Saturday, 14 March 2015

CTO’s – Fit for Purpose?

Community Treatment Orders were introduced by the 2007 changes to the Mental Health Act 1983, and came into force in 2008.

The New Code of Practice states that the purpose of a CTO “is to allow suitable patients to be safely treated in the community rather than under detention in hospital, and to provide a way to help prevent relapse and any harm – to the patient or to others – that this might cause. It is intended to help patients to maintain stable mental health outside hospital and to promote recovery.” (Para.29.5)

It goes on to suggest that CTO’s could be regarded as fulfilling the principles of  treating patients using the least restrictive option and maximising their independence.

CTO’s have been very popular since their inception in 2008. This could be at least partly due to the process being initiated and managed by psychiatrists rather than AMHP’s, unlike with admission to hospital under Sec.2, 3, or 4, where an AMHP, as a non-medical professional, leads the process and makes the final decision.

But CTO’s have also been very contentious. Critics regard them as being excessively controlling and interfering with patients’ human rights, while supporters regard them as a way of enabling patients with severe and enduring mental disorder to live as normal and fulfilled a life as possible outside hospital.

Both views have their merits. It is one thing to argue that it is unreasonable to enforce treatment on a person who is not in a hospital, but there is also a point in arguing that it has to be better that someone remains out of hospital as long as there is a framework to ensure treatment for their mental disorder.

For compulsory treatment in the community to be justifiable, it has to be shown not only that it results in fewer admissions to hospital, but that is can also demonstrate a better quality of life for the patients involved.

So has there been a reduction in the numbers of admissions since 2008? It appears not. The Health and Social Care Information Centre (HSCIC) publish annual statistics for patients formally detained under the MHA, and for people subject to CTO’s. The figures for 2013-14 came out at the end of October 2014.

The Report states that since 2008 the number of people subject to CTO’s as of 31st March 2014 has more than doubled, an increase of 206% or 3,610. Over the same period there has indeed been a reduction in the number of people detained under Sec.3 for treatment, which must be linked to the increase in CTO’s, as patients can be recalled to hospital and their CTO’s revoked without the need for a fresh assessment under the MHA.

However, over the same period, overall detentions in hospital under the MHA have increased by a third, so that in the period 2013-14 “the Act was used 53,176 times to detain patients in hospital for longer than 72 hours” (ie. Under Sec.2 or Sec.3).

So, while there has been a reduction of people detained in hospital under Sec.3, mainly as a result of the introduction of CTO’s, overall detentions have increased to record levels.

While it may be tempting to reach the conclusion that CTO’s have not fulfilled their function of reducing admissions to hospital, the reality is far more complex, as it is likely that the nationwide cutbacks in services for people with mental health problems over the same period have contributed to this rise in acute admissions.

The only significant research into the link between CTO’s and hospital admissions is the OCTET Trial, published in 2013.

The object of this research was to see if CTO’s reduced readmission. They monitored the samples (a total of 333, of whom 166 were discharged on CTO’s and the rest on extended Sec.17 leave) for 12 months. Their conclusion was that “the imposition of compulsory supervision does not reduce the rate of readmission of psychotic patients. We found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients' personal liberty.”

While the conclusion seemed unequivocal, I had some considerable misgivings about the usefulness of this piece of research, not least because of the miniscule size of the sample, which I wrote about on this blog back in April 2013. It is clear that much more research needs to be done in this area.

So what about the effectiveness of CTO’s in improving the quality of life of patients?

Unfortunately, there is again very little research into this, and it would appear that there is none at all in the UK. However, other countries have equivalent powers, including Australia, New Zealand, the USA and Israel, and there has been a recent review of available research, Compulsory community and involuntary outpatient treatment for people with severe mental disorders, by Steve Kisley and Leslie Campbell, which was published in December 2014.

The research looked at three trials consisting of a total of 752 people. The report concluded: “Results from the trials showed overall [compulsory community treatment] was no more likely to result in better service use, social functioning, mental state or quality of life compared with standard 'voluntary' care.”

It did note that “people receiving CCT were less likely to be victims of violent or non-violent crime.”

