The last post looked at s.135(1). This one is looking at
s.135(2).
The Code of Practice states that the purpose of a s.135(2) warrant is to
provide police officers with a power of entry to private premises for the
purposes of removing a patient who is liable to be taken or returned to
hospital or any other place or into custody under the Act.
Unlike s.135(1), almost anyone can apply to a magistrate
for a s.135(2) warrant. It could be an AMHP, but it can also be a police
officer, a clinical member of the community mental health time, or a nurse from
the hospital.
The warrant applies to anyone who is liable to be detained,
for example:
Someone who has been assessed and an application made under
s.2 or s.3
Someone already detained in hospital but who has absconded
or who has failed to return from s.17 leave
Someone subject to a Community Treatment Order who has been
recalled to hospital
It should be established that the patient is refusing to be
admitted or to return to hospital and that they’re refusing entry to their
home.
Although it only requires a police officer to attend, in
practice an AMHP or a member of a community team or hospital would also
accompany the police officer. An ambulance should be arranged to transport the
patient. Normally, the police officer’s role would end once entry has been made
and the patient located.
As with s.135(1), the application has to be made to a
magistrate.
It is commonly thought that, as in the case of s.135(1),
only an AMHP can make this application.
But it is not the case. Almost anyone else can make the
application, although an AMHP service may kindly advise someone from a hospital
or community mental health team on the local procedures for applying for a
warrant.
When it comes to s.135 of the Mental Health Act, there is
the law, and then there is the reality.
I’ll look at the law first, then I’ll look at how it all pans
out in the real world.
If there are grounds to believe that someone with a mental
disorder has been or is being, ill-treated, neglected or kept otherwise than
under proper control, or is living alone and unable to care for themselves, an
AMHP can apply to a magistrate for a warrant under s.135(1).
The Code of Practice states that the purpose of a warrant
is to “provide police officers with a power of entry to private premises, for
the purposes of removing the person to a place of safety for a mental health
assessment or for other arrangements to be made for their treatment or care.”
Only an AMHP can apply for a s.135(1) warrant.
The police officer must be accompanied by an AMHP and at
least one s.12 approved doctor.
The police officer can use force if necessary to get into
the premises, and once in can remain and search the premises. The AMHP and the
doctor can decide whether to conduct an assessment then and there, or have the
patient taken to a place of safety for assessment.
Detention can last for a maximum of 72 hours. Wherever it
takes place, once the assessment has been completed, the power to detain under
the warrant ceases.
Sounds all quite straightforward, doesn’t it?
But this is the reality.
Before any decision is made to apply for a s.135(1)
warrant, an AMHP should conduct a normal assessment. This means turning up at
the patient’s house with two doctors and attempting to gain entry in order to
interview the patient in their home.
Sometimes, the patient may allow entry, but then refuse to
cooperate with the assessment, or insist the AMHP and doctors leave before an
assessment can be completed. Sometimes, the patient may simply refuse to let
the assessing team in at all.
In itself that may not be sufficient to apply for a
warrant. There also needs to be evidence to support the contention that the
patient is unable to look after themselves, or is a danger to themselves or
others, for example.
Applying for a warrant can be complicated. It used to be
that the only way an AMHP could get one was by contacting the clerk of the
local magistrate’s court and asking to see a magistrate. The AMHP would then
have to attend the court and have to wait for a break in normal proceedings to actually
see a magistrate.
In my experience, some magistrates would simply read the
application, ask a couple of questions and then provide the warrant. Sometimes,
however, they might grill the AMHP extensively before being satisfied, and
could refuse. In which case, more evidence would have to be obtained, such as
making further attempts to conduct an assessment.
In the AMHP hub where I used to work, the region was
covered by a virtual magistrate’s court. If it was necessary to apply for a
warrant, the AMHP who had assessed would complete the application for the
warrant, and then the senior practitioner on duty, who was also an AMHP, would
then book a slot online and the application with supporting evidence would then
be sent by secure email to the court.
The senior practitioner would then receive a phone call at
an allotted time and answer any questions the magistrate might have. The
warrant would then be sent by secure email to the AMHP hub. All that can take
several days.
But then, in order to execute the warrant you first have to
get all your ducks in a row.
The AMHP needs to get two s.12 doctors. The AMHP needs the
police to attend at the same time as the AMHP and the doctors.
The AMHP has to make sure that a place of safety, normally
the s.136 suite at the local psychiatric hospital, is available, if it is
decided to remove the patient from their home for the assessment.
And the AMHP also needs to have identified that a bed is
available if it is decided to detain the patient for assessment or treatment.
Oh, and let’s not forget the ambulance, which would be
required if the patient was being taken to a place of safety or being admitted
directly to hospital from their home.
A warrant normally lasts for 28 days. And you might need
that length of time.
I’ve even known warrants to run out before they can be
used.
"About
to take a massive overdose. See me now or see me in hell."
I
knew she wasn’t messing about. Grendel was in charge.
I
went straight out to see her, taking a female colleague with me. I know when
not to go alone.
When
we arrived at her house, her front door was ajar. I had a horrible feeling of
déjà vu.
We
went inside and called, but there was no answer. In the kitchen, we found a
pile of bubble packs of tablets. They were all empty.
We found Perdita in the living room. She was staring blankly ahead of her.
“Perdita,”
I said, “What’s going on?”
“Perdita,”
she repeated, her thousand yard stare unwavering. “What’s going on?”
