Paul: Another Death in a Psychiatric Hospital

An article in the Observer of 27th May 2012 noted that there is on average one death a day of patients in psychiatric hospitals. It went on to say: “There were 3,628 deaths in mental health detention (501 self-inflicted) between 2000 and 2010, accounting for 61% of all deaths in state custody.” The main thrust of the article was to press for all deaths of psychiatric inpatients to be independently investigated.

The article examined the circumstances of the death of Janey Antoniou, a mental health campaigner who was also a service user. Janey died in Northwick Park Hospital in Harrow in 2010. The inquest reported that she died "following self-harming by use of ligature".

This case reminds me of another patient I worked with who met a similar, but perhaps inevitable, end.

By the time I came to assess Paul under the Mental Health Act it was already far too late.

Paul and his two older sisters were adopted by a couple when he was about four years old. They had been removed from an abusive home situation, and had spent a year or so in care before the adoption. Abuse of a different kind had continued while they were with foster parents.

Despite the best efforts of their adoptive parents, the damage the children had suffered could not be healed. Both sisters had become patients of Charwood CMHT in adulthood, the oldest one, who had experienced and remembered the worst of their abuse, and who had tried to protect her younger siblings, was a patient of the team for many years.

Paul, though, had managed to keep out of mental health services until he was 33. When his girlfriend, with whom he had lived since he was 19, finally left him because she could no longer tolerate his mood swings, he drank a bottle of vodka and tried to hang himself. It was probably only this relationship that had kept him out of mental health services for so long. Without her, he was completely lost. He was detained under Sec.2 MHA, but discharged to the CMHT after a few weeks.

Paul decided to track down his biological parents. He managed to find his biological father and made contact with him. His father was welcoming, and even invited him to come and live with him. Pau, perhaps rather hastily, took him up on the offer and left the Charwood area.

However, it seems that discovering that his biological father had a large and apparently happy family, and that he had never been a part of that family, was too much for him.

He made a series of three suicide attempts, the last one, an overdose of 100 paracetamol, resulting in another admission under Sec.2 to the local psychiatric hospital. However, he was discharged after only a few days because he was able to convince them that this was just an aberration, and that he was no longer a risk to himself.

His adoptive mother persuaded him to return to Charwood and he moved in with her. Only a few days later he got drunk, took several kitchen knives from the house and went missing. His mother informed the police. When he returned in one piece in the early hours of the morning, she and his elder sister asked for an assessment under the MHA.

I visited him at his mother’s home to assess him with his GP and the CMHT Consultant, and with a trainee AMHP in tow.

Paul was in bed, and would not come downstairs. We assessed him in his room. He remained hidden under the duvet for the whole interview. He told us that as overdoses hadn’t worked he would try a different method. We suspected that he had kept some knives.

It was the unanimous decision that Paul needed to be detained under the MHA for his own safety. We were convinced that he was intent on killing himself. As he had already had two recent detentions under Sec.2, we decided to detain him under Sec.3, for treatment.

In view of his unpredictability, and the knowledge that he did not want to go to hospital, and that he probably had knives in his possession, we asked for the police to attend to assist.

When the police arrived, I went upstairs to tell Paul that he had been detained under Sec.3 and that he was going to be admitted to hospital.

He emerged from under the duvet and looked at me, his face an emotionless mask.

“Give me a minute, I need to get dressed,” he said calmly.

I allowed him some time to get dressed. But I felt deeply uneasy.

He came downstairs, looked at the police and me waiting in the living room, then continued down the hallway.

“I think he’s going to try and get away out of the back door,” I said to the police.

He was.

Fortunately, it was not easy to get over the garden wall, and the two police officers managed to pull him back before he had had time to scale it.

He was very resistant, and did his best to provoke the police. He seemed to want them to hurt him.

“Fucking pansies,” he said to them as they rolled around with him on the lawn, “I bet you like sucking cocks don’t you?” He carried on in this vein, becoming more and more explicit about their sexual preferences.

I was impressed by the two officers. Despite his strenuous efforts to escape and resist them, and despite the extreme verbal provocation, they acted entirely professionally throughout, using only the minimum force and restraint necessary to put the handcuffs on him. He went to hospital. He was safe.

Three days after his admission under Sec.3, the section was rescinded.

I was surprised, to say the least, when I discovered this. I did not feel that three days, two of which had been the weekend, was long enough to conduct a proper assessment, never mind to treat Paul. I thought that he remained a severe suicide risk. But it is only my job to make the decision about detention. What happens after admission I have no control over.

Paul remained as an informal patient for a week or so, and was then allowed some home leave. While at home, he cut his wrists.

He returned to the ward, still as an informal patient.

In the early hours of the following morning, only two weeks following his detention under Sec.3, ward staff found him in his bathroom. He was dead. He had used his belt to hang himself, using the closed bathroom door as a ligature point.

