Review: Deprivation of Liberty Safeguards: A Best Interest Assessor Time Study

Cornwall Council’s much anticipated study, compiled and written by Emma Goodall and Paul Wilkins, was published at the beginning of December 2015.

This has obtained empirical evidence of the impact on BIA’s of the Supreme Court judgment that came out last year (2014). I wrote about this judgment, which it was anticipated would have far reaching effects on the workloads of AMHPs and BIAs, here. Cornwall’s research complements the College of Social Work’s document assessing the impact of this judgment on AMHP practice, about which I wrote here.

So that’s enough of the links for now. What did this Time Study actually find?

Since the Cheshire West Judgment extended the qualifying criteria for incapacitated people who might be in situations where they are being deprived of their liberty, it was thought extremely likely that there would be a huge increase in requests not just for formal assessments under the Mental Health Act, but also for requests for Deprivation of Liberty Authorisations, which have to be undertaken by Best Interest Assessors.

As this report highlights, “The first annual statistics published by the Health & Information Centre in September 2015 reports that there has been a “tenfold increase” in new referrals, with 137,540 DoLS applications received by councils between 1st April 2014 and 31st March 2015.” I am certainly aware that it is not uncommon for local authorities, who are responsible for conducting these assessment, to have backlogs of 2,000 or more.

The research took the form of asking practicing BIAs via a wide range of social media to complete a questionnaire relating to their practice and experiences. They received responses from a total of 507 BIAs, which I think is a remarkable achievement.

The study focused on the overall time that each assessment took, looking in particular at time taken in traveling, gathering information and consultation prior to and following the assessment, the length of time spent at the hospital obtaining necessary information, consultation with other relevant assessors, writing up the necessary documentation, and giving feedback to interested agencies and individuals.

The study found that the overall average time taken to conduct a DoLS assessment was 726 minutes, or 12.1 hours. This compares with an average of 600 minutes, or 10 hours, that local authorities estimate that an assessment should take. Some of the BIAs in the study reported a considerable discrepancy between the hours what they were paid for, and the actual length of time taken, for example one BIA saying: “I’m paid for 7 hours but each assessment takes at least 11 hours”.

While it may be tempting for local authorities to attempt to quantify the time taken and set a standard timescale for completion of assessments, the study points out that, while DoLS assessments can vary widely in complexity, “in all cases the BIA must involve the relevant person in the assessment process, consult widely and gather information relevant to their decision-making and  provide a report that explains their conclusion and their reasons for it. This work can be time consuming, particularly when there are several consultees or extended travelling times.”

The study also makes the point that BIAs have enormous responsibility in making their assessments, as they can be open to legal challenge.

The Law Commission recently published its consultation document into mental capacity and deprivation of liberty, which I considered here. Among its recommendations, the first of which is the abolition of DoLS as incomprehensible and unworkable, is the proposal to create the Approved Mental Capacity Professional. AMCPs would have more far reaching powers than BIAs, and would carry even greater responsibility.

Were these proposals to be made into law (through amendments to the Mental Health Act), it would be interesting to see the impact both on the work of this new professional compared to the BIA, and the overall bombardment rate of local authorities for people lacking capacity. 

Review: The Mersey Care Annual Mental Health Social Care Conference 2015

Peter Beresford giving a rousing address to the conference

 

The Mersey Care Trust’s annual conference was held in Liverpool on 6^th November 2015. This year the theme was Service Users’ Voice: Change, Rights and Advocacy: What is the Reality?

 

I have reported at length on two previous Mersey Care conferences; I am afraid that this report will necessarily have to be briefer on this occasion.

 

The event was oversubscribed, with well over 200 delegates squeezing into the venue. As ever there was an impressive list of scheduled speakers, including Professor Martin Webber, Professor Peter Beresford, the human rights lawyer Peter Edwards, the Community Care journalist Andy McNicoll, and the erstwhile chair of the mental health steering committee of the now defunct College of Social Work Dr Ruth Allen. Indeed, it appeared as if there were almost as many speakers as there were delegates!

Roger Phillips, a presenter on Radio Merseyside with a keen interest in mental health, opened the conference. Emad Lilo, the intrepid organiser and manager of the Mersey Care Integrated Care Demonstrator Site Project, along with several of the Trust AMHP’s then outlined projects and other development work they had undertaken during the year.

Peter Edwards discussed the thorny issue of whether the rights of service users could actually be exercised, or were in effect illusory, then the Masked AMHP himself presented a case study of an assessment under the Mental Health Act, arguing that the AMHP has an advocacy role, and that an AMHP can successfully take a deliberately low key approach to assessment. A version of this case study was subsequently published in Community Care Magazine. You can read it here.

The morning was rounded off by an extraordinary presentation by members of the People First Merseyside organisation. This is a user led self advocacy organisation for people with learning difficulties. It has been in operation for over 25 years.

The staff and volunteers (most of whom were service users) gave an excellent dramatised presentation on the right (and wrong!) ways to approach people with learning difficulties who require assistance with a health problem, as well as showing exactly what people with learning difficulties can achieve when given encouragement and empowerment. It was entertaining, educational, and moving.

