Wednesday, 10 July 2019

Can you use the Mental Health Act with a person with capacity?

Amy Morby

A recent inquest in Cornwall reported on the sad case of 23 year old Amy Morby, who died as a result of an overdose.

It was reported on 28th May 2019 that she had received treatment at the Emergency Department in Truro three times in 4 days in September 2018. A week later she died of a fourth overdose.

The inquest reported that she was a patient of the local CMHT, and had also been assessed by the hospital psychiatric liaison team. The hospital assessor stated that Amy was treated at Treliske’s emergency department following deliberate overdoses on five occasions during 2018, including three times between September 2 and 6, just a week before she died.

He said that: “She was not acutely mentally ill. Amy’s problems were psycho-social stresses. Life was hard and she was going through a difficult time.”

The manager of the Community Mental Health Team said the team were shocked by her death as they did not consider the overdoses on September 2, 4 and 6 were actual suicide attempts. It was concluded that Amy was probably suffering from a borderline personality disorder.

There is, unfortunately, nothing out of the ordinary in this narrative. Many people suffering from a wide range of mental health problems make attempts to end their lives, and some are successful. Mental Health Services do try to help people at risk of suicide, but it is not always possible to achieve this.

Also unfortunately, identifying that a patient has a “personality disorder”, in particular, an emotionally unstable or borderline personality disorder, is often used as an excuse not only not to compel treatment, but also to decline to offer treatment.

However, there was one sentence in this report that particularly struck me:

“The inquest heard that Amy couldn’t be sectioned under the Mental Health Act as she had full capacity and wanted to continue working with the mental health team.”

It is not reported who said this in the inquest, but I know that many AMHPs would disagree.

For a start, I am reminded of the case of Kerry Wooltorton, about whom I have written on several occasions on this blog. She was allowed to die in hospital after drinking antifreeze, on the basis that she had made an advance decision to refuse treatment. The coroner in her case stated: “Kerrie had capacity and she could not therefore be treated”.

As I have said before, 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 in this context. 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.

This is not to suggest that mental capacity has no part in decision making about use of the MHA. Indeed, there is an interface between the Mental Health Act, which is about mental disorder, and the Mental Capacity Act, which is all about mental capacity.

This is reinforced by a considerable quantity of case law, including AM v SLAM, and Cheshire West.

The case law makes a distinction between objecting and non-objecting patients, and capacitous and non-capacitous patients. A non-objecting, capacitous person can be treated in hospital for mental disorder without recourse to the MHA. But both an objecting capacitous person and an objecting non-capacitous person may be detained for assessment and treatment under the MHA, and in many situations should be, if it is the only means by which they can receive the assessment and treatment they require.

Whether deemed to be capacitous or not, Amy Morby could have been made subject to section of the MHA. The decision should perhaps have been allowed to have been made by an AMHP and 2 psychiatrists.

Tuesday, 4 June 2019

Who’s responsible for assessing under s.3 for a patient detained under s.2?

Across England and Wales, because of the desperate shortage of suitable psychiatric hospital beds, huge numbers of people needing acute hospital admission are being moved out of their locality to hospitals often hundreds of miles from their home. As I pointed out in my last blog post, most of these hospitals are private.

Quite apart from the distress and difficulties this causes to patients and their relatives, it also creates enormous logistical problems for local authorities and their AMHP services.

This is because of the legal duties relating to assessment under the Mental Health Act.

s.13(1) states:

If a local social services authority have reason to think that an application for admission to hospital or a guardianship application 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.

What this means is that, regardless of where the person normally lives, if they happen to be somewhere else, but requiring assessment under the MHA, the duty falls on the AMHP service where they happen to be at the time.

Here’s an example from my own AMHP service. Gerry lives in local authority A, but goes on holiday in local authority B, which is 100 miles from his normal home. He becomes mentally unwell and is detained under s.136 by the police. LA B has the legal duty to undertake the assessment. In the case of Gerry, the decision was made that he needed to be detained under s.2 for assessment, although the mental health trust in his home area, where he was registered with a GP, was responsible for finding him a bed.

But things can get even more complicated than that.

I recently received a call from an AMHP in in a London Borough (X), many miles from our LA, concerning a patient whom I will call Patrick. Patrick normally lives in our area (LA Y), but had been staying with friends in their area when he became unwell and was assessed by one of their AMHPs who detained him under s.2. Our local MH trust found him a bed in a private hospital, which was in LA Z, nowhere near either X or Y.

After a few weeks, a request was made by this hospital for assessment under s.3 for treatment. The request went to X. The AMHP in X contacted our AMHP service to inform us of this, and to instruct us that we had a duty to undertake this assessment.

