Section 117 Aftercare and the Meaning of “Residence”: Recent Case Law

On 22^nd May 2014 the Court of Appeal heard the appeal by Wiltshire Council ([2014] EWCA Civ 712), who were in dispute with Hertfordshire County Council over who was responsible for Sec.117 aftercare for SQ.

It’s sometimes astonishing to see the lengths (and legal expense) that local authorities go to in order to avoid accepting responsibility for Sec.117 aftercare. But then providing aftercare can be a very expensive business.

It’s not unknown for local authorities to place troublesome Sec.3 patients in care homes in neighbouring authorities under Sec.117 aftercare, in the knowledge that the placement is of dubious suitability and may quite possibly break down. This then precipitates an assessment under the Mental Health Act conducted by the local AMHP service and a fresh detention under Sec.3 in the new local authority’s area – who then have to take responsibility for future aftercare.

I know this sort of reprehensible behaviour is hard to believe, but it does happen from time to time.

Anyway, to get back to Wiltshire v. Hertfordshire. SQ was born and lived in Wiltshire until 1995. He had been an adult mental health service user since 1989. In 1995, a court made him subject to Sec.37 with restrictions under Sec.41. He remained detained under Sec.37/41 in various hospitals outside Wiltshire until 2009, when he was discharged with a condition that he reside in a staffed hostel in Hertfordshire.

Two years later, in 2011, he was recalled to a hospital in Hertfordshire. On 20^th February 2014 he was again conditionally discharged to the same accommodation in Hertfordshire.
Following his recall, Wiltshire attempted to transfer Sec.117 aftercare responsibility to Hertfordshire. Hertfordshire refused to accept this.

Wiltshire requested judicial review of this decision, which was rejected twice. They then appealed to the Court of Appeal.

People who make a study of these cases will be aware of the intricacies of the meaning of the word “residence”. Local authorities, used to, and strangely often still do, try to apply the term “ordinary residence” to the duty of provide aftercare under Sec.117.

In fact, “ordinary residence” has nothing to do with the Mental Health Act at all. It is a definition which only has meaning under the National Assistance Act 1948.

There’s a rather useful Department of Health Publication called Ordinary Residence: Guidance onthe identification of the ordinary residence of people in need of communitycare services, England. This document states:

“Responsibility for the provision of accommodation and community care services under sections 21 and 29 of the 1948 Act is largely based on the concept of “ordinary residence”. However, there is no definition of “ordinary residence” in the 1948 Act. Therefore, the term should be given its ordinary and natural meaning subject to any interpretation by the courts.”

 

It goes on to say that ordinary residence “is the place a person has voluntarily adopted for a settled purpose for short or long duration. Ordinary residence can be acquired as soon as a person moves to an area if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in, a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.”

The document goes on to point out that with Sec.117 the duty falls on the authorities “for the area in which the person concerned is resident or to which the person is sent on discharge by the hospital in which the person was detained.” It stresses (using bold type) that: “the term “resident” in the 1983 Act is not the same as “ordinarily resident” in the 1948 Act and therefore the deeming provisions (and other rules about ordinary residence explained in this guidance) do not apply.”

So what of this recent judgment? This case shows Wiltshire trying desperately to extricate themselves from their Sec.117 duties.

Wiltshire was seeking decisions on “whether the recall to hospital in 2011 resulted in SQ being owed a fresh duty under section 117 on leaving hospital in 2014; and secondly, if so, whether SQ was for the purposes of Section 117 “resident” in Hertfordshire’s area as at the date of the recall in 2011.”

While there was “no dispute that, when SQ was conditionally discharged from hospital for the first time on 2nd March 2009, he was “resident” in Wiltshire for section 117 purposes”, Wiltshire was keen to establish that his prolonged residence in the accommodation in Hertfordshire meant that he was now “resident” within the meaning of the MHA in Hertfordshire.

The Court of Appeal gave this short shrift. It observed that “Wiltshire did not suddenly cease to be the local services authority in whose area SQ was “resident” for section 117 purposes because on discharge he was sent to an address in Hertfordshire”.

They also dismissed the contention that there were two distinct periods of detention, on the basis that, unlike a Sec.3, where someone can be discharged from the order, then detained again following a fresh assessment, the recall of a conditionally discharged patient continues to arise from the original court order, and “the chain of causation has never been broken.”

The judgment concludes: “I consider it clear that where a person has been made subject to a hospital order with restrictions, then conditionally discharged, then recalled to hospital, and then conditionally discharged for a second time, for the purposes of s 117(3) of the Act he is still to be treated as “resident in the area” of the same local authority as that in which he lived before the original hospital order was made. This makes it unnecessary to consider whether or not a fresh duty to provide after-care services arose on SQ’s second discharge earlier this year. Whether the duty is a fresh one or a continuing one, on the facts of this case it is Wiltshire’s duty.”

