When is it “not reasonably practicable” to consult the Nearest Relative? Some recent Case Law

Police discreetly executing a Sec.135 Warrant

A very recent (8th May 2013) High Court Case, TW v London Borough of Enfield and Another [2013] EWHC 1180 (QB) was asked to consider whether or not there was a case that Sec.139 was incompatible with the Human Rights Act.

 

As all AMHP’s will know, Sec.139 Mental Health Act 1983 exempts AMHP’s and others who are doing “any act purporting to be done in pursuance of this Act” from civil or criminal proceedings “unless the act was done in bad faith or without reasonable care”.

 

While at first glance this appears to be of interest primarily to lawyers, in fact the case hinges on the legality of a patient’s detention under Sec.3, and whether or not the ASW (the actual incident took place prior to the introduction of AMHP’s in 2008) acted unlawfully by not consulting with the patient’s Nearest Relative.

 

The bare bones of the case are as follows.

 

On 29^th June 2007 an ASW, 2 doctors and police executed a Sec.135 warrant and entered the property of TW. TW was then detained under Sec.3 MHA for treatment from her home and admitted to hospital. She remained subject to Sec.3 until she was discharged by a Tribunal on 14^th September 2007.

 

TW’s case was that, as her Nearest Relative was not consulted in accordance with the requirements of Sec.11(4), then the application was illegal and that the LA and the ASW had “acted in bad faith or at least with a lack of reasonable care.” She therefore wished to sue the MH Trust, the Local Authority and the ASW.

 

In fact, there is a considerable amount of information in the Judgment relating to the psychiatric history and the behaviour of TW. She had a formal diagnosis of OCD, and had had inpatient treatment in a psychiatric hospital in the past.

 

There were letters written by TW and other statements that she had made in regarding her relationship with her parents. Her father was the Nearest Relative. One of the letters to her psychiatrist stated: “"my Mum and Dad called the police and my Dad threatened to hit me and my Mum ran next door to a neighbour's house. I was outside when the police came. My Mum and Dad tried to section me through the police who tried to smash the car window and get me out but I was able to stay in the car and drive away fast. … There are to be no meetings with my family." She subsequently left a message stating that no information should be given to her parents.

 

In another letter she stated: “My Dad threatened to smash my face in once again on the phone on my birthday and my Mum was making it worse”. This letter went on to say that “I would like my Mum to be taken off as my next of kin and my Dad off as the nearest relative." She suggested that she would like another person to act as her NR.

 

The Sec.135 and subsequent Sec.3 were triggered by a number of incidents prior to 29th June 2007. It was reported that TW “had hit a neighbour on 17th June 2007. She had been taking the rubbish out of the neighbour's dustbins into her flat. She had been unwilling to engage with support services or to allow them access to her flat. The flat was filled with rubbish and posed a risk to her and others because of the fire hazard.”

 

The Judgment records both the patient’s account of her assessment and detention, and the ASW’s account. They differ markedly from each other.

 

TW stated: "29th June 2007 was the day I was sectioned. More than nine people, including three police officers, doctors [and] officers from Environmental Health to section me. I was upstairs about to wash my hair and therefore when they knocked on the door I did not come to the door straightaway. They smashed my door in and humiliated me in front of all my neighbours. I was extremely frightened and felt totally helpless. As I did not recognise anyone in particular I shouted out aloud to them to call my parents. They must have heard me but simply ignored my requests."

 

It was reported that, according to the ASW, TW “spoke to the assessing team through her window but continued to refuse to open the door. The police then had no alternative but to execute the warrant to enter the property. The Applicant came downstairs shouting that she did not want anyone to come into her property, but then allowed Dr Duignan and Ms Muschett [the ASW] in.”

 

In considering whether or not to consult the Nearest Relative, the ASW clearly considered the case law of R(E) v Bristol City Council (2005). In this particular case, “the patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to become involved.” In that case, the Judge concluded that “"practicable" and "reasonably practicable" can be interpreted to include taking account of the Applicant's wishes and/or her health and well-being."

 

This Judgment is frequently considered by AMHP’s when deciding whether or not to consult with the NR, and evidence that an AMHP has thought about this is often sought in AMHP’s MHA Assessment Reports.

 

It appears that TW wanted things both ways. She wanted mental health services to respect her wishes that they not give any information to her parents, and gave testimony that the relationship with her parents had irretrievably broken down. At the same time, however, she wanted to sue the same authorities for not consulting with them.

