The Mental Health Act Review

Professor Sir Simon Wessely, Chair of the MHA Review

The Mental Health Act Review, chaired by Professor Sir Simon Wessely, was finally published on 6^th December 2018.

I naturally have a particular interest in the Mental Health Act 1983, because I have been working within the Act as an ASW and AMHP since 1983, as it happens.

It is immediately apparent that the Review is not proposing a new Mental Health Act; instead, it is proposing significant changes to the existing Act, as well as to Mental Capacity legislation, just as the MHA 2007 did. So, if the changes are enacted, we will still be referring to the MHA 1983 (as amended).

I don’t intend to criticise the Review per se, as it says a lot of good things, and is clearly and explicitly placing human rights at the forefront of decision making within the Act. It flags up a number of factors that are adversely affecting the effectiveness of the MHA.

But I have some misgivings, which I will go into in more detail later.

There isn't the space here to critique all the recommendations in the Review, as there are 154 in total, but I will concentrate on the proposed changes which are likely to have the most impact on AMHP practice.

[Aside: Approved Mental Health Professionals (AMHPs) are used to their official title being misunderstood. They are often referred to as Approved Mental Health Practitioners, and the abbreviation is often given as AMPH. I am afraid that even the MHA Review has got the title wrong in one place. In one of the headings we are referred to as Approved Mental Health Act Professionals. Sigh.]

The Four Principles

The Review begins by recommending that four principles should underlie all aspects of practice within the MHA, and that these should be inserted into the Act right at the beginning.

The existing Code of Practice already has guiding principles, which should be considered when acting with the Act. These are:

Least restrictive option and maximising independence

Empowerment and involvement

Respect and dignity

Purpose and effectiveness

Efficiency and equity

The Review, however, is proposing replacing these with 4 new statutory principles:

Choice and autonomy – ensuring service users’ views and choices are respected

Least restriction – ensuring the Act’s powers are used in the least restrictive way

Therapeutic Benefit – ensuring patients are supported to get better, so they can be discharged from the Act

The Person as an Individual – ensuring patients are viewed and treated as rounded individuals

Rather than as at present, where the principles are in the Code, and therefore do not have the same statutory force, the Review is recommending that they should be embedded into the Act, even suggesting the wording for the beginning of the Act, for example, replacing the current Section 1 with a new one:

1. The purpose of this Act is to confer and authorise the powers (including coercive powers) necessary for the treatment of mental disorder and to safeguard the dignity and rights of those who are made subject to the exercise of such powers and for related purposes.

A new Section 2 would then include a statement of these 4 principles, and how they should be followed.

From these principles there flows a range of new or radically refocused proposals. These include addressing the disproportionate use of the MHA with black and ethnic minority patients.

Here are some of the proposed changes to the legislation.

Abolition of the Nearest Relative

As expected, the Review is proposing the abolition of the “Nearest Relative”, replacing it with a Nominated Person, similar to the Scottish Mental Health legislation.

Our recommendations will allow the patient to choose their own Nominated Person (NP) either prior to detention, at the point of assessment for detention or whilst detained through a new nomination process.

Where a patient has not appointed a NP prior to detention, an AMHP would be able to appoint an Interim Nominated Person (INP), which would involve identifying a friend or relative who was most suitable to fulfill the role. This may involve the use of the existing hierarchy for identifying the Nearest Relative, but as soon as the patient has the capacity to do so, they would be able to choose their own NP.

The powers and rights of the NP would also be extended, to include the right to be consulted over renewal of detention, extension of a CTO and transfer from one hospital to another. They would also have the right to be consulted on care plans.

The concept of the Nearest Relative, and the importance in law for AMHPs to identify the correct Nearest Relative, is an issue that produces endless head scratching and discussions within AMHP circles. In our local AMHP hub, a day will rarely go by without a debate on how to identify a particular patient’s Nearest Relative. I have written about this in my blog, and have taught the intricacies of this at length on AMHP training courses. So anything that simplifies this process will by much welcomed.

Informal admission (S.131)

S.131 of the MHA has always been clear that informal admission should be the default for the care and treatment of inpatients. But this is frequently not the case. I have even come across gatekeepers of beds, both in the NHS and in private hospitals, informing me that they will only accept detained patients.

The Review recommends a higher stress on the primacy of informal admission over compulsory detention, to the extent of recommending that “section 131 of the MHA is moved so that it sits above sections 2 and 3 of the Act."

Changes to criteria for detention

The Review proposes that there should be new criteria for significant harm, with the intention of raising the bar for detention:

We believe the Act needs to be more explicit about how serious the harm has to be to justify detention and/or treatment, or how likely it is that the harm will occur. We are recommending that there must be a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person.

The Review observes:

The AMHP must clearly state on the application form what specific harm they have identified, and how detention will reduce this, including why alternatives are not available or suitable.

This is at least partly in response to the Review’s concerns about risk aversion among mental health professionals. In trying to identify the factors that have led to a marked rise in the use of detention under the MHA in recent years, the Review cites the culture of risk aversion, arising from fear of the consequences to the patient and others of errors in judgment. Wessely makes the point that, while risk used to focus on risk to the patient, there has been a shift to trying to protect the agency or professional from risk.

