Tuesday, 15 August 2017

What Happens When the Professionals Involved in a MHA Assessment Disagree?

A member of the Masked AMHP Facebook Mental Health Forum recently posted about a situation in which a hospital psychiatrist had objected to an assessing AMHP concluding that it was not appropriate to detain the patient under the MHA, and demanding that another AMHP conducted another assessment. The issue was whether or not a psychiatrist had a right to do this.

This raises some interesting issues about what should happen when mental health professionals involved in a MHA assessment cannot reach agreement about what should happen with the patient.

The MHA has little to say about procedures relating to differences of opinion, and there is little, if any, case law on the subject.

However, it must be borne in mind that the AMHP is the professional with responsibility to making an application for detention under Sec.2, 3 & 4 MHA.

An AMHP does not have to act on the medical recommendations provided. By their nature, they are “recommendations”. It is at the AMHP’s discretion whether or not to make an application based on those recommendations.

Sec.13 (2) MHA States:

Before making an application for the admission of a patient to hospital an approved mental health professional… [must] 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.

The AMHP’s duty is to consider “all the circumstances”. The Code of Practice goes on to say:

AMHPs may make an application for detention only if they have interviewed the patient in a suitable manner,  are satisfied that the statutory criteria for detention are met, and are satisfied that, in all the circumstances of the case, detention in hospital is the most appropriate way of providing the care and medical treatment the patient needs.(para14.49)

The AMHP must give due regard to the first overarching principle when making decisions regarding the detention of people under the MHA, which is to always go for the least restrictive option. The Code of Practice makes it clear that “where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained.” (para1.2)

Furthermore, the Code of Practice says: “There is no obligation on an AMHP… to make an application for admission just because the statutory criteria are met.” (para14.103)

It must be remembered that the AMHP exists as a check on unimpeded decision making by medics. The AMHP’s role is to employ a social perspective when making assessments of people with mental disorder.

To give an example, I recently assessed a person whose GP wanted detained under the MHA on the grounds that they had stopped taking their antipsychotic medication several months previously. The GP had not actually seen the patient, as they had missed an appointment.

When I assessed the person at their own home (they readily let us in), it became clear that there was some evidence of paranoid delusions. However,  these were not in any way impinging on their ability to look after themselves and to live a full and meaningful life. Neither was their reluctance to take medication having any adverse effect on anyone else.

I declined to use the MHA, on the basis that people have the right to be quietly mad, as long as it is not affecting themselves or others, and it was therefore disproportionate.

Although the Code does give some advice on resolving disagreements between professionals (para14.109 & 14.110), it does not offer advice on what to do if any of the professionals are unwilling to accede to a decision.

For guidance on this problem, it is necessary to turn to Richard Jones in the Mental Health Act Manual (19th Edition). He observes:

If the AMHP decides not to make an application, it would be improper for that decision to be reviewed by another AMHP in the absence of any change in circumstances, fresh evidence or concern that the AMHP had acted unprofessionally. (p117)

However, he does offer suggestions as to how such disputes may be resolved by stating:

If the decision not to make the application was made by an AMHP with little knowledge of the patient, there should be no objection to that decision being reviewed by an AMHP who has an extensive knowledge of the patient’s history and current situation. A procedure which allowed for the automatic review of a decision of an AMHP not to make an application would undermine the independent nature of the AMHP’s role.

Interestingly, he does not consider that an AMHP has similar restrictions. In a situation where an AMHP is not satisfied with a refusal by a doctor to provide a medical recommendation, he has this to say:

If a doctor who has been approached with a view to making a medical recommendation decides not to do so on the ground that the statutory criteria are not satisfied, there is nothing to prevent an AMHP from taking steps to see whether another doctor might be willing to provide the recommendation. (p114)

When it comes to consideration of Community Treatment Orders, it seems that the AMHP still holds the upper hand.

The Reference Guide states that before a CTO can be made an AMHP “must agree with the responsible clinician’s opinion that all the criteria are met and agree that it is appropriate for the patient to become a CTO patient.”(para26.14)

The Code then states:

If the AMHP does not agree with the responsible clinician that the patient should go onto a CTO, or if they do not agree with the conditions attached to the CTO, then the CTO cannot be made. A record of the AMHP’s decision and the full reasons for it should be kept in the patient’s notes. The responsible clinician should not approach another AMHP for an alternative view. (para29.25)

So it appears that a doctor’s hands are largely tied when it comes to disagreeing with an AMHP’s decision not to detain; but an AMHP may still persist in searching for a doctor prepared to make a medical recommendation if the AMHP believes that the patient should be detained under the MHA.

