Detentions under the Mental Health Act 1983: The Latest Statistics 2012-13

The latest statistics on inpatientsformally detained in hospitals under the Mental Health Act 1983, and patientssubject to supervised community treatment was published on 30^th October 2013. This is an interesting and easy to understand report, and I would urge everyone with an interest in mental health and the use of the Mental Health Act to read it.

This is the third time I have reviewed these annual reports from the Health and Social Care Information Centre, which is part of the Government Statistical Service. The authors clearly love statistics as much as I do (my previous reviews are here and here).

Two years ago I wrote: “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.”

One year ago I wrote I quoted from last year’s report: ““The total number of people subject to detention or CTO restrictions under The Act has continued to rise. On the 31st March 2012, this figure stood at 22,267 people, representing a 6 per cent increase since the previous year… There were 4,220 CTOs made during 2011/12, an increase of 386 (10 per cent) since last year.”

So what do the statistics show this year?

The report notes that “there were 4,647 CTOs made during 2012/13, an increase of 427 (10 per cent) since last year”. The report also notes that “in spite of larger numbers of CTOs being ended each year, the number issued continually outweigh this, resulting in an increasing number in place at the end of each reporting period.”

Despite some (potentially flawed) evidence that CTO’s are ineffective in keeping people out of hospital, it appears that this is not deterring clinicians from using these orders.

Last year, I observed that, as an AMHP, I was “finding increasing amounts of my work relate to CTO’s. In the last 12 months, I have been involved in 4 new CTO’s (Sec.17A). But I have also been involved in the extension of CTO’s on 6 occasions (Sec.20A).”

And what of my own personal statistics for the last 12 months? Well, a significant amount of my time as an AMHP continues to be occupied in work relating to Supervised Community Treatment. I was involved in 3 new CTO’s, I extended 4 CTO’s, and was involved in revoking 3 CTO’s. These tasks involve an interview and assessment of the patient each time, involvement in S.117 planning meetings, written reports each time I am involved in a new CTO, or an extension, or a revocation, and frequently the necessity to prepare Managers and Tribunal reports and attend Tribunal hearings.

I’ve just calculated that I have spent 85 hours in the last year on work relating to CTO’s. That’s more than two working weeks. It amounts to a significant proportion of the overall time I spend discharging my statutory functions under the MHA.

 

Two years ago I posed the question: Are Community Treatment Orders taking over the Mental Health Act? The evidence is increasingly pointing in that direction.

Although of course I am ignoring the increasing time that formal assessments under the MHA are taking in general. What with problems in finding a bed, coupled with increasingly long delays in getting an ambulance, assessments can often take 6 hours or more, especially when you are covering a large, mainly rural area, with hospitals few and far between. However, these latest official statistics cannot cover this area.

The Report makes another, rather telling, statement:

“Detentions on admission to hospital increased in both independent and NHS services during 2012/13. For NHS hospitals there was an increase of 3 per cent since 2011/12 but for independent hospitals the increase was much larger at 13 per cent, although the numbers involved were smaller. A large proportion of this increase was attributable to a 31 per cent (313) increase in uses of Section 2 in independent hospitals.”

This is a continuing trend. The Report for 2011-12 noted: “Total detentions in independent sector hospitals increased by 21 per cent; a large proportion of this increase was attributable to a 45 per cent increase in uses of Section 2.”

Last year, I said that “over the last year it has become not unusual in my fairly rural area to have to travel 50 miles or more to admit a patient to hospital. There have been times when there have been no psychiatric beds at all in the entire region. When this happens, the only alternative is to use an independent hospital, at huge expense, of course. This has in any case tended to be the default for young people under the age of 18, and also for people with eating disorders, for whom there are no specialist Trust beds in the region at all.”

The continuing closures of NHS psychiatric beds nationwide is not surprisingly continuing to increase pressure on Mental Health Trusts to use private hospital beds.

I am finding it difficult to understand how the extensive and prolonged use of extremely expensive private beds does not outweigh the savings supposedly gained by the closure of NHS beds, and the reduction in the numbers of frontline clinical staff who might be able to provide alternatives to hospital admission.

Emergency detentions under Sec.4 (where it is not possible to obtain two medical recommendations) continue to reduce year on year. In 2008-9, over 727 people were detained under this section; last year the figure was less than 400, representing almost a 50% reduction overall.

And what about use of Sec.136 (police detentions for people in “a place to which the public have access”)? Well, there appears to have been a slight reduction in overall use of this power. However, outcomes have not changed: in 2012-13, 82% of the use of Sec.136 did not result in detention under Sec.2 or Sec.3.

 

Although there are no figures for the numbers of people detained under Sec.136 who are subsequently admitted informally, the overwhelming conclusion to be drawn from these figures is still that the police, who to be fair do not have the training in the identification of mental disorder that mental health professionals have, are still using Sec.136 inappropriately.

Is the Concept of Informal Psychiatric Admission in Jeopardy? A Commentary on the Current Crisis in Mental Health Beds

"Well, they've finally located a bed. Just need to get an ambulance now."