There are some provisos to these findings. For a start, the authors considered that the quality of evidence for the main outcomes was low to medium grade. They also noted that “other than feelings of coercion or being controlled, there were no other negative outcomes”

None of the available research satisfactorily provides evidence one way or another for the efficacy or otherwise of compulsory community treatment. All that is certain is that there should be much more research if such a potentially contentious form of intervention is to continue to be used at the current levels.

Friday, 6 March 2015

How do you define “a place to which the public have access” under Sec.136?

The ambulance or the highway?
There has recently been an interesting discussion on the Masked AMHP Facebook Mental Health Forum concerning whether or not an ambulance could be considered to be “a place to which the public have access” within the meaning of Sec.136 MHA.

Sec.136 permits a police officer who “finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control… if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety”. The person then has to be assessed by an AMHP and a doctor to see if they need to be detained in hospital.
The question is, of course, what exactly constitutes “a place to which the public have access”?
The New Code of Practice (para16.18) says that this “includes places to which members of the public have open access, access if a payment is made, or access at certain times of the day. It does not include private premises, such as the person’s own place of residence or private homes belonging to others”.
Richard Jones suggests that this “probably includes: public highway, public access if payment is made, eg a cinema, public access at certain times of the day, eg a public house.”
The problem with all this is that there appears to be almost no case law at all specifically relating to what constitutes “a place to which the public have access” under Sec.136. As Insp Michael Brown observed:
‘"A place to which the public has access" isn't legally defined. "A public place" is defined - at least five or six different times, depending on whether you're reading the Public Order Act, the Highways Act, the Road Traffic Act, etc., etc., etc.’
These definitions, and other case law relating to various Acts of Parliament, may assist in providing guidance. I consider some of these in an earlier blog post on this subject. In particular, they examine issues such as whether or not a garden is a public place (yes if it’s a pub garden, no if it’s a private individual’s front garden, however small.) Insp. Michael Brown, on the excellent Mental Health Cop blog, also considers possibly relevant case law at greater length.
But there’s no mention at all anywhere of whether or not a motor vehicle can be regarded as a public or a private space.
The general consensus in the Forum discussion was initially that an ambulance, or indeed any other vehicle, could not be regarded as “a place to which the public have access.”
But I was not so sure.
I took the view that a vehicle (apart possibly from a residential caravan, which although ostensibly being a wheeled vehicle has the main purpose of providing living accommodation for an individual) could not be considered to be a “place” at all. On that basis, the important and defining factor was the location of this vehicle.
Inspector Michael Brown usefully enlarged upon this:
“If you were found sitting in your own car and all other criteria were met, the police could use s136. If you were the passenger in another vehicle that was stopped by the police and the other criteria satisfied, they could use s136. I don't see how being in a vehicle alters this consideration massively - you get few legal protections in a car or truck from police activity and those are usually connected to things like powers to search it.”
I would argue that a car is simply a means of moving from one place to another, as is a bicycle, a motor cycle or a pogo stick. Would someone on a bicycle on a public highway be regarded as not being in a place to which the public have access? I think not. The mere fact that a car, or an ambulance, or a bus, has doors which can be closed from inside does not make it a “place” immune from the police exercising their powers under Sec.136.
The discussion moved to considering whether a tent was “a place to which the public have access.” Again, several people regarded the interior of a tent as being a private space.
An anonymous commentator on my blog has said: “I was put on a Section 136 whilst I was asleep in a tent at a festival last summer. I woke up as the police grabbed my ankles to drag me out.”
The writer was understandably annoyed at this rude awakening, but I have to conclude that merely being surrounded by canvas does not make one immune from Sec.136. If that was the case, then your clothing could constitute such a “place”.
Again, it all comes down to location: if the tent is pitched in “a place to which the public have access”, then it is fair game. If, however, it is pitched in your back garden, or someone else’s back garden with permission, then you are not in “a place to which the public have access” and you will be safe from the attentions of the police -- unless they have a warrant under Sec.135.
Now there is some case law about what constitutes a “road”. Alun Griffith (Contractors) Ltd v Driver and Vehicle Licensing Agency [2009] EWHC 3132 (Admin), [2010] RTR 7) established that a grass verge on the edge of a road constitutes part of a public highway, and even if it is behind a crash barrier, it could still be regarded as “a place to which the public have access". So you can’t pitch your tent on the grass of a roundabout with impunity.
There are indeed places that would be universally regarded as “a place to which the public have access”, such as a street, a park, common land, a public house, an A&E department of a hospital, and there are places that would be regarded as private places, such as a private home, a private garden, a hospital ward, an office, etc.
There are also places which are more difficult to categorise, such as a communal area in a block of flats, or a residential barge or houseboat. But the overarching rule in this case is “location, location, location”.
I am confident that the police can happily continue to detain people under Sec.136 found in a tent, a bivouac, a car, a van, an ambulance, or a canoe, providing that object is in “a place to which the public have access”.
And the only thing stopping them would be a complaint to the courts resulting in case law that defines once and for all what actually constitutes “a place to which the public have access”.

