Wednesday, 23 March 2011

When Detained Patients Appeal – Part III: Trevor and the Tribunal

It appears that I have not been discreet enough. Since my last post, my AMHP student has discovered my identity as The Masked AMHP. I guess that wearing my glasses over the mask wasn't enough after all. I don't think the cowboy hat helped either. Or the rawhide chaps.

Anyway, on to my humiliating experience at Trevor's Tribunal.

Trevor was in his early 20’s. He had been involved with psychiatric services for 4 years. He had spent a good deal of that time detained under Sec.2 or Sec.3 of the MHA in a range of hospitals.

Trevor was very complex. He had not so much a dual diagnosis as a triple diagnosis. He had a history of abuse of drugs, had acquired a diagnosis of paranoid schizophrenia during his frequent hospital stays – and had a psychopathic personality disorder.

He had a serious history of assaults and threats to his parents and to professionals, especially nurses. This began during his first admission. While detained under Sec.3 on Bluebell Ward he had hidden in his room behind the door with the lights out, waiting for a nurse to come looking for him. The female nurse entered the room, and he attempted to strangle her with a ligature – in this case, a tie he had managed to hide. Had she not been able to set off her panic alarm, he could have killed her.

Somewhat surprisingly, he was not charged with an offence, but was instead transferred to a medium secure unit, where one evening while playing a game of table tennis with another nurse, he calmly reached over to get his coffee, and without warning threw the hot drink straight into the nurse’s face, causing serious scalding.

The longer I worked with Trevor, the harder I found him to like.

He regularly appealed against detention during his hospital spells, and an appeal was pending against detention in this particular hospital. The day after this incident I visited him in order to write my social circumstances report. He appeared somewhat the worse for wear, with some fresh contusions on his face, and he was complaining of a sprained wrist. He wished to make a complaint against the staff for excessive restraint.

“After I threw the coffee,” he told me calmly, with the hint of a smile on his face, “the staff used excessive control and restraint. They didn’t need to grab me. I just stood back and put my hands up. I expected them to escort me to the seclusion room. I wasn’t going to struggle.”

It is possible that staff were overzealous in restraining him. However, in view of his history (he had also held his GP at knife point on another occasion that led to his detention under the MHA) and what he had done out of the blue the previous evening, it is quite possible that the staff were frankly terrified of him and weren’t about to take any more risks.

The main thing I learned from his account of this incident was that Trevor knew exactly what he was doing. He had not been told to scald the nurse by a voice. He had not had any delusional beliefs about the nurse. He had just decided to do it for the sheer hell of it, having learned that being a detained patient absolved him of responsibility for his actions.

I wrote several social circumstances reports for Trevor over a number of years, and was responsible for detaining him under the MHA on a couple of occasions. The last time was somewhat unusual. Before the 2007 Act came into force, the application form for Sec.3 required the Approved Social Worker (the predecessor to the AMHP) to state the nature of the mental disorder that required treatment. There was a space in which to enter: “mental illness, mental impairment, severe mental impairment, psychopathic disorder (whichever of these is appropriate)”. For the only time, I inserted both “mental illness” and “psychopathic disorder”.

He had been an informal patient for a period of time, and had been stretching the boundaries of acceptable behaviour for some weeks. We were reluctant to use the MHA again, but following an assessment by the local forensic consultant psychiatrist, who had been prepared to make a formal diagnosis of psychopathic disorder and recommended that he should be admitted to a specialist unit, we assessed him again. During the assessment, his room was searched and a bag containing large shards of glass which he had taken out of a skip during unescorted ground leave was found in a drawer. He was just too dangerous.

Trevor was transferred again to a medium secure unit, and again appealed against detention. While there, he had unexpectedly suffered from a seizure and had been admitted to a local general hospital. While there, he took a syringe from a nurse and darted them in the face with it. Again, having played the detained patient card, he was not arrested or charged with an offence. He was instead transferred to another secure unit.