Peter Beresford kicked off the afternoon with an, as ever, eloquent, incisive and stirring dissection of the failings of current mental health policy and practice, tearing into the current Government plans and exposing an apparent deliberate intention to dismantle the NHS and marginalise disadvantaged people.

Ann Williams, Commissioning & Contract Manager for Liverpool City Council, gave a presentation on the roles of the Independent Mental Capacity Advocate and the Independent Mental Health Advocate, followed by Jake Mills.

Jake Mills is a stand up comedian. In 2013, he experienced a severe period of depression, during which he came close to committing suicide. As a result of this, he set up the mental health charity Chasing the Stigma which aims to “normalise and humanise mental illness.” He gave an intensely moving, but also funny account of his experiences.

The last session was Naomi Good, Regional Development & Research Manager of the National Survivor User Network for Mental Health. Her presentation was entitled Survivor Voices: Re-authoring Disrupted Identities. She outlined research she had done into the experiences of mental health service users.

Unfortunately, time constraints meant that some speakers, such as Professor Martin Webber, literally only had five minutes to speak, and of three intended Q&A sessions, only the one featuring Andy McNicoll and Ruth Allen actually went ahead. This meant that a number of prominent people in the mental health field did not have an opportunity to be heard.

I suppose this is a consequence of the popularity of these annual conferences, not just for delegates, but for speakers as well. Emad Lilo, who organises these events, appears to have boundless energy and enthusiasm, and this is reflected in the very real buzz that permeates the day.

 

This was the third Mersey Care Conference I have attended, and I very much hope to have the opportunity to speak at future ones. 

Sec 13(4): The Right of the Nearest Relative to Request a Mental Health Act Assessment

Relatives are frequently unaware of their right under Sec.13(4) MHA to request an assessment of their relative under the Mental Health Act.

Those who are aware of this, are often under the misapprehension that this will inevitably trigger a visit to their relative by an Approved Mental Health Professional and two doctors.

Sec.13(4) states:

(4) It shall be the duty of a local social services authority, if so required by the nearest relative of a patient residing in their area, to make arrangements … for an approved mental health professional to consider the patient’s case with a view to making an application for his admission to hospital; and if in any such case that professional decides not to make an application he shall inform the nearest relative of his reasons in writing.

The new extended 2015 Reference Guide has very little to say to enlarge upon this, other than referring the reader to the new 2015 Code of Practice, and stating that “the nearest relative can require the local authority (verbally or in writing)…to arrange for an approved mental health professional (AMHP) to ‘consider the patient’s case’ including whether there is a need for compulsory admission to hospital.” (p.21).

The Code of Practice only refers to this section in two paragraphs, at para14.36, and para14.102. The only thing that para13.36 adds is to state that the local authority must respond not only to a direct request from the Nr, but also to a request “on behalf of” the NR.

So what does all this mean to the nearest relative and to the AMHP receiving a request under Sec.13(4) from the nearest relative?

The NR does not need to put the request in writing, but can make a request by phone. They can also ask someone else to make a request, such as another relative, or their GP, and this must be considered as if  it were a direct request from the NR.

The local authority AMHP service has to respond to this request. But this does not necessarily mean that they will conduct a formal assessment. An AMHP only has to “consider the patient’s case”. If, having done this, they do not think that an assessment is merited, there is no requirement to assess.

From the AMHP point of view, there may be many reasons why it is not appropriate to assess the patient under the MHA. A typical reason may be that other arrangements are being, or have been made. This might include a GP referring the patient to the local crisis team for assessment. It would therefore be wrong to pre-empt this assessment, under the principle of the least restrictive option.

Another reason might be that the patient is already involved with a community mental health team, who are managing the patient’s condition and would not welcome and AMHP’s intervention, or do not consider that a MHA assessment is necessary.

It may be that, while the relative is concerned about the patient, the patient has not actually seen a doctor recently. In which case, I would always advise the relative that they should arrange for the patient to see a doctor first.

In some cases, the request may be “mischievous”; in other words, the relative may have made frequent or recent requests for their relative to be assessed, and unless there has been any significant changes in the patient’s condition, it would be oppressive to keep formally assessing the patient.

I recall one such case, where the mother of the patient, a pregnant single parent with a young child, reported that she was expressing a range of alarming paranoid delusions, especially around her unborn baby. The ex-partner of the patient also corroborated this.

I went out with the GP and a psychiatrist, to find her preparing tea for her daughter and a school friend. Everything appeared completely normal, and she spoke politely and rationally to us for about an hour. We were unable to elicit any symptoms of mental illness, but based on the reports of the relatives, we rather heavy-heartedly decided to detain her, and she was detained under Sec.2 for 28 days.

During that time she was not given any medication, and did not provide any evidence to ward staff of any mental illness.

On another occasion, I received a request from the husband of a woman. They were recently separated. His concerns seemed to boil down to the view that since his wife did not want to talk to him, and would not agree to what he wanted to happen to the property and children, then she must be mentally ill. I did not respond to this request.

Once an AMHP has considered the case, and has either decided not to undertake a formal assessment, or has assessed and has decided not to detain, they have a legal requirement to write to the referring relative. These letters have to be very carefully written. The Code of Practice states: “Such a letter should contain, as far as possible, sufficient details to enable the nearest relative to understand the decision while at the same time preserving the patient’s right to confidentiality.”(para14.102)

Sec.13(4) requests from nearest relatives always used to be a fairly rare occurrence. Recently, however, our local AMHP service has received a mysterious increase in these requests. Could it be that relatives are becoming better informed about their rights under the Mental Health Act?

