One
Monday morning in the early autumn of 1976 I turned up for work at Charwood
Social Services Department, along with 3 other people who had also succeeded in
getting jobs as unqualified social workers in Charwood.
Social
services functioned very differently 45 years ago. In 1974, only two years
before I started work as a social worker, there had been a huge national
reorganisation of social care provision, precipitated by the Local Authority Social Services Act 1970. This in turn had
been inspired by the Seebohm
Report, published in July 1968, which had proposed the integration of disparate
social care services into single, generic departments overseen by local
authority social services departments.
Until then, social care had been administered
in a range of guises. For example, mental health had Mental Welfare Officers,
defined by the Mental Health Act 1959. Services for children and families had
Children’s Officers. Hospital social work was done by Hospital Almoners. In
1974, all these people were moved into these generic departments, and all
became known as “social workers”.
I’ve looked at section 2 and section 3 of the
Mental Health Act on this channel, so I’m now going to look at section 4, which
is the other civil section for admission to hospital.
Section 4 is explicitly referred to as “an
emergency application”. The AMHP, when completing their form, 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.
This means that the AMHP only needs one medical
recommendation to make the application rather than the two required for section
2 or 3.
The Code of Practice states:
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.
In this video I discuss circumstances in which use of section
4 might be justified.
Between 1983 and 1997 I worked shifts on the
out-of-hours standby duty team, as it was the only way for a social worker to
earn extra money. I had a mortgage and 3 children under the age of 5, and a
social worker’s pay did not go very far.
We
dealt exclusively with emergencies and crises that arose outside normal working
hours, covering nights, weekends, and Bank Holidays.
Out
of hours, two social workers covered the entire county. It was a large
geographical area of over 2,000 square miles, and it could entail a journey of
40 or 50 miles to reach the far ends.
Some
of these incidents entailed creative thinking to resolve them.
Which
brings me to a Bank Holiday weekend and 2 13 year old boys, Sam and Stuart.
In a previous video I looked at section 2 and section 3 of the Mental Health
Act and when each can be used.
When an AMHP is considering use of section 3, which specifically allows
detention in hospital for treatment, two medical practitioners have to provide
medical recommendations.
It is not enough merely for the doctors to say on their medical recommendations
that the patient needs medical treatment in hospital. They also have to state
that appropriate medical treatment is available, and also state the specific
hospital (or hospitals) where that treatment can be given.
While
I was a social worker by day, between 1983 and 1997 I also worked one or two
shifts a week on the out-of-hours standby duty team. This team, consisting
mainly of daytime social workers, dealt exclusively with emergencies and crises
that arose outside normal working hours. We covered nights, weekends, and Bank
Holidays.
Out
of hours, two social workers covered the entire county. It was a large
geographical area of over 2,000 square miles, and it could entail a journey of
40 or 50 miles to reach the far ends.
In
the early years, the only means of contacting us was via a pager. If your pager
went off, you had to contact a deputising service which then told you what the
problem was.
For
several years, the only way of contacting the deputising service if you were
out on a call was using a public phone box. You got to know the locations of
all the phone boxes in the county, and always had to make sure that you had a
pocket full of change.
We
dealt with everything. This covered all the service user groups: children and
families, young offenders, older people and people with physical disabilities,
as well as people with mental health problems and learning disability. We dealt
with anything from child protection referrals, to assessments under the Mental
Health Act, and obtaining night sitters or emergency residential care for
elderly people.
For
some reason, teenage girls often seemed to present the most intractable
problems. I’ll tell you about Angela.
The difference between section 2 & section 3, and
when it can be *complicated* to decide which one to use. Good for CPD.
Section
2 and Section 3 are the sections of the Mental Health Act that are most
commonly used when compulsory detention in hospital is being considered.
Section
2 lasts for 28 days, and its main purpose is to assess a patient in hospital
(although it does also permit treatment). Section 3 lasts for a maximum of 6
months, and is for the purpose of providing treatment in hospital. (The recent
Mental Health Act review is, however, recommending that this duration should be
reduced to 3 months.)
