Stalemate: Dilemmas When Working Out-of-hours and the Difficulty with Teenage Girls

Helen Flanagan in Coronation Street

Throughout the 1980’s and 1990’s, as well as doing my day job, I also worked one or two shifts a week on the out-of-hours standby duty team. This team, consisting mainly of fulltime social workers, dealt exclusively with emergencies and crises that arose outside normal working hours. We covered nights, weekends, and Bank Holidays.

 

Out of hours, two social workers covered the entire county. It was a large geographical area, and although I lived fairly centrally within the county, it could still entail a journey of 40 or 50 miles to reach the far ends.

 

We dealt with all the service user groups: children and families, young offenders, older people and people with physical disabilities, as well as people with mental health problems. We dealt with any sort of crisis, including child protection investigations and emergency protection orders, assessments under the Mental Health Act, and obtaining night sitters or emergency residential care for elderly people.

 

Here then, are two true tales from The Masked AMHP’s archives.

 

For some reason, teenage girls often seemed to present the most intractable problems...

 

Angela

 

One evening I received a call from a woman, reporting that her daughter had brought Angela, a 14 year old friend, home with her. Angela was saying that she hated living at home, and that she would not go home tonight. The friend’s mother seemed a reasonable person. After a discussion, it was agreed that Angela would stay the night with them and I would then report the matter to the local social services department in the morning. This seemed to me to be a good temporary solution to the problem.

 

I rang Angela’s parents and told them what had happened, and what was planned. They did not like this.

 

“She’s our daughter, and she belongs with us. We’re not giving permission for her to stay with her friend,” the father insisted.

 

I suggested that if he felt that way, he could go to the friend’s house, which was several miles away, and collect her. However, he had no transport.

 

I talked to the friend’s mother, who did not think she should go home, was not prepared to take Angela home herself.

 

I had a dilemma. Her parents were insisting she went home. There was no legal authority for Angela to stay with her friend overnight. Angela was unable to give me any evidence that she had been abused in any way by her parents, so I could not apply for an emergency protection order. A teenage girl not wanting to go home was not exactly a matter for the police.

 

I reached the conclusion that the only thing I could do was for me to collect her and take her home, despite the fact that I would have a drive of over 40 miles to get to the friend’s house.

 

When I got there, Angela was understandably not happy about this arrangement.

 

“I’m not going home. I hate them. They hate me. I’m not going home.”

 

It took me some time to persuade her that, much as I might sympathise with her situation, I had no powers to endorse her staying with her friend. I told her that she would have to go home tonight, and discuss her feelings with a social worker in her locality the next day if she was that unhappy about being at home.

 

We drove back to the estate in the town where she lived. The estate was a warren. It was not easy to find her address. I asked her to give me directions, but she refused to cooperate.

 

Without her help, and in spite of Angela huffing and tossing her hair back in the passenger seat, I eventually found her road. Her house was the last in a line of terrace houses overlooking a grassed area. It was not therefore possible to park directly outside the house.

 

I got out of the car and opened the passenger door.

 

“Here we are Angela,” I said to her.

 

She did not move.

 

“I’ve got to take you home,” I said, my heart already sinking.

 

“I’ve already told you. I’m not going home.”

 

“You have to, I’m afraid.”

 

“No I don’t. What are you going to do about it?” she asked defiantly.

 

What was I going to do about it? I couldn’t physically manhandle her out of the car, and certainly couldn’t restrain her and drag her, kicking and screaming, past the other houses until I got to hers.

 

This was in the days before mobile phones, so it was not an option to ring her parents to say I was nearby and get them to help.

 

Stalemate.

 

It was clear I could not persuade her to get out of the car voluntarily. I also knew that if I left the car to go to her house, she would take the opportunity to run away.

 

In the end, knowing what would happen, but being powerless to prevent it, I went to her parents’ house. As I left the car, I heard the passenger door open and close. When I turned round, Angela had already disappeared into the night.