I don’t actually think so. We have discovered that relatives have been contacting the patient’s community mental health team because of concerns about their mental health, who have then advised them to make a referral to the AMHP service.

This appears to be due to service cuts or staff shortages. It appears that increasing numbers of patients are active to community teams, but have not got an allocated care co-ordinator, and the over worked duty worker has the idea that, if their team cannot make a timely response, then the AMHP service can always conduct an assessment under the MHA.

We have been working hard to disabuse community mental health services of this notion.

Origins 8: My First Caseload: Margaret and her Cats

This post contains lots of cats. But not in a good way

Part 8 in an occasional series about my early years as a social worker in the 1970’s and 1980’s.

Since my last post, I’ve been continuing to reminisce about my past as a social worker. Social work has changed a lot since I started in the mid 1970’s, in some ways for the better, in other ways for the worse.

When I started, our local social services office would receive a request for assistance, the case would be allocated to a social worker – and, er, that was about it. Unless there were very clear identified needs, for example a need for residential care, for aids to daily living, or a child subject to some form of abuse, the social worker would just tend to, sort of, bumble along, visiting the client, as they were referred to back then, developing a relationship, maybe sometimes doing something practical, like helping them claim benefits.

Most clients did not have any sort of formal care plan. Occasionally, in supervision, your team leader would ask you what you were doing with a particular client. Then you had to think hard and say something that sounded worthy and useful.

My first caseload was very mixed. I had a few children and family cases, some elderly people, some people with physical disabilities, a few people with learning difficulties or mental health problems, and one or two who defied categorisation.

Margaret was one of the latter. She was in her early sixties, and lived alone in a local authority house in a small village a few miles outside Charwood.

I was never clear about how she ended up a client of the social services department. It may have been a referral from the local housing authority, who was certainly concerned about her ability to manage her tenancy. It may have been because of complaints from neighbours.

It’s possible she may have had mild learning difficulties, although she had no formal diagnosis. She had lived all her life in that house, taking over the tenancy when her parents had died over twenty years previously, and perhaps they had been her carers. She certainly had no obvious mental illness. But she was deemed to be a vulnerable person, and hence worthy of having a social worker, even if that social worker was unqualified and completely inexperienced.

Or maybe it was because she was a witch.

She certainly looked like a witch. She had snaggle teeth, a long nose with a wart on the end, and matted hair. It was thought that the last time her hair had been washed was over 20 years ago, when she had had to go into hospital when she’d had a fall. I could believe it; her hair had become felted. She had probably also not had a bath for twenty years, and her face and hands were black with dirt.

And she had cats. I never knew how many cats she had, and I don’t think she knew either, but there must have been somewhere between 20 and 40. They lived in the house, never leaving it, and freely interbreeding. She seemed to have no arrangements for their toileting, with the result that they defecated anywhere and everywhere.

See if you can imagine the experience of visiting her house.

I always went in through the back door, which was never locked. The hallway was comparatively free of cat faeces, as she tended to keep them in the living room and kitchen area. But she made up for this omission by having piles of newspapers at least 4 feet high lining both walls of the hall. As she lived and slept in the living room, she never went upstairs. I have no idea what the bedrooms were like, as it was impossible to go up the stairs because each step was piled high with old newspapers.

I was told that a previous social worker had attempted to clear the house of newspapers by diligently putting them into an outhouse, but Margaret had then brought them all back in because she was afraid they’d get damp outside.

Festoons of ancient cobwebs hung from the ceiling, some hanging so low you risked getting them in your hair unless you ducked.

Having negotiated the hallway, you finally entered the living room. Winter or summer, Margaret never opened the windows, so the temperature in there could get quite high during the summer months. But not as high as the stench.

It was impossible to tell what the original floor covering in the living room was, as it was completely covered with cat faeces to an unknown depth. My shoes tended to stick to the floor as I walked through. There was an audible noise as I picked my feet up step by cautious step.

The smell was almost unbearable. In those days I smoked a pipe, and used to smoke furiously throughout my visits in a futile effort to mask the ghastly smell.

Margaret would be sitting at the head of a table covered with old papers and cats. Her matted and filthy hair was partly covered with an equally filthy headscarf. She generally ate white bread straight from a bag during my visits, tearing it into smaller pieces with her black hands before putting it into her mouth. Sometimes she would offer me a biscuit. I always declined.

During the summer months she would be surrounded by a halo of flies.

I never sat down in her house. This was partly because any seats were always covered with cats, but mainly because they were so filthy that I would have needed a change of clothes afterwards.

So what social work tasks was I undertaking with Margaret?

Did I try to improve her living conditions? Not really. Her file catalogued the efforts previous social workers had made, all of which were futile. Margaret did not want to change.

Did I support her within her community? I guess so; people seemed reassured that a social worker was visiting her. But if they hoped that it would effect any perceptible change, they were sadly disappointed.

