The Mental Health Act Review

Professor Sir Simon Wessely, Chair of the MHA Review

The Mental Health Act Review, chaired by Professor Sir Simon Wessely, was finally published on 6^th December 2018.

I naturally have a particular interest in the Mental Health Act 1983, because I have been working within the Act as an ASW and AMHP since 1983, as it happens.

It is immediately apparent that the Review is not proposing a new Mental Health Act; instead, it is proposing significant changes to the existing Act, as well as to Mental Capacity legislation, just as the MHA 2007 did. So, if the changes are enacted, we will still be referring to the MHA 1983 (as amended).

I don’t intend to criticise the Review per se, as it says a lot of good things, and is clearly and explicitly placing human rights at the forefront of decision making within the Act. It flags up a number of factors that are adversely affecting the effectiveness of the MHA.

But I have some misgivings, which I will go into in more detail later.

There isn't the space here to critique all the recommendations in the Review, as there are 154 in total, but I will concentrate on the proposed changes which are likely to have the most impact on AMHP practice.

[Aside: Approved Mental Health Professionals (AMHPs) are used to their official title being misunderstood. They are often referred to as Approved Mental Health Practitioners, and the abbreviation is often given as AMPH. I am afraid that even the MHA Review has got the title wrong in one place. In one of the headings we are referred to as Approved Mental Health Act Professionals. Sigh.]

The Four Principles

The Review begins by recommending that four principles should underlie all aspects of practice within the MHA, and that these should be inserted into the Act right at the beginning.

The existing Code of Practice already has guiding principles, which should be considered when acting with the Act. These are:

Least restrictive option and maximising independence

Empowerment and involvement

Respect and dignity

Purpose and effectiveness

Efficiency and equity

The Review, however, is proposing replacing these with 4 new statutory principles:

Choice and autonomy – ensuring service users’ views and choices are respected

Least restriction – ensuring the Act’s powers are used in the least restrictive way

Therapeutic Benefit – ensuring patients are supported to get better, so they can be discharged from the Act

The Person as an Individual – ensuring patients are viewed and treated as rounded individuals

Rather than as at present, where the principles are in the Code, and therefore do not have the same statutory force, the Review is recommending that they should be embedded into the Act, even suggesting the wording for the beginning of the Act, for example, replacing the current Section 1 with a new one:

1. The purpose of this Act is to confer and authorise the powers (including coercive powers) necessary for the treatment of mental disorder and to safeguard the dignity and rights of those who are made subject to the exercise of such powers and for related purposes.

A new Section 2 would then include a statement of these 4 principles, and how they should be followed.

From these principles there flows a range of new or radically refocused proposals. These include addressing the disproportionate use of the MHA with black and ethnic minority patients.

Here are some of the proposed changes to the legislation.

Abolition of the Nearest Relative

As expected, the Review is proposing the abolition of the “Nearest Relative”, replacing it with a Nominated Person, similar to the Scottish Mental Health legislation.

Our recommendations will allow the patient to choose their own Nominated Person (NP) either prior to detention, at the point of assessment for detention or whilst detained through a new nomination process.

Where a patient has not appointed a NP prior to detention, an AMHP would be able to appoint an Interim Nominated Person (INP), which would involve identifying a friend or relative who was most suitable to fulfill the role. This may involve the use of the existing hierarchy for identifying the Nearest Relative, but as soon as the patient has the capacity to do so, they would be able to choose their own NP.

The powers and rights of the NP would also be extended, to include the right to be consulted over renewal of detention, extension of a CTO and transfer from one hospital to another. They would also have the right to be consulted on care plans.

The concept of the Nearest Relative, and the importance in law for AMHPs to identify the correct Nearest Relative, is an issue that produces endless head scratching and discussions within AMHP circles. In our local AMHP hub, a day will rarely go by without a debate on how to identify a particular patient’s Nearest Relative. I have written about this in my blog, and have taught the intricacies of this at length on AMHP training courses. So anything that simplifies this process will by much welcomed.