 

I informed her parents, and notified the police. I found a phone box and let Angela’s friend’s mother know what had happened. I suggested that if Angela happened to turn up at her house that night, that she leave it till the morning before letting anyone know.

 

Anthea

 

Fairly late one evening, I received a call from a rural police station many miles from where I lived. Anthea, who was also aged 14, had voluntarily come into the police station. She was in the care of the local authority, and had recently been placed with foster carers. She was refusing to go back to them.

 

It seemed to me that the most straightforward solution, taking into account the late hour, would be for her to be placed overnight in one of our children’s homes. The police could transport her there. I would not have to go out.

 

In order to facilitate this, I had to ring the local children and families team manager.

 

“Anthea’s trying it on,” he said. “There’s no good reason why she should not go back to the foster carers. I’m not agreeing to a placement in a children’s home.”

 

I let the police know this. They were not happy.

 

“She says she hates the foster carers. She won’t go back there,” the sergeant said.

 

“But she’s got to. There’s no reason for her not to go to the foster carers. We’re playing into her hands if we give in to her demands.”

 

“Well, I’m not deploying any of my officers to take her there,” the sergeant told me.

 

So I would have to go to this police station, pick her up and take her to the foster carers myself.

 

When I arrived, Anthea was not at all pleased to see me.

 

“I’m not going back to those bastards,” she said.

 

“There’s no other option,” I said.

 

“I’m telling you, there’s no way I’m going back there.”

 

Had it been my decision, I would have concurred, and placed her in a children’s home overnight, at least until her social worker could sort out a longer term solution. But my hands were tied, and I was having to execute an action that was ordained by others.

 

She refused point blank to get in my car, so the police reluctantly agreed to transport her in police transport as long as I accompanied them.

 

I followed the police car to the foster carers’ home, which was on the edge of a remote village. By now it was after midnight.

 

Anthea refused to get out of the police car. I asked the police to help me get her back to the foster home, but they saw me as the wrongdoer in all this, and refused to cooperate.

 

As I was discussing this with the officers,  Anthea did get out of the police car, but instead to going into the house, she instead headed off in the opposite direction, down the pitch black lane.

 

“Can you stop her?” I asked the police again.

 

“It’s your problem,” I was told.

 

Stalemate.

 

She was the responsibility of the local authority. I couldn’t allow her go wandering off into the night, miles away from anywhere. And even if I could physically drag her into the foster home, I could not ensure, in the mood she was in, that she would not go AWOL as soon as I had left.

 

“Wait,” I called to Anthea. “Let me try and sort something out.”

 

She reluctantly returned and sat in the police car, while I phoned the team manager again and explained what was going on. I really didn’t think there was an alternative. We would have to use a children’s home.

 

He reluctantly agreed, and I arranged a placement.

 

She was quite happy with this arrangement. She was prepared to go to this home. But only if the police took her.

 

They were equally happy to do this.

 

“You’d have saved a lot of time and aggro if you’d done that in the first place,” one of the officers said as they drove off.

 

I could only agree.

TW v Enfield: The Meaning of “Reasonably Practicable”

This case has been meandering through the courts since 2007. It looked as if it had finally been settled in May 2013, but leave to appeal was allowed, and the Appeal Court finally gave its judgment in March 2014. It’s an important case for AMHP’s as it gives an interpretation of the term “reasonably practicable” when consulting with nearest relatives in connection with applications under Sec.3.

To recap: Judge Bean heard this case in 2013 (TW v London Borough of Enfield and Another [2013] EWHC 1180 (QB)).

The bare bones of the case were as follows.

On 29th June 2007 an ASW, 2 doctors and police executed a Sec.135 warrant and entered the property of TW. TW was then detained under Sec.3 MHA for treatment from her home and admitted to hospital. She remained subject to Sec.3 until she was discharged by a Tribunal on 14th September 2007.

