Thursday, 1 March 2018

Ask the AMHP: Yet more ridiculous problems with S.117 Aftercare

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

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

My postbag continues to receive requests for advice from relatives who are being misled about responsibility for S.117 aftercare. Whether through ignorance, or a desire to save money, I can only guess. The son of an elderly lady wrote to me with this problem.

 My mother was recently discharged from a Psychiatric Hospital in Area A. She has a history of depressive mental illness having been hospitalised at least six times over the years and each time receiving ECT therapy to get better. She was  placed on S.2 MHA and subsequently S.3 MHA, and was given a diagnosis of severe depressive disorder with psychotic symptoms as well as dementia.

I attended her discharge meeting in the hospital and was told she would be subject to S.117. I was told that I should ‘Google it’ to see what it meant when I got home. The doctor at the hospital stated that it would not be a possibility to return home as she would need a substantial care package. As it was Christmas, I decided to take her home to spend Christmas with me. I live in Area B.

While she was with me it became clear that she would need some form of residential care. I contacted the community mental health team in Area A, but was told that she was now in Area B and that I should contact social services in Area B. Following a Care Act assessment conducted by Area B social services, she was placed in a care home near where I live.

I contacted Area A social services regarding help with her care home fees under S.117 to be told that it was nothing to do with them now she was in Area B. However, Area B then told me the responsibility was with Area A.

It appears that because I took my mother home for Christmas she has received no consideration regarding her after-care and I really should have let her go into respite care.

The Masked AMHP replies:

As your mother was detained under S.3 MHA, she will be entitled to free S.117 aftercare. She should also have a Care Act assessment of her needs. The costs of any needs identified should not be chargeable.

I received this reply:

In principal there appears to be agreement that my mother is entitled to S.117 aftercare, the argument now is who is responsible, is it Area A or Area B? My understanding is that when she was taken into hospital her GP was in Area A, she lived in Area A and was hospitalised in Area A, therefore they are responsible despite the fact she is now in a care home in Area B. Area A are apparently seeking legal advice.

The Masked AMHP replied:

This issue is covered by the Care Act 2014.

Sec.39(1) of the Care Act gives a clear definition of “ordinary residence”. Essentially, this applies to adults requiring residential care. “Ordinary residence” in the case of your mother is “in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”.

Sec.39(4) then explicitly applies this to Sec.117 after-care, stating:
“An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.”

I'm not sure why Area A is seeking legal advice since it seems quite clear.

If your mother was living in her own home in Area A at the time she was detained under S.3 MHA (or S.2 followed by S.3), then Area A are responsible for S.117 aftercare. The fact that you took her to live with you in Area B is immaterial. It is the "ordinary residence" at the time of admission to hospital. Assuming she has been assessed by the local authority as needing residential care to meet her care needs because of mental disorder, then Area A would be responsible for paying for it.

Here’s another relative with problems around S.117 aftercare:

Hi, wonder if you can advise. My elderly aunt has diagnoses of advanced Parkinson’s/Dementia, Psychosis, Paranoia, Anxiety and Depression. She was detained under s.2 then subsequently discharged to self funded residential care. This placement broke down and she was again detained under S.2, and this was followed by detention under S.3.

Her social worker recommended several possible placements for us to view, to be funded under S.117, that could meet her needs upon discharge and the deal was about to be done when she got Pneumonia and fractured hip and transferred from MH Hospital to regular hospital. This social worker then left their post and we were left to the mercies of the hospital discharge team. 

The CCG said no to S.117 funding as they considered there were no ongoing health needs. They based this on the fact that her MH was now much improved, The new social worker told us they would only provide funding up to their standard maximum, and anything above that would have to be topped up by my aunt.

We reluctantly agreed to this so as not to delay discharge even though the placement was as the original social worker’s recommendation!

We then received a phone call the day before discharge saying that we had to sign the top up agreement that day or she could not be discharged. It was the standard ‘means tested’ top up agreement and we remarked at the time that we were surprised there was not specific paperwork for S.117.

5 months later a newly allocated social worker is saying S.117 funding was never agreed and a financial assessment must take place.

The Masked AMHP replies:

As your relative was detained under S.3 MHA she will be entitled to S.117 aftercare.