“Perdita,
how many tablets have you taken?”
“Perdita,
how many tablets have you taken?”
She
seemed to be in a dissociative state again. It was clear that it was not going
to be possible to reason with her.
I
rang 999 and asked for an ambulance to attend because of the likely overdose.
Perdita
started to put on her boots, and fearing she was intending to leave I asked for
the police to attend as well.
As
she leaned forward to put her boots on, I could see that she had a knife tucked
into her back pocket.
I
was worried about her self harming, so I reached out and quickly removed the
knife.
Perdita
objected to this. She stood up and spun round, lunging at me. I saw she had
another knife in her hand. I leapt backwards and I was aware that the point of
the knife penetrated my arm, drawing blood.
I
couldn’t get to the front door, so I told my colleague to run upstairs. I
followed her.
In
the process, I dropped the other knife. Pausing briefly to retrieve it, Perdita
came after us.
My
colleague ran into one of the bedrooms and barricaded the door. I went into another
bedroom and slammed the door behind me, keeping hold of the handle.
Perdita
tried to open the door, then started to pound the other side with the knives. The
blades started to penetrate and the flimsy door began to bow inwards. I put a
foot up against the edge of the door, and fished my phone out of my pocket.
I
realised that I had not hung up and the operator was still on the line.
“Are
you all right, sir?” she was saying, presumably having heard a commotion.
“No
I’m not,” I said as calmly as possible. “Could you send assistance as soon as
you can, Perdita has knives and is attacking me.”
“And
what is the address of the incident?”
I
gave the address.
“Do
you have the postcode?”
No,
I didn’t have the postcode to hand.
“Is
the address Acacia Road or Acacia Close, sir?”
“It’s
Acacia Close. Could you send someone as soon as possible, because I’m trapped
in a bedroom and I don’t think the door is going to hold for much longer.”
By
now, I had gone into some sort of dissociative state myself. I found myself
observing the entire scene as if I were watching a TV programme. This is
remarkably like the “Here’s Johnny!” scene in The Shining, I remember thinking
dispassionately. How interesting.
The
operator was speaking again. “We can’t seem to find Acacia Close on our
system,” she was saying.
“I
assure you I’m in Acacia Close, and I need a police presence here as soon as
possible! Just tell the police to come to Perdita’s house. They all know where
she lives!”
The
pounding on the door stopped. I heard Perdita go to the other bedroom door and
try to get in there, but fortunately without success. Then I heard her go
downstairs, and it all went quiet.
I
gingerly opened the door and peered out. There was no sign of Perdita. I crept
along the landing to the other bedroom. My colleague let me in. She was
absolutely terrified.
“I’ve
called the police,” I told her. “They should be here any minute.”
I
went warily down the stairs. I could see Perdita sitting motionlessly in the
living room, rocking slightly. I went outside into the street.
At
that point, several police cars arrived, followed by an ambulance. They had at
last found Acacia Close, having presumably first been to Acacia Road, Acacia
Drive and maybe even Acacia Avenue.
I
stood at a discrete distance while several police officers went into the house.
I heard a brief scuffle, and then they led Perdita out in handcuffs. She lifted
her head and saw me.
“Oh
hello, Steve”, she said, as the police led her away, “you took your bloody time
getting here!”
A change of
staff at the CMHT meant that I became Perdita’s care coordinator. Perhaps
surprisingly, in view of my attempt to section her, she didn’t object to this.
In fact, she told me that because of the way I had handled that event, she felt
she could trust me.
I got to know
Perdita quite well. Splitting her self into several discrete personalities was
her way of managing the intolerable emotions which arose as a result of her
severe childhood abuse. There were certain triggers to her “checking out”, as
she described this process of extreme dissociation, during which one or more of
her other “parts” manifest themselves. These usually involve certain stressful
situations which she is unable to cope with, as they touch raw nerves relating
to betrayal.
The DSMIV
defines Dissociative Identity Disorder as “the presence of two or more distinct
identities or personality states”. These identities or personality states must
recurrently take control of the person's behaviour. The patient must also
experience an “inability to recall important personal information that is too
extensive to be explained by ordinary forgetfulness”. In my professional career
I have only encountered three people with this diagnosis.
Having seen
Perdita manifesting these different personalities, I was convinced that she was
not putting on these episodes, and genuinely had no conscious control over what
happened when the other parts took over.
I have met
Mavis, who is charming and polite, and a pleasure to work with. I have also met
Mary, who is a small child, who can be mischievous and playful. I had heard all
about Grendel, the really angry and destructive one, but had not yet met her.
I worked with
Perdita on the basis of damage limitation. I tried to help her to manage her
mood swings. We worked together to identify and avoid triggers for her
dissociative episodes. We especially tried to keep Grendel under control.
But things
don’t always work out.
One morning, I
had a call from Perdita.
“I’ve been let
down big time by someone.” She told me the details. “I can feel myself going.
I’m afraid I’m going to check out. I’m afraid Grendel’s going to take over.”
We talked this
through for a few minutes. I suggested a range of risk management strategies
that we had put into her care plan. But I had the feeling that “checking out”
was going to be unavoidable.
A few minutes
later, I got another call. This call consisted entirely of maniacal laughter. I
guessed that it must be Perdita. I tried to get through to her, but the
chilling laughter went on and on and on. After a while, I realised I was not
going to get any sense out of her, and put the phone down.