I would make the anecdotal observation that some mental health trusts are not encouraging clinical staff to take risks, through reluctance to pay staff at a high enough rate. Some Trusts have reduced the numbers of Band 7 nurses as a cost saving exercise; a consequence has been that less well paid and less experienced staff will be more likely to request an assessment under the MHA for a patient who is not wholly cooperating with their treatment plan, often relying on historic or purely hypothetical risk factors to justify this.

Length of detention and other time scales

The Review is keen to reduce the length of time that a patient can be detained in hospital wherever possible.

S.2 should be reviewed after 14 days, and a decision should then be made to either discharge or detain under S.3: “section 2 should only be used where it is truly necessary to assess someone."

The Review explains:

Where the AMHP is aware that a person has been subject to detention under section 3 within the last twelve months, an application for detention under section 2 can only be made where there has been a material change in the person’s circumstances since they were previously detained under a section 3. We are also recommending that the Code of Practice makes it clear that section 3, rather than section 2 should be used when a person has already been subject to section 2 within the last twelve months.

The Review is also recommending a reduction in the initial maximum detention period under S.3 to 3 months from the present 6 months. There would be a further extension period of 3 months, and only after that could a person be detained for 6 months.

I actually suggested this in my blog over 2 years ago. In the MHA 1959, the time scale for S.26, the predecessor of S.3, was 1 year, then 1 year, then 2 years. The MHA 1983 cut this in half. In view of changes to average detention times since 1983, it seems eminently reasonable to cut this in half yet again.

The Review is also suggesting that there should be a statutory time limit for finding a bed once a decision has been made to detain under the MHA. This is addressing the current dire problems in finding beds in an emergency. I have known it to take up to 4 weeks to find a bed for a patient. This problem also leads to a reluctance to go out and assess someone without there being a bed identified first.

The Review also proposes that there should be a minimum waiting time standard for the commencement of a MHA assessment.

Treatment

The Review recommends that the current criteria for treatment should be tightened up so that “not only must appropriate treatment be available that cannot be delivered unless the person is detained, but also that the treatment would benefit the patient.”

It is also recommending greater protection for people objecting to treatments such as ECT.

Community Treatment Orders

The Review had severe misgivings about CTO’s, especially in view of the dubious research evidence for their efficacy. The Review stated that “CTOs are in the “Last Chance Saloon”.

While not actually recommending that CTO’s should be abolished, there was a desire to seriously reduce their use.

One of the proposals is that two Approved Clinicians and an AMHP should makes decisions about placing a patient on a CTO. Additionally, an AMHP should interview the patient and consult with the NR/NP and CMHT. A CTO should end after 24 months unless there are exceptional circumstances.

Statutory Care and Treatment Plans

Following admission, a Statutory Care and Treatment Plan (CTP) should be in place within 7 days of admission, and should be reviewed within 14 days. This would also identify whether a patient detained under S.2 should be continued to be detained, or discharged from detention, facilitating an early challenge to compulsory treatment.

Advance Choices Documents

These are similar to Advance Directives under the Mental Capacity Act, in which a patient can express their views about future care and treatment. The Review states:

Where a person is recorded as having capacity at that time the choice is made, the presumption will be that it will be honoured unless there are compelling reasons why not. So in future a request for a treatment that might be less than optimal, but still possible, should be honoured.

In order to strengthen the authority of the ACD, the Review states:

Where a patient has capacity for advance decisions, ACDs should be authenticated where possible by a health professional, unless the patient objects to this. In other words, we think that a health professional should confirm that the patient has capacity to make the choices contained in the document. We make this recommendation to remove the potential for doubt later as to whether the person had capacity to make the choices contained in the documents.

This should make it less likely that a case such as Kerrie Wooltorton, who was allowed to die from ingestion of antifreeze because she had written a “living will” refusing treatment, could recur. Further information about this notorious case can be found on my blog.

Advocacy

The right to an Independent Mental Health Advocate (IMHA) would be extended to informal patients. Additionally:

We think that IMHAs should be able to challenge treatment decisions, and make applications for discharge, on behalf of the patient where the patient lacks capacity to do so.

Children and young people

One of the proposals relating to children and young people is that young people between the ages of 16 and 17 should not be admitted to hospital or treated purely on the basis of parental consent.

While I welcome this stance, I think that this occurrence is in any case fairly rare for this age group. My own view is that any child over the age of 13 is better served by using the MHA if appropriate, rather than relying on children’s legislation and parental rights.

Learning disabilities and autism

In view of the fact that the current Code of Practice tends to take a dim view of the use of hospital admission for people with learning disabilities and autism, and it was also intended that the MHA should only ever rarely be used for this group, I did wonder whether the Review would remove them entirely from the scope of the Act.

What the Review does do is affirm the general inappropriateness of the MHA for these people:

We are recommending changes to the detention criteria to establish a culture which is less risk adverse because it too easy for the behaviour of a person with a learning disability, autism or both to meet the current threshold of risk. When detention is being considered, professionals will need to focus on more than just a person’s presenting behaviour that is perceived to be challenging. There will need to be a ‘substantial risk’ of ‘significant harm’.