Tuesday, 8 August 2017

How do you Establish which Local Authority is Responsible for Making an Assessment under the MHA?

Try the Masked AMHP's quiz..
This post is prompted by a situation I encountered recently while working as the duty worker for our local AMHP Service. It related to a dispute with an AMHP from another local authority concerning who was responsible for responding to a request to make an assessment under Sec.3 MHA for a patient detained under Sec.2 MHA.

Briefly, this was the scenario.

The patient (P) normally lived in our area (Local Authority A). P was admitted informally to a private specialist hospital located in Local Authority B, without any involvement with our local AMHP service. P was subsequently placed on a Sec.5(2) by the hospital, and an AMHP in Local Authority B assessed and detained under Sec.2 MHA for assessment.

P was then transferred to another private specialist hospital in Local Authority C. That hospital subsequently requested an assessment for detention under Sec.3 for treatment.

The question was: which local authority was responsible for undertaking this assessment?

Was it:
A)  Local Authority A
B)  Local Authority B
C)  Local Authority C

To answer this question we need to look at what the Mental Health Act itself says, and also the Reference Guide and the Code of Practice.

At times the wording in the MHA can be a little confusing, and Sec.13, which is concerned with the duty of AMHPs to make applications for admission or guardianship.

Sec.13 says:

(1) If a local social services authority have reason to think that an application for admission to hospital … may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.
(1A) If that professional is—
(a) satisfied that such an application ought to be made in respect of the patient; and
(b) of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, he shall make the application.

Then it gets even more complicated in Sec.13(1B), which invokes Sec.13(1C). Here it is in all its convoluted beauty:

 (1B) Subsection (1C) below applies where—
(a) a local social services authority makes arrangements under subsection (1) above in respect of a patient;
(b) an application for admission for assessment is made under subsection (1A) above in respect of the patient;
(c) while the patient is liable to be detained in pursuance of that application, the authority have reason to think that an application for admission for treatment may need to be made in respect of the patient; and
(d) the patient is not within the area of the authority.
(1C) Where this subsection applies, subsection (1) above shall be construed as requiring the authority to make arrangements under that subsection in place of the authority mentioned there.

Bear in mind in reading this that Sec.13(1A), (1B) & (1C) were inserted into the MHA by the 2007 Act specifically  in order to clarify the situation regarding local authority responsibility for assessments under Sec.3 MHA.

Thankfully, the Reference Guide offers an easy to understand translation. Para8.16 states:

Local authorities must arrange for an AMHP to consider a patient’s case on their behalf, if they have reason to believe that an application for admission to hospital may need to be made in respect of a patient who happens, at the time, to be within their area. It does not matter whether the patient lives in the area.[my highlighting]

Crucially, Para8.18 continues:

In certain cases, local authorities must also arrange for an AMHP to consider the case of a patient who is in a hospital outside their area. This applies where the patient concerned is already detained for assessment on the basis of an application made by an AMHP acting on behalf of the local authority in question. If that local authority has reason to think that an application for admission for treatment may now be needed for the patient, it is that local authority, rather than the one for the area in which the hospital is, or where the patient lives, which is under a duty to arrange for an AMHP to consider making the further application. [my highlighting]

The code of Practice spells this out even further. Para14.37 says:

If a patient is already detained under section 2 as the result of an application made by an AMHP, the local authority on whose behalf that AMHP was acting is responsible for arranging for an AMHP to consider the patient’s case again if the local authority has reason to believe that an application under section 3 may be necessary. This applies even if the patient has been detained outside that local authority’s area.

To go back to the original scenario, the correct answer is Local Authority B, the local authority that initially made the Sec.2 application, even though the patient, who did not normally live in their area, is now in a hospital in another area.

So when I was contacted by the AMHP I mentioned at the beginning of this post, I reminded him of what Sec.13 said. He countered by suggesting that it was not appropriate for his local authority to undertake the assessment, but it was appropriate for ours to do it.

He was clearly relying on the last sentence of para14.37, which reads:

These duties do not prevent any other local authority from arranging for an AMHP to consider a patient’s case if that is more appropriate.

However, that does not place any obligation on our AMHP service to consider the case, which I pointed out.