Issues of capacity were barely talked about back then. Apart from her appalling living conditions, I never had any feeling that Margaret was not mentally able to make decisions about her lifestyle. Nowadays I could explicitly assess her capacity, and conclude that she had the right to make unwise decisions, but there was no legislation that covered Margaret’s situation in the 1970’s.

She appreciated my visits, and liked to talk to me, so I suppose I fulfilled some welfare purpose. Again, nowadays that befriending role could either be provided by a voluntary organisation or supplied via a personal budget under the Care Act. But back then, the main resource was social workers.

One thing I learned from Margaret was not to be phased by extreme housing conditions. In later years, when people complained of patients living in squalor, I set Margaret as the benchmark. That was squalor.

During the two years Margaret was on my caseload, I achieved one traditional social work task; I arranged for a neighbour to be paid as a home help in order to do her shopping once a week. So I suppose I did do something to improve her life.

No Happy Endings: Stories from an Out-of-Hours Social Worker

There’s been quite a lot of discussion lately about the nature of social work and the social work task, and this has got me thinking about my years as a social worker, which has covered 5 decades.

I started as a generic social worker in 1976, and continued to hold a generic caseload, consisting of a mixture of mental health, elderly, child protection and children and families, until my local authority elected to operate with specialist teams in 1988. It was then that I became a specialist mental health social worker, working in a multidisciplinary community mental health team (one of the first in the country).

In addition, throughout the 1980’s and 1990’s, I also worked one or two shifts a week on the out-of-hours standby duty team. This team dealt exclusively with emergencies and crises that arose outside normal working hours.

This seemed to me to be the essence of social work: working in crisis, having to make independent executive assessments and decisions on the hoof with hardly any backup, and having to be prepared to live with the consequences of those decisions.

It was during this time that I encountered similar issues to those reported in Rotherham.

The child protection failures in Rotherham were by no means unique; there were a few occasions when I was called out to the city police station to act as an appropriate adult under the Police and Criminal Evidence Act (PACE) for teenage girls who had been picked up for soliciting.

I recall one occasion in the early 1990’s when I was called out during the evening to deal with two 14 year old girls. They had been arrested following a tip off from a much older prostitute to the vice squad.

She had reported them, not because they were taking business from her, but because she was rightly concerned that such young girls should not be attempting to solicit. She was primarily concerned for their safety.

But the police did not really see it like that. They did not see it as a child protection issue. That was not why they wanted a social worker. They regarded these girls as juvenile offenders. They simply wanted to process their cases by giving them a caution and then getting them out of the station as quickly as possible. So they needed a social worker, in the role of appropriate adult, to be present while the formal procedure was conducted. And so that I would then be officially responsible for their disposal once released.

Tracey and Tanya were waiting in the custody area when I arrived. They looked as if they were going to a “tarts and vicars” fancy dress party, with ridiculously short skirts and exaggerated makeup.

But they also looked like children rather than adults, and like children, they seemed to have a startlingly naive picture of the reality of prostitution, and were actually grossly unprepared, both practically (no condoms or other protection) and emotionally (they appeared to think that they would get spending money in return for little more than a kiss and a cuddle.)

They were reluctant to talk to me about their motivation or the circumstances that had led them to take to the streets (this was the first time they had tried it), and actually seemed to regard it as a bit of a laugh. The custody officer told me that the mother of one of the girls was a known prostitute, but it was unknown whether the mother knew what they had been trying to do, or indeed if she had actually encouraged them.

They were duly given a caution in my presence, and then released to me. I was unhappy about taking them home, as none of their parents could be contacted, and eventually obtained agreement to place them in a local children’s home, at least until the day time children’s services could assess the situation.

As so often when working out of hours, I never heard what happened toTracey and Tanya.

But I did find out what eventually happened to another lost girl I had involvement with, called Naomi.

Naomi was 16 and over school leaving age. She was on a Care Order to the local authority, and had been in a children’s home for a considerable time, until she had decided to leave the home and move in with someone she described as her boyfriend, a man in his twenties. She had been picked up for soliciting, and I was again called out to act as an appropriate adult.

As she was actually on a Care Order, I felt that I had to ensure that she had a safe place to stay tonight, and arranged for her to have one of the leaving care beds at the local YWCA.

I went to the police station. Naomi was an intelligent, likeable girl. But she had the manner of someone much, much older than 16. She came across as weary and hopeless, and had no interest in what I might be able to do to help her, other than to get her released from police custody.

Once the police had cautioned her, I told her that I was going to take her to the YWCA.

“I’m not going,” she said. “Just take me home. Take me back to my boyfriend.”

I had the strong suspicion that her “boyfriend” was actually her pimp. I was very reluctant to take her there.

“Look,” I said. “It’s just for tonight. I’d just like to feel you were in a safe place.”

She looked at me with 1,000 year old eyes.

“No,” she said finally. “I know you’re just trying to help. But I don’t need any help. Just take me home.”

Although she was on a care order, I had no powers to compel her to live in any particular place, so I reluctantly took her to her stated home address.

Two weeks later her dead body was found on wasteland on the edge of town.

To this day, her murder remains unsolved.