The Police and the MHA

The Review recommends that police cells should never be used as a place of safety, suggesting a cut off point of 2023/24. In fact, this is only an affirmation of the current policy of only using designated health based places of safety for detention under S.136.

A welcome suggestion is that S.136 should be amended so that a police officer can make the decision to end a detention, rather than an AMHP and a doctor. This would arise where it was clear that a full assessment under the MHA was not justified.

Section 140

S.140 states that those responsible for providing hospital beds should fulfill this duty.

The Review suggests:

The operation of this responsibility needs to be discharged more consistently and more effectively, in particular to address the fact that people who are arrested under the criminal law are staying in police cells for too long, often unlawfully, after it has been established that they need to be admitted to hospital following a Mental Health Act assessment.

Ambulance services

The Review has some interesting things to say about the provision of ambulances for the conveyance of mental health patients. The bane of AMHPs’ lives (or at least one of them) is delays in ambulances attending to convey a detained patient.The Review sates:

Ambulance services should establish formal standards for responses to section 136 conveyances and all other mental health crisis calls and ambulance commissioners and ambulance trusts should improve the ambulance fleet, including commissioning bespoke mental health vehicles.

Conclusions

I have only concentrated on some of the highlights of the Review, which is after all, over 300 pages long.

Were all the recommendations to be taken on board by Parliament, I do think we would have a much more robust and rights based legislation for people with mental health problems.

But I see a lot of problems.

Some of the recommendations fall short of changes to legislation, recommending instead government policy changes, or changes to the wording of the Code of Practice. Sometimes it is difficult to detect the difference between suggesting what might be better, and proposing actual changes to the Act.

Many, if not most, of the necessary changes would require a huge additional investment in mental health services, which may not be forthcoming (in fact, until now, the reverse has been the case). Had adequate funding remained in place since 2007, there may not even have been a need to review the MHA.

It was first proposed that the MHA 1983 should be reformed as long ago as the late 1990’s. Several draft Mental Health Bills were published before the MHA 2007 (amending the 1983 Act) eventually came into law nearly 10 years later. Even if Parliament had the will, I would not expect to see any of these changes happening within the next 2-3 years.

The recent review of the Mental Capacity Act has led to a new Mental Capacity Bill which was markedly different from the Law Commission’s detailed proposals.

A Government press release in response to publication of the MHA Review, while stating that it is committed to reforming the MHA, appears to go on to say that is only accepting 2 of the recommendations, these apparently being:

Those detained under the Act will be allowed to nominate a person of their choice to be involved in decisions about their care. Currently, they have no say on which relative is contacted. This can lead to distant or unknown relatives being called upon to make important decisions about their care when they are at their most vulnerable.

People will also be able to express their preferences for care and treatment and have these listed in statutory ‘advance choice’ documents.

So I’ll not be holding my breath.

Can a person be detained under more than one section of the Mental Health Act at once?

This is by no means as straightforward an issue as it may seem, and can from time to time create difficulties and anomalies.

While as a general rule, a person cannot be subject to more than one section of the MHA simultaneously, there are exceptions to this rule. There are also implications regarding whether or not certain sections can continue once a decision has been made.

I’ll look at some examples.

S.5(2)

The Code of Practice states that S.5(2) cannot apply “to a patient who is already liable to be detained under section 2, 3 or 4 of the Act”(para18.7).

If an informal hospital patient is detained under S.5(2) an AMHP has up to 72 hours to arrange an assessment with a view to detaining under S.2 or S.3. Once a decision has been made, and an application completed for S.2 or S.3, the S.5(2) detention ends. This also applies if the decision is made not to detain.

The Code of Practice states: “Although the holding power lasts for a maximum of 72 hours, it should not be used to continue to detain patients after the doctor or approved clinician decides that, in fact, no assessment for a possible application needs to be carried out, or a decision is taken not to make an application for the patient’s detention.”(para18.20)

Additionally, it needs to be borne in mind that detention under S.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 S.5(2) would automatically end.

What about S.2 to S.3?

Ah. If an AMHP assesses a patient who is detained under S.2 for assessment with a view to detention under S.3 for treatment, and makes the decision not to detain them, then, although best practice would be for the Responsible Clinician to discharge them from S.2, there is no requirement to do so, so the S.2 could legally continue to the end of the 28 day period of detention.

There are situations in which this could be justified. An example that springs to mind is where a patient has been detained under S.2 and the request to detain under S.3 comes within the first couple of weeks of the original detention. The AMHP may consider that it is too premature to consider detention under S.3, which could last for up to 6 months, and may think that the patient’s condition could improve sufficiently over the remaining time of the S.2 to make further detention unnecessary.

S.136

A similar rule as that for S.5(2) applies for detention under S.136. If an AMHP and at least one doctor have assessed and decided that a patient detained under S.136 does not need to be detained under the MHA, the S.136 can remain in force only while any necessary arrangements are made for the disposal of the patient, such as arrangements for informal admission or transport home. The Code also points out that someone subject to S.135(1) or S.136 cannot be placed on S.5(2), since S.5(2) only applies to inpatients.

The S.136 will also remain in force while arrangements are being made for a hospital that is able to take the patient if it has been decided to detain under S.2 or S.3. Of course, this will only apply until the end of the maximum length of detention of 24 hours.