Unless there has been a formal meeting with Health and Social Services agreeing that your relative has no needs whatsoever for mental health aftercare, then S.117 responsibilities will continue, which means at the least that there have to be regular review meetings to review her needs. The CCG cannot unilaterally say she has no needs, although they may consider that her needs can be met through social care.

If your relative is in a nursing home, then nursing costs should in any case be met by the CCG.

It is very curious that one social worker identified a placement which presumably reflected her mental health needs, but another social worker is now saying this is not covered by S.117.

Under S.117, all the costs of a care home identified as being the most suitable should be met. A top up would only be required if you and she chose to go to another care home that was more expensive.

Even if the current social worker says no S.117 funding was ever agreed, that does not negate the local authority's duties under S.117. It just means that they have not fulfilled their duties under S.117.

The only complication would be if the care provided was solely arising from physical care needs, but this would be hard to establish, as care homes for elderly people will generally care for a mixture of people with physical and mental frailty.

Even if your relative's other mental health conditions have been successfully treated, she must still be receiving some sort of medication for mental disorder, eg antipsychotic and/or antidepressant medication, which proves an ongoing requirement for mental health aftercare. Also, Parkinson's Disease, which can produce dementia, and any other underlying dementia, are not curable, so she must still have these conditions, which are covered by S.117 aftercare.

I would point these matters out to the current social worker – the bottom line is that as she has at some point been detained under S.3 MHA, she is entitled to S.117 aftercare, whether local authority likes it or not.

If they refuse to budge, then I would make a formal complaint to the local government ombudsman, who has taken a dim view of local authorities trying to dodge their S.117 responsibilities in the past.

I received this reply:

The CCG pretty much said that her needs going forward were social care needs. She currently resides in a residential care home registered for EMI. This is what we told she needed.

As far as we know she is not taking any MH meds. She was taken off them because they were causing complications with her Parkinson's meds and she had a couple of episodes of 'dropping' which they felt was due to the MH meds. On balance, they felt it was the lesser of two evils not to take them.

Thank you for the reassurance that we have not got completely the wrong end of the stick. I shall be making the case that we should not be (and should never have been) paying a top up. We have been truly let down as a family with no mental health follow up being put in place after either of her stays in mental health hospitals and had to beg to have a social worker allocated again when the current placement was looking dodgy a few months ago.

The Masked AMHP replied:

They are clearly accepting that she is entitled to S.117 aftercare, and furthermore she is in an EMI care home. In the circumstances, it is irrelevant what medication she might or might not be taking.

As this is the specific care home identified to meet her needs, they cannot legitimately insist on top-up payments, and S.117 should cover the entire cost.

They're really trying it on!

Friday, 2 February 2018

Can a person in police custody be detained under S.136?

Following the recent changes to S.136 MHA by the Policing & Crime Act, there has been some discussion in mental health circles about whether or not a person who has been arrested for an offence and is in police custody can be detained under S.136 while still in custody.

This question would not have arisen prior to 11th December 2017, as someone could only be made subject to S.136 if they were in “a place to which the public have access.” A police station was most definitely not such a place.

However, the new S.136(1B) has dispensed with this requirement, and now states that the power can be used in “any place”, with only a few exceptions, which include a private dwelling.

So theoretically at least, it would be within the law to use the S.136 powers in a police station.

Let’s look at a possible scenario.

Scenario 1
Gary is arrested after he was challenged by police in the town centre and threw a can of lager at the police officer. Once in custody, it becomes clear to the custody officer that Gary is suffering from some sort of mental disorder.

Prior to 11th December 2017 the custody officer would have had to contact the local AMHP service, who would then have arranged to conduct an assessment under the Mental Health Act at the police station.

Now, however, a second option is available: to detain under S.136 and then either transfer them to a place of safety or allow them to be assessed in accordance with S.136 requirements in the police station.

Clearly, the question of using S.136 in these circumstances depends on the seriousness of the offence; it would probably not be appropriate to consider moving someone to a S.136 suite who has been arrested on suspicion of murder.

I can certainly see that S.136 could possibly be appropriate, as well as legal, if the custody officer believes the person needs an assessment of their mental health, and would be better served in a non police based place of safety.

But what if the person in custody has already been assessed under the MHA?

Scenario 2
The custody officer considers Gary has a mental disorder and an AMHP and two doctors assess him in the police station. They conclude that he has a mental disorder within the meaning of the Act, and that he should be detained in hospital.

