Thursday, 25 May 2017

What’s in Theresa May’s proposed Mental Health Treatment Bill?

No, it's not Cruella DeVil
It was with some surprise on 7th May 2017  that I heard that Theresa May was announcing that she was “pledging to rip up the 1983 Act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

She went on to say: “On my first day in Downing Street last July, I described shortfalls in mental health services as one of the burning injustices in our country. It is abundantly clear to me that the discriminatory use of a law passed more than three decades ago is a key part of the reason for this.

“So today I am pledging to rip up the 1983 act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

It was stated that "vulnerable people are being subject to detention, including in police cells, unnecessarily", and cited the increase in compulsory detention in hospital as a reason for reform.

It was also announced that there would be new safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.

Jeremy Hunt added "If you have a child that has severe mental health problems and you find that that child, instead of getting treated by the NHS ends up in a police cell, that is a terrible thing for the child... but it is also very bad for the police as well - we want to stop that."

Intrigued by these announcements, since Theresa May and the Conservative Government in general had not previously given any indication that they had an interest in introducing completely new mental health legislation, I waited to see what further detail there would be in the Conservative Party Manifesto.

Encouragingly, this new Bill was first mentioned on page 4, where a Britain was described “in which burning injustices are tackled and overcome, with the first new Mental Health Bill for thirty years to put parity of esteem at the heart of treatment and end the stigma of mental illness once and for all.”

But it wasn’t then until page 57 that a Mental Health Bill was referred to again. Beginning with a promise to “address the need for better treatments across the whole spectrum of mental health conditions”, the Manifesto goes on to state: 

“We will also reform outdated laws to ensure that those with mental illness are treated fairly and employers fulfil their responsibilities effectively.

“The current Mental Health Act does not operate as it should: if you are put on a community treatment order it is very difficult to be discharged; sectioning is too often used to detain rather than treat; families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned.

“So we will introduce the first new Mental Health Bill for thirty-five years, putting parity of esteem at the heart of treatment.”

And, er, that’s it. There is no more detail to be found.

My first thought was to wonder why on earth they had decided at this point in time to introduce a new Mental Health Act. My second thought was to wonder how both the Prime Minister and the Health Secretary could display such a large amount of ignorance about legislation, some of it the direct responsibility of the Conservative Government, as well as a lack of understanding about the actual content of existing legislation.

Let’s look at the statements they have so far made.

  • “We will introduce the first new Mental Health Bill for thirty-five years.”

As long ago as 2002 the then Labour Government were promising to introduce a new Mental Health Bill. A first draft was published in June 2002, which among other things contained a controversial proposal that allowed for the detention of people described as having a “dangerous and severe personality disorder (DSPD)”. It also removed a requirement for such patients that treatment “is likely to alleviate or prevent a deterioration" of a patient's condition, which could lead to people with a “diagnosis” of DSPD being detained indefinitely, without having had to have committed any offences supporting their “dangerousness”.

Not surprisingly, as this would almost definitely have breached the Human Rights Act, this part was dropped from future drafts, and the culmination of years of consultation and drafting eventually produced the Mental Health Act 2007, which basically extensively amended the existing Mental Health Act 1983. As well as making changes to comply with the Human Rights Act and to reflect cultural changes (such as recognising same sex partners and civil partnership), this introduced Community Treatment Orders – and Approved Mental Health Professionals. I guess that, on the basis that “if it ain’t broke, don’t fix it” it was considered that a large part of the 1983 Act was still perfectly workable.

So essentially, the current Mental Health Act is 10 years old – not 35 years old (or even 34 years old, since 2017-1983=34). Or even 30 years old. Theresa May and the Conservatives appear to have forgotten the 2007 Act.

  • “A new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

They also appear to have forgotten that the 2007 Act was introduced to make necessary changes to mental health legislation to incorporate changes in case law arising as a result of the necessity to comply with human rights legislation, including discrimination and “unnecessary detention”.

So it seems disingenuous to be suggesting that the 2007 Act does not address this – especially as the Conservative Government were not so long ago keen to abolish the Human Rights Act in any case.

I think AMHPs without exception would consider it insulting to suggest that they habitually detain patients unnecessarily. At the heart of all AMHP practice is the first principle, which is to always seek the least restrictive option.

  • "If you have a child that has severe mental health problems and you find that that child, instead of getting treated by the NHS ends up in a police cell, that is a terrible thing for the child.”

Jeremy Hunt appears to be unaware of the existence of the Policing and Crime Act 2017, which amends Sec.135 and Sec.136 of the Mental Health Act. As well as reducing the maximum period of detention under Sec.135 & Sec.136, this Act also introduces a new Sec.136A, which principally states that “a child may not… be removed to, kept at or taken to a place of safety that is a police station”. It would therefore not only be extremely undesirable for a child under the age of 18 to be detained in a police station, but actually illegal.

The only problem with this is that it has not yet entered statute. This section was due to become law this month – but was delayed because of calling a General Election. While I have heard that there will be plans to enact this in July (assuming the Conservatives are returned to power) I can’t help wondering if it will simply be forgotten once the fallout of the General Election has settled. (Although I am certain that Inspector Michael Brown, OBE, would do his best to ensure that the timetable was adhered to.)

