Thursday, 29 November 2018

The Approved Mental Health Professional Workforce Briefing

I always like some tasty statistics, and what could be tastier than the briefing on the Approved Mental Health Professional Workforce in England, which has just been published.

A brief document, amounting to no more than 5 pages, it nevertheless contains some fascinating figures (at least to me) relating to numbers and demography of AMHPs.

As 92% of local authorities responded, it is a comprehensive description of the state of AMHPs in England. For a start, it can be said with a high degree of certainty, that there are 3,900 AMHPs in England.

Despite the Mental Health Act 2007 opening the AMHP role to nurses, occupational therapists and psychologists, as well as social workers, the overwhelming majority of AMHPs are still social workers. 95% are social workers, compared to only 4.5% who are nurses. The remaining 0.5% are occupational therapists. Oh, and there is actually one clinical psychologist.

A recent post on the Masked AMHP Facebook Group enquired how many AMHPs were full time. This document identifies that 23% of AMHPs work on a full time basis, while the remainder practice on a part time basis, in conjunction with their substantive post, whether that be as a social worker or mental health nurse. This second group would tend to be on a rota, perhaps on a weekly basis.

The report notes that “overall, AMHPs are more likely to be male, older and white than the whole social worker workforce”.

For example, while 10% of social workers as a whole are under 30, only 2% of AMHPs are under 30. This doesn’t surprise me. Most people do not make a decision while still in secondary education that they want to go into social work, but tend to make this decision later in life. A typical social worker would tend to be in their mid to late 20’s by the time they train. Then they would have to have at least 2-3 years post qualification experience before they’d even be eligible to train for the AMHP role.

The majority, 68%, are aged between 30 and 54. Which means that 30% of the current AMHP workforce are aged 55 or more. This is potentially worrying, as many of those (me included) are approaching retirement age, so it could mean that there will be a shortage of AMHPs in the future, unless there is a vigorous programme of encouraging social workers, nurses, and others, to train and practice as AMHPs.

There’s also a notable discrepancy in the gender of AMHPs. While 81% of social workers are female, only 71% of AMHPs are female. Perhaps female professionals are deterred from training as AMHPs by the perception of the riskiness of the role?

There is a curious discrepancy between the numbers of white AMHPs and those from a black or minority ethnic background. While 23% of social workers are non white, this falls to only 15% of AMHPs.

There are some interesting figures relating to the length of time professionals have practiced as AMHPs. This seems to indicate that, once qualified, AMHPs tend to remain in the role. 57% of AMHPs have been in the role for 10 years or more, and 19% of AMHPs have been practicing for 20 years or more.

This is where I modestly reveal that I have been a practicing, MWO, ASW and AMHP for a total of 37 years. I honestly don’t know where the time’s gone.

There are even figures about the pay of AMHPs compared to social workers as a whole. In England, AMHPs receive an uplift in pay of 9% compared to non AMHP social workers.
There are no national policies relating to the recompense of AMHPs for the highly skilled and often arduous work that they do. While most local authorities offer extra increments or honorariums for being on an AMHP rota, there are still some that don’t.

Lyn Romeo, the Chief Social Worker for Adults, concludes the report by saying: “Detention rates are increasing and AMHPs are dealing with challenging contexts as the prevalence of mental ill health episodes are increasing.”

She goes on to say:

We know that detention rates of people from Black and Minority Ethnic backgrounds are disproportionately high, so we need to think how we can ensure that the AMHP workforce reflects the population of people we are serving.

Since the Mental Health Act Review is specifically addressing this issue, among many others, and is imminently due to present its conclusions for reform to the Prime Minister, it is to be hoped that some at least of these discrepancies can be resolved.

Wednesday, 7 November 2018

Should euthanasia be permitted for people with mental disorder? The case of Aurelia Brouwers

Aurelia Brouwers

In August 2018 the BBC published an article online about a woman in the Netherlands called Aurelia Brouwers. The full article can be found here.

Aurelia was quoted as saying:

I'm 29 years old and I've chosen to be voluntarily euthanised. I've chosen this because I have a lot of mental health issues. I suffer unbearably and hopelessly. Every breath I take is torture…

The article went on to explain that in the Netherlands euthanasia is permitted if a doctor is satisfied a patient's suffering is "unbearable with no prospect of improvement" and if there is "no reasonable alternative in the patient's situation".