Using the same argument, these residence issues could equally apply to a patient made subject to Supervised Community Treatment following detention under Sec.3.

 

What is clear from this case is that, despite a growing body of case law establishing the meaning of “residence” for Sec.117 aftercare, local authorities are still trying to evade their duties.

Rubbed Up the Wrong Way? Difficulties with the MCA/MHA Interface

I am very grateful to the eminent Lucy Series, who writes the amazing The Small Places blog, for drawing my attention to a very recent judgment from the Court of Protection (Northamptonshire Healthcare NHS Foundation Trust and Northampton & Nene CCG v. ML, EL & BL: [2014] EWCOP 2). I will summarise it as best I can.

The case, which was published on 16th May 2014, concerns ML. ML is a man of 25, with severe learning disability, developmental disorder, autism, epilepsy and diabetes. He lives with his parents, EL & BL, his mother, EL, being his primary carer. He attends a National Autistic Society day centre 3 days a week.

It appears that between the mother and the committed staff of the day centre, there is evidence that ML is being appropriately cared for, and the treatment programme he is receiving is suited to his needs and is showing an improvement in his behaviour problems.

Mr Justice Hayden observes:

“Some aspects of ML's behaviour are very challenging, inevitably these have to be the focus of my attention when I come to consider the issues before me, but I should like to emphasise, that which BL has properly insisted upon at this hearing, there is a great deal more to ML than either his raft of problems or his, at times, violent outbursts. He is a young man who often radiates a sense of his own happiness and contentment to others; he has a real capacity for enjoyment, especially swimming. He can be warm and affectionate to those he trusts and knows well, particularly his mother. He has a sense of humour that is entirely his own, which occasionally has a subtlety and nuance to it that both delights and sometimes inspires his parents.”

Nevertheless, ML’s local Trust and CCG maintain that:

“i) ML lacks capacity to litigate and/or to make decisions about his care and /or residence;

ii) it would be in ML's best interest to reside at Bestwood Hospital;

iii) it would be in ML's best interest to undergo treatment at Bestwood Hospital until such time as he is able to be discharged to a suitable assisted living package in the community.”

To put it bluntly, they were seeking to remove ML from his loving parents and supportive day care centre, and place him in a hospital for an unspecified time.

This appears to be on the grounds that a nurse consultant concerned with ML’s care considered him to be “one of the most dangerous patients she has encountered still living within the community”. In her evidence to the Court she declared that "If ML is not transferred out of his current environment and routines his world is going to continue to decrease". She expressed concern about his diet, which she said consisted entirely of jam sandwiches, and she was very critical of the day centre.

In 2012, ML spent several months in a learning difficulties hospital detained under the Mental Health Act. The Judge noted a range of concerns about the extent and length of time that ML was placed in seclusion.

A psychiatrist who gave evidence to the Court said that he “saw no evidence that during the 5 months in hospital ML had learnt new self care skills sufficient to change his care needs.” He went on to say that he had often had to be restrained for long periods of time, and when finally placed in a seclusion room was so aroused and angry that he “then kicks and headbangs in a way that he was not prone to do – to the point of knocking himself unconscious and giving himself black eyes".

ML’s parents became so concerned about his treatment in this hospital that they applied to a Mental Health Tribunal for his discharge. The Tribunal discharged him.

ML’s parents were concerned that, despite the reputation of the hospital to which it is proposed that he should be admitted, it would “weaken his relationship with his family, who he does not respond to well out of the context of the home environment. It is distinctly possible he will not want to see them in hospital. If his behaviour were to deteriorate, as it did following the Vale admission, he would potentially be entirely unmanageable in the community… and there would in effect be no way back. ML would have lost the delicate security of the present status quo and be consigned to permanent institutional care. For BL that heartbreaking prospect is simply too great a risk.”

So in a nutshell: ML has severe learning difficulties and challenging behaviour. The local Trust and CCG want him to be placed in a hospital for probably 2 years or more, in order to rehabilitate him in some way, on the basis it appears that sooner or later his parents will be unable to care for him. Aware that this may amount to a deprivation of liberty, they want to do this under the MCA. His parents, however, want him to continue to live with them, where he is patently happier than when in a hospital setting, and the National Autistic Society are supporting him and working with him on a behavioural programme.

Mr Justice Hayden then concludes that it is nevertheless in ML’s best interests to be placed in this specific hospital resource, and then goes on to examine under which regime this should be facilitated. He identifies 3 options: the MCA, the MHA – or the Inherent Jurisdiction.

