtue of their mental disorder? 2.7 A person must suVer from a “mental disorder” with its very broad meaning. (see 2a above) 2.8 It must be of a “nature” or “degree”. This means that powers could be used in the absence of any “degree” if the nature (history) justiﬁed it. 2.9 The nature or degree must warrant the provision of “medical treatment”. This is deﬁned at clause 2(7) of the Bill to include: “Nursing, care, psychological interventions, habilitation (including education, training in work, social and independent living skills) and /or rehabilitation” 2.10 Legally therefore, the treatment only has to amount to being cared for or being rehabilitated. In the context of the non-resident patient how could they prove this was no longer the case in order to show that the Mental Health Act should not continue to apply? Ev 1114 Joint Committee on the Draft Mental Bill: Evidence

2.11 The third condition involves the need to establish that it is necessary to protect the patient from: Suicide or serious self harm, or Serious self neglect of their health or safety or for the protection of others. 2.12 The minimum requirement is therefore serious neglect to health. Bearing in mind that it has been necessary to use compulsory powers in the ﬁrst place, how can the patient (especially when non-resident) establish that this would not now be the case? Even if it isn’t, it could be argued that the improvement has been secured by the use of compulsory powers and therefore they should continue. 2.13 There is a widely held myth, that you have to be a risk to yourself or others before you can lose your liberty. Indeed, in the Ministerial Forward to Improving Mental Health Law, Rosie Winterton, Paul Goggins, and Don Touhig share this confusion. They state: “Providing a mentally disordered person with treatment against their wishes raises diYcult ethical issues. But sometimes, as a last resort, we have to do this for the patient’s own safety, or, in a very small number of cases, to protect others.” 2.14 Finally, that the appropriate medical treatment is available. As we have established, the deﬁnition of treatment at clause 2(7) means that the provision of appropriate “care” or “rehabilitation” is suYcient to meet this test. 2.15 When asserting that the “criteria” is the gatekeeper of compulsion perhaps the gatekeeper may at times be asleep. We suggest that the criteria is not as robust as it looks and does not justify the loss of the exclusions.

Recommendation Parliament needs to be aware that it is creating a process that could be used to indeﬁnitely control a person’s life in the community as a non-resident patient. This could include those with learning disabilities and the elderly.

3. Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 3.1 The Bill is, of course about the mentally disordered, not just the mentally ill.

Does the draft bill enhances the rights of users? 3.2 The Bill removes some of the rights of the current Mental Health Act. This would not matter if they were replaced by more eVective rights and safeguards. But does it achieve this goal?. 3.3 Some of the “rights” or protections that will disappear are: 1. The role of the Approved Social Worker (ASW). 2. The Role of the Nearest Relative. 3. The concept that discharge from hospital usually means discharge from section under the Mental Health Act. 4. The right to free aftercare, until the patient is no longer in need of after care services. (s.117). 5. The independence of the Mental Health Review Tribunal. 6. The overarching responsibilities of the Hospital Managers.

The Role of the Approved Social Worker (ASW) 3.4 The loss of liberty and compulsory treatment are clearly necessary and human rights compliant in some circumstances. Indeed, in order to protect the human rights of the user it may, at times, be necessary to use compulsion. When the current structure was conceived in the mid 1950’s (that led to the Mental Health Act 1959) it was recognised that there needed to be a balance between the “medical model” and the “social welfare” model. Just because your doctor thought that you were ill and needed treatment, that was not, of itself, suYcient to justify loss of liberty. 3.5 Our common law recognises the right of the competent patient to refuse treatment and refuse admission to hospital even if death would be the consequence. The power to section under the Mental Health Act was, and should continue to be, seen as an exception to normal principles. Joint Committee on the Draft Mental Bill: Evidence Ev 1115

3.6 The idea that doctors could not apply for compulsion was an important part of this concept. The vast majority of applications to detain are currently made by ASW’s. (Nearest relatives have this power but rarely use it). 3.7 The new Approved Mental Health Professional (AMHP) could well be a nurse. The nurse is clearly and understandably aligned with the medical model. The delicate balance is potentially broken.

Recommendation The title and responsibilities of the ASW should be retained.

The Role of the Nearest Relative 3.8 A critical moment for those who may lose their liberty by virtue of their mental disorder is the moment when compulsion is applied. For that reason, there has been an obligation on the ASW to establish whether or not the nearest relative would object. If the application to section was for treatment (s.3) or guardianship (s.7), then an objection would prevent the use of compulsion until a county court judge had decided whether the objection was reasonable or not. The judiciary were called upon to adjudicate. 3.9 Under the new proposals, at the point of loss of liberty, the patient has no-one. The new nominated person is not appointed by the AMHP until the person is under compulsion and neither is their advocate (IMHAA). 3.10 The time when patients would want an advocate would be at the time of their loss of liberty. This is a loss of rights because in the Code of Practice currently it states at 2.13: If the Patient wants or needs another person (for example a friend, relative or an advocate) to be present during the assessment and any subsequent action that may be taken, then ordinarily the ASW should assist in securing that person’s attendance unless the urgency of the case or some other reason makes it inappropriate to do so. 3.11 Currently therefore, at the time of potential detention, the patient has protection available from both their nearest relative and from an advocate. In contrast to the process of detention under the Mental Health Act, when a person is suspected of committing a criminal oVence, the Police and Criminal Evidence Act sets out a protective framework. 3.12 The role of the nominated person at clause 238 indicates that it is “to assist in understanding the wishes and feelings of the patient”. It is a great shame that in order to ensure the right of the patient to conﬁdentiality (following the case of JT v UK European Court of Human Rights 2000), the nearest relative’s role has been abolished. The nominated person is but a pale shadow of the nearest relative. One wonders whether all the work involved in creating this role was justiﬁed.

Recommendation The current powers of the nearest relative should be given to the nominated person and the patient should be allowed to nominate their own nearest relative.

The Concept that Discharge from Hospital Usually Means Discharge from Control Under the Mental Health Act 3.13 From a legal perspective we are drawn to consider in what circumstances the new Mental Health Act might cease to be applicable. When might a person regain their liberty? 3.14 Currently, the most common reason for an MHRT discharge is that the patient no longer needs treatment in hospital for their mental disorder. In other words treatment can be given in the community. 3.15 With the distinction between “resident” and “non-resident” patient this becomes more problematic. 3.16 Take the typical example of D at 2.11 of “Improving Mental Health Law”. D is 42 years old and has been under the care of the Community Mental Health Team for the past three years since moving into the area. She has a 20 year history of contact with mental health services. For the past few weeks the AMHP (a former approved social worker), has been visiting D at home, and has become concerned that she is becoming increasingly unwell. 3.17 If compulsion is used she will be admitted to hospital. It is likely that she will be converted from resident to non-resident status by her clinical supervisor. Once she is living at home what will have to happen to enable the clinical supervisor or Mental Health Tribunal to decide that the criteria for compulsion no longer apply? If her compliance with medication is the goal and this is achieved by her fear that she would be taken back to hospital if she refused, surely she is likely to be a non-resident patient for life? Ev 1116 Joint Committee on the Draft Mental Bill: Evidence

The Right to After-care,Free of Charge,Until the Patient is “No Longer in Need of After-care Services”. (s.117 Mental Health Act 1983)

3.18 Currently there is a statutory duty imposed jointly on health and social services to ensure that those who have been detained on long term sections (3,37,37/41,47 and 48) are oVered the extra support that they require when discharged. This is a legal obligation. It is ongoing until the person is considered by both health and social services to be no longer “in need of after-care services”. 3.19 In the new Bill this duty disappears if a person is discharged from compulsion by their clinical supervisor. If they are discharged by a Tribunal then it lasts for six weeks. S.117 establishes an element of reciprocity. By removing a person’s liberty the state is committed to ensuring that an appropriate level of after-care will be available. Further, it is unjustiﬁable to draw a distinction between the right to after-care if discharge is by clinical supervisor, as opposed to Mental Health Tribunal.

Recommendation

The duties under s.117 should be retained.

The Independence of the Mental Health Tribunal (MHT)

3.20 Currently, the duty of the MHRT is to be an independent judicial body deciding whether the grounds for using compulsion continue to apply. 3.21 In the new Bill the Tribunal appears to combine two roles. They, in eVect, become the “detaining authority” for compulsion beyond 28 days. This is in place of the role currently exercised by the hospital managers. 3.22 The Tribunal are also the independent judicial body to whom the patient appeals against the use of compulsion. 3.23 The Bill stresses the importance of the tribunal’s role of approving the care plan. Indeed, many patients represented by Peter Edwards Law at mental health review tribunals would very much like to discuss their medication and treatment plans. Tribunals rightly point out that this is currently beyond their remit. 3.24 It was surprising and disappointing to read in “Improving Mental Health Law” that this power of the Tribunal over care plans is apparently only an illusion. “We think that it is not appropriate for the Tribunal to be able to impose a care plan without the agreement of the practitioner responsible for the care and treatment of the patient. This is because it is not accountable for the use of resources to provide local services. The Tribunal will weigh the evidence put before it and will need a good reason, such as the expert panelist or the patient expressing concern or doubt about the content of the care plan, in order to suggest amendments to the content of the care plan proposed by the clinical supervisor. If the Tribunal is otherwise satisﬁed that the conditions for treatment under the Bill are met, it will be possible for the Tribunal to adjourn and ask the clinical supervisor to reconsider and to bring forward an amended care plan.” Improving Mental Health Law para. 3.66.

Recommendation

The power of the Tribunal to review and approve the care plan must be a genuine and eVective one.

The Overarching Responsibilities of the Hospital Managers

3.25 The central core of the use of compulsion under the Mental Health Act 1983 was built around the role of the hospital mangers. Indeed, a person is not sectioned until they have been accepted by the managers. 3.26 The term “manager” is used to describe the non-executive directors of the Trust. The need for modernisation was widely accepted. However, from the perspective of the service user, the importance of their role was that it was an ongoing one. With the MHT they will only have a limited role at certain points in the process. Some patients will have no right of application at all. (see para 4.29 below). Joint Committee on the Draft Mental Bill: Evidence Ev 1117

The New Role of the Independent Mental Health Act Advocate (IMHAA) 3.27 This, in principle, is much welcomed. However, we have a number of concerns. 3.28 At s.247(3) it states that the role includes: (a) Help in obtaining information about and understanding; (1) what medical treatment is being provided to the patient; (2) why it is being provided. 3.29 Peter Edwards Law has been providing legal advocacy to patients for over 30 years. It has been a strong part of our belief that our legal advocates are not qualified to discuss symptoms or medication with clients. This is a dangerous area that can result in misinforming patients and perhaps reflect the ignorance or personal preference of lay advocates. 3.30 Eg. A patient might ask for reassurance that they are not ill. If out of politeness the advocate agreed then the patient may see that as a valid reason to terminate medication. Advocates are not qualified to explain what treatment is being provided and why. This is a professional responsibility of those caring for the patient. 3.31 We have a real concern which is described at paragraph 4.27 of the Explanatory Notes to the Draft Bill. It states: IMHA advocates can also help patients to exercise their rights, either by way of representation (eg at a Tribunal hearing) or otherwise. 3.32 It is hoped that this is not a backdoor way of reducing the rights of those who come under Act bearing in mind the words of the European Court of Human Rights in the case of Megyeri v Germany (1993) 15 EHRR (para 23) . . . it follows from the foregoing that where a person is confined in a psychiatric institution . . . he should—unless there are special circumstances—receive legal assistance in subsequent proceedings relating to the continuation, suspension or termination of his detention. The importance of what is at stake for him, personal liberty, taken together with the very nature of his aZiction—diminished mental capacity compel this conclusion. 3.33 And the words of Mr Justice Brooke (now Lord Justice Brooke) in R v Legal Aid Board ex parte Mackintosh and Duncan (2000) “Reading the report of a psychiatrist, identifying its areas of weakness, commissioning evidence from the appropriate expert to challenge it and representing a client at a Tribunal requires expert professional skills borne, as we have said, of education and practical experience. It is not like going down to the Magistrates’ Court as a Duty Solicitor, arduous though those duties are.”

Recommendation The IMHAA should not have the power of representation at MHT’s.

Does the Bill strike the right balance? 3.34 The Bill introduces the concept of indeﬁnite, preventative detention even for those who have not committed criminal oVences. How might this be? 3.35 We would refer you to the minimum criteria for compulsion as set at paragraph 2.6–2.14 above. A person suVers from a personality disorder (a form of mental disorder). There is a fear that they might in the future do something “causing serious harm to other persons”. They have not committed a crime and indeed might never do so. 3.36 It may be that the only form of “treatment” available is being “cared for” in a secure environment. This could meet the fourth criteria at clause 9 (5). The person may then ﬁnd that they have to prove to a tribunal that they will not do in the future, what they have not done in the past, and bearing in mind that whilst they have been detained they have not received treatment other than care! That might be very diYcult to do. It is not a satisfactory response to this anxiety to say that it most probably wouldn’t happen in practice. It is the responsibility of Parliament to foresee the eVects of legislation.

Concerns for public and personal safety on the other? 3.37 See our comments below (4b), The new Mental Health Act will not achieve it’s goals unless it results in a change of attitude by planners, managers and practitioners.

4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? Are there any important omissions in the Bill? Ev 1118 Joint Committee on the Draft Mental Bill: Evidence

4a. Necessary? 4.1 Regrettably, the message that the Mental Health Bill risks sending to the general public and the media is that those with mental health problems need to be controlled. In the Forward to the White Paper Alan Milburn and Jack Straw stated: “The current laws have failed properly to protect the public, patients or staV.” 4.2 In reality, it was a failure to understand the Mental Health Act 1983, not a failure of content, which let people down. Indeed the emphasis on protection of the public as a justiﬁcation for legislation does not help. The public makes no distinction between those with a personality problem (including psychopathic personality) and the mentally ill (perhaps someone who is depressed). The press coverage of the Bill emphasises the need for control. Indeed your own questions reinforce the point. “Are the provisions for assessment and treatment in the Community adequate and suYcient.” “Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill?” and “Are the conditions for treatment and care under compulsion suYciently stringent?” 4.3 This will tend to reinforce the fear of the mental disordered and thereby promote social exclusion. 4.4 Some change is necessary. It is unfortunate that some of the old language from the current Mental Health Act has not been updated. At clause 227 of the Draft Bill there is a reference to people being “kept otherwise than under proper control”. How do you keep someone under proper control? We are not talking about dogs.

4b. Workable? 4.5 We were told by the then Home Secretary Jack Straw when introducing the Human Rights Bill “In time the language of the Convention will be the language in which many of the key disputes will be settled; the language you need to speak to win an argument. And that’s the real cultural change.” 4.6 In September 2003 the Audit Commission (Human Rights Improving public service delivery) stated: “The challenge for public services is to adopt a systemic approach to complying with the Act. This should start by raising awareness of frontline staV and building human rights considerations into the decision making processes. Reacting to complaints and case law when they happen is not an appropriate response and will not bring about service development, particularly for those who are most vulnerable and are heavily dependant upon public services.” 4.7 In his third anniversary speech November 2003) on the Human Rights Act David Lammy MP stated: “Public authorities need to realise that frontline staV are crucial to delivering on this challenge. That means that there needs to be a programme of training and awareness raising. Even for those bodies that did train their staV during implementation of the Act, natural staV turnover means that a good proportion will have moved on: the newcomers need to be brought up to speed. 4.8 The reality is that the Human Rights Act has not changed attitudes. The relevence of this is clear. It is not suYcient to pass new legislation to “modernise” mental health law unless you can also modernise the attitude of the staV who will implement it. This will be a considerable challenge.

The Mental Health Tribunal System 4.9 One major area that needs to be considered are the practical implications for setting up tribunal hearings that must be heard within the first 28 days. 4.10 At some point the clinical supervisor will have to make a decision that an order is required from the tribunal because they wish to continue assessment or treatment beyond 28 days. That is, unless the patient or their nominated person has made an application to the tribunal first. 4.11 When the clinical supervisors’ views are notified to the tribunal oYce the patient will be informed. 4.12 The patient will request a legal advocate. 4.13 The tribunal will request reports from the those responsible for the patient and will appoint an member of the expert panel. This doctor will visit the patient, interview relevent people and prepare a written report which will be sent to the tribunal oYce. 4.14 In the meantime the patient’s solicitor will be preparing the case and perhaps instructing an independent psychiatrist, psychologist or social worker. 4.15 All those preparing reports will send them to the tribunal oYce who will then dispatch them to all parties and to the tribunal members. 4.16 All parties would have the right to ask that the member of the expert panel be called to give oral evidence if they wished to challege any aspect of the report. Joint Committee on the Draft Mental Bill: Evidence Ev 1119

4.17 The patient has the right under Article 6 to a “fair trial” which means that some time must be available for the preparation of the case. 4.18 Finally a date needs to ﬁxed for the hearing at which the key players must be available to attend. 4.19 Are we missing something or will this be a tall order? Bear in mind also that most of the communications will be going by post and there may be some typing or postal delays.

4c. EYcient 4.20 No comment

4d. Clear 4.21 The Government has asserted that one of the purposes of the legislation is to simplify mental health law. It needs to be as comprehensible as possible. There has been a perception, that we would wholeheartedly endorse, that professionals working in the ﬁeld don’t have a clear grasp of what the law is. Frankly, the professionals are not currently very good at this.

Does this matter? 4.22 We must recognise that mental health professionals have a unique power to remove the liberty and compel treatment to a group in society who may have capacity and who have not broken the law. 4.23 The use of compulsion is a potential breach of human rights and those given the right to use these powers have a duty to have a clear understanding of the law. Indeed it is a requirement imposed by human rights law that government must provide a “procedure prescribed by law”. 4.24 Although the Human Rights Act was passed in 1998 and implemented in October 2000 it is our experience that very few of those working in the ﬁeld have even the remotest grasp of its provisions and relevance for mental health law. 4.25 In contrast, the courts regularly focus on it’s implications.

Do the new provisions simplify the law? 4.26 One of the features of both the Mental Health Act 1959 and the Mental Health Act 1983 were the clarity with which they were written. This is in stark contrast to the complex and confusing Draft Bill. 4.27 The vast majority of those who need to understand this legislation are not lawyers but professionals, users, families and advocates. The new bill has more than double the number of clauses to the 1983 Act and the amount of cross referencing will, we are sure, test even your skills of comprehension to the limit.

4e. Are there any important omissions in the Bill? 4.28 A—In certain circumstances, a patient may not be able to apply for a Mental Health Tribunal at all. 4.29 It is possible for a nominated person to deprive a patient of making any Tribunal application during a stay in hospital of up to three months. It could happen as follows: — If the patient was quite ill and lacking capacity through eg acute mental illness. — When admitted the nominated person decides to make an immediate application to the Tribunal on their behalf at a time when the patient was too ill to understand the implications or agree. This will be heard very quickly. — The Tribunal then makes a treatment order for up to three months. — After a month, the patient thinks they are much better and wants to appeal. — There is no right of application at any time up to the expiration of the order. 4.30 B—Peter Edwards Law client’s often make an important point. Why do doctors and social workers tend to ask us what we want when we are at our most ill? 4.31 Would it not be sensible to ask those who regularly use services, what they would like to happen when and if they become so acutely ill that they cannot, at that time make safe decisions for themselves. The Mental Capacity Bill is keen to promote this notion. 4.32 Eg Sometimes users may have families and carers that they are close to. Perhaps a symptom of their declining mental health is that they become suspicious and mistrusting of their families. They may say, when ill, that they don’t want information sharing with perhaps those who know most and who are desperately worried. Ev 1120 Joint Committee on the Draft Mental Bill: Evidence

4.33 It is not clear why the government dropped their proposals for advance agreements. At page 45 paragraphs 5.14 and 5.15 of the White Paper Part 1 it stated: “Many patients with serious mental disorder are well much of the time. A patient who has had experience of diVerent types of care and treatment for mental disorder may wish to put on record, when well, what sort of treatment he or she would prefer if the mental disorder deteriorates. Advance agreements of this sort may be an important factor in determining what care and treatment is in a patient’s best interest.”

Recommendation The proposals for Advance Agreements should be reinstated

5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft bill? 5.1 Enforcement will not be diYcult. It is both ironic and correct that you should ask this question. The draft Mental Health Bill is about enforcement in respect of the lives of many individuals who are both vulnerable and disempowered.

6. Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, suYcient? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? 6.1 One safeguard, when the use of the new powers of compulsion are contemplated, is the provision that medical treatment must be available. For reasons outlined above in the definition of treatment (para 2.7) this, in eVect, only means that “care” has to be available. 6.2 We have explained above that the definition of treatment is as wide as it could get. We sometimes hear it said that you have to be “treatable” to be detained under the Mental Health Act 1983. This is not true. 6.3 Currently, the definition of treatment at s.145 includes “care”. The current law is, therefore, that you have to be cared for in a way that ensures that you don’t get any worse. In our experience, doctors will say that a person is “not treatable” when what they mean is that they don’t want to treat them. The proposed requirement in the Draft Bill that medical treatment must be available could similarly be used to justify the failure to use compulsion. 6.4 Presently, professionals often use the phrase that a person is not “sectionable”. This is rarely true and usually means that either a bed is not available or they simply do not want to treat that particular patient. 6.5 Alternatively, it means that the ASW has properly considered whether the mental disorder is currently serious enough to warrant compulsion. However, there is little evidence that the “nature” has been properly considered. Many Inquiries have shown that some mentally disordered people have not had their human rights protected by being sectioned. 6.6 The new get out clause will be that, as there was not a bed available, or there was not appropriate treatment available, the new Mental Health Act could not be used. The words may be diVerent but there is a risk that the attitude will remain the same. 6.7 In discussing issues with our clients at Peter Edwards Law, their main concerns is not psychosurgery or ECT, but the medication that they receive. There seems to be a widely held simplistic notion, that if a doctor prescribes psychiatric medication, then it would be irresponsible not to take it. Of course, in all other areas of medicine, we have the right to refuse treatment. What many people don’t realise is that some medications can have catastrophic side eVects whist perhaps at the same time improving the mental disorder. 6.8 In the White Paper Part 1 December 2000 at page 46 paragraph 5.22 it helpfully stated: “The Code of Practice on the new legislation will contain specific guidance on certain other treatments for mental disorder. The list will include treatment with more than one drug from the same class (polypharmacy), treatments above levels recommended in the British National Formulary, and certain physical treatments which may be needed as a consequence of behaviours arising from mental disorder such as procedures following serious self-harm and feeding contrary to the will of the patient.”

Recommendation The new Mental Health Act should contain additional safeguards for treatments set out at para 6.6 above. Joint Committee on the Draft Mental Bill: Evidence Ev 1121

7. Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practices right? 7.1 See comments at paragraph 1.1–1.4 above. It is very diYcult to comment in detail when we are not aware of what these will say. Our problem in commenting will of course be shared by the Joint Committee. These issues are too grave to have to involve ourselves in guesswork. 7.2 One area that concerns us greatly is the abolition of guardianship and supervised discharge. The guidance in the current Code of Practice assists greatly in their understanding and use. 7.3 Presumably, non-resident orders will take their place. However, the focus of all that has been written is the use of non-resident status for those who won’t take their medication. How will the Draft Bill be used to protect vulnerable people in the community currently on guardianship or supervised discharge?

8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? 8.1 With both Bills the responsibility of diVerent government departments, the opportunity to ensure that they exist in harmony was perhaps lost at an early stage. 8.2 The reality is that many mentally ill people, when at the most acute phase of their illness, may well lack capacity. It is a common misunderstanding that the Mental Capacity Bill is primarily about learning disability and old age whilst the Mental Health Bill is focussed on mental illness and personality disorder. 8.3 We have already commented above that the Draft Bill is overly complex (4.22–4.23). Added to this complexity will be the need for practitioners, users, carers and families to understand the relationship between both Bills and both sets of regulations and Codes of Practice.

9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act? 9.1 Because an element of Human Rights Act compliance will depend on the contents of the Code of Practice and Regulations it is very diYcult to comment on this at this stage. (para 1.3 above) 9.2 However, whilst you undertake the task that lies before you we would ask you to critically examine the “rights” that are given to those who come within the legislation. The important question is, how will they be applied in practice? To what extent will they be enforceable? Will they actually make a diVerence? Eg. will the estimate for 140 advocates to cover England and Wales be suYcient to advise not only those in hospital but those on non-resident orders as well.

In Conclusion 11.1 There is perhaps an understandable fear of change. Indeed there may be a suspicion that some of the many criticisms of the proposed Bill spring from this. Our fear however is that those responsible for the development of this legislation in various government departments may not have a full grasp as to what is happening in the real world of psychiatry. The focus tends to be on the somewhat exceptional world of forensic psychiatry. 11.2 This is a Bill primarily about control and accountability. 11.3 If you have a mental disorder you are expected to do what the doctor tells you. There is a fear amongst the public (and perhaps Parliament) that those who do not do as they are told present an unacceptable risk to the public and need to have their lives controlled. Ev 1122 Joint Committee on the Draft Mental Bill: Evidence

11.4 On the other hand, if you work in this ﬁeld you are expected to use the powers vested in you to minimise the risk that a mentally disordered person will hurt someone. If you fail to use the powers given by Parliament and something happens you will have to justify yourself. Professionals will feel under great pressure to use compulsion and then continue to use it. 11.5 Our experience at Peter Edwards Law is very diVerent. Many mentally disordered people cry out for help they cannot get. Families are desperate when they are not listened to. A higher proportion of mentally ill people commit suicide. People with mental health problems ﬁnd themselves in prison on ASBO’s after they have been failed by local services. We have to say that this frustration is often shared by the psychiatrists, GPs, social workers and nurses. New laws will not solve these problems. 11.6 It is our view that the primary reason that the current Mental Health Act is not used more, are the problems associated with accessing beds in general psychiatry 11.7 It is not additional control that is needed. It is a greater understanding by the public of the tragedy of mental disorder. You will be reading many criticisms of the Bill from individuals and organisations who only want to achieve fairness and respect for those aZicted by mental disorder. They also wish to strike the right balance between coercion and safety. 11.8 Any government that legislates against the weight of opinion whose support is necessary to implement that legislation must have a very good and compelling reason for driving this through. The only reason that we can see is that it is part of the misunderstanding, discrimination, and prejudice that exists when parliament misperceives the need to protect the public. Peter Edwards Dave Sheppard October 2004

Memorandum from Scarborough and Rydale Mind (DMH 356) I write in my capacity as Service Manager at Scarborough & Ryedale Mind and on behalf of the trustees, paid staV, volunteers and service users of this organisation. We are concerned that some aspects of the proposed mental health act are not only contradictory to other elements of government policy and legislation, but are in fact unfair, unjust and opposed to expressed service user needs. We would like the information provided in this memorandum to be treated as evidence. The subjects we wish to be considered are as follows:

SUBJECT—Compulsory treatment The new Draft Mental Health Bill adds to doctors’ existing powers to decide whether to assess or give treatment for a mental disorder without the consent of the person concerned in ways that include: — The deﬁnition of mental disorder is wider. — The conditions that justify compulsory treatment are wider. The combined eVect of these extended powers is that more people could fall within the scope of provisions for compulsory treatment for a mental disorder. If the government were serious about public safety and patients’ health, surely the emphasis of the Bill and other legislation must be to ensure that people get the care and treatment they need and when they need it. As government itself states, people with mental health diYculties know best what they need and when (eg ‘expert patients’ scheme). The reality however is often very diVerent—we as an organisation advocate for many people to receive appropriate and timely treatment but often the situation has to reach real crisis point before a service is oVered or provided. EVIDENCE—We became involved with a woman on Enhanced CPA who had moved into the area. Due to her mental ill health she could become aggressive and so our local council would not house her and she was left homeless. Scarborough & Ryedale Mind took her to A&E hoping that she would be cared for by mental health services. Instead, she was put back on the streets. A mental health crisis followed and she was ﬁnally admitted to our local inpatient psychiatric ward. Surely, the emphasis should be on preventing this situation—this woman was asking for help. Crisis could have been averted and compulsion avoided.

SUBJECT—Compulsion in the community Under this Bill, the clinical supervisor can decide to put a patient under compulsion in the community rather than in hospital. We believe that this aspect of the Bill is unsafe and against a persons human rights: Joint Committee on the Draft Mental Bill: Evidence Ev 1123

— If people are in a crisis where compulsion is the only option for them, they need to be in hospital where they will be safe, and where there is medical and nursing staV to help, for instance, to monitor the eVects of medication and treat adverse eVects (which can be life threatening) quickly. — Compulsion in the home is disruptive and can interfere with people’s domestic lives, denying them the human right to privacy and family life. — Community nurses and psychiatrists don’t want or need to police their clients in this way. It will damage trust in their relationships with their clients.

SUBJECT—Dangerousness More than under the current law, this Draft Mental Health Bill is based on the notion that people with mental health problems present a risk to others. This is clearly erroneous. Government itself has produced statistics and information showing that people with mental health diYculties are far more likely to harm themselves than others and their legislative emphasis on community care supports their belief that: “Most people who suVer from mental illness are vulnerable and present no threat to anyone but themselves” Frank Dobson, Secretary of State for Health. We object to the additional powers proposed in the Draft Mental Health Bill because they: — Reinforce the prejudice that all people with mental health problems are dangerous and, as a result, stigmatise all service users. — Will drive vulnerable people away from seeking help when they need it. — Are unnecessary. People working in clinical mental health care can, and do, take action under existing law to deal with the situation once they aware of a genuine risk of this kind. — Do not deal with a more signiﬁcant problem: the denial of help to some perpetrators of violence who are refused help prior to a crisis due to lack of resources. — Are discriminatory. There is no preventative detention of many people who put others at risk, such as dangerous drivers or people who abuse their partners, even if the risks of oVending or repeat oVending is likely.

SUBJECT—Advocates and nominated persons We believe that if a person is in crisis and put into hospital, several things need to happen right at the start. They need a friend or advocate who can help to explain what is happening, to negotiate with the medical team on their behalf and hopefully get agreement to the course of action that is best for the patient. Such a person must be someone trusted by the patient and who knows them well. Under the proposed new law the consultation on examination cannot be with a paid carer, or even a voluntary organisation, no matter how well they know, understand and are trusted by the patient. The nominated person (chosen by the patient) is not appointed unless, and until, the formal assessment stage is reached. The current law allows the nearest relative to take steps to discharge a patient under compulsion. Under the Draft Mental Health Act this provision will disappear, allowing potential injustices and decisions based on lack of knowledge of the patient. EVIDENCE—As Service Manager of this organisation, I recently acted as an advocate for someone who, at the time of admission to hospital, needed me to speak on her behalf as I know her well and am trusted by her. Without my support, she felt unable to speak for herself.

SUBJECT—Advance Directives An Advance Directive is a way of a person with a serious mental health problem to plan ahead for crisis. They are written when the person is well and in conjunction with medical staV, carers and others to ensure that the most appropriate course of action is taken by all involved when a crisis occurs. Awareness of Advance Directives’ is patchy and misunderstood but those who do use them, or who are involved in them, say that the beneﬁts of them include earlier receipt of help, and more rapid recovery. They can also avert crisis. People with mental health problems are experts in their own condition and they know from past experience what happens when they become ill. Advance directives give all involved the opportunity to oVer appropriate and timely intervention or support in a planned and agreed way. An advance directive can include: — Clear information about the signs and symptoms that may indicate a person is becoming unwell. — What the service user wants people to do when s/he becomes unwell and who these people are. — Information about what has or hasn’t helped in the past. — Information about practical help required (who will take care of children, pets, bills etc). — Who is trusted to speak on a person’s behalf. Ev 1124 Joint Committee on the Draft Mental Bill: Evidence

If you, as a member of the Joint Committee were to become unwell—and remember, mental ill health aVects one in four of us at anyone time—wouldn’t—want to have a plan of action and be supported by those you love and trust?

SUBJECT—Aftercare Many people who are detained in hospital are given leave or are discharged if suitable social care arrangements are in place. Good clinical practice includes securing care services to support discharge from hospital as soon as possible. The Draft Mental Health Bill allows for further a compulsory hospital treatment order to be made in some circumstances when care provision is not ready. Quite frankly, this is a wholly unjust state of aVairs— unjustiﬁable compulsory detention just because services are not being provided, Is this an attempt to help disguise the lack of services that support recovery and prevent further admissions? Under present law, there is a right to free aftercare services for people that have been in hospital under compulsory powers. This includes housing as well as community care services. Someone trying to rebuild their life may need several months or even a year or two in appropriate supported accommodation before moving on to more independent circumstances. Under this Bill, the right to free aftercare is restricted to six weeks—this will increase the likelihood of relapse and readmission to hospital for hugely vulnerable people and signiﬁcantly reduce their chances of being able to live a full, meaningful and independent lives. EVIDENCE—we own and manage a supported housing facility in. On average, people require at least two years of regular support before feeling able to move on to more independent accommodation. Scarborough and Ryedale Mind

Memorandum from Mr Ian Smith (DMH 369) I am writing to inform you of my opinion, concerning the Draft Mental Health Bill being considered by the committee, as a person with intimate knowledge of the mental health care system. I wish to draw your attention to the following three areas where I think the Bill is in error: 1. People with mental health issues do not need the police having the power to enter their property without a warrant, this will only lead to health professional and patients losing trust that has been built up over the years of care. Apparently an Englishman home is his castle, but not if he is mentally ill. 2. Compulsory medication of suVers will also create more issues of trust between carers and patients and frankly the money saved on hospital beds would be drained with the enforced visits to patients homes. Would you continue taking medication that gave you ﬁts or eVectively made you a Zombie. 3. The issue of sectioning people at home or as I think of it, placing people under house arrest is unworkable especially when they are in crisis. These three points are my objections to the Draft Mental Health Bill given suYcient time I’m sure I could pick out more unworkable pieces in this legislation but as I only found out about this Bill four days ago I can’t go into too much detail on this matter. Perhaps you committee should consider that one in four people will suVer from a mental illness during their life time this equates to roughly 25% of the population that this Bill will alienate most of which are of voting age. I think the government is being very short sighted in this matter. I hope you will scrutinise this Bill very closely and agree with me that this draconian Bill should be opposed the Nth degree.

Memorandum from Nina Clarke (DMH 370) My name is Nina Clarke and I suVer from Bipolar AVective Disorder. I am concerned as a user of mental health services myself and as a friend of other service users. I want this memorandum to be treated as evidence. I am going to write about compulsion in the community and about Advance Directives. I feel strongly that people have a right to their own privacy regardless of mental illness. The changes seem very harsh to me. As a suVerer from mental health problems I have already experienced stigma. An example of this is when I had to stop working for a period of time because of my mental illness. When I went back to work people knew why I had been oV work and they treated me diVerently because of this. I live in a very small community and am therefore worried that if I was ever put under compulsion in the community this would result in my neighbours knowing about things I have a right to keep private. I think that if someone is put under compulsion they should be in hospital where they are safe and are surrounded by people who can care for them and treat any bad reactions to medication. Joint Committee on the Draft Mental Bill: Evidence Ev 1125

I am also worried that people are going to be more likely to be put under compulsion. I have spent time in hospital because of my mental illness but it was voluntary. My experience compared to some of my friends who have been under compulsion is much better. The freedom that I had to be able to leave the hospital and come back whenever I wanted really helped me and I worry that if more people are put under compulsion they are going to suVer unnecessarily. I also feel that the abolition of Advance Directives is another unnecessary change in the Draft Mental Health Bill. In my current state I am perfectly capable to decide what I do and do not want to happen to me in the case of me becoming ill. I feel that if I was to become ill again and be in a position which I could not decide, then I would want a record to be used that had been prepared in advance. I also ask myself from looking at the Draft Mental Health Bill, is a new one really necessary?

Memorandum from LINXS House, Hull and East Yorkshire MIND (DMH 371) 1. Introduction 1.1 I am Zoe Coleman, a Project Worker from LINXS House, Hull and East Yorkshire MIND. I am writing to express my views and understanding about the proposals of the new Mental Health Bill. I believe this new Bill does not address the concerns of mental health Service Users, and Is rather a means of coordinating economic cuts in the mental health service. I wish to show that this Bill will have a negative eVect on society as a whole, particularly those aspects of the Bill that will infringe upon individual human rights for adequate health care and personal freedom. 1.2 The speciﬁc aspects of concern are: A right to services. Compulsion should be the last resort. Dangerousness and compulsion. Compulsion In the community. Advance directives. A right to aftercare. The tribunal system. Police powers.

2. A Right to Services 2.1 It has come to our attention that the Government is not doing enough to ensure that people receive adequate treatment and care when they are needed. For example, the Hull and East Yorkshire Crisis Service was forced to close once funding from Central Government ended. This service provided out of hours referral and non referral based support that ensured service users received the right kind of treatment prior to and following crisis point. Furthermore, this service misted people In accessing mainstream NHS Care. Without this service, there is a great probability of individuals reaching crisis point before they are able to access main stream services. 2.2 We believe this new Bill will have a detrimental eVect on people suVering from mental health problems as cuts to services (such as the Crisis Service) will make it very diYcult, and in some cases impossible, for people to access support and treatment. 2.3 These new provisions may be improved by including an oVer of an out of hours non-medical referral based service that will help people to gain access to mainstream services before crisis point is reached. This will be of economic beneﬁt to the NHS as these types of service provide a safety net that enables people to ﬁnd support independently. Typically, such Service Users would be referred to statutory and voluntary based groups, such as MIND, Re-think, Survivors, etc. These types of services cut costs for the NHS in the longer term.

3. Compulsion Should be the Last Resort 3.1 People who have mental health problems should not be treated like criminals, nor should they be detained against their will. The new provisions will cause mental health Service Users to be viewed in the same light as criminals. For example, if these new provisions are accepted, where would one draw the line between a sex oVender and an individual with a bi-polar disorder? All the excellent work of the past few decades that has sought to reduce the stigma and prejudice of mental health suVering will be undermined. 3.2 It is clearly an infringement of basic Human Rights to have treatment forced on an individual against their will. For example, chemotherapy is not forced on individuals suVering from cancer, even if such treatment may prolong their lives. Why should people who have mental health problems be treated any diVerently? Ev 1126 Joint Committee on the Draft Mental Bill: Evidence

3.3 MIND believes people who are suVering from mental distress should only be put under compulsion when they are truly in crisis, in danger, or when they have lost the ability to make reasonable decisions for themselves.

4. Compulsion in the Community 4.1 Compulsion in the community isolates mental health Service Users by removing them from adequate health care and puts pressure on families to provide the role of carers. Furthermore, trust between professionals is an essential element in maintaining and providing a productive service. 4.2 The provisions may destabilise relationships between professionals and Service Users. It will place a greater strain on family dynamics as professional responsibility is shifted onto the family. 4.3 In situations where compulsion is the only option, people suVering from mental distress need to be in a hospital where they will be safe with medical and nursing staV to help them. The monitoring of medicinal treatment and reaction to adverse symptoms is within the medical profession’s remit.

5. Dangerousness and Compulsion 5.1 Reducing stigma and discrimination against mental illness is extremely important. The provisions of this new Mental Health Bill expand on the notion that people with mental health problems are a risk to others. This will reinforce the aforementioned prejudices. 5.2 The new Bill will serve as an agent for stigmatising Service Users which will lead to even further negative eVects on their mental health. It will drive away vulnerable people who are seeking help, and will segregate Service Users from society. This is clearly discriminatory as no such preventative detentions are applied to those who do put others at risk (such as drug dealers, abusers, dangerous drivers, etc.) 5.3 These provisions may be improved with the understanding that people who have mental health problems are no more of a risk to society than any other human being. There are already adequate laws which may be acted on to deal with violent behaviour when this is appropriate.

6. Advance Directives 6.1 Removing an advance directive from a Service User restricts their rights, responsibilities and control over what happens to them in a crisis regarding treatment. 6.2 This is a breach of Human Rights as it removes any control patients have over themselves. People who suVer from other illnesses are not forced to accept treatment against their wishes—why should this be diVerent for people in mental distress? 6.3 Research carried out over a two year period has shown that use of advance decision making by Service Users (in cooperation with a clinical team) cuts compulsory admissions for severe mental health problems dramatically.

7. A Right to Aftercare 7.1 It is imperative that Service Users have suYcient aftercare; this is an integral part of recovery and rehabilitation. 7.2 Under the new provisions, the right to free aftercare will be restricted to just six weeks. This is not long enough for rehabilitation after a hospital admission. EVective recovery is a long and slow process. it can take a long time to adjust to standard social norms after having mental distress. For example, a person who has had cancer has the right to continual aftercare until all the symptoms are clearly in remission. Why is this diVerent for mental health users? If this new Bill is approved, there will be no continuous care as the Government claims, as the Service Users will not be making full recoveries and will therefore be back in remission. 7.3 There needs to be the right to free aftercare services for people who have been in hospital under compulsory powers, including housing and community care services.

