Who’s responsible for assessing under s.3 for a patient detained under s.2?

Across England and Wales, because of the desperate shortage of suitable psychiatric hospital beds, huge numbers of people needing acute hospital admission are being moved out of their locality to hospitals often hundreds of miles from their home. As I pointed out in my last blog post, most of these hospitals are private.

Quite apart from the distress and difficulties this causes to patients and their relatives, it also creates enormous logistical problems for local authorities and their AMHP services.

This is because of the legal duties relating to assessment under the Mental Health Act.

s.13(1) states:

If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.

What this means is that, regardless of where the person normally lives, if they happen to be somewhere else, but requiring assessment under the MHA, the duty falls on the AMHP service where they happen to be at the time.

Here’s an example from my own AMHP service. Gerry lives in local authority A, but goes on holiday in local authority B, which is 100 miles from his normal home. He becomes mentally unwell and is detained under s.136 by the police. LA B has the legal duty to undertake the assessment. In the case of Gerry, the decision was made that he needed to be detained under s.2 for assessment, although the mental health trust in his home area, where he was registered with a GP, was responsible for finding him a bed.

But things can get even more complicated than that.

I recently received a call from an AMHP in in a London Borough (X), many miles from our LA, concerning a patient whom I will call Patrick. Patrick normally lives in our area (LA Y), but had been staying with friends in their area when he became unwell and was assessed by one of their AMHPs who detained him under s.2. Our local MH trust found him a bed in a private hospital, which was in LA Z, nowhere near either X or Y.

After a few weeks, a request was made by this hospital for assessment under s.3 for treatment. The request went to X. The AMHP in X contacted our AMHP service to inform us of this, and to instruct us that we had a duty to undertake this assessment.

I drew his attention to paragraph 14.37 of the Code of Practice, and read it out to him:

If a patient is already detained under section 2 as the result of an application made by an AMHP, the local authority on whose behalf that AMHP was acting is responsible for arranging for an AMHP to consider the patient’s case again if the local authority has reason to believe that an application under section 3 may be necessary. This applies even if the patient has been detained outside that local authority’s area.

(By the way, for any Welsh readers of this blog, paragraph 14.27 of the Welsh code of Practice says the same thing.)

This means that an AMHP from area X has the legal duty to do the assessment, even though Patrick was from area Y and was now in a hospital in area Z.

This unfortunate AMHP wasn’t sure about this.

“Ah,” he said, “there’s case law that overturns this.” And he made some comments about “ordinary residence”.

I knew what he was referring to. He was referring to the Care Act 2014, and its changes to s.117 MHA, which relates to the duty to provide aftercare to patients detained under s.3 and some sections in Part III of the MHA.

s.117(3) states that the responsibility to provide aftercare lies with the LA and CCG for the area in which a patient was “ordinarily resident” at the time of their detention under s.3.

s.39(1) of the Care Act defines “ordinary residence” as being in “the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”.

s.39(4) then explicitly applies this to s.117 aftercare, stating:

An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.

He certainly had us bang to rights – as far as aftercare goes. If Patrick was detained under s.3, our area would be responsible with providing him with aftercare.

But this had no bearing on the duty to assess under s.3. Paragraph 14.37 trumped this, and an AMHP in area X was going to have to do the assessment, even though Patrick was no longer even in their area.

It’s a tough call, but the law is the law. And it applies to every AMHP Service in England and Wales.

In practice, local AMHP Services are often obliging, and may consider doing an assessment for s.3 on behalf of the relevant LA if the patient is in a hospital in their area. Our area has several private hospitals, who often receive patients detained under s.2 from all over the country. If we have capacity, we will deal with a request for s.3 from another LA – if they pay us.

But not all LAs are so obliging.

Do you remember Gerry, who was on holiday in our area when we detained him under s.2?

He was admitted to a hospital in his own area, and after a few weeks there was a request to assess for a s.3.