Thursday, 19 February 2015

CTO’s and a dreadful case of unlawful imprisonment

Mistakes in law can come back to haunt you, even many years later.
A recent Court of Appeal  judgment on 10th February 2015 ([2015] EWCA Civ 79) considered a request for compensation for unlawful imprisonment arising as a result of illegally imposing, then revoking, a Community Treatment Order which went as far back as 2009.
This related to a man called Lee Bostridge. He was lawfully detained under Sec.3 MHA in July 2008. In April 2009 a mental health tribunal reviewed his case and ordered his discharge, suggesting in the process that he should be discharged on a CTO.
But by so doing, the tribunal had committed an error in law. A CTO can only be imposed on a person who is "liable to be detained in a hospital in pursuance of an application for admission for treatment", but as the tribunal in their judgment no longer considered that that applied to Mr Bostridge, the subsequent CTO was by definition unlawful. (In essence, anyone on a CTO continues to be subject to detention under Sec.3, and when a CTO is revoked, the underlying Sec.3 detention comes back into force.)
After Mr Bostridge was discharged on this erroneous CTO in April 2009, he remained in the community until August, at which point his Responsible Clinician recalled him to hospital, under his powers of recall, and then revoked the CTO.
Despite having had two tribunals during this period of detention, it was not until 3rd November 2010, when he attended another mental health tribunal, that it was realised that his initial discharge on a CTO back in 2009 was unlawful, and that he had therefore been unlawfully imprisoned for a grand total of 442 days!
As soon as this was discovered, Mr Bostridge was immediately released. However, I don’t think he can have enjoyed much time out of hospital, as he was assessed and lawfully detained under Sec.3 on the same day. This period of (lawful) detention lasted until 13th September 2011.
Mr Bostridge received compensation for the 442 days that he was illegally deprived of his liberty. However, he appealed to the higher court on the basis that he ought to be entitled to a greater, and perhaps exemplary, compensation payment.
The Court of Appeal disagreed with the less than fortunate Mr Bostridge, concluding that “had the appellant been detained lawfully, he would have suffered the same unhappiness and distress that he suffered anyway”. He had therefore suffered no significant loss, and was not therefore entitled to any more than a nominal payment.
This sort of mistake was not unknown in the period following the introduction of CTO’s, which came into force as a result of the amendments to the MHA 1983 in the MHA 2007.
As well as having the power to discharge patients from detention under the MHA (generally Sec.2 & Sec.3), tribunals are allowed to make suggestions as to the disposal and aftercare of a detained patient and frequently do.

The tribunal regulations state that tribunals must discharge if certain things are concluded. One of these is if the tribunal is “not satisfied that the patient is then suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment”.

Since Mr Bostridge’s tribunal had come to this conclusion, even though they were merely trying to be helpful in guiding the hospital towards a decision to use a CTO, the consequence of their decision was to make it illegal for the hospital to follow their suggestion.

Isn’t the law a wonderful thing?

Sunday, 1 February 2015

Who Should Sign the Section Forms: the AMHP or the Nearest Relative?

