Personality Disorder, Capacity and the Mental Health Act

 

On 28th May 2019 an inquest in Cornwall reported on the sad case of 23 year old Amy Morby, who died as a result of an overdose.

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, who I have written about several occasions on my 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 assessment and, if necessary, 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 a section of the MHA. The decision should perhaps have been allowed to have been made by an AMHP and 2 psychiatrists.

One of my scariest ever Mental Health Act assessments

 

One thing I have learned as an AMHP is never to show patients that you are scared. I have been in numerous situations over the years where I have anticipated danger or been threatened with harm, but have in reality been physically assaulted only rarely, and generally when I have misjudged a situation.

Derek, however, was really scary.

I was doing an out of hours shift in the early 1990’s when I got a call fairly late in the evening from the city police station.

Derek, a man in his mid 40’s, had been detained under S.136 after behaving bizarrely and aggressively in a public place and I was called to assess him under the MHA. He was apparently an intelligent man, with a degree in engineering, but had convictions for a range of violent offences.

From the comparatively bright and inviting reception area at the police station, I was led down several flights of stairs to the custody suite, which was in the subterranean bowels of the building with no natural light.

Derek had already been seen by the duty doctor, who had left a medical recommendation for s.2, and while I waited for the s.12 psychiatrist to arrive I decided to see him.

I followed the custody sergeant to Derek’s cell, at the end of a long corridor lined with heating pipes and ducts with the cells opening off. The custody sergeant looked uncomfortable.

“You’d better watch this bloke,” he said uneasily. “Don’t trust him.”

Long before we reached Derek’s cell, I could hear a loud and regular pounding sound echoing down the corridor. The custody sergeant’s unease was rubbing off on me. As we came nearer, I could see water flooding out from under the cell door. What on earth was going on in there?

Derek was monotonously pounding his cell door. The officer called through the grill to him to back off and then unlocked the door and opened it. Looking into the cell, I could see that Derek had tried to flush his shirt down the toilet in the corner of the cell, blocking it and causing it to overflow, covering the floor of the cell with water.

Derek had his back to us when we entered. Since his shirt was halfway round the U-bend, Derek was naked to the waist. He turned round and glared at us.

I felt a surge of shock. He only had one eye. He stared balefully at me with this one eye, but where the other should have been was just an empty pink socket.

My first thought was that he must have flushed his eye down the toilet. This did not help me to maintain my composure. My voice probably sounded a little shaky when I introduced myself.

He put his hand in his pocket and brought out his second eye, which was made of glass. He popped it into his mouth, sucked on it for a moment to remove any fluff, and inserted it into the empty socket. He then examined me more closely, as if this action had improved his vision. Although this went some way to improving his appearance, it was hardly reassuring.

The officer led him to an interview room. I stood on one side of the desk, with Derek and the officer on the other side and tried to interview him. He was hostile and asked me who I was. He did not appear impressed when I explained. He was clearly agitated and his mood was elevated. At a guess (I did not have access to his medical records) I thought he might have bipolar affective disorder and was probably hypomanic.

“Derek,” I began after I’d introduced myself to him, “Could you tell me what led up to you being here?”

He leaned across the desk to get his face as close to mine as possible.

“What business is it of yours?” he snarled. “I’ve met your sort before. You just want to lock me up. Because you’ve got no bottle.”

He raised his fist and made as if to punch me in the face, stopping just centimetres from my nose. I don’t know how I didn’t involuntarily recoil.

I asked him about his eye. He seemed happy to tell me that he had lost it at the age of 12 while trying to make homemade fireworks in his bedroom. This seemed to amuse him, and he continued to rattle on at some length about his childhood exploits.

As I continued to interview him it became clear that it was not possible to keep him on track, and his thought processes darted tangentially from one subject to another, often without any apparent relevance to what I was asking him.

“You’re going to section me aren’t you?” he concluded. “I’ve slit bigger bastards than you, and I promise you won’t get away with it.”

Deciding to conclude the assessment, I indicated to the officer that he could return Derek to the cell. I was relieved that I had survived the process without needing a visit to A&E. When the officer came back to me, I could see that he was trembling. It didn’t actually help to know that a police officer was even more scared than I was.