You might think that his local AMHP Service, seeing that he was a patient who lived in their area, and who was in hospital in their area, and who would have s.117 responsibility for him, would see it as reasonable to do this assessment.

But no. They stuck to para 14.37, and insisted that one of our AMHPs went to their hospital to assess their patient.

If anyone involved in the Association of Directors of Adult Social Services (ADASS) happens to be reading this, perhaps they’d like to bring the whole matter up with their association.

Because of the current ongoing and apparently endless crisis in provision of adequate mental health beds, nearly all LA’s are experiencing these problems, and either having to send AMHPs hundreds of miles away at huge expense (which can entail overnight hotel stays and two full AMHP days for one assessment), or paying other AMHP services to do these assessments on their behalf.

Isn’t there a simpler and cheaper way to tackle this?

ADASS Guidance on Ordinary Residence

The Association of Directors of Adult Social Services (ADASS) has recently published its guidance on ordinary residence. As I pointed out in my blog post in 2014, the Care Act 2014 revised the Mental Health Act, principally with regard to S.117 aftercare, but also with regard to the concept of “ordinary residence”.

It could be very helpful for ADASS to issue this guidance, as its tends to be local authorities who get into expensive legal disputes with each other over responsibility for packages of care, and this may reduce the incidence of these disagreements.

The concept of ordinary residence is important, as it establishes which local authority is responsible for providing for the care needs of people identified by the Care Act as being eligible to have their needs met.

The guidance points out:

In the vast majority of cases it will be obvious where an individual is ordinarily resident – and consequently which local authority is responsible for meeting the eligible social care needs of that individual. The issue of where an individual is ordinarily resident will usually arise when a person is moving or has moved from one geographical area to another.

Since “ordinary residence” is not actually defined in the legislation, it is still necessary to rely on case law to clarify its meaning. It may not be as simple as being where someone is actually living at the time they become eligible for services, as other factors may intrude. What is the ordinary residence of someone who has a tenancy or owns a home in LA 1, but happens to be on holiday with relatives in LA 2?

The guidance considers at length two cases: the Shah case, relating to people with capacity, and the Cornwall Case, relating to people lacking mental capacity to make decisions about residence.

The Shah Case

The Shah case goes back to 1982. Lord Scarman said in this case:

Unless... it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ordinarily resident refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

Length of residence is not necessarily a factor in deciding ordinary residence in this context: the Shah case concluded that someone must be living in a particular place for a “settled purpose as part of the regular order of his life for the time being, whether of short or long duration.”

The ADASS guidance states that:

Settled purpose can be established at the instant of an individual’s move to a new area, if that move is with the intention of remaining there permanently or for the foreseeable future. That is because the person will have a settled purpose from the moment they arrive.

However, if they are only temporarily away from their normal place of residence, then their permanent home will continue to be their ordinary residence for the purposes of the Care Act.

The Cornwall Case

The Cornwall case was a Supreme Court case from 2015, after the Care Act came into force.

This case concerned PH, a man born with severe physical and learning disabilities, who had been accommodated since the age of 4. He was with foster parents until he was 18, and then went into residential care. The question the Supreme Court had to answer was which LA was responsible for his care (under the Care Act)?

Was it Wiltshire, where he lived with his parents until he went to foster carers? Was it South Gloucestershire, where he lived with the foster carers? Or was it Cornwall, where his parents moved to in 1991? 

At the time of the decision, he was living in a fourth LA, Somerset, where he had been placed in residential care after leaving his foster carers. The issue was his ordinary residence prior to his placement in Somerset.

While the initial finding was that Cornwall was responsible, the Supreme Court considered that this was insupportable, and concluded that Wiltshire retained responsibility for funding, as they were responsible for the original placement.

The Supreme court concluded:

For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and “swings and roundabouts” may be unavoidable.

ADASS draws attention to the deeming provisions in S.39 Care Act 2014. This states that a LA “cannot ‘export’ its responsibilities under the Care Act by placing an individual in a different geographical area.” Certain types of accommodation, eg care homes, shared lives scheme accommodation or supported living accommodation, cannot be considered when determining someone’s ordinary residence.