Yes, I know that in practice a patient’s nearest relative never makes an application for detention under Sec.2, Sec.3 or for guardianship. But the Mental Health Act and the guidance could never really seem to make their minds up about this point.

The NR has had this power since the 1959 Mental Health Act, and I am aware of one or two cases of the NR making the application under the old Act, often assisted by a psychiatrist who did not want a lay person meddling in his affairs.

Given that the whole point of the existence of Approved Social Workers (and AMHP’S) was to provide a professional with extensive knowledge and expertise in mental health and the law relating to mental health who wasn’t a doctor, it was something of a surprise to me, and to others, when the 1983 Act did not abolish the right of the NR to make an application.

And it was even more of a surprise when the 2007 Act, which amended the 1983 Act and created AMHP’s, did not take the opportunity to abolish this right, especially as in the meantime, the Mental Health (Care and Treatment) (Scotland) Act 2003 had done away with the right of the NR to make an application north of the border.

In fact, while the Scottish mental health legislation recognises the existence of the nearest relative, patients are allowed to nominate a "named person" who may or may not be their nearest relative, and it is this "named person" who has to be consulted and has the functions of the NR.

I personally think this is a good idea, and one which should have been adopted when Parliament had the chance.

Meanwhile, in England and Wales the Reference Guide states:
“AMHPs must make an application if they think that an application ought to be made and, taking into account the views of the relatives and any other relevant circumstances, they think that it is “necessary and proper” for them to make the application, rather than the nearest relative” (2.36)
This almost seems to imply that an AMHP has to make a specific reasoned decision to make the application themselves, rather than letting the NR do it as the default.

However, the Code of Practice seems to have a much firmer view on the use or otherwise of the NR in these circumstances. Para4.28. states:

“An AMHP is usually a more appropriate applicant than a patient’s nearest relative, given an AMHP’s professional training and knowledge of the legislation and local resources, together with the potential adverse effect that an application by the nearest relative might have on their relationship with the patient.”
I wrote about the powers and functions of the nearest relative on the blog a few months ago. But the reason I’m revisiting this now is because of the new Code of Practice.

You see, there's been a subtle, but I think significant, change in the advice given relating to the nearest relative making an application rather than an AMHP.
The old Code of Practice said (4.30):
“Doctors who are approached directly by a nearest relative about making an application should advise the nearest relative that it is preferable for an AMHP to consider the need for a patient to be admitted under the Act and for the AMHP to make any consequent application… Doctors should never advise a nearest relative to make an application themselves in order to avoid involving an AMHP in an assessment.”
However, the new Code of Practice, which comes into effect on 1st April 2015, has a much briefer equivalent paragraph:
"Doctors who are approached directly by a nearest relative about the possibility of an application being made should advise the nearest relative of their right to require a local authority to arrange for an AMHP to consider the patient’s case." (14.32)
It's quite different, isn't it? Gone is the bit about the doctor advising that it is preferable that an AMHP should undertake the assessment and make a decision.
Gone is the instruction that doctors should never advise the NR to do it themselves to avoid using an AMHP.
A conscious decision has clearly been made to amend this paragraph, removing the bits that suggest an AMHP should always be the best person to conduct an assessment.
But why?

Is it now the intention that NR's should be encouraged to undertake more assessments under the MHA?

I'm frankly perplexed.

Saturday, 17 January 2015

Ask the AMHP -- This Week: A Mixed Bag of Sec.117 After-care Issues

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

I receive a lot of enquiries relating to Sec.117 after-care. Some are from professionals struggling to make sense of the regulations, and some are from distressed relatives of patients who frankly appear to be being misled by professionals regarding the rights to receive after-care.

Here are a few of them.

This one is from a relative of an elderly woman with dementia and challenging behaviour who was detained under Sec.3 MHA who was then eventually placed in a care home.

