Case Law relating specifically to the discharge of AMHP’s powers under the MHA is fairly rare. I don’t know whether this is because AMHP’s rarely make mistakes, or whether it is because most people who are detained under the MHA don’t know enough about the legal process to know whether or not an error in law has been made.
Whatever the reason, court cases of
relevance to AMHP practice seem to be like buses – you don’t get any for ages,
then two come along at once. In fact, the two particular cases I’m writing
about were heard within a month of each other – in March and April 2012.
The first is DD v.Durham County Council
& Middlesbrough City Council ([2012] EWHC 1053 (QB)). Although the events
with which the Claimant took issue occurred at the end of 2009 and the
beginning of 2010, the Claimant did not actually issue proceedings until nearly
the end of 2011.
DD had been serving a prison sentence. When
the sentence ended, but during a period in which DD continued to reside in the
prison, he was assessed under the MHA by two AMHP’s, and the decision was made
to detain him under Sec.2 for assessment. He was admitted to a medium secure
psychiatric unit. Before this expired, he was assessed by two more AMHP’s, who
decided that he should be detained for treatment under Sec.3. Because the
location of the assessment was not in the Durham
DD wanted to instigate proceedings under
Sec.139 MHA. This relates to liability for acts “done in bad faith or without
reasonable care”. In effect, he wanted to sue one or more of the AMHP’s who had
been involved for detaining him illegally.
DD argued that both the AMHP’s who had
completed the Sec.2 application and the subsequent Sec.3 had breached their
duties under Sec.13(2) MHA.
Sec.13(2) states:
“Before making an application for the
admission of a patient to hospital an approved mental health professional shall
interview the patient in a suitable manner and satisfy himself that detention
in a hospital is in all the circumstances of the case the most appropriate way
of providing the care and medical treatment of which the patient stands in
need.”
He argued that the AMHP in question had “a duty to investigate the proposed place of detention,
the location where the patient will be kept while there and the regime to which
he will be subject. This is said to arise because of the need to make a recommendation
in the light of ‘all the circumstances’”. This was because he was objecting to
the secure unit he was sent to, instead preferring to go to Rampton.
The Judge in the case dismissed this
argument in one paragraph:
“It is obvious than an AMHP is not directly
responsible for the medical or other regimes to which a detained person is
subjected… An AMHP has certain responsibilities under the Mental Health Act
which include recommending a person for detention under s.2 or under s.3. Their
responsibilities have to be discharged in the light of all the relevant
circumstances of the case, which would include taking into account the
assessments of qualified doctors. Their functions do not extend, however, to
choosing an institution in which the person concerned is to be detained – still
less to researching the available facilities or carrying out a reconnaissance
to assess their quality.”
This is reassuring confirmation of what I
am sure is a universal view held by AMHP’s, which is that they only need to
decide whether or not a patient needs to be detained, and not the suitability
or otherwise of the hospital they will be admitted to.
DD described himself as having “a paranoid,
narcissistic and antisocial personality disorder”. This observation would be
entirely consistent with the nature of his complaint.
While in this case, the AMHP’s involved
were all exonerated, this was not the outcome in GP v. Derby City Council
([2012] EWHC 1451 (Admin)).
At the time of the court hearing, GP had
been detained under Sec.3 in a low secure unit since July 2011. He was
challenging the legality of this detention on the grounds that the AMHP had
failed to consult with the patient’s Nearest Relative as required under
Sec.11(4)(a).
The AMHP who made the application maintained that he had attempted
to contact the NR on her mobile phone, but had not been able to speak to them.
He therefore stated that it was not reasonably practicable, or would involve
unreasonable delay to do so, and completed the application. In the space
provided on Form A6, he had written: "I have tried to contact several times but the mobile went to
answer machine. As GP Section 2 is due to lapse later today and given his
current state I felt it would involve unreasonable delay to consult with Ms
P."
This assessment was concluded at around
1600 hrs on the day that the existing Sec.2 detention was due to expire at
midnight. The AMHP had been under pressure of time, and was also being
pressured by the ward staff to complete the application on the basis that the
patient needed to be transferred to a Psychiatric Intensive Care Unit (PICU).
The Judge noted that the AMHP had been
ringing the wrong number, but that the correct number was available on medical
records. He also noted that the AMHP himself had stated in evidence that it was
his usual practice to visit the NR at their home in order to consult with them
under Sec.3. The Judge concluded that there had been enough time to visit the
NR, and that the AMHP should have done this. He therefore concluded that the
AMHP had indeed failed in his duty to consult with the NR, and as a
consequence, this rendered the Sec.3 unlawful.
The Judge said:
“On the evidence that is available, the
question has to be asked as to whether it was plainly wrong to proceed with an
immediate certification in the circumstances as they were. I conclude that it
was because, as I have attempted to explain, section 11 provides constitutional
protection for those that are faced with detention under the Mental Health Act.
Compliance with the requirements of section 11(4) is therefore the price which
is paid for the ability of those charged with the treatment
of those with mental illnesses and disabilities to detain people without
immediate recourse to a court and in a way which is compliant with Article 5.
Thus there is a heavy duty on those who carry out these tasks to ensure that
those statutory provisions are complied with.”
This case has considerable implications for
AMHP practice. The Judge makes it clear that, in order not to breach Article 5
of the Human Rights Act (The right to liberty and security), an AMHP must go to
considerable and quite possibly arduous lengths to fulfill their legal
obligations. It is not enough to ring the NR a couple of times and then fill in
the form saying that it is impracticable to consult with them. The AMHP must
show far more evidence of their efforts.
The consequence of this particular lapse
was that the patient was deemed to have been unlawfully detained for up to 9
months.