The phone rang
again. More scary laughter.
“It’s Grendel
here,” she said. “I’m having a great laugh! I’ve really cut the bitch to pieces
this time!” Then she hung up.
I felt I had
to respond quickly. I rang the emergency services, asking for an ambulance and
police to attend, then went to see her, taking one of my colleagues with me. It
was going to be necessary to concentrate on limiting potential damage – damage
to Perdita, damage to her house, damage to her daughter, damage to other
professionals…
We could hear
the laughter from outside the house. The front door was ajar. I went straight
in, and we cautiously entered the living room.
Perdita was
sitting on the sofa, rocking backwards and forwards as she whooped with
laughter. She had an open pair of scissors in one hand, and her other arm was
covered in lacerations. There was a fair amount of blood, so it was hard to see
how serious the cuts were.
“Give me the
scissors, please, Grendel,” I said as calmly as I could.
“You’ll have
to give me three good reasons!” Grendel replied, and slashed several more times
at her arm.
“Give me the
scissors, Grendel,” I repeated as calmly as I could.
“Give me three
good reasons!”
“I’m not
getting into any games. Just give me the scissors.”
I waited
nervously, keeping at a safe distance, until the ambulance arrived, and two
paramedics came into the room. The police arrived almost at the same time, and
the room was soon full of people in uniform.
Grendel loved
it. “You’re very tall, aren’t you?" she said seductively to one of the
paramedics, who was indeed exceptionally tall.
He asked to
look at her arm, but instead, she slashed away at it again, occasionally
holding the blade against her throat, as if she were holding Perdita hostage.
“Give me the
scissors,” I said again, in as gentle and unthreatening a way as I could
manage. The police and paramedics kept quiet, waiting to see what would happen.
“You’ll have
to give me three good reasons!” she said again.
I was going to
have to play her game after all.
“OK, Grendel.
First, you’re hurting Perdita. Second, Ophelia will be upset if she finds you
like this.” (Ophelia, by now 14, was still at school.)
“That’s only
two reasons!” Grendel cried, giving her arm a few more slashes.
“And third,
you’re scaring the hell out of me!”
I have found
that being entirely honest can work well in these situations.
She thought
about this for a moment.
“Okay, fair
enough,” she replied, and threw the scissors onto the floor. I kicked them
away, and one of the police picked them up.
“Grendel, I
really need to speak to Perdita.”
“Perdita’s
gone away. You’ve got me!”
“I need
Perdita. We need to get your arm sorted out. And Ophelia will be home from
school soon, and I don’t want her to find all this.”
There was a
pause. Perdita’s face sagged and went blank. She slumped forward. Then her head
snapped up and the eyes of a small lost child stared into mine, tears running
down her cheeks. She looked absolutely terrified, staring with fear at the room
full of people.
“Hello there,”
I said gently. “Can I see Perdita. Or Mavis. Either of them would be good.”
Her face went
blank again and her eyes closed for a moment. Then her face changed. She opened
her eyes.
“Oh, hello, Steve,”
she said, a little surprised, looking around and taking stock of things. She
looked at her arm. “Is it Grendel? Has she been out?”
I recognised
Mavis. She would do. She would be able to sort things out. She rolled herself a
cigarette and then smoked it while she allowed the paramedic to examine her
wounds, and clean and dress them. “My, you’re tall, aren’t you?” she observed.
After all, Mavis had not seen him before.
“Steve,” she
said. “It’s so nice to see you again.” It was uncanny, but Perdita’s face,
mannerisms, and even accent, were quite different when Mavis was in charge.
I negotiated
with her. I asked her to stay in charge for the time being. I told her that I
would come back later in the afternoon when her daughter was due home, to see
Ophelia and explain what had been happening (she was, sadly, used to these
episodes), and to check that Perdita/Mavis was safe and in control. Mavis
listened to me obediently, making meticulous notes from time to time.
My analysis of
the situation went something like this. Once Perdita or "Mavis", the
sensible one, can be induced to return, the crisis is usually over.
"Mavis" herself was confident that she could remain in control. Her
wounds did not require hospital treatment.
I had from the
beginning worked with Perdita explicitly on the basis that hospital admission
was best avoided during these crises, and the Crisis Team also had little role
to play in these situations, once the immediate crisis had passed. This was
written into her care plan.
It would also
generally not be appropriate to use the Mental Health Act, and would undermine
any trust Perdita had in me.
So we worked
out an immediate plan. The police would notify Children's Services of the
incident, who could be mindful of Ophelia’s needs. Ophelia could stay with her
father if required, but would invariably prefer to stay with her mother, and
would be under less distress if she was with her. It would not be in the
immediate interests of Ophelia to separate her from her mother.
The police and
ambulance crew withdrew. I said goodbye to Mavis and reminded her I would be
back later to check up on the situation.
As Mavis
pulled deeply on another cigarette, she said to me: “Steve, when you see
Perdita next, could you try and persuade her to give up smoking? It is such a disgusting habit.”
Perdita had
suffered horribly for most of her life. She had been abused physically,
sexually and emotionally as a child, and as an adult had gone from one abusive
relationship to another. Along the way she had developed a wide range of coping
strategies, including cutting, overdosing, denial of food, and dependence on
alcohol and drugs.
She had also
acquired a range of alternate personalities, some of whom coped well and
appeared “normal”, and some of whom you would not like to meet on a dark night.
Or even in broad daylight, come to that.