At the Inquest, the Coroner stated: “Paul's father and stepmother visited him in hospital. Paul told them they were selfish for wanting him to stay alive, and he remained underneath the bed cover for the whole of the visit. They went to staff and said they had never seen Paul so bad, and asked them to keep a close eye on him and make sure he had nothing to harm himself with.

"That night Paul rang his girlfriend and told her he was going to kill himself. She called the hospital and told staff what Paul had said to her, and asked them to remove a belt and knife she thought he had, and to keep a close watch on him."

The inquest revealed that Paul had put clothes and blankets under the bedclothes to make it appear that he was asleep in bed when ward staff did their hourly observations. He had probably been dead for several hours before he was discovered.

The Coroner noted in the narrative verdict that there had been shortcomings in Paul’s treatment while in hospital. Changes were made to procedures on the ward, including changing the design of the doors on the en suite bathrooms so that they could not be used as ligature points.

Although I had been unhappy, both from a professional and personal point of view, that the hospital had discharged him from his section so soon after admission, I don’t ultimately think that Paul’s death would have been avoided had the hospital kept him on Sec.3, although the inpatient team may have been more reluctant to allow him leave from hospital.

At the very least, an independent inquiry might have highlighted ways to make such an unfortunate event less likely to recur.

But while I do think that more could have been done to prolong Paul’s life, I also can’t help thinking that his death by suicide was inevitable. In a way, he had died many years previously, at the hands of his biological parents.

Welfare reforms see mental health teams taking on more advocacy roles

Read the Masked AMHP's latest Guardian piece! Here is a link to a piece published on the Guardian's Social Care Network today: Welfare reforms see mental health teams taking on more advocacy roles

Electroconvulsive Therapy (ECT) and the Mental Health Act

No, ECT is NOT like this still from One Flew Over the Cuckoo's Nest!

Electroconvulsive Therapy was first introduced as a treatment for mental illness in 1938. Today, its main use is in severe treatment resistant depression, as well as in catatonia and the depressive phases of bipolar affective disorder. It is estimated that around 12,000 people a year in the UK receive ECT, although accurate figures can be hard to find. For more information on ECT statistics, take a look at this excellent blog, the title of which says it all.

Despite public misconceptions about ECT, not helped by its depiction in the Jack Nicholson film One Flew Over The Cuckoo’s Nest, it is probably a lot safer than most antidepressant medication. The mortality rate for ECT treatment is 0.002% (Abrams R: The Mortality Rate with ECT, Convuls Ther 1997), that is, the chances of dying as a direct result of receiving ECT are only 1 in 100,000. When compared to the suicide risk for people with severe depression, that seems like good odds, if it works. For a positive account of ECT, take a look at this recent Guardian article.

ECT even compares well to mortality rates for antidepressant medication. A study from 2009 (Smoller JW et al. Antidepressant use and risk of incident cardiovascular morbidity and mortality among postmenopausal women in the Women's Health Initiative study. Arch Intern Med 2009) found that death rates for people taking SSRI antidepressants (such as paroxetine, fluoxetine or sertraline) were 12.77 per 1000 person-years, compared to 7.79 per 1000 for people not taking an antidepressant.

The main risks and adverse side effects relate to cognitive impairment, in particular difficulty in retaining new memories following ECT (this is reported to resolve within 1-3 weeks), and forgetting memories from the time before treatment. – this will often resolve over time, with subsequent recovery of memories.

In the past, patients were given vast amounts of ECT. I have worked with a woman with a very long history of bipolar affective disorder, who was incarcerated in an old-style asylum for 10 years during the 1960’s. She reports that she received several hundred ECT treatments, and I have no reason to doubt her. However, nowadays a patient will typically receive ECT in batches of 7, with a total number of treatments of 14 being the usual total. They would normally be given twice a week.

The whole issue of ECT has a special place in the Mental Health Act. One of the amendments to the Act in 2007 was the addition of Sec.58A. In the words of the code of Practice, this section “applies to detained patients and to all patients aged under 18 (whether or not they are detained)”. An important change is that as the default, ECT cannot be given to a detained patient unless they consent and are deemed to have the capacity to consent. Equally importantly, ECT cannot be given to a patient lacking in capacity who has made a valid advance decision to refuse ECT.

There are, however, still circumstances in which patients can receive ECT even though they lack the capacity to consent, or when they do have capacity and have refused.

In the case of a person lacking capacity, the Code of Practice (24.12) states:
“A patient who lacks the capacity to consent may not be given treatment under section 58A unless a SOAD [Second Opinion Approved Doctor] certifies that the patient lacks capacity to consent and that:

• the treatment is appropriate;
• no valid and applicable advance decision has been made by the patient under the Mental Capacity Act 2005 (MCA) refusing the treatment;
• no suitably authorised attorney or deputy objects to the treatment on the patient’s behalf; and
• the treatment would not conflict with a decision of the Court of Protection which prevents the treatment being given.”