Assuming there is a bed, then the S.136 ends as soon as the relevant application has been made. As the patient is then liable to be detained, this authorises the AMHP, the police or any other relevant person to hold the patient in custody until they can be transferred to hospital.

The same will apply for a patient detained under S.135(1) who has either been taken to a place of safety for assessment, or assessed at the place where the warrant has been executed.

Guardianship (S.7)

No-one can be detained simultaneously under both Sec.3 and S.7, as the Reference Guide states: “Once a patient subject to guardianship is admitted for treatment, the guardianship ceases.” (para8.99)

However, a patient subject to Guardianship can be detained under S.2 (and S.4) (para30.36).

Community Treatment Orders

Possibly because Community Treatment Orders were added to the MHA 1983 by the 2007 MHA, many years after the original drafting, it gets rather more complicated.

Because people can only be subject to a CTO if they are detained under S.3, people on CTO’s can be regarded as still subject to the original, latent, S.3.

The Reference Guide states unequivocally that someone on a CTO cannot be made subject to S.5(2)(para8.72). 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.”(para8.96) The Code states that “where the person is known to be on a CTO and compulsory admission is indicated, the recall power should be used”(para18.17)

You might think therefore, that no other sections of the MHA can be used with people on CTOs, but that is not necessarily the case. The Reference Guide recognises that in practice patients may end up being detained under other sections “if the people making the application do not know that the patient is on a CTO"(para8.96). It goes on to state:

An application for admission for assessment under section 2 or 4 does not affect the patient’s CTO. Nor does an application for admission for treatment under section 3 if, before going onto a community treatment order (CTO), the patient had been detained on the basis of a hospital order, hospital direction or transfer direction under part 3 of the Act. (para8.97)

So this does mean that a police officer, not being aware of a person’s status as being subject to a CTO, may legitimately detain someone under S.136.

Consequently, an AMHP and a doctor would still need to assess in accordance with the requirements of S.136, but if they decided the person needed to be admitted to hospital, they could then make arrangements for their recall to hospital under the rules for a CTO.

An application for detention for treatment under S.3 would automatically end a CTO, in the same way that a S.3 would end a Guardianship Order. However, the Code says, “an application for detention should not be made in respect of a person who is known to be on a CTO” (para15.17), so the correct procedure would be recall to hospital, followed by revocation of the CTO if necessary. That action will then reactivate the latent S.3.

If in ignorance, perhaps because the person on a CTO has turned up in another part of the country, they are then detained under S.2 or S.4, the recall and revocation process can be initiated once the person’s true status is known, and once the S.3 had been restored, any other sections would cease to have effect.

I hope that’s cleared up any confusion.

CTO’s – Fit for Purpose?

Community Treatment Orders were introduced by the 2007 changes to the Mental Health Act 1983, and came into force in 2008.

The New Code of Practice states that the purpose of a CTO “is to allow suitable patients to be safely treated in the community rather than under detention in hospital, and to provide a way to help prevent relapse and any harm – to the patient or to others – that this might cause. It is intended to help patients to maintain stable mental health outside hospital and to promote recovery.” (Para.29.5)

It goes on to suggest that CTO’s could be regarded as fulfilling the principles of  treating patients using the least restrictive option and maximising their independence.

CTO’s have been very popular since their inception in 2008. This could be at least partly due to the process being initiated and managed by psychiatrists rather than AMHP’s, unlike with admission to hospital under Sec.2, 3, or 4, where an AMHP, as a non-medical professional, leads the process and makes the final decision.

But CTO’s have also been very contentious. Critics regard them as being excessively controlling and interfering with patients’ human rights, while supporters regard them as a way of enabling patients with severe and enduring mental disorder to live as normal and fulfilled a life as possible outside hospital.

Both views have their merits. It is one thing to argue that it is unreasonable to enforce treatment on a person who is not in a hospital, but there is also a point in arguing that it has to be better that someone remains out of hospital as long as there is a framework to ensure treatment for their mental disorder.

For compulsory treatment in the community to be justifiable, it has to be shown not only that it results in fewer admissions to hospital, but that is can also demonstrate a better quality of life for the patients involved.

So has there been a reduction in the numbers of admissions since 2008? It appears not. The Health and Social Care Information Centre (HSCIC) publish annual statistics for patients formally detained under the MHA, and for people subject to CTO’s. The figures for 2013-14 came out at the end of October 2014.

The Report states that since 2008 the number of people subject to CTO’s as of 31st March 2014 has more than doubled, an increase of 206% or 3,610. Over the same period there has indeed been a reduction in the number of people detained under Sec.3 for treatment, which must be linked to the increase in CTO’s, as patients can be recalled to hospital and their CTO’s revoked without the need for a fresh assessment under the MHA.

However, over the same period, overall detentions in hospital under the MHA have increased by a third, so that in the period 2013-14 “the Act was used 53,176 times to detain patients in hospital for longer than 72 hours” (ie. Under Sec.2 or Sec.3).

So, while there has been a reduction of people detained in hospital under Sec.3, mainly as a result of the introduction of CTO’s, overall detentions have increased to record levels.