Being a humble jobbing AMHP not familiar with all the ins and outs of the legal system, I was not familiar with the term “Inherent Jurisdiction”. There is a simple definition of this: under English common law, a superior court has the jurisdiction to hear any matter that comes before it, and it allows it to control its own processes and to control the procedures before it.

The Official Solicitor’s representation argues that using these powers “would be to subvert the will of Parliament as expressed in the MHA and … would be an unlawful use of the inherent jurisdictional powers”. The Judge agrees with this analysis.

The Judge also concludes that, in accordance with another Court of Protection case, AM v SLAM, the MCA can also not be used in this case. This would be, as in the case of AM v SLAM, because ML, whether or not he lacks capacity, would be highly likely to object to being a patient in hospital and/or receiving the treatment that the hospital would wish to give. (For a detailed discussion of this case law see this blog post).

The Judge having already concluded that ML should go into this hospital and receive treatment, this leaves only the MHA.

Since the purpose of ML going into hospital is for treatment rather than assessment, this renders detention under Sec.3 more appropriate. The Judge anticipates that the Nearest Relative is likely to object to detention under Sec.3. Even if the NR does not object, they would be likely at some stage to apply to a Tribunal for ML’s discharge. He therefore concludes by stating:

“I propose to take an unusual course. As I have foreshadowed above, any application to displace the nearest relative is to be reserved to me (upon the relevant authorisation to sit as a County Court Judge). I also propose to release this judgment to the President of the First Tier Tribunal with an invitation to him to allocate a judge of the First Tier to hear any applications in this case, to ensure judicial continuity. I will provide that a copy of this judgment follows this case.”

What are we to make of this quite extraordinary judgment?

Is the Judge, having made his decision, seeking to interfere, or intervene, in future anticipated legal hearings connected with M?. He appears to be setting himself up to hear any application for displacement of the NR, and making it very clear what his decision would be likely to be. Is he seeking to place some pressure on the President of the First Tier Tribunal, almost as if to warn any Mental Health Tribunal that might hear an appeal against detention at some point in the future to heed his detailed arguments for continued detention?

Would another reader of this judgment come to this conclusion?

It appears likely that, having received this judgment, the local Trust’s next step would be to arrange an assessment under the MHA for ML.

How, then, should an AMHP respond to this hypothetical request?

An AMHP would, of course, have to consider whether there is an alternative, less restrictive alternative to hospital admission. In this case, there are parents who appear to be reasonable, intelligent and caring, who have provided a home for ML, and are more than willing to continue to provide a home for him.

In addition, there are resources in the community which profess to be able to provide a treatment regime in a community setting, with evidence that this regime is gradually producing an improvement in ML’s behaviour.

There is also the evidence relating to a poor outcome from a previous detention in hospital, where the patient showed no improvement despite being detained for several months, and indeed was secluded in such a manner that he injured himself. On top of that, a Tribunal concluded that the grounds for continuing detention were not met and discharged him from detention under the MHA.

If the NR concurred that ML required compulsory admission for treatment and did not therefore offer any objection, then I suppose that an AMHP might consider that, in all the circumstances of the case, detention under Sec.3 was the most appropriate option.

But if, as seems very likely, the NR did object, could the AMHP conclude that, taking into account all the circumstances of the case, the NR was acting unreasonably? Probably not, if they had read this Judgment. So it would be unlikely that an application for displacement of the NR would be deemed a necessary and proportionate response.

So I am driven to repeat: what are we to make of this quite extraordinary judgment? And what are the potential consequences for others in ML’s position?

What’s the Rush? Little Known Timescales for Compulsory Admissions

When a patient is assessed in the community and then an application is made for their detention either under Sec.2, for assessment, or Sec.3, for treatment, the next step is generally to arrange for their admission to hospital as quickly as possible.

There may be delays; the most common, once a bed has been obtained and an application made, is the wait for an ambulance. It is not uncommon to have to wait for 2-4 hours before an ambulance arrives, and then there can be further delays while the patient is persuaded to get into the ambulance, and then there can be a long drive to the hospital.

Some areas have a specific contractual agreement with the local ambulance trust, or even a private ambulance service, to provide an ambulance within a set time frame. There are also some local agreements which have a Traffic Light Risk Categorisation System, which sets response times according to the level of risk (Red, Amber or Green) the AMHP has assessed.

Our local pilot scheme has a 20 minute response time for the Red category (the patient is highly agitated, lacks insight and there is a potential risk of violence, self-harm or suicide). There is a 2 hour response time for Amber (patient lacks insight and presents with changeability of agitation, anxiety and distress, and may also threaten self harm and potential risk to others), and up to a 4 hour wait for an ambulance for a patient identified at Green (patient is settled, has good insight of probable informal admission, and minimal risk is identified).