TW’s case was that, as her Nearest Relative was not consulted in accordance with the requirements of Sec.11(4), then the application was illegal and that the LA and the ASW had “acted in bad faith or at least with a lack of reasonable care.” She therefore wished to sue the MH Trust, the Local Authority and the ASW.

In fact, there is a considerable amount of information in the Judgment relating to the psychiatric history and the behaviour of TW. She had a formal diagnosis of OCD, and had had inpatient treatment in a psychiatric hospital in the past.

There were letters written by TW and other statements that she had made in regarding her relationship with her parents. Her father was the Nearest Relative. One of the letters to her psychiatrist stated: “"my Mum and Dad called the police and my Dad threatened to hit me and my Mum ran next door to a neighbour's house. I was outside when the police came. My Mum and Dad tried to section me through the police who tried to smash the car window and get me out but I was able to stay in the car and drive away fast. … There are to be no meetings with my family." She subsequently left a message stating that no information should be given to her parents.

In another letter she stated: “My Dad threatened to smash my face in once again on the phone on my birthday and my Mum was making it worse”. This letter went on to say that “I would like my Mum to be taken off as my next of kin and my Dad off as the nearest relative." She suggested that she would like another person to act as her NR.

The Sec.135 and subsequent Sec.3 were triggered by a number of incidents prior to 29th June 2007. It was reported that TW “had hit a neighbour on 17th June 2007. She had been taking the rubbish out of the neighbour's dustbins into her flat. She had been unwilling to engage with support services or to allow them access to her flat. The flat was filled with rubbish and posed a risk to her and others because of the fire hazard.”

The Judgment records both the patient’s account of her assessment and detention, and the ASW’s account. They differ markedly from each other.

TW stated: "29th June 2007 was the day I was sectioned. More than nine people, including three police officers, doctors [and] officers from Environmental Health to section me. I was upstairs about to wash my hair and therefore when they knocked on the door I did not come to the door straightaway. They smashed my door in and humiliated me in front of all my neighbours. I was extremely frightened and felt totally helpless. As I did not recognise anyone in particular I shouted out aloud to them to call my parents. They must have heard me but simply ignored my requests."

It was reported that, according to the ASW, TW “spoke to the assessing team through her window but continued to refuse to open the door. The police then had no alternative but to execute the warrant to enter the property. The Applicant came downstairs shouting that she did not want anyone to come into her property, but then allowed Dr Duignan and Ms Muschett [the ASW] in.”

In considering whether or not to consult the Nearest Relative, the ASW clearly considered the case law of R(E) v Bristol City Council (2005). In this particular case, “the patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to become involved.” In that case, the Judge concluded that “"practicable" and "reasonably practicable" can be interpreted to include taking account of the Applicant's wishes and/or her health and well-being."

This Judgment is frequently considered by AMHP’s when deciding whether or not to consult with the NR, and evidence that an AMHP has thought about this is often sought in AMHP’s MHA Assessment Reports.

It appears that TW wanted things both ways. She wanted mental health services to respect her wishes that they not give any information to her parents, and gave testimony that the relationship with her parents had irretrievably broken down. At the same time, however, she wanted to sue the same authorities for not consulting with them.

The Judge stated that TW “had repeatedly, in dictated letters, instructed Enfield's staff not to involve her family. She had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality. These were not deluded ravings, and Ms Muschett and her colleagues were right to treat them seriously.”

He concluded that: “The evidence of Enfield's witnesses is that they considered that involving TW's father on 29 June 2007 would be likely to cause her distress and emotional upset... The test on this issue is a subjective one, and a matter of professional judgment.”

The Judge went on to say “it is clear that it was "not reasonably practicable", within the meaning of Sec.11(4) of the Mental Health Act 1983, for Enfield to have consulted TW's father before applying for her admission for treatment on 29 June 2007; and that the claim against Enfield is therefore bound to fail.”

At this point it looked as if the decision of the ASW had been upheld. However, the recent Court of Appeal Judgment ([2014] EWCA Civ 362; [2014] WLR (D) 145) has taken a different view.