While it may be tempting to reach the conclusion that CTO’s have not fulfilled their function of reducing admissions to hospital, the reality is far more complex, as it is likely that the nationwide cutbacks in services for people with mental health problems over the same period have contributed to this rise in acute admissions.

The only significant research into the link between CTO’s and hospital admissions is the OCTET Trial, published in 2013.

The object of this research was to see if CTO’s reduced readmission. They monitored the samples (a total of 333, of whom 166 were discharged on CTO’s and the rest on extended Sec.17 leave) for 12 months. Their conclusion was that “the imposition of compulsory supervision does not reduce the rate of readmission of psychotic patients. We found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients' personal liberty.”

While the conclusion seemed unequivocal, I had some considerable misgivings about the usefulness of this piece of research, not least because of the miniscule size of the sample, which I wrote about on this blog back in April 2013. It is clear that much more research needs to be done in this area.

So what about the effectiveness of CTO’s in improving the quality of life of patients?

Unfortunately, there is again very little research into this, and it would appear that there is none at all in the UK. However, other countries have equivalent powers, including Australia, New Zealand, the USA and Israel, and there has been a recent review of available research, Compulsory community and involuntary outpatient treatment for people with severe mental disorders, by Steve Kisley and Leslie Campbell, which was published in December 2014.

The research looked at three trials consisting of a total of 752 people. The report concluded: “Results from the trials showed overall [compulsory community treatment] was no more likely to result in better service use, social functioning, mental state or quality of life compared with standard 'voluntary' care.”

It did note that “people receiving CCT were less likely to be victims of violent or non-violent crime.”

There are some provisos to these findings. For a start, the authors considered that the quality of evidence for the main outcomes was low to medium grade. They also noted that “other than feelings of coercion or being controlled, there were no other negative outcomes”

None of the available research satisfactorily provides evidence one way or another for the efficacy or otherwise of compulsory community treatment. All that is certain is that there should be much more research if such a potentially contentious form of intervention is to continue to be used at the current levels.

CTO’s and a dreadful case of unlawful imprisonment

Mistakes in law can come back to haunt you, even many years later.

A recent Court of Appeal  judgment on 10^th February 2015 ([2015] EWCA Civ 79) considered a request for compensation for unlawful imprisonment arising as a result of illegally imposing, then revoking, a Community Treatment Order which went as far back as 2009.

This related to a man called Lee Bostridge. He was lawfully detained under Sec.3 MHA in July 2008. In April 2009 a mental health tribunal reviewed his case and ordered his discharge, suggesting in the process that he should be discharged on a CTO.

But by so doing, the tribunal had committed an error in law. A CTO can only be imposed on a person who is "liable to be detained in a hospital in pursuance of an application for admission for treatment", but as the tribunal in their judgment no longer considered that that applied to Mr Bostridge, the subsequent CTO was by definition unlawful. (In essence, anyone on a CTO continues to be subject to detention under Sec.3, and when a CTO is revoked, the underlying Sec.3 detention comes back into force.)

After Mr Bostridge was discharged on this erroneous CTO in April 2009, he remained in the community until August, at which point his Responsible Clinician recalled him to hospital, under his powers of recall, and then revoked the CTO.

Despite having had two tribunals during this period of detention, it was not until 3^rd November 2010, when he attended another mental health tribunal, that it was realised that his initial discharge on a CTO back in 2009 was unlawful, and that he had therefore been unlawfully imprisoned for a grand total of 442 days!

As soon as this was discovered, Mr Bostridge was immediately released. However, I don’t think he can have enjoyed much time out of hospital, as he was assessed and lawfully detained under Sec.3 on the same day. This period of (lawful) detention lasted until 13^th September 2011.

Mr Bostridge received compensation for the 442 days that he was illegally deprived of his liberty. However, he appealed to the higher court on the basis that he ought to be entitled to a greater, and perhaps exemplary, compensation payment.

The Court of Appeal disagreed with the less than fortunate Mr Bostridge, concluding that “had the appellant been detained lawfully, he would have suffered the same unhappiness and distress that he suffered anyway”. He had therefore suffered no significant loss, and was not therefore entitled to any more than a nominal payment.

This sort of mistake was not unknown in the period following the introduction of CTO’s, which came into force as a result of the amendments to the MHA 1983 in the MHA 2007.

As well as having the power to discharge patients from detention under the MHA (generally Sec.2 & Sec.3), tribunals are allowed to make suggestions as to the disposal and aftercare of a detained patient and frequently do.

The tribunal regulations state that tribunals must discharge if certain things are concluded. One of these is if the tribunal is “not satisfied that the patient is then suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment”.

Since Mr Bostridge’s tribunal had come to this conclusion, even though they were merely trying to be helpful in guiding the hospital towards a decision to use a CTO, the consequence of their decision was to make it illegal for the hospital to follow their suggestion.

Isn’t the law a wonderful thing?

The Case of QR: Capacity and Tenancy Agreements

This very recent judgment was published on 5thAugust 2014. It concerns tenancy agreements, and the issue of a person’s capacity to end, or indeed, to take out a tenancy agreement. It also highlights a situation which is covered by neither the Mental Health Act nor the Mental Capacity Act, but requires referral to the Court of Protection for a decision.

