What is the Mental Health Act For?

Working in a busy AMHP office triaging requests for assessments under the Mental Health Act, I am driven to conclude that often an AMHP’s role is as guardian and upholder of the law.

We can receive requests from a number of sources. They can come from a GP, or a care coordinator in a mental health team, or a mental health liaison nurse working in a criminal justice or medical hospital setting, or a psychiatric ward, or even a care home manager. They can also come from the police, either because they have detained someone under Sec.136, or because they have arrested someone who subsequently appears to be mentally disordered.

And of course, the nearest relative has a right under Sec.13(4) to request an assessment under the Mental Health Act. Although not quite: the Act actually states that the local authority must “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”, which isn’t the same thing.

These requests are not necessarily appropriate. More than that, our service is increasingly finding that requests for formal assessments under the MHA may not be triggered only after all other alternatives have been exhausted, but rather because of a shortage of suitable resources, or a failure of the system, or even because the referrer is reluctant to do their job.

Sometimes requests come from the duty worker in a community mental health team. They have taken a concerning call from a relative, or a GP, but either the care coordinator of the patient is on leave, or the patient has been referred to the team but a shortage of staff has meant that they have not been allocated a worker.

Sometimes requests come from someone such as a care home manager who believes that a MHA assessment is a fast track way of getting someone assessed by a psychiatrist.

And sometimes relatives contact the local community mental health team to express concerns about the mental health of their relative who is a patient of the team, and the person they contact advises them to request an assessment under Sec.13(4).

Here are a couple of real conversations I have had with referrers.

The Mental Health Professional

Referrer:        I’m a nurse in the Early Intervention Team. Jeremy, who’s 19, was referred to us by his GP, and I gave him an appointment to see him at our office today. I am referring Jeremy for a Mental Health Act Assessment.

Me:                 And what are your concerns?

Referrer:         His mother has given me a lot of information about his behaviour, which appears to indicate he is psychotic.

Me:                 His mother?

Referrer:        Yes. Jeremy refused to come to the assessment, but his mother did, and I had a long conversation with her about the problems.

Me:                But you haven’t actually seen him? We would expect someone making a request for an assessment under the Mental Health Act to have seen the patient first.

Referrer:       But he won’t come to an appointment.

Me:                Have you considered going out to see him?

Referrer:       Oh, that’s not necessary. I’ve made my assessment, and he definitely needs a MHA assessment.

Me:                I’m just a little surprised you feel that a conversation with his mother, without actually having made contact with Jeremy, is sufficient evidence to justify an AMHP and two psychiatrists knocking on his door.

Referrer:       I’ve made a professional decision that he needs a MHA assessment, so it’s your job to go out and assess him.

Me:               But Jeremy hasn’t actually been seen by a doctor or a mental health professional.

Referrer:      Are you questioning my professional ability to make an

                        assessment?

Me:               But all you’re basing your assessment on is reports from his mother. I really think you should make an effort to see him before making a decision about referring him for a MHA assessment.

Referrer:      But his mother says that he won’t see anyone. And anyway, I’d be concerned that he might be aggressive if I went to see him.

Me:               You haven’t convinced me that Jeremy needs a formal assessment under the MHA. But I’ll tell you what I’ll do. I can arrange for one of our AMHP’s to go out with you for a “look see”. Then at least there’s been an effort to actually see the patient. And we can take it from there.

Referrer:      But I’ve made a professional decision that Jeremy needs an assessment under the MHA. There’s no need for me to go out to see him.

Me:               Bangs head on table repeatedly

The GP

GP:              I’m requesting an assessment under the Mental Health Act for one of my patients, Giles. He’s in his 60’s, and he’s got terminal cancer which is metastasising, and Parkinson’s Disease. I arranged for our palliative care nurse to arrange to see him. When she rang up, he told her that he didn’t want to see anyone, and was going to cut the cancer out himself, since no-one was doing anything about it. We know he’s got a knife, which he keeps under his pillow, he’s told us about it before.

Me:              So has anyone actually seen Giles?

GP:              The nurse has spoken to him on the phone. His usual GP saw him a week ago.

Me:              But on-one’s seen him today? Because we would expect a doctor to have actually seen the patient before referring for a MHA assessment. From what you’ve told me, his current behaviour could be the result of physical illness. If the cancer is metastising, it might be affecting his brain and thought processes. The Parkinson’s Disease could also be affecting his mental state.

GP:              So you’re suggesting I go out and see him to see if there’s something physically wrong with him?

Me:              Yes. He might need to be admitted to a medical ward rather than a psychiatric unit. And he might even agree to an admission to hospital. That needs to be explored before we go down the MHA route, which should only be considered once all less restrictive options have been tried. 

 

GP:              But I’m frightened to go out in view of the fact he has a knife and he expressed aggression to one of my nurses.