The basic rule therefore is that a person “is ‘deemed’ or presumed to continue to be ordinarily resident in the area he was ordinarily resident in immediately prior to commencing living at the accommodation in question.”

The Care Act/Mental Health Act interface

Under S.117, the LA in which the patient was “ordinarily resident” immediately before being detained is responsible for aftercare. The Shah case applies in determining ordinary residence for patients detained under s.3 (and some Part III sections).

The ADASS guidance states:

It does not matter who is paying for care and support at the time of detention or which local authority employed any AMHP who might have been involved in the detention.

It goes on to say:

Where someone goes into hospital on a voluntary basis, they do not lose their residence. However, if during the voluntary admission the individual loses their previous accommodation, they no longer continue to be resident in that area. In such a case, if their presence in hospital is sufficiently settled they may acquire residence in hospital. If, having become resident as a voluntary patient in hospital, they are subsequently detained (for example) under section three, that will result in the authority responsible (for section 117 aftercare) being that where the hospital is situated, as that is where they will be resident.

This scenario consistent with the case law I discussed in this blog post.

I have only dipped into the full guidance in this post. It is to be hoped that the guidance will reduce the number of disputes between LA’s over their Care Act responsibilities and their responsibilities under S.117. I am certainly aware of cases where LAs continue to dispute their statutory responsibilities, often at the expense of the person whose needs have been assessed.

Unfortunately, while social care budgets continue to be squeezed and cut back to the bone, LAs are going to continue to fight to avoid the sometimes horrendously expensive care packages that the most vulnerable and disabled nevertheless continue to need.

Ask the AMHP: Yet more ridiculous problems with S.117 Aftercare

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

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

My postbag continues to receive requests for advice from relatives who are being misled about responsibility for S.117 aftercare. Whether through ignorance, or a desire to save money, I can only guess. The son of an elderly lady wrote to me with this problem.

 My mother was recently discharged from a Psychiatric Hospital in Area A. She has a history of depressive mental illness having been hospitalised at least six times over the years and each time receiving ECT therapy to get better. She was  placed on S.2 MHA and subsequently S.3 MHA, and was given a diagnosis of severe depressive disorder with psychotic symptoms as well as dementia.

I attended her discharge meeting in the hospital and was told she would be subject to S.117. I was told that I should ‘Google it’ to see what it meant when I got home. The doctor at the hospital stated that it would not be a possibility to return home as she would need a substantial care package. As it was Christmas, I decided to take her home to spend Christmas with me. I live in Area B.

While she was with me it became clear that she would need some form of residential care. I contacted the community mental health team in Area A, but was told that she was now in Area B and that I should contact social services in Area B. Following a Care Act assessment conducted by Area B social services, she was placed in a care home near where I live.

I contacted Area A social services regarding help with her care home fees under S.117 to be told that it was nothing to do with them now she was in Area B. However, Area B then told me the responsibility was with Area A.

It appears that because I took my mother home for Christmas she has received no consideration regarding her after-care and I really should have let her go into respite care.

The Masked AMHP replies:

As your mother was detained under S.3 MHA, she will be entitled to free S.117 aftercare. She should also have a Care Act assessment of her needs. The costs of any needs identified should not be chargeable.

I received this reply:

In principal there appears to be agreement that my mother is entitled to S.117 aftercare, the argument now is who is responsible, is it Area A or Area B? My understanding is that when she was taken into hospital her GP was in Area A, she lived in Area A and was hospitalised in Area A, therefore they are responsible despite the fact she is now in a care home in Area B. Area A are apparently seeking legal advice.

The Masked AMHP replied:

This issue is covered by the Care Act 2014.

Sec.39(1) of the Care Act gives a clear definition of “ordinary residence”. Essentially, this applies to adults requiring residential care. “Ordinary residence” in the case of your mother is “in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”.

