Saturday, 7 September 2013

Should AMHP’s be scared about DD v Durham County Council?


I for one was certainly relieved when the Judge in DD v Durham County Council dismissed DD’s attempt to sue AMHP’s for breaching his human rights by not satisfying themselves that a particular hospital placement was suitable for his needs before sectioning him.
 
I wrote more fully about this case in August 2012. The Judge then concluded:
 
“It is obvious that an AMHP is not directly responsible for the medical or other regimes to which a detained person is subjected… An AMHP has certain responsibilities under the Mental Health Act which include recommending a person for detention under s.2 or under s.3. Their responsibilities have to be discharged in the light of all the relevant circumstances of the case, which would include taking into account the assessments of qualified doctors. Their functions do not extend, however, to choosing an institution in which the person concerned is to be detained – still less to researching the available facilities or carrying out a reconnaissance to assess their quality.”
 
But that is unfortunately not the end of the matter. In January 2013, the Court of Appeal ((2013) EWCA Civ 96) heard the claimant’s appeal against this earlier decision, and decided that there was enough of a case that it should be reconsidered.
 
DD’s legal representative contended that “the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty…Under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held. Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps to ensure that the patient's Article 3 and 8 rights were not infringed.”
 
It was submitted that the medical practitioners making the assessment were only responsible for making a recommendation regarding detention; it is therefore the duty of the AMHP under Sec.13(2) to be satisfied that a particular hospital is suitable.
 
Sec.13(2) relates to the AMHP’s duty to interview the patient:
"Before making an application for the admission of a patient to hospital an approved mental health professional shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need."
 
Durham had argued that this duty related to “a” hospital, and not a specific hospital. It was therefore a general duty to establish that the patient needed to be detained in a hospital, not a duty to identify the exact hospital in which the patient needed to be detained.
 
DD’s legal representative, however, maintained that “the AMHP must put himself in a position where proper independent judgment as to the recommendation made by the doctors can be scrutinised and a decision made as to whether what is proposed or recommended by them is the proper place for an assessment or for treatment”.
 
The judge, concluding that “the scope of the duty of an AMHP is a question of law of some importance” therefore decided that the case should be heard and decided in the High Court, recognising the implications of a finding in favour of DD.
 
So what are the implications, if the High Court finds in favour of DD?
 
AMHP’s have certainly always seen the job of finding a bed as being the responsibility of the medical practitioner or the local hospital itself.
 
Although protocols vary, essentially either the local Crisis Team or a designated Bed Manager in the hospital would have the job of arranging for a bed. The AMHP would clearly prefer that that bed should be in the hospital nearest to the patient, but if that is not possible, then the hospital has to find a bed somewhere else. That may be anywhere within the particular Mental Health Trust, or failing that, even further afield. Sometimes beds in private hospitals are arranged. Sometimes these beds can be over a hundred miles away.
 
But the concern has always been to find “a” bed, and where there is a delay, this task is undertaken by others while the AMHP is occupied at the patient’s house.
 
So what would be the implications if an AMHP had to find not just any old bed, but a bed in a ward which was uniquely suitable for the particular patient?
 
Para4.75 of The Code of Practice states:
"If the doctors reach the opinion that the patient needs to be admitted to hospital, it is their responsibility to take the necessary steps to secure a suitable hospital bed. It is not the responsibility of the applicant, unless it has been agreed locally between the LSSA and the relevant NHS bodies that this will be done by any AMHP involved in the assessment. Primary care trusts are responsible for commissioning mental health services to meet the needs of their areas. They should ensure that procedures are in place through which beds can be identified where required."

The Code of Practice gives many examples of things that AMHP’s should be responsible for, eg. arranging for the care of children and pets, and there are certainly enough tasks to keep the AMHP fully occupied without seeking a suitable placement for the patient. How would they do that while they were trying to manage all their other duties?
 
With many Trusts radically reducing the numbers of beds, it is frequently a cause of major delay simply to find a bed at all. It would lead to delays of potentially weeks before the right bed was found. What would happen to the patient in the meantime? What would happen to the AMHP, since they would by definition not be able to delegate that function?
 
The eminent David Hewitt, writing in the Solicitors Journal (Heading down the wrong road) was very dubious about this case. He concluded:
 
"More than 30 years after the current Mental Health Act was introduced, there seems little appetite for the changes they would entail. It is one thing to give a patient his day in court. It would be quite another thing, however, to find that an AMHP, who may be unfamiliar with - and even have no part in the selection of - a hospital, is in some way liable for everything the patient subsequently encounters there.”
 
A judgment in favour of DD would quite simply make the role of the AMHP utterly impossible, and the Mental Health Act completely unworkable.