He replied that it would involve a 2 hour journey to get to the hospital 80 miles away. My response was to point out that one of our AMHPs would have to travel 150 miles, which would take at least 3 hours, for a patient about whom we had less knowledge than Local Authority B. He then concluded that they would probably decide not to accept responsibility for the assessment.

As I thought that it was an interesting response for a local authority to refuse to undertake a task that was their legal duty, I decided to write this post.

But what about Local Authority C? P was definitely in their area, and not far for them to travel? Surely they would do the assessment on behalf of Local Authority B?

Unfortunately not. I had already had dealings with C’s AMHP service in the past, following a request for a Sec.3 assessment for a patient that we had detained under Sec.2. Their policy was to refuse any requests where they did not have a duty to respond. In that situation, an AMHP did have to travel 150 miles, and take an entire day, to do the assessment.

It’s all to do with duty versus power. Where AMHP’s have a duty to act, they have to act. Where they have the power to act, such as a situation where a patient in Local Authority X is taken by police under Sec.136 to a Sec.136 suite in Local Authority Y’s area, they could choose to do the assessment or not, while the AMHP in Local Authority Y would have to do it.

Our local authority, being a large, predominantly rural county, has several private hospitals which accept patients from all over the country. It is not uncommon for patients to be admitted under Sec.2 to these hospitals, and then be required to be assessed under Sec.3. Our AMHP service policy is generally to do these assessments, as long as the responsible local authority asks us nicely.

But we don’t have to.

Tuesday, 1 August 2017

Who’s Responsible for Finding a Bed?

"Good news -- we've opened a new ward!"
An AMHP has a number of powers: one of the most important is the power to make an application for detention to hospital under Sec.2, 3 & 4 of the Mental Health Act.

The trouble is, this power is meaningless if there isn’t a hospital identified that can receive the patient.

But let’s be clear from the start: although AMHPs have responsibility for the overall management of the assessment and subsequent admission, AMHPs are not responsible for finding a suitable, or indeed, any hospital bed.

This is stated unequivocally in the Code of Practice (para 14.77)

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 AMHP.

While it goes on to say that “in some cases, it could be agreed locally between the local authority and the relevant NHS bodies and communicated to the AMHP that this will be done by any AMHP involved in the assessment,” this is only subject to local agreement.

Usually, the doctor’s duty to find a bed is delegated either to the local Crisis Team (CRHTT) or a bed management team, both of which will be employed by the local Mental Health Trust.

For example, our local AMHP Service arrangements are for the AMHP to notify the relevant  bed management team of the need for a bed. There are separate bed management teams for adults and older people.

While in the past it was a matter of course that a bed was available prior to going out to make an assessment, nowadays, it is increasingly common for AMHP’s to be making assessments under the MHA for people in the community where no bed has been identified at the time of the assessment.

This is, of course, because of the huge number of psychiatric beds that have been closed in the last 7 years. This might not have mattered had there been a corresponding increase in community mental health services designed to reduce the need for hospital admission, but as there has at the same time been an actual reduction in community based front line staff, this has resulted in an even greater need for patients to be assessed in crisis and requiring a hospital bed as a matter of urgency.

While the AMHP is often in the firing line, and frequently receiving flak for the failure to find a bed in an emergency, behind the scenes the underlying cause for this appalling situation is the failure of the Clinical Commissioning Groups (CCGs) to comprehend and fulfill their legal requirements.

CCGs were created by the notorious Health & Social Care Act 2012. They replaced Primary Care Trusts, and are allegedly GP led.

There are three problems with CCGs:

·        Firstly, GPs are not necessarily the best people to be responsible for running an entire local NHS service. Otherwise, they would have gone into management, rather than being GPs. This may seem obvious to most people; but not, unfortunately to the Coalition Government that introduced the changes.

Secondly, CCGs tend not to cover the same geographical area as the PCT’s. For example, our large geographical county used to be covered by one PCT. There are now 5 separate CCGs covering the same area, all with different local arrangements and priorities.

Thirdly, unlike the PCTs they replaced, CCGs seem to be blissfully unaware of their legal duties under the MHA.

