Sunday, 15 January 2012

Criminal Mental Health Acts

Part IX of the Mental Health Act creates a number of offences relating to practice under the Act and to people with mental disorder. Some have greater implications (and usage) than others.

Sec.127 relates to the ill-treatment of people with mental disorder. It is an extremely singificant provision. It makes it an offence for staff or managers of hospitals and care homes “to ill-treat or wilfully to neglect” anyone receiving treatment for mental disorder in that hospital or care home, either as an inpatient or as an outpatient. It is also an offence for “any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)”.

This has a broad application – it is intended to protect anyone with a mental disorder, whether in institutional care, or living in their own home, which would include people with mental illness, as well as people with learning disability and older people with dementia. They do not ever have needed to have been subject to the Mental Health Act. The penalty for this offence can be up to 5 years imprisonment, and/or an unlimited fine.

Although this has been in the Mental Health Act since 1983, it appears that it was not used until 2007. It is reported that Liudas Poderis was the first person to be prosecuted under Sec.127. Mr Poderis was a care worker in a nursing home in Wilmslow, Cheshire. In November 2006 he attempted to suffocate an elderly man with dementia by placing a plastic bag over his head. This was witnessed by another care worker. In August 2007 he received a prison sentence.

Prosecution under this Section has since become much more prevalent. The police appeared to have become more aware of this offence since Poderis’ conviction, as in 2008 Tanya Paterson, the manager of a care home for people with learning disabilities, was found guilty of ill treatment of a 21-year-old woman “with an intellectual age of between five and eight by bullying, shouting and swearing at her, putting her outside in the rain and pushing her about in a hallway. The charges relate to a seven-day period in May 2007.” It was reported at the time that she had “initially been charged with counts of assault but they were replaced with the allegation under s.127 (1)”.

Since then, dozens of people, mainly staff in care homes and hospitals, have been successfully prosecuted for the ill-treatment and neglect of vulnerable mentally disordered people under this section.

Sec.126 relates to forgery and false statements. This section makes it an offence to forge or to deliberately make false statements in Mental Health Act forms such as applications under Sec.2, 3 or 4, and medical recommendations. It is also an offence to knowingly possess or hold such a false document. The maximum penalty for this offence is 2 years imprisonment and/or an unlimited fine.

I suppose that examples of falsehoods on these documents could include such things as stating on Form A6 (Application by an AMHP for admission for treatment) that you have consulted with the patient’s nearest relative when you haven’t, or even signing the form which among other things states that you have interviewed the patient, when in fact you haven’t.

It’s worth saying that inadvertent errors, such as putting the wrong name or address of the patient on the form, while possibly affecting the validity and legality of the paperwork, would not in itself amount to an offence under Sec.126.

So how often has Sec.126 been used? I haven’t the faintest idea. In the many years in which I have practiced under the 1983 Act (since 1983, if you’re asking), I have never in my personal experience come across any occasion in which I have been aware of an ASW or AMHP knowingly and deliberately falsifying an application for detention. I have also been unable to find any record of any prosecutions nationally under this section (although perhaps they may be blog readers out there who know differently).

The closest to a prosecution of an ASW/AMHP that I have discovered, is the cases outlined in my post When Nearest Relatives Object. These were both civil cases brought before the High Court. In one the ASW had made an application under Sec.3 despite knowing that the nearest relative had objected to the application. In the other, again relating to a Sec.3 application, the ASW had stated that it had been “impracticable” to consult with the nearest relative, when in fact he had avoided contacting the nearest relative, knowing full well that the nearest relative would object to the application. However, in neither case was a prosecution brought under Sec.126.

Sec.128 relates to “Assisting patients to absent themselves without leave, etc”. This makes it an offence to assist a patient detained under Sec.2, 3, or 4 (or Guardianship) to “to absent himself without leave”, as well as harbouring a detained patient who is absent without leave. The maximum penalty is 2 years imprisonment and/or an unlimited fine.

