 |
|
Is the Mental Health Act falling down a legal black hole?
|
There are horrible yawning legal black holes in the Mental
Health Act. Unless they are properly addressed, they could make it impossible
to practice within the law. And they’re mainly to do with the current national
bed crisis.
The other day I went out to assess Joe. He was a young man
who was living with his parents. I assessed him with two psychiatrists, and we
decided that he needed to be detained under Sec.2 for assessment. The two
doctors completed a joint medical recommendation. However, as I knew that there
was no bed available, I was unable to complete my application. I therefore had
no choice but to leave Joe where he was with his father.
A few minutes later, his father called to say that Joe had
packed a bag and left. The father reported him as missing. I discussed the
situation with the local police, explaining that he had been assessed under the
MHA and it was considered that he needed to be detained, but could not be as no
hospital had been identified.
The following day, I received a call from the duty police
inspector at an international airport. He told me that Joe had been apprehended
as he was about to board a plane to Manila in the Philippines. He was now in
their custody, detained under Sec.138 MHA. Sec.138 relates to patients who are
liable to be detained under the MHA but have absconded.
I had to tell him that Sec.138 did not apply, as he was not actually
detained.
There then ensued an interesting discussion about the
patient’s legal status.
Because in law, as a Sec.2 application had not been
completed, he was not a detained patient, nor was he “liable to be detained”.
The police were therefore holding him illegally, until such time as I was able
to obtain a hospital bed and put the name of a hospital on my Sec.2 application
form.
There is a well documented nationwide crisis in the provision
of mental health services. Both Andy McNicoll of Community Care and the BBC
have been documenting the extent of this crisis in recent months.
One consequence of the lack of suitable psychiatric beds is its
impact on the ability of AMHP’s and other mental health professionals to fulfil
their legal duties, and it is resulting in long delays between assessment and
admission, and patients then having to be transported hundreds of miles to
hospitals far away from their homes and relatives.
The Health Service
Journal, on 14 August 2014, reported that between 2011-12 and 2013-14
there had been an overall cut in funding of 2.3% in Mental Health Trusts. The
numbers of psychiatric beds consequently
decreased as follows:
•
2011-12 20768
•
2012-13 20061
•
2013-14 19922
This was at a time of increased demand for beds because of
the Recession and cutbacks to public services in general, which invariably has
a deleterious effect on the mental health of the Nation as a whole.
They also reported that numbers of patients sent out of area
because there were no beds in their locality increased 56% between 2011-12 and
2012-13 to 1,785.
A very recent example is reported
here. This involved a
known patient who was held in police custody in Norfolk for over 24 hours
because there were no beds anywhere within the entire Norfolk & Suffolk
Foundation Trust area. He was eventually admitted to a hospital in Brighton, over
160 miles away.
So all this is creating intolerable situations, in which
AMHP’s and the police are finding themselves in a legal limbo.
Let me illustrate this with a Venn diagram. (Mental Health
Cop is very keen on Venn diagrams).
First of all, there is the Law.
The Law encompasses the legislation relating to people with
mental disorders, which includes the Mental Health Act, the Mental Capacity
Act, and the Human Rights Act.
And then there is Reality.
Reality is the world in which AMHP’s, the Police, and others
actually live.
Here are the two together.
The Law and Reality unfortunately do not overlap perfectly.
There is an area of reality which lies outside the law. And that is where Joe,
and too many others, find themselves.
AMHP’s and the Police are having to deal with these legal
limbos on a daily basis.
Here are a few other real life scenarios that I or my
colleagues have had to deal with.
1. David
is arrested for affray and is taken to the local police station. It
becomes apparent to the custody sergeant that he may be mentally
disordered, and requests an assessment under the MHA.
An AMHP and 2 doctors assess
David, decide he needs to be detained, but are unable to make an application
because no bed is available.
The police have concluded their
investigations and have decided to take no further action, and intend to bail
him. There is therefore no longer any legal authority to continue to hold him
in police custody.
What happens next?
2. As
an AMHP, you’ve completed an application under the MHA, which makes the
patient liable for detention. The patient is in the ambulance, on the way
to Hospital X, under your authorisation, and you’re following behind.
You then receive a call from the
bed managers to say that unfortunately, there is no longer a bed available at
Hospital X.