QR is a woman of 62. She has a diagnosis of paranoid schizophrenia. Her first serious episode was in 1995 at the age of 43, and she has had numerous detentions under both Sec.2 & Sec.3 MHA since then. She was discharged from hospital in December 2010, since when she has been subject to a CTO. Until her most recent admission to hospital, she lived in a local authority flat, and still has the tenancy of this property.

One of the conditions of the CTO is to reside in “ABC”, a residential treatment centre run by the local authority. The mental health team now consider that she no longer needs this level of support. However, the Judge records: “She must live in accommodation which provides 24 hour support and monitoring, so that QR will continue to be compliant with her medication and avoid the risk of a possibly fatal relapse.”

Her team now want her to live in a more independent living situation, but consider that there is too great a risk to her health and safety for her to return to her previous flat. However, QR will need to sign a tenancy agreement in order to move into a supported living flat, and must first surrender her existing tenancy.

In the words of the Judge the crux of the case is that “QR objects to the application on the grounds that she has capacity to decide whether to surrender the tenancy of her current flat and to sign a tenancy agreement for supported living accommodation.  She does not wish to surrender the secure tenancy of her council flat which is important to her and she does not wish to move to any of the proposed supported living options which have been proposed”.

The issue the Judge had to decide was whether or not QR has the capacity to decide where she should live, to surrender the tenancy of her flat and to sign a new tenancy agreement.

The issue of capacity is, of course, situation specific. A person may have the capacity to decide whether or not to have a cup of tea, but may lack the capacity to make a decision about where they should live.

In this particular case, the Judge concluded that “I am satisfied that QR is unable to make the decisions at stake in this case as a result of the nature of her mental illness.” He went on to say that “QR is not able to give weight to the issue of central importance in the arrangements which [the mental health team] propose, the reason why she needs to take her medication.”

This particular case has not yet reached a conclusion. Still to be decided is “what further evidence if any is required in order that a best interests decision on the issues before the court can be made.”

The implications of this case relate to the issue of the ability of someone with a mental disorder of any sort to either take on a tenancy or to relinquish a tenancy.

This has often not been considered when making arrangements for people who may lack capacity in certain areas because of learning difficulties, dementia or mental illness.

From time to time, and for the best possible reasons, professionals working with such people assist them in obtaining accommodation for which that individual will need to make decisions regarding signing or relinquishing a tenancy, and professionals may not consider the issue of whether or not they actually have the capacity to make those decisions.

While a person can be made subject to conditions in a Community Treatment Order, such as a condition to reside in a certain place, this power does not extend to either terminating a tenancy or taking out a tenancy on their behalf.

If the person  subject to such conditions does not have capacity in that area, then any legal decisions they make may be invalid. In such cases, referral to the Court of Protection appears to be the only remedy.

Review: Approved Mental Health Practice, edited by Sarah Matthews, Philip O’Hare & Jill Hemmington

 

The subtitle of this new book is “Essential Themes of Students and Practitioners”, and I would certainly endorse this. This is the only serious text of which I am aware that focuses entirely on professional practice under the Mental Heath Acts of the United Kingdom.

The authors grapple with the conflict between the social work role of empowerment and the AMHP powers that can lead to coercion and the imposition of social and medical control, and this book provides an excellent examination of the tensions existing in the role of the approved mental health practitioner, allowing the student and practitioner to reflect on the role in the context of the wider social perspective.

As the book is directed at an examination of practice under all the UK’s mental health legislation, they generally describe the professional as an “approved mental health practitioner”, so I will continue to use this terminology in this review, and the abbreviation of “AMHP” should be read in this way.

Sarah Matthews starts by posing the question, “Do social workers as approved mental health practitioners struggle to promote a model that views the manifestations of mental health in any way other than the dominant and, some argue, pathological one?” She goes on to outline the fundamental aspects of approved mental health practice. These include the social perspective as being central, as well as the independent nature of the role. She also stresses the importance of emotional engagement, containment and the concept of “dirty work” as contributing to the unique role of the AMHP. She states: “The mother, it is suggested, contains others’ distress without appearing to be affected by it herself and it is this which an approved mental health practitioner might also accomplish.”

I was particularly intrigued by her discussion of work under the MHA as being “dirty work”. Dirty work “describes the notion that people are compelled to play a role in work about which they ought to be a little ashamed, morally… A profession embraces unpleasant tasks as a means of establishing its credibility or undertakes such tasks as a necessary, albeit difficult, element.”

Tim Spencer-Lane provides an analysis of the legal and political factors in England and Wales that led to the revision of the 1983 Act and the creation of Approved Mental Health Professionals. Having practiced under Mental Health Acts since 1981, I have lived through these changes, and have been professionally associated with the issues which eventually led to the 2007 Act. He makes the interesting point that the MHA 2007 “was the result of a long and embittered battle between the Government and the major stakeholders about the fundamental purpose of mental health law”, whereas the Mental Capacity Act 2005 was developed in broad consensus and was the culmination of a long consultation process.

Jean Gordon and Roger Davis go on to compare and contrast mental health law in Scotland and Northern Ireland (although omits the Isle of Man Mental health Act 1998, which, like Northern Ireland, retains the Approved Social Worker).

