How Do You Section a Dolphin? An AMHP Perspective on Cetacean Sentience

“There’s no way I’m getting in that ambulance."

A recent article on the BBC news website suggests that dolphins should be given the same rights as humans. “Dolphins should be treated as non-human "persons", with their rights to life and liberty respected, scientists meeting in Canada have been told... They believe dolphins and whales are sufficiently intelligent to justify the same ethical considerations as humans.”

The article goes on to say: “It is based on years of research that has shown dolphins and whales have large, complex brains and a human-like level of self-awareness. This has led the experts to conclude that although non-human, dolphins and whales are "people" in a philosophical sense, which has far-reaching implications.”

Were this idea to be taken seriously by Government, there would indeed be far-reaching implications. Many laws would have to be amended: for example the Human Rights Act would have to be renamed the “Sentient Beings Rights Act” in order to afford cetaceans the full rights which human beings currently uniquely enjoy among the animal kingdom.

However, a close reading of the Mental Health Act reveals that there is nowhere a definition of what constitutes a “patient” or a “person”, so the MHA could as equally apply to dolphins as to people.

This would pose all sorts of difficulties for AMHP’s discharging their legal duties. For a start, how do you establish whether or not a dolphin has “a mental disorder of a nature or degree which warrants the detention of the patient in a hospital” for assessment or treatment?

Do dolphins suffer from depression, or psychosis? It’s quite possible that dolphins and other cetaceans exhibit suicidal ideation. There have been many examples of dolphins and others deliberately beaching themselves, often with tragic consequences. One recent example occurred on 5th March 2012 in Brazil, when 30 dolphins were beached. In this instance, humans took matters literally in their own hands and dragged them back into the sea.

But perhaps they should instead have waited for an AMHP and two doctors (one of whom should ideally have specialised in dolphin psychiatry) to conduct a formal assessment under the MHA before taking any other action. After all, they may have been deemed to have capacity to make “unwise decisions”.

All sorts of other dilemmas present themselves. How do you interview a dolphin “in a suitable manner”? It would be essential to have dolphin interpreters. But would you then want a dolphin who could speak English, or a human who could speak Dolphin? Which is the least oppressive option?

And would you expect the dolphin to come onto dry land to be interviewed, or should the AMHP don a wet suit, snorkel and flippers and interview in the dolphin’s natural environment?

Then there’s the matter of putting the right name of the patient on the section papers. We don’t currently have any phonetic system for transcribing dolphin’s natural names. Would we therefore have to use the names imposed on them by humans, for example, “Flipper” or “Bubbles”? And would that be considered oppressive? I don’t suppose it matters legally, as long as the same name is on all the paperwork.

Having made the decision to detain a dolphin under the MHA, how would you transport it to hospital? We would need special ambulances with a water tank in the back. But what about when the ambulance has to take a sharp turn?

And what if the dolphin objected to being taken to a dolphin psychiatric unit (and what would one of those look like?) and became aggressive? How do you handcuff a dolphin? Actually, that wouldn’t be necessary – a couple of Velcro restraint belts with carrying handles should do the trick.

And then there’s the whole issue of treatment…

My brain hurts…

Conversations with Monica: Are People with Mental Disorder Responsible for their Actions?

I always welcome comments on my blog, even if they are critical (readers, please take note!), and frequently take the time to answer points seriously. It shows that people do actually read what I write, and are sufficiently stimulated, in whatever way, by what they have read to leave a comment. I like knowing that.

Lately, I’ve been engaging in some interesting dialogue with a blog reader called Monica. Most recently, Monica has been posting some comments in response to my last post (A Young Person’s Guide to the Mental Health Act) which pose some interesting issues.

Readers of this particular post will have noticed that I made a somewhat flippant reference to a hypothetical patient who believed that they were related to the Queen, in order to illustrate an example of someone being deluded and possibly having a mental illness.

Monica made the point: “I realize that if someone said that s/he is, for example, a sibling of the Queen, you would be able to know that this is not the case… But how can you tell true delusion from being indeed "related" to the Queen through some common ancestors or by being, for example, a distant relative of someone who married into the family?” After a fascinating riff on the subject of relatedness to the Royal Family, she concluded: “Still, I can imagine that, under the wrong circumstances, if told that I have such relatives, a psychiatrist would be more likely to send me to the loony bin then to check my ancestry.”