There is a current “live” example of a prosecution under this section. In October 2011 a patient detained in a medium secure unit for people with learning difficulties and challenging behaviour in North Suffolk managed to escape, and was missing for several days before being recovered.

In December 2011, at a hearing at Ipswich Crown Court, Rebecca Martin, who was a member of staff at the unit, pleaded guilty to assisting the patient to escape. The case was adjourned until the end of January 2012 for sentencing. It is reported that the judge told Martin that she had pleaded guilty to an extremely serious offence. “It is highly likely you will receive a custodial sentence. It is an appalling breach of trust when someone aids and abets someone who is suffering from a psychiatric illness to escape from lawful custody.” (Eastern Daily Press 15.12.11.)

Sec.129 relates to obstruction. Among other things, this section states:
“(1) Any person who without reasonable cause—
(a) refuses to allow the inspection of any premises; or
(b) refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act or to give access to any person so authorised; or…
(d) otherwise obstructs any such person in the exercise of his functions,
shall be guilty of an offence.”

“(2) … any person who insists on being present when required to withdraw by a person authorised by or under this Act to interview or examine a person in private shall be guilty of an offence.”

Anyone found guilty of these offences can receive a prison sentence of up to 3 months, and/or a fine.

What this means is that potentially AMHP’s have powers to order the arrest of people who are obstructing them in the execution of their duties under the MHA. I wonder how many police officers are aware of the powers under this section?

How many times have AMHP’s found themselves in the position of having to persuade a relative to allow them into their house so that they can assess someone under the MHA? On how many occasions have AMHP’s found relatives or other interested parties interfering with or impeding their efforts to interview a patient “in a suitable manner”? And yet how often has anyone been prosecuted under this section? Again, I am not aware of any such prosecution.

It is not generally in the nature of AMHP’s to use coercion in such a blatant way. AMHP’s usually try to get round such problems through negotiation. I know that, when confronted with such difficulties, I have usually been able to persuade the person to cooperate sufficiently to be able to discharge my legal duties.

It is a Section I have always been aware of in the back of my mind, but have never take advantage of. Even when AMHP’s are physically assaulted, they can be very reluctant to make a formal complaint.

(Digression: Although I have been physically assaulted on a handful of occasions during my social work career, some of which I have recounted in my posts on “Assault and Battery”, I have only once made a formal complaint. This was an occasion when one of my service users had physically abused her child. I had to accompany the child protection social worker so that the service user could give an account of the incident, and so that the social worker could tell her what action was being taken.

I could immediately tell that the service user was extremely angry and was potentially dangerous. The child protection social worker, however, seemed oblivious to this. I tried to warn her that we should leave, but she continued to go through her set agenda, oblivious to the increasing fury of the child’s mother.

Eventually, I took the social worker firmly by the arm and tried to lead her down the hallway and out of the door. The child’s mother, however, had other plans, and tried to block our way. As I pushed my way past her, and made a break for the door, she drop kicked me, striking my buttock. Hard.

On the advice of a team manager, I gave a full statement to the police, and even endured having to drop my pants while a female police officer took a photograph of my injured buttock. The service user was arrested and interviewed. She received a caution.)

While we’re discussing the whole issue of offences, I should mention Sec.139, “Protection for acts done in pursuance of this Act”. This provides valuable protection for AMHP’s and others against civil or criminal proceedings while undertaking their lawful duties, unless “the act was done in bad faith or without reasonable care”. This does mean that honest mistakes, or even incompetence, are protected from civil or criminal action as long as the actions were not done in bad faith. It’s worth knowing.

Sunday, 8 January 2012

The Mental Health Act: A Lightning Tour

The Mental Health Act 1983 could conceivably be compared to a department store (at least, I’ve conceived it). There are 10 Parts to the Act, just like there are different floors in a department store, of varying importance and relevance to AMHP practice. As a bit of a MHA train spotter, I have tried to read all of the Act, even the really boring bits – and there are plenty of them – just so that you don’t have to.

Each Part contains different aspects of Mental Health law – just like a department store, if a department store contained law instead of goods.

