Devon Partnership NHS Trust v SSHC [2021] EWHC 101 (Admin), published on 22nd January 2021 is a piece of case
law that provides an important clarification affecting some of the basics of
assessments under the Mental Health Act 1983. This involves the meanings of two
phrases: "personally seen" and "personally examined".
Section 11(5) MHA stats that an AMHP cannot make an application for detention
under the MHA “unless that person has personally seen the patient".
Section 12(1) relates to medical practitioners and states that those
practitioners must have "have personally examined the patient”.
You
might think that the meaning of these phrases is pretty straightforward, and
indeed for many years AMHPs and doctors have interpreted these phrases as
meaning that they must actually visit the patient and see them with their own
eyes
However,
the Coronavirus Pandemic threw a spanner into the works. Anticipating the
logistical problems of keeping practitioners safe and obeying social distancing
guidelines led NHS England to issue a document in March 2020 calledLegal guidance for mental health, disability
and autism, and specialised commissioning services supporting people of all
ages during the coronavirus pandemic, which was intended to provide guidance on
practice under the MHA.
The
guidance said this
"It
is the opinion of NHS England and NHS Improvement and the DHSC that developments
in digital technology are now such that staff may be satisfied, on the basis of
video assessments, that they have personally seen or examined a person in a
“suitable manner”. Bearing in mind the need to prevent infection and to ensure
the safety of the person and staff, in some circumstances the pandemic may
necessitate the use of such digital technology for MHA assessments."
Devon
therefore applied to the courts for clarification. Could assessments take place
virtually, via Zoom or other digital platforms, or did they have to be face to
face?
Until
now, it had never been in question that these assessments had to involve
professionals being in the same room as the person being assessed. The Code of
Practice was very clear that a medical examination must involve “direct
personal examination of the patient and their mental state”. Similarly, the
Code made it clear that the AMHP's duty to "interview in a suitable
manner". for example is suggests that "it is not desirable for
patients to be interviewed through a closed door or window", which would
imply strongly that interviewing via smartphone or laptop, possibly from many
miles away, would certainly not cut the mustard.
There
were some interesting arguments (interesting to me, at any rate), which
examined statute going as far back as the beginning of the 19th century, noting
that the phrase “personally examined” dates from the Pauper Lunatics (England)
Act 1819, and that the phrase “personally seen” was first mentioned in the
Lunacy Acts Amendment Act 1889.
It
was pointed out that back then there could have been no other meaning for these
phrases than the necessity to be in the same room as the patient.
The
point is made that since the deprivation of liberty which is a consequence of
detention under the Act is a very serious act, normally only the province of
Judges, it is necessary for mental health professionals to adhere to the
wording in statute "particularly strictly".
The
Judges in the case also concluded that "we do not think it appropriate to
take the compound phrases “personally seen” and “personally examined”, as used
in the 1959 and 1983 Acts, and split them up, asking first what “examined” or
“seen” means and then what “personally” was intended to add."
They
also pointed out that "the fact that the Code of Practice requires
physical attendance and that the Secretary of State’s Guidance makes clear that
in person examinations are always preferable seem to us to show that, even
today, medical examinations should ideally be carried out face-to-face. "
Their
conclusions were unequivocal:the
phrases “personally seen” in s. 11(5) and “personally examined” in s. 12(1)
require the physical attendance of the person in question on the patient.
While
it is reassuring that what AMHPs and doctors have always done as a basic aspect
of best practice has been confirmed, Coronavirus or not, it may be of concern
to some Trusts and AMHP services as to the legality of any assessments that did
involve video examinations that resulted in detention.
The
long awaited response to the Wessely Mental Health Act Review published in
December 2018 was released on 13th January 2021. There's much to like in it. In
fact, it appears that a lot of the recommendations in the Review of the MHA 1983
have been addressed and incorporated into the White Paper.
I'll
examine some of the main points.
Guiding Principles
The
Government has accepted one of the primary recommendations, which was to
replace the five guiding principles in the 2015 Code of Practice (Least restrictive option and
maximising independence, Empowerment and involvement, Respect and dignity,
Purpose and effectiveness, and Efficiency
and equity) with four new guiding principles. These are:
Choice
and autonomy –
ensuring service users’ views and choices are respected .