There has been a gratifying media response to the excellent investigation conducted by Community Care and the BBC into the drastic shortage of acute psychiatric beds across the country. This investigation has confirmed what AMHP’s already know: the cuts in psychiatric beds are leading to unsafe and possibly illegal practices, which are often harming patients.

Around 1,700 mental health beds have been closed since April 2011, which amounts to an overall reduction of 9%. However, the changes to community mental health services which are occurring all over the country, which are often driven by the need to make drastic cuts in budgets, do not lend themselves to a reduction in demand for beds, but rather an increase in the demand for acute admissions.

It was reported that “three-quarters of the 1,711 bed closures were in acute adult wards, older people’s wards and psychiatric intensive care units. Average occupancy levels in acute adult and psychiatric beds are running at 100%, while half are over that and all are above the 85% limit recommended by the Royal College of Psychiatrists.”

Andy McNicoll reports in Community Care about the various ways in which this crisis is affecting service delivery and patient care. These include possibly avoidable patient deaths, the use of expensive private beds, and many examples of inherently poor practice, which can have a seriously adverse effect on patient care and outcomes.

Examples of poor practice include admitting people to a hospital when there is no bed for them, the use of leave beds, premature discharge which then leads to early readmission, and the use of inappropriate beds, such as placing people under 18 in adult wards.

 

In my own experience, one of my service users, who was a voluntary inpatient in her 40’s, went on home leave. The leave did not go well, and she needed to come back into hospital. However, her bed had been taken by an emergency admission, and she was placed overnight on a dementia ward.

Overcrowded wards lead to stressed staff and poor experiences for patients which in turn leads to slower recovery, and an increase in incidents of violence and exploitation.

It appears that one of the worrying consequences of bed shortages is that preference may be being given to patients detained under the Mental Health Act as opposed to informal admissions, presumably based on the assumption that informal admissions are less urgent.

A report in Community Care in August 2012 (Mental health detention rise amid ‘pressure on hospital beds’) quotes an anonymous AMHP as saying that detention under the MHA is “the only way to get a bed these days.” I have certainly had it said to me on more than one occasion that a bed is only available for patients detained under the MHA. I have had to argue the case forcefully in order to obtain the bed.

 

There is more than anecdotal evidence of this practice. Michael Knight committed suicide on 28^th August 2012, at the age of 20. He was assessed under the MHA, and agreed to be admitted informally. However, there was no bed available anywhere in the county in which he lived. This led to an overnight delay in his admission, during which he killed himself.

 

The Coroner in the case stated: “The tragedy in this case is the fact that, after having gained Michael’s agreement to accept voluntary inpatient care, a bed was not then available. I am of the view that the situation was then exacerbated by the to-ing and fro-ing which then took place with regard to a bed becoming free, but only for a very short period of time before it was then unavailable.”

 

It was reported that “following Mr Knight’s death a serious investigation report was compiled, which found that staff followed the ‘right pathways’. It said an acute bed would have been found for Mr Knight if he had been sectioned.” (my italics)

 

The Mental Health Act is very clear in its views on informal admission. Sec.131 deals specifically with informal admission. Sec.131(1) states categorically:

 

“Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or registered establishment in pursuance of such arrangements after he has ceased to be so liable to be detained.”

 

This essentially means that if a patient needs a bed, and they are agreeing to be admitted, then no requirement can be made that they should only be admitted if detained under a Section of the MHA. Any hospital imposing such a condition is therefore acting expressly in contravention of the MHA.

 

The Reference Guide to the Act devotes a chapter (Chapter 37) to informal admission, and begins by saying (37.2): “Nothing in the Act prevents people being admitted to hospital without being detained, and this is expressly stated in section 131. Compulsory admission under the Act has always been intended to be the exception, not the rule.”

 

The Code of Practice (Para 4.9) reinforces this: “When a patient needs to be in hospital, informal admission is usually appropriate when a patient who has the capacity to do so consents to admission.”

 

AMHP’s are legally required 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”, and informal admission is seen as a valid alternative to compulsory detention. Simply because an AMHP concludes that formal detention is not necessary, this does not necessarily mean that the patient does not need to be in hospital.

 

There is no doubt that hospital beds are expensive. Properly funded community based alternatives, such as Dementia Intensive Support Teams, may not only save money, but also provide patients with appropriate support in their own homes, and minimise disruption to them. Many Mental Health Trusts are relying on allegedly improved and enhanced community based crisis services to obviate the need for more hospital beds, and to justify a reduction in beds.

 

But there is a problem with this. I have been working in the mental health field for long enough to remember the plans in the 1970’s and 1980’s to close the long stay hospitals in which people with mental illness and learning difficulties would spend many years.

 

These plans were admirable. These asylums were mostly daunting and depressing Victorian edifices, deliberately built away from communities, and institutionalised the hapless inmates. Most of the inpatients didn’t need to be there, but there were few alternative community services. I was involved in a small way in moving some of these patients into the community myself when I started out as a social worker in the 1970’s.

 

The problem, however, was that community services were supposed to be funded with the money saved from closing the hospitals, but they had to close the hospitals first in order to get this money. It was like having a plan to buy a cow with the money raised from milking the cow. You had to have the cow first, but you couldn’t get the cow until you had sold the milk the cow would provide. Mental Health Trusts appear to be trying to pull off the same trick.

