“Detained” and “Liable to be detained”: Is There a Difference?

While people involved with the Mental Health Act often use the term “section” as a verb (“I section you”, “You are sectioned”, “That bastard sectioned me”, etc) what this actually means is that the appropriate paperwork has been completed which authorises the detention of a patient under the MHA.

There is a difference between the terms “detained” and “liable to be detained”. This difference can be quite crucial to an AMHP who is seeking to detain a patient in the community, as he or she needs to have the authority to convince other professionals, in particular the police and ambulance crews, that a person is indeed “detained”.

The Mental Health Act itself does not define either term. However, the Reference Guide states (Para1.36):

“The Act sometimes (but not always) distinguishes between people who are “detained” and those who are “liable to be detained”. This latter term includes people who are actually detained (eg people who are in hospital and would be stopped from leaving if they tried to) and people who could lawfully be detained but who, for some reason, are not.”

Although the current Code of Practice does not elucidate further, the new Draft CoP has a helpful section which gives definitions of many of the terms used in the Act. The Draft Code defines “detained patient” as follows: “a patient who is detained in hospital under the Act, or who is liable to be detained in hospital but who is (for any reason) currently out of hospital.”

So a detained patient is generally a patient who is physically detained under either Sec.2, Sec.3 or Sec.4 of the MHA. But in reality, as soon as an AMHP has completed a written application under any of these sections, the patient is “liable to be detained”, even though they may at that moment still be in their own home.

An AMHP may even be sitting in the AMHP office, having assessed someone at home, and having obtained two medical recommendations (or even just one, for a Sec.4), then fills in and signs the application. At that moment, wherever the patient may be, the patient suddenly becomes “liable for detention”.

This “detention at a distance” does happen from time to time. I recall an incident when, having assessed a person in his home with two doctors, who then gave me their recommendations, I was persuaded to delay completing my application by the relatives, who assured me that they would look after him and make sure he had his medication. I was trying to follow the least restrictive option.

Thirty minutes later, I received a call from his mother to say that he had grabbed his car keys and had gone off recklessly at top speed towards an unknown destination. I duly sat in my office and completed my application, rendering him “liable for detention” – then let the police know that he had absconded and should be returned to hospital.

Once a person is liable for detention, even if they then abscond, they can be considered to be absent without leave, at which point Sec.137 & Sec.138 come into play. Sec.137(1) deems anyone liable to be detained to be "in custody". Sec.138 then gives powers to an AMHP, a police officer, or indeed any other authorised person, for the patient to be "retaken" and transported to the hospital named on the Sec.2, 3 or 4 detention forms.

Finally, reference is made in the Draft Code to the term “liable to be detained” with reference to Sec.135. It states:

“A section 135 warrant provided by a magistrate enables a police officer to enter premises to either: remove a person to a place of safety to make an application under part 2 or other arrangements for their care or treatment; or take or retake into custody a patient who is liable to be detained under the Act”.

In my experience, not enough police officers are familiar with their powers and duties in relation to patients who are “liable to be detained”. Indeed, we recently had a situation when, having obtained a Sec.135(2) warrant to return a detained patient who had refused to come back from S.17 leave, we had an argument with a duty sergeant who refused to believe that a constable had any role to play in executing this particular warrant.

The Case of QR: Capacity and Tenancy Agreements

This very recent judgment was published on 5thAugust 2014. It concerns tenancy agreements, and the issue of a person’s capacity to end, or indeed, to take out a tenancy agreement. It also highlights a situation which is covered by neither the Mental Health Act nor the Mental Capacity Act, but requires referral to the Court of Protection for a decision.

QR is a woman of 62. She has a diagnosis of paranoid schizophrenia. Her first serious episode was in 1995 at the age of 43, and she has had numerous detentions under both Sec.2 & Sec.3 MHA since then. She was discharged from hospital in December 2010, since when she has been subject to a CTO. Until her most recent admission to hospital, she lived in a local authority flat, and still has the tenancy of this property.

One of the conditions of the CTO is to reside in “ABC”, a residential treatment centre run by the local authority. The mental health team now consider that she no longer needs this level of support. However, the Judge records: “She must live in accommodation which provides 24 hour support and monitoring, so that QR will continue to be compliant with her medication and avoid the risk of a possibly fatal relapse.”

Her team now want her to live in a more independent living situation, but consider that there is too great a risk to her health and safety for her to return to her previous flat. However, QR will need to sign a tenancy agreement in order to move into a supported living flat, and must first surrender her existing tenancy.