Informal admission (S.131)

S.131 of the MHA has always been clear that informal admission should be the default for the care and treatment of inpatients. But this is frequently not the case. I have even come across gatekeepers of beds, both in the NHS and in private hospitals, informing me that they will only accept detained patients.

The Review recommends a higher stress on the primacy of informal admission over compulsory detention, to the extent of recommending that “section 131 of the MHA is moved so that it sits above sections 2 and 3 of the Act."

Changes to criteria for detention

The Review proposes that there should be new criteria for significant harm, with the intention of raising the bar for detention:

We believe the Act needs to be more explicit about how serious the harm has to be to justify detention and/or treatment, or how likely it is that the harm will occur. We are recommending that there must be a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person.

The Review observes:

The AMHP must clearly state on the application form what specific harm they have identified, and how detention will reduce this, including why alternatives are not available or suitable.

This is at least partly in response to the Review’s concerns about risk aversion among mental health professionals. In trying to identify the factors that have led to a marked rise in the use of detention under the MHA in recent years, the Review cites the culture of risk aversion, arising from fear of the consequences to the patient and others of errors in judgment. Wessely makes the point that, while risk used to focus on risk to the patient, there has been a shift to trying to protect the agency or professional from risk.

I would make the anecdotal observation that some mental health trusts are not encouraging clinical staff to take risks, through reluctance to pay staff at a high enough rate. Some Trusts have reduced the numbers of Band 7 nurses as a cost saving exercise; a consequence has been that less well paid and less experienced staff will be more likely to request an assessment under the MHA for a patient who is not wholly cooperating with their treatment plan, often relying on historic or purely hypothetical risk factors to justify this.

Length of detention and other time scales

The Review is keen to reduce the length of time that a patient can be detained in hospital wherever possible.

S.2 should be reviewed after 14 days, and a decision should then be made to either discharge or detain under S.3: “section 2 should only be used where it is truly necessary to assess someone."

The Review explains:

Where the AMHP is aware that a person has been subject to detention under section 3 within the last twelve months, an application for detention under section 2 can only be made where there has been a material change in the person’s circumstances since they were previously detained under a section 3. We are also recommending that the Code of Practice makes it clear that section 3, rather than section 2 should be used when a person has already been subject to section 2 within the last twelve months.

The Review is also recommending a reduction in the initial maximum detention period under S.3 to 3 months from the present 6 months. There would be a further extension period of 3 months, and only after that could a person be detained for 6 months.

I actually suggested this in my blog over 2 years ago. In the MHA 1959, the time scale for S.26, the predecessor of S.3, was 1 year, then 1 year, then 2 years. The MHA 1983 cut this in half. In view of changes to average detention times since 1983, it seems eminently reasonable to cut this in half yet again.

The Review is also suggesting that there should be a statutory time limit for finding a bed once a decision has been made to detain under the MHA. This is addressing the current dire problems in finding beds in an emergency. I have known it to take up to 4 weeks to find a bed for a patient. This problem also leads to a reluctance to go out and assess someone without there being a bed identified first.

The Review also proposes that there should be a minimum waiting time standard for the commencement of a MHA assessment.

Treatment

The Review recommends that the current criteria for treatment should be tightened up so that “not only must appropriate treatment be available that cannot be delivered unless the person is detained, but also that the treatment would benefit the patient.”

It is also recommending greater protection for people objecting to treatments such as ECT.

Community Treatment Orders

The Review had severe misgivings about CTO’s, especially in view of the dubious research evidence for their efficacy. The Review stated that “CTOs are in the “Last Chance Saloon”.

While not actually recommending that CTO’s should be abolished, there was a desire to seriously reduce their use.

One of the proposals is that two Approved Clinicians and an AMHP should makes decisions about placing a patient on a CTO. Additionally, an AMHP should interview the patient and consult with the NR/NP and CMHT. A CTO should end after 24 months unless there are exceptional circumstances.