This means that ECT can only be given if an independent, specially approved psychiatrist has looked at the individual’s case and has authorised it.

In the case of a person who does have capacity, but has refused to have this treatment, the only circumstances in which ECT can still be given, under Sec.62(1A & 1B) MHA are when treatment with ECT is either “immediately necessary to save the patient’s life”, or is “immediately necessary to prevent a serious deterioration of his condition”, or is “immediately necessary to alleviate serious suffering by the patient”, or is “immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.”

Important Note: If you are a service user (or potential service user) who objects to the idea of ECT, but thinks there may possibly be a situation in the future in which they may be given ECT, it is important to make an advance decision now (under the Mental Capacity Act) stating clearly what their wishes for treatment are. Ideally, you should get a solicitor to draw up this document to ensure that it is legally sound.

There are two main situations in which the issue of ECT is likely to arise in a professional context for AMHP’s.

The first is when an AMHP is asked to make an application for the detention under Sec.3 for treatment of an inpatient for the specific purpose of giving them emergency ECT. This can present an AMHP with a dilemma: should the MHA be used to compel a treatment which the MHA itself regards as being of a different order from other treatments for mental illness, to the extent that the 1983 Act was amended specifically to reflect the unease with which many people regard ECT?

Whatever the personal view of an AMHP regarding the use of ECT, an AMHP must remember that their role is to make a decision as to whether or not a particular patient needs to be detained under the Act in order to receive treatment; it is not their role to decide what form that treatment should take.

The other occasion in which an AMHP may become involved is for consultation under Sec.58A(6): the SOAD, before certifying that a patient should have ECT but is lacking in capacity, must consult with two other professionals who have been involved with the patient’s treatment; while one of these has to be a nurse, the other must be “neither a nurse nor a registered medical practitioner”. An AMHP who has assessed the person and made a decision about detention could therefore be the second consultee.

I have so far been careful to avoid discussing the Masked AMHP’s own views on the merits or otherwise of ECT. I can avoid it no more.

Having worked in a CMHT for a quarter of a century, I have been very closely involved with the full range of treatments for mental disorder. As a social worker, I lean heavily towards a non medical model of intervention: this involves the use of practical interventions to improve the lives of service users, such as assisting with housing or benefits problems; psychological therapies; counseling; or simply allowing someone the space to talk about what is bothering them – listening and understanding can in itself can be very therapeutic.

But while I am dubious about medicalising what might be unfortunate but normal life events, such as bereavement, relationship breakdown, or domestic violence, I am also aware that medication can be very helpful in a wide range serious mental illnesses, having seen for myself the beneficial effects of medication on people with severe depression, psychosis, and bipolar disorder.

But what about ECT?

Over the years I have seen many severely mentally ill people treated with ECT. I have seen it used when all other treatments have failed, and I have seen it used when the patient’s symptoms clinically lead to the view that ECT is most likely to be effective. I have seen it used with people with intractable depression, who have spent many months in hospital with no positive result from medication. I have seen it used with people with bipolar affective disorder trapped in the deepest of depressive troughs.

I have to say that I have seen almost invariably positive outcomes from its use. And far more quickly than with the use of medication.

I have seen people who have been unable to speak or think or eat be laughing and joking and taking an interest in life again within only 3 or 4 treatments.

I have seen people who have been so severely disabled by depression that they have spent years unable to work or receive any enjoyment from life, within weeks functioning as well as they were before they became ill.

And I have seen the positive effect on their loved ones of having the person they have cared about for so long, and despaired of, being delivered back to them as a whole person again.

So despite being a wishy-washy dogooding social worker, I’m not going to condemn ECT. I still remember one of my trainers when I was learning to be an ASW many years ago saying to us: “If I became clinically depressed, what treatment would I rather have? A long course, perhaps for years, of psychotropic drugs that have all sorts of undesirable side effects? Or a few episodes of being given a general anaesthetic and having a mild electrical current passed through my brain? I’d go for the ECT.”

When you put it like that, I think I would, too.

A Stroll Down Memory Lane: The Lunatic Asylums Act 1853

The 1983 Mental Health Act has been in force for so long (since 1983, curiously) that most people professionally involved with the Act cannot remember a time before it. Some of us of advanced years (me included) may recall the Mental Health Act 1959, and some of us (me included) may have actually been “Mental Welfare Officers” under that Act.

But there was mental health legislation even before then. The Mental Treatment Act 1930 introduced the concept of “treatment” for mental illness, rather than just containment, although it only required two medical recommendations to detain someone in hospital. The concept of an “informed layman” to adjudicate in detentions to hospital was a major innovation of the 1959 Act.