Sec.39(4) then explicitly applies this to Sec.117 after-care, stating:

“An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.”

I'm not sure why Area A is seeking legal advice since it seems quite clear.

If your mother was living in her own home in Area A at the time she was detained under S.3 MHA (or S.2 followed by S.3), then Area A are responsible for S.117 aftercare. The fact that you took her to live with you in Area B is immaterial. It is the "ordinary residence" at the time of admission to hospital. Assuming she has been assessed by the local authority as needing residential care to meet her care needs because of mental disorder, then Area A would be responsible for paying for it.

Here’s another relative with problems around S.117 aftercare:

Hi, wonder if you can advise. My elderly aunt has diagnoses of advanced Parkinson’s/Dementia, Psychosis, Paranoia, Anxiety and Depression. She was detained under s.2 then subsequently discharged to self funded residential care. This placement broke down and she was again detained under S.2, and this was followed by detention under S.3.

Her social worker recommended several possible placements for us to view, to be funded under S.117, that could meet her needs upon discharge and the deal was about to be done when she got Pneumonia and fractured hip and transferred from MH Hospital to regular hospital. This social worker then left their post and we were left to the mercies of the hospital discharge team. 

The CCG said no to S.117 funding as they considered there were no ongoing health needs. They based this on the fact that her MH was now much improved, The new social worker told us they would only provide funding up to their standard maximum, and anything above that would have to be topped up by my aunt.

We reluctantly agreed to this so as not to delay discharge even though the placement was as the original social worker’s recommendation!

We then received a phone call the day before discharge saying that we had to sign the top up agreement that day or she could not be discharged. It was the standard ‘means tested’ top up agreement and we remarked at the time that we were surprised there was not specific paperwork for S.117.

5 months later a newly allocated social worker is saying S.117 funding was never agreed and a financial assessment must take place.

The Masked AMHP replies:

As your relative was detained under S.3 MHA she will be entitled to S.117 aftercare.

Unless there has been a formal meeting with Health and Social Services agreeing that your relative has no needs whatsoever for mental health aftercare, then S.117 responsibilities will continue, which means at the least that there have to be regular review meetings to review her needs. The CCG cannot unilaterally say she has no needs, although they may consider that her needs can be met through social care.

If your relative is in a nursing home, then nursing costs should in any case be met by the CCG.

It is very curious that one social worker identified a placement which presumably reflected her mental health needs, but another social worker is now saying this is not covered by S.117.

Under S.117, all the costs of a care home identified as being the most suitable should be met. A top up would only be required if you and she chose to go to another care home that was more expensive.

Even if the current social worker says no S.117 funding was ever agreed, that does not negate the local authority's duties under S.117. It just means that they have not fulfilled their duties under S.117.

The only complication would be if the care provided was solely arising from physical care needs, but this would be hard to establish, as care homes for elderly people will generally care for a mixture of people with physical and mental frailty.

Even if your relative's other mental health conditions have been successfully treated, she must still be receiving some sort of medication for mental disorder, eg antipsychotic and/or antidepressant medication, which proves an ongoing requirement for mental health aftercare. Also, Parkinson's Disease, which can produce dementia, and any other underlying dementia, are not curable, so she must still have these conditions, which are covered by S.117 aftercare.

I would point these matters out to the current social worker – the bottom line is that as she has at some point been detained under S.3 MHA, she is entitled to S.117 aftercare, whether local authority likes it or not.

If they refuse to budge, then I would make a formal complaint to the local government ombudsman, who has taken a dim view of local authorities trying to dodge their S.117 responsibilities in the past.

I received this reply:

The CCG pretty much said that her needs going forward were social care needs. She currently resides in a residential care home registered for EMI. This is what we told she needed.

As far as we know she is not taking any MH meds. She was taken off them because they were causing complications with her Parkinson's meds and she had a couple of episodes of 'dropping' which they felt was due to the MH meds. On balance, they felt it was the lesser of two evils not to take them.