Book Review: Independent Mental Health Advocacy, Karen Newbigging et al

The role of the Independent Mental Health Advocate (IMHA) was created by the 2007 amendments to the Mental Health Act 1983. The role is enshrined in the guiding principles to the Act, one of which is empowerment and involvement. The new Code of Practice states that:

“Patients should be informed of the support that an advocate can provide, including carers or, if they are eligible, an independent mental health advocate (IMHA)... Local authorities should ensure that timely access to IMHAs is available and that IMHAs have appropriate training and skills to support the patient effectively including where a patient has particular needs.” (para 1.12)

In view of the fact that IMHAs have existed since 2008, this book is well overdue, as it is a thorough and detailed guide to everything that an IMHA requires in order to discharge their functions in the most empowering and equitable way. As the authors point out, the year on year increases in the use of the Mental Health Act powers to detain people means that there has never been a greater need for independent advocacy.
 
While this book is clearly primarily designed for Independent Mental Health Advocates (and should be an essential set text for IMHA training courses), it is also of relevance not only for Independent Mental Capacity Advocates (IMCAs) and Best Interest Assessors (BIAs) operating within the Mental Capacity Act, but also for AMHPs.

As the book points out, “advocacy has long been recognised as central to the social work role, with effective social work advocacy practice being fundamental to promoting individual rights and social justice”(p.247). I have long maintained that the AMHP role itself is not merely one of asserting control over people with mental disorder, but has advocacy as an integral part of the legal functions of the AMHP, who are required always to look at the least restrictive option when assessing the need for a patient to be detained under the MHA.

However, the nature of the AMHP role in no way reduces the need for IMHAs, as the AMHP role cannot be “independent” of the legal process, as it is by its nature an integral part of the MHA control mechanisms, no matter that AMHPs are there to assert a social perspective within an overwhelmingly medical system. As this book says:

“Health and social care professionals’ claim that advocacy is inherent to their professional role cannot be seen to replace the need for truly independent advocacy to support the service users’ voice within disempowering systems... Professionals need to recognise the limits of their ability to advocate from within systems, of their tendency towards best interests advocacy, and to recognise that they are often part of the problem and not just the solution.” (p261)

The book has been cowritten by a total of nine authors, whose backgrounds range from the largely academic to people who have had firsthand experience of being service users. The book is all the stronger for this. The authors draw on extensive personal research to make their points; the chapters detailing the service users’ perspective are of particular interest.

The book is split into two parts: the first part provides an overview of the historical and legal context of advocacy in a mental health setting, while the second part concentrates on practice and experience. There a useful and thought provoking reflective exercises at the end of each chapter.

While I am not an IMHA, I found much of interest in the book; for example the chapter giving an historical overview of the evolution of independent mental health advocacy traced it back as far as the 16^th century. I also found the chapter looking at research into the experience of detention from the service user perspective enlightening, and gave me much to think about in my approach to my work as an AMHP. This section would be equally helpful for social work and AMHP students.

The authors make frequent cogent points relating to the underlying philosophy and intention of the Mental Health Act, suggesting that the 2007 amendments introduced an increased medicalism of practice in mental health. While I had felt that the broader but vague definition of mental disorder was overall of benefit to patients (in particular people with diagnoses of personality disorder, who had often been excluded from treatment). As they say, this “leaves the task of diagnosis to clinicians, so that no one needing treatment is excluded, thus favouring a duty of care over self-determination.”

 

Concern is also expressed that “the widening of the definition of mental disorder, reducing the thresholds for treatment and extending compulsory powers to the community, in the form of supervised community treatment, would have a disproportionate impact on people from Black, Asian and minority ethnic communities.” (p.89)

The book raises equally challenging questions concerning what the role of the IMHA should be, for example, making a clear distinction between the IMHA role and “best interests” practice. They contend that IMHA’s “need to be alert to the overarching themes of autonomy, participation, care and recovery, how these relate to people’s experience of coercion and detention and the contribution they can make to promoting self-determination in the most challenging of circumstances” (p.125)

In conclusion, I do think this book provides an essential text for people training and practicing as IMHA’s. I would also recommend the book to mental health nursing and social work students, and will certainly be recommending to my own AMHP trainees that they read this book.

Independent Mental Health Advocacy: The Right to be Heard, Jessica Kingsley 2015

How long can a patient living and receiving treatment outside hospital be considered to be “liable to be detained in a hospital for treatment”? Recent case law

A recent appeal to the Upper Tribunal has raised some interesting issues relating to the legal concepts of “treatment in hospital” and “liable to be detained” within the context of the Mental Health Act.

The case of SL v Ludlow Street Healthcare (Mental Health:All) [2015] UKUT 398 (AAC) (16 July 2015) concerned a patient, SL, who had diagnoses of mild learning disability and hyperkinetic disorder, associated with seriously irresponsible conduct, and in the past had been detained under Sec.3 for treatment, and at other times had been on a Community Treatment Order.

SL had more recently been detained under Sec.3, but was actually living in a care home on extended Sec.17 leave at the time he appealed to the Mental Health Tribunal.

Although it was established that he mainly resided in the care home, and only actually attended hospital fortnightly for psychology sessions, and monthly for the ward review, the Tribunal found that “it was not the time he spent at the hospital that mattered, so much as the extent to which his time there contributed to the decision-making of the clinical team.” He therefore remained on Sec.3.

