Mental health tsar answers your questions

Louis Appleby was interviewed by Community Care
reporter Katie Leason, who put questions to him regarding the draft
mental health bill sent in from visitors to communitycare.co.uk and
readers of Community Care magazine.

Question: Were you surprised with the
opposition the bill has faced?

Answer:  It’s a very contentious issue, setting out the
circumstances under which somebody can be detained for treatment or
assessment and so in that sense I’m not surprised that people have
very strong views about it and these views are concerned about how
these powers will be used. There is obviously a strength of feeling
across the mental health field that we have to take account of and
professional groups and patient groups have been very careful to
emphasise how strong their views are held and how much backing
there is in their constituencies and their organisations and we
have to take that very seriously. It’s not a question of being
surprised, it’s a matter of being prepared to understand where
those very strongly held views are coming from and respond properly
to them.

Q. Can they all be wrong?

A. No. This is a consultation period and a draft bill
and the implication of that is that views have to be listened to
and changes made if that’s thought to be right and I don’t think
there is any shame in that. It’s right for the two government
departments to think that they will benefit from comments from
people in the field so we don’t start out with the assumption that
people are wrong. That’s not to say I agree with all the criticisms
of course but I think it’s right to listen to people and I think
the overall point that there are places where the bill can be
strengthened is bound to be correct and there wouldn’t have been
any point in having a consultation period if we weren’t then
prepared to make certain changes. That’s what we now have to
do.

Q. Given the strength of the opposition, how
are you going to get the bodies and organisations on board now?

A. I think first of all by making clear that this is a
genuine attempt to get the bill right. I hope people understand
that now. There was a strength of feeling at the beginning of the
consultation that this wasn’t genuine consultation and without
going into the history of that and whether it was fair or unfair,
that is obviously how a number of people felt and a number of
important organisations felt. I suppose a lot of the strength of
feeling, and some of the quite bitter things that were said in the
early period of consultation reflected the fact that people felt
they weren’t being listened to as much as concerns about the
substance of the bill itself. I hope that’s changed now and people
have got the message that their views are being properly taken into
account and that will continue. I don’t think we should simply say
we’ve had a consultation period so that’s it we’ll disappear into a
room now and a bill will emerge in a few months time or whatever. I
hope now people have also understood that there isn’t some sort of
dark government intent to increase compulsion for some sort of
unidentified reason of social cleansing or something. There is
nothing like that. There is no intention to increase
compulsion.

Q. We’ve had a lot of interest from our readers
about the ASW role and its replacement with the approved mental
health professional. Why is the ASW role being changed?

A. It’s really because of change across the health
service to have people defined by skills rather than their
professional background, and that is an NHS wide phenomenon. There
is a much greater interest now in making sure people who come into
the NHS that their role in the NHS is not determined by the door
they come in at marked psychiatrist or social worker or nurse, but
by the kind of skills they can develop within the system. There are
several ways in which people are moving away from traditional
professional boundaries and inevitably when considering what might
change about the current mental health act that was one of the
things, and I don’t blame the social workers for feeling nervous
about that because of course people always feel uneasy when their
professional position might be changed. But it will still be the
case that we will need people who bring the non-clinical
perspective to mental health care, not only in relation to the act
but in general to the nature of care. There is still a need for
that and in some ways that is in a stronger position now than three
or four years ago as a result of our national service framework
which talks particularly about mental health promotion, social
inclusion and some of the other issues which are not strictly
clinical in the traditional sense.

Q. How is it going to be guaranteed that
assessments will be balanced and not dominated by the medical
model? In terms of if it’s a nurse replacing a social worker
there’s a great fear among our ASW readers that it will become a
very medical assessment.

