Is being a vexatious litigant a mental disorder? A case study

 

Norman was a man in his early 50’s. He came from a fairly wealthy middle class family, was educated in a public school, obtained a degree in Chemistry and had a high profile job in a pharmaceutical company for some years before setting up his own consultancy company.

He married and had one son. The couple divorced after 4 years.

He was dissatisfied that custody of his son was given to his wife, and embarked on a series of legal challenges which went all the way to the House of Lords. He insisted on conducting his own cases. He continued to challenge court decisions for over 20 years. He had a reputation as a “vexatious litigant”.

In the previous 10-15 years he had been detained under Sec.2 MHA on several occasions. A tentative diagnosis of bipolar affective disorder was made, but he never spent more than a couple of weeks in hospital. He invariably appealed against detention and represented himself in the Tribunal. He was invariably discharged from detention, would stop any medication.

By the time I became involved with him, Norman had lost all contact with his son, his consultancy had gone into liquidation, he had been evicted from his home for defaulting on his mortgage and was living in a caravan on a residential site paid for by his long suffering mother, as he refused to claim benefits.

One day he went to his bank to request a loan to continue with his endless appeals over custody of his son (who by now was 30 years old). When the bank manager refused, he attempted to remove the computer from the manager’s desk in lieu of a loan. He was arrested and detained under Sec.2 MHA.

On admission to the psychiatric ward, he promptly appealed. I was asked to write the social circumstances report.

When I interviewed him for the report, he was arrogant and dismissive. That was not in itself evidence of mental illness, but his grandiose delusions about his life, and his denial of the dire consequences of his futile litigation over the years in my view showed that he was likely to be mentally ill. He had refused medication.

In my report I concluded: “it appears likely that Norman has a mental disorder that could be amenable to treatment. However, he has only ever been detained in hospital for short periods of time for assessment, and as far as I can see has never had any treatment which could have a significant impact on mental illness. He is abnormally fixated on past perceived injustices relating to custody of the child of the marriage, to the extent that after all this time he is unable to lead anything approaching a normal life. However, without considerable further assessment, it is impossible to say whether this obsession is delusional and amounts to a treatable mental illness or is merely an extreme manifestation of despair arising from real injustice.”

As usual, Norman represented himself at the Tribunal. He treated the Tribunal as an adversarial court of law, and had huge quantities of documents, none of which had relevance to his appeal, but which he attempted to quote from at length. After a few minutes, the chair, who is a judge, was clearly getting irritated, and ordered him to stop talking. He asked Norman if he would consider having legal representation.

“I think, with all respect, your honour, that I have more knowledge of legal process than most of the jumped up barristers that inhabit the Inns of Court,” he replied

The judge adjourned the Tribunal, insisting that Norman appoint a legal representative.

A week later, the Tribunal reconvened. This time Norman had a solicitor representing him, an eminently reasonable man, whom I had seen representing many patients in Tribunals and Managers Hearings.

His solicitor began to present Norman’s case for discharge from detention. But Norman was not prepared to sit silently, and instead continually interrupted him, correcting him constantly on minor and irrelevant factual points. The judge became increasingly irritated. Norman’s solicitor was looking desperate as he saw any chance of his client being discharged evaporating.

Eventually, the judge ordered Norman to be quiet, otherwise he would be asked to leave the Tribunal. Norman reluctantly agreed to this, but had to be reminded several times, as he found the impulse to challenge every minor point almost too much to suppress.

“I put it to you, Doctor,” he interrupted at one point while the psychiatrist was being interviewed, “that your entire psychiatric edifice is a farrago of nonsense which is designed only to control the minds of those few remaining independent thinkers in this country in which we find ourselves having to live, in an ever increasing verisimilitude to the terrifying world described in Orwell’s book 1984.”

This was enough for the judge. He asked for Norman to be removed from the room, and the rest of the hearing was conducted in his absence.

He was not discharged from his section, and indeed, following a ward discussion in which it was forcefully argued that, if it was considered that Norman had a serious mental disorder, then he should be treated for it, a week later we detained him under Sec.3 and treatment for bipolar affective disorder was commenced.

He inevitably appealed again, but within a few weeks, after finally receiving a period of appropriate treatment, he began to emerge, as a butterfly emerges from a chrysalis, as a civil, polite and thoughtful man, who could at last see that his behaviour for the last 20 years had been irrational and pointless. He was discharged from detention before his appeal was heard, remained for a further period as an informal patient, and then was discharged to more appropriate accommodation.

How to get off your section

 

So, you’ve been detained under the MHA, and you want to get out of hospital. Based on my decades of first-hand experience here a few hints and tips that might make your stay a little shorter.

1. Appeal against your detention

When you are detained under a section of the MHA, it is the duty of the AMHP who detained you, and of the hospital staff, to inform you of your rights to appeal. Staff have a duty to help you if you want to appeal. Your case will then be heard by an independent Tribunal which is part of the judicial system. Around 15% of appeals to Tribunals are successful.

A formal appeal to a Tribunal will also concentrate the mind of your psychiatrist. If you are making a good recovery, they may well decide to discharge you from detention prior to the actual date of the appeal.

2. Get a solicitor

Patients detained under the MHA have the right to free legal aid regardless of their incomes. There are solicitors with special training who will take on this work. The hospital staff will put you in touch with an approved solicitor. Although a patient can use almost anyone to help them present their case in a Tribunal, your chances will be improved by having a qualified legal representative.

3. Allow the solicitor to present your case

Although Tribunals try to appear as informal as possible, it is nevertheless essentially a court of law. The chair of the Tribunal is a judge, and will not appreciate the patient making constant interruptions or challenging the testimonies of the psychiatrist or AMHP. You can ask your solicitor to point out inaccuracies or discrepancies in written and verbal reports. Your solicitor will frequently pick up on these issues without prompting.

4. Be wary of opportunities to speak to the Tribunal

I’ve seen many cases appear to go well in the Tribunal right up until the moment when the patient is asked by the medical member or the chairman to tell them more about how they are or if they have anything they wish to say to the Tribunal. Many a paranoid or psychotic patient has then gone into great detail about their delusions or hallucinations, thereby proving that they have a mental illness “of a nature or degree which warrants detention in hospital” for assessment or treatment, and which would then make it very difficult for the Tribunal to discharge them.

