What’s in the political parties’ manifestos relating to mental health?

Since we are about to have yet another General Election on 12 December 2019, I thought it might be informative to see what the main national political parties have to say about mental health.

Mental health is name checked 16 times in the Labour Party Manifesto. They have a total of seven paragraphs devoted to mental health.

Their manifesto says:

A Labour government will provide an additional £1.6 billion a year to ensure new standards for mental health are enshrined in the NHS constitution ensuring access to treatments is on a par with that for physical health conditions.

They also promise £2 billion to modernise hospital facilities and end the use of inappropriate, out-of-area placements.

Encouragingly, they give a nod to the recent Mental Health Act Review, stating:

The legislation for detaining people with learning disabilities and mental illnesses is outdated. We will implement in full the recommendations set out in the independent review of the Mental Health Act, so that people are given choice, autonomy and the treatment they need.

As well as briefly addressing the need to improve eating disorders services, they also say they will improve access to psychological therapies. They mention children’s mental health services, saying they will double the spending on children and adolescent mental health services, and say they will appoint 3,500 counsellors to be placed in schools.

Oh, and in the section on policing they mention mental health once:

Effective police work requires the police to serve their communities and work collaboratively with youth workers, mental health services, schools, drug rehabilitation programmes and other public agencies.

Er... with less than 3 weeks until the General Election, the Conservatives have still not actually published their Manifesto.

It is, however, stated in the Press that they will give the NHS “its biggest cash boost in history”. This will apparently amount to £33.9 billion. So far, there is no mention of how much of this would be seen by mental health services.

It is unknown whether a new Conservative Government will implement the recommendations of their own Mental Health Act Review, which was flagged in their last Manifesto in 2017. But then this was published when Theresa May was Prime Minister, who had at least expressed a concern about mental health.

 

A search of their Manifesto reveals 59 mentions of mental health. They really go into considerable detail, and whoever wrote it really appears to have a grasp of what the problems are and what is needed to remedy them.

Mental health is even mentioned in the introduction, stating:

We will transform our mental health service by treating it with the same urgency as physical health. About one in four people in the UK experience a mental health problem each year, and while the NHS may be the envy of the world, our mental health service falls far short of what patients deserve.

They go on to say that:

A Liberal Democrat government will invest £11 billion in mental health to expand access to therapies and increase the number of psychiatrists and specialist mental health practitioners. We will make mental health services 24-hour, including placing mental health liaison teams in all hospitals so that those facing a mental health crisis are not put in police cells.

They have a whole section entitled “Fixing Mental Health Services.”

They argue for parity of esteem with physical and mental health, to the extent of legislating to give them equality under the law. They also plan to prioritise early intervention to prevent people from experiencing a mental health crisis and to minimise the number and duration of in-patient stays.

Their policies include introducing standards for waiting times for mental health services, increasing the range of and access talking therapies, making prescriptions for people with severe mental illness free, and they will:

Implement all the recommendations of the Wessely review of the Mental Health Act, including bringing forward the necessary investment to modernise and improve inpatient settings and ambulances. We will apply the principle of ‘care not containment’ to mental health, while ensuring an emergency bed is always

available if needed.

There are three references to mental health in the Green Party Manifesto, contained within a single paragraph. They intend to focus funding:

to enable major improvements to mental health care to truly put it on an equal footing with physical health care, and ensure that everyone who needs it can access evidence-based mental health therapies within 28 days.

The UKIP Manifesto has 6 references to mental health. However, these references are mainly concentrated in a single statement referring to younger people:

An increasing number of younger people are suffering from mental health issues and this needs to be addressed. We will introduce practical policies to improve the delivery of mental health services and increase mental health funding by £500m per annum.

 

Nigel Farage has said that “the word 'manifesto' was a "horrible, horrible word that equates to 'lie'". They have not therefore released a Manifesto.

Instead, they have released a “Contract with the People”. This “contract” contains no reference at all to mental health. They do, however, refer to the NHS in the most general of terms, including a promise not to privatise the NHS.

So there it is. I am not making any recommendations as to whom readers of this blog should vote for. However, purely on the basis of the published manifestos, the Liberal Democrats have the most detailed and highly developed policies relating to mental health services.

