Sunday, 27 July 2014

If The Masked AMHP Had a World Cup Commentary

Fabio:              Well, here we are on a fine day, not a cloud in the sky. The Masked AMHP’s sitting at his desk in the AMHP Office, chewing at the bit to take a referral. It’s a quiet day so far, isn’t it, Adrian, but who knows what could be just around the corner?

Adrian:            That’s right, Fabio, but look! Just as he’s settling back to read the paper –

Fabio:              It looks like the Guardian to me, Adrian –

Adrian:             I believe you’re correct there, Fabio – but The Masked AMHP’s  mobile’s now ringing, he’s picking it up – and he’s taking notes!

Fabio:              Just look at the skill there! He’s asking pertinent questions at the same time as he’s madly scribbling on his notepad! What a consummate professional!

Adrian:            And just look at the ease with which he writes down all the salient details! From here it looks like it’s a referral from the Home Treatment Team. It’s for a woman in her 40’s called Dolores, with a long history of schizophrenia, who’s been refusing her depot injection. Home Treatment have been trying to persuade her to take oral medication –

Fabio:              Looks like Quetiapine to me –

Adrian:            I do believe you’re correct there, Fabio. Hard to tell, The Masked AMHP’s handwriting leaves something to be desired!

Fabio:              No-one’s perfect, not even The Masked AMHP!

Adrian:            Never a truer word, Fabio, never a truer word. Anyway, she’s refusing that too, and becoming increasingly psychotic!

Fabio:              Looks like The Masked AMHP’s going to have to go out on this one, Adrian!

Adrian:            You’re right there, Fabio! And just look at that! A quick browse through his contact list and he’s got two Sec.12 doctors on board! What a mover!

Fabio:              That was a bit of luck there.

Adrian:            Luck’s got nothing to do with it! The Masked AMHP knows all the Sec.12 doctors who’re wanting to build swimming pools or saving up for a BMW 7 Series.

Fabio:              And they’ll never turn down a chance for a quick 170 quid.

Adrian:            You’re not wrong there, Fabio.

Fabio:              That’s all well and good, but what about a bed? He’s ringing the bed managers, but he doesn’t look like a happy bunny!

Adrian:            He’s muttering something about the nearest bed being in Harrogate!

Fabio:              Phew! That’s 300 miles away! He won’t get the local ambulance service to transport a patient there!

Adrian:            He’ll have to get a private ambulance for that little job.

Fabio:              The Masked AMHP’s Trust must have deep pockets, Adrian.

Adrian:            Either that, or they’ve got no common sense.

Fabio:              A bit close to the knuckle there, Adrian.

Adrian:            But seriously, doesn’t this put paid to any Mental Health Act action today? There’s no point in going out to assess if there’s no bed, surely?

Fabio:              Au contraire, Adrian. The Masked AMHP’s legally bound to make an assessment. And don’t call me Shirley.

*   *   *

Adrian:            Well here we are outside the patient’s house. Nice little suburb, by the look of it – but look at that! There’s a broken window, and the TV’s out on the front lawn! Doesn’t look good to me, Fabio!

Fabio:              But ever the professional, The Masked AMHP’s calmly sitting it out, waiting for the doctors to arrive.

Adrian:            Perhaps we can turn to our guest expert in the studio for an opinion. Tell me, Richard, what do you think he’ll go for here? Section 2 or Section 3?

Richard Jones: (For it is he) Of course, we mustn’t jump the gun. An AMHP will always have to consider the least restrictive option before resorting to a formal application under the Mental Health Act. But as a rule of thumb – Section 2 if you don’t know the patient, or there’s been a significant change in presentation requiring a fresh assessment, and Section 3 if the patient is known and the appropriate treatment has been decided. But I’d probably tend to favour a Section 2 if the patient’s in the community, especially in these circumstances. Of course, the new Draft Code –

Adrian:            Thanks for that Richard – but look at what’s going on! The doctors have arrived, they’ve all had a bit of a chinwag in The Masked AMHP’s car, and now they’re going to the front door!

Fabio:              What are the odds on The Masked AMHP getting through the door, do you suppose, Adrian?

Adrian:            Well, judging from past performance, he can be a nifty little mover in a tight spot.

Fabio:              There’s Dolores, she’s opened the door – and The Masked AMHP is engaging her in conversation!

Adrian:            And look at that – foot in the door, stepping forward – and they’re in!

Fabio:              Amazing bit of footwork from old Masky there.

Adrian:            Now they’re in, he’s telling her the purpose of the visit.