And then in the distant past there was Victorian legislation to contain and control people with mental illness (or “lunatics” as they were then known).

(Digression: It’s fascinating how the terminology used to describe people with disabilities has changed over time. The term “lunatic” is now considered a pejorative term, a terrible insult. Equally, language to describe people with learning difficulties has changed enormously over the years. Even into the 1950’s and 1960’s, clinical terms to describe people with learning difficulties included “idiot”, “imbecile” and “cretin”. Even within my time as a social worker, it was normal to categorise certain people as being “deaf and dumb”; nowadays, of course, we refer to “sensory impairment”. )

I have an original copy of An Act to consolidate and amend the Laws for the Provision and Regulation of Lunatic Asylums for Counties and Boroughs, and for the Maintenance and Care of Pauper Lunatics, in England, or the Lunatic Asylums Act 1853, as it was otherwise known. It makes interesting, and even surprising, reading. Within it, one can detect the origins of today’s legislation.

Much of this Act, unsurprisingly, lays down requirements and regulations concerning lunatic asylums. Much of this is laudable, as it establishes basic welfare requirements for the care of mentally disordered people. This was the Act which resulted in the building of most, if not all, of the Victorian asylums, some of which still exist.

The Act established Committees of Visitors, whose responsibility it was to build and maintain lunatic asylums, as well as to ensure the welfare of their inmates. Section 54, for example, states that “Every Committee of Visitors shall fix a weekly Sum to be charged for the Lodging, Maintenance, Medicine, Clothing, and Care of each Pauper Lunatic confined in such Asylum.” This sum was not to exceed “Fourteen Shillings per Week.”

Within this Act were the embryonic requirements of Sec.136 of the 1983 Act, relating to police powers to detain people who appear to be mentally disordered in places to which the public have access. Sec.68 of the Lunatic Asylums Act states: “Every Constable of any Parish or Place...who shall have knowledge that any Person wandering at large within such Parish or Place.… is deemed to be a Lunatic, shall immediately apprehend and take or cause such person to be apprehended and taken before a Justice.” The Justice could then arrange for the person to be examined and if necessary detained in an asylum.

This section also gave Constables powers and duties concerning the welfare of a Lunatic “who is not under proper Care and Control, or is cruelly treated or neglected by any Relative or other Person having the Care of Charge of him”.

One can also find the origins of Sec.2, Sec.3 and even Sec.4 of the 1983 Act for detaining people. Back in Victorian times, there was a very clear distinction made between “Pauper Lunatics” and others. The lunatic asylums could contain both Pauper Lunatics and Private Patients; it appears, however, that they were treated differently.

Sec.73 relates specifically to the detention of Paupers, stating that Pauper Lunatics had to have the appropriate paperwork for their detention to be legal. This included an order from a Justice, a clergyman, an Overseer, or the Relieving Officer (under the Poor Law), along with a medical certificate signed by “One Physician, Surgeon, or Apothecary, who shall have personally examined him not more than Seven clear Days previously”. It was a misdemeanour to admit to an asylum without such order and medical certificate.

Sec.54 is devoted to people who are not paupers. They have to have a medical certificate signed by not one, but two physicians, surgeons, or apothecaries.

In both cases, a statement also had to accompany the patient. This had to include the following information: name of patient; sex and age; married, single of widowed; condition of life and previous occupation; religious persuasion; whether first attack; age on first attack; duration of existing attack; supposed cause; whether subject to epilepsy; whether suicidal; and whether dangerous to others.

Also within this section is the origin of Sec.4 of the 1983 Act: “Any Person may, under special Circumstances preventing the Examination of such Person by Two Medical Practitioners as aforesaid, be received into an Asylum upon the Certificate of One Physician, Surgeon or Apothecary alone” providing that it was accompanied by a statement setting forth these “Special Circumstances”. In any case, a second medical recommendation had to be provided within 3 days.

There were also rules for discharge from asylums. While there appears to be no provision for appealing against detention, a lunatic could be discharged on the application of a relative or friend, as long as they “shall be properly taken care of, and shall be prevented from doing Injury to himself or others”. Commissioners in Lunacy could also order the removal of a lunatic from an asylum.

Interestingly, large parts of this Act relate to payments: payments to medical practitioners, payments to Visitors, and payments for the building and maintenance of the asylums. Although the Victorians liked to consider themselves philanthropists, they also expected to get paid for it.

Before I conclude, it is worth having a look at one or two of the forms that were used at that time.

One is the “Form of Annual Return” which all asylums had to produce. This consisted of “A True List of all Lunatics, Idiots, and other Persons of Unsound Mind” within their walls. This form included such headings as “Weekly cost of maintenance and clothing”, “Whether lunatic or idiot”, “Dangerous to himself or others”, whether they were “Of dirty Habits” (whatever that meant), and “For what length of time supposed to be of unsound mind.”