A. Being honest about it, we have to make sure that
doesn’t happen because it’s still part of the way the act is
constructed that there will be people playing different roles.
We’re still talking about two doctors, we’re still talking about
somebody from a different profession making what is at the moment
called the application. Those roles are kind of retained even
though the exclusive professional position of social worker isn’t
retained. There are two doctors in the mental health act as well
and the origin of that is to try to have independent medical
opinion as part of the act and that will continue. But there are
going to be difficulties about it that we have to work out partly
because trusts are now much bigger, mental health services now
cover a much larger area so the availability of somebody from an
independent organisation is not so clear, and that will also be
true in relation to the mental health professional who makes the
application, whether or not actually it’s a social worker because
some organisations are now health and social care together. So
people’s concern is that if you’re working for the same
organisation and you’re part of the same multi disciplinary team
then how do we make sure there’s an independent voice. I think that
would apply whatever we were doing about the approved social worker
role because of changes in the organisation of NHS and social care.
We have to be sensible about working them through.

Q. Are you confident that a balanced assessment
is going to be made which is not overshadowed by medical views?

A. I am confident about that because I think that’s what
happens at the moment, not because of the demarcation we’ve got in
place, but because in general the act is operated by sensible
people and people are aware of their position and aware of their
responsibilities and I think that’s why the process works, why we
get differences of views between social workers and doctors
properly thought through and worked out. I don’t think it’s just
because one person is a social worker and the other is a doctor and
therefore there’s a clash between medical and social perspectives.
I think it’s because professionals working in this area are aware
of the importance of what they do and the seriousness of the
process of detaining somebody and so they do properly operate and
reflect the position of importance they have been given and that
will be true if we have a different sort of person playing that
traditional social worker role. That will still be true because
those professionals will still have that right expertise and
training and the right kind of principles behind them.

Q. Regarding children, do you think they need a
separate piece of legislation which is formulated particularly to
meet their needs?

A. I hadn’t thought of that. I haven’t seen an argument
that makes a strong case for that. There are some changes in
relation to children being proposed which essentially makes them
rather like adults from the age of 16 and there’s an attempt to get
the balance right between what the child wants in relation to
treatment at any age and what parental rights there are. So no I
hadn’t really thought of that and I think in some ways the position
of children is strengthened by being aligned with what’s being set
out for adults in the act.

Q. Scotland produced its bill, but it hasn’t
attracted the same amount of criticism as the English bill. Why do
you think that is?

A. There’s an important difference between the Scottish
bill and the English bill which is not particularly to do with the
bill, but to do with the history of how the services operate and in
particular how they operate in relation to the criminal justice
system. Scotland doesn’t have the tradition that England has of its
mental health services, forensic specialist mental health services,
addressing the issues of dangerousness in personality disorder
(DSPD). That’s much more of an English phenomenon than it is in
Scottish services. The link between this bill and the so called
DSPD initiative has been at the root of a lot of the controversy.
So I think it’s not so much to do with the bill except that the
bill reflects that kind of tradition. In England one of the reasons
why people are worried about the increased use of compulsory powers
is because of this link with DSPD, and what’s being proposed for
DSPD. There is no such proposal in Scotland because it hasn’t
really been an issue in Scottish services in the way that it has in
England. I think the other thing is that there has been a debate
about capacity and the issue of mental capacity and how it should
be part of a mental health act or not.

Q. Under the proposals, the Mental Health Act
Commission is to go. How are you going to ensure that its functions
are continued?

A. What we’re looking at is that Commission for Health
Improvement (CHI), or the CHI successor, that it will have that
role because it has that role for services in general, that issue
of monitoring standards and carrying out inspections. That is what
CHI does in general so the question is should we have a separate
organisation that does that in relation to the use of the mental
health act or should we have that as part of the brief for CHI who
are doing this for mental health services as a whole, and I think
the sensible thing is to bring the two together. It is a complaint
of a lot of clinicians that there are far too many inspections.
People sometimes feel they are over inspected so anything that
helps to streamline the system should be good.

Q. Are patients still going to be visited and
how will you ensure that the act is properly implemented?

A. We’re not trying to make it more difficult to inspect
the use of the act. On the contrary we are trying to bring it in
line with the rest of how mental health services are examined and
those things will still happen – it’s just a question of who does
it. At the same we are trying to increase the patient’s access to
support when they are detained under the act by bringing in
advocacy for people who are under the act. What we’re trying to do
is make it easier for patients who are detained to express their
views, have their rights respected and get proper
treatment.