I attended the Appeal Tribunal at this new secure unit, which was a long way from Charwood. Trevor had only been there for a few weeks, and the consultant there, although knowing his history, had found him to be compliant and fairly agreeable. I was the only person at the Tribunal who had known him over an extended period of time.

We had been looking for a specialist unit that would be able to treat the psychopathic aspect of Trevor’s mental disorder. Just before the tribunal, we had heard that a suitable unit had accepted him. I had also heard that funding had been agreed for this specialist (and eye-wateringly expensive) placement.

I had spent a considerable time preparing the report. I had interviewed Trevor’s parents, who were frankly terrified of him, since they had on a many occasions borne the brunt of his violent and unpredictable behaviour. They had told me that they were no longer able to provide a home for him, and were in full agreement with our plans to admit him to a specialist unit. I included this in my report.

I also included a detailed account of Trevor’s history of dangerousness and of the numerous and frankly disastrous attempts that had been made to manage him in the community. He had been tried in hostels, in supported accommodation, and in his own flat. Regardless of the level of support provided, he had invariably alienated his neighbours, had threatened support staff, had done his best to avoid medication, except for the illegal sort, and had invariably ended up in a police cell being assessed under the Mental Health Act.

I concluded my report: “While dangerous and unpredictable outbursts remain a feature of Trevor’s behaviour, combined with an unwillingness to cooperate with community staff to reduce risk and relapse, Trevor would continue to be an unacceptable risk to members of the public and those professionals attempting to help him, and further incidents of violence could lead to even more restrictive measures needing to be taken. He is fortunate that the incidents against the person outlined in this report were not referred to the police. For these reasons, I do not consider that it is appropriate to discharge him from compulsory detention at this time”.

Trevor’s solicitor presented Trevor’s case to the Tribunal. He wished to challenge the grounds for detention, and cross examined the consultant at some length. He made much of the fact that this particular consultant had not been witness to any of the unpredictable and dangerous behaviour outlined in his history. The consultant, when asked, felt unable to say that Trevor had a mental disorder of a “degree” to justify detention under the MHA, stressing instead the “nature”. Establishing the existence of a mental disorder of a “nature or degree” is a crucial requirement in a Tribunal, otherwise the Tribunal would be legally bound to discharge the patient. However, it is actually only necessary to establish nature or degree, not both.

This particular Tribunal seemed to forget this. Trevor’s solicitor encouraged this oversight. Trevor was on his best behaviour. He certainly did not present as being psychotic. (To be frank, I was never convinced that he had any significant psychosis. But the diagnosis had stuck fast.) He was also being almost embarrassingly polite to the Tribunal members. When dealing with people in positions of power, he usually either ignored them, insulted them, or attempted to assault them. I had at various times experienced all three.

I had the urge to remind the Tribunal of this point of law relating to “nature or degree”, since the consultant was clearly not going to, but I also knew that Tribunals do not expect or welcome interruptions, and like those present to keep quiet unless spoken to.

It came time for me to be examined over my report. The solicitor picked out the point I had made about his parents not wanting him home.

“Mr Masked ASW”, he asked (this was before I was The Masked AMHP), “have you spoken to Trevor’s parents recently?”

As is often the case, the report had been prepared several weeks previously. I said that I had not.

“Then would you be surprised to know that only yesterday Trevor’s parents said that they would be delighted to have their son home to live with them?”

I agreed that I would be very surprised to hear this.

The non-legal member of the Tribunal looked at me closely. “Isn’t it a pity,” he said, “that you did not check before the Tribunal and furnish us with an addendum?”

I had to agree that it was a pity. I was certain that Trevor’s parents had only changed their minds under duress, and because they could not say to his face that they did not want anything further to do with him. But I could not say this to the Tribunal. I was getting the feeling that things were not going well.

Then Trevor had the opportunity to say anything he wanted to say to the Tribunal.

“The Masked ASW,” he said. “I don’t trust him. He’s had it in for me for years. He lies in his reports about me. He doesn’t even try to get the facts right.”