Statistics
show a year on year increase in the use of compulsory detention. In the year
2019-20 there were a total of 27,968 admissions under S.2, and 4,043 detentions
under S.3.
This video explores some examples of situations in which the choice
between which section to use becomes somewhat complicated.
Section 136 is the only section of the Mental Health Act
that does not, at least initially, involve a doctor or an AMHP. It gives a
police officer the power the remove someone they believe may be suffering from
mental disorder to a place of safety. The purpose of this is explicitly to facilitate
the formal assessment of the person by a doctor and an AMHP.
This is how it is currently, and is very familiar to the
police and AMHPs.
The official figures for use of section 136 in the year
ending April 2020 is 18,665, although the data is incomplete, so it is likely
to be higher. This means that on average the power is used over 50 times a day.
You might think that this section was drafted to reflect
modern day policing, but in fact Section 136 has a very long history, with
origins in Victorian responses to mental illness and poverty.
The Lunatic Asylums Act 1853, for instance, has a section
68. This states:
Every Constable of any Parish or Place...who shall have
knowledge that any Person wandering at large within such Parish or Place.… is
deemed to be a Lunatic, shall immediately apprehend and take or cause such
person to be apprehended and taken before a Justice.
The Lunacy Act 1890 contains similar wording:
Every constable who shall have knowledge that any person
wandering at large is deemed to be a lunatic shall immediately apprehend and
take or cause such person to be apprehended and taken before a justice.
This remained pretty much the position with regard to
dealing with mentally disordered people in public places until the Mental
Health Act 1959.
Since the 1890 Lunacy Act, there had been a revolution in
the care and treatment of people with mental disorders. The responsibility for
assessment was removed from the judiciary and a more humanitarian approach was
taken, which involved assessment by a Mental Welfare Officer, who was the
forerunner to the Approved Mental Health Professional.
Section 136 of the 1959 Mental Health Act now stated:
If a constable finds in a place to which the public have
access a person who appears to him to be suffering from mental disorder and to
be in immediate need of care or control, the constable may, if he thinks it
necessary to do so in the interests of that person or for the protection of
other persons, remove that person to a place of safety.
Interestingly, the Mental Health Act 1983 left the
wording entirely unchanged. In fact, curiously, although the sections relating
to detention all changed – for example, section 25 of the 1959 Act relating to
compulsory assessment in hospital became section 2, and section 26 relating to
compulsory treatment in hospital became section 3, section 136 remained the
same.
There was a widespread belief among Approved Social
Workers, as Mental Welfare Officers became, that this was because the police
would not be able to remember a new section number, but I am sure this is
untrue.
The Mental Health Act 2007, which amended the 1983 Act
and replaced approved Social Workers with Approved Mental Health Professionals,
did not address section 136.
It wasn’t until the Policing and Crime Act amended
section 136 in December 2017 that there was any further change to the wording.
At first glance, the wording does not appear greatly different.
Section 136(1) now reads:
If a person appears to a constable to be suffering from
mental disorder and to be in immediate need of care or control, the constable
may, if he thinks it necessary to do so in the interests of that person or for
the protection of other persons... remove the person to a place of safety.
In fact, there was a crucial change to the police power,
as, after more than 150 years, there was no longer a requirement that the
mentally disordered person had to be in “a place to which the public have
access”. Section 136(1A) now says that the power may be exercised “at any
place” other than the person’s own home and private property.
The other major change to section 136 was, of course,
reducing the length of time that detention in a place of safety for assessment
could last. Since 1959, the maximum time was 72 hours; now, reflecting changes
in attitudes towards the human rights of mentally disordered people, the
maximum length of time has been reduced to 24 hours.
There are regular discussions among AMHPs as to what constitutes a formal assessment under the Mental Health Act. The main argument is along the lines of: has an assessment only taken place once an AMHP and two doctors have interviewed the patient?
Even more contentiously, I have come across AMHPs who have consideredthat, even if both an AMHP and two doctors have interviewed the patient, if a decision is then made not to admit the patient, it was not a real assessment, and they did not therefore have to write a report.
I am of the view that it all depends on whether or not the AMHP hastheir AMHP hat on at the time they are considering whether or not a particular person needs to be admitted to hospital under the Act.