 

The now long defunct Mental Health Act Commission, in their Biennial Report for 2003/05 (p.204), advised:  “ In our view… the focus on establishing community interventions to keep patients from hospital admission must not blind us to the continuing need for inpatient care that patients will enter and reside in voluntarily”. That statement still holds today

The Sun and Mental Health -- That Front Page

The Sun’s full page headline today (7th October 2013) states baldly “1,200 killed by mental patients”. The number 1,200 is in red letters 2 ½ inches high. In tiny letters to the side of this headline is the admission that this figure was the total over a decade.

It’s hard to know where to start in a dissection of this report.

That huge red number is clearly intended to alarm. One has to conclude that the Sun wishes to suggest that its readers are all at risk of being murdered in their beds by homicidal maniacs.

The Sun’s use of the term “mental patients” is not only deliberate use of a term with pejorative implications, but also implies that there are two sorts of people: “normal” people (Sun readers perhaps?) and “mental” people, people who are unpredictable and potentially dangerous.

Having emblazoned its front page with this frightening statement, the Sun’s “full story” is buried on pages 6 and 7. It begins: “A Sun investigation today reveals disturbing failings in Britain’s mental health system that have allowed high-risk patients to kill 1,200 in a decade.”

The article is fringed by 12 brief accounts of people who have been murdered by “mental patients” over the last few years.

So where did the Sun obtain these figures? It mentions “a Manchester University study”. This can only be the Annual Report The National Confidential Inquiry into Suicideand Homicide by People with Mental Illness, published by the University of  Manchester in July 2013.

The Sun’s “probe” (their word), must have taken all of 30 seconds before finding this study, which was published 3 months previously in July. Community Care published a thoughtful article back on 5thJuly 2013, headlining their article with a quote from the Report saying: “The number of homicides committed by mental health patients has fallen ‘to its lowest level for a decade’.” The writer of this report, Julian Hendy, goes on to express skepticism of some of the figures.

The Sun reports that 122 people a year on average were killed by “mental patients”. This would appear to have been lifted from Community Care’s article.

The Sun goes on to lay the blame for these figures on “the slashing of budgets for mental health care”. They quote Marjorie Wallace of SANE as saying that “homicide figures may not have increased in decades – but significantly they have not declined either.”

So what does the University of Manchester report actually say?

Right at the beginning of the report, it is stated: “Homicide by mental health patients has fallen substantially since a peak in 2006, and the figures for the most recent confirmed years, 2009-2010, are the lowest since we began data collection in 1997”.

Although the report acknowledges that some of its statistics may be incomplete, it does say “it is likely that this is a true fall in patient homicide”.

Already, this seems to be factually at odds with the Sun’s report. While I do not wish to minimise the potential effects of recent cutbacks to spending on mental health, in this case, recent changes in mental health legislation and delivery are given as a possible explanation for this reduction, citing the use of CTO’s as a potential factor.

Another failing of the Sun’s “probe” is to place these figures in any sort of context. The Office of National Statistics provides illuminating statistics for overall numbers of homicides.

It gives statistics going back to 1960 for homicides initially recorded by the police. The long term graph shows a gradual increase in homicides from 282 in 1960 to a peak of 1047 in 2002-3. Since then, there has been a steep fall to around half of that peak.

Taking the ONS statistics, it can be seen that during the 10 year period from 2001-2011 on which the Sun bases its figures, there were a total of 7926 homicides. This compares with the figure of 1220 homicides committed by mental health patients quoted by the Sun and Julian Hendy. In other words, a little over 15% of homicides were committed by people who were known patients of mental health services. To put it another way, 85% of murders were committed by people who weren’t “mental patients”.

But I suppose the headline: “You’re 6 times more likely to be killed by a “normal” person than someone with mental health problems” doesn’t have quite the same ring to it.

What’s on Those Pink Section Forms?

If you’ve ever been detained under the Mental Health Act, or if you’ve ever been involved in an assessment, you will at some point have seen the Approved Mental Health Professional produce a set of pink forms, which the AMHP and the doctors then fill in.

The filling in process is usually done out of the sight of the patient (in the kitchen, or outside in the AMHP’s car). Once completed, the AMHP then informs the patient that they have been formally detained under the MHA and will have to go to hospital.

These forms are rarely shared with the patient. Once the patient has been admitted, the forms are filed away, either in the patient’s medical records or in the Mental Health Act Administrator’s office. After that, generally only the Care Quality Commission will see them when they conduct periodic hospital inspections.

So what’s actually on those forms?

The majority of detentions under the MHA are either under Sec.2 or Sec.3. Sec.2 is for assessment, while Sec.3 is for treatment. More rarely, a Sec.4 is used, which is an application for assessment in an emergency.

The Registered Medical Practitioners’ Forms

Registered Medical Practitioners are qualified doctors. The doctors fill in their own forms, which are actually only recommendations that a patient should be detained, as it is the AMHP who makes the final decision.

If the doctors see the patient at the same time, they can fill in a Joint Medical Recommendation. If they see the patient separately, they must fill in separate Medical Recommendations.

The doctors have to put their own name and office address, as well as the name and address as the patient.