8. Tribunal System 8.1 It is important that Service Users and their immediate carers are included in the proposed tribunal system. Patients should never be discharged from hospital for the wrong reasons. For example, a lack of beds and economic cutbacks are not valid reasons. 8.2 The proposed Bill would aVord the mental health tribunal a very large say in the decision of patients being discharged. This does not include either the patient or their immediate carers. 8.3 An inclusive policy could be adopted whereby all interested parties are integrated into the decision making process. Joint Committee on the Draft Mental Bill: Evidence Ev 1127

9. Police Powers 9.1 The powers of the police will be extended to the right to enter private premises without a warrant in an emergency where it is suspected someone is in urgent need of treatment. 9.2 This Bill proposes unnecessary extensions of existing powers that already enable police to provide a safe means of protecting the public. 9.3 Current legislation is adequate for the protection of the public; changes are not necessary.

10. Summary In conclusion, it is clear that there are many issues that may be addressed regarding the proposals put forward in the new Bill. In its entirety, the Bill now provides certain improvements over the original, but still falls far short of providing a humanitarian approach to the issues surrounding mental health that it seeks to address. Every Service User is entitled to dignity, basic freedom, and all rights that apply to every member of society. These new proposals do not meet these maxims. Zoe Coleman October 2004

Memorandum from Mind in Barnet (DMH 372) I write just to welcome the provisions in the Bill for advocates to represent patients at Mental Health Tribunals, this is speciﬁcally mentioned in the explanatory notes. Currently, under the MHA 1983, Rule 10 of the Mental Health Tribunal Regulations allows for “any person to act as a patients authorised representative”. In his work Mental Health Review Tribunals Law and Practice, Anselm Eldergill at page 877, states that “apart from Solicitors, alternative sources of legal representation include, Citizen Advice Bureau’s, law centres, hospital advocacy workers, mental health organisations and the local Community Health Council.” The Council on Tribunals 2000 provided statistics on the extent of representation at tribunals, and showed that 99% were legally represented. it is submitted that the other 1% included hospital advocacy workers. it must also be recalled that tribunals were set up to allow the lay person to represent themselves if they so wished.This right should not be taken away on the say so of the legal profession. Patients should be allowed to have choice of representation as they currently do, although there is anecdotal evidence that patients are not being allowed to represent themselves any more. I welcome the provisions for advocates to represent patients at Mental Health Tribunals, and I hope that the provisions will remain, notwithstanding the predicted opposition by the legal profession. Paul Moore Advocacy Manager Mind in Barnet

Memorandum from Jay Watts (DMH 373) I write to you in both my capacity as a trainee clinical psychologist and as an ex-service user who has been compulsorily detained under the current Mental Health Act. I support the following proposals including: — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Special provisions for children and young people. — Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law. However, I am extremely concerned about a number of points that remain within the current proposals. I am troubled that these concerns remain despite the feedback from a number of well respected organisations. I see the following as extremely important elements to include in a modern and person-centred Mental Health Act and would urge you to (re)consider including them: — A right to assessment of mental health needs and a duty on the state to provide aftercare (to include non-medical therapies) for as long as is clinically appropriate. — A statutory recognition of the role of advance statements. Ev 1128 Joint Committee on the Draft Mental Bill: Evidence

— Legally binding safeguards to protect people from potentially hazardous practices, and speciﬁcally that doses above BNF limits should not be given without informed consent. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A limit to the conditions for the use of compulsion in the community. — The right to an independent advocate. — A reconstituted tribunal with a role for non-medical members and users. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — Narrower conditions for the exercise of compulsory powers in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic beneﬁt and requiring other options to be tried before compulsion is imposed. Jay Watts December 2004

Memorandum from SANE (DMH 374)

Summary 1. SANE has three objectives: — to raise awareness and respect for people with mental illness and their families, improve education and training, and secure better services; — to undertake research into the causes of serious mental illness through The Prince of Wales International Centre for SANE Research; — to provide information and emotional support to those experiencing mental health problems, their families and carers through SANELINE.

Reform of Mental Health Law 2. SANE has campaigned for reform of mental health law, to reﬂect the fact that the majority of people with mental illness are now cared for in the community. Through a Balance of Rights campaign launched in 1996, we have called for: — a positive right to assessment, care and treatment for people suVering from mental illness or disorder; — families and carers to be given information and involved where appropriate in key decisions; — removal of the treatability test in the Mental Health Act 1983 for those diagnosed as suVering from personality disorder.

Response to 2004 Draft Mental Health Bill 3. SANE does not have the resources to comment on the drafting of the Bill. Instead, we wish to focus on whether the proposals provide a robust and enduring framework within which individuals with mental illness or disorder could receive timely and appropriate care and treatment, and their families and carers the information and support they need to fulﬁl their role. We wish to concentrate on the following questions posed by the Joint Committee.

Question 1: Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? 4. SANE is opposed to any legislation that would provide for indeﬁnite detention of people diagnosed with personality disorder who were deemed to pose a risk to themselves or other people. We believe that this group should come within the ambit of mental health legislation but that they should be treated no diVerently than others, meeting the same conditions and criteria of risk necessary for the use of formal powers. Joint Committee on the Draft Mental Bill: Evidence Ev 1129

5. SANE welcomes the statement that it will not be possible for someone to be under compulsion in the community without assessment in hospital on a previous occasion, and that the expectation is that the majority of patients under compulsion at any one time would be in hospital. We think it important to have clariﬁcation of what is proposed, in particular whether there would be any circumstances in which it would be permitted for patients to receive compulsory treatment outside hospital.

Question 3: Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 6. The personal and human rights of those with mental illness or disorder are fundamental and must be fully protected. Any true reform of mental health law must provide not just protection for the public but for people who may be so ill that they do not know or deny the risk they present, to themselves far more frequently than to others. Any compulsion on an individual must be in order to protect him from the worst ravages of his illness and must be backed by humane care and treatment. 7. SANE believes that as well as safeguarding the rights of those with mental illness or disorder, mental health legislation must respect and protect those of their families and carers and the wider community. We do not consider that the Bill meets adequately the information needs of families, carers or the public. We would like consideration to be given to how the Bill itself and the Code of Practice could improve on what is presently proposed.

Question 4: Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? Are there important omissions in the Bill? 8. SANE believes that the key proposals are necessary to provide treatment and care for those whose mental illness or disorder may place them at risk. We are concerned that the proposals will not be workable without signiﬁcant increases in the numbers of trained staV and appropriate beds and supervised accommodation in the community. The central omission in the Bill is the lack of a duty to provide an assessment of an individual’s mental health needs if one is requested, and care and treatment when it is needed.

SANE submission to the Joint Scrutiny Committee on the Draft Mental Health Bill

Introduction 1. SANE has three objectives: — to raise awareness and respect for people with mental illness and their families, improve education and training, and secure better services; — to undertake research into the causes of serious mental illness through The Prince of Wales International Centre for SANE Research; — to provide information and emotional support to those experiencing mental health problems, their families and carers through SANELINE. 2. Annex 1 gives more information about SANE and its activities, Annex 2 about SANELINE.

Reform of Mental Health Law 3. SANE has campaigned for reform of mental health law, to reﬂect the fact that the majority of people with mental illness are now cared for in the community. Through a Balance of Rights campaign launched in 1996, we have called for: — a positive right to assessment, care and treatment for people suVering from mental illness or disorder; — families and carers to be given information and involved where appropriate in key decisions; Ev 1130 Joint Committee on the Draft Mental Bill: Evidence

— removal of the treatability test in the Mental Health Act 1983 for those diagnosed as suVering from personality disorder. 4. SANE’s response to the 2002 Draft Mental Health Bill is at Annex 3.

Response to 2004 Draft Mental Health Bill 5. As a Core Member of the Mental Health Alliance SANE shares its objectives for new mental health legislation, although our views on the 2004 Mental Health Bill diVer in emphasis in some areas. We do not as an organisation have the resources to comment on the drafting of the Bill. Instead, we wish to focus on whether the proposals provide a robust and enduring framework within which individuals with mental illness or disorder could receive timely and appropriate care and treatment, and their families and carers the information and support they need to fulﬁl their role. We wish to concentrate on the following questions posed by the Joint Committee.

Question 1: Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? 6. We note and support the intentions for the Bill stated in Figure 2 of “Improving Mental Health Law”, in particular the following: — “The Bill does not introduce a new power of indefinite detention for people with mental disorder who pose a risk to public safety nor does it introduce a new power of “preventive detention.” — “Patients in the community who are ill and vulnerable will get the treatment they need. The Bill will restrict the initial use of formal powers in the community, to make sure that they are not used inappropriately.” — “Forced treatment at home is not, and never has been, permitted under the Bill.” 7. SANE’s views on dangerous people with personality disorder and on compulsory treatment are set out in Annex 3. The intentions referred to in paragraph 6 above must, in our view, be reflected in provisions in the Bill, and the Code of Practice if relevant, which are entirely clear both to those operating the legislation and those who might be aVected by them. 8. We are opposed to any legislation that would provide for indefinite detention of people diagnosed with personality disorder who were deemed to pose a risk to themselves or other people. We believe that this group should come within the ambit of mental health legislation but that they should be treated no diVerently than others, meeting the same conditions and criteria of risk necessary for the use of formal powers. 9. We welcome the statement in Table 1 of “Improving Mental Health Law” that it will not be possible for someone to be under compulsion in the community without assessment in hospital on a previous occasion, and that the expectation is that the majority of patients under compulsion at any one time would be in hospital. We are unclear, however, how this sits with the statement in Figure 2 that “under no circumstances is forced treatment outside hospital permitted.” We think it important to have clarification of what is proposed, in particular whether there would be any circumstances in which it would be permitted for patients to receive compulsory treatment outside hospital.

Question 3: Does the Draft Bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 10. We believe that the diYculty in striking this balance has been at the heart of concerns about the reform proposals. The article at Annex 4 by SANE’s Chief Executive, Marjorie Wallace, written in November 2002, sets out our arguments and concerns more fully. 11. The personal and human rights of those with mental illness or disorder are fundamental and must be fully protected. Any true reform of mental health law must provide not just protection for the public but for people who may be so ill that they do not know or deny the risk they present, to themselves far more frequently than to others. 12. Any compulsion on an individual must be in order to protect him from the worst ravages of his illness and must be backed by humane care and treatment. This means care provided to proper standards, not as is so often the case now in squalid, overcrowded wards where there are far too few doctors and nurses, minimal therapy, and no meaningful occupation. Treatment under compulsion outside hospital would only work if matched by huge increases in community services. 13. SANE believes that as well as safeguarding the rights of those with mental illness or disorder, mental health legislation must respect and protect those of their families and carers and the wider community. In our experience, even in the most critical situations families and carers are still denied essential information that could prevent unnecessary suVering and tragedy. Joint Committee on the Draft Mental Bill: Evidence Ev 1131

14. Even where an individual would agree that a family member or carer should be given key information about his diagnosis, medication and treatment plan, health professionals can still believe that patient conﬁdentiality precludes such information being disclosed. When patients are discharged from hospital, hospitals and Mental Health Review tribunals can leave families and carers with no information, even though the individual may remain vulnerable. 15. We do not consider that the Bill meets adequately the information needs of families, carers or the public. We would like consideration to be given to how the Bill itself and the Code of Practice could improve on what is presently proposed.

Question 4: Are the proposals contained in the Draft Mental Health Bill necessary, workable, eYcient, and clear? Are there important omissions in the Bill? 16. We believe that the key proposals are necessary to provide treatment and care for those whose mental illness or disorder may place them at risk. As indicated in Annex 1, we are concerned that the proposals will not be workable without significant increases in the numbers of trained staV and appropriate beds and supervised accommodation in the community. The central omission in the Bill is the lack of a duty to provide an assessment of an individual’s mental health needs if one is requested, and care and treatment when it is needed. 17. It has been estimated that one in three people are turned away when they or their families seek help. People can wait several months to see a consultant psychiatrist and up to 18 months to see a counsellor or therapist. In these circumstances, a person’s illness may deteriorate to the point where he may deny the need to seek treatment voluntarily and compulsion may be the only option. Without imposing a duty on services to respond to meet all identified need, we fear that scarce resources will be devoted to those considered to present a risk, allowing equally ill people who do not to be turned away. We wish to see the burden of compulsion placed on services, not individuals, providing rights to care and treatment to ensure that compulsion is a last resort rather than an increasingly unavoidable first necessity.

Question 10: What are likely to be the human and financial resource implications of the Draft Bill? What will be the eVect on the roles of professionals? Has the Government analysed the eVects of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill? 18. As indicated above, we have major concerns about the human and financial resource implications of the proposals. Because of shortages of beds and qualified staV, mental health services are already failing to provide necessary care and treatment and in some areas, we believe, facing breakdown. We consider that with the proposals for new tribunals, psychiatrists and other professionals will be diverted even further away from front-line patient care. Without the necessary resources to cater for these increased requirements, in this respect too those mentally ill or disordered people not considered to present a risk are likely to be sacrificed in favour of those who are. 19. Before proceeding with a Bill, we would like the Government to publish a statement on the resource consequences and costs of all the proposals, with a programme and timescale for how they would be met. October 2004

Annex 1

SANE 1. SANE is a UK-wide charity established in 1986 to improve the quality of life for people aVected by mental illness, following the overwhelming public response to a series of articles featured in The Times entitled The Forgotten Illness. Written by Marjorie Wallace, the organisation’s Founder and Chief Executive, the articles exposed the neglect of people suVering from enduring mental illness and the poverty of services and information for individuals and families. 2. SANE has three objectives: — to raise awareness and respect for people with mental illness and their families, improve education and training, and secure better services; — to undertake research into the causes of serious mental illness through The Prince of Wales International Centre for SANE Research; — to provide information and emotional support to those experiencing mental health problems, their families and carers through SANELINE. 3. SANE campaigns to combat stigma and ignorance and improve care, giving nearly 200 interviews each year on national, regional and local television and radio, generating thousands of column inches in the press, and participating in a wide range of government, professional and service initiatives. Major issues spearheaded by SANE have been the restoration of psychiatric beds and the provision of support in the commmunity, access to the newer “atypical” medications, and the links between cannabis and psychosis. Recent campaigns have highlighted prevention and care for those at risk of suicide and self-harm. Ev 1132 Joint Committee on the Draft Mental Bill: Evidence

4. SANE is unique amongst UK mental health charities in investigating the causes of serious mental illness at The Prince of Wales International Centre for SANE Research in Oxford. The Centre, an international forum for discussion in the ﬁeld, aims to establish the causes of and better treatments for schizophrenia and bipolar disorder, and to disseminate education, awareness and information to scientists and the public. 5. SANE provides care through its national telephone helpline, SANELINE which oVers emotional support and crisis care to individuals, families and carers aVected by mental illness, health professionals, other organisations and members of the public. SANELINE’s 200 supervised volunteers have undertaken extensive training endorsed by the Royal College of Psychiatrists and respond to callers from helprooms in London, Bristol and Macclesﬁeld. SANE’s call-back service Caller Care provides support to callers at times of crisis or further need, operating during oYce hours, evenings, nights and weekends. 6. Annex 2 provides more information about SANELINE.

Annex 2

SANELINE 1. SANE was the ﬁrst organisation to pioneer a national mental health helpline. Established in London in 1992, SANELINE was initially open only during weekends and daytime hours, but by the mid-1990’s oYces had been opened in Bristol and Macclesﬁeld and it was the only national, out of hours helpline networking callers into the whole range of information and services. It is now open from 12 noon to 2.00am every day of the year, and apart from Samaritans in relation to suicide and depression, SANELINE is the only helpline currently able to provide comprehensive, out of hours coverage for everyone with mental health problems.

Who SANELINE Helps 2. SANELINE oVers emotional support, crisis care and detailed information to those experiencing mental health problems, their families and carers, health and other professionals, and all organisations dealing with people aVected by mental illness. 3. SANELINE’s 200 highly trained volunteers—providing 21,500 volunteer hours a year—handle an average 1,000 calls a week. 87% of calls are from people with mental health problems, 11% from families and carers, and 7% from health professionals and others. 22% of calls are from first time callers. 4. 14% of callers believe that local services are not meeting their specific needs, 9% that relevant services do not exist. 6% of callers are not aware of relevant local services, and another 6% are in contact with services but want additional help. 3% of callers believe that services are not available when needed. We are becoming increasingly aware that SANELINE is being included in individuals’ care plans as a source of information and support. 5. 20% of callers talk of suicide or self-harm, 26% of these having attempted suicide previously and 11% in the act of suicide at the time of the call. 6. Most callers do not have just one problem, but clusters. The vision is to filter out individuals’ needs, work with them to find the most relevant help, and guide them through the labyrinth of information and services. The aim is to provide a one-stop service, giving callers all the information they need in one call, including those with needs in more than one place. The core is the SANELINE Information Database (SID) containing over 17,800 records on statutory, voluntary and independent local and national services and information on mental health law, treatments and therapies. 7. SANELINE’s Caller Care service provides support to callers at times of crisis or further need. StaVed by trained mental health workers, it operates during oYce hours and also provides out of hours and weekend cover. Nearly 4,500 hours a year are currently available for this service, over and above those available for the helpline. SANELINE is the only mental health helpline that oVers such a service.

Data Analysis 8. SANE undertakes regular analysis of anonymised data provided by callers to SANELINE, and other studies based on random samples of calls. This provides a continually updated database of 350,000 calls— which we believe to be the biggest sample in the country of the views of mental health service users and members of the public. We also have a growing database recording views expressed by people completing surveys on the SANE website. 9. The analysis of calls to SANELINE provides a unique source of information on mental health services and the needs of users and carers, informing SANE’s campaigning and contribution to policy development. SANE also undertakes dedicated research published in professional and service journals, studies in recent years including the needs and experiences of 13,000 carers calling SANELINE, a survey of 22,000 calls from and about young people, an analysis of over 4,000 callers who self harm, and a retrospective analysis of psychiatrists’ views of mental health services. Joint Committee on the Draft Mental Bill: Evidence Ev 1133

Annex 3

SANE’S RESPONSE TO DRAFT MENTAL HEALTH BILL

What SANE has Campaigned for SANE has campaigned for reform of mental health law, to reﬂect the fact that the majority of people with mental illness are now cared for in the community. Through a Balance of Rights campaign launched in 1996, we have called for: — a positive right to assessment, care and treatment for people suVering from mental illness or disorder; — families and carers to be given information and involved where appropriate in key decisions; — removal of the treatability test in the Mental Health Act 1983 for those diagnosed as suVering from personality disorder.

Compulsory Treatment SANE does not believe in compulsion in any setting, except where an individual poses a serious risk, and there is judged to be no alternative. Early intervention on ﬁrst onset of mental illness, or to prevent relapse, is much the best way of providing care and treatment and avoiding the need for compulsion. If compulsion has to be used, SANE believes that treatment should only be administered in a hospital or equivalent clinical setting, to allow for full, on-going monitoring of the patient’s physical and mental condition. SANE would like to see all patients given the opportunity to agree to compulsory treatment in speciﬁed circumstances, and to express their wishes about how they would like it to be administered, through an advance directive. Wherever compulsory treatment is given, there must be the fullest safeguards for the individual, to protect his/her rights and dignity.

Dangerous People with Severe Personality Disorder SANE has campaigned for recognition of the needs of people with severe personality disorder, believing that they should have the chance of specialist help. The very fact that there is confusion over diagnosis, and no reliable risk assessment, makes it all the more important in SANE’s view that this group— some of whom can pose the greatest risk to themselves and others—should not be neglected. SANE believes that services should be provided which can oVer specialised management, separately from those for people with mental illness, in a non-punitive environment. SANE does not believe in long-term detention for a person who has not committed an oVence. People diagnosed with severe personality disorder should only be detained following a full professional assessment, which should be reviewed regularly. The criterion for detention should be the level of risk an individual poses, as with all others subject to detention under mental health legislation. People with severe personality disorder should have the same safeguards as anyone else subject to detention under mental health legislation.

SANE’s Response to Draft Mental Health Bill As a Core Member of the Mental Health Alliance, SANE shares most of the concerns set out in the Alliance response to the draft Mental Health Bill presented to the Secretary of State on 16 September. SANE’s chief concerns about the draft Bill are: — It does not include any positive rights to assessment, care and treatment. Without such rights, or a duty imposed on services, service users and carers would have no levers with which to obtain assessment and treatment. With the acute pressures on mental health services, and manpower shortages in all specialties, people would continue to be denied help. With increased powers of compulsion, there would be a greater risk that patients would turn away from professional help, leading to a negative spiral in which compulsion became the only option. — It does not include a requirement for assessment or treatment under compulsion to be provided in a hospital or any clinical setting, going against repeated Ministerial pledges that compulsory treatment would be provided in a proper setting. It would be quite wrong for patients not to have the dignity, privacy and clinical protection of a hospital or other clinical setting for either voluntary or compulsory treatment. The lack of such provision would be a powerful deterrent to patients seeking treatment or remaining compliant. — It does not include an enforceable right for patients to have their wishes taken into account through advance directives. Ev 1134 Joint Committee on the Draft Mental Bill: Evidence

— Whilst welcoming the additional safeguards provided by the new tribunals, we are concerned that they could divert scarce ﬁnancial and staV resources from front-line patient care. We are also concerned that the huge addition to the workload of tribunals could get in the way of eVective, timely decision making in the interests of patients, and that if they were not properly resourced there could be even longer delays in hearings. SANE welcomes the provision for a right to information about the management of mentally disordered oVenders for victims and families of victims. SANE is concerned about the omission of critical rights in the draft Mental Health Bill. But we are as much concerned that the poverty of mental health services, and the lack of trained staV and available, appropriate beds and supervised accommodation, would give new legislation little chance of proper implementation. A new Mental Health Act is needed to improve access to care and treatment and provide greater safeguards. In proceeding with a Bill, SANE believes that government should give a commitment that it will seek to ensure that the trained staV, beds and services are in place, without which it would be meaningless.

Memorandum from Rachel Ball (DMH 375) I have worked in mental health services for over 17 years and have worked as a psychiatric nurse for social services and more recently with the voluntary organisation Leeds Mind. I have four major concerns about the proposals in the Draft Mental Health Bill these are as follows. Since the ﬁrst draft of the Bill was published in 2002 I have been concerned about the proposal to introduce enforced treatment in the community under the new legislation. I had hoped the second draft would have revised this proposal however although some alterations have been on how to enforce the treatment I am still very concerned there is still a focus on individuals being made to comply with treatment against their wishes whilst living in their own homes. This seems to be working against the basic principles of civil rights and freedom of choice. As the Bill is making it easier to treat people against their wishes in the community this means there is a serious risk of increased numbers of people being treated under the Mental Health Act. The very broad and vague deﬁnition of mental disorder in the new Bill could also contribute to more people being treated under the Mental Health Act. The mental health system in recent years has had a lot of organisational change and although some of it with the intention to improve and modernise services the reality is there is still a lot of confusion and inadequate resoursing. This does not seem to be an appropriate time to bring in yet another major change. Choices of treatment for acute mental health diYculties is still very focussed around the medical model which often comes in the form of controlling behaviour through psychotropic medication. Preventative and early interventions are still not consistently available or are diYcult to access quickly. Often peoples mental health deteriorates because they are not receiving the support to which they are entitled. Until the government has resolved some of these diYculties it does not seem fair to be bringing in legislation that the system is not able to manage in way that protects the right of mental health service users. I acknowledge there are some good intention through the increased use of advocacy services and tribunals however I am sceptical about how and these will be resourced and managed eVectively. My experience in mental health services is that individuals when they are at the most distressed and acute stage of a mental illness are less likely to have their human rights and wishes considered and we need mental health legislation that prevents this not colludes with this. I would like to see legislation that encourages: Advanced directives as a legal right. More user friendly alternatives to acute psychiatric wards. A wider range of therapeutic interventions oVered to all service users. Less use of the Mental Health Act. October 2004

Further memorandum from P Cull (DMH 379) These comments are made by a carer of almost 30 years for a patient with schizophrenia. At the onset the patient required sectioning on four occasions, through forgetting his medication, and thus falling back to the acute illness. Joint Committee on the Draft Mental Bill: Evidence Ev 1135

Despite frequent changes of CPNs there have been good relations between the CPN, patient and me. At the patient’s request I have been invited to attend a number of meetings between the patient and the consultant Psychiatrist. The patient has had no input from Social Services for many years. Nevertheless that association was of little benefit to the patient or the carer. The patient has had several very short courses of art therapy with Pentreath Industries, (a sheltered workshop catering for those with mental illness), which have been for him enjoyable, and helpful. There has been no continuum of such aftercare. The patients State Benefits have all contributed to buying materials to keep the patient occupied with arts and crafts, at which the patient has above average ability. However the patient is unable to work at suitable speed, or for suYciently long periods, to make this a viable career, or to earn a realistic and steady income. Thus it is a hobby which gives him a therapeutic occupation. The patient is not able to manage personal finances, and I have Power of Attorney, which to date has been helpful. All the patient’s monies have been spent to his advantage. During a recent move of home, to be nearer to other family members due to my own health deteriorating, it had been suggested that a change of medication for the patient might be appropriate. Despite requests that this be delayed until the stress of moving had been adequately dealt with, this still occurred.I believe this was unhelpful and detrimental to the patients overall condition. The patient has continued to take the prescribed medication, and changed his GP and is also to be referred to a CPN. The patient has an enhanced Care Plan and has also been given the name of a consultant Psychiatrist for future reference. I have been a member of the NSF (National Schizophrenia Fellowship, now Rethink), for almost as long as my patient has been ill. I found at the outset that attending several meetings arranged by the NSF were most helpful in my gaining understanding of the condition, and thus coping better with caring. Although now a carer for over thirty years and well practised and experienced in administering and obtaining State Benefits for the patient, who’s underlying condition remains unchanged, it still remains an extremely diYcult task. I am at a loss to imagine how patients without adequate care or a carer without experience or some reasonable level of intellectual ability could possibly manage the Benefits system by themselves. It is little wonder that many of those wandering the streets are found to be suVering from debilitating mental illnesses. It with this background, an experienced carer for 30 years, that I have submitted the attached comments relating to the Draft Mental Health Bill.

Comments to the Joint Committee—Draft Mental Health Bill Since the 1983 Mental Health Act. There have been numerous changes in conditions for people with severe and enduring mental illness. I have listed those of greatest importance below. — The large mental hospitals have closed. — There has been a move to Care in the Community, inadequately implemented. — There have been new drugs produced for the treatment of mental illness. It is necessary for changes from the old neuroleptics to be fully monitored in each case. — There has been a great deal of unemployment. — There has been a great increase in the number of elderly people living longer, who also have diVering mental health problems. — There has been more demand for acute treatment for physical complains, which has also developed technologically. — There has been a great demand from all trades, professions and industries for more finance. — There has been the innovation of IT. It is debateable if this brings better treatment and care direct to the patient. — There has been an increase in mental ill health in children. — There has been an attempt to absorb both older (middle aged) patients with mental illness into the workforce, and children with mental health problems into the mainstream of education. — There has been a demand for larger numbers of young people to go to University, rather than enter the trades, which formerly were able to employ those with impaired abilities, both physical and mental. — The gap between the aZuent and poor has widened, with an increase in the less better oV. — Women who used to care for their children now choose, either from wish or financial necessity to go to work, thus leaving children in too many cases to care for themselves, and the resultant fiasco in Childcare services. Ev 1136 Joint Committee on the Draft Mental Bill: Evidence

— There has been an increase in immigrants, both legal and illegal, with their diVering rites standards and religions. Whilst welcoming the diversity, this brings with it the diYculties of language, and especially in the Caring Professions, the diYculties of understanding the immigrants diVering cultures and values, new diseases, some aVecting the neurological system. — All the above changes have inﬂuenced the values, standards, diYculties for those with severe and enduring mental illness. They have also made the caring role more diYcult and complex for professionals. Families are now more mobile and thus less able to give continuing care.

ICommend the Comments of the Zito Trust (Ref. DMH174 The Zito Trust) — The rights of disordered mentally oVenders, some of whom will require long periods of in-patient care. I would add that if Community Care had been thought through with the closure of the mental hospitals, and up to the standard of treatment and care required for those with severe and enduring mental illness, many of those who are mentally disordered, would not have become oVenders, but patients with the Civil Right to appropriate care and aftercare. — Services for people with severe personality disorders. Had confidentiality been relaxed, there would no doubt have been many tragedies avoided. — Non-compliance with treatment in the community, which indicates the lack of follow up of patients who have in the first instance of their illness required sectioning, with possibly too quick release from hospital, and lack of community provision and aftercare. Many family members are aVected by those with severe and enduring mental illness, and have been given a rough ride. The victims and possible victims have not been given the support in the community which their caring role deserves. Confidentiality, and the reluctance of some of the professionals to share information, and take note of carers views has been contrary to the best interests of both patient and carer, especially in the community, where the carer has day to day contact with the patient.

Non-compliance with Treatment in the Community — The ﬁndings quoted in the Zito Trust Evidence regarding suicide states that 25% of suicides have been in contact with Mental Health Services in 12 months before death, many non-compliant with medication. — ´ of perpetrators of homicide have a diagnosis of mental disorder in their life history.

Conclusion of the Zito Trust This points out that the concern of the ﬁndings of this Trust should cause Policy makers great concern.

Reference:The MIND Campaign Regarding Mental Health and Incapacity I would point out that certain mental illnesses are ﬂuctuating in nature, Schizophrenia in particular. The patient may at times appear to be quite mentally well, but their decision making capacity from time to time is disturbed, and their reasoning abilities in question. It is thus a very disabling condition, which requires constant contact with the Mental Health Services, in order to preserve the patient’s good mental health, and give them the protection they require as vulnerable adults. Should they move from one authority to another? The onus should be for those caring for the patient to pass the relevant information to the MHT in the new district to which the patient moves.

Personal Comment It has been my experience that the Social Services do not want the responsibility of patients with schizophrenia, and the Mental Health Teams, which have been developing since the closure of the hospitals should be medically led. The Teams should however also include other disciplines, such as Occupational Therapists, Industrial Therapists, and Carer support workers. The PCT’s have not in many instances adequately taken on the role of commissioning for the severe and enduring mentally ill. They have again been left at the back of the queue. The Housing Departments have not put those with severe and enduring mental illness as a priority, to provide decent accommodation, with access by the appropriate medical carers. There has been a reduction of sheltered employment for both physically and mentally disabled who cannot keep up with their fit colleagues, and after a trial period return to unemployment. This adds greatly to their diYculties in negotiating the Benefits and housing systems, and has on occasions left them without financial resources. Joint Committee on the Draft Mental Bill: Evidence Ev 1137

Mental Incapacity Bill There needs to be special consideration given to those with schizophrenia, whose capacity is variable and fluctuating, and may without due care and attention result in a return to illness, or, as stated in some circumstances, to crime. This is costly in both finance and care, and takes up Court time, which would be better employed in dealing with criminals. The morale of the Psychiatric services is low, as the many devoted workers are constricted from giving the appropriate care to severely ill patients, often due to the specific finances for mental illness amounting to 5% of the budget, having been diverted to the more glamorous acute services.

Mental Health Thank you for your reply, I am concerned that some of the committee will be unaware of the ﬂuctuating nature of the thought processing and reasoning powers in people who suVer from schizophrenia. There is a great deal of research going on in the USA which refers to the treatment of the condition. But the Social Conditions of this vulnerable group of disabled people are much neglected. Scanning techniques rightly, are available for people as a diagnostic measure for cancer, but the modern techniques for the diagnosis of severe and enduring mental illnesses, including schizophrenia are either not available, or not used. The ﬁnances for mental illness have in some areas been reduced. The illness has not been correlated to disability, and yet it may be one of the most disabling conditions known. The eVect on families and family life is in many cases disastrous, and the suVering for patients immeasurable. Please if possible, could you bring any further comments to the Committee. October 2004

Memorandum from G A and E Albiston (DMH 380) Our son, aged 40 is diagnosed as suVering from Schizophrenia, a condition recognised in his case for many years, and unrecognised for even longer. He lives in sheltered accomodation, but it is with us, as his parents, there exists the main contact. Our ages are 78 and 80, and thus our son’s future is of very great concern to us—This sets the scene as far as we are concerned. We have written several letters to our own MP, Mr Richard Allen, concerning the Draft Bill as it has proceeded . Mr Allen is, of course, standing down at the next General Election. We are members of Rethink (formerly The National Schizophrenia Fellowship). From the latest bulletin, we are deeply concerned at the outcome of the revisions made so far. Whilst some welcome changes have been made, the latest draft is still focussed on compulsion, and does not include a right to treatment. We are also deeply concerned at statements in the press to adverse comments to the new revised draft made by the Mental Health Alliance and others. We are absolutely appalled by the comments of the Government appointee, the so called Mental Health Tsar Louis Appleby, and who is himself a psychyatrist, that opposition to the new Draft Bill is “hysterical and absurd”. One suspects that the draughtsmen of the Draft Bill have no personal experience of dealing with the human problems of mental illness within their own families. There is little doubt, that the Draft Bill is a knee-jerk reaction to incidents involving mentally ill persons whose condition had not been recognisd and/ or monitored. In this day and age, where Mental Health is concerned, we should not be talking about compulsion, Tribunals, and legal powers. Rather, we should be talking about properly thought-out care and treatment of the mentally ill people. When our son was thought to have a mental illness, we struggled to ﬁnd the right help and information, and paths to follow. Trained medical, nursing, and appropriate professional staV were, and still are, woefully thin on the ground. From meetings we have attended we hear about new strategies, initiatives, and projects ad nauseum, but there does not seem to be any real progress as far as support on the ground is concerned. Many professionals, voluntary organisations, and families working with those aVected by mental health problems have expressed grave concerns in the past, but if the views expressed are not listened to and dealt with appropriately, many people will have been let down by those who could help. Whatever the outcome, it is crucial that: 1. Persons suVering from mental health problems are not needllessly deprived of their freedom, dignity, and the right to as near a normal life as possible. 2. Such persons should be given the fullest support, treatment, and help, at least comparable to that with other illnesses under the National Health Service. 3. There should be the fullest help, information, and support for carers. Ev 1138 Joint Committee on the Draft Mental Bill: Evidence

4. Mental Health is elevated from it’s hitherto and current “Cinderella” position in the National Health Service. November 2004

Memorandum from the Ealing Meeting of the Religious Society of Friends (Quakers) (DMH 383) Quakers, like many other religious communities, express their belief in equality and human rights by working with vulnerable people. We are therefore very worried at the present proposals of the draft Mental Health Act. These have been opposed by all the charities that work in this field, especially the Mental Health Alliance, the professionals, especially the Royal College of Psychiatrists, BASW, The Law Society and volunteers. Although the Government have made changes to draft proposals in the last six years, the balance between the needs of public safety and health are still too biased by the policies of the Home OYce, being too influenced by the tabloids, especially the Daily Mail. Although we recognise that there will always be some patients who need compulsion because they do not take necessary medication and may become dangerous to themselves and others, nevertheless we question the present proposals: 1. It is out of line with similar countries whose practice is also based on Common Law. 2. Usually a Bill like this is based upon the medical principle “in the interests of therapeutic benefits”. 3. It is possible to meet the needs of public safety and health without draconian measures which reduce people’s human rights. 4. The definition of who is covered by the Bill ie who has mental disorder has been redefined as “any disorder of the brain or mind”. This very loose definition would, for example, include somebody drunk, or who suVers from epilepsy or multiple sclerosis. 5. New Dangerous and Severe Personality Disorder limits will be set up by whereby people can be detained on the grounds of a combination of criminal behaviour and mental health with a potential for violence rather than actual crime. This is a severe diminution of our civil liberties. 6. If this law is passed more people will be compulsorily detained. The result will be that there will not be enough services for those who voluntarily agree to treatment unless significantly more resources are provided. We profoundly believe that if the Mental Health Act is used to commit vulnerable people to psychiatric hospitals without full and open safeguards rather than using the courts or full provision in the community, there is a potential for violating their precious human rights and misusing scarce resources. John Flemons, on behalf of Ealing Quaker Meeting November 2004

Memorandum from Imma Maddox (DMH 384) I agree with the public need to be further protected from those suVering from mental illness. And for the individuals at risk of hurting themselves or others to have greater protection. So schizophrenics who wish to live in the community should be subject to orders to take medication. And those suVering from personality disorders who haven’t hurt anyone should be given care if they can be assessed to be a danger. Think of the personal consequences of hurting another and then being locked away for most of one’s adult life. I wonder as does the Maudsley critique that the old mental health act cannot be changed to encompass this, so saving money and resources as they point out. I am like them concerned at the detail of the Tribunals and for example the role of family being minimised and the individual’s rights not as cared for as at present in the detail. One thing about the old Mental Health Act I think could be done better and is not here is the medical examination we are given on entering hospital. Couldn’t this be an opportunity to pick up illnesses that trouble us and which we find diYcult to get dealt with in the community, instead of a cursory poking of the tummy and checking of reflexes? What about blood and urine tests and a GP attached to each ward? I too am concerned that the huge redirection of emphasis will mean many who receive care at present and many who will in future need care will not receive it because of resource needs and definition of who should get care ie only those at risk? A sweeping change and an opening for a new poor law society where those gentle passive people who would never hurt but are ill are marginalised and possibly institutionalised in other ways. Though if it deals with the diYcult patients those the psychiatrists and nurses give up who frequently end up living on the streets or turning to drugs that will be a good thing. Joint Committee on the Draft Mental Bill: Evidence Ev 1139

And ﬁnally the Maudsley critique is correct that it will cost a massive amount more to implement the change as this bill encourages the blanket use of compulsion and such compulsion orders to be on the safe side. Not the ethos that has led to the independence of a sub-class and a resilient psychiatric service. Will the funding be forthcoming when there is none for more pay for nurses and ancillary staV? For easing the burden on staV and recovering patients in acute wards? Weight and side eVect clinics? Enabling patients to work by giving vocational training and career guidance in OT? Respite communities for those needing a break either from the community or from hospital? Funding for disablement manpower courses or the like? Couldn’t it be a priority to deal with the stigma of the mentally ill by talking to service users in the media, publishing our work and exhibiting it? Politicians and individuals talking about the psychiatrically ill members of their familiies in a positive way? Appeals to individuals to give to adult people charities rather than animal or children ones? Couldn’t the social security arrangements that stop us earning even a little be eased? Helping us to independence is the key to this. Allowing us independence ﬁrst is crucial. The Maudsley is not doing badly. I believe great advances have been made with community care. Is this Bill an advance? Can you tell me how it is? November 2004

Memorandum from Rebecca Farrant (DMH 386) The Head Occupational Therapists working in adult mental health in Hampshire Partnership NHS Trust have considered the proposed Bill. Generally, we are supportive of the changes and clarifications and have a few of comments to oVer. 1. Community treatment orders: The community treatment orders do not appear to oVer any more scope for treatment options than current powers. We were unclear about why it would be included and suggest it be strengthened to enable treatment in the community. 2. Approved Mental Health Practitioners (AMHP): StaV whilst generally in favour of this development had a number of concerns. We are assuming that the training programme currently in place for ASWs would be extended for healthcare professionals (HCP). One acknowledged benefit of Social Workers being involved with the assessment process was that they oVered an independent voice from that of the Health Service and in particular the medical recommendations. If HCPs are to undertake this role it loses that independent perspective which service users benefited from and valued. It must be made clear that HCPs must have suYcient experience before training to become an AMHP. We would suggest two years. This is to ensure that staV are fully trained in assessing and managing risk and do not operate in a risk averse way that negatively impacts on service users lives. Potentially, if OTs are performing this role in addition to their usual role then there will be less Occupational Therapy service provision available for service users. This is a consequence for the NHS trusts, but must be acknowledged. Potentially in the South East, there may be some confusion over the initials AMHP. In Hampshire, the mental health Trusts have developed a new role called Associate Mental Health Practitioner (AMHP). This could well lead to much confusion. It is anticipated by those who have developed this role that the role may be extended country wide—certainly there have been discussions with the Department of Health about this. If you would like anything clarified or have any questions please don’t hesitate to contact me. Rebecca Farrant Therapy Services Team Leader Directorate Lead Occupational Therapist (AMH) October 2004

Memorandum from Dr J SoVe (DMH 387) I welcome many of the proposals of the above Draft Bill, including, — The provision for advocates. — The role of the Mental Health Tribunal and the provision for an Appeal Tribunal. — The single assessment process. — The ability to appoint a “nominated person” (but not its reduced role). — Special provisions for children and young people. Ev 1140 Joint Committee on the Draft Mental Bill: Evidence