Fabio:              Ever the professional. Oh and look! She’s asked him for his ID and he’s showing her his card!

Adrian:            Is that a yellow card, Fabio?

Fabio:              No, it’s just a trick of the light.

Adrian:            Well, Dolores is cooperating with the assessment so far, she’s even telling them about the voices she’s been hearing telling her not to take her medication!

Fabio:              It’s going smoothly so far, but it could still be an early bath for The Masked AMHP.

Adrian:            Well I didn’t expect that! She’s saying she’ll agree to an informal admission! Isn’t that offside?

Fabio:              Don’t get me started, Adrian!

Adrian:            Well they’ve concluded the assessment – now it’s decision time. What do you think Richard – Section 2, Section 3, or – Oh, and they’ve gone with the informal admission.

Fabio:              Bit risky that, don’t you think? What if she changes her mind?

Adrian:            I think old Masky’s weighed it all up, and he’s gone for the less restrictive option.

Fabio:              But couldn’t he have gone with Home Treatment?

Adrian:            You’re forgetting – they’ve already tried Home Treatment and it didn’t work. So that only leaves informal admission, or detention under the Act.

Fabio:              Masky’s on the phone to the bed managers – and he’s smiling! It can only mean one thing! They’ve used a leave bed and got her into a local hospital.

Adrian:            That’s cause for celebration, all right!

Fabio:              Well, they think it’s all over – it is now!

Monday, 21 July 2014

The New Draft Code of Practice: a Brief Overview

I always thought that the revised Code of Practice introduced following the MHA 2007 was overall a fairly useful and easy to follow piece of guidance. However, cracks have been showing for some time, arising from implications of the MHA/MCA interface, the Human Rights Act, the Equality Act, changes in case law, and such scandals as Winterbourne View and of course, the Bournewood Gap, which was not, as hoped, bridged by the MCA and DOLS.

So now a new Draft Code has been issued, with a pretty tight time period for consultation: published on 7th July 2014, the consultation period ends in the middle of September.

At 371 pages, it’s at least as long as the previous Code. Although many chapters remain largely unchanged, there are several new sections which were not in the 2008 Code; for example, there is a new chapter on Equality and Human Rights.

The physical layout of the Code is rather clearer than the old Code, grouping the chapters into related sections: Using the Act; Protecting patients’ rights and autonomy; Assessment, transport and admission to hospital; Additional considerations for specific patients; Care, support and treatment in hospital; Leaving hospital; and Professional responsibilities.

The accompanying document, Stronger Code: Better Care, helpfully summarises the main changes in the new Draft Code, and goes through these chapter by chapter. This document also contains a wide ranging series of questions to facilitate the consultation process. I would recommend that anyone with a personal or professional interest in the Mental health Act should at the least read through this document, which, at 50 pages, is much shorter than the Draft Code itself.

Using the Act
Chapter 1 outlines five overarching principles, stressing that “they inform decisions rather than determining them.” The DoH comments that they are intended to “focus on an individual patient’s recovery, better reflect the current and future health and care system, and which clarify the roles of all professionals in ensuring high quality and safe care for individuals subject to the Act.”

These are a rather more detailed than in the old Code, and I feel it is worth reproducing them in their entirety here:
  • Least restrictive option and maximising independence: Where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. Wherever possible a patient’s independence should be maintained with a focus on recovery.
  • Empowerment and participation: Patients, their families and carers should be fully involved in decisions about care, support and treatment.
  • Respect and dignity: Patients, their families and carers should be treated with respect and dignity and listened to be professionals.
  • Purpose and effectiveness: Decisions about care and treatment must be appropriate to the patient, and must be performed to current national guidelines and/or current, available evidence based practice.
  • Efficiency and equity: Providers, commissioners and other relevant organisations should work together to ensure that the quality of commissioning and provision of mental health care services is equivalent to physical health and social care services.
Chapter 3 is the completely new chapter on Equality and Human Rights. This explicitly addresses the relevant legislation to consider in conjunction with the MHA, ranging from the 1948 UN Declaration of Human Rights through to the Health and Social Care Act 2012. It introduces the “PANEL” principles: Participation, Accountability, Non-discrimination and equality, Empowerment and Legality.

Protecting patients’ rights and autonomy
Nine chapters are included under this heading, including chapters on information for patients, nearest relatives, carers and others; the nearest relative; independent mental health advocates; wishes expressed in advance; and the Tribunal. The DoH comments that it has taken on board the investigations into Winterbourne View and has “strengthened wording in the revised Code” in order to ensure that patients have a say in their own care and treatment.