I realised from previous comments that Monica was asking for a serious reply, so I posted the comment: “Just being deluded should not in itself constitute grounds for detention under the MHA. There has to be substantial additional risk to the person or others as a consequence of that belief -- for example, one person I detained thought her central heating boiler was talking to her. That it itself did not justify detention, but she then trashed the boiler, causing a gas leak in the process, which would have endangered her and her neighbours.”

Monica responded at some length to this comment, but somewhat to my surprise concluded by saying: “By the way, what happened to the woman with the boiler? Did she lose her apartment? Was she criminally charged or asked to pay for the damages? Was anything done to prevent her from having access to boilers in the future, at least not in her own apartment building and to a boiler that is not safely locked inside a separate room or solid enclosure?”

I mistakenly assumed that these were largely rhetorical questions, until a few days later Monica reminded me that I had not replied:

“Can you answer my questions about the boiler, though? Did the woman pay for the damages, or get charged with any crimes, or lose her housing? I really hope she did. You see, only because I tend to question psychiatric and police interventions, that does not mean that I don't believe in individual responsibility. On the contrary! I'm pretty much for leaving people alone but then whoever damages a boiler should pay for it and for any other damages to property, and get criminal charges, too, if the damage was intentional. And get kicked out of the building, too.”

This does raise significant issues relating to issues of personal responsibility for the consequences of actions which I felt deserved to be aired in the context of a full post rather than a comment.

The crucial point here is to do with mental capacity. In the words of the Department of Health’s Summary, the Mental Capacity Act 2005 was designed to provide “a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves, for example, people with dementia, learning disabilities, mental health problems, stroke or head injuries who may lack capacity to make certain decisions. “

The Act is underpinned by 5 key principles. The first and most important is: “A person must be assumed to have capacity unless it is established that they lack capacity.” The protective or restrictive elements of the Act therefore would only apply to people who had been formally assessed as lacking capacity. The logical consequence of this is contained in the third principle: “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”

This means that adults can do whatever they like as long as they have capacity, however unwise others might consider it. This might include, for example, bungee jumping, driving too fast in poor driving conditions, smoking, taking illegal drugs, pot holing, mountain climbing, eating too much, not taking enough exercise, or sending money to someone purporting to be a bank manager in a foreign country who wants to send them millions of dollars.

Of course, this also means that people with capacity have to take responsibility for the consequences of their actions. If you persist in smoking, you may get lung cancer. If you drive too fast in the wet, you may crash and harm yourself or others, and then be arrested and taken to court. If you send money to someone who has emailed you out of the blue, then you may never see that money again.

This brings us to the patient I mentioned earlier who attacked her boiler because she thought it was talking to her.

If you work in the field of mental health you find yourself working with people with a wide range of mental disorders. Some of these people have capacity, some lack capacity, and some have fluctuating capacity.

You cannot make any blanket judgments according to diagnosis, along the lines of “someone with a diagnosis of schizophrenia lacks capacity”, or “someone with an emotionally unstable personality disorder has capacity.”

Making an assessment of an individual’s capacity at any particular time will inform decision making relating to how you respond to their presenting behaviour and whether or not you consider it necessary to invoke the Mental Health Act (or Mental Capacity Act) to limit their freedom to take certain actions and make certain decisions. Someone may indeed have schizophrenia, but they may be well controlled on medication and their symptoms may be so much in remission that they are working and otherwise lead a normal life. Their underlying condition would not justify an assumption that they lack capacity.

Let’s look at the woman who damaged her boiler again. She has a diagnosis of paranoid schizophrenia. She has stopped taking her medication. She has been exhibiting a range of symptoms which constitute her known relapse signature: hearing voices, believing that God is in communication with her, believing that the Royal Family are conspiring to kill her. (It’s remarkable how many people do have delusions about the Royal Family.)

She had damaged her central heating boiler because God was talking to her out of it, and she had to stop it happening. In other words, the actions she took were a direct consequence of her mental illness. She would not have done this if she had not been actively psychotic.

In these particular circumstances, at this particular point in time, her mental illness had rendered her incapable of making rational decisions, and she therefore lacked capacity to manage her day to day life or to make decisions about going into hospital or taking medication. She was therefore in need of protection from the consequences of her actions.

In answer to Monica: this patient did not pay for the damage to the boiler, she did not get charged for criminal damage, and she did not lose her housing. In my view, this is quite right: it would not have been fair for her to be penalised in that way when she was mentally incapacitated.