He appealed to the Upper Tribunal on the basis that “almost all of the treatment that the patient received was being delivered in the community, so he no longer justified being subject to section 3.”

The Judge in the case considered that the crucial point to be decided was “whether it was appropriate for the patient to remain liable to be detained in hospital for medical treatment.” He made a clear distinction between “liable to be detained” and “detained”, as someone who is in law “liable to be detained” may not in fact actually be in hospital.

He referred to case law from the early 2000’s, in which the Judge did not consider there was any distinction between treatment “in” a hospital and treatment “at” a hospital. I remember looking at this case law with some bemusement at the time, as it did seem to me that there was a quite clear difference. Nevertheless, the Judge was satisfied with this case law, and applied it to the current case.

The Judge went on to consider Sec.145(c)(ii) MHA, which gives a broad definition of “medical treatment”, including “nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care”.

Taking these factors into account the Judge concluded that SL’s Sec.17 leave in itself, as well as the rehabilitation provided in the care home, constituted part of his treatment plan, which therefore rendered him both “liable to be detained” and to be receiving “treatment in hospital”.

As a consequence, the appeal was dismissed.

Incidentally, this broad interpretation of “treatment in hospital” runs counter to some parts of the new Code of Practice. In particular, I would take issue with the case example cited in Chapter 13 CoP, which purports to describe the interface between the MHA and the Mental Capacity Act. While this refers to an elderly lady with dementia who lacks capacity, some of the statements can be directly applied in the case of SL.

In the case example P is detained under Sec.3 MHA, and is treated, but when this treatment is finished, it is considered that she no longer needs to be in hospital, and should be placed in a care home. The CoP then states: “P no longer needs to be detained in hospital for care and treatment for the mental disorder. As such, the Act is no longer available.”

If this guidance were in fact true, then patients would have to be discharged from detention under Sec.3 once they were no longer considered to require treatment in hospital, and extended Sec.17 leave would not be available to the patient’s responsible clinician.

The other contentious implication of this CoP case is the idea that treatment for mental disorder could somehow magically cease. The SL case makes it very clear indeed that the bar for what constitutes “treatment” is set low, and it would be hard to argue that anyone with an ongoing mental health disorder did not require treatment. And that treatment does not even need to take place in a hospital for a patient to remain “liable to be detained”.

A lesson to be learned from this is not necessarily to believe everything you read in the Code of Practice.

Law Commission Publishes Consultation Paper on Mental Capacity & DoLS

On 7^th July 2015, the Law Commission released its long awaited consultation paper on mental capacity and deprivation of liberty. It makes very interesting reading, and suggests sweeping changes to the whole process of the management of people who lack capacity, and makes some recommendations that would require significant changes to the Mental Health Act.

One of the encouraging things about this document is that it weighs in to the Deprivation of Liberty Safeguards, and has hardly anything good to say about them, quoting a wide range of eminent sources criticising its ““bewildering complexity”, with Mr Justice Charles saying that writing a judgement on a DoLS case was “as if you have been in a washing machine and spin dryer”.

As the paper says, referring to DoLS:

In March 2014 two events inflicted significant damage. First, the House of Lords post-legislative scrutiny committee on the Mental Capacity Act published a report which, amongst other matters, concluded that the DoLS were not “fit for purpose” and proposed their replacement. A few days later, a Supreme Court judgment widened the definition of deprivation of liberty to a considerable extent. The practical implications have been significant for the public image of the DoLS, and the regime has struggled to cope with the increased number of cases. (1.6)

The Deprivation of Liberty Safeguards should be replaced by a new system called “protective care"

The paper makes the important point that:

The DoLS assume that nursing staff and care workers on the ground can identify and respond to deprivations of liberty. Yet this requires an assessment of a highly technical question of fact and law which is ultimately to be decided by the Strasbourg court. The concept of deprivation of liberty continues to cause disagreement amongst lawyers, academics and – as witnessed in Cheshire West – Supreme Court justices. The result is that “care providers, insofar as they think about DoLS at all, seem to perceive it as a technical legal solution to a technical legal problem” and not something that will benefit the relevant person in any tangible way. Reports have shown that in care homes knowledge of, and confidence in, the DoLS is limited, and managers and staff are heavily reliant on their local authority to identify potential deprivations of liberty amongst residents. (2.15)

As if that were not enough to sound the death knell of the DoLS, the paper goes on to say:

Terms such as “standard authorisations”, “managing authority” and “supervisory body” have been described variously as cumbersome, Orwellian, and failing to reflect modern health and social care functions. Particular criticism has been directed at the label “Deprivation of Liberty Safeguards”.

It does not come as a surprise, then, to find that one of the first recommendations the paper makes is that “the Deprivation of Liberty Safeguards should be replaced by a new system called “protective care”. It recommends that this should include hospitals, care homes, supported living, and even “shared lives and domestic accommodation.”

The paper makes a distinction between “supportive care” and “protective care.” While “protective care” would replace the current Deprivation of Liberty Safeguards, and would also be extended to include anyone aged 16 or over, “supportive care” “is intended to provide suitable protection for people who are in a vulnerable position, but not yet subject to restrictive forms of care and treatment (including deprivation of liberty). In other words, it is intended to establish a preventive set of safeguards that reduce the need for intrusive interventions in the longer term.”(6.2)

Supportive care would apply where someone is living in a care home, supported living or shared lives accommodation, and also if a move into such accommodation is being considered. However, the whole point of supportive care is “to authorise preventive forms of care and support, such as enhanced assessment and care planning oversight procedures – and would not authorise a deprivation of liberty”. (6.12)

The role of the Best Interests Assessor will be abolished, and replaced by an Approved Mental Capacity Professional.