Although realistically they have no chance of forming a majority government, they could still have the balance of power, and might use this to prioritise improvements in services to children and adults with mental health problems.

What is a hospital within the meaning of the Mental Health Act?

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.)

When should you, or shouldn’t you, use section 4?

I decided to write this post after there was a discussion among our local AMHPs concerning the use of s.4, in particular when involving assessments following detention under s.136 or execution of a warrant under s.135(1).

S.4 Mental Health Act is explicitly referred to as “an emergency application”. It is meant to be used only in cases of “urgent necessity”. The AMHP, when completing Form A10, has to state:

In my opinion it is of urgent necessity for the patient to be admitted and detained under section 2 of the Act and compliance with the provisions of Part 2 of the Act relating to applications under that section would involve undesirable delay.

Richard Jones, in the Mental Health Act Manual, notes:

Under the MHA 1959, the equivalent procedure was misused and became the most widely used form of compulsory admission. Subsequent to the implementation of the Act, pressure from the Mental Health Act Commission was largely responsible for a decrease in both the number and proportion of applications made under this section. (21^st Edition, p55)

He is referring to s.29 MHA 1959. The wording was pretty much the same as for s.4. While I practiced as a Mental Welfare Officer under the MHA 1959 for a couple of years before the 1983 Act came into force, I never had to use this particular section.

However, between 1983 and 1990 I used s.4 on 11 occasions. In the 36 years of the MHA 1983 I have only used s.4 on a total of 18 occasions, the most recent time being 10 years ago.

There were several reasons for the frequent use of s.4 in the early years of the Act.

At that time, community based mental health services were virtually unknown. Community Psychiatric Nurses were almost unheard of. There were a lot of psychiatric beds, but not very many consultant psychiatrists, and they were all ward based. Fees for conducting assessments as s.12 doctors were around £30.

All this meant that most requests for MHA assessments came from GP’s. An Approved Social Worker would go out with the GP to assess the patient. It was almost impossible to persuade a consultant psychiatrist to leave the hospital to attend one of these assessments.

A typical conversation with a psychiatrist would go something like this:

“Oh, just bring them in on a section 4 and I’ll convert it to a section 2 once they’re on the ward.”

So even if the patient was not acutely unwell, if they needed to go into hospital, waiting possibly days for a psychiatrist to deign to conduct a home visit meant that detaining under s.2 would involve “undesirable delay.” The only upside to all this was that there were always beds available.

The current Reference Guide (2015) makes it clear that:

In exceptional cases, it may be necessary to admit patients for assessment as an emergency before obtaining a second medical recommendation (8.46)

The Code of Practice goes into a lot more detail, stating:

An application for detention under section 4 may be made only when:

·         the criteria for detention for assessment under section 2 are met

·         the patient’s detention is required as a matter of urgent necessity, and

·         obtaining a second medical recommendation would cause undesirable delay. (15.2)

It continues:

Section 4 should be used only in a genuine emergency, where the patient’s need for urgent assessment outweighs the desirability of waiting for a second doctor. (15.6)

How often is s.4 used?

The use of Section 4 is certainly in marked decline. A straw poll in the AMHP hub identified that out of 5 AMHPs, I was the only one who had ever used this section.

This is backed up by national statistics on the use of the MHA.

Health and Social Care Information Centre Statistics for Use of the Mental Health Act for the year 2013-14 shows that between 2009 and 2014 the use of s.4 almost halved, from nearly 600 in the year 2009-10, to little more than 300 in 2013-14. (Unfortunately, I am unable give more recent statistics, as subsequent reports did not include statistics for s.4, but it seems likely that this decline has continued.)

When you take into account that in that year there was a total of just over 18,000 people detained under s.2 or s.3, it is clear that use of s.4 is rare nationally.

Readers willing to delve into my blog will find several anecdotal examples of my use of s.4 in the past (just click on “section 4” in the labels column on the right hand side).

So are there circumstances in which s.4 might be appropriate, outside of genuine unanticipated emergencies?

