When can someone not related to you be regarded as your Nearest Relative under the MHA?

Related or not?

Our local AMHP service was greatly exercised recently trying to decide the nearest relative of a particular patient who needed to be assessed under the Mental Health Act.

The patient was a woman in her 30’s. She had no partner, and no children, but she did have a mother and a father. She had lived with a boyfriend in his parents' home for a couple of years, but this relationship had ended, he had moved out, but she had remained living there with his parents. This arrangement had continued for the last 10 years. As she had a number of chronic and disabling physical and mental health conditions, they had not just acted as landlords, but had been providing substantial care, including managing her medication, and taking her to medical and other appointments.

Who should be regarded as the nearest relative within the meaning of the Act?

Following the hierarchy set out in Sec.26 of the MHA, I would be inclined to identify the first people who came in that list.

Sec.26(1) states:

(1) In this Part of this Act “relative” means any of the following persons:—

(a) husband or wife or civil partner;

(b) son or daughter;

(c) father or mother;

(d) brother or sister;

(e) grandparent;

(f) grandchild;

(g) uncle or aunt;

(h) nephew or niece.

Looks fairly straightforward, doesn’t it? It would surely be the elder of the patient’s parents.

(By the way, someone living with you as a husband, wife or civil  partner, whether of the same or different sex, for at least 6 months, will automatically count as your nearest relative.)

However, Sec.26(7) states:

A person, other than a relative, with whom the patient ordinarily resides… and with whom he has or had been ordinarily residing for a period of not less than five years, shall be treated for the purposes of this Part of this Act as if he were a relative but shall be treated… as if mentioned last in subsection (1) above.

And of course, we mustn’t forget Sec.26(4), which states:

Where the patient ordinarily resides with or is cared for by one or more of his relatives… his nearest relative shall be determined… by giving preference to that relative or those relatives over the other or others.

So does the fact that the patient has lived with, and been cared for, by people not her relatives for over 5 years trump the parents?

The MHA Reference Guide has a generally helpful seven step procedure for identifying the nearest relative. This makes reference to a modified hierarchy, which places at the bottom, in 13th place, “other person aged 18+ who qualifies as a relative by having lived with the patient for at least five years”.

It also states that:

“The general rule is that the nearest relative is the person who comes first in the list of relatives described above (with people who are only relatives because they have lived with the patient for at least 5 years coming at the bottom of that list)” (Para 2.12)

It then adds that “a relative who ordinarily lives with or cares for the patient takes

precedence over other relatives.”(Para 2.15)

Richard Jones in the Mental Health Act Manual, observes that subsection (7) “provides that a person who has been living with the patient for five years or more shall be treated as if he or she were a relative who came last on the hierarchy of relatives…By virtue of subsection (4), that person, as a relative who “ordinarily resides” with the patient, becomes the patient’s nearest relative unless a relative who came higher in the hierarchy is either living with or caring for the patient.” (1-412, 18th edition)

So while the Act itself does not include such people in the list in Sec.26(1), the Reference Guide does include them. And if they are therefore included at all, then Sec.26(4) must logically apply to them.

I have to confess that I always believed that a non-relative with whom the patient had been living for at least 5 years could only count as a relative if there was no-one else on the hierarchy of permitted relatives.

Indeed, I remember the general sense of unfairness that a same sex couple only had the same status as a non-relative, even if they’d lived together for their entire adult lives. This was eventually rectified in case law, and then explicitly added to the MHA in the 2007 amendments.

However, the guidance does appear to state that in the case of the patient I mentioned earlier, the people she is living with, and who care for her, would take precedence over other, blood relatives.

While I recognise that non-relatives may often be providing substantial care and have some right to be consulted, I am not sure that Parliament necessarily intended for such people to take precedence over actual relatives of the whole blood, in the same way that the MHA, in Sec.26(3)), explicitly states “relatives of the whole blood being preferred to relatives of the same description of the half-blood.”

Ask the AMHP: This Week Sec.117 Aftercare v. Continuing Healthcare

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

The Masked AMHP's postbag continues to be inundated with enquiries concerning Sec.117 aftercare. Difficulties often arise in connection with what Sec.117 aftercare does and does not cover, and the relationship between Sec.117 aftercare and the provisions for Continuing Healthcare.