Where deprivation of liberty is being considered, but outside the current parameters of the Mental Health Act, a proposed “restrictive care and treatment scheme” would come into play. But crucially: “it is not organised around deprivation of liberty. Instead it looks at whether care and treatment arrangements are becoming sufficiently intrusive or restrictive to justify enhanced formal safeguards. This will include those deprived of liberty, but will also include some whose arrangements fall short of this”.

This is where one of the major changes to the existing arrangements is being proposed. The role of the Best Interests Assessor will be abolished, and replaced by an Approved Mental Capacity Professional. These “Approved Mental Capacity Professionals” would be “in the same position legally as Approved Mental Health Professionals. In other words, they will be acting as independent decision-makers on behalf of the local authority.”(7.104)

These AMCPs would have powers and duties which appear to be even more wide ranging than those of the AMHP. They would be involved in assessing and reviewing people subject to restrictive care and treatment, who would be people defined as lacking “decision-making capacity as a result of an impairment of, or a disturbance in the functioning of, the mind or brain.” AMCPs would be required to arrange for the assessment of such people “to be undertaken by a person already involved in the person’s care (eg the person’s social worker or nurse) and quality assure the outcome of that assessment or oversee or facilitate the assessment; or undertake the assessment themselves.”

Other tasks of the AMCP would include ensuring that decision-making processes and care arrangements comply with the Care Act, the Mental Capacity Act and other regulations, that there are regular review meetings, and that the person has an advocate and appropriate person to take care of their interests. Where someone is subject to restrictive care and treatment, the AMCP would even be required to specify the duration “which may not exceed 12 months.” They would even have discretion to discharge the individual from such a regime.

Where people who are in a hospital setting, they would be able to be deprived of their liberty for up to 28 days; but if such deprivation continued beyond that, then an AMCP would have to agree to this.

The paper suggests that the Mental Health Act definition of mental disorder, broad though it is, would not be used for these cases, stating that “people with a pure brain injury and those dependent on alcohol or drugs should not be excluded automatically from the benefits of supportive care.”

We are attracted to the approach taken under the Mental Health Act whereby decision-making is more coherently and clearly defined than under the DoLS

Their proposals would obviate the need to go to the High Court for cases currently excluded by the MHA, which includes “people in a persistent vegetative state or minimally conscious state caused by a concussion or brain injury, or someone suffering from a stroke or locked in syndrome.”

The writers of this paper state that “we are attracted to the approach taken under the Mental Health Act whereby decision-making is more coherently and clearly defined than under the DoLS. They go on to say:

We have considered several options for the interface between our scheme and the Mental Health Act. First, we could retain and clarify the existing interface. In doing so, it is important to emphasise that we would not wish to preserve the current drafting of schedule 1A, which is widely viewed as impenetrable. (10.17)

The paper therefore makes a proposal that the MHA should be amended. This is in order to establish “a formal process for the admission of people who lack capacity and who are not objecting to their care and treatment.” This would place such people within the safeguards already available to patients subject to the MHA, and would importantly include the right to appeal to a mental health tribunal.

I’ve necessarily only skimmed the surface of this extensive paper, which runs to 230 pages (although you can read the 12 page summary), picking out proposoals and recommendations particularly close to my heart. But there is a great deal to like in these proposals, which go a long way to addressing the deficiencies of the Deprivation of Liberty Safeguards in particular. I also like the fact that they recognise the Mental Health Act as being a good place for these changes to reside.

However, this is a consultation paper. The final proposals for changes in the law may be quite different. Not least is the impact of the Conservative Government’s plans to scrap or reform the Human Rights Act, and the fact that many of the proposals are designed to address issues raised by recent case law and the European Convention on Human Rights.

It is far from clear whether the current government is concerned enough about human rights in general to spend much time legislating to reform and extend the rights of people who lack capacity.

Important Guidance from The College of Social Work on the Impact of Cheshire West on AMHP Practice

The College of Social Work has just issued The Impact on AMHP Practice and Service Delivery by The Supreme Court Judgment on Deprivation of Liberty: P v Cheshire West and P & Q v Surrey County Council.

This was authored by the eminent Emad Lilo, who is Vice Chair of TCSW AMHP Community and works as AMHP practice lead at Mersey Care Foundation Trust. He is well known for producing extraordinary annual social care conferences, some of which I have reported on this blog.

This is an important document for two reasons.

The first is that it is quite probably the last document The College of Social Work will ever issue, as the Government in their wisdom has seen fit to withdraw funding from TCSW with the consequence that the organisation will cease to exist by September.

The second reason is that it provides important guidance for Approved Mental Health Professionals, Best Interests Assessors and their employers on how to negotiate the minefield that is the interface between the Mental Health Act and the Mental Capacity Act.

