Thursday, 5 September 2019

What is a hospital within the meaning of the Mental Health Act?

Artist's impression of a NHS hospital ward following Brexit

You’d think that some words do not need interpretation or explanation. We’re all quite clear about what constitutes a “hospital”, surely.

But as with many things to do with the Mental Health Act, things are not necessarily as straightforward as they may appear.

This particular question arose in our AMHP hub following a MHA assessment of a patient in a hospice. Since the hospice was part of a larger hospital, and since the hospice had wards, doctors and patients who lived in the hospice, then it must be a hospital, and an inpatient could therefore be detained to it.

Couldn’t they?

In order to answer this question, I will have to delve into the really boring bits of the Mental Health Act, the bits no-one ever reads unless they really have to. This includes the interminable Part VI, which is concerned with “Removal and Return of Patients within United Kingdom, etc”. (By the way, did you realise that the MHA includes a whole section, s.86, which concentrates on removal of aliens?)

Part X relates to “Miscellaneous Provisions”, and this is where everything that needs to be in the MHA, but which doesn’t fit anywhere else, exists. Within this Part is everything to do with Independent Mental Health Advocates, which were created by the MHA 2007. Oh, and s.135 and s.136, for some reason, which are rather important parts of the MHA.

Fun fact: s.135 and s.136, to do with applying for warrants and the police power to detain to a place of safety, first appear in the MHA 1959. When the MHA 1983 was drafted, their numbers remained unchanged, which is why they are in a comparatively obscure part of the Act. It was a widespread belief among ASWs back then that these sections remained because the police would not be able to cope with the sections being given different numbers.

Anyway, Part X contains s.145. This consists of a list of definitions of terms used in the MHA. S.145(1) states:

“Hospital” means—
(a) any health service hospital within the meaning of the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 the Secretary of State where the Secretary is responsible for the administration of the hospital; or
(b) any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under that Act; and
(c) any hospital as defined by section 206 of the National Health Service (Wales) Act 2006 which is vested in a Local Health Board; and “hospital within the meaning of Part II of this Act” has the meaning given in section 34 above

That’s all quite clear, isn’t it?

No, me neither.

So it then becomes necessary to rove outside the MHA and into other parts of legislation, in particular the National Health Service Act 2006. S.275(1) gives its own definition of “hospital”.

“Hospital” means—
(a) any institution for the reception and treatment of persons suffering from illness,
(b) any maternity home, and
(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation

While this seems somewhat closer to an easily comprehensible definition, it is still necessary to go even further afield to the Health & Social Care Act 2008. This is all about the functions of the Care Quality Commission (CQC). Chapter 2 is concerned with the necessity for registration with the CQC in order to provide health and social care services.

But we’re not there yet, as the crucial part of this legislation is The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This states precisely who can, and who can’t, provide assessment or medical treatment for persons detained under the MHA.

5(1) requires that a hospital which is providing “the assessment of, or medical treatment (other than surgical procedures) for, a mental disorder affecting a person in a hospital where that person is… detained in that hospital pursuant to the provisions of the 1983 Act” must be registered with the CQC.

And now we come full circle, because 5(3) states that: “’hospital’ means a hospital within the meaning of Part 2 of the 1983 Act”.

What all this means in lay terms is that a hospital has to be registered with the CQC in order to receive and accommodate mental health patients detained under the MHA.

This will always apply to NHS psychiatric hospitals, as well as most independent psychiatric hospitals, and many, but not all, general acute hospitals.

And it did not apply to this particular hospice, even though it was part of a hospital, since the hospital was not registered with the CQC for this purpose.

This raises the question of what happens if a patient is in a specialist hospital setting not designed for people with mental disorder, but whose behaviour indicates the need for detention, but who nevertheless would best be accommodated in the specialist hospital.

An example might be a hospital unit specifically for the rehabilitation of people who have suffered a stroke. I was once asked to assess such a patient. His behaviour had alarmed the rehabilitation team, but when I actually came to assess him, it became clear that his behaviour was entirely due to his distress at the disability the stroke had induced, which included difficulties in communicating his needs.

It was clear that he did not need assessment or treatment in a psychiatric hospital, as he precisely needed the rehabilitation programme available in the unit. I did not detain him, and persuaded the treating team that he should remain where he was, much to the relief of him and his wife.

In such circumstances, if the person is assessed as lacking capacity to make informed decisions about remaining in the hospital, then DoLS ought to be considered.

What about s.5(2) & (4)?

These are hospital holding powers, to prevent an inpatient from leaving until a formal assessment under s.2 or s.3 MHA has been made.

A hospital does not have to be a psychiatric hospital to use the powers; general hospitals can also use them. However, such hospitals would still need to be registered with the CQC, so this particular hospital could not even use s.5(2) or s.5(4).

Such a hospital would have to apply for an emergency DoLS in order to prevent the patient from leaving until a MHA assessment had taken place, and then only if the patient was assessed as lacking the capacity to make a decision about discharge.

(I am thankful to a member of CQC staff for pointing this out to me.)

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