Who Should Write a Mental Health Tribunal Social Circumstances Report? Recent Case Law

This is a question that has exercised minds in the Masked AMHP’s Facebook Mental Health Forum recently. There have been a range of answers, mainly based on custom and practice within different areas.

When someone who is detained under the Mental Health Act appeals against their detention, their case has to be heard by a First Tier mental health tribunal. The tribunal require three reports: a medical report written by or on behalf of the patient’s responsible clinician (the hospital psychiatrist); a nursing report written by a nurse from the ward; and a social circumstances report.

The responsibility for writing the social circumstances report is generally seen as being that of a member of the community mental health service covering the area where the patient normally resides; this is usually interpreted as being any clinician -- ideally the patient’s care coordinator if they have one -- so it could be a nurse,  a social worker, or even an occupational therapist.
 
The dispute on the forum has revolved around local custom, depending on whether social workers are embedded in community mental health teams and employed by the mental health trust, or working separately and employed by the local authority. If integrated into the local teams, then whoever is or would be the care coordinator would be expected to write the report, regardless of their professional status; where social workers are detached from these teams, the community mental health teams have expected a social worker to write this report.

Now there has been some recent case law which clarifies the whole issue, and may have a significant impact on these local practices.

This is HM/2043/2014, involving a case heard in the Upper Tribunal, which was issued at the end of April 2015.

The patient’s legal representative appealed against a decision of the First Tier tribunal, on the grounds that both the social circumstances report and the inpatient nursing report “had been prepared by the same person a staff nurse on the ward contrary to the letter or spirit of the Senior President’s Practice Direction or otherwise contrary to principles of natural justice and fairness.”

While the judge quickly concluded that what he had to consider was whether or not the tribunal’s refusal to adjourn the original tribunal was unlawful, he was driven to state that:

“The issue which this appeal is concerned with, at least ostensibly, is the lawfulness of a “social circumstances report” being prepared by a member of the nursing staff at the hospital where the appellant was detained (a nurse who had also compiled the in-patient nursing report) as opposed to it being prepared by a social worker.”

In his deliberation, he noted:

“It is the “Responsible Clinician’s Report” and not that of not anyone else. Likewise, it may be argued that the “In-Patient Nursing Report” by its title requires the reports to come from a nurse. On the other hand, the title “Social Circumstances Report” arguably does not identify the report by its author but rather its contents.”

He therefore concluded:
“As far as I can see there is nothing in the MHA, Code of Practice, Practice Direction or the TPR which as a matter of law requires that the social circumstances report be prepared by a social worker or CPN and not a nurse, or that that report writer must be a different person to the person who prepares the nursing report.  The important issue is not the professional title of the report writer but the relevance and quality of the information provided in the report and thus the report writer’s position of knowledge in respect of that information.”

The circumstances that gave rise to this appeal are in themselves unusual, as the mental health trust involved as a matter of policy permitted the ward nurse (of a forensic unit) to write both the nursing report and the social circumstances report. The trust has since changed this policy.

But what this judgment does state unequivocally is that there is no legal imperative for any particular professional to write the social circumstances report, as long as “the relevance and quality of the information provided” is adequate.

Review: A Practical Guide to the Mental Capacity Act 2005, by Matthew Graham & Jakki Cowley

As an Approved Mental Health Professional, practicing under the Mental Health Act 1983, I am well aware that it is impossible to discharge the functions of the AMHP competently without a working understanding of the Mental Capacity Act 2005. Indeed the new MHA Code of Practice devotes a whole chapter to mental capacity and deprivation of liberty, stating:

“A sound understanding and application of the principles and provisions of the Mental Capacity Act (MCA) and the Deprivation of Liberty Safeguards (DoLS) and of the common law relating to consent, is essential to enable decision makers to fulfil their legal responsibilities and to safeguard their patients’ rights under the European Convention on Human Rights (ECHR).”

The Mental Capacity Act, and the later Deprivation of Liberty Safeguards, which was included in the Mental Health Act 2007 (which amended the Mental Health Act 1983 – do keep up), were designed to address gaps in the law which had been identified by a number of legal decisions in Europe and the UK relating to the treatment of people who lacked capacity to make their own decisions.

This new book by Matt Graham and Jakki Cowley is described as “a practical guide”, and it certainly is: it is written in order to be easily understood, and the authors take pains to explain the core essence of the MCA. They also make it clear that knowing about the MCA is not only important for professionals, but for everyone; they make the useful point that “when we consider the term ‘service users’ or ‘people who use services’ we are not referring to an exclusive group of people who might use specialist services...the term ‘service user’ means everybody, because we all use health and social care services.”

The basic purpose of this book is to provide “accessible information as to what the MCA ‘looks like’ in practice and to offer something which the readership can easily digest and apply in practice in order to enhance the experiences of people who require support with making decisions or who require decisions to be made for them in their own interests.” Its 180 or so pages proceeds to do just that.

The 7 chapters cover various aspects of the MCA, beginning with an overview of the Act, then a chapter each on maximising capacity and assessing capacity, and chapters on advocacy and empowerment, advance care planning, best interests, and finally liberty and choice, which covers restriction and deprivation of liberty.

Each chapter includes illustrative case studies, as well as references to relevant case law, and there are a number of useful checklists for practice and decision making.

I very much like the way the authors constantly distil the essence of the MCA, such as suggesting that the MCA is:  “about two things and two things only:

1.      People’s rights to make decisions.
2.      People’s rights to have decisions made for them if they lack the capacity to make the decision themselves.
Confidence, competence and compliance with the MCA can be demonstrated if practitioners know the differences between the two and can remain mindful of the tensions that exist when trying to work out the difference.”