On these forms, the doctors must say when they last examined the patient. Each doctor must also state if they had “previous acquaintance” with the patient – in other words, that they have had some contact with the patient in the past. They must also state if they are “approved under Sec.12 of the Act as having special experience in the diagnosis or treatment of mental disorder”. This means that they are either a practicing psychiatrist or that, being a GP for example, they have had extra training and have therefore been “approved”.

At least one of these doctors must be Sec.12 approved. It is desirable, but not essential, for at least one of the doctors to know the patient. However, if neither of them knew the patient, the AMHP must explain on their own form why it was not possible to get a doctor who did know the patient.

For Sec.2 and Sec.4, they have to state that “this patient is suffering from a mental disorder of a nature of degree which warrants the detention of the patient in hospital for assessment (or assessment followed by medical treatment) for at least a limited period.”

For Sec.3 they have to state that “this patient is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in a hospital.”

For Sec.2, Sec.3 and Sec.4 they also have to state whether or not the patient ought to be detained in the interests of the patient’s own health, the patient’s own safety, and/or with a view to the protection of others. However, for Sec.3 they additionally have to state that the patient “should receive treatment in hospital” and that that treatment “cannot be provided unless the patient is detained under Sec.3”.

In all cases, the doctors then have to write down in detail the reasons why they have these opinions. For a Sec.3 they also have to state at which hospital or hospitals appropriate treatment is available.

Although often the two doctors assess the patient at the same time, this is not always the case. Where the doctors have not assessed the patient together, then there must not be more than five clear days between the two recommendations. This means, for example, that if the first doctor examined the patient on a Monday, then the second doctor’s examination should not be later than the following Sunday.

The doctors have to sign and date their recommendations. For a Sec.4, because it’s an emergency, and the detention only lasts for a maximum of 72 hours, they also have to put the time.

Sec.4 is a bit different from Sec.2 & Sec.3, as it is only used for emergencies. Only one medical recommendation is needed. However, the doctor has to state on the recommendation that “compliance with the provisions of Part 2 of the Act relating to applications under Sec.2 [ie having two medical recommendations] would involve undesirable delay” and must give the likely length of time of that delay and state what risk such a delay would pose to the patient or other people.

The AMHP’s Forms

The AMHP is making an Application for Admission, either for assessment or for treatment. The first thing that the AMHP has to fill in on any application form is the name and address of the hospital to which the patient is to be admitted. The AMHP therefore has to know where the patient is going to be admitted before he or she can complete the form. This can at times lead to a delay in completing the application, as it can often be hard to find a bed.

The AMHP then has to put his or her name and office address on the form as the applicant, as well as the name and address of the patient, and must also state that he or she is an Approved Mental Health Professional and give the name of the local social services authority who approved them.

For Sec.2 and Sec.3 the patient’s Nearest Relative needs to be identified if possible. For a Sec.2, the AMHP either has to identify the NR or another person who has been authorised to act as such, and to state whether or not they have informed that person of the application and the right of that person to order the patient’s discharge.

For a Sec.3, the AMHP has to state that the NR or proxy has been consulted by the AMHP, and state that that person has not objected to the application being made. If the AMHP has not consulted with the NR, they have to give reasons why it was impracticable to do so.

If the AMHP has either not been able to find out who the NR is, or believes that the patient has no NR, then in both cases, the AMHP has to state this on the form.

The AMHP has to explicitly state that they have interviewed the patient  and are satisfied that detention in 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.”

In all cases, if the assessment was undertaken by a doctor or doctors who did not know the patient prior to assessment, the AMHP has to give reasons why they were unable to get doctors who did know the patient.

The AMHP has to sign and date the Application. Only then, after all the forms have been fully completed, is the patient formally liable for detention.

General notes

The AMHP and the doctors have to give the date when they assessed the patient. In the case of Sec.4, they also have to give the precise time.

Both the medical practitioners’ forms and the AMHP’s forms have to have the name and address of the person being detained. These should be identical on both the doctors’ forms and the AMHP’s forms. However, the name does not have to be correct to be legal. For example, I once had to detain a person who was in Charwood police station but who was from another part of the country. He was therefore unknown to anyone in Charwood. The name he gave police was “Charlie Bangles”, so this was the name that we put on our section forms. He was then admitted to a hospital in his home area. When we arrived there, it was discovered that, as he was actually a professional entertainer, this was his stage name, not his real name. However, this made no difference to the legality of his detention.

The forms consist of a combination of written statements which the AMHP or doctors agree to by means of signing the form, statements that can be crossed out according to the circumstances, and spaces for free text.

The exact wording of the forms is laid down in a statutory document called “Mental Health Regulations 1983”. It is the wording of the forms that constitutes the legal document, not the form itself. This means that, although traditionally the forms are printed on pink paper, they can be on any colour of paper. They can even be handwritten. In a rare flash of humour, Richard Jones in the Mental Health Act Manual states that in an emergency, where the printed forms were not to hand: “an alternative course of action would be to remove the appropriate pages from this Manual.”

What do the abbreviations and other jargon used on the Masked AMHP blog mean?