An AMHP asks:

I am working with someone who is subject to Sec.117 and has a 14 hour care package we pay for. She has a number of physical health problems which are getting worse and is currently on a medical ward.

Her discharge is delayed because she requires a significant increase in her care package and we are arguing about who pays. If she doesn't meet the criteria for Continuing Healthcare surely it shouldn't be mental health? Argument is it should be as she's Sec.117.

The Masked AMHP replies:

Sec.117 is very clearly only designed to meet aftercare needs arising from the patient's mental disorder. It is not unusual for people to have both a mental disorder and physical health problems – an example was a man with schizophrenia and Friedrich's Ataxia. He was placed in a Care home for physical disability and the cost of that was met by physical disability services, and he was expected to contribute towards this cost.

A relative writes to the Masked AMHP with a problem about the local authority’s calculation of care needs under Sec.117:

My father for many years had undiagnosed longstanding complex mental health issues including personality disorder & hypochondria.  Last year (following a lifetime of being fairly impossible for the family to get along with) he was eventually diagnosed with vascular dementia.  Turning very nasty in the excellent nursing home he had agreed to go into, they applied for Continuing Healthcare funding and he was sent to a psychiatric ward for full assessment under Sec 2.  When the 4 weeks came to an end, they tried to detain him further on a DOLs but his behaviour was such that he had to be detained under Sec 3. 

The nursing home had applied for 1:1 CHC funding to deal with his attention-seeking behaviour and to re integrate him successfully; there were several weeks of arguments about this so his stay was extended. It was eventually agreed to discharge him with temporary 1:1 funding.  Asked about where we would like him to go the family expressed strong preference to return him to the original nursing home though there were suggestions of placements very much further afield which would have been impossible for family & friends to visit.  He has now been in the home for some 2 months and is mostly calm.

However, the cost of the home is over £1000 per week without the nursing element which is paid by the NHS.  Though my father is not badly off, and our main concern is to ensure he is in the right place, our mother remains in the marital home which needs to be maintained and she has needed some temporary care which may of course be needed again and more frequently.

We have been told verbally that the s117 aftercare payable for dad will be around £460 per month – it has not yet been released.  Of course the Attendance Allowance was removed during his hospital stay and I assume will not be reinstated. We have wondered how the amount of s117 funding is arrived at, as no-one has been able to tell us.  I do not believe that there is anywhere which could offer care at that amount in the area and the staff at the present home have been very supportive to us all so a move would not really be acceptable.

The Masked AMHP replies: 

The Care Act has changed some aspects of Sec.117 aftercare. This includes allowing people to top up their care if they want to stay in a more expensive care home than the LA calculates is needed.

As your father has been detained under Sec.3, he will be entitled to free aftercare for anything connected with mental disorder, whether dementia or psychosis.

His needs for aftercare should not be assessed on the basis of how much the LA can afford, but what his care needs are. They might say that his needs can be met in Care home A costing £500 per week, but if you wanted him to go in Care Home B costing £700 per week, then the LA should pay the £500 and the patient can then top up. This is one of the changes in the Care Act. They cannot state an arbitrary amount, which would not purchase the care that has been identified as needed. As a relative, you should be involved in these assessments.

If an assessment concludes that only the care home you have chosen can provide adequate aftercare, then the LA should pay (taking into account any CHC assessment).

Once your father is out of hospital, he should be entitled to Attendance Allowance again.

A worker in a voluntary organisation asks:

A recent determination from our local Community Care Group states that '...an individual who is funded under Sec.117 will only become eligible for NHS Continuing Healthcare funding (following a Continuing Healthcare assessment ) when they are discharged from Sec.117 or if they develop complex physical healthcare needs.'

The determination goes on to say that whilst mental health needs -- evidenced by challenging behaviour -- make the person concerned eligible for funding under Sec.117, the person's nursing needs due to physical health are not of a 'nature, complexity’, etc. to warrant NHS funding.

What I've been unable to clarify in several emails to the Continuing Care team at said CCG is whether the person's scoring in those domains related directly to mental health conditions was too low or whether, in fact, they weren't even considered because of a prior eligibility for Sec.117 funding. I'm a little confused by the distinction that seems evident in the determination, between 'physical health needs' and 'mental health needs' used in determining eligibility for Continuing Care.