Social services called a Continuing Health Care meeting saying her needs were such that she should have CHC funding for one to one care, but at the time nobody seemed to know she was funded by the local authority under Sec.117 aftercare. Health told me at the meeting if she failed to get CHC then she was eligible for the full fees and I queried this as she was funded under Sec.117 aftercare. They checked on this and then walked out of the meeting saying Sec.117 supersedes CHC, leaving us all astounded.
Mum's behaviour quickly deteriorated on the new antipsychotic she had been given and the home evicted her within a week and she ended up in the local psychiatric unit again.
With the attention she has received there she improved, but they had to move her from the more severe unit to the more "residential " one as she was still in danger of fights with staff and patients. Sometimes she was on one to one but the staff got to know her and she was somewhat more settled.
A home assessed her but this time I did not ask any questions and they accepted her. On moving in her behaviour deteriorated . The home have now given her two weeks notice of eviction as they feel the hospital have misled them and they cannot meet her needs without one to one care.
The hospital refuse to take her back. The home has had to organise one to one care for two days as I was so concerned for her safety.
Social Services say she will need to go out of the county because there isn’t anything here without one to one that could cope.
I don’t want my Mum to be hours away from family support if she is dying.
I know this is all about money and the council cannot fund one to one, but I am told I can’t even use mum’s money for the extra support she needs. If she was on CHC she would get the help but with 117 aftercare she cannot get the care she needs.
The Masked AMHP replies:
Sec.117 and Continuing Health Care are not mutually exclusive. Just because someone is subject to Sec.117 aftercare does not mean they cannot be assessed for their needs under CHC, and if they need hospital care, this should be provided regardless.

If your mother's behaviour is too much for residential care or nursing homes to manage, then consideration should be given to admitting her to hospital for further assessment and/or treatment. The MHA could be used for this.
Under the new changes to the Mental Health Act by the new Care Act, a patient’s own funds can be used to “top up” their care.

The newly inserted Sec.117A is concerned with “preference for particular accommodation”. Subject to regulations to be issued by the Secretary of State, it will place a duty on the local authority not only to take into account a person’s preferences, but “must provide or arrange for the provision of the person’s preferred accommodation” as long as the preferred accommodation meets the identified aftercare needs. However, it is likely to allow the local authority to charge for the difference between the actual cost of this preferred accommodation and “the usual cost of providing or arranging for the provision of accommodation of that kind”.
Another nearest relative writes:
I am the mother of A, who is under section 3 in a psychiatric hospital. He has been ready for discharge for eight weeks but this has been blocked because there is a problem over funding the section 117.
A is Autistic and had been funded by X local authority to stay in a residential care home specialising in helping young adults with Autistic Spectrum Disorder to cope independently in Y local authority. He was due to leave there very shortly to a new placement organised by X.

Whilst there A's mental health deteriorated and he was detained under section at the local hospital in Y local authority. This was changed to section 3 and he was put on to medication. This all worked well and he was prepared for discharge. At this time X announced that they would not fund his section 117. As soon as he went onto section 3 they 'dumped' him saying that it was Y's responsibility. Y initially said no but then came up with a plan to share the costs with X but X flatly refused.

The urgent problem that we have is that all the time the rowing has gone on A has been detained with the loss of liberty that entails. As mentioned before he is Autistic and finds the environment very upsetting. He has now been there 8 weeks longer than he should. We have been told that he will be there until the dispute is resolved.

I would appreciate your advice on how we can get A out of there whilst the 2 warring authorities fight out who can shirk their responsibilities.

 The Masked AMHP replies:
It is truly appalling that your son has to suffer because local authorities are haggling over who should pay for his aftercare.

When someone is detained under Sec.3, the responsible authority for providing aftercare is the one in which the person was residing at the time he was detained. The residential care home would be considered to be his normal residence, as he was living there at the time, even though the placement was being funded by X, and you would probably consider that your home would be his permanent address. That means that X’s legal obligation to fund aftercare ended when he was detained under Sec.3. It also means that Y
is now the authority responsible for funding any future aftercare, as whether they like it or not, they have now taken on that duty.

Although I agree that it appears heartless that X have refused to share the costs of aftercare, legally, they have no responsibility to fund your son any longer. I am sure that Y would have taken the same tack if they placed someone in X who was subsequently detained under Sec.3.