These
personalities all had names. There was Perdita of course, with all her problems.
But there was also Grendel. Grendel was extremely unpleasant. She would swear,
shout, scream, throw things around, gouge at her arms, take massive overdoses,
and swing her favourite weapon, a baseball bat, at anyone she happened not to
like. Which was everyone.
And then there
was Mavis, a very sensible, impeccably behaved woman who appeared when she had
to in order to clear up the mess left by Grendel.
Perhaps more
surprisingly, she also had a charming, polite and remarkably well adjusted 12
year old daughter called Ophelia. Perdita had always done her best to protect
her from her behaviours, not always successfully. Children’s Social Services
kept a wary eye on Ophelia.
Perdita had
been involved with psychiatric services for most of her adult life, and had
acquired a range of psychiatric diagnoses, most notably Dissociative Identity
Disorder.
Her community
nurse was a very experienced woman who generally managed to help Perdita keep
her coping behaviours under control. However, a mix up with her methadone
prescription had destabilised her, and Grendel was beginning to emerge. Perdita
began to write a series of suicide letters, and confided to her nurse that she
had been taking controlled but potentially dangerous amounts of paracetamol.
Her nurse was becoming increasingly concerned about the welfare and safety not
only of Perdita but also Ophelia.
After a couple
of weeks, during which things continued to worsen, she arranged for a home
visit with Perdita’s psychiatrist, who considered that Perdita ought to go into
hospital. Perdita refused to consider this. The Crisis Team were called out to
assess for home treatment, but when they visited, Grendel answered the door,
baseball bat in hand, and told them to go away. Although not using those words.
They went away.
That was when I
was asked to get involved.
Armed with a S.2
recommendation from Perdita’s psychiatrist, I went out to see Perdita with
another S.12 doctor and her community nurse.
I wasn’t sure
whether it was an angry Perdita or a subdued Grendel who answered the door and
reluctantly let us in. Either way, there was no sign of the baseball bat.
She was not
amused when I told her why we were there. She became instantly hostile, telling
us to leave with an impressive selection of insults and swear words. I continued
to explain the importance of allowing us to interview her. In response she
turned up the TV so loudly that it was impossible to continue.
We sat
patiently for a few minutes, and after a while she turned it down. This gave me
an opportunity to speak.
“Perdita,” I
began, “This is really important. You’re really struggling at the moment.
You’re not in control. This isn’t fair on Ophelia. We have to keep you both
safe.”
I had by now
concluded that Perdita was so chaotic that there was no alternative but to
detain her in hospital. The doctor and I left the house and retreated to my car
to complete the paperwork.
I went back in
to tell her. But Perdita had switched. The aggression and hostility had
evaporated. In its place was a spectacularly melodramatic level of contrition.
“I’m begging
you not to send me to hospital! I’m begging you on my knees not to put me
away!”
She did indeed
kneel on the floor in front of me, gazing beseechingly into my eyes, tears
flowing freely down her cheeks. “Please, please, please, let me stay. Look,
I’ll cook a nice meal for Ophelia, we’ll sit down together and watch a DVD, and
then I’ll take my medication and go to bed.”
This level of
apology and contrition was actually worse to handle than her insults and
aggression.
But I had made
a decision. I had completed my application. She was now officially liable for
detention under the Mental Health Act. The risks of not admitting her to
hospital were high. She had switched once. She might switch back at any time.
Surely it was too late to go back on all this.
But then
again...
It seemed Grendel
had gone for the time being. The threat of admission seemed to have brought
Perdita back in control. She was making reasonable plans for the immediate
future. And what would be the effect on Ophelia of being separated from her
mother?
So in the end
I decided to use the discretion given in S.6(1)(a) MHA – this gives an AMHP 14
days to complete the admission. It’s not actually used very much – in nearly
all cases, especially S.2, an admission follows as quickly as a hospital bed can
be arranged.
I did a deal
with Perdita. She would cooperate with us. She would allow us to help her keep
herself safe. She would tell us if she wasn’t managing. She would not put
herself or Ophelia in danger. I would visit her the next day to see how she was
doing. She agreed to all this and was embarrassingly grateful. And when I
visited the following morning, despite still feeling low and sad, she was calm,
collected, polite and cooperative.
I continued to
monitor her closely over the next week. Things continued to improve. The crisis
was over.
Relatives are often
unaware of their right under s.13(4) MHA to request an assessment of their
relative under the Mental Health Act.
Those who are
aware, are often under the mistaken belief that this will inevitably trigger a
visit to their relative by an AMHP and two doctors.
S.13(4) states:
(4) It shall be the
duty of a local social services authority, if so required by the nearest
relative…, to make arrangements … for an AMHP to consider the patient’s case
with a view to making an application for his admission to hospital; and if in
any such case that professional decides not to make an application he shall
inform the nearest relative of his reasons in writing.
The Reference Guide
has very little to say to enlarge upon this, except to state that “the nearest
relative can require the local authority (verbally or in writing)…to arrange
for an AMHP to ‘consider the patient’s case’ including whether there is a need
for compulsory admission to hospital.”
The only thing the Code
of Practice adds is to state that the local authority must respond not only to
a direct request from the NR, but also to a request “on behalf of” the NR.
So what does all
this mean to the nearest relative and to the AMHP receiving such a request?
The NR doesn’t need
to put the request in writing, but can make a request by phone. They can also
ask someone else to make a request, such as another relative, or their GP, and this
must be considered as if it were a direct request from the NR.