The three Tribunal members looked accusingly at me.

“Trevor certainly doesn’t appear to be suffering from any mental disorder today, does he?” the chairman observed.

I wanted to reply that actually, Trevor was providing ample evidence to the Tribunal of his psychopathic disorder, the existence of which appeared to have been forgotten by them, but again, it was not my place to speak, and I had to remain silent.

After a brief adjournment, Trevor was discharged from Sec.3 with immediate effect.

When I eventually saw a copy of the written adjudication, the Tribunal stressed the lack of evidence of mental illness, and stated as a finding of fact that as the relationship between Trevor and myself had broken down irretrievably, my evidence carried little if any weight.

I felt sick. I felt this was an implicit attack on my professional integrity. It was clear that they had believed Trevor, and therefore they believed that I would act in an unprofessional manner. That really hurt. What hurt even more, was the knowledge that an opportunity had been lost for Trevor to receive treatment that could reduce his risk to others.

The Tribunal had also disregarded crucial aspects of Trevor’s diagnosis and risk factors, and I felt that they had possibly even reached a perverse decision which amounted to a breach of the law. But I had no power to challenge this decision. I brought it up with my superiors, but neither the Mental Health Trust nor the Local Authority had any interest in making a legal challenge, so nothing happened. It was too late anyway.

Trevor went home. 6 weeks later, his parents threw him out. He took a load of drugs, attacked some strangers in the street, and was detained again. And so it went on. Several years down the line, after much more mayhem, Trevor was eventually placed in the specialist unit that had been identified in the first place.

Wednesday, 16 March 2011

When Detained Patients Appeal – Part II

Although many detained patients may find this difficult to believe, psychiatrists and care coordinators do not want to keep people detained under the MHA if it is not clinically justified. People will tend to have their sections removed as soon as the clinical team feels that their mental state has improved enough that they can either be discharged, or will remain as informal patients. Many detained patients will come to recognise the necessity for medication once they have received treatment for a period of time.

Care Coordinators and psychiatrists will also not want to have to write a report for a Tribunal or Managers Hearing, or appear at a Tribunal or Managers Hearing, unless it appears absolutely necessary. If a patient gets as far as the date of the hearing, it is likely to be because they are not yet well enough to recognise the need for treatment.

Norman was a man in his early 50’s. He came from a fairly wealthy middle class family, was educated in a public school, obtained a degree in Chemistry and had a high profile job in a pharmaceutical company for some years before setting up his own consultancy company.

He married and had one son. The couple divorced after 4 years.

He was dissatisfied that custody of his son was given to his wife, and embarked on a series of legal challenges which went all the way to the House of Lords. He insisted on conducting his own cases. He continued to challenge court decisions for over 20 years. He had a reputation as a “vexatious litigant”.

In the previous 10-15 years he had been detained under Sec.2 MHA on several occasions. A tentative diagnosis of bipolar affective disorder was made, but he never spent more than a couple of weeks in hospital. He invariably appealed against detention, and represented himself in the Tribunal. He was invariably discharged from detention, would promptly leave hospital and stop medication.

By the time I became involved with him, Norman had lost all contact with his son, his consultancy had gone into liquidation, he had been evicted from his home for non payment of the mortgage and was living in a caravan on a residential caravan site paid for by his long suffering mother, as he refused to claim benefits.

One day he went to his bank to request a loan in order to continue with his endless appeals over custody of his son (who by now was 30 years old). When the bank manager refused, he attempted to remove the computer from the manager’s desk in lieu of a loan. He was arrested, and detained under Sec.2 MHA by the out of hours AMHP.

On admission to Bluebell Ward, he refused all medication and promptly appealed. I was asked to write the social circumstances report.

When I interviewed him for the report, he was exceptionally arrogant and dismissive. That was not in itself evidence of mental illness, but his grandiose delusions about his life, and his denial of the dire consequences of his futile litigation over the years I did think showed that he was likely to be mentally ill.