Assessments under the MHA all begin at s.13(1). This states:
If a local social services authority have reason to think that anapplication 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.
AMHPs do not generally drive around looking for someone to detain underthe MHA. All assessments begin with a formal request to assess someone with the explicit outcome of detaining them in hospital. This can come from a wide range of sources: GP’s, hospitals, community mental health professionals, the police, ambulance crews and relatives.
Once a local authority has received such a request, the task of takingthe request forward is delegated to an AMHP.
The crucial wording, mentioned in both s.13(1) and (4), is that the AMHP “consider the patient’s case”. This is “with a view to making an application for his admission to hospital”.
[By the way, the Act makes an assumption that not only are all patientsmale, but that all AMHPs are male, too. As the AMHP Workforce Review for2019 noted, 69% of AMHPs are female, and only 31% male. So it goes.]
The AMHP is acting as a free agent. The Act explicitly states that a localauthority cannot instruct an AMHP to make an application. It is their decision alone, but they will take into account any information they consider relevant, and indeed, conduct those enquiries whoever they see fit, in accordance with the requirements of the Act.
S.13(2) makes it clear that before making any application the AMHP“shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.”
It is very common for AMHPs, once they have received a request, toimmediately arrange for two doctors to attend an assessment. However, there is no legal requirement to convene such an assessment team as the first step.
An obvious example of where this is not necessarily indicated is arequest to assess a patient detained by the police under s.136. While an assessment, involving some sort of face to face interview with the patient in accordance with social distancing guidelines, is required, s.136 only states that an AMHP and one medical practitioner must conduct that assessment. It says nothing of two medical practitioners.
Bearing in mind that only around 1 in 10 of people detained under s.136are subsequently admitted to hospital, unless there are very clear reasons to justify involving two doctors in the assessment, for example, where the patient is well known and is clearly relapsing, it is perfectly adequate, and fulfils the legal requirements, for an AMHP to only use one doctor, albeit one who is s.12 approved.
In AMHP hubs, which are managed by an experienced AMHP who triages allthe requests and decides whether or not to allocate the request to an AMHP for further consideration, a few simple enquiries, including something as basic as speaking to the referrer, can often result in no further action needing to be taken by an AMHP.
There are clear situations in which an AMHP will need to convene a fullassessment. Such situations include detention under s.136, a hospital detention under s.5(2), or a request for a patient already detained under s.2 MHA for assessment to be detained under s.3 for treatment.
But there are many situations where a formal request may not result indetention, and may not involve an admission. Requests from nearest relatives, while they have to be acted on, frequently do not result in convening two doctors and an AMHP to assess the patient.
There is a reason for this in the Act. As the Reference Guide pointsout:
AMHPs must be satisfied that detention in a hospital is the mostappropriate way of providing the care and medical treatment the patient needs. In making that decision, AMHPs are required to consider ‘all the circumstances of the case’. In practice, that might include the past history of the patient's mental disorder, the patient’s present condition and the social, familial, and personal factors bearing on it, the other options available for supporting the patient, the wishes of the patient and the patient’s relatives and carers, and the opinion of other professionals involved in caring for the patient. (para8.32)
The Code of Practice goes on to say:
Before it is decided that admission to hospital is necessary,consideration must be given to whether there are alternative means of providing the care and treatment which the patient requires. This includes consideration of whether there might be other effective forms of care or treatment which the patient would be willing to accept.(para14.7)
An AMHP must always have in their mind the basic nature of their role:
to provide an independent decision about whether or not there arealternatives to detention under the Act, bringing a social perspective to bear on their decision, and taking account of the least restrictive option and maximising independence guiding principle.(para14.52)
I always felt that I was an AMHP 24 hours a day, 7 days a week. It alldepends on whether or not I have my AMHP hat on. If I am on duty, and I am allocated a request, then I definitely have my AMHP hat on. Everything I then do in response is as an AMHP, and acting under the Act.
In considering such a request, an AMHP may spend several hours beforereaching a decision as to whether or not to call on two doctors. They may speak to relatives, and other professionals involved with the patient. They may read case notes and reports of other AMHPs who may have assessed the patient in the past.