However, no bed has been identified, and the 24 hour PACE clock is running out.

Again, prior to December 2017, the custody officer would have had no choice but to watch the PACE clock run out and then make a decision whether or not to release someone who has been assessed as needing detention in a hospital because of risks to themselves or others, or to keep them in custody, outside of any legal mechanism.

Unfortunately, because of the dire nationwide shortage of beds, exacerbated by an even worse shortage of specialist beds, such as Psychiatric Intensive Care Units (PICUs), and placements for children, this scenario is not uncommon. In a few instances in our area, people have been kept in legal limbo in police custody for up to 72 hours before a bed has been found.

A custody officer could be forgiven if, after perusal of the revised S.136, they exclaimed “I can detain this person under S.136 and that gives another 24 hours to find a bed!”

But would this be legal? My first response to this scenario would be to say that it would not, but close reading of S.136 throws up complications.

Let’s look at what the MHA, and the Code of Practice, has to say.

The first thing that an AMHP would focus on is their duties under S.136. This is to be found in S.136(2):

A person removed to, or kept at, a place of safety under this section may be detained there … for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care.

The Code of Practice stresses:

The purpose of removing a person to a place of safety in these circumstances is only to enable the person to be examined by a doctor and interviewed by an AMHP, so that the necessary arrangements can be made for the person’s care and treatment.(para16.25)

An AMHP (myself included) would argue that in Scenario 2 Gary has been assessed, and therefore does not need another assessment. Would it not be an abuse of S.136 to use the powers simply to manage the PACE clock?

However, what is the precise wording of S.136(1), where it relates to the police’s powers?

This says:

If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons…remove the person to a place of safety.

What this section is saying is that all a constable has to establish in order to exercise their power is to be satisfied that a person appears to be suffering from mental disorder and is in immediate need of care or control.

They don’t have to worry about the niceties of assessment by an AMHP and a doctor, even though that is the legal consequence of using S.136.

Essentially, S.136(1) provides instructions for the police alone, as AMHPs would only be involved at that stage if the constable’s duty to consult with a mental health professional was being exercised.

S.136(2), however, provides instructions for the AMHP. The constable has no part in decisions relating to disposal of the person once detained, except for circumstances in which the police are required to manage the person.

So the custody officer in Gary’s case would certainly have the evidence of mental disorder. After all, Gary has had a full MHA assessment and a decision has been made that Gary should be admitted to psychiatric hospital. The custody office could equally conclude that, being mentally disordered, and having been arrested because of his behaviour, Gary was in immediate need of care or control.

He could also legitimately conclude that Gary, being definitely mentally disordered, would be better off in a S.136 suite than in a police station.

On this reading, there would be nothing in law to stop the custody officer from detaining Gary under S.136.

I just hope they don’t do this too often, or AMHPs are going to have an even greater workload.

Monday, 22 January 2018

Can a person be detained under more than one section of the Mental Health Act at once?

This is by no means as straightforward an issue as it may seem, and can from time to time create difficulties and anomalies.

While as a general rule, a person cannot be subject to more than one section of the MHA simultaneously, there are exceptions to this rule. There are also implications regarding whether or not certain sections can continue once a decision has been made.

I’ll look at some examples.

The Code of Practice states that S.5(2) cannot apply “to a patient who is already liable to be detained under section 2, 3 or 4 of the Act”(para18.7).

If an informal hospital patient is detained under S.5(2) an AMHP has up to 72 hours to arrange an assessment with a view to detaining under S.2 or S.3. Once a decision has been made, and an application completed for S.2 or S.3, the S.5(2) detention ends. This also applies if the decision is made not to detain.

The Code of Practice states: “Although the holding power lasts for a maximum of 72 hours, it should not be used to continue to detain patients after the doctor or approved clinician decides that, in fact, no assessment for a possible application needs to be carried out, or a decision is taken not to make an application for the patient’s detention.”(para18.20)

Additionally, it needs to be borne in mind that detention under S.5(2) does not permit the patient to be moved from one hospital to another. If they are moved, for example from a general hospital to a psychiatric hospital, or vice versa, then the S.5(2) would automatically end.

What about S.2 to S.3?
Ah. If an AMHP assesses a patient who is detained under S.2 for assessment with a view to detention under S.3 for treatment, and makes the decision not to detain them, then, although best practice would be for the Responsible Clinician to discharge them from S.2, there is no requirement to do so, so the S.2 could legally continue to the end of the 28 day period of detention.