 

The Judge stated that TW “had repeatedly, in dictated letters, instructed Enfield's staff not to involve her family. She had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality. These were not deluded ravings, and Ms Muschett and her colleagues were right to treat them seriously.”

 

He concluded that: “The evidence of Enfield's witnesses is that they considered that involving TW's father on 29 June 2007 would be likely to cause her distress and emotional upset... The test on this issue is a subjective one, and a matter of professional judgment.”

 

The Judge went on to say “it is clear that it was "not reasonably practicable", within the meaning of Sec.11(4) of the Mental Health Act 1983, for Enfield to have consulted TW's father before applying for her admission for treatment on 29 June 2007; and that the claim against Enfield is therefore bound to fail.”

 

This is further reinforcement of the AMHP’s duty to consider very carefully the implications of consultation with the Nearest Relative when making an application under Sec.3, and not to be afraid to take into account the wishes of the patient in relation to consultation with the NR, and therefore to make a decision not to consult where the evidence indicates that harm or distress may be incurred by the patient.

Origins 6: More of My First Caseload

Part 6 in an occasional series about my early years as a social worker (also known as Reminiscence Therapy.)

May contain triggers for abuse

Bobby’s story has been buzzing around in my mind for months, but I’ve been hesitating to write it down. It is so outlandish as to be almost unbelievable. And yet, when I inherited his case as a very junior, inexperienced and unqualified social worker in the 1970’s, I remember that I just took it all in my stride. Working with such people is just what a social worker does, I assumed. And Bobby’s story somehow needs to be told, somewhere.

Bobby was in his 30’s. He had severe learning difficulties. He lived with his mother and two brothers in a primitive cottage in a small village a few miles outside Charwood.

I began by reading Bobby’s file. Bobby’s file went back to his birth in the 1940’s. At birth, he was formally classified as having severe “mental subnormality”. In fact, his official designation was “cretin”. “Idiot” and “imbecile” were other classifications of “mental subnormality” in common clinical use at the time he was born.

Bobby had a full-scale IQ of around 40. I’m not sure how they were even able to calculate that with any degree of certainty. He also had severe congenital abnormalities. He had gargoylism, which I now know to be a genetic condition characterised by dwarfism, learning difficulties and facial abnormalities. Bobby was a little over 4 feet tall, with a barrel chest and a large head, with eyes that somehow appeared to display awareness and intelligence.

His mother also had learning difficulties, as did two of his three brothers. In fact, they had all been inmates of Fairville, the local learning difficulties hospital at various times, and for various reasons. Fairville, despite its name, was a rather miserable looking Victorian asylum in the middle of the countryside which specialised in “mental handicap”, as the politically correct term for it was in the late 70’s (“mental subnormality” having fallen out of favour by the time I began in social work).

The deeper I delved into the file, the more incredible this family’s story appeared.

In the 1920’s, Bobby’s mother had become pregnant at the age of 15. The father was her cousin. The child was born with learning difficulties. Bobby’s mother was placed in Fairville for being a “moral defective” and spent several years there, although subsequently appeared to have been allowed to have her baby back.

Bobby’s mother then had two more sons. It was unclear who the father was, as she never married. One of them I never met, although he also appeared to have had learning difficulties, and the file recorded that he had been incarcerated in Fairville at some stage for being a “moral defective” after being convicted of sexual offences against animals.

Then Bobby’s mother became pregnant again, and gave birth to Bobby.

The file recorded that the social worker at the time that Bobby was about 8 years old conducted a home visit, and Bobby complained to him that he was prevented from sleeping in his mother’s bed because his elder brother kept throwing him out of the room.

There was an investigation. It turned out that Bobby’s eldest brother was, in fact, also his father.

His brother went to court (it appears they spared Bobby’s mother). He was found guilty of incest and was placed in Fairville as being deemed to be a “moral defective”.

But all that was in the past, long before I became Bobby’s social worker.

So despite the extremely murky history, Bobby lived with his mother, a brother who also happened to be his father, and one other brother. The other brother did not have any learning difficulties, and actually held down a full time job.

So what was my task as a social worker with Bobby?

This mainly consisted of supporting his mother as Bobby’s main carer, as well as troubleshooting the scrapes that Bobby got himself into from time to time.