Statutory Care and Treatment Plans

Following admission, a Statutory Care and Treatment Plan (CTP) should be in place within 7 days of admission, and should be reviewed within 14 days. This would also identify whether a patient detained under S.2 should be continued to be detained, or discharged from detention, facilitating an early challenge to compulsory treatment.

Advance Choices Documents

These are similar to Advance Directives under the Mental Capacity Act, in which a patient can express their views about future care and treatment. The Review states:

Where a person is recorded as having capacity at that time the choice is made, the presumption will be that it will be honoured unless there are compelling reasons why not. So in future a request for a treatment that might be less than optimal, but still possible, should be honoured.

In order to strengthen the authority of the ACD, the Review states:

Where a patient has capacity for advance decisions, ACDs should be authenticated where possible by a health professional, unless the patient objects to this. In other words, we think that a health professional should confirm that the patient has capacity to make the choices contained in the document. We make this recommendation to remove the potential for doubt later as to whether the person had capacity to make the choices contained in the documents.

This should make it less likely that a case such as Kerrie Wooltorton, who was allowed to die from ingestion of antifreeze because she had written a “living will” refusing treatment, could recur. Further information about this notorious case can be found on my blog.

Advocacy

The right to an Independent Mental Health Advocate (IMHA) would be extended to informal patients. Additionally:

We think that IMHAs should be able to challenge treatment decisions, and make applications for discharge, on behalf of the patient where the patient lacks capacity to do so.

Children and young people

One of the proposals relating to children and young people is that young people between the ages of 16 and 17 should not be admitted to hospital or treated purely on the basis of parental consent.

While I welcome this stance, I think that this occurrence is in any case fairly rare for this age group. My own view is that any child over the age of 13 is better served by using the MHA if appropriate, rather than relying on children’s legislation and parental rights.

Learning disabilities and autism

In view of the fact that the current Code of Practice tends to take a dim view of the use of hospital admission for people with learning disabilities and autism, and it was also intended that the MHA should only ever rarely be used for this group, I did wonder whether the Review would remove them entirely from the scope of the Act.

What the Review does do is affirm the general inappropriateness of the MHA for these people:

We are recommending changes to the detention criteria to establish a culture which is less risk adverse because it too easy for the behaviour of a person with a learning disability, autism or both to meet the current threshold of risk. When detention is being considered, professionals will need to focus on more than just a person’s presenting behaviour that is perceived to be challenging. There will need to be a ‘substantial risk’ of ‘significant harm’.

The Police and the MHA

The Review recommends that police cells should never be used as a place of safety, suggesting a cut off point of 2023/24. In fact, this is only an affirmation of the current policy of only using designated health based places of safety for detention under S.136.

A welcome suggestion is that S.136 should be amended so that a police officer can make the decision to end a detention, rather than an AMHP and a doctor. This would arise where it was clear that a full assessment under the MHA was not justified.

Section 140

S.140 states that those responsible for providing hospital beds should fulfill this duty.

The Review suggests:

The operation of this responsibility needs to be discharged more consistently and more effectively, in particular to address the fact that people who are arrested under the criminal law are staying in police cells for too long, often unlawfully, after it has been established that they need to be admitted to hospital following a Mental Health Act assessment.

Ambulance services

The Review has some interesting things to say about the provision of ambulances for the conveyance of mental health patients. The bane of AMHPs’ lives (or at least one of them) is delays in ambulances attending to convey a detained patient.The Review sates:

Ambulance services should establish formal standards for responses to section 136 conveyances and all other mental health crisis calls and ambulance commissioners and ambulance trusts should improve the ambulance fleet, including commissioning bespoke mental health vehicles.

Conclusions

I have only concentrated on some of the highlights of the Review, which is after all, over 300 pages long.

Were all the recommendations to be taken on board by Parliament, I do think we would have a much more robust and rights based legislation for people with mental health problems.

But I see a lot of problems.