I drew his attention to paragraph 14.37 of the Code of Practice, and read it out to him:

If a patient is already detained under section 2 as the result of an application made by an AMHP, the local authority on whose behalf that AMHP was acting is responsible for arranging for an AMHP to consider the patient’s case again if the local authority has reason to believe that an application under section 3 may be necessary. This applies even if the patient has been detained outside that local authority’s area.

(By the way, for any Welsh readers of this blog, paragraph 14.27 of the Welsh code of Practice says the same thing.)

This means that an AMHP from area X has the legal duty to do the assessment, even though Patrick was from area Y and was now in a hospital in area Z.

This unfortunate AMHP wasn’t sure about this.

“Ah,” he said, “there’s case law that overturns this.” And he made some comments about “ordinary residence”.

I knew what he was referring to. He was referring to the Care Act 2014, and its changes to s.117 MHA, which relates to the duty to provide aftercare to patients detained under s.3 and some sections in Part III of the MHA.

s.117(3) states that the responsibility to provide aftercare lies with the LA and CCG for the area in which a patient was “ordinarily resident” at the time of their detention under s.3.

s.39(1) of the Care Act defines “ordinary residence” as being 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”.

s.39(4) then explicitly applies this to s.117 aftercare, 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.

He certainly had us bang to rights – as far as aftercare goes. If Patrick was detained under s.3, our area would be responsible with providing him with aftercare.

But this had no bearing on the duty to assess under s.3. Paragraph 14.37 trumped this, and an AMHP in area X was going to have to do the assessment, even though Patrick was no longer even in their area.

It’s a tough call, but the law is the law. And it applies to every AMHP Service in England and Wales.

In practice, local AMHP Services are often obliging, and may consider doing an assessment for s.3 on behalf of the relevant LA if the patient is in a hospital in their area. Our area has several private hospitals, who often receive patients detained under s.2 from all over the country. If we have capacity, we will deal with a request for s.3 from another LA – if they pay us.

But not all LAs are so obliging.

Do you remember Gerry, who was on holiday in our area when we detained him under s.2?

He was admitted to a hospital in his own area, and after a few weeks there was a request to assess for a s.3.

You might think that his local AMHP Service, seeing that he was a patient who lived in their area, and who was in hospital in their area, and who would have s.117 responsibility for him, would see it as reasonable to do this assessment.

But no. They stuck to para 14.37, and insisted that one of our AMHPs went to their hospital to assess their patient.

If anyone involved in the Association of Directors of Adult Social Services (ADASS) happens to be reading this, perhaps they’d like to bring the whole matter up with their association.

Because of the current ongoing and apparently endless crisis in provision of adequate mental health beds, nearly all LA’s are experiencing these problems, and either having to send AMHPs hundreds of miles away at huge expense (which can entail overnight hotel stays and two full AMHP days for one assessment), or paying other AMHP services to do these assessments on their behalf.

Isn’t there a simpler and cheaper way to tackle this?

Friday, 10 May 2019

What’s the point of private psychiatric hospitals?

Once upon a time, in a galaxy far far away…

Once upon a time (about 20 years ago) NHS psychiatric hospitals had enough beds for anyone who needed to be in hospital. Indeed, often, the local unit I admitted to would frequently have a 10% under occupancy rate. This meant that imaginative uses could be put to these beds, such as brief respite admissions or even allowing patients to contact the hospital themselves to ask for admission as part of a crisis care plan.

It was exceedingly rare for beds (other than some specialist beds such as eating disorder units) to have to be obtained from out of area, in which case, one or two moderately local private hospitals would be used. Patients would then be brought back into the locality NHS hospital within days.

Back then, private hospitals were almost exclusively used by private patients who were well off enough to have private health insurance.

I recall working with a patient back then who was admitted privately under s.2 . He was experiencing an acute psychotic episode.

His parents, who were extremely wealthy, arranged for him to see a private psychiatrist. This psychiatrist, who was also a locality NHS psychiatrist, assessed him and concluded he needed to be detained. As he also worked part-time for the private hospital, he arranged for admission there.

The patient appealed, and I provided a social circumstances report and attended his Mental Health Tribunal.

In preparation for this, I spoke to the psychiatrist who had seen him. He told me that he was referring him to our local CMHT psychiatrist, and would not continue to see him privately. This was because “I only see private patients if there’s nothing seriously wrong with them.”

I am using this story to illustrate the difference back then between NHS and private psychiatric hospitals: NHS hospitals admitted “proper” patients, while private hospitals concentrated on anyone who could afford to pay, whether there was anything significantly wrong with them or not.

I know this is an appalling generalisation, but there is at least an element of truth there.