The local authority
AMHP service has to respond to this request. But this does not necessarily mean
that they will conduct a formal assessment. An AMHP only has to “consider the
patient’s case”. If, having done this, they do not think that an assessment is
merited, there is no requirement to assess.
From the AMHP point
of view, there may be many reasons why it is not appropriate to assess the
patient under the MHA. A typical reason may be that other arrangements are
being, or have been made. This might include a GP referring the patient to the
local crisis team for assessment. It would therefore be wrong to pre-empt this
assessment, under the principle of the least restrictive option.
Another reason
might be that the patient is already involved with a community mental health
team, who are managing the patient’s condition and would not welcome an AMHP’s
intervention, or do not consider that a formal assessment is necessary.
It may be that,
while the relative is concerned about the patient, the patient has not actually
seen a doctor recently. In which case, I would always advise the relative that
they should arrange for the patient to see a doctor first.
In some cases, the
request may be “mischievous”; in other words, the relative may have made
frequent or recent requests for their relative to be assessed, and unless there
has been any significant changes in the patient’s condition, it would be
oppressive to keep making fresh assessments.
I recall one such
case, where the mother of the patient, a pregnant single parent with a young
child, reported that she was expressing a range of alarming paranoid delusions,
especially around her unborn baby. The ex-partner of the patient also
corroborated this.
I went out with the
GP and a psychiatrist, to find her preparing tea for her daughter and a school
friend. Everything appeared completely normal, and she spoke politely and
rationally to us for about an hour. We were unable to elicit any symptoms of
mental illness, but based on the reports of the relatives, with heavy hearts we
decided to detain her, and she was detained under s.2 for 28 days.
During that time
she was not given any medication, and did not provide any evidence to ward
staff of any mental illness.
On another
occasion, I received a request from the husband of a woman. They were recently
separated. His concerns seemed to boil down to the view that since his wife did
not want to talk to him, and would not agree to what he wanted to happen to the
property and children, then she must be mentally ill. I did not respond to this
request.
Once an AMHP has
considered the case, and has either decided not to undertake a formal
assessment, or has assessed and has decided not to detain, they have a legal
requirement to write to the referring relative. These letters have to be very
carefully written. The Code of Practice states: “Such a letter should contain,
as far as possible, sufficient details to enable the nearest relative to
understand the decision while at the same time preserving the patient’s right
to confidentiality.”
The Mental Health Act 1959 first introduced the concept,
role and statutory rights and duties of the Nearest Relative applying to
patients subject to the Act.
The 1983 Act and the 2007 Act hardly made any changes. In
certain circumstances, the NR under the Mental Health Act can be displaced, and
replaced with an acting NR.
The Code of Practice states: “An acting nearest relative
can be appointed by the county court on the grounds that: the nearest relative
is incapable of acting as such because of illness or mental disorder; has
objected unreasonably to an application for admission for treatment or a
guardianship application; has exercised the power to discharge a patient
without due regard to the patient’s health or wellbeing or the safety of the
public; is otherwise not a suitable person to act as such; or the patient has no
nearest relative within the meaning of the Act, or it is not reasonably
practicable to ascertain whether the patient has a nearest relative or who that
nearest relative is.”
So - is there any guidance to the practicalities of
executing the role of acting nearest relative for professionals?
While displacing a patient’s NR and appointing an acting NR
is not a very common procedure, it happens often enough that all local
authorities have detailed written procedures for how AMHP’s may displace
nearest relatives. However, none of them appear to give written guidance on
exactly how an individual appointed to take on that role should discharge that
duty.
Neither the Code of Practice nor the Reference Guide have
anything say about how someone appointed to act as a nearest relative should
act. The MHA itself makes the only reference to specific duties, in Sec.116.
Sec.116(1) states: “Where a patient to whom this section applies is admitted to
a hospital ... the authority shall arrange for visits to be made to him on
behalf of the authority, and shall take such other steps in relation to the
patient while in the hospital as would be expected to be taken by his parents.”
Sec.116(2) defines to whom this section applies. It
predominantly applies to children and young people, but it also includes “(c) a
person the functions of whose nearest relative under this Act are for the time
being transferred to a local social services authority.”
Richard Jones in the Mental Health Act Manual has little to
add to the bare words of the MHA. However, David Hewitt, the author of The
Nearest Relative Handbook, says that the acting nearest relative “must be
treated as if they were the substantive nearest relative”. He interprets this
to mean that they should exercise all the nearest relative rights,
interestingly including the right to delegate nearest relative status. He
points out that to act as a patient’s representative is not the identified role
of the NR.
This means that the local authority appointed acting NR is
a distinct role from that of the Independent Mental Health Advocate (IMHA). He
acknowledges that the role of the acting NR is ill-defined, but points out that
this is also the case for a normal NR.
The NR has some wide ranging powers and duties. These
include the right to be consulted regarding decisions being made by
professionals concerning the patient, the right to make an application in their
own right under Sec.2, 3, 4 or 7, and the right to request that an AMHP assess
the patient under Sec.13(4) MHA.
If the acting NR is an AMHP employed by either the local
authority or the local MH Trust, it is actually quite difficult to see how they
might comfortably exercise some of these powers and functions.
Indeed, David Hewitt points out that there is considerable
scope for conflicts to arise with the role of the AMHP, the role of the IMHA,
the wider advocacy role, and with the role of the Director of Adult Services.