Bear with me. Let’s see how it runs.

Part I could be compared to the foyer of a department store. It’s by far the smallest part of the Act, and consists of a short and sweet introduction defining mental disorder (which since the changes in the 2007 Act is now defined as “any disorder or disability of the mind”), as well as a useful reminder that people with learning difficulties are largely excluded from the Act.

Once you’ve negotiated the foyer, we enter Part II, which contains the bread and butter matters of most concern to AMHP’s and patients. It’s a bit like Harrod’s main food hall – bustling with people, with a lot of activity going on, and a lot of transactions taking place. Part II is predominantly concerned with the powers and duties defined in the Mental Health Act – these of course relate mainly to detention under Sec.2, 3, or 4, Guardianship, and more recently Supervised Community Treatment. In fact, probably less than 25% of the Mental Health Act impacts on AMHP practice on a day to day basis. AMHP’s will therefore spend much of their professional time with issues relating to Part II.

The lift then takes us to Part III -- although this is an important part of the Act, it is not necessarily directly of relevance to AMHP’s , unless they work in a forensic setting, as it relates mainly to the powers of criminal courts to detain mentally disordered offenders.

Next up is Part IV, the medical floor – the equivalent of the orthopaedic bed and surgical appliance department (or maybe not) -- concerned with Consent to Treatment, which is predominantly to do with the strictly medical aspects of the MHA. It includes directions relating to Electro-convulsive Therapy (ECT) and other treatments such as “any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue”. While psychosurgery was far from uncommon in the 1950’s and 1960’s, and I have in my earlier years working with people with mental illness come across patients with leucotomy scars on their foreheads, I am not sure that any such procedures are still in use.

The lift doors open next on Part V, which concerns itself with Mental Health Review Tribunals, while Part VI is a dim and murky floor, as it gets into seriously arcane and convoluted territory, relating to “Removal and Return of Patients within the UK”. It contains the rules relating to transfers and extractions of patients between England, Scotland, Wales and Northern Ireland – as well as the Channel Islands and the Isle of Man.

Section 86 appears to stray into Roswell UFO territory, as it refers to “Removal of aliens”. Unfortunately, this does not relate to transfer arrangements for ET back to his home planet, but to patients who are non-British nationals and “the conveyance of the patient to his destination in that country or territory and for his detention in any place or on board any ship or aircraft until his arrival at any specified port or place in any such country or territory”.

Of course, AMHP’s really don’t need to know any of this stuff – until, that is, a patient who has absconded from Jersey turns up in Llanelli.

Part VIII relates to the “Miscellaneous Functions of Local Authorities and the Secretary of State”, perhaps comparable to the lingerie department, since it clothes the Act in some of the necessary accoutrements that make the Act work. Among other things, it establishes that “a local social services authority may approve a person to act as an approved mental health professional for the purposes of this Act.” Sec.115 gives an AMHP the important power to “enter and inspect any premises (other than a hospital) in which a mentally disordered patient is living, if he has reasonable cause to believe that the patient is not under proper care.” It also includes Sec.117 and the duty to provide aftercare.

Part IX created a number of offences relating directly to practice under the MHA and to people with mental disorders within the meaning of the Act.

Part X, the very top of the department store, along with the roof garden, contains everything that doesn’t fit on any of the other floors, being called “Miscellaneous and Supplementary”. It’s a bit of a rag bag, containing the new rules relating to Independent Mental Health Advocates, as well as the essential Sec.131, which establishes the principal of the supremacy of informal admission (“Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or registered establishment in pursuance of such arrangements after he has ceased to be so liable to be detained.”)

Part X also refers to the duties of Hospital Managers (including the withholding of “postal packets”), as well as the important Sec.135 (warrants to search for and remove patients) and Sec.136 (police powers relating to mentally disordered persons in public places). It also contains Sec.141, relating to mentally disordered MP’s, which I covered in my last post.

If you’re still reading this post, you’re probably wondering what happened to Part VII – why didn’t the lift stop at that floor?