Case law is now very clear about this: the responsible authority is the one in which the patient was residing at the time they were detained. These authorities ought to know this and Y should accept responsibility.

Your son would be entitled to free legal representation by a lawyer who specialises in mental health. I would suggest that you get your son to appeal against his detention. He will then get a legal representative who can argue in a Manager’s Hearing or Tribunal that Y are shirking their legal responsibility.

It has been my experience that Tribunals can speed up these decisions by summoning senior staff in the local authority to appear before them to explain why there is a delay. The Tribunal is a court of law, and this sort of threat often concentrates the minds of intransigent senior managers!

 An AMHP asks:
The advice in my mental health trust at present is that we shouldn’t be discharging people if they continue to have Sec.117 status because the GP’s can’t /won’t review; and that the receipt of medication for their mental disorder represents aftercare! This means that patients who have no need of a service other than the on-going prescribing of their medication would remain in secondary care? Do you have a view on this?

The Masked AMHP replies:

The new Code of Practice (just issued and coming into force from 1st April 2015) has this to say:

33.3 After-care services mean services which have the purposes of meeting a need arising from or related to the patient’s mental disorder and reducing the risk of a deterioration of the patient’s mental condition.

33.4 CCGs and local authorities should interpret the definition of after-care services broadly. For example, after-care can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition.

33.20 The most clearcut circumstance in which after-care would end is where the person’s mental health improved to a point where they no longer needed services to meet needs arising from or related to their mental disorder.

33.21 After-care services under section 117 should not be withdrawn solely on the grounds that the patient has been discharged from the care of specialist mental health services.
All of this would seem to indicate that the only circumstances in which a patient could be discharged from S.117 aftercare would be if they ceased to have any service provision relating to mental health needs, including medication for mental disorder. We tend to have no quibble about a patient having a depot injection remaining on S.117, so why should it be any different if they are having a prescription of oral medication from their GP?

I would tend to lean to the view that a patient who has made such a good recovery from their mental illness that they no longer need input from secondary services should perhaps no longer be subject to formal aftercare reviews. After all, the concept of "recovery" is based on the idea that people can actually get better. I have to confess that I did once have a patient with bipolar disorder who made such a good recovery that he had no symptoms and was working full time, making it difficult for him to see me as his care coordinator, or the psychiatrist, and we decided to discharge him from S.117 aftercare, even though he was still taking mood stabilising medication, which he obtained from his GP.

But the Code seems to indicate otherwise. I guess that there is no harm in having 6 monthly aftercare meetings to monitor a patient's mental state, even if they have recovered. There is research that indicates that patients receiving a depot injection from a CPN were less likely to relapse than patients receiving a depot from their GP practice nurse, so there seems some mileage in ongoing contact with a mental health specialist of some sort.
The Masked AMHP tries to be accurate, but should not be relied on as a definitive statement of law.

Thursday, 18 December 2014

Get The Masked AMHP™ Calendar for 2015 Now!

The Masked AMHP -- Everyone's Pinup (cough)

At last! The mental health related calendar you’ve been waiting for!

The last psychiatric bed in the UK
“And the Lord said unto me from on high: ‘Go forth and multiply’ – although not quite using those words.”
Staff in the Masked AMHP office working on new blog posts
“Got no money? Got no food for your kids? Oh boo bloody hoo.”

Nigel Farage celebrating UKIP’s landslide victory in the May General Election
(Don’t let it happen!)

David Cameron discreetly cracking one off during a speech on immigration
(I’m sorry, I can’t resist the occasional fart joke)

At last the Government get to work to provide more ambulances to reduce ambulance delays
A new device designed to detect signs of compassion in Coalition policies

George Osborne and David Cameron being told the extent of poverty and inequality in the UK
“The National Health Service ? What’s that?”
The Masked AMHP and his faithful AMHP trainee gently persuade a patient to accept informal admission
A rare picture of a bed manager desperately searching for a psychiatric bed
The Masked AMHP wishes everyone a Happy Christmas and a More Just New Year!

Friday, 12 December 2014

Legal Black Holes: What Do You Do When There Isn’t a Bed?