— Enhanced powers in the criminal courts to acquire mental health reports. The above are positive developments within the proposed mental health law and go along way towards introducing constructive and meaningful mental health legislation. However, I am concerned about the fundamental flaws that remain within the current proposals, some, I am troubled to find, remain exactly the same as the concerns that were expressed by many respected organisations following the Draft Bill’s first introduction in 2002. My concerns are as follows and I would ask the Committee to seriously consider addressing the following concerns before proceeding any further with what really could be a great opportunity to introduce a piece of supportive, person-centred mental health legislation. If the following concerns are addressed, the amended draft legislation would certainly contribute constructively towards positive developments in mental health services in the NHS. — A right to assessment of mental health needs. — Narrower conditions for the exercise of compulsory powers—in particular removing the possibility of using compulsory powers on people with full decision-making capacity, retaining a test of therapeutic benefit and requiring other options to be tried before compulsion is imposed. — A limit to the conditions for the use of compulsion in the community. — The right to advocates and nominated persons where possible to take part in the examination stage. — A right for the nominated person to block the imposition of compulsory powers and to discharge the patient. — A statutory recognition of the role of advance statements. — A reconstituted tribunal with a role for non-medical members and users. — A duty to provide aftercare. — A removal of the police power to enter private premises without a warrant. — The right of accused persons to the same safeguards (nominated person, Tribunal) as for civil patients. — The right to an independent advocate. — Legally binding safeguards to protect people from potentially hazardous practices, and specifically that doses above BNF limits should not be given without informed consent. I trust that the concerns I have raised above will be considered by the Committee and I look forward to your response. Dr Janine SoVe October 2004

Memorandum from C GriYths (DMH 388)

It was suggested that I forward the following scenario to you. Please see below: Recently we had a client that was assessed under the mental health act. Recommendations were completed for Section 2 and an application was made to the hospital. The hospital refused admission stating that the risks to the individual once admitted were greater than the risks posed in community. There is a page/section in the 10th edition of MHCommissioners report saying that an RMO has to consider the risks of admission to hospital against the risks of remaining in the community (I am paraphrasing). Basically I think it can be said that the hospital and RMO were stating that they did not have an appropriate treatment for the person. Following assessment it is usually stated that it is the RMO’s responsibility to find a bed. Yet the same RMO was refusing a bed and could not find a bed elsewhere in the country as firstly it was diYcult to get providers to assess and secondly at least two that were contacted stated the same issue that they did not consider their provision appropriate. It seems to me that the old “treatability” issue ie if they can’t be treated they should not be admitted/ sectioned has been re-formulated if we cannot or do not provide that treatment they cannot be sectioned and hence admitted. Is this correct and what issues will this pose for practitioners in the future? Carl GriYths Business Manager ALD October 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 1141

Memorandum from D McKay (DMH 390)

Draft Mental Health Bill I am writing to ask that you give the highest value to protecting the rights of the individual to freedom of choice in respect of appropriate health treatment as against compulsory treatment and that this ﬁrst principle be adhered to in all legislation. The only exception to this fundamental human right should be in the case of the individual being a high risk to either themselves or the community. People who are in mental distress should only be put under compulsion when they are truly in a crisis, in danger, and when they have lost the ability to make choices for themselves. It is an oVence against human rights for a person to have treatment forced upon them when they do not want it and are able to make that choice. No one can force you to have chemotherapy if you have cancer (even if it might save your life). Why are people with mental health problems diVerent? I dread to think what might happen to the many adolescents who suVer bouts of depression as part of the “growing up” process or women who suVer the “baby blues” if this Bill became law as presently worded! Donald W G McKay October 2004

Memorandum from Dr A Forrest (DMH 391)

I hope it is appropriate for me to write as an individual consultant psychiatrist (being aware that the Royal College of Psychiatrists has directed comments to you on the issues of psychiatric manpower in relation to the new Mental Health Bill). I have also written to Professor Louis Appleby on points coming from his meeting with consultant psychiatrists on 5 November 2004. Calculations on the impact of the new Bill (and the need for Tribunals at 28 days for all detained patients) are aVected (raised) if it is assumed that the present form of Tribunal proceedings will be grafted onto the new Bill. Specifically the proceedings have become adversarial in style, greatly lengthening the time commitment of all the mental health professionals involved. My comment to Professor Appleby was: It was very encouraging to have support in reaYrming that Tribunal proceedings are inquisitorial at present, and will be under a new Bill. The acknowledged drift toward Tribunal proceeding being adversarial is not based in law. Under the provisions of a new Bill, adversarial proceedings will be even less appropriate, since Care Plans will not necessarily be contested by patients, and will have been discussed (hopefully on a consensual basis) at stages prior to the Tribunal (with the patient, the nominated person, and advocacy services) who will be appearing at the Tribunal in non-adversarial relationships. Trust Headquarters: Springfield University Hospital, 61 Glenburnie Road, London SW17 7DJ At present, adversarial proceedings involve staV in very long hearings, and the production of multiple formal reports. The (fading) convention that the “busy doctor” can leave the proceedings early goes against valuing all the multi-disciplinary team. The new Code of Practice (although not giving legal guidance to the Tribunal) is the appropriate place to outline to clinical staV their responsibilities in assisting inquisitorial proceedings by laying the information available to them as individuals before the Tribunal. The Code will re-emphasise the consultation that will have taken place around the Care Plan (at diVerent stages of the admission) with the patient, the nominated person, and advocacy. It can advise staV that in inquisitorial proceeding, there is no need for all the witnesses to be present continuously, and that they can be released to deal with other responsibilities.” There is a wider point flowing from this. We could optimistically see a positive impact on psychiatric practice from the new Tribunal system, although it requires a leap of faith, and a sea-change in the management, resourcing and information technology in inpatient services. The optimistic view would see sharing of coherent care plans (based on agreed personal and psychiatric histories) between staV, patients, advocates, and nominated representatives throughout admission, supported by patient-focussed and clinically-focussed IT systems, with the Tribunal process seeming a natural culmination of cooperative care planning. Ev 1142 Joint Committee on the Draft Mental Bill: Evidence

The pessimistic expectation is not only an additional cost in professional time of new Tribunals, but that they will remain a deeply-aversive experience within a deeply-aversive milieu and patient experience. Dr A Forrest Consultant Psychiatrist—Merton and Sutton ACT Team South West London and St George’s NHS Trust November 2004

Memorandum from Lee Mark Langford (DMH 392) To start let me introduce myself; I am the former Minister for Health Sir Gerard Folliot Vaughan’s House of Commons Research Assistant. Therefore you will understand I have a square knowledge of the Department for Health and the NHS. I have also worked for the House of Commons Library as a Senior Library OYce Clerk, and taken an interest in representing the interests of a number of charities including those for Mental Health such as Rethink, Mind, Sane, Manic Depressives Fellowship, Phobics Society and Mencap, in Parliament. I am also now classed as disabled as I have been diagnosed with Crohn’s disease so I am now a member of the disability lobby. Therefore I would like to introduce to the House some special amendments to the Mental Health Bill 2004, which will enhance the lives of Mental Health Service users and better protect their Human Rights. Firstly, I would like an amendment to be introduced that “the House considers the banning of Electric Convulsive Therapy throughout NHS hospitals on the grounds that it is not only a violation of EU Human Rights legislation but also it has not been proven to medically improve suYciently a mental patient’s condition.” Secondly, I feel it should be enshrined in law that if Medical Negligence is suspected by a Mental Health Service User and his legal representative. “In cases of Medical Negligence by Psychiatric Professionals—the Secretary of State for Health is to be informed by a Medical Negligent case client’s legal representative and right to a trial by jury in a British Court of Law to be enforced.’ Thirdly, this amendment to the Bill. “Right to Refuse Medication that produces severe side aVects on a Mental Health Client and be prescribed alternative Medication.’ Fourthly, an amendment to be introduced which will deal specifically with laxed Social Security Legislation. Social Security Benefits: “Income Support, Incapacity Benefit and Disability Living Allowance not to be reduced by Social Security on entry to hospital, but to be kept at full rate throughout the duration of a patient’s stay in hospital.” Fifthly, an amendment to the present Health Bill regarding supervised leave. Right to supervised leave if violent aggression has been proved to be kept under control and patient is not at risk to himself or a danger to the community. Sixthly, an amendment to the Mental Health Bill regarding the Operational Work of Solicitors. “The House Commands that a Duty Solicitor, (Legal Aid Expenses paid by the Government) to be present with the Psychiatrist, GP, Social Worker and Police whilst Sectioning a Mental Health client under the Mental Health Act 2004. Immediately representing their Mental Health Client and providing legal advice including a right to a Mental Health Tribunal and Lawsuits for Medical Negligence and Police Brutality. Solicitor to travel with client and police to hospital. Legal Aid form to be completed with client when they arrive at hospital. A Mental Health Tribunal to be provided within two weeks of being sectioned.’ Seventhly, a protection of Patient’s Rights with an amendment to the Mental Health Bill. “The House agrees to the following Patient’s Rights to be enshrined in law.” 1. Supervised walks on hospital grounds. 2. Private visits by relatives and friends. 3. Decent quality food and dietary needs provided for by a catering department—right to order take- aways. 4. Right to practice religious faith. Supervised visits to places of worship. 5. Right to use and visit recreational facilities while supervised. OT courses, recreational sports and library. Joint Committee on the Draft Mental Bill: Evidence Ev 1143

6. Right to supervised leave if violent aggression has been proved to be kept under control and is not a danger to the community or himself. 7. Right to Refuse Medication that produces severe side aVects in Mental Health Client and be prescribed Alternative Medication. 8. Right to keep possessions about his person. Money, credit cards, mobile phones, personal identiﬁcation, etc. 9. Right to use mobile phones for personal calls. I hope MPs will be able to support all these amendments when the Bill eventually goes through Parliament. Please distribute them amongst them. Finally, “the House Commands that Medication is not administered until after the Tribunal has taken place and the mental client’s request for release has not been granted on Medical grounds.” Lee Mark Langford November 2004

Memorandum from Philip Partridge, Co-ordinator of the Supporting Carers Better Network (DMH 395) The Supporting Carers Better Network was set up for everybody supporting carers in mental health in England. It aims to identify and share good practice, and connect people. It is a broad community, covering deliverers and developers of services, strategists and policymakers, carers representatives, “gate-keepers” to carer identiﬁcation and support, information sources and more. Pressures of work prevent me from providing a point-by-point response to the consultation. Therefore, I am replying with general thoughts about the draft Bill’s impact on carers.

Where are Carers in this Draft Mental Health Bill? I deeply fear the lack of meaningful carer/family/“supporter” involvement, which the Draft Mental Health Bill engenders. A person with MH problems may face malpractice, abuse or simple worker error, and unpaid, friends-and-family “carers” are often the only support/safeguard on their side. Time and time again the non-involvement of carers, and not listening to carers, has consistently had bad outcomes. These include: Suicides and self-harming by those with a mental illness; attacks on “users” (and much more rarely, by “users”); inappropriate treatment, housing, medication, etc; non-recognition of a person’s whole medical needs, leading to allergic reactions, etc; non-recognition of the person’s wishes, cultural needs, family culture. As I see it, this draft bill: — Fails to adequately address carer’s involvement in the process. — Takes away the rights of carers/nearest relative. The consequence of this will damage carers, families and lives. — Risks farcical use of a “nominated” person—an area vulnerable to abuse and misuse by professionals, and users in crisis, which is their most vulnerable time. — Undermines the carer-support in the person’s life. — As I see it, contradicts other legislation and policy such as: Carers Recognition and Services Act 1995; National Service Framework 1999—standards 1 MH promotion, six Carers, and seven Suicide; Carers (Equal Opportunities) Act 2004; the Social Exclusion Unit work towards those with a mental illness being more involved in society and supported in leading fulﬁlling lives. — Makes a mockery of Tony Blair’s professed support to carers, in Carers Week 2004. — Promotes stigma, stereotyping and social exclusion. — Excludes carers, and relies, to defend users’ rights, on advocates/other workers not in place. — Will potentially drive people away from mental health services—extending carer support especially in the onset of the illness, which is the most traumatising and diYcult time for carers, but also the time with the best potential for early intervention to be successful. — Will overload carers even more—with the likelihood that more carers will themselves develop a mental illness—and thus lower carers’ quality of life. — Will cause excess stress, frustration and grief to many carers—and many avoidable tragedies. — Will overload mental health services with more crises in the short term, and more users long-term. — Insults mental-health Carers who need real involvement and support, not extra problems to have to tackle. Ev 1144 Joint Committee on the Draft Mental Bill: Evidence

For the sake of a supposedly vote-winning, “public safety”, knee-jerk reaction to a sensationalist stigma- driven press, this draft bill would backﬁre and increase precisely the factors it should be trying to reduce— namely stigma, fear of services and social exclusion. Remember that people with mental health problems, their families and friends are people too, citizens with rights, voters who I’m sure are able to react with their votes! The MPs on the Joint Committee shouldn’t be surprised if this backﬁres on you. I hope it doesn’t cost too many lives before there is sense. Philip Partridge Carer, and Co-ordinator of the Supporting Carers Better Network

Memorandum from Tom Hamilton, Maca (DMH 397) I am writing to you to provide the Joint Committee on the Draft Mental Health Bill with information which may help to answer a question which was asked in this week’s meeting. In the evidence session with Revolving Doors, NACRO and the Zito Trust, Baroness Barker asked a question about the proposed cut in entitlement to aftercare payments for patients discharged from compulsory hospital treatment to six weeks. None of the witnesses chose to answer the question, so I am writing to provide some information to the Committee. I enclose a short brieﬁng note which covers the key issues in the Bill surrounding aftercare. In addition to this brieﬁng, I would draw the Committee’s attention to the written evidence Maca has already submitted (DMH 296), and in particular to paragraphs 9–17. December 2004

Maca brieﬁng note: Aftercare payments and the Draft Mental Health Bill Under the 1983 Mental Health Act, at si 17(2), detained patients are entitled to free aftercare following discharge for as long as the local authority is satisﬁed that they need such services. The Draft Mental Health Bill proposes, at s68(2), that discharged patients will be entitled to free aftercare services for six weeks. Aftercare services may include accommodation, home support or attendance at a day centre.

Why Aftercare is Important — The purpose of aftercare is to help patients to manage ongoing mental-health problems which have been, until recently, suYciently serious to justify compulsory inpatient treatment. It should not be seen as an optional extra. — Aftercare both eases the transition of patients moving from hospital into the community, and provides vital support to prevent relapse. Charging patients for aftercare makes it more likely that they will—rationally—seek to avoid it. — Avoiding aftercare makes integration into the community after hospitalisation more diYcult, and relapse more likely. If aftercare is ineVective, the resources used on compulsory in-patient treatment may, in retrospect, be seen to have been wasted.

Reciprocity — As a point of principle, we believe that anyone who is deprived of their liberty and subjected to treatment against their will should not be expected to pay for that treatment, nor for any further treatment or care consequent on that treatment.

Engagement with Services — The level and nature of aftercare support after the six-week period is likely to be dictated by a care plan, with which the patient may not agree. The prospect of being charged for services they do not want may make patients less willing to engage with services in the ﬁrst place.

Non-Residential Orders and Aftercare — Care provided under an NRO will be provided to patients free of charge. Care which is prescribed to a patient after discharge from hospital will, after the initial six-week period, have to be paid for by the patient. — It would therefore make ﬁnancial sense for a patient to seek to receive care in the community in the form of an NRO rather than as simple aftercare, by refusing to comply with treatment. Joint Committee on the Draft Mental Bill: Evidence Ev 1145

Direct Payments — The introduction of direct payments was intended to enable service-users to purchase care services themselves. Many service-users currently purchase the after-care services to which they are entitled under s117 via direct payments. — Will service-users on beneﬁt be excluded from direct payments in order to ensure that they follow their prescribed care plan? Or will they be entitled to direct payments, with some form of sanction (perhaps an NRO) to discourage them from making their own aftercare arrangements? Maca is very concerned that the Government’s proposals to cut aftercare provision to six weeks eliminates the principle of reciprocity, makes it more likely that discharged patients will disengage from services and consequently more likely that they will relapse, creates a perverse incentive for patients to seek to be treated via Non-Residential Orders, and contradicts the Government’s support for direct payments. October 2004

Memorandum from Hull and East Yorkshire Mind (DMH 398) Hull and East Yorkshire Mind is an independent charity aYliated to Mind the National Association for Mental Health. We were formed in 1976 and are governed by a voluntary committee of mental health service users and professionals within both mental health and other fields, some committee members are both professional and mental health service users. We guard our independence as an organisation whilst adhering to the principles of Mind nationally. We provide a number of services ranging through supported housing (including a scheme for Early Intervention in Psychosis), a day service and information service, three community development initiatives and two arts projects in mental health. Overall we employ 78 staV.More to the point our organisation, committee, staV and volunteers have regular contact with mental health services, service users and carers, across the mental health spectrum. Three of our committee members have worked voluntarily for 28 years each, promoting mental health by service example. Most of our influence is exercised within the local context. However, the content of the Draft Mental Health Bill causes us to act in exception here making our views known. Substantially we agree with the views of National Mind and the Mental Health Alliance that the Bill fails to reflect the present circumstances and direction of mental health in this country, in tone and purpose it takes us back to casting the worth of the individual and the role of services in a punitive rather than positive light. We recognise the need for legislative detention, but the broad definitions here being sought threatens the basis upon which progress has and is hopefully to be made. The use of “eVects” rather than “causes” results in a catch-all scope to this legislation, only to be defined by guidance. We think this is unacceptable where matters of individual liberty are concerned. The notion of compulsory treatment including counselling, psychology and rehabilitation is far too wide and inappropriate to the practice of these services. It is clear from the Bill and the public statements of Ministers that an over-emphasis with dangerousness prevails; somehow it is believed that those thankfully rare and tragic circumstances that headline mental ill- health in the media can be squeezed out by forensic diagnosis and detention prior to events. Whilst recognising the hypothetical desirability of such a capability, this we believe to be a wholly erroneous view of the skills available within psychiatric medicine or other disciplines. Moreover, the general image, and access to services for the many, as well as the rights and liberty of those mis-diagnosed in the context of severe personality disorder, are threatened by the Government’s proposals. Similarly government’s response to service delivery issues within community care is one of compulsion for the patient. There will always be individual failings within service delivery, some clients will eschew medication leading to relapse; we do not accept that the appropriate response should be compulsion based on the wide definition set out. Again the use of compulsion for psychology and rehabilitation is inappropriate. Whilst, government clearly believes that the new Mental Health Tribunals are adequate to safeguard patients rights in those circumstances, we cannot believe that, as now, other than in rare exception decisions will be made contrary to medical authority’s Internet. Within our overall opposition to this Bill: — The periods of six months followed by twelve month periods between reviews by the MHT we regard as too long. — We very much welcome the rights of patients to refuse ECT, psychosurgery and neurosurgery. — The provision for a nominated person as opposed to relative is welcome. — As provided, we wish government to further recognise mental health needs within the criminal justice system, but the practicalities of transfer and implications for local hospital services limits potential. Again, this could be interpreted by the wider community as characterising mental health service users generally, leading to stigmatisation. Ev 1146 Joint Committee on the Draft Mental Bill: Evidence

— The withdrawal of Section 117 provision whilst arguably rescinding an anomaly fails to recognise the nature of much mental ill-health. Mental illness is not to be characterised by chronic circumstances. Some people will require residential care for an extended period as part of their rehabilitation. This proposal should be revisited. — The requirement of care and treatment plans is welcome. Much medical and social practice depends on the relationship of trust. Great eVort has been made in this country to re-cast mental health services away from the fearful regimes of the now historic institutions into welcoming and accessible, substantially community-based, professionally skilled services supported by substantial government expenditure and investment. Through the mis-perception of suVerers, the public and media, this Bill threatens to turn many trustful relationships within the wide spectrum of mental health services into one of apprehension, fear and negativity. Perceptions are key to the success of service intervention if individual suVerers are to seek help earlier rather than at the point of deterioration or crisis. British society has over the past two decades made a number of adjustments. Along with improvements in mental health services, policies to tackle prejudice and injustice on the basis of race, sexuality and gender have flowed from government as well as other quarters. As a nation we are increasingly knowledgeable and accepting of diVerence. There remains some way to go. Cultural and sexual diversity is now celebrated by the many. People with mental health problems have to a significant degree remained sidelined to these liberalising developments. It would, we venture, be unacceptable to enshrine powers relating to illegal immigration within a Race Relations Act, or discuss sexual oVences within policies aimed towards equalities for the homosexual community; yet it seems acceptable to be prejudicial where mental health is concerned. To add to the burden, present legislative exclusions of sexual deviation, drug and alcohol dependency have not been re-stated in the draft. These matters deserve attention and treatment, but should not be included by default within mental health legislation. Again the majority are being “branded” by legislative means. A new Mental Health Act surely should be a great opportunity to help include mental health suVerers within this increasingly accepting and liberal society. The opportunity to grant rights to this populous minority has not been taken. The idea of dangerousness and compulsion are being promulgated by government to the detriment of a wide range of citizens. The substantive issues within mental health are rights, justice, understanding, acceptance, and services. Not “stigmatisation” of many to protect us from the unidentifiable fowl.

In Conclusion The Draft Bill will, in our opinion, engender wider discrimination within society towards people who are vulnerable through no fault of their own. SuVerers will not seek and access the help of services as present good practice aspires. We beg you to consider this Bill in the light of what is rightfully needed for mental health services. October 2004

Further memorandum from Anselm Eldergill (DMH 399)

A NEW MENTAL HEALTH COMMISSION

Introduction A clear distinction must be drawn between maintaining and improving quality standards and maintaining legal standards. The maintenance of legal standards, and in particular observance of the rule of law and fundamental human rights, is a matter of great importance. Patients are themselves members of the public, so the law must ensure that members of the public are not unnecessarily detained, and also that they are protected from those who must necessarily be detained. Any power given to one person over another is capable of being abused. The risk of abuse is multiplied if the individual is not free to escape abuse, is incapacitated or otherwise unable to protect her/himself, or their word is not given the same weight as that of others. Children and adults with mental health problems are particularly vulnerable, and the law has usually aVorded them special protection. Joint Committee on the Draft Mental Bill: Evidence Ev 1147

This involves imposing legal duties on those with power over them, conferring legal rights on those in their power, and independent scrutiny of how these powers and duties are exercised. The eVectiveness of such schemes depends on whether, and to what extent, they are observed. Protection of this kind was withdrawn between 1959 and 1983. The era was punctuated by a series of inquiries into the ill-treatment and abuse of patients in psychiatric units, culminating in the Boynton Report on Rampton Hospital (1980). The Boynton Report recognised the need for, and recommended the re-establishment of, a specialist authority responsible for protecting the integrity of persons subject to compulsory powers under mental health legislation. This led to the creation of the Mental Health Act Commission. Since 1997, the Government has concentrated on improving the quality of health and social care. Legislation has resulted in a “root and branch” restructuring of the administration of health and social services, and many new public bodies have been created. Institutions such as the Commission for Health Improvement have clear and important functions to perform. It is diYcult to object to a programme of four-yearly independent reviews of the arrangements that trusts have made for delivering good quality health care and clinical governance. Some reforms have irritated practitioners, of which the Modernisation Agency is perhaps the most often- quoted example. It is now widely accepted that there is a need to devolve power, to be less prescriptive, to acknowledge the expertise of frontline staV, and to reduce the volume of guidance emanating from the centre. Insofar as this professional resentment is justified, it cannot be attributed to any increase in legal standards, or the rigour with which they are monitored. The maintenance of legal and constitutional standards ought not to be diluted if the problem is the bureaucratic nature of some quality assurance mechanisms. That the issue is being considered is a further expression of the historically low priority given to legal standards by the Department of Health. People who have committed no oVence have been detained for months without review, and the Commission employs only 32 of the 14,780 staV, and receives only £3 million of the £715 million public funding, allocated by it to non-provider departmental bodies and special health authorities. The draft Bill proposes significant increases in compulsory powers and the abolition of many safeguards against their improper use. The suggestion that we abandon the specialist visiting of citizens subject to compulsion cannot therefore be supported. The fact that the present Commission has not performed as well as people hoped is an argument for strengthening it, not an argument for dispensing with it. Central government must accept some responsibility for its performance in the past. It lacks independence and formal powers, has a weak remit, relies on part-time members, and is poorly funded. The standards set for mental health services in England ought to be comparable with those adopted by other European countries, and those ratified under international conventions and declarations. They are the minimum standards agreed by nations as being the baseline for countries that wish to be considered civilised in this respect. Observance of the standards agreed by all nations meeting in general assembly requires that every mental health facility is inspected by a competent and independent authority prescribed by domestic law, and with suYcient frequency to ensure that the conditions, treatment and care of patients comply with the principles. Persons with a learning disability have a right to a qualified guardian, and disabled persons must be protected against exploitation and all treatment of an abusive or degrading nature. Observance of draft recommendations agreed by the Committee of Ministers will (unless amended) require the existence of an independent and adequately funded authority with responsibility for the implementation of mental health legislation. The functions of this authority should include setting and monitoring standards in relation to the implementation of the legislation; visiting and inspecting premises used to care for people suVering from mental disorder, to establish their suitability; meeting privately with patients subject to mental health legislation; having access to their medical and clinical files; receiving complaints and ensuring that they are dealt with appropriately; reviewing any restrictions on rights of communication; ensuring that relevant professional obligations and standards are met; ensuring that statistics on the use of the legislation are collected systematically; providing an annual report to the relevant Minister; advising her/him on the conditions and facilities appropriate for such care; ensuring that the Minister and those responsible for patients respond to reports and questions raised during visits; ensuring that follow-up action is taken. The authority should be notified of the deaths of persons subject to involuntary placement or treatment, and have power to undertake or order their independent investigation. It is important not to minimise the onerous nature of functions that must be performed when determining the best method of monitoring and enforcing these legal standards. Ev 1148 Joint Committee on the Draft Mental Bill: Evidence

The nature and extent of the functions to be performed in order to protect persons who are incapacitated, vulnerable or liable to compulsion makes it impractical for “service quality commissions” to perform them. The performance by the CHI of their own important functions would be impaired if they were required to undertake such a task. The following considerations, in particular, dictate the continuation of a specialist commission: the number and range of persons who will liable to compulsion or formal legal procedures under the new legislation; the extended powers of compulsion in the community; the number of incapacitated people; the reduction in other safeguards for people subject to compulsion; the consequences of giving mental health tribunals new functions; and the need to perform some of statutory functions which presently remain unallocated. This is a specialised area requiring a specialist public body.

Commission’s Functions Having regard to English and international constitutional standards, the following functions ought to be performed by a Mental Health Commission:

Legal Standards and Functions of a Specialist Commission

Keep the operation of the law under review To keep under review the exercise of the powers and duties exercisable under the Mental Health Act, the implementation of the Human Rights Act 1998 in respect of incapacitated patients and patients subject or liable to compulsion, and the implementation of any international legal standards or principles prescribed by regulations. Wherever possible, the Mental Health Act must now be applied in a manner consistent with Convention rights, so that the two documents cannot be separated. The Minister is given a discretion to set internationally agreed standards without the need for primary legislation.

Legality of compulsion To scrutinise all statutory documents completed by or under the Act that are received by the Commission, to advise those furnishing them of any irregularities, and to correct or amend them where appropriate and in whatever way is deemed appropriate. This minimises the need for, and distress of, expensive judicial proceedings. It duplicates the power currently possessed by the Mental Welfare Commission for Scotland, and possessed by the Board of Control prior to 1959. A Commission can only monitor the Act, and in particular the use of powers in the community, if it is notified when compulsory powers and changes in the patient’s status. Having been notified that a person is subject to compulsion, the Commission would write to the patient, with an information leaflet, following up with contact by telephone.

Visiting of patients Unless the patient objects, whenever requested by a person or body speciﬁed in regulations, to review the care and treatment of an incapacitated patient or a patient subject to compulsion under the Act. Such regulations to designate the following persons and bodies: the patient; a carer; the Secretary of State; the National Institute for Mental Health in England; the National Patient Safety Agency; an NHS body; a local authority overview and scrutiny committee; the Health Service Commissioner, Parliamentary Commissioner, or Local Authority Commissioner; a Patients Forum; the Commission for Patient and Public Involvement in Health; the Commission for Health Improvement; the National Care Standards Commission; certain voluntary agencies (MIND, the NSF, SANE).whenever requested by a patient, a carer or by a person or body speciﬁed in regulations, to visit any incapacitated patient or any patient subject to compulsion under the Act. The Commission will focus on individuals.

Visiting of hospitals Whenever reasonably requested by a person or body speciﬁed in regulations, to review the way in which the Mental Health Act is being applied in respect of incapacitated patients or patients subject to compulsion under it by any person, group of persons, establishment or body. Such regulations to designate the following persons and bodies: the patient; a carer; the Secretary of State; the National Institute for Mental Health in England; the National Patient Safety Agency; an NHS body; a local authority overview and scrutiny committee; the Health Service Commissioner, Parliamentary Joint Committee on the Draft Mental Bill: Evidence Ev 1149

Commissioner, or Local Authority Commissioner; a Patients Forum; the Commission for Patient and Public Involvement in Health; the Commission for Health Improvement; the National Care Standards Commission; certain voluntary agencies (MIND, the NSF, SANE). The Commission will focus on individuals. There will no longer automatically be periodic visiting of every hospital or community provision. Any local reviews will be in response to identiﬁed need. These reviews could include the way in which crisis teams and the police are using their powers in patients’ homes or other community settings.

Ill-treatment, neglect To review any case where it appears there may be ill-treatment, neglect in care or treatment, or the improper detention, compulsion or supervision of any person who may be suVering from mental disorder; and, where appropriate, to undertake or order their independent investigation. An international standard, and a power possessed by the other United Kingdom Commissions. Where the Commission is told that a patient is not being properly cared for or supervised in the community, it can investigate. It can give directions for remedying the deﬁcits if the patient or other persons are at risk of harm.

Patient deaths, harm to patients To review the circumstances surrounding the death or physical harm of any person of persons subject to compulsion; and, where appropriate, to undertake or order their independent investigation. An international standard, and an obligation of the state under Article 2 of the European Convention. The public interest requires that the public know—and public services perform no public service when they manage what the public know.

Use of solitary conﬁnement or restraint To review, and where deemed appropriate to order the termination of, any use of solitary conﬁnement (seclusion) and mechanical restraint. An important power, previously possessed by the Board of Control. There are patients who have been secluded for as long as 17 years.

Restrictions on right to communicate To review, and where deemed appropriate to order the termination of, any restrictions placed on patients’ rights to communicate with others. A requirement of the European Convention.

Prosecution of oVences To investigate and prosecute oVences under the Act (ill-treatment, neglect, etc). The present system involves the Commission investigating possible oVences and local authorities prosecuting them, and is understood by neither. This restores the pre-1959 position.

Code of practice To publish a code of practice on the Act.

Annual report To publish an annual report.

Saving provision To perform such other functions in relation to mentally disordered persons as may be prescribed by regulations.

Possible Functions Release of those subject to unlawful compulsion At their discretion, to order the release of any unrestricted patient who is unlawfully detained (power exercisable only by a legal member). This provision minimises the need for, and distress of, expensive judicial proceedings. It duplicates the power currently possessed by the Mental Welfare Commission for Scotland, and possessed by the Board of Control prior to 1959. Ev 1150 Joint Committee on the Draft Mental Bill: Evidence

Appeals To determine any matters or points of law concerning statutory powers and duties referred to it by mental health tribunals or prescribed bodies (health service bodies, social services authorities, registered independent providers of certain descriptions). It is safe to assume that a signiﬁcant number of tribunal orders will be materially irregular during the ﬁrst few years after the new Act comes into force. This provision minimises the need for, and distress of, expensive judicial proceedings. Advisory Duty to advise the Secretary of State, a health service body or a local authority on any matter arising out of or under the relevant mental health statute. The Commission could advise service providers on legal issues. This is a valuable service, which is likely to be welcomed. Non-Statutory Functions Training Power to provide training on matters within its remit, and to charge for such training. Publications Power to charge for publications Powers General powers As for CHI, but appointments, reappointments, and powers of inquiry and investigation not subject to Ministerial control. Interviews and access Unlimited access to patients’ notes and statutory documents. Power to interview and examine any patient in private. Directions Duty on service providers to take steps in accordance with advice given by the Commission, to notify it of the steps taken, and to comply with the requirements of notices served by it. Functions of Other Commissions and Public Bodies Quality commissions (CHI, etc) To review, and where appropriate investigate, the suitability and quality of premises used for providing health or social care to persons suVering from mental disorder. To review, and where appropriate investigate, the general quality of health and social care services provided to persons suVering from mental disorder. Duty of joint working. For example, CHI members may participate in reviews or investigations undertaken by the Mental Health Commission, and vice-versa. If requested to do so by the Mental Health Commission, CHI shall investigate the suitability and quality of premises used for, or services provided to, persons suVering from mental disorder. Statutory duty on the Mental Health Commission to report to CHI any concerns about the quality of mental health premises or services.

Court of Protection To exercise protective functions in respect of mentally disordered persons who may be incapable of adequately protecting their persons or their interests. Duty to inquire into any case where it appears that the property of a person who may be suVering from mental disorder may be exposed to loss or damage, by reason of that mental disorder.

Conclusion The existence of a specialist commission is the most eVective way of ensuring the statutory powers are not abused. Such protections need to be strengthened, not diluted. 1. The retention of a specialist Mental Health Commission is the most eVective and eYcient way of protecting the rights and integrity of persons who by reason of mental disorder are subject to compulsion or incapacitated. Joint Committee on the Draft Mental Bill: Evidence Ev 1151

ANew Commission For those who accept the need for a specialist Mental Health Commission, the issue becomes what form it should take, and what particular functions it should perform. These matters are dealt with under the following headings: —Name — Constitution — Functions — Membership — Funding — Ethos — Supervision

Name There is a case for disestablishing the Mental Health Act Commission and starting again, so that the new arrangements are not undermined at the outset by any negative perceptions of the existing Commission. The MHAC would brieﬂy co-exist with the new Commission, during which time it would complete complaints investigations and other work in progress. The new Commission would be “baggage-free”. The name of the Commission should reﬂect the fact that it is concerned with legal standards, rather than quality standards. The enactment of the Human Rights Act 1998, and the need to deal with seclusion, ill- treatment, and so forth, means that its remit would be slightly broader than simply policing the new Act. Hence, retaining the existing name would be misleading in any case. A name such as the “Mental Health Law Commission” may be suitable.

Constitution The critical constitutional issue is the extent to which any new Commission will be independent of central government. The protection of individuals’ legal rights is a constitutional matter, and ought not to be subject to political considerations or pressures. Many people believe that the Commission’s performance has been aVected by tight political control, characterised by the appointment of a former Home OYce civil servant as its chairperson at a time when the Act is being reviewed. There has sometimes been a fear among members that constructive, sensible, criticism that is evidence-based may lead to non-reappointment. The Commission’s performance has been undermined in more general ways by its status as a special health authority. This has rendered it subject to paper-heavy procedures devised for health service bodies, a class to which it belongs in name only. The most suitable arrangement may be for a new Commission to report directly to Parliament. Failing this, it should be a non-departmental public body, with a large measure of self-governance and independence guaranteed by regulations. Provided it is independent, success depends more on the skill and competence of its members and oYcers than on the formal structure.

Functions The functions that the Commission would perform have already been described. In essence, a new Mental Health Law Commission would be concerned with legal standards, and bodies such as CHI would focus on service quality.

Membership There is a lack of evidence that the many reorganisations of NHS structures since 1973 have been eVective in terms of improving performance at the point of delivery. That structural reforms have had little positive impact is not surprising if it is true that people make systems work, systems don’t make people work (the “Marxist fallacy”). Structures can be radically changed and still have no impact on what is delivered to patients. Given that health care is delivered diVerently around the world, common sense suggests that many systems can work, if they are adequately resourced, and those providing the services are properly trained, competent and professional. There is no one right way to care for patients or run a hospital. Ev 1152 Joint Committee on the Draft Mental Bill: Evidence

According to this view, in any professional undertaking requiring the exercise of expertise and judgement, the key is recruiting the best, and then trusting and utilising their professional expertise and judgement. Service failure is most often due to under-funding at several levels. It starts at school, and finishes with a failure to recruit or train the best, and bureaucratic structures to manage staV who cannot be relied on to work independently. If this is correct, the success or failure of a new Commission will turn mainly on its membership and, more particularly, recruitment. The existing commission has been under-funded, with the consequence that rates of pay are low, it has been impossible to recruit or engage leading experts, and the part-time membership has ended up being enlarged, and to some extent casualised, in order to increase output. This has led in the past to diminished professional standing and a failure to adhere to the statutory remit. It is probably impossible, in any case, properly to co-ordinate the eVorts of 150 part-time Commissioners across a geographical area as large as England and Wales. The remedy appears to be an expert, specialist Commission, mainly staVed by full-time practitioners. Members’ posts should be senior appointments, requiring exceptional personal qualities, and strong oral, written and analytical skills. Salaries should be set at a level that is attractive to leading members of the relevant professions. Having said that, the overriding aim must be to attract the best. Where necessary, short-term secondments, the employment of expert practitioners on a part-time basis, and flexible arrangements that allow individual practitioners to be instructed to undertake one-oV projects or cases should be possible. Because the new Commission will focus on legal standards—and, of course, the Mental Health Act Commission itself should be concentrating on Mental Health Act powers and duties, and not function as a National Health Service Commission—the composition of its membership should reflect this remit. Furthermore, if it is to be an expert body, it is not practical or desirable to have a non-professional management board. One cannot have those with expertise being led and instructed by non-experts, as is presently the case. Likewise, it is not practical or desirable for the Commission to have a lay chair, any more than it is for advisory non-departmental public bodies to have one. The members, and those seeking the Commission’s advice, must respect the authority and competency of the leadership to speak on legal matters within the Mental Health Law Commission’s remit. Further still, it is inappropriate to appoint a person with a non-service background to the Chief Executive position. That position ought to be filled by a mental health services manager with a relevant professional background (nursing, medicine, etc). Here too, the Chief Executive must have the respect of the members. Having regard to these considerations, the suggestion is that: — The chairperson should be a solicitor or barrister, because the Commission’s remit is the monitoring and enforcing of legal standards. — The Commission’s performance should be scrutinised by an overview and scrutiny committee that reports to the Secretary of State. — The management board should consist of the Commissioners who hold executive positions (chairperson, chief executive, medical director, legal director, nursing director, social care director, finance director); an equal number of Commissioners who do not hold executive positions; employed oYcers of the Commission; and the chairperson of the overview and scrutiny committee. — Representatives of the management board should meet quarterly with the overview and scrutiny committee, whose members should have full access to Commission documents, and be able to attend meetings and patient visits. — The Chief Executive should have managerial experience in mental health services and a relevant professional background. — The Commission’s executive oYcers (who would include legal executives) should manage caseloads.