There are situations in which this could be justified. An example that springs to mind is where a patient has been detained under S.2 and the request to detain under S.3 comes within the first couple of weeks of the original detention. The AMHP may consider that it is too premature to consider detention under S.3, which could last for up to 6 months, and may think that the patient’s condition could improve sufficiently over the remaining time of the S.2 to make further detention unnecessary.

A similar rule as that for S.5(2) applies for detention under S.136. If an AMHP and at least one doctor have assessed and decided that a patient detained under S.136 does not need to be detained under the MHA, the S.136 can remain in force only while any necessary arrangements are made for the disposal of the patient, such as arrangements for informal admission or transport home. The Code also points out that someone subject to S.135(1) or S.136 cannot be placed on S.5(2), since S.5(2) only applies to inpatients.

The S.136 will also remain in force while arrangements are being made for a hospital that is able to take the patient if it has been decided to detain under S.2 or S.3. Of course, this will only apply until the end of the maximum length of detention of 24 hours.

Assuming there is a bed, then the S.136 ends as soon as the relevant application has been made. As the patient is then liable to be detained, this authorises the AMHP, the police or any other relevant person to hold the patient in custody until they can be transferred to hospital.

The same will apply for a patient detained under S.135(1) who has either been taken to a place of safety for assessment, or assessed at the place where the warrant has been executed.

Guardianship (S.7)
No-one can be detained simultaneously under both Sec.3 and S.7, as the Reference Guide states: “Once a patient subject to guardianship is admitted for treatment, the guardianship ceases.” (para8.99)

However, a patient subject to Guardianship can be detained under S.2 (and S.4) (para30.36).

Community Treatment Orders
Possibly because Community Treatment Orders were added to the MHA 1983 by the 2007 MHA, many years after the original drafting, it gets rather more complicated.

Because people can only be subject to a CTO if they are detained under S.3, people on CTO’s can be regarded as still subject to the original, latent, S.3.

The Reference Guide states unequivocally that someone on a CTO cannot be made subject to S.5(2)(para8.72). It goes on to explain that “because patients on CTOs can be recalled to hospital for treatment if required, it should not be necessary to make applications for their detention.”(para8.96) The Code states that “where the person is known to be on a CTO and compulsory admission is indicated, the recall power should be used”(para18.17)

You might think therefore, that no other sections of the MHA can be used with people on CTOs, but that is not necessarily the case. The Reference Guide recognises that in practice patients may end up being detained under other sections “if the people making the application do not know that the patient is on a CTO"(para8.96). It goes on to state:

An application for admission for assessment under section 2 or 4 does not affect the patient’s CTO. Nor does an application for admission for treatment under section 3 if, before going onto a community treatment order (CTO), the patient had been detained on the basis of a hospital order, hospital direction or transfer direction under part 3 of the Act. (para8.97)

So this does mean that a police officer, not being aware of a person’s status as being subject to a CTO, may legitimately detain someone under S.136.

Consequently, an AMHP and a doctor would still need to assess in accordance with the requirements of S.136, but if they decided the person needed to be admitted to hospital, they could then make arrangements for their recall to hospital under the rules for a CTO.

An application for detention for treatment under S.3 would automatically end a CTO, in the same way that a S.3 would end a Guardianship Order. However, the Code says, “an application for detention should not be made in respect of a person who is known to be on a CTO” (para15.17), so the correct procedure would be recall to hospital, followed by revocation of the CTO if necessary. That action will then reactivate the latent S.3.

If in ignorance, perhaps because the person on a CTO has turned up in another part of the country, they are then detained under S.2 or S.4, the recall and revocation process can be initiated once the person’s true status is known, and once the S.3 had been restored, any other sections would cease to have effect.

I hope that’s cleared up any confusion.

Monday, 18 December 2017

So you think you have what it takes to be an AMHP? The Masked AMHP’s Christmas Quiz!

The AMHP of the future?
Warning: Contains gratuitous examples of reprehensible practice.

Lots of people want to be AMHPs – they’re attracted to the glamour and status of the role, the reverence with which they’re regarded by psychiatrists, police and other professionals, not to mention the greatly enhanced salary that the role attracts.