That is not to say, of course, that people committing serious criminal offences while incapacitated through mental illness or disorder should not have to face any charges. But Part III of the Mental Health Act is designed to deal with these situations, for example, by giving the courts powers to arrange for the assessment of a mentally disordered offender (Sec.35), or to order them to be detained in hospital for treatment (Sec.37).

However, those with mental disorder who are deemed to have capacity would have to take responsibility for their actions. I am currently working with a woman with an emotionally unstable personality disorder. She frequently expresses anger inappropriately, for instance, by being verbally hostile to professionals trying to help her, or by cutting or hitting herself. At times she has carried a knife and self harmed in front of professionals.

These behaviours may be unwise, but her disorder does not deprive her of capacity. She can reason through her actions, and understand the dynamics that drive them, and therefore can choose or not to behave in the way that she does.

I would try to avoid the use of the Mental Health Act with this woman (I have formally assessed her on one occasion, and did not detain her), and although I am working with her to find alternative ways of expressing and releasing her anger, ultimately, only she can decide to modify her behaviour, and in the meantime must take the consequences. These have included a number of professional agencies withdrawing support to her, and occasionally police involvement.

However, there may be a situation in which she is in so much mental distress, that she ceases to be able to make rational decisions, and can be deemed to lack capacity. Then, it is justifiable to make decisions on her behalf that are considered to be in her best interests. On one occasion she took a very serious overdose that nearly killed her: she was admitted to a medical ward for life saving treatment, even though at that time she genuinely wanted to die.

So the brief answer to the question posed at the beginning of this post: are people with mental disorder responsible for their actions?

It all depends…

A Young Person’s Guide to the Mental Health Act

It's March. The days are getting longer. Spring is just around the corner. A young man's thoughts turn to -- the Mental Health Act...

Son: Daddy, what do you do for a job?

Dad: I’m an AMHP, son.

Son: A lamp? Do you light up?

Dad: No, son, I’m an AMHP. An Approved Mental Health Professional.

Son: An Aluminium Metal Shelf Partition?

Dad: No, an Approved Mental Health Professional. I have the power to detain people in hospital under the Mental Health Act.

Son: Is that a special power?

Dad: I suppose it is.

Son: Like Spiderman – he can climb up the side of buildings and squirt spider webs out of his wrists! Are you like Spiderman?

Dad: I must say, being able to squirt spider webs out of my wrists would be useful sometimes, but no, I can’t do that.

Son: So can you climb up the side of buildings?

Dad: No, but I can get police officers to force open someone’s door with the right warrant. Which is nearly as awesome.

Son: I don’t think so, Daddy. You’re not really like Spiderman at all, are you?

Dad: No, I’m not, son. I only have the powers given me under the Mental Health Act by being approved. I haven’t been bitten by a radioactive spider.

Son: What is the Mental Health Sack, Daddy?

Dad: (Takes deep breath) The Mental Health Act was written by the Government to provide a legal framework for the treatment of people with a mental disorder.

Son: What is a mental disorder, Daddy?

Dad: A mental disorder is when there’s something wrong with your head.

Son: Like a bump, Daddy?

Dad: Not exactly – although a bad bump on the head could give you a mental disorder. It’s more like feeling very, very sad, or having funny thoughts.

Son: Funny thoughts, Daddy? Like jokes? Knock knock!

Dad: Who’s there?

Son: Peter!

Dad: Peter who?

Son: Peter Bananas!

Dad: Peter Bananas? Peter Bananas?

Son: It’s funny, daddy. It’s a joke.

Dad: No, not like jokes. It’s more like having beliefs that other people find strange.

Son: Like wanting to eat broccoli? Ech! I hate broccoli!

Dad: No, not like that. Like thinking that you’re related to the Queen.

Son: But if you’re Prince Harry, you are related to the Queen. Is Prince Harry mentally disordered?

Dad: Not as far as I know. Like thinking you’re related to the Queen when you aren’t. Or thinking that God is controlling your breathing.

Son: But God does control everything. He’s everywhere and knows everything. Even when you put a bogie on Susan’s back at school.

Dad: Did you do that?

Son: No, no, Daddy. That’s just an example. So what do you do for your job, Daddy?

Dad: Well, let’s see. Here’s a little story.

Son: I like stories, Daddy!