I remember one Tribunal I attended. The patient had sat there quietly throughout, allowing his solicitor to question the psychiatrist and his care coordinator. It had been going quite well for him. The solicitor had certainly made the psychiatrist look uncomfortable at times. The medical member then said to him: “Is there anything you would like to tell us?”

“Yes,” he replied. “I don’t need any medication or anything like that. I’d be perfectly all right if it wasn’t for these voices. They never leave me alone. They’re always going on at me to do bad things. I think it’s my psychiatrist, he projects them into my head from a transmitter on his desk. I had a brain implant inserted into my head many years ago which has made me half robot and half human. The implant picks up the signals and then I hear them. Those voices, they drive me mad, I tell you.”

Strangely enough, he didn’t get off his section.

5. Don’t threaten or assault the psychiatrist or other staff

This doesn’t look good in a report to the Tribunal. It will also tend to stay with you in every future risk assessment.

6. Take the prescribed medication

As a rule, psychiatrists really do want their patients to get better. Nowadays there is intense pressure on hospital beds, and psychiatrists don’t generally want patients to remain in hospital longer than absolutely necessary. There is a wide range of medication that really can help people with depression, psychosis or mania manage their symptoms. Cooperating with the inpatient treatment plan and with plans for your aftercare after discharge will definitely make your stay shorter.

An important note: If you are detained under S.3 (for treatment) you will inevitably be subject to s.117 of the MHA. This refers to the duty of the NHS and the local authority to provide aftercare when you are discharged. The cost of any aftercare provided (including residential or nursing care, as well as provision of community support services) will have to be met by the local authority or the local NHS Trust.

What Exactly is the Ministry of Justice Intending to Do with Mental Health Tribunals?

Almost everyone who is subject to a section of the Mental Health Act, including Sec.2, 3 & 4, Guardianship and Community Treatment Orders, is entitled to appeal against their detention.

Prior to the changes to the MHA made by the 2007 Act, the Mental Health Act Commission was responsible for arranging and overseeing these appeals. The 2007 Act, however, transferred this duty to the Ministry of Justice, and the Mental Health Tribunal became just one of the Tribunals in the First Tier system. These tribunals cover everything from employment issues to Social Security and Child Support.

A Mental Health Tribunal consists of a Judge, a consultant psychiatrist, and a specialist lay member, who is someone not a lawyer or a doctor but with a particular interest in mental health, such as a social worker or a nurse.  This ensures that there is a balanced perspective when assessing whether or not a detained patient should be discharged.

I have had mixed feelings about this transfer of responsibilities, not least because the now defunct Mental Health Act Commission kept useful statistics relating to what happened to people who appealed.

For example, in 2008, the last year that such records were kept, there were a total of 7295 tribunals. Of these, 967 patients were discharged, which amounts to 13% of all appeals.

However, in addition to this, 5862 patients who appealed were discharged by their psychiatrist prior to a hearing. In other words, it was clear that it was worth a patient appealing, as they would have a good chance of being discharged before the hearing simply because their psychiatrist either could not justify continued detention, or (Heaven forbid) could not be bothered to write a report. Even if the appeal did get to a hearing, they then had a 13% chance of being discharged.

Unfortunately, the Ministry of Justice does not keep such records, so we have no way of knowing this sort of information.

Anyway, the reason I am writing this blog is to highlight a document which has just been released by the Department of Justice, titled Transforming Our Justice System.

There are a lot of fine words in this document. It begins by boasting how wonderful our present justice system is, before stating:

“The transformation of the courts and tribunals across the country will be based on three core principles that build on its established strengths: Just, Proportionate, Accessible.”

It is also keen to save costs, and sees one of the ways of doing this as using technology to streamline the legal process.

It breezes through somewhat vague plans for the criminal and civil courts before reaching its plans for the Tribunal system, towards the end of the document’s brief 16 pages.

On the surface, there is nothing contentious about this section. It begins:

“Tribunals are an essential component of the rule of law. They enable citizens to hold the state and employers to account for decisions that have a significant impact on people’s lives. The hallmark of the tribunals system is the delivery of fair, specialist and innovative justice. That must not change.”

It is keen to adopt “a more inquisitorial and problem-solving approach, focused around the needs of individuals so that claimants can be more confident that their needs will be understood.”

It goes on to suggest that “Innovative ‘problem-solving’ opportunities will be created to improve the determination of a range of issues which have historically been spread across courts and tribunals. This ‘one stop shop’ approach is being piloted with property disputes which can be dealt with before one specialist Judge”.

And then it drops a bombshell: “The potential to extend this into other areas such as Mental Health and Employment will be explored.”

And that’s all. There is no detail as to exactly how these changes will come about.

But what the vision statement is saying is that the Ministry of Justice are seriously considering replacing the current Mental Health Tribunal, with its three members, with a single Judge.

They are actually thinking that it may be OK to dispose of the psychiatrist and the lay member.

In my view, the Tribunal psychiatrist has a very important role to play. They may be the only psychiatrist not employed by the NHS (or a private hospital) to interview and independently assess the patient. It is the patient’s only chance to put their views about detention to someone not involved in their treatment.

The lay member also has an important role to play, to explore the social dimension of the patient, and to provide a “lay”, if also expert, opinion.

Unless, like a Coroner, the Judge is qualified in both Law and Medicine, I find it hard to understand how a Judge alone can make the complex judgments required to reach a just conclusion in the absence of the other two Tribunal members.

I know it’s only mentioned in passing, that this statement is a mere outline, that there may be many changes before these proposals are initiated.

But we need to be on our guards, if we want the Mental Health Tribunal to continue to provide a check on the mental health system, and give detained patients a platform on which to be properly heard.

Ask the AMHP: Getting discharged by a Tribunal; aftercare for a Sec.37/41 patient; and treatment, accommodation and mental capacity

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.

Debbie, who was an inpatient detained under Sec.3 MHA, writes to the Masked AMHP:   

Debbie:

I read your blog to get advice about my tribunal, which is tomorrow. I wondered if you have any further advice as to how I can win and how to present myself, as I am told by the solicitor that this will be most of the problem.