But quite simply, not everyone is cut out to undertake this complex and demanding task.

So, despite the wishes of those who devised it, I’m exclusively revealing the top secret questionnaire that AMHP courses use, which is designed to identify those who are likely to make good AMHPs, and to exclude those who just aren’t going to make the grade.

Here are some typical scenarios that AMHPs are likely to encounter in their practice, with 4 possible answers.

You have assessed Kylie, a woman with bipolar disorder, at home, and have made the decision that she needs to be detained under the MHA. However, there is no bed. You are concerned about leaving her because of possible risks. While you’re waiting for a bed, do you:
a)    Attempt to get the Crisis Team to keep an eye on her in the meantime.
b)    Offer to put her up in your spare room.
c)     Secure her firmly to a chair with duct tape.
d)    Go home and open a bottle of wine.

You are planning to conduct an assessment of Derek at his home, but you have reason to think that he may resist and become violent. You ask the police to attend to assist, but they refuse. Do you:
a)    Obtain a warrant under S.135(1) MHA which gives a constable the power to enter the property, if needs be using force.
b)    Go to the house and call through the letterbox, offering to buy him a drink if he lets you in.
c)     Go round the back of the house with a crowbar, break in through a window and secure him firmly to a chair with duct tape.
d)    Go home and open a bottle of wine.

You have assessed Jessica at home, decide she needs to be detained, and for once there is a bed. However, Ambulance Control tell you that it will be at least 4 hours before an ambulance will arrive. Do you:
a)    Wait patiently for the ambulance, in order to ensure that she is safely dispatched to hospital
b)    Pop her in the back of your car and take her yourself, playing soothing music during the journey.
c)     Flag down a passing car, telling them you are an undercover agent, secure her in the back seat with duct tape and give instructions to the driver on how to get to the hospital.
d)    Go home and open a bottle of wine.

You’ve been called to assess Joanne, who is on a medical ward. Although there is nothing medically wrong with her, she is completely mute, so when it comes to interviewing her, she does not say anything. In order to fulfil your duty to interview in a suitable manner, do you:
a)    Explain the purpose of the interview and the importance of hearing her own views about what she would like to happen.
b)    Fluff up her pillow, get her a cup of tea and a doughnut, and stroke her hand while at the same time talking about fluffy kittens in order to get her to relax and open up.
c)     Secure her to the bed with duct tape and threaten to waterboard her if she doesn’t talk.
d)    Go home and open a bottle of wine.

Robert is detained under S.2 for assessment in a psychiatric ward, and the psychiatrist is recommending a S.3. You feel that continuing detention is justified, but the second S.12 doctor disagrees. Do you:
a)    Have an extensive discussion with both the doctors in order to reach a consensus of opinion.
b)    Take the dissenting doctor to the hospital canteen, buy them a cup of tea and a doughnut, and talk about kittens.
c)     Take the dissenting doctor into a side room, secure him to a chair with duct tape, and threaten to give him an acuphase injection unless he changes his mind.
d)    Go home and open a bottle of wine.

You’ve assessed Sylvia in hospital. She is currently detained under S.2. She has a long history of schizophrenia, and is prone to relapses, and you and the doctors have decided she needs to be detained under S.3 for treatment. However, her husband, who is the Nearest Relative, has objected to this. Do you:
a)    Decide to go to court to have him displaced as Nearest Relative.
b)    Take the husband out to a tea shop, buy him a lovely cream tea, and have a long chat with him until he changes his mind.
c)     Secure the husband to a chair with duct tape and threaten to pull his finger nails out with pliers unless he agrees.
d)    Go home and open a bottle of wine.

Donald lives a long way away, and has been removed from a train in your area and detained under S.136. He is in the S.136 suite. You have assessed him and conclude that he needs to be detained under S.2 for assessment. You contact the bed manager, who states that, as the patient is registered with a GP outside the Mental Health Trust’s area, they have no responsibility to find him a bed. The S.136 detention will run out in 6 hours. Do you:
a)    Find out where he’s from, contact the bed managers for his area, and try to get a bed in his home area.
b)    Put him up in your spare room.
c)     Break into the bed manager’s office, secure him firmly to a chair with duct tape, and suggest he finds a local bed straight away, while you wield a lump hammer in a threatening manner.
d)    Go home and open a bottle of wine.

How did you score?