Thank you for the reassurance that we have not got completely the wrong end of the stick. I shall be making the case that we should not be (and should never have been) paying a top up. We have been truly let down as a family with no mental health follow up being put in place after either of her stays in mental health hospitals and had to beg to have a social worker allocated again when the current placement was looking dodgy a few months ago.

The Masked AMHP replied:

They are clearly accepting that she is entitled to S.117 aftercare, and furthermore she is in an EMI care home. In the circumstances, it is irrelevant what medication she might or might not be taking.

As this is the specific care home identified to meet her needs, they cannot legitimately insist on top-up payments, and S.117 should cover the entire cost.

They're really trying it on!

Ask the AMHP -- This Week: A Mixed Bag of Sec.117 After-care Issues

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

I receive a lot of enquiries relating to Sec.117 after-care. Some are from professionals struggling to make sense of the regulations, and some are from distressed relatives of patients who frankly appear to be being misled by professionals regarding the rights to receive after-care.

Here are a few of them.

This one is from a relative of an elderly woman with dementia and challenging behaviour who was detained under Sec.3 MHA who was then eventually placed in a care home.

Social services called a Continuing Health Care meeting saying her needs were such that she should have CHC funding for one to one care, but at the time nobody seemed to know she was funded by the local authority under Sec.117 aftercare. Health told me at the meeting if she failed to get CHC then she was eligible for the full fees and I queried this as she was funded under Sec.117 aftercare. They checked on this and then walked out of the meeting saying Sec.117 supersedes CHC, leaving us all astounded.

Mum's behaviour quickly deteriorated on the new antipsychotic she had been given and the home evicted her within a week and she ended up in the local psychiatric unit again.

With the attention she has received there she improved, but they had to move her from the more severe unit to the more "residential " one as she was still in danger of fights with staff and patients. Sometimes she was on one to one but the staff got to know her and she was somewhat more settled.

A home assessed her but this time I did not ask any questions and they accepted her. On moving in her behaviour deteriorated . The home have now given her two weeks notice of eviction as they feel the hospital have misled them and they cannot meet her needs without one to one care.

The hospital refuse to take her back. The home has had to organise one to one care for two days as I was so concerned for her safety.

Social Services say she will need to go out of the county because there isn’t anything here without one to one that could cope.

I don’t want my Mum to be hours away from family support if she is dying.

I know this is all about money and the council cannot fund one to one, but I am told I can’t even use mum’s money for the extra support she needs. If she was on CHC she would get the help but with 117 aftercare she cannot get the care she needs.

The Masked AMHP replies:

Sec.117 and Continuing Health Care are not mutually exclusive. Just because someone is subject to Sec.117 aftercare does not mean they cannot be assessed for their needs under CHC, and if they need hospital care, this should be provided regardless.

If your mother's behaviour is too much for residential care or nursing homes to manage, then consideration should be given to admitting her to hospital for further assessment and/or treatment. The MHA could be used for this.

Under the new changes to the Mental Health Act by the new Care Act, a patient’s own funds can be used to “top up” their care.

The newly inserted Sec.117A is concerned with “preference for particular accommodation”. Subject to regulations to be issued by the Secretary of State, it will place a duty on the local authority not only to take into account a person’s preferences, but “must provide or arrange for the provision of the person’s preferred accommodation” as long as the preferred accommodation meets the identified aftercare needs. However, it is likely to allow the local authority to charge for the difference between the actual cost of this preferred accommodation and “the usual cost of providing or arranging for the provision of accommodation of that kind”.

Another nearest relative writes:

I am the mother of A, who is under section 3 in a psychiatric hospital. He has been ready for discharge for eight weeks but this has been blocked because there is a problem over funding the section 117.

A is Autistic and had been funded by X local authority to stay in a residential care home specialising in helping young adults with Autistic Spectrum Disorder to cope independently in Y local authority. He was due to leave there very shortly to a new placement organised by X.