Dad: Once upon a time there was a man called Derek. His doctor was very worried about him, because Derek had been doing strange things.

Son: What sort of strange things, Daddy?

Dad: Erm, well he has been spending lots of money. He has been buying hundreds of plastic ducks and keeps them in his living room, all around the walls. He has told the doctor that the Duck Man wants to take him to Duck Land, where he will have to float around on a lake all day and night.

Son: He’s a funny man, isn’t he?

Dad: Well, the doctor thinks that Derek is mentally disordered and needs to be in hospital. So he asks Daddy to see Derek and arrange for him to go into hospital.

Son: I see! You’re like an ambulance driver! You take people to hospital!

Dad: No, no, son. I’m not like an ambulance driver. Although I do use ambulances sometimes. My job is to go and see people like Derek to see if they’re mentally disordered and to decide whether or not they need to go into hospital. After all, Derek might have a good reason for buying lots of plastic ducks.

Son: He might have a big bath, mightn’t he, Daddy?

Dad: Yes, he might. But he might be mentally disordered. If Derek wants to go to hospital, then there’s no problem. But if I think he needs to go, but Derek doesn’t, then I can section him and make them go into hospital, even if he doesn’t want to.

Son: Do you make people do things they don’t want to do? Like when I don’t want to eat my broccoli? Are you a bad person, Daddy?

Dad: No, I’m not a bad person. Not really. I try not to be. I try to do what is the best for somebody like Derek. Although they don’t always like it.

Son: When they go into hospital, do they make them better?

Dad: They try to. They give them tablets to make the funny thoughts go away.

Son: Do the tablets always work?

Dad: Usually. Often. Sometimes. Look, why don’t I read you a story from one of your story books?

Son: All right. Derek wasn’t a very good story. Can I have Numpty the Sloth Gets Sectioned?

Dad: Not tonight. That’s a bit too much like Derek. How about The Famous Five Appear to be Mentally Disordered in a Public Place?

Son: All right, then.

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.

Origins 4: My First Caseload

Part 4 of an occasional series

Within a couple of weeks of starting as an unqualified generic social worker in Charwood in the Autumn of 1976, I began to acquire a caseload. It was quite a mixture. Being a complete novice, I did not question their histories, assuming they were “normal for Charwood”, but when I look back now, I realise how extraordinary some of these people and their life experiences were.

First, there was Benjamin. Private Benjamin. He was my very first mental health client. Benjamin had been a young man during the 2nd World War, and had been called up to serve in the Army. He had previously spent his life in a village in the Charwood area, living with his parents and family in a large timber frame farmhouse, and working on the family farm. He had a fiancée, whom he had to leave behind when he was called up. She promised to wait for him until his triumphal return.

While in the Army, Benjamin was badly injured. It was not in active service. A munitions lorry backed into him in the Army depot, crushing him against a wall and damaging his legs and spine. He was medically discharged, returning to his village permanently disabled, and only able to walk with the aid of sticks. His fiancée, on seeing his injuries, promptly left him, and married another.

Broken in heart and body, and no longer able to work on the land, he retreated to the family farmhouse, where his parents still lived with his sister and her son. He took over the attic rooms, and became a complete recluse. His mother would leave food and the daily local newspaper at the top of the steep attic stairs, he would take it once she had left, and return the empty plates to the landing when he had finished.

He continued to live like this for the next 20 or more years. No-one in the household ever saw him, although they would hear noises emanating from the attic from time to time, so they knew he was alive.

It is unclear how social services came to be involved with him. Perhaps the noises in the attic became more disturbing. Perhaps his family began to get concerned that they had allowed this crippled ex-serviceman to isolate himself in this way. Whatever the trigger, in the mid 1960’s an assessment was carried out under the Mental Health Act 1959.

The Mental Welfare Officer, his GP and a Psychiatrist climbed the steep stairs to the attic and entered the attic room in which he had lived unseen for over 20 years. The entire space was taken up with a warren made of old newspapers. They picked their way through these narrow corridors until they eventually discovered him, huddled in a nest of old newspaper. His hair and beard had grown down to his waist, his fingernails were several centimetres long, and worst of all, they discovered that, because he had not used his legs for decades, and had instead negotiated his warren by shuffling along on his bottom, his legs had atrophied under him and were completely immovable.