The new Code stresses the importance of allowing patients to make and receive communications from relatives and others, explicitly including email and internet access. I am aware from the experiences of bloggers with mental disorder, that this has not always been the case.

The DoH explicitly states:
“Throughout the Code, we make it clearer that families, carers and ‘nearest relatives’ (who have specific powers under the Act with regard to the care of the patient) should be involved in decisions about care and treatment. Although the current Code already states this, it frequently does not happen, so we have strengthened references to the role of families, carers and other supporters throughout.”

Assessment, transport and admission to hospital
This includes a new Chapter 13, devoted to mental capacity and deprivation of liberty. The accompanying document states:

“Chapter 13 has three main objectives. First, it explains the key principles of the MCA and makes clear the relevance of these principles to those working with the Act. Second, it provides guidance (including a flowchart) that enables professionals to determine whether an individual should be subject to the Act or DoLS. Third, a case study illustrates how professionals might determine in practice between the different regimes.”

This chapter summarises the Mental Capacity Act, and the five fundamental principles of the Act, and gives examples of the sorts of acts that can be conducted under the MCA, and what can or should be done under the MHA. This includes explicit guidance on treatment for physical conditions for patients detained under the MHA.

This section helpfully states that: “The fact that an individual is being assessed or treated for a mental disorder does not mean that they lack capacity.” This seems to be a fact that is frequently overlooked when considering the MHA/MCA interface.  It also suggests that “if, however, a patient requires treatment for an injury resulting from mental disorder (eg they have as a result of a hallucination or delusion broken their arm) and the treatment for that physical condition does not alleviate or prevent a worsening of the mental disorder, then the treatment is unlikely to fall within the Act”.

This clearly differentiates between acts done as a direct result of a mental disorder, for example, taking a deliberate overdose or deliberately self harming with suicidal intent, and accidental injuries arising incidentally of the mental disorder. I hope that this guidance will help to prevent further situations such as Kerrie Wooltorton, who successfully refused lifesaving treatment after drinking antifreeze, and the case of P, a 17 year old who was refusing treatment for a paracetamol overdose, both of whom I have written about on this blog.

Chapter 14 looks at applications for detention in hospital, and includes a rather brief (2 paragraphs) discussion of the use of Sec.2 and Sec.3. Perhaps this is deliberate, as the DoH ask the question:

“What further guidance could the Code give professionals to support their decision making between the choice of adopting section 2 or section 3 for individual patients?”

I am increasingly aware of situations arising where a Sec.3 for treatment might be applied for, were it not for the fact that at the time of the assessment there are no beds available. This makes it impossible for the medical practitioners to complete their recommendations, as they must be able to put the name or names of a hospital where the patient can receive appropriate treatment. One psychiatrist wondered whether he could attach a list of all the inpatient facilities in the country. I think he was being ironic.

The above scenario either results in an abortive assessment, with the possibility of an AMHP having to convene a further assessment with two new medical practitioners once a bed has been identified, or the two doctors completing their recommendations for Sec.2 and then giving them to the AMHP, who then has to wait until a bed is available before they can complete an application.

Of course, all professionals must adhere to the highest standards of decision making in order to comply with the requirements of the Act, but it might be helpful for the Code to contain some guidance as to how to approach some of the realities of practice under the MHA, such as the dire shortage of psychiatric beds for children, adults, older people, and people with learning difficulties.

There is a new Chapter 16 on police powers and places of safety. The DoH refers to the report A Criminal Use of Police Cells, noting that police cells are being routinely used or Sec.136 detention, rather than this being the exception. It also notes that this report recommends that the time limit for Sec.136 should be reduced to 24 hours. The DoH is suggesting that the draft Code makes it clear that “a person should spend no longer than necessary in police custody and that good practice sets an upper limit of 24 hours.”

Additional considerations for specific patients
These chapters cover a range of specific patients. These include patients under the age of 18, including a whole new Chapter 19 providing guidance on the legal framework as it applies to children and those under 18; people with learning difficulties or autistic spectrum disorders; people with personality disorders; and patients concerned with criminal proceedings.

Chapter 19 aims to clarify existing guidance, such as assessing competence for those under 16, and capacity for those under 18, issues of deprivation of liberty, and the contentious “zone of parental control”.

The DoH asks the question: “In relation to the ‘zone of parental control’, do you think that this is a helpful term? If not, do you have any suggestions for an alternative term or is it sufficient to explain that there are limits to decisions that parents can take for their children?"