Whilst there A's mental health deteriorated and he was detained under section at the local hospital in Y local authority. This was changed to section 3 and he was put on to medication. This all worked well and he was prepared for discharge. At this time X announced that they would not fund his section 117. As soon as he went onto section 3 they 'dumped' him saying that it was Y's responsibility. Y initially said no but then came up with a plan to share the costs with X but X flatly refused.

The urgent problem that we have is that all the time the rowing has gone on A has been detained with the loss of liberty that entails. As mentioned before he is Autistic and finds the environment very upsetting. He has now been there 8 weeks longer than he should. We have been told that he will be there until the dispute is resolved.

I would appreciate your advice on how we can get A out of there whilst the 2 warring authorities fight out who can shirk their responsibilities.

 The Masked AMHP replies:

It is truly appalling that your son has to suffer because local authorities are haggling over who should pay for his aftercare.

When someone is detained under Sec.3, the responsible authority for providing aftercare is the one in which the person was residing at the time he was detained. The residential care home would be considered to be his normal residence, as he was living there at the time, even though the placement was being funded by X, and you would probably consider that your home would be his permanent address. That means that X’s legal obligation to fund aftercare ended when he was detained under Sec.3. It also means that Y is now the authority responsible for funding any future aftercare, as whether they like it or not, they have now taken on that duty.

Although I agree that it appears heartless that X have refused to share the costs of aftercare, legally, they have no responsibility to fund your son any longer. I am sure that Y would have taken the same tack if they placed someone in X who was subsequently detained under Sec.3.

Case law is now very clear about this: the responsible authority is the one in which the patient was residing at the time they were detained. These authorities ought to know this and Y should accept responsibility.

Your son would be entitled to free legal representation by a lawyer who specialises in mental health. I would suggest that you get your son to appeal against his detention. He will then get a legal representative who can argue in a Manager’s Hearing or Tribunal that Y are shirking their legal responsibility.

It has been my experience that Tribunals can speed up these decisions by summoning senior staff in the local authority to appear before them to explain why there is a delay. The Tribunal is a court of law, and this sort of threat often concentrates the minds of intransigent senior managers!

 An AMHP asks:

The advice in my mental health trust at present is that we shouldn’t be discharging people if they continue to have Sec.117 status because the GP’s can’t /won’t review; and that the receipt of medication for their mental disorder represents aftercare! This means that patients who have no need of a service other than the on-going prescribing of their medication would remain in secondary care? Do you have a view on this?

The Masked AMHP replies:

The new Code of Practice (just issued and coming into force from 1st April 2015) has this to say:

33.3 After-care services mean services which have the purposes of meeting a need arising from or related to the patient’s mental disorder and reducing the risk of a deterioration of the patient’s mental condition.

33.4 CCGs and local authorities should interpret the definition of after-care services broadly. For example, after-care can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the particular patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition.

33.20 The most clearcut circumstance in which after-care would end is where the person’s mental health improved to a point where they no longer needed services to meet needs arising from or related to their mental disorder.

33.21 After-care services under section 117 should not be withdrawn solely on the grounds that the patient has been discharged from the care of specialist mental health services.

 

All of this would seem to indicate that the only circumstances in which a patient could be discharged from S.117 aftercare would be if they ceased to have any service provision relating to mental health needs, including medication for mental disorder. We tend to have no quibble about a patient having a depot injection remaining on S.117, so why should it be any different if they are having a prescription of oral medication from their GP?

I would tend to lean to the view that a patient who has made such a good recovery from their mental illness that they no longer need input from secondary services should perhaps no longer be subject to formal aftercare reviews. After all, the concept of "recovery" is based on the idea that people can actually get better. I have to confess that I did once have a patient with bipolar disorder who made such a good recovery that he had no symptoms and was working full time, making it difficult for him to see me as his care coordinator, or the psychiatrist, and we decided to discharge him from S.117 aftercare, even though he was still taking mood stabilising medication, which he obtained from his GP.