Although most euthanasia candidates in the Netherlands have terminal or otherwise untreatable medical conditions, 83 people with mental health issues were subject to euthanasia in 2017. Only around 10% of requests for euthanasia from people with psychiatric conditions are approved.

Aurelia said:

When I was 12, I suffered from depression. And when I was first diagnosed, they told me I had Borderline Personality Disorder," she says. "Other diagnoses followed - attachment disorder, chronic depression, I'm chronically suicidal, I have anxiety, psychoses, and I hear voices.

The psychiatrist who approved the decision to end Aurelia’s life, Dr. Kit Vanmechelen, said:

 You must have done everything to help them diminish the symptoms of their pathology. In personality disorders a death wish isn't uncommon. If that is consistent, and they've had their personality disorder treatments, it's a death wish the same as in a cancer patient who says, 'I don't want to go on to the end.'

On 26th January 2018 she was given the poison that would kill her and took it.

Readers of this blog will know that I continue to be troubled by people with mental disorders either being allowed to die,or facilitating their deaths.

Assisted suicide, which is what euthanasia is, remains a criminal offence in the UK, so cases like Aurelia Brouwers cannot happen here. That is not to say that there are no cases of assisted suicide, but the incidence of such cases is low.

According to the Crown Prosecution Service, between 1st April 2009 and 31st January 2018, there were 138 cases referred by the police that had been recorded as assisted suicide. Of these 138 cases, 91 were not proceeded with by the CPS. 28 cases were withdrawn by the police. This is an average of only around 15 per year.

The CPS website states:

There are currently two ongoing cases. Three cases of assisted attempted suicide have been successfully prosecuted. One case of assisted suicide was charged and acquitted after trial in May 2015 and seven cases were referred onwards for prosecution for homicide or other serious crime.

One such case was that of Kevin Howe. He was a friend of Stephen Walker, who while drunk, asked him to buy him some petrol so he could set fire to himself. He duly obliged, and Stephen fulfilled his promise. Stephen did survive, but Kevin Howe was found guilty of attempted assisted suicide, and received a 12 year prison sentence.

Another case was that of Lyndsay Jones. She was an acquaintance of Philip Makinson, who was suffering from severe depression and had already tried to kill himself by cutting his wrists. She was a heroin addict, and at his request and with his consent provided him with what she knew to be a fatal dose of heroin. She was convicted of manslaughter, and received a prison sentence of 4½ years.

It is significant that both these cases involved people with mental health problems rather than terminal illness. In one of these cases, the person who “assisted” the person wishing to kill themselves did so with deliberate malice. According to the CPS, it is less likely to lead to a prosecution if the person assisting “was wholly motivated by compassion”. In these situations, this was certainly not the case.

However, there are situations in which people with mental disorder have been permitted to die, either through no action being taken to save life, or through a decision of the courts to cease lifesaving treatment.

One such, of course, is the case of Kerrie Wooltorton, which I have discussed at length in two blog posts, most recently in June 2018. Kerrie took a fatal dose of antifreeze, and because she had written an advance decision to withhold treatment, the doctors in the A&E department allowed her to die. I am thankfully not aware of any other incidences in which an advance decision has been made, or allowed to stand, for a person with mental disorder.

There have also been Court of Protection decisions relating to people with mental disorder, where a decision has been taken to cease lifesaving treatment. One, the case of C from 2015, concerned a woman with narcissistic personality disorder who did not wish to continue treatment for the effects of a serious overdose because she had “lost her sparkle” and no longer wanted to live.

There have also been two other cases, the case of X and the case of W, both of whom had anorexia nervosa, where the decision was made not to continue with forced treatment for their disorders.

There is an essential difference between a regime in which someone with mental disorder can legally be assisted to end their own life at their request, and one where it is necessary for a court to make a situation specific decision regarding whether or not to continue to provide lifesaving treatment for the consequences of a mental disorder.