David Pilgrim makes interesting points about the way in which mental health professionals can make basic assumptions about mental health practice which may be at odds with reality. He makes the point that "third-party interests constantly shape professional decision making and action. Indeed, at its most coercive, mental health work considers the needs of the identified patients only after others are protected from their prospective presence and actions... It is soon evident that public safety and institutional order can dominate staff decision making."

He argues, with some justification, that the MHA in England and Wales is more concerned with controlling mental disorder than with the promotion of mental health. This makes the AMHP role innately coercive, and he poses some challenging questions about the validity of enforcing compulsory treatment with drugs which are at best only moderately effective, and at worst can cause serious harm or even death.

Helen Spandler tackles problems around psychiatric diagnosis, wishing to "equip approved mental health practitioners with the knowledge to question, challenge and understand the broader meaning of mental disorder and diagnosis," in order for us to be "more cautious and thoughtful about the language we use to describe mental health crises."

She reviews the different approaches to diagnosis, from psychiatric, psychological and service user perspectives, often using as examples the ways in which the long term effects of childhood trauma can be interpreted as either normal reactions to extreme life events, or pathology indicating mental illness or disorder.

She suggests that a more useful, and service user centred approach for an AMHP to take is to assess levels of impairment and functioning, rather than diagnosis, to determine access to services and using mental health legislation. While expressing scepticism about the use of diagnosis, she states that "it is important not to let the endorsement or criticism of diagnosis get in the way of decision-making." Any alternative to conventional diagnosis "must result in better consequences for people in terms of gaining the more appropriate support and assistance."

Daisy Bogg examines ethics and values in the context of approved mental health practice, tackling in the process some of the ethical dilemmas inherent in the use of Community Treatment Orders, observing that "approved mental health practitioners serve as a counterbalance to a single dominant medical perspective and are required to provide a more holistic view, and account for the whole circumstances of an individual's situation before making a decision to apply for compulsory admission."

Amanda Taylor and Jill Hemmington's chapter on Diversity in Mental Health sets out to "challenge notions of diversity being simply and solely located within traditional, fixed dimensions and to alternatively view it as being unique to the individual, group and community." They warn that approved mental health practitioners need to be aware that they "belong to a 'dominant social group' that 'maintain systems of privilege and oppression'".

They give as an illustration an in depth analysis of Deafness, including specific case studies, using these to show that "it is vital that as practitioners we can seek that which is outside of the self and consider not only the diversity relating to the other but go some way to working within their 'internal frame of reference' to understand the layers that exist."

They conclude: "Empathy, 'tuning in' and constantly asking oneself questions are the starting points to a thorough, effective assessment that has honesty and collaborative work at its core."

I was particularly intrigued by Anthea Murr and Tamsin Waterhouse's chapter on "The Impact of Time and Place", as it focused on assessments in rural areas. Readers of this blog will be aware that I work predominantly in a rural area; even the towns in my area have populations of less than 30,000. They outline the special factors that can impact on the mental health of people living in rural areas, such as physical, social, cultural, psychological and geographical isolation, as well as the problems of rural poverty, and conclude that practitioners working in rural areas need to have special training and acclimatisation to prepare them for these particular challenges.

Julie Ridley outlines a study of service users’ experiences of mental health legislation in Scotland. Although specific to Scotland, this study is also of relevance to professionals working throughout the UK.

Experiences of compulsion varied from the positive to the negative, perhaps not unexpectedly. Some service users welcomed having “‘responsibility taken away’ and a structure to daily life imposed”, while others described it as a “nightmare” experience.

Philip O’Hare and Gavin Davidson devote a chapter to the role of the Nearest Relative, tracing the history of this role in mental health legislation going back to the 18^th century, and its evolution in more recent Mental Health Acts. They make the point that improvements in social work training and the changes to practice brought about by the Seebohm in the 1970’s added to pressure to replace the 1959 Mental Health Act with legislation that recognised the professional competence of social workers. This led to the 1983 Act, where the Approved Social Worker became the preferred applicant in applications for detention.

I was intrigued by the statistic that in the early years following the introduction of the 1983 Act only 1.6% of application were made by Nearest Relatives. I suspect that this figure is now even lower.

Practicing exclusively in England, I did not realise that legislation in Scotland had ended the Nearest Relative role as applicant for detention. I was interested to read that the other parts of this role have been replaced by a “named person”, who is nominated by the patient. Although this seems like an admirable idea, and would obviate the current difficulties that AMHP’s can find in identifying and consulting with the Nearest Relative, this idea was unfortunately not taken up when drafting the 2007 Act.

Philip O’Hare discusses to what extent evidence-based practice can inform approved mental health practice. There is a paucity of evidence on which to base evidence-based practice within mental health legislation,; evidence-based practice is essentially based on the medical model, which can be hard to replicate in a social care context.

O’Hare asks the question “How to AMHP’s make sense of their legal roles being informed by practice, and looks at making decisions based on least restrictive concepts, applying this in particular to the AMHP role in Community Treatment Orders: “how does an AMHP make a distinction between justified and unjustified CTO’s?”

Unfortunately, despite rather sketchy research into the efficacy of CTO’s, it is very difficult to assess the likely beneficial impact of a CTO on any particular individual, other than anecdotal evidence relating to length of time without a hospital admission. How can you test whether the conditions of a CTO have positively influenced a specific patient?