Masked AMHP:

Look as smart and "together" as possible in the circumstances. Look attentive during the tribunal itself. It's probably better to let your solicitor lead and basically keep as quiet as possible. Don't interrupt when others are speaking, even if you feel they're wrong in what they are saying. Take notes, then ask your solicitor to raise your concerns on your behalf.

Around a fifth of appeals result in the section being lifted, so it's always worth appealing.

Debbie:

Thanks. Do you happen to know what chance someone has if they have been on 2 weeks consecutive leave and are being told they do not need to be in hospital? Because I was told by the psychiatrist that I was being discharged after the Sec.117 meeting, however as the care coordinator objected at the meeting and said she wanted me put on a CTO I was not discharged after all. How easy is it to get the hospital managers to discharge you?

Masked AMHP:

Managers are less likely to discharge than Tribunals.

Debbie:

OK thanks, but if the tribunal fails then is it worth trying?

Masked AMHP:

Normally there is a managers meeting, then if they don't discharge, there is a tribunal. So you get two chances to appeal against Sec.3.

Debbie:

Thanks, I won the tribunal!!!! I got a deferred discharge.

The Nearest Relative of a patient detained under Sec.37/41 writes concerning discharge and aftercare arrangements:

My wife was detained after being sentenced for manslaughter due to diminished responsibility. The offence occurred during a severe depressive episode which came about as a result of a short, intensely stressful, period which cannot be repeated. Since the ‘index offence’ 3 years ago, she has been completely symptom-free.

Before the depression leading to the index offence, her life was settled, stable and secure. I fully support her in all she wants to do. We have a stable and relaxed home life, we have no money worries and have a large and very supportive circle of friends.  Her medication has been refined since she has been in hospital; it is effective and well tolerated and she willingly accepts that she will have to take it for the rest of her life.  We feel that we don’t need support from social services; we don’t need help with housing, medication, money, training, jobs (we are both retired), or with independent living.

As you say in your article, a Sec.117 meeting must be held for patients due to be discharged from s.37. Is this aftercare compulsory?  Can she refuse any Sec.117 help and support?  Would a refusal or rejection of support jeopardise her discharge?

The Masked AMHP replies:

In the specific case of your wife, as she is currently detained under Sec.37/41, she can only be released with the consent of the Home Secretary, and she would be subject to conditional discharge. Although there would still be entitlement to Sec.117 aftercare, to a certain extent this is trumped by the Sec.37/41. Discharge conditions would be likely to include taking medication, seeing her psychiatrist and community social supervisor, as well as other possible conditions, such as residing in a particular place. I would imagine that if she has a supportive environment to return to, this would be a plus for her, and I am sure that discharge plans would take into account what is available for her. However, by the nature of Sec.37/41, any eventual conditions could not be refused.

In time, after reviews, she may be able to be discharged from Sec.37/41.

And finally, two care coordinators ask questions relating to capacity and treatment:

Care coordinator 1:

We currently have a lady who has been in hospital for a year under Sec.3.  Her delusional beliefs have not responded to treatment.  As part of planning for her discharge she has been assessed as not having capacity to decide where she lives. A best interest meeting has been held. We have identified residential placements, but she has refused to even look at them, because of her delusional beliefs.  What authority do we have to move her? A CTO relies on some level of agreement, and she is content to remain where she is, and not accepting of need for any medication or support following discharge.

The Masked AMHP replies:

You could try placing her in a prospective care home under extended Sec.17 leave. That way, it could be argued she is still an inpatient in the hospital in which she seems happy to remain. If she settles, you could then consider a CTO or Guardianship. Alternatively, if she continues to maintain she wants to leave, but it is considered to be in her best interests to remain, you could try a combination of CTO or Guardianship plus possibly a Deprivation of Liberty authorisation.

Care coordinator 2:

I am the care coordinator of a patient recently admitted informally to hospital.  She has a 5 year history of possible paranoid schizophrenia. She has previously been detained under Sec.3 and has in the past been on a CTO.

She does not believe she has a psychotic illness and believes that there are bugs in her flat and possibly implanted in her body. 

I have been working with her since last year; she has been well and in all other areas functioning and capacity are not affected. She is willing to continue on antipsychotic medication as she feels it does benefit her. 

There are discussions about her capacity regarding treatment with some stating that because she denies having schizophrenia/psychosis how can she have capacity to decide what medication she should take. I argue that she accepts psychiatric medication and acknowledges it does help alleviate some of her symptoms. 

I suppose the question is, can have someone have capacity to agree to treatment for a mental illness if they do not believe they have a mental illness? Even if they are given information, understand, can weigh it up and communicate their point of view?

The Masked AMHP replies:

I guess that if the patient accepts that there are benefits to the medication they are taking, even if they deny they have a specific diagnosis, then they could be regarded as having the capacity to agree to treatment. They may on some level or other recognise there is a disorder, even if they do not agree what that is. Even if they lack capacity, if they are amenable to accepting treatment, then I can't see there's a problem.

Consider a hypothetical case of an elderly person with dementia who clearly lacks capacity, but is accepting of medication for both physical and mental problems. If it is in their best interests, then there should not need to be any formal legal framework for treatment, as it can be managed within the guidelines of the Mental Capacity Act.

Section: Radio Drama about a Mental Health Tribunal

This sounds really interesting: there's a radio play going out on BBC Radio 4 at 2.15 pm on 14th June 2016, which is about a patient subject to Sec.37/41 (I guess) who appeals to a Mental Health Tribunal. The writer, Clara Glynn, tells me she got inspiration from reading the Masked AMHP blog, so it ought to be good!

If you can't listen to it live (some of us will be at work), you'll be able to catch up with it on the BBC iPlayer.

Clara Glynn (pictured) is a writer/director with extensive experience in drama and documentary production. She has written and directed a number of dramas and documentaries, including I met Adolf Eichman a documentary that won the gold medal at the New York Festival. 

I can't wait to hear it!