“I can stand a bit of aggression in this job,” he confided. “But these mental ones – they really put the wind up me.”

Once the psychiatrist had seen him (I decided not to take part in that interview) we were in no doubt that he needed to be detained under S.2 for assessment. In view of his volatility and potential for aggression, it was decided to transport him in a police van. He was not happy about this, and swore at me as he was led to the vehicle, each wrist cuffed to a police officer, with two others as escorts.

I went on to the hospital to alert them to his arrival, and got there before him. I stood back as he was led down the corridor, but at least felt safe, since he was handcuffed and flanked by two big policemen. I made sure that I was far enough away to be out of danger should he decide to lunge at me.

But as he passed, he turned to look at me balefully.

“Bastard!” he hissed, and spat full in my face.

I hadn’t anticipated that.

It turned out I got off lightly. A couple of years later I was talking to a social worker who worked in the regional secure unit. I discovered that Derek was a patient there. He was detained under Sec.37/41 (a form of detention imposed by the criminal court for serious offences, which means that a patient can only be released with the consent of the Home Secretary). He had blinded someone by throwing acid into their face.

When the people you’re trying to help seek to deceive

 

As a social worker, it has always been my basic approach to believe what service users tell me, unless and until I have evidence to the contrary. Having worked with many people over the years with a history of childhood sexual abuse, many of whom were doubted when they disclosed as children, I know that it is of vital importance to them to be believed.

That does not mean I am gullible, but I am prepared to keep an open mind and apply the Evidence Test. The Evidence Test is simple and straightforward – is there any evidence which contradicts what a person is telling you?

I remember visiting an old lady who told me that her living room had been full of girls singing and dancing the previous evening. She went on to say that they had all disappeared into a hole in the wall – directly behind her TV. Before coming to the conclusion that the lady was suffering from dementia, and was no longer able to differentiate reality from television, I had a look behind the TV just in case there was, however unlikely it might seem, a hole. There wasn’t.

And there was another unfortunate old lady who was detained under the MHA and admitted to hospital after repeatedly reporting the existence of strange noises in her old terraced cottage. Following her admission, her community nurse arranged to collect some personal effects from her home. She entered the cottage and was disconcerted to hear loud noises emanating from somewhere within the building. It was eventually traced to her next door neighbour, who had decided to convert his cellar, and in the process had extended his own cellar by knocking into the space beneath the old lady’s home.

So I initially had no reason to disbelieve Brenda.

Brenda’s GP’s referral letter catalogued the terrible experiences she had had at the hands of her abusive husband who, even after she had left him, had continued to stalk and harass her and had even broken into her house and raped her on one occasion.

The consequence of this was that Brenda was afraid to leave her house. She had difficulty sleeping, and reported frequent flashbacks to her ordeal. She was afraid of being alone, and only slept with the light on. She reported a full house of symptoms of post traumatic stress disorder.

I worked with her for several months. One of the first things I did was to help her make a claim for disability benefits. I was surprised when she was turned down for this, and helped her to appeal.

I put quite lot of work into this. She had a neighbour, who was often at her house when I visited, who had told me the extent of the help she had had to provide Brenda, as she lived alone, and had no supportive relatives. I prepared an account of the daily assistance she provided Brenda, which included encouraging her to eat properly, taking her to appointments, and even going round to her house in the night when Brenda was too frightened to sleep. I sent this statement off with the appeal documents, and arranged to take Brenda and the neighbour to the appeal and to act as her advocate.

The members of the Appeal Tribunal were convinced by the evidence I had prepared, and awarded Brenda full benefits, backdated 9 months. I was as delighted as Brenda, and felt I had done a good job of social work.

A few months later, Brenda had more problems with benefits. This time, she told me, she had had her housing benefit suspended because of an anonymous tip off that she was fraudulently claiming. Someone had told the council that she was working. She suspected that it was her ex-husband.

I again offered to write a supporting letter for her.

A week or so later, she told me that she had been summoned to an interview, under caution, at the local council offices, in connection with these allegations. I offered to attend with her as an appropriate adult.

We went into the interview room and the investigating council officers began the formal interview.