Mainly A’s – You’ve definitely got what it takes to be an AMHP.
Mainly B’s – You’re a lovely person, but too lovely to be an AMHP
Mainly C’s – Erm, have you thought about a career in MI5?

Mainly D’s – You’d make a lousy AMHP, but you’re ideally suited to a job in the Conservative cabinet.

Sunday, 10 December 2017

Should GP’s be involved in MHA Assessments?

It is a disciplinary offence for a GP not to have
a stethoscope around their neck at all times
An AMHP recently emailed me about whether or not a patient’s GP should be involved when they are being assessed under the Mental Health Act. The argument among the emailer’s AMHP colleagues appeared to revolve around whether an attempt should invariably be made to contact a GP and have them involved in the assessment if at all possible, or whether doing this without consulting with the patient first would amount to a breach of confidentiality.

I’ll deal with these two issues separately.

Does contacting a patient’s GP in relation to a MHA assessment amount to a breach of patient confidentiality?

In my view, this is an absurd position to have. The Reference Guide states:

AMHPs must… be satisfied that detention in a hospital is the most appropriate way of providing the care and medical treatment the patient needs. In making that decision, AMHPs are required to consider ‘all the circumstances of the case’. In practice, that might include the past history of the patient's mental disorder, the patient’s present condition and the social, familial, and personal factors bearing on it, the other options available for supporting the patient, the wishes of the patient and the patient’s relatives and carers, and the opinion of other professionals involved in caring for the patient. (para 8.32)

The AMHP therefore has a duty to obtain as much background information as possible about a patient in preparing for a MHA assessment. The AMHP explicitly needs to consult with a wide range of people, and since a patient’s GP may know them very well, it would be ridiculous not to at least make an attempt to contact them. Indeed, it is often the GP who has initiated the request. The Code of Practice confirms: “AMHPs should also consult wherever possible with other people who have been involved with the patient’s care” (para 14.69)

It just does not make sense professionally to withhold information relating to their patient from a GP, and indeed the Code goes on to say:

Having decided whether or not to make an application for admission, AMHPs should inform the patient, giving their reasons. Subject to the normal considerations of patient confidentiality, AMHPs should also give their decision and the reasons for it to… the patient’s GP, if they were not one of the doctors involved in the assessment (14.100)

While the Code does bring up issues of confidentiality, I do not think the GP is one from whom such information should be withheld. Potential breaches of confidentiality are more likely to arise when consulting with, or obtaining information from, neighbours or other interested parties not related to the patient. In accordance with para14.100, our local AMHP Service writes to the patient’s GP to give the outcome of a MHA assessment as a matter of course.

Should GP’s be involved in MHA Assessments?

GP’s are mentioned in the Code of Practice, but only in relation to limited functions under the MHA. For example, in relation to the function of Second Opinion approved doctors (SOAD) when it suggests that a GP may be consulted in connection with a part 4A certificate (for authorising treatment). GP’s are also mentioned in para 34.12, in relation to constructing an after-care plan under the Care Programme Approach.

However, both the Reference Guide and the Code of Practice stress the importance of assessing doctors having previous knowledge of the patient in question. The Reference Guide states:

At least one of the doctors should, if practicable, have had previous acquaintance with the patient. Preferably, this doctor should have treated the patient personally. (para 8.40)

Para 14.73 reiterates this virtually verbatim. While this may be the patient’s community psychiatrist, their GP will of course also qualify. It does not matter if the GP has only treated them for physical ailments.

If it was the GP who referred the patient for a MHA assessment, I will try to speak with them about the reasons for the referral, and ascertain whether there may be any physical factors affecting the person’s presentation, and of course, whether the GP has referred them first to the Crisis Team or Dementia Intensive Support Team, as this would constitute less restrictive options.

If it appears there is a need to conduct a formal assessment, I will see whether or not the GP is able to take part in the assessment. If the GP has a particularly good relationship with the patient, and many do, it could be very advantageous for the GP to attend the assessment.

This, however, is where the AMHP may encounter problems. In practice, GPs are frequently unable, or unprepared, to attend an assessment. They generally have other pressing commitments, such as their surgery. However, they will often be able to provide a medical recommendation. This saves having to find two S.12 doctors to attend the actual assessment.

