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.

Friday, 18 May 2018

Hallucinations and the Mental Health Act

I’ve been reading the late Oliver Sacks’ excellent book Hallucinations. Not surprisingly, in view of the book’s title, it consists of a wide range of accounts of different medical conditions that can produce hallucinations or hallucinatory experiences. As Sacks says: “In the popular imagination hallucinatory voices are almost synonymous with schizophrenia – a great misconception, for most people who do hear voices are not schizophrenic.”

In fact, most of the conditions he writes about do not amount to mental illness at all. One such example is Charles Bonnet Syndrome, where sufferers can experience very vivid hallucinations.

For them, the condition is a result of blindness, and Sacks discusses a range of conditions or situations that produce hallucinations of various types as a result of sensory deprivation of various kinds, ranging from physical states such as blindness to self imposed states of sensory deprivation such as immersion in salt tanks, tanks of warm salt water, where one can lie in a state of suspension and with the entire absence of external stimuli.

It appears that when the conscious brain has nothing to do, it can create often complex and elaborate, but completely unreal, visual and auditory environments.

One of the crucial distinctions between hallucinations arising from physical disease and those experienced by people with psychosis is that the people experiencing these phenomena have complete insight and recognise them not to be real, and tend not have any accompanying delusions.

One of Sacks’ conclusions appears to be that hallucinations can be experienced by anyone, as a normal part of life experience, whether as a result of some physical process, such as migraine or epilepsy, or as an entirely normal part of the functioning of the brain, such as hypnogogic hallucinations (hearing or seeing something when about to fall asleep) or sleep paralysis, which can occur when someone is waking up from sleep, during which time the person can believe themselves to be awake when in fact they are still asleep.

The fact that experiencing hallucinations does not invariably mean that someone is mentally ill is an important factor to consider when assessing people’s mental health, whether under the Mental Health Act, or as a standard mental health assessment.

When I worked in a community mental health team, we conducted standard assessments which included the question “Have you ever heard a voice when there has been no-one around?” Probably around 15% of those I asked answered that they did, but hardly any of them appeared to be psychotic.

One woman told me that every day, as she walked with her child to school, she would hear a voice calling her name at a particular point on the journey. I asked her what she did about it.

“Oh,” she said, “I decided to take a different route to school, and I never heard the voice again.”

I was once asked to assess a woman who was severely disabled by multiple sclerosis. Although living with a partner, he went to work and she was alone for much of the day, and unable to move about or do much for herself. She reported to the GP that her day was spent in the company of film and TV celebrities, who would visit her and entertain her.

After interviewing her, I concluded that her mind was compensating for the loneliness and isolation and general lack of external stimulation, by populating her empty home with people she had seen on TV.

She did not need detention in hospital or antipsychotic medication. She just needed useful daytime occupation, which could be provided through involvement with support workers, day centres and other social activities outside the home.

I have certainly had experiences that could be regarded as hallucinations. On occasion, I have heard a voice just as I was about to fall asleep, which has jerked me awake.

And once I woke up in the middle of the night when a full moon was shining into the room. I could not recognise where I was and sleepily got out of bed to look out of the window. The angles and shadows of the moonlight outside made me think that I was seeing a completely unfamiliar and unknown environment.

At that point my partner woke up and asked me what I was doing. “I don’t know where we are,” I replied.

She got up and also looked out of the window, and for a short time we shared the belief that we had somehow been transported as we slept to a completely different world. Eventually, one of us found a light switch, and the light from the bulb instantly oriented us to the familiar room.

I always try to be open minded when I am listening to patients telling me about their experiences. Sometimes what someone says may seem so unlikely as to be a sign of mental disorder, but which later turns out to be true.

An example is Edna, an lady in her late 80’s who used to live in Charwood in an old semi-detached flint cottage. She complained to her doctor that she kept hearing strange noises in her house and feared that the house was haunted. Concerned that she was experiencing auditory hallucinations, the doctor arranged for an older people’s mental health nurse to visit her.

Edna was insistent that she was indeed hearing strange noises. She knew they were in the house, but could not identify where they were coming from. However, as no untoward sounds were apparent while the nurse was there, the nurse became convinced that the only explanation was that Edna had dementia. He persuaded her to agree to be admitted to hospital for further assessment.

A few days later, the nurse went to her house to collect some personal effects for her. While there, he was startled to hear inexplicable noises emanating from somewhere within the cottage, when he knew there was no-one else in the property.

It eventually transpired that the two cottages both had cellars, although Edna’s cellar was not accessible from her house. The next door neighbour had knocked his own cellar through into the lady’s cellar, and had been converting it into additional accommodation for himself.

Edna had been hearing her neighbour’s d-i-y activities directly beneath her feet.