Lord Justice Aikens considered the implications of the Human rights Act when applied to the MHA. He stated: “The obligation to consult the "nearest relative" may result in a conflict between two of the patient's Convention rights, because section 11(4) in general and the words "not reasonably practicable" have to be construed in a way that is compatible not only with the patient's Article 5 rights but also in a way that is compatible with the patient's Article 8 right of respect for her private life and her "correspondence". A mental patient's right to maintain the confidentiality of her medical history and file and all the circumstances of her medical case must be a part of her Article 8 right to a private life.”

The Judge concluded: “when an ASW is considering whether it is "reasonably practicable" to consult the "nearest relative" before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the ASW an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life.”

The Judge continued: “a patient's assertion, even if founded on fact and even if reasonable, that consultation would lead to an infringement of her Article 8(1) rights cannot, as a matter of law, lead automatically to the conclusion that it is "not reasonably practicable" to consult the "nearest relative". Nor is an ASW's conclusion that such consultation would lead to an infringement of the patient's Article 8(1) rights enough, in law, to lead to the decision that there should be no such consultation under section 114). Equally, as a matter of construction of section 11(4), it must be wrong in law for the ASW to conclude that because consultation with TW's "nearest relative" would require disclosure of details of TW's case and that would therefore constitute an interference with TW's Article 8(1) rights, that must necessarily lead to the conclusion that it was "not reasonably practicable" to consult the "nearest relative".”

The Judge’s final conclusion was: “In my view, on what is known of the reason for the ASW's decision not to consult, there is obviously an arguable case that the decision was not made on the right basis. Whether the decision not to consult was, in all the circumstances, correct, must ultimately depend upon a careful analysis of the facts. In my view that is not something that can be determined summarily in this case.”

So what does this mean?

It seems to me that the Judge, while allowing the appeal, and stating that there were errors in law in the previous judgment, in failing to properly consider the implications of the Human Rights Act, does not actually reach a definitive conclusion as to whether or not the ASW was wrong to conclude that consultation with the NR was “not reasonably practicable” in this particular case.

 

It appears that this matter will still need to be considered in a future application by TW to bring a claim for unlawful detention and psychiatric injury under Sec.139 MHA.

As a reminder, Sec.139 MHA provides protection for professionals taking actions in pursuance of the MHA. Sec.139(2) states that civil proceedings cannot be taken without leave of the High Court. This hearing gave such leave. However, Sec.139(1) prevents action being taken unless it can be shown that, in this case, the ASW acted “in bad faith or without reasonable care.” A future court will still have to decide this.

I’m not sure whether this ruling clarifies circumstances in which it is “impracticable to consult” or simply makes the AMHP’s job even more complex and onerous. After all, AMHP’s are not in the position of a lawyer, who is able to spend days or weeks reading the relevant case law before making a decision. AMHP’s are frequently having to make such decisions under situations of extreme stress and where delay may lead to endangering the safety or lives of not just the patient, but of other professionals, relatives and members of the public.

 

What this case does reinforce is the need for an AMHP to think long and carefully, and to weigh up not just the legal requirements of the MHA, but also the potential conflicts of consultation with the Human Right Act. And it’s very important for any AMHP to record in detail their decisions where they conclude that it has been “impracticable to consult”.

Restraint, Restriction and the MHA/MCA Interface

Over the last few months I’ve been looking at several pieces of case law which relate to circumstances in which the Mental Health Act and the Mental Capacity Act interface. These include the recent Court of Protection case relating to ML, a man with autism, and the AM v SLAM case, which attempted to define when and in what circumstances the MHA or the MCA should be used. There is also, of course, the Cheshire West case.

All these cases have one thing in common: they relate to the restraint and restriction of people with learning difficulties. ML had been detained under the MHA in a hospital in which he was subjected to extreme levels of restraint and seclusion, and the local NHS services were seeking to enforce this further, while the three subjects of the Cheshire West Supreme Court decision grappled with the concept of physical liberty as defined by Article 5 of the Human Rights Act.