Well, there’s a simple answer, which is that there is no longer any Part VII. It used to contain the rules relating to the Court of Protection, but it was repealed in its entirety by the Mental Capacity Act 2005.

When I first started to work on this post, I was intending to devote it to Part IX, relating to offences, but decided that it was necessary to put it into the context of the Act as a whole.

Next time, then, I will be taking a closer look at the implications of Part IX. Wouldn’t you just love to get obstructive relatives arrested when you’re trying to undertake an assessment under the MHA in a person’s home? Maybe you can.

Thursday, 5 January 2012

The Masked AMHP makes it into the Guardian -- again!

Here is the link to a piece the Masked AMHP has had published in the Guardian Social Care Network section of its website today. You can find the article here.

Monday, 2 January 2012

How To Section Your MP

Since I wrote this, Sec.141 was repealed by the Mental Health Discrimination Act 2013. Section 1 of the Mental Health Discrimination Act 2013, which repealed section 141 of the 1983 Act, came into force at the end of April 2013. I am leaving this post on the Blog as a matter of historical curiosity.

Members of Parliament are not the same as you or me when it comes to the Mental Health Act. MP’s have their very own Section of the MHA – Sec.141. This states that:

Where a member of the House of Commons is authorised to be detained … on the ground … that he is suffering from mental disorder, it shall be the duty of the court, authority or person on whose order or application, and of any registered medical practitioner upon whose recommendation or certificate, the detention was authorised, and of the person in charge of the hospital or other place in which the member is authorised to be detained, to notify the Speaker of the House of Commons that the detention has been authorised.

This roughly means that an AMHP who finds themselves in the position of having to detain an MP (or a Member of the Welsh or Northern Ireland Assembly or Scottish Parliament) under Sec.2, 3 or 4 has to notify the Speaker of the House of Commons of the action taken.

This then sets off a chain of events: the Speaker instructs two Psychiatrists to examine the MP and provide a report stating “whether the member is suffering from mental disorder and is authorised to be detained”. Once that has been established, if the MP is still detained under the MHA after 6 months (which includes sections of Part III of the Act relating to offenders, eg Sec.37), two Psychiatrists again have to examine him or her and furnish a further report. The Speaker shall then “forthwith lay both reports before the House of Commons, and thereupon the seat of the member shall become vacant.”

In other words, if an MP is unlucky enough to be sectioned for at least 6 months, he or she will automatically lose their seat.

You might think this discriminates against an MP who becomes mentally unwell. The Royal College of Psychiatrists would agree with you. In 2009 they pointed out that “there are no provisions to remove MPs suffering from physical illnesses which stop them from carrying out their duties and responsibilities for the same length of time. Furthermore, if the MP lacks capacity and is detained for a period of 6 months using the authority of the Mental Capacity Act, he or she will not automatically lose their seat.” The RCP recommended that the MHA be amended to remove all the parts of this section beyond the requirement to notify the Speaker. This has not yet happened.

However, before you lobby Parliament about this injustice, which may indeed contravene other legislation, including the Human Rights Act and the Equality Act 2010, this provision, which was first made law in the 1959 MHA, according to Parliament itself, has never been used.

In fact, there is only one known instance of an MP being removed from their seat on the basis of mental disorder – and that was in August 1916, when the Liberal MP Dr Charles Leach became a victim of the Lunacy (Vacating of Seats) Act 1886 (which was eventually replaced by the provisions of the 1959 MHA) on the basis of “unsoundness of mind.”

David McKie wrote an article about this case in the Guardian (Bedlam on the benches, Guardian, 12.07.07.). Dr Leach, who had been a Nonconformist minister, first became an MP in 1910 at the age of 60. He apparently became mentally unwell in 1915, and by August 1916 he was removed from the House of Commons.

Although the precise nature of Dr Leach’s illness appears to be unknown, McKie states: “At the outset of the First World War he had volunteered, though approaching 70, to serve as a nonconformist chaplain at the front. It seems to have been this that brought on his breakdown.”