Bobby was far too disabled to attend the local sheltered workshop for people with learning difficulties (such places used to be called adult training centres), so his main pastime was roaming the lanes of the village while chewing a catalogue. He loved catalogues. The bigger the better. He would put it to his mouth as if playing a harmonica, then chew it.

The villagers in general had a high threshold of acceptance for Bobby and his family. But occasionally I would get letters from the clerk to the parish council complaining about his behaviour. The principle problem was Bobby’s need to urinate from time to time during his village forays. He was oblivious to where he might be, or who might be watching, during these necessary interludes. I would then have to have words with Bobby’s mother and write some sort of ameliorating reply to the clerk to the parish council.

During the two years that I worked with Bobby, I never understood a single word he spoke, although his mother appeared to be able to converse with him, and would then interpret.

From time to time, I would arrange respite care for Bobby. This was generally in a respite ward at Fairville.

At other times, I would take him and his mother to see the doctor if he became ill. When Bobby developed a cold or other infection, he appeared to become psychotic. It was apparent from the way he moved his eyes and head that he was responding to voices, and during these times would converse unintelligibly with them.

At Christmas, I would take the family a box of groceries. Charwood Social Services would always receive hampers of basic food items at Christmas, and we would then distribute them to needy clients. Bobby’s mother always made sure she was on my list, by writing me a gentle reminder a little before the time.

“I’m just taking the pleasure in writing to you,” she always began, before launching into a request for assistance. She always signed these letters, “Your Sturly”.

With the benefit of hindsight, and in the light of the many years of changes in Society’s attitude to people with learning difficulties, I do wonder whether there was more that I could have done for Bobby and his mother.

It was as if they were fixed by their life experiences, going back to the 1920’s in his mother’s case, and living as they were in a cottage, and a rural community, which had changed little since Victorian times. Bobby’s mother still remembered the old “Poor Law” system, where it was necessary to defer to those with power over you in order to get even basic support. And there was always the risk of being branded a “moral defective” and being locked up in an asylum if you didn’t toe the line.

But, paternalistic or not, at least the social services department was assisting the family to stay together in the community in which they had always lived.

When Do You Intervene When Someone’s Suicidal?

The inquest on Bryan Jobson, who lived in Leeds, was concluded on 1^st May 2013. Mr Jobson hanged himself with a noose suspended from his loft hatch in February 2011.

 

What was particularly remarkable in this case, and which resulted in the inquest being reported not only in the Yorkshire Evening Post, but also in the DailyMirror, was that two mental health nurses from the local Crisis Team had visited him the day before he killed himself, and saw the noose hanging from the open loft hatch, with a chair directly underneath it.

 

It is reported that Mr Jobson, who was 44, had previously attempted suicide, that his relationship with his wife had broken down, and that he had recently experienced the loss of others close to him. The visit by the two nurses was in response to a call he had made to the Crisis Team.

 

It was reported that one of the nurses, who saw the noose and chair, told the inquest: “We were thinking about legal aspects. We are not allowed to touch things without their permission. I know it seems ridiculous, but we have rules to abide by.”

 

The nurses left him after gaining an assurance from Mr Jobson that he would not take his own life and would engage with the Crisis Team.

 

I do not know all the circumstances of this case other than what I have read in the press, and do not wish to comment further on this specific case, except to say that, from the inquest report, it is clear that these professionals were caring and experienced people who were acting in what they genuinely felt were the best interests of Mr Jobson.

 

However, the situation those two workers found themselves in does merit further examination.

 

Community Mental Health Workers often find themselves in the position of having to make an assessment of risk. This can be in a routine assessment, when a patient reveals a history of self harm or suicide attempts, or tells the interviewer that they feel suicidal and have plans to end their life.

 

It can also be in situations of acute risk, where the worker discovers that a patient has been stockpiling medication with suicidal intent, or has purchased a hose to connect to their car exhaust, or has made a noose or other ligature.

 

In these situations, a professional has to make a decision as to whether or not further action needs to be taken, such as arranging for a hospital admission, or considering conducting an assessment under the Mental Health Act.

 

In all cases, the risk of harm to the patient has to be balanced with the need to allow the person self determination and to respect their privacy and personal rights.

 

Certainly our local Mental Health Trust’s Policy on Self Harm encourages positive risk taking, which is described as “a person centred approach focusing on the service user’s strengths and the support required to enable them to take control over their behaviour.”