Prior to this agreement, the local ambulance trust did not regard the conveyance of mentally disordered patients, whether detained or informal, as a high priority, and there was generally a default timing of 2 hours, however agitated and risky the patient might be.

But there is no legal requirement to facilitate a formal admission within such a narrow timescale.

Sec.6 Mental Health Act states clearly that a patient liable to detention under Sec.2 or Sec.3 can be conveyed to hospital at any time within “the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application”.

Even when a patient has been detained under Sec.4, which is only for cases of dire emergency, Sec.6 allows a period of 24 hours “beginning at the time when the patient was examined by the practitioner giving the medical recommendation or at the time when the application is made, whichever is the earlier.”

The Reference Guide to the MHA goes into some detail about these, and other, time limits. Table 2.3 states:  “If the patient was last examined on 1 January, the patient can only be taken to or admitted to hospital if that happens on or before 14 January. The application must also have been signed before they can be taken to hospital.”

Additionally, the Reference Guide also states that “no more than five clear days must have elapsed between the days on which the separate examinations took place”. In other words “if the first doctor examined the patient on 1 January, the second doctor’s examination must take place on or before 7 January”.

This could theoretically lead to some curious consequences.

Let’s say Mavis Cruett’s GP goes out and sees her on Wednesday, 1^st January. As it’s a Bank Holiday, he can’t get hold of an AMHP until 2^nd January. The AMHP goes and visits Mavis to see if an alternative to hospital admission can be arranged. Mavis is an elderly lady, and the AMHP arranges for the local Later Life Team to assess. They visit on Friday, 3^rd January, but they don’t notify the AMHP that they are unable to help until after the weekend, on Monday, 6^th January. The AMHP arranges to assess her with the Later Life psychiatrist the following day.  On Tuesday 7^th January, the psychiatrist then makes a recommendation of admission under Sec.2 MHA.

The AMHP pops round to the GP’s surgery and gets him to complete another medical recommendation, based on his assessment on 1^st January. The AMHP then completes an application, rendering Mavis liable to detention under Sec.2. At this point, the AMHP actually has until midnight on 21^st January to admit Mavis. That’s three full weeks since the GP first assessed her. And it’s all completely legal.

Although the Code of Practice says in Para 4.87 that “most compulsory admissions require prompt action”, it does acknowledge that these time limits exist, and observes: “there may be cases where AMHPs conclude that they should delay taking a final decision, in order to see whether the patient’s condition changes, or whether successful alternatives to detention can be put in place in the interim.”

Nearly all the AMHP’s with whom I have discussed this rule don’t like it. Some have said that if you as an AMHP think someone needs to be detained in hospital, then you shouldn’t be delaying the admission, and if you think that the admission can be delayed for a fortnight, then you shouldn’t be making an application in the first place.

But that’s not actually what the law says.

One last thing: when I was looking all this up in the Reference Guide, I came across this. It relates to the timing of the medical recommendations.

“If the application is signed by the nearest relative or AMHP at noon on 1 January, the medical recommendation must be signed by the doctor(s) concerned before midnight on that day.”

For as long as I have been making applications under the MHA (which is for over 30 years), I have always taken the view that an application for detention has no legal standing unless the AMHP has two completed medical recommendations. After all, the form itself says: “This application is founded on two medical recommendations in the prescribed form”.

However, there is the Reference Guide stating unequivocally that the AMHP (or NR) can complete an application up to 12 hours before the doctors complete their recommendations!

Does this  mean that legally an AMHP can admit and detain a patient in hospital, perhaps with only one recommendation (and I’m not talking about Sec.4), as long as the hospital psychiatrist provides a recommendation before midnight (when presumably the patient, the AMHP, or both, will turn into a pumpkin)?

Surely not!

Review: Approved Mental Health Practice, edited by Sarah Matthews, Philip O’Hare & Jill Hemmington

 

The subtitle of this new book is “Essential Themes of Students and Practitioners”, and I would certainly endorse this. This is the only serious text of which I am aware that focuses entirely on professional practice under the Mental Heath Acts of the United Kingdom.

The authors grapple with the conflict between the social work role of empowerment and the AMHP powers that can lead to coercion and the imposition of social and medical control, and this book provides an excellent examination of the tensions existing in the role of the approved mental health practitioner, allowing the student and practitioner to reflect on the role in the context of the wider social perspective.