And of course, they may speak to, and interview the patient themselves.
Something I like to do, if at all possible, especially when I receive arequest from a Crisis Team or community mental health professional, is to conduct a joint visit with a professional who knows the patient, to make an assessment as to whether or not they are likely to require admission to hospital.
Often, alternatives to admission can be found. It is also possible toreach the conclusion that as an AMHP, wearing my AMHP hat, the threshold for detention is not reached, and admission to hospital under the Act is not appropriate. That would be my decision, as an AMHP. So why would it be necessary to involve further assessment with doctors, if that decision has already been made?
It can, of course, also work the other way. When I worked within acommunity mental health team, there were times when I would visit a service user as their social worker or care coordinator, but based on the person’s presentation, suddenly find my AMHP hat slipping on, and realising that a formal MHA assessment was going to be necessary.
So my basic argument is that when an AMHP is acting as an AMHP, inaccordance with their legal duties under the Mental Health Act, those actions equate to a formal assessment under the Act, whether or not one or more doctors have been involved in that assessment, and whatever the outcome.
Back in the days when the Masked AMHP had long hair and a beard, and wore flared jeans...
I doubt that
anyone has ever asked a child or even a teenager what they’d like to be when
they grew up and the answer has been: “social worker”. A fireman. An engine
driver. An astronaut. Maybe even a nurse. But never a social worker.
Well, I’ve
now been a social worker for over 44 years. This is how it happened.
May be of
interest to anyone curious about social work in the olden days (ie 1970's).
(An edited version of this appeared in the Guardian on 30.09.2011.)
Vanessa was a
woman in her late 20’s, who lived on a social housing estate with her two sons,
aged 6 and 8. Vanessa had bipolar affective disorder. Over a two year period, I
had had to assess her under the Mental Health Act on 8 separate occasions,
invariably during a hypomanic episode.
I thought I
knew Vanessa well. And that was my mistake.
The legal definition of “mental disorder” for the purposes of the Mental
Health Act has evolved over the years to reflect changes in society and the
liberalisation of psychiatry.
The Mental Health Act 1959 was the first “modern” Act
designed to deal with people with mental disorders. It replaced frankly archaic
Acts such as the Lunacy Act 1890 and the Mental Deficiency Acts of 1913 and
1938. This was replaced in turn by the Mental Health Act 1983, which was
further amended by the Mental Health Act 2007, which radically modified the
definition of “mental disorder”.
It surprises me how many people I have assessed under the Mental Health Act over the years have delusions that they are Jesus Christ, a prophet from the bible, or even God. This is the story of one such person.
Even though every formal assessment
under the Mental Health Act 1983 is different, the actual procedure tends to follow
a typical pattern.
Assessments have a similar structure, or series of
steps, which have a logical sequence, and need to be followed if the assessment
is to meet legal, ethical and professional standards.
The steps are as follows:
1 The Referral
2 Gathering Information
3 Organising the
Assessment
4 The Interview
5 Reaching a Decision
6 Completing the
application ( if one is to be made)
7 Arrangements for the Admission
8 The Admission
9 The Aftermath
In this video I illustrate these steps by referring
to a real assessment I undertook: Robina, a woman in her early 80’s living
alone, with steadily worsening dementia.
The Masked AMHP explains what section 117 of the Mental
Health Act is all about, and what it means for sectioned patients and their
relatives.
Section 117 of the Mental Health Act 1983 lays down a
duty for the local authority and the NHS to provide services for people who
have been detained under, and then discharged from, certain sections of the
Mental Health Act.
I quite often get emails from relatives of people with
mental illness asking questions relating to Section 117.
It often appears that
the regulations and guidance relating to Section 117 are not being adhered to,
or patients and relatives are not being kept in the loop when arrangements for
aftercare are being made. I thought therefore that it might be helpful to lay
out what the rights of patients and relatives are relating to Section 117
There
are five overarching principles underpinning the Mental Health Act 1983. AMHPs
and others acting within the MHA are bound to adhere to them in their practice.