Cheshire West, or to give it is full title, P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council a and Another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent), [2014] UKSC 19, Supreme Court (Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge), 19th March 2014, finally concluded a convoluted court process that had taken several years.

Both P, and P & Q, were subjected to high levels of control in their daily lives. P “was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance”. Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty”.

P & Q, (also known as MIG & MEG), are sisters. MIG lived with a foster carer, while MEG was in a NHS facility. Earlier court hearings to consider these cases had concluded, somewhat contentiously, that the situations of such severely mentally disabled people were not to be compared to normal or absolute concepts of freedom and restriction, but should instead be compared with others with similar problems.

An earlier Judge had stated: “What was a deprivation of liberty for some people might not be a deprivation for others”. He said: “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P”.

Lady Hale, in the Supreme Court, said: “The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled.”

She makes the elegant statement; “it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs… may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.”

She concluded that: “it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else.”

This ruling has already led to a vast increase in the number of applications for declarations under the Deprivation of Liberty Safeguards, and has placed considerable strain on local authorities’ Best Interest Assessor teams.

Then there is the recent Department of Health guidance on the use of restrictive interventions in health and care services (Positive and Proactive Care: reducing the need for restrictive interventions), which was published in April.

The guidance specifies certain situations in which the Mental Health Act, rather than the Mental Capacity Act, should be used. It states early on that “Staff must not use seclusion other than for people detained under the Mental Health Act 1983.”

It continues: “The provisions of the Mental Health Act 1983 will only very rarely authorise the application of restrictive interventions in community-based health and social care services and non-mental health hospital settings. The MCA  will, if certain conditions are met, provide legal protection for acts performed in the care or treatment of people who lack the capacity to consent to the care or treatment The MCA will be particularly relevant when staff in general hospitals are considering the use of restrictive interventions to protect the person. If the MHA and/or MCA do not apply, the use of force is only justified legally for the purposes of self-defence, the defence of others, prevention of crime, lawful arrest or to protect property and the same statutory and common law provisions apply within health and care services as elsewhere.”

It states unequivocally that: “Only people detained under the MHA should be considered for seclusion. If an emergency situation arises involving an informal patient and, as a last resort, seclusion is necessary to protect others from risk of injury or harm, then it should be used for the shortest possible period to manage the emergency situation and an assessment for detention under the MHA should be undertaken immediately.”

Para 89 says: “The seclusion of a person under the MHA in a community setting (for whom neither a Deprivation of Liberty authorisation nor a Court of Protection order under the MCA to authorise the deprivation of their liberty is in place) is also likely to amount to an unlawful deprivation of liberty. If the circumstances of a person’s care resemble seclusion, it is seclusion whatever it is called locally. An assessment should be undertaken promptly to determine whether the person should be detained under the MHA immediately.”

The guidance concludes: “Long-term segregation must never take place outside of hospital settings and should never be used with people who are not detained under the MHA” and also states: “The MHA authorises deprivation of liberty if the person meets the criteria for being detained for the purpose of assessment and/or treatment for mental disorder, even in the absence of their consent.”

I think that this guidance clarifies issues which have been of concern to Approved Mental Health Professionals, as well as proponents of human rights, for some time.

I have certainly felt very uncomfortable about the concept of comparative deprivation of liberty, which appeared to me to be a circular argument condoning and even encouraging the restraint and restriction of the liberty of people with learning difficulties purely on the justification that because they had learning difficulties they must need it.

The recent Supreme Court judgment, which came out in March 2014, fortuitously dovetails quite neatly with the DH guidance that came out in April.

It is to be hoped that all professionals , both in the public and private sector, and in social and nursing care and hospital settings, will take this guidance on board and be very careful not to restrain or restrict individuals’ liberty without ensuring that the appropriate legislation and associated legal safeguards have been used.

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