How long can a patient living and receiving treatment outside hospital be considered to be “liable to be detained in a hospital for treatment”? Recent case law

A recent appeal to the Upper Tribunal has raised some interesting issues relating to the legal concepts of “treatment in hospital” and “liable to be detained” within the context of the Mental Health Act.

The case of SL v Ludlow Street Healthcare (Mental Health:All) [2015] UKUT 398 (AAC) (16 July 2015) concerned a patient, SL, who had diagnoses of mild learning disability and hyperkinetic disorder, associated with seriously irresponsible conduct, and in the past had been detained under Sec.3 for treatment, and at other times had been on a Community Treatment Order.

SL had more recently been detained under Sec.3, but was actually living in a care home on extended Sec.17 leave at the time he appealed to the Mental Health Tribunal.

Although it was established that he mainly resided in the care home, and only actually attended hospital fortnightly for psychology sessions, and monthly for the ward review, the Tribunal found that “it was not the time he spent at the hospital that mattered, so much as the extent to which his time there contributed to the decision-making of the clinical team.” He therefore remained on Sec.3.

He appealed to the Upper Tribunal on the basis that “almost all of the treatment that the patient received was being delivered in the community, so he no longer justified being subject to section 3.”

The Judge in the case considered that the crucial point to be decided was “whether it was appropriate for the patient to remain liable to be detained in hospital for medical treatment.” He made a clear distinction between “liable to be detained” and “detained”, as someone who is in law “liable to be detained” may not in fact actually be in hospital.

He referred to case law from the early 2000’s, in which the Judge did not consider there was any distinction between treatment “in” a hospital and treatment “at” a hospital. I remember looking at this case law with some bemusement at the time, as it did seem to me that there was a quite clear difference. Nevertheless, the Judge was satisfied with this case law, and applied it to the current case.

The Judge went on to consider Sec.145(c)(ii) MHA, which gives a broad definition of “medical treatment”, including “nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care”.

Taking these factors into account the Judge concluded that SL’s Sec.17 leave in itself, as well as the rehabilitation provided in the care home, constituted part of his treatment plan, which therefore rendered him both “liable to be detained” and to be receiving “treatment in hospital”.

As a consequence, the appeal was dismissed.

Incidentally, this broad interpretation of “treatment in hospital” runs counter to some parts of the new Code of Practice. In particular, I would take issue with the case example cited in Chapter 13 CoP, which purports to describe the interface between the MHA and the Mental Capacity Act. While this refers to an elderly lady with dementia who lacks capacity, some of the statements can be directly applied in the case of SL.

In the case example P is detained under Sec.3 MHA, and is treated, but when this treatment is finished, it is considered that she no longer needs to be in hospital, and should be placed in a care home. The CoP then states: “P no longer needs to be detained in hospital for care and treatment for the mental disorder. As such, the Act is no longer available.”

If this guidance were in fact true, then patients would have to be discharged from detention under Sec.3 once they were no longer considered to require treatment in hospital, and extended Sec.17 leave would not be available to the patient’s responsible clinician.

The other contentious implication of this CoP case is the idea that treatment for mental disorder could somehow magically cease. The SL case makes it very clear indeed that the bar for what constitutes “treatment” is set low, and it would be hard to argue that anyone with an ongoing mental health disorder did not require treatment. And that treatment does not even need to take place in a hospital for a patient to remain “liable to be detained”.

A lesson to be learned from this is not necessarily to believe everything you read in the Code of Practice.

Who Should Write a Mental Health Tribunal Social Circumstances Report? Recent Case Law

This is a question that has exercised minds in the Masked AMHP’s Facebook Mental Health Forum recently. There have been a range of answers, mainly based on custom and practice within different areas.

When someone who is detained under the Mental Health Act appeals against their detention, their case has to be heard by a First Tier mental health tribunal. The tribunal require three reports: a medical report written by or on behalf of the patient’s responsible clinician (the hospital psychiatrist); a nursing report written by a nurse from the ward; and a social circumstances report.

The responsibility for writing the social circumstances report is generally seen as being that of a member of the community mental health service covering the area where the patient normally resides; this is usually interpreted as being any clinician -- ideally the patient’s care coordinator if they have one -- so it could be a nurse,  a social worker, or even an occupational therapist.
 
The dispute on the forum has revolved around local custom, depending on whether social workers are embedded in community mental health teams and employed by the mental health trust, or working separately and employed by the local authority. If integrated into the local teams, then whoever is or would be the care coordinator would be expected to write the report, regardless of their professional status; where social workers are detached from these teams, the community mental health teams have expected a social worker to write this report.

Now there has been some recent case law which clarifies the whole issue, and may have a significant impact on these local practices.

This is HM/2043/2014, involving a case heard in the Upper Tribunal, which was issued at the end of April 2015.

The patient’s legal representative appealed against a decision of the First Tier tribunal, on the grounds that both the social circumstances report and the inpatient nursing report “had been prepared by the same person a staff nurse on the ward contrary to the letter or spirit of the Senior President’s Practice Direction or otherwise contrary to principles of natural justice and fairness.”

While the judge quickly concluded that what he had to consider was whether or not the tribunal’s refusal to adjourn the original tribunal was unlawful, he was driven to state that:

“The issue which this appeal is concerned with, at least ostensibly, is the lawfulness of a “social circumstances report” being prepared by a member of the nursing staff at the hospital where the appellant was detained (a nurse who had also compiled the in-patient nursing report) as opposed to it being prepared by a social worker.”

In his deliberation, he noted:

“It is the “Responsible Clinician’s Report” and not that of not anyone else. Likewise, it may be argued that the “In-Patient Nursing Report” by its title requires the reports to come from a nurse. On the other hand, the title “Social Circumstances Report” arguably does not identify the report by its author but rather its contents.”

He therefore concluded:
“As far as I can see there is nothing in the MHA, Code of Practice, Practice Direction or the TPR which as a matter of law requires that the social circumstances report be prepared by a social worker or CPN and not a nurse, or that that report writer must be a different person to the person who prepares the nursing report.  The important issue is not the professional title of the report writer but the relevance and quality of the information provided in the report and thus the report writer’s position of knowledge in respect of that information.”