  • New safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.
  • “Sectioning is too often used to detain rather than treat.”

These two statements appear to contradict each other. Capacity has never been an issue when it comes to making decisions under the MHA, and is never actually explicitly mentioned in the MHA. People may be legally detained, and treated, even if they are deemed to have capacity, but are objecting. I can think of circumstances where a capacitous person may need to receive treatment despite their objection – I am not sure that patients would best be served by making this impossible.

I do not even understand what the second statement means. Detention under the MHA is not just in order to treat; Sec.2 is designed to assess, but no-one would be detained simply to hold them without assessment or treatment in hospital.

  • Families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned.”

I am again somewhat perplexed by the meaning of this statement. If we are talking about children, then parents are an integral part of the assessment process, and I find it inconceivable, and probably illegal, that a parent with parental responsibility would not be deeply involved in decisions relating to their child.

We must also remember that children can be deemed to have competence in regard to making decisions about their treatment, and that it may contravene their right to privacy in certain circumstances to consult with relatives.

But in any case, the Nearest Relative of a child, with certain well-defined exceptions designed to safeguard the rights of the patient, would by law need to be informed if the patient was detained.

I cannot conclude this analysis without pointing out that at least some of the complaints that Theresa May makes about the deficiencies of the current MHA are not due to any deficiency in the existing legislation, but rather due to cutbacks in services – a loss of a significant percentage of inpatient mental health beds over the last 7 years, as well as the loss of thousands of frontline mental health professionals. Coincidentally, all this during the time the the Conservatives have been in power

This has been compounded by the severe cutbacks local authorities have had to make in providing social care. This includes the withdrawal of funding for voluntary organisations that provide services for people with mental health problems, as well as the rationing of social care that has been a consequence of the Care Act.

You can’t cut back on beds and services that can provide alternatives to hospital admission, and still expect the Mental Health Act to continue to function efficiently.

Of course, Theresa May does recognise that any change to the existing mental health law would be subject to a process of consultation with interested parties. This consultation took over 5 years when the 2007 Act was being drafted. So there may be no change to existing law within the lifetime of the next Parliament.

Of course, a lot depends on what happens on 8th June.

Saturday, 1 April 2017

Nooks & Crannies of the Mental Health Act 1: The Farne Islands (Removal of Lunatics to England & Wales) Regulations 1927

The Mental Health Act has been evolving over centuries. Indeed, the Victorian Lunacy Acts in the 1800’s contained recognisable germs of the current MHA (an example being Sec.136, the origins of which can be found in legislation written over 150 years ago).

The Mental Treatment Act 1930 first introduced the idea of treatment for people with mental disorder, while the MHA 1959 introduced the concept of the Mental Welfare Officer, whose role provided an independent check on doctors having complete control of the detention process.
The MHA 1983 further refined this process of legal protection for people being detained against their will in psychiatric hospitals, and the 2007 Act enshrined subsequent changes in human rights legislation into mental health law.

These Acts, and accompanying regulations and statutory instruments, tended to amend, consolidate or even abolish previous legislation. Sometimes, however, anomalies survived.

The smaller islands of the British Isles are a case in point. The Isle of Man, for instance, with a population of around 81,000, has its own Mental Health Act, which still has Approved Social Workers rather than AMHPs, and Jersey in the Channel Islands its own Mental Health Law going back to 1969.

Part VI of the Mental Health Act consists of almost unreadably tedious regulations covering the removal of mental health patients from one part of the British Isles to another.

But what is almost unknown (and not mentioned at all in the Jones’ Mental Health Act Manual) is the existence of regulations relating to mentally disordered persons in the Farne Islands. This piece of legislation appears to have been forgotten by legislators, with the result that The Farne Islands (Removal of Lunatics to England & Wales) Regulations 1927 was never repealed, and is not even mentioned in Part VI.

The Farne Islands are a group of small islands off the coast of Northumberland in Northern England. They are now owned by the National Trust.

Mainly inhabited by a vast range of seabirds, including puffins, as well as a large colony of seals, in the early part of the century there was still a community of people living permanently on the islands.

This small but tight-knitted group, known disparagingly as “Fannies” by the mainlanders, eked a precarious living by farming seaweed, milking seals to make seal cheese, and taking eggs and any seabirds they could catch using finely woven nets thrown off the top of the guano covered cliffs.
"Fannies" preparing to catch puffins

The Farne Island regulations were created as a result of a notorious incident in 1927 known in the press of the time as the Wellington King.

An aristocrat known as the Honourable Petrus Wimple-Burgoyne developed the delusion that the Farne Islands were the remains of the lost continent of Atlantis, and that as his family originated from Atlantis, he was the rightful king. He started to petition King George VI, challenging him to the throne of the Farne Islands, and demanding that he be invested in Westminster Abbey.

He became such a nuisance that he was eventually committed to a lunatic asylum under the Lunacy Act 1890. However, he got wind of this, and before the ambulance arrived he fled to the Northumberland coast, where he hired a boat at Seahouses and just after dawn on 1st April 1927 he reached the Farne Islands.