Care, support and treatment in hospital
The draft Code includes a new Chapter 26, devoted to the use of restraint, seclusion and segregation, and are intended to support the issues raised in the document Closing the Gap, which I wrote about in Community Care in January 2014.  It is also designed to accommodate the DoH guidance on the use of restrictive interventions in health and care services, Positive and Proactive Care: reducing the need for physical interventions, which I discussed on this blog in June 2014.

Leaving hospital
This section covers CTO’s, guardianship aftercare and the care programme approach. This includes changes arising from the Care Act, and a new Chapter 34 devoted to the CPA.

Professional responsibilities
This final section covers general topics that do not fit elsewhere, such as the functions and powers of hospital managers, conflicts of interest, and support for victims.

This is necessarily only a very brief overview. My initial thoughts are that it does go quite a long way to address changes in legislation and concepts of best practice since the last revision in 2008.

However, the draft Code of Practice is clearly still a work in progress. It is important to use the time available for consultation to put forward amendments and additions, in order to ensure that the new Code encourages best practice and provides a useful guide to what best practice should be, not just for the professionals at the sharp end of the Act, but also for those responsible for providing the infrastructure (such as properly staffed places of safety, an adequate number of appropriate hospital beds, and viable alternatives to hospital admission) without which the MHA will struggle to fulfil its statutory functions.

Thursday, 10 July 2014

Where the Police Fear to Tread: Two True Tales of Troublesome Teenage Boys

You may have read my recent blog about difficult situations with teenage girls while working out of hours. While I was having a look in the Masked AMHP’s vault, I came across a couple of incidents from the 1980’s which involved teenage boys, and a certain reluctance on the part of the police to intervene, which I thought I would share.


One evening I received a call from Charwood Police to attend as an Appropriate Adult under PACE (The Police & Criminal Evidence Act) while they interviewed a young boy who had been arrested for a distraction burglary.

Little was known about him, as he appeared unable or unwilling to provide much information. He was from a group of Irish travellers, who had settled on a piece of wasteland on the edge of Charwood. He had been arrested when he and an older boy had been reported for attempting to steal from a Charwood householder.

Distraction burglaries involve one of a pair engaging someone in their garden in conversation, while the other nips into their house and has a search for valuables. The older boy had made off, but the police had managed to catch Sean.

Sean was unclear about his surname, and appeared not to know his date of birth. All he knew was that he was 13 years old. This knowledge could have been influenced by knowing that he could not be remanded in custody if he was under 14.

I sat in on the interview, during which he admitted nothing, and appeared to know nothing. Having gone through the due process, the custody sergeant was keen to dispose of him.

This gave me a problem. As an Appropriate Adult, I had a responsibility for his welfare unless and until I could find an adult, preferably a parent, who could take on responsibility for him.

Sean was extremely vague about whether or not he had any relatives living in the UK. He said that his mother was in the Republic of Ireland, but was unclear as to the whereabouts of his father, or any other relatives. Unless I could find somebody, I would have to accommodate him in a local authority children’s home.

I discussed the problem with the custody sergeant.

“Do you think you could get an officer to pop over to the travellers’ site and see if there’s a relative there?” I asked hopefully.

The sergeant looked at me as if I had suggested that he take Sean home with him at the end of his shift.

“We’d be asking for trouble if a police car turned up there,” he said. “It’d be too dangerous. It’s strictly off limits.”

So what was I to do? I really did not want to place Sean in a children’s home if I could help it.

In the end, I decided I’d have to go there myself.

By now it was quite late in the evening. I cautiously entered the site in my car. The caravans all appeared to be in darkness. Although there were a number of vehicles on the site, there appeared to be no actual people. I wandered around somewhat apprehensively for a little while, then saw a face peering at me through a window in one of the caravans.

When the face saw that I had spotted them, it rapidly withdrew, but I went forward and knocked on the door.

After a pause, the door opened a little and a man looked suspiciously at me.

“I wonder if you can help me,” I began. “Do you happen to know a boy called Sean?”

“I’m not sure about that,” the man answered with a strong Irish accent.

“You see,” I continued. “I’ve got this problem. Sean’s down at the police station –“

“I don’t know anything about that,” the man interrupted.

“The police have finished interviewing him and he’s ready to be released. I’m a social worker, and unless I can find a relative, or at least a responsible adult who can take charge of him, I’ll have to put him into care in a children’s home.”

The man looked at me silently, considering what I had said.