The Medical Certificate accompanying a detained patient had to state that the patient was a “Lunatic, or an Idiot, or a Person of unsound Mind”. The medical practitioner also had to explicitly state the “Facts indicating Insanity observed by myself”, as well as “Other Facts indicating Insanity communicated to me by others”.

Eerily familiar, isn’t it?

What is a Public Place?

I am currently working with a woman who recently had an unfortunate encounter with the Charwood Police. Joan is a single woman in her 50’s. She works as a self employed nail technician. She is good at her job and has a loyal clientele. She has had no previous history of mental disorder.

Joan was in her front garden one fine weekend Spring morning, gardening. Her sister was with her. Her sister was concerned about her mental state, as she had just finished with her boyfriend of several years, and her mood seemed to be very volatile. Her sister called the on-call doctor, who refused to come out, and suggested she call an ambulance, which she did.

Instead of the ambulance arriving, three male police officers suddenly entered Joan’s garden and, apparently without attempting to talk to Joan, wrestled her to the ground. They managed to break her leg in the process. They then detained her under Sec.136 and took her to A&E. She was subsequently assessed under the Mental Health Act, detained under Sec.2 and admitted to Bluebell Ward, in a cast.

I met Joan when she appealed against her detention and I was asked to provide a Tribunal Report. However, her Sec.2 was rescinded and she was discharged less than two weeks after admission. Since discharge, she has shown no signs of mental disorder.

When I heard about the circumstances of her detention I was very concerned, to say the least, about the legality of the Sec.136.

The MHA states (Sec.136(1)): “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.”

The Reference Guide to the Act (Ch 30.17) adds: “For these purposes, a “public place” can be taken to mean any place (whether indoors or outdoors) to which the public have access, whether by right, by explicit or implied permission, on payment, or otherwise.

Richard Jones, in the Mental Health Act Manual, observes that this “probably includes: public highway, public access if payment is made, eg a cinema, public access at certain times of the day, eg a public house.”

Is someone’s front garden a “public place” or “a place to which the public have access”? Although there is little Mental Health case law which examines this issue, there are a number of cases relating to other legislation in which this has been explored.

In the case of R v Edwards (1978) in the Court of Appeal, it was found that, as far as the Public Order Act 1936 was concerned “the fact that the public can obtain access to a private house as visitors through the front garden does not make the garden a public place”.

The Weightman’s legal website has an informative article examining this issue. In relation to someone’s front garden, they note:

“With regard to the front garden of a private house, for example, we know that it will only fit the bill if members of the public can enter it without invitation (R v Bogdal [2008] EWCA Crim 1); and that in the case of a very small garden, it won’t be sufficient that someone standing there could reach a pedestrian on an adjoining highway. (R v Leroy Lloyd Roberts [2003] EWCA Crim 2753) But we only know that because of cases decided under the Public Order Act 1936 (R v Edwards (1978) 67 Cr App R 228), the Criminal Justice Act 1988 and the Dangerous Dogs Act 1991.”

Based on these sources, then, it is reasonable to conclude that a front (or a back) garden does not constitute a public place within the meaning of Sec.136. The Police therefore acted unlawfully when they restrained Joan and then took her to a place of safety. Joan is taking legal action.

While I do think that the Police are generally trying to act in the best interests of individuals when they invoke Sec.136, the typical copper on the beat does not necessarily understand the legal niceties of Sec.136. One such example was reported in Wigan Today on 30th November 2011, the case of Ms Atkinson, who died in hospital from a punctured lung.

It was reported: “Police had been called… following reports of a woman acting aggressively to her partner. They found Ms Atkinson clearly distressed, screaming and waving her arms around. Because of her behaviour, police decided to section her under the Mental Health Act for her own safety and took her to hospital for help.”

One of the officers during cross examination during the inquest stated: “After we detained Ms Atkinson and put her in the back of the van, PC Allen asked me to contact Leigh Infirmary and told me he'd detained her under Section 136 of the Mental Health Act. I hadn't really thought about what powers we had to detain her, I just wanted to do the right thing and get her to hospital as quickly as possible."

I’m sure that these officers were just trying to do “the right thing”. I’ve assessed many people in police custody over the years, sometimes detained under Sec.136, and sometimes under arrest for a public order offence. At times it seems it was the custody sergeant who decided under which power the officers involved had brought them to the police station on their arrival.

However, using Sec.136 when the mentally disordered person is not in a public place can cause more problems than it might solve. One such case is featured in a piece of Mental Health case law known as R (Sessay) v South London and Maudsley NHS Foundation Trust (2011) EWHC 2617 (QB).