But over the last 10 years in particular (is it a coincidence that this has been during the Coalition/Conservative period of austerity? I think not) all this has changed. As NHS hospital beds have been cut back and cut back, there has been a corresponding vast increase in the use of private hospitals by NHS Trusts, at enormous expense.

While there may be a case for seeking specialist beds in private hospitals, for example, for eating disorders, most of these private beds are simply for acute adult admissions.

The most recent statistics for detentions under the MHA give a breakdown of those detained in NHS psychiatric hospitals and those detained in independent hospitals. Independent hospitals are hospitals either run for profit, such as the Priory Group Hospitals, or operated by charitable trusts, such as St Andrews Healthcare.

On 31st March 2018 there was a total of 15,918 patients detained in hospital. Of these, 12,555 were in NHS hospitals, while 3,330, or 21%, were in independent hospitals.

Are independent hospitals any good?

One might expect private hospitals to be able to provide exceptional care, since they are privately funded (or are they? I’ll come to that).

It’s not necessarily been my experience.

One incident concerns an extremely unwell and psychotic patient who was admitted from the community under s.3 to a private hospital. She was there for about a week when I received a call from a nurse on the ward. She told me that the patient had absconded 3 days earlier, and wanted to know if, as she was no longer in hospital, she could be discharged from s.3. The hospital had made no effort to inform the police, or even bother to tell me as the care coordinator at the time.

Who funds private and independent hospitals?

St Andrews Healthcare’s annual report for 2016-17 states that NHS England is its biggest source of funding.  It says: “The Charity receives essentially all its income from NHS entities.”

NHS England reported that it has directly purchased £294,796,282.22 of services from St Andrews Healthcare over the period January 2014 to July 2017. 

In February 2018 St Andrews Healthcare Nottinghamshire was rated by the CQC as “inadequate”.

Staff at the hospital did not adhere to the Mental Health Act Code of Practice when using seclusion, and staff allowed patients on one ward to vote on whether to end or continue other patients’ seclusions.

Inspectors identified several potential ligature anchor points, placing patients at risk with out of date risk assessments – contributing to the CQC’s assessment that “staff did not protect patients from avoidable harm or abuse.

Patients told the inspectors that, on some wards, staff ignored them and did not respond to basic requests, such as for going to the toilet and for food and medicine.

St Andrews Healthcare is not the only organisation providing psychiatric inpatient care that obtains large amounts of NHS money. In fact, it has been my experience that most private hospitals are very keen to take money from the NHS for patients.

One example is a private hospital that will only consider the admission of an NHS patient if it can be guaranteed that the patient will remain with them for at least a month. This seems to fly in the face of the principles of the MHA which stresses that detention should not last longer than absolutely necessary.

I am also aware of the case of a 15 year old child with a diagnosis of Obsessive Compulsive Disorder and Autism who was detained under s.2 in a general hospital because of problems over low weight. He was assessed by the eating disorders service who concluded that he did not have an eating disorder, but needed a specialist bed for his OCD and autism. Instead, he was placed in a private eating disorders specialist unit.

The unit requested detention under s.3 for treatment. His care coordinator, who was also an AMHP, assessed him with a 2nd s.12 doctor. They both concluded that the patient did indeed not have an eating disorder, and therefore treatment in an eating disorder specialist unit could not be justified. As he was agreeing to remain as an informal patient, the s.2 was allowed to lapse.

The unit continued to treat him for an eating disorder, and wilfully downplayed his actual mental health problems. But they were very reluctant to allow him to be moved on.

And one final anecdote. This concerns a 16 year old girl who was detained under s.2 in a private hospital. Her care coordinator arranged for her to live in special accommodation in her home area in order to attend 6th form college. Her community psychiatrist was fully on board with this. However, the hospital psychiatrist refused to discharge her from her section, so she lost her accommodation and could not start her course.

You’d be forgiven for thinking that the reasoning behind this refusal was more to do with financial considerations that the needs and welfare of the patient.

The Priory Group

The Priory Group is probably best known for providing drug and alcohol detox programmes for high profile celebrities, but it is one of the biggest private mental health care providers in the country. In 2017 it had an operating profit of £2million.

On 17.04.19. the Priory Group was fined £300,000 over the death of a 14-year-old girl, Amy el-Keria, in their hospital in Ticehurst, East Sussex, in November 2012. Amy had a recent history of self-harm and suicide attempts and was found hanged in her room, a room that had been assessed by an untrained staff member to have “medium risks” with a number of ligature points, but this assessment had not been followed up. There was a catalogue of poor and negligent practice. Staff did not promptly call 999 or a doctor and were not trained in CPR. The hospital’s lift was too small to accommodate the ambulance service’s stretcher. Nobody from the hospital went with Amy in the ambulance.