In the words of the Judge the crux of the case is that “QR objects to the application on the grounds that she has capacity to decide whether to surrender the tenancy of her current flat and to sign a tenancy agreement for supported living accommodation.  She does not wish to surrender the secure tenancy of her council flat which is important to her and she does not wish to move to any of the proposed supported living options which have been proposed”.

The issue the Judge had to decide was whether or not QR has the capacity to decide where she should live, to surrender the tenancy of her flat and to sign a new tenancy agreement.

The issue of capacity is, of course, situation specific. A person may have the capacity to decide whether or not to have a cup of tea, but may lack the capacity to make a decision about where they should live.

In this particular case, the Judge concluded that “I am satisfied that QR is unable to make the decisions at stake in this case as a result of the nature of her mental illness.” He went on to say that “QR is not able to give weight to the issue of central importance in the arrangements which [the mental health team] propose, the reason why she needs to take her medication.”

This particular case has not yet reached a conclusion. Still to be decided is “what further evidence if any is required in order that a best interests decision on the issues before the court can be made.”

The implications of this case relate to the issue of the ability of someone with a mental disorder of any sort to either take on a tenancy or to relinquish a tenancy.

This has often not been considered when making arrangements for people who may lack capacity in certain areas because of learning difficulties, dementia or mental illness.

From time to time, and for the best possible reasons, professionals working with such people assist them in obtaining accommodation for which that individual will need to make decisions regarding signing or relinquishing a tenancy, and professionals may not consider the issue of whether or not they actually have the capacity to make those decisions.

While a person can be made subject to conditions in a Community Treatment Order, such as a condition to reside in a certain place, this power does not extend to either terminating a tenancy or taking out a tenancy on their behalf.

If the person  subject to such conditions does not have capacity in that area, then any legal decisions they make may be invalid. In such cases, referral to the Court of Protection appears to be the only remedy.

When is a MHA Assessment Not a MHA Assessment?

A: When there are alternatives.

Not very funny, I know, but then neither are the inappropriate requests we sometimes get when on AMHP duty.

Take Babs, for example.

Babs was a lady in her 70’s living alone. A call came through to the AMHP office from her social worker insisting that she be assessed under the Mental Health Act.

The social worker said that Babs had been referred to social services by a neighbour because for a week or so the neighbour had been passing food to Babs through her window.

Babs had called out to the neighbour one day, asking them to get her some food and waving some £5 notes out of the window. She said that she had lost her key, and couldn’t open the door to get out. The neighbour at first did what she was asked but became increasingly concerned about the situation.

The social worker visited Babs and managed to help her get a new key. She arranged for a keysafe to be fitted, so that a spare key could be kept, and home carers could then be sure of getting access.

But Babs then said she didn’t need any home care. The social worker was concerned that Babs was not getting adequate nutrition, and called for an assessment under the MHA.

There was, however, only sketchy evidence that Babs had a mental disorder. In any case, the local procedure was for the older people’s intensive support team to become involved. Their function was specifically to avoid hospital admission, and could offer intensive home support and assessment, including the use of the MCA to provide alternatives to hospital admission if the person was assessed as lacking capacity.

The social worker huffed and puffed a little, but eventually agreed to making a referral to this team.

Formal MHA assessment avoided. After all, it had to be necessary to explore the least restrictive options before considering detention.

A few days later, the AMHP office phone went again. This time it was a worker from the older people’s intensive support team. She was requesting a formal assessment under the MHA for Babs.

The conversation went something like this:

Masked AMHP: Hi there, how can I help you?

IST worker: I’m at Babs’ house. Our team’s been visiting her daily for the last few days. When I called today, I couldn’t get any reply. I tried to use the spare key, but she had a door chain on. I called the police, and they’ve managed to get in. I found Babs in bed. She was not happy to see us, I can tell you.

MA: So what’s the exact problem today?

IST: Well, we’re planning to set up home care to go in twice a day, but they won’t be able to get in if she puts the door chain on.

MA: Does Babs have a mental disorder?

IST: Well, it’s not at all clear. She seems a bit depressed, and her memory’s poor.

MA: So let me get this clear in my mind. You’re asking me to visit Babs with two doctors with a view to detaining her in hospital under the Mental Health Act, because you’re concerned that home carers may not be able to get in the house because she might put her door chain on?

IST: Ye-ees…

MA: Are the police still there?

IST: Yes, they are.

MA: Is it possible that they could persuade her to let them remove the chain, so that this situation won’t happen again?

IST: Well, that would be a solution. If we can get her to agree to that, then we could carry on with out home care plan.

MA: And that would be the least restrictive option. And then she wouldn’t need to be admitted to hospital.

IST: That’s right. I tell you what I’ll do. We’ll see if we can get her to have the chain removed, and then I’ll get back to you.

MA: That’d be great.