Me:              You could ask the police to accompany you if you have concerns about your safety. After all, if an AMHP went out to assess, they’d probably want the police with them in view of what you’ve told us.

GP:              That’s a good idea! I’ll go out with the police, see if he’s physically ill, and then I can get back to you if I think the main problem is mental illness.

Me:              Yes.

(The GP contacted the AMHP service the following day to let us know that he didn’t after all need a MHA assessment, as the problems were mainly physical, and he’d been admitted to a medical ward.)

In response to the level of referrals which were deemed inappropriate, our AMHP Service has developed a protocol for referring, which has been circulated to all organisations who may refer for MHA assessments.

Among the requirements are:

• For patients unknown to secondary services, the GP should first have seen the patient and considered alternatives.
• For patients known to community teams but unallocated, that team should have made efforts to see and assess the patient first.
• The referrer must have seen and spoken with the patient, or the patient must have been seen by another professional worker and advised of the concerns, unless there are clear, defensible reasons not to do so.
• If the referrer is not a Clinical Team Leader/ Team Manager or senior worker then they will be expected to have discussed the referral with a senior member of their team in order to rule out alternative support or treatment options. For example:

o   Has the referrer considered a referral for a Social Care Assessment and/or Carer’s Assessment?

o   Has the referrer considered or made a referral to the Dementia Intensive Support Team or the Crisis Resolution Team to avoid an admission to hospital?

o   Has the person’s Crisis Contingency Plan to avoid admission been implemented?

o   Has the referrer considered and discussed with the patient an informal admission to hospital?

o   Has consideration been given to use of Mental Capacity Act and guiding Principles, including issues of capacity and consent?

o   Have all least restrictive alternatives to detention under the MHA been considered?

This brings me back to my initial statement at the beginning of this post. The Mental Health Act is designed to protect the liberty and other human rights of those deemed to have a mental disorder, to prevent coercion and forced hospitalisation if at all possible. A Mental Health Act assessment is therefore the last resort.

The AMHP Service should not be regarded as an emergency service. (This statement may surprise many, but in genuine cases of emergency, for example, someone standing at the top of a multi-storey car park threatening to jump off, getting an AMHP and two doctors to attend at that point would serve no useful function until the immediate crisis had been resolved via other emergency services.)

The Code of Practice states as its first guiding principle that the least restrictive option should always be tried first:

Where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. Wherever possible a patient’s independence should be encouraged and supported with a focus on promoting recovery wherever possible.(para1.1)

It goes on to say:

Commissioners, providers and other relevant agencies should work together to prevent mental health crises and, where possible, reduce the use of detention through prevention and early intervention by commissioning a range of services that are accessible, responsive and as high quality as other health emergency services.(para.1.3)

So this protocol merely draws attention to the guiding principles of the MHA, and in particular para1.3.

Issuing this guidance has resulted in fewer inappropriate referrals over time. But hard pressed professionals, faced with a lack of “accessible, responsive” resources, will still try in desperation to use an AMHP to fill the gaps.

Sec.136 and Compliance with Article 5 of the Human Rights Act 1998

Here is a guest blog, written by John Holden, an AMHP with  Surrey Emergency Duty Team, discussing the implications of Article 5 HRA in relation to Sec.136 MHA.

A primary function of the AMHP role is the protection of the liberty interests of the individual.  It is in tension with our duty to ensure the safety of those individuals and that of the public, alongside the promotion of their wellbeing.

I have mapped out my thinking regarding two related issues which straddle this tension, to seek people's views.  Both involve the nature of the relationship of Sec.136 Mental Health Act to the requirements of Article 5 of the Human Rights Act 1998, relating to the right to liberty, and demonstrate the complexity of our work having to take regard of the interface between domestic law and the requirements of the HRA.

The first follows from an interesting debate which has recently arisen amongst the AMHPs in my local authority, stemming from the bed crisis which is nationally affecting us all: the question of whether it is proper, or even lawful, to continue to detain someone under Sec.136 when they are able to consent to, or lacking capacity do not object to, hospital admission, but a bed is not currently available.

Some of our AMHPs, concerned about inordinate waiting times, which can exceed twenty-four hours, combined with the possibility that the person may change their mind, believe it is proper to do so. Others are passionately against the practice.  This is issue A.

The second, Issue B, arises from a concern I have had for some time about the compatibility of the direction in the Code of Practice, at para.16.51 with Article 5, where a person is concluded by a doctor to ‘have a mental disorder’ and therefore has to be seen by an AMHP before they can be released from detention under Sec.136.

Issue A:

Having looked at the statute and relevant aspects of the Code of Practice, it appears clear to me that domestic law provides a framework to authorise the continued detention of someone who is consenting to informal admission.