Funding A rough estimate of some of the costs involved in adopting this model is set out in the spreadsheet below. A £2.5 million budget would allow for 42 “whole-time equivalent” members, organised into four regional teams: Joint Committee on the Draft Mental Bill: Evidence Ev 1153 £44,000 £44,000 £44,000 £44,000 £45,000 £44,000 £212,000.00 £143,000.00 Y cer £55,000 TEAM D (10) No High Security Hospital Incapacity budget Budget of £776,000 % MEMBERS’ BUDGET OF £2,489,000 £180,000 % £44,000 Commissioner £44,000 Social worker £44,000 Commissioner £44,000 Psychologist £44,000 Specialist £80,000 Senior Legal O £44,000 NURSING DIRECTOR £80,000 £45,000 % £176,000.00 £168,000.00 Medical budget of £936,000 % TEAM C (10) Includes High Security Hospital 40 FULL-TIME MEMBERS) Legal Budget of £597,000 ! % Incapacity budget Incapacity second opinions) FULL-TIME CHIEF EXECUTIVE £90,000 ! ! £44,000 Commissioner £44,000 Commissioner £44,000£44,000 Psychologist Specialist £44,000 Nurse £55,000 LEGAL DIRECTOR £45,000 £212,000.00 £143,000.00 CHIEF EXECUTIVE ! Y cer LEGAL COMMISSIONERS (12) TEAM B (10) Includes High Security Hospital Incapacity budget FULL-TIME CHAIRMAN £90,000 MEDICAL COMMISSIONERS (12 £44,000 Commissioner £44,000 Commissioner £44,000 Specialist £44,000 SOCIAL CARE DIRECTOR £80,000 Social worker £44,000 Psychologist £45,000 £44,000 Nurse £176,000.00 £143,000.00 OTHER TEAM MEMBERS (16) (4 Nurses, 4 Social workers, 4 Psychologists, 4 X OTHER Specialists) Y cer £55,000 Senior Legal O TEAM A (10) COMMISSION MEMBERSHIP OF 42 (CHAIRMAN Includes High Security Hospital MEDICAL DIRECTORConsultant PsychiatristSpecialist £90,000 RegistrarIncapacity budget £70,000Budget Consultant Forensic Psychiatrist £70,000 Consultant Psychiatrist £44,000 Consultant Forensic Psychiatrist Specialist Registrar £70,000Senior Legal O Commissioner £70,000 Consultant Psychiatrist £249,000.00 Consultant Psychiatrist £70,000 £44,000 Specialist Registrar £70,000 Consultant Psychiatrist £70,000 £44,000 Specialist Registrar £229,000.00 £44,000 £229,000.00 £229,000.00 Specialist Budget Commissioner Psychologist Budget Nurse Social worker Ev 1154 Joint Committee on the Draft Mental Bill: Evidence

STRUCTURE OF THE MENTAL HEALTH LAW COMMISSION

MANAGEMENT BOARD (16) Chairman (lawyer) Chief Executive DEPARTMENT Legal Director OF HEALTH Me dical Dire ctor Social Services Director Nursing Director Finance Director Overview & Chairperson of the Overview & Scrutiny Committee Scrutiny Committee Six members elected by the Commissioners Two members elected by the officers

CHIEF EXECUTIVE' S OFFICE (Execution of the management board's decisions) Finance Director Statistician Chief IT Officer Human Resources Officer

REGION 1 (10 members) REGION 2 (10 members) MEDICAL DIRECT OR 3 Legal members SOCIAL WORK DIRECT OR 2 other Psychiatrists 3 Legal members Nurse 3 Psychiatrists Social worker Nurse Psychologist Psychologist Specialist (e.g. occupational therapist) Specialist (e.g. probation officer)

REGION 1 (10 members) REGION 1 (10 members) LEGALDIRECT OR NURSING DIRECTOR 2 other legal members 3 Legal members Nurse 3 Psychiatrists 3 Psychiatrists Social worker Social worker Psychologist Psychologist Specialist (e.g. senior police officer) Specialist (e.g. academic)

On top of this budget of £2.5 million, the Commission would need an additional sum to remunerate overview and scrutiny committee members; to employ a number of legal executives for each team; and to engage non-members on a case-by-case basis (this will be desirable where geographical remoteness, speed of response, or the need for some special skill make it necessary to go outside the Commission). According to the MHAC’s Eighth Biennial Report, the Commission spent £765,000 on Commission members’ fees and £711,000 on second opinion medical fees, totalling just under £1.5 million. There were around 15,000 requests for second opinions (about 40 per day at an average cost per opinion of £47.40). The model suggested here allows for 42 “whole-time equivalent” members organised into four regional teams. This allows for up to 37,000 annual patient contacts; 7,410 Commissioner hospital visiting days; and 1755 other Commissioner days (inquests, conferences, research, brieﬁngs, practice notes, website maintenance, responses to Government papers, corporate work, etc). Each commissioner would be responsible for around 1,100 incapacitated patients and 325 detained patients at any given time; and an incalculable number of persons subject to new community powers.

Ethos

The Commission would aim to establish a reputation for competence, independence and thoroughness of case review. The Commission would adopt a collegial approach to its work, with a high level of interaction between members and staV in support of each other. Members and staV would work on cases electronically. The Commission’s IT systems would provide electronic access to reference materials and case documentation, which could be reviewed using data-mining facilities and other specific IT casework tools. Commission members would have four key roles: advising and mentoring case review managers in the review of individual cases; undertaking casework; deciding the final outcome of cases; fulfilling certain corporate responsibilities. Members would assist the management board in developing the strategic direction of the Commission, and ensuring that it fulfils its duties within the statutory framework, available resources, and the limits of its authority. Members would be expected to abide by a written code of conduct. Joint Committee on the Draft Mental Bill: Evidence Ev 1155

Supervision The new Commission should be accountable to the Audit Commission in the area of ﬁnancial management and value for money. In terms of its statutory remit, it would be scrutinised by the overview and scrutiny committee made up of independent experts and representatives of services, patients and carers.

Drafting and Detail The following is a draft of how the main relevant sections of a new Act might look if based on the above model.

Mental Health Law Commission 1.—(1) There shall be established a body to be called the Mental Health Law Commission (in this Act referred to as “the Commission”). (2) The Commission shall be a body corporate and shall have a common seal. (3) The Commission shall exercise: (a) the functions conferred on it by this Act; and (b) such other functions relating to or connected with the law relating to persons suVering from mental disorder as the Secretary of State may by order prescribe. (4) The Commission shall consist of: (a) between 30 and 45 full-time commissioners, of whom at least 12 shall be women, at least 12 solicitors or barristers (in this Act referred to as “legal commissioners”) and at least 12 registered medical practitioners (in this Act referred to as “medical commissioners”); (b) any Honorary Commissioners appointed under subsection (12); and (c) up to 20 other Commissioners. (5) No person who for the time being is employed in the civil service of the Crown or who is a member of a mental health tribunal shall be appointed to the Commission. (6) The Secretary of State shall appoint for the Commission a chairman (who shall be a solicitor or barrister), legal director, medical director, social care director, and nursing director. (7) The persons so appointed shall thereupon become the first members of the Commission and together form an interim management board, holding their respective oYces for a period of six years commencing from the day on which the Commission becomes operational. (8) The remaining Commissioners, who shall include a Chief Executive and a finance director, shall be appointed by the interim management board, and shall hold oYce for a period of five years commencing from the day on which the Commission becomes operational. (9) Following the appointment of a Chief Executive and a finance director, the Commission shall at all times have a Chairman (who shall be a solicitor or barrister); a Chief Executive; a legal director; a medical director; a social care director; a nursing director; and a finance director. (10) When deciding who to appoint as Commissioners, the Secretary of State, the interim management board and the Commission Management Board shall have regard only to the achievements and standing of candidates in their respective professions; their integrity; their personal qualities; their oral, written and analytical skills; their competency; their knowledge and understanding of mental health law; and their ability to discharge the Commission’s functions without supervision. (11) When deciding who to appoint as Commissioners, the Secretary of State, the interim management board and the Commission Management Board shall not have any regard to the mere fact that a candidate has held a particular post or position in the past. (12) The Chairman may invite any person who he believes has a record of outstanding achievement in his professional field to apply for appointment as an Honorary Commissioner and may personally recommend their appointment to the interim management board or the Commission Management Board. (13) Honorary Commissioners shall not be under any obligation to discharge any of the Commission’s functions but may do so by agreement with the Chairman, the Chief Executive or the Commission Management Board. (14) During any Commissioner’s term of oYce, tenure of oYce may only be terminated on the ground of incompetence or gross misconduct. (15) The Commission may pay to commissioners such remuneration, and arrange or provide for the payment of such pensions, allowances or gratuities to or for them, as it considers appropriate; and diVerent provision may be made for diVerent cases or diVerent classes of case. (16) Schedule 1 shall have eVect in relation to the Commission. Ev 1156 Joint Committee on the Draft Mental Bill: Evidence

Commission Management Board 2.—(1) Within three months of the day on which all of the remaining Commissioners have been appointed in accordance with section 1, a permanent Management Board (referred to in this Act as the “Commission Management Board”) shall be established by the interim management board. (2) The Management Board shall consist of: (a) The Chairman (who shall chair the board); (b) The Commission’s six executive oYcers, being its legal director, medical director, social care director, nursing director, ﬁnance director, and Chief Executive. (c) Six other commissioners appointed by the Overview and Scrutiny Committee. (d) Two employees of the Commission who are not also Commissioners, appointed by the Overview and Scrutiny Committee. (e) The chairman of the Overview and Scrutiny Committee. (3) The Commission Management Board shall: (a) appoint all subsequent chairmen, chief executives, legal directors, medical directors, social care directors, nursing directors and ﬁnance directors; (b) appoint all subsequent Commissioners; (c) take all decisions as to whether to terminate a Commissioner’s term of oYce on the grounds of incompetence or gross misconduct; (d) perform such other functions as may be prescribed by regulations; (e) conduct its business in accordance with standing orders prescribed by regulations. (4) The Commission Management Board may arrange for the discharge of any of their functions by the Chief Executive or by a member or employee of the Commission, but not by a committee or sub-committee otherwise that when making appointments.

Functions of the Chief Executive 3.—(1) The Chief Executive of the Commission shall seek to ensure the implementation of decisions made by the interim management board, the Commission Management Board, and by persons authorised to make decisions on their behalf. (2) The Chief Executive shall seek to ensure that the Commission’s business is conducted with the minimum amount of regulation and that providers of legal, health and social care services are not subject to unnecessary regulation. (3) The Chief Executive shall seek to promote within the Commission standards of professional competence, transparency of process and decision-making, objectivity, integrity, openness and independence of action. (4) The Chief Executive shall seek to ensure that employees of the Commission are well treated and within resources that they receive those periodic rewards for good work, perquisites and other gestures of recognition that an employee of a non-public body of equivalent size and resources might reasonably expect to receive. (5) The Chief Executive may arrange for the discharge of any of his functions by a member or employee of the Commission, but not by a committee or sub-committee.

Overview and Scrutiny Committee 4.—(1) Within one month of the day on which all of the remaining Commissioners have been appointed in accordance with the foregoing section, an Overview and Scrutiny Committee shall be established by the interim management board. (2) The Overview and Scrutiny Committee shall consist of: (a) Five solicitors or barristers appointed by the Secretary of State as having special expertise and experience in the ﬁeld of mental health law or human rights. (b) Five persons who are medical practitioners, nurses or social workers, appointed by the Secretary of State as having special expertise and experience in the provision of mental health care to persons suVering from mental disorder. (c) Five persons appointed by the Secretary of State, to represent respectively the interests of patients, carers, the public, and providers of health and social care. (3) The Overview and Scrutiny Committee shall: (a) appoint certain members of the Commission Management Board, as provided for by paragraphs 2(2)(c) and (d) above, which includes making appointments ﬁlling any vacancies; Joint Committee on the Draft Mental Bill: Evidence Ev 1157

(b) scrutinise the way in which the Commission performs its statutory functions, seeking at all times to ensure that it performs them with a minimum amount of regulation; (c) seek at all times to assist the Commission in the way in which it performs its functions and to adopt a constructive role. (d) prepare a biennial report on the Commission’s performance of its statutory functions, which shall be published by the Commission as an appendix to its biennial report. (4) Members of the Overview and Scrutiny Committee may inspect and copy any documentation held by Commissioners that relates to the performance of their functions. (5) The Overview and Scrutiny Committee may arrange for the discharge of any of its functions by a member of the committee, but not by a sub-committee. (6) Members of the Overview and Scrutiny Committee shall hold oYce for such periods and subject to such terms and conditions as the Secretary of State may determine, and vacancies on the committee shall be ﬁlled by him.

Employees and other appointments 5.—(1) The Chief Executive shall employ a statistician and a person who shall be responsible for information technology and the processing of electronic information. (2) The Chief Executive may appoint such other employees as he considers appropriate on such terms and conditions as he determines, and such determinations may make diVerent provision for diVerent cases or diVerent classes of case. (3) The Commission Management Board (and any person authorized by it, including the Chief Executive) may arrange for such persons as it thinks ﬁt to assist the Commission in the discharge of any of its functions, and any persons so authorized shall be regarded as a Commissioner and have the same powers and duties as a Commissioner when performing the functions they are authorized to perform. (4) Arrangements made under the preceding subsection may provide for the payment of remuneration and allowances to such persons. (5) The Secretary of State may provide for the Commission such oYcers and servants and such accommodation as it may require.

Functions of the Commission 6.—(1) It shall be the duty of the Commission— (a) to keep under review: (i) the exercise of the powers and duties exercisable under the Mental Health Act; (ii) the implementation of the Human Rights Act 1998 in respect of incapacitated patients and patients subject or liable to compulsion; (iii) the implementation of any international legal standards or principles prescribed by regulations. (b) to scrutinise all statutory documents completed by or under the Act that are received by the Commission, to advise those furnishing them of any irregularities, and to correct or amend them where appropriate and in whatever way is deemed appropriate. (c) unless the patient objects, whenever reasonably requested by a person or body specified in regulations, to visit and/or review the care and treatment of any incapacitated patient or patient subject to compulsion under the Act. (d) whenever reasonably requested by a person or body specified in regulations, to review the way in which the Mental Health Act is being applied in respect of incapacitated patients or patients subject to compulsion under it by any person, group of persons, establishment or body. (e) to review any case where it appears there may be ill-treatment, neglect in care or treatment, or the improper detention, compulsion or supervision of any person who may be suVering from mental disorder; and, where appropriate, to undertake or arrange for their independent investigation. (f) to review the circumstances surrounding the death or physical harm of any person or persons subject to compulsion; and, where appropriate, to undertake or arrange for their independent investigation. (g) to bring to the attention of the Secretary of State, any court, health service body, local authority, company, person or body of persons the facts of any case in which in the opinion of the Commission it is desirable for the person notified to exercise any of their functions to secure the welfare of a patient suVering from mental disorder by— (i) preventing his ill-treatment; (ii) remedying any deficiency in his care or treatment; Ev 1158 Joint Committee on the Draft Mental Bill: Evidence

(iii) terminating his improper detention; or (iv) preventing or redressing loss or damage to his property. (h) where it appears to them that there is no legal authority for an unrestricted patient’s formal assessment or compulsory care or treatment and the period for rectifying the error or omission has expired, to formally declare by use of a prescribed form that the application, order or direction is of no legal eVect. (i) to determine any matters or points of law concerning statutory powers and duties referred to it by mental health tribunals or prescribed bodies (health service bodies, social services authorities, registered independent providers of certain descriptions). (j) to review, and where deemed appropriate to order the termination of, any use of solitary conﬁnement or restraint. (k) to review, and where deemed appropriate to order the termination of, any restrictins placed on patients’ rights to communicate with others. (l) to investigate alleged oVences under Part IX of the Act (ill-treatment, neglect, etc). (m) to advise any person or body of persons on matters connected with its statutory functions, but only if the Commission considers that the person or body of persons seeking the advice cannot aVord professional legal advice or the matter referred to it is unusually diYcult. (n) to publish a code of practice on the Act. (o) to publish a biennial report which describes the way in which it has performed its statutory functions. (2) The duties imposed by paragraphs (h) and (i) of subsection (1) shall be exercised only by a Commissioner who is a solicitor or barrister.

Regulations With regard to paragraphs (c) and (d) of subsection (1), the regulations would designate the following persons and bodies: the patient; a carer; the Secretary of State; the National Institute for Mental Health in England; the National Patient Safety Agency; an NHS body; a local authority overview and scrutiny committee; the Health Service Commissioner, Parliamentary Commissioner, or Local Authority Commissioner; a Patients Forum; the Commission for Patient and Public Involvement in Health; the Commission for Health Improvement; the National Care Standards Commission; certain voluntary agencies (MIND, the NSF, SANE).

Powers and sanctions 7.—(1) The Commission may institute proceedings for any oVence under Part IX of this Act, but without prejudice to any provision of that Part of the Act requiring the consent of the Director of Public Prosecutions for the institution of such proceedings. (2) For the purpose of any review or investigation under section 6 of this Act, (a) the Mental Health Law Commission may, by notice in writing, require any person to attend at the time and place set forth in the notice to give evidence, but no person shall be required in obedience to such a notice to go more than 10 miles from his place of residence unless the necessary expenses of his attendance are paid or tendered to him. (b) a person giving evidence shall not be required to answer any questions which he would be entitled, on the ground of privilege or conﬁdentiality, to refuse to answer if the inquiry were a proceeding in a court of law. (c) the proceedings shall have the privilege of a court of law. (d) the chairman of the review or investigation or the person holding it may administer oaths to witnesses and examine witnesses on oath, and may accept, instead of evidence on oath by any person, evidence on aYrmation or a statement in writing by that person. (3) Where in the exercise of its functions under section 6 the Commission has advised any body or person on any matter or brought any case or matter to the attention of any body or person, the Commission may by notice in writing addressed to that body or person require that body or person, within such reasonable period as the Commission may specify in the notice, to provide to the Commission such information concerning the steps taken or to be taken by that body or person in relation to that case or matter as the Commission may so specify; and it shall be the duty of every body or person on whom a notice is served under this subsection to comply as soon as practicable with the requirements of that notice. (4) Where a notice has been served under subsection (6), and the Commission is of the opinion that the case or matter referred to in the notice has not been adequately dealt with by that body or person, the Commission may by notice serve on that body or person a further notice in a form prescribed by regulations Joint Committee on the Draft Mental Bill: Evidence Ev 1159

requiring it to take such steps as are speciﬁed in the notice within the time there speciﬁed; and it shall be the duty of the body or person on whom a notice is served to comply as soon as practicable with the requirements of that notice. (5) Failure to comply with a notice issued under subsection (7) shall be a criminal oVence. (6) Subsections (3) and (4) do not apply to the Mental Health Tribunal or to the Court of Protection, and are not to be interpreted as empowering the Commission to require that an application is made in respect of a patient under Part II of this Act, or that a patient is made subject to any other form of detention or restraint. (7) Where, in the course of carrying out any of their functions, the Commission form the opinion that a restricted patient should be absolutely discharged, conditionally discharged, transferred to another hospital or granted leave of absence, it shall recommend accordingly to the Secretary of State. (8) For the purposes of carrying out its functions under this Act, any Commission or person authorized by the Commission may: (a) inspect any premises used to treat, care for or to restrain incapacitated persons or persons subject to compulsion under this Act; (b) interview, and if a registered medical practitioner or nurse examine, any patient in private. (c) require the production of and inspect and copy any records relating to the compulsion, care or treatment of any person who is or has been a patient in a hospital, or who is or has been subject to formal assessment, restrictions, or a care and treatment order. (9) Where under section 6(1)(h) the Commission has formally declared that an application, order or direction is of no legal eVect, the patient shall be released from any compulsion or restraint within 24 hours of receipt of the notice by the responsible authority unless during that period the clinical supervisor furnishes the Commission with a notice in the prescribed form stating that he intends to seek a fresh application, order or direction. (10) Where a notice is served by the clinical supervisor under the foregoing subsection, the patient shall be released after the expiration of 72 hours from the time the Commission’s notice was received unless he is by then subject to a new application, order or direction made under the Act. (11) A matter or point of law may only be referred to the Commission by a mental health tribunal under section 6(1)(i) with the consent of the tribunal, the patient, the applicant (if not the patient), the Secretary of State (in restricted cases) and the responsible authority; and any decision made by a Commissioner following such a referral, and any directions given by him consequential to his decision, shall be binding on the parties unless the tribunal or one of the parties serves notice within 7 days of their receipt of it of their intention to restate the point of law for the High Court’s determination.

Financial provisions 8.—(1) There shall, in respect of each financial year, be paid by the Secretary of State to the Commission such sums as the Treasury may determine towards the expenditure incurred by the Commission in the exercise of its functions in that year. (2) Payments under paragraph (1) shall be made at such times and in such manner and subject to such conditions as to records, certificates or otherwise as the Treasury may determine. (3) It shall be the duty of the Commission so to perform its functions as to secure that the expenditure attributable to the performance of its functions in each financial year does not exceed the aggregate of the amounts received by the Commission under paragraph (1) in respect of that year.

Accounts and audit 9.—(1) The Commission shall— (a) keep, in such form as the Secretary of State may direct, accounts of all moneys received or paid out by it; (b) prepare, in respect of each ﬁnancial year, a statement of accounts in such form as the Secretary of State, with the approval of the Treasury, may direct. (2) The accounts of the Commission shall be audited by auditors appointed by the Secretary of State. (3) The statement of accounts prepared under paragraph (1)(b) together with the report of the auditors thereon shall be sent to the Secretary of State. (4) The Secretary of State shall send to the Audit Commission a copy of the statement of accounts and auditors’ report received under paragraph (3). (5) The Audit Commission— (a) shall examine the statement of accounts and auditors’ report received under paragraph (4), certify the statement of accounts and prepare a report on the results of his examination; Ev 1160 Joint Committee on the Draft Mental Bill: Evidence

(b) may, for the purposes of his examination, examine all accounts of the Commission and any records relating thereto. (6) The Secretary of State shall lay before Parliament a copy of the statement of accounts of the Commission certified by the Audit Commission together with a copy of his report and of the auditors’ report thereon. (7) The Secretary of State may give directions generally with respect to the audit of accounts under paragraph (2) and, in particular, may confer on the auditor— (a) such rights of access to, and production of, books, accounts, vouchers or other documents as may be specified in the directions; and (b) such right, in such conditions as may be so specified, to require from any member or oYcer, or former member or oYcer, of the Commission such information relating to the aVairs of the Commission as the Secretary of State may think necessary for the proper performance of the duty of the auditor.

Mental Health Act Commission 10.—(1) The Mental Health Act Commission shall complete any complaints investigations and other work that is in progress on the day on which the Mental Health Law Commission becomes operational but shall not otherwise exercise any of the functions conferred on it by the Mental Health Act 1983. (2) The Secretary of State may give the Mental Health Act Commission directions as to the completion of complaints investigations and other work in progress. (3) The Mental Health Act Commission shall cease to exist on a date determined by the Secretary of State.

Solitary confinement and restraint 11.—(1) A patient shall not be placed or kept in solitary confinement or be subjected to any form of restraint unless either— (a) his solitary confinement or restraint is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others; or (b) his being placed or kept in solitary confinement is a medical treatment which has been authorised by a certificate in writing given under section 58(3) above. (2) One of the managers of a hospital or a member of the Mental Health Law Commission may at any time direct that a person who is being kept in solitary confinement otherwise than under subsection 1(b) above shall immediately cease to be so confined and, where he does so, he shall record his reasons for doing so in writing. (3) One of the medical Commissioners may at any time direct that a person who is being kept in solitary confinement under subsection 1(b) above shall immediately cease to be so confined and, where he does so, he shall record his reasons for doing so in writing. (4) A full record in the form prescribed by regulations of every case of solitary confinement and restraint shall be kept from day to day and a copy of the records and certificates made under this section shall be sent to the Mental Health Commission at the end of every quarter. (5) In this section— “solitary confinement” means the confinement of a patient alone in a room at any time of the day or night and a patient is confined to a room if he may not leave that room at will; “patient” means a person suVering or appearing to be suVering from mental disorder. (6) This section applies to all hospitals and care homes in England and Wales. (7) Any person who wilfully acts in contravention of this section shall be guilty of an oVence.

Interpretation 145.—(1) In this Act, unless the context otherwise requires— . . . “medical treatment” includes . . . the solitary confinement of a patient whose solitary confinement has been authorised by a certificate in writing given under section 58(3) above and excludes all other instances of solitary confinement; “solitary confinement” has the meaning given in section 11 and the term includes seclusion and other cognate expressions. Joint Committee on the Draft Mental Bill: Evidence Ev 1161

Further memorandum from the Welsh Nursing and Midwifery Committee (DMH 401)

Mental Health Services in Wales Led by the Department of Health rather than the National Assembly for Wales, the Mental Health Bill was developed on the basis of the model of Mental Health Care delivery in place in England. In England £700 million was set aside to implement the National Service Framework in 1999. In 2001 the NHS plan in England identiﬁed services such as home treatment teams, early intervention teams, supportive outreach teams, and funding was set aside to develop them. As a consequence the Community Services that will be required to implement the Bill are far more advanced in England than in Wales. The National Service Framework for Mental Health Services in Wales has not been supported with a similar level of investment. We are still reliant in Wales on in-patient services to manage patients’ needs, which in England would generally be managed by a variety of Community and Day Hospital teams.

Resources The performance management systems in Mental Health Services in Wales are not robust enough to provide details regarding the shortfall in capacity between current provision and those are required to implement the Mental Health Bill. The Audit Commission has recently completed a detailed report in relation to these mechanisms which we understand should support this statement and which, we understand, will shortly be available from the National Assembly for Wales. We anticipate that there will inevitably be an increase in the number of Tribunal hearings due to the greater reliance in Wales on in-patient services. As we have a 28% vacancy rate in April 2004 of consultant psychiatry posts alone, we do not believe that there is the capacity in Wales to service these increased requirements. We are also concerned that the shortfall in capacity will result in services focusing to an even greater extent on statutory responsibilities alone. We believe that a level of investment in Mental Health Services in Wales, proportional to those invested in English services, will be required to meet the shortfall in capacity.

Role of Mental Health Professionals Having discussed this issue more widely, the WNMC withdraws its concern with regard to the development of the role of Mental Health Professional in relation to Community Mental Health Nursing. As specialist social workers are becoming increasing integrated into multi-agency teams, the distinction between the “Health” and “Social Care” agencies is less distinct. In this context, it makes sense for this role to be available to Community Mental Health Nurses. I hope that these comments are helpful. Andrew Cresswell Acting Chairman : Welsh Nursing and Midwifery Committee October 2004

Memorandum from Dr Jill Peay (DMH 407) Regarding DMH 396—Memorandum from Rosie Winterton, Minister of State, Department of Health. Mental Health Bill—Necessity v Capacity I am writing in response to this memorandum. I do so with considerable regret since it appears that, even after ﬁve years, the Department has failed to understand the thrust of the Richardson Report. Richardson did not ask politicians to make a moral choice between necessity and capacity. The Committee was unanimous in its primary endorsement of an approach to mental health law based on the principles of autonomy and non-discrimination. However, that endorsement was tempered by secondary considerations—in part pragmatic and in part, of principle. These considerations led to our rejection of the notion that the capacitious wishes of patients with mental disorder should be respected in all circumstances (as they are for those with physical disorder, leaving aside the possibility of criminal justice interventions). The moral choice which Richardson asked politicians to address (para 2.11) was between overriding the choices of a patient with capacity where there was a substantial risk of serious harm either to the patient or others OR only doing so where there was a substantial risk of serious harm to others. The discussion in the Memorandum at paras 5 and 6 woefully misrepresents Richardson’s conclusions by eliding serious harm to the patient, with serious harm to others. To assert that we “eVectively concluded that there were circumstances when necessity (in terms of the risk of harm to self and others) should trump capacity” (Memorandum para 6) is simply wrong. Ev 1162 Joint Committee on the Draft Mental Bill: Evidence

The Richardson Committee did not presume that moving to a capacity based approach, even in the attenuated form recommended, would be aproblematic. Indeed, all of the arguments the Department raises in paragraph 12 of its Memorandum are addressed in the Richardson Report. A careful reading of the Report would readily reveal our counter arguments. They do not need rehearsing here. I would simply invite the Joint Scrutiny Committee to ask the Department to address one central problem. The Department assert that they “fully support the general principle of individual autonomy”, but qualify this with the proviso “wherever appropriate” (para 10). Under the Draft Mental Health Bill 2004, appropriate medical treatment needs to be available before compulsion can be used, so why would compulsion be necessary for those who retain capacity? Would not these people consent to treatment if they believed treatment was in their best interests, or could be so persuaded (as happens in all others areas of medical treatment) to accept treatment? Or are some “treatments” only to be available under compulsion? The Department’s response to this conundrum will presumably be that it is not appropriate to respect the principle of individual autonomy in circumstances of potential harm. Yet, the Draft Bill would permit autonomy to be overridden where there is a risk of some harm to others: this threshold reduces almost to vanishing point any respect for autonomy. Thus, what does the Department understand autonomy to mean, if it does not mean the right of others to do things with which you disagree? I like to think that if the Department are set on using necessity as a basis for compulsion they will, at some point, produce evidence and an argument to support their case. As things stand, the Minister has used her eVorts in an attempt to knock down a straw man. Dr Jill Peay Reader in Law (and former member of the Richardson Committee) October 2004

Memorandum from Dr J C O’Grady, Consultant Forensic Psychiatrist (DMH 409) You will already have received written evidence in relation to the draft Mental Health Bill from the Royal College of Psychiatrists. The Forensic Faculty of the Royal College considered the draft Mental Health Bill as its most recent meeting. In addition to the evidence already submitted from the Royal College of Psychiatrists, we the Forensic Faculty of the Royal College would like to make three further points in relation to part III of the draft Act relating to mentally disordered oVenders.

Hybrid Orders (Termed Hospital Directions in the Draft Mental Health Act,Section 130 onwards) The draft Mental Health Bill contains one generic definition of mental disorder. Therefore the Hospital Direction will apply to all forms of mental disorder, including mental illness and not just psychopathic disorder as in the 1983 Act. Whilst we welcome Section 130(2)(b) which states that the court has to consider making a Hospital Order before deciding to impose a sentence of imprisonment, we are concerned that this order may supplant the Mental Health Order. This may undo the hitherto enlightened legislation in England and Wales which took the view that the mentally ill patients should not be subject to punishment when they meet the criteria for detention under the Mental Health Act. Mentally ill oVender patients will be in the position of being at risk of overt punishment in the form of a prison sentence for the first time. As the Act contains suYcient powers to transfer appropriate patients from prison to hospital for treatment during sentence, we can see no reason why this power should remain in the draft Act. It conveys no new powers but risks undoing the otherwise enlightened and humane approach to providing hospital treatment to those mentally disordered oVenders who meet the criteria for detention. Should Parliament be minded to maintain the clauses in regard to Hospital Directions, we would recommend that sentencing guidelines provides guidance on first considering a Mental Health Order before making a Hospital Direction Order. Our view is that where the criteria for a Mental Health Order are met, sentencing guidelines should advise that a Hospital Direction (Hybrid Order) should not be made.

Mental Health Tribunals and the Secretary of State’s Powers to Sanction Leave and Transfer between Hospitals in the Case of Restricted Patients Under the Draft Bill, Mental Health Review Tribunals will have powers in relation to unrestricted patients to authorise the transfer of patients between hospitals and to grant them leave of absence from hospital. Section 147(4) and 148(6) speciﬁcally bar Mental Health Review Tribunals from being able to authorise the transfer of restricted patients between hospitals or to grant leave. As such powers are integral to a patient’s care plan, it is diYcult to understand why such powers are to be retained by the Secretary of State. In the new draft Mental Health Act, it is the role of Tribunals to review care plans and thereby review leave or transfer between hospitals. In regard to oVenders, the power to set the tariV of lifers and the power to determine release on licence in the case of life sentenced prisoners, release and parole is not taken by the Joint Committee on the Draft Mental Bill: Evidence Ev 1163

Secretary of State but subject to independent judicial review through Lifer Panels and the Parole Board. We believe that the same principle should apply to mental health law and that important decisions about transfer between hospitals and leave should be taken by an independent judicial review body and not through the Secretary of State. The proper body in our opinion would be the Mental Health Tribunal. Public conﬁdence and judicial conﬁdence in mental health law requires that consideration of the public interest and public protection forms part of the decision making process when considering leave and movement of restricted patients. We would therefore support any proposals that would ensure that Mental Health Review Tribunals, when hearing the cases of restricted patients, are obliged to consider public interest and issues of public protection through it’s processes and membership.

Powers of Courts to Obtain Information About Hospitals from Primary Care Trusts or Local Health Boards (Section 155 of the Draft Mental Health Act) This is a replacement word for word for Section 39 of the 1983 Mental Health Act. It provides powers for the courts to request from primary care trusts and local health authorities information on hospitals and hospitals units in their area, or elsewhere, where consideration is being given to remands, committal or Mental Health Orders in respect of a person before the court. We believe consideration should be given to strengthening this to allow courts to request primary care trusts and local health boards to give information about bed availability and, if a bed is not immediately available, to indicate when a bed will become available. All delays in admission to mental health services from the courts should be notiﬁable to the successor body of the Mental Health Act Commission. Chair, Forensic Faculty, Royal College of Psychiatrists December 2004

Further memorandum from J Allman (DMH 411)

As before, I would ask you please to draw this email to the attention of the Committee. To lump (as you did) those whose interests I held had not been represented in oral evidence, under the heading “service users”, is a euphemism that would seem comical, if it were not apparent that you intended no irony in the use of such bland Newspeak. For example, one can hardly describe as the “user” of a “service”, a political dissident who is the victim of harassment on the part of the well-connected, when he has been detained and drugged against his will, whilst his confiscated computers are accessed in order enable the demolition of his websites, which had published information that the government (in some cases) is on record as having admitted, in writing, that it doesn’t want discussed publicly. Who (if anybody), might I ask, has been invited to put orally the case to the Committee of those who do not consider the mental health industry to be any sort of “service” at all, except to those who get paid to work in it, and who don’t consider that they have been privileged to have been allowed to “use” it, but rather that they have been oppressed on those occasions when they were compelled forcefully to endure abuse, meeted out by that so-called “service”? Where, in Hansard, or on the website, may I read what was said in Committee in response to the personal written submission I (John Allman) made, and/or in response to the written submission made on behalf of the Christians Against Mental Slavery group, of which I am secretary? As the Government minister, Rosie Winterton, pointed out to me at the Labour Party conference, when she invited me to make written submissions, the Government was keen to produce robust legislation that would remain fit for its purpose, perhaps for as long as a further twenty years. I would be disappointed to learn that a decision had been taken to marginalise a minority view like that of mine and many of my associates, notwithstanding that that it is a view which I perceive to be the majority view amongst those most adversely aVected by the status quo, which status quo the Draft Bill does not seek to overturn as it should. Yet that seems to be the case. Why, my own personal submission hasn’t even been published on the Parliament website! Yet the views of many other “individuals” have been, on the basis that those individuals are the professional pecuniary beneficiaries of the present mental health industry, whereas I speak merely for their poor, badly harmed, un-letterred victims, who are far greater in number. There is a danger that a further 20 years of legalised psychiatric human rights abuse is about to be sanctioned by statute. I would like to ensure that those guilty of facilitating this, if it transpires, can be shown, by historical documents, to have been personally complicit in this, because they have neglected to heed written submissions that don’t confirm their prejudices, still less invited those who have made such submissions to expand upon their written submissions in oral evidence. Please bring this to the attention of the Committee, who appear to be in dire need of being reminded of the words of Augustine, “Audi alteram partem”. Ev 1164 Joint Committee on the Draft Mental Bill: Evidence

The Nazi SS who abused the human rights of Jews and others during the holocaust were few in number, yet somehow they managed to abuse each day people more numerous than themselves, for a distressingly large number of days. This was made possible because those were dark and undemocratic days, and they were at the pinnacle of a local hierarchy, and empowered by those at the pinnacle of a greater hierachy, bent upon evil. Today, the pseudoscientists called psychiatrists have been given comparably draconian powers. One (perhaps neurotic) psychiatrist can today imprison without trial, hundreds or thousands of ordinary civilian people at a time, people who are sceptical as to the notion that today’s establishment cares for them. Typically, the victims adversely aVected are ordinary citizens whom the psychiatrist has barely met He can imprison without trial and drug senseless tens or hundreds of thousands of such victims throughout his career, a career of a type which I, for one, think one would have to be mentally ill to chose, after years of training in the benign and less egotistial art of merely healing the sick. I have visited the human warehouses in which such uncharged and untried “prisoners” are stored, crammed in like sardines in a tin, and forcibly nobbled with mind-numbing drugs, in a way that we would never allow armed robbers, duly convicted by juries after fair trials, to be ill-treated in (say) Wormwood Scrubs. I have had long and intelligent conversations, all of them distressing, with many of those untried and tortured detainees, thus deprived of liberty and subjected to daily torture, obsessed to a man as I found them to be by one hope, that they should somehow, one day escape from their jailors and torturers clutches. I once vowed to God, that I would one day strive to bring about their deliverance. I have tried, with one exception in vain, to have intelligent, rational conversations with their jailors, the pseudoscientiﬁc psychiatric profession—who arbitrate in a society outwardly committed to freedom of thought that there are certain sorts of thoughts to which this principle doesn’t apply. I rejoiced to learn from Ms Winterton that at long last Parliament was going to scrutinise this appalling situation. I am now dismayed, because somehow or other, that phoney, rigged process of “scrutiny” has apparently determined to set itself such blinkered terms of reference that it does not want to hear the truth, from the likes of me and those whom I represent, or even to post my personal submission onto its website. In my view, a “scrutiny” that refuses to oVer oral audience such as would bring radical challenge to a status quo which has defective philosophical foundation, and which year on year leaves thousands upon thousands of alienated and harmed British citizens wondering whether perhaps planting “terrorist” bombs might yet prove the only option left to them to defend their human rights (perish the thought), is a scrutiny committee which has decided merely to “scrutinise” whether the present and indefensible modus operandi for keeping oppressed those of the common people who think for themselves might need tweaking here and there on some minor point, but which remains stubbornly determined not to bother with any kind of more radical scrutiny that would be capable of questioning the very “politically correct” cherished assumptions that would be in peril of becoming discredited by any more radical, deeper-thinking species of “scrutiny”, necessitating a more radical and far-reaching reappraisal. January 2005

Memorandum from B Harris (DMH 412) Regarding this Bill, which is I understand going through Committee. I don’t believe that there are enough safeguards against abuse, for the individual. Even eminent psychiatrists are against it. Why does Parliament persist in trying to control those it sees as “oVenders” with the barbaracy of psychiatric drugs and electrocution. There are other ways. Please throw this Bill out, and start again from the perspective of building in individual rights, rather than coercien by the state. Bryan Harris October 2004

Memorandum from M Telfer (DMH 416) With regards to the Draft Mental Health Bill, I see the Police Federation, are not giving oral evidence to the Scrutiny Committee. Surely it is vital that you hear from the Police, this Bill will have huge repercussions on them, and the Public. An increase in the use of 136 sections will be inevitable. (This is of great concern to me having been 136 sectioned. My ﬁrst and thankfully only encounter to an incredibly frightening system.) Joint Committee on the Draft Mental Bill: Evidence Ev 1165

Should this Bill go through far more resources are required. For instance I am aware that cadets In West Kent are only given an hour and a half of diversity training. This is nowhere nearly suYcient, if this Bill goes through we must have an intensive training for not only cadets but for all our bobby’s on the beat. Are the Police preparing for the rise in 136 sectioning, and is it possible to track down the ﬁgures for these sort of detentions. I believe that they are held by the Home OYce. This must have been researched, so could we get the prediction ﬁgures for the next few years? As we should be prepared for the true impact of this Bill. Miranda Telfer October 2004

Memorandum from Robin Williams (DMH 417)

RE NEW MENTAL HEALTH BILL MEETING IN CARDIFF

I felt honoured to be sitting in the public gallery while your Committee were taking evidence. If I may, I would like to express some concerns over the scope of the evidence received, and to express regret that the Midwifery people failed to turn up. Also, it was deeply regrettable that so much time was devoted to a fairly repetitive set of evidence from the Welsh Language Board, important though their contribution was. I was also disappointed at the lack of contributions from service users, which would have focused more on the reasons we are in the current unsatisfactory situation, with so little of the NSF Strategy having been implemented. My feeling was that our Minister, Jane Hutt AM failed to present the real situation tending to waZe through her answers, without accurately reflecting the very serious position that mental health services are in now, and the extent that we are failing to meet the needs of patients. Here, it is imperative to point out that our service has been declared unsafe by the RCP Poole Bullivant Report in 2000, HAS in 2001, CHI in 2003–04, and most recently, by the MHAC in their report last of July. Most of their recommendations have yet to be implemented with the most serious situation surrounding the staYng at out our hospitals and the CMHTs. In our hospitals, they have consistently failed to achieve the 6-5-3 staYng levels (morning, afternoon, night), even failing currently to meet the interim 5-4-3. In most of the wards you visited—particularly EMI— staYng levels are well below these standards. Worse than this, the recommended grading levels are never achieved, with most wards making do with “d” grade nurses, backed up by care assistants. Over-drugging is rife, particularly at night when tranquillisation is used all too readily to quiet some patients. Also, where self-harm occurs, sutures are often inserted without anaesthesia, with poorly qualified staV expressing the opinion that “you didn’t need an anaesthetic when you cut yourself, why do you need it now?” These are what the RCP report referred to as “counter-therapeutic customs and practices”, with many of my “sectioned” patients reporting recent incidents. Mixed wards are still a problem, with some of my female members reporting having had unprotected sex in their cubicles. When the one ward was refurbished for £400,000, I went to the opening and noticed that all the new pictures had glass in the frames, with the much- vaunted cubicles, having two ligature points (the closet and the door)—I even demonstrated how these might be used—having “been there” myself. The following day a patient “DD” succeeded in committing suicide using the closet door to hold the towel. In the CMHTs, CPNs in CardiV and the Vale have a caseload, nearly double the recommended safe level of 35. Consequently even these dedicated stalwarts become demoralised about the lack of support from their managers. There is also a certain amount of consternation at the £700,000 per CRHT (Crisis Resource Home Treatment) service, with CardiV and Vale NHS Trust having committed £2 million to the two CRHTs proposed for CardiV. Many psychiatrists and CPNs feel that the money should be used to bring the staYng levels at the CMHTs up to strength, before looking at the CRHTs. More importantly, if my group had been there, we would have latched on to the mention of the Barnett formula squeeze, referred to in passing by one of your Committee. As you know, for every £100 spent per patient in England, we spend £115 in Wales—which still fails to meet current need. Our health budget is, therefore, based on the £100 figure. This diVerence amounts to a £300 million shortfall in our Health Budget (Institute of Welsh AVairs report, 7 January 2003). This is why we have spent, historically, a maximum of 6% of the Health Budget on mental health. Projections for 2004–05 show this share to be 7.5%; 2005–06 at 7.2%; 2006–07 at 7.1%; and 7% for 2007–08 (as reported in Mental Health Wales, issue winter 2004). All this, at a time when mental health is supposed to be one of the three top priorities for the NHS in Wales. Therefore, the historic under-funding has had a cumulative eVect which is being continued into the future, thereby falling short of projected need. This does not bode well for the future of our service, especially when you consider our position relative, to most parts of England where comparative funding is 16% of health budget for Birmingham and 15% minimum for the Greater London area. As you are well aware the recommended levels for funding mental health services are 15% for urban areas, with 11% being considered adequate for rural areas. As you heard from the excellent evidence from the Powys ladies, even there they are massively under-funded. Ev 1166 Joint Committee on the Draft Mental Bill: Evidence