In particular, CCGs generally appear to be ignorant of Sec.140 MHA. As the Code of Practice points out:

CCGs are responsible for commissioning mental health services to meet the needs of their areas. Under section 140 of the Act, CCGs have a duty to notify local authorities in their areas of arrangements which are in force for the reception of patients in cases of special urgency or the provision of appropriate accommodation or facilities specifically designed for patients under the age of 18. The arrangements should include details of which providers in their area can receive patients in cases of special urgency and provide accommodation or facilities designed to be specifically suitable for patients under the age of 18.(para14.78)

Para14.79 of the CoP additionally, and unambiguously, states:

[NHS England] is responsible for the commissioning of secure mental health services and other specialist services. NHS commissioners should work with providers to ensure that procedures are in place through which beds can be identified whenever required.

What does this mean? Surely it means that in emergencies, for example, when an AMHP requires a hospital bed for a patient who has been assessed to be at intolerable risk if not detained under the MHA, then there will be a bed available for the patient within the area covered by the CCG.

It surely also means that when a bed is required in these circumstances for someone under the age of 18, then a bed should be available.

And NHS commissioners should be able to identify secure mental health beds (and other specialist beds, such as beds for children) “whenever required”.

But as every AMHP knows, this is not the reality.

There are frequently long delays in finding and providing beds for patients assessed under the MHA, and these beds are often hundreds of miles away. Locally, we have had cases of elderly people waiting so long for a bed to be found that the medical recommendations, which are valid for 14 days, have expired before a bed is found, meaning that a fresh assessment has to take place.

There is also a national shortage of suitable beds for under 18’s. Our local MH Trust has 10 beds for young people, but there are currently another 30 under 18’s placed in beds outside the area.

So what can an AMHP do in such circumstances?

In extremis, our local AMHPs have come up with some interesting solutions to the problem of assessing a patient as requiring admission under the MHA, but having no bed to admit the patient to. This often involves use of the Sec.136 suite.

One imaginative example was the case of a 15 year old child, living at home, whose behaviour was totally out of his parents’ control. The police were in attendance because of his violence and damage to property. The AMHP and two doctors assessed, and the doctors provided a medical recommendation for a Sec.2. There was no bed, but the AMHP felt that it was too dangerous for the child to be left at home while a bed was sourced.

The AMHP’s solution was to arrange for the patient to be taken to the local Sec.136 suite. While I was unsure of the precise legal authority for this transfer, the AMHP considered that it was a case of urgent necessity for the child to be in a safe place, and it was certainly in the child’s, and the parents’, best interests.

This remarkably concentrated the bed managers’ minds to the extent that a bed was found within a couple of hours, and the patient was able to be detained.

Another AMHP found themselves in a similar situation with another child. The child could not be left at home because of the risk factors, but no bed was identified. On this occasion, the bed management team’s solution to having no suitable children’s psychiatric bed was to arrange for the child to be admitted, under section, to a children’s medical ward in the local general hospital. Once a more appropriate bed was identified, the patient was then transferred.

A recent blog post by Mental Health Cop posits the idea that there may be another way of facilitating admission. His suggestion is based on the requirement in Sec.13(1A) if an AMHP is satisfied that an application under the MHA ought to be made, and that it is necessary and proper for the AMHP to make it, then “he shall make the application”. This lays a legal duty on the AMHP to make an application in these circumstances.

He then quotes at length from the biennial reports of the Mental Health Act Commission, the predecessor of the CQC, which used to have responsibility for overseeing the practice of the MHA. It is suggested that “in an emergency the [AMHP] should complete the applications, making it out to a hospital specified by the relevant health authority in the notice required to be given under Section 140 of the Act, and convey the patient to that hospital.”

The MHAC is suggesting not just that this is an option available to the AMHP, but that there is a legal imperative on the AMHP to take such action.

While this may have a certain attraction to the AMHP, dealing with a crisis situation, sitting in the home of a patient who really cannot in all conscience be left there, in practice there are many difficulties in following this course.

Not least of these is following guidance that relates to a different MHA (although the MHA is still known as the 1983 Act, it was heavily amended by the 2007 Act, which removed Approved Social Workers, at whom the MHAC guidance was directed, and replacing them with AMHPs.).

I would certainly be reluctant to turn up at a hospital quoting this guidance and invoking Sec.140, expecting the hospital managers to instantly find a bed.

I am afraid that I don’t think that this is a practical option for AMHPs to take. Ultimately, I still think the best option in such circumstances is, whether an application is made or not, to take the patient to the local Sec.136 suite.

In fact, just yesterday, one of our AMHPs , using a Sec.135(1) warrant, took an elderly patient to the Sec.136 suite and informed the bed managers that the patient would remain there until a bed was found. A bed magically appeared within an hour.