Some of the recommendations fall short of changes to legislation, recommending instead government policy changes, or changes to the wording of the Code of Practice. Sometimes it is difficult to detect the difference between suggesting what might be better, and proposing actual changes to the Act.

Many, if not most, of the necessary changes would require a huge additional investment in mental health services, which may not be forthcoming (in fact, until now, the reverse has been the case). Had adequate funding remained in place since 2007, there may not even have been a need to review the MHA.

It was first proposed that the MHA 1983 should be reformed as long ago as the late 1990’s. Several draft Mental Health Bills were published before the MHA 2007 (amending the 1983 Act) eventually came into law nearly 10 years later. Even if Parliament had the will, I would not expect to see any of these changes happening within the next 2-3 years.

The recent review of the Mental Capacity Act has led to a new Mental Capacity Bill which was markedly different from the Law Commission’s detailed proposals.

A Government press release in response to publication of the MHA Review, while stating that it is committed to reforming the MHA, appears to go on to say that is only accepting 2 of the recommendations, these apparently being:

Those detained under the Act will be allowed to nominate a person of their choice to be involved in decisions about their care. Currently, they have no say on which relative is contacted. This can lead to distant or unknown relatives being called upon to make important decisions about their care when they are at their most vulnerable.

People will also be able to express their preferences for care and treatment and have these listed in statutory ‘advance choice’ documents.

So I’ll not be holding my breath.

The Approved Mental Health Professional Workforce Briefing

I always like some tasty statistics, and what could be tastier than the briefing on the Approved Mental Health Professional Workforce in England, which has just been published.

A brief document, amounting to no more than 5 pages, it nevertheless contains some fascinating figures (at least to me) relating to numbers and demography of AMHPs.

As 92% of local authorities responded, it is a comprehensive description of the state of AMHPs in England. For a start, it can be said with a high degree of certainty, that there are 3,900 AMHPs in England.

Despite the Mental Health Act 2007 opening the AMHP role to nurses, occupational therapists and psychologists, as well as social workers, the overwhelming majority of AMHPs are still social workers. 95% are social workers, compared to only 4.5% who are nurses. The remaining 0.5% are occupational therapists. Oh, and there is actually one clinical psychologist.

A recent post on the Masked AMHP Facebook Group enquired how many AMHPs were full time. This document identifies that 23% of AMHPs work on a full time basis, while the remainder practice on a part time basis, in conjunction with their substantive post, whether that be as a social worker or mental health nurse. This second group would tend to be on a rota, perhaps on a weekly basis.

The report notes that “overall, AMHPs are more likely to be male, older and white than the whole social worker workforce”.

For example, while 10% of social workers as a whole are under 30, only 2% of AMHPs are under 30. This doesn’t surprise me. Most people do not make a decision while still in secondary education that they want to go into social work, but tend to make this decision later in life. A typical social worker would tend to be in their mid to late 20’s by the time they train. Then they would have to have at least 2-3 years post qualification experience before they’d even be eligible to train for the AMHP role.

The majority, 68%, are aged between 30 and 54. Which means that 30% of the current AMHP workforce are aged 55 or more. This is potentially worrying, as many of those (me included) are approaching retirement age, so it could mean that there will be a shortage of AMHPs in the future, unless there is a vigorous programme of encouraging social workers, nurses, and others, to train and practice as AMHPs.

There’s also a notable discrepancy in the gender of AMHPs. While 81% of social workers are female, only 71% of AMHPs are female. Perhaps female professionals are deterred from training as AMHPs by the perception of the riskiness of the role?

There is a curious discrepancy between the numbers of white AMHPs and those from a black or minority ethnic background. While 23% of social workers are non white, this falls to only 15% of AMHPs.

There are some interesting figures relating to the length of time professionals have practiced as AMHPs. This seems to indicate that, once qualified, AMHPs tend to remain in the role. 57% of AMHPs have been in the role for 10 years or more, and 19% of AMHPs have been practicing for 20 years or more.

