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| Artist's impression of a NHS hospital ward following Brexit |
You’d
think that some words do not need interpretation or explanation. We’re all
quite clear about what constitutes a “hospital”, surely.
But
as with many things to do with the Mental Health Act, things are not
necessarily as straightforward as they may appear.
This
particular question arose in our AMHP hub following a MHA assessment of a
patient in a hospice. Since the hospice was part of a larger hospital, and
since the hospice had wards, doctors and patients who lived in the hospice,
then it must be a hospital, and an inpatient could therefore be detained to it.
Couldn’t
they?
In order to answer this question, I
will have to delve into the really boring bits of the Mental Health Act, the
bits no-one ever reads unless they really have to. This includes the
interminable Part VI, which is concerned with “Removal and Return of Patients
within United Kingdom, etc”. (By the way, did you realise that the MHA includes
a whole section, s.86, which concentrates on removal of aliens?)
Part
X relates to “Miscellaneous Provisions”, and this is where everything that
needs to be in the MHA, but which doesn’t fit anywhere else, exists. Within
this Part is everything to do with Independent Mental Health Advocates, which
were created by the MHA 2007. Oh, and s.135 and s.136, for some reason, which
are rather important parts of the MHA.
Fun
fact: s.135 and s.136, to do with applying for warrants and the police power to
detain to a place of safety, first appear in the MHA 1959. When the MHA 1983
was drafted, their numbers remained unchanged, which is why they are in a
comparatively obscure part of the Act. It was a widespread belief among ASWs
back then that these sections remained because the police would not be able to
cope with the sections being given different numbers.
Anyway,
Part X contains s.145. This consists of a list of definitions of terms used in
the MHA. S.145(1) states:
“Hospital”
means—
(a)
any health service hospital within the meaning of the National Health Service
Act 2006 or the National Health Service (Wales) Act 2006 the Secretary of State
where the Secretary is responsible for the administration of the hospital; or
(b)
any accommodation provided by a local authority and used as a hospital by or on
behalf of the Secretary of State under that Act; and
(c)
any hospital as defined by section 206 of the National Health Service (Wales)
Act 2006 which is vested in a Local Health Board; and “hospital within the
meaning of Part II of this Act” has the meaning given in section 34 above
That’s
all quite clear, isn’t it?
No,
me neither.
So
it then becomes necessary to rove outside the MHA and into other parts of
legislation, in particular the National Health Service Act 2006. S.275(1) gives
its own definition of “hospital”.
“Hospital”
means—
(a)
any institution for the reception and treatment of persons suffering from
illness,
(b)
any maternity home, and
(c)
any institution for the reception and treatment of persons during convalescence
or persons requiring medical rehabilitation
While
this seems somewhat closer to an easily comprehensible definition, it is still
necessary to go even further afield to the Health & Social Care Act 2008.
This is all about the functions of the Care Quality Commission (CQC). Chapter 2
is concerned with the necessity for registration with the CQC in order to provide
health and social care services.
But
we’re not there yet, as the crucial part of this legislation is The Health and
Social Care Act 2008 (Regulated Activities) Regulations 2014. This states
precisely who can, and who can’t, provide assessment or medical treatment for
persons detained under the MHA.
5(1)
requires that a hospital which is providing “the assessment of, or medical
treatment (other than surgical procedures) for, a mental disorder affecting a
person in a hospital where that person is… detained in that hospital pursuant
to the provisions of the 1983 Act” must be registered with the CQC.
And
now we come full circle, because 5(3) states that: “’hospital’ means a hospital
within the meaning of Part 2 of the 1983 Act”.
What
all this means in lay terms is that a hospital has to be registered with the
CQC in order to receive and accommodate mental health patients detained under
the MHA.
This
will always apply to NHS psychiatric hospitals, as well as most independent
psychiatric hospitals, and many, but not all, general acute hospitals.
And
it did not apply to this particular hospice, even though it was part of a
hospital, since the hospital was not registered with the CQC for this purpose.
This
raises the question of what happens if a patient is in a specialist hospital
setting not designed for people with mental disorder, but whose behaviour
indicates the need for detention, but who nevertheless would best be accommodated in the
specialist hospital.
An
example might be a hospital unit specifically for the rehabilitation of people
who have suffered a stroke. I was once asked to assess such a patient. His
behaviour had alarmed the rehabilitation team, but when I actually came to
assess him, it became clear that his behaviour was entirely due to his distress
at the disability the stroke had induced, which included difficulties in
communicating his needs.
It
was clear that he did not need assessment or treatment in a psychiatric
hospital, as he precisely needed the rehabilitation programme available in the
unit. I did not detain him, and persuaded the treating team that he should
remain where he was, much to the relief of him and his wife.
In
such circumstances, if the person is assessed as lacking capacity to make
informed decisions about remaining in the hospital, then DoLS
ought to be considered.
What about s.5(2) & (4)?
These are hospital holding powers, to prevent an inpatient from leaving until a formal assessment under s.2 or s.3 MHA has been made.
A hospital does not have to be a psychiatric hospital to use the powers; general hospitals can also use them. However, such hospitals would still need to be registered with the CQC, so this particular hospital could not even use s.5(2) or s.5(4).
Such a hospital would have to apply for an emergency DoLS in order to prevent the patient from leaving until a MHA assessment had taken place, and then only if the patient was assessed as lacking the capacity to make a decision about discharge.
(I am thankful to a member of CQC staff for pointing this out to me.)
These are hospital holding powers, to prevent an inpatient from leaving until a formal assessment under s.2 or s.3 MHA has been made.
A hospital does not have to be a psychiatric hospital to use the powers; general hospitals can also use them. However, such hospitals would still need to be registered with the CQC, so this particular hospital could not even use s.5(2) or s.5(4).
Such a hospital would have to apply for an emergency DoLS in order to prevent the patient from leaving until a MHA assessment had taken place, and then only if the patient was assessed as lacking the capacity to make a decision about discharge.
(I am thankful to a member of CQC staff for pointing this out to me.)