Is the Mental Health Act falling down a legal black hole?
There are horrible yawning legal black holes in the Mental Health Act. Unless they are properly addressed, they could make it impossible to practice within the law. And they’re mainly to do with the current national bed crisis.

The other day I went out to assess Joe. He was a young man who was living with his parents. I assessed him with two psychiatrists, and we decided that he needed to be detained under Sec.2 for assessment. The two doctors completed a joint medical recommendation. However, as I knew that there was no bed available, I was unable to complete my application. I therefore had no choice but to leave Joe where he was with his father.

A few minutes later, his father called to say that Joe had packed a bag and left. The father reported him as missing. I discussed the situation with the local police, explaining that he had been assessed under the MHA and it was considered that he needed to be detained, but could not be as no hospital had been identified.

The following day, I received a call from the duty police inspector at an international airport. He told me that Joe had been apprehended as he was about to board a plane to Manila in the Philippines. He was now in their custody, detained under Sec.138 MHA. Sec.138 relates to patients who are liable to be detained under the MHA but have absconded.

I had to tell him that Sec.138 did not apply, as he was not actually detained.

There then ensued an interesting discussion about the patient’s legal status.

Because in law, as a Sec.2 application had not been completed, he was not a detained patient, nor was he “liable to be detained”. The police were therefore holding him illegally, until such time as I was able to obtain a hospital bed and put the name of a hospital on my Sec.2 application form.

There is a well documented nationwide crisis in the provision of mental health services. Both Andy McNicoll of Community Care and the BBC have been documenting the extent of this crisis in recent months.

One consequence of the lack of suitable psychiatric beds is its impact on the ability of AMHP’s and other mental health professionals to fulfil their legal duties, and it is resulting in long delays between assessment and admission, and patients then having to be transported hundreds of miles to hospitals far away from their homes and relatives.

The Health Service Journal, on 14 August 2014, reported that between 2011-12 and 2013-14 there had been an overall cut in funding of 2.3% in Mental Health Trusts. The numbers of  psychiatric beds consequently decreased as follows:
        2011-12           20768
        2012-13           20061
        2013-14           19922

This was at a time of increased demand for beds because of the Recession and cutbacks to public services in general, which invariably has a deleterious effect on the mental health of the Nation as a whole.

They also reported that numbers of patients sent out of area because there were no beds in their locality increased 56% between 2011-12 and 2012-13 to 1,785.

A very recent example is reported here. This involved a known patient who was held in police custody in Norfolk for over 24 hours because there were no beds anywhere within the entire Norfolk & Suffolk Foundation Trust area. He was eventually admitted to a hospital in Brighton, over 160 miles away.

So all this is creating intolerable situations, in which AMHP’s and the police are finding themselves in a legal limbo.

Let me illustrate this with a Venn diagram. (Mental Health Cop is very keen on Venn diagrams).

First of all, there is the Law.
The Law encompasses the legislation relating to people with mental disorders, which includes the Mental Health Act, the Mental Capacity Act, and the Human Rights Act.

And then there is Reality.

Reality is the world in which AMHP’s, the Police, and others actually live.

Here are the two together.

The Law and Reality unfortunately do not overlap perfectly. There is an area of reality which lies outside the law. And that is where Joe, and too many others, find themselves.

AMHP’s and the Police are having to deal with these legal limbos on a daily basis.

Here are a few other real life scenarios that I or my colleagues have had to deal with.

1. David is arrested for affray and is taken to the local police station. It becomes apparent to the custody sergeant that he may be mentally disordered, and requests an assessment under the MHA.
An AMHP and 2 doctors assess David, decide he needs to be detained, but are unable to make an application because no bed is available.
The police have concluded their investigations and have decided to take no further action, and intend to bail him. There is therefore no longer any legal authority to continue to hold him in police custody.
What happens next?

 2. As an AMHP, you’ve completed an application under the MHA, which makes the patient liable for detention. The patient is in the ambulance, on the way to Hospital X, under your authorisation, and you’re following behind.
You then receive a call from the bed managers to say that unfortunately, there is no longer a bed available at Hospital X.
Suddenly, you do not have valid paperwork, and there are no longer any legal grounds to hold the patient.
How do you proceed?