The basic charge was that she had fraudulently claimed housing benefit for a number of years while working full time, and that she had not disclosed her earnings, or the existence of bank accounts into which these earnings had gone, to the council.

Brenda denied these charges.

The interviewers listened patiently.

Then the main interviewer opened up a large dossier and began to show Brenda some documents. Was this her bank account? Yes. How did she account for regular sums of money going in on a monthly basis, of around £1000 per month? She didn’t know what the money was for.

The interviewer showed Brenda the payrolls of several different employers. Was this her name and address? Yes, it was. Was this her National Insurance number? Yes, it was. Was this her signature on the forms? It looked like her signature. Was the employee therefore Brenda herself? No it wasn’t. It must have been someone who had used her name and address. Was it the same person who had then arranged for her monthly pay to be deposited in Brenda’s bank account? It must have been. And this person was not, in fact, Brenda? No, it wasn’t.

It was becoming blindingly clear to me that Brenda had, indeed, been systematically claiming housing benefits and other benefits fraudulently for several years, and that I had been an unwitting accomplice in this.

In the car on the way home, Brenda continued to maintain, in the face of overwhelming evidence to the contrary, that she was entirely innocent. I couldn’t look at her. I dropped her off at home and advised her to consult with a solicitor. I said I would be in touch.

After consultation with my manager, I wrote to Brenda to say that we would be discharging her from the service, as we could only work with people with mental health problems. I never saw her again.

If you have been, thank you for listening. If you’ve found this informative or entertaining, please don’t forget to like and subscribe.

Personal financial resources & s.117 aftercare: Tinsley v Manchester City Council 2017

 

People who follow my blog will know how exercised I can become about S.117 after care entitlement, especially when that entitlement is being concealed or misrepresented to patients by local authorities. Indeed, one of the commonest enquiries I receive is from relatives of people entitled to S.117 who are, to put it bluntly, being hoodwinked by local authorities who are at best ignorant of their duties, and at worst seek to defraud patients out of their money.

And so to Tinsley v Manchester City Council, a 2017 judgment from the Court of Appeal concerning a case that had been meandering through the courts for some considerable time, no doubt at considerable expense.

The case concerns a man called Damien Tinsley. Back in 1998 he was hit by a car while cycling which caused considerable brain damage and left him with an organic personality disorder. He ended up being detained under S.3 MHA, and was discharged to a mental health nursing home. In accordance with the requirements of S.117, the costs were paid by Manchester City Council.

In 2005 he was awarded damages approaching £3.5 million, of which £2,890,257 represented the costs of future care.

Interestingly, it was successfully argued during this court case that “the relevant authorities were entitled to have regard, when deciding how the claimant’s needs were to be met, to the resources available to them, and he concluded that they would not fund either a care regime which the claimant was prepared to accept (namely, accommodation at home) or even the care regime which the judge found to be reasonable.”

The consequence of this was that from that time Mr Tinsley has been using the settlement to fund his care, which has included the purchase of accommodation for him to live in.

After a number of years a new deputy was appointed for Mr Tinsley by the Court of Protection, who took the view that the Manchester “has always been obliged to provide him with appropriate after-care services” and in 2010 the deputy started to pursue Manchester for both a refund of the money Mr Tinsley had paid as well as damages.

The case ended up in the High Court, where it was concluded that it was unlawful for Manchester to refuse to pay for after care “on the basis that Mr Tinsley had no need for such provision because he could fund it himself from his personal injury damages.”

The case finally arrived at the Court of Appeal, which issued a judgment in October 2017.

On the face of it, it would appear perfectly reasonable for the money that Mr Tinsley had received in damages for disabling injuries that were not his fault, and which were specifically identified to cover the cost of his current and future care, to be spent on that care. After all, huge sums are frequently paid by the NHS for damage to patients which is designed to cover their long term care needs.

However, the issue here is that of entitlement to S.117 after-care, and the basic principle that after-care for the purpose of meeting a person’s mental health needs cannot be charged for.

So what did the High Court conclude?