I concluded that “it appears likely that Norman has a mental disorder that could be amenable to treatment. However, he has only ever been detained in hospital for short periods of time for assessment, and as far as I can see has never had any treatment which could have a significant impact on mental illness. He does appear to be abnormally fixated on the past perceived injustices relating to custody of the child of the marriage, to the extent that after all this time he is unable to lead anything approaching a normal life. However, at present it is impossible to say whether this obsession is delusional and amounts to a treatable mental illness or is merely an extreme manifestation of despair arising from real injustice, without considerable further assessment, a process which Norman is unlikely to allow voluntarily.”

As usual, Norman represented himself at the Tribunal. He treated the Tribunal as an adversarial court of law, and had huge quantities of documents, none of which had relevance to his appeal, since they were all about his custody battle, but which he attempted to quote from at length. After a few minutes, the chairman had clearly become irritated, and ordered him to stop talking. He asked Norman if he would consider having legal representation.

“I think, with all respect, your honour, that I have more knowledge of legal process than most of the jumped up barristers that inhabit the Inns of Court,” he replied haughtily.

The Chairman, who might possibly have been a barrister, adjourned the Tribunal, insisting that Norman appoint a legal representative.

A week later, the Tribunal reconvened. This time Norman had a solicitor representing him, an eminently reasonable and conscientious man with a real interest in mental disorder, whom I had seen representing many patients in Tribunals and Managers Hearings.

His solicitor attempted to present Norman’s case for discharge from detention. But Norman was not prepared to sit silently, and instead continually interrupted him, correcting him constantly on minor and irrelevant factual points. The Chairman became increasingly irritated. Norman’s solicitor looked increasingly desperate as he saw any chance of his client being discharged evaporating.

Eventually, the Chairman ordered Norman to be quiet, otherwise he would be asked to leave the Tribunal. Norman reluctantly agreed to this, but had to be reminded several times, as he found the impulse to challenge every minor point almost too much to suppress.

“I put it to you, Doctor,” he interrupted at one point while the psychiatrist was being interviewed, “that your entire psychiatric edifice is a farrago of nonsense which is designed only to control the minds of those few remaining independent thinkers in this country in which we find ourselves having to live, in an ever increasing verisimilitude to the terrifying world described in George Orwell’s estimable book 1984.”

This was enough for the Chairman. He asked for Norman to be removed from the room, and the rest of the hearing was conducted in his absence.

He was not discharged from his section, and indeed, following a ward discussion in which it was forcefully argued that, if it was considered that Norman had a serious mental disorder, then he should be treated for it, a week later he was detained under Sec.3 and treatment for bipolar affective disorder was commenced.

He inevitably appealed again, but within a few weeks, as a result of treatment, he began to emerge, as a butterfly emerges from a chrysalis, as a civil, polite and thoughtful man, who could at last see that his behaviour for the last 20 years had been irrational and pointless. He was discharged from detention before his appeal was heard, remained for a further period as an informal patient, and then was discharged to more appropriate accommodation.

Monday, 7 March 2011

When Detained Patients Appeal – Part I

In the last few weeks I’ve been doing some training sessions for AMHP students, which has kept me away from posting on the blog for a while. In fact, I’ve currently got an AMHP trainee on placement with me (although I don’t think they realise their placement is with The Masked AMHP. I’m very discreet.) One of the sessions was on Appeal Tribunals and Managers Hearings. Since I have not written much about appeal hearings in the blog, I thought I would devote this post to the process of appealing against detention under the MHA. Since I am not trying to give a two hour lecture, some of the more complex aspects have been simplified or omitted.