As the book is directed at an examination of practice under all the UK’s mental health legislation, they generally describe the professional as an “approved mental health practitioner”, so I will continue to use this terminology in this review, and the abbreviation of “AMHP” should be read in this way.

Sarah Matthews starts by posing the question, “Do social workers as approved mental health practitioners struggle to promote a model that views the manifestations of mental health in any way other than the dominant and, some argue, pathological one?” She goes on to outline the fundamental aspects of approved mental health practice. These include the social perspective as being central, as well as the independent nature of the role. She also stresses the importance of emotional engagement, containment and the concept of “dirty work” as contributing to the unique role of the AMHP. She states: “The mother, it is suggested, contains others’ distress without appearing to be affected by it herself and it is this which an approved mental health practitioner might also accomplish.”

I was particularly intrigued by her discussion of work under the MHA as being “dirty work”. Dirty work “describes the notion that people are compelled to play a role in work about which they ought to be a little ashamed, morally… A profession embraces unpleasant tasks as a means of establishing its credibility or undertakes such tasks as a necessary, albeit difficult, element.”

Tim Spencer-Lane provides an analysis of the legal and political factors in England and Wales that led to the revision of the 1983 Act and the creation of Approved Mental Health Professionals. Having practiced under Mental Health Acts since 1981, I have lived through these changes, and have been professionally associated with the issues which eventually led to the 2007 Act. He makes the interesting point that the MHA 2007 “was the result of a long and embittered battle between the Government and the major stakeholders about the fundamental purpose of mental health law”, whereas the Mental Capacity Act 2005 was developed in broad consensus and was the culmination of a long consultation process.

Jean Gordon and Roger Davis go on to compare and contrast mental health law in Scotland and Northern Ireland (although omits the Isle of Man Mental health Act 1998, which, like Northern Ireland, retains the Approved Social Worker).

David Pilgrim makes interesting points about the way in which mental health professionals can make basic assumptions about mental health practice which may be at odds with reality. He makes the point that "third-party interests constantly shape professional decision making and action. Indeed, at its most coercive, mental health work considers the needs of the identified patients only after others are protected from their prospective presence and actions... It is soon evident that public safety and institutional order can dominate staff decision making."

He argues, with some justification, that the MHA in England and Wales is more concerned with controlling mental disorder than with the promotion of mental health. This makes the AMHP role innately coercive, and he poses some challenging questions about the validity of enforcing compulsory treatment with drugs which are at best only moderately effective, and at worst can cause serious harm or even death.

Helen Spandler tackles problems around psychiatric diagnosis, wishing to "equip approved mental health practitioners with the knowledge to question, challenge and understand the broader meaning of mental disorder and diagnosis," in order for us to be "more cautious and thoughtful about the language we use to describe mental health crises."

She reviews the different approaches to diagnosis, from psychiatric, psychological and service user perspectives, often using as examples the ways in which the long term effects of childhood trauma can be interpreted as either normal reactions to extreme life events, or pathology indicating mental illness or disorder.

She suggests that a more useful, and service user centred approach for an AMHP to take is to assess levels of impairment and functioning, rather than diagnosis, to determine access to services and using mental health legislation. While expressing scepticism about the use of diagnosis, she states that "it is important not to let the endorsement or criticism of diagnosis get in the way of decision-making." Any alternative to conventional diagnosis "must result in better consequences for people in terms of gaining the more appropriate support and assistance."

Daisy Bogg examines ethics and values in the context of approved mental health practice, tackling in the process some of the ethical dilemmas inherent in the use of Community Treatment Orders, observing that "approved mental health practitioners serve as a counterbalance to a single dominant medical perspective and are required to provide a more holistic view, and account for the whole circumstances of an individual's situation before making a decision to apply for compulsory admission."

Amanda Taylor and Jill Hemmington's chapter on Diversity in Mental Health sets out to "challenge notions of diversity being simply and solely located within traditional, fixed dimensions and to alternatively view it as being unique to the individual, group and community." They warn that approved mental health practitioners need to be aware that they "belong to a 'dominant social group' that 'maintain systems of privilege and oppression'".

They give as an illustration an in depth analysis of Deafness, including specific case studies, using these to show that "it is vital that as practitioners we can seek that which is outside of the self and consider not only the diversity relating to the other but go some way to working within their 'internal frame of reference' to understand the layers that exist."

They conclude: "Empathy, 'tuning in' and constantly asking oneself questions are the starting points to a thorough, effective assessment that has honesty and collaborative work at its core."