The
First Principle is:
Least
restrictive option and maximising independence
“Where
it is possible to treat a patient safely and lawfully without detaining them
under the Act, the patient should not be detained. Wherever possible a
patient’s independence should be encouraged and supported with a focus on promoting
recovery wherever possible.”
This
means that an AMHP should always explore alternatives to compulsory admission
when conducting an assessment under the MHA. This can include finding
alternatives to admission, such as involvement with Crisis Teams, support from
carers, respite care, or informal admission.
This
is an example of a response to a request for an assessment under the MHA where
I tried to make the whole process as unthreatening and low key as possible.
After getting the job of unqualified generic social
worker in 1976 I worked for two years with a mixed caseload. This mainly consisted of
elderly people, people with physical disabilities, some work with families, and
one or two people with mental health problems and learning disabilities.
I was then seconded on full pay to a two year Certificate
of Qualification in Social Work course and when I qualified I returned to work
in my old office.
It’s 1981. I’ve only been a qualified social worker for
less than a year. My boss calls me into his office and asks me to do an
assessment under the 1959 Mental Health Act. But I’ve had no training...
During my years practising
first as a Mental Welfare Officer, then as an Approved Social Worker and then
as an AMHP, I’ve been in a few tight spots (being chased round a bungalow by an
old man with dementia brandishing a shotgun being one that springs to mind).
However, I have only rarely been actually physically assaulted.
I like to think that’s
because I know how to keep myself safe and de-escalate potentially violent
situations, but perhaps luck also has something to do with it. When I look at
the situations in which I was assaulted, generally I can recognise that I’ve
made mistakes of judgment (although sometimes they are completely unpredictable).
The Masked AMHP tells the sorry tale of when he was
ambushed by a little old lady in his latest YouTube channel video. A warning to
always be vigilant during MHA assessments.
As the British Association of Social Workers has been
celebrating its 50 years of existence, there has been a lot of discussion about
whether or not social work was better back then. (By the way, I joined BASW as
a student member in 1978.)
Over the years I’ve been writing this blog, I’ve written
several posts about my experience of social work in the early years of my
career (which started as an “Assistant House Parent” in a children’s home in
1975).
This post is a description of an assessment under the Mental Health Act
1959 Act that I witnessed in 1976, when I got my first job as an actual social
worker.
A comparison with the way in which assessments by AMHPs
under the MHA 1983 are conducted today shows the huge changes in philosophy and
practice that have taken place over the intervening years.
The latest video from the Masked AMHP's YouTube Channel. This is about helping an old lady who had just lost her husband, and at the same time avoiding the sledgehammer of a MHA assessment.
During
lockdown, and as I slide into retirement, I’ve been looking back over my career
as a social worker and an AMHP.
I
started as an unqualified generic social worker in 1976. I first began to
practice as a Mental Welfare Officer under the old Mental Health Act 1959 in
1981. When the 1983 MHA came into force in September 1983, I became an Approved
Social Worker.
I
became a dedicated mental health social worker in 1988. When the MHA 2007
amended the 1983 Act in 2008, I became an Approved Mental Health Professional.
During
that time I’ve undertaken approaching 700 assessments under various MHA’s.
On
my new Masked AMHP YouTube channel I have begun to reminisce about some of my experiences.
The
Approved Mental Health Professional (AMHP) Practice Handbook, Kevin Stone,
Sarah Vicary, Tim Spencer-Lane; Policy Press, 2020
I
will begin by saying that I think this is a very good book. I'm in no doubt
that it will be an invaluable resource to assist trainee AMHPs in understanding and learning the AMHP role, and
will also serve as a useful reference guide for practicing AMHPs to assist with
certain aspects of mental health law.
The book is divided into
three parts: the AMHP in context, the AMHP in practice, and AMHP theory.
The first part covers the
unique practice context of the AMHP, the ethical context, and social perspectives
in mental health, including the multi-professional context of the AMHP role,
this role being open not just to social workers, but also mental health nurse,
occupational therapists and clinical psychologists.