So when I am making an assessment as to whether or not someone is experiencing mental illness, I do not automatically discount reports of hearing voices or noises, or even seeing things that others don’t see as evidence of disorder. I will make efforts to check for myself to exclude more mundane explanations before getting out the pink papers.

Tuesday, 8 May 2018

Mental Health Act Review – Interim Report


The Government arranged for a review of the current Mental Health Act back in October 2017.

The review’s terms of reference were “to make recommendations for improvement in relation to rising detention rates, racial disparities in detention, and concerns that the act is out of step with a modern mental health system.”

Having taken submissions and recommendations for changes from service users, professionals and professional bodies, this interim report was published at the beginning of May 2018.

This is still an ongoing review, which will make concrete recommendations later in the year. However, judging from the tone of this report, I am very encouraged that the eventual recommendations will reflect changes in the approach to human rights, and will make sensible and achievable changes.

The report states from the beginning that “the aspiration is to increase informal admissions and/or alternatives to admission, rather than compulsory admissions, in keeping with the original intentions of modern mental health legislation, first laid out in the 1959 MHA.”

It is worth remembering that much of the current Act, despite the extensive amendments from the 2007 MHA, the Health & Social Care Act 2012, the Care Act 2014, most recently the Policing and Crime Act 2017, still contains a lot of the original MHA from 1959.

It is also worth remembering that the MHA 1959 replaced the Lunacy Act 1890. It is incredible now to think that a Victorian law governed the management of people with mental health problems well into the middle of the 20th Century.

One of the largest conceptual changes was to introduce the concept of a social perspective informing assessments for compulsory detention in hospital. Rather than doctors having virtual free rein to incarcerate mentally ill and learning disabled patients in asylums, often for many years, the 1959 Act only allowed doctors to make recommendations. The final decision was to be made by a “mental welfare officer”, a non medical role that eventually evolved into the “approved social worker” role created by the 1983 Act. This role morphed again into that of the “approved mental health professional”.

Having had all three of those titles, I can speak from personal experience of the impact that that change in approach had on decisions about whether or not to admit people to psychiatric hospital. While MWO’s had minimal training, the ASW role in the early years required a compulsory training course and the necessity to pass an examination in order to practice. Today, the AMHP not only has to undergo months of training, but also has to prove their ongoing competence to practice.

The interim report makes some cogent observations, one being that “we have seen unprecedented investment in talking therapies for those with common mental health problems, and an upsurge of general interest in mental health”. It goes on to say:

“Most of this new interest is at one end of the spectrum, with far less attention given to those at the other end of the spectrum, those with the most severe forms of mental illness. Yet those with the most severe forms of mental illness have the greatest needs, and continue to be the most neglected and discriminated against. Furthermore, they are also the group who are the most likely to be subject to the influence and powers of the MHA.”

The report is clear that “we remain committed to the goal we set out when we began – namely to make the MHA work better for everyone. We know that much of what is required to achieve these goals, of a mental health service that provides dignified and therapeutic care for those with the most severe of mental illnesses, is not going to be achieved by legislative means alone. We know that issues such as resources and staffing are fundamental to these objectives.”

The report lays out 10 explicit aims to improve mental health care.

Service users and carers being treated with dignity and respect
Greater autonomy for people subject to mental health legislation
Greater access to services for those that need them
Making the least restrictive option appropriate to a person’s circumstances the default option
Improved service user and carer wellbeing
Service users and carers supported to be fully involved in treatment as possible
Reduced disparities between groups with protected characteristics
Greater focus on rights-based approaches
Reduced harm and improved safety for all
Professionals better able to deliver their expertise 

I cannot find anything there with which to take issue.

From an AMHP perspective, I am also heartened with the comment that “Many service users had a positive or largely positive view that [detention under the MHA] was the right course of action, with some service users, on reflection, commenting that being detained saved their life and prevented suicide. However this view was not universal and an almost equal number did not believe detention had been the right approach for them.”

The Review identifies a total of 18 key topics requiring particular attention. These are divided into four areas: before detention, during detention, leaving hospital, and issues for specific groups. I will not analyse all of these, as this post would risk being a long as the Interim Report itself.

Rising numbers of detentions

The Review sees it as a priority to address the rising numbers of detentions under the MHA, noting that this has grown steadily for each of the last 10 years. (Is it coincidental that this period largely covers the time since the Coalition, and then the Conservative Government, have been in power? I can only speculate.)

It goes on to say that:

“We have been told people are not receiving the care they need in the community, and which might have prevented them from reaching crisis. We have also been told that a reduction in acute bed numbers has made the use of the MHA more important to get someone a bed when needed.”

It is encouraging that the Review is listening to the legitimate concerns of those with both a professional and personal interest in mental health legislation.