I was particularly intrigued by Anthea Murr and Tamsin Waterhouse's chapter on "The Impact of Time and Place", as it focused on assessments in rural areas. Readers of this blog will be aware that I work predominantly in a rural area; even the towns in my area have populations of less than 30,000. They outline the special factors that can impact on the mental health of people living in rural areas, such as physical, social, cultural, psychological and geographical isolation, as well as the problems of rural poverty, and conclude that practitioners working in rural areas need to have special training and acclimatisation to prepare them for these particular challenges.

Julie Ridley outlines a study of service users’ experiences of mental health legislation in Scotland. Although specific to Scotland, this study is also of relevance to professionals working throughout the UK.

Experiences of compulsion varied from the positive to the negative, perhaps not unexpectedly. Some service users welcomed having “‘responsibility taken away’ and a structure to daily life imposed”, while others described it as a “nightmare” experience.

Philip O’Hare and Gavin Davidson devote a chapter to the role of the Nearest Relative, tracing the history of this role in mental health legislation going back to the 18^th century, and its evolution in more recent Mental Health Acts. They make the point that improvements in social work training and the changes to practice brought about by the Seebohm in the 1970’s added to pressure to replace the 1959 Mental Health Act with legislation that recognised the professional competence of social workers. This led to the 1983 Act, where the Approved Social Worker became the preferred applicant in applications for detention.

I was intrigued by the statistic that in the early years following the introduction of the 1983 Act only 1.6% of application were made by Nearest Relatives. I suspect that this figure is now even lower.

Practicing exclusively in England, I did not realise that legislation in Scotland had ended the Nearest Relative role as applicant for detention. I was interested to read that the other parts of this role have been replaced by a “named person”, who is nominated by the patient. Although this seems like an admirable idea, and would obviate the current difficulties that AMHP’s can find in identifying and consulting with the Nearest Relative, this idea was unfortunately not taken up when drafting the 2007 Act.

Philip O’Hare discusses to what extent evidence-based practice can inform approved mental health practice. There is a paucity of evidence on which to base evidence-based practice within mental health legislation,; evidence-based practice is essentially based on the medical model, which can be hard to replicate in a social care context.

O’Hare asks the question “How to AMHP’s make sense of their legal roles being informed by practice, and looks at making decisions based on least restrictive concepts, applying this in particular to the AMHP role in Community Treatment Orders: “how does an AMHP make a distinction between justified and unjustified CTO’s?”

Unfortunately, despite rather sketchy research into the efficacy of CTO’s, it is very difficult to assess the likely beneficial impact of a CTO on any particular individual, other than anecdotal evidence relating to length of time without a hospital admission. How can you test whether the conditions of a CTO have positively influenced a specific patient?

Jill Hemmington examines how AMHP’s have to manage uncertainty, and how one can develop practice wisdom. She makes the point that approved mental health practice “has been described as ‘crisis, mess and muddle’ where Mental Health Act assessments often arise from and within situations where there is ‘panic and confusion’”. She makes an interesting attempt to apply crisis theory to AMHP work, and also points out that “because something is lawful, it is not automatically ethical”.

She poses a number of pertinent questions for an AMHP to consider relating to their practice, for example, “How did I influence the situation through: my presence, my actions, my preconceptions or assumptions, other people’s perceptions of me, my physical well-being on the day?”

The editors conclude that “for an AMHP the focus is on how to interpret and analyse appropriately and avoid any illusion that there can be certainty.”

Each chapter contains reflective questions, which are designed to provoke stimulating discussions in student seminars, and which would also be useful for AMHP’s who are preparing reapproval portfolios to evidence reflective practice and to elicit learning points from professional experience.

I found the book as a whole stimulating and thought-provoking. It was a pleasure to read a book that directly addresses the dilemmas with which I am faced every day of my professional life.

I wholeheartedly recommend this book to anyone interested in the AMHP role, including those undergoing AMHP training, AMHP’s preparing for reapproval, and social work and mental health nursing students who seek to obtain a deeper understanding of the moral and legal complexities of the role.

Approved Mental Health Practice: Essential Themes for Students and Practitioners
Edited By Sarah Matthews, Philip O'Hare and Jill Hemmington
Palgrave Macmillan, April 2014
ISBN: 1-137-00013-9, 978-1-137-00013-2

Ask the AMHP – a new occasional column

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

Here’s a question I recently received from a rather stressed and anxious AMHP (but then they all are, aren’t they?)

I’ve got 2 medical recommendations for Sec.3 on a patient who is in the medical assessment unit of our local hospital, but lives outside our area. The other area is currently trying to find a bed. Can I complete this application?

The Masked AMHP replies:

No, I’m afraid you can’t. You have to have the name and address of a hospital prepared to take the patient on your application form before you can sign it and therefore complete the application. But it’s even worse – your two doctors can’t make a recommendation for Sec.3 unless they can state the name of a hospital where appropriate treatment can be provided. And if they start giving a very long list of possible hospitals, in the hope that one of them might become available for the patient, that sort of defeats the object of suitable treatment being available.

