Can you use the Mental Health Act with a person with capacity?

Amy Morby

A recent inquest in Cornwall reported on the sad case of 23 year old Amy Morby, who died as a result of an overdose.

It was reported on 28th May 2019 that she had received treatment at the Emergency Department in Truro three times in 4 days in September 2018. A week later she died of a fourth overdose.

The inquest reported that she was a patient of the local CMHT, and had also been assessed by the hospital psychiatric liaison team. The hospital assessor stated that Amy was treated at Treliske’s emergency department following deliberate overdoses on five occasions during 2018, including three times between September 2 and 6, just a week before she died.

He said that: “She was not acutely mentally ill. Amy’s problems were psycho-social stresses. Life was hard and she was going through a difficult time.”

The manager of the Community Mental Health Team said the team were shocked by her death as they did not consider the overdoses on September 2, 4 and 6 were actual suicide attempts. It was concluded that Amy was probably suffering from a borderline personality disorder.

There is, unfortunately, nothing out of the ordinary in this narrative. Many people suffering from a wide range of mental health problems make attempts to end their lives, and some are successful. Mental Health Services do try to help people at risk of suicide, but it is not always possible to achieve this.

Also unfortunately, identifying that a patient has a “personality disorder”, in particular, an emotionally unstable or borderline personality disorder, is often used as an excuse not only not to compel treatment, but also to decline to offer treatment.

However, there was one sentence in this report that particularly struck me:

“The inquest heard that Amy couldn’t be sectioned under the Mental Health Act as she had full capacity and wanted to continue working with the mental health team.”

It is not reported who said this in the inquest, but I know that many AMHPs would disagree.

For a start, I am reminded of the case of Kerry Wooltorton, about whom I have written on several occasions on this blog. She was allowed to die in hospital after drinking antifreeze, on the basis that she had made an advance decision to refuse treatment. The coroner in her case stated: “Kerrie had capacity and she could not therefore be treated”.

As I have said before, it is not uncommon to assess someone under the MHA who is either seriously planning suicide, or has taken an overdose of a noxious substance and is refusing treatment.

Capacity is not an essential factor in these assessments. Nowhere in the MHA is capacity mentioned in this context. The requirement is for someone to have a mental disorder within the meaning of the Act (which is very broad), and to be in need of assessment and/or treatment.

Detention under either s.2 or s.3 MHA would then provide a legal framework to provide treatment against the will of the patient.

This is not to suggest that mental capacity has no part in decision making about use of the MHA. Indeed, there is an interface between the Mental Health Act, which is about mental disorder, and the Mental Capacity Act, which is all about mental capacity.

This is reinforced by a considerable quantity of case law, including AM v SLAM, and Cheshire West.

The case law makes a distinction between objecting and non-objecting patients, and capacitous and non-capacitous patients. A non-objecting, capacitous person can be treated in hospital for mental disorder without recourse to the MHA. But both an objecting capacitous person and an objecting non-capacitous person may be detained for assessment and treatment under the MHA, and in many situations should be, if it is the only means by which they can receive the assessment and treatment they require.

Whether deemed to be capacitous or not, Amy Morby could have been made subject to section of the MHA. The decision should perhaps have been allowed to have been made by an AMHP and 2 psychiatrists.

Important Guidance from The College of Social Work on the Impact of Cheshire West on AMHP Practice

The College of Social Work has just issued The Impact on AMHP Practice and Service Delivery by The Supreme Court Judgment on Deprivation of Liberty: P v Cheshire West and P & Q v Surrey County Council.

This was authored by the eminent Emad Lilo, who is Vice Chair of TCSW AMHP Community and works as AMHP practice lead at Mersey Care Foundation Trust. He is well known for producing extraordinary annual social care conferences, some of which I have reported on this blog.

This is an important document for two reasons.

The first is that it is quite probably the last document The College of Social Work will ever issue, as the Government in their wisdom has seen fit to withdraw funding from TCSW with the consequence that the organisation will cease to exist by September.

The second reason is that it provides important guidance for Approved Mental Health Professionals, Best Interests Assessors and their employers on how to negotiate the minefield that is the interface between the Mental Health Act and the Mental Capacity Act.

Last year, the Supreme Court issued a judgement, P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014] UKSC 19, which attempted to clarify when and how deprivations of liberty might arise for people lacking mental capacity.

Lady Hale in the judgement offered a simple “Acid Test” to assist in determining whether someone suffered a Deprivation of Liberty. It revolved around two facts: that the person is not “free to leave”, and that they are subject to continuous supervision and control. She recommends that professionals should “err on the side of caution” when reaching a decision regarding potential deprivation of liberty, which means that AMHPs and BIAs should ensure they use their respective powers in such cases.