With the former, there is always the risk that a clinic specialising in assisting suicide, which presumably would expect to receive payment for the service, may not be sufficiently rigorous in deciding whether or not someone has the capacity to make a decision that will end their life. Indeed, it could be possible for a rogue clinician to encourage people to die.

There are several examples of doctors and nurses who have deliberately killed their patients. A British one is of course Dr Harold Shipman. Another currently in the German courts is Niels Hoegel, a nurse who has admitted killing at least 100 patients under his care.

My basic position stands, which is that no-one who wants to end their life because of their mental disorder should be permitted to do so if it can be prevented. This is one of the basic principles that informs my practice as an AMHP. Furthermore, the resources should be in place to reduce completed suicide as much as possible.

In October 2018, Jackie Doyle-Price was appointed as Minister for suicide prevention. This was in response to the fact that suicide is now the leading cause of death in men under 45 years in age.

Unfortunately, despite the recent announcement that £2 billion is being provided for mental health services, this is not actually new money, and in view of the leaching away of funding for mental health care over the last 8 years, even if it was all spent on improving services, it would be unlikely to significantly improve suicide prevention.

The Government report, Preventing Suicide in England, published in January 2017, stated that “the latest data shows that people who have died by suicide who have been in contact with mental health services is estimated to have increased to 1,372 in 20146 from 1,329 in 2013.”

The most recent NCISH Report for 2018 into Suicide and Safety in Mental Health reported that “in England the number of patient suicides in 2016 was similar to the previous two years but the patient suicide rate fell as patient numbers increased.”

This report suggested “10 ways to improve safety” in this helpful diagram.

It is clear that current services are failing miserably to provide these essential safety strategies, and it is unlikely that the current Government, Suicide Minister or not, has the motivation or will to make a significant difference to suicide prevention.

Tuesday, 9 October 2018

ADASS Guidance on Ordinary Residence

The Association of Directors of Adult Social Services (ADASS) has recently published its guidance on ordinary residence. As I pointed out in my blog post in 2014, the Care Act 2014 revised the Mental Health Act, principally with regard to S.117 aftercare, but also with regard to the concept of “ordinary residence”.

It could be very helpful for ADASS to issue this guidance, as its tends to be local authorities who get into expensive legal disputes with each other over responsibility for packages of care, and this may reduce the incidence of these disagreements.

The concept of ordinary residence is important, as it establishes which local authority is responsible for providing for the care needs of people identified by the Care Act as being eligible to have their needs met.

The guidance points out:

In the vast majority of cases it will be obvious where an individual is ordinarily resident – and consequently which local authority is responsible for meeting the eligible social care needs of that individual. The issue of where an individual is ordinarily resident will usually arise when a person is moving or has moved from one geographical area to another.

Since “ordinary residence” is not actually defined in the legislation, it is still necessary to rely on case law to clarify its meaning. It may not be as simple as being where someone is actually living at the time they become eligible for services, as other factors may intrude. What is the ordinary residence of someone who has a tenancy or owns a home in LA 1, but happens to be on holiday with relatives in LA 2?

The guidance considers at length two cases: the Shah case, relating to people with capacity, and the Cornwall Case, relating to people lacking mental capacity to make decisions about residence.

The Shah Case

The Shah case goes back to 1982. Lord Scarman said in this case:

Unless... it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ordinarily resident refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

Length of residence is not necessarily a factor in deciding ordinary residence in this context: the Shah case concluded that someone must be living in a particular place for a “settled purpose as part of the regular order of his life for the time being, whether of short or long duration.”

The ADASS guidance states that:

Settled purpose can be established at the instant of an individual’s move to a new area, if that move is with the intention of remaining there permanently or for the foreseeable future. That is because the person will have a settled purpose from the moment they arrive.
However, if they are only temporarily away from their normal place of residence, then their permanent home will continue to be their ordinary residence for the purposes of the Care Act.

The Cornwall Case

The Cornwall case was a Supreme Court case from 2015, after the Care Act came into force.

This case concerned PH, a man born with severe physical and learning disabilities, who had been accommodated since the age of 4. He was with foster parents until he was 18, and then went into residential care. The question the Supreme Court had to answer was which LA was responsible for his care (under the Care Act)?