Jill Hemmington examines how AMHP’s have to manage uncertainty, and how one can develop practice wisdom. She makes the point that approved mental health practice “has been described as ‘crisis, mess and muddle’ where Mental Health Act assessments often arise from and within situations where there is ‘panic and confusion’”. She makes an interesting attempt to apply crisis theory to AMHP work, and also points out that “because something is lawful, it is not automatically ethical”.

She poses a number of pertinent questions for an AMHP to consider relating to their practice, for example, “How did I influence the situation through: my presence, my actions, my preconceptions or assumptions, other people’s perceptions of me, my physical well-being on the day?”

The editors conclude that “for an AMHP the focus is on how to interpret and analyse appropriately and avoid any illusion that there can be certainty.”

Each chapter contains reflective questions, which are designed to provoke stimulating discussions in student seminars, and which would also be useful for AMHP’s who are preparing reapproval portfolios to evidence reflective practice and to elicit learning points from professional experience.

I found the book as a whole stimulating and thought-provoking. It was a pleasure to read a book that directly addresses the dilemmas with which I am faced every day of my professional life.

I wholeheartedly recommend this book to anyone interested in the AMHP role, including those undergoing AMHP training, AMHP’s preparing for reapproval, and social work and mental health nursing students who seek to obtain a deeper understanding of the moral and legal complexities of the role.

Approved Mental Health Practice: Essential Themes for Students and Practitioners
Edited By Sarah Matthews, Philip O'Hare and Jill Hemmington
Palgrave Macmillan, April 2014
ISBN: 1-137-00013-9, 978-1-137-00013-2

Ask the AMHP – a new occasional column

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

Here’s a question I recently received from a rather stressed and anxious AMHP (but then they all are, aren’t they?)

I’ve got 2 medical recommendations for Sec.3 on a patient who is in the medical assessment unit of our local hospital, but lives outside our area. The other area is currently trying to find a bed. Can I complete this application?

The Masked AMHP replies:

No, I’m afraid you can’t. You have to have the name and address of a hospital prepared to take the patient on your application form before you can sign it and therefore complete the application. But it’s even worse – your two doctors can’t make a recommendation for Sec.3 unless they can state the name of a hospital where appropriate treatment can be provided. And if they start giving a very long list of possible hospitals, in the hope that one of them might become available for the patient, that sort of defeats the object of suitable treatment being available.

The only thing I can suggest is that your two doctors make a recommendation for Sec.2. then they won’t have to name a hospital, and they can then leave. Since your patient is actually currently an inpatient on a general ward, you could see if you can detain the patient on that ward under Sec.2. You can then complete your application and the patient will be formally detained. The patient can then be transferred under the usual transfer arrangements once the other area has found a bed.

Here’s a question I had emailed to me by a student AMHP.

I am a student AMHP and a recent dilemma in the office has prompted me to write to you. If a person is on a CTO and the conditions of this are that they receive treatment in supported living should the living cost ie rent be paid through S117, local policy says not but I wanted to check.

Also, the local policy says that the person does not legally have to accept the S117 aftercare, however how does this fit in with aftercare that is a requirement of the CTO?

The Masked AMHP replies:

There is quite a bit of case law about S117 and housing costs, which I have covered on my blog. Normal living expenses, eg food, electricity, housing, are universal needs and are not arising from a mental health need. Therefore they are not covered by S117.

If the S117 aftercare is explicitly covered by the conditions of the CTO, eg that the patient resides in a certain place, then a failure to do so breaches his CTO. In such a situation, the patient would have to accept S117 aftercare.

Here’s a question from the blog:

Have you ever known a situation where one doctor disagrees and will not furnish a recommendation so a third doctor is sought in order to detain?

The Masked AMHP replies:

I have certainly had situations where one doctor has furnished a recommendation, but a second Sec.12 doctor has disagreed and refused. This is not uncommon for someone who is an inpatient, and the hospital Responsible Clinician has left a medical recommendation on the ward. I have to say that in these situations, I have been satisfied to go along with this and not therefore proceed with an application. However, theoretically, if as an AMHP you feel the dissenting doctor is acting perversely, and you are very concerned about risks to the patient if they are not detained, I do not regard it an unethical of obtain a further medical opinion. However, there’d have to be a limit to the number of doctors you could consult.

And here’s a final question from another stressed and anxious AMHP:

I’ve got a 16 year old girl on a Sec.2 in a private hospital. We do not feel she needs to be in hospital, and we have arranged for an alternative placement. The Community Responsible Clinician backs this plan. However, the hospital Responsible Clinician refuses to discharge her from hospital, and will not discharge the Sec.2. What can we do?

The Masked AMHP replies:

Crumbs! What a peculiar situation. The hospital RC has the final say in this, regardless of what the community RC thinks, and even if the community RC provided one of the recommendations. The patient can appeal against the decision, and as it’s a Sec.2 the Tribunal would generally be within 3 working days. In the meantime, you as the AMHP could make it clear that you would be recommending discharge, which might concentrate the mind of the hospital RC.

Keep your questions coming in! The Masked AMHP is always happy to try to assist.