He was able to convince the rather credulous and inbred “Fannies” that he was their rightful king, and in a ceremony involving the smearing of the rather oily seal cheese over his entire upper body, an india rubber wellington boot was forced over his head, crowning him the “Wellington King” of the Farne Islands.
The Wellington King

When it was discovered where he was, efforts were immediately commenced to recover him to the mainland. It was at this point that it was realised that there was no legal instrument that could be invoked to lawfully remove him.

An emergency session of Parliament was convened, and so was born the Farne Islands (Removal of Lunatics to England & Wales) Regulations.

Within days, a Naval Frigate sailed to the Farne Islands and a dozen sailors alighted on the island of Inner Farne to apprehend him. Despite the sailors being pelted mercilessly with puffin eggs and foul-smelling lumps of seal cheese by the loyal “Fannies”, the so-called “Wellington King” was seized, and returned to England, where he was placed in St Bernard’s Hospital in Southall, Middlesex.

To this day, the Honourable Petrus Wimple-Burgoyne is the only person for whom this regulation has been used.

Wednesday, 1 February 2017

Anorexia and the Interface Between the Mental Health Act and the Mental Capacity Act: Recent Case Law

There is a growing body of case law relating to the treatment of patients with severe anorexia nervosa. I have discussed previous cases several times on this blog. They include the case of E, the case of X, and the case of W. There has recently been a fourth, the case of Z.

While all have been heard in the Court of Protection, and all involve issues relating to capacity to make decisions about treatment, they also illustrate the extent to which the Mental Health Act and the Mental Capacity Act intersect. They highlight the limitations the Mental Health Act may have when dealing with very complex and often intractable mental disorders like anorexia nervosa.

Z is a 46 year old woman. She has had anorexia nervosa since the age of 15 years. The Judge notes: “despite the fact that she has been admitted to hospital on innumerable occasions and received many different treatments, outpatient support and therapeutic input, it is impossible to identify any time in her history where Z has made anything which could be characterised as a sustainable recovery in terms of her weight gain.”

Her physical health has suffered, to the extent that she has osteoporosis “to such a severe degree that her entire skeleton is compromised in a way that would otherwise only be seen in the very elderly”. In October 2016, her Body Mass Index was 9.6 (normal is between 19-25), and in November 2016 she was detained under Sec.3 MHA.

The Trust bringing the case, Cheshire and Wirral Partnership NHS Foundation Trust, sought a declaration that Z lacked the capacity to make decisions about her care and treatment. This was given in the middle of December 2016, and the Judge concluded that there were three options open to the treating team. These were:
  • “to continue treatment under section 3 of the Mental Health Act 1983 which would involve detention in hospital and naso-gastric feeding under physical restraint until Z’s weight and physical health improved to the point where it would be possible to discharge her.”
  • “continuation of feeding, again under section 3 of the Mental Health Act 1983, involving detention in hospital, but the feeding to take place under chemical sedation”
  • To “be discharged from the framework of the Mental Health Act 1983 and treated, if she is prepared to engage at all, only on a voluntary basis.”

The Judge concluded that the third option should be followed, and that Z would therefore be discharged from detention under Sec.3 MHA and would return to live with her parents.

He noted: “Accordingly, the declarations and orders I make are pursuant to the Mental Capacity Act 2005.  That said, I consider that given this application is heard in the Court of Protection, sitting in the High Court, I would have had the scope to make the declarations under the Inherent Jurisdiction.”

Of other three cases, E, X & W, the Judge reached the same conclusion in the cases of X and W, which was essentially for there to be no forced treatment. Only in the case of E did the Judge advocate continued treatment, and I understand that treatment continued for E under Sec.3 of the Mental Health Act.

So, out of four cases of women with severe anorexia nervosa (and often with complicating conditions such as alcohol dependency and emotionally unstable personality disorder) three were essentially allowed to die. All the cases were deemed to lack the capacity to make decisions about their treatment, and it was concluded that these decisions were in their best interests.

What do these cases have to say about anorexia nervosa, and about the Mental Health Act?

Anorexia nervosa is an insidious and pernicious disorder. It is notoriously hard to treat. Mortality is high, whatever treatment is offered. For patients with anorexia serious enough to require inpatient treatment, less than half experience remission of symptoms after 12 years.

When patients lose weight to the extent that their life is endangered, treatment has to consist initially of ensuring that they gain weight and receive adequate nutrition. This often has to take the form of nasogastric feeding, in other words, inserting nutrition directly into the stomach using a tube. This is an exceptionally intrusive process, and often restraint of various forms has to be used. This is difficult and distressing not just for the patient, but for the doctors and nurses having to administer the treatment.

If the patient refuses to accept lifesaving treatment, the Mental Health Act (Sec.3, for treatment) may have to be used.

In the longer term, the talking treatments, such as cognitive behavioural therapy and cognitive analytic therapy, have the best outcomes. But these therapies can only be given with the consent and cooperation of the patient, and when they are in a reasonable state of physical health.