The circumstances that gave rise to this appeal are in themselves unusual, as the mental health trust involved as a matter of policy permitted the ward nurse (of a forensic unit) to write both the nursing report and the social circumstances report. The trust has since changed this policy.

But what this judgment does state unequivocally is that there is no legal imperative for any particular professional to write the social circumstances report, as long as “the relevance and quality of the information provided” is adequate.

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?

Ian Brady’s Mental Health Tribunal – anything to learn?

In June 2013, Ian Brady had a week long mental health tribunal to appeal against his detention in Ashworth Hospital. He claimed that he had only feigned mental illness, and he wanted to be transferred back to prison on the grounds that he was not suffering from mental disorder of a nature or degree that made it appropriate for him to receive medical treatment.

In 1966 Ian Brady and Myra Hindley were convicted of the murders of five children. Myra Hindley spent the rest of her life in prison. However, Ian Brady was later transferred to a special hospital, and has remained in high secure hospitals until the present day.

This hearing was remarkable in several ways. Tribunals are normally held in private: the only people at most tribunals are the patient, his or her legal representative, and professionals involved in their care. But at Brady’s request, this one was held in public. It was only the second time that a hearing has been held in public. It was also the longest hearing that I can recall; generally, hearings take between 1-3 hours. It is reported that his legal costs amounted to £250,000.

He lost the appeal. Judge Robert Atherton concluded that: “Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him”.

This decision was made at the end of June 2013. However, the written decisions were only published at the end of January 2014.

At the time of the original decision, the Daily Mirror described Brady as “unhinged and insane”. However, the written decision, which runs to 115 pages, is far more measured, although essentially reaching the same conclusion.

For many reasons, there was a high level of publicity surrounding this tribunal. This was the first time that Ian Brady had been at a public hearing since his original conviction in 1966. He and Myra Hindley have been notorious ever since their conviction for their truly appalling crimes, and interest in Brady is bound to continue until his death.

I’ve now read all 115 pages of the written adjudication. It makes fairly interesting reading.

It is important to understand that a Mental Health Tribunal can only decide on certain issues. In the case of Brady, these are that:

• Brady is then suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment;
• it is necessary for his health or safety or for the protection of others that he should receive such treatment; and
• appropriate medical treatment is available for him.

If the Tribunal is not satisfied on these points, then the patient must be discharged. In Brady’s case, this would have meant a return to prison, which is what he wanted.

One of the remarkable things about the Tribunal’s reasons for their decision is the weight of medical evidence presented by psychiatrists, clinical psychologists and nurses involved with his care, as well as evidence provided by psychiatrists acting on behalf of Brady. In total, seven professionals gave evidence.

The hearing first had to decide whether or not Brady was suffering from mental disorder of a nature and/or degree making it appropriate for him to be treated in a hospital. There appeared to be no dispute that Brady had a severe personality disorder. On balance, the unanimous conclusion was that he had a personality disorder “which includes antisocial and narcissistic traits”.

The main area of dispute appeared to be regarding whether or not he additionally suffered from paranoid schizophrenia. The Ashworth professionals maintained that he did, while those representing Brady maintained that he did not. Brady himself stated in the Tribunal that he only pretended to exhibit symptoms of paranoid schizophrenia.

There is considerable discussion about “nature or degree”. The Ashworth contingent argued that his paranoid schizophrenia was indeed of both a nature and degree, while Brady’s supporters contended that “it is neither of a nature nor degree which makes it appropriate to continue his detention in hospital for treatment. They accept that he suffers from paranoia but attribute that to his personality disorder and regard any mental illness as being of minor importance”.

The problem with all this is that it is very difficult to argue against “nature or degree”. If  it is decided that someone does indeed have paranoid schizophrenia, then it is by definition of a “nature” to make it appropriate for them to receive treatment, even if the condition might be in remission and therefore not of a “degree”. Perhaps inevitably, those arguing on Brady’s behalf would fail to convince a Tribunal if the Tribunal had concluded, as they did, that Brady did indeed have paranoid schizophrenia.

Once the Tribunal had concluded that Brady had both mental illness (paranoid schizophrenia) and mental disorder (personality disorder), and that these were of a “nature and degree” that required treatment in a hospital, it was a simple step for them also to conclude that it was also necessary for his health or safety and for the protection of others. His defense could then only rely on whether or not “appropriate treatment” was available for him.

The Tribunal accepted that treatment would not include the use of medication, and that “Mr Brady is very unlikely to take part in any psychological treatment.” They therefore considered at length the definition of “treatment”.

The Tribunal stated that:

“Section 145(1) Mental Health Act 1983 provides “medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care. The Tribunal observed that this sub-section does not seek to provide a comprehensive definition. It sets out various actions which may be taken when seeking to assist a patient. There may be a degree of overlap of the nature of that assistance encompassed by the items mentioned but they must also connote some different action. Thus, in the opinion of the Tribunal whilst “specialist care” may include “nursing” it must also encompass other actions. Conversely, “nursing” does not necessarily encompass “specialist care”. This indicates the width of meaning of the term “treatment”.

The Tribunal considered, and clearly approved of, one of the witnesses, Professor Eastman, who “had divided the treatment of patients with mental health problems into three different forms, which had been referred to during the case as limbs one, two and three.”

 The Tribunal went on to describe these three treatment “limbs”:

“Limb one is treatment of the patient’s core disorder; limb two is seeking to give the patient the skills necessary to cope with situations that they had previously found difficult or stressful but without attempting to change the core disorder; limb three is management focused on managing the patient’s environment so that conflict in situations is minimised. This includes management in the hospital when the patient is on leave from the hospital and when the patient is in the community; “this neither alters the core disorder nor gives skills to the patient.””

While Brady’s defenders sought to disregard such things as nursing care and the building of a therapeutic relationship Brady as constituting “treatment”, the Tribunal ultimately disagreed, and adopted a much wider definition of treatment which was not confined purely to medical concepts of treatment.

The Tribunal therefore concluded, after 115 pages of argument and consideration of all the available evidence, that “it has been demonstrated by this evidence that it is necessary in the interests of his own health and safety that he be detained in hospital for treatment and that appropriate treatment is available.”

Brady did not, therefore return to prison.