I try to avoid using too much jargon in this blog, but I inevitably have to use acronyms and abbreviations for brevity if nothing else. So here’s a list of acronyms and other common terms that crop up, with explanations. Any legislation referred to is British (or more specifically, referring to England and Wales, as Scotland and Northern Ireland have their own Mental Health legislation.)

Many of the explanations are highly simplified. If you want to know more about a particular topic, you can search the blog using the blog search box, or look up the Labels on the right hand side of the blog.

If I have left anything out, or if you want any further explanations, please leave a comment.

AMHP: Approved Mental Health Professional An AMHP can be a social worker, occupational therapist, mental health nurse or clinical psychologist. They have the power to detain people in hospital under the MHA.

Appeal Patients detained in hospital under Sec.2, Sec.3, Sec.4, and Sec.7, and those subject to a CTO, have the right to appeal against their detention. Their case is then heard by an independent Mental Health Tribunal, who have the power to discharge the patient from detention. Anyone who appeals has the right to free legal representation.

ASW Approved Social Worker The predecessor of the AMHP. Before 2007, only social workers could detain people.

CAMHS Child and Adolescent Mental Health Service

CCG: Clinical Commissioning Group: Led by GP's, the CCGs are responsible for commissioning health services in a local geographical area.

CMHT: Community Mental Health Team This is, or was, the most common way of delivering community mental health services. A CMHT consists of a range of different mental health professionals all working together, including psychiatrists, mental health nurses, occupational therapists, social workers and clinical psychologists. It’s a really good way of delivering a localised community service. Which is presumably why some Mental Health Trusts are withdrawing from this form of service delivery and having centralised teams covering vast geographical areas instead.

CoP: Code of Practice The MHA Code of Practice sets out what best practice should be when discharging the functions of the Mental Health Act.

CQC: Care Quality Commission This organisation is responsible for overseeing care providers such as hospitals, mental health trusts, care homes -- even dental practices.

CTO: Community Treatment Order When someone has been detained under the MHA under Sec.3, they can be discharged under a CTO, which gives powers to impose conditions, such as taking medication, or keeping appointments with their care coordinator or psychiatrist. If the patient does not comply with these conditions, they can be recalled to hospital.

DOLS: Deprivation of Liberty Safeguards DOLS are a part of the Mental Capacity Act. In certain circumstances, people who lack mental capacity can be deprived of their liberty. DOLS lays out the circumstances in which this might be done, and the safeguards available to protect people who are subject to deprivation of liberty, or who impose or manage situations of deprivation or liberty.

GP: General Practitioner This is a person’s family doctor.

Guardianship See Sec.7

HCPC: Health & Care Professions Council Responsible for overseeing the practice of social workers, among others.

HRA: Human Rights Act 1998 A working knowledge of the HRA is vital, as a failure to uphold the human rights it enshrines can render certain actions unlawful. At times it will “trump” mental health legislation.
The Rights delineated in the HRA include:
Article 2: Right to life
Article 3: Prohibition of torture
Article 4: Prohibition of slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Right to respect for private and family life
Article 9: Freedom of thought, conscience and religion
Article 11: Freedom of assembly and association
Article 12: Right to marry
Article 14: Prohibition of discrimination
The rights most likely to be compromised by actions taken under the MHA would include the right to liberty and security, the right to a fair trial, and the right to respect for private and family life.

Hospital Managers Hospital Managers are not employees of the hospital. They are volunteers who have a duty to review detained patients and to consider their discharge. A Managers Hearing will consider an appeal against detention under Sec.3 and some other sections and have similar powers of discharge to a Mental Health Tribunal.

Informal admission This is an admission to hospital where the patient has agreed to be admitted. Informal admission should always be considered as an alternative to the use of compulsion under other sections of the MHA.

Jones, Richard Author of The Mental Health Act Manual. Now on its 15^th edition, the book has 1168 pages, is around the size of a breeze block and requires a sack barrow to transport it around. Nevertheless, it is the Bible for Mental Health Professionals, and an AMHP would feel naked if they were not carting around their own copy, well thumbed, with significant passages illuminated with highlighter pens, and with a blizzard of post-it notes bristling from its pages.

LSE: Low Stimulus Environment Some acute psychiatric units have a section away from the main ward where particularly disturbed patients can be nursed and treated in a safe and secluded setting. They will have one or two beds, a higher level of security, and a high level of supervision. (These are not padded cells.)

MCA: Mental Capacity Act 2005 This legislation relates to people who are considered to lack mental capacity. It provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. It is based on five statutory principles:
1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Mental Disorder The Mental Health Act only applies to people identified as having a mental disorder. However, the definition of “mental disorder” in the MHA is very broad, being “any disorder or disability of the mind”.
The Code of Practice gives examples of disorders that would fall within this definition. These include:
• 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 (however caused)
• personality and behavioural changes caused by brain injury or damage (however acquired)
• personality disorders
• mental and behavioural disorders caused by psychoactive substance use
• eating disorders, non-organic sleep disorders and non-organic sexual disorders
• learning disabilities
• autistic spectrum disorders (including Asperger’s syndrome)
• behavioural and emotional disorders of children and adolescents
However, there are explicit exclusions. The MHA states that learning disability of itself does not mean that a person is suffering from a mental disorder, unless that disability “is associated with abnormally aggressive or seriously irresponsible conduct”. The MHA defines “learning disability” as “a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.”
The MHA explicitly states that “dependence on alcohol or drugs is not considered to be a disorder or disability of the mind”.