The Code of Practice suggests that:

To be satisfied that an emergency has arisen, the person making the application and the doctor making the supporting recommendation should have evidence of:

·         an immediate and significant risk of mental or physical harm to the patient or to others

·         danger of serious harm to property, or

·         a need for the use of restrictive interventions on a patient (15.8)

The code of Practice makes it very clear that s.4 is not to be used in any routine way. It states:

Section 4 should never be used for administrative convenience. So, for example, patients should not be admitted under section 4 merely because it is more

convenient for the second doctor to examine the patient in, rather than outside,

hospital. (15.7)

In the circumstances I have outlined earlier, where it has not been possible to obtain a second doctor, the Code is clear:

It is the responsibility of clinical commissioning groups (and the NHS

Commissioning Board) to ensure that doctors are available in a timely manner to

examine patients under the Act when requested to do so by AMHPs. (15.9)

Where CCGs are deficient is providing sufficient s.12 doctors (and this is a considerable problem in some parts of the country, especially outside normal office hours) the Code goes on to say:

If AMHPs find themselves having to consider making emergency applications

because of difficulties in securing a second doctor, they should report that to the

local authority on whose behalf they are acting. (15.10)

Are there circumstances in which it may be necessary or proportionate to consider use of s.4 for patients detained under s.136?

When s.136 lasted for up to 72 hours, it would be inconceivable to use s.4, as there would be little excuse for a failure to obtain 2 medical recommendations within that timescale. However, since 2018, that time limit has reduced to 24 hours. This makes it much tighter to obtain two doctors for an assessment, and I am aware that my EDT colleagues are frequently unable to get 2 doctors our of hours.

However, I am not aware of any insurmountable difficulties in getting two doctors to assess a patient under s.136 with the current time limit, and it may be in exceptional circumstances that the time limit could be extended by another 12 hours, if the reasons for a delay have been because of the medical condition of the patient, or the fact that they have been under the influence of alcohol or drugs.

My short answer, therefore, is that use of s.4 in these circumstances could not be justified.

And what about s.135(1)?

Ah. I can visualise the following scenarios.

Scenario 1

An AMHP turns up at a patient’s house with a police officer and a doctor. One way or another, entry is obtained to the property and the AMHP and doctor are able to speak to the patient and conduct some form of assessment without removing them to a place of safety where a second doctor can be available.

It becomes clear during this assessment that the patient is in such desperate need of medical treatment because of injury or an overdose, that using the s.135(1) powers to remove to a place of safety, ie the local s.136 suite, would cause undesirable delay.

S.4 in this situation is still not really appropriate, as the s.135(1) powers could be used to take the patient to the A&E department of the local general hospital, and to hold them there while they are receiving urgent medical treatment. In the meantime, a medical doctor could be used for the second medical recommendation if required.

Scenario 2

Same as Scenario 1, except that there is no medical need to remove to a hospital. However, the patient manages to evade the police and makes a run for it. This means that, unless they can be apprehended within the 24 hour period, or what is left of it, s.135(1) powers cannot be used to facilitate a second doctor assessing the patient.

In this situation, it is conceivable that the AMHP and the doctor could make an application under s.4, so that s.6 powers to apprehend a patient “liable to be detained” could then be used, and the s.4 allows 72 hours to locate the patient and take them to hospital.

Are there any other circumstances when s.4 could be used?

Interestingly, the Code does suggest another situation in which s.4 might legitimately be used. This is following use of a doctor’s holding powers for an inpatient under s.5(2).

Para 18.42 of the Code reminds us that patients detained under s.5(2) cannot be transferred to another hospital.

The Code visualises a situation in which there is an urgent need for the patient to go to another hospital for “treatment, security or other exceptional reasons”. However, it points out that the patient would have to agree to this, or if lacking capacity a best interests decision could be made under the MCA to move them. As the original s.5(2) would then end, the receiving hospital could then consider another use of s.5(2).

However, there is another option. The Code suggests the following:

If the conditions are met, an emergency application for detention under section 4 of the Act could be made to the sending hospital. The patient could then be transferred to the receiving hospital under section 19. Alternatively, an emergency application under section 4 could be submitted to the managers of the receiving hospital.