Manchester submitted that “the mere fact that an obligation is imposed on it by s.117 to provide after-care services to persons compulsorily detained pursuant to section 3 of the Act does not require it to provide, or arrange for the provision of, such services if a claimant has funds available for that purpose”.

In a lovely paragraph, the Court demolished that argument:

This is an impossible argument… A refusal to pay for such services is effectively the same as providing such services but charging for them.  The House of Lords has made it clear in Stennett that charging persons such as the claimant is impermissible.  Manchester is effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it cannot recover by the front”.

The appeal by Manchester was therefore dismissed.

This has to be a harsh reminder to local authorities of their absolute duty to meet the expenses of patients entitled to after care under S.117, tempting though it may be, in view of the severe cutbacks to local authorities for social care, to seek to tap the person’s personal funds.

While it may seem perverse that even someone with unlimited funds is entitled to free care if they have once been detained under S.3 MHA, it is nevertheless the law.

Parliament had the opportunity when drawing up the Mental Health Act 2007 to remove this absolute entitlement, but it did not.

Parliament again had the opportunity to change the law when drawing up the Care Act 2014, which substantially amended S.117.

But it did not.

It remains to be seen whether the eventual reform of the MHA decides to remove this duty.

My First Caseload in 1976: Aggie and her 97 year old Mother

 

This video is about another of my caseload back in 1976.

Aggie was in her late 60’s. She lived with her 97 year old mother on a smallholding in a particularly remote part of our area.

It consisted of 10 acres of small fields and meadows enclosed by hedges, an oasis of rural peace surrounded by the vast, open, intensively cultivated fields of an industrial style farm.

To reach her home, you had to drive a couple of hundred yards along a track across one of these huge fields, in the summer swaying with wheat, or barley, or oats.

Once through the gate of Aggie’s smallholding, you had to park up and walk the rest of the way through meadows full of wild flowers where her small herd of cows grazed, past ponds teaming with frogs and newts, until you reached what she referred to as the farmhouse.

It took a leap of imagination to see this structure as a “farmhouse”. In reality, it was a single storey timber clad barn with a corrugated iron roof, a few small windows, and a dilapidated door that led into what passed as her kitchen cum living room.

It had been built by her father 60 or more years previously. After surviving the 1^st World War he had bought a few acres in the tiny hamlet and decided to raise his family there. He had died many years previously, but his daughter and wife lived on there.

Aggie and her mother lived in the most primitive conditions imaginable. They had no electricity or running water. All their water was obtained from a well just outside the back door. The toilet was a tiny corrugated iron outbuilding with a plank of wood with a large hole in it and a bucket underneath the hole.

The interior of the “farmhouse” consisted of the kitchen cum sitting room, which contained an ancient and inefficient coal fired range that was kept alight all the time. It was the only heating or cooking facility they had. In the winter, the temperature rarely rose above 10C.

Unaccountably, the room was furnished with a range of fine antique furniture, all of it now very dilapidated and wormy. There was also a piano, and on the walls, in the dim light, could be seen huge Victorian oil paintings, some of them reaching from floor to ceiling. It was almost impossible to tell what the subjects of these paintings were, as they were covered in a film of soot from the oil lamps which were Aggie’s only source of light.

There was what Aggie called a parlour, but which she mainly used as a store room, and there were two bedrooms. Aggie slept in one, and her mother slept in another.

Aggie always took pride in introducing me to Mother during my visits. This meant a visit to the bedroom, where Mother appeared to spend her entire life.

Mother had had a number of strokes. This had left her almost completely immobile, and apparently incapable of speech. I certainly never heard her say a coherent word.

It is very difficult to adequately describe Mother’s appearance. She was very obese, and very pale. Folds of flesh covered her face. Her eyes rarely opened. Her body was covered in tattered and ragged layers of old fashioned nightdresses, which remiknded me of Miss Havisham in David Copperfield. In fact, the entire experience of visiting Aggie and her mother was exactly like stepping into a Dickens novel.

Mother was incontinent, and Aggie’s solution to this was to cover the mattress with roofing felt. As well as protecting the mattress, this also served the function, she told me, of preventing Mother from slipping too far down in the bed.