The Judge in the case of Z stated that “decisions of this nature impose very considerable intellectual and emotional burden on all those involved.” The majority of the decisions in these cases recognised that the clinicians involved with these women had reached a point at which the risks of continuing treatment were not only outweighing the risks of ceasing treatment, but were also causing unjustifiable distress to the patients and their relatives.

I am aware of little equivalent case law relating to other psychiatric disorders. I can only think of the case of C in 2015, a woman diagnosed with narcissistic personality disorder who did not wish to continue treatment for the effects of a serious overdose because she had “lost her sparkle”. There was considerable publicity about this case at the time.

It appears that anorexia nervosa is almost unique in producing case law relating to the ending of treatment for the effects of mental disorder. These judgments seem to suggest that there are times when the Mental Health Act should not be used indiscriminately to preserve and prolong life, that when all possible treatments for a mental disorder are exhausted, at least when it comes to anorexia nervosa, such patients should be allowed to die. The treatment becomes worse than the condition, the treatment becomes oppressive and disproportionate, and in breach of the patient’s human rights.

AMHP’s will undoubtedly continue to be asked to make applications for treatment under the MHA for people with anorexia nervosa, but it is important to weigh up the likelihood that proposed treatment is likely to have the desired effect, and will not merely serve to prolong the patient’s suffering and possibly be in breach of the Human Rights Act.

AMHPs will have to continue to be mindful of the psychiatric opinions informing their decisions. But it may be that referral to the Court of Protection for opinions relating to ongoing invasive treatment should sometimes be considered in preference to the Mental Health Act.

Either way, these are not easy decisions to make.

Tuesday, 10 January 2017

The Policing and Crime Act 2017 – Implications for the Mental Health Act and AMHPs

The Policing and Crime Bill is likely to become law in April 2017. So what, you may ask? This is surely about policing and crime. What does it have to do with the Mental Health Act?

Well, it’s true that this new piece of legislation covers a wide range of matters, including police complaints procedures, the Police and Criminal Evidence Act, and Maritime enforcement, but it is also concerned with changes to police powers, and this is where there are significant implications for AMHPs (and the police, of course).

For the second time in 3 years, the Mental Health Act 1983 will have some significant amendments. The last time this happened was with the Care Act 2014, which among other things, amended Sec.117. Now, Sections 81-84 of the Police and Crime Act will significantly amend Sec.135 and Sec.136 MHA, which of course relate to police powers relating to people with mental disorders.

Reduction of period of detention
One of the most significant changes is to reduce the period of detention of people under both Sec.135, which is concerned with entering the premises of mentally disordered people in order to be assessed and removed to a place of safety, and Sec.136, which is concerned with police powers to remove people from public places.

Ever since the Mental Health Act 1983 came into force 32 years ago, the maximum period of detention has been 72 hours. This will be cut to 24 hours. In exceptional circumstances a medical practitioner can extend this by another 12 hours to a maximum of 36 hours. But that’s it.

This seems likely to create significant problems for mental health services who, despite Theresa May’s recent promises to improve services for people with mental health problems, are grossly underfunded, and likely to remain so, whatever the Prime Minister says.

It has become a not uncommon situation for there to be considerable delays in finding a bed for a patient who has been assessed under Sec.136. While it has always been exceptional for Sec.136 to last the maximum allowed time of 72 hours, it’s far from unknown for a Sec.136 to last for more than 24 hours, especially if there has been a delay in assessment, for instance because a patient was unfit for interview through drink or drugs, or if a patient was detained out of normal working hours.

What will happen if a bed has still not been found after 24 hours? Mental Health Trusts are simply going to have to ensure that sufficient beds are available.

“Public places” and “places of safety”
There are also some intriguing changes and clarifications to the existing MHA. For example, under the amended Sec.136, a police officer may “if the person is already at a place of safety within the meaning of that section, keep the person at that place”.

The new amendments also clarify the meaning of “public place” for the purposes of the Mental Health Act. While it does not exactly define what a public place is, it specifies that a police officer can exercise their powers under Sec.136 “at any place”, the explicit exceptions being “any house, flat or room where that person, or any other person, is living,” or “any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.”

This might mean that there will be fewer arguments about what may constitute a public place, since powers will essentially be able to be exercised “at any place”. However, it also leaves the question of what constitutes a “place of safety” rather vague.

It would appear that someone could be detained in an A&E department of a hospital, or in a care home, for example, and the police officer can then keep them there in order to be assessed, as these might constitute places of safety.

Children detained under Sec.136
The Policing and Crime Act inserts a new Sec.136A, which principally states that “a child may not… be removed to, kept at or taken to a place of safety that is a police station.”

It would therefore not only be extremely undesirable for a child under the age of 18 to be detained in a police station, but actually illegal.

This is a logical development of the longstanding intention that nobody detained under Sec.136 should be detained in police cells, and most places now have sufficient designated Sec.136 suites to make it extremely unlikely for anyone, adult or child, to be detained elsewhere.

