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| Amy Morby |
A
recent inquest in Cornwall reported on the sad case of 23 year old Amy Morby,
who died as a result of an overdose.
It
was reported on 28th May 2019 that she had received treatment at the Emergency
Department in Truro three times in 4 days in September 2018. A week later she
died of a fourth overdose.
The
inquest reported that she was a patient of the local CMHT, and had also been
assessed by the hospital psychiatric liaison team. The hospital assessor stated
that Amy was treated at Treliske’s emergency department following deliberate
overdoses on five occasions during 2018, including three times between
September 2 and 6, just a week before she died.
He
said that: “She was not acutely mentally ill. Amy’s problems were psycho-social
stresses. Life was hard and she was going through a difficult time.”
The
manager of the Community Mental Health Team said the team were shocked by her
death as they did not consider the overdoses on September 2, 4 and 6 were
actual suicide attempts. It was concluded that Amy was probably suffering from
a borderline personality disorder.
There
is, unfortunately, nothing out of the ordinary in this narrative. Many people
suffering from a wide range of mental health problems make attempts to end
their lives, and some are successful. Mental Health Services do try to help
people at risk of suicide, but it is not always possible to achieve this.
Also
unfortunately, identifying that a patient has a “personality disorder”, in
particular, an emotionally unstable or borderline personality disorder, is
often used as an excuse not only not to compel treatment, but also to decline
to offer treatment.
However,
there was one sentence in this report that particularly struck me:
“The
inquest heard that Amy couldn’t be sectioned under the Mental Health Act as she
had full capacity and wanted to continue working with the mental health team.”
It
is not reported who said this in the inquest, but I know that many AMHPs would
disagree.
For
a start, I am reminded of the case of Kerry Wooltorton, about whom I have
written on several occasions on this blog. She was allowed to die in hospital after
drinking antifreeze, on the basis that she had made an advance decision to
refuse treatment. The coroner in her case stated: “Kerrie had capacity and she
could not therefore be treated”.
As
I have said before, it is not uncommon to assess someone under the MHA who is
either seriously planning suicide, or has taken an overdose of a noxious
substance and is refusing treatment.
Capacity
is not an essential factor in these assessments. Nowhere in the MHA is capacity
mentioned in this context. The requirement is for someone to have a mental
disorder within the meaning of the Act (which is very broad), and to be in need
of assessment and/or treatment.
Detention
under either s.2 or s.3 MHA would then provide a legal framework to provide
treatment against the will of the patient.
This
is not to suggest that mental capacity has no part in decision making about use
of the MHA. Indeed, there is an interface between the Mental Health Act, which
is about mental disorder, and the Mental Capacity Act, which is all about
mental capacity.
This
is reinforced by a considerable quantity of case law, including AM v SLAM, and
Cheshire West.
The
case law makes a distinction between objecting and non-objecting patients, and
capacitous and non-capacitous patients. A non-objecting, capacitous person can
be treated in hospital for mental disorder without recourse to the MHA. But
both an objecting capacitous person and an objecting non-capacitous person may
be detained for assessment and treatment under the MHA, and in many situations
should be, if it is the only means by which they can receive the assessment and
treatment they require.
Whether
deemed to be capacitous or not, Amy Morby could have been made subject to
section of the MHA. The decision should perhaps have been allowed to have been
made by an AMHP and 2 psychiatrists.