Was it Wiltshire, where he lived with his parents until he went to foster carers? Was it South Gloucestershire, where he lived with the foster carers? Or was it Cornwall, where his parents moved to in 1991? 

At the time of the decision, he was living in a fourth LA, Somerset, where he had been placed in residential care after leaving his foster carers. The issue was his ordinary residence prior to his placement in Somerset.

While the initial finding was that Cornwall was responsible, the Supreme Court considered that this was insupportable, and concluded that Wiltshire retained responsibility for funding, as they were responsible for the original placement.

The Supreme court concluded:

For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and “swings and roundabouts” may be unavoidable.

ADASS draws attention to the deeming provisions in S.39 Care Act 2014. This states that a LA “cannot ‘export’ its responsibilities under the Care Act by placing an individual in a different geographical area.” Certain types of accommodation, eg care homes, shared lives scheme accommodation or supported living accommodation, cannot be considered when determining someone’s ordinary residence.

The basic rule therefore is that a person “is ‘deemed’ or presumed to continue to be ordinarily resident in the area he was ordinarily resident in immediately prior to commencing living at the accommodation in question.”

The Care Act/Mental Health Act interface

Under S.117, the LA in which the patient was “ordinarily resident” immediately before being detained is responsible for aftercare. The Shah case applies in determining ordinary residence for patients detained under s.3 (and some Part III sections).

The ADASS guidance states:

It does not matter who is paying for care and support at the time of detention or which local authority employed any AMHP who might have been involved in the detention.

It goes on to say:

Where someone goes into hospital on a voluntary basis, they do not lose their residence. However, if during the voluntary admission the individual loses their previous accommodation, they no longer continue to be resident in that area. In such a case, if their presence in hospital is sufficiently settled they may acquire residence in hospital. If, having become resident as a voluntary patient in hospital, they are subsequently detained (for example) under section three, that will result in the authority responsible (for section 117 aftercare) being that where the hospital is situated, as that is where they will be resident.

This scenario consistent with the case law I discussed in this blog post.

I have only dipped into the full guidance in this post. It is to be hoped that the guidance will reduce the number of disputes between LA’s over their Care Act responsibilities and their responsibilities under S.117. I am certainly aware of cases where LAs continue to dispute their statutory responsibilities, often at the expense of the person whose needs have been assessed.

Unfortunately, while social care budgets continue to be squeezed and cut back to the bone, LAs are going to continue to fight to avoid the sometimes horrendously expensive care packages that the most vulnerable and disabled nevertheless continue to need.

Wednesday, 29 August 2018

How many AMHPs is “sufficient”? ADASS guidance on AMHPs

The Association of Directors of Adult Social Services (ADASS) have recently issued guidance for Directors on Approved Mental Health Practice.

While I am glad that they are explicitly addressing the important role of AMHPs within local authority services, I am, however, both intrigued and surprised at some of the contents.

I suppose that one of the things I find a bit dispiriting is the very basic nature of some of the information contained. For instance, the question is posed (and answered) “Who can be an AMHP?”

It is also stated that “local authorities have a statutory obligation to have sufficient AMHPs to provide a 24/7 service”. Are there any Directors of Adult Social Services who are not aware of that?

I suppose that, while AMHPs themselves are all too aware of the practical difficulties their job entails, and the deficiencies in services, all Directors should be reminded of their duties to support AMHPs. Hence the reminder that AMHPs must be given 18 hours of refresher training a year.

I am also pleased about the following statement:

AMHPs are advanced practitioners whose training enables them to understand and manage risk effectively. Working within teams across wider adults, children’s services, and mental health services; AMHPs can support colleagues and ensure referrals for Mental Health Act Assessments are made only where necessary and appropriate.

Something of which I am very aware, certainly in my own local authority, is that most AMHPs are within adult mental health teams. Very few are in older people’s teams or learning disability teams, even though a significant proportion of these service user groups may require assessment and/or detention under the Mental Health Act.