The most recent statistics for use of Sec.136, taken from Uses of the Mental Health Act: Annual Statistics, 2015/16 (November 2016), show a drastic reduction in the use of police cells. Let’s hope a consequence is that police cells are never used for anyone detained under Sec.136 in future.

Police consultation before using Sec.136
One final interesting amendment is that before exercising powers under Sec.136 a police officer “if it is practicable to do so” must consult a doctor, a registered nurse, an AMHP, or “a person of a description specified in regulations made by the Secretary of State” whoever that may be.

It is difficult to see quite how “practicable” this consultation might be, since a police officer may be dealing with a very fraught crisis situation with a mentally disordered person in a very public place, such as a town centre or a multi storey car park, and may have to take drastic action immediately to prevent serious harm.

Many police forces now have some sort of triaging process, for instance, having a mental health nurse physically based in a police control room, so it may be not be totally impracticable to gain instant advice, but it is likely to be a lot more difficult to get into contact with a doctor or AMHP within an acceptable time scale.

As these changes are almost certainly going to be in force within 3 months, mental health services are going to have to have robust contingency plans in place pretty quickly.

Thursday, 1 December 2016

Ask the AMHP: Problems with Sec.117 and Autistic Spectrum Disorders

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

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

My postbag continues to contain frequent requests for advice from parents of mentally disordered people who are encountering problems in receiving appropriate aftercare, and are then being charged for it despite being subject to Sec.117 aftercare. They often find themselves caught in funding arguments between the local authority and the Clinical Commissioning Group (CCG).

Here are a couple of cases which also involve issues concerning Autistic Spectrum Disorders and mental illness.

A parent writes:
My daughter has learning disabilities and was admitted to an assessment and treatment unit under Sec. 2, followed by a Sec.3. She was discharged onto a CTO after a long drawn out battle trying to get the CCG and the local authority to agree who was going to pay for her continuing care.

She lived in residential accommodation before the section but it was not appropriate for her to return due to the severity of her needs. She had been diagnosed with Bi-polar disorder, and subsequently whilst in hospital on the Sec.3 she was assessed as being on the Autistic Spectrum and it was agreed she would be best supported by a provider with specialist knowledge around Autism.

She has been settled in her placement, but after a financial assessment by the local authority she has to pay nearly £90 per week towards her care costs. She has Sec.117 aftercare funding and the CCG pay 50% of her fees and the local authority pay 50% of her fees (then bill her for the £90 per week) After a recent DoLS application the BIA has questioned why she is paying for her care at all when she has Sec.117 funding. They are adamant my daughter should not be paying at all. My daughter had to be housed out of area as there was no provision to meet her needs in her home area. They have not argued this.

Can you help?

The Masked AMHP replies:
There can be no doubt. As she is subject to Sec.117 aftercare she should not be paying anything towards her identified mental health needs. She should be entitled to a full rebate of what she has been charged already.

The parent:
Would it make a difference that the CCG argued that her learning  disability is not related to her mental health issues? So they should only pay for half?

The Masked AMHP:
A learning disability is a mental disorder within the meaning of the Mental Health Act. Therefore needs arising from the learning disability are covered under Sec.117.  They're really trying it on!

Another parent writes:
My son is 30 and lives in supported accommodation that is funded by the local authority where he was living when he was sectioned under the 1983 MHA (many times, mostly under Section 3).  He was in and out of hospital for several years before being discharged 3 years ago.

Since he left home to go to college when he was just 19 his mental health was very poor and he was admitted to hospital with psychosis on numerous occasions.  He was put on anti-psychotic medication and eventually, when discharged from hospital, he was on a CTO.  The medication made things worse for him. The CTO is now lifted and he is now off medication.

For many years we thought our son was autistic (Asperger's) and that this was at the heart of his distress.  Eventually he was diagnosed with Autism Level 1. This diagnosis has really helped him turn his life round but we have had to pay for the psychological and day-to-day specialist support for him as the supported accommodation that he has been living in for the last 3 years is for people with mental health problems only and is very inadequate.

We have now found excellent supported housing that is Asperger's specific that will support our son to gain the life skills he lacks.  It will only cost a little bit more than his current care package (24 hours a week) but the CMHT and LA social worker are saying that the Housing Panel is not likely to support the move as the recent Placement Review recommended our son be stepped down to 'independent living'.  We have said we can afford the top-up on the fee difference.

The social worker is now implying that our son no longer has a mental health condition, that he is autistic and therefore should be assessed by the Adult Social Care team and won't be eligible for funding for supported housing.  Our son is very bright and articulate but this masks so much of his vulnerability and fragility.  The social worker is now intimating that he is no longer entitled to Section 117 aftercare funding.  This would mean he would be expected to live alone without support (unless we pay for it) and all that might mean for his safety and fragile mental health.

We see a continuum from our son's autism to his previous poor mental health - the social worker just sees CMHT/LA dividing lines and overstretched budgets.  How can we protect our son's Section 117 funding at least until he is receives the right support to enable him to live independently successfully?
The Masked AMHP replies:
It's difficult to give a definitive reply to your question. You say your son has experienced periods of psychosis in the past, but that he is no longer prescribed any medication. However, if he is still seeing a psychiatrist and/or has a care coordinator in a mental health team, then he is still receiving aftercare, and therefore would continue to be entitled to Sec.117 aftercare.