But the Code seems to indicate otherwise. I guess that there is no harm in having 6 monthly aftercare meetings to monitor a patient's mental state, even if they have recovered. There is research that indicates that patients receiving a depot injection from a CPN were less likely to relapse than patients receiving a depot from their GP practice nurse, so there seems some mileage in ongoing contact with a mental health specialist of some sort.

 

The Masked AMHP tries to be accurate, but should not be relied on as a definitive statement of law.

Recovery in Mental Health: the Mersey Care Conference on 14th November 2014: Part 1

The annual Mersey Care Social Care conferences, held in Liverpool each November, are always extraordinary affairs, crammed with eminent and fascinating speakers. This year was no exception.

Roger Phillips, presenter on Radio Merseyside and a staunch advocate for mental health, kicked off the proceedings as ever, with an overview of the conference.

Lyn Romeo, Chief Social Worker for Adults in England, was the first speaker. She pointed out that it is in the nature of social work to have to grapple on a daily basis with risk, uncertainty and anxiety. The issues social workers have to deal with are frequently complex, challenging, and require a sophisticated response.

The role of the social worker should be to empower. Social workers employ the professional use of self to ensure and promote choice and the human rights of the people they work with.

Social work should be focussing on the social model of mental health, and should be working on a shift away from the medical, medication led model of intervention in mental health. What matters most to service users is empowerment, promotion of human rights and allowing them a voice. Hence, it is important to stress the social approach to AMHP practice within the Mental Health Act.

Lyn touched on the integration agenda, stressing the importance of social work integration in overall service provision in mental health services, and that social workers should be providing a model of leadership.

Lyn also spoke about the impact o0f the new Care Act on social care provision, andthat it should also be influencing health provision.

The concept of “eligibility” in the Care Act presents a challenge. There is a major role for social workers in recovery, as well as understanding and evaluating risk, taking into account the individual service user’s own perception of risk.

There followed an inspiring presentation of Mersey Care’s Recovery College programme. The programme was officially launched in September 2013, and it has led to a transformation of the culture of service provision. “Recovery is about having and building a meaningful, satisfying and contributing life”. It is therefore about the development of new meaning and purpose in one’s life.

The key components were identified as a move to person centred “dafety planning”, streamlining the route to employment and meaningful occupation, and empowering selrf management and learning.

The key to the success of a Recovery College is peer support workers. Their job is to create hope, control and opportunity for students of the college, in order to allow them to develop their own expertise in their own recovery. It is about creating a route to recovery from mental illness, rather than a form of therapy.

The Recovery College has managed to obtain funding from the Department for Work and Pensions. The philosophy is that public services are best delivered “with and not “to” people. This requires a shift from the idea of “fixers” to that of “enablers”.

So far, the Recovery College has run 70 courses, involving 600 students. 84% of students attended after enrolment, and 82% of these attended the full course. This is an impressive achievement, and evidence that the Recovery College is providing what service users actually want and need.

The average number of students per course was 7, which was felt to be a good size for participants to feel comfortable. The courses range from half a day to six weeks in duration.

The rest of the presentation was devoted to two service users. First of all was the extraordinary and inspiring Iris Benson, who eloquently and movingly told her own story of recovery against incredible odds. She is an expert by experience. She even had good words to say about the social workers who had helped her during her recovery, describing them as engaging, facilitating, supporting and encouraging.

She stressed the importance in the success of the College as being co-production, co-facilitation and co-delivery of courses, involving both professionals and service users.

Equally extraordinary was Wayne Ennis, another service user, who spoke about his experience of peer support: “You have the answers in yourself”.

David Hewitt was the next speaker. David is a Mental Health Tribunal judge, and also author of The Nearest Relative Handbook. He spoke of Deprivation of Liberty: Is it the start of a service user journey of recovery?

He stressed that as far as the Deprivation of Liberty Safeguards are concerned, there is still a great deal to be done. He examined the recent Supreme Court judgments relating to Cheshire West et al, looking at what this decision establishes, but also what it leaves unsaid. There is still a need for greater clarity. He expressed some concerns about the “acid test” posited by Lady Hale in the judgment, although he felt that overall the judgment had assisted clarity.