Mental Health Tribunal (MHT) Mental Health Tribunals are part of the Judicial system. They are effectively a court of law. Their function is to hear appeals against detention under the MHA. They consist of a Judge, a Psychiatrist, and a specialist lay member, which is someone who has particular interest and experience in working in the mental health field. Their main purpose is:

• to review the cases of detained, conditionally discharged, and supervised community treatment (SCT) patients under the Act
• to direct the discharge of any patients where it thinks it appropriate
• to consider applications for discharge from guardianship.

Mental Welfare Officer (MWO) The predecessor to the ASW and the AMHP under the 1959 Act.

MHA 1959: Mental Health Act 1959 This was the predecessor to the 1983 Act. I’m so old that I practiced under this act for a couple of years, until it was replaced by the 1983 Act.

MHA 1983: Mental Health Act 1983 The principle legislation defining what can and cannot be done with people with mental disorders.

MHA 2007: Mental Health Act 2007 This Act amended the 1983 Act. Among other things it simplified the definition of mental disorder, and introduced Supervised Community Treatment (SCT).

NR: Nearest Relative The Nearest Relative has a particular meaning under the MHA 1983. A patient’s NR has certain rights and powers under the Act, which is why AMHP’s have to be very careful about correctly identifying who the NR is. The NR is the first person you encounter in the following list:
husband, wife or civil partner
son or daughter
father or mother
brother or sister
grandparent
grandchild
uncle or aunt
nephew or niece.
But it’s rather more complicated than that; for example, a relative of the full blood takes precedence over a relative of the half blood; the elder of  two parents or siblings would take precedence. Whole books have been written about how to identify the NR.

Part III Part III of the Mental Health Act is concerned with mentally disordered people who are subject to criminal proceedings or who have been convicted of a criminal offence.

Patient The term “patient” is explicitly used within the MHA to refer to people with mental disorders. I'm afraid that patients are always referred to in the masculine throughout the MHA.

PIC: Police Investigation Centre Some police authorities have purpose built centres where all arrested people are taken for questioning. At times, people with mental health problems who have been arrested or even detained under Sec.136 may be held in a PIC, and may be assessed under the MHA while there.

PICU: Psychiatric Intensive Care Unit These are specialist short stay units which are generally low secure, meaning that they are locked units with a fair degree of security. They are used when a patient is so disturbed or violent that they cannot be managed in a general acute psychiatric unit.

RC: Responsible Clinician This is usually the consultant psychiatrist clinically in charge of a patient, whether in hospital or in the community. Under the revised MHA other mental health professionals, such as nurses, clinical psychologists or social workers can now be appointed RC’s.

SCT: Supervised Community Treatment (also known as a Community Treatment Order)

Section (verb) People involved professionally or personally with the MHA often refer to “sectioning” someone or “being sectioned”. This is a form of shorthand which refers to the process of assessing and detaining someone under a section of the MHA, particularly, Sec.2, Sec.3 and Sec.4. In my view, the use of this term, while being tempting to use by professionals, should not be encouraged, as it is disrespectful to the process and the individual.

Sec.2: Section 2 of the MHA This is an application made for someone to be assessed (which can include treatment) in a hospital. This lasts for up to 28 days. An AMHP can make an application on the recommendations of two doctors.

Sec.3: Section 3 of the MHA This is an application made for someone to receive treatment in a hospital. This lasts for up to 6 months in the first instance. An AMHP can make an application on the recommendations of two doctors.

Sec.4: Section 4 of the MHA This is an application made for someone to receive assessment in a hospital in an emergency. This lasts for up to 72 hours. An AMHP can make an application on the recommendation of a single doctor.

Sec.7: Section 7 of the MHA Otherwise known as Guardianship. This can be imposed on someone subject to Sec.3. Guardianship can impose certain conditions.
The residence power allows a guardian to require a patient to live at a specified place.
The attendance power lets a guardian require a patient to attend specified places at specified times for medical treatment, occupation, education or training.
The access power entitles a guardian to require that access to the patient be given at the place where the patient is living, to any doctor, (AMHP), or other specified person.
The main purpose of guardianship is to ensure that someone receives care and protection rather than medical treatment. Although guardians have powers to require patients to attend for medical treatment, they do not have any power to make them accept this treatment.

Sec.12 Approved Doctor When a patient is being detained under Sec.2 or Sec.3, where two medical recommendations are required, Sec.12 MHA states that one of the assessing doctors has to be “approved … by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder”.

Sec.35 A criminal court can remand an offender to hospital in order to assess their mental condition. This remand can last for up to 28 days, and can be extended for up to 3 months.

Sec.37/41 A criminal court, once a patient have been convicted of an offence, may order that the patient be detained in a hospital. A Crown court can place restrictions on the discharge of the patient, so that only the Secretary of State can order their discharge. A patient subject to Sec.37/41 may be living in the community, but subject to a range of conditions. If any of these conditions are broken, they can be recalled to hospital.