He could only be discharged from Sec.117 aftercare if he was no longer receiving any services for mental disorder, and was no longer considered to be suffering from a mental disorder within the meaning of the Mental Health Act. However, the definition of mental disorder is broad, and would include autism or autistic spectrum disorder.

A difficulty would be the difference between what you would like for your son, and what the local authority and mental health services consider he requires to meet his mental health needs.

If your son is still under a mental health team, it might be worth getting a NHS psychiatrist to review his diagnosis. If he has been discharged from the mental health team, then his GP could refer him for a NHS diagnostic assessment.

But in any case, autism is still a mental disorder.

The parent:
Thank you for your very detailed response.  It is helpful to understand that autism (albeit Aspergers) is considered to be a mental disorder (eating problems, anxiety and OCD are part of my son's life too).  My son hasn't yet been discharged from the mental health team but the pressures on the LA social care budget are such that he would be an easy one to pick off and no longer fund.  You are right it seems that there is now a difference of opinion about what we feel our son needs and what the CMHT and LA feel - painful.

Thursday, 17 November 2016

Can an AMHP discharge a patient detained under Sec 136 without a doctor?

An AMHP emailed me to ask “whether a person can still be detained on a Sec.136 once they have been seen by an AMHP (without a doctor) and assessed as not requiring detention”. A discussion followed, which raised a number of questions concerning the AMHP’s powers of discharge, and whether or not Sec.136 MHA might be in breach of the Human Rights Act in some circumstances.

I think this is worth exploring in more detail, as it has implications for the extent that an AMHP can exercise their legal powers and duties.

The Reference Guide states that AMHPs must have “appropriate competence in dealing with people who are suffering from mental disorder.” (para30.8). These areas of competence consist of:
  • application of knowledge of mental disorder, and the legal and policy framework
  • application of skills in  working in partnership, and making and communicating informed decisions

Some AMHPs are mental health nurses, whose basic training and day to day experience will include identification of different mental disorders and knowledge of medication used to treat mental disorder. However, all AMHPs (and the majority are social workers) have an intensive period of training, including practical work placements, to teach them the competencies required to practice effectively.

This means that AMHPs are able to get a fairly clear idea of whether or not a patient may be suffering from a mental disorder.

When an AMHP receives a request to assess a patient under the Mental Health Act, they are acting autonomously, and will make their own decisions about how, or even if, to conduct the assessment. It is not uncommon for an AMHP to have a “look see” first, before deciding whether or not to involve doctors.

I have often gone out with a member of the Crisis Team, or the patient’s care coordinator, in order to make an initial assessment and explore the “least restrictive option”, as we are required to do as AMHPs. Alternatives to compulsory admission might include engaging with the Crisis Team for home treatment, or informal admission.

If these alternatives are viable, then there is no need to proceed further with the assessment. A formal assessment, involving two doctors, would only take place if there appeared no other alternative.

As the AMHP has their “AMHP hat” on, they are acting within their powers and duties under the MHA, and that initial assessment, in my view, counts as a Mental Health Act assessment; certainly as a proportionate response to a request.

As the final decision about whether to detain or not lies with the AMHP, if an AMHP concludes that they would not detain a patient, even with two medical recommendations, then what would be the point of involving two doctors, which would also incur a cost of around £185 per medical practitioner?

This is certainly an approach to be considered when responding to a request for a patient at home. But what about someone detained by police under Sec.136 who has been taken to a place of safety? Wouldn’t the same logic apply?

Well, the Mental Health Act would appear to be fairly clear about this. Sec.136(2) states that a person detained under Sec.136 and taken to a place of safety “may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care.”(my italics)

That would appear to be pretty unequivocal, especially when read in conjunction with The Code of Practice, para16.25:

“The purpose of removing a person to a place of safety … is only to enable the person to be examined by a doctor and interviewed by an AMHP, so that the necessary arrangements can be made for the person’s care and treatment.” (my italics)

But then the Code also says:

“Although AMHPs act on behalf of a local authority, they cannot be told by the local authority or anyone else whether or not to make an application. They must exercise their own judgement, based on social and medical evidence, when deciding whether to apply for a patient to be detained under the Act. The role of AMHPs is to provide an independent decision about whether or not there are alternatives to detention under the Act, bringing a social perspective to bear on their decision, and taking account of the least restrictive option and maximising independence guiding
principle .”(para14.52)

If an AMHP is expected to “exercise their own judgment” then shouldn’t that include the ability to discharge a Sec.136, with or without a doctor being involved?

Richard Jones applies the Winterwerp judgment (Winterwerp v Netherlands (1979)2EHRR387 ECHR) to detention under Sec.136. He observes: “Except in emergency cases” an individual “should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’”.

He notes that the European Court of Human Rights said that it “cannot be inferred from the Winterwerp judgment that [a medical report on the patient] must in all conceivable cases be obtained before rather than after the confinement of a person on the ground of unsoundness of mind” (X v United Kingdom (1981) 4EHRR188).

