Across
England and Wales, because of the desperate shortage of suitable psychiatric
hospital beds, huge numbers of people needing acute hospital admission are
being moved out of their locality to hospitals often hundreds of miles from
their home. As I pointed out in my last blog post, most of these hospitals are
private.
Quite
apart from the distress and difficulties this causes to patients and their
relatives, it also creates enormous logistical problems for local authorities
and their AMHP services.
This
is because of the legal duties relating to assessment under the Mental Health
Act.
s.13(1)
states:
If a local social services authority
have reason to think that an application for admission to hospital or a
guardianship application may need to be made in respect of a patient within
their area, they shall make arrangements for an approved mental health
professional to consider the patient’s case on their behalf.
What this means is that, regardless of
where the person normally lives, if they happen to be somewhere else, but
requiring assessment under the MHA, the duty falls on the AMHP service where
they happen to be at the time.
Here’s an example from my own AMHP
service. Gerry lives in local authority A, but goes on holiday in local authority
B, which is 100 miles from his normal home. He becomes mentally unwell
and is detained under s.136 by the police. LA B has the legal duty to undertake
the assessment. In the case of Gerry, the decision was made that he needed to
be detained under s.2 for assessment, although the mental health trust in his
home area, where he was registered with a GP, was responsible for finding him a
bed.
But things can get even more complicated
than that.
I recently received a call from an AMHP
in in a London Borough (X), many miles from our LA, concerning a patient whom I
will call Patrick. Patrick normally lives in our area (LA Y), but had been
staying with friends in their area when he became unwell and was assessed by one
of their AMHPs who detained him under s.2. Our local MH trust found him a bed
in a private hospital, which was in LA Z, nowhere near either X or Y.
After a few weeks, a request was made by
this hospital for assessment under s.3 for treatment. The request went to X.
The AMHP in X contacted our AMHP service to inform us of this, and to instruct
us that we had a duty to undertake this assessment.
I drew his attention to paragraph 14.37
of the Code of Practice, and read it out to him:
If a patient is already detained under
section 2 as the result of an application made by an AMHP, the local authority
on whose behalf that AMHP was acting is responsible for arranging for an AMHP
to consider the patient’s case again if the local authority has reason to
believe that an application under section 3 may be necessary. This applies even
if the patient has been detained outside that local authority’s area.
(By the way, for any Welsh readers of
this blog, paragraph 14.27 of the Welsh code of Practice says the same thing.)
This means that an AMHP from area X has
the legal duty to do the assessment, even though Patrick was from area Y and
was now in a hospital in area Z.
This unfortunate AMHP wasn’t sure about this.
“Ah,” he said, “there’s case law that
overturns this.” And he made some comments about “ordinary residence”.
I knew what he was referring to. He was
referring to the Care Act 2014, and its changes to s.117 MHA, which relates to
the duty to provide aftercare to patients detained under s.3 and some sections
in Part III of the MHA.
s.117(3) states that the responsibility
to provide aftercare lies with the LA and CCG for the area in which a patient
was “ordinarily resident” at the time of their detention under s.3.
s.39(1) of the Care Act defines “ordinary
residence” as being in “the area in which the adult was
ordinarily resident immediately before the adult began to live in accommodation
of a type specified in the regulations”.
s.39(4)
then explicitly applies this to s.117 aftercare, stating:
An adult who is being provided with accommodation
under section 117 of the Mental Health Act 1983 (after-care) is to be treated
for the purposes of this Part as ordinarily resident in the area of the local
authority in England or the local authority in Wales on which the duty to provide
the adult with services under that section is imposed.
He
certainly had us bang to rights – as far as aftercare goes. If Patrick was
detained under s.3, our area would be responsible with providing him with
aftercare.
But
this had no bearing on the duty to assess under s.3. Paragraph 14.37 trumped
this, and an AMHP in area X was going to have to do the assessment, even though
Patrick was no longer even in their area.
It’s
a tough call, but the law is the law. And it applies to every AMHP Service in
England and Wales.
In
practice, local AMHP Services are often obliging, and may consider doing an
assessment for s.3 on behalf of the relevant LA if the patient is in a hospital
in their area. Our area has several private hospitals, who often receive
patients detained under s.2 from all over the country. If we have capacity, we
will deal with a request for s.3 from another LA – if they pay us.
But
not all LAs are so obliging.
Do
you remember Gerry, who was on holiday in our area when we detained him under
s.2?
He
was admitted to a hospital in his own area, and after a few weeks there was a request
to assess for a s.3.
You
might think that his local AMHP Service, seeing that he was a patient who lived
in their area, and who was in hospital in their area, and who would have s.117
responsibility for him, would see it as reasonable to do this assessment.
But
no. They stuck to para 14.37, and insisted that one of our AMHPs went to their
hospital to assess their patient.
If
anyone involved in the Association of Directors of Adult Social Services
(ADASS) happens to be reading this, perhaps they’d like to bring the whole
matter up with their association.
Because
of the current ongoing and apparently endless crisis in provision of adequate
mental health beds, nearly all LA’s are experiencing these problems, and either
having to send AMHPs hundreds of miles away at huge expense (which can entail
overnight hotel stays and two full AMHP days for one assessment), or paying
other AMHP services to do these assessments on their behalf.
Isn’t
there a simpler and cheaper way to tackle this?
