Worcester v Essex: Not a Cricket Match, But Another Dispute about Sec.117 Aftercare

Oh look, here’s yet another case of local authorities taking each other to court over who is responsible for funding Sec.117 aftercare. This is very recent, published on 29.10.14.

Why are local authorities prepared to spend thousands of pounds on legal fees in such cases? The simple answer is that the cost of aftercare for these patients can be extremely expensive.

Take this case, [2014]EWHC 3557 (Admin), as an example.

The dispute between Worcestershire and Essex centred around a young woman known as VC. She had an acquired brain injury at the age of 5, and this resulted in serious behavioural disturbance. As a result, she was accommodated in a range of establishments provided by Worcester. These included living for 2 years in a small home for young people up to 18. Although the home was intended to have four residents, VC was so disruptive that all others were moved out and she remained with up to 7 staff looking after her alone.

Her care was obviously costing Worcester a great deal of money.

She was then moved to Oaktree Manor, a hospital in Essex for people with learning difficulties. Although she was initially admitted as an informal patient, she was subsequently detained under Sec.2 after her behaviour deteriorated, and then under Sec.3. She remained detained under Sec.3 for nearly a year.

Worcester then decided that her residence of a few days as an informal patient at Oaktree priory to her detention under the MHA meant that Essex therefore had responsibility for Sec.117 aftercare.

Essex were not happy about this. They tried to argue that, although she had been deemed to have capacity to accept informal admission, she did not in fact have capacity, and therefore the placement was illegal. And Essex would not therefore be responsible for Sec.117 aftercare.

However, the Judge concluded:

“The context and purpose of s117 point in my judgment to an interpretation that is as straightforward as possible, the residence of a person being prima facie the place in which he was in fact living eating and sleeping immediately prior to his detention.”

This was regardless of issues of capacity, and hung on the fact that at the time VC moved to the hospital there was no other place which could be regarded as her normal residence, as she could not return to any of her previous placements.

In this case, Worcester saved itself a great deal of ongoing expenses.

Those who have read my recent post, on the changes to Sec.117 imposed by the Care Act 2014, will already be wondering if this would change the outcome of this case.

The Judge in this case has anticipated this. He observes:

“The matters in issue in this case will not arise in future, because s117 has been amended by the Care Act 2014 to provide for a regime of long term responsibility of an authority, rather than one which may shift as a patient moves around the country.”

But he also observes that previous statute does not permit this interpretation in this case.

Will the Sec.117 changes to the concept of “ordinary residence” prevent these sorts of disputes in future? When so much expense is at stake, I wouldn’t count on it.

Anorexia: To Treat or Let Die? The Case of Ms.X

This very recent Judgment on a rather unusual, and I think, contentious case was published on 8^th October 2014.

Ms.X has a 14 year history of severe anorexia nervosa, complicated by also having alcohol dependence syndrome which had caused chronic and irreversible cirrhosis of the liver. She has had many spells as an inpatient detained under the MHA when she has had forced refeeding. She currently has a BMI of less than 13.

The Judge states:

“The purpose of re-feeding an anorexic patient is to keep that patient alive whilst psychotherapy, talking therapies, can be facilitated in an endeavour to investigate and treat the underlying anorexia; this has been shown over many years not to work for Ms X.  So it is that the medical professionals firmly believe that not only would in-patient treatment once again involve painful, invasive and wholly unwelcome procedures for Ms X, but it would be pointless in terms of achieving long-term treatment, and would be likely in their view to intensify her consumption of alcohol on discharge from hospital, thereby actually increasing her mortality, and accelerating her demise.  As it is, the doctors opine that her life expectancy is measured in months.”

As a consequence of this poor prognosis, Ms.X’s mental health trust went to the Court of Protection to obtain the following declarations:

“i) It is not in Ms X's best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life.

ii) It is in her best interests, and shall be lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply.”