Unfortunately, mention of the Wanless report—as being the panacea for the ills of the NHS is enough to depress service users further. LHBs and Trusts have used “Wanless” as a means to rationalise services for the primary purpose of cutting costs, in order to close the Barnett gap in funding. In case I haven’t made it absolutely clear, our services—already starved of funding—are being reduced further by rationalisation, merging, co-terminus service working. £300,000 of this money was used for the pilot of the CRHT, which is yet to be set up—the delay being due to problems recruiting staV. I do appreciate that your Committee was (probably) singularly unimpressed already by what you all saw and heard during your most welcome trip to Wales. However, I thought it important to present this woefully inadequate service in terms of the funding that is invested in mental health. And all this is before the new Bill, which will require staYng levels that (most of us) feel could not be achieved in Wales, even with ten years advanced warning. Believe me, we in Wales are at least 10 years behind England and implementing changes necessary to accommodate the new Bill is, simply, not feasible. One of the most signiﬁcant reports was following the CHI Review of Mental Health Services in CardiV and the Vale. CHI were strongly critical of our services and made many explicit recommendations on what was needed. This was in the form of the CHI Action Plan which was “signed oV” last April. After 18 months, the progress made on implementing the CHI Action Plan is poor, to say the least. We users lament the fact that so much time has been allowed to elapse since the agreement of the plan, and any implementation. If you have not already seen this, I recommend that you obtain a copy from the website, or from Alastair Meredith, Quality & Safety Improvement Branch, Welsh Assembly Government, Cathays Park CardiV, CFl0 3NQ (Tel: 029-2082 6401). Having taken two years to persuade Dame Deirdre Hine and her Board to review our mental health services, I have now complained to the Healthcare Commission about the delay in implementing the plan. Frankly, service users are fed up with responding to documents, proposals for change, Strategic Outline cases for consultations, that are all a fait accompli. Even our consultations are handled by the moribund Community Health Councils, whose best ever consultation resulted in getting less than 5% of the aVected population involved. Please forgive me if I seem to be “teaching grandma to suck eggs”—the intention is not to insult your intelligence, but merely to ensure that I don’t miss anything when expressing the viewpoint of service users in Wales. Thank you for your excellent Chairing of the meeting. I was particularly proud of two of our AM—David Melding and Kirsty Williams, who are two well-informed, genuinely sincere, and totally dedicated politicians, committed to the achievement of a better health service in Wales. On behalf of our users, thank you, and all your eminent Committee members for taking the time and trouble to honour us with your presence. Incidentally, in case it wasn’t obvious, we are totally against the proposed Bill, unless your committee take a chain-saw to some of the ASBO-type government discipline, and by narrowing the scope of those (like me) that will be included in the wider group who will be subject to sectioning. Although not enough emphasis was given to stigmatisation, this Bill will increase it to a point where users will be afraid to see their GP for physical ailments, and will make it unlikely that they will be able to take their rightful place in their communities. Apologies for “waZing on” like our beloved Minister—but, as I keep telling everyone, people like me may be mentally ill but we’re certainly not stupid! Robin Williams—British Cardiac Patients Association—S Wales, Community Cardiac Rehabilitation Steering Group, Arrhythmia Awareness Group, the Mental Health User Group—CardiV and Vale of Glamorgan, the CardiV and Vale Mental Health Forum, the Dystonia Society—S Wales and member of CardiV and Vale NHS Trust Patients Panel. December 2004

Memorandum from the Clerk/Chief Executive of the Scottish Parliament (DMH 423) There are two aspects of the proposal on which we wish to make comment. The first, and perhaps most significant of these, is the proposal to confer a decision making role upon the Speaker or, in the case of the Scottish Parliament, the Presiding OYcer. At present there is no such role. Where after the end of the relevant period of six months the Presiding OYcer obtains a report from two medical practitioners which concludes that the member continues to be suVering from mental illness and remains authorised to be detained, the Presiding OYcer must lay the medical reports before Parliament whereupon the seat of the member becomes vacant. The Presiding OYcer does not have a decision to take and the matter for those with appropriate expertise, namely registered medical practitioners. We consider that it would be appropriate if that continued with the Presiding OYcer therefore not being given the function of making a decision. Medical practitioners are best qualified to make a judgement as to the extent to which a person’s mental health aVects their ability to act. If the decision were placed in the hands of the Presiding OYcer considerable weight would need to be given to the medical evidence in any event. There is also a risk that in taking a decision which might aVect the political balance of the Parliament, Joint Committee on the Draft Mental Bill: Evidence Ev 1167

for example where, as at present, the Scottish Executive only has a parliamentary majority of one, the independence of the Presiding OYcer could be called into question thereby undermining his or her authority. It is possible to avoid this situation and we would suggest that this would be desirable. The second area that we wish to mention is the proposed test of the ability of the member to attend the Parliament. The devolved arrangements are diVerent from those at Westminster and the proposed test would not seem to be appropriate for Scotland even if it may be for Westminster. Where a member suVers from mental illness that person is disqualified at common law from being a member of the Parliament. Section 17(4) of the Scotland Act 1998 provides for the member to continue to be a member of the Parliament until his or her seat becomes vacant, in accordance with the Mental Health Act 1983, but prevents a member from participating in proceedings of the Parliament. The operation of the proposed test is somewhat puzzling when the interaction between the proposed legislation and the Scotland Act 1998 is taken into account. In practice the ability of a member to attend the Scottish Parliament would serve no purpose. A member who remained subject to compulsory measures would still be suVering from mental illness and be disqualified even if able to attend the Parliament. Section 17(4) of the Scotland Act 1998 would therefore still prevent that member from participating in proceedings. This is not an issue under the current system, as being detained would prevent participation in any event. The proposed wide range of compulsory measures, which gives greater flexibility to allow a member to retain his or her seat and continue to attend Parliament, suggests that a member should also be allowed to participate in proceedings where reasonably able to do so. On the other hand, if the condition of the member is such that he or she is unfit to participate in proceedings of the Parliament then it should follow that his or her seat should become vacant. As mentioned above we do not consider it appropriate for the Presiding OYcer to be required to make a decision and the suggested test, in any event, does not appear to be compatible with the devolved arrangements. It may be helpful to have a single approach that works appropriately across jurisdictions but if that is not possible separate provision would have to be made. In this regard it would seem helpful to examine the underlying purpose of the proposed test rather than simply try to update a measure that only had application to Westminster concerning the ability to attend. PEGrice Clerk/Chief Executive October 2004

Memorandum from the Presiding OYcer, National Assembly for Wales (DMH 424) The one point of concern I have about the proposals is the absence of a provision to deal with a situation where the Presiding OYcer of the National Assembly is unable or unwilling to exercise the functions conferred on him or her under clause 295, as read with clause 297. It could be that he or she is unable to exercise the functions because of illness. Indeed the Presiding OYcer could become liable to compulsory provision. Moreover he or she may well be unwilling to exercise the functions for reasons of conscience. I feel strongly that the Bill should provide for the Deputy Presiding OYcer of the National Assembly to be able to exercise the relevant functions in a situation where the Presiding OYcer is unable or unwilling to do so. The Deputy Presiding OYcer is elected under section 52(l) of the Government of Wales Act 1998. Dafydd Elis-Thomas November 2004

Memorandum from the Clerk to the Northern Ireland Assembly (DMH 425)

The Northern Ireland Assembly is currently suspended and is also without a Speaker, following Lord Alderdice’s retirement earlier this year, so it is not possible for the Assembly to express a view on the Draft Bill. In these circumstances I do not think that it would be proper for oYcials to express views, which may not necessarily reﬂect the collective view of the Assembly. However, I can say that I have seen the response of the Scottish Parliament and I believe that similar considerations are likely to apply in relation to the Northern Ireland Assembly. Arthur Moir Clerk to the Assembly November 2004 Ev 1168 Joint Committee on the Draft Mental Bill: Evidence

Memorandum from the Clerk of the House of Commons (DMH 426)

I understand that, at an earlier stage in the preparation of the legislation, the Department of Health consulted extensively both with Speaker’s Counsel and with the parliamentary adviser to the Cabinet OYce (a seconded oYcer from my Department). The provisions of the Draft Bill are in line with what was then agreed about the principles to be applied in relation to mentally disordered Members. The present provisions governing this eventuality (which of course is an extremely rare occurrence) are set out in section 141 of the Mental Health Act 1983. They proceed on the assumption that a person requiring compulsory medical treatment for mental illness will be detained in an appropriate institution. The role of the Speaker is essentially to establish the fact of detention; vacation of the Member’s seat follows virtually automatically. The Draft Bill, as the Joint Committee will be well aware, reflects more modem approaches to the treatment of mental illness, providing for statutory intervention in the lives of mentally disordered persons which falls well short of detention. Indeed my understanding is that detention is intended to be the intervention of last resort. Thus a Member may become subject to compulsory treatment without any interference in his ability to attend the House, which is the reason for the compulsory vacation of the seat under the 1983 Act. The approach adopted in drawing up the new provisions has been to apply the principles of the 1983 Act to the modem statutory regime as nearly as may be. Thus: (a) the Speaker is to be informed of any compulsory treatment in the case of a Member; the Speaker is then to determine, having consulted a qualified medical person, the extent to which the treatment aVects the Member’s ability to attend the House; there is therefore now a genuine discretion for the Speaker to exercise; and (b) “attendance at the House” has deliberately been chosen as the sole criterion: attendance remains the primary duty of Members and their capacity to do so can be more or less objectively assessed; assessment of alternative criteria, such as capacity to attend the House’s business or to represent the interests of constituents were thought too subjective for determination by the Speaker under this procedure. I have seen the letter of 22 November from my opposite number in the Scottish Parliament in which he questions whether it is appropriate for a Presiding OYcer to be required to exercise discretion in a matter which could potentially be of great political sensitivity and even aVect the balance of power in the legislature. He also questions whether the attendance test can be reconciled with the provisions about disqualification in the Scotland Act 1998. The latter point raises some complex issues of statutory interpretation on which I think it would be unwise to oVer a view. On his former point, my own opinion (which I have discussed with Mr Speaker) is that, although in practice professional medical opinion on the circumstances of any case would be bound to carry great weight, the House would expect and wish the final decision to rest with the Speaker rather than to be delegated to professional practitioners, however eminent, from whose decision there could be no appeal. The Speaker of the House of Commons is expected to take decisions of matters of great political sensitivity, and is chosen on the basis of ability to perform that function objectively and impartially. The role proposed for the Speaker in the Draft Bill is not out of line with those expectations. It follows from that view that I also think it appropriate that the criterion for the decision should be ability to attend the House. As stated in sub-paragraph (b) above, this is a more objective test than others which might be contemplated: it would, for example, be unreasonable to expect the Speaker, even with expert medical advice, to determine whether or not a Member was still capable of representing his constituents satisfactorily. The greater range of possible statutory interventions will inevitably require a degree of judgement, even in relation to the attendance test. It will be clear, for example, that a Member detained in a secure institution cannot attend at all, but a Member required only to take regular medication, if able to travel safely, can attend freely; but possible situations between those extremes may be less straightforward. Even so, I consider it to be a more practical test to apply than any alternative which readily comes to mind. R B Sands November 2004

Memorandum from Mark Vero (DMH 430)

I am writing in objection to the proposed changes to Mental Health Law. It is my belief that placing these greater powers in the hands of some psychiatrists is wrong and dangerous. It is not so long ago that Ray Rowden made the observation that some psychiatrists were “third rate medics with vested interests”. Separate criminal justice legislation needs to address risk. It should not be mixed with the treatment of people with mental health problems. Joint Committee on the Draft Mental Bill: Evidence Ev 1169

People with mental health problems living in the community are already subject to a significant degree of detrimental discrimination, stigma, abuse and attacks by so called “normal” people. This proposed legislation will increase this abuse of vulnerable people. I have enclosed a copy of “Critical Mental Health’s Response to the Draft Mental Health Bill” since I believe that this document addresses the problems with the Bill better than any other I have read. Please read and consider each point in this document. My own 34 years of experience of mental health issues including my mother’s and my own is that compulsory treatment works as a last resort where there is crisis and danger, however, IN HOSPITAL. In fact I believe it has saved my life in the past. I would also like to say that had this compulsory treatment taken place in the isolation of my flat with all the associated problems of discrimination and abuse from “normal” people in the community it would have been much more likely to cause and result in suicide. I hope that you will listen to the many statements from intellectual professionals who have years and years of experience of working in this area rather than the propaganda of profiteering neo-liberal politicians. Mark Vero October 2004

Memorandum from the Advocacy Safeguards Agency (DMH 432)

ISSUES RELATING TO INDEPENDENT ADVOCACY AND THE MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003

1. Introduction We are pleased to have been asked to contribute to the deliberations of the Committee. You have asked us to provide some general information about ourselves and our work, as well as asking us 13 speciﬁc questions. We have considered it to be useful to give a brief outline of the provisions of the 2003 Act in relation to independent advocacy in addition to these. In general, the ﬁgures you request are not currently available, but we will give you the best indication we can of the situation as we understand it.

2. Advocacy Safeguards Agency (ASA) It is Scottish Executive policy that good quality independent advocacy is available to everyone in Scotland who needs it. They have funded ASA to make sure that this happens. We do this by making sure through our work with NHS boards and local authority commissioners that the right sets of services are available and through our evaluation work that independent advocacy services are working well for the people who need them. Supporting this work are our roles in respect of the development of policy and good practice, and research. As part of making sure the right sets of services are available, we produce a map of independent advocacy across Scotland, assist NHS boards to draw up and scrutinise completed three-year independent advocacy plans, monitor implementation of plans and scrutinise the independent advocacy sections of the Performance Assessment Framework on behalf of the Scottish Executive. We are currently engaged in developing updated “Guidance for Commissioners” which will be published through the Scottish Executive. We use agreed standards to look at the work of independent advocacy organisations and carry out evaluations with the assistance of teams drawn from the people who use, provide and commission independent advocacy. These evaluations not only make recommendations for the organisations evaluated, but also for the commissioners. In regard to our support functions, we have engaged in a range of work from looking at the independent advocacy needs of specific sections of the community, for example children and young people, and people who are deaf or hard of hearing, looked at specific issues in regard to the provision of independent advocacy, for example how complaints about independent advocacy are dealt with, and we are currently working with the Scottish Independent Advocacy Alliance and commissioners to draw up a revised set of Principles and Standards for independent advocacy. SIAA is also funded by the SEHD www.siaa.org.uk We began our work in May 2002 and are about to come to the end of our initial three-year funding. If we are funded for a further three years, it is likely that some changes will be made to our work as a result of the experience we have gained. We have just taken on a Mental Health Act Development Worker specifically to work with commissioners around their duties under the Act. Ev 1170 Joint Committee on the Draft Mental Bill: Evidence

3. Provisions of 2003 Act in Relation to Independent Advocacy There are a number of provisions in the 2003 Act which relate to independent advocacy. Some of these are general and some speciﬁc.

3.1 General Provisions These are contained in section 259: Everyone in Scotland with a “mental disorder” has a right of access to independent advocacy. NHS boards and local authorities have a duty to secure the availability of independent advocacy for people with a “mental disorder”. NHS boards and local authorities have a duty to make sure people have the opportunity to access such independent advocacy. NHS boards and local authorities have a joint responsibility to meet these duties. Advocacy is not independent if it is managed or provided by NHS boards, local authorities, NHS Trusts or those providing health and social care services on their behalf. It is important to note here that the right is not restricted to those under compulsion. The right applies to anyone no matter what age or circumstances and whether or not they are ordinarily resident in Scotland. This latter provision is signiﬁcant in relation to refugees and asylum seekers.

3.2 Specific Provisions There are a number of more specific provisions relating to independent advocacy. Perhaps the least widely known is the exclusion of independent advocates from having regard to certain of the overarching principles of the Act. Other specific provisions relate to the duties of Mental Health OYcers (MHO’s) and hospital managers to make sure that people know about and have help to access independent advocacy at various trigger points. This includes a requirement for MHO’s to make people aware of and help them to access independent advocacy when an application is being made to the Mental Health Tribunal for one of the long- term orders. It is our assertion that the Tribunal will not be able to make anything other than an interim order if the person in question has been denied access to independent advocacy. This makes it vital to record the steps taken to secure access to independent advocacy for an individual with a mental disorder. The Code of Practice as it relates to the independent advocacy provisions has not yet been completed, but drafts can be seen at: www.scotland.gov.uk/Topics/Health/care/15216/8727 The Code of Practice, so far as we know, will point out that it is not just at these statutory trigger points that health and social care staV should be helping people to access independent advocacy, but that it is a matter of good practice, in accordance with the general duty at section 259 to bring the matter to people’s attention for example if there is a significant occurrence in the individual’s life. Other provisions include the inclusion of independent advocates and independent advocacy services in the list of persons, including elected members and legal representatives, with whom an individual should not be prevented from communicating. It is very important to remember that when section 259 talks about independent advocacy, it does not just mean individual advocacy, but also includes group advocacy. This point was emphasised by Malcolm Chisholm MSP, then Minister for Health and Community Care in the Stage Three debate on the Bill.

4. Answers to Your Specific Questions

4.1 What powers does the Advocacy Safeguards Agency have to monitor advocates, set standards and ensure standards are met? At present, such powers as we have are exercised vicariously through the funders and commissioners of independent advocacy services and through the Scottish Executive. Lack of specific authority for the Agency is to be addressed in the forthcoming rewriting of the Guidance to Commissioners. For example, we hope that it will include guidance to the eVect that evaluations of independent advocacy organisations are called for by commissioners and not, as at present, largely left to the organisations themselves to volunteer for. This document will be written by ASA in consultation with commissioners and issued by the Scottish Executive. We have also recently looked at how complaints about independent advocacy organisations are dealt with. We are recommending that complaints about independent advocacy will first be dealt with by the organisation itself, then by their funding authority, then by the Scottish Public Services Ombudsman. Our role would be to advise funding authorities and the Ombudsman on technical matters relating specifically to independent advocacy. Joint Committee on the Draft Mental Bill: Evidence Ev 1171

We will, as now, also keep an eye on complaints we are copied into in order that we can watch for trends and ascertain whether speciﬁc guidance is needed to the organisations or their funders in matters of good practice.

4.2 How does the Agency ensure that advocates maintain their independence?

We make sure that the organisations providing advocacy are independent themselves and that they have policies and procedures in place to allow them to manage conflicts of interest which may arise. There are a number of indicators in regard to independence, such as neither the organisation nor its advocates being connected with direct service provision and the nature of any service level agreement it has with its funders. However, the only way at present we can really know if there is significant conflict of interest is by carrying out an evaluation.

Development staV assist commissioners by producing a range of guidance which highlight the importance and value of independence.

More importantly they assist commissioners with the tendering process and make sure that the conditions associated with tendering will guarantee that the potential provider is either independent or working towards independence. Recently we have assisted a number of commissioners in such processes, particularly in developing independent advocacy for people with a “mental disorder”.

4.3 How many mental health advocates are there in Scotland and what is the average case load per advocate?

Part of the remit of our new Mental Health Act Development Worker is to map provision and identify gaps to be filled. This information will be gathered as part of this work. Unfortunately this means that these figures will not be available until next financial year.

In any event, it will be diYcult to make such ﬁgures meaningful as there is a wide range of activities carried out by a number of diVerent types of independent individual advocates. Some organisations are not purely mental health advocacy providers, some provide independent advocacy for people with a “mental disorder” as part of a generic advocacy service and some combine mental health advocacy with advocacy for other client groups, such as older people. Some are full-time paid advocates and some of these will specialise solely in tribunal work. Some are unpaid and will work with a number of people on issue-based advocacy and some will have only one advocacy partner with whom they work long term.

However, the following ﬁgures taken from our most recent Map of Independent Advocacy may be useful to you.

Advocacy organisations now working with people with a “mental disorder”

19 speciﬁc mental health advocacy projects

20 out of 21 generic advocacy projects

15 speciﬁc learning disability advocacy projects

One out of four advocacy projects for older people provides a direct advocacy service to people with dementia

4.4 What proportion of advocates in Scotland are volunteers and what proportion are remunerated?

As at 4.3 above.

Better information to look for might be how many pieces of advocacy are done by each. For example a full time paid advocate will have a current caseload permanently in double ﬁgures, while an unpaid advocate, especially in rural areas, may only work intermittently.

There has been, however, an increase of paid advocates in preparation for the implementation of the 2003 Act. Ev 1172 Joint Committee on the Draft Mental Bill: Evidence

4.5 What are the remuneration rates of those advocates who are paid? This varies from one project to another, but we always recommend NJC scale AP4/5

4.6 Who pays for the Agency and how pays advocates? At present we are funded by the Scottish Executive Health Department. We also are in receipt of some income from payments made to us in connection with evaluations. We wonder whether you mean who pays for advocates? If so, the majority of funding for independent advocacy comes from statutory sources, some from the Lottery and some from grant making trusts. Of the advocacy services who are in receipt of lottery and trust income, the majority are also in receipt of statutory funding.

Funding for advocacy in Scotland 2003/04 The following figures represent the total amount spent on advocacy, whether or not it is currently independent and whether it is individual or collective advocacy. Total statutory funding for all types of advocacy in Scotland £6,360,054 Total non statutory funding for all types of advocacy in Scotland £1,324,607 Mental health advocacy services £1,823,173 Generic services providing advocacy for people with a “mental disorder” £1,669,937 Total Statutory funding for 15 specific learning disability advocacy projects % £1,396,054 Older people’s advocacy services £76,159 The recently completely Advocacy Plans for each NHS Board area show an increase in funding for advocacy for people with a “mental disorder”. We do not think it useful to give the figures concerned, as they are merely indicative and have not been finally committed.

4.7 What is the planned budget for Advocacy Safeguards Agency when it is fully operational? ASA is fully operational. We in negotiation for the next three-year cycle, which begins in April 2005. In the period 2002–05 we had an allocated budget of £1 million.

4.8 The Committee has been told that the Mental Health (Care & Treatment) (Scotland) Act 2003 put a duty on authorities to ensure that independent advocacy is available to all people with a “mental disorder” and that they have an opportunity to use it. Has this provision been implemented? If it has, what eVect has it had on the number of mental health advocates in Scotland? The short answer to this question is that the implementation of the 2003 Act was put back to October of this year in a statement made by Rhona Brankin, the Deputy Minister on 20 January. Provisions relating to named persons and advance statements have already come into force. Even before its implementation, the eVect of section 259 has been a signiﬁcant increase in the amount of independent advocacy available and more is in the pipeline. Our Mental Health Act Development Worker, referred to above, will have duties which include preparing two reports on the state of provision of independent advocacy for people with a “mental disorder” at 31 March 2005 and 31 March 2006, including recommendations for areas which may require special attention. We would be delighted to let you have the result of each study when it becomes available. In the meantime, all NHS Boards have now submitted their 2004–07 Advocacy Plans to ASA, which collectively prioritise the development and investment in independent advocacy to meet the requirements of the 2003 Act. Do patients in Scotland have a right to meet an advocate in private and to correspond with an advocate without interference by hospital or other authorities? Independent advocates have the right of reasonable access to the people with whom they are working in terms of the Code of Practice. This is similar to the right of access enjoyed by other classes of persons, such as legal representatives. The test of reasonableness is also applied when looking at interviews between the individual and health or social care providers. It is good practice to meet a person with an independent advocate present, but it is recognised that there may be some circumstances where a meeting may have to proceed without the independent advocate’s being there. We can only suppose that it is for the people organising the meeting to demonstrate the reasonableness of arrangements if challenged. Joint Committee on the Draft Mental Bill: Evidence Ev 1173

As stated at 3.2 above, people cannot be prevented from communicating with their independent advocate or independent advocacy service under the Act.

4.9 Do prisoners and “voluntary” mental health patients have access to advocates? If they do, is the service used widely? The right of access applies to all people in Scotland with a “mental disorder”. There is no requirement that you are ordinarily resident in Scotland. The right applies to people of any age, gender, ethnic background, ability and whether or not they can communicate in English. It applies to everyone, not just those subject or likely to be subject to compulsion. It is probably true to say that the majority of independent advocacy work is done with people not currently subject to compulsion. We are currently engaged in talks with the Scottish Prison Service to make sure that the right of access to independent advocacy of people with a “mental disorder” who are currently in prison is upheld. You will understand from the description of the general duties of NHS boards and local authorities above that it is they who have the duty to make sure that independent advocacy is available to people in prison. Voluntary patients and people living in the community have been making use of independent advocacy services for many years and will continue to do so under the new Act. One of our tasks in relation to this will be to make sure that all resources are not targeted on people under compulsion.

4.10 It has also been submitted to the Committee that patients in Scotland are entitled to call on the services of advocates at the point of detention and before examination. Is this the case? If it is, are patients able to call on the services of advocates before initial examination? How many avail themselves of this right? No such rights exist until the implementation of the relevant sections of the new Act. However, as described above, the right of access will not be restricted to procedures around compulsion.

4.11 Have there been any instances in Scotland where access to an advocate has been refused? As this is not currently a right, this has not been recorded. We understand that the Mental Welfare Commission will be keeping this sort of information. The major diYculties at the moment are trying to make sure that there is suYcient provision to meet people’s needs. This means that we will expect agreement between funders and independent advocacy services on how work can be prioritised. It will plainly be a nonsense if someone with a Tribunal next week is told that there is a waiting list of three months and advocates are allocated purely on a ﬁrst come ﬁrst served basis. It still happens from time to time that a health or social care professional will refuse to recognise an individual’s independent advocate. Clearly this is bad practice which will be a subversion of the individual’s right of access to independent advocacy after the Act is implemented.

4.12 One of the criticisms of the introduction of the right of access to an advocate in England and Wales is that patients will have a confusing array of people providing support: relatives, carers, nominated persons and lawyers as well as advocates. Is the position the same in Scotland and, if it is, have there been problems in delineating and separating roles? The position is, or will be, the same in Scotland. This was the main reason we were not keen that the named person provisions came in last October in advance of other provisions. We are very concerned that the existence of a named person will, because of their position in the Act, be used to undermine the role of the independent advocate. It is essential to bear in mind that there is a fundamental diVerence between the two. A named person might have a conﬂict of interest with the person with a “mental disorder”. An independent advocate cannot become someone’s named person because they would then be in a position where they could take decisions or act without the individual’s instruction. We see absolutely no problem in an individual having an independent advocate and a legal representative. The roles can be clearly diVerentiated and can complement each other for the beneﬁt of the individual. We have met with the Law Society on this very issue and have recently been part of a post qualifying training event organised by the Law Society. There are indeed a whole host of people who can be involved in the lives of people with a “mental disorder”. It is, however, true that the independent advocate has a useful role in helping the individual to understand who all these people are and communicate with them. The addition of an independent advocate to the cast of characters will therefore hopefully clear, not muddy the waters. Ev 1174 Joint Committee on the Draft Mental Bill: Evidence

4.13 Do advocates have access to patients’ records? Obviously if the individual is able to complete a valid instruction under the Access to Health Records Act 1990 there is no problem. Where there is some doubt as to the legal capacity of the individual to grant such a right there is more of a problem. The Code of Practice will state that legal advice may be necessary. However, it would seem that where an individual is obviously in a consensual advocacy relationship, the advocate should have access to the information they need to be able to do their job.

5. Conclusion We in Scotland are at a very interesting point in the development of independent advocacy. The inclusion of a right of access in the 2003 Act which is qualiﬁed neither by residence, nor age nor whether or not an individual is subject to compulsion, is clearly groundbreaking. It establishes independent advocacy as part of people being able to have as much control as possible over their lives and, as such, is a major engine of social justice. We hope that the deliberations of your Committee result in people in England and Wales being able to enjoy similar rights. The Advocacy Safeguards Agency January 2005

Further memorandum from S Banawich (DMH 440) I would like to further comment on the contents of this draft bill and the eVect it would have on the mental health community. I am concerned that the Bill refers to treatment but is none specific, I would like to be able to refuse future developments in terms of gene therapy I would not want to have that forced on me as a schizophrenic and believe I should have the choice to refuse it. I would also like to point out that I am currently on a medication break because the anti psychotics I was on, were poisoning me and I had to fight three psychiatrists to get the blood tests done to prove this. If I was under compulsory medication in the community I believe it would have been harder for me to negotiate stopping my medication. I have a major problem with obesity caused by these drugs and as government guidelines are calling for action on this problem I feel it would be an infringement of my human rights to force me to take medication that causes other health problems. The number of people who are a threat to the community is not I feel suYcient enough to warrant action on all people with these conditions. We need better drugs and more importantly employment, involving in our local communities, better housing, equality. As a group we find it harder to get benefits to relive the stress of poverty. I can be 80% disabled for incapacity purposes and refused disability living allowance which I need to help me integrate socially and live a normal life stress free. I am not covered under the disability discrimination act as everyone else is. I find it impossible to get employment because of the stigma of schizophrenia. If I had to be forced to attend clinics and hospitals because I was perceived a threat to others just because of my symptoms (which has happened to me twice) what chance would I have at interviews for employment? Who would take the risk to other employees if I had to have one of the compulsory orders? The perception is “Once a risk always a risk”. We need more choices and freedoms not this oppressive knee jerk Bill. It reminds me of the Dangerous Dogs Act and we know how useless that was. Sandra Banawich February 2005

Memorandum from the Stone Ashdown Trust (DMH 443) I write to you as Panel member of the recent David Bennett Inquiry and also of the Stephen Lawrence Inquiry. I was also a general practitioner for twenty years in the NHS, ﬁnishing as senior partner of a ﬁve- doctor Inner London group practice. 1. I am concerned that, with the resignation of Baroness Flather, there are no members now of the Joint Committee with personal experience of racism. I can only speak about racism, as it were by proxy. However a major contribution to the strengths of the Stephen Lawrence and David Bennett Inquiries was the personal experience of racism that was present in all the thinking and actions of those Inquiries at every moment, due to the presence of Bishop John Sentamu on the Lawrence Inquiry and Professors Sashidharan and Sallah on the Bennett Inquiry. Joint Committee on the Draft Mental Bill: Evidence Ev 1175

2. The over-representation of Black men in virtually every negative statistic in the mental health services has been well documented for over 20 years:

— Late presentation to psychiatry due to fear that “I’ll never come out of there alive”.

— Over-diagnosis of schizophrenia.

— Over-use of medication beyond the recommended limits.

— Over-use of death during or soon after restraint.

— This catalogue of un-professional actions in the Report of the Bennett Inquiry was no more than a repetition of the Orville Blackwood Inquiry “Big Black and Dangerous” 13 years before, and in numerous reviews and statistical papers.

— Under-use of psychiatry services in Asian communities as equally documented in the last 20 years.

The Stephen Lawrence Inquiry concluded that “It is no longer acceptable for the police to investigate the police”, as a result of which we now have the Independent Police Complaints Commission (IPCC) which replaces the old Police Complaints Authority. The Lawrence Inquiry also made strong recommendations about the need for members of Black and Minority Ethnic Communities at all levels in all institutions, if only to build conﬁdence in the institutions where they touch on the lives of Black and Asian citizens. Six of the 18 members of IPCC are from Black and Minority Ethnic Communities ie Black or Asian. Without them the credibility of the IPCC would be deeply undermined.

I am aware that the Mental Health Bill is a rare opportunity to improve the professionalism of the mental health services and such opportunities only come up every 10 to 15 years. It would be most unfortunate if the authority of your ﬁnal Bill and Act is undermined from the start by inadequate response to those who suVer most from unprofessional practice by doctors and nurses and others.

I do hope that you will be able to bring in at an early date to your Committee some of the excellent Black and Asian Members of both Houses so that you can beneﬁt from the experience of racism in all your future deliberations. Dr Richard Stone February 2005

Memorandum from the Mental Health Act Commission (DMH 452)

The Mental Health Act Commission’s previous evidence to the Committee (DMH 20, paragraphs 5.7–5.12) provided a general outline of its concerns over the lack of speciﬁc provision in the draft Mental Health Bill that would ensure the continuation of eVective monitoring arrangements following the abolition of the Mental Health Act Commission. We hope that the committee will ﬁnd the following expansion of our previous comments helpful.

We accept that there are some practical beneﬁts to the integration of MHAC functions with the work of the Healthcare Commission. The forthcoming census of the ethnicity of all psychiatric inpatients, whether informal or detained, is an example of the power of collaboration between the MHAC as a body with a speciﬁc and limited remit, and a wider healthcare inspectorate.70 There is a similar scope for joint working over a number of other aspects of mental healthcare provision (such as prison healthcare or the care of incapacitated informal patients, for example) that fall outside of the remit of the MHAC but are nevertheless relevant concerns.

However, it is possible that some areas of legitimate concern to a body monitoring the use of Mental Health Act powers (such as social care aspects of mental health provision, or criminal justice aspects including police involvement with the mentally disordered) may not ﬁt well within the remit of a general healthcare inspectorate. There must be scope for collaborative working between the body responsible for Mental Health Act monitoring and all agencies responsible for these diverse areas.

1 The ﬁrst national census of all mental health inpatients for England and Wales will take place at the end of March 2005. See Count Me In at www.mhac.org.uk/census. This is a joint project of the Mental Health Act Commission, Healthcare Commission and National Institute for Mental Health (England). Ev 1176 Joint Committee on the Draft Mental Bill: Evidence

Although we recognise certain advantages in merging with the Healthcare Commission, there are signiﬁcant diVerences of principle between the remits of the two organisations. The Healthcare Commission is concerned primarily with whole systems and care processes; the MHAC is concerned with the rights of individuals.71 These diVering responsibilities could sit uneasily alongside one another, especially where the latter is but a small part of a wider organisational remit and, over time, may become lost or attenuated. We believe that the draft Mental Health Bill provisions are not yet suYcient, were the MHAC’s role to be subsumed into the Healthcare Commission, to protect against the dissolution of current safeguards extended to formal psychiatric patients into a more generalised system of monitoring healthcare standards. Our primary concern is that the safeguard of visiting may be lost in this way. We believe that the monitoring of psychiatric compulsion should retain at its heart the expectation that any monitoring body will visit hospitals, routinely if at times unannounced, with a view to meeting with patients in private. Without such a process we fear for sustained, patient-centred, specialist monitoring of the operation of the future law. The quality of healthcare services and their sensitivity to issues of human rights can ﬂuctuate quite rapidly and can vary from ward to ward in a single hospital. Even with the small resources available to the MHAC (100 part-time Commissioners, or 15 whole-time equivalent), Commissioners report one or two matters of serious concern every week. These range from unlawful detention and/or treatment to inappropriate seclusion and investigated allegations of abuse of patients. The Healthcare Commission proposal to “sample” and “spot check” perhaps 10% of providers in any year will not provide the safeguards that remain so essential. Although it is diYcult to demonstrate counter- factuals, we are in no doubt that serious abuses and (more generally) systemic failings in providing lawful and appropriate care have been avoided as a result of the MHAC’s regular visits. In our experience healthcare providers generally welcome these visits as a check of quality and as early warning of potential problems within their services. We have yet to receive any undertaking from Government that a body charged with keeping the operation of mental health compulsion under review will visit and interview psychiatric patients who are deprived of their liberty by formal powers. It is unclear from the Government’s approach to this matter whether it has shifted its position from that set out in the 2002 consultation paper,72 which proposed “investigating/visiting for cause” and “collecting information” as the key scrutiny functions of the MHAC successor body.

Investigating/visiting for cause Although the Bill does provide that the Healthcare Commission “must keep under review the exercise of relevant functions in relation to relevant patients” (clause 260), such “review” excludes any function of the Tribunal, the courts or Ministers themselves. The context of this reviewing function links it to the conduct of “investigations”. Whether by intention or not, this context could be interpreted to equate “reviewing” with “investigation for cause”. Government has acknowledged that “most respondents” to its consultation in 2002: were keen that the current system operated by MHAC, involving announced and unannounced visits, and not necessarily linked to a cause for concern, should continue under the Healthcare Commission ...73 Although its stated intention is that the Bill should “provide for a pro-active visiting regime by the Healthcare Commission”, it has described “visiting on a programmed or random basis where there is no indication that there is something amiss” as a “preventative measure”.74. Particularly given the link at clause 260 with the term “investigation”, this signals a shift from the MHAC practice of visiting for the purposes

2 Our concern over such diVering methodologies is reflected in our February 2005 response to the Healthcare Commission’s consultation document Assessment for Improvement (published on the MHAC website www.mhac.org.uk). We have argued that the proposed assessment methodology as set out in the consultation document is inappropriate and inadequate to assure proper assessment of mental health service provision, for the following reasons: — Over-reliance on self-assessment without suYcient checks in the system. For example, the frequency with which the MHAC finds breaches of the law (such as unlawful detentions and unauthorised medication) causes concern about the suYciency of an independent mechanism for checking compliance with legislation; —DiYculties in applying what the document calls “elements” and “prompts” to mental health, and the need for further work to develop and refine these as well as broaden the evidence base upon which decisions are made about whether standards have been achieved; — The categorization and balance between core and developmental standards is wrong when viewed from a mental health perspective. Some mental health trusts will score strongly on some developmental standards (eg partnership working) but fail to meet core standards (eg privacy and dignity). — The proposals lack suYcient acknowledgement of the significance of expert familiarity with the services to be inspected, and the continuing presence of re-visiting and support that is necessary to eVect improvement in services. — The proposals pay insuYcient regard to the value of unannounced visits to premises where detained patients are being treated, and underestimates the risks inherent in not visiting. The MHAC believes that unannounced visits are vital to ensure that serious failings in care are discovered and rectified. This relates to patients’ inability to use choice to drive up improvement, and the need for additional mechanisms to compensate. 72 Department of Health (2002) Mental Health Bill Consultation Document Cm 5538-III, page 9–10. 73 Department of Health (2004) Improving Mental Health Law: Towards a New Mental Health Act, p40. 74 ibid. Joint Committee on the Draft Mental Bill: Evidence Ev 1177

of meeting with patients and supportively monitoring the use of the Act (including, for example, noting and disseminating good practice as well as criticising failings), to an inspection culture where visiting for cause lies at the heart of activity. We are pleased that the “ancillary powers” of access to patients, records and hospital premises (draft Bill, clauses 270–274) are unfettered with regard to giving reasons for such access, etc. However, as the Bill is placing monitoring responsibilities regarding the use of compulsory powers with a generic healthcare inspectorate, we believe that these permissive powers should be reinforced through the creation of a duty to visit patients deprived of their liberty. The Bill’s current construction of the inspectorate’s remit (at clause 260) removes the current statutory expectation that visits to patients deprived of their liberty in the place where they are held will be at the core of monitoring the use of powers and duties under mental health legislation.

Collecting information Clause 258 of the draft Bill requires that the Healthcare Commission should keep Ministers “informed about the exercise of functions” of a number of agencies, including the Tribunal, managers of hospitals and social services authorities. This clause would appear to exclude the Healthcare Commission from taking a legitimate interest in the actions of the police or the criminal justice system, even at a statistical level. The Minister will prescribe what information the Healthcare Commission may gather from any agency other than hospitals or social services authorities. Whilst we welcome this attempt to address the current lack of statistical-level information about the operation of the mental health powers, the data collected on the use of mental health law through the requirements of clause 258 will be incomplete and open to political interference.