Even more profoundly, the authors aver that, regardless of the decisions being made relating to people lacking capacity, professionals ought to ask themselves: “On what authority am I making this decision?”

The chapter on maximising capacity is based on the implications of the first principle of the MCA, which is: “A person must be assumed to have capacity unless it is established that he lacks capacity.”

This naturally puts the necessity to assess capacity at the forefront. The authors again pose useful questions:
What is the decision that needs to be made?
What problems or difficulties is the person having relating to this decision?
What support do they need?

They point out that “there is a risk that a presumption of incapacity is what starts the process and an immediate move towards considering best interest decision-making takes place. This is not the intention of the Act.”

The chapter on assessing capacity poses another useful question for the assessor right at the beginning: “What right do I have to assess this person’s capacity and why would I even do so?” Such questions compel the assessor to examine their motivations and the reasons for the capacity assessment, and make them confront a major potential problem in capacity assessments, which is that the assessor is in a position of power over the person being assessed, because “to hold the keys to making a decision that someone lacks capacity is a powerful act”.

Each chapter is full of statements designed to make the professional think critically about their practice. One such statement in this chapter is: “You are always assessing capacity – whether you know it or not!” The authors suggest that it is important, when it is suggested that someone lacks capacity, to ask the questions, “what for?” and “what evidence do you have?”

This chapter goes on to guide the assessor, in everyday language, through the process of assessing capacity. It concludes by offering useful tips for recording your conclusions.

The chapter on advocacy and empowerment goes into detail about the functions of the Independent Mental Health Advocate, while the chapter on advance care planning looks at advance decisions, including decisions to refuse treatment, and the role of the lasting power of attorney.

Setting up a lasting power of attorney, giving instructions for another person to make decisions on your behalf if you lack capacity, is extremely important for everybody. If you decide to leave it till you or someone close to you begins to lose capacity, it may already be too late; then it would be necessary to go to the Court of Protection if major decisions needed to be made on your behalf. My wife and I have both set up lasting powers of attorney, for the eventuality that at some point in the future one or both of us might lose the capacity to advocate on our own behalf.

Chapter 6 is devoted to best interests, and is designed to demystify this area of the MCA, and reassure professionals about how to decide on someone’s best interests. The authors make the suggestion that competence to make these decisions is not necessarily the issue, but confidence is. They point out that many professional just get on with the job in hand, “but when we have to justify our decisions, evidence how we have reached them and then go forth with authority given to us by law to enact them, then the confidence drops and we start to question whether we know what we’re doing.”

Again, they pose questions, this time the question, “how do I know what is in this person’s best interests?” They answer this by reformulating the question to: “Why does a decision need to be made in this person’s best interest and what must be considered in order to achieve this?”

They break down the decision making into two categories, less complex decisions, and complex decisions. What sort of decision that needs to be made depends on “the complexity of who is consulted, who is involved in the decision-making process, how urgent the decision is and what the decision specifically involves”, for example, whether it is to do with day to day living decisions, or major life decisions with legal implications.

This chapter also looks at how to manage best interests meetings, and suggests a simple balance sheet for weighing up the advantages and disadvantages of the various options.

The final chapter concentrates on liberty and choice, which is mainly concerned about restriction of liberty and deprivation of liberty. The Deprivation of Liberty Safeguards, and the considerable amount of case law that has accumulated (and continues to accumulate:  the very recent case of Bournemouth Borough Council & PS & DS [2015] EWCOP 39 appears to fly in the face of the far reaching Cheshire West judgement) is not only complex but at times impenetrable, and while this chapter attempts to address this, I would have liked more of the book to have been devoted to this fraught area.

Nevertheless, they attempt to shed light on the difference between a restriction and a deprivation of liberty, for example dispelling the myth that the MCA prohibits the restraint of people. They make the point that, for example,  “paramedics who use reasonable and proportionate restraint, including sedation, to convey someone who lacks capacity to hospital and who is resisting, following a road accident, will be protected from liability unless that act demonstrates negligence.”

Elsewhere in the book, the authors give an example of an elderly woman who had incurred a head injury in a care home and an ambulance was called. Although she needed to go to A&E, the lady stated that she wanted to remain at the home. The ambulance crew left her, saying that “they couldn’t make someone go to hospital against their will.” The authors point out that “there is this myth in practice that appears to be part of the culture of care that practitioners cannot act if someone refuses.”

This scenario is one that will be familiar to AMHPs, who are often asked to undertake assessments under the MHA for patients who ought to be dealt with within the MCA. I hope that ambulance crews and others in the medical frontline will hear the message the authors are trying to get over, which in this sort of scenario is that “the MCA permits the use of reasonable and proportionate force in exceptional circumstances if it is in someone’s best interests if they lack capacity and the criteria are met.”

While some reference is made to the Mental Health Act, I would have liked to have seen more discussion and guidance on the interface between the MHA and the MCA, which frequently causes AMHPs much confusion and frustration. However, despite this minor niggle, this book is a considerable achievement.

A Practical Guide to the Mental Capacity Act 2005 is a very readable and informative book, and of much more practical use than Jones’ rather drier and legalistic Mental Capacity Act Manual. I would wholeheartedly recommend this book to all who find themselves in a position of having to make decisions relating to people who lack capacity, and I have already recommended to my AMHP colleagues that they should get this book.

A Practical Guide to the Mental Capacity Act 2005, by Matthew Graham & Jakki Cowley, published by Jessica Kingsley (http://www.jkp.com/)