And if you’re thinking that the Priory Groups private patients might be treated with more respect, consider the recently reported case of PB v Priory Group Ltd [2018] MHLO 74. I am grateful to Matthew Seligman of Campbell-Taylor Solicitors (solicitors for the claimants) for summarising this truly disgraceful case.

As a private patient PB attended an outpatient appointment at the Priory Hospital (North London) in September 2018. In the first 15 minutes of the consultation she was told that she was being detained under s.5(2) MHA. She ran out of the room, but was prevented from leaving and was admitted to a ward.

Readers of this blog will probably now be exclaiming, “But s.5(2) only applies to inpatients! It can’t be imposed on someone merely visiting a hospital!”

You’re absolutely right.

To add insult to injury, the person’s husband, who had also attended the appointment, had to make an immediate down payment of £10,626 on his credit card, as the Priory charged £834 per day.

She was then detained in hospital for a total of 17 days. This included 72 hours under the illegal s.5(2), which was allowed to expire without assessment for s.2, meaning she was detained for a further 7 hours without any form of legal authority, until an application under s.2 was finally made. She was eventually discharged by the hospital psychiatrist on 17th October 2018.

To make things even worse, if that’s possible, the hospital then pursued the couple for outstanding fees of £3,000. I assume that they felt this was more than a step too far, because the patient and her husband then brought proceedings against the hospital, claiming damages for the whole period of the wife’s stay for unlawful detention and breaching her human rights under Article 5. The couple accepted an offer of £11,500 plus legal costs.

Despite these horror stories, I am not suggesting that all private psychiatric care is poor, and in fact I have a lot of experience of very good, humane, patient centred treatment from some private hospitals.

But I will question why the NHS is spending so much more on private psychiatric provision, when it does not even guarantee an acceptable level of care.

NHS psychiatric beds should be available for NHS patients when needed. The Government should be providing sufficient funds for the NHS to be able to ensure this.

Private psychiatric hospitals should only be required for patients who want to pay for their private care.

Monday, 1 April 2019

The Masked AMHP has some unbelievable news!

I can't keep it secret any longer!  The Masked AMHP is excited and delighted to reveal that his exploits are to be made into a TV series!

E4 have commissioned a major new series based on my blog. The pitch was roughly along the lines of Call the Midwife meets Sherlock with added AMHPs.

It’s going to be called “It Shouldn’t Happen to an AMHP”, which I feel accurately conveys both the poignance and humour  of an AMHP's life. Or at least, the Masked AMHP's life.

I am thrilled to announce that the part of the Masked AMHP is to be played by David Tennant (only with an English accent), while Olivia Colman will play the Masked AMHP’s AMHP trainee, Vanessa.

It's not all been plain sailing however. I’ve been involved in extensive and gruelling discussions with script writers and the production team, and have reluctantly come to recognise that it will be necessary to alter some of the factual events described in the blog in order to make it more dramatically acceptable to a lay audience.

That is why, for example, the Masked AMHP will have a permanent AMHP trainee, who will be called Vanessa, with him on all the assessments he does, even though in real life I have had dozens of AMHP trainees, who have fairly brief placements as part of their training.

 This is so that the Masked AMHP can mansplain to the rather hapless  but willing to learn Vanessa the minutiae of the Mental Health Act, rather in the way that Sherlock Holmes is always having to explain to Dr Watson what’s going on.

The photograph accompanying this post features a scene from the upcoming TV drama featuring the Masked AMHP and Vanessa undertaking an assessment under the MHA. As you can see, the Masked AMHP is diligently taking notes while interviewing in a suitable manner. Although in real life the Masked AMHP always wears a mask when assessing people under the MHA (I find it saves time), it was felt that it would obscure the handsomely rugged  features of David Tennant.

It has also been necessary to simplify the role of the AMHP for dramatic purposes. It was considered too complicated for every MHA assessment to consist of an AMHP and two doctors (and of course the dim but lovely Vanessa, who will also provide comedic relief), so most of the time the assessments will consist only of the Masked AMHP and Vanessa.

At the end of every assessment, when the Masked AMHP has decided that the patient has to be detained, he will announce with a cheeky glance to camera: “You’re sectioned!”. It’s hoped that this will become a popular catchphrase among the young people.

Some professionals watching the series may feel that unacceptable liberties have been taken with the depiction of the AMHP role, especially when the permanently luckless Vanessa almost invariably becomes victim to some hilarious mishap or other, whether it be mistaking the patient for a psychiatrist -- with hilarious consequences (and what AMHP hasn’t done that?), being mistaken for the patient by police and ambulance crews,  or simply falling into a vat of chocolate blancmange.