He was detained under Sec.25 of the 1959 Act, which was the equivalent of Sec.2, and admitted to the local Victorian asylum for assessment. He was diagnosed with paranoid schizophrenia and detained under Sec.26 (the equivalent of Sec.3), for the next 10 years.

When I took Benjamin on, it was with the specific purpose of facilitating his move out of hospital and back into the community. Although still physically disabled, physiotherapy had restored use to his legs, and he was again able to walk with the aid of sticks. His mental illness was in remission, and there was a project under way to decant the long stay patients from the hospital and back into the community.

It was not considered a good idea for Benjamin to return to the family farmhouse, where his elderly and frail mother now lived alone, and there was nowhere else in his village where he could live, but I did find a place for him in a hostel in Charwood, where he had his own room, his meals were provided, and he had company.

He was content with this for a year or so, until his elderly mother died, and the farmhouse was sold. He received a considerable share of the proceeds, and decided to leave the hostel and travel around the county, looking for a suitable place to buy a bungalow and settle down. As he was mentally capable, I could not stop him. He bade farewell, and left Charwood, and my caseload.

I thought I would never see him again.

However...

One day nearly 30 years later, I was asked to assess an inpatient on the older people’s psychiatric ward. He had been detained under Sec.2 and they wanted to further detain him under Sec.3.

It was Benjamin.

Since I last saw him in the late 1970’s he had spent over 10 years wandering around the county, staying in bed and breakfast accommodation, until being allocated a local authority flat in Charwood about 10 years previously. He had had no involvement with mental health services for 30 years.

I was the only professional who actually knew his history.

Over the previous few months, he had been refusing food, and had become emaciated and very frail. When assessed at home, they found him living in a warren of newspapers.

When I interviewed Benjamin in his room on the ward, I found a very elderly and frail man. He was by now in his 90’s. I asked him if he remembered me from the best part of 30 years ago. He did.

There were no significant signs of dementia, but he was displaying clear symptoms of psychosis. He was paranoid about food, and objected to the ward staff forcing him to eat. He thought they were poisoning him with food and medication. He wanted to go back home so that he did not have to eat or take any more medication.

There was no option. He needed to be detained under Sec.3.

He recovered. His nephew, his sister’s son, who had known him as “the mad man in the attic”, when he had been a child, and who had reconnected with him when he had settled again in Charwood, offered to accommodate him in his own home. Benjamin was his last living relative.

Benjamin agreed to this, and he was discharged.

Next time: more choice cases from my rooky caseload.

Rectifiable and Non-rectifiable Errors and Other Misdemeanours

Blog Reader: Hi there, Masked AMHP. What’s this post all about when it’s at home, then?

Masked AMHP: Hello, Blog Reader. Nice of you to drop by. This fascinating yet also informative post is all about how to fill in statutory forms correctly.

BR: Oh really? I think, perhaps, I’ll be off then. The Not So Big Society Blog has got some interesting stuff…

MA: Not so fast! This is really important! AMHP’s and doctors completing Mental Health Act forms have to get them right!

BR: Why’s that then?

MA: Because if they don’t, the whole detention could be completely illegal! Ultimately, it could lead to the patient being subject to unlawful imprisonment and they could sue!

BR: That sounds bad.

MA: It is bad! That’s why AMHP’s have it drummed into them from the very beginning the importance of filling in the forms correctly!

BR: You’re using a lot of exclamation marks today, Masked AMHP.

MA: I’m sorry. I was getting a bit over excited. I’ll try to avoid exclamation marks from now on! Oops! Oops.

BR: Now calm down, have a cup of chamomile tea, and tell me all about it.

MA: It’s all in The Mental Health (Hospital, Guardianship and Treatment) Regulations 2008 (SI 2008/1184). This states that there are certain statutory forms that have to be used for compulsory admissions and other legal aspects of the MHA, and these regulations give the wording that has to be used on the forms.

BR: Ah, yes! The dreaded pink forms, without which an AMHP is as powerless as a new born kitten!

MA: Yes. Although the forms don’t have to be pink. You see it’s the wording on the forms which is statutory, not the forms themselves – you could write them out by hand if you wanted, as long as you used the wording set out in the Regulations. These forms set out the information that has to be provided to the managers of a hospital in order for them to be able legally to receive and detain the patient. As the Code of Practice says: (13.2) “Regulations require specific statutory forms to be used for certain applications, recommendations, decisions, reports and records under the Act. The forms are set out in the regulations themselves.” Para 13.5 goes on to say: “People who sign applications and make the supporting medical recommendations must take care to comply with the requirements of the Act. People who act on the authority of these documents should also make sure that they are in the proper form, as an incorrectly completed or indecipherable form may not constitute authority for a patient’s detention.”