The medical evidence indicates that Ms.X suffered extensive childhood trauma. Both her eating disorder, and her dependence on alcohol, probably arose as coping strategies to deal with these early traumatic life events. The evidence submitted to the Court states that she is extremely resistant to the idea of any psychological talking therapy, and that as soon as she is not detained in hospital, her drinking and eating behaviours recommence.

All the medical evidence obtained by the Judge came to the same conclusion: that is was no longer in the patient’s best interests to be forced to undertake medical treatment, even if that treatment was intended to prolong life.

The Judge referred to a 2013 Supreme court case, Aintree University Hospital NHS FoundationTrust v James, and quoted Baroness Hale as saying: "The starting point is a strong presumption that it is in a person's best interests to stay alive … this is not absolute. There are cases where it will not be in a patient's best interests to receive life-sustaining treatment”.

Applying that principle, the Judge concluded in this case: “I have reached the clear conclusion that I should not compel treatment for Ms X's anorexia.”

What are we to make of this?

I certainly have severe concerns about the implications of this judgment, not just for Ms.X, but for others with chronic and difficult to treat mental disorders.

 

The case referred to in this judgment concerned a man, Mr James. He had developed an infection which was complicated by chronic pulmonary disease, an acute kidney injury and persistent low blood pressure. He was placed on a ventilator, and over a period of months had a stroke and recurrent infections.

Mr. James was essentially terminally ill. He had serious and untreatable medical conditions, and ongoing treatment would only serve to prolong life at the expense of quality of life.

 

Ms.X, on the other hand, although suffering from serious physical health problems, had a mental disorder, and it was this mental disorder that was the driving force behind her poor physical health.

 

A couple of years ago the Court of Protection considered another case involving a woman with anorexia nervosa. This was the case of E.

E had a Body Mass Index of less than 12. She was in a palliative care setting and was refusing to eat. She had a very long history of anorexia, and had had been subject to many treatment regimes over that time, with little or no success. She was at the point of death. The essential decision the Judge had to make was whether or not further life saving treatment against her will was in her best interests.

It was presented to the Judge that, although past treatment had failed, there was a prospect that long term treatment for her eating disorder and other underlying conditions had some prospect of success. The Judge concluded in this case:

“The competing factors are, in my judgment, almost exactly in equilibrium, but having considered them as carefully as I am able, I find that the balance tips slowly but unmistakably in the direction of life-preserving treatment. In the end, the presumption in favour of the preservation of life is not displaced.

I declare that E lacks capacity to make decisions about life-sustaining treatment, and that it is lawful and in her best interests for her to be fed, forcibly if necessary. I find that the resulting interference with E’s rights under Articles 8 and 3 is proportionate and necessary in order to protect her right to life under Article 2.”

Both these women had anorexia nervosa with very low body weight. While Ms X also had alcohol dependency problems, I don’t think these cases are sufficiently different in their nature to warrant the different conclusions reached: Ms.X was essentially to be allowed to die from the medical consequences of her mental disorder, while E would be forcibly fed if necessary in order to protect her life.

I have often written on this blog about the use of the MHA to save life, in cases of anorexia nervosa and with other mental disorders. Whether a patient lacks capacity or not, I still incline to the view that, at least in the case of people with mental disorder, legal powers should be used to save and prolong life, not to facilitate the ending of life.

The Care Act 2014: Implications for Sec.117 After-care

The Care Act 2014 is already partly enacted. Receiving Royal Assent on 14^th May 2014, some of the provisions came into force from 1^st October, while most of the rest comes into force on 1^st January 2015.

Some sections of the Care Act actually amend the Mental Health Act 1983. These changes principally affect Sec.117 after-care arrangements. They seem to be explicitly designed to resolve the disputes that local authorities often have over who is responsible for providing Sec.117 aftercare, in particular by bringing the definition of “ordinary residence” into line with other legislation, such as the National Assistance Act.