Well, my reply to those po-faced professionals is that it seems to me that the only way to get a show on TV featuring AMHPs was to make it accessible and funny, and surely sacrificing a bit of verisimilitude makes it all worth it.

 Oh, and since I’m going to be making a sackful of cash and retiring to the South of France before Brexit kicks in, I couldn’t really care less what those so-called professionals think.

Tuesday, 19 March 2019

Section 3 and “appropriate medical treatment”

In my last blog I looked at S.2 and S.3 of the Mental Health Act. When an AMHP is considering use of S.3 of the Mental Health Act, which allows detention in hospital for treatment, two medical practitioners have to provide medical recommendations. These will be completed on Form 7 (joint medical recommendation) or Form 8 (single medical recommendation).

However, it is not enough merely for the doctors to say that the patient needs medical treatment in hospital. The wording of the medical recommendation forms states:

We are also of the opinion that, taking into account the nature and degree of the mental disorder from which the patient is suffering and all the other circumstances of the case, appropriate medical treatment is available to the patient at the following hospital (or one of the following hospitals)

The doctors then have to state the hospital or hospitals where this appropriate medical treatment is available.

The Code of Practice makes it clear that it is a requirement of the Act for the doctors to state this. The code goes on the say:

Preferably, they should know in advance of making the recommendation the name of the hospital to which the patient is to be admitted. If that is not possible, their recommendation may state that appropriate medical treatment will be available if the patient is admitted to one or more specific hospitals (or units within a hospital). (para14.76)

Chapter 23 of the Code goes into some detail relating to what “appropriate medical treatment” means.

It points out:

The appropriate medical treatment test must be applied to ensure that no one
is detained (or remains detained) for treatment... unless medical treatment for their mental disorder is both appropriate and available.(para23.8)

It goes on to state clearly that:

In order to be deemed appropriate, medical treatment must be for the purpose of alleviating or preventing a worsening of the patient’s mental disorder or its symptoms or manifestations. It must also be appropriate, having taken account of the nature and degree of the patient’s mental disorder and all their particular circumstances, including cultural, ethnic and religious or belief considerations. (para23.9)

The appropriate medical treatment test requires a judgement about whether an appropriate treatment or package of treatment for mental disorder is available for the individual in question. It is not consistent with the least ‘restrictive option and maximising independence’ and ‘purpose and effectiveness’ guiding principles’ to detain someone for treatment that is not actually available or may not become available until some future point in time.(para23.10)

Until the MHA 1983 was revised and amended by the MHA 2007, doctors only had to say that medical treatment was required. It was an important change for them to have to think about what sort of medical treatment was required for the specific patient, as well as where that treatment was actually able to be given.

It is clear that, in order to comply with the Human Rights Act, a detained patient should be able to be given the treatment they need, otherwise they could be incarcerated indefinitely, while receiving no treatment at all.

I recall many years ago attending a Mental Health Tribunal for a patient who had been diagnosed with a personality disorder. He had been detained under S.3 and placed in a hospital where the appropriate treatment that he was deemed to require was available. This consisted of psychological therapy.

The patient appealed on the grounds that, although the treatment was available, the patient did not wish to have that treatment, and since psychological therapy cannot be administered against the will of the patient, he ought to be discharged.

The Tribunal found this to be a compelling argument, and discharged him.

More recently, I found myself in an invidious position regarding the detention of a patient with treatment resistant depression.

The patient was in the community, but well known to services, and had been receiving home treatment without any alleviation of their symptoms. She had in the past been treated in hospital with ECT, which had been very effective, and she had made a full recovery. The doctors therefore concluded that the treatment she required was ECT, and named several hospitals in the Trust area where treatment was available.

A bed was found in one of these hospitals, so I completed my application for S.3 with the consent of the nearest relative, and arranged for her to be conveyed to the hospital. The NR was in full agreement that she required ECT, and accepted reluctantly that she could not stay at home for this.

This is where it all unraveled.

The section papers were accepted by the hospital, and she was duly admitted. However, as I was about to leave, I was informed by the ward manager that ECT was not actually available in the hospital. All patients requiring ECT had to go to one hospital in the area that administered ECT, but as all the available slots were taken by existing patients, she would have to go on a waiting list, and it could be several months before she would be able to have this treatment.

Para23.4 of the Code makes it clear that this situation was not consistent with the guiding principles of the Act. While I had acted in good faith (and it is not the role of the AMHP to question what treatment might be required) I had been placed in a position in which I had acted otherwise than in the best interests of the patient. Had I known that ECT was not available, I would not have made an application for detention, but since the section papers had been received, I had no power to withdraw my application.

What constitutes “appropriate medical treatment”?