In this case, the police attended the home of a woman after concerns about her mental health were raised. They removed her from her accommodation and eventually brought her to a hospital where the police officers completed and handed in a document which they called a “Sec.5-6 MCA 2005 Form” which stated the basis upon which they considered the Claimant to lack capacity and upon which they had therefore used their “powers” under the MCA 2005 to bring her to hospital. The hospital rightly concluded that this had no legal authority, and told the woman that she was being detained under Sec.136. She was eventually detained under Sec.2.

The Mental Capacity Act 2005 does not give anyone powers to remove a person from their home and forcibly take them to hospital. Once in a hospital, Sec.136 cannot be invoked because it is not a public place. As Richard Jones observes “an A& E dept waiting area is a public place, but a hospital ward is not, as it is a place to which only particular members of the public can attend at the request of the patient and with the permission of the hospital managers”.

The police could not of course have used Sec.136 to remove this woman, as she was in her own home, again not a “public place”.

The Court found, among other things, that her rights under Article 5 of the European Convention of Human Rights were infringed. It also stated that Sec.135 and Sec.136 were the exclusive powers available to police officers to remove persons to a place of safety, and that the hospital unlawfully detained her.

Incidentally, I believe all this may answer the query posed by Rosemary Cantwell, a blog reader, who posted in the comments to my last post, Conveyance of Mentally Disordered Patients to Hospital, the following question: “Is it necessary to obtain Sec.136 to remove forcibly a person from hospital to a place of safety who is not under Sec.2 or Sec.3?”

I do not know whether Ms Cantwell is referring to an actual case or a hypothetical situation. Either way, it is clear that a hospital ward cannot be considered to be “a place to which the public have access”, and Sec.136 could not therefore be used to remove an inpatient, or anyone else, from that place. However, if by “hospital” Ms Cantwell means a hospital reception area or A&E department, then Sec.136 could be used.

Conveyance of Mentally Disordered Patients to Hospital

An essential part of the role of the Approved Mental Health Professional is to ensure that the person they have just assessed is admitted to hospital. Having made a decision that someone needs to be admitted, whether informally or under a section of the MHA, the next step has to be to make suitable arrangements for “conveyance”, as the Act likes to call it.

However, the physical act of getting a patient to hospital once an AMHP has assessed them can be fraught with legal, ethical, logistical and practical difficulties.

The Reference Guide (para2.66) states: “A duly completed application for admission provides the authority for the applicant, or anyone authorised by the applicant [the AMHP], to take and convey the patient to the hospital named in the application”. It goes on to say (para 2.68): “Patients being taken and conveyed to hospital on the basis of an application for admission are considered to be in legal custody, and the applicant, or the person authorised by the applicant (as the case may be), may take steps accordingly to prevent the patient absconding.”

This clearly places the AMHP in a position of considerable power (and responsibility). The AMHP is responsible for ensuring that the patient reaches hospital safely, and can exert, or instruct others to exert, proportionate force or restraint if necessary. In the words of the Code of Practice (para 11.14) “Where AMHPs are the applicant, they have a professional responsibility to ensure that all the necessary arrangements are made for the patient to be conveyed to hospital.”

The Code of Practice devotes a whole chapter (Chapter 11) to “Conveyance of patients”. This chapter begins: “Patients should always be conveyed in the manner which is most likely to preserve their dignity and privacy consistent with managing any risk to their health and safety or to other people.”

Local Authorities have guidance for AMHP’s on how to convey to hospital. This guidance frequently states that all patients should ideally be transported by ambulance, although where the patient is likely to be aggressive or unpredictable, the police can be enlisted to arrange transport.

While there may be sound reasons for using an ambulance to transport a patient, the Code of Practice does not actually prescribe this. What the Code actually says is: “AMHPs should make decisions on which method of transport to use in consultation with the other professionals involved, the patient and (as appropriate) their carer, family or other supporters. The decision should be made following a risk assessment carried out on the basis of the best available information.” (para 11.16)

Factors to be taken into account include availability, distance to be travelled, the physical and mental state of the patient, the patient’s wishes, the views and wishes of the relatives, the risk of absconding or violence, and “the impact that any particular method of conveying the patient will have on the patient’s relationship with the community to which they will return”.

All this means that an ambulance may not always be the most appropriate means of transport. The CoP, para 11.21 notes: “AMHPs should not normally agree to a patient being conveyed by car unless satisfied that it would not put the patient or other people at risk of harm and that it is the most appropriate way of transporting the patient. In these circumstances there should be an escort for the patient other than the driver.”

While I would stress that all AMHP’s have to make their own decisions based on the particular circumstances of the patient, regular readers of this blog will be aware that there have been occasions when I have made a professional decision to transport the patient in my car.

Something I often find quite effective, providing I am confident that the patient is not likely to be aggressive, is to give the patient an element of choice, so that they do not feel completely overpowered by the process they have endured.