You might think that this provides a legal justification for an AMHP to dispense with a doctor if an AMHP sees the patient and is convinced that they are not mentally disordered. In such a situation, would it not breach their human rights to prolong their detention?

But Jones is not advocating that an AMHP can protect a person’s human rights in this situation, as he then goes on to say that “a medical assessment should take place promptly after the person’s arrival at the place of safety”. AMHPs do not figure in this scenario.

So it would appear that an AMHP alone cannot discharge a patient from Sec.136. This power is, however, conferred on a medical practitioner. The Code states:

“If a doctor assesses the person and concludes that the person is not suffering from a mental disorder then the person must be discharged, even if not seen by an AMHP.(para16.50)

Ultimately, it is not the role of the AMHP to identify whether or not a patient is suffering from a mental disorder. That can only be done by a medical practitioner.

While “there is no obligation on an AMHP … to make an application for admission just because the statutory criteria are met” (CoP para14.103), an AMHP must still ensure that they have fulfilled the requirements of Sec.136, by arranging for at least one doctor to be involved in the assessment.

But what’s this on the Mental Health Cop blog?

In his advice to police on Sec.136, he concludes with the following statement:

“But whatever situation you’re wrestling with, it comes back to three things –
  1. Has a Doctor said, “This person is not mentally disordered within the meaning of the Mental Health Act”?
  2. Has an Approved Mental Health Professional made necessary arrangements for that person’s treatment or care?
  3. Has 72 hours expired since their arrival at the first place of safety to which they were taken after detention?

If the answer to any of them is “Yes”, then s136 has legally ended; if the answer is “No”, then it is still running.”

I’m afraid that, in this instance, the eminent Inspector has erred, as an AMHP cannot  in law make “necessary arrangements for that person’s treatment or care” without having first involved a doctor in the process.

Thursday, 27 October 2016

How difficult can it be to get an ambulance to convey a detained patient to hospital?

I’m going to tell you a horrifying, but also a tedious and frustrating, true story. It’s all about trying to get an ambulance to transport an elderly man with dementia detained under the Mental Health Act from a care home to a hospital.

The fact that the hospital is a private hospital 100 miles away from the care home should be immaterial…

What ought to happen when a person, any person, is assessed under the Mental Health Act follows a particular routine.
1. Arrangements for the patient to be assessed are made. This includes notifying the bed managers that a bed may be required, and arranging for two doctors, at least one of whom must be Sec.12 approved, to attend with the AMHP.
2.The assessment takes place.
3, A hospital is identified that will accept the patient.
4. Arrangements are made for the patient to be conveyed to the hospital. An ambulance is usually the most suitable mode of transport.
5, The patient is conveyed to hospital and admitted.

The chronic nationwide shortage of psychiatric hospital beds, in our area especially for people with dementia, is now routinely meaning that the assessment process is suspended after step 2. It can be days, or even weeks, before a bed can be found and admission arranged. It is now very common in our area for this particular private hospital to be used almost as an additional ward for our local dementia patients.

This hospital often visits the potential patient before making a final decision, which can take several days in itself, and if the patient is fortunate enough to be considered suitable, the hospital requires that they be admitted before 13:00 hrs on the day of admission.

But even once a bed is identified and the patient can be formally detained under the MHA, we have been encountering problems with the local ambulance trust.

Where a patient is in a care home, and the receiving hospital requires admission before 13:00 hrs, it makes sense to order the ambulance in advance, the previous day.

That’s where our AMHP hub first encountered problems.

It was my job as the duty Practice Consultant (see my previous blog post for an explanation of what a PC is) to ring the ambulance service and order the ambulance.

However, I was told in very clear terms that the ambulance service was an emergency service, and could not be booked in advance. They could only dispatch an ambulance on the day, using the “traffic light” protocol agreed between the AMHP service and the ambulance service.

Briefly, this arrangement prioritises the response times. A “red light” means that the patient is seriously distressed, the situation is critical, and they need to be taken to hospital as soon as possible. The ambulance will try to arrive within 30 minutes.

An “amber light” means that the patient is less distressed, and the ambulance will endeavour to arrive within two hours, while a “green light” means that the patient is settled and in a safe place, and the ambulance will then arrive within four hours of  being requested.

Generally, this system works well, although even for “red light” requests, ambulances can still be diverted to more urgent calls, such as cardiac arrests. I can’t complain about this.

I pointed out that, as it was a “green light” request, if the AMHP service made the request at 08:45 hrs, at the start of the working day, if the ambulance did not arrive for 4 hours, then it would be impossible for the ambulance to get the patient to the hospital before the admission deadline, as the journey would take at least two hours.

But the ambulance service were not to be swayed, as the request was not within what they were contracted to provide.

In the end, my PC colleague who was on duty the following day had to ring the ambulance service from home at around 07:30 hrs in order to ensure that the ambulance would arrive in time to transport the patient the two hour journey to the hospital. In the event, the ambulance arrived at 10:45 hrs and dropped off the patient at the receiving hospital 5 minutes before the admission deadline.