The second part focuses on
practice issues. This includes the process of completing an assessment under
the Mental Health Act, including the sections of the Act involved in detention
in hospital; the associated risks and challenges; the interface between the MHA
and the Mental Capacity Act; and the AMHP's involvement in community provisions
under the MHA, including CTO's guardianship and s.117 aftercare.
The third part examines
upholding rights and anti-oppressive practice; the importance of resilience, in
managing to survive in this demanding role; and decision-making, including
involvement of family members and other professionals, arrangements for
transport to hospital and facilitating reflection on the role.
Each chapter begins with a
clear explanation of the aim of the chapter, including explicit notes on
relevant law, which AMHP competencies are covered by the chapter, and case
studies to aid reflective activities, concluding with key messages of the
chapter, a brief review of knowledge, and recommended further reading.
The book
combines sound academic principles with reference to competence indicators,
skills and practice, providing copious
and relevant referencing throughout, as well as reference to other related
legislation. There is throughout a good selection of practice examples to aid
learning and reflection.
There are a few other
handbooks for AMHPs, most notably The Pocketbook
Guide to MentalHealth Act Assessments by Claire Barcham, which is now into its second
edition.. The Pocketbook Guide is more basic than the book in question, and perhaps
more explicitly practice oriented, and is aimed more at students than
practitioners. This book, by comparison, takes an academic research led
approach but directly applies this to practice.
The structure of the book
is clear and logical, leading the reader from the basics of Mental Health law
and practice through to an analysis of theoretical perspectives of mental
health and mental disorder, and into actual practice considerations and the
application of theory to practice.
Throughout, there is a
logical connect with the core AMHP competences, which will be very helpful for
trainee AMHPs to evidence their competencies for their coursework, as well as
assisting experienced AMHPs to compiling an AMHP Record of Achievement for
statutory reapproval. It will also provide a very valuable resource for AMHP
courses.
NHS England has issued Legal Guidance on the use of the Mental Health Act during the
coronavirus pandemic. You can find the full document here.
It
begins by stressing that:
There
are currently no changes to the Mental Health Act 1983 legislation and
colleagues should continue to adhere to the MHA Code of Practice as it
currently stands until further notice.
It
makes clear that there must be a clear distinction between the principles of
the MHA and possible requirements to manage people infected by the coronavirus:
MHA
powers must not be used to enforce treatment or isolation for any reason
unrelated to the management of a person’s mental health.
Schedule
8 of the Coronavirus Act, relating to amendments to the MHA 1983, is not in
force (and may never be). The guidance clearly states that these powers
will
only be enacted if it is deemed nationally that the mental health sector is
experiencing unprecedented resource constraints that put patients’ safety at
significant risk.
It
also makes it clear from the outset that there will be no changes to the
current Mental Capacity Act.
It
continues to hammer home the message that:
It
remains the case, even in the wake of the emergency powers, that the MHA should
only be used ‘with respect to the reception, care and treatment of mentally
disordered patients and other related matters’. Under no circumstances can the
MHA be used to enforce treatment, restrictions or isolation that is unrelated
to the management of a person’s mental health.
The
guidance suggests a number of actions that those involved in the care and
treatment of people with mental disorder can and should take to ensure that the
word and spirit of the MHA are respected.
One
recommendation is that at a local level there must be additional resources
provided to maintain an adequate supply of s.12 doctors to conduct assessments
under the MHA.
One
of the ways it suggests is that the Department of Health and Social Care will
extend the licences of s.12 doctors and approved clinicians. These licences
will be extended for 12 months.
S.140
MHA gets a mention, stating that there should be local systems “to ensure s140
agreements in relation to bed availability are in place and updated in light of
COVID-19”.
The
guidance goes into some detail in stressing how people with learning disability
and/or autism should be treated, reinforcing the recommendations in the Code of
Practice by stating that “caution should be taken when determining whether an
individual with a learning disability and/or autism is detainable under the
MHA.”
One
key statement relates the requirement that people with learning disability
should be exhibiting “abnormally aggressive or seriously irresponsible conduct”
in order to meet the threshold for detention under the MHA. It states unequivocally
that:
non-compliance
or difficulty in gaining compliance with any restrictions and interventions
required for the management of COVID-19 is not interpreted as adequate grounds
on which to detain them. Further, the fundamental principle that the MHA is not
for the treatment of physical disorders must be borne in mind where there is no
association between a person’s physical and mental disorder.