3. As an AMHP, you have made a decision to detain Norman under Sec.3 MHA.
You consult with the Nearest Relative, Norman’s mother, who has not made an objection to the application.
The bed managers eventually find a bed, but it is 200 miles away.
You discuss this with the NR, who wants Norman to be admitted to the local unit, and she now objects.
What do you do next?

There are local initiatives, sticking plaster jobs mainly, to try patch these holes. Our local constabulary have recently issued guidance to the police and AMHP’s in an attempt to address some of these dilemmas.

In Scenario 1, David,  the local advice is as follows. AMHP’s are instructed to write in the custody record:

“I have conducted a full Mental Health Act assessment in the company of Dr --- and Dr ---, and we have determined that [detained person’s name] should be detained under Section --- Mental Health Act. However, at this time there is no suitable bed available and therefore they are not yet formally detained under the Mental Health Act. Every effort will be made to find a suitable bed as a matter of urgency.”

A risk based decision on the continuing detention of the person “outside of PACE and the MHA” should then be conducted jointly with the AMHP and the Detention Officer. These discussions and decisions should then be recorded in the custody record and a decision made “to either continue detention or to bail pending a bed becoming available.”

While I am impressed at this document’s valiant attempt to deal with this dilemma, I must say I am intrigued by the concept of detaining a person “outside of PACE and the MHA”. This can only be a legal Limbo.

And what if a decision is made to “bail pending a bed becoming available”? Surely, if the patient/prisoner is aware that they are bailed, but not yet detained under the MHA, there is nothing to stop them from leaving the premises and potentially disappearing completely off the radar.

In Scenario 2 – what the hell do you do? You can hardly instruct the ambulance to stop on route and drop the patient off at the side of the road.

The Code of Practice does have something to say about this scenario. Para 4.99 states:

“In exceptional circumstances, if patients are conveyed to a hospital which has agreed to accept them, but there is no longer a bed available, the managers and staff of that hospital should assist in finding a suitable alternative for the patient. This may involve making a new application to a different hospital… A situation of this sort should be considered a serious failure and should be recorded and investigated accordingly.”

I think I would be inclined to continue the journey to the hospital, on the basis that they are still at least theoretically “liable for detention”, and then argue the toss once we were there. But the Code does not suggest how the patient may legally be held while another bed is found, and they could conceivably have a case for unlawful imprisonment during that limbo period.

Then there is Scenario 3, Norman.

Under Sec.3 MHA, a patient can only be detained if the nearest relative does not object. The refusal of the NR on discovering there is no nearby hospital would therefore mean that the patient cannot be detained.

It is possible to displace the nearest relative in certain circumstances. A county court can displace the NR if: “the nearest relative has objected unreasonably to an application for admission for treatment” (Para8.6 CoP).

But could that be done in this situation? I think it would be difficult to argue successfully that this particular NR had “objected unreasonably”. After all, would you like your unwell relative being taken many miles away from home, where it would be almost impossible to visit them?

And in any case, the amount of time it would take to make an application to court would make it unfeasible.

Some AMHP’s have suggested that we should refuse to assess a patient at all if no bed has been identified. The problem with this is that it is expressly against the law. Sec.13(1) MHA explicitly states:

“If a local social services authority has reason to think that an application for admission to hospital… may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.”

Having then assessed the patient, if the AMHP is “satisfied that such an application ought to be made in respect of the patient” then they have a duty to make that application.

While an AMHP can decide not to make an application, they cannot refuse a request to make an assessment. The absence of a hospital bed to which to admit the patient does not absolve them of this duty.

So until NHS Clinical Commissioning Groups (CCG’s) are prepared to meet their obligations under para4.75 of the Code (they are “responsible for commissioning mental health services to meet the needs of their areas” and “should ensure that procedures are in place through which beds can be identified where required”) it looks like it’s still going to be left to the poor AMHP’s (and the police) to try to prevent these legal black holes from enveloping everything and finally making the Mental Health Act unworkable.