This is where I modestly reveal that I have been a practicing, MWO, ASW and AMHP for a total of 37 years. I honestly don’t know where the time’s gone.

There are even figures about the pay of AMHPs compared to social workers as a whole. In England, AMHPs receive an uplift in pay of 9% compared to non AMHP social workers.

There are no national policies relating to the recompense of AMHPs for the highly skilled and often arduous work that they do. While most local authorities offer extra increments or honorariums for being on an AMHP rota, there are still some that don’t.

Lyn Romeo, the Chief Social Worker for Adults, concludes the report by saying: “Detention rates are increasing and AMHPs are dealing with challenging contexts as the prevalence of mental ill health episodes are increasing.”

She goes on to say:

We know that detention rates of people from Black and Minority Ethnic backgrounds are disproportionately high, so we need to think how we can ensure that the AMHP workforce reflects the population of people we are serving.

Since the Mental Health Act Review is specifically addressing this issue, among many others, and is imminently due to present its conclusions for reform to the Prime Minister, it is to be hoped that some at least of these discrepancies can be resolved.

Should euthanasia be permitted for people with mental disorder? The case of Aurelia Brouwers

Aurelia Brouwers

In August 2018 the BBC published an article online about a woman in the Netherlands called Aurelia Brouwers. The full article can be found here.

Aurelia was quoted as saying:

I'm 29 years old and I've chosen to be voluntarily euthanised. I've chosen this because I have a lot of mental health issues. I suffer unbearably and hopelessly. Every breath I take is torture…

The article went on to explain that in the Netherlands euthanasia is permitted if a doctor is satisfied a patient's suffering is "unbearable with no prospect of improvement" and if there is "no reasonable alternative in the patient's situation".

Although most euthanasia candidates in the Netherlands have terminal or otherwise untreatable medical conditions, 83 people with mental health issues were subject to euthanasia in 2017. Only around 10% of requests for euthanasia from people with psychiatric conditions are approved.

Aurelia said:

When I was 12, I suffered from depression. And when I was first diagnosed, they told me I had Borderline Personality Disorder," she says. "Other diagnoses followed - attachment disorder, chronic depression, I'm chronically suicidal, I have anxiety, psychoses, and I hear voices.

The psychiatrist who approved the decision to end Aurelia’s life, Dr. Kit Vanmechelen, said:

 You must have done everything to help them diminish the symptoms of their pathology. In personality disorders a death wish isn't uncommon. If that is consistent, and they've had their personality disorder treatments, it's a death wish the same as in a cancer patient who says, 'I don't want to go on to the end.'

On 26^th January 2018 she was given the poison that would kill her and took it.

Readers of this blog will know that I continue to be troubled by people with mental disorders either being allowed to die,or facilitating their deaths.

Assisted suicide, which is what euthanasia is, remains a criminal offence in the UK, so cases like Aurelia Brouwers cannot happen here. That is not to say that there are no cases of assisted suicide, but the incidence of such cases is low.

According to the Crown Prosecution Service, between 1^st April 2009 and 31^st January 2018, there were 138 cases referred by the police that had been recorded as assisted suicide. Of these 138 cases, 91 were not proceeded with by the CPS. 28 cases were withdrawn by the police. This is an average of only around 15 per year.

The CPS website states:

There are currently two ongoing cases. Three cases of assisted attempted suicide have been successfully prosecuted. One case of assisted suicide was charged and acquitted after trial in May 2015 and seven cases were referred onwards for prosecution for homicide or other serious crime.

One such case was that of Kevin Howe. He was a friend of Stephen Walker, who while drunk, asked him to buy him some petrol so he could set fire to himself. He duly obliged, and Stephen fulfilled his promise. Stephen did survive, but Kevin Howe was found guilty of attempted assisted suicide, and received a 12 year prison sentence.

Another case was that of Lyndsay Jones. She was an acquaintance of Philip Makinson, who was suffering from severe depression and had already tried to kill himself by cutting his wrists. She was a heroin addict, and at his request and with his consent provided him with what she knew to be a fatal dose of heroin. She was convicted of manslaughter, and received a prison sentence of 4½ years.