It
also recognises that:
The
emotional and behavioural responses of people with autism to the constraints,
uncertainties and significant changes in daily living as a result of the
management of COVID-19 may also provide a diagnostic challenge in assessments
under the MHA.
It
goes on to stress:
It
is essential that the support of health and social care service practitioners
with particular experience and expertise in learning disability and/or autism
is sought wherever possible to enable appropriate, reasonably adjusted
assessments.
With
reference to use of the MCA, it recognises that the impact of the Coronavirus “may
result in a justifiable need for restrictive practice in particular
circumstances”. But it also stresses that the principle of employing the least
restrictive option should always be paramount:
Any
use of restriction must be proportionate to the risks involved and providers
should refer to their ethics committees where required.
I
remain hopeful that the current MHA can continue to function as it currently
is, without the need for the emergency changes in the Coronavirus Act. AMHPs
and other mental health professionals need to work together to ensure that all
the principles underlying the MHA and the Human Rights Act are never dispensed
with because of operational difficulties arising from this national health
emergency.
26.03.20. Update: The Coronavirus Act 2020 has now been passed, but the changes, including to the MHA, are not as yet in force. Schedule 8, which relates to the MHA, appears unchanged from the Bill. The Coronavirus Bill was published today (19th March
2020). You can find the full text here. The full Bill obviously covers a multitude of proposed measures, including for example emergency registration of nurses and social workers. The proposed amendments to the MHA for
England and Wales are contained in Schedule 7. Changes to the Scottish
legislation are contained in Schedule 8. This is my understanding of the main proposed changes relating to the MHA 1983. The main substance of these changes appears to relate to an anticipated shortage of doctors who can make recommendations. It does not
appear to anticipate any shortage of AMHPs, who will still be required to undertake
an assessment and make the application. As has been signaled, there will be changes to the requirements
regarding applications under s.2 and s.3 MHA. The Bill states:
An application by an approved mental
health professional under section 2 or 3... may be founded on a recommendation
by a single registered medical practitioner (a “single recommendation”), if the
professional considers that compliance with the requirement under that section
for the recommendations of two practitioners is impractical or would involve
undesirable delay.
So it would appear that, while s.2 and
s.3 can still involve two medical recommendations, an AMHP can decide to
dispense with one if it is not practical to obtain 2 doctors to make
recommendations.
The Bill then goes on to say:
An emergency application under section
4 may not be founded on a single recommendation (but this does not limit
section 4(3)).
I’m taking this to mean that in effect
s.4 (which only requires one recommendation) is suspended for the duration of
these amendments.
The Bill makes it clear that the
single recommendation has to be made by a s.12 approved doctor, but that doctor
does not need to have had previous acquaintance.
S.5(2) is being amended so that
instead of this hospital detention lasting 72 hours, it will now last for up to
120 hours, or 5 days. The time limit for s.5(4), the nurse’s holding order, is also
extended, from 6 hours to 12 hours.
Along the same lines, Part III of the
MHA, relating to criminal proceedings, will only require one medical recommendation.
This relates to s.36, s.37, s.38, and s.45A.
Presumably anticipating delays in
admissions to hospital, the time limits for conveyance of accused or convicted
prisoners to hospital have been relaxed, the Bill stating:
The provisions listed in sub-paragraph
(2) have effect as if references to conveying or admitting a person to hospital
within a specified period were references to doing so within that period or as
soon as practicable after the end of that period.
Finally, s.135 & s.136 are amended
to extend the period of detention in a place of safety from 24 hours to 36
hours (not 72 hours, as had previously been the time limit until the recent amendments in 2018).
Any existing forms that conflict with
these changes can be used with “appropriate amendments” (which can presumably
be handwritten if necessary).
There is no indication of how long
these changes might continue.
The Bill does, of course, still have
to pass through, and be approved by, Parliament, and there may be further
amendments.
However, it does seem likely that
most, if not all, of these changes will go through.