The Review also makes observations relating to changes in the perception and handling of risk:

“The decision to detain, either at the stage of initial admission or at the point of renewal, is primarily based on risk. A theme identified by many stakeholders has been the emphasis on risk and the differing risk thresholds that are applied when making decisions about using the MHA or continuing to detain a service user when a renewal is due.”

One interesting suggestion is that sections 2 & 3 should be combined into a single section of shorter duration. I certainly posited some time ago on this blog that there was no rational reason for a S.3 to last for 6 months.

The Police Role

The Report notes that:

“The police recognise that helping people with mental health issues is a part of their core business. The police are key partners in the community-based model of mental health care. This is particularly true in cases of immediate responses to people in mental health crisis.”

It continues by recognising that the police should not be placed in a position of having to make up for gaps in NHS provision, and also that it should be a matter of principle that those under arrest who have been assessed as requiring detention in hospital “should be treated within the NHS rather than a police cell.”

The Nearest Relative Role

I am pleased to see that attention has been given to changing the NR role. This is directly in accordance with the recommendations of the three main professional bodies representing those involved in administering MHA legislation: The Royal College of Psychiatrists, the Law Society, and the British Association of Social Workers, all of whom have submitted that the current NR role does not reflect current needs.

“At present, this provision and the statutory order of preference of the nearest relative can result in inappropriate people automatically being selected to be the nearest relative. AMHPs have highlighted the complexity of identifying the correct nearest relative. “

The favourite model appears to be a system whereby a patient can appoint their own person to take on the role, in a way similar to the Scottish MH legislation. In principle, I would welcome this, although I can also see that the legislative framework to ensure this best meets the needs of the patient could be fraught with problems.

A similar situation to that under the Mental Capacity Act, where someone can in advance appoint a lasting power of attorney to manage their affairs were they to lose capacity might work, but how many people would foresee this need, and appoint an NR in advance?

Community Treatment Orders

These were introduced by the changes in 2007, and have been somewhat controversial. The Report says:

“About 5,000 people are currently on a CTO at any time, considerably more than the number estimated by the government prior to their introduction. The latest MHA statistics show that ‘Black or Black British’ people are nine times more likely to be given a CTO than white people.”

The submissions by BASW and the Law Society expressed clear misgivings about this legislation, the Law Society asking “are they in practice a crude mechanism for the chronic bed management issues in hospitals?” BASW suggested that they should either be abolished, or “the criteria for their use strengthened so that they only apply to individuals with clear and evident history of rapid and repeated relapses,” although the RCPsych preferred CTOs to be retained, although with some modifications.

The Report was clear that:

“We are not persuaded that CTOs should remain in their current form. In reforming or replacing them, we will start by ensuring that there is clarity of purpose, and also that future provisions do not reproduce the current overrepresentation of some BAME groups, particularly men of black African and Caribbean descent.”

Issues for particular groups

The Report has clearly identified issues and problems associated with specific groups, not least those from black and minority ethnic communities, who are disproportionately represented in statistics relating to detention under S.2, S.3, and S.136, as well as CTOs.
It correctly identifies problems with hospital beds for children and young people, who are often placed in hospitals far from home. It also flags up the anomalies associated with the interface between different legislation, including the MHA, the Mental Capacity Act and children’s legislation.

The Report identifies “wider questions about whether or not learning disabilities and autism are conditions that are treatable under the MHA definition of treatability”, the authors observing that “we have been struck by the significant level of disagreement about the inclusion of learning disability and autism in the MHA and the subsequent role of the interaction with the MHA to provide the most appropriate care for their needs.”

BASW has gone so far as to suggest that “it is inhumane for learning disabled people to be detained in hospitals because their behaviour cannot be managed in the community”, also stating that “formal detention of learning disabled people in hospital where there is evidence of ‘seriously irresponsible or abnormally aggressive’ behaviour is inappropriate”, and because “psychiatric hospitals can exacerbate the distress of these service users, their needs should be met in the community”.

It appears clear that those in charge of this Review are committed to ensuring as far as possible that the needs of people subject to the MHA are met, and that their consideration of their human rights should be paramount. I am very encouraged by this.

The final recommendations of the Review will likely be far from the end of the process of revision, however.

In the late 1990’s a review of the MHA 1983 was mooted, and several draft Bills were published, which culminated not in a completely new Act, but merely extensive revisions to the existing Act in 2007. On the way, some of the more contentious proposals were jettisoned, such as the concept of a power to detain indefinitely someone deemed to have a dangerous and untreatable personality disorder, even if they had not actually committed any offence.

And of course, the present Government has other legislative priorities, which may indefinitely postpone a new Mental Health Act, especially if it is likely to cost more money.