Sec.39(1) gives a clear definition of “ordinary residence”. Essentially, this applies to adults requiring residential care. “Ordinary residence” is either “in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”, or for adults with no fixed address, “in the area in which the adult was present at that time.”

Sec.39(4) then explicitly applies this to Sec.117 after-care, stating:

“An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.”

Sec.75 of the Care Act is all about Sec.117 after-care. Besides changing some of the wording and inserting some new clauses into Sec.117 of the Mental Health Act, Sec. 75(6) of the Care Act also inserts an entire new section, Sec.117A.

Sec.117A is concerned with “preference for particular accommodation”. Subject to regulations to be issued by the Secretary of State, it will place a duty on the local authority not only to take into account a person’s preferences, but “must provide or arrange for the provision of the person’s preferred accommodation” as long as the preferred accommodation meets the identified aftercare needs. However, it is likely to allow the local authority to charge for the difference between the actual cost of this preferred accommodation and “the usual cost of providing or arranging for the provision of accommodation of that kind”.

This section of the Care Act also clarifies the definition of after-care under Sec.117. It inserts a subsection (6) into Sec.117 which states that after-care should have “both of the following purposes”:

“(a) meeting a need arising from or related to the person’s mental disorder; and

(b) reducing the risk of a deterioration of the person’s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).”

 Finally, Sec.79 of the Care Act rather ominously allows for the delegation of local authority functions, stating: “A local authority may authorise a person to exercise on its behalf a function it has under…section 117 of the Mental Health Act 1983 (after-care services).”

I am not at all sure what this means. Does it simply permit staff not employed by the local authority, but who may be nurses or occupational therapists employed by local mental health trusts, to discharge LA functions relating to the provision and supervision of aftercare? Or does it permit the full scale privatisation of these functions?

Is it Useful to Differentiate Between Different Types of Service User?

Charlotte Walker (@BipolarBlogger) and I appear to have had a minor disagreement.

Charlotte writes the excellent and highly regarded Purple Persuasion blog, about her experiences of living with bipolar affective disorder. A few days ago she tweeted: “Working on a post about what identity as "a service user" means to me and how it can set me apart from non-SUs. What are your thoughts?”

I thought about it. It made me think about the broad concept of “service user” from a professional “service provider” perspective, but it also made me think about it from a personal perspective.

So I replied: “Mental or physical health -- we're all service users in one way or another. Just made appt to see practice nurse -- I'm an SU.”

Charlotte responded: “If you can't see how being a MH SU is fundamentally different, then you really need to read my article!”

I’ve read her post. It is an articulate analysis of her largely negative experiences of being a mental health service user. She writes forcefully about the “thousand little indignities” of being a service user, which include the power differentials between professionals and service users, the side effects of medication, the powerlessness to control a severe mental illness, the undoubted stigma which still accompanies a mental health diagnosis, and insensitive or incompetent professionals.

I have no argument with what she says in her post; as a mental health professional I am very aware of the indignities she writes about, and although I have always striven to minimise the negatives of mental illness in the people I have worked with over the years, I am sure that there have been times when I may have contributed to them.

The post concludes that she reserves the right “not to be judged or advised by those who have never seen the trenches”. Having only experienced “the thousand little indignities” of mental illness from the outside, as a professional, I am certainly not going to try to judge or advise.

However, I think that Charlotte misunderstood the point I was making in my tweet in response to her comments relating to how the experience of being a service user can set someone apart from those who are not service users.

As it is not possible to argue my case in the 140 characters permitted by Twitter, I am going to try to respond here.

The point I was trying to make in my 140 characters relates to the overall definition of “service user”, and the varying experiences of being a “service user”. Charlotte herself agrees that “not all service users have the same experience”, although she is referring only to mental health service users.

I would certainly contend that someone self referring to a Wellbeing Service for psychological therapy for a mild mental health problem is likely to have a different perspective, and experience, from someone who has been forcibly detained under the Mental Health Act and has been given powerful psychotropic medication.