BR: Otherwise the patient could sue their asses!

MA: I’m not too keen on your terminology, but essentially that’s right. I always tell my AMHP trainees, or in fact anyone who’ll listen, that an AMHP’s responsibility for the assessment and admission of a patient under the Mental Health Act does not end until the patient is tucked up in the hospital and the papers have been accepted. The Reference Guide states clearly that detained patients “are treated as having been ‘admitted’ when the relevant application was received on behalf of the managers.” In other words, the assessment process does not end until the paperwork has been checked and signed off.

BR: How do you make sure that happens?

MA: It’s always best practice to go with, or at least to follow, the patient to hospital, and then not leave until someone authorised to do so has scrutinised the documents and made sure they are legally sound. That way, if there are any mistakes, at least on the AMHP’s form, they can be rectified while the AMHP is still there. I’ve recently come across a situation where the on call AMHP filled in their application form, then sent the papers off with the patient, who was being taken to the hospital by the police, but did not go themselves. When the patient arrived at the hospital, the person who received the forms discovered that the AMHP had put the name of the wrong hospital on the form. You see, the psychiatric unit was on the same site as the general hospital, but they were different Trusts. The AMHP had put the name of the general hospital on the form instead of the psychiatric unit. Although their address was the same, as the forms therefore related to a different hospital, the admission had no legal authority.

BR: What happened?

MA: The hospital admitted them as an informal patient. They could then have legally detained them under Sec.5(2) if necessary.

BR: But what if the hospital is a long way away? Does the AMHP still have to go?

MA: Ideally, yes. I’ve had to go as far as 100 miles with a patient where there’s either been a bed shortage at the local hospital or they’ve needed to be admitted to a special unit, such as a children’s ward or a secure unit.

BR: Is there no way round it?

MA: Well, there is – you can fax the forms through to the hospital in advance if it’s a long way away – that way, they can be scrutinised and approved in principle before the patient actually gets there. I’ve done that once or twice.

BR: So if a form has a mistake on it, does that make it illegal?

MA: Not necessarily. That’s where “rectifiable and non-rectifiable errors” come in. The CQC have a useful document called Scrutinising and rectifying statutory forms for admission under the Mental Health Act 1983. It gives examples of errors that can be rectified (although it’s a bit more vague when it comes to defining non-rectifiable errors). This document says that:
Documentary irregularities fall into three broad groups:
♦ Those that are both incapable of retrospective correction and sufficiently serious to render the patient’s detention invalid.
♦ Those that may be rectified within 14 days after admission, but which, if not rectified, are sufficiently serious to render the application invalid at the expiry of that period.
♦ Errors and omissions that, even if they are not corrected within the statutory period, are not sufficiently serious to render the admission application invalid.
Sec.15(1) MHA allows 14 days for rectifiable errors on forms to be corrected.

BR: So, what are “rectifiable errors” then?

MA: They are usually fairly minor things, like minor errors in the address or name of the patient, or not crossing out things that needed to be, or leaving blank spaces where you should have written something. An example might be not crossing out the bit on the application referring to being unable to identify the nearest relative, when in fact you have identified the nearest relative. But they can be bigger errors, such as two doctors from the same clinical team providing recommendations. As long as you get another medical recommendation within 14 days, you’re all right.

BR: And what about errors that make the detention invalid?

MA: I’ve already given one example. A failure to sign a form is another fatal error. Another one would be a form completed by someone not authorised to complete the form, for example an application made by someone who was not actually an Approved Mental Health Practitioner. Another would be using the wrong forms. I can remember one particular admission. I was on night duty, and was called out to do an assessment by the GP. However, by the time I arrived at the patient’s home, the patient had already gone off to hospital in an ambulance. When the ambulance arrived at the hospital, the patient was brought onto the ward, clutching a single pink piece of paper in their hand. This turned out to be a Nearest Relative Application form! The Nearest Relative had completed the first part of the form, and the GP had then written in a space on the back “I certify that this person should be detained under the Mental Health Act” and had then signed it!

BR: You’re using exclamation marks again.

MA: Sorry.