Ask the AMHP

Ask the Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

This month: transitional arrangements for s.117 aftercare when the MHA 1983 came into force, and procedures for AMHP reapproval after a lapse in practice.

A social worker asks an unusual but pertinent question about s.117 aftercare.

If a person was admitted to a psychiatric hospital for treatment in 1980 can they claim s.117 Aftercare, or did Aftercare only start with the 1983 Act?

The Masked AMHP replies:

S.117 aftercare did not exist before the Mental Health Act 1983. However, there were transitional arrangements for patients who were detained under the MHA 1959 at the moment that the MHA 1983 came into force, which was the 30^th September 1983. I remember this date vividly, as I was a Mental Welfare Officer under the MHA 1959, and suddenly became an Approved Social worker (ASW) on that date. I did my first MHA assessment under the MHA 1983 within the first two weeks, which happened to be a detention under s.4.

Anyway, the transitional arrangements stated that any patient detained under s.26 MHA 1959 at that moment would be deemed to be detained under s.3 MHA 1983, and would therefore be entitled to s.117 aftercare on discharge from hospital. S.26 was the equivalent of s.3, being for treatment. However, a patient who had been under s.26 but who had been discharged from this section prior to 30^th September 1983 would not be eligible.

Several people whose AMHP approval has lapsed have asked about the requirements for being reapproved.

The Masked AMHP replies:

The answer to this question lies at least partially in The Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008 (there are separate regulations for Welsh AMHPs). These regulations state which professionals are eligible to train to be AMHPs (social workers, mental health nurses, occupational therapists or clinical psychologists), and what competences need to be evidenced in order to be approved.

Regulation 3(1) states:

An LSSA may only approve a person to act as an AMHP if it is satisfied that the person has appropriate competence in dealing with persons who are suffering from mental disorder.  

The notes add that before a person can be approved to act as an AMHP if he has not been approved before, that person must have completed an approved course of training within the last five years.

The regulations are, however, silent when it comes to the question of reapproving an AMHP following a period of not practicing. What is required appears to be down to individual local authorities.

In Cambridgeshire, for example, there needs to be evidence of the following:

• A recommendation from their line manager / supervising AMHP that they are acclimatised to local services and ready to be approved.
• Evidence of successful completion of a recognised AMHP course with requisite evidence of attendance at post qualifying AMHP training up to the period of lapse.
• A recommendation / reference statement from the last authority in which they were appointed to act as an AMHP.
• To have led at least one assessment with a competency statement provided by the supervising AMHP, with regard to AMHP competences as set out by HCPC.
• Evidence of at least one specific AMHP supervision session with a suitable qualified professional, following the shadow / lead assessments undertaken.

If the lapse had been for more than a year, the AMHP might be required to complete part or all of an AMHP qualifying course.

Torbay & South Devon’s guidance is much less specific. They state that the re-approval procedure will identify appropriate training/practice needs that are required before re-approval can take place. This would involve the presentation of a portfolio, and a formal meeting to look at learning and practice needs.

Norfolk’s procedure for AMHPs who have had a lapse in practice of more than a year requires an individual support plan. This could include:

• a period of both observing and being observed on MHA assessments, supported by their AMHP supervisor and other experienced AMHP as appropriate
• MHA legal refresher training
• attending AMHP team meetings
• taking part in any other relevant training, such as safeguarding or risk management
• undertaking regular AMHP supervision.

Solihull make decisions concerning reapproval on a case by case basis which would include factors such as when the AMHP was last approved, their current skills and knowledge, familiarity with local services and so on. In the event of a long gap since last period of practice, there may be a need for completion of part or all of an accredited AMHP course.

So it appears that there are as many answers to this question as there are local authorities. However, the willingness of a local authority to facilitate the reapproval of an AMHP whose approval has lapsed would ultimately depend on the urgency to fill any shortfall in AMHP availability.

And while the national demand for AMHPs to undertake MHA assessments continues at the current record rate, it would be surprising if any local authority were to make the reapproval process too onerous.

Can you use the Mental Health Act with a person with capacity?

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.

Who’s responsible for assessing under s.3 for a patient detained under s.2?

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?