There are inevitably going to be as many experiences of being a user of services as there are service users. But while I agree that some of the “indignities” of being a mental health service user are unique to mental health, there are also many which are shared by the users of social services and physical health services. Equally, their experiences can be easily as negative (as well as positive) as those of mental health service users.

Several years ago I had a routine eye test, and the optician advised me to have a check up with my GP as he had detected a slight bleed in my eye, which may or may not indicate a more serious physical health condition.

Not unduly concerned, I saw my GP the following day. She took my blood pressure, and found it to be frighteningly high (it certainly terrified me). She tested my blood glucose levels, arranged for the nurse to give me an ECG, and then bluntly and, I thought, rather triumphantly, gave me the diagnosis that I had hypertension and type II diabetes.

I went into that consultation believing myself to be a reasonably healthy individual who never needed to take medication, and left with the knowledge that I had two serious, chronic health conditions which sooner or later could seriously affect my ability to lead a normal life, and would be likely, in time, to kill me.

I had something of an adjustment reaction. I went through a period of mild panic. Apart from being given some leaflets, which I found more alarming than reassuring, and a prescription for a range of medication, I was left pretty much to it.

I was suddenly on the other side of the fence, being a service user rather than a service giver. I was suddenly at the mercy of health professionals to whom I was just another case of a middle aged man with middle aged ailments. I felt disempowered. I didn’t like it very much.

Now, I am not trying to compete in any way with Charlotte, and I am not trying to compare my experience with hers. As a service user, I am probably on the same level as a self referrer to the Wellbeing Service.

But there is a spectrum of experience, and those with serious physical health issues can easily have as difficult a time as those with serious mental illness.

If you are suddenly diagnosed with cancer, it is easy for doctors and other health professionals to “take over” your body, dictating what invasive, dangerous and hazardous treatments you should have. They may be insensitive to your emotional needs, fail to explain things adequately to you, and treat you as if your entire identity is suddenly subsumed into that of the disease you have.

They may stop seeing you as a human being at all, and treat you as nothing more than an interesting “case”. You may be admitted to hospital with little real choice in the matter, and then receive terrifying treatments of doubtful effectiveness and with side effects that may seem worse than the condition itself. And on top of it all, you may develop a severe depressive illness which is not acknowledged or treated as it’s “to be expected”.

A parent accused of physically abusing their child may suddenly find themselves having no control over their family or their own life. They may be subjected to child protection case conferences, attending meetings in which large numbers of intimidating professionals are making decisions which could have lifelong consequences for themselves and their children. They may be treated as a criminal, and become marginalised or even excluded from decisions regarding their children.

So I suppose my argument is really that it is not necessarily relevant to compare different types of service users, whether mental health, physical health or social care, and to assume that one type is going to have a better, or worse, experience.

But we will all, in one way or another, and at some time or another, become service users. That’s why it’s important for all professionals to understand the full implications of that, and at all times to think “how would I like it if this happened to me?”

The Masked AMHP does Stand Up!

The Masked AMHP is doing stand up! He’s got a special guest spot on the amazing @SUFSWs Stand Up for Social Workers tour. I’ll be at the Cambridge gig on Thursday 4^th December 2014! I'm more scared than if I was standing at Luis Suarez's door with a Sec.135 warrant!

STAND UP FOR SOCIAL WORKERS!

Robert James Theatre,

Comberton
Cambridge

Thursday 4^th December 2014

Birmingham, Leeds and Liverpool sold out

Reading looks to be going the same way!

PLUS 5 EXTRA SHOWS IN DECEMBER ADDED

“It’s what the doctor ordered!” Eddie O’Hara – Independent SW/Consultant

“One of the best nights out we’ve had as a team” T. Braithwaite, Team Leader, Wolverhampton

“This was as good as Live at the Apollo” KeepSafe,UK

WOW!!!!!!! I.Gould

GET YOUR ONLINE TICKETS FOR THIS EXCELLENT NIGHT OF FUN – PUTTING THE SOCIAL BACK INTO SOCIAL WORK!!!