And unfortunately, Children Services do not see any benefit in training their social workers to be AMHPs, despite the Code of Practice stating:

At least one of the people involved in assessing whether a child or young person should be admitted to hospital, and if so whether they should be detained under the Act (ie one of the two medical practitioners or the approved mental health professional (AMHP)), should be a child and adolescent mental health services (CAMHS) professional. Where this is not possible, and admission to hospital is considered necessary, the AMHP should have access to an AMHP with experience of working in CAMHS, (para19.43)

It is very important that Directors should encourage social workers from across the spectrum to train and practice as AMHPs. This should extend to instructing managers to put suitable candidates forward, and facilitating their training and time spent on the AMHP rota by providing extra staffing to cover their absence from their usual work.

The document also provides some very interesting statistics relating to what is meant by “sufficient AMHPs”, which is contained in CoP para14.35 (“Local authorities are responsible for ensuring that sufficient AMHPs are available to carry out their roles under the Act”)

The document gives the following information:

In 1991 the Social Care Inspectorate recommended a ratio of between 1:7,600 (inner city) and 1:11,800 (other) approved staff (AMHP) to population (dependent on locality). In November 2017 the average was 1:16,000.

I have to say that I wasn’t aware of these recommendations from 1991. What is particularly shocking is the almost universal failure of local authorities to achieve the recommended ratio, especially in light of what the document goes on to say:

As the numbers of assessments have increased, the numbers of AMHPs have decreased. An inner city area of 250k population should have 33 full time equivalent daytime AMHPs, a shire county with a population of 1.1million would need 100 full time equivalent AMHPs.

I am, however, encouraged by the document’s final paragraph:

A key determinant of when assessments take place, and the stress placed on AMHPs as they coordinate assessments relates to availability of resources.  Common issues of concern include 1) transport problems, 2) lack of beds, 3) rising numbers of assessments and 4) lack of police resources. Monitoring these issues and developing whole system’s responses are key. Solutions to delays therefore need a multi-agency response and understanding of the local issues. Safeguarding processes should be used to record concerns and monitored at a strategic level.

I very much hope that Directors will work to address these issues before the pressures on AMHPs becomes so great that there will be no-one left willing to undertake the role.

Wednesday, 4 July 2018

Why did I become a social worker?

The Masked AMHP when he was a hippy

As I approach retirement from the job I have been doing for the last 42 years, I’ve started to think more about what led me into social work in the first place.

Several years ago I wrote in the Guardian about how I ended up becoming a social worker. It was almost accidental. No child has it in their mind that they want to go into social work; for one thing, it is not generally a high visibility profession, unless something goes wrong, and then social workers always seem to be identified as the guilty parties.

But there were a couple of incidents in my adolescence, long before I actually applied for, and got, the job of social worker, that with hindsight first put the idea of being able to help people into my mind.

The old lady

The first incident was when I was 16, when I was still at school studying for A Levels. The Post Office were wanting temporary assistant postmen to cover the pre-Christmas period. I managed to get one of these jobs, to earn some pocket money.

I was assigned to assist Bill, one of the permanent postmen, on his round. This involved carrying a huge bag of post around a housing estate, while he went here and there in his van.

But part of his round involved having to drive to more remote houses. He went to a rather dilapidated looking bungalow and then asked me to deliver a small bundle of what appeared to be Christmas Cards and a couple of parcels. He said that he didn’t want to do it himself as the occupant would keep him in conversation for hours.

I knocked on the door and after a while the door opened. An elderly and frail looking lady was standing there. I noticed that she had dried food attached to the whiskers on her chin.

The bungalow beyond was dirty and ill cared for, with random piles of newspapers and cobwebs hanging from the ceiling.

 An almost overwhelming sadness gripped me as I gave her the cards and parcels.

She seemed desperately disappointed.

“Isn’t Bill delivering today? Such a nice man. We always have such a nice chat.”

“No,” I replied. “He’s … busy, what with the Christmas rush and everything.”

“Oh, well, never mind.” Her voice petered out, and she closed the door.

I felt for the lady’s loneliness, and her disappointment at not being able to have a conversation with the postman. How many people did she see in a week? The experience haunted me.

Surely there must be services that could help someone like her, I remember thinking.

The driver

The second incident taught me something else.

I was 17 years old, and trying to be a hippy, with long hair, a beard, bell bottomed jeans, and sandals. (Give me a break. This was the early 1970’s.)