BR: Have you ever made any serious mistakes when completing an application, Masked AMHP?

MA: Me? The Masked AMHP? Made a serious mistake on an application? Well, I have actually. It was a woman with a history of bipolar affective disorder who would from time to time become manic and require detention under the MHA. She was well known to me, as I had had to detain her under Sec.3 on a number of occasions. One day there was a request to assess her under the MHA, so I set up the two doctors and went to her house. She was in the street behaving in an erratic manner. The police attended, and took her to the police station under Sec.136. I told the two doctors, who then went to see her at the police station. By the time I had arrived, they had already assessed her, and gave me a completed joint medical recommendation. I then assessed her myself, completed an application under Sec.3, and the police agreed to take her to hospital. I then followed in my car, with the pink forms on the passenger seat. Being a stickler, I double checked the paperwork as I was driving, and then realised with horror that the doctors had completed a joint recommendation for a Sec.2, not a Sec.3. I pulled into the next layby and hurriedly completed an application for a Sec.2 to make the whole thing legal.

BR: Do you feel better for getting that confession off your chest, Masked AMHP?

MA: I do, as a matter of fact.

BR: Perhaps you’d better go and have a lie down, now. And keep away from the exclamations marks!

MA: Perhaps I will.

Criminal Mental Health Acts

Part IX of the Mental Health Act creates a number of offences relating to practice under the Act and to people with mental disorder. Some have greater implications (and usage) than others.

Sec.127 relates to the ill-treatment of people with mental disorder. It is an extremely singificant provision. It makes it an offence for staff or managers of hospitals and care homes “to ill-treat or wilfully to neglect” anyone receiving treatment for mental disorder in that hospital or care home, either as an inpatient or as an outpatient. It is also an offence for “any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)”.

This has a broad application – it is intended to protect anyone with a mental disorder, whether in institutional care, or living in their own home, which would include people with mental illness, as well as people with learning disability and older people with dementia. They do not ever have needed to have been subject to the Mental Health Act. The penalty for this offence can be up to 5 years imprisonment, and/or an unlimited fine.

Although this has been in the Mental Health Act since 1983, it appears that it was not used until 2007. It is reported that Liudas Poderis was the first person to be prosecuted under Sec.127. Mr Poderis was a care worker in a nursing home in Wilmslow, Cheshire. In November 2006 he attempted to suffocate an elderly man with dementia by placing a plastic bag over his head. This was witnessed by another care worker. In August 2007 he received a prison sentence.

Prosecution under this Section has since become much more prevalent. The police appeared to have become more aware of this offence since Poderis’ conviction, as in 2008 Tanya Paterson, the manager of a care home for people with learning disabilities, was found guilty of ill treatment of a 21-year-old woman “with an intellectual age of between five and eight by bullying, shouting and swearing at her, putting her outside in the rain and pushing her about in a hallway. The charges relate to a seven-day period in May 2007.” It was reported at the time that she had “initially been charged with counts of assault but they were replaced with the allegation under s.127 (1)”.

Since then, dozens of people, mainly staff in care homes and hospitals, have been successfully prosecuted for the ill-treatment and neglect of vulnerable mentally disordered people under this section.

Sec.126 relates to forgery and false statements. This section makes it an offence to forge or to deliberately make false statements in Mental Health Act forms such as applications under Sec.2, 3 or 4, and medical recommendations. It is also an offence to knowingly possess or hold such a false document. The maximum penalty for this offence is 2 years imprisonment and/or an unlimited fine.

I suppose that examples of falsehoods on these documents could include such things as stating on Form A6 (Application by an AMHP for admission for treatment) that you have consulted with the patient’s nearest relative when you haven’t, or even signing the form which among other things states that you have interviewed the patient, when in fact you haven’t.

It’s worth saying that inadvertent errors, such as putting the wrong name or address of the patient on the form, while possibly affecting the validity and legality of the paperwork, would not in itself amount to an offence under Sec.126.

So how often has Sec.126 been used? I haven’t the faintest idea. In the many years in which I have practiced under the 1983 Act (since 1983, if you’re asking), I have never in my personal experience come across any occasion in which I have been aware of an ASW or AMHP knowingly and deliberately falsifying an application for detention. I have also been unable to find any record of any prosecutions nationally under this section (although perhaps they may be blog readers out there who know differently).