All patients detained under Sec.2 or Sec.3 have a right to appeal against these orders. (Interestingly, these rights of appeal also apply to detention under Sec.4. However, since Sec.4 is (a) not that common, (b) lasts only a maximum of 72 hours, and (c) is generally converted to a Sec.2 within 24 hours of admission, there is such a tiny window of opportunity to appeal that I am personally unaware of any appeals against Sec.4 either being made or actually considered by a Tribunal.) Those subject to Guardianship (Sec.7) and Supervised Community Treatment (Sec.17A) also have similar rights of appeal, although I won’t go into these here. Nor will I go into rights of appeal against Court mental health orders.

Although the principle arbiter is what is known as the 1st Tier Tribunal, Hospital Managers (who are actually unpaid and serve an executive function rather than being employed managers of the hospital) can also convene a hearing, in particular for Sec.3, when a managers hearing can take place much sooner than a Tribunal hearing.

These hearings are independent of the hospital. A hearing of the hospital managers consists of a panel of at least three hospital managers, who are basically people with an interest in mental health issues and who also have the time to devote to these duties. (In practice I'm afraid this tends to mean middle aged women who do not need to work full time).

A 1st Tier Tribunal consists of a panel of three – the chairman, who is a lawyer, the medical member, who is a psychiatrist, and a non-legal member, who is generally a lay person with a particular interest and experience in working with people with mental health problems, such as an AMHP, a nurse, or someone with extensive experience in the voluntary sector. Since 2008 Tribunals have been part of the Judiciary.

People detained under Sec.2 must apply to the Tribunal for discharge within the first 14 days of detention, whereas people detained under Sec. 3 may apply to the Tribunal for discharge at any time in the 6 month period of detention. If their detention continues beyond the first 6 months, they can appeal at any time during the period of renewal.

The other people present at these hearings will be: the patient; the patient’s representative (who is generally a solicitor but may basically be any other person, apart from people also detained under the MHA or who are inpatients in that hospital); the patient’s Consultant Psychiatrist; a hospital nurse involved with the patient’s care; and someone from the community mental health team, who could be a social worker, a community mental health nurse or an occupational therapist. The patient’s nearest relative may also be present, as well as a clerk.

Both a Managers Hearing and a Tribunal Hearing will have access to three reports: a medical report compiled by the patient’s psychiatrist, a nursing report, and a social circumstances report written by someone from the community team.

Both Tribunals and Managers have to be satisfied that the patient is “suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital” for either assessment or treatment. For a Sec.2 they also have to be satisfied that the patient’s detention “is justified in the interests of the patient’s own health or safety or with a view to the protection of others”, while for a Sec.3 they also have to be convinced that “it is necessary for the health or safety of the patient or for the protection of others that the patient should receive such treatment”. Also for Sec.3 they have to be satisfied that appropriate medical treatment is available.

In order to satisfy themselves of these factors, they will use the reports supplied, but will also hear verbal evidence presented by those present. This gives a chance for the patient and his representative to cross examine the other people present and to give their side. They can then decide one of three things: not to discharge the patient, to discharge the patient with immediate effect, or to direct that the patient be discharged at a future date, usually in order for suitable arrangements to be made for their discharge.

In 2008, which is the most recent date I could find for these statistics, 13% of patients whose cases were heard by Tribunal were discharged (a total of 967 out of 7295). It’s worth noting that a further 5862 patients were discharged from detention by their psychiatrists before the date of the hearing – in other words, the patient’s appeal can make their psychiatrist think twice about continuing to keep them on section.

It’s also worth knowing (at least if you are a detained patient) that Tribunals in particular can give the psychiatrist, the nurse, and the social worker, or other community representative, a tough time. They can also adjourn the hearing if they want more information about alternatives to detention, and can order people to attend to provide information or to explain, for example, why appropriate community resources are not available. I have attended Tribunals that have been adjourned so that senior managers in the NHS can be ordered to attend in order to account for why they have been dragging their heels over allowing funding for care homes or nursing placements. It’s amazing how quickly financial decisions can be made in these circumstances.

So that, in 1000 words, is a very brief overview. In the last few years I’ve attended 55 Tribunals and Managers Hearings (and written far more reports). Next time I’ll write about some of those appeals.