The only thing I can suggest is that your two doctors make a recommendation for Sec.2. then they won’t have to name a hospital, and they can then leave. Since your patient is actually currently an inpatient on a general ward, you could see if you can detain the patient on that ward under Sec.2. You can then complete your application and the patient will be formally detained. The patient can then be transferred under the usual transfer arrangements once the other area has found a bed.

Here’s a question I had emailed to me by a student AMHP.

I am a student AMHP and a recent dilemma in the office has prompted me to write to you. If a person is on a CTO and the conditions of this are that they receive treatment in supported living should the living cost ie rent be paid through S117, local policy says not but I wanted to check.

Also, the local policy says that the person does not legally have to accept the S117 aftercare, however how does this fit in with aftercare that is a requirement of the CTO?

The Masked AMHP replies:

There is quite a bit of case law about S117 and housing costs, which I have covered on my blog. Normal living expenses, eg food, electricity, housing, are universal needs and are not arising from a mental health need. Therefore they are not covered by S117.

If the S117 aftercare is explicitly covered by the conditions of the CTO, eg that the patient resides in a certain place, then a failure to do so breaches his CTO. In such a situation, the patient would have to accept S117 aftercare.

Here’s a question from the blog:

Have you ever known a situation where one doctor disagrees and will not furnish a recommendation so a third doctor is sought in order to detain?

The Masked AMHP replies:

I have certainly had situations where one doctor has furnished a recommendation, but a second Sec.12 doctor has disagreed and refused. This is not uncommon for someone who is an inpatient, and the hospital Responsible Clinician has left a medical recommendation on the ward. I have to say that in these situations, I have been satisfied to go along with this and not therefore proceed with an application. However, theoretically, if as an AMHP you feel the dissenting doctor is acting perversely, and you are very concerned about risks to the patient if they are not detained, I do not regard it an unethical of obtain a further medical opinion. However, there’d have to be a limit to the number of doctors you could consult.

And here’s a final question from another stressed and anxious AMHP:

I’ve got a 16 year old girl on a Sec.2 in a private hospital. We do not feel she needs to be in hospital, and we have arranged for an alternative placement. The Community Responsible Clinician backs this plan. However, the hospital Responsible Clinician refuses to discharge her from hospital, and will not discharge the Sec.2. What can we do?

The Masked AMHP replies:

Crumbs! What a peculiar situation. The hospital RC has the final say in this, regardless of what the community RC thinks, and even if the community RC provided one of the recommendations. The patient can appeal against the decision, and as it’s a Sec.2 the Tribunal would generally be within 3 working days. In the meantime, you as the AMHP could make it clear that you would be recommending discharge, which might concentrate the mind of the hospital RC.

Keep your questions coming in! The Masked AMHP is always happy to try to assist.

The Masked AMHP is Retiring…Sort Of

It’s true. After nearly 40 years as a social worker, and 33 years as a Mental Welfare Officer, approved Social worker, and approved Mental Health Professional, I am officially retiring.

I’ve seen a lot of changes in social work, and mental health service provision, over that time. In 1974, only two years before I started work as an unqualified social worker in 1976 (it was unusual then for social workers to be qualified), there had been a huge national reorganisation of social care provision, precipitated by the Local Authority Social Services Act 1970. This in turn had been inspired by the Seebohm Report, published in July 1968, which had proposed the integration of disparate social care services into single, generic departments overseen by local authority social services departments.

Until then, social care had been administered in a range of guises. For example, mental health had Mental Welfare Officers, defined by the Mental Health Act 1959. Services for children and families had Children’s Officers. Hospital social work was done by Hospital Almoners. In 1974, all these people were moved into these generic departments, and all became known as “social workers”.

The idea was that all social workers would have generic caseloads. This was an admirable aim.

Imagine a hypothetical family. Sid and Nancy are in their 30’s. They both met while inpatients in a psychiatric hospital. They have two children, Nora, aged 3, and Dora, aged 8. Dora has severe learning difficulties. Also living in the family home is Nancy’s elderly mother, Edna, who suffers from severe arthritis and the early signs of dementia.

Prior to the Seebohm changes, 3 or 4 social care workers could be involved with the family. But when I started as a social worker, one person would work with them all.

I liked this idea back then. I was all for the ideal of a social worker working across all the different client groups (people involved with social services were known as “clients”). But in practice it was more difficult. For a start, you had to have a working knowledge of all the relevant legislation, ranging from the National Assistance Act 1948, through to the Chronically Sick and Disabled Persons Act 1970, the Children and Young Persons Act 1969, the Children act 1975, and the Mental Health Act 1959.