16 comments:

  1. Just a small comment, but 4.75 of the code of practice states that if detention is required it is the doctor's responsibility to find a suitable bed in a hospital...

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    1. You're quite right, Kelly. I've now amended the post.

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  2. How did this case get an appeal? It is obvious that the implications of a ruling in favour of DD would result in every AMHP handing in their warrant and throwing their hands in the air!!

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  3. Thanks. I think. Scary. The implications are probably wider as they'd also apply to care managers who have much more practical discretion in choosing placements for service users in the entire care sector and potentially also to a wide variety of other professionals making judgements about referrals into secondary care.

    I suppose how alarming the proposition that “the AMHP must put himself in a position where proper independent judgment as to the recommendation made by the doctors can be scrutinised and a decision made as to whether what is proposed or recommended by them is the proper place for an assessment or for treatment” actually is, depends on what degree of scrutiny the Court decides is required for this judgment to have been validly exercised. The Courts have ruled on this sort of threshold about reasonable care indischarging a duty in the past. This could be quite a low bar: X House is a hospital registered and inspected by CQC / HIW and has been recommended as suitable by the bed manager - that will do!. It might on the other hand be very high: I can imagine getting the doctors out of bed to answer questions about their CVs and views on the latest treatment models as a reasonable preliminary to an admission compliant with the new standard might complicate emergency assessments somewhat.

    If this were to 'stick' I think the debate about whether to use s. 2 or s. 3 in admissions would be resolved in favour of s. 2 for a period of 'assessment' to ensure that the diagnosis was correct and the treatment regime applicable and which would permit a prompt tribunal to 'test' the claim of the continuing appropriateness of treatment.

    Thanks for the link to David Hewitt's article. I think his comments about the judge's wish to give P his day in court might be telling. In other respects I remain mystified by how this case came to Court at all. DD claims his human rights were breached by his hospital treatment. It might have seemed more straightforward if had pursued this claim against the hospital for alleged mistreatment? Perhaps he has. Perhaps indeed the hospital and he have come to a settlement in the matter. However, I doubt this is the case and even if you accept that the hospital treatment was a breach of his human rights (and has the Court come to that conclusion?) surely the institution and the staff must be more liable than the AMHP?

    It's a bit like suing the travel agent if the wings fall off the aeroplane, rather than the airline or inspector whose job it was to check the bolts were tightened. Yes, there might be some degree of liability, but others are more demonstrably liable.

    I think as part of the construction of what is 'reasonable' in professional judgment, it could be argued that it is entirely 'reasonable' to assume that a hospital or care home will conduct itself to a reasonable standard and not provide unlawful care. Taking the contrary view that you've got to assume otherwise or be radically sceptical about the issue, while it might accord with the media's current panic about state care, would as you say, make the MHA and possibly other exercises of judgment about care completely unworkable. Can we sue paramedics who take accident victims to Casualty departments where they receive poor care or GPs who make referrals to inept surgeons? Practically, for a co-ordinated and differentiated system of social and medical care to work, there has to be trust in the integrity and competence of care. This claim would strike very directly at that assumption having any legal validity. While I realise that there are special issues about the exercise of state power for detention for compulsory treatment (in that the person's consent has been overwhelmed by the judgement of others: they can't refuse) this claim, if upheld could be very bad law indeed.

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  4. Re the last post and litigation responsibility it is not an either or situation and the LA always has a duty of care that goes beyond MHA assessments.

    And this is where MH services come unstuck as those assessing for detention only ever seem to see this function through the prism of the MHA or MCA. Human Rights legislation is never a driver it is seen simply as an annoyance. Add in Public Sector Equality Duty and those not giving due attn to the broader legislative picture will be challenged.

    In the medicalised world of MH human rights are largely ignored when someone becomes unwell.It doesnt matter to the detainee whether this is because the AMHP hasnt had the training, there is no management back up, the AMHP doesnt care. It doesnt matter if there is vicarious liability or cuts. What matters is that if you have had your liberty taken away and then placed in a situation that ignores your needs and may increase your risk.

    Take the case of those with physical disability. How many AMHP's consider this need and associated vulnerability and risk when detaining? We have a case where a woman with severe physical disability ( and care package in place), severe trauma from sexual assault and detailed accessible crisis plan was placed in a non accessible unit on a mixed ward. The only adapted room being on the mens side.She was unable to self care, there were not staff available to assist her and she was left in degrading circumstances and traumatised.

    It is very difficult to argue that this is not a breach of human rights and that every aspect from initial assessment through to hospital should not be scrutinised.