Conclusion Thus the 2004 Bill, by setting the monitoring functions of its powers within the above contexts, and in the speciﬁcs of the provision that it makes for such functions, fails in our view to establish powers on the face of the Bill that will ensure adequate oversight of the use of mental health compulsion against the pressures of a general healthcare inspectorate. The key element that is missing from the 2004 draft Bill in this respect is an equivalent to section 120(1) of the Mental Health Act 1983, insofar as this would require the monitoring body to visit and interview patients in private, and link this requirement to a general duty of keeping under review the exercise of powers and discharge of duties relating to the compulsion of patients. Christopher Heginbotham Chief Executive, MHAC

Memorandum from the Department of Health (DMH 453) Memorandum from the Government following the supplemental memorandum from His Honour Judge Sycamore and the MHRT Regional Chairs. I would like to make two general points: — we recognise that there are problems with the MHRT administration and we have a programme of work underway to tackle those problems. There is no question of implementing any new legislation until the Tribunal administration is working eVectively. — on a more general level, although we have said that we are looking at April 2007 for implementation for planning purposes, this is simply a planning assumption. We would not implement new legislation unless we were conﬁdent that we were ready to do so.

Tribunal Administration In response to the comments: — we acknowledge the shortcomings of the current database and eVorts are being made to make best use of it in the short term (including retraining of the staV and archiving the system to make it run more eYciently). In the longer term (12 to 15 months) we are committed to a signiﬁcant investment in upgrading the IT system. We will be retraining staV in the use of the database to improve data quality issues. — we are investigating how we can improve the handling of incoming telephone calls. There may be technical limitations inherent in the current system but we are also exploring ways of how we can handle our calls better and improve our communication with customers and stakeholders (by e- mail, fax, telephone, letter and the web site). Ev 1178 Joint Committee on the Draft Mental Bill: Evidence

— we are committed to improvements to the advance booking system. By the start of the new business year we aim to be booking Tribunal panels at least four weeks in advance of the date of the hearing. The database can be of only limited assistance in this but we are developing other solutions to support the administration in this process. — we are taking steps to improve staV induction, training and development. This will be supported by leadership training for managers. This will reduce turnover and help to improve retention rates. We will be introducing a reward and recognition scheme to encourage innovation. We are also aiming to reduce sick absence rates. — we will be establishing a trial for a case management system in the next few weeks. This will test the viability of moving back to a more localised approach in the booking of the membership and in developing better relations with our stakeholders. —oYcials from DH and the DCA are working together to improve the current level of service provided by the Tribunal. For example, the new Head of the Secretariat is a joint appointment on secondment from the DCA and a Project Manager (funded by DCA) is about to be appointed to work with the new Head of the Secretariat to implement some of the improvements that are set out above. OYcials are also working towards an understanding of the risks and issues associated with an earlier transfer date of the MHRT from the DH to the DCA than is currently timetabled.

Workforce Requirements The implementation programme is designed to deliver the workforce requirements of the Bill. We are currently working on a number of fronts to mitigate the risk of shortages of Tribunal members. This work includes: — considering the use of secondments for ﬁxed terms to provide a core of medical members; — working with professional leaders to inform and encourage members of the professions to ﬁll statutory roles; — examining the professional accreditation that such work would bring and how best to incorporate it into career pathways; — ensuring that the consultant contract both allows and encourages consultants to carry out statutory roles; — looking at ways of supplementing the whole resource available for clinical mental health work— for example the use of advanced practitioners to undertake work traditionally done by consultants, and — ensuring that the rewards are fair.

To take just the ﬁrst of these examples, the estimates in the submission from the Tribunal Heads are derived from a calculation based on the assumption that all new members would continue to do 15-20 sessions per year. One full-time member would thus be able to do the equivalent of 10-15 sessional members. The submission puts an extreme case—all new members are sessional members—and there is another extreme case: if all new members were full-time, the extra requirement would be about 200. We need to scope the correct balance between sessional and full-time members, but the use of full- or part-time members would radically reduce the number of members needed, and thus both the cost and time required to recruit them. We also challenge the assumption that the length of hearings will increase by 50%. This is based on an untested assumption of the time required to consider a proposed care plan, and needs to be balanced by other assumptions—for example it would be fair to assume that because Tribunals will be automatic, many will be uncontentious, and capable of being dealt with expeditiously. It can also be assumed that the increased volume of cases will mean that there are more likely to be full days’ hearings in hospital venues, whereas currently tribunals often consider only one or two cases in a day. Thus it would be wrong to assume, as the submission does, a pure geometric increase in members’ travel and subsistence costs. Also the steps we are taking to improve the performance of Tribunal administration will reduce the number of cancelled Tribunals, thus achieving a saving in the fees and expenses incurred in vain or abortive Tribunals. The submission questions the logistics of the proposed Expert Panel. We agree that they will need to be sorted out, but we do not see that there are any problems that are insoluble. For example the submission states that the presence of an Expert Panel Member would render the process of arranging a Tribunal impossible. We ﬁnd this puzzling, since Courts and Tribunals of all sorts regularly make use of expert witnesses, and it would be axiomatic that Expert Panel members would be required to make themselves available for Tribunal hearings and co-operate with the Tribunal administrators. Joint Committee on the Draft Mental Bill: Evidence Ev 1179

Human Rights Considerations The Government considers that the provisions of the draft Bill are consistent with domestic and European human rights law. The proposal for early independent scrutiny and authorisation of the use of compulsory powers is a key improvement in the protection of patients’ rights under the Bill. It is true that this signals a change in the role of the Tribunal. Applications may be made to the Tribunal by both clinical supervisors seeking orders authorising the assessment and treatment of patients and patients (or their representatives) challenging the use of compulsory powers. Patient applications, however, are not appeals against earlier Tribunal decisions, they are applications for a review of the case. This is an important distinction because, in hearing patient applications, the new Tribunal will not revisit an earlier decision but will consider the patient’s case afresh and make a new decision according to the up-to-date facts and circumstances prevailing at the time. In the unlikely event that a patient application is heard by the same panel of Tribunal members as dealt with an earlier application, this would not give rise to a conflict of interests. The Bill establishes a separate Mental Health Appeal Tribunal to hear appeals on points of law which will consider whether an earlier decision was lawful. Another important improvement in the protection of patients’ human rights is the replacement of the existing dual role of the medical member of the MHRT. Under the current legislation, the medical member both examines and reports on the patient to the Tribunal, and also sits as a decision-making member of the Tribunal panel hearing the case. While the Courts have found the current system to be consistent with the requirements of the ECHR, the Government wishes to take the opportunity to establish a separation of roles between the medical expert providing independent advice to the Tribunal and the Tribunal members making determinations based on their evaluation of the evidence before them. There is provision allowing for one or two member Tribunals to operate in circumstances which will be set out in the Tribunal Rules. However, where a patient’s liberty is under consideration the Tribunal will consist of three members. On the specific detailed points of concern raised: — the first point appears to be based on a misunderstanding. Whenever a Tribunal order is made for a period of three months or more, the patient, their Nominated Person on their behalf, and anyone with parental responsibility for a child under 16 has the right to make an application to the Tribunal for discharge. While there is only a right to make one application during the period of a Tribunal order, further applications may be made with the leave of the Tribunal. In addition, whenever the status of a patient is changed from non-resident to resident and they are detained in hospital, they, their Nominated Person, or a parent has a separate right to apply to the Tribunal to challenge detention. — we agree that the availability of a report from an independent medical expert drawn from the Expert Panel is an important safeguard for the patient’s rights. That is why the provisions of the Bill make it clear that in all cases involving applications for the compulsory assessment or treatment of a patient, such a report is mandatory and Tribunals will not be able to proceed without one. As explained in the covering letter, we recognise that this means that we will only be able to commence the new system once all the necessary preparations have been made and new systems are in place. — we recognise that there is a risk that the new system may aVect the amount of time that a clinician has for patient care. We are addressing this risk through the implementation planning. The aim is to ensure that the administrative and procedural burdens are kept to the minimum consistent with providing the new improved levels of safeguards for the patients. — the separation of the functions of providing expert advice for the Tribunal and making Tribunal decisions (as explained above) emphasises that the Tribunal’s role is to analyse and question the evidence put before it. It will continue to be of utmost importance that all Tribunal members are properly equipped to undertake the role. In particular, it will remain most important that clinical members have appropriate expertise and experience in the treatment of mental disorder and are adequately trained to be able to question the evidence of both clinical supervisors and medical experts. Removing the limitation of the role to psychiatrists and allowing other senior professionals practicing in mental health to undertake this role, psychologists for example, will not reduce the status of this category of Tribunal member but will potentially widen the pool of professional expertise available to recruit members from. — we agree that it is important that any party to a case will have the right to an oral hearing and that whenever a patient’s liberty is under consideration the Tribunal will always consist of three members. — when the Tribunal hears an application for a compulsory assessment or treatment order, it must first be satisfied that the relevant conditions are met. Whenever the procedures of the Bill require consideration of the relevant conditions, decision-makers must exercise their professional judgement in deciding whether the conditions are satisfied. That is where discretion lies. The Tribunal may, for example, find that the patient is not disordered, or not suYciently disordered, that compulsion is not necessary, or that available treatment is not appropriate in all the patient’s circumstances. Unless satisfied that all the conditions are met, the Tribunal must discharge the Ev 1180 Joint Committee on the Draft Mental Bill: Evidence

patient from compulsion. Under the 1983 Act, the Nearest Relative’s right to discharge from detention is only eVective where the Responsible Medical OYcer does not furnish a report to the hospital managers under s25. Under the Bill, the role of Nearest Relative will be superseded by the Nominated Person. The patient’s Nominated Person has the right to apply to the Tribunal for discharge on behalf of the patient.

Proposals for Non-Legislative Change The Tribunal Heads make three suggestions for changes that could be made without primary legislation. They suggest that the Secretary of State could use his powers under s.68 and s.71 to reduce the automatic period within which the existing MHRT must hear every case. While it may be possible to use these powers in this way, it would not fully address our objectives for the Bill. We have explained above why the Bill introduces the new separation of roles between the Expert Panel member and the clinical member of the Tribunal. It is unclear what action could be taken to achieve greater clarity but, in any case, this would not address the fundamental aim to establish distinctly separate statutory roles. We note the suggestion about legal representation for patients lacking capacity, but this would only go part way to address the aim of providing strengthened protection for all patients. We would also conﬁrm that there is no suggestion that independent mental health advocates would ever replace legally qualiﬁed representatives for patients at Tribunals. Their role and expertise is quite diVerent. We appreciate the suggestions for change which may improve matters under the current legislation, prior to the introduction of any new legal framework. The Government is committed, however, to introducing its proposals for a fully reformed legal framework as soon as possible. We would not want to delay making full preparation for the implementation of new legislation as soon as this can practically be achieved. February 2005 Department of Health

Memorandum from the Government (DMH 456)

MEMORANDUM ON DELEGATED POWERS DEPARTMENT OF HEALTH AND HOME OFFICE

Introduction 1. This memorandum identiﬁes the provisions for delegated legislation in the draft Mental Health Bill (published on 8 September 2004). It summarises the main provisions of the Bill; identiﬁes the delegated powers in the Bill and describes the purpose and proposed use of those powers; explains why the matters have been left to delegated legislation; and explains the degree of Parliamentary control provided for and reasons for the procedure selected in each case.

Main Provisions of the Bill 2. The draft Mental Health Bill is intended to replace most of the Mental Health Act 1983. Those Parts of the 1983 Act concerning the management of property and aVairs of patients are intended to be replaced by provisions in the Mental Capacity Bill, which is currently before Parliament. The draft Mental Health Bill contains 13 Parts and 14 Schedules. The Bill refers throughout to the appropriate authority which is defined to mean either the Secretary of State or, in relation to Wales, the National Assembly for Wales (NAW). 3. Part 1 requires the appropriate authority to issue a code of practice. The code will set out the guiding principles for decisions under the Bill and provide guidance as to the discharge of functions under the Bill. The Code may disapply the principles in certain circumstances or cases. The principles must be designed to secure the matters specified in clause 1(3). This Part also introduces definitions for some terms used throughout the Bill, such as mental disorder and medical treatment. Finally, Part 1 provides for the creation of the Mental Health Tribunals (MHT) (one in England and one in Wales), Mental Health Appeal Tribunal (MHAT) and Expert Panel. 4. Part 2 sets out the procedures for the use of formal powers under that Part, that is all patients who come through the civil route (patients who come through the criminal justice system are covered by Part 3). It consists of three main stages: examination, initial assessment, and assessment and treatment under the order of the MHT. Part 2 covers the following: — the relevant conditions which must be satisfied before any of the formal powers provided for in Part 2 can be used (clause 9). Joint Committee on the Draft Mental Bill: Evidence Ev 1181

— the arrangements for the examination of a patient, who should examine the patient and the decisions to be made. Where the examiners decide the relevant conditions are met, the patient will be liable to formal assessment (Chapter 2). — the arrangements for a period of assessment and treatment under the supervision of a clinical supervisor. It also details the determinations to be made on assessment, such as whether treatment should be provided under the Bill and, if so, what treatment should be provided. Subject to Part 5, the patient may be treated without the patient’s consent during the assessment period on the basis of an individual care plan (Chapter 3). — the procedure available to a patient to apply for discharge from initial liability to assessment via an application to the MHT (Chapter 5). — the procedure for authorisation of treatment and assessment under formal powers after the initial assessment period: by application to the Tribunal for orders authorising medical treatment of the patient or an extended period of assessment (Chapter 6). — the discharge of orders made under Chapter 6, that is, ending assessment or treatment under formal powers (Chapter 7). — deferred discharge of orders while post-discharge services are being organised (Chapter 8). — Tribunal proceedings generally (Chapter 9). — powers to permit the transfer of patients between hospitals, the enforcement of a requirement on a non-resident patient to attend hospital and for the return of patients who are absent without leave (Chapter 10). 5. Part 3 provides for the management and treatment of patients concerned in criminal proceedings and related matters. It retains the sentencing options and mental health disposals which were available to the courts under the 1983 Act. However, these disposals are set in the context of a new framework for dealing with mentally disordered people who are before the courts or sentenced to prison. Mentally disordered people before the courts and in prison will, as far as possible, be treated in the same way as patients who are not concerned in criminal proceedings. — Chapter 1 sets out a new system of remands to hospital for mental health reports and remands and committals to hospital for medical treatment, thereby ensuring that the court can have access to a full report on the defendant’s mental health before deciding on the disposal which it will make in respect of that person. It also sets out the courts’ powers in respect of absconders. — Chapter 2 sets out the conditions under which the courts can make mental health disposals (mental health orders) or penal disposals with a mental health component (hospital directions), and the eVects of these disposals on the patient. It also provides for the courts to make a restriction order in respect of the patient, thereby giving the Secretary of State powers over the management of the patient. It sets out the patient’s right of appeal against a disposal made by the magistrates’ courts where the person has not been convicted of an oVence. — Chapter 3 provides for persons detained in prison to be transferred to hospital for report or treatment, and sets out the restrictions on their discharge as well as the provisions for termination of transfer directions. — Chapter 4 deals with applications to the Mental Health Tribunal and the Tribunal’s powers in dealing with applications and references concerning restricted patients. — Chapter 5 provides supplementary information on interpretation and also provides for various miscellaneous court powers. 6. Part 4 deals with the transfer of patients who are subject to formal powers in England and Wales to and from “relevant territories”, that is, Scotland, Northern Ireland, any of the Channel Islands and the Isle of Man. 7. Part 5 provides for the delivery of treatment. It sets out the circumstances in which treatment under formal powers may be given (clauses 198 to 200). Provision is made for the authorisation and delivery of treatments such as electroconvulsive therapy and psychosurgery to which special safeguards apply. 8. Part 6 provides for the treatment of people aged under 18. The eVect of clause 202 is that the decisions of patients aged 16 and 17 will be treated as if they were adults. A person under 16 who meets the conditions set out in clause 207 will be treated as a “qualifying child patient”—with the safeguards under Chapter 2 of Part 6. The consent of at least one parent or other person in a position of parental responsibility is required. 9. Part 7 provides for powers to enter property and to transport and detain people which may be required in relation to patients who may need care and treatment. It provides powers of entry and removal for the police to empower them to deal with a mentally disordered person who is in need of care and treatment but not receiving it. Such a person can be removed to a place of safety and detained there for up to 72 hours pending an examination. Ev 1182 Joint Committee on the Draft Mental Bill: Evidence

10. Part 8 sets out the arrangements for patients to have access to support and representation. Chapter 1 is concerned with nominated persons appointed to act on behalf of patients subject to formal powers (apart from restricted patients) or who qualify for safeguards under Chapter 2 of Part 6. Chapter 2 makes provision for the availability of independent mental health advocates to patients and to their nominated persons. 11. Part 9 sets out the arrangements for rights of appeal on points of law to the MHAT against decisions of the MHT and to the Court of Appeal against decisions of the MHAT. 12. Part 10 deals with the functions of the Commission for Healthcare Audit and Inspection (CHAI). CHAI is the healthcare inspectorate established under the Heath and Social Care (Community Health and Standards) Act 2003 to promote improvement in the quality and provision of healthcare across the NHS, private and voluntary sectors. The 2003 Act confers upon the NAW the function of undertaking reviews of healthcare in Wales and the Healthcare Inspectorate Wales (HIW) has been set up to carry out such reviews. The Mental Health Bill gives CHAI in both England and Wales a role for reviewing and monitoring the use of the powers, similar to that undertaken by the Mental Health Act Commission (MHAC) under the Mental Health Act 1983. It will, for example, gather information and carry out investigations. In England, CHAI will provide a single point of access on quality issues for patients, service providers and the Government. In Wales there will be close co-operation between CHAI and HIW. These functions will replace those of MHAC set up under the 1983 Act. 13. Part 11 creates oVences under the Bill. Clause 278 provides for an oVence of obstructing a person who is discharging a function under the Bill. Clauses 279 to 281 create oVences in connection with forgery and false statements, ill-treatment and wilful neglect of patients and assisting patients to absent themselves without leave. 14. Part 12 deals with supplementary issues: — the rectiﬁcation of documents which are found to be incorrect or defective (Chapter 1). — duties to provide patients and their nominated persons with information and explanation to help them understand how the provisions in the Bill aVect them; and the sharing of information about patients (Chapter 2). — the control of patients’ correspondence in the interests of the safety of the patient or for the protection of other people. It also covers the payment of occasional personal expenses to resident patients who would otherwise be without resources (Chapter 3). — the arrangements in relation to Members of Parliament and members of the devolved legislatures who are subject to formal powers under the Bill or to corresponding provision in the other countries (Chapter 4). — a defence of good faith and reasonable care for an individual in any civil proceedings who purports to have acted under or in pursuance of the Bill. It also sets out provisions in relation to inquiries held in connection with any matters arising under the Bill (Chapter 5). 15. Part 13 sets out general provisions including in relation to powers under the Bill to make regulations and orders by way of statutory instruments, interpretation and payment of expenses. 16. The Schedules set out further details for the exercise of powers and duties under the Bill. — Schedule 1 sets out functions excluded from the remit of the Code of Practice. These are functions relating to patients concerned in criminal proceedings. — Schedules 2, 3 and 7 set out the constitution of the MHT, the arrangements for the transfer from Mental Health Review Tribunals under the 1983 Act to the MHT, and the rules for the MHT. — Schedule 4 covers the constitution of the MHAT. — Schedule 5 deals with the relationship between Parts 2 and 3. — Schedule 6 deals with the arrangements for holding certain patients in hospital to allow an examination to be carried out. — Schedule 8 deals with the application of the general provisions of the Bill to a patient who is subject to a mental health order under Part 3, and — Schedule 9 deals with the same matters for a patient subject to a transfer for treatment direction. — Schedule 10 deals with the transfer of property, staV and other matters from the MHAC and the Crown to CHAI. — Schedule 11 lists oYcials with whom all patients are entitled to communicate without consideration as to whether any correspondence should be withheld. — Schedule 12 makes further provision in relation to Members of Parliament and members of the devolved legislatures who are subject to the Bill or to provisions in Scotland or Northern Ireland. — Schedule 13 provides an index of deﬁnitions set out in the Bill. — Schedule 14 sets out the transitional provisions. Joint Committee on the Draft Mental Bill: Evidence Ev 1183

(Further schedules would be added to a ﬁnal Bill, for example, a Schedule providing for consequential amendments and repeals.) 17. The Explanatory Notes which accompany the draft Bill set out in greater detail the background to, and purpose behind, each of the provisions.

Delegated Powers 18. A table at the back of this memorandum lists all the clauses containing delegated powers in the draft Mental Health Bill and the relevant parliamentary procedure governing each power. These procedures are set out in clause 300 of the draft Bill. 19. This Memorandum sets out whether scrutiny by the Westminster Parliament is intended to be by negative or aYrmative procedure in respect of powers to make statutory instruments exercised by the Secretary of State. Statutory instrument making powers exercised in respect of Wales will be subject to the subordinate legislation procedures of the NAW.

Clause by Clause Summary

Part 1 Introductory

Clause 1 Code of Practice: general principles and guidance 20. Clause 1 provides that the appropriate authority must publish a Code of Practice to which a person must have regard whenever coming to a decision or discharging a function under the provisions of the Bill. The Secretary of State for Health will publish a Code for England and the NAW for Wales will publish a Code for Wales. Criminal justice matters which are not devolved will remain the responsibility of the Home OYce and will be common to both Codes. 21. The Code must set out general principles designed to ensure that patients are involved in fair and open decision-making, and that the least intrusive treatment and least restrictive requirements are imposed on patients, consistent with the need to protect the health or safety of self or others. The Code may set out circumstances in which the guidance or general principles do not apply, where the application would be inappropriate or impractical. Schedule 1 speciﬁes certain functions relating to mentally disordered oVenders which are excluded from the remit of the Code. 22. The Codes may be amupdated. Before publishing or amending a Code, clause 1(8) requires the appropriate authority to consult with those it considers appropriate. Consultation is not required in case of urgency or where consultees agree it is not needed. The intention is to involve stakeholders in the development of the Code so that it is drafted in a way that maximises its usefulness in helping practitioners make decisions. 23. In the case of England, clause 1(11) provides that before publishing or revising the Code, the Secretary of State must lay a draft before both Houses of Parliament and bring it into operation by an order subject to the negative resolution procedure. Parliament will therefore have an opportunity to see the proposed Code. The current Act requires the Code of Practice to be laid before Parliament for 40 sitting days; this has made it diYcult to make changes to the Code quickly which has led to supplementary guidance being issued separately which should, more appropriately have been incorporated in the Code. The procedure under the Bill will allow for any revision to be made more quickly should the need arise, for example, should new guidance be required in response to a court judgment. Stakeholders will be involved in the development of the new Code. It is intended to lay the Code and make the order in advance, before it is brought into eVect. Ideally, so that it will be available to inform the initial training of those with functions under the Bill and of those who need to be aware of the impact of its provisions, before the Bill is commenced. The procedures for the Code and the commencement Order are considered to provide appropriate and suYcient Parliamentary scrutiny. 24. The Code of Practics will be brought into force by an order by the NAW.

Clause 3 Approved clinician and mental health professional 25. Clause 3 sets out what is required for a clinician or a mental health professional to be approved for the purposes of the Bill. Both have important functions and play key roles in the exercise of formal powers under the Bill. 26. In the case of apprcians in England, in keeping with Department of Health policy, it is envisaged that responsibility for approval will be delegated, using powers in other legislation, to local NHS bodies. It is intended that approved clinicians will be senior psychiatrists and clinical psychologists. Consideration is also being given to whether, and at what stage, other professions may become eligible to be approved. 27. In the case of Approved Mental Health Professionals (AMHPs), clause 3 places the responsibility for approval on local social services authorities in England and Wales. The role of the AMHP will eVectively supersede that of the approved social worker (ASW) under the 1983 Act and the intention is to build on the Ev 1184 Joint Committee on the Draft Mental Bill: Evidence

existing competencies and training of current ASWs. In making an approval the local social services authority must have regard to directions which the appropriate authority may issue. In England it is intended that directions would be issued by the Secretary of State and set out the professions, qualiﬁcations, relevant experience and specialist training that would be acceptable criteria for approval. Similar directions will be made in Wales by the NAW. 28. In both cases, it iat the procedures should be the responsibility of the organisations responsible for delivering health and social care services. The appropriate authority’s powers of direction will allow eligibility criteria for AMHPs to be developed in consultation with the relevant professional representative organisations, and non-statutory guidance may be issued regarding the standards for approved clinicians. In preparing directions and non-statutory guidance, the Secretary of State and the NAW may consult, for example, the Royal College of Psychiatrists, Royal College of Nurses, British Medical Association, British Psychological Society, College of Occupational Therapists and British Association of Social Workers.

Clause 7 Expert Panel 29. This clause provides for the appropriate authority to appoint a panel of persons, known as the Expert Panel, to carry out functions conferred on it by the Bill. Primarily, these are to provide independent advice to the court and the Mental Health Tribunal. Panel members also have a role in independently approving care plans for children entitled to special safeguards under Part 6 of the Bill. 30. It is intended thatt Panel will consist of experts from a wide variety of disciplines. While key responsibilities of Experts under the Bill require medically qualified experts, the intention is to be able to appoint experts from other professions within mental health and social care services such as psychologists, nurses and social workers and to ensure there are clinicians who are experts in diVerent specialisms such as dealing with patients with mental disorders who are children, older people, or have learning disabilities. 31. Regulations made by the appropriate authority under clause 7(2) will make provisions as to the type of people who can be considered for appointment to the Panel. This will allow the appropriate authority to set out the eligibility criteria as to what standards of qualification, competencies, skills or experience are required for a person to be appointed to the Expert Panel. Making provision in regulations will allow the flexibility in both England and Wales, to respond to changes and developments in professional practice, standards and qualifications. The regulations are proposed to be subject to the negative resolution procedure which is considered suYcient in the circumstances.

Part 2 Examination, Assessment and Treatment

Clause 14 Duty to arrange examination etc 32. This clause provides for the appropriate authority to arrange for the initial examination of a patient where it appears that the relevant conditions set out in clause 9 may be met. It is intended to delegate this function in England and Wales under powers in the NHS Act 1977. The NHS body responsible must appoint two doctors and an AMHP to examine the patient to determine whether the conditions are satisfied and, if so, whether the patient will be liable to assessment under the formal powers of the Bill as a resident or non- resident patient. 33. Clause 14(5)(a) enables the appropriate authority to provide in regulations for the type of person who may be appointed as one of the doctors in such a case. The intention is to ensure that at least one of the doctors is a specialist in the diagnosis and treatment of mental disorder. As with the power in clause 7, making provision in regulations will allow the flexibility to respond to changes and developments in professional practice, standards and qualifications. 34. The power in clause enables the appropriate authority in regulations to describe persons subject to a potential conflict of interest and who cannot therefore be appointed. Examples of the types of circumstances that might be precluded are where a doctor has a financial interest in the independent hospital where the patient is being treated, or where all three examiners are employed within the same NHS management unit. In the latter case this could, in particular, lead to an AMHP who may be junior to the doctors in professional status, being brought under inappropriate pressure. Making such provision in regulations will allow flexibility to respond to changes in how mental health services are configured and delivered. See also paragraph 2(2) to Schedule 8 and paragraph 3(2) to Schedule 9 which mirror this provision. 35. In both cases the powers are subject to negative resolution procedure which is considered to give an appropriate level of Parliamentary scrutiny.

Clause 15 Determination to be made on examination 36. This clause deals with the purpose of the examination by setting out the decisions that each of the examiners must make. First, they must determine whether all of the relevant conditions are satisﬁed in the patient’s case. Formal powers under Part 2 cannot be used if any of the examiners decides that any of the relevant conditions is not met. Where the patient falls within a description set out in regulations made by Joint Committee on the Draft Mental Bill: Evidence Ev 1185

the appropriate authority under clause 15(2), the examiners must then decide whether the patient needs to be detained in hospital for formal assessment to be carried out, or whether the assessment can be done while the patient is in the community. The introduction of assessment in the community is a departure from the 1983 Act the powers under which a person who meets the criteria for treatment under the Act may only be treated in hospital. 37. Assessment as a non-resident patient from the outset will only be an option for those patients described in regulations. The aim of the Bill is to ensure that all patients are properly assessed and for most patients it will still be appropriate for this to happen in hospital. Provision has been made for a regulation- making power to define a limited group of patients who could be considered for non-resident status without an immediately preceding admission to hospital. The prime group it is intended to describe in the regulations would be patients whose conditions and treatment are already familiar to the clinical team and who have recently been assessed as a hospital inpatient, whether under an earlier period under compulsory powers or as a voluntary patient. For example, those patients who are prone to relapse on discharge and who are likely to get into a cycle of admission and discharge from hospital (known as revolving-door patients). The regulations are likely to describe the minimum length of earlier hospital admission to allow for a full assessment to have taken place and will also need to set the period within which that earlier hospital stay must have occurred. The precise detail is to be developed in consultation with clinical practitioners to ensure the aim is achieved without creating an obstacle to sensible clinical decision-making. 38. For the group of pacribed in the regulations the practitioners will be able to consider assessment in the community. They may still decide that the patient should be resident in hospital because, for example, the earlier hospital admission was in another area and not under the care of the current clinical team. If it is found, however, in all the circumstances of the risk the patient poses and the treatment and services available to support them, that they could safely be treated in the community, then this option will be available. The ability of practitioners to make this decision is an important safeguard of the patient’s rights and a way of allowing the principle of least restriction to be put into practice. 39. The majority of patients will fall outside this group. This majority group, and all patients treated using emergency powers under clause 17, will need to be detained for assessment as resident patients in hospital until a care plan has been drawn up in accordance with the provisions of clauses 31 and 32. Once a care plan is in place, the duty on the clinical supervisor to keep residency status under review will come into eVect and the clinical supervisor is able to decide, where appropriate, that the patient can be treated as a non-resident patient (as provided under clause 26). 40. The matter has beenelegated legislation as this will allow amendments to reflect developments in professional practice and service provision. These provisions define (by default) who must be detained in hospital and, therefore, because of the significant implications for patients’ human rights, the Parliamentary procedure for this power is aYrmative resolution.

Clause 21 Examinations: power to make supplementary provision 41. Clause 21(1) provides the appropriate authority with power to make regulations in connection with the carrying out of examinations. There are number of aspects which regulations may cover as stated in subsection (2). 42. The regulations mayhe examiners to consult or notify particular people of certain matters at certain times; the regulations may provide for people to make representations which are to be taken into account by the examiners and for the form in which records or notiﬁcations must be made. 43. The basic and most important aspects of examination are on the face of the Bill. For example, clause 15 requires examiners to consult with the patient, parents and carers before making any decision about the patient. Also, clause 19 requires the AMHP to notify the patient, and parents of children under 16, when they become liable to assessment under the Bill, of the reasons for the decision and the availability of specialist advocacy under clause 247. The intention is to allow these primary provisions to be supplemented where appropriate. For example, if it is decided that a patient is liable to assessment under the Bill, the patient’s own GP should be notiﬁed.

Clause 31 Care plans 44. Under clause 31, the managers of the hospital with which a patient is registered must ensure that the patient’s clinical supervisor prepares a care plan for him within 5 days of the patient’s admission to hospital under Part 2 or, if a non-resident patient, within 5 days of the imposition of conditions being authorised. Once the initial care plan is included in the patient’s records it remains in force until it is amended or the assessment period deﬁned in clause 25 ends, whichever is the earlier. The clinical supervisor may amend the plan at any time while it is in force but must consider amending it within a further 5 days. 45. Under clauses 199 and 200, treatment may only be given without consent if it is described in the care plan. Ev 1186 Joint Committee on the Draft Mental Bill: Evidence

46. Clause 31 contains subsections (2) and (3) for the appropriate authority to prescribe in regulations the form the plan must take and the information to be included in it. It is intended that regulations will require the plan to record information to identify the patient and the practitioners and other health and social care professionals responsible for the provision of the care and treatment set out in the plan. These powers are mirrored in a number of clauses dealing with applications to the Tribunal under Part 2 (see paragraph 55) and under Part 3 (see paragraph 86). 47. This is a detailed procedural matter and the negative resolution procedure is considered to provide suYcient level of Parliamentary scrutiny.

Clause 33 Assessments: power to make supplementary provision 48. Clause 33(1) provides the appropriate authority with power to make regulations on notifications to people about the carrying out of assessments. The regulations may, in particular, specify the time notifications are to be given, the form in which they are to be made and the people to give and receive notifications (see subsection (2)). 49. The most important requirements are on the face of the Bill. For example, under clause 25 the patient’s clinical supervisor must notify the patient’s carer and the parents of a patient under 16, if he determines that any condition is no longer satisfied and the patient is no longer liable to compulsory assessment under the Bill. The intention is to supplement these primary provisions by setting out in regulations additional requirements. For example, to notify carers and others where the patient’s status changes from resident to non-resident under clause 26.

Clause 34 Interpretation of Chapters 5 to 10 50. Clause 34 makes provisions setting out when Tribunal applications required or permitted under Chapters 5, 6, 7 or 10 of Chapter 4 are to be dealt with by the MHT for England and when they are to be dealt with by the MHT for Wales. Generally, if a patient is registered with a hospital in England, applications will be dealt with by the MHT for England and if a patient is registered with a hospital in Wales, applications will be dealt with by the MHT for Wales. 51. Clause 34(3)(b) makes these provisions subject to rules made by the Lord Chancellor under clause 74(2)(a) relating to both MHTs and under clause 252(2)(c) relating to the MHAT, or by directions made by the Court of Appeal under clause 254(6)(c). 52. It is intended that rules will set out which Tribunal should deal with a case where an appeal results in the case being remitted back to the MHT for a fresh decision but the patient has, meanwhile, moved between England and Wales. The reason why cases are remitted for a fresh decision, rather than the MHAT or Appeal Court making a substitute determination, is that the case needs to be considered in the light of the patient’s current circumstances. In most cases, therefore, rather than the original Tribunal, it will be the hospital with which the patient is currently registered that will determine whether it is the MHT for England or the MHT for Wales who will hear the remitted case. An exception to this general approach may be made where the appeal has arisen from a patient objecting to being transferred, such cases should be heard by the MHT for the originating jurisdiction.

Clause 36 Power of Tribunals: applications under section 35 (Clause 56 Power of Tribunals: applications under section 54 or 55) 53. Clause 36 sets out the powers of the Tribunal to deal with applications made by a patient, Nominated Person or parent under clause 35. Clause 36(2) requires the Tribunal to determine applications within the period specified in rules made by the Lord Chancellor under clause 74 for MHTs in both England and Wales (see note on clause 74 below). Similarly, clause 56(2) requires the Tribunal to determine applications made by a patient, Nominated Person or parent under clause 54 or 55 within the period specified in rules made by the Lord Chancellor. 54. The two main priorities for the Tribunal system are to ensure independent authorisation of all cases by the 28 day stage (unless dealt with by the court) and to provide speedy hearings of patient challenges to detention as required by the European Convention on Human Rights. It is intended that rules will require all patient applications challenging detention made under these clauses to be heard within 7 days. This is in keeping with the existing Rule for the Mental Health Review Tribunals hearing applications from patients detained under Section 2 of the 1983 Act. It is intended that time limits for hearing other patient applications will be 8 weeks. Providing time periods in rules will allow flexibility to make amendments as needed, for example, in response to court judgements. The rules will be subject to the negative resolution procedure which is considered suYcient for these procedural matters. Joint Committee on the Draft Mental Bill: Evidence Ev 1187

Clauses 39, 40, 42, 43 and 58 Applications for orders, or further orders, authorising medical treatment or assessment and for variations of such orders 55. Where, during the initial 28 day period of assessment, the clinical supervisor determines that all the relevant conditions are satisﬁed and that either the patient’s assessment is complete, or that further assessment is needed in order to determine the longer term treatment of the patient, clause 38 requires him to apply to the Tribunal for an order authorising medical treatment or an order authorising assessment accordingly within a period to be speciﬁed in rules made by the Lord Chancellor, and see clause 38(7) and clause 41(5) which mirror this provision. The procedures for applying to the Tribunal for orders authorising treatment or assessment within the initial 28 days are set out in clauses 39 and 40. 56. Where the Tribunal has already made an order and the clinical supervisor determines that all the relevant conditions are met and are likely to continue to be met at the end of the period for which the order is in force, clause 41 requires the clinical supervisor either to apply for a further order authorising medical treatment or, where further assessment is needed in order to determine the longer-term treatment of the patient, to apply for a further order authorising assessment. The procedures for applying to the Tribunal for further orders authorising treatment or assessment are set out in clauses 42 and 43 respectively. 57. Where a Tribunal order is in force and the clinical supervisor determines that all the relevant conditions are met and it is necessary to vary the order in question, clause 58 requires him to apply for an order of variation and sets out the procedures for making such applications. 58. There are common provisions for making applications under clauses 39, 40, 42, 43 and 58. For example, they each require the clinical supervisor to review and, where necessary, amend the care plan and submit it as part of the application. The care plan is the one in force under clause 31 or approved by the Tribunal. The amended care plan must include information and be in the form prescribed by the appropriate authority under clause 39(3). See also clauses 40(3), 42(3) and 43(3); paragraph 9(3) to Schedule 8 which mirror this provision. It is intended that regulations will require the plan to record information to identify the patient and the practitioners and other health and social care professionals responsible for the provisions of the care and treatment set out in the plan. (The powers to prescribe are the same as in relation to the original care plan under clause 31(3)). 59. The application must also contain other information. The clinical supervisor must, for example, describe the mental disorder for which treatment is to be provided in accordance with the plan. The application must also set out any other treatment being provided for the patient on a voluntary basis. The clinical supervisor must also explain, with reasons, his proposals as to whether treatment should be provided in hospital as a resident patient or in the community as a non-resident patient. Clause 39(5)(e), creates a power for the appropriate authority to prescribe by regulations any other matter that must be included in the application. This power is mirrored in the equivalent provisions relating to other Tribunal applications under clause 40(5)(e); clause 42(5)(e); clause 43(5)(e) and clause 58(6)(e). The intention is to ensure that the Tribunal has a complete picture of all the patient’s circumstances and the whole care package. For example, it is proposed that regulations will require that the application should indicate whether there are any plans to grant leave, which may be an important element in the patient’s recovery and, if so, the intended circumstances such as the purpose of leave, duration, whether accompanied or not. 60. The matters intended to be prescribed in regulations are detailed matters concerning applications and the negative resolution procedure is considered to provide a suYcient level of Parliamentary scrutiny.

Clause 46 Order (or further order) authorising medical treatment 61. Clause 46 sets out the matters which are required to be included in Tribunal orders authorising the medical treatment of patients; both initial and subsequent treatment orders. Treatment orders must state that the care plan is approved, with or without modiﬁcations; they must state whether the patient is to be resident or non-resident, and in the latter case, what conditions are imposed on the patient. For resident patients, the Tribunal has the discretionary power to state whether the clinical supervisor is authorised to make decisions about the discharge of the order, the transfer of the patient to another hospital or the granting of leave to the patient, or whether these decisions must be referred back to the Tribunal. Under clause 46(5)(c), the Tribunal can only reserve the powers to itself if the patient falls within a description set out in regulations made by the appropriate authority. 62. The intention is that the Tribunal’s discretionary power would be available in cases raising diYcult issues of balance between a patient’s rights and the need to protect others. It is intended that the group of patients described in regulations will be those posing a substantial risk of causing serious harm to others. This will ensure that such a patient is not released into the community, temporarily or permanently, on the basis of a decision by a single decision-maker, the patient’s clinical supervisor. It ensures that an independent, non-clinical element is brought to decision-making, taking into account all the issues and circumstances of the case. Under the Bill, the Home Secretary, as now, has similar powers in relation to restricted patients. The aim is to better manage risk to the public posed by the small minority of psychiatric patients who pose a substantial risk of causing serious harm to others and increase public conﬁdence in the discharge procedure. Ev 1188 Joint Committee on the Draft Mental Bill: Evidence

63. These provisions have potentially signiﬁcant implications for patients’ human rights and have been left to delegated legislation as this will allow amendment to the deﬁnition of the group of patients involved, should it be found, for example, that the threshold of risk has been set too high or too low. The Parliamentary procedure for this power is aYrmative resolution to ensure the proper level of scrutiny for this serious matter. 64. Under clause 49(5)(c), these regulations also extend to Tribunal orders, or further orders, made under clause 49 authorising assessment.