Back in 2013, the Moors Murderer Ian Brady appealed to a Tribunal against his detention in Ashworth Special Hospital. I wrote in detail about it here.

A Tribunal is required to ensure that appropriate medical treatment is available to the patient in question. Among Brady’s arguments was the contention that appropriate medical treatment was not in fact available for him.

The Tribunal accepted that treatment would not include the use of medication, and that “Mr Brady is very unlikely to take part in any psychological treatment.” They therefore considered at length the definition of “treatment”.

The Tribunal concluded that the nursing care he was receiving, which included building a therapeutic relationship, and acting to minimise conflict within the hospital, did indeed constitute “treatment”, and that Brady was receiving some benefit from this, whether he thought so or not.

Tuesday, 19 February 2019

Section 2 or Section 3?

These are the sections of the Mental Health Act that are the most commonly used when compulsory detention in hospital is being considered.

S.2 Mental Health Act lasts for 28 days, and its main purpose is to assess a patient in hospital (although it does also permit treatment). S.3 MHA lasts for a maximum of 6 months, and is for the purpose of treatment.

Statistics show a general increase in the use of compulsory detention between 2016-17 and 2017-18. Detentions under both S.2 and S.3 have increased.

In the year 2016-17 there was a total of 34,137 admissions under S.2, while in the years 2017-18 there were 37,408. While this shows an increase of 9% over the previous year, it does not approach the peak in the year 2015-16, when detentions under S.2 amounted to 40,063.

In the year 2016-17 there were 21,361 detentions under S.3, while in the years 2017-18 there were 23,073. This shows an increase of 7.5% over the previous year, but still it does not approach the peak in the year 2015-16, when detentions under S.3 amounted to 28,147.

Digging deeper into these statistics, 11,296 of the S.3 detentions followed previous detention under S.2 This indicates that 30% of people detained under S.2 were subsequently detained under S.3 for a longer period of inpatient treatment.

The Code of Practice states that S.2:

should only be used if the full extent of the nature and degree of a patient’s condition is unclear, or there is a need to carry out an initial in-patient assessment in order to formulate a treatment plan, or to reach a judgement about whether the patient will accept treatment on a voluntary basis following admission, or there is a need to carry out a new in-patient assessment in order to re-formulate a treatment plan, or to reach a judgement about whether the patient will accept treatment on a voluntary basis. (14.27)

The Code goes on to say that Section 3 should be used:

if the patient is already detained under section 2, or the nature and current degree of the patient’s mental disorder, the essential elements of the treatment plan to be followed and the likelihood of the patient accepting treatment as an informal patient are already sufficiently established to make it unnecessary to undertake a new assessment under S.2. (14.28)

Despite this guidance, making a choice between S.2 or S.3 is a frequent source of discussion among AMHPs. There are a number of reasons for this.

Some are strictly to do with professional clinical decisions and the imperative to explore least restrictive options. It may be felt, for example, that the shorter detention period of a S.2 is felt to be less restrictive than the 6 months of a S.3.

Some may be more to do with expediency, or more, shall we say, complex issues.

What factors might influence use of S.2 or S.3?

Here are a couple of scenarios. They are fictitious, but describe situations that will be familiar to AMHPs.


It is 22:00 hrs on Friday evening: an out of hours AMHP is asked to assess a patient detained under S.136.Jason is in York, where he was detained by police attempting to climb onto the altar of York Minister claiming to be the Second Coming of Christ.

The Police have established that he normally lives in Cornwall, where he is well known to psychiatric services, has a diagnosis of paranoid schizophrenia, is subject to S.117 aftercare, and recently went missing from the mental health hostel in which he was living.

On assessment, it is clear that Jason is thought disordered, but is unable or unwilling to reveal any information about his medication or mental health care. It is clear that he needs to be in hospital. Unfortunately, the AMHP is unable to contact mental health services in Jason’s area to obtain more information.

Should Jason be detained under S.2 or S.3?

Applying the principles for decision making in the Code of Practice, the AMHP is aware that Jason is well known to his local mental health services, and has in the past been detained under S.3.

But at the same time, the AMHP is unable to confirm this and discuss the situation with Jason’s care team. Because he is so far from home, neither the AMHP nor the doctors assessing him have had any previous acquaintance with the patient.

The AMHP might in these circumstances consider that S.2 is preferable even though Jason’s diagnosis and presumably treatment is well known. It is just that these things are not well known to the assessing team.


Jonathan is a well known patient with a diagnosis of bipolar affective disorder. He has recently stopped taking his mood stabilising medication and his care coordinator reports that he is becoming increasingly manic, spending profligately, not sleeping, is harassing his neighbours, and becoming sexually disinhibited. These are all warning signs of relapse.