    If in the case cited above any of the authorities had responded to the individual's needs then the case probably wouldn't have got as far as court. However when AMHP's, clinicians, ward staff and all the employing and statutory bodies continue to ignore that all people have human rights - including those with severe mental illness- then therer will continue to be court cases. If AMHP's dont want this then consider detainees human rights - dont wait for hospitals to do this. It is required.

    And as far as the airplane analogy....actually the travel company has legal responsibility if you book a package through them and the wings of the plane fall off.

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  5. Hello

    I didn't deny the travel agent didn't have liability, just less liability than the airline. I'd genuinely like to know, why has DD's legal team gone for the AMHP? Easier target? I'd be a little concerned about this sort of opportunist litigation, based on vulnerability, rather than liability, being a possibility. Don't see how nailing the AMHP is likely to change conditions at the hospital. Should the AMHP then sue the hospital or the body that trained them? Sounds like a lawyers' paradise.

    I think you've overstated slightly: being concerned about the implications of the DD judgment isn't a denial of the importance of Human Rights concerns or of proper accountability. If I didn't think the MCA and the MHA weren't basically compliant with the HRA I wouldn't do my job. Though I recognise there's work to do, through the grind of case law, about making sure they are compliant, and much more work to do about making the rights given in law meaningful, through the funding and development of support services, I don't think your picture of staff 'ignoring' the human rights of patients (as you've several times stated above) is accurate. There are better and worse staff and better and worse units and organisations and sadly, change will sometimes have to be driven by complaints and litigation but I'd hope the situation isn't as uniformly bleak as this. If all services are intrinsically damaging and dangerous what's the point of intervention and if all staff are knaves and cowards what hope can there be of better? The government and elements of the press might like us to believe that poor care is always the fault of individual staff and litigation which has to be aimed at someone, though a powerful influence for improvement, can sometimes seems to reinforce this. I think there's a wider picture that cuts and under-investment do have an effect and, overstatement for emphasis in a blog comment nothwithstanding, would imagine you do too.

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  6. Was this case in relation to a S2 or a S3?

    S3 paperwork requires the medics to state where appropriate treatment is to be provided ie the name of the hospital (or a tick list if not bed has yet been identified).... not the AMHP.

    I would hope other AMHPs consider the HR Act - I certainly do, especially when considering an application for a warrant. It has also been a positive piece of legislation which I hope other AMHPs welcomed eg it facilitated a challenge in relation re NR to the stupidly outdated rules around same sex partners who used to be treated less favourably compared with opposite sex partners, and around consultation with the NR eg when there had been previous abuse. I would be concerned if other AMHPs did not feel these were positive steps forward facilitated by the act.

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  7. If any AMHP really believes that at this point of time MH patients feel protected by the system then please wake up. In this area there are no admissions without detention now . Probably because the only way a hospital bed can be secured is through detention under MHA. Proportionate/legal/ethical ...no. AMHP trying to do the best they can at that point in time when hospital managers are refusing voluntary admission...possibly with some, definitely not with others. Again, from a detained patient's point of you it feels unjust and brutal most of the time. For each case that reaches court there will be 200 that could have. Have you ever tried accessing legal help? It is a nightmare course and it is extremely difficult to assert your rights without MH issues. So in my humble opinion MH services at all levels of intervention have got of very loghtly for a very long period of time. If it takes court cases against AMHP's to get a fairer more accountable system them so be it. Would AMHP's speak up without these threats? Haven't heard them yet.

    Like it or not the AMHP is an easier target as you will be relying on the LA legal dept - who will drop you like a stone the moment they get in to difficulties- and your union's own legal resources which are geared towards employment issues.

    And it is not simply the LA who is liable when AMHP's make the decison. There are potential challenges against you as an individual under common law which you wont get protection from under provisions of MHA if you have deviated from guidance or the law. And when the LA drops you this wont help your case.

    Hospitals of course are well used to fending off litigation and all Trusts have the NHS Litigation Service and instruct their own specialist barrister. They know how to drag a case out for years. And the individual Drs have the BMA and medical defence unions that they pay subs to - compare that with the UNISON support you will get.

    So if I were an AMHP and this was ALL being dumped at my door I would suggest that being procative and political - with the risk of upsetting your employer and relations with the Trusts/hospitals concerned - would be a very good investment at this point. You also have a responsibility to raise/whistleblow on the very serious issues you face (assuming that the average AMHP cares or knows what these are - people posting here seem to care at least).Don't wait for a Duty of Candour statute do something now.

    Court cases wont go away - I happen to know of several very similar challenges in this area alone which will test the system and in the end force professionals to at least refocus.