It is significant that both these cases involved people with mental health problems rather than terminal illness. In one of these cases, the person who “assisted” the person wishing to kill themselves did so with deliberate malice. According to the CPS, it is less likely to lead to a prosecution if the person assisting “was wholly motivated by compassion”. In these situations, this was certainly not the case.

However, there are situations in which people with mental disorder have been permitted to die, either through no action being taken to save life, or through a decision of the courts to cease lifesaving treatment.

One such, of course, is the case of Kerrie Wooltorton, which I have discussed at length in two blog posts, most recently in June 2018. Kerrie took a fatal dose of antifreeze, and because she had written an advance decision to withhold treatment, the doctors in the A&E department allowed her to die. I am thankfully not aware of any other incidences in which an advance decision has been made, or allowed to stand, for a person with mental disorder.

There have also been Court of Protection decisions relating to people with mental disorder, where a decision has been taken to cease lifesaving treatment. One, the case of C from 2015, concerned a woman with narcissistic personality disorder who did not wish to continue treatment for the effects of a serious overdose because she had “lost her sparkle” and no longer wanted to live.

There have also been two other cases, the case of X and the case of W, both of whom had anorexia nervosa, where the decision was made not to continue with forced treatment for their disorders.

There is an essential difference between a regime in which someone with mental disorder can legally be assisted to end their own life at their request, and one where it is necessary for a court to make a situation specific decision regarding whether or not to continue to provide lifesaving treatment for the consequences of a mental disorder.

With the former, there is always the risk that a clinic specialising in assisting suicide, which presumably would expect to receive payment for the service, may not be sufficiently rigorous in deciding whether or not someone has the capacity to make a decision that will end their life. Indeed, it could be possible for a rogue clinician to encourage people to die.

There are several examples of doctors and nurses who have deliberately killed their patients. A British one is of course Dr Harold Shipman. Another currently in the German courts is Niels Hoegel, a nurse who has admitted killing at least 100 patients under his care.

My basic position stands, which is that no-one who wants to end their life because of their mental disorder should be permitted to do so if it can be prevented. This is one of the basic principles that informs my practice as an AMHP. Furthermore, the resources should be in place to reduce completed suicide as much as possible.

In October 2018, Jackie Doyle-Price was appointed as Minister for suicide prevention. This was in response to the fact that suicide is now the leading cause of death in men under 45 years in age.

Unfortunately, despite the recent announcement that £2 billion is being provided for mental health services, this is not actually new money, and in view of the leaching away of funding for mental health care over the last 8 years, even if it was all spent on improving services, it would be unlikely to significantly improve suicide prevention.

The Government report, Preventing Suicide in England, published in January 2017, stated that “the latest data shows that people who have died by suicide who have been in contact with mental health services is estimated to have increased to 1,372 in 20146 from 1,329 in 2013.”

The most recent NCISH Report for 2018 into Suicide and Safety in Mental Health reported that “in England the number of patient suicides in 2016 was similar to the previous two years but the patient suicide rate fell as patient numbers increased.”

This report suggested “10 ways to improve safety” in this helpful diagram.

It is clear that current services are failing miserably to provide these essential safety strategies, and it is unlikely that the current Government, Suicide Minister or not, has the motivation or will to make a significant difference to suicide prevention.

ADASS Guidance on Ordinary Residence

The Association of Directors of Adult Social Services (ADASS) has recently published its guidance on ordinary residence. As I pointed out in my blog post in 2014, the Care Act 2014 revised the Mental Health Act, principally with regard to S.117 aftercare, but also with regard to the concept of “ordinary residence”.

It could be very helpful for ADASS to issue this guidance, as its tends to be local authorities who get into expensive legal disputes with each other over responsibility for packages of care, and this may reduce the incidence of these disagreements.

The concept of ordinary residence is important, as it establishes which local authority is responsible for providing for the care needs of people identified by the Care Act as being eligible to have their needs met.