The Masked AMHP replies:

Eligibility for Sec.117 aftercare is quite distinct from whether or not someone is eligible for continuing healthcare. CCG's have responsibilities for both Sec.117 aftercare and continuing healthcare. Under the MHA, both local authorities and CCG's have a duty to provide aftercare under Sec.117. How that aftercare is determined and paid for is a matter between the CCG and the LA (the Health side will generally be delegated to the local Mental Health Trust).

The Department of Health document, NHS Continuous Healthcare: Frequently Asked Questions, published in 2011 states:

“Arrangements under the Mental Health Act are separate and different from NHS Continuing Healthcare and the two should not be confused. .. It is preferable for a PCT to have separate budgets for funding Sec.117 and NHS continuing healthcare. Where they are funded from the same budget they still continue to be distinct and separate legal provisions.”

It also goes on to say: "It is preferable for a PCT to have separate budgets for funding Sec.117 and NHS continuing healthcare. Where they are funded from the same budget they still continue to be distinct and separate legal provisions."

Although that seems clear enough, things have changed since 2011. Primary Care Trusts were abolished on 31 March 2013 as part of the Health and Social Care Act 2012, which created GP led Community Care Groups to replace them. These CCGs were often dismayed to discover the expensive continuing healthcare duties that were transferred to them, and many tried to limit expenditure by unfairly and arbitrarily imposing conditions on eligibility. It does not necessarily mean that the CCG's don't have a requirement to meet these needs, whatever they may say.

However, the more recent document, NHS ContinuingHealthcare: Guide for Health and Social Care practitioners, published by NHS England in 2014 states:

“An individual subject to section 117 should only be considered for NHS CHC where they have significant healthcare needs which are not related to their mental health aftercare needs.”

It is true that Sec.117 aftercare is only designed to meet the specific mental health needs of a patient. If they also have physical health or disability needs, these will not be covered by Sec.117. The social care needs of a physical disability would be met by the LA, but the nursing needs, eg in a nursing home, would be met by Health, ie the CCG. Social care needs for a physical disability would be chargeable to the patient, whereas any specific mental health aftercare needs would not be.

Guest Blog: Recent case law on moving people lacking capacity from home to other accommodation

This week, I am posting a guest blog. An AMHP has written an interesting analysis of recent case law (Re AG 2015) posing questions relating to the legality or otherwise of moving incapacitous adults.

I am a believer in an independent judiciary and the “rule of law” (ideally providing the laws are to do with creating a fair and just society and protecting individuals though in a democracy I suppose we cannot pick and choose).  I also am aware of (indeed witnessed as a newly qualified social worker prior to the NHS and Community Care Act) past poor practice / abuses where individuals with a variety of disabilities and frail / confused older people were placed in care on the signature of a doctor without the service user’s agreement (or even involvement) and often, or so it seemed,  for the benefit of others (family and professionals) when with a bit of thought and planning people could have been supported at home with home help (remember them?) and other services available at the time.  I would like to think we would not tolerate this now.

However, at our latest AMHP Forum I was made aware of yet another legal ruling (Re AG[2015] EWCOP 78) which will build in the need for further oversight of social work practice where it is stated that “Local Authorities must seek and obtain appropriate judicial authority before moving an incapacitous adult from their home into other accommodation”.

This particular case concerned a 30 year old woman (AG) with a moderate learning disability and autistic spectrum disorder.  There appears to have been a lot going on in this woman’s life from 2007 – 2011.  AG took her own tenancy in 2007 but lived between this and her mother’s home.  In 2011 both made allegations against each other (of physical abuse) and her mother reported tensions at home and difficulties caring for her daughter.  The safeguarding investigation was inconclusive but the plan following on from this was for AG to leave her mother’s home and live in her own home with 24 hour support – which commenced in August 2011.  This quickly broke down with yet more allegations that AG’s mother was physically and emotionally abusing her, her mother said the care staff were providing inadequate care and that the staff said they were being abused physically and verbally by both AG and her mother.  The care provider terminated the contract and AG moved on to a care home in November 2011.