[Lady Hale stated: “it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else.” Deprivation of liberty happens whether or not the person is aware of it.]

He also quoted Lady Hale as saying that “DOLS have the appearance of bewildering complexity”, a sentiment with which most who have to grapple with it professionally would agree.

 

David posited that change is the overall determinant, suggesting that change surely cannot be determined when deciding deprivation of liberty. He gave the example of 2 people in a care home. One came from their own home, while the other came there from a high security unit. Comparative to their backgrounds, one was in a more restrictive environment, while the other was in a less restrictive environment. However, the environment they were in was identical.

[However, there is already a challenge to this. On 18th November 2014 Justice Mostyn took issue with the Cheshire West judgment in a Court of Protection judgment [2014] EWCOP 45. He found it “impossible to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.”]

David discussed the case of Munjaz v. Mersey Care Trust, which dealt with issues of “residual liberty”. He posed the greater question, what is liberty? And who says what liberty is? There is an assumption that we can all agree what liberty is or is not, but this is not actually true.

David suggested that a law cannot be a law unless a citizen can regulate their conduct according to the requirements of that law, and cited the case of HV V.UK 2004, which concluded that any law should be sufficiently precise to allow the citizen to foresee the consequences of their actions. He appeared to be suggesting that the Cheshire West judgment, and DOLS, does not meet that requirement.

And on that bombshell, I will end this segment. The concluding part of my review will come in the next few days. (There was, as always, a huge amount of fascinating content).

The Care Act 2014: Implications for Sec.117 After-care

The Care Act 2014 is already partly enacted. Receiving Royal Assent on 14^th May 2014, some of the provisions came into force from 1^st October, while most of the rest comes into force on 1^st January 2015.

Some sections of the Care Act actually amend the Mental Health Act 1983. These changes principally affect Sec.117 after-care arrangements. They seem to be explicitly designed to resolve the disputes that local authorities often have over who is responsible for providing Sec.117 aftercare, in particular by bringing the definition of “ordinary residence” into line with other legislation, such as the National Assistance Act.

Sec.39(1) gives a clear definition of “ordinary residence”. Essentially, this applies to adults requiring residential care. “Ordinary residence” is either “in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”, or for adults with no fixed address, “in the area in which the adult was present at that time.”

Sec.39(4) then explicitly applies this to Sec.117 after-care, stating:

“An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.”

Sec.75 of the Care Act is all about Sec.117 after-care. Besides changing some of the wording and inserting some new clauses into Sec.117 of the Mental Health Act, Sec. 75(6) of the Care Act also inserts an entire new section, Sec.117A.

Sec.117A is concerned with “preference for particular accommodation”. Subject to regulations to be issued by the Secretary of State, it will place a duty on the local authority not only to take into account a person’s preferences, but “must provide or arrange for the provision of the person’s preferred accommodation” as long as the preferred accommodation meets the identified aftercare needs. However, it is likely to allow the local authority to charge for the difference between the actual cost of this preferred accommodation and “the usual cost of providing or arranging for the provision of accommodation of that kind”.

This section of the Care Act also clarifies the definition of after-care under Sec.117. It inserts a subsection (6) into Sec.117 which states that after-care should have “both of the following purposes”:

“(a) meeting a need arising from or related to the person’s mental disorder; and

(b) reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).”

 Finally, Sec.79 of the Care Act rather ominously allows for the delegation of local authority functions, stating: “A local authority may authorise a person to exercise on its behalf a function it has under…section 117 of the Mental Health Act 1983 (after-care services).”

I am not at all sure what this means. Does it simply permit staff not employed by the local authority, but who may be nurses or occupational therapists employed by local mental health trusts, to discharge LA functions relating to the provision and supervision of aftercare? Or does it permit the full scale privatisation of these functions?