    This isn't a case of a lawyers field day , it is a case of some people who are detained being treated appallingly because up until now MH services haven't been challenged and no one in the system did the right thing. Like I said it is not an easy option for someone with a MH condition to undergo the serious stress a court case brings.

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  8. Professionals often assume that court action is simply undertaken to force the authorities to admit they did wrong and possibly compensate. While this is a part of any action - since it is rare to hear an AMHP service or hospital say sorry - it is only a part of it.

    How else do you expect a patient to get protection from unlawful actions that deprives them of their liberty in the future when usually absolutely no acknowledgement of wrongdoing or mistakes is made? If - and I will restrict this to AMHP's in this eg - safeguardingis not even considered at time of assessment then how do you get the necessary protections in place if the culture is to not consider responsibility throughout the process.How do you stop poor prcatice with the extreme trauma that results from happening again and again? As a patient you dont get any power or choice on how budgets are spent, what training is undertaken, how people are recruited.

    Take the case of the pt with disabilities above . Is the AMHP not responsible for reading the very detailed crisis plan that was available? was the AMHP not responsible for seeing that the patients very clear disability and communication needs were met? Not responsible for contacting the Advocate ? Not responsible for ensuring that placed safely appropriately? Not at any legal, moral, ethical or legal basis? She was only moved when family threatened to call the police to the ward and report abuse concerns

    You can quote what the forms for detention state over and over but this reductionist view of whose responsibility it is to ensure duty of care is dangerous practice. Each time an AMHP ( or nurse/Dr/Manager) say 'its not my job' then no one picks up on the breaches in rights and safeguarding issues that arise.

    So without taking legal action against those who do not speak up and do not say sorry and allow repeated breaches you tell me how a patient stops this from happening to them again?

    In this case, where a vulnerable disabled woman well known to services was left sitting in her own excrement what precise remedy (apart from the suicide she now considers ) should she take? Court action is sometimes the only way change happens. It shouldn't be like this but until AMHP's and all MH professionals step up in a way that protects patients throughout the WHOLE detention process then there is virtully no other way of protection.

    It is about putting the patient first - NOT the professional.

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  9. I think it amazing that the original judge could say "An AMHP has certain responsibilities under the Mental Health Act which include recommending a person for detention under s.2 or under s.3."

    The judge seems to be struggling to get his/her head around the difference between a recommendation and an application for detention under the MHA.
    Given a fundamental misunderstanding like that, no wonder the legal situation needs to be further clarified. However, I do agree with you that if the final judgement goes in favour of DD the AMHP role will be rendered more or less impossible.

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  10. ' Before making an application for the admission of a patient to hospital an approved mental health professional shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.'

    Tell me how you determine that a hospital is the most appropriate way of providing care and treatment if you as an AMHP dont make enquiries as to the suitability of the unit the patient is being admitted to? You cant.

    So if you did enquire and the care and treatment was going to include the specifics of this claimants case how are you then going to justify that this regime (not contested by the hospital)does not breach the HRA? Because you are going to have to. This says a lot about what the threshold is for AMHP's to be 'satisfied'. Yes you do have a duty to enquire and not simply to trust the very same hospital colleagues that are regularly criticised on this site! And if the regime is as described in this case?

    You are forcibly depriving people of their liberty - the very least you can do is provide the justification for doing so with consideration to ALL legislation. Presumably you don't see this case in isloation of other decisons including those at the ECHR?

    Why does doing what the law requires render the AMHP role more or less impossible? What credibility and legitimancy is there in a role where professionals think they are above the law in order to expediate a process for their/ hospitals/ services convenience?

    Instead of complaining about how judgments affect you maybe think about how you can change your practice. So if it takes 10 x longer to find a safe placement so be it. The situation now is that pts dont get the help when they need it and justifying these actions to fill gaps in services is not good enough when it breaches rights. That is the bottom line however uncomfortable it makes AMHP's feel.

    Here's an idea: Place people again in private hospitals when you cant find anywhere in the NHS. From a patients point of view it worked ( and I am talking about short term admissions).What stops you from considering this as an alternative to the above given the context of legislation you are meant to be working within? What stops you as a professional with a duty of care - as opposed to what is defined in specific wording - stating that what the hospital offers is not good enough and they should consider private admission?

    If AMHP's dont speak up and raise a voice then they and the LA will continue to face court action - whether or not you personally believe it is your role/ job description/whatever. Didn't see any industrial action/ demonstrations from MH professionals in this neck of the woods when cuts came. What did you all think was going to happen when services cut corners and vulnerable people were penalised?