An AMHP and two S.12 doctors assess Jonathan at home and conclude that he needs to be detained in hospital for treatment.

The doctors have a dilemma. No hospital bed has been identified prior to the assessment, and the bed managers can give no indication as to how long it would be to identify a hospital.

What should the doctors do?

The difficulty here is that, unlike medical recommendations for S.2, the doctors have to state on a S.3 recommendation the name or names of hospitals where appropriate treatment would be available.

In the real world, where there is a national shortage of psychiatric beds, especially for children and people with learning disabilities, doctors will often make recommendations for S.2 and then leave them with the AMHP. These can then be used at any time within 14 days from the date of the recommendations. The doctors do not have to be involved in another assessment.

But the doctors in Jonathon’s case would not be able to complete their medical recommendations, because they could not name the hospital in which the patient could receive treatment. So they can’t just sign the document and go on their way.

Might they be tempted to find some pretext that might justify detention under S.2 for assessment, rather than S.3 for treatment?

And would that be ethical?

The Nearest Relative

The rights and powers of the Nearest Relative of a patient are important factors that AMHPs have to take into account when considering detention under the MHA.

For a S.2, the NR should at the least be informed that detention has taken place, and should be made aware of their rights to order the discharge of the patient from hospital.

However, for a S.3, it is a legal requirement for the NR to be consulted if at all possible, because if they object, detention under S.3 cannot take place. The only option then for an AMHP is to go to the Courts to have the NR displaced. This can be a time consuming process, and it can take weeks for the courts to make a final decision.

This is where some interesting decisions might be taken to avoid consulting the NR, especially if it is known that they are likely to object to detention under S.3.

There is a body of Case Law relating to the NR and failure to consult them. Sometimes, AMHPs (and ASWs in the past) have got into considerable trouble.

One example is GD v The Managers of the Dennis Scott Unit at Edgware Community Hospital and The London Borough of Barnet, Queen’s Bench Division (Administrative Court), 27th June 2008.

In this case, there were real fears that the patient’s father might hide the patient if it was known that an assessment under the MHA was going to take place. The ASW did not contact the NR before the assessment, and only let him know by leaving a message when the assessment was actually taking place. When the NR returned the call 20 minutes later, the paperwork had already been completed. He then indicated in no unclear terms his feelings about this and his objection.

But the ASW had by then filled in the section of the form indicating that it had been “impracticable” to consult with the NR.

The Judge in the case found that the patient had been illegally detained because the ASW had deliberately failed to make adequate attempts to consult with the NR as he knew that the NR would object.

So an AMHP may be confronted with a dilemma. The AMHP might be clear that a certain patient in the community, who is well known to services with a clear diagnosis, and where it is known what treatment the patient requires, needs to be detained for treatment under S.3.

But the AMHP is also aware that the NR may object, making it impossible to ensure their admission and treatment, at least without having to go to a Judge to have the NR displaced.

So does the AMHP bite the bullet, make efforts to consult, then go through the necessary legal processes if the NR objects?

Even if this might put the patient in danger?

Or does this hypothetical AMHP consider that just maybe they can find some justification for detention under S.2, for assessment, hence avoiding the need to obtain the NR’s consent, and at the same time ensuring the patient’s safety?

The Mental Health Act Review

The recently published review of the Mental Health Act makes many recommendations for changes to existing law. Some of these relate to the use of S.2 and S.3.

The Review is keen to reduce the length of time that a patient can be detained in hospital wherever possible.

For a start, the Review is keen to reduce the use of compulsory detention at all. It is suggesting that the bar for justification of detention should be raised, and even where a patient is detained under S.2, the detention should be reviewed after 14 days, and a decision should then be made to either discharge or detain under S.3: “section 2 should only be used where it is truly necessary to assess someone."

It goes on to say:

Where the AMHP is aware that a person has been subject to detention under section 3 within the last twelve months, an application for detention under section 2 can only be made where there has been a material change in the person’s circumstances since they were previously detained under a section 3. We are also recommending that the Code of Practice makes it clear that section 3, rather than section 2 should be used when a person has already been subject to section 2 within the last twelve months.

At the same time the Review is also recommending a reduction in the initial maximum detention period under S.3 to 3 months from the present 6 months. There would be a further extension period of 3 months, and only after that could a person be detained for 6 months.

I am inclined to the view that, even though the Review’s recommendations have a long way to go before a change in the law might take place, an AMHP should still heed the Review’s opinions, especially as the recommendations are backed up by people’s rights under the Human Rights Act.

Wednesday, 9 January 2019

When is it appropriate to use the MHA when someone is causing a public nuisance?