While the findings of this Tribunal did not particularly contribute to case law regarding treatment, if nothing else, the publication of the Tribunal’s findings gives an insight into the workings of Tribunals which are generally invisible to the general public.

What You Need to Know If You’re Sectioned

So, you’ve been detained under the Mental Health Act 1983, and you’re in hospital. It’s most likely you’ve been detained under either Section 2 or Section 3.

Section 2

A Sec.2 lasts for up to 28 days. The purpose of detention under Sec.2 is to assess you to decide if you have a mental disorder.

 

There are two grounds for a Sec.2:

“(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”

Two doctors will have assessed you and will have decided that, in their opinion, you have a mental disorder. An Approved Mental Health Professional will have “interviewed you in a suitable manner” and would have had to satisfy themselves 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”.

The primary purpose of detention under Sec.2 is to assess you to see if you do, in fact, have a mental disorder or not. Although the detention is for assessment, you can be given treatment as well.

Section 3

A Sec.3 lasts for up to 6 months, although it is fairly unusual for someone to be detained as long as this. The purpose of detaining under Sec.3 is in order to give you the treatment it is thought you need for a mental disorder.

There are three grounds for a Sec.3:

“(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(c) appropriate medical treatment is available for him.”

Again, you will have been assessed by an Approved Mental Health Professional and two doctors.

The sort of treatment you will receive is primarily at the discretion of the hospital psychiatrist. However, Electro Convulsive Therapy (ECT) cannot be given to a detained patient unless they consent and are deemed to have the capacity to consent. See this post for more details about ECT.

A Sec.2 cannot be extended beyond 28 days. However, a Sec.3 can be extended for another 6 months. It can be extended beyond that, in which case the renewal would then last for 1 year.

“Mental disorder”

Both sections depend on establishing whether or not you have a mental disorder. The definition of “mental disorder” in the Act is very wide, being “any disorder or disability of the mind”.

The Code of Practice does however suggest a range of conditions which could be considered to be mental disorders. These include the following, although this is not an exhaustive list:

• affective disorders, such as depression and bipolar disorder
• schizophrenia and delusional disorders
• neurotic, stress-related and somatoform disorders, such as anxiety, phobic disorders, obsessive compulsive disorders, post-traumatic stress disorder and hypochondriacal disorders
• organic mental disorders such as dementia and delirium
• personality and behavioural changes caused by brain injury or damage
• personality disorders
• mental and behavioural disorders caused by psychoactive substance use
• eating disorders, non-organic sleep disorders and non-organic sexual disorders
• autistic spectrum disorders (including Asperger’s syndrome)
• behavioural and emotional disorders of children and adolescents     

As a rule, you cannot be detained under the Mental Health Act purely on the grounds that you have a learning disability, unless it is associated with “abnormally aggressive or seriously irresponsible conduct”.

Dependence of alcohol or drugs is not in itself considered to be a mental disorder.

What you can do

Everyone detained under Sec.2 and Sec.3 has the right to appeal.

If you’re appealing against a Sec.2, you will have to do this within the first 14 days of your detention. An independent Tribunal will then hear your appeal within a week.

If you’re appealing against a Sec.3, you can appeal at any time during the 6 months of the detention, and after that during any renewal.

An appeal against a Sec.3 can be considered by a panel of hospital managers. These are not staff of the hospital, but lay people who have an interest in mental health issues and who also have the time to devote to these duties. They would hear your appeal within a couple of weeks. If they do not discharge you from the section, then a Tribunal would hear your appeal within a month or two.

A Tribunal consists of a panel of three – the judge, who is a lawyer, the medical member, who is a psychiatrist, and specialist lay member, who is generally a lay person with a particular interest and experience in working with people with mental health problems, such as an AMHP, a nurse, or someone with extensive experience in the voluntary sector. Tribunals are part of the Judiciary, and are in effect a court of law, although they are much more informal than a normal court hearing.

For both a Managers’ Hearing and a Tribunal you are entitled to have a legal representative to present your case. These are solicitors with particular training and knowledge of mental disorder. You will not have to pay for this representative. Alternatively, you can appoint any other person to represent you, apart from people who are themselves detained under the MHA or who are inpatients in the hospital.

You will be allowed to attend the hearing, and will also be allowed to take part and have your say. The other people present at these hearings will be your representative, your Consultant Psychiatrist or one of his junior doctors, a hospital nurse involved with your care, and someone from the community mental health team, who could be a social worker, a community mental health nurse or an occupational therapist. Your nearest relative can also attend if you want them to. There will also be a clerk.

Both a Managers Hearing and a Tribunal Hearing will have access to three reports: a medical report compiled by the patient’s psychiatrist, a nursing report, and a social circumstances report written by someone from the community team.

Both Tribunals and Managers have to be satisfied that you are “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 either assessment or treatment. For a Sec.2 they also have to be satisfied that the patient’s detention “is justified in the interests of the patient’s own health or safety or with a view to the protection of others”, while for a Sec.3 they also have to be convinced that “it is necessary for the health or safety of the patient or for the protection of others that the patient should receive such treatment”. For Sec.3 they also have to be satisfied that the appropriate medical treatment is available.

In order to satisfy themselves of these factors, they will use the reports supplied, but will also hear verbal evidence presented by those present. This gives a chance for you and your representative to cross examine the other people present and to give your side. They can then decide one of three things: not to discharge you, to discharge you with immediate effect, or to direct that you be discharged at a future date.

It’s worth appealing, because often a psychiatrist will decide to discharge you from your section before the appeal is heard, and even if they don’t, about 15% of people who appeal are discharged by the Tribunal.

Nature or Degree

The Mental Health Act attaches a lot of importance to the concept of “nature or degree” in relation to mental disorder. In fact, the MHA refers to “nature or degree” at least 18 times (I’ve counted).

For example, Sec.2(a) states:
“(2) An application for admission for assessment may be made in respect of a patient on the grounds that he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period.”

The distinction between “nature” and “degree”, and its implications for practice, is a complex one. On a day to day basis, an AMHP tends to be more concerned with the “degree” of mental disorder present on assessment. For a patient not previously known to mental health services, the “nature” of their mental disorder may be unknown or unclear.