Clauses 47, 50 and 56 Orders (or further orders) authorising medical treatment or assessment: supplementary and Powers of Tribunal 65. Clause 47 primarily sets out the periods for which treatment orders, or further treatment orders, may be made and also allows the Tribunal discretion (under subsection (5)(b)) to make such incidental or consequential provisions as the Tribunal thinks ﬁt. Clause 47(5) further requires such orders to include provisions set out in regulations. There are separate regulation-making powers for the Secretary of State and the NAW according to whether the Tribunal making the order is the MHT for England or the MHT for Wales. 66. Equivalent provisions are made for the Secretary of Sate and the NAW to make regulations in respect of Tribunal orders, or further orders, authorising assessment at clause 50 (6)(a) and at clause 56(11)(a) in respect of Tribunal orders made in response to applications made by patients, their Nominated Persons, or parents under clauses 54 and 55. The period for the Tribunal to determine applications 67. The most important matters which must be set out in Tribunal orders authorising treatment are set out on the face of the Bill. The regulations which supplement these matters are proposed to be subject to the negative resolution procedure which is considered suYcient in the circumstances.

Clause 67 Adjustments between social service authorities 68. Clauses 63 to 67 of Chapter 8 of Part 2 make provisions setting out the circumstances in which a patient’s discharge from detention in hospital under the Bill may be deferred for a maximum period of eight weeks in order to allow for a plan for post-discharge services to be prepared and agreed by the hospital and relevant local authority. Under clause 67(1), the appropriate authority may make regulations as to how Chapter 8 is to apply if there is doubt about where a person is ordinarily resident, or where it appears to a local authority notiﬁed of a duty under clause 64, that the person concerned is ordinarily resident in another local authority area. Clause 67(2) sets out that such regulations may, in particular, authorise or require a local authority to accept a notice notwithstanding any dispute that it is the right authority; to become the responsible authority for the person’s case and to recover any expenditure incurred as a result from another local authority. 69. The intention is to ensure that a person’s case is not delayed pending resolution of a dispute about which local social services authority is liable to provide services to them. This is particularly important given the absolute time limit of eight weeks stated in clause 63 for which an order deferring discharge of the patient may be in force. After the expiry of this period, the hospital managers will no longer have authority under the Bill to detain the person in hospital, regardless of whether a plan for post-discharge services has been agreed. The time limit is an important safeguard for the person’s right not to be detained unreasonably when the conditions are no longer satisﬁed. This would not prevent the person agreeing to stay in hospital on a voluntary basis. The regulations on these procedural matters are proposed to be subject to the negative resolution procedure which is considered suYcient in the circumstances.

Clause 74 Rules 70. Clause 74 provides the Lord Chancellor with the power to make Tribunal rules for the MHT for England and the MHT for Wales about the making of applications to the Tribunal under Part 2 and the proceedings for determining or otherwise dealing with such applications. The rules may provide for any procedural matters speciﬁed in Schedule 7 and may, in particular, provide for the: — transfer of cases between the MHT for England and the MHT for Wales; — procedures for applying to vary an order, or for leave; — circumstances on which the Tribunal may grant leave to a patient, their Nominated Person or (if under 16) their parent to make an additional application under clauses 54 or 55; — circumstances in which the Tribunal may appoint an Expert Panel member to assist it in determining an application for leave and authorising that member to visit, interview or examine the patient and obtain relevant records; — requiring persons to attend hearings to give evidence and produce documents; — authorising the administration of oaths; Joint Committee on the Draft Mental Bill: Evidence Ev 1189

— enabling preliminary or incidental matters to be performed by a chairman or the President. 71. Clause 74(3) enables the power to make new rules in subsection (2)(a) (transfer of proceedings) to be used to modify the application of Part 2. 72. Under clause 74(7) the Lord Chancellor must make rules specifying the period within which the Tribunal must determine a case under clause 71 which has been remitted back to it by the Mental Health Appeal Tribunal (under clause 250(4)) or the Court of Appeal (under clause 254(2)). 73. Clause 74(4)–(6) provide that failure to comply with a requirement to attend to give evidence or to produce documents (as provided for in the rules), may be punished as if it were contempt of court. 74. Schedule 7, introduced by clause 74, provides for Tribunal rules to be made about other supplementary procedural matters such as the timing of proceedings, as referred to, for example, in clauses 36(2), 38(7), 56(2); the conduct of proceedings, for example, by television link, without hearings, or in private; the continuation in force of an order, or the authorising of assessment, detention and treatment, pending the determination of a case adjourned or postponed; the giving of reasons for Tribunal determinations and the correction of accidental errors in Tribunal records. 75. The powers listed in Schedule 7 are broadly modelled on the existing powers for rules for the Mental Health Review Tribunals under the 1983 Act. There are additions to take account of new provisions and the new role of the Tribunal under the Bill. The prime change in the Tribunal’s role under the Bill is that, beyond 28 days, Tribunal orders will provide the legal authority to treat a patient without consent, (unless otherwise authorised by the court). Rules will, therefore, be able to authorise the treatment of a patient in certain circumstances where a case has been adjourned, for example, to obtain further evidence, where this is necessary to ensure the continuing care of the patient. 76. The Tribunals powers are set out on the face of the Bill. The Tribunal rules will contain detailed procedural matters which are appropriate for secondary legislation. Given the independent judicial nature of the Tribunal, it is appropriate for rules to be made by the Lord Chancellor for England and Wales. Consultation with the Council on Tribunals will be conducted as required by the Tribunals and Inquiries Act 1992. The rules will be subject to the negative resolution procedure which is considered suYcient for these procedural matters.

Clause 76 Transfer of responsibility for patients between hospitals

77. Clauses 75 to 79 of Chapter 10 of Part 2 make provision for the transfer of responsibility for patients between hospitals within England and Wales. (Provisions for patients in England and Wales to transfer to and from Scotland, Northern Ireland, the Channel Islands and the Isle of Man are contained in Part 4). 78. Clause 76 sets out details of the procedures that must be followed if a clinical supervisor decides, after consultation, that responsibility for a patient should be transferred to another hospital. Except in emergency circumstances provided for under clause 77, the patient, the Nominated Person and parents must be notiﬁed at least 7 days in advance of the date of an intended transfer. The patient, or the Nominated Person on his behalf, has the right to object in which case the transfer can only take place if the Tribunal gives leave on application by the clinical supervisor. 79. Clause 76(4)(a) creates a power for the appropriate authority to prescribe in regulations the form in which the advance notiﬁcation of a transfer must be made. It is intended that regulations will require the notice to identify the patient, record the reasons for the transfer and the arrangements that are proposed for the patient’s transfer and assessment and treatment by the receiving hospital. This is a detailed procedural matter and the negative resolution procedure is considered to provide a suYcient level of Parliamentary scrutiny.

Clause 77 Transfer of responsibility for patients between hospitals: emergencies

80. Clause 77 provides that if it is of urgent necessity that a patient is transferred to another hospital, the transfer may take place immediately but the patient, Nominated Person and parents must still be notiﬁed. As with advance notices, the patient, or the Nominated Person on his behalf, has 7 days in which to object. If the patient objects, he must return to the original hospital unless the Tribunal gives leave, on application by the clinical supervisor, for the patient to remain with the new hospital. 81. As under clause 76, clause 77(5)(a) creates a power for the appropriate authority to prescribe in regulations the form in which the notiﬁcation of an emergency transfer must be made. It is intended that regulations will require the notice to identify the patient and record the reasons for the transfer. This is a detailed procedural matter and the negative resolution procedure is considered to provide suYcient level of Parliamentary scrutiny. Ev 1190 Joint Committee on the Draft Mental Bill: Evidence

Clause 83 Section 81 etc: supplementary 82. Clauses 81 to 85 of Chapter 10 of Part 2 provide for the return of patients who are absent without leave. Clause 81 sets out the circumstances in which resident and non-resident patients are considered to be absent without leave. This includes patients failing to return from leave, absconding while in custody or being conveyed on transfer, or failing to comply with a requirement to reside in a certain place. If a patient is absent without leave, under clause 81 they may be taken into custody and returned to the hospital or other place that they are required to be, or returned to the person from whose custody they have absconded. 83. Clause 82 sets out the time limits after which patients may no longer be taken into custody. Clauses 84 and 85 provide for the continued assessment and treatment of patients who are returned from being absent without leave and describes the eVect of such periods of absence on the continuation in force of Tribunal orders. In certain circumstances where a Tribunal order would have expired or is about to expire, it is extended for 7 days in order to allow for the clinical supervisor to reassess the patient and apply for a new Tribunal order. 84. Clause 83 makes some detailed supplementary provisions such as describing how certain periods of absence are disregarded for the purpose of calculating the time limits for returning absent patients. Clause 83(4) provides that the appropriate authority may make regulations as to the recording and reporting of absences without leave and return. These clauses make detailed provisions under which the accurate recording of periods of absence will be vital in order to determine whether the legal powers to take and return a patient are in force and whether the legal authority to asses and treat the patient without consent, or to impose requirements on a non-resident patient remain in eVect. 85. This is a detailed procedural matter and the negative resolution procedure is considered to provide suYcient level of Parliamentary scrutiny.

Part 3 Patients concerned in criminal proceedings etc

Clause 92(5) (Medical treatment of persons remanded by Court of Appeal); Clause 99(2) (Care plans); Clause 102(3) (Preparation of care plans for purposes of sections 100 and 101); Clause 115(2) and (3) (Mental Health Orders: care plans etc); Clause 150(5) and (7) (Application for variation of restricted patient’s care plan); Schedule 9 (paragraph 7) (Care plan): Care Plans 86. The delegated powers under these clauses and paragraphs deal with the content and form of the patient’s care plan together with supplementary information which may be required. 87. Clause 92 applies when the Court of Appeal has previously remanded or further remanded a person for a mental health report but did not authorise the provision of medical treatment. The approved clinician may apply to the Tribunal to authorise medical treatment. The application made must be accompanied by a care plan. Pursuant to subsections (5)(b) and (c), the care plan must include the information prescribed in regulations made by the appropriate authority and be prepared in the prescribed form. 88. Clause 99 is based on clause 31 of Part 2 and provides for the preparation of an initial care plan to cover the first 28 days of compulsory treatment, before authorisation is required by the court or Tribunal. Subsection (2) provides that the care plan must include the required information and be prepared in the form prescribed by the appropriate authority in regulations. The “required information” is defined in subsection (3) as a description of the medical treatment to be provided during the period the care plan is in force and such other information relating to the care of the patient during that period as may be prescribed by the appropriate authority in regulations. 89. Clause 102 provides that when the court is considering authorising treatment beyond 28 days, it must have available to it a care plan which has been reviewed by the clinical supervisor under subsection (1) of clause 102. Subsections (3)(b) and (c) state that the care plan must contain the information prescribed in regulations by the appropriate authority and be prepared in the prescribed form. 90. Under clause 115 a court may not consider making a mental health order (under clause 116) unless an approved clinician has submitted a care plan for his treatment to the court. Under subsection (2), the care plan must include, in addition to a description of the medical treatment, the prescribed information and be prepared in the prescribed form. Under subsection (3), the approved clinician must also give the court, amongst other things, information relating to any other prescribed matter. Pursuant to subsection (7)(a), “prescribed” means prescribed by regulations made by the appropriate authority, for regulations under subsection (2) and the Secretary of State, for regulations under subsection (3). 91. Clause 150 requires the clinical supervisor to make an application to the Tribunal if it is necessary to amend a restricted patient’s care plan. The amended care plan submitted must include such information as may be prescribed by regulations made by the appropriate authority and be prepared in such form as may so be prescribed (subsections (5)(b) and (c)). Under subsection (7)(d) the application to the tribunal must deal with any other matter prescribed by regulations made by the appropriate authority. 92. Schedule 9 applies where a transfer for treatment direction is in force in respect of a patient. The managers of the hospital specified in the direction are required to ensure that a care plan is prepared for the patient by the clinical supervisor. Under paragraph 7(2) the care plan must include the required information Joint Committee on the Draft Mental Bill: Evidence Ev 1191

and be prepared in the form prescribed by the appropriate authority in regulations. The “required information” means, in addition to a description of the medical treatment, such other information relating to the care of the patient during the period in which the care plan is in force as may be prescribed by the appropriate authority in regulations. 93. The use of subordinate legislation is appropriate for the clauses listed above because they essentially deal with administrative matters in relation to which a degree of flexibility is required to address changing circumstances. It is intended that regulations will require the plan to record information to identify the patient and the practitioners and other health and social care professionals responsible for the provision of the care and treatment set out in the plan. Specifically in relation to the delegated power under clause 115(3) and clause 150(7), the Court or Tribunal will require information to ensure that they are in the best position to make an informed decision about the appropriate sentence or disposal. 94. The negative resolution procedure has been proposed because these are purely administrative matters and the negative resolution procedure is considered to provide an appropriate level of Parliamentary scrutiny. Clause 100 Remand by Court of Appeal where treatment period exceeds 28 days 95. Where medical treatment has been authorised by the Court of Appeal, if it seems likely that the patient’s treatment period is likely to exceed 28 days the clinical supervisor must apply to the Tribunal to approve a new care plan. Subsection (3)of clause 100 provides that the Secretary of State must specify in regulations the time period within which an application must be made to, and determined by, the Tribunal to approve the new care plan. 96. It is considered that subordinate legislation is appropriate here because it is a procedural matter for which flexibility may be required in the light of changing circumstances. It is considered that the negative resolution procedure provides an appropriate amount of Parliamentary scrutiny given that it is a procedural matter.

Clause 116 Power of court to make a mental health order 97. Clause 116 enables the court to make a mental health order provided that all the conditions set out in this clause are met. 98. Subsection (5) sets out one of these conditions, providing that the court must be satisﬁed that arrangements have been made for admitting the person to hospital within 28 days of the making of the order (if the person is to be detained in hospital) or for treatment as a non-resident patient if this is what the court orders. In subsection (8), the Secretary of State may by order amend the period of time in which arrangements have to be made for the person’s admission to hospital. However, this period must be shorter than the original 28 days. 99. The use of subordinate legislation is appropriate because of the need for ﬂexibility in dealing with this procedural time period. The time period may require amendment in the light of changing circumstances. 100. The Secretary of State would need to exercise this power where it were determined that the period of 28 days was unsuitable to eVectively carry out the Court’s power under the Bill. Given that this could aVect the information that is available to the Court and therefore its powers in respect of disposals, it is considered that the aYrmative resolution procedure is necessary so that exercise of the power under subsection (8) receives the appropriate level of Parliamentary scrutiny.

Clause 118 Mental Health Order: contents etc 101. Clause 118 sets out what must be covered in a mental health order. This is based on clause 46, which covers an order for authorisation of medical treatment made by the Tribunal for a civil patient. 102. Subsection (6)(a) provides that the mental health order must make such provision as is specified by the Secretary of State in regulations. The use of subordinate legislation is appropriate here because there needs to be flexibility to allow additions (or omissions) to be made to what must be covered in light of changing circumstances. There are, however, no changes currently envisaged. The negative resolution power is believed to provide a suYcient level of scrutiny given that this is an administrative matter. Clause 130 Power of Crown Court to give hospital direction 103. In order for the Crown Court to make a hospital direction, it must be satisfied that the conditions set out in clause 130 are met. 104. The fourth condition is that arrangements have been made for the admission of the person to the hospital or hospital unit specified by the Crown Court within 28 days of the date of the directions (subsection (6)). However, in subsection (10), the Secretary of State may by order amend subsection (6) so as to substitute for “28 days” another period (of not more than 28 days) specified in the order. 105. The use of subordinate legislation is appropriate because of the need for flexibility in the relevant time period. As an order made under subsection (6) would alter the time period for admission to hospital, thereby aVecting the period of detention of that person, the aYrmative procedure is needed in order to ensure it receives full Parliamentary scrutiny. Ev 1192 Joint Committee on the Draft Mental Bill: Evidence

Clause 131 Hospital Directions: supplementary 106. Clause 131 applies if the Crown Court gives a hospital direction in respect of a patient. In addition to the provisions relating to hospital directions outlined in this clause, under subsection (9) the Secretary of State may by order make further provision, in relation to hospital directions and patients subject to them, for purposes corresponding to those of Schedules 8 and 9. 107. Further provisions are required, for example, in relation to the approval of a care plan for such a patient, the power to convey the patient to hospital and admit and detain him and the power to give leave of absence. It is hoped that such provisions may be included on the face of the Bill in time for introduction in Parliament. 108. Given that if this delegated power were exercised it would deal with substantive provisions on hospital directions it is considered that the aYrmative resolution procedure would be appropriate to enable full Parliamentary scrutiny.

Clause 134 Termination of transfer for report 109. Where a person is subject to a transfer for report direction (under clause 133), that direction ceases to have eVect at the end of the period of 16 weeks beginning with the date on which he was received into hospital (subsection 2(a)) or on his release date (as deﬁned in clause 132). Under subsection (3) the Secretary of State may by order amend subsection (2)(a) so as to substitute a diVerent period. 110. The use of subordinate legislation is considered appropriate here because of the need for ﬂexibility in light of changing circumstances. The aYrmative resolution procedure is considered appropriate given the fact that the period during which a transferred prisoner may be detained in hospital may be extended beyond 16 weeks if considered necessary in the circumstances.

Clause 145 References by Secretary of State concerning restricted patients 111. Under subsection (5) of clause 145 the Secretary of State is required to refer a restricted patient to the Tribunal whose case has not been considered by the Tribunal during the last three years. Under subsection (6) the Secretary of State may by order amend subsection (5) so as to substitute a diVerent period. 112. The use of subordinate legislation is appropriate is given that ﬂexibility is required in changing circumstances. Given the importance of ensuring that restricted patients have their need to be treated under compulsory powers reviewed, it is considered that any change to the maximum time period between those reviews should be subject to aYrmative resolution procedure.

Clause 146 References under section 145(1) or (3) 113. Where the Secretary of State has made a reference to the Tribunal under clause 145(1) or (3), the clinical supervisor must determine whether all the relevant conditions in clause 9 have been met and give notice of his determination, and the reasons for it, to the Tribunal. Subsection (4) provides that the notice of the clinical supervisor’s determination must be in a form prescribed in regulations by the appropriate authority. 114. The use of subordinate legislation is appropriate because this is an administrative matter. It is believed that the negative resolution procedure is suYcient for Parliamentary scrutiny purposes.

Clause 153 Remitted cases 115. Clause 153(2) requires the Tribunal to hear cases remitted to it on appeal within a period speciﬁed in rules made by the Lord Chancellor. 116. The use of subordinate legislation is appropriate because it is purely a detailed procedural matter and ﬂexibility may be required to cater for changing circumstances. It is considered that the negative resolution procedure is appropriate because it is a procedural matter only.

Clause 158 Applications and references to Tribunal 117. Clause 158 provides that rules and proceedings for Tribunals set out in Part 2 apply to applications and references to the Tribunal under Part 3. In particular, subsection (3)(a) provides that rules made under clause 74 (in Part 2) may make provision for the Secretary of State to be a party to Tribunal proceedings where he would not otherwise be a party, and entitling him to appear and be heard accordingly. This power would be needed when a restricted patient made an application to the Tribunal, to ensure that the Secretary of State can make representations. In addition, subsection (3)(b) provides that rules made under clause 73 may also make provision about information which the Secretary of State must provide information to the Tribunal in connection with an application or reference made by a restricted patient. These rules would replicate the powers under the 1983 Act. It is considered that the subordinate legislation is appropriate for Joint Committee on the Draft Mental Bill: Evidence Ev 1193

these matters because they concern purely administrative matters in relation to which ﬂexibility may also be required. The negative resolution power is therefore believed to give a suYcient degree of Parliamentary scrutiny.

Part 4 Cross border provisions

118. Part 4 (clauses 160 to 176) provides for the transfer of patients who are subject to the formal powers of the Bill in England and Wales to and from “relevant territories” (which are deﬁned as, Scotland, Northern Ireland, any of the Channel Islands and the Isle of Man) including the return of patients who have absconded to another territory.

Clause 162 Transfer authorised under section 161: supplementary

119. Clause 161 sets out the procedures for the transfer of patients from England and Wales to another relevant territory and clause 162 makes supplementary provision for patients who are not restricted patients. The procedures are similar to those required for the transfer of patients within England and Wales under Part 2. Clause 162(3) creates a power for the appropriate authority to prescribe in regulations the form in which an advance notiﬁcation of a transfer must be made. It is intended that regulations will require the notice to identify the patient, record the reasons for the transfer and the arrangements that are proposed for the patient’s transfer and subsequent assessment and treatment in the receiving territory. This is a detailed procedural matter and the negative resolution procedure is considered to provide an appropriate level of Parliamentary scrutiny. 120. Clause 162(11) provides a power for the appropriate authority to prescribe the form in which the hospital managers must authorise a person to convey the patient from England or Wales to the relevant territory. It is intended that the regulations will require the authorisation form to identify the patient, the person authorised to transfer the patient, and other relevant details, for example, whether the patient is to be conveyed only as far as the border. As this is a detailed procedural matter, the negative resolution procedure is considered to provide an appropriate level of Parliamentary scrutiny.

Clause 165 Transfer of persons to England and Wales: arrangements etc

121. Clause 165 sets out the procedures for the transfer of persons to England and Wales from a relevant territory. Where the person transferred into England and Wales falls within a description set out in regulations made under Clause 165(6), the managers of the hospital must decide whether the patient needs to be non-resident or resident during assessment. It is intended that the regulations will describe the same group as the regulations made under clause 15(2). These provisions deﬁne (by default) who must be detained in hospital and, therefore, because of the signiﬁcant implications for human rights, the Parliamentary procedure for this power is aYrmative resolution.

Clause 166 Transfer of persons to England and Wales: notice and registrations etc

122. Clause 166 sets out procedures in relation to notiﬁcations and registration for patients who are to be transferred to England and Wales. Clause 166(2) provides that where arrangements have been made to transfer a patient to England and Wales, the managers of the hospital which is to become responsible for the patient must notify the patient and if the patient is under 16 years of age, each person with parental responsibility for the patient. Clause 166(3) provides the appropriate authority with a regulation making power to prescribe the form of the notice—and the information it must contain. It is envisaged that the notice will identify the patient, record the reasons for the transfer and the arrangements that are proposed for the patient’s transfer and assessment and treatment by the receiving hospital. As these are detailed procedural matters the negative resolution procedure is considered to provide an appropriate level of Parliamentary scrutiny. 123. Clause 166(7) mirrors clause 162(11) as it provides a power for the appropriate authority to prescribe the form in which the hospital managers (in this case the managers of the hospital which is to become responsible for the patient) must authorise a person to convey the patient once they are in England or Wales to the hospital. It is intended that the regulations will require the authorisation form to identify the patient, the person authorised to transfer the patient, and other relevant details, for example, whether the patient is to be conveyed only as far as the border. The negative resolution procedure is considered to provide an appropriate level of Parliamentary scrutiny for what is a detailed procedural matter. Ev 1194 Joint Committee on the Draft Mental Bill: Evidence

Clause 171 Transfer of Patients to England and Wales: supplementary 124. Clause 171 makes provision for transfer of a restricted patient into England and Wales from another UK jurisdiction. Under subsection (9) the Secretary of State may by order make further provision in relation to the transfer to England and Wales of such persons. 125. Further provisions are required to ensure that, for example, there is power to refer incoming restricted patients to the Mental Health Tribunal and to engage provisions for treatment for such a patient. It is hoped that such provisions may be included on the face of the Bill in time for introduction in Parliament. 126. The Parliamentary procedure proposed for this power is aYrmative resolution. Given that if this delegated power were exercised it would deal with substantive provisions on hospital directions it is considered that the aYrmative resolution procedure is necessary to enable full Parliamentary scrutiny.

Clause 174 Transfer of foreign patients 127. Clause 174 makes provision for the transfer of foreign patients outside the British Isles. Where a patient’s clinical supervisor determines that it would be in the patient’s interests to be transferred to a country outside the British Isles, and is satisﬁed that proper arrangements have been made for the patient’s treatment there, they can apply to the Mental Health Tribunal for an order. The Tribunal may make an order for the patient’s transfer in accordance with the arrangements that it may specify in the order. It is then for the managers of the hospital that is responsible for the patient to secure that the patient is conveyed to the place in question in accordance with those arrangements by a person authorised by them to do so. Clause 174(9) requires that this authorisation must be in a form set out in regulations. It is intended that the regulations will require the authorisation form to identify the patient, the person authorised to transfer the patient and other relevant details about what the authorisation allows. As this is a detailed procedural matter, the negative resolution procedure is considered to provide an appropriate level of Parliamentary scrutiny.

Clause 175 Transfer and return of patients: Northern Ireland 128. Clause 175 gives the Department of Health, Social Services and Public Safety in Northern Ireland power to make regulations about the transfer of patients between Northern Ireland and England and Wales, or Scotland. The regulations are to correspond to provisions in the Bill (clauses 165,166 and 161) or regulations under section 289 or 290 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (subsections (2) and (3)). 129. The regulations may also make provision under which certain patients or persons in Northern Ireland may be taken into custody there and returned to England and Wales, Scotland, the Channel Islands or the Isle of Man ( as the case may require), by a person of a description speciﬁed in the regulations (subsections (5) and (6)). 130. The power to make regulations is exercisable by statutory rule subject to the negative procedure which applies to statutory instruments (see clause 300 (7)); as the regulations will correspond to the provisions made under Part 4 of the Bill this is considered to be an appropriate level of Parliamentary scrutiny.

Part 5 Medical treatment

Clause 179 Electroconvulsive therapy (ECT): patient capable of consenting 131. Clause 179(5)(b) creates a power for the appropriate authority to specify in regulations when the relevant period ends where a patient who has consented to treatment loses capacity before the course of treatment is completed. 132. Clause 179 provides that a patient can be given a course of ECT provided that the clinical supervisor certiﬁes that the patient has consented to the treatment and that he was capable of understanding the nature, purpose and likely eVects of ECT when these were explained to him and when he consented. Where a patient ceases to be capable of understanding the nature, purpose and likely eVects of ECT but has a reasonable prospect of regaining that capacity, the course of ECT may continue to be given unless : — the Tribunal determines an application for ECT for a patient not capable of consenting (under clause 180), or — the “relevant period” ends. 133. Clause 179(5) establishes that the relevant period starts when the patient ceases to be capable of understanding and creates a power for the appropriate authority in regulations to specify how the period ends. It is proposed that the regulations will set out that the relevant period will end after a maximum number of treatments or a maximum period, whichever is earliest. The detail will be subject to consultation Joint Committee on the Draft Mental Bill: Evidence Ev 1195

with specialist professionals, for example, from the Royal College of Psychiatrists. The aim is to prevent a person from being deprived of a course of treatment during a short period of incapacity but to ensure that, if incapacity persists, the provisions governing ECT for people without capacity come into eVect. 134. The reason for setting this out in regulations, rather than on the face of the Bill, is that it will facilitate making amendments if needed in order to reﬂect changing clinical practice and, for example, amended NICE guidance in respect of ECT. This is a procedural matter where the negative resolution procedure is considered to provide a suYcient level of Parliamentary scrutiny.

Clause 183: Emergency ECT: patient capable of consenting 135. Clause 183(1) together with subsection (2) provides that the appropriate authority may make regulations about the giving of ECT to a patient who is capable of consenting but who does not consent, and who meets the conditions for emergency treatment. Provision regulating the giving of emergency ECT to patients who are not capable of consenting is made under clause 184 on the face of the Bill. Making provision in regulations will allow for ECT to be provided without consent to a person who retains capacity in the circumstances allowed for under clause 183. Clause 183(2)(c) requires one or more of the conditions in clause 182 to be met, that is, that treatment is immediately necessary to prevent serious deterioration of the patient’s condition; to alleviate serious suVering or to save life. It is proposed to take a power to make provisions for patients who are capable of consenting in regulations because there is some doubt among psychiatrists as to whether a person who is so ill as to need ECT in an emergency would ever retain capacity. The Government is carrying out further work with specialist practitioners (including a survey of relevant stakeholders) to determine the need for provisions for emergency ECT for patients capable of consenting. 136. The trigger for these provisions has been left to delegated legislation so as to allow their use if the further work, or evidence, should show that they are needed. The Parliamentary procedure for this power is aYrmative resolution to ensure the proper level of scrutiny for this serious matter.

Clause 190 ECT: further provision 137. Clause 190 allows the appropriate authority to make further provision in regulations relating to the procedures in clauses 179 to 188 regulating ECT. Regulations may in particular provide for: — further requirements which must be met before a course of ECT may be given; — the form and period of certificates which disapply the general prohibition of ECT; — the minimum period between courses of treatment so certified; — the maximum number of occasions on which ECT may be given in any certified period; — the circumstances in which certificates and authorisations cease to have eVect. 138. These regulations will cover procedural matters and the negative resolution procedure is therefore considered to provide a suYcient level of Parliamentary scrutiny.

Clause 191 Type A medical treatment 139. Clause 191(1)(b) creates a power for the appropriate authority to describe medical treatment which will constitute type A treatment and therefore be subject to the procedures in the Bill applying to those types of treatment. 140. Under clause 191, type A medical treatment is defined as any surgical operation the primary purpose of which is the destruction of brain tissue or the destruction of the function of brain tissue (commonly known as “psychosurgery”) or such other descriptions of medical treatment which may be specified in regulations. Clauses 192 to 195 set out the procedural safeguards which must be followed in order to provide type A treatment and these apply to all patients and not just those subject to the formal powers of the Bill. 141. It is not currently proposed to describe any such treatment in regulations but this power provides important flexibility to enable new treatments to be brought within the scope of the special safeguards. The negative resolution procedure is considered appropriate as the use of the regulation-making power would be to provide additional safeguards.

Clause 192 Type A medical treatment: notification 142. Clause 192(2)(b) allows the appropriate authority to describe in regulations any additional person to be notified by a clinical supervisor who considers a patient meets the conditions for type A medical treatment. This matter has been left to regulations to provide flexibility to make changes over time. 143. The regulations will cover procedural matters where the negative resolution procedure is considered to provide a suYcient level of Parliamentary scrutiny. Ev 1196 Joint Committee on the Draft Mental Bill: Evidence

Clause 195 Type A medical treatment: further provision 144. Clause 195 provides for regulations made by the appropriate authority to make further provision in connection with clauses 192–194. Examples are given of the particular areas where regulations may be needed—such as the form and content of notiﬁcations that a patient meets the conditions for type A treatment. The regulations will cover detailed procedural matters where the negative resolution procedure is considered to provide a suYcient level of Parliamentary scrutiny.

Clauses 196–197: Type B medical treatment 145. Provision is made in clause 196(1) for a regulation-making power for the appropriate authority to prohibit forms of treatment being given to patients subject to formal powers except in line with certain safeguards. The safeguards may also be set out in regulations (see clause 197(2)). 146. The reason for these regulation-making powers is to provide the ﬂexibility to provide safeguards for new treatments for people under formal powers if they are considered necessary. At present, there are no plans to make any regulations in connection with type B treatments, but special safeguards could be necessary for certain treatments in the future, in the same way that there are special safeguards for ECT. This type of regulation-making power is included in the Mental Health Act 1983 but has not so far been used. 147. Clause 196(4) imposes a requirement to consult appropriate persons before regulations about Type B treatments can be made. 148. The negative resolution procedure applies to the use of these powers and is considered appropriate as their use would be to provide additional safeguards.

Part 6 Informal treatment of patients aged under 18 149. Chapters 2 and 3 of Part 6 of the Bill provide special safeguards for patients under 16 who require treatment for mental disorder in hospital.

Clause 210 Preparation of care plan for qualifying child patient 150. Under clause 210, the manager of the hospital with which a patient is registered must ensure that the patient’s clinical supervisor prepares a care plan within 7 days of being appointed (unless there are exceptional circumstances). Clause 210 contains powers in subsections (7) and (8) (equivalent to those in clause 31) for the appropriate authority to prescribe in regulations the form the plan must take and the information to be included in it. It is intended that regulations will require the plan to record the information to identify the patient and the parishioners and other health and social care professionals responsible for the provision of the care and treatment set out in the plan. 151. This is a detailed procedural matter and the negative resolution procedure is considered to provide suYcient level of Parliamentary scrutiny.

Clause 211 Approval of the care plan for qualifying child patient 152. Clause 211(6) provides the appropriate authority with power to make regulations specifying the time period in which the medical expert (who must be a member of the Expert Panel) must approve the care plan of a qualifying child patient. After preparing the care plan, the clinical supervisor must send a copy to the medical expert for approval. The medical expert will only approve the plan if he is satisﬁed that the care described in it is appropriate for the patient. If the care plan has not been agreed, for whatever reason, within the prescribed time limit, the clinical supervisor must apply to the Tribunal for approval of the plan. Regulations will set out the time period in which the medical expert must approve the plan. It is intended that approval must take place quickly since children are often only in hospital for short periods. However, the deadline must be practical and will be set after discussion with practitioners. This is a detailed procedural matter and the negative resolution procedure is considered to provide suYcient level of Parliamentary scrutiny.

Clause 217 Disputes about outcome of review: qualifying child patient 153. Under clause 214(6) and (7) the Nominated Person or the parents of a patient under 16 qualifying for safeguards, may request a review of the care plan. Clause 216 makes provision for resolving disputes about a refusal to carry out a review. Clause 217(5) provides for the appropriate authority to make regulations setting out the time period in which the medical expert is to resolve a complaint about a qualifying child’s care plan. If a dispute remains unresolved beyond this time, the person who originally requested the review of the care plan may apply to the Tribunal for a determination as to whether the clinical supervisor’s decision is upheld. Joint Committee on the Draft Mental Bill: Evidence Ev 1197

154. Regulations will set out the time period before an application to the Tribunal can be made. It is intended that an application must be made quickly since children are often only in hospital for short periods. As with Clause 211 the deadline must be practical and will be set after consultation with practitioners. This is a detailed procedural matter and the negative resolution procedure is considered to provide suYcient level of Parliamentary scrutiny.

Clause 220 Power to make supplementary provision: Chapter 2 155. Clause 220 (1) and (2) provide the appropriate authority with power to make regulations in connection with the making of determinations and the preparation, approval, amendment and review of care plans under Chapter 2 of Part 6. The regulations may, in particular, specify the time notifications are to be given, the form in which they are to be made and the people to give and receive notifications. 156. The most important requirements are on the face of the Bill. For example, under clause 208, the clinical supervisor must notify the patient, his consenting parent, each other person with parental responsibility for the patient (where appropriate and practical) and any carer of his determination under clause 207 (assessment for safeguards). The intention is to supplement these primary provisions by setting out in regulations additional requirements. For example, to notify the patient’s General Practitioner that the child qualifies for special safeguards. As these are supplementary details, the negative resolution procedure is considered an appropriate level of Parliamentary scrutiny.

Clause 222 Adjustments between local social services authorities: Chapter 2 157. Clause 211 (approval of care plan) and clause 218 (application to Tribunal for discharge) include procedures to be followed if the Tribunal has found it appropriate to notify the local social services authority of the facts of a case. The local social services authority must consider whether they need to exercise any of their functions under the Children Act 1989. Under clause 222(1), the appropriate authority may make regulations as to how Chapter 2 of Part 6 is to apply if there is doubt about where a child is ordinarily resident, or where it appears to a local social services authority notiﬁed under clause 211 or 218, that the child concerned is ordinarily resident in another local social services authority area. Clause 222(2) sets out that such regulations may, in particular, authorise or require a local social services authority to accept a notice notwithstanding any dispute that it is the right authority; to become responsible for the child’s case and to recover any expenditure incurred as a result from another local social services authority. 158. The regulations on these procedural matters are proposed to be subject to the negative resolution procedure which is considered suYcient in these circumstances.

Part 8 Patient representation

Chapter 1 Nominated Person 159. Chapter 1 of Part 8 sets out the arrangements for the appointment of a nominated person to act on behalf of a patient entitled to safeguards under Parts 2 and 6. Provisions at various places throughout the Bill give the nominated person rights to be consulted about the patient’s wishes and feelings regarding various steps that are being taken; to be notiﬁed once certain decisions have been made and to make tribunal applications or appeals on the patient’s behalf. Chapter 1 of Part 8 speciﬁes the role of the nominated person when exercising these rights and provides for the patient to apply to the Tribunal to challenge the appointment of a nominated person.

Clause 232 Introductory 160. Clause 232 describes the type of person who is eligible to act as a nominated person. Subsection 4 provides the appropriate authority with power to make regulations describing who is disqualiﬁed from acting as a patient’s nominated person. The intention is that regulations will disqualify types of people who would not be appropriate to act as a patient’s nominated person, for example, those aged under 16 or convicted paedophiles. This is a procedural matter and the negative resolution procedure is considered to provide suYcient level of scrutiny.

Clause 237 Appointment: supplementary 161. The appointment of a nominated person does not take eVect until the nominated person has notiﬁed the AMHP or local authority (LA) that they accept the appointment. Clause 237(2) allows the appropriate authority to make regulations governing the form of notiﬁcation to be given (to the AMHP or LA) by the nominated person when they accept the appointment. The aim is to ensure that it is clear at what time the appointment takes eVect. This is a procedural matter and the negative resolution procedure is considered to provide suYcient level of scrutiny. Ev 1198 Joint Committee on the Draft Mental Bill: Evidence

Clause 240 Review 162. Clause 240(1) sets out that a nominated person is appointment will be reviewed if a patient becomes, or ceases to be, subject to a care order, the care order is varied or the patient attains the age of 16. If, following review, the existing appointment ceases to have eVect, subsections (6) and (7) provide for notification of this event. These subsections, together with subsection (9) provide the appropriate authority with regulation making powers stipulating who the AMHP (or LA) must notify and within what time period. For example, the Tribunal may need to be notified quickly if they are determining a case as it may be inappropriate to consult or notify the previous nominated person about steps that are being taken. This is a procedural matter and the negative resolution procedure is considered to provide suYcient level of scrutiny. Clause 241 Revocation by appointer 163. The AMHP (or LA) must revoke the appointment of a nominated person in circumstances as set out in clause 241(1). Clause 241(5) provides the appropriate authority with power to make regulations specifying persons, in addition to those mentioned in subsection (5), for example the hospital manager or the Tribunal, who must be notified of the revocation of an appointment of the patient’s nominated person and the time period within which such a notification should be made. The purpose of this regulation is similar to clause 237(2). This is a procedural matter and the negative resolution procedure is considered to provide suYcient level of scrutiny. Chapter 2 Independent Mental Health Act (IMHA) Advocates 164. Clauses 247 and 248 of Part 8 place a duty on the appropriate authority to make such arrangements as it considers necessary for help to be provided by IMHA advocates to patients entitled to safeguards under Parts 2 and 6. It is intended that responsibility for approval will be delegated to a local level under powers in other legislation. An important consideration, however, is to ensure that the advocacy service is independent from providers of health and social care services. It is likely that this will be achieved by accrediting organisations providing advocacy services so that they are able to approve individuals who meet the required standards. The arrangements are being developed in consultation with relevant advocacy providers, NHS bodies, local authorities and other stakeholders. Clause 247 IMHA advocates 165. Clause 247(6) provides for the appropriate authority to make regulations setting out requirements that must be met for a person to act as an IMHA advocate. It is intended that these will include the professional qualifications, training or experience required. These regulations may also include requirements for individuals to be approved by another person. Another person might be, for example, an organisation providing advocacy services. Regulations may specify requirements in respect of other persons with whom arrangements are made for the provision of advocacy and may specify the circumstances in which persons may act as approved advocates. The aim is to provide for specialist advocates to act where particular circumstances require specialist expertise, for example, where the patient is a child, has learning diYculties or comes from a particular ethnic or cultural background. It is proposed that regulations should be subject to the negative resolution procedure which is considered to provide a suYcient level of scrutiny. Part 9 Appeals 166. Part 9 provides patients, Nominated Persons and parents the right to seek leave to appeal to the MHAT on points of law arising from determinations by the MHT for England and the MHT for Wales. The Secretary of State and the NAW also have rights of appeal. Similar provision is made for further appeals to be made to the Court of Appeal on points of law arising from determinations by the MHAT. 167. Clause 250 sets out the proceedings on appeal to the MHAT. The MHAT may dismiss an appeal; uphold the original MHT determination; in certain cases make a substitute determination or otherwise remit a case for reconsideration by the appropriate MHT. Where a case is remitted, clause 250(8)(c) provides for rules made by the Lord Chancellor to specify the circumstances in which the MHAT may direct that medical treatment should not be provided to the patient meanwhile, or should only continue with changes as directed. Under clause 254(6)(d) these rules also extend to allow the Court of Appeal to make equivalent directions on remitting a case in the same circumstances. 168. Clause 252(1) provides the Lord Chancellor with the power to make rules about the making of appeals or applications for leave to the MHAT (for England and Wales) and the proceedings for determining such appeals and applications or dealing with matters which are incidental or consequential to such proceedings. Rules may also enable the President of the MHAT to designate which, if any, MHAT determinations are to be binding on the future determinations of the MHT for England and the MHT for Wales. 169. Under clause 252(2) the rules may provide for any procedural matters specified in Schedule 7, as modified by subsection (3) and, where appropriate, as modified by clause 158(2), and may in particular provide for: — the procedure for making an appeal or applying for leave; Joint Committee on the Draft Mental Bill: Evidence Ev 1199

— determining appeals and applications; — the time within which appeals and applications must be made; — enabling the MHAT, when setting aside a determination of the MHT for England or Wales, to remit the case to the MHT in the other territory if the patient has transferred in the meantime. 170. Clause 252(4) enables the power to make rules in subsection (2)(c) (transfer of proceedings) to be used to modify the application of Parts 2, 3 and 9. 171. The powers of the MHAT and the Court of Appeal are set out on the face of the Bill. The rules will contain detailed procedural matters which are appropriate for secondary legislation. Given the independent judicial nature of the MHAT and the Court of Appeal, it is appropriate for rules to be made by the Lord Chancellor for England and Wales. Consultation with the Council on Tribunals will be conducted as required by the Tribunals and Inquiries Act 1992. The rules will be subject to the negative resolution procedure which is considered suYcient for these procedural matters.