 

I often work with people who deliberately self harm, typically by cutting themselves, although there can be a wide range of self harming behaviours. It is important to distinguish cutting as a means of releasing distress, with cutting designed to cause serious harm or even death.

 

But what do you do when a patient reports that they not only have the means to take their own life, but also have the stated intent?

 

It is reported in Bryan Jobson’s inquest that the nurses were prevented from touching the property of a patient because of “rules that had to be abided by”.

 

I am not actually aware of any National or local guidelines or policies that prevent a mental health professional from taking action designed to reduce the risk of death or serious self harm.

 

Certainly, on the local psychiatric ward, one of the first things staff do when someone is admitted is to inspect their property and remove anything that could be used to harm themselves, or cause harm to others, such as razor blades, laces, belts, or other things which could readily be used as a ligature. This goes equally for informal as well as detained patients.

 

To reinforce such basic commonsense steps to safeguard vulnerable people, the Mental Capacity Act is designed at least in part to provide guidelines on what constitutes reasonable action to take to safeguard people who lack capacity.

 

One of the fundamental principles of the Mental Capacity Act is that anything done should be in the best interests of the person. However, “people have the right to make decisions that others might think are unwise. A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision.” (MCA Code of Practice Ch2.)

 

It should not therefore automatically be assumed, just because someone is stating the intent to end their life, that they lack capacity.

 

But any person, not just a mental health professional, is able to make an assessment of risk and take appropriate action in order to protect another.

 

A very basic example is that of a small child who is about to step into the path of a lorry. Their carer will make an instant assessment of the risk of harm if the child were to step off the kerb, and would then act to prevent the child from doing so.

 

The same would apply to an adult with learning difficulties who lacked capacity and was oblivious to the danger.

 

Not long ago, I was working with a woman with severe depression. She confided to me during one of my visits that she had been systematically going round the local pharmacies and had been stockpiling paracetamol. She made it clear that she was intending to take these tablets.

 

I asked her to let me have the tablets and give an undertaking that she would not attempt to take her own life. She agreed to this. We were able to involve the Crisis Team, who worked with her until the risk subsided, and we were able to avoid a hospital admission.

 

But what if she had refused to give me the tablets? While I would not have felt able to physically snatch them from her, I would have taken account of this refusal in terms of the additional risk it posed, made a brief assessment of her capacity to make the decision to refuse, and would have initiated an assessment for her detention under the Mental Health Act.

 

And if she had been in the act of swallowing the tablets, then indeed, I would have forcibly removed them from her.

 

After all, what would I rather have to do? Justify my decision to a court, because the person was suing me for interfering with their property, or to a disciplinary panel because I had broken some rule or another?

 

Or justify my decision to an inquest?

On the Joys of Supervising an AMHP Trainee

The Masked AMHP unobtrusively observing his AMHP trainee while she is leading a Mental Health Act Assessment

I’m currently a practice educator for one of our Approved Mental Health Professional trainees from the local AMHP course. It’s a real pleasure. I’ll tell you why.

 

AMHP trainees by definition are qualified and experienced workers. Our current intake consists of a mixture of social workers and nurses. My own trainee (or candidate as they’re known by our course), whom I’ll call Floella, mainly because it’ll wind her up, is exceptionally experienced. (Hi Floella!). She’s been a mental health nurse for over 30 years, working mainly with older people.

 

AMHP trainees are largely responsible for organising their own learning, with guidance from the practice educator. This means that during the 8 week placement, Floella has arranged a large variety of observation visits, and has also, in conjunction with the other trainees, arranged to shadow the local AMHP rota, in order to gain opportunities to shadow other AMHP’s conducting Mental Health Act Assessments.

 

Which is just as well, as until last week, the Masked AMHP had not had a single MHA assessment that coincided with Floella being present at my CMHT. Sometimes that’s how it goes.

 

AMHP trainees have to shadow a minimum of 6 MHA assessments. They also have to complete a fairly intensive and detailed portfolio (the course is after all at Master’s level), which much include evidence of an exhaustive list of competencies, all of which are essential in order to practice as a fully blown AMHP.

 

The practice educator has to directly observe the AMHP trainee conducting at least two pieces of work, which must be face to face contact with service users. The practice educator has to provide supervision, oversee the learning opportunities available to the trainee, and ensure that the portfolio meets the requirements of the course. All in 8 weeks.