The guidance points out:

In the vast majority of cases it will be obvious where an individual is ordinarily resident – and consequently which local authority is responsible for meeting the eligible social care needs of that individual. The issue of where an individual is ordinarily resident will usually arise when a person is moving or has moved from one geographical area to another.

Since “ordinary residence” is not actually defined in the legislation, it is still necessary to rely on case law to clarify its meaning. It may not be as simple as being where someone is actually living at the time they become eligible for services, as other factors may intrude. What is the ordinary residence of someone who has a tenancy or owns a home in LA 1, but happens to be on holiday with relatives in LA 2?

The guidance considers at length two cases: the Shah case, relating to people with capacity, and the Cornwall Case, relating to people lacking mental capacity to make decisions about residence.

The Shah Case

The Shah case goes back to 1982. Lord Scarman said in this case:

Unless... it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ordinarily resident refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

Length of residence is not necessarily a factor in deciding ordinary residence in this context: the Shah case concluded that someone must be living in a particular place for a “settled purpose as part of the regular order of his life for the time being, whether of short or long duration.”

The ADASS guidance states that:

Settled purpose can be established at the instant of an individual’s move to a new area, if that move is with the intention of remaining there permanently or for the foreseeable future. That is because the person will have a settled purpose from the moment they arrive.

However, if they are only temporarily away from their normal place of residence, then their permanent home will continue to be their ordinary residence for the purposes of the Care Act.

The Cornwall Case

The Cornwall case was a Supreme Court case from 2015, after the Care Act came into force.

This case concerned PH, a man born with severe physical and learning disabilities, who had been accommodated since the age of 4. He was with foster parents until he was 18, and then went into residential care. The question the Supreme Court had to answer was which LA was responsible for his care (under the Care Act)?

Was it Wiltshire, where he lived with his parents until he went to foster carers? Was it South Gloucestershire, where he lived with the foster carers? Or was it Cornwall, where his parents moved to in 1991? 

At the time of the decision, he was living in a fourth LA, Somerset, where he had been placed in residential care after leaving his foster carers. The issue was his ordinary residence prior to his placement in Somerset.

While the initial finding was that Cornwall was responsible, the Supreme Court considered that this was insupportable, and concluded that Wiltshire retained responsibility for funding, as they were responsible for the original placement.

The Supreme court concluded:

For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and “swings and roundabouts” may be unavoidable.

ADASS draws attention to the deeming provisions in S.39 Care Act 2014. This states that a LA “cannot ‘export’ its responsibilities under the Care Act by placing an individual in a different geographical area.” Certain types of accommodation, eg care homes, shared lives scheme accommodation or supported living accommodation, cannot be considered when determining someone’s ordinary residence.

The basic rule therefore is that a person “is ‘deemed’ or presumed to continue to be ordinarily resident in the area he was ordinarily resident in immediately prior to commencing living at the accommodation in question.”

The Care Act/Mental Health Act interface

Under S.117, the LA in which the patient was “ordinarily resident” immediately before being detained is responsible for aftercare. The Shah case applies in determining ordinary residence for patients detained under s.3 (and some Part III sections).

The ADASS guidance states:

It does not matter who is paying for care and support at the time of detention or which local authority employed any AMHP who might have been involved in the detention.

It goes on to say:

Where someone goes into hospital on a voluntary basis, they do not lose their residence. However, if during the voluntary admission the individual loses their previous accommodation, they no longer continue to be resident in that area. In such a case, if their presence in hospital is sufficiently settled they may acquire residence in hospital. If, having become resident as a voluntary patient in hospital, they are subsequently detained (for example) under section three, that will result in the authority responsible (for section 117 aftercare) being that where the hospital is situated, as that is where they will be resident.

This scenario consistent with the case law I discussed in this blog post.