Part 10 Functions of Commission for Healthcare Audit and Inspection 172. Part 10 puts in place arrangements designed to ensure that there is independent scrutiny of the use of the powers and the safeguards in the Bill. Responsibility for this scrutiny will rest with the Commission for Healthcare Audit and Inspection (CHAI—known as the Healthcare Commission), which is the healthcare inspectorate established under the Health and Social Care (Community Health and Standards) Act 2003. The provisions in this Part are modelled on the CHAI provisions in that Act. 173. In England, CHAI will provide a single point of access on quality issues for patients, service providers and the Government. In Wales there will be close co-operation between CHAI and Healthcare Inspectorate Wales. These functions will replace those of the Mental Health Act Commission set up under the 1983 Act.

Clause 259 Gathering of information 174. Clause 259 provides that CHAI must collect and publish prescribed information from hospital managers and local social service departments and Mental Health Tribunals about the exercise of their functions under the Bill. This is intended to address concerns highlighted by the Richardson Committee, which drew attention to the lack of adequate data on activity under the 1983 Act (Review of the Mental Health Act 1983 paragraphs 2.26 and 2.27). 175. The Secretary of State (in the case of information relating to functions and patients falling under Part 3) or the appropriate authority (in other cases) may prescribe the information that CHAI may collect. Examples of the kind of information in respect of which the regulation making power might be used and which CHAI would therefore be required to collect are: — admission figures on people subject to the formal powers in the Bill, including data relating to particular groups of patients such as children, adolescents, women, black and minority ethnic patients — information on the use of particular powers, such as the granting of leave of absence — the number of appeals and their outcomes — the numbers of deaths and other serious incidents and figures on the use of seclusion in respect of patients subject to the formal powers in the Bill 176. As the matters to be prescribed concern the detail of what information CHAI will gather, the negative resolution procedure is considered to provide a suYcient level of Parliamentary scrutiny. Clause 260 Review of and investigations into exercise of functions, Clause 262 Investigation into circumstances of deaths and Clause 263 Investigations: supplementary 177. Clause 260 provides for the monitoring and review of the exercise of any functions under the Bill, other than those conferred on the Tribunals established under the Bill, any court or CHAI itself. Clause 260(5) permits the appropriate authority to make regulations requiring hospital managers to publish a statement of proposed action because of the CHAI investigation. For consistency, this follows a similar requirement in section 52(9) of the Health and Social Care (Community Health and Standards) Act 2003 relating to CHAI’s wider role under that legislation. The intention of these regulations is to make clear the circumstances in which such a statement will be required, for example, where CHAI criticises the way in which a provider is following the procedures laid down in the new Bill and/or in the Code of Practice. 178. Clause 262 provides CHAI with powers to investigate the circumstances of the death of a relevant patient. Clause 262(4) provides a regulation making power similar to that in clause 260(5), but here it specifically concerns an investigation by CHAI into the circumstances of a death while a patient is a relevant patient. Ev 1200 Joint Committee on the Draft Mental Bill: Evidence

179. Under clause 263, if CHAI carries out an investigation under clause 260 or 262 it must publish such report as it considers appropriate. Under clause 263(3), the Secretary of State, after consultation with the National Assembly for Wales and CHAI, may by regulations make provision about the procedures to be followed in respect of the making of representations to CHAI before the publication of such a report. 180. As the regulation making powers in clauses 260 to 263 deal with procedural matters, the negative resolution procedure is considered to provide suYcient level of Parliamentary scrutiny.

Clause 265 Additional functions 181. The CHAI may need to be given further functions in order to carry out its monitoring and inspection role eVectively. Clause 265(1) allows the appropriate authority to make regulations to give CHAI additional functions and powers for the purposes of, or in connection with its reviewing of the exercise of functions conferred on persons under the Act in relation to relevant patients. Examples of such functions that may be conferred on the CHAI are the giving of advice to the appropriate authority on standards for the appointment and training of people with roles under the Bill, such as Independent Mental Health Act advocates, and monitoring the provision of advocacy. Clause 265(3) allows the Secretary of State to make provision for CHAI to have additional functions relating to such a review of functions relating to patients falling under Part 3. 182. As the regulations made under these powers would deal with matters of detail about CHAI’s functions so that it can eVectively perform its role, the negative resolution procedure is considered to give an appropriate level of Parliamentary Scrutiny.

Clause 266 Complaints: general and Clause 267 Complaints regulations: supplementary 183. Section 113 of the Health and Social Care (Community Health and Standards) Act 2003 enables the Secretary of State to make regulations about the handling of complaints made to NHS bodies about the NHS services provided or commissioned by them. Clause 266 allows the appropriate authority to make similar regulations about the handling and consideration of complaints regarding patients and the exercise of functions under the Bill. The intention is, where appropriate, to have a single complaints procedure for patients in relation to powers exercisable under the Bill. For example, the procedure would deal with concerns about the quality of care provided. Clause 266(2) provides that regulations may provide for who will consider the complaint. Clause 266(3) provides that the regulations may also provide for a complaint, or any matter raised by a complaint, to be referred to the Health Commissioner, Commission for Local Administration in England, or to the Commission for Local Administration in Wales or to be referred to any other person to consider whether to take any action other than that set out in the regulations. It is envisaged that regulations will provide that the complaint be made to the health care provider which is the subject of the complaint, where an attempt will be made to investigate and resolve the matter. If this is not possible, the second stage will involve consideration by the CHAI and by an independent lay person in England. In Wales, if further investigation under the complaints procedure is felt to be warranted, this will be conducted by an independent panel for complaints. Following the CHAI’s assessment of an individual case, it is envisaged that CHAI will decide what, if any, further action, and by whom, is appropriate. 184. Clause 267 sets out supplementary provision relating to the regulation making power in clause 266. Clause 267(2) provides for regulations to specify such matters as who may make a complaint, of what kind, and to whom, and the procedure. Clause 267(3) is concerned with the making of a payment by a person in respect of whom a complaint is made. It is envisaged that regulations under this provision would provide for any payment to be made to CHAI in respect of the costs incurred by it. Regulations may also provide for an amount charged in a particular case to be made subject to review by an independent panel. Clause 267(4) enables regulations to make provision requiring persons or bodies handling complaints to make information available to the public about the procedures to be followed. Clause 267(5) enables regulations to authorise the production or disclosure of information or documents. Clause 267(6) enables regulations to provide for a situation in which a complaint raises matters that fall to be considered under another complaints procedure. 185. As these are detailed procedural matters, the negative resolution procedure is considered to provide suYcient level of scrutiny.

Clause 273 Power to require documents and information etc and Clause 274 Power to require explanation 186. Clause 273 provides for the CHAI to require specified persons to provide it with any information, documents, records or other items which the CHAI considers is required to enable it to carry out its functions. Clause 273(2)(e) provides a regulation making power for the appropriate authority to prescribe other persons that are not already specified in subsection (2). The intention is to allow additional persons to be added to those already specified as proves necessary in the light of experience. Joint Committee on the Draft Mental Bill: Evidence Ev 1201

187. Clause 274 provides for regulations to be made requiring prescribed persons to provide CHAI with an explanation of information, documents or other items provided under clause 273, and any matters which are subject of the exercise of any functions of the CHAI, if CHAI considers such an explanation to be necessary. The regulations may require explanations to be provided at such times and places as may be prescribed. 188. As the regulation making powers in clauses 273 and 274 deal with procedural matters, it is considered that the negative resolution procedure provides an appropriate level of Parliamentary scrutiny.

Part 12 Miscellaneous Clause 289 Correspondence of patients

189. Clauses 289 to 292 make provision for correspondence to and from patients to be withheld and examined in certain circumstances. The outgoing correspondence of any patient detained under the Bill may be withheld at the request of the intended recipient or, where a patient is detained in a high security hospital, where it may cause distress to the intended recipient or any other person who is not on the hospital staV,or where it may cause danger to any person. Incoming mail may be withheld from a patient detained in a high security hospital in the interests of the safety of the patient or for the protection of others. Under clause 290, patients must be notiﬁed of any items withheld and under clause 291, patients, their Nominated Persons or correspondents sending items that are withheld, may apply to CHAI to review the decision. 190. These powers do not apply to any correspondence between the patient and “oYcial communicants” as listed in Schedule 11. Correspondence cannot be withheld if it is between the patient and, for example, his Member of Parliament, a Minister of the Crown or his legal adviser. Under a power in clause 289(8)(b) the appropriate authority may describe further “oYcial communicants” in regulations. This power provides ﬂexibility to add new groups of people, should the need arise, perhaps, in response to developments in new services to support patients. It is proposed that regulations should be subject to negative resolution procedure which is considered to give an appropriate level of Parliamentary scrutiny.

Clause 292 Correspondence of patients: supplementary

191. Under clause 292(2) the appropriate authority may make regulations about the exercise of the powers to withhold correspondence; the form of any notiﬁcation or request for a review and relating to CHAI’s determination of requests to review, including provision for the production to CHAI of the item withheld. Regulations may also specify other forms of communication to which the powers may apply. In future it may be appropriate, for example, to extend the provision to include electronic messages. It is proposed that regulations should be subject to negative resolution procedure which is considered to give an appropriate level of Parliamentary scrutiny.

Part 13 General Clause 300 Regulations, orders and rules

192. Clause 300 provides for the procedures which regulations, orders and rules under the Bill are to follow. Subsections (8) and (9) supplement the powers to make these types of subordinate legislation.

Clause 306 Commencement

193. Clause 306 provides for the Secretary of State to bring Parts 3, 7 and 11 into force on a day appointed by order. All other Parts, including clause 304 and Schedule 14 (transitional provisions), may be brought into eVect on a day appointed by order made by the Secretary of State and the NAW acting jointly. Clause 306(3) enables diVerent days to be appointed for diVerent purposes.

Clause 307 Short title and extent

194. Clause 307(7) creates a power for the Secretary of State to provide by order for the Bill to have eVect in the Isles of Scilly, with such modiﬁcations as are speciﬁed in that order. Any such order is proposed to be subject to negative resolution procedure which is considered to give an appropriate level of Parliamentary scrutiny. Department of Health Home OYce 31 October 2004 Ev 1202 Joint Committee on the Draft Mental Bill: Evidence

CLAUSES CONTAINING POWERS TO MAKE DELEGATED LEGISLATION

Page Clause Title Made by Parliamentary No. procedure

Part 1 Introductory 2 1 (11) Order to bring Code of Practice Secretary of State for England Negative into operation National Assembly for Wales 4 3 (6) & (7) Approved mental health Secretary of State for England No professionals National Assembly for Wales Parliamentary procedure 5 7 (2) Expert panel Secretary of State for England Negative National Assembly for Wales 8 4 (5) Duty to arrange examination Secretary of State for England Negative National Assembly for Wales Part 2 Examination, Assessment and Treatment 9 15 (2) Determinations to be made on Secretary of State for England AYrmative examination National Assembly for Wales 3 21 (1) & (2) Examination: supplementary Secretary of State for England Negative National Assembly for Wales 22 31 (2) Care plans Secretary of State for England Negative National Assembly for Wales 23 33 (1), (2) Assessments Secretary of State for England Negative & (3) National Assembly for Wales 25 36 (2) Tribunals: application under Lord Chancellor Negative section 35 28 38 (7) Duty to apply to Tribunal for Lord Chancellor Negative order 28 39 (3) & (5) Application for order authorising Secretary of State for England Negative medical treatment National Assembly for Wales 29 40 (3) Application for order authorising Secretary of State for England Negative assessment National Assembly for Wales 30 41 (5) Duty to apply to Tribunal for Lord Chancellor Negative further order 31 42 (3) Application for further order Secretary of State for England Negative authorising medical treatment National Assembly for Wales 31 43 (3) & (5) Application for further order Secretary of State for England Negative authorising assessment National Assembly for Wales 33 46 (5) Order (or further order) Secretary of State for England AYrmative authorising medical treatment National Assembly for Wales 35 47 (5) Orders (or further order) Secretary of State for Mental Negative authorising medical treatment Health Tribunal England National Assembly for Wales for Mental Health Tribunal Wales 40 50 (6) EVect of order (or further order) Secretary of State for Mental Negative authorising medical treatment Health Tribunal England National Assembly for Wales for Mental Health Tribunal Wales 46 56 (2) Powers of Tribunals: application Lord Chancellor Negative under 54 or 55 47 56 (11) Powers of Tribunals: application Secretary of State for Mental Negative under sections 54 or 55 Health Tribunal England National Assembly for Wales for Mental Health Tribunal Wales 49 58 (6) Application for variation of order Secretary of State for England Negative (or further order) authorising National Assembly for Wales medical treatment or assessment 55 67 (1) & (2) Adjustments between social Secretary of State for England Negative service authorities National Assembly for Wales Joint Committee on the Draft Mental Bill: Evidence Ev 1203

Page Clause Title Made by Parliamentary No. procedure

61 74 (1), (3) & Rules Lord Chancellor Negative (7) 63 76 (4) Transfer of responsibility between Secretary of State for England Negative hospitals National Assembly for Wales 64 77 (5) Transfer of responsibility between Secretary of State for England Negative hospitals: emergencies National Assembly for Wales 71 83 (4) Supplementary provisions for Secretary of State for England Negative absences without leave and National Assembly for Wales returns Part 3 Patients concerned in criminal proceedings 77 92 (5) Medical treatment of person National Assembly for Wales Negative remanded by Court of Appeal Secretary of State for England 81 99 (2) Care Plans Secretary of State for England Negative National Assembly for Wales 82 100 (3) Remand by Court of Appeal Secretary of State Negative where treatment period exceeds 28 days 83 02 (3) Preparation of care plan for Secretary of State Negative purposes of sections 100 and 101 92 15 (2) Mental Health Order: care plans Secretary of State Negative etc 93 15 (7) (a) Mental Health Order: care plans Secretary of State for England Negative etc National Assembly for Wales 93 15 (7) (b) Mental Health Order: care plans Secretary of State Negative etc 93 16 (8) Power of court to make mental Secretary of State AYrmative health orders 94 18 (6) Mental Health Orders: contents Secretary of State Negative etc 02 30 (10) Power of Crown Court to give Secretary of State AYrmative hospital direction 03 31 (9) Hospital directions: Secretary of State AYrmative supplementary 04 34 (3) Termination of transfer for report Secretary of State AYrmative 12 45 (6) References by Secretary of State Secretary of State AYrmative concerning restricted patients 12 46 (4) References under section 145 Secretary of State for England Negative National Assembly for Wales 20 53 (2) Remitted cases Lord Chancellor Negative 23 58 (3) Applications and references to Lord Chancellor Negative Tribunal Part 4 Cross Border Provisions 26 62 (3), (11) Transfers authorised under Secretary of State for England Negative section 61: supplementary National Assembly for Wales 129 165(6) Transfer of persons to England Secretary of State for England AYrmative and Wales: arrangements National Assembly for Wales 130 166 (3) & (7) Transfer of persons to England Secretary of State for England Negative and Wales: notice and registration National Assembly for Wales 134 171 (9) Transfer of restricted patients to Secretary of State AYrmative England and Wales 137 174 (9) Transfer of foreign patients Secretary of State Negative 138 175 Transfer and return of patients: Statutory rule subject to Northern Ireland Negative Northern Ireland 139 179 (5) ECT: patient capable of Secretary of State for England Negative consenting National Assembly for Wales Ev 1204 Joint Committee on the Draft Mental Bill: Evidence

Page Clause Title Made by Parliamentary No. procedure

Part 5 Medical Treatment 141 183 (1) & (3) Electroconvulsive therapy (ECT) Secretary of State for England AYrmative National Assembly for Wales 145 190 (1) & (2) ECT: further provision Secretary of State for England Negative National Assembly for Wales 146 191 (1) Type A medical treatment Secretary of State for England Negative National Assembly for Wales 146 192 (2) Type A medical treatment: Secretary of State for England Negative notiﬁcation National Assembly for Wales 149 195 (1) & (2) Type A medical treatment: further Secretary of State for England Negative provisions National Assembly for Wales 149 196 (1) & (2) Type B medical treatment Secretary of State for England Negative 197 (1) & (2) National Assembly for Wales Part 6 Informal Treatment of Patients aged under 18 158 210 (7) & (8) Preparation of care plan for Secretary of State for England Negative qualifying child patient National Assembly for Wales 159 211 (6) Approval of care plan for Secretary of State for England Negative qualifying child patient National Assembly for Wales 163 217 (5) Disputes about outcome of National Assembly for Wales Negative review: qualifying child patient Secretary of State for England 166 220 (1) & (2) Power to make supplementary National Assembly for Wales Negative provisions in connection with determinations, preparations, approval, amendment and review of care plans Secretary of State for England 166 222 (1) and Adjustments between local social Negative (2) services authorities Secretary of State for England National Assembly for Wales Part 8 Patient representation 171 232 (4) Nominated persons Secretary of State for England Negative National Assembly for Wales 174 237 (2) Appointment of nominated Secretary of State for England Negative person: supplementary National Assembly for Wales 176 240 (6) & (7) Review Secretary of State for England Negative National Assembly for Wales 177 241 (5) Revocation by appointer Secretary of State for England Negative National Assembly for Wales 181 247 (6) IMHA advocates Secretary of State for England Negative National Assembly for Wales 183 250 (8) Proceedings on appeal to Mental Negative Health Appeal Tribunal: proceedings Lord Chancellor Part 9 Appeals 184 252 Rules for appeals etc to the Lord Chancellor Negative Mental Health Appeal Tribunal Part 10 Functions of Commission for Healthcare Audit and Inspection 188 259 (1) & (2) Gathering of information Secretary of State and Secretary Negative of State for England National Assembly for Wales depending on function 189 260 (5) Review and investigation into Secretary of State for England Negative exercise of functions National Assembly for Wales 190 262 (4) Investigation into circumstances Secretary of State for England Negative of death National Assembly for Wales 190 263(3) Investigations Secretary of State Negative Joint Committee on the Draft Mental Bill: Evidence Ev 1205

Page Clause Title Made by Parliamentary No. procedure

192 265 (1) & (3) Additional functions Secretary of State for England Negative National Assembly for Wales, or Secretary of State, depending on which additional functions 192 266 (1), (2) Complaints Secretary of State for England Negative & (3) & 267 National Assembly for Wales 196 273 (2) Power to require documents and Secretary of State for England Negative information National Assembly for Wales 196 274 (1) Power to require explanation Secretary of State for England Negative National Assembly for Wales Part 12 Miscellaneous 210 289 (8) Correspondence of patients Secretary of State for England Negative National Assembly for Wales 211 292 (2) Correspondence of patients: Secretary of State for England Negative supplementary National Assembly for Wales Part 13 General 218 306 Commencement Orders Secretary of State (Parts 3, 7, No 11) Parliamentary Secretary of State for England procedure and National Assembly for Wales jointly for remainder 219 307 (7) Order to modify the Act in its Secretary of State Negative extension to Scilly Isles Schedule 7 Rules for Mental Health Tribunals for England and Wales: Supplementary provision Paragraph 230 1 Rules for Mental Health Lord Chancellor Negative Tribunals Schedule 8 Treatment following the making of a Mental Health Order 233 2 (2) Approved mental health Secretary of State for England Negative professional National Assembly for Wales 234 9 (3) & (5) Application for Tribunal Order Secretary of State for England Negative National Assembly for Wales Schedule 9 Transfer for treatment: Further provision 240 3 (2) Approved mental health Secretary of State for England Negative professional National Assembly for Wales 242 7 (2) & (3) Care Plan Secretary of State for England Negative National Assembly for Wales

Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform

Memorandum to the Joint Committee on the Draft Mental Health Bill (DMH 457)

Introduction

1. On 13 October, Lord Carlile of Berriew, Chairman of the Joint Committee considering the draft Mental Health Bill, wrote to Lord Dahrendorf, inviting this Committee to consider the delegated powers in the draft Bill. We welcome the opportunity to contribute to the pre-legislative scrutiny of this Bill. We recognise that the Bill is in draft form and further reﬁnement will be necessary. This Memorandum therefore sets out some general points we would like to make at this early stage of the Parliamentary scrutiny procedure. 2. We are grateful for the assistance of a memorandum on the delegated powers which was drafted by the Department of Health and the Home OYce. 3. There are a number of delegated powers in the draft Bill, though not as many as in some other Bills of this length. We would like to make some observations in respect of those areas which the Committee would look at especially carefully were a Bill as eventually introduced to be in the form of the draft. Ev 1206 Joint Committee on the Draft Mental Bill: Evidence

Clause 1 4. Clause 1 requires the Secretary of State (for Wales, the National Assembly) to publish a Code of Practice. This Code will set out principles to which a person must have regard in coming to a decision under the Bill, though Schedule 1 excludes certain matters from the Code’s remit. Under clause 1(11) the Secretary of State must lay a draft of the Code before Parliament and bring it into operation by order subject to negative procedure. For Wales, the Code is brought into force by order of the Assembly subject to Assembly procedures. 5. The Code is likely to attract considerable interest, as does the current Code of Guidance under the Mental Health Act 1983 (which is subject to a “negative draft” procedure). Even though, under clause 1(2) and (5), a person need only have regard to the Code, and need not necessarily always follow it, the Code will set out principles underlying the new regime in the Bill. The Committee believes there is a strong case for suggesting that at least the ﬁrst order by the Secretary of State bringing a Code into force should be subject to aYrmative procedure.

Clause 183 6. Clause 183 contains an important power (subject, in the case of its exercise by the Secretary of State, to aYrmative procedure) to allow ECT (electro-convulsive therapy) where a patient is capable of consenting but does not do so. The Committee noted the limitation on the exercise of the power in clauses 182(2) to (4) and 183(2) of the Bill itself (clinical supervisor’s certiﬁcate) and on balance consider the delegation is appropriate. The aYrmative procedure for regulations by the Secretary of State is certainly appropriate.

Clause 190 7. Clause 190 enables the Secretary of State (by regulations subject to negative procedure) or the National Assembly for Wales to make further provision in connection with clauses 179 to 188 (which are about ECT). The memorandum explains that the negative procedure has been chosen because the regulations are procedural. There is an issue as to whether this procedure is necessarily appropriate, as the regulations can aVect the treatment actually given, for example by imposing additional requirements to be met before ECT may be given (clause 190(2)(a)) and imposing a maximum on the occasions on which ECT may be given in any particular period (clause 190(2)(e)).

Clauses 191 and 197 8. The draft Bill sets out diVerent categories of treatment: (a) ECT, for which specific provision is made in the Bill; (b) Type A treatment—psychosurgery and other treatment specified in regulations; (c) Type B treatment—as specified in regulations (but excluding Type A treatment and ECT); (d) other treatment. Type A treatment is to be subject to tighter restrictions than Type B treatment, but for Type B treatment the details of the restrictions and exceptions are left to regulations. 9. The regulations prescribing Type A treatment and Type B treatment are subject to negative procedure only, which reflects the position for equivalent powers under the current legislation. Prescribing the treatment can only lead to greater safeguards for the individual than would otherwise apply under the Bill. Nevertheless, a decision, for example, to move treatment from Category A to Category B could be highly significant; and for Type B treatment much of the detail of the restrictions is left to regulations. So there is an issue as to whether the aYrmative procedure might be more appropriate.

Clause 305 10. Clause 305 contains a power to make orders containing supplementary, incidental or consequential provision, which includes power to amend an Act. The Committee considers that the exercise of such powers by the Secretary of State should normally be subject to aYrmative procedure where the order amends a public general Act. 11. Nothing in this memorandum should be taken as pre-empting our comments when the Bill is introduced into the House of Lords. At that stage we will, in accordance with our terms of reference, report to the House on the appropriateness of the delegated powers contained in the Bill and of the level of Parliamentary scrutiny applied to them. 24 November 2004 Joint Committee on the Draft Mental Bill: Evidence Ev 1207

Memorandum from the Policy Study Institute (PSI) Health of the Muslim Patients & Carers International Health Foundation (DMH 421)

HEALTH ADVISORY BOARD

The Union of Muslim Organisations UK and Ireland The UMO is the National Representative Organisation of over two million British Muslims, whose Executive Committee is democratically elected as its Annual Conferences.

UMO Aims — To promote Unity amongst Muslims in the UK and Ireland. — To operate as a spokesman on behalf of all Muslims in the UK and Ireland on all matters relating to their religious, cultural, social, educational and economic health issues. Institute of Policy Studies for Muslim ie leading organisations in the UK working in mental health and learning disabilities. We work to promote mental well-being for everyone and encourage improvements in the quality of life for people with mental health problems and people with learning disabilities. We seek to achieve these goals by supporting improvements in policy and services across the UK, through a range of activities including research, training and information provision.

Policy and Support for British Muslim Response A majority of those surveyed (about 40%) believed there was no support from British Policy Makers for British Muslims, with an almost identical number believing there was some support albeit not very serious. The primary reason for respondents who felt little or no support from British policy makers towards British Muslims was due to the lack of legal protection for Muslims from discrimination, similar to legislation protecting other religious communities.

Contents Summary of key points Summary of recommendations Introduction 1. Is the draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable? 2. Is the deﬁnition of Mental Disorder appropriate and unambiguous? Are the conditions for treatment and care under compulsion suYciently stringent? Are the provisions for assessment and treatment in the Community adequate and suYcient? 3. Does the draft bill achieve the right balance between protecting the personal and human rights of the mentally ill on one hand, and concerns for public and personal safety on the other? 4. Are the proposals contained in the draft Mental Health Bill necessary, workable, eYcient, and clear? Are there any important omissions in the Bill? 5. Is the proposed institutional framework appropriate and suYcient for the enforcement of measures contained in the draft Bill? 6. Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, suYcient? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery? 7. Is the balance struck between what has been included on the face of the draft bill, and what goes into Regulations and the Code of Practices right? 8. Is the draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)? 9. Is the draft Mental Health Bill in full compliance with Human Rights Act? 10. What are likely to be the human and ﬁnancial resource implications of the draft Bill? What will be the eVect of the Bill adequately, and will suYcient resources be available to cover any costs arising from implementation of the Bill? Additional information: Black and ethnic minorities case history. Misdiagnosis of a Muslim patient who had chest cancer for seven years. Diagnosed as mentally ill, given anti-psychiatric drug treatment instead of cancer treatment. Ev 1208 Joint Committee on the Draft Mental Bill: Evidence

Appendix 2: Ethical Standards in Psychiatry and Psychiatric aspect of Muslim detainees held under the 2001 Anti-Terrorism Crime and Security Act. Appendix 3: Census of Muslim plight and Muslim Prison. Appendix 4: Major Anxieties of Muslims in Britain.

British Muslims Debate The Draft Mental Health Bill “The detention of the mentally ill in this draft is unworkable, racist and incompatible with Human Rights. Please don’t let it go through”.

Summary of Key Issues

Reform of mental health law can only play a small part in improving patient care: — Reducing stigma and discrimination. — Enhancing awareness within society. — Ensuring an adequate and well trained workforce and — Access to a range of psychological and medical treatments Are all far more important in improving mental health (including issues of safety). The legal framework for non-consensual treatment for the mentally ill should: — Mirror that for the physically ill as closely as possible. There is no place, in the 21st Century, for forcing treatment which they do not want on people who retain full decision-making capacity. — Ensure the Government’s intention not to increase the number of patients subject to compulsion is realised. The proposed definition of Mental Disorder is only workable if the conditions for compulsion are restricted. — Not be used solely for the control of social, or anti-social, behaviours in a health service, unless there is a health need and benefit. — Be consistent between diVerent parts of the United Kingdom. A Mental Health Act should not: — Have an adverse eVect on voluntary patients either by making them fear using services or by limiting the services available for such patients due to an increase in resources for those subject to compulsion. — Have an adverse eVect on the safeguards for compelled patients because staV requirements cannot be met. — Require practitioners to have to balance the ethical principles of their profession against compliance with the law. A Mental Health Act should: — Be understandable to practitioners. — In relation to children and young people, involve psychiatrists and other professionals, including lawyers with expertise in working with children. Many people, particularly in the Black African and Caribbean Muslim communities, do not believe that mainstream mental health services can oVer positive help, so they delay seeking help; They therefore are not engaging with services at an early point in the cycle when they could receive less coercive and more appropriate services, coming instead to services in crisis when they face a range of risks including over and misdiagnosis, police intervention and use of the Mental Health Act; These aversive care pathways further influence both the nature and outcome of treatment and the willingness of communities to engage with mainstream services. This situation is clearly unacceptable and unsustainable. Further, it constitutes an adverse and unjustifiable impact under the RR(A)A 2000 and as such there is a statutory obligation for remedial action to be taken. The main body of this document sets out the actions those responsible for and working in primary care and mental health services need to take to meet their statutory obligations and will help them to meet national targets and other standards and commitments. Joint Committee on the Draft Mental Bill: Evidence Ev 1209

Summary of Key Recommendations 1. The draft Codes of Practice must be made available, alongside the draft Bill, in order to fully understand the provisions of the Bill.

Question 1 2. Principles should include: non-discrimination, request for diversity, religious respect for personal autonomy, informal care where possible, reciprocity, lease restrictive alternative, patient participation and consensual care where possible, respect for religion, patient beneﬁt, child welfare.

Question 2 3. The definition of mental disorder in the draft Mental Health Bill is satisfactory ONLY if combined with extremely tight conditions and limitations. Otherwise either the New Zealand or Australian definitions of mental disorder should be adopted. 4. The Bill should contain the following exclusions. Nothing in the conditions for compulsion shall be construed as implying that a person may be dealt with under this Act as suVering from mental disorder solely by reason of: cultural, political or religious beliefs of promiscuity, sexual deviancy or other immoral conduct or dependence on, or misuse of alcohol or drugs or impairment of intelligence or the commission, or threat, of illegal or disorderly acts. 5. Use of the Act should be prohibited in cases where the capacious patient willingly accepts assessment and treatment as recommended by the medical practitioner. 6. Patients who lack decision-making capacity must not be excluded from receiving treatment because they resist treatment and yet present only moderate risk to their health. 7. There should be two important additional conditions for compulsion in the draft Bill: (a) Impaired decision-making by reason of their mental disorder. (b) In relation to a treatment order therapeutic benefit for the patient. 8. Community Treatment Orders should be available for patients only on authorisation of the Tribunal after a period of in-patient assessment and whilst the person suVers impaired decision-making by reason of their mental disorder. Leave of absence powers enable assessment and treatment in the community during the assessment period.

Question 3 9. A Tribunal should not be permitted to authorise a treatment order if it is hearing an appeal within the ﬁrst 14 days of the period of assessment.

Question 4 10. Compulsion should only be possible, other than in an emergency, if two doctors certify that the patient suVers from a mental disorder satisfying to conditions. 11. Clinical supervisors must be qualified to assess if a person meets the conditions for compulsion in order to be able to keep under review if the conditions continue to be met. 12. The Mental Health Tribunal should be permitted to authorise specified medical treatments only if they are agreed as necessary by both the clinical supervisor and medical expert panel member. 13. There should be no limitation of the right to discharge by the Clinical Supervisor for patients detained under civil sections. The College would also wish those rights (and associated limitations) currently available to the nearest relative to be available to the nominated person. 14. Transfer between hospitals should require consultation, other than in an emergency, but without specific time limits.

Question 5 15. Medical treatment, provided it is not irreversible or hazardous, may be given under the direction of a registered medical practitioner, within the ﬁrst 5 days, if it is necessary to alleviate, or prevent a deterioration, in the patient’s condition. Ev 1210 Joint Committee on the Draft Mental Bill: Evidence

Question 6 16. Safeguards, both legal and clinical, for persons under 16 years of age must be re-evaluated. 17. Changes to the medication plan after 28 days should be authorised by a medical member of the Expert Panel, with similar requirements to consultation as specified. If a full Tribunal was to be required there is a real danger that either: (a) Necessary changes in medication would be significantly delayed leading to prolonged suVering and increased risks or (b) The initial treatment plans authorised would be very board giving limited or no protections to the patient. 18. It should be clear from the legislation, or Code of Practice, that one option for a care plan presented to a Tribunal would include the statement that identified treatments will only be given with the patient’s consent (subject to an emergency treatment clause). 19. Electro-convulsive therapy (ECT) should only be prescribed by qualified psychiatrists. There should be no compulsory ECT in the face of the refusal of a capacitous patient. The current provision in relation to surgery for mental disorder (requiring capacitious consent) should not be extended.

Question 7 20. The College believes the principles underpinning the legislation should be on the face of the Bill, as with the Mental Capacity Bill.

Question 8 21. The rights, and safeguards, for patients should be the same under the Mental Capacity and the Mental Health Bills.

Question 9 22. The Mental Health Act for England and Wales must meet the requirements both of Human Rights legislation and the recommendations of the Council of Europe.

Question 10 23. Further research is required to assess the realistic likely impact of the proposals, on the workforce, in relation to numbers, recruitment and morale.

Additional information 24. A review of the Bill’s workforce and service impact in Wales should be undertaken. 25. The principles and essential provisions of mental health legislation should not diVer signiﬁcantly between diVerent parts of the United Kingdom. “For now everyone in all Muslim communities should be prepared for more raids, arrests and harassment from the authorities and this will includeBbritish, working professionals, there will be many more BPP’s (British Political Prisoners) like myself and others”.—Woodhill Detainee Babar Ahmed (August 2004).

Major Anxieties of Muslims in Britain These fell into three categories: — Extremist Islamophobic agenda of various institutions — Likewise the media and organisations — A concomitant degree of misunderstanding about Islam in British society Concerns ranged from: — Government policies and public attitudes. — Physical attacks and abuse. — Anti-terrorist legislation. — Proposed ID cards. — The general public attitude of an “anti Muslim culture”. Underlying them all was fear of both physical and moral abuse. Joint Committee on the Draft Mental Bill: Evidence Ev 1211

What causes Muslim Dissatisfaction in Britain? Respondents’ reasons for feeling unhappy in Britain fell into three categories: — Antagonistic British culture. — Negative portrayal of Muslims in the media. — Lack of respect for religious values in British society. The whole purpose of publishing the reports became clear when Ms Arzu Merali, co-author of the reports and Director of Research at the IHRC spelled out the recommendations. “There are a series of steps which the Government and those who run the country from this building need to take”. She emphasised a full review of school curricula to ensure that positive images about Islam and Muslims were included.

British Muslims’Expectations of the Government First two reports’ launch at the House of Lords, London, 16 December 2004

Case of Mr J. — Misdiagnosis of a 77 year Muslim patient spent “seven” years in mental hospital and was treated with potential drugs was in fact suVering from lung cancer—he was released by chance after enquiry by Scottish Mental Welfare Commission (detail available from the commission). — Cases of misdiagnosis of BME Muslim patient very high and accepted by Health Secretary John Reid as circle of fears. Breaching an unacceptable Human Right Race Relation Act.

Discrimination It is still the case, generally, that under the bill, compulsory powers will only be used if an individual is not willing to accept treatment voluntarily. There can be many reasons for not accepting treatment voluntarily, and an unwillingness to accept treatment is not necessarily a symptom of mental disorder. People who feel alienated from authority, people who feel that their cultural needs are not recognised or not respected, and people who are oVered an inadequate service, may all be unwilling to accept what they are being oVered. If compulsory powers are available even when people don’t need in-patient treatment (and particularly when they are obligatory), it is likely that they will be used, rather than time spent in trying to build trust, appreciate diVerence and raise standards, so that people accept treatment voluntarily. Poor people and people from minority cultures are more likely to be aVected than better oV people and members of majority cultures.

Report Accuses NHS of Institutional Racism Equitable services that are designed around and responsive to the needs and wishes of individuals, reﬂecting the rich diversity of modern British society, includes the NHS Plan and the Mental Health Modernisation Programme (MHMP). Since publication of the Mental Health National Service Framework (MHNSF) in 1999, with its requirement in Standard 1 for the promotion of health and social inclusion, the introduction of the Human Rights Act 1998 and the Race Relations (Amendment) Act 2000 have provided a statutory framework setting out the obligations of health and social care services in relation to equality and human rights.

Case for Action Concerns have been expressed over a number of years that services are not being delivered to people from Black and minority ethnic (BME) communities experiencing mental illness and distress in a way that meets these obligations. Inside Outside: Improving Mental Health Services for Black and Minority Ethnic Communities in England was published in March 2003. The evidence set out in Inside Outside and other research, such as that undertaken by the University of Central Lancashire and the Sainsbury Centre for Mental Health (SCMH) and the Mental Health Act Commission have shown that Black and minority ethnic people are more likely to experience: — Problems in accessing services; — Lower satisfaction with services; — Cultural and language barriers in assessments; — Lower GP involvement in care; — Inadequate community-based care; — Lower involvement of service users, family and carers; Ev 1212 Joint Committee on the Draft Mental Bill: Evidence

— Inadequate support for Black community initiatives; — An aversive pathway into mental health services: — Higher compulsory admission rates to hospital; — Higher involvement in legal system and forensic settings; — Higher rates of transfer to medium and high secure facilities; — Higher voluntary admission rates to hospital; — Lower satisfaction with hospital care; — Lower eVectiveness of hospital treatments; — Longer stays in hospital; — Higher rates of readmission to hospital; — Less likelihood of having social care/psychological needs addressed within care planning/ treatments processes; — More severe and coercive treatments; — Lower access to talking treatments. 1.3 What the SCMH has termed “circles of fear” have been created so that: — Many people, particularly in the Black African and Caribbean Muslim communities, do not believe that mainstream mental health services can oVer positive help, so they delay seeking help; — They therefore are not engaging with services at an early point in the cycle when they could receive less coercive and more appropriate services, coming instead to services in crisis when they face of risks including over and misdiagnosis, police intervention and use of the Mental Health Act. — There aversive care pathways further inﬂuence both the nature and outcome of treatment the willingness of communities to engage with mainstream services. 1.4 This situation is clearly unacceptable and unsustainable. Further, is constitutes an adverse and unjustiﬁable impact under the RR(A)A 2000 and as such there is a statutory obligation for remedy action to be taken. The main body of this document sets out the actions those responsible for and working in primary acre and mental health services need to take to meet their statutory obligations will help them to meet national targets and other standards and commitments. These actions are summarised at Annex A. The remaining annexes set out pointers for achieving improvements to some and examples of notable developments that have already taken place locally. 1.5 Successful delivery of the framework will require action by all responsible for planning, commissioning delivering and monitoring primary care and mental health services. This work should not be seen as “specialist” or separate. It is central to the modernisation of mainstream services. Implementation of this framework should help planners, commissioners and provides meet their national mental health delivery targets. It will be more diYcult to meet national targets if the need of Black and minority ethnic groups unmet, given their over-representation in certain aspects of mental health services (and their under- representation in others). For example, Black and minority ethnic patients are currently over-representative both voluntary and compulsory hospital admissions, on average staying longer in hospital, and are more likely to be readmitted. Services, including those set up under the Mental Health Modernisation Progress such as early intervention, crisis services and assertive outreach teams, will need to take full account of the needs of these groups if they are to be as eVective as possible in meeting their acute care targets. January 2005