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

I for one was certainly relieved when the Judge in DD v Durham County Council dismissed DD’s attempt to sue AMHP’s for breaching his human rights by not satisfying themselves that a particular hospital placement was suitable for his needs before sectioning him.

 

I wrote more fully about this case in August 2012. The Judge then concluded:

 

“It is obvious that an AMHP is not directly responsible for the medical or other regimes to which a detained person is subjected… An AMHP has certain responsibilities under the Mental Health Act which include recommending a person for detention under s.2 or under s.3. Their responsibilities have to be discharged in the light of all the relevant circumstances of the case, which would include taking into account the assessments of qualified doctors. Their functions do not extend, however, to choosing an institution in which the person concerned is to be detained – still less to researching the available facilities or carrying out a reconnaissance to assess their quality.”

 

But that is unfortunately not the end of the matter. In January 2013, the Court of Appeal ((2013) EWCA Civ 96) heard the claimant’s appeal against this earlier decision, and decided that there was enough of a case that it should be reconsidered.

 

DD’s legal representative contended that “the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty…Under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held. Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps to ensure that the patient's Article 3 and 8 rights were not infringed.”

 

It was submitted that the medical practitioners making the assessment were only responsible for making a recommendation regarding detention; it is therefore the duty of the AMHP under Sec.13(2) to be satisfied that a particular hospital is suitable.

 

Sec.13(2) relates to the AMHP’s duty to interview the patient:

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

 

Durham had argued that this duty related to “a” hospital, and not a specific hospital. It was therefore a general duty to establish that the patient needed to be detained in a hospital, not a duty to identify the exact hospital in which the patient needed to be detained.

 

DD’s legal representative, however, maintained that “the AMHP must put himself in a position where proper independent judgment as to the recommendation made by the doctors can be scrutinised and a decision made as to whether what is proposed or recommended by them is the proper place for an assessment or for treatment”.

 

The judge, concluding that “the scope of the duty of an AMHP is a question of law of some importance” therefore decided that the case should be heard and decided in the High Court, recognising the implications of a finding in favour of DD.

 

So what are the implications, if the High Court finds in favour of DD?

 

AMHP’s have certainly always seen the job of finding a bed as being the responsibility of the medical practitioner or the local hospital itself.

 

Although protocols vary, essentially either the local Crisis Team or a designated Bed Manager in the hospital would have the job of arranging for a bed. The AMHP would clearly prefer that that bed should be in the hospital nearest to the patient, but if that is not possible, then the hospital has to find a bed somewhere else. That may be anywhere within the particular Mental Health Trust, or failing that, even further afield. Sometimes beds in private hospitals are arranged. Sometimes these beds can be over a hundred miles away.

 

But the concern has always been to find “a” bed, and where there is a delay, this task is undertaken by others while the AMHP is occupied at the patient’s house.

 

So what would be the implications if an AMHP had to find not just any old bed, but a bed in a ward which was uniquely suitable for the particular patient?

 

Para4.75 of The Code of Practice states:
"If the doctors reach the opinion that the patient needs to be admitted to hospital, it is their responsibility to take the necessary steps to secure a suitable hospital bed. It is not the responsibility of the applicant, unless it has been agreed locally between the LSSA and the relevant NHS bodies that this will be done by any AMHP involved in the assessment. Primary care trusts are responsible for commissioning mental health services to meet the needs of their areas. They should ensure that procedures are in place through which beds can be identified where required."

The Code of Practice gives many examples of things that AMHP’s should be responsible for, eg. arranging for the care of children and pets, and there are certainly enough tasks to keep the AMHP fully occupied without seeking a suitable placement for the patient. How would they do that while they were trying to manage all their other duties?

 

With many Trusts radically reducing the numbers of beds, it is frequently a cause of major delay simply to find a bed at all. It would lead to delays of potentially weeks before the right bed was found. What would happen to the patient in the meantime? What would happen to the AMHP, since they would by definition not be able to delegate that function?

 

The eminent David Hewitt, writing in the Solicitors Journal (Heading down the wrong road) was very dubious about this case. He concluded:

 

"More than 30 years after the current Mental Health Act was introduced, there seems little appetite for the changes they would entail. It is one thing to give a patient his day in court. It would be quite another thing, however, to find that an AMHP, who may be unfamiliar with - and even have no part in the selection of - a hospital, is in some way liable for everything the patient subsequently encounters there.”

 

A judgment in favour of DD would quite simply make the role of the AMHP utterly impossible, and the Mental Health Act completely unworkable.