Yes, I know that in
practice a patient’s nearest relative never makes an application for detention
under Sec.2, Sec.3 or for guardianship. But the Mental Health Act and the
guidance could never really seem to make their minds up about this point.
The NR has had this power
since the 1959 Mental Health Act, and I am aware of one or two cases of the NR
making the application under the old Act, often assisted by a psychiatrist who
did not want a lay person meddling in his affairs.
Given that the whole point
of the existence of Approved Social Workers (and AMHP’S) was to provide a
professional with extensive knowledge and expertise in mental health and the
law relating to mental health who wasn’t a doctor, it was something of a
surprise to me, and to others, when the 1983 Act did not abolish the right of
the NR to make an application.
And it was even more of a
surprise when the 2007 Act, which amended the 1983 Act and created AMHP’s, did not
take the opportunity to abolish this right, especially as in the meantime, the Mental Health (Care and
Treatment) (Scotland) Act 2003 had done away with the right of the NR to make
an application north of the border.
In
fact, while the Scottish mental health legislation recognises the existence of
the nearest relative, patients are allowed to nominate a "named
person" who may or may not be their nearest relative, and it is this
"named person" who has to be consulted and has the functions of the
NR.
I
personally think this is a good idea, and one which should have been adopted
when Parliament had the chance.
Meanwhile,
in England and Wales the Reference Guide states:
“AMHPs must make an application if they think that an
application ought to be made and, taking into account the views of the
relatives and any other relevant circumstances, they think that it is
“necessary and proper” for them to make the application, rather than the
nearest relative” (2.36)
However, the Code of Practice seems to have a much firmer view on the use or otherwise of the NR in these circumstances. Para4.28. states:
“An AMHP is usually a more appropriate applicant than a
patient’s nearest relative, given an AMHP’s professional training and knowledge
of the legislation and local resources, together with the potential adverse
effect that an application by the nearest relative might have on their
relationship with the patient.”
I wrote about the powers
and functions of the nearest relative on the blog a few months ago. But the
reason I’m revisiting this now is because of the new Code of Practice.
You
see, there's been a subtle, but I think significant, change in the advice given
relating to the nearest relative making an application rather than an AMHP.
The
old Code of Practice said (4.30):
“Doctors who
are approached directly by a nearest relative about making an application
should advise the nearest relative that it is preferable for an AMHP to
consider the need for a patient to be admitted under the Act and for the AMHP
to make any consequent application… Doctors should never advise a nearest
relative to make an application themselves in order to avoid involving an AMHP
in an assessment.”
However, the
new Code of Practice, which comes into effect on 1st April 2015, has a much
briefer equivalent paragraph:
"Doctors who are approached directly by a nearest relative about
the possibility of an application being made should advise the nearest relative
of their right to require a local authority to arrange for an AMHP to consider
the patient’s case." (14.32)
It's quite different, isn't it? Gone is the bit about the doctor
advising that it is preferable that an AMHP should undertake the assessment and
make a decision.
Gone is the instruction that doctors should never advise the NR to do it
themselves to avoid using an AMHP.
A conscious decision has clearly been made to amend this paragraph,
removing the bits that suggest an AMHP should always be the best person to
conduct an assessment.
But why?Is it now the intention that NR's should be encouraged to undertake more assessments under the MHA?
I'm frankly perplexed.
"In fact, while the Scottish mental health legislation recognises the existence of the nearest relative, patients are allowed to nominate a "named person" who may or may not be their nearest relative, and it is this "named person" who has to be consulted and has the functions of the NR."
ReplyDeleteThis is very troubling. I'm not the only NR who has been frozen out by a loved one, whether temporarily or over some particular issue. I'm all for his right to nominate someone else to look out for his interests -- his advocate, the paid carer who sees him almost daily (when on shift), even his care coordinator (who sees him far less often than I do) -- but most of the things that go wrong in his care originate from professionals who've barely got to know him (it takes more than a few months in a busy casework list) and apparently don't even think, never mind bother, to contact his NR. Certainly, my loved one and his “named person” can have primary rights, but no one should have monopoly rights. At least one of the person(s) who've continuously known him longest (in his case, it's me) should be directly involved.
When I look for someone to blame for my being sectioned, my parents are the prime suspects and I know my mum gets very upset because I blame her for so much, rightly or wrongly. Of course I love my parents and they have done a huge amount of good stuff for me but it seems to me, my parents pull a few strings and then I get sectioned which generally messes up what I have worked for like a job for example or a university thing of some sort. But under the con-dems I have been left alone 99% of the time by the mental health system since last year's section 3, and I'm ambivalent about this. I have a job but I'm often off work. All good now I guess, I'm used to being sectioned, it doesn't make any difference. I know I'm rambling but bottom line, I think parents are TOO heavily involved in middle-class young adult patients' treatment. 18-25 year old patients should not be forced back into their parents' care when they are making their fumbling steps into independence. It's disabling.
ReplyDelete