At last, he said, “I’ll tell you what, you bring this young lad down here and I’ll see if I can find anyone who knows him and can take care of him.”

I went back to the police station, picked Sean up, and brought him back to the site.

The man opened the door of his caravan and examined the young boy for a moment.

“You come and get in here, son” he said to Sean at last.

“Yes, Dad,” Sean replied sheepishly, and slipped inside.

Sam and Stuart

It was late in the afternoon on an August Bank Holiday Monday when I received another call from Charwood Police. This time they had two 13 year olds who had been found by a passing police car hitchhiking down a quiet country lane. They said that they’d been threatened, and were in fear of their lives.

That August Bank Holiday weekend there had been a New Age Travellers Festival on a rural site a few miles outside Charwood. These two boys were there with the father of one of them.
New Age Travellers were particularly prevalent in the 1980’s and early 1990’s. They were mainly itinerant, travelling from one place to another fairly aimlessly in ramshackle convoys of old buses, ambulances, vans and other vehicles that had been converted into somewhat makeshift mobile homes, especially during the summer months, when they would move from one free festival or country fair to another.

They were essentially the tail end of the 1960’s/1970’s Hippy movement. Having had some pretensions to being a hippy in my teenage years, before getting a haircut and getting a job as a social worker, I had some sympathy for them.

But these boys were making allegations that could amount to child abuse. Their story was that they had been wrongly accused of a misdemeanour by some sort of ad hoc hippy parliament, and were escaping from some dreadful, but unspecified punishment.

Clearly, I was going to have to do some investigation and try to get to the bottom of it, otherwise I would have to place them in a children’s home, at least until the local social services office could sort something out the following day.

“Have you made any attempt to find the father?” I asked the duty sergeant.

“I expect he’ll be on the festival site,” the sergeant said.

“Yes, I know, but have you sent any officers out to try and find him, so we can find out what’s actually going on?” I had an inkling of the reply I would receive.

“I can’t send any of my officers out there,” he said. “Far too dangerous. Asking for trouble.”

So it looked like I would have to make my own investigations. Again.

I drove out to the site. By now the festival had finished, and many of the attendees had left, or were packing up.

There was nobody managing the entrance, so I drove over several fields that had been used for the festival until I reached a group of tents and vans. A few people were milling about, or just sitting round campfires, cooking or smoking.

I saw a man with long hair and a beard standing at the mouth of a yurt.

“Hello,” I said hopefully. I explained briefly who I was. “Do you know a couple of young lads called Sam and Stuart?”

“Yes I do,” he replied a little grimly. “Do you know where they’ve got to?”

I explained the situation to him.

“Come inside,” he said and ushered me into his yurt. It was quite a comfortable and surprisingly roomy space, with a potbellied wood burner in one corner, and a few beds which also stood in as seating. He said that he was Sam’s father, and Stuart was with them with the permission of his parents for the duration of the festival. Now the festival was over, they would be returning to another part of the country.

He told me to sit down, while he got the nominal leader of the group.

He came back with a pleasant looking middle aged woman. She explained that Sam and Stuart, far from being the innocents they were claiming to be, had actually been caught stealing minor items from others at the festival.

The habit of the group when a member had contravened one of their few rules (stealing was one of them), was to convene a meeting, confront the offender with their misdemeanour, and then suggest some sort of restitution. In the case of Sam and Stuart, their appointed job was to help to clean up the site. They had not wanted to do this, so had decided to run away.

There really did not appear to be any reason to put Sam and Stuart into care. The best solution was to return them to the traveller group, and they could then go on their way.

I took the father with me to the police station, where the boys looked rather forlorn, but not in any way fearful.

After getting some fish and chips from a local Chinese, which was open on the Bank Holiday, I took them all back to the camp and went on my way.

Thursday, 3 July 2014

The Case of P and the MCA/MHA Interface: Recent Case Law

An urgent referral to the Courts for a child, P, aged 17 years, was made on 13th May 2014 and was heard late at night by Mr Justice Baker.

P had a history of self harming behaviour and was well known to the Child and adolescent Mental Health Service. She had briefly been detained under Sec.2 MHA, but had been discharged the previous week.

In the afternoon of 13th May 2014 she had taken an overdose of paracetamol, and was refusing lifesaving treatment. Although her mother had given consent to this treatment, the hospital trust was reluctant to treat her on this basis.

They arranged for the on call child and adolescent psychiatrist to assess P. He did not have any previous acquaintance with P prior to the assessment.