He has suggested that possible solutions to these conflicts could be by
neighbouring local authorities having reciprocal arrangements to provide this
role, or even to use some sort of external independent provider.
One day, while I was still working in a Community Mental
Health Team, one of our nurses returned to base in tears. She had been visiting
one of her patients, a woman with bipolar affective disorder. She knew she was relapsing
and had been trying to support her and her relatives and had been striving to
avoid a hospital admission for several days.
The patient had shouted at her. She hurled very personal
insults at her. She berated her for failing in her job, for letting her down,
for not being a good enough nurse. It hit a nerve with my colleague. It
triggered her deepest fears. Was she a bad nurse? Was she incompetent? Could
she have done more to prevent this crisis? Was she so useless? Should she hand
her notice in right away?
The team did their best to support and comfort her. She was
a good enough nurse. She had done her best. She had seen a relapse coming, and
she had done everything she professionally could to avert it.
This incident made me think about how mental health and
other care professionals survive the job. It made me think about how I had
managed to continue to function as a (hopefully) effective social worker for four
decades.
In my first few months as a social worker, I was allocated Gwen.
She and her children were very well known to services and had had many social
workers over the years. I was the latest.
I knocked a little nervously on her front door, and when she
opened it I introduced myself.
She looked me up and down and did not seem very impressed.
“Well, you’d better come in I suppose, she said, scowling.
I followed her into her front room. She closed the door
behind me, took a deep breath and then proceeded to treat me to a tirade of
complaints and insults which continued for at least 30 minutes. Throughout this
deluge of vituperation, I stood silently and listened diligently.
I stood there mortified. Judging by her comments, I was the
very worst and most totally useless social worker in the entire world.
While this destruction of my character continued, it suddenly
occurred to me that this had nothing to do with me at all. She was ventilating.
She was expressing her anger and despair at the system, and at the world in
general. I just happened to be conveniently there. It wasn't personal. It
wasn't about me at all.
I learned right then that if I were to survive as a social
worker, I had to separate the professional persona and my professional
functions from the personal, from the individual me. As I realised this, I
suddenly felt a lot better. I waited patiently for her to finish, then got on
with the job in hand. She never shouted at me again.
It's a simple lesson, but not necessarily easy to learn. But
it helped me to deal with the often hostile and verbally aggressive people who
I have had to assess under the Mental Health Act.
It has even helped me to remain mentally intact and
sufficiently detached to manage the few occasions when I have been physically
assaulted during the course of my work.
This video is about an unusual dilemma I found myself in
while working in a Community Mental Health Team.
One day, I was asked to follow up a patient who had
recently been discharged from the local psychiatric unit.
Elaine was 20 years old. She had been admitted after taking
an overdose. Looking at her discharge notes, I saw that she had been born with
foetal alcohol spectrum disorder.
She was a pleasant and polite young woman, but I could see
that she had some of the facial characteristics often associated with the
disorder.
She told me that she had had some physical problems
associated with her congenital issues and had needed some heart surgery as a
young child. She told me that she had been brought up by her father, and had never
met her mother.
She also told me that she had always been impulsive and had
taken the overdose after a disagreement with her boyfriend. She regretted it
and did not think she would do it again.
Now here’s the thing. Although I had never met Elaine
before, I knew a lot about her, from even before she was born.
Because 20 years previously I had worked with her mother,
Janine.
Janine had had a serious alcohol problem. She had been in a
very unstable relationship with a university lecturer. They were living
together, but had frequent arguments, some of which had resulted in the police
being called out. All of this culminated in her being thrown out of his house
one evening.
At the time, I had helped her get a room in the local
hostel and had also attempted to work with her to manage her alcohol problems.
It was then that she had discovered she was pregnant.
She continued to drink very heavily and was very erratic
about engaging with antenatal care. Consequently, a child protection case
conference was convened.
Because of the high risk of the baby being born with foetal
alcohol spectrum disorder, the unborn child was placed on the child protection
register. It was resolved that the child would be made subject to an emergency
protection order at birth.
Despite my efforts to encourage Janine to engage with
antenatal and alcohol problem services, she continued to drink, and inevitably,
when Elaine was born, she was removed from her.
Her father managed to obtain custody, and Janine then
disappeared.
Now here was the dilemma, which had only arisen because I
had worked in the same area for so many years.
Elaine had lived with her father more or less since birth,
but she had never met her mother, and knew nothing about her.
But I had known Janine and was in the unique position of
being able to give Elaine some information about her birth mother and the
circumstances of her birth.
However, I was also aware of issues of confidentiality. I
shouldn’t divulge any information about a service user to another person
without their permission.
So should I just sit there and keep quiet about it?
Or should I tell Elaine that I had known her mother and offer
to tell her something about her?
In 2022 the Norfolk and Suffolk Mental Health Foundation
Trust failed a Care Quality Commission Inspection for the fourth time since its
ill considered and disastrous reconfiguration in 2013, the only Mental Health
Trust in the country to have so abjectly failed in its responsibilities to
provide an efficient and effective mental health service for so long.
Its failure was inevitable once it had gone ahead with a
massive reconfiguration of service provision 10 years ago. It disbanded
locality based community mental health teams, relocating them in a few
centralised locations, inevitably meaning that those teams were less responsive
to community needs, and had to travel further to have face to face contact with
services users, making the service innately less efficient.