Someone who has taken amphetamines or a hallucinogen like LSD may present with symptoms difficult to distinguish from schizophrenia or bipolar affective disorder. It is only when the effects of the drugs have worn off that it might become clear that they do not have a mental disorder at all. Similarly, an older person with a urinary tract infection may present with symptoms very similar to dementia or other mental illness. It is only when there has been an opportunity to diagnose and treat the infection that it is apparent that they do not have a mental disorder.

I have detained many people presenting with acute indications of severe mental illness who have, following admission, been found to have taken drugs, or have some other organic cause for their presentation, which has quickly resolved with the passage of time or physical treatments. I recall the psychiatrist and I being convinced that someone being assessed at the CMHT had all the signs of bipolar disorder: pressure of speech, flight of ideas, sleeplessness, hyperactivity and irritability. However, on admission it was discovered that he had been drinking 10 or more cans of Red Bull daily prior to the assessment, and after a night in hospital he returned to normal.

Detention under Sec.2, then, might commonly occur when someone is presenting with symptoms of a “degree which warrants the detention of the patient in hospital for assessment”, but where the nature of their disorder may be far from clear.

“Nature” becomes more important when assessing someone under Sec.3, for treatment. Anyone being considered for detention under Sec.3 should have some sort of working diagnosis of mental disorder, and the psychiatrist should have a pretty clear idea of the sort of treatment that is required to treat that disorder. The patient must therefore have a mental disorder of a sufficient “nature” to warrant detention for treatment.

In fact, not only must the psychiatrist state on the medical recommendation that the patient has “a mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in hospital”, but he or she also has to give an account of the symptoms that have led them to that conclusion, the sort of treatment the patient requires, and where that treatment is available.”

If someone is in hospital at the time of assessment, “degree” is also very important; the AMHP needs to be satisfied that the patient has active symptoms of mental illness or disorder that require treatment in the first place to alleviate them.

It can, however, become more complicated when someone in the community is being considered for detention under Sec.3. While normally, both nature and degree should be present in order to justify detention for treatment, there are circumstances in which it may be justifiable to detain someone who has a known diagnosis, for example, paranoid schizophrenia, and therefore has a mental disorder of a “nature”, but who is currently symptom free.

In Smirek v Williams [2000] MHLR38, it was noted:
“”Where there is a chronic condition, where there is evidence that it will soon deteriorate if medication is not taken, I find it impossible to accept that that is not a mental illness of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment if the evidence is that, without being detained in hospital, the patient will not take that treatment”.

Richard Jones (Mental Health Act Manual) makes the proviso that making a decision to detain in such a case should be based on an assessment of the risk to the patient or others if they are not treated.

(I once detained a patient under Sec.3 who had made an advance decision requesting that she be detained if she became unwell and no longer had the capacity to make an informed decision about admission. In the past, she frequently damaged and destroyed her property when unwell, and would be understandably very distressed about this when she recovered.)

The question of “nature or degree” invariably arises in Tribunal hearings. Here, if the Tribunal is not satisfied that a patient is, at the time of the Tribunal, suffering from “mental disorder of a nature or degree which warrants detention in hospital” for either assessment or treatment, then they have to discharge the patient. They will therefore be keen to establish from the psychiatrist whether mental illness of a nature or degree or both are present in the patient.

The case of R (Smith) v MHRT South Thames Region (1998) EWHC Admin 832 very usefully examined the issue of “nature and degree”, especially in connection with Tribunals. This case related to a patient with a diagnosis of paranoid schizophrenia who appealed against his detention. A Tribunal considered that he had a mental illness of a nature but not a degree which warranted his detention in hospital. He challenged the legality of this decision.

The judge concluded: “It is quite clear that the illness was not of a degree which of itself made it appropriate for him to be liable to be detained. The reason for that was because he has a chronic condition which was static. However, the nature of the condition was that it might cease to be static so that the interpretation that nature is in some way unchanging in one view may be right, but the effect of the condition is that because of its very nature it may not remain static. It seems to me that if the facts upon which the Tribunal rely have shown that it may not be static, that goes to the nature of the condition. The degree in the instant case, in relation to his condition, was not relevant because it was static and stable.”

He went on to state: “If one had simply to look at the degree it would have been right for the discharge to take place, but the nature of the condition was such that it was clear that he should not be discharged.”

This decision was widely quoted in both the Reference Guide and the Code of Practice and has become  the primary legal definition. C4.3 of the COP unequivocally states: “Nature refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient’s previous response to receiving treatment for the disorder. Degree refers to the current manifestation of the patient’s disorder.”

Whether you are presenting a social circumstances report or a medical report to a Tribunal, it is vital to understand this distinction. I have seen solicitors in Tribunals tearing inexperienced psychiatrists to pieces when they have sensed that they are unclear about the importance of establishing “nature and/or degree” and the difference between the two.

It’s not a pretty sight.

Are Community Treatment Orders Taking Over the Mental Health Act?

There have been a couple of interesting publications released in the last month relating to Community Treatment Orders. One was the annual Government statistics for the use of the Mental Health Act, which includes detentions and discharge under Supervised Community Treatment (In-patients formally detained in hospitals under the Mental Health Act, 1983 – and patients subject to supervised community treatment, Annual figures, England 2010/11). This relates to the second full year’s activity for CTO’s.

What a clear and easy to follow publication this is! It even begins with a concise and easy to understand analysis of the figures. And what these figures show is the full impact that the introduction of Supervised Community Treatment (Sec.17A) in 2007 has been having on general uses of the MHA.

I can’t paraphrase the summary any better than the report itself, so I will quote directly:

“Although the total number of formal admissions to hospital and the number of new Community Treatment Orders (CTOs) decreased between the 2010/11 reporting period and the previous one, the overall number of people subject to the Mental Health Act [this includes formal detention in hospital as well as CTO’s] at 31st March increased by 5.0%, from 19,947 in 2009/10 to 20,938 in 2010/11. This increase can be attributed to a rise by nearly a third in the number of people on a CTO at 31st March.”