Thursday, 6 July 2017

How to Become an AMHP 2: The Interview

AMHP courses are almost invariably only open to employees of local authorities or mental health trusts. Even before having an interview, a candidate has to fulfill certain requirements.

As an example, my local authority stipulates that, as well as having at least 2 years’ post qualification experience, your line manager has to be prepared to allow you to undertake the training, with the commitment of time that that involves. All courses require a period of full time training, which will take you away from your day job for several months.

There is an expectation that you should have a sound knowledge of Care Act legislation, as well as safeguarding and mental capacity issues. Although it is not essential for a prospective AMHP trainee to have experience of working in a mental health setting, there is an expectation that they should shadow experienced AMHP colleagues while undertaking formal assessments under the MHA.

The putative AMHP then needs to make a formal application, and has to provide a written record of their continuing professional development (CPD) over the last 2 years, especially linked to mental health, with a reflective commentary, as well as providing a reflective analysis of their experience of shadowing a MHA assessment.

Social workers from any field are eligible to train as AMHPs. Clearly, working in a mental health team is relevant, but social workers working with older people and people with learning disabilities will also be in a position of working with people with mental disorder.

Although few children’s services social workers train as AMHPs, or are allowed to train by their line managers, these social workers are always welcome, as the Code of Practice advises that AMHPs with experience of working with children and families are ideally required when undertaking MHA assessments of young people under the age of 18.

Having overcome these initial hurdles, the prospective AMHP has to have a formal interview.

I have to confess that I have never had to undertake one of these interviews myself. This is because when I started to practice (back in 1981, as a Mental Welfare Officer under the Mental Health Act 1959), the requirements for acting as a MWO were somewhat less stringent. (If you want to know what it was like back then, have a read of my blog post about my first MHA assessment here.)

Members of the Masked AMHP Facebook group are often asked for guidance on how to prepare for the interview.

Those who have successfully managed the interview and have gone on to qualify often kindly offer hints and tips.

Here are a few of these hints and tips, taken from the threads on the Facebook group:

  • Look at the guiding principles in the code of practice.
  • Have some knowledge of current research into mental health and the AMHP role.
  • You will have extensive awareness already of the importance of narrative practice, partnership working and contingency planning - just expand on these and look at what it means to interview a service user in a suitable manner - whereby you will aim to reduce a service users anxieties to help inform the assessment and facilitate communication.
  • Demonstrate that you are aware of the importance of the role and its importance for adherence to the Human Rights Act.
  • Show that you have a basic awareness of the role and that your values are compatible with the role.
  • Stress the importance of informal admission as an example of striving for the least restrictive option. 
  • They won't expect you to have a detailed knowledge of the law or indeed the Code of Practice, but it is good to have a basic understanding and awareness of the role.
  • If your basic belief is that you would never section anybody, then you are probably not suited to managing the conflicts inherent in the role.
  • You must be aware of and ready for the time and effort commitments involved in the training, as the course will cost your employers several thousand pounds per candidate.
  • Give examples of anti-oppressive practice in your current role.
  • Awareness of and willingness to work in situations of risk.
  • Demonstrate your commitment to learning.
  • Try and just be yourself, as that demonstrates what you can bring to the role.

Finally, have a look at some of the relevant posts about the AMHP role on this blog:

Wednesday, 28 June 2017

How to Become an AMHP

The Masked AMHP's AMHP Warrant. Honest
Members of the Masked AMHP Facebook Mental Health Forum quite often ask what is entailed in becoming an Approved Mental Health Professional. I also get a number of people emailing me asking about it. Here, then, are some guidelines about the process.

Who is eligible to become an AMHP?

In order to be eligible to train as an AMHP, you have to be a qualified professional. Eligible professionals are social workers, mental health nurses, occupational therapists and clinical psychologists. Professionals will need to have at least 2 years post-qualification experience in order to be considered for training.

The Health and Care Professions Council (HCPC) is responsible for approving training courses for AMHPs. They state:

The criteria for approving AMHP programmes are designed to equip individuals with the threshold skills necessary to engage in safe and effective AMHP practice. They set out the processes and procedures that education providers delivering AMHP training must have in place, and the knowledge, understanding and skills that an individual must have when they complete their AMHP training.

AMHP training courses are almost invariably provided by universities. They may take different forms, and be of different lengths, but will generally last for between 6 and 12 months. They may be part-time, or have a combination of part-time and full-time modules. A practice placement, during which trainees are placed with AMHPs and take part in Mental Health Act assessments, is an essential and integral part of the training process.