The statement quoted in the second paragraph above is a “final observation” where Sir James Munby is “inclined to agree” with a submission by the barrister acting on behalf of the Official Solicitor (AG’s litigation friend).  He goes on to state that “Local authorities do not themselves have the power to do this (moving an incapacitous adult)”.   At our AMHP Forum it was suggested that this direction would not apply if there were immediate, serious risks which required urgent admission - to a care home for example.  Sir James does not qualify his observation by saying it would be acceptable to move someone without judicial authority if the need was urgent.  The DoLS Code of Practice appears to cover this matter in Chapter 2 where it acknowledges that taking someone to a place where they might be deprived is not covered by an authorisation but that unless the journey is long or the service user needs to be more than restrained (by which I take it to mean sedated) the provisions of the MCA cover this.  Otherwise a court order would be required.

However, I came across this matter in my practice as an AMHP some time ago (2 years at least) where I was asked to see a very confused older man who lived with his wife.  She wanted some respite but he was refusing to go.  The proposed placement was not far (not more than a mile as I recall).  I was asked to assess him with a view to admission to a mental health ward as a way of resolving the issue because under Sec.2 we would have the legal power to convey.  Otherwise I was told a court order would be required which might take time.  He did not need to be in hospital. The respite placement had been arranged and funding secured.  His sons persuaded him to go and may even have resorted to “therapeutic lying” to get him there.  I do not know if a DoLS authorisation was requested but he was home again in 2 weeks.

When I queried this and asked why we were not following the Code I was told that the Official Solicitor was of the view that anything more than the most gentle restraint should not be used.  It seems they took the opportunity of this case to raise this view with the Court of Protection.  Sir James does not – in this judgement at any rate – appear to consider this observation but simply agrees with it.

From my perspective as a practitioner it is potentially even more of an issue than Cheshire West.  Why is judicial authority required in cases where there is no objection from anyone (other than the possibly the service user – which is not to be ignored and I am not aware of people doing so), where the matter is clear cut, where the move may only be a couple of miles and take a few minutes, where a DoLS authorisation will be applied for when the person gets to the home (or may even have been done in advance) and there will be the safeguards from that?

I do understand the probable trauma of moving to and then living in an unfamiliar place for a very confused person.  However, I think we have moved on from the sort of decision making that took place in the early 1990s where moves were agreed quickly and with apparently less thought and assessment than there is now.  Funding will not be agreed – particularly in these times of restricted budgets – unless the move is necessary.

I do accept that there are sometimes situations where supporting someone at home may be more expensive than moving people into care and am aware of cases where, had substantial packages of care been agreed, the service user could have stayed at home.  Getting these packages for older people (65 yrs plus) has been very difficult for some time (not that any local authorities have “policies” about allowing a maximum of 4 visits a day to older people).  However, for straightforward cases why introduce another barrier (as I see it – safeguard as the courts perhaps see it)?

The AG case strikes me as being complex, with a family member objecting to aspects of AG’s care plan (though not the actual conveyance as far as I can see).  However, it also seems that when AG did move into care there was some urgency as otherwise (short of moving home to her mother) she would have been unsupported.  How quickly can judicial authorisation be arranged?  How is it done?   

What about when the out of hours service get a phone call at 3.00am on a Sunday morning from the local A & E because the husband and carer of a very confused and frail 80 year old woman has been admitted in an emergency and she is home alone, there are no family to care for her and we cannot get a care package in place for 48 hours?

Are social workers and other professionals who might be involved in such cases not to be trusted to act reasonably and responsibly at least in urgent situations and where there will have to be a DoLS authorisation (or at least assessment) in due course?

Our local advice is that we have the common law power of necessity if urgent.  If non-resisting (whether urgent or not) we still have the powers noted in the DoLS Code and under Sec.4 Mental Capacity Act if in the person’s best interest and we can evidence that we have complied with Sec.4 as best we can (if urgent).

I would love to hear the reflections of other social workers.  Am I just being over-sensitive?   I am not saying that there should not be judicial authorisation where there are contentious issues with a range of people objecting or where the service user has enough awareness to know what is happening and to benefit from the opportunity to have their voice heard (though I do think social workers listen to and take on board what people say) but where a service user is extremely confused and may well not even be aware of or remember any judicial intervention I find it hard to see the need to introduce yet another hurdle for us to jump over.