Once the decision has been made to detain the person, and the paperwork has been duly completed, I will of course inform them of the decision and of their rights to appeal against that decision. At that point, it is likely that they will continue to object, saying that they do not want to go to hospital. I will then tell them that admission is unavoidable, but that they have a choice between going in an ambulance or being taken to hospital by car.

If they choose to go by car, then I ensure that I have at least one escort with me, such as a relative, a professional colleague or an AMHP trainee, and arrange for the patient to sit in the back seat, directly behind the front passenger seat, with the escort sitting next to them.

Of course, if they decide against either choice, then they will go by ambulance. A detained patient will always end up in hospital – even if they abscond while waiting for transport to arrive.

Frequently, the patient will steadfastly maintain that they will not be taken to hospital under any circumstances. They often argue this right up until the moment when the ambulance crew enter the house – at which point they quietly pick up their overnight bag and step into the ambulance. I suppose that there is a part of them that either realises that admission is inevitable, or that recognise that it is really in their interests to be admitted.

I have said before on this blog that the arrival of someone in a uniform, whether it be a police officer or a paramedic, often seems to have a miraculous effect on a patient’s resolve and cooperation.

Where the patient still refuses to get into the ambulance, it is almost always the case that a few minutes persuasion (sometimes half an hour or more of repeating that it is unavoidable) will result in them stepping into the transport.

Sometimes the AMHP simply absenting oneself from the immediate vicinity allows the ambulance crew to assist the patient into the ambulance.

On rare occasions it may be necessary to enlist the assistance of the police. In my experience, in less than five per cent of cases does it become necessary to use any significant force to get the patient into the transport.

Having made a decision that an ambulance or police transport is required, this is far from the end of the process. AMHP’s will be very familiar with the difficulties that can arise from using the police or the ambulance service.

There are two problems that can occur at this point. One is the potential conflict between the Act’s guidance on conveyance to hospital and the Local Authority’s guidance on conveyance on the one hand, and the police and ambulance service guidelines on the other.

In practice, this means that police may be reluctant to attend in the first place, and even more reluctant to provide police transport or police assistance with transport.

The ambulance service may also be reluctant to transport a patient who has even a history of aggression, never mind be presenting as resistant on assessment.

AMHP’s can also often be frustrated by the ambulance service on the one hand insisting that police be present when risk has been identified before they will agree to attend, and the police on the other hand being reluctant to attend until the ambulance arrives. This can create logistical nightmares; some of my AMHP colleagues have found that trying to coordinate the simultaneous attendance of both the police and an ambulance can lead to many hours of delay, especially if shift changes are involved.

And if the patient has to be taken to a hospital many miles away – well, there have been times when I’ve had to wait 4-6 hours before transport has been sorted.

The other problem is the priority given to MHA admissions by ambulance services. Our local service typically gives two hours as the expected time of arrival, and even though an AMHP may regard it as of urgent necessity for a disturbed and distressed mental health patient to be admitted to hospital, the ambulance service does not give it the same priority, and ambulances on their way to the AMHP can often be diverted to what are considered more high priority calls.

Our local ambulance service has a cunning ruse to meet their targets for delays by often sending a single paramedic in a car, who then makes the assessment (surprise, surprise) that it is unsafe to transport the patient, and insisting on an ambulance with two crew – which is what you asked for and expected in the first place.

Among my AMHP colleagues, delays involving ambulances are one of the major problems encountered in discharging their duties, to such an extent that such delays are monitored.

All of which can make it very tempting for an AMHP to decide to take the patient to hospital themselves.

More Criminal Mental Health Acts

1. Assisting a detained patient to escape from hospital
I last posted on criminal offences created by the Mental Health Act on 15th January 2012. Since then, the case of Rebecca Martin has now reached a conclusion.

This case appears to be a prosecution under Sec.128. Sec.128 makes it an offence to assist a detained patient “to absent himself without leave”. The maximum penalty is 2 years imprisonment and/or an unlimited fine.

Rebecca Martin was a care assistant in a secure hospital for patients with learning difficulties and challenging behaviour in Suffolk. She developed a relationship with one of the detained patients, Luke Sparks, and helped him to escape from the hospital. He attacked a member of staff with a fire extinguisher and obtained the keys, while Martin waited outside in a car. Once free, she drove him to the Bristol area, where they were both arrested a couple of days later.

At Ipswich Crown Court on 29th March 2012 Martin was sentenced to 18 months imprisonment. It is reported that the Judge “described her as ‘naïve’ and said she had thought she was in love with Sparks and that he was in love with her. He said she was guilty of a serious breach of trust and had potentially endangered the lives of other people by helping Sparks to escape.”

2. Mental Health Professionals and Sexual Misconduct
Prosecutions like this are rare, although it is less rare for professionals and care workers to develop infatuations with service users. This appears to be equally common among both male and female professionals, although the reasons behind these inappropriate relationships appear quite different.