This was clearly an untenable situation, so our AMHP hub manager spent several days negotiating with the relevant Clinical Commissioning Group (CCG), who actually make the contracts with the ambulance trust, as to how this sort of situation could be avoided in future.

By the time I was duty PC the next week, an agreement had been reached.

The CCG contracts manager gave instructions that we were to ring a different number when wishing to arrange an ambulance in these circumstances. This was the number of the patients booking line. These ambulances were part of the local ambulance trust, but this particular service allowed routine booking of ambulances to transport patients in a range of situations.

As it happened, another patient was in identical circumstances, so it was again my job to arrange for an ambulance to convey him to the same hospital by 13:00 hrs the following day.

I rang the number, explained that the CCG contracts manager had told us to do this, and requested an ambulance for 09:00 the next day.

The call handler was non-plussed. He went off to consult with several different people during the course of the call, before finally giving me not one but three reasons why they could not or would not convey this patient.

Reason #1 Their service was not contracted to convey patients detained under the Mental Health Act.

Reason #2 As both the hospital and the care home were private, this meant that the patient was not an NHS patient, and they would not in any case transport such a patient. (The fact that the hospital was being paid by the mental health trust/CCG, and hence the NHS, to receive and treat the patient appeared to make no difference).

Reason #3 Even though their contract was with a CCG that explicitly covered the town in which the patient resided (it was in the name of the CCG), they didn’t actually, really, cover that area, as it was in another county.

So I rang the CCG’s contracts manager and explained the difficulty I was having. She suggested I spoke to the contracts performance manager in the mental health trust.

I spoke to this officer, who admitted that there appeared to be a gap in the contract, and told me to leave it with them.

Somewhat to my surprise, an hour or so later I received a phone call from another call handler at the ambulance booking service. He took all the necessary details of the transport request, including his current medication regime, the fact that he was being prescribed lorazepam 4 times a day, and the fact that he was frail and would need wheelchair transfer. It was arranged that the patient would be collected from the care home at 09:00 hrs the following morning. I was even given a booking reference number.

Success at last! Sanity had prevailed!

Ah. An hour later I received a call from the patient ambulance booking manager. They had discovered Reason #4: their service was not contracted to take sedated patients. We would therefore have to make a request tomorrow morning.

So it was again left that my colleague the next day had to make an early morning phone call to the usual ambulance service number.

They initially tried to give a Reason #5 why they could not transport the patient. This was on the grounds that the hospital, being in another county, was outside the area they covered. However, this was withdrawn when it was pointed out that the ambulance trust covered a very large geographical area which explicitly included the county in question.

They didn’t seem to be able to come up with a 6th reason, so eventually an ambulance crew picked the patient up and took him to hospital within the required time scale.

What’s the significance of this in the wider scheme of things?

This sorry failure to meet what would appear to be a straightforward request exemplifies a far deeper problem in the NHS:  privatisation by stealth.

This has been happening gradually for many years. It goes all the way back to Margaret Thatcher’s government in the early 1990’s, which brought in the NHS & Community Care Act 1990. Among other things, this introduced the concept of the purchaser/provider split in the provision of social care, which was explicitly designed to encourage the use of private services. Whereas before, home care was provided in house, the Act required at least 80% of home care to be purchased from private organisations.

In mental health, NHS trusts have been operating under various guises for many years, opening the way, at least in theory, for trusts to compete with each other in an internal market to provide services, while the introduction of clustering and “payment by results” in 2013 made it possible for packages of care and treatment for mental disorders to be “sold off” to private companies prepared to offer specific services. I discuss this in more detail in this blog post.

The Health and Social Care Act 2012 disposed of Primary Care Trusts and replaced them with Clinical Commissioning Groups, supposedly led by clinicians, whose function was to purchase services from NHS Trusts – or indeed, private companies prepared to offer these services. Companies such as Virgin Care have stepped in and provide a range of health services, relieving the NHS of billions of pounds in the process.

Apart from these private health care companies, there is now a well-established internal market within the NHS. While ostensibly this is designed to facilitate provision of services, in practice this does not necessarily happen. The example I have given highlights the problems with this artificial division of budgets.

The problems I encountered in obtaining transport for a detained patient are entirely due to this bizarre internal market. The local Ambulance Trust, which is of course part of the NHS, has a range of contracts with the Clinical Commissioning Groups within its area.

These contracts are not necessarily to provide a blanket ambulance service, but are written in such a way that very specific services are offered, and if a request does not fit with the wording of the contract, then the service will not be offered.

It has long been established that the local ambulance trust will not convey patients out of its area, and will not convey patients requiring restraint. The AMHP service then has to rely on private ambulance services, at huge expense to the CCGs.

Another local example of what would appear to be a nonsensical interpretation of a contract is that the local ambulance service will convey a patient detained under Sec.135(1) to a place of safety for the purpose of assessment, but if the patient is then detained  under the MHA and needs to be conveyed to a hospital, this transfer is not covered by the contract.

It is difficult to understand how this system is of benefit to patients, and how it might save the NHS money.