ONLINE BOOKING ONLY

Fund Raising Event for the Social Workers’ Benevolent Trust.

FOR BOOKING INFORMATION CLICK Here

A night of Comedy and Music for Social Workers, Colleagues, relatives and friends.

Jim McGrath and Debstar

Debstar is an experienced Aussie Social Worker who combines stand-up comedy with song, loose facts, stereotype and ever-so-slight exaggeration to tackle issues such as structural oppression, office politics and presents her version of "what is the greatest risk to social work today?" She will do this in a less than lady-like way that should bring a much needed smile to your face but absolutely won't compromise her or you Social Care Registration.

"My jaws were hurting from laughing.... brilliant!" "Very funny, clever stuff" "What a great night out- our team is still talking about it"

Jim McGrath is a social worker and trainer. Jim has returned to Stand-Up after a two year break. He has performed his eclectic view on topics such as: Social Work experience, adolescents, racism, men’s health and 25 years of marriage, to audiences throughout the UK and Ireland from Plymouth to Aberdeen, Dublin to Derry and has supported some of Ireland’s best comedians including; Kevin McAleer, Tim McGarry, Colin Murphy and Micky Bartlett.

“A great performance...laugh out loud material” Torquay Gazette

“I don’t know about his stand-up routine but his files were always a joke!!” Every line manger he’s had

Social Workers, those who work with social workers (or live with them) should come along.

Book early to avoid disappointment by clicking on the link below

Booking details for CAMBRIDGE Click Here

For rest of the UK tour dates click HERE

“Detained” and “Liable to be detained”: Is There a Difference?

While people involved with the Mental Health Act often use the term “section” as a verb (“I section you”, “You are sectioned”, “That bastard sectioned me”, etc) what this actually means is that the appropriate paperwork has been completed which authorises the detention of a patient under the MHA.

There is a difference between the terms “detained” and “liable to be detained”. This difference can be quite crucial to an AMHP who is seeking to detain a patient in the community, as he or she needs to have the authority to convince other professionals, in particular the police and ambulance crews, that a person is indeed “detained”.

The Mental Health Act itself does not define either term. However, the Reference Guide states (Para1.36):

“The Act sometimes (but not always) distinguishes between people who are “detained” and those who are “liable to be detained”. This latter term includes people who are actually detained (eg people who are in hospital and would be stopped from leaving if they tried to) and people who could lawfully be detained but who, for some reason, are not.”

Although the current Code of Practice does not elucidate further, the new Draft CoP has a helpful section which gives definitions of many of the terms used in the Act. The Draft Code defines “detained patient” as follows: “a patient who is detained in hospital under the Act, or who is liable to be detained in hospital but who is (for any reason) currently out of hospital.”

So a detained patient is generally a patient who is physically detained under either Sec.2, Sec.3 or Sec.4 of the MHA. But in reality, as soon as an AMHP has completed a written application under any of these sections, the patient is “liable to be detained”, even though they may at that moment still be in their own home.

An AMHP may even be sitting in the AMHP office, having assessed someone at home, and having obtained two medical recommendations (or even just one, for a Sec.4), then fills in and signs the application. At that moment, wherever the patient may be, the patient suddenly becomes “liable for detention”.

This “detention at a distance” does happen from time to time. I recall an incident when, having assessed a person in his home with two doctors, who then gave me their recommendations, I was persuaded to delay completing my application by the relatives, who assured me that they would look after him and make sure he had his medication. I was trying to follow the least restrictive option.

Thirty minutes later, I received a call from his mother to say that he had grabbed his car keys and had gone off recklessly at top speed towards an unknown destination. I duly sat in my office and completed my application, rendering him “liable for detention” – then let the police know that he had absconded and should be returned to hospital.