Q. In terms of the new tribunals, it has been
estimated that 600 more psychiatrists are to be needed. Where are
they going to come from?

A. There’s no question that tribunals will need
additional psychiatrists. I should say it’s not actually to put
people on the tribunal that we need more psychiatrists, it’s to
provide expert witness to the tribunals because we’ve quite
deliberately not asked, not insisted on a doctor being a member of
the tribunal because of the workforce difficulties that might
cause. The tribunals have been brought in for a very important
reason – to provide independent scrutiny for patients care plans.
They are a very important safeguard in the new bill and if we think
they are sufficiently important then we need to follow through the
implications and if there are workforce consequences which of
course there are then we need to address them.

Q. Are more people going to be subject to
compulsion under the new act?

A. There is no intention to do that. The key to it is
not the act in some ways it’s what services we provide. The act
isn’t a substitute for good care. It never could be, it’s not
intended that way. The measures that will reduce compulsion are the
measures that will improve services in general. So the way we will
reduce compulsion is set out in the NHS plan, by brining in
assertive outreach teams to support the most vulnerable people who
at the moment come in and out of hospital often under compulsion.
So if we support them better they will not need quite so many
compulsory admissions. The early intervention teams in the NHS plan
are there to make sure people’s first experience of care is a much
earlier one so they don’t get so ill they have to be admitted to
hospital under the act.

Q. Some say that people with mental health
problems are going to be afraid of accessing help. Do you think
they have reason to be afraid?

A. No because just as now most care will be voluntary.
There is no intention to increase the use of compulsory powers.
People look at the broad definition of mental disorder in the new
bill and worry that will bring a lot of people under compulsion. It
isn’t the definition that brings people under compulsion it’s the
criteria. The criteria we do need to make sure is sufficiently
tight so only those who absolutely need to be treated involuntarily
are treated involuntarily. There’s no intention to extend
compulsory powers to people who might otherwise be treated
informally. The aim is the opposite, it’s to reduce compulsion and
people need to be reassured about that.

Q. Regarding carers, does the legislation do
anything to enhance their role as key partners?

A. It’s not primarily for legislation to do that. I
think that’s an issue for services in general and I hope that’s
been at the forefront of what we have been trying to do in services
over the last couple of years. I personally feel very strongly
about the role of carers and the position they have, but I think we
do that mainly through getting our services right and getting them
to work in a way which is a proper partnership with carers. There
have been some criticisms of the bill – people are worried that
carers may be sidelined when it comes down to detaining somebody
because it’s up to the patient to nominate somebody. There are
worries that someone who is ill might, because they’re ill, be
suspicious of their family members who they might normally live
with and rely on and because they are ill might name somebody else
as a nominated person which would effectively cut their normal
carers out of the picture. That’s certainly not intended at all and
we need to make sure the wording of the bill doesn’t allow that to
be possible.

Q. What’s your response to the accusation that
the bill is complicated and hard to read?

A. I think it is complicated and hard to read. I think
it’s probably true, but I don’t pretend to be an expert on
parliamentary process. I think bills have to be written in a very
precise and occasionally turgid language so they are legally
defensible. On the issue of being clear with people and getting the
message across and having proper discussion, that is obviously what
we need to do and if the bill can’t do that because of the
parliamentary requirements then we need to have another way of
doing it.

Q. Interviewing people in a suitable way, are
there any safeguards to ensure that deaf people, for example, will
have access to somebody to help them if sign language is their
first language?

A. There is no intention to draw back from that. I think
that’s one of the issues we’ll now be discussing because I think
that has come through in consultation but I think people can be
reassured that there is no intention to make it more difficult for
people.

Q. Funding: are the proposals going to be any
more costly?

A. Costs are being considered as part of the
government’s current spending review. The result of which hasn’t
been announced. Obviously these costs have been taken into account
in what’s been requested. There will be training costs for the
bill. These costs are inevitable and we must be prepared to take
them on.