These powers are essentially: to detain the patient under the MHA, to obtain an authorisation under the Deprivation of Liberty Safeguards, or if there is no other route, to obtain an order from either the Court of Protection or via the inherent jurisdiction of the High Court.

You can read more about  the Cheshire West judgement on my blog here.

TCSW surveyed 24 AMHP service providers across England and Wales in order to find out the impact that this Supreme Court decision had had on:

·         AMHP practice and the use of the Mental Health Act

·         The use of DoLS or MHA or MCA for admitting incapacitated patients to a mental health unit

·         The use of DoLS or MHA or MCA for the provision of care/treatment to incapacitated patients already in a mental health unit

·         What training/guidance is or should be made available to improve practice including effective and lawful implementation of the judgment

As a result of this survey, the report makes a number of recommendations in order to ensure that all professionals and organisations working with people who are mentally incapacitated are practicing within the law and the spirit of the legislation.

The report also provides some useful grids and flowcharts to assist in making decisions regarding the use of the Mental Health Act or DoLS.

All but one service provider reported an increase in the burden of work carried out by AMHPs. One respondent noted:
“We have seen an unprecedented increase in the number of MHA assessments being requested, and the number of patients being detained as a direct consequence of the CW ruling.”

There has also been a corresponding increase in the level of requests for authorisations under the Deprivation of Liberty Safeguards. A respondent noted:
“The dedicated BIA team has been expanded by recruitment of extra BIAs and admin staff as this is the main point of contact for inquiries. Despite these increases the BIA service cannot adequately respond to the increase in contact and demand.”

The report observes:
“The situation appears to be more challenging for certain local authorities where a large proportion of their Best Interests Assessors for DoLS are drawn from the AMHP service. The levels of activity have led to unprecedented pressure on already limited and stretched AMHP provision across the country.”

The report also contains extensive discussion of the implications of the Cheshire West judgement in context of the new Code of Practice, and also examines the Law Society guidance issued on behalf of Department of Health.

The MHA Code of Practice was revised subsequent to the Cheshire West judgement. It must therefore be concluded that the writers of the revised Code had the judgement in mind.

Nevertheless, the Code contains some potentially alarming recommendations. For example, it states that "a person who lacks capacity to consent to being accommodated in a hospital for care and/or treatment for mental disorder and who is likely to be deprived of their liberty should never be informally admitted to hospital (whether they are content to be admitted or not)."(13.53)

A consequence of this would appear to be that the MHA is almost invariably going to be used when someone lacking capacity needs to be admitted to hospital.

However, Professor Richard Jones, author not only of the Mental Health Act Manual but also the Mental Capacity Act Manual, stated, “In my opinion, compliant mentally incapacitated patients can continue to be admitted informally under the authority of ss.5 and 6 of the MCA.  After admission, they can be assessed to see whether they satisfy the Acid Test. In any event, I do not see how the use of the MHA can be justified in anticipation of a possible future deprivation of liberty.”

Neil Allen, a Barrister at 39 Essex Street Chambers and lecturer at Manchester University went on to say: “If I lack capacity and need to be admitted to a psychiatric ward to treat my mental disorder, if I object or would object if able to, use the MHA. If I am non-objecting, use MCA 5-6 to take me there and urgent DOLS with request for standard DOLS…. In deciding whether I object or would object, if in doubt Code says err on the side of caution (i.e. consider me to be objecting).”

The report also looks at the Law Society guidance. In connection with conveyance, this states:

“Transporting a person who lacks capacity from their home, or another location to a hospital by ambulance in an emergency will not usually amount to a deprivation of liberty. In almost all cases, it is likely that a person can be lawfully taken to a hospital or care home by ambulance under the wider provisions of the Act, as long as it is considered that being in the hospital or care home will be in their best interests.”

I pick out these particular quotes as in my work as an AMHP and also having responsibility for triaging MHA assessment requests for my local authority, I am always keen to adhere to the MHA Code of Practice’s first principle, which is to use the least restrictive option wherever possible. I am therefore reluctant to use the powers of detention under the MHA if there are alternatives, including use of the MCA for people who lack capacity.

The report makes a range of recommendations, including that AMHPs need to be familiar with the Mental Capacity Act and the Deprivation of Liberty Safeguards and need to be familiar with the key points from the Cheshire West judgment, that local authorities should increase the number of AMHPs to cope with the increased demand, that there needs to be additional training on the MHA Code of Practice, and that “hospitals, local authorities and care homes must work together locally to raise awareness and improve understanding of the MCA more widely and embed it in the health and social care culture.”