During these visits, Aggie would introduce me to Mother, and then prop her up in a sitting position. Mother would open one eye to examine me, and might make some sort of noise in response. I was never sure she had any idea what was going on, but Aggie would delightedly interpret these possibly random utterances as insightful comments about the weather or current events.

Aggie tried to keep alive the dream her father had of living the good life off the land, but to be honest, she was not very good at this.  She kept chickens, and tried to grow vegetables. She had a grape vine and would attempt to make wine out of the juice come the Autumn. She once offered me a bottle, but I could not bring myself to try it.

She used to make jam, with a minimum of sugar, as it was expensive, which meant that a layer of mould would soon appear on the top. She also made various medicinal preparations using traditional recipes. One of my predecessors had once been reckless enough to try one of Aggie’s special complexion ointments, and had come out in a rash.

She and her mother lived a life of most extreme poverty. Their main source of income was their pensions, and although periodically Aggie would arrange for one or two of the cows or calves to go off to market, I suspected that the herd cost her more to maintain than the income she received from it.

Because of their isolation, several miles from the nearest shop, Aggie relied on a local grocer to deliver her weekly groceries. She had a standing order which she was fearful of changing for fear of upsetting the grocer and losing their lifeline.

A consequence of this was that she had a pack of salt delivered every week. She once showed me the stockpile of salt in the parlour. It occupied nearly half of the room. She would not entertain cancelling this part of the order “just in case”.

Aggie was very frugal and economical. If she wore out the cuffs of a shirt or blouse, she would simply cut off the sleeves up to the elbow and then attach some other sleeves using large stitches of wool. It didn’t matter whether or not the fabric matched in any way.

Despite apparently living life in the past, Aggie had a portable radio and would listen to Radio 4 constantly, so she was always up to date on national and world events, and actually had a keen and intelligent mind.

Although she had never had a formal diagnosis, Aggie probably had schizophrenia. She would often suddenly start whispering in the middle of a conversation, pointing to the ceiling and muttering under her breath about how the neighbouring farmer had fitted listening devices and was spying on her.

You may be wondering exactly what good a social worker was doing for Aggie and Mother. If I had a plan, it was to preserve the lifestyle they had chosen, and at times to deflect demands for “something to be done”. I would make sure that they had the benefits to which they were entitled, and my regular visits also monitored Aggie’s needs as a carer and provided Aggie with an outlet in which she could engage in an adult conversation.

One day, I had a phone call from Aggie. This took quite an effort for her. It meant she had to cycle the mile to the nearest public phone box.

She was beside herself. Mother had had another stroke. She needed a doctor.

I phoned Mother’s GP. I arranged to do a home visit with him.

I met him at the farmhouse and he examined Mother.

He agreed that she had had a stroke and that she needed to be in hospital.

This horrified Aggie.

“Mother won’t like it in hospital!” she wailed. “She won’t be able to hear the lowing of the cows, and the dawn chorus! She’ll pine away! She needs to stay here!”

But the doctor was clear. She was ill and needed to be in hospital. He was off to the nearest phone box to call them.

But I was thinking. What was in Mother’s best interests?

I knew for a fact that, once she was in hospital, she would never be allowed to return to the Victorian hovel that Aggie regarded as home. A district nurse would take one look at their living conditions and would refuse to allow it.

I was convinced that Mother would die in hospital if she were to be admitted.

Aggie offered Mother love and uncomplaining round the clock care in the environment that Mother had always known. So far, she had managed to keep her alive despite her poor health and extreme age. It wasn’t all about the physical environment.

I argued this case to the GP. Although he was looking at the situation from a purely medical point of view, he did nevertheless listen to me. He could see my point.

In the end, it was agreed that he would call in on Mother over the next few days to observe her progress. She would not be admitted to hospital after all.

I felt pleased. I told Aggie the good news. But she was so distressed by the threat that she felt she needed to focus this on someone.

“It’s your fault!” she said. “You’ve come here wearing grey. Grey is an unlucky colour! You’ve put a jinx on Mother! This would never have happened if it wasn’t for you!”

And despite my efforts to produce an outcome that would be best for Mother and for Aggie, she refused to see me again.

You don’t often get thanks as a social worker. But that’s all part of the job.