    The courts are not going to look at the MHA or MCA in isolation of the HRA and neither should they. EVER. That ship has sailed thank god.So yes leave in droves/ hand your warrants in or use these incidents as an opportunity for change.You are professionals for Gods Sake

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  11. The AMHP legally has to be satisfied that admisison to hospital is the only option, in other words, that have to actively consider all the alternatives to admission -- eg. no admisssion, residential care, staying in a B&B, involvement of the Home Treatment Team, etc. If the AMHP believes that hospital is the only option, then up till now, the AMHP was not responsible for which hospital the patient would be admitted to. A private hospital, if DD V Durham was upheld, would be no better than any other hospital -- the AMHP would still have to be personally satisfied that that particular private hospital was suited to that particular patient. How long might that process take? A day, a week, a month? What happens in the meantime to that patient who it has been decided needs to be admitted to hospital? Does the AMHP literally stay with them until the right hospital and the right ward has been found? That is the essential problem of DD v Durham. An assessment under the MHA is not over until a final decision has not only been made but completed.

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  12. Up until now...
    The breach in human rights in this case is to do with the regime and claimed inhumane treatment within this particular hospital setting which the AMHP seems to have assumed was appropriate. How does that make a private hospital ( or a more appropriate NHS hospital)? It doesnt. Expanding the pool of options provides more appropriate settings.

    This doesnt get past all the AMHP's issues but again why should patients be detained in circumstances that are demed illegal. This case will trigger many similar cases. AGAIN - why should a detained patient be the one who suffers because the authorities cannot get the system right? Some AMHP's posting dont seem to be able or willing to address the very real social justice and human rights issues here. And this is why you will be subject to court action- because you dont seem to be able to see beyond the (very real) pragmatic isues affecting you.

    So let me ask the AMHP's here who do the best they can at all time exactly what you have done as individuals to counter the pressures you are put under and protect the patient from the consequences we have ALL referred to here?

    How many of you have written formally to your Director of Social Services detailing the problem, or to the CQC or used whistleblowing reporting systems to flag up the dangers? How many of you have put forward as a team written concerns to your management and copied to the inspectorate bodies? How many of you have consuklted your professional bodies regarding your personal duty of care?

    I bet I can count on less than one hand how many AMHP's have gone beyond complaining within their team and not further . Yet all the open and closed AMHP forums (including manager lead meetings) are raising serious issues relating to bed shortage, conveyencing, whether or not to apply for a warrant to force the bed issues, etc etc etc.

    And as far as your question re how long you have to stay? Well yes a day, a week, a month- however long it takes for that extremely vulnerable person to be placed in a setting that is safe and humane. If you all took a stance that way you would force change and you can ask at what cost but if you really think that the experience of being detained is a positive one and does not cause significant trauma then you are as deluded as some of the patients you see.

    So again make a more vocal and visible stand. Do something more radical than vent on a forum. The cost to vulnerable people ? Many more deaths and suffering and severe trauma by you not acting than by you acting and speaking out.

    And this is where professionals and service patients in these circumstances veer off from each other. For a patient it is about doing the right thing for them at the time and treatment decisions not being simply service led. For an AMHP it is about cfeating a safe workable balance. It is just that the balance appears to be wighted in the authorities favour to the detriment of the patient. This is what the courts are saying and will continue to say even if this particukar case diesn't win out in the end

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  13. Think I'll get a job in Tesco instead.

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  14. Thought as much..

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  15. If it is deemed unfeasible to ensure the hospital provides the right environment then what about the issue of admitting to a chair in order to try and meet the bed availability legal requirement? Common practice in this area as there a few beds and patients are often 'contained' in public areas on wards/ adjoining wards until a 'bed' is actually found. We all know about this practice yet how many AMHP's refuse to co-operate with this practice? Turn a blind eye because a few hours ( or 15 hrs here) does not really count as a breach and can be argued away? So much easier to prove a case of illegal detention under these circumstances I am guessing as accepted as 'usual' practice depite being open to much criticism. .It would seem ( as as speaking as an ex ASW as well as a carer) that this is an example where the AMHP can argue that no physical bed is no bed at all but how many do? Much harder to justify why you don't do this than why you don't know about hopsital settings across the region?

    There is also a discernable shift in approach amongst advocates and advisers to follow through on complaints to professional bodies as well as advise clients to seek redress in the county court under common law against the individual. As an AMHP I would be more worried about this than formal litigation as both routes much more acessible and affordable and lay the grounds for any future litigation. There is a misconstrued belief that as an individual a MH professional of any background cannot be held liable for their actions if not criminal and that the MHA gives total protection. It doesnt and they can and even more reason why AMHP's should be more vocal even if the motivation is simply to cover themselves. Win win as far as I can see or rather definitely lose lose if you dont.

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