This review can necessarily only outline what is contained in this important document. There is so much that is of relevance to professional decision making that I recommend all AMHPs, BIAs and others professionally involved with making decisions on behalf of people lacking capacity should read it in full.

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).

Restraint, Restriction and the MHA/MCA Interface

Over the last few months I’ve been looking at several pieces of case law which relate to circumstances in which the Mental Health Act and the Mental Capacity Act interface. These include the recent Court of Protection case relating to ML, a man with autism, and the AM v SLAM case, which attempted to define when and in what circumstances the MHA or the MCA should be used. There is also, of course, the Cheshire West case.

All these cases have one thing in common: they relate to the restraint and restriction of people with learning difficulties. ML had been detained under the MHA in a hospital in which he was subjected to extreme levels of restraint and seclusion, and the local NHS services were seeking to enforce this further, while the three subjects of the Cheshire West Supreme Court decision grappled with the concept of physical liberty as defined by Article 5 of the Human Rights Act.

Cheshire West, or to give it is full title, P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council a and Another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent), [2014] UKSC 19, Supreme Court (Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge), 19th March 2014, finally concluded a convoluted court process that had taken several years.

Both P, and P & Q, were subjected to high levels of control in their daily lives. P “was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance”. Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty”.

P & Q, (also known as MIG & MEG), are sisters. MIG lived with a foster carer, while MEG was in a NHS facility. Earlier court hearings to consider these cases had concluded, somewhat contentiously, that the situations of such severely mentally disabled people were not to be compared to normal or absolute concepts of freedom and restriction, but should instead be compared with others with similar problems.

An earlier Judge had stated: “What was a deprivation of liberty for some people might not be a deprivation for others”. He said: “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P”.

Lady Hale, in the Supreme Court, said: “The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled.”

She makes the elegant statement; “it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs… may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.”

She concluded that: “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.”

This ruling has already led to a vast increase in the number of applications for declarations under the Deprivation of Liberty Safeguards, and has placed considerable strain on local authorities’ Best Interest Assessor teams.

Then there is the recent Department of Health guidance on the use of restrictive interventions in health and care services (Positive and Proactive Care: reducing the need for restrictive interventions), which was published in April.

The guidance specifies certain situations in which the Mental Health Act, rather than the Mental Capacity Act, should be used. It states early on that “Staff must not use seclusion other than for people detained under the Mental Health Act 1983.”

It continues: “The provisions of the Mental Health Act 1983 will only very rarely authorise the application of restrictive interventions in community-based health and social care services and non-mental health hospital settings. The MCA  will, if certain conditions are met, provide legal protection for acts performed in the care or treatment of people who lack the capacity to consent to the care or treatment The MCA will be particularly relevant when staff in general hospitals are considering the use of restrictive interventions to protect the person. If the MHA and/or MCA do not apply, the use of force is only justified legally for the purposes of self-defence, the defence of others, prevention of crime, lawful arrest or to protect property and the same statutory and common law provisions apply within health and care services as elsewhere.”

It states unequivocally that: “Only people detained under the MHA should be considered for seclusion. If an emergency situation arises involving an informal patient and, as a last resort, seclusion is necessary to protect others from risk of injury or harm, then it should be used for the shortest possible period to manage the emergency situation and an assessment for detention under the MHA should be undertaken immediately.”

Para 89 says: “The seclusion of a person under the MHA in a community setting (for whom neither a Deprivation of Liberty authorisation nor a Court of Protection order under the MCA to authorise the deprivation of their liberty is in place) is also likely to amount to an unlawful deprivation of liberty. If the circumstances of a person’s care resemble seclusion, it is seclusion whatever it is called locally. An assessment should be undertaken promptly to determine whether the person should be detained under the MHA immediately.”

The guidance concludes: “Long-term segregation must never take place outside of hospital settings and should never be used with people who are not detained under the MHA” and also states: “The MHA authorises deprivation of liberty if the person meets the criteria for being detained for the purpose of assessment and/or treatment for mental disorder, even in the absence of their consent.”

I think that this guidance clarifies issues which have been of concern to Approved Mental Health Professionals, as well as proponents of human rights, for some time.

I have certainly felt very uncomfortable about the concept of comparative deprivation of liberty, which appeared to me to be a circular argument condoning and even encouraging the restraint and restriction of the liberty of people with learning difficulties purely on the justification that because they had learning difficulties they must need it.

The recent Supreme Court judgment, which came out in March 2014, fortuitously dovetails quite neatly with the DH guidance that came out in April.

It is to be hoped that all professionals , both in the public and private sector, and in social and nursing care and hospital settings, will take this guidance on board and be very careful not to restrain or restrict individuals’ liberty without ensuring that the appropriate legislation and associated legal safeguards have been used.