It was actually impossible to be equally competent in working with children and families, juvenile offenders, older people, and people with physical disability, learning difficulties and mental illness. In practice, social workers in the team tended to specialise in areas of particular interest. This meant that for over 10 years I had a mixed caseload consisting of child protection work, young offenders, children in care, and mental health.

Over time, I became increasingly interested in mental health and the Mental Health Act 1983, when it replaced the 1959 Act in 1984 (26^th September 1984 to be exact). And when my local authority decided to divide social workers into specialist teams in the late 1980’s, I opted to join the mental health social work team.

This coincided with the creation of new fangled multidisciplinary community mental health teams (CMHT’s), where a team consisting of a consultant psychiatrist, a clinical psychologist, an occupational therapist, community psychiatric nurses and mental health social workers all worked together out of a single office base in the community.

I joined such a team, and worked happily in this multidisciplinary way until our local Mental Health Trust abolished locality based teams in 2013. Did this have anything to do with my decision to retire? I couldn’t possibly comment.

There have been enormous changes over the time I have worked as a mental health social worker. Thatcher’s Government introduced the purchaser/provider split in social care provision in the early 1990’s, the practical result of which was to make many social workers little more than contractors for external, private services.

The ideal of mental health service provision based in a single local community centre rather than in mental hospitals survived for many years. It seemed like an efficient and patient/service user centred approach. Our local psychiatric wards generally ran with something like 80% or less occupancy. Our enthusiastic integrated team kept people out of hospital.

But innovations in this model, while on the face of it appearing to be all for the good, in practice had a different effect. These were the Crisis Resolution and Home Treatment Teams, the Early Intervention Teams, and the Assertive Outreach Teams. There were unintended consequences to the creation of such teams. One was that professionals with the greatest expertise tended to join these bright and shiny teams, leaving the CMHT’s with fewer and often less experienced staff.

In our local area, the strong and experienced inpatient nurse team was decimated, as their most experienced staff joined the CRHTT. This had a significant detrimental effect on the ability of ward staff to effectively treat and discharge inpatients.

When new teams set up in Primary Care under the Improving Access to Psychological Therapies initiative were created, our CMHT lost almost half of its most experienced staff to the new service. But IAPT somehow did not have the desired effect of reducing the bombardment rate of referrals to the CMHT.

The other problem with all these new teams was that each had their own gatekeeping requirements. It was often very difficult to get these teams to accept patients from the CMHT’s. Consequently, they had protected and limited caseloads, while the CMHT’s continued to have to take everything thrown at them.

However, throughout this time, it did at least mean that more money was being spent on mental health. Until the radical redesign of the NHS in 2013 and the creation of the Community Care Groups.

Mental health services are now suffering the effects of concealed and not so concealed cuts to funding, both in the NHS in general and in mental health in particular. I still feel uncomfortably clammy when considering the concepts of “clustering” and “payment by results”: harbingers of privatisation, the final dismantling of a joined up mental health service. And of course the savage cuts in benefits for the poor and disabled are having a drastic effect on mental health service users, creating even more demand for a shrinking service.

So I have now decided to retire. But…

It does not mean that I will be spending all my time digging the garden, or reading the Guardian and growing ear hair.

It certainly doesn’t mean I will no longer be an AMHP, masked or not. (By the way, since my identity is no longer very much of a secret, do you think I should now rename myself The Naked AMHP?)

In fact, although I will cease to be a care coordinator, and will no longer have to wrestle with personal budgets and direct payments, I will continue to work as a duty AMHP for a couple of days a week, a role I continue to find worthwhile.

And it doesn’t mean that I’ll stop writing The Masked AMHP blog, or stop running the Masked AMHP Facebook Group (which now has over 1200 members!) or close down The Masked AMHP Twitter account.

But it will free me up to develop other interests. I am an elected member of the steering committee of the Mental Health Faculty of The School of Social Work. I will have more time to attend committee meetings and to work on initiatives designed to protect and enhance the social work and the mental health social work role.

Some will have seen me at AMHP and social work conferences around the country in the last year or so. I will have more time to provide training sessions on a freelance basis. So, if you would like the Masked AMHP to enhance your AMHP or other mental health conference with a personal appearance and presentations on a wide range of topics relating to mental health law and practice – from a practitioner’s perspective – then please contact me via my email or Twitter account.

And maybe, just maybe, if there’s any interest, I might also have time to write a book or two.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Tribunal stated that:

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

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

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

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

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

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

Brady did not, therefore return to prison.

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