Sec.117 Aftercare Sec.117 lays down a duty for the local authority and the NHS to provide services for people who have been detained and then discharged from certain sections of the Act. The most common section is Sec.3, where a patient has been detained for treatment. There are some other sections of the Act relating to people who have committed criminal offences for whom Sec.117 also applies. These are Sections 37, 45A, 47 and 48. Detention under these sections is much less common.

A patient who has only ever been an informal patient, or who has only ever been detained under Sec.2 (for assessment) is not entitled to aftercare under Sec.117.

The most significant aspect of Sec.117 is that any aftercare provided under this section cannot be charged for. See other blog posts devoted to Sec.117 aftercare for more information.

Sec.135  Sec.135(1) gives a justice of the peace the power to issue a warrant for an AMHP and a constable to enter premises with the purpose of removing someone believed to be suffering from a mental disorder in order for them to be assessed. There has to be evidence that the person “has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or, being unable to care for himself, is living alone in any such place.”
Sec.135(2) allows a justice of the peace to provide a warrant to a constable the enter the premises of a patient “if need be by force” and remove the patient. The patient has to be liable to detention under the MHA (for example, having been detained under Sec.2 they have then absconded). There has to be “reasonable cause to believe that the patient is to be found on premises within the jurisdiction of the justice; and that admission to the premises has been refused or that a refusal of such admission is apprehended.” The patient can then be returned to hospital.

Sec.136 Sec.136(1) MHA states: “If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety.”
A place of safety can be anywhere, but most areas have a policy that people detained under Sec.136 should be taken to a specially designated “Sec.136 suite”, which would usually be on the site of a hospital.
A Sec.136 lasts for up to 72 hours. Once someone has been detained under Sec.136, they have to be assessed by an AMHP and a doctor whose job it is to assess whether or not the person needs to be detained in hospital.

Should AMHP’s be scared about DD v Durham County Council?

I for one was certainly relieved when the Judge in DD v Durham County Council dismissed DD’s attempt to sue AMHP’s for breaching his human rights by not satisfying themselves that a particular hospital placement was suitable for his needs before sectioning him.

 

I wrote more fully about this case in August 2012. The Judge then concluded:

 

“It is obvious that an AMHP is not directly responsible for the medical or other regimes to which a detained person is subjected… An AMHP has certain responsibilities under the Mental Health Act which include recommending a person for detention under s.2 or under s.3. Their responsibilities have to be discharged in the light of all the relevant circumstances of the case, which would include taking into account the assessments of qualified doctors. Their functions do not extend, however, to choosing an institution in which the person concerned is to be detained – still less to researching the available facilities or carrying out a reconnaissance to assess their quality.”

 

But that is unfortunately not the end of the matter. In January 2013, the Court of Appeal ((2013) EWCA Civ 96) heard the claimant’s appeal against this earlier decision, and decided that there was enough of a case that it should be reconsidered.

 

DD’s legal representative contended that “the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty…Under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held. Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps to ensure that the patient's Article 3 and 8 rights were not infringed.”

 

It was submitted that the medical practitioners making the assessment were only responsible for making a recommendation regarding detention; it is therefore the duty of the AMHP under Sec.13(2) to be satisfied that a particular hospital is suitable.

 

Sec.13(2) relates to the AMHP’s duty to interview the patient:

"Before making an application for the admission of a patient to hospital an approved mental health professional shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need."

 

Durham had argued that this duty related to “a” hospital, and not a specific hospital. It was therefore a general duty to establish that the patient needed to be detained in a hospital, not a duty to identify the exact hospital in which the patient needed to be detained.

 

DD’s legal representative, however, maintained that “the AMHP must put himself in a position where proper independent judgment as to the recommendation made by the doctors can be scrutinised and a decision made as to whether what is proposed or recommended by them is the proper place for an assessment or for treatment”.

 

The judge, concluding that “the scope of the duty of an AMHP is a question of law of some importance” therefore decided that the case should be heard and decided in the High Court, recognising the implications of a finding in favour of DD.

 

So what are the implications, if the High Court finds in favour of DD?

 

AMHP’s have certainly always seen the job of finding a bed as being the responsibility of the medical practitioner or the local hospital itself.

 

Although protocols vary, essentially either the local Crisis Team or a designated Bed Manager in the hospital would have the job of arranging for a bed. The AMHP would clearly prefer that that bed should be in the hospital nearest to the patient, but if that is not possible, then the hospital has to find a bed somewhere else. That may be anywhere within the particular Mental Health Trust, or failing that, even further afield. Sometimes beds in private hospitals are arranged. Sometimes these beds can be over a hundred miles away.

 

But the concern has always been to find “a” bed, and where there is a delay, this task is undertaken by others while the AMHP is occupied at the patient’s house.

 

So what would be the implications if an AMHP had to find not just any old bed, but a bed in a ward which was uniquely suitable for the particular patient?

 

Para4.75 of The Code of Practice states:
"If the doctors reach the opinion that the patient needs to be admitted to hospital, it is their responsibility to take the necessary steps to secure a suitable hospital bed. It is not the responsibility of the applicant, unless it has been agreed locally between the LSSA and the relevant NHS bodies that this will be done by any AMHP involved in the assessment. Primary care trusts are responsible for commissioning mental health services to meet the needs of their areas. They should ensure that procedures are in place through which beds can be identified where required."