It was the summer, and I was hitch-hiking in England. I don’t remember where I was going to. It may have been a pop festival. (Weeley?)I had a rucksack, and a sleeping bag, and was hoping for some sort of adventure.

A very upmarket car stopped to give me a lift. When I got in, I was surprised to see the driver was an immaculately dressed woman in her 40’s. Women never usually stopped for a young male hitch-hiker who looked a bit like a hippy.

I couldn’t help noticing that her face and bare arms were covered in a blotchy rash.

We drove off. Looking straight ahead at the road, she said, “I expect you’re wondering what’s wrong with my skin.”

She didn’t wait for a reply.

“It was my husband. The person I love most in my life. He went to the doctor one day because of a pain in his head. The doctor sent him for tests.

“My husband had a brain tumour. It was inoperable. Within 6 weeks he was dead.

“The funeral was 2 months ago.

“I thought I was doing fine. I thought I was managing. But a couple of weeks later I woke up one morning and saw that my whole body was covered in this rash.

“The doctor told me it was nothing to worry about. It was a reaction to the stress.

“Nothing to worry about.

“I‘ve lost my husband, the love of my life.

“Nothing to worry about.”

She continued to tell me her story for the rest of the journey. When it came time to drop me off, she looked at me and said, “You don’t know who I am. I don’t know who you are. We’ll never see each other again. Thank you.” She smiled for the first time during the trip.

Even though I was only a 17 year old self-absorbed teenager, I realised that something significant had happened.

She needed to tell someone how she was feeling, someone she did not know, who was nothing to do with her family or social circle, someone who would not judge her, who would not argue with her, who would just listen. She just needed to talk.

So simply by being there in the car with her, and sharing that journey, I had helped her in some way to come to terms with her bereavement.

I realised that making a difference to people might not be so difficult after all. And it was oddly satisfying to realise I had helped in some way.

Thursday, 21 June 2018

Can Advance Decisions be used to refuse treatment for suicide attempts?

I continue to be troubled by the concept of advance decisions to refuse treatment being used to prevent lifesaving treatment for the consequences of deliberate attempts to end one’s life.

I wrote about one such case back in 2011. This concerned a 26 year old woman called Kerrie Wooltorton. She committed suicide on 19th September 2007 by swallowing ethylene glycol (antifreeze), and although she had herself called an ambulance and had allowed herself to be taken to hospital, she had refused the treatment which would have saved her life.

Kellie Woooltorton's Inquest

The doctors in charge of her treatment allowed her to die because she had made what was at the time described as a “living will” stating that she did not wish to receive treatment for the effects of the deliberate ingesting of this lethal substance.

The reason I am revisiting this issue is because I recently came across an account of the inquest report. Previously, the only information I had was the news reports at the time of the inquest, which had taken place two years later in 2009.

Five days before, she had written a letter. This stated:

To whom this may concern, if I come into hospital regarding taking an overdose or any attempt on my life, I would like for NO lifesaving treatment to be given. I would appreciate if you could continue to give medicines to help relieve my discomfort, painkillers, oxygen, etc. I would hope these wishes will be carried out without loads of questioning.

Please be assured that I am 100% aware of the consequences of this and the probable outcome of drinking anti-freeze, eg. death in 95-99% of cases and if I survive then kidney failure, I understand and accept them and will take 100% responsibility for this decision.

I am aware that you may think that because I call the ambulance I therefore want treatment. THIS IS NOT THE CASE! I do however want to be comfortable as nobody want to die alone and scared and without going into details there are loads of reasons I do not want to die at home which I will realise that you will not understand and I apologise for this.

Please understand that I definitely don’t want any form of ventilation, resuscitation or dialysis, these are my wishes, please respect and carry them out.

In his summing up, the coroner stated:

Kerrie had capacity and she could not therefore be treated and indeed, going further than that, if she was treated in these circumstances and her wishes overridden, it would have been an assault to have done so… Any treatment to save Kerrie’s life in these circumstances would have been unlawful because the law respects the autonomy of an individual to make a decision even if the decision is seen to be perverse or unwise by others.