I have only dipped into the full guidance in this post. It is to be hoped that the guidance will reduce the number of disputes between LA’s over their Care Act responsibilities and their responsibilities under S.117. I am certainly aware of cases where LAs continue to dispute their statutory responsibilities, often at the expense of the person whose needs have been assessed.

Unfortunately, while social care budgets continue to be squeezed and cut back to the bone, LAs are going to continue to fight to avoid the sometimes horrendously expensive care packages that the most vulnerable and disabled nevertheless continue to need.

How many AMHPs is “sufficient”? ADASS guidance on AMHPs

The Association of Directors of Adult Social Services (ADASS) have recently issued guidance for Directors on Approved Mental Health Practice.

While I am glad that they are explicitly addressing the important role of AMHPs within local authority services, I am, however, both intrigued and surprised at some of the contents.

I suppose that one of the things I find a bit dispiriting is the very basic nature of some of the information contained. For instance, the question is posed (and answered) “Who can be an AMHP?”

It is also stated that “local authorities have a statutory obligation to have sufficient AMHPs to provide a 24/7 service”. Are there any Directors of Adult Social Services who are not aware of that?

I suppose that, while AMHPs themselves are all too aware of the practical difficulties their job entails, and the deficiencies in services, all Directors should be reminded of their duties to support AMHPs. Hence the reminder that AMHPs must be given 18 hours of refresher training a year.

I am also pleased about the following statement:

AMHPs are advanced practitioners whose training enables them to understand and manage risk effectively. Working within teams across wider adults, children’s services, and mental health services; AMHPs can support colleagues and ensure referrals for Mental Health Act Assessments are made only where necessary and appropriate.

Something of which I am very aware, certainly in my own local authority, is that most AMHPs are within adult mental health teams. Very few are in older people’s teams or learning disability teams, even though a significant proportion of these service user groups may require assessment and/or detention under the Mental Health Act.

And unfortunately, Children Services do not see any benefit in training their social workers to be AMHPs, despite the Code of Practice stating:

At least one of the people involved in assessing whether a child or young person should be admitted to hospital, and if so whether they should be detained under the Act (ie one of the two medical practitioners or the approved mental health professional (AMHP)), should be a child and adolescent mental health services (CAMHS) professional. Where this is not possible, and admission to hospital is considered necessary, the AMHP should have access to an AMHP with experience of working in CAMHS, (para19.43)

It is very important that Directors should encourage social workers from across the spectrum to train and practice as AMHPs. This should extend to instructing managers to put suitable candidates forward, and facilitating their training and time spent on the AMHP rota by providing extra staffing to cover their absence from their usual work.

The document also provides some very interesting statistics relating to what is meant by “sufficient AMHPs”, which is contained in CoP para14.35 (“Local authorities are responsible for ensuring that sufficient AMHPs are available to carry out their roles under the Act”)

The document gives the following information:

In 1991 the Social Care Inspectorate recommended a ratio of between 1:7,600 (inner city) and 1:11,800 (other) approved staff (AMHP) to population (dependent on locality). In November 2017 the average was 1:16,000.

I have to say that I wasn’t aware of these recommendations from 1991. What is particularly shocking is the almost universal failure of local authorities to achieve the recommended ratio, especially in light of what the document goes on to say:

As the numbers of assessments have increased, the numbers of AMHPs have decreased. An inner city area of 250k population should have 33 full time equivalent daytime AMHPs, a shire county with a population of 1.1million would need 100 full time equivalent AMHPs.

I am, however, encouraged by the document’s final paragraph:

A key determinant of when assessments take place, and the stress placed on AMHPs as they coordinate assessments relates to availability of resources.  Common issues of concern include 1) transport problems, 2) lack of beds, 3) rising numbers of assessments and 4) lack of police resources. Monitoring these issues and developing whole system’s responses are key. Solutions to delays therefore need a multi-agency response and understanding of the local issues. Safeguarding processes should be used to record concerns and monitored at a strategic level.

I very much hope that Directors will work to address these issues before the pressures on AMHPs becomes so great that there will be no-one left willing to undertake the role.