On the face of it, the figures seem contradictory; for example, the total number of formal admissions decreased by 2.2 per cent, and yet the number of people detained in hospital at 31 March increased by 0.2 per cent. This, however, can be attributable to a rise in the number of CTO recalls, two thirds of which were then revoked. The underlying Sec.3 then comes back into force.

The report also observes that “the number of people on CTOs at the end of the year rose, even though the number of new CTOs made during the year reduced. This was due to the number of new orders made being greater than the number of orders from which people were discharged: 3,834 new CTOs were made in 2010/11 and 2,185 orders were closed.”

The report states that admissions for treatment under Section 3 fell by 14.4 per cent. This can also be attributed to the rise in the use of CTO’s, as they mask the true use of Sec.3, since in essence the detention under Sec.3 is merely suspended by the CTO, and can be reinstated when a CTO is revoked without a fresh formal assessment.

What is clear is that, after only two full years of its use, CTO’s are beginning to seriously impact on the overall use of the MHA. There appears to be an inexorable rise in the number of people in the community subject to CTO’s, as once made, CTO’s can be extended indefinitely.

At least part of the reason for this can be found in a study recently published in The Psychiatrist, which looked at the views of psychiatrists relating to CTO’s (Community treatment orders in England and Wales: national survey of clinicians’ views and use, Manning et al, The Psychiatrist (2011), 35, 328-333).

This study found a considerable popularity for the use of CTO’s among psychiatrists, despite an initial reticence before the new powers came in. The research found that “clinical reasons were rated as being more important in decision-making than ethical or bureaucratic concerns. For example, the most important factors in initiating an order were considered to be promoting adherence to medication, protecting individuals from the consequences of relapse, and ensuring contact with health professionals.”

AMHP’s may find this more than a little alarming, as an AMHP must consider the ethical implications, and must also necessarily ensure adherence to due legal procedure. However, the study does conclude that:

“There remains considerable disagreement and uncertainty regarding the clinical usefulness of CTOs. It is important that clinicians are mindful of this. They should seek multidisciplinary input when making such fundamental treatment decisions in the face of enabling legislation, a lack of evidence, and (perhaps more challengingly) a lack of professional consensus or guidance. Multidisciplinary discussion and decision-making should reduce variability in the use of compulsion.”

In my post back in January this year (Community Treatment Orders and the Role of the AMHP) I looked at the previous years’ figures and concluded “since CTO’s are often being kept in place for a year or more, this could mean a growing accumulation of patients in the community on CTO’s.”

Both the new figures, and my own personal experience of CTO’s, bear this out. Back in January, I had only been professionally involved with CTO’s on two occasions. However, in the last 12 months, I have endorsed 5 CTO’s, 3 extensions (Sec.20A) and 2 revocations (Sec.17F(4)). Additionally, I have frequently been involved in multidisciplinary discussions of patients detained under Sec.3 in which discharge under SCT has been mooted, where it seems likely that more people currently detained under Sec.3 will be discharged on Community Treatment Orders in the future.

As I have said before, the AMHP role can be very quick and easy to discharge legally – you do not actually have had to interview the patient or Nearest Relative, and it is not even a formal requirement to provide a report, although at least the CQC are now promoting this as best practice. I would say that that is all the more reason to exercise diligence and best AMHP practice when a request is being made for a CTO, or an extension or revocation.

Of course, a consequence of that is for assessments for CTO’s to become drawn out processes occupying a lot of AMHP time. One recent example of this was when I received a request to endorse a CTO for a patient with learning difficulties who was detained under Sec.37 MHA (by the courts), following the commission of a serious sexual offence. He had been detained in a secure hospital for several years, during which time he had been provided with an extensive sex offenders’ treatment programme. It was now felt that he could be managed out of hospital, and a bed in care home had been identified.

Since I knew nothing about this patient other than the bare bones, and in view of his serious forensic history, I felt that it was necessary to make a thorough examination of his medical and nursing notes. This entailed a visit to the hospital, and an afternoon closeted away in a side room working through his very extensive files. In particular, I wanted to know precisely what the nature and degree of his mental disorder was, as well as the treatment he had received, the progress he had made, and the plans for his aftercare on discharge.

I then attended the hospital again to interview him and for a CPA/Sec.117 review meeting. This was a useful, although gruelling, meeting, as the prospective community Responsible Clinician was present, as well as the clinical psychologist, hospital psychiatrist and nursing staff who had been treating him, and the Nearest Relative of the patient. We concluded that it was appropriate for him to be discharged on a CTO, and the hospital RC and I then completed the paperwork together.

The entire process had taken me around 10 hours, including two visits to the hospital and a written report, but I felt that professionally it was necessary.

Another consequence of the increase in the use of CTO’s is the additional and unavoidable burden of work on the AMHP, or the patient’s care coordinator. Although I have not yet come across a patient who has appealed against their CTO, what I have been discovering is that imposing a CTO (which lasts for 6 months), and extending a CTO (which would initially be for another 6 months), can lead to automatic referrals to the hospital managers, the Tribunal, or both. This of course then entails the necessity to interview the patient, to consult with the Nearest Relative, and to write a report, followed by mandatory attendance at a Managers Hearing or Mental Health Tribunal.

These Hearings and Tribunals themselves can be rather surreal. What I am finding is that patients who are offered the chance to leave hospital and return home, as long as they accept being on a CTO, are unlikely to object to this. Once they are have been discharged home, they are also fairly unlikely to want to return to the hospital in order to attend a hearing.

One patient I was involved with explicitly stated that she wanted nothing to do with the hearings that had been arranged for her, and neither did she want a legal representative. This resulted in attending a Managers Hearing where only the 3 hospital managers, the hospital Psychiatrist and I were present. The hearing lasted all of 15 minutes.

The subsequent Tribunal consisted of the community Responsible Clinician, the three Tribunal members, and I. This lasted for a full 30 minutes, at the end of which the Tribunal members looked at each other, then at us, and gave their decision without an adjournment. Considering that the average length of a Tribunal for an appeal against Sec.2 or Sec.3 is well over 2 hours, the RC and I were somewhat taken aback.

We are now 6 months on from these latest figures, and so far I have not seen enthusiasm in the use of CTO’s waning. I await the figures for 2011/12 with interest.