It was stated at the inquest that Kerrie had an “incurable emotionally unstable personality disorder”, that she had a long history of self harm (she had taken 9 similar doses of antifreeze in the year before her death), and that she had been sectioned and admitted to psychiatric hospital on a number of occasions in the past.

In my original post on Kerrie Wooltorton, I dismantled the case being made that it was unlawful to treat in these circumstances. Stuart Sorensen, writing in Community Care at the time, concluded that the Mental Capacity Act's Code of Practice “is clear that the Act does not support suicide, assisted dying or mercy killing”. Her clear intention to end her life:

means that she cannot be seen as decision-maker in the eyes of the law. The power to decide passes to the care team who have to act in what they reasonably believe to be her best interests. It seems reasonable to doubt that best interests means watching her die slowly and presumably painfully from acute poisoning.

The inquest, taking place 2 years after the Mental Capacity Act, made an assumption that the decisions the doctors had made related to the MCA.

However, when I looked more closely at the dates, I realised that the MCA did not actually come into force until 1st October 2007. This was 2 weeks after Kerrie had written her advance decision to refuse treatment, and over a week after she had taken her life.

Government guidance on implementation of the MCA said that “most advance decisions, refusing life-sustaining treatments, made before October 2007 are unlikely to meet the specific requirements of the Act.” This fact in itself should have provided sufficient justification for the hospital to have disregarded her “living will” and to have provided her with treatment.

Should such advance decisions be respected?

So, to come back to my initial question, just because Kerrie Wooltorton’s advance decision could legitimately have been disregarded, does that mean that advance decisions, properly made out, would have to be respected in all circumstances?

To begin at the beginning, S.24(1) of the Mental Capacity Act 2005 states:

“Advance decision” means a decision made by a person, after he has reached 18 and when he has capacity to do so, that if—
(a) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and
(b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued.

The MCA Code of Practice makes it clear the sort of circumstances that might justify making, and respecting an advance decision to refuse treatment. It provides this scenario:

Mrs Long’s family has a history of polycystic ovary syndrome. She has made a written advance decision refusing any treatment or procedures that might affect her fertility. The document states that her ovaries and uterus must not be removed. She is having surgery to treat a blocked fallopian tube and, during the consent process, she told her doctor about her advance decision. During surgery the doctor discovers a solid mass that he thinks might be cancerous. In his clinical judgement, he thinks it would be in Mrs Long’s best interests for him to remove the ovary. But he knows that Mrs Long had capacity when she made her valid and applicable advance decision, so he must respect her rights and follow her decision. After surgery, he can discuss the matter with Mrs Long and advise her about treatment options.

In this situation, it is clear that Mrs Long has capacity to make an informed decision, and that the decision is based on sound principles. She wants to have children, and does not want any treatment that might jeopardise this.

But what about people who want to successfully end their lives? This is not nearly so straightforward.

In the case of people requiring treatment for mental disorder, the Code has this to say:

Advance decisions can refuse any kind of treatment, whether for a physical or mental disorder. But generally an advance decision to refuse treatment for mental disorder can be overruled if the person is detained in hospital under the Mental Health Act 1983, when treatment could be given compulsorily under Part 4 of that Act. Advance decisions to refuse treatment for other illnesses or conditions are not affected by the fact that the person is detained in hospital under the Mental Health Act.

So what the Code is saying is that treatment for mental disorder can be given under the Mental Health Act regardless of any advance decision, although treatment for purely medical problems cannot be given under the MHA.

So in the case of Mrs Long, if she happened to be detained under the MHA because of the need for treatment for mental illness, she could be given that specific treatment, but her existing advance decision relating to gynaecological treatment would still stand.

But when it comes to respecting an advance decision in the case of an attempt at suicide, it becomes more complex.

Professor Kapur, writing in the British Medical Journal, has this to say:

It is difficult to be certain about an individual’s capacity at the time of drawing up an advance directive and, although this is an issue with advance directives generally, it may be particularly pertinent for suicidal individuals. Suicidal behaviour is clearly linked to psychiatric disorder, with most people who die by suicide having evidence of a psychiatric illness at the time of death. This can affect decision-making capacity and even the law recognises that advance directives may not apply if a person is likely to be detained under the Mental Health Act.