Suddenly, you do not have valid
paperwork, and there are no longer any legal grounds to hold the patient.
How do you proceed?
3. As
an AMHP, you have made a decision to detain Norman under Sec.3 MHA.
You consult with the Nearest
Relative, Norman’s mother, who has not made an objection to the application.
The bed managers eventually find
a bed, but it is 200 miles away.
You discuss this with the NR, who
wants Norman to be admitted to the local unit, and she now objects.
What do you do next?
There are local initiatives, sticking plaster jobs mainly,
to try patch these holes. Our local constabulary have recently issued guidance
to the police and AMHP’s in an attempt to address some of these dilemmas.
In Scenario 1, David, the
local advice is as follows. AMHP’s are instructed to write in the custody
record:
“I have conducted a full Mental Health Act assessment in the
company of Dr --- and Dr ---, and we have determined that [detained person’s
name] should be detained under Section --- Mental Health Act. However, at this
time there is no suitable bed available and therefore they are not yet formally
detained under the Mental Health Act. Every effort will be made to find a
suitable bed as a matter of urgency.”
A risk based decision on the continuing detention of the
person “outside of PACE and the MHA” should then be conducted jointly with the
AMHP and the Detention Officer. These discussions and decisions should then be
recorded in the custody record and a decision made “to either continue
detention or to bail pending a bed becoming available.”
While I am impressed at this document’s valiant attempt to
deal with this dilemma, I must say I am intrigued by the concept of detaining a
person “outside of PACE and the MHA”. This can only be a legal Limbo.
And what if a decision is made to “bail pending a bed
becoming available”? Surely, if the patient/prisoner is aware that they are
bailed, but not yet detained under the MHA, there is nothing to stop them from
leaving the premises and potentially disappearing completely off the radar.
In Scenario 2 – what the hell do you do? You can hardly
instruct the ambulance to stop on route and drop the patient off at the side of
the road.
The Code of Practice does have something to say about this
scenario. Para 4.99 states:
“In exceptional circumstances, if patients are conveyed to a
hospital which has agreed to accept them, but there is no longer a bed
available, the managers and staff of that hospital should assist in finding a
suitable alternative for the patient. This may involve making a new application
to a different hospital… A situation of this sort should be considered a
serious failure and should be recorded and investigated accordingly.”
I think I would be inclined to continue the journey to the
hospital, on the basis that they are still at least theoretically “liable for
detention”, and then argue the toss once we were there. But the Code does not
suggest how the patient may legally be held while another bed is found, and
they could conceivably have a case for unlawful imprisonment during that limbo
period.
Then there is Scenario 3, Norman.
Under Sec.3 MHA, a patient can only be detained if the
nearest relative does not object. The refusal of the NR on discovering there is
no nearby hospital would therefore mean that the patient cannot be detained.
It is possible to displace the nearest relative in certain
circumstances. A county court can displace the NR if: “the nearest relative has objected unreasonably to an application for admission
for treatment” (Para8.6 CoP).
But could that be done in this situation? I think it would
be difficult to argue successfully that this particular NR had “objected
unreasonably”. After all, would you like your unwell relative being taken many
miles away from home, where it would be almost impossible to visit them?
And in any case, the amount of time it would take to make an
application to court would make it unfeasible.
Some AMHP’s have suggested that we should refuse to assess a
patient at all if no bed has been identified. The problem with this is that it
is expressly against the law. Sec.13(1) MHA explicitly states:
“If a local social services authority has 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.”
Having then assessed the patient, if the AMHP is “satisfied
that such an application ought to be made in respect of the patient” then they
have a duty to make that application.
While an AMHP can decide not to make an application, they
cannot refuse a request to make an assessment. The absence of a hospital bed to
which to admit the patient does not absolve them of this duty.
So until NHS Clinical Commissioning Groups (CCG’s) are
prepared to meet their obligations under para4.75 of the Code (they are
“responsible for commissioning mental health services to meet the needs of
their areas” and “should ensure that procedures are in place through which beds
can be identified where required”) it looks like it’s still going to be left to
the poor AMHP’s (and the police) to try to prevent these legal black holes from
enveloping everything and finally making the Mental Health Act unworkable.