In my experience, GPs will generally find time to see the AMHP at their surgery and provide time to complete a medical recommendation (although as most GPs rarely get involved in providing medical recommendations, they will need help with completing the form legally.)

Involving the GP in the process certainly fulfils the Code’s recommendation to have a doctor with “previous acquaintance”. Indeed, it can perversely often be even more difficult to get the patient’s own consultant to attend the assessment, or even to provide a medical recommendation.

So it is certainly preferable to involve the GP if possible, as the alternative is the less desirable option of having two S.12 doctors who do not have previous acquaintance. Indeed, the MHA and the Code are so clear about the importance of this that if neither of the doctors had previous acquaintance, an AMHP has to give detailed reasons on their application explaining why it was not practicable.

Wednesday, 15 November 2017

Can a person’s financial resources ever be considered when arranging for S.117 After Care? Recent Case Law

Regular readers of this blog will know how exercised I can become about S.117 after care entitlement, especially when that entitlement is being concealed or misrepresented to patients by local authorities. Indeed, one of the commonest enquiries I receive is from relatives of people entitled to S.117 who are, to put it bluntly, being hoodwinked by local authorities who are at best ignorant of their duties, and at worst seek to defraud patients out of their money.

And so to a recent judgment from the Court of Appeal concerning a case that has been meandering through the courts for some considerable time, no doubt at considerable expense.

The case concerns a man called Damien Tinsley. Back in 1998 he was hit by a car while cycling which caused considerable brain damage and left him with an organic personality disorder. He ended up being detained under S.3 MHA, and was discharged to a mental health nursing home. In accordance with the requirements of S.117, the costs were paid by Manchester City Council.

In 2005 he was awarded damages approaching £3.5 million, of which £2,890,257 represented the costs of future care.

Interestingly, it was successfully argued during this court case that “the relevant authorities were entitled to have regard, when deciding how the claimant’s needs were to be met, to the resources available to them, and he concluded that they would not fund either a care regime which the claimant was prepared to accept (namely, accommodation at home) or even the care regime which the judge found to be reasonable.”

The consequence of this was that from that time Mr Tinsley has been using the settlement to fund his care, which has included the purchase of accommodation for him to live in.
After a number of years a new deputy was appointed for Mr Tinsley by the Court of Protection, who took the view that the Manchester “has always been obliged to provide him with appropriate after-care services” and in 2010 the deputy started to pursue Manchester for both a refund of the money Mr Tinsley had paid as well as damages.

The case ended up in the High Court, where it was concluded that it was unlawful for Manchester to refuse to pay for after care “on the basis that Mr Tinsley had no need for such provision because he could fund it himself from his personal injury damages.”

Manchester again appealed, and the case finally arrived at the Court of Appeal, which issued a judgment in October 2017.

On the face of it, it would appear perfectly reasonable for the money that Mr Tinsley had received in damages for disabling injuries that were not his fault, and which were specifically identified to cover the cost of his current and future care, to be spent on that care. After all, huge sums are frequently paid by the NHS for damage to patients which is designed to cover their long term care needs.

However, the issue here is that of entitlement to S.117 after-care, and the basic principle that after-care for the purpose of meeting a person’s mental health needs cannot be charged for.

So what did the Court of Appeal conclude?

Manchester submitted that “the mere fact that an obligation is imposed on it by s.117 to provide after-care services to persons compulsorily detained pursuant to section 3 of the Act does not require it to provide, or arrange for the provision of, such services if a claimant has funds available for that purpose”.

In a lovely paragraph, the Court demolished that argument:

This is an impossible argument… A refusal to pay for such services is effectively the same as providing such services but charging for them.  The House of Lords has made it clear in Stennett that charging persons such as the claimant is impermissible.  Manchester is effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it cannot recover by the front.
The appeal by Manchester was therefore dismissed.

This has to be a harsh reminder to local authorities of their absolute duty to meet the expenses of patients entitled to after care under S.117, tempting though it may be, in view of the severe cutbacks to local authorities for social care, to seek to tap the person’s personal funds.

While it may seem perverse that even someone with unlimited funds is entitled to free care if they have once been detained under S.3 MHA, it is nevertheless the law.

Parliament had the opportunity when drawing up the Mental Health Act 2007 to remove this absolute entitlement, but it did not.

Parliament again had the opportunity to change the law when drawing up the Care Act 2014, which substantially amended S.117.

But it did not.