Tuesday, 21 June 2016

Ask the AMHP: Getting discharged by a Tribunal; aftercare for a Sec.37/41 patient; and treatment, accommodation and mental capacity

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

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

Debbie, who was an inpatient detained under Sec.3 MHA, writes to the Masked AMHP:   

I read your blog to get advice about my tribunal, which is tomorrow. I wondered if you have any further advice as to how I can win and how to present myself, as I am told by the solicitor that this will be most of the problem.

Masked AMHP:
Look as smart and "together" as possible in the circumstances. Look attentive during the tribunal itself. It's probably better to let your solicitor lead and basically keep as quiet as possible. Don't interrupt when others are speaking, even if you feel they're wrong in what they are saying. Take notes, then ask your solicitor to raise your concerns on your behalf.

Around a fifth of appeals result in the section being lifted, so it's always worth appealing.

Thanks. Do you happen to know what chance someone has if they have been on 2 weeks consecutive leave and are being told they do not need to be in hospital? Because I was told by the psychiatrist that I was being discharged after the Sec.117 meeting, however as the care coordinator objected at the meeting and said she wanted me put on a CTO I was not discharged after all. How easy is it to get the hospital managers to discharge you?

Masked AMHP:
Managers are less likely to discharge than Tribunals.

OK thanks, but if the tribunal fails then is it worth trying?

Masked AMHP:
Normally there is a managers meeting, then if they don't discharge, there is a tribunal. So you get two chances to appeal against Sec.3.

Thanks, I won the tribunal!!!! I got a deferred discharge.

The Nearest Relative of a patient detained under Sec.37/41 writes concerning discharge and aftercare arrangements:

My wife was detained after being sentenced for manslaughter due to diminished responsibility. The offence occurred during a severe depressive episode which came about as a result of a short, intensely stressful, period which cannot be repeated. Since the ‘index offence’ 3 years ago, she has been completely symptom-free.

Before the depression leading to the index offence, her life was settled, stable and secure. I fully support her in all she wants to do. We have a stable and relaxed home life, we have no money worries and have a large and very supportive circle of friends.  Her medication has been refined since she has been in hospital; it is effective and well tolerated and she willingly accepts that she will have to take it for the rest of her life.  We feel that we don’t need support from social services; we don’t need help with housing, medication, money, training, jobs (we are both retired), or with independent living.

As you say in your article, a Sec.117 meeting must be held for patients due to be discharged from s.37. Is this aftercare compulsory?  Can she refuse any Sec.117 help and support?  Would a refusal or rejection of support jeopardise her discharge?

The Masked AMHP replies:
In the specific case of your wife, as she is currently detained under Sec.37/41, she can only be released with the consent of the Home Secretary, and she would be subject to conditional discharge. Although there would still be entitlement to Sec.117 aftercare, to a certain extent this is trumped by the Sec.37/41. Discharge conditions would be likely to include taking medication, seeing her psychiatrist and community social supervisor, as well as other possible conditions, such as residing in a particular place. I would imagine that if she has a supportive environment to return to, this would be a plus for her, and I am sure that discharge plans would take into account what is available for her. However, by the nature of Sec.37/41, any eventual conditions could not be refused.

In time, after reviews, she may be able to be discharged from Sec.37/41.

And finally, two care coordinators ask questions relating to capacity and treatment:

Care coordinator 1:
We currently have a lady who has been in hospital for a year under Sec.3.  Her delusional beliefs have not responded to treatment.  As part of planning for her discharge she has been assessed as not having capacity to decide where she lives. A best interest meeting has been held. We have identified residential placements, but she has refused to even look at them, because of her delusional beliefs.  What authority do we have to move her? A CTO relies on some level of agreement, and she is content to remain where she is, and not accepting of need for any medication or support following discharge.

The Masked AMHP replies:
You could try placing her in a prospective care home under extended Sec.17 leave. That way, it could be argued she is still an inpatient in the hospital in which she seems happy to remain. If she settles, you could then consider a CTO or Guardianship. Alternatively, if she continues to maintain she wants to leave, but it is considered to be in her best interests to remain, you could try a combination of CTO or Guardianship plus possibly a Deprivation of Liberty authorisation.