In brief, Sec.136(2) permits the continued detention of a person taken to a place of safety for up to 72 hours to enable 'him' to be examined by a registered medical practitioner, to be interviewed by an AMHP and, importantly for our purposes: ‘of making any necessary arrangements for his treatment or care’, i.e. the finding and subsequent offer of a bed.

Although the use of the term 'may' (be detained) permits the ending of detention prior to the statutory limit of ‘not exceeding 72 hours’, the Code of Practice guides (at para.16.50) that detention ends as soon as ‘suitable arrangements have been made’.  If a bed is not available it cannot be offered and suitable arrangements are in the process of being made, rather than ‘have been made’. Consequently the authority to detain remains in place.

However, having thought about this matter further, it occurred to me that my colleague’s passionate objection might find grounds in the question as to whether domestic law meets the requirements of the Human Rights Act 1998 and the injunction for the prevention of arbitrary detention following from Article 5. My examination of this question led me to the position that the continued use of detention can in fact be lawful, but in circumstances narrower than I had first thought.

My starting point was the fact that all public authorities are required to act in accordance with the Convention, within the scope provided by the primary legislation (Sec.6, HRA 1998) and to have regard to European jurisprudence (Sec.2, HRA 1998).

Importantly, this includes, in Stanev v Bulgaria (2012), the fact that the European Court of Human Rights considered ‘the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interests which might require that the person concerned be detained.  That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances.’ (para.143, my emphasis). 

Additionally, for persons detained on the ground of ‘unsoundness of mind’ (Article 5 (1)(e)) their continued detention must accord with the Winterwerp (1979) ruling: whereby the person must be reliably shown to be of unsound mind by a medical expert; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of such continued confinement depends upon the persistence of such a disorder.

It is also the case that any interference with a person’s rights under the European Convention of Human Rights must be proportionate.

Finally, public authorities have a positive duty to take reasonable steps to prevent a deprivation of liberty in situations where they know, or ought to know, that a deprivation of liberty is taking place (Stork v Germany [2006], para.102).

Therefore, where a person subject to Sec.136 has been examined by a doctor (or doctors) and has been interviewed by an AMHP, it would be reasonable to infer that the continued detention, for the making of suitable arrangements, would require that the person is found to be currently of unsound mind (see issue B below), the kind or degree of which warrants their continued detention and, irrespective of the provisions which may authorise the detention under domestic law, it, in addition, must be demonstrated to be necessary to continue that detention, in the person's or public's interests, and the measures taken must be seen to be proportionate to the ends for which the detention has proved to be necessary. This would include having explored all alternative options providing for less restriction.  If these criteria were not met, following from one's positive duty under Article 5 (particularly as the AMHP has become party to the detention), action would be required to seek to end the detention. 

I am not entirely clear how this should take place.  As far as I can see no agent, per se, has a designated power to do this (other than a Custody Sergeant in a police station).  Rather, the detention lapses at the point at which the suitable arrangements have been made.  This, however, implies that someone has made the judgment that the arrangements have indeed been made and that they are suitable.  Given that the doctor and the AMHP are charged with establishing the care and treatment needs and delineating what arrangements would be suitable to meet the identified need, it would imply that one or both would have a role.  If this were the case (given that Sec.6 HRA 1998 restricts decisions in respect of article rights' to be within the scope of the primary legislation) then there would be scope to act, as the condition of termination is defined by the Code and not by statute: there would be a cogent reason for the decision maker(s) to depart from the Code as the situation was in violation of the person's Article 5 rights.

It follows from the above that the situations which permit continued detention are therefore circumscribed.  The evidence must establish unsoundness of mind of a kind or degree warranting continuation of the nature of the compulsory confinement proposed (Re PS (an adult) [2007] para. 23 (ii)).  This would mean that they are likely to meet the general grounds for detention under the Act – although, it may not be necessary nor warranted to be admitted to hospital under detention.

It is to be remembered that, exercising the principle of least restriction, it is within the AMHP’s discretion not to seek to make an application - the balance being tipped towards promoting the person's liberty interests (whether the intention is to return the person to the community or to await a hospital bed).  The caveat to this is that if the person is to be admitted, then a lawful framework for their likely deprivation of liberty at hospital will need to be in place in advance of that admission.

The next step in the argument is to look at the important relationship between capacity to consent and deprivation of liberty.  As this relationship has an equal, determinative, role in both issue A and B, I would like to pause at this point to introduce issue B. 

Issue B:

This issue arises from a similar concern with regard to engagement of Article 5 and the risk of arbitrary detention.  The Winterwerp criteria referred to above were re-affirmed in Varbanov v Bulgaria (2000). At para.47, it was clarified that in urgent cases the necessary opinion of a medical expert can be obtained immediately after a person's arrest. However, it was explicitly specified that ‘the assessment must be based on the actual state of mental health of the person concerned and not solely on past events’, i.e. the unsoundness of mind has to be both contemporary and persisting, rather than latent and potential (unless rapid decline is indicated).