If there is any question that the patient lacks capacity at the time of the need for life-saving treatment, then a best interests decision could be made to override any advance decision.

In the case of Kerrie Wooltorton, for example, there was a known history of mental disorder, she had been subject to the Mental Health Act on several occasions, and she had a history of self harm using antifreeze.

Looking at the timeline leading to the fatal event, she had written her “living will” 5 days before drinking the antifreeze.

This raises serious questions as to whether or not she had capacity at the time she wrote the letter. She was clearly planning to drink the antifreeze, and it would appear that she had written the letter in order to try to preempt any attempt to save her life. As she had an established mental disorder, and was clearly suicidal at the time she wrote this letter, it would be fairly safe to speculate that her capacity at that time was impaired.

There was certainly sufficient evidence to cast enough doubt on her capacity to ignore her wishes and provide her with the necessary treatment.

But the MCA has more to say. This is on the subject of assisting a suicide.

S.62 MCA states:

For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).

S.2 of the Suicide Act 1961 relates to complicity in another’s suicide. While the Suicide Act made it no longer an offence to commit suicide, it is an offence to do an act “capable of encouraging or assisting the suicide or attempted suicide of another person, and [that] act was intended to encourage or assist suicide or an attempt at suicide.”

The Code points out: “Nobody can ask for and receive procedures that are against the law (for example, help with committing suicide)” (9.6).

While on the surface this appears to relate more to the active assistance of suicide, it is arguable that a deliberate failure to give life saving treatment might actually constitute a criminal offence.

Purely on this basis, I would argue that a doctor would be justified in deciding not to risk prosecution.

So what should a hospital do when someone who has attempted suicide presents with an advance decision to refuse treatment?

Clearly, the first thing to establish would be the validity of the decision. One would need to be absolutely certain that they had full capacity when the decision was made.

It is arguable that someone with a history of severe mental disorder, and with suicidal ideation and a history of previous attempts, may not have full capacity. If the decision was made within days of the action, as in Kerrie Wooltorton’s case, this could be evidence that their state of mind at the time they made the decision was impaired by their mental disorder. 

Such an advance decision could easily be construed as being invalid.

But what about a hypothetical case of someone with motor neurone disease who had made an advance decision some months previously not to be treated or resuscitated, and who had then contrived to take a fatal overdose at the point at which they considered their condition to be adversely affecting their quality of life so as to make that life worthless? Would one disregard their decision? If they had had capacity, and had rationally explained their thinking well in advance, it may be difficult to justify doing that.

Other ways of bypassing an advance decision in these circumstances

Up until now, I have not explored alternatives to relying on the Mental Capacity Act. There are at least two other options.

One is, of course, to use the Mental Health Act.

It is not uncommon to assess someone under the MHA who is either seriously planning suicide, or has taken an overdose of a noxious substance and is refusing treatment.

Capacity is not an essential factor in these assessments. Nowhere in the MHA is capacity mentioned. The requirement is for someone to have a mental disorder within the meaning of the Act (which is very broad), and to be in need of assessment and/or treatment.

Detention under either S.2 or S.3 MHA would then provide a legal framework to provide treatment against the will of the patient. While one cannot use this to compel treatment for unrelated medical conditions (as in the case of Mrs Long), it can be (and often is) used to treat the consequences of self harm arising from the patient’s mental disorder. This would include treatment for overdoses or the effects of other noxious substances.

Any advance decision would be irrelevant in such a situation.

The hospital would also have a third option. This would be to go to the Court of Protection. Then a Judge can make a decision as to whether to impose life saving treatment or to permit the withdrawal of treatment.

I have discussed a number of court decisions on this blog where a Judge, or even the Appeal Court, has been asked to make decisions relating to the treatment or otherwise of people with anorexia nervosa and other mental disorders.

So to conclude, I do not think that there was a need for Kerrie Wooltorton to die back in 2007. I also think that, in a similar situation today, there are a number of ways in which treatment could be provided regardless of the existence of any advance decision.

People with mental disorder do not have to be allowed to die simply because that is what they say they want at the time of the crisis.