Care coordinator 2:
I am the care coordinator of a patient recently admitted informally to hospital.  She has a 5 year history of possible paranoid schizophrenia. She has previously been detained under Sec.3 and has in the past been on a CTO.

She does not believe she has a psychotic illness and believes that there are bugs in her flat and possibly implanted in her body. 

I have been working with her since last year; she has been well and in all other areas functioning and capacity are not affected. She is willing to continue on antipsychotic medication as she feels it does benefit her. 

There are discussions about her capacity regarding treatment with some stating that because she denies having schizophrenia/psychosis how can she have capacity to decide what medication she should take. I argue that she accepts psychiatric medication and acknowledges it does help alleviate some of her symptoms. 

I suppose the question is, can have someone have capacity to agree to treatment for a mental illness if they do not believe they have a mental illness? Even if they are given information, understand, can weigh it up and communicate their point of view?

The Masked AMHP replies:
I guess that if the patient accepts that there are benefits to the medication they are taking, even if they deny they have a specific diagnosis, then they could be regarded as having the capacity to agree to treatment. They may on some level or other recognise there is a disorder, even if they do not agree what that is. Even if they lack capacity, if they are amenable to accepting treatment, then I can't see there's a problem.

Consider a hypothetical case of an elderly person with dementia who clearly lacks capacity, but is accepting of medication for both physical and mental problems. If it is in their best interests, then there should not need to be any formal legal framework for treatment, as it can be managed within the guidelines of the Mental Capacity Act.


  1. Hello. Seriously concerned about the advice given in relation to the last scenario. Acquiesence is not consent. You can agree to take medication but if you lack decision making ability in relation to the treatment but you can't consent to it. To quote the newly minted MHA Code of Practice for Wales:

    24.29 Consent to treatment is the voluntary and continuing permission of the patient to
    receive a particular treatment, based on an adequate knowledge of the purpose,
    nature, likely effects and risks of that treatment including the likelihood of its success
    and any alternatives to it. ...

    24.30 A person who lacks capacity to consent does not consent to treatment, even if they
    cooperate with the treatment or actively seek it.

    24.31 Consent will not be valid if the patient has not been given adequate information. All
    professionals involved in any proposed treatment have a duty to use all reasonable
    care and skill to give clear and appropriate information to the patient about the
    treatment and about possible alternatives.

    The answer does not go far enough in relation to the requirement for a legal framework for someone who meets the so called 'acid test' for a deprivation of liberty. It's not hard to achieve this threshold in an ordinary ward setting. Patients either give capacitated consent to their treatment or need to be subject to one or other legal regime: DoLS or the MHA. There is no third alternative of an 'informal' admission. Available guidance is clear. Nostalgia for the good old days before the Cheshire West Judgment or before the Mental Capacity Act is well enough in its way but should not be shaping professional judgments any more.

    1. My reply relates to someone in the community, who willingly takes medication. MHA CoP would not apply. Interestingly, the recent radio p!ay, Section, is concerned with a patient who does not agree with his diagnosis, but recognises that medication helps him in some way. There are many people like that. Surely, the least restrictive option is not to use MHA legislation? But the Masked AMHP was making a suggestion and is not infallible. Has created an interesting discussion, however.

    2. The question relates to in-patient treatment. I call the attempts of staff to give themselves credit for avoiding using the MHA when it is indicated and required 'the libertarian fallacy'. Reducing unnecessary restrictions is a good thing. Avoiding use of the MHA is only a good thing if it not depriving someone of an important protection: in this instance, the protection given by the periodic attention of a Second Opinion Appointed Doctor. If the Mental Health Act is so intrinsically awful and always an affront to human dignity and there's always an option to come to an 'informal' solution, why do we ever use it at all? The ultimate extension of the 'libertarian fallacy' is that people held incommunicado in the basements of secret Police prisons, without all that tedious legalism and fussy red tape are in fact the freest people in the world. Accepting that staff have discretion to make mental reservations and opt patients out of important protections is one step away from entirely arbitrary decision making.