At present, there are 20 universities and training consortia providing a total of 32 different qualifying programmes. All the courses are at postgraduate level, and the successful candidate will be awarded a range of qualifications: from a Postgraduate Certificate to a Postgraduate Diploma up to a MA or MSc degree.

How do I get onto an AMHP course?

The Code of Practice, para14.35, states that local authorities are responsible for ensuring that sufficient AMHPs are available to carry out their roles under the Act”. Your employing authority must therefore maintain an AMHP service that can fulfil their legal obligations. The local authority will therefore be responsible for paying the course fees and would have to authorise you to undertake the training. This would generally involve writing some sort of reflective piece relating to their experience and desire to train as an AMHP, as well as a formal interview involving the local authority and the academic lead of the course.

What if I don’t have a local authority prepared to give me the training?

I have to say that it is almost impossible for someone to train independently as an AMHP. 


While nearly all courses will refuse to take an independent student, the course on which I teach did take such a student this year. They, of course, had to pay the full cost of the course out of their own pocket, and also pay for a placement with the local authority sending students to the course.

At the end of the course, unless the student was prepared to work for the local authority as an AMHP, they would not actually be approved, but would be given the necessary evidence to show a prospective employer that they have successfully completed the qualifying training.

What does the training entail?

I teach on one of these AMHP training courses, so I will describe in more detail this particular course. The course is based within the university School of Social Work.

The course is at post-graduate level, and successful candidates receive a Postgraduate Diploma and will also receive credits towards a Master’s degree.

There is an initial part-time period of occasional days in university from October to December, then a full time segment from February through to June. There is a month of intensive teaching of the law and practice relating to AMHP practice and mental health, then a two month placement period, during which the candidates are placed with AMHPs and have to shadow at least 6 MHA assessments during the course of the placement.

The AMHP trainees then have to produce a portfolio, which must include evidence supporting a range of competencies, which are stipulated in the HCPC guidance. These competencies cover seven broad areas of practice: 
  • knowledge
  • autonomous practice
  • informed decision making
  • equality and diversity,
  • communication,
  • collaborative working, and 
  • assessment and intervention.

There is also a Law Test, which consists of case studies covering a cross section of the sort of assessments that AMHPs are likely to encounter, with questions designed to elicit the AMHP’s knowledge of law and practice.

Phew! Then what?

This is not, however, the end of the process. The HCPC points out:

Successful completion of an approved programme only makes an individual eligible to be approved to act as an AMHP. Only those who have completed approved training and have been approved to act as an AMHP by a Local Social Services Authority in England may perform the functions of an AMHP.

This means that, having completed the course, the LA in which they will be practicing has a panel meeting, during which each candidate if formally approved. They will then be issued with a warrant.

In our local authority, the newly warranted AMHP is then expected to undertake three Mental Health Act Assessments, during which they will be shadowed by an experienced AMHP. They are then deemed to be fully competent to practice independently.

See also the next post : The Interview

Thursday, 15 June 2017

The Meaning and Implications of “Previous Acquaintance” for Mental Health Act Assessments

You need two doctors when conducting MHA assessments
The use of doctors when conducting assessments under Sec.2, 3, or 4 of the Mental Health Act has to be done with care. The MHA stresses the importance of these medical practitioners either having special experience of mental disorder, or knowing the patient being assessed.

Sec.12(2) MHA states:
Of the medical recommendations given for the purposes of any such application, one shall be given by a practitioner approved … as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance.

The medical recommendation forms for Sections 2, 3 & 4 require doctors to state whether or not they had had "previous acquaintance". There is a pre-printed statement on these forms stating “I had previous acquaintance with the patient before I conducted that examination”. This is a default statement, which has to be crossed out if the doctor has not had previous acquaintance.

The Code of Practice expands a little on the issue of previous acquaintance:
14.73 Where practicable, at least one of the medical recommendations must be provided by a doctor with previous acquaintance with the patient. Preferably, this should be a doctor who has personally treated the patient. It is sufficient for the doctor to have had some previous knowledge of the patient’s case.
14.74 It is preferable that a doctor who does not have previous acquaintance with the patient be approved under section 12 of the Act. The Act requires that at least one of the doctors must be so approved.