Once a person is liable for detention, even if they then abscond, they can be considered to be absent without leave, at which point Sec.137 & Sec.138 come into play. Sec.137(1) deems anyone liable to be detained to be "in custody". Sec.138 then gives powers to an AMHP, a police officer, or indeed any other authorised person, for the patient to be "retaken" and transported to the hospital named on the Sec.2, 3 or 4 detention forms.

Finally, reference is made in the Draft Code to the term “liable to be detained” with reference to Sec.135. It states:

“A section 135 warrant provided by a magistrate enables a police officer to enter premises to either: remove a person to a place of safety to make an application under part 2 or other arrangements for their care or treatment; or take or retake into custody a patient who is liable to be detained under the Act”.

In my experience, not enough police officers are familiar with their powers and duties in relation to patients who are “liable to be detained”. Indeed, we recently had a situation when, having obtained a Sec.135(2) warrant to return a detained patient who had refused to come back from S.17 leave, we had an argument with a duty sergeant who refused to believe that a constable had any role to play in executing this particular warrant.

The Case of QR: Capacity and Tenancy Agreements

This very recent judgment was published on 5thAugust 2014. It concerns tenancy agreements, and the issue of a person’s capacity to end, or indeed, to take out a tenancy agreement. It also highlights a situation which is covered by neither the Mental Health Act nor the Mental Capacity Act, but requires referral to the Court of Protection for a decision.

QR is a woman of 62. She has a diagnosis of paranoid schizophrenia. Her first serious episode was in 1995 at the age of 43, and she has had numerous detentions under both Sec.2 & Sec.3 MHA since then. She was discharged from hospital in December 2010, since when she has been subject to a CTO. Until her most recent admission to hospital, she lived in a local authority flat, and still has the tenancy of this property.

One of the conditions of the CTO is to reside in “ABC”, a residential treatment centre run by the local authority. The mental health team now consider that she no longer needs this level of support. However, the Judge records: “She must live in accommodation which provides 24 hour support and monitoring, so that QR will continue to be compliant with her medication and avoid the risk of a possibly fatal relapse.”

Her team now want her to live in a more independent living situation, but consider that there is too great a risk to her health and safety for her to return to her previous flat. However, QR will need to sign a tenancy agreement in order to move into a supported living flat, and must first surrender her existing tenancy.

In the words of the Judge the crux of the case is that “QR objects to the application on the grounds that she has capacity to decide whether to surrender the tenancy of her current flat and to sign a tenancy agreement for supported living accommodation.  She does not wish to surrender the secure tenancy of her council flat which is important to her and she does not wish to move to any of the proposed supported living options which have been proposed”.

The issue the Judge had to decide was whether or not QR has the capacity to decide where she should live, to surrender the tenancy of her flat and to sign a new tenancy agreement.

The issue of capacity is, of course, situation specific. A person may have the capacity to decide whether or not to have a cup of tea, but may lack the capacity to make a decision about where they should live.

In this particular case, the Judge concluded that “I am satisfied that QR is unable to make the decisions at stake in this case as a result of the nature of her mental illness.” He went on to say that “QR is not able to give weight to the issue of central importance in the arrangements which [the mental health team] propose, the reason why she needs to take her medication.”

This particular case has not yet reached a conclusion. Still to be decided is “what further evidence if any is required in order that a best interests decision on the issues before the court can be made.”

The implications of this case relate to the issue of the ability of someone with a mental disorder of any sort to either take on a tenancy or to relinquish a tenancy.

This has often not been considered when making arrangements for people who may lack capacity in certain areas because of learning difficulties, dementia or mental illness.

From time to time, and for the best possible reasons, professionals working with such people assist them in obtaining accommodation for which that individual will need to make decisions regarding signing or relinquishing a tenancy, and professionals may not consider the issue of whether or not they