This is underscored by the fact that, as we have already seen, to qualify for continued detention the unsoundness of mind must be of a kind or degree which warrants that detention. This has always appeared to me to be to be at odds with the requirement of para.16.51, of the Code of Practice, where a doctor alone sees the person first, concludes that compulsory admission to hospital is not necessary and establishes that they 'have' a mental disorder - i.e. they are known to suffer from, but are not currently manifesting signs or symptoms of that disorder - the person's detention is to continue until they can be seen by an AMHP.  I have long felt that this contradiction was a cogent reason for departing from the Code of Practice and for the responsible doctor undertaking the examination to discharge the person from detention.

Although the initial duty would fall to the responsible doctor, where an AMHP has been informed that the person is not currently mentally disordered, the positive duty following from Article 5 would require them, at a minimum, to bring the doctor’s responsibility to their attention.

The role of capacity, consent and deprivation of liberty

It is important to remember that we are addressing concerns regarding the interface of the MHA 1983 with Sec.6 of the HRA 1998.  Issues A and B turn on the engagement of Article 5 and therefore whether a deprivation of liberty is occurring in each situation.  Capacity and consent, which have no role in criteria under the MHA 1983, take on significance at the interface of the two schemes as they play a role in defining whether a deprivation of liberty is likely to be occurring. Let's take these matters in turn.

Both issues A and B only arise if the person's situation can be considered to constitute a deprivation of their liberty.  If the particular situation doesn't, then there is no conflict with the domestic guidance and it's authority remains.  As we know, deprivation of liberty is a tricky beast.  Most importantly it is an 'autonomous concept'.  Although all deprivations of liberty are detentions, not all 'detentions' are deprivations of liberty (see Foka v Turkey (2008), para.75, where the ECtHR found no deprivation of liberty where a stay in a police station, lasting a few hours, did not go beyond the time strictly necessary to complete certain administrative functions).

The calibration of a 'detention' as to whether it amounts to a deprivation varies by the interplay of the 'Acid Test' and such factors as intensity e.g. whether coercion is involved (see Foka v Turkey 2008), and duration e.g. whether there is undue delay in the completion of process (see R(Sessay) v South London and Maudsley NHS Foundation Trust (2011)). I suspect, given the cautious approach advised by Baroness Hale in the Cheshire West ruling, the need to err on the side of caution would lead us to construe those subject to Sec.136 as deprived of their liberty - particularly as coercion is implied.  With regard to duration, if the wait could be considered to be ‘negligible’ then, possibly, it is likely that no breach would occur. 

The exception to the above, in both issues A and B, will be where the person is able to consent to remaining in the Sec.136 suite and does so. This follows from the fact that the subjective element of the test for a deprivation of liberty has not been met.  Care, of course, would have to be taken about the information provided to ensure the person's understanding of what it means to remain until suitable arrangements can be made, or to agree to be seen by an AMHP.  However, if this is the case, there would be no conflict with Article 5 and the authority for detention under s136 would continue.

The issue of capacity and its relationship to determining whether the situation is a deprivation of liberty is therefore important. As far as I can see:

A) people awaiting suitable arrangements to be made, whether going into hospital or back to the community, the situation will be determined as follows:

(i)              People who can consent to remaining, and do so, are not deprived of their liberty.  There is therefore no conflict with the provisions of Article 5, and they remain subject to detention under s136.  The detention will end when it has been decided that suitable arrangements are in place.

(ii)             People who can consent to remaining and object, or who are found to lack such capacity, weather compliant or objecting, are likely to be derived of their liberty. Continued detention must be shown to be both necessary and proportionate with respect to the person's or public's interests, following the scheme discussed above.

B)  For those who have been seen by a doctor and are not currently of 'unsound mind',  the situation will be determined as follows:

(i)              People who can consent to remaining, and do so, are not deprived of their liberty. Therefore no conflict with the provisions of Article 5 arise, and they remain subject to detention under s136.  The detention will end when it has been decided that suitable arrangements are in place.

(ii)             In all other situations they will be subject to a deprivation of their liberty, which would conflict with Article 5 rights as the ground of being currently of ‘unsound mind’ is not met – one’s positive duty to prevent arbitrary detention would then have to be considered.

Therefore, for all those involved with a person detained under Sec.136, in order to promote their liberty interests, the above can be distilled down to the need to ask the question: is the person deprived of their liberty? If so: is it necessary and proportionate, by establishing unsoundness of mind of a nature or degree, considering the person’s interests and that of the public, to continue their detention? Finally, following from the positive duty under Article 5, are there grounds for departing from the Code of Practice to end the detention under Sec.136?