They also had the brilliant idea of encouraging the most
experienced staff to take early retirement or redundancy, then expecting them
to re-enlist on lower pay grades. Not only was this very expensive, but it left
a huge shortfall in expertise, with an expectation that lower paid and less
experienced staff would take on larger caseloads with more responsibility.
Then to top it all, the Trust systematically closed many
inpatient beds, making it necessary to use expensive private hospitals to
provide an often inferior service many miles away.
Throughout the 25 plus years that I worked in
multidisciplinary community mental health teams, I always maintained that you
could close beds, or reduce community based staff, but to do both would result
in disaster. The Norfolk and Suffolk Trust proves the evidence of the truth of
that.
The Trust has continued to perform with dazzling
incompetence. In June 2023 it was revealed that a report into patient deaths in
the Trust had been toned down in an attempt to deflect attention away from the
failings of senior management. In the first draft, it was said that there had
been "poor governance" in the way deaths data was managed, with
governance also being called "weak" and "inadequate".
But the final report released to the public did not have
these descriptions.
It was then discovered that the Trust had presented grossly inadequate statistics relating to the number of children known to the Trust
These showed that more than 4,000 children were on waiting lists for mental
health assessments, with more than 1,000 apparently waiting longer than a year,
but they had included 3,000 other cases, mainly adults with ADHD.
While the current management in the Trust appears incapable
of doing anything to improve its performance, early evidence for chronic
mismanagement goes back at least two decades, to a time when the Trust was then
known as the Norfolk and Waveney Mental Health Partnership NHS Trust.
A prime example is the case of Richard King.
On 7th August 2004, Richard King stabbed his stepfather,
John West, 11 times, killing him.
Richard King had a diagnosis of paranoid schizophrenia and
had been a patient of the Trust since 1991.
He was first assessed under the Mental Health Act in
December 2002, when he was detained under s.2 for assessment. He was discharged
after only three days.
Between then and 2004 there were a total of 8 admissions to
hospital, mainly informal, but some under s.2 or s.3 of the Mental Health Act.
He frequently reported paranoid delusions, and there was increasing concern
about the safety of his wife and others.
On 15th July 2004, Richard’s social worker, who was also an
Approved Social Worker, the predecessor to an AMHP, received a call to say that
his wife was very upset and Richard had locked her out of the house. She
visited, and as she knew him well, she was able to calm the situation somewhat.
Richard agreed to an informal admission, and the social worker, accompanied by
a police officer, and with a police car following, took him to hospital.
After a few days, Richard was allowed home leave at his
request. He was in contact with the home treatment team during that time. After
11 days he was discharged without being seen by doctors at the hospital.
Less than two weeks later he killed his stepfather.
On 21st January 2005, he was found guilty of the murder of
John West and was detained under s.37/41 Mental Health Act.
The Norfolk and Waveney Trust arranged for what was
described as an independent inquiry into this serious incident. The Inquiry
reported in June 2005.
One of its key conclusions was this:
“It is very probable that Richard King would not have been
in a position to kill Mr West had he been correctly admitted under Section 3 of
the Mental Health Act 1983 in July 2004. This would have allowed for a proper
risk assessment and a mental state examination to be completed to the required
standard during the course of admission. It would also have prevented the
discharge being enacted without the patient being seen. He would not have been
discharged or given leave until it was considered safe to do so.”
A daylong meeting was subsequently held in which all of
Norfolk’s Approved Social Workers were present, to feed back the findings of
the report and make practice recommendations in response to its conclusions.
This is where I make a confession. I know exactly what
happened at this meeting, and the reaction of those present because I was
there. I was one of those ASW’s.
The ASW’s were not happy about the recommendations. It was
felt that undue blame was placed on the ASW and on the community nurse who had
been involved in Richard King’s care in the community, while little was said
about the role of psychiatrists in allowing him to be discharged without having
been seen.
It was considered that the ASW who had arranged for
Richard’s informal admission had acted competently and in accordance with the
letter and spirit of the Mental Health Act, seeking the least restrictive
option. The ASW’s home visit was not initiated as part of a Mental Health Act
assessment, and since Richard had agreed to an informal admission, there had
been no need to conduct a formal assessment. Even if such an assessment had
taken place, it would have been unlikely that detention under s.3 would have been
considered at that point. It might have been more usual to admit under s.2 for
assessment.
Unison, the local government union, described the report as“flawed”, contained factual errors and misunderstandings, and had unfairly
scapegoated social workers.
The local MP was also highly critical of the report, and Indeed,
there was so much dissatisfaction that eventually, a properly independent
inquiry was convened.
The report is too long to comment at length on its
findings. However, the report noted that the social worker “did not regard
herself as working within an effective team given the reception she received
when arriving at the hospital and the subsequent abrupt discharge, without
consultation with the community staff.” It also noted that an internal
investigation had found that the social worker “had not breached departmental
policies and procedures or acted unlawfully in failing to use the Mental Health
Act on this occasion.”
The Inquiry further concluded that “We are not in agreement
with findings of the previous panel in this regard. A s.3 could have been
arranged at any time if Richard King had tried to leave the hospital. It was
not.”
This inquiry also considered at length the nature and
substance of the first inquiry.
It noted that the first inquiry was not independent of the Trust,
and it did not comply with the appropriate guidance.