I have been reading a selection of disciplinary hearings reported on the GSCC website (the soon to be abolished General Social Care Council is responsible for registering social workers). It would appear from these cases that male social workers who engage in unprofessional sexual contact with female service users tend to be overtly exploitative. One male social worker, for example, threatened to section a female service user if she did not cooperate with him.

Female professionals, however, seem to become embroiled in intense, although ill-advised, emotional relationships which they perhaps see as nurturing rather than predominantly sexual or exploitative in nature.

One such example is that of Stephenie Reeves. In February 2008 she appeared in Preston Crown Court and was found guilty of “engaging in sexual activity with a person who had a mental disorder”. She was a psychologist working in a secure unit near Preston when she developed an inappropriate relationship with a 20 year old detained male patient which resulted in her pregnancy.

It was reported that she was “due to give birth next month to the inmate's baby, and the pair plan to resume their relationship when he is released from hospital”.

The Judge stated: "This involves a grave breach of trust on your part… You breached that trust by first of all allowing an emotional relationship to develop that was wholly inappropriate… Such a breach would usually invite a custodial sentence but, because of the extremely unusual circumstances, I feel able to depart from sentencing guidelines… It is not a case of you taking advantage of his mental disabilities for your sexual prevarication. You were not a predator.'' She was given a suspended sentence of 12 months.

2. Approved or not? Does it really matter?
Mark Francis was a social worker who fell foul of S.114 MHA. S.114 relates to the approval of mental health professionals to discharge the duties of the AMHP (and before that, the ASW). AMHP’s (and before 2008, ASW’s) can only exercise the powers under the Act to detain patients if they have been duly approved by the local authority. Additionally, since 2005, social workers have to be registered by the GSCC in order to practice as social workers.

Mark Francis was a very experienced social worker who qualified in 1984 and had practiced as an ASW from the mid 1980’s onwards. When it became a requirement to be registered by the GSCC in 2005, Mark Francis omitted to do so. However, he continued to practice as a local authority social worker, and as an ASW.

His employers initiated disciplinary proceedings, and he was given a final written warning for failing to register with the GSCC and working as an ASW when not registered, both being classified as gross misconduct.

Francis then belatedly applied to the GSCC to be registered, but his application was refused. He consequently appealed to the First Tier Tribunal (First Tier Tribunal, [2010] UKFTT 434 (HESC), 21 September 2010), which heard his case in September 2010. His appeal was dismissed.

Francis’s case may appear to be little more than that of a lone professional who somehow lost his way. However, the implications of his professional omissions are potentially very far reaching.

During the time he was practicing as an ASW, but without being registered with the GSCC, and therefore not being “approved”, any actions he took in exercising the powers of an ASW would have been legally invalid. Any application under the Mental Health Act would have been illegal. Therefore, any detention that arose as a result of his actions as an ASW, regardless of the merits of any individual case, would have amounted to unlawful imprisonment.

How many people did this apply to? It is not known. But such situations, while hopefully rare, as most AMHP’s are very conscious of the law and their role within it, are not unique. A firm of solicitors (O’Donnells) issued the following statement in February 2012:

“We are receiving substantial numbers of instructions from clients seeking clarification over whether their detentions over the last four years have been lawful. Applications made by one particular AMHP were unlawful as that person’s registration had expired.

It follows that, if an original section 3 was invalid, then subsequent renewals and any following CTO, will have been invalid also…We strongly suggest that anyone who believes they have been affected should seek legal advice as soon as possible as those who have been unlawfully detained or placed on a CTO may be entitled to compensation.”

The problem is – how is someone who has been detained under the MHA to know whether the AMHP who made their application was practicing legally or not?

The Code of Practice (4.50) states “AMHPs should identify themselves to the person being assessed, members of the person’s family, carers or friends and the other professionals present... They should carry documents with them at all times which identify them as AMHPs and which specify both the LSSA which approved them and the LSSA on whose behalf they are acting.”

I, and I assume all other AMHP’s, have an ID card issued by the Local Authority who approved me. It has a picture of me, my name, and a statement that I am authorised to act as an “Approved Mental Health Professional”. It also has the date my current approval period started, and the date it expires. I display it in a prominent position whenever I am conducting duties under the MHA.

However, it is very rare for anyone I am assessing to look closely at my warrant. And would they know what it meant in any case?

And unless they were old hands at this sectioning lark, how would they know about the instructions in the Code of Practice, and how would they know about the role and requirements of the AMHP, unless the AMHP told them?

The lessons of this are clear: if you think that at some time you may find yourself on the receiving end of an assessment under the MHA, then you should acquaint yourself with the Mental Health Act 1983, the Reference Guide to the Act, and the Code of Practice. Or read this blog.