Thirty minutes later:

IST: Everything’s fine. We’ve removed the door chain, and she’s agreeing to the home care. I’m happy to withdraw my request for a MHA assessment.

MA: That’s great.

Why Does a Section 3 Last for Six Months?

I was at a committee meeting of the Mental Health Faculty of the College of Social Work the other week, and we were discussing the new Draft Code of Practice with representatives from the Department of Health (as you do), and making suggestions for changes.

One of the suggestions related to the length of time it takes for patients’ appeals and referrals to the Tribunal following a Sec.3., as it can often be 2-3 months before an appeal is heard. It was suggested that the new Code should include guidance to the Tribunal to hear these appeals much more quickly.

While we were talking about this, I suddenly wondered why detention  for treatment under Sec.3 lasts for a whole six months in the first place. This got me thinking.

Being The Masked AMHP, I just love mental health law. I wrote a blog post a while ago about the Lunatic Asylums Act 1853, one of the predecessors of the Mental Health Act. There were clear references even that far back of legislation that eventually evolved into Sec.2, Sec.3, Sec.4 and even the police powers of Sec.136.

The history of mental health legislation tends to reflect, and be enacted in response to, changes in the approach to the treatment of mental disorder. In Victorian times, there were no treatments at all for mental illness, and therefore legislation was about the humane containment of “lunatics” until they eventually spontaneously recovered, if ever.

The Lunacy Act 1890 laid down the duration for “reception orders” for admitting and detaining “lunatics”. The first spell lasted for one year. If renewal was required, this would last for 2 years. A further renewal would last for 3 years. After that, the order could be extended for 5 year periods. And judging by the records of lunatic asylums from the period, people could often be incarcerated for their entire adult lives.

However, by the time the Mental Treatment Act was enacted in 1930, the concept of “treatment” was even being reflected in the name of the legislation. Although parts of the older Lunacy Act still remained, the Mental Treatment Act introduced the concept of voluntary patients, people who recognised that they were unwell, and who were agreeable to receiving some form of treatment in a psychiatric hospital.

There was also a category for “temporary patients”. These were people deemed to have mental illness by two medical practitioners, but who were not prepared to reside in a hospital on a voluntary basis. The first period of detention would last for 6 months, and this could be extended, in three month increments, up to a maximum of 12 months. After that, the patient would have to be “certified” in writing by the Medical Officer under the Lunacy Act.

Both of these Acts were repealed by the Mental Health Act 1959. Even the name of this act contained the implication that Parliament was convinced that a state of mental “health” could be achievable.

Sec.25, the forerunner of the 1983 Act’s Sec.2, introduced a strict time limit of 28 days for assessment. It could not be extended. Sec.26, the forerunner of Sec.3, for treatment, then lasted for up to 12 months. It could be extended for a further 12 months, and after that for 2 years at a time.

The legislators of the Mental Health Act 1983 clearly thought that an order for detention lasting 12 months was out of order (cough), so reduced the duration to 6 months, with a further 6 month renewal, and 12 months thereafter.

But the 2007 Act, which amended the 1983 Act, left the lengths of time for Sec.3 unchanged. Additionally, when introducing Community Treatment Orders, they used the same timescales.

As regular readers of this blog will know, I am so incredibly ancient that I was actually a Mental Welfare Officer under the 1959 Act, and used this Act to detain several people under both Sec.25 and Sec.26.

Back then, it was not unusual for mental patients to spend many years in hospital, either informally, or detained. There were large long stay hospitals all over the country. There was very little in the way of treatment in the community.

But the drive since then has been to change the entire approach to the care and treatment of people with mental disorder from being centred around a hospital base, to being centred in the community, with admission to hospital being the exception rather than the norm. This has undoubtedly been helped by new antidepressants and atypical antipsychotics.

It is now very rare for patients to be detained under Sec.3 for as long as 6 months. In fact, when I inform patients I have assessed that I am detaining them under Sec.3, and that this will last for up to 6 months, I always hastily add the proviso: “But it’s very rare for someone to be detained for that long. Usually, people are not detained for more than two or three months.”

So taking into account that treatment and practice now means that it is unusual for a patient to be detained for a full six months, why was this not addressed back in 2007?

Since there has been a steady reduction in legal lengths of detention over the last century or so, why was the length of detention under Sec.3 not shortened further to reflect modern practice? There is a case for arguing that these timescales contravene the Human Rights Act.

I would therefore like to suggest that Sec.3 should last for no more than three months, with renewals lasting only for another three months at a time. CTO’s should perhaps have a similar time scale.

I know that this cannot be addressed by a Code of Practice, and would require a change in primary legislation. But how about it?