Last year, the Supreme Court issued a judgement, P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014] UKSC 19, which attempted to clarify when and how deprivations of liberty might arise for people lacking mental capacity.

Lady Hale in the judgement offered a simple “Acid Test” to assist in determining whether someone suffered a Deprivation of Liberty. It revolved around two facts: that the person is not “free to leave”, and that they are subject to continuous supervision and control. She recommends that professionals should “err on the side of caution” when reaching a decision regarding potential deprivation of liberty, which means that AMHPs and BIAs should ensure they use their respective powers in such cases.

These powers are essentially: to detain the patient under the MHA, to obtain an authorisation under the Deprivation of Liberty Safeguards, or if there is no other route, to obtain an order from either the Court of Protection or via the inherent jurisdiction of the High Court.

You can read more about  the Cheshire West judgement on my blog here.

TCSW surveyed 24 AMHP service providers across England and Wales in order to find out the impact that this Supreme Court decision had had on:

·         AMHP practice and the use of the Mental Health Act

·         The use of DoLS or MHA or MCA for admitting incapacitated patients to a mental health unit

·         The use of DoLS or MHA or MCA for the provision of care/treatment to incapacitated patients already in a mental health unit

·         What training/guidance is or should be made available to improve practice including effective and lawful implementation of the judgment

As a result of this survey, the report makes a number of recommendations in order to ensure that all professionals and organisations working with people who are mentally incapacitated are practicing within the law and the spirit of the legislation.

The report also provides some useful grids and flowcharts to assist in making decisions regarding the use of the Mental Health Act or DoLS.

All but one service provider reported an increase in the burden of work carried out by AMHPs. One respondent noted:
“We have seen an unprecedented increase in the number of MHA assessments being requested, and the number of patients being detained as a direct consequence of the CW ruling.”

There has also been a corresponding increase in the level of requests for authorisations under the Deprivation of Liberty Safeguards. A respondent noted:
“The dedicated BIA team has been expanded by recruitment of extra BIAs and admin staff as this is the main point of contact for inquiries. Despite these increases the BIA service cannot adequately respond to the increase in contact and demand.”

The report observes:
“The situation appears to be more challenging for certain local authorities where a large proportion of their Best Interests Assessors for DoLS are drawn from the AMHP service. The levels of activity have led to unprecedented pressure on already limited and stretched AMHP provision across the country.”

The report also contains extensive discussion of the implications of the Cheshire West judgement in context of the new Code of Practice, and also examines the Law Society guidance issued on behalf of Department of Health.

The MHA Code of Practice was revised subsequent to the Cheshire West judgement. It must therefore be concluded that the writers of the revised Code had the judgement in mind.

Nevertheless, the Code contains some potentially alarming recommendations. For example, it states that "a person who lacks capacity to consent to being accommodated in a hospital for care and/or treatment for mental disorder and who is likely to be deprived of their liberty should never be informally admitted to hospital (whether they are content to be admitted or not)."(13.53)

A consequence of this would appear to be that the MHA is almost invariably going to be used when someone lacking capacity needs to be admitted to hospital.

However, Professor Richard Jones, author not only of the Mental Health Act Manual but also the Mental Capacity Act Manual, stated, “In my opinion, compliant mentally incapacitated patients can continue to be admitted informally under the authority of ss.5 and 6 of the MCA.  After admission, they can be assessed to see whether they satisfy the Acid Test. In any event, I do not see how the use of the MHA can be justified in anticipation of a possible future deprivation of liberty.”

Neil Allen, a Barrister at 39 Essex Street Chambers and lecturer at Manchester University went on to say: “If I lack capacity and need to be admitted to a psychiatric ward to treat my mental disorder, if I object or would object if able to, use the MHA. If I am non-objecting, use MCA 5-6 to take me there and urgent DOLS with request for standard DOLS…. In deciding whether I object or would object, if in doubt Code says err on the side of caution (i.e. consider me to be objecting).”

The report also looks at the Law Society guidance. In connection with conveyance, this states:

“Transporting a person who lacks capacity from their home, or another location to a hospital by ambulance in an emergency will not usually amount to a deprivation of liberty. In almost all cases, it is likely that a person can be lawfully taken to a hospital or care home by ambulance under the wider provisions of the Act, as long as it is considered that being in the hospital or care home will be in their best interests.”

I pick out these particular quotes as in my work as an AMHP and also having responsibility for triaging MHA assessment requests for my local authority, I am always keen to adhere to the MHA Code of Practice’s first principle, which is to use the least restrictive option wherever possible. I am therefore reluctant to use the powers of detention under the MHA if there are alternatives, including use of the MCA for people who lack capacity.

The report makes a range of recommendations, including that AMHPs need to be familiar with the Mental Capacity Act and the Deprivation of Liberty Safeguards and need to be familiar with the key points from the Cheshire West judgment, that local authorities should increase the number of AMHPs to cope with the increased demand, that there needs to be additional training on the MHA Code of Practice, and that “hospitals, local authorities and care homes must work together locally to raise awareness and improve understanding of the MCA more widely and embed it in the health and social care culture.”

This review can necessarily only outline what is contained in this important document. There is so much that is of relevance to professional decision making that I recommend all AMHPs, BIAs and others professionally involved with making decisions on behalf of people lacking capacity should read it in full.

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.