The judge noted:
“Although she suffered from a personality disorder, it was his view that she did not lack capacity to make decisions concerning her medical treatment. She was able to understand information and retain it, and also to weigh it up and use it. I was told that the physician at the hospital who was responsible for treating P this evening has some doubts about the psychiatrist’s opinion, having observed her behaving in an erratic and inconsistent way during the course of this hospital admission.”

Because of the necessity to treat the overdose before irreversible damage was done, the Trust went to the court to seek a declaration “that it was lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the overdose”.

The case depended entirely on a judgment relating to the capacity of P. The judge noted: “although the physician at present treating P in hospital has some doubts as to her capacity, the psychiatrist responsible for treating her has expressed the view that she has capacity, notwithstanding her mental health history and personality problems.”

The judge reached the conclusion that he was “not satisfied that P lacks capacity within the meaning of section 3 [of the MCA]. Having regard to the clear principles in section 1, I accordingly propose to make a declaration that on the basis of the information available at present, I am not satisfied that she lacks capacity to make decisions concerning her medical treatment.”

The judge then continued to consider issues of “Gillick competence”:

“A person with capacity under the age of 18 who is “Gillick competent” – that is to say, having a state of maturity, intelligence and understanding sufficient to enable her to take a decision as to medical treatment for herself – is deemed to have legal capacity to consent to treatment. Where, however, a Gillick competent child refuses to give her consent to the treatment, the court may, in the exercise of its inherent jurisdiction, override the child’s wishes in her best interests and give its consent to her treatment.”
He concluded:

“The wishes of a young person aged seventeen and a half are important. They are, of course, entitled to be taken into account as part of her Article 8 rights under ECHR. On the other hand, those rights are not absolute. Here, they are outweighed by her rights under Article 2 – everyone’s right to life shall be protected by law. The court is under a positive or operational duty arising from Article 2 to take preventative measures to protect an individual whose life is at risk.”

He therefore declared that “it is lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the effects of her overdose notwithstanding the fact that she is refusing treatment”.

There are a number of interesting and potentially highly significant conclusions to consider in relation to this judgment.

Here is another case in which a judge has relied on the concept of “inherent jurisdiction” to reach what he considered was the most appropriate decision. Under English common law, a superior court has the jurisdiction to hear any matter that comes before it, and it allows it to control its own processes and to control the procedures before it.

I recently considered a judgment from the Court of Protection in which inherent jurisdiction was invoked in order to reach, in that case, a somewhat extraordinary and legally dubious conclusion.

It does appear that, where existing legislation appears to a judge to be deficient, then “inherent jurisdiction” can be invoked to facilitate whatever judgment a judge wishes to make. I am concerned, especially in this case, that other potential resolutions to the case of P within existing law were not explored.

I am reminded of the case of Kerrie Wooltorton, a woman with a personality disorder who drank antifreeze and then refused life saving treatment. On the basis that she had capacity and had made an advance decision refusing treatment, she was allowed to die, and the subsequent inquest upheld the decisions of the doctors responsible for her care. I considered this case at some length here.

In such cases, where a patient who has capacity is refusing treatment, perhaps consent to treat against the patient’s will can be obtained from the courts regardless of existing legislation, as long as the judge is prepared to invoke the court’s “inherent jurisdiction”.

The judge concluded that P had capacity, and therefore the Mental Capacity Act could not be used. But he did not appear to consider the powers under the Mental Health Act.

The 2007 MHA introduced an amendment: Sec.64G, which covers emergency treatment for patients lacking capacity. This does give powers for people to give emergency treatment, especially if the treatment is to be given in order to save the patient’s life.

However, since P was deemed by both the psychiatrist and the judge to have capacity, this section could not apply.

But, as I pointed out in my blog on Kerrie Wooltorton, the issue of whether or not a patient can be deemed to have capacity is not particularly relevant to a determination regarding detention under the MHA.

For example, in order to legally detain someone under Sec.2, the AMHP merely has to be satisfied that the patient “is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period” and that the patient “ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”

In order to be able to treat P under Sec.2 MHA, it was only necessary to establish that she was suffering from a mental disorder within the meaning of the MHA, and that this was of a nature of degree that warranted her detention for assessment and/or treatment.

Since P had been a patient of CAMHS, and the assessing psychiatrist was satisfied that she had a personality disorder, which is a “mental disorder” within the meaning of the Act, and she undoubtedly needed assessment/treatment, then an AMHP could have made an application using a medical recommendation from the psychiatrist and one from a hospital doctor who was intending to treat her.

It would certainly have avoided the necessity to get a High Court judge out of bed.