The intention of the MHA is that the ideal assessing team would consist of the patient’s GP, who would be intimately acquainted with the patient, but who probably would not also be Sec.12 approved, and a Sec.12 doctor, who is likely to be a psychiatrist, but who may not have previously had contact with the patient.

However, in my experience, it is increasingly difficult to get a patient’s GP to attend a MHA assessment, whether in the community or in a hospital, as they are invariably too busy and understandably unwilling to abandon their surgery for what could be a protracted assessment process.

This increasingly means that the AMHP has to use two Sec.12 doctors. The AMHP may be fortunate if one of these has had previous acquaintance with the patient.

All of this raises two issues: what is meant by the term “previous acquaintance”, and what are the consequences of using two doctors, when neither of them have had “previous acquaintance”?

The AMHP’s application forms for Sec.2 & 3 has a statement saying:
If neither of the medical practitioners had previous acquaintance with the patient before making their recommendations, please explain why you could not get a recommendation from a medical practitioner who did have previous acquaintance with the patient.

If this is the case, then the AMHP must write a detailed explanation on the form justifying this omission.

The Reference Guide says this about previous acquaintance, which is the closest any of the guidance comes to giving a definition of “previous acquaintance”:
At least one of the doctors should, if practicable, have had previous acquaintance with the patient. Preferably, this doctor should have treated the patient personally, but case law has established that previous acquaintance need not involve personal acquaintance, provided the doctor in question has some knowledge of the patient and is not ‘coming to them cold’.(para. 8.40)

In fact, the Reference Guide likes this statement so much that it is repeated word for word later on, in para 28.41.

Ann R (By her Litigation Friend Joan T) v Bronglais Hospital Pembrokeshire and Derwen NHS Trust [2001] EWHC Admin 792 is perhaps the case law to which this is referring.

In this case, Ann R was a new patient to the GP in question. He had attended a meeting relating to the patient (but not relating to her mental health), had visited her for 5 minutes, and had scanned, but not read her medical notes. The Judge in the case held that prior “personal” acquaintance was not required. The GP had some knowledge of her background prior to the MHA assessment, and this was deemed to be all that was required.

In another case, TTM v LB Hackney [2010] EWHC 1349 (Admin), TTM attempted, among other things, to declare that their detention under Sec.3 MHA was unlawful on the grounds that neither doctor had “previous acquaintance” with the patient.

This was based on the fact that two doctors without “previous acquaintance” had provided the recommendations, even though doctors who knew the patient  were available. It was argued that external doctors were chosen because there was a division of opinion in the treating team. The court concluded that this was reasonable and took into account what was in the patient’s best interests, and therefore there was no breach of Sec.12(2). 

Not satisfied with the overall judgment, TTM took the case to the Court of Appeal (TTM (by his litigation friend TM v (1) London Borough of Hackney; (2) East London NHS Foundation Trust; (3) Secretary of State for Health [2011] EWCA Civ 4)

While the Court of Appeal upheld much of the patient’s case, they still concluded that there was no Sec.12(2) breach on the grounds that it had been reasonable to obtain two external opinions given the divergence of views between the treating doctors.

To summarise: there is no requirement for a doctor to have detailed knowledge of a patient in order to establish “previous acquaintance”.  It is enough to have had brief contact, perhaps in connection with a medical examination for an ear infection some years ago, or even a telephone conversation with the patient. Indeed, it is enough simply to have read the patient’s medical notes.

There are a number of valid circumstances in which an assessment can legitimately take place without a doctor with previous acquaintance. One example is an assessment I undertook just a few days ago. The police detained a man under Sec.136 following reports that he was knocking on neighbours’ doors and attempting to enter properties in the middle of the night.

The police were unable to use a Sec.136 suite in the patient’s locality as a place of safety, as the local one was occupied. They therefore took him to a place of safety elsewhere in the county 30 miles away.

It was impracticable for the GP  to attend because of the distance involved, and as the patient had had no previous involvement of any sort with secondary mental health services, there wasn’t a psychiatrist with previous acquaintance. I therefore used two local Sec.12 doctors to conduct the MHA assessment.

A similar situation may also occur when someone is detained under Sec.136 while elsewhere in the country, and where a patient requires assessment under the MHA in the middle of the night, it is very common for there to be no doctor available who knows the patient.

So it is just as well that there are justifications to the use of two doctors without previous acquaintance, otherwise the AMHP’s local authority could be liable to pay compensation for unlawful imprisonment.

Thursday, 25 May 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, 1 April 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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