In relation to the first inquiry’s laying blame at the door
of the social worker, the second inquiry was clear:
“We cannot agree with the inquiry’s conclusion, that had
Richard King been detained under s.3 he would probably have spent longer in
hospital and would not have been given early home leave. Scrutiny of previous
admissions would have demonstrated that his admissions were, with one
exception, extremely short whether voluntary or involuntary. He had left the
hospital without leave on other admissions. In our view, the panel reached its
opinion on this point against the weight of the evidence.”
The second inquiry was also critical of the way that the
Trust handled the aftermath of the murder of John West.
It observes:
“Several members of staff that we interviewed told us how
they were affected by criticism from the first inquiry and were not given any
formal support to help them cope with the devastating effect of public
criticism. While some moved to different posts and some were told of
competencies that should be achieved, no one received any specific training to
address deficits in their practice. Several felt victimised… There was no
indication that the Trust had helped staff to prepare for the external inquiry and
support them through the process.”
After all these years has the Norfolk and Suffolk Mental
Health Foundation Trust learned the lessons of the past sufficiently to make
the profound changes to its performance needed? In view of ongoing criticism
and scrutiny by the press and the BBC, right up to when I posted this video in
September 2023, I fear not.
S.117
of the Mental Health Act 1983 stipulates the important duty for local
authorities and the NHS to provide aftercare for patients who are ordinarily
resident in their area and have been detained for treatment under s.3 (as well
as some Part 3 sections relating to patients convicted of criminal offences).
Over the years, local authorities have often sought to
shift this responsibility. This is usually because the cost of providing
residential aftercare can be extremely expensive. I have covered some of the
case law arising from these disputes on the Masked AMHP blog.
Often these disputes have arisen due to the interpretation
to the term “ordinarily resident”.
In order to reduce the need for local authorities to go to
the High Court to challenge decisions relating to aftercare, the Care Act 2014
amended s.117 MHA with the intention of clarifying the definition of
“ordinarily resident”.
S.117(3)(a) laid this responsibility on the services where:
“if, immediately
before being detained, the person concerned was ordinarily resident in England,
for the area in England in which he was ordinarily resident”.
This duty then continued until it was agreed that there was
no further need for aftercare services to be provided.
This was generally interpreted as meaning that the local
authority where the patient was living at the point of their first detention
under s.3 retained the responsibility for s.117 aftercare regardless of where
the patient might be living at the time of any subsequent detention under s.3.
This brings me to the case of JG, who was the patient for
whom a dispute arose between Worcestershire and Swindon over who was
responsible for providing aftercare in her case.
JG had a diagnosis of schizoaffective disorder and was
ordinarily resident in Worcestershire. In March 2014 she was detained under s.3
in that area.
As it was deemed that she lacked the capacity to make
decisions about where she should live following discharge, it was arranged for
her to be placed in a care home in Swindon, near to where her daughter lived.
In May 2015 she was admitted to a hospital in Swindon under
s.2 MHA, and this was subsequently detained under s.3.
A dispute arose between Worcestershire and Swindon over
where she was “ordinarily resident” at the time of her second detention under
s.3, and therefore who was then responsible for aftercare.
The dispute was first considered by the Secretary of State,
who concluded that JG was ordinarily resident in Swindon and therefore they
were the responsible local authority. This was in accordance with guidance on
interpretation of ordinary residence.
Swindon then requested a review of this decision, at which
point the Secretary of State reversed the decision, concluding that
Worcestershire was in fact still responsible.
Guess what? Worcestershire went to the High Court to
challenge this decision, and in 2021 the judge overturned this decision,
reasoning that:
“JG was ordinarily resident in Swindon immediately before
the second detention so that the second discharge triggered a duty on Swindon
to provide after-care services for her; that it could not have been intended
that Worcestershire’s duty to provide after-care services consequent on the
first discharge should continue in parallel once Swindon’s duty had been
triggered; and that section 117 should therefore be construed as imposing the
duty to provide after-care services on Swindon alone from that point.”
But that wasn’t the end of it. This time the Secretary of
State appealed against this decision to the Court of Appeal. They found that Worcestershire’s
duty to provide aftercare was still continuing, despite the subsequent s.3
detention, since no decision had been taken that aftercare was no longer
required.
So of course Worcestershire then appealed to the Supreme
Court, who heard the appeal in April 2023 and published its decision on 10th
August 2023.
Worcestershire’s reasoning was that its duty to provide
after-care services for JG under section 117 ended upon the second discharge,
or alternatively that the duty ended at the start of the second detention.
The Secretary of State’s reasoning was that
Worcestershire’s placement of JG in a care home in Swindon did not change where
she was ordinarily resident, which as a matter of law continued to be in
Worcestershire.
The Supreme Court concluded that:
"the duty under section 117(2) to provide after-care
services automatically ceases if and when the person concerned is detained
under section 3 … In this case, therefore, Worcestershire’s duty to provide
after-care services for JG ended upon her second detention. Upon the second
discharge a new duty to provide such services arose. Which local authority owed
that duty is determined by section 117(3) and depends on where JG was
ordinarily resident immediately before the second detention."
So in the end, it was concluded that Swindon was, after
all, responsible for providing aftercare for JG.
Perhaps what this case highlights is the importance of
legislators to ensure that the wording of legislation and statutory guidance
should be as clear and as free of ambiguity as possible.
Will this decision finally put an end to such disputes,
which in themselves can cost local authorities a lot in legal expenses and
possibly places the subjects of the appeals in a limbo lasting several years?