When I was working in a community mental health team, I was once asked to attend a public meeting regarding a Housing Association tenant. The meeting was arranged following a large number of complaints from tenants of one of the Charwood social housing estates.

It was to be chaired by the Housing Association, with representation from the local District Council and the police. They also wanted someone from the CMHT, as it was thought that the tenant who was the subject of the meeting might have mental health problems.

So I somewhat reluctantly attended as a representative of the CMHT. I was reluctant, because I was not sure what would be expected of me. Having checked the name of the person, who I will call John, on our records, I knew that he had no previous involvement with mental health services.

The hall in the local community centre where the meeting was to be held was packed. I was one of the panel members situated at the front. The others were the local chief inspector and a senior housing officer from the district council. Being faced by several dozen hostile tenants felt quite intimidating, to say the least.

John had not been invited to attend, and was not aware that the meeting was taking place. I only knew that John was male, single, and in his 30’s.

The chairman, the chief officer of the housing association, summarised the reason for the meeting. They had received many complaints about the conduct and behaviour of John in public areas of the estate.

Almost immediately, people started making allegations about him. It appeared that he was often to be seen naked to the waist, swaggering around near the estate shops, brandishing a pair of martial arts nunchuks, and that he often verbally threatened passers by.

Allegations started to be made that he was a paedophile. The chief inspector intervened.

“Could you tell me on what basis you are making these allegations?” he asked.

“Just a few weeks ago he was chasing a 15 year old girl down the street. It’s good job she got away from him. We told the police, but nothing happened,” one of the tenants said.

“Let me put this straight,” the chief inspector said. “I am aware of the incident you are referring to. The person in question was actually running away from the police, who were trying to arrest him. The girl just happened to be in front of him.”

The tenant who had made the allegation looked momentarily deflated. “Yeah, but he’s a menace. He needs to be sorted.”

A woman in the audience, whom I recognised as being a patient of the CMHT, looked at me.

“What’s he doing here?” she demanded. “He must be a nutter. What are you doing about it?”

Both the audience and the other panel members looked expectantly at me.

I was not actually anticipating having to say anything. I was suddenly concerned about breaching confidentiality. But was it a breach to say that someone was not a patient?

“I am just here as a representative of Charwood CMHT,” I said. “I can tell you that he is not one of our patients. I know nothing at all about him, other than what I’ve heard today.”

“Well why don’t you know about him? He obviously needs sectioning,” another of the tenants said.

“Look, we honestly don’t go round looking for people to admit to hospital under the Mental Health Act. In order to be seen by the CMHT, their GP has to make a referral. And that has to be with the consent of the person. We’ve never had a referral for John.”

While the tenants were clearly not satisfied by my response, the chairman steered the discussion to what the housing association could legally do about John in response to the concerns expressed by the tenants, and I was not asked to comment again.

After the meeting, the panel members had a private discussion. I discussed with the chief inspector the potential use of S.136 if John appeared to be mentally disordered and in a public place, which would facilitate a formal MHA assessment.

I was struck in this meeting by two things. One was how people can make assumptions based on misinformation and prejudice. The other was the assumption that someone behaving in an unusual or antisocial manner must by definition be mentally ill.

What happened next?

I’d like to be able to say that John was never heard of by mental health services again.


A few months later John was arrested in a public place in Charwood during the evening. He was armed with a large knife, was stripped to the waist, and was threatening to kill anyone who came near him.

He was taken to Charwood police station and assessed under the MHA by the out of hours AMHP. He was reported to be floridly psychotic and too unwell to give any coherent account of himself. As a consequence of his dangerousness, he was detained under S.2 and admitted to a psychiatric intensive care unit (PICU).

I assessed him again a month later and detained him under S.3.

He remained a patient of the CMHT with a diagnosis of paranoid schizophrenia, and was detained under the MHA several times over the next few years, always after stopping his medication. On the last occasion, he was discharged on a Community Treatment Order.

After being made subject to a CTO, he remained well and did not require any further acute admissions. In fact, when the time came to consider extension of the CTO on two subsequent occasions, he made it clear to me that he liked the security of the CTO and wished to remain on it.

There’s no clear moral to this story. Even though John may have been mentally ill at the time of that public meeting, the anger of the local people did not in itself justify taking action to detain him under the MHA.

It’s often the role of the AMHP to unpick what’s really happening when complaints from members of the public are received. 

But people are allowed to be unusual or eccentric, or even mentally ill, as long as their behaviour is not putting themselves or others in danger.

It was only once John stepped over that line, from being a nuisance to posing a real danger, by possessing an offensive weapon in a public place, that it became appropriate to consider use of the MHA to protect John and the public from the consequences of his actions.