The Code of Practice gives many examples of things that AMHP’s should be responsible for, eg. arranging for the care of children and pets, and there are certainly enough tasks to keep the AMHP fully occupied without seeking a suitable placement for the patient. How would they do that while they were trying to manage all their other duties?

 

With many Trusts radically reducing the numbers of beds, it is frequently a cause of major delay simply to find a bed at all. It would lead to delays of potentially weeks before the right bed was found. What would happen to the patient in the meantime? What would happen to the AMHP, since they would by definition not be able to delegate that function?

 

The eminent David Hewitt, writing in the Solicitors Journal (Heading down the wrong road) was very dubious about this case. He concluded:

 

"More than 30 years after the current Mental Health Act was introduced, there seems little appetite for the changes they would entail. It is one thing to give a patient his day in court. It would be quite another thing, however, to find that an AMHP, who may be unfamiliar with - and even have no part in the selection of - a hospital, is in some way liable for everything the patient subsequently encounters there.”

 

A judgment in favour of DD would quite simply make the role of the AMHP utterly impossible, and the Mental Health Act completely unworkable.

What Is Covered by S.117 Aftercare? Further Recent Case Law

A recent court judgment has clarified further what is covered by S.117 Aftercare.  R v LB Camden, [2013] EWHC 1637, 13th June 2013, concerned a man, Mr Tewodros Afework, who had been detained under Sec.3 MHA in 1992 & 1993. He had then lived in a number of local authority flats with his sister, for which they received housing benefit.

 

In 2000, he was assaulted and incurred significant brain damage. As a consequence he was no longer able to live independently and had to live in specialist accommodation. S.21 National Assistance Act 1948 applied, but he was not charged for his accommodation on the grounds of low income.

 

It would appear that the application arose as a result of Mr Afework being awarded a considerable sum of money in Criminal Injuries compensation, which it was likely the local authority providing accommodation would take into account when assessing his contribution to his accommodation charges.

 

Mr Justice Mostyn, the judge in the case, reiterated a number of previous cases which looked at issues of accommodation and S.117 Aftercare. In particular, the case of R (Stennett) v Manchester City Council [2002] 2 AC 1127, looked at three cases where people who had been detained under Sec.3 had then been charged for residential accommodation. It was affirmed that residential accommodation came within the remit of S.117 aftercare, and could not therefore be charged for. This decision was upheld by the House of Lords.

 

He also referred to Mwanza, which I have looked at before (R v Greenwich London Borough Council and Bromley London Borough Council, ex parte Michael Mwanza (2010) [2010] EWHC 1462 (Admin) QBD (Admin) (Hickinbottom J) 15th June 2010, to give it its full title.)

 

This case involved a Zambian national who was in this country on the basis that his wife had a student visa. He was subsequently detained under Sec.3. He and his wife stayed in this country for several years, during which time his wife’s student visa ran out and they were then considered to be residing in this country unlawfully, so they were unable to work.

 

They applied for accommodation and financial support. When this was refused, he applied for judicial review on the basis that S117 aftercare covered both eventualities, as they could be considered to be necessary in order to prevent a deterioration in his mental health.

 

The Court found that a local authority’s duty to provide aftercare was limited to the services necessary to meet a need arising from a person’s mental disorder. As his mental disorder had not been the cause of his homelessness or destitution, then there was no requirement on the local authority to meet this need.

 

The judge also examined the case of R (Gary Baisden) v Leicester City Council [2011] EWHC 3219 (Admin). In this case, a man called Gary Blaisden, who had paranoid schizophrenia and who had been detained under Sec.3 MHA in 2010, was being evicted from his accommodation on the grounds of his antisocial behaviour. This antisocial behaviour had arisen not by his mental illness but by his drug abuse. It was argued that the local authority should provide him with accommodation under S.117 aftercare provisions were he to become homeless.

 

The judge in this case rather sensibly concluded:

 

“If the mental condition does not require specialised accommodation with elements of support, then the duty to provide bare accommodation is under section 21 of the National Assistance Act. In any event, in respect of both duties the defendant says that the assessment of the consultant psychiatrist is that it is his voluntary drug taking that is the cause of his predicaments rather than his underlying schizophrenia that can respond to medication. Therefore what he needs to do is to stop taking drugs and to co-operate with his Outreach team in that respect, at which point he will be able, if he so chooses, to manage independent living, look after himself, abide by the conditions of his tenancy and not be a nuisance with his neighbours.”

 

Based on these cases, Mr Justice Mostyn therefore held that:

 

“As a matter of law s117(2) is only engaged vis-à-vis accommodation if:

i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition");
ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and
iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.”

 

As he found that the applicant’s need for residential care arose entirely from his head injury, and was not the result of his underlying mental illness, then S.117 aftercare did not apply.

The conclusion to be drawn from these cases therefore could not be clearer:

• Residential care is certainly covered by S.117 aftercare, but only if the need for that care arises from the patient’s mental condition which resulted in their detention under Sec.3 MHA.
• Ordinary accommodation, eg a flat or house, is not under any circumstances covered by S.117.