 

This is in marked contrast to supervising a social work student on placement. For a start, the placement is a lot longer. A social work student may have no previous experience at all of mental health, and may therefore need a considerable run in time, during which they may merely observe, get used to the nature of the work required, and learn the specific protocols and paperwork. They will be working on placement towards developing fairly basic competencies, in contrast to the competencies required to practice as an AMHP.

 

So what of Floella? As I said at the beginning, being her practice educator has been a real pleasure. From day one she was able to provide evidence of her confidence and skills. All I have really needed to do is observe, facilitate, review her burgeoning evidence portfolio, and ensure that she is using her skills and knowledge in the appropriate way to inform her practice under the Mental Health Act.

 

Oh, and once or twice to remind her that the role of the AMHP is distinct from the role of mental health nurse. (Don't take a patient's pulse while undertaking a MHA, unless they're clearly comatose.)

 

As an AMHP trainee’s shadowing experience on MHA assessments progresses, they are expected to take on an increasingly active role in the assessments themselves.

 

And I needed to see that myself before the placement ended. I needed to observe her directly during a MHA assessment.

 

This is not to say that Floella had not seen the Masked AMHP in any sort of MHA related action. She had observed me presenting a report to a Managers Hearing. She had witnessed me revoking a CTO. She had attended S.117 review meetings. But no actual MHA assessments (that is, a request to assess a patient for admission under either Sec.2, 3, or 4).

 

So, since merely being in the physical presence of the Masked AMHP had not resulted in an actual MHA assessment materialising, I decided that we would base ourselves at AMHP headquarters for the day. This office is based at Charwood Hospital. If necessary, we could cold call the wards to see if they might like a Sec.2 patient considering  for a Sec.3, or if they had a brand new Sec.5(2) that needed reviewing.

 

Floella and I discussed her learning requirements. She had already had a good cross section of formal assessments, including obtaining a Sec.135 warrant, and an assessment of someone with learning difficulties. We concluded that it would be good for her to assess an older person, since although she was used to working with older people with mental health problems, the act of assessing as an AMHP under the MHA was a distinct function. We also thought it would be good to assess someone already in hospital for a Sec.3.

 

You never get what you wish you, do you?

 

But sometimes you do. We got a call late morning. An elderly man in his late 80’s. Ralph had been admitted to the older people’s unit about 6 weeks previously under Sec.2 suffering with severe depression. He had then remained as an informal patient and had appeared to be improving until his blood sodium levels plummeted because of his antidepressant. The medication had to be stopped, and as a consequence his mood dipped again, he stopped eating and taking fluids, he lost weight and became physically very frail. His Consultant wanted to detain him under Sec.3 in order to give him ECT.

 

Floella took charge of the assessment process, while I sat back with a coffee and observed.

 

She contacted the ward and spoke to the Consultant. She obtained background information. Ralph had a history of depression going back over 20 years, and had benefited from ECT in the past.

 

She contacted a Sec.12 doctor and arranged a time to undertake a joint assessment.

 

She identified and contacted the Nearest Relative, who was Ralph’s daughter, as Ralph was a widower. The NR did not object to the proposed Sec.3, although had some concerns about the ECT.

 

Floella checked out the legislation. Sec.58A of the MHA was introduced by the 2007 changes. It covers Electro-convulsive Therapy. ECT can be given in an emergency, or if the patient agrees, or if the patient lacks capacity but it is considered to be in their best interests. However, a significant change is that ECT cannot be given under any circumstances if the patient has made an advance decision concerning treatment.

 

Floella confirmed that no advance decision had been made.

 

We went to the ward and Floella led the interview. It was clear that Ralph was physically very unwell, was extremely depressed, and, although he showed no signs of dementia, he was clearly unable to give informed consent about treatment, and would be likely to refuse in any case.

 

Floella reached the conclusion that Ralph was suffering from a mental disorder “of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital”, that “it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section”, and that appropriate medical treatment was available. It is correctly not the role of the AMHP to reach a decision concerning the merits or otherwise of any particular form of treatment.

 

I agreed with her, and completed the application.

 

Floella then wrote the AMHP assessment report that should be left on the ward with the application, informed the patient and the NR of the decisions that had been taken, and the assessment was completed.

 

I think I’d like to take an AMHP trainee with me on every MHA assessment I am called to do.