It
aims to achieve this through the creation of Advance Choice Documents, greater
involvement and clarity with Care and Treatment Plans, and making it easier to
challenge treatment decisions.
Least
restriction –
ensuring the Act’s powers are used in the least restrictive way
Least
restriction has always been at the heart of the AMHP decision making process,
and the revised Act would strengthen and clarify the criteria required into or
to detain and treat people in hospital. The Act would also be aiming to ensure
that people are detained for the shortest time possible by making discharge
planning a key part of the inpatient process.
Therapeutic
benefit –
ensuring patients are supported to get better, so they can be discharged as
quickly as possible
Therapeutic
benefit must be a requirement of detention, so that only people who are likely
to benefit from inpatient treatment will be detained, and hence would be
discharged from the powers of detention as soon as possible.
The
person as an individual – ensuring patients are viewed and treated as individuals
This
explicitly focuses on improving access, experience and outcomes for people from
black, Asian and minority ethnic backgrounds.
Furthermore, rather than being confined to
the Code of Practice, and therefore being guidance rather than law as
currently, these principles will be incorporated into the Act itself.
Changes
to section 2 and section 3
The White Paper is keen to address the increasing
extent to which detention under the MHA is being used, and therefore intends to
tighten the grounds for detention under section.
As it points out, section 3 currently states
that:
detention should be
“necessary for the health or safety of the patient” and that “appropriate
medical treatment is available”, neither of which expressly provides for a
requirement that the patient should benefit from the treatment allowed for by
the detention.
The
proposal is therefore to change the requirements of section 3 so that:
In
order to for someone to be detained it must be demonstrated that
•
The purpose of care and treatment is to bring about a therapeutic benefit
•
Care and treatment cannot be delivered to the individual without their
detention
•
Appropriate care and treatment is available.
This
seems to be particularly aimed at addressing the problems experienced by people
with learning disability and autism. It states that:
This
should prevent the ‘warehousing’ of patients, where they are detained within
inpatient settings without treatment which provides therapeutic benefit,
something that the Review identified as more likely to happen for people with a
learning disability and autistic people.
Both
sections 2 & 3 will be amended so that it must be demonstrated that: " There is a substantial likelihood of
significant harm to the health, safety or welfare of the person, or the safety
of any other person."
These criteria will also be applied to consideration
of use of a Community Treatment Order.
Professionals involved in making these decisions will need to document
the specific risk that justifies detention and how detention will deliver
therapeutic benefit in anew statutory Care and Treatment Plan.
Increased rights to
challenge compulsory detention
It
is planned to give detained patients more rights to challenge their detention.
This will include the right to appeal detention under section 3 three times in
the first year, rather than two, as well as to expand the powers of the
Tribunal. The time limit for appealing section two will be increased from 14
days to 21 days.
In
future, Independent Mental Health Advocates will have the power to appeal on a
patient's behalf.
It's
also proposed to abolish Manager's Hearings, which in my experience rarely exercise
powers to discharge patients.
Increased rights to
choose and refuse treatment
In
order to strengthen a patient's right to choose and refuse treatment, there
will be the creation ofAdvanced Choice
Documents.
"These will enable
people to set out in advance the care and treatment they would prefer, and any
treatments they wish to refuse, in the event they are detained under the Act
and lack the relevant capacity to express their views at the time. It will be a
legal requirement that ACDs are considered when a patient’s care and treatment
plan is developed."
These care and treatment
plans will be a legal requirement for all patients.
In connection with the
right to refuse treatment the White Paper introduces the concept of "the
right to choose to suffer". What this means is that patients with the
relevant capacity should be able to make their own judgements on the degree of
suffering they are willing to accept, and urgent treatment could no longer be
given to a patient with capacity, on the basis of the alleviation of serious
suffering.
Replacement of the Nearest Relative
The Nearest Relative has a
number of powers and functions under the Act. As was widely recommended, the
legal concept of the nearest relative will be replaced by a Nominated Person.
This means that a patient can identify their own Nominated Person, rather than
the current situation, where a somewhat arcane system is used to identify a
person's nearest relative without any significant consultation with the
patient.
AMHPs have for many years
spent many, many hours discussing and arguing who someone's nearest relative
might be, using a combination of a complex hierarchy delineated in the Act and
if all else fails consulting the I Ching.
At last, a patient can
decide their own Nominated Person, who will have powers to ensure that their
detention is lawful and necessary. They can nominate this person in advance,
and include this in their Advance Choice Document. If a person has not
identified someone prior to detention an AMHP will be able to make a decision
about the best person to fulfil this role.
CTOs
The criteria for the use
of CTOs will be restricted. They will only be able to be used when there is a substantial likelihoodof
significant harm to the health, safety or welfare of the person, or the safety
of any other person, and where a CTO will provide a therapeutic benefit to the
patient. A Nominated Person must be consulted, andwill have a new power to object.
The intention is to reduce the overall
use of CTO's and to limit the length of time they can be used.
A&E
Consideration will be
given to extending the powers of section 5 MHA to apply to patients in A&E
departments. It looks like this will only be extended to section 5(2), meaning
only a senior clinician would be able to detain.
People with learning disability and autistic people
There is reinforcement of
the Code of Practice's advice on the detention and treatment of people with
learning disability and people with autism. It states:
We are committed to reducing the
reliance on specialist inpatient services for people with a learning disability
and autistic people and to developing community alternatives.
It addresses recent high profile cases
where detained in-patients with a learning disability and autistic people were
not receiving sufficiently therapeutic or reasonably adjusted care, and
concludes that for some people with a learning disability and autistic people,
the use of the Act to detain someone for assessment and/or treatment, however
justifiable or beneficial initially, can lead to interminable and unjustifiable
detention.
The White Paper says:
We propose to revise the Mental Health
Act to be clearer that for the purposes of the Act we do not consider autism or
a learning disability to be mental disorders warranting compulsory treatment
under section 3. The proposed revisions would allow for the detention of people
with learning disability and autistic people for assessment, under section 2,
of the Mental Health Act, when their behaviour is so distressed that there is a
substantial risk of significant harm to self or others (as for all detentions)
and a probable mental health cause to that behaviour that warrants assessment
in hospital.
It
also proposes the potential creation of new duties on Local Authority and
Clinical Commissioning Groups to ensure an adequate supply of community
services for people with a learning disability and autistic people with the
express intention of reducing the use of and need for mental health inpatient
services.
People
from black, Asian and minority ethnic backgrounds
It's
well established people from black,
Asian and minority ethnic backgrounds are not served well by the Mental Health
Act, or mental health services in general. The latest statistics show that
black British people are over four times more likely than white British people
to be detained, and are over ten times more likely to be subject to a CTO.
Black British people also experience poorer outcomes, as there is evidence that
black patients may be subject to much higher levels of restraint than white
British people.
While there is little explicitly aimed at
reducing this inequality in the proposed changes to the Mental Health Act, the
White Paper recognises the need to increase advocacy for this group, to
encourage a more racially diverse professional workforce, and to ramp up
research and the collection of data to monitor these inequalities.
Use of
Police Custody
The White Paper states that " we have
committed to update sections 135 and 136 to remove police stations as a
designated place of safety by 2023/24." (Although the vast majority of
patients detained under section 135 and 136 are in any case now taken to
approved places of safety).
There is much talk in the White Paper of the
need to improve funding of mental health services in order to make changes to
the law and practice meaningful. An example is a plan to improve the experience
of ambulance conveyance by providing additional mental health professionals to
deliver mental health specific initiatives and extra capacity in ambulance
services, such as having mental health staff based in 111/999 control rooms to
improve telephone triage and support, as well as a national programme to
increase mental health training and education of ambulance staff.
Some argued at the time of the Review (me
included) that if mental health services had had adequate funding over the long
term, then the crisis in mental health care leading to increased use of the
powers of detention under the Mental Health Act would never have occurred in
the first place.
I recall when the 1983 Act first came into
force, that the introduction of the need for ASW's to consider alternatives to
admission might mean investment to provide viable alternatives, but that never
really happened.
For any changes to the Act to have any
significance, mental health and the organisations such as the police and
ambulance service must receive hugely increased funding to address the current
crisis in mental health, which is only going to be made worse by the long term
effects of the Coronavirus Pandemic.
As
well as my full time job as a social worker, between 1983 and 1997 I also
worked one or two shifts a week on the out-of-hours standby duty team. This
team dealt exclusively with emergencies and crises that arose outside normal
working hours. We covered nights, weekends, and Bank Holidays. We were entirely
generic.
One
evening I received a call from the Police to attend the police station as an
Appropriate Adult under PACE (The Police & Criminal Evidence Act) while
they interviewed a young boy who had been arrested for a distraction burglary.
Little
was known about him, as he appeared unable or unwilling to provide much
information. He was from a group of Irish travelers, who had settled on a
piece of wasteland on the edge of a small market town. He had been arrested
when he and an older boy had been reported for attempting to steal from a
householder.
Distraction
burglaries involve one person engaging someone in their garden in conversation,
while an accomplice nips into the house and has a search for valuables. The
older boy had made off, but the police had managed to catch Sean.
Section
5 of the MHA is all about hospital holding powers for people who are already
hospital inpatients, whether in a psychiatric ward or a general hospital.
The
relevant subsections are section 5(2) and section 5(4).
Section
5(2) is the doctor’s holding power. The Code of Practice states that it can be
used:
“where the doctor or approved clinician in charge of the treatment
of a hospital in-patient concludes that an application for detention under the
Act should be made. It authorises the detention of the patient in the hospital
for a maximum of 72 hours so that the patient can be assessed with a view to
such an application being made.”
This
means that if an informal hospital patient is detained under section 5(2) an
AMHP has up to 72 hours to arrange an assessment with a view to detaining under
section 2 or section 3. Once a decision has been made, and an application has
been completed for section 2 or 3, the section 5(2) detention ends. This also
applies if the decision is made not to detain.
Although normally detention under this power would immediately
initiate an assessment by an AMHP and a second doctor, if the doctor in charge
of the patient subsequently reviews them prior to this full assessment and
concludes that continued compulsory detention is no longer necessary, the
section 5(2) can then be discharged.
Section 5(2) can be used are where the patient is actively wishing
or trying to leave the hospital, but it is considered that it would put them at
risk if they left, and it is not practicable or safe to make an application
under section 2 or 3 without detaining them while this is arranged.
Detention
under section 5(2) does not permit the patient to be moved from one hospital to
another. If they are moved, for example from a general hospital to a
psychiatric hospital, or vice versa, then the section would automatically end.
When
can’t section 5(2) be used?
It
cannot apply to a patient who is already liable to be detained under section 2,
3 or 4.
In
addition, the Reference Guide states unequivocally that someone on a Community
Treatment Order cannot be made subject to section 5(2). It goes on to explain
that “because patients on CTOs can be recalled to hospital for treatment if
required, it should not be necessary to make applications for their detention.”
The Code confirms that “where the person is known to be on a CTO and compulsory
admission is indicated, the recall power should be used”.
It
can also not be used for a patient detained under section 135 or 136 where the
reason they are in hospital is as a place of safety.
The Code is clear that “this power cannot be used for an
out-patient attending a hospital’s accident and emergency department, or any other
out-patient. Patients should not be admitted informally with the sole intention
of then using the holding power.”
It also states that: “Section 5(2) should not
be used as an alternative to making an application, even if it is thought that
the patient will only need to be detained for 72 hours or less.”
Section 5(4) is the nurse’s holding power. AMHP’s really don’t get
involved with these, as only a section 5(2) would trigger a request for a full
assessment under section 2 or 3. It can only apply to a patient who is receiving treatment for mental disorder an an in-patient in a hospital.
The Code says that “this power may be used only where the nurse
considers that: the patient is suffering from mental disorder to such a degree
that it is necessary for the patient to be immediately prevented from leaving the
hospital either for the patient’s health or safety or the protection of other people, and
it is not practicable to secure the attendance of a doctor or approved
clinician who can submit a report under section 5(2).
It can only be used when the patient is still on the hospital
premises.
It permits the patient’s detention for up to six hours, or until a
doctor can use section 5(2), whichever is less.
Neither section 5(2) nor section 5(4) can be renewed once the time
limit has expired.
Neither section 5(2) nor section 5(4) give any power to give
treatment without the consent of the patient.