The closest to a prosecution of an ASW/AMHP that I have discovered, is the cases outlined in my post When Nearest Relatives Object. These were both civil cases brought before the High Court. In one the ASW had made an application under Sec.3 despite knowing that the nearest relative had objected to the application. In the other, again relating to a Sec.3 application, the ASW had stated that it had been “impracticable” to consult with the nearest relative, when in fact he had avoided contacting the nearest relative, knowing full well that the nearest relative would object to the application. However, in neither case was a prosecution brought under Sec.126.

Sec.128 relates to “Assisting patients to absent themselves without leave, etc”. This makes it an offence to assist a patient detained under Sec.2, 3, or 4 (or Guardianship) to “to absent himself without leave”, as well as harbouring a detained patient who is absent without leave. The maximum penalty is 2 years imprisonment and/or an unlimited fine.

There is a current “live” example of a prosecution under this section. In October 2011 a patient detained in a medium secure unit for people with learning difficulties and challenging behaviour in North Suffolk managed to escape, and was missing for several days before being recovered.

In December 2011, at a hearing at Ipswich Crown Court, Rebecca Martin, who was a member of staff at the unit, pleaded guilty to assisting the patient to escape. The case was adjourned until the end of January 2012 for sentencing. It is reported that the judge told Martin that she had pleaded guilty to an extremely serious offence. “It is highly likely you will receive a custodial sentence. It is an appalling breach of trust when someone aids and abets someone who is suffering from a psychiatric illness to escape from lawful custody.” (Eastern Daily Press 15.12.11.)

Sec.129 relates to obstruction. Among other things, this section states:
“(1) Any person who without reasonable cause—
(a) refuses to allow the inspection of any premises; or
(b) refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act or to give access to any person so authorised; or…
(d) otherwise obstructs any such person in the exercise of his functions,
shall be guilty of an offence.”

Furthermore:
“(2) … any person who insists on being present when required to withdraw by a person authorised by or under this Act to interview or examine a person in private shall be guilty of an offence.”

Anyone found guilty of these offences can receive a prison sentence of up to 3 months, and/or a fine.

What this means is that potentially AMHP’s have powers to order the arrest of people who are obstructing them in the execution of their duties under the MHA. I wonder how many police officers are aware of the powers under this section?

How many times have AMHP’s found themselves in the position of having to persuade a relative to allow them into their house so that they can assess someone under the MHA? On how many occasions have AMHP’s found relatives or other interested parties interfering with or impeding their efforts to interview a patient “in a suitable manner”? And yet how often has anyone been prosecuted under this section? Again, I am not aware of any such prosecution.

It is not generally in the nature of AMHP’s to use coercion in such a blatant way. AMHP’s usually try to get round such problems through negotiation. I know that, when confronted with such difficulties, I have usually been able to persuade the person to cooperate sufficiently to be able to discharge my legal duties.

It is a Section I have always been aware of in the back of my mind, but have never take advantage of. Even when AMHP’s are physically assaulted, they can be very reluctant to make a formal complaint.

(Digression: Although I have been physically assaulted on a handful of occasions during my social work career, some of which I have recounted in my posts on “Assault and Battery”, I have only once made a formal complaint. This was an occasion when one of my service users had physically abused her child. I had to accompany the child protection social worker so that the service user could give an account of the incident, and so that the social worker could tell her what action was being taken.


I could immediately tell that the service user was extremely angry and was potentially dangerous. The child protection social worker, however, seemed oblivious to this. I tried to warn her that we should leave, but she continued to go through her set agenda, oblivious to the increasing fury of the child’s mother.


Eventually, I took the social worker firmly by the arm and tried to lead her down the hallway and out of the door. The child’s mother, however, had other plans, and tried to block our way. As I pushed my way past her, and made a break for the door, she drop kicked me, striking my buttock. Hard.


On the advice of a team manager, I gave a full statement to the police, and even endured having to drop my pants while a female police officer took a photograph of my injured buttock. The service user was arrested and interviewed. She received a caution.)

While we’re discussing the whole issue of offences, I should mention Sec.139, “Protection for acts done in pursuance of this Act”. This provides valuable protection for AMHP’s and others against civil or criminal proceedings while undertaking their lawful duties, unless “the act was done in bad faith or without reasonable care”. This does mean that honest mistakes, or even incompetence, are protected from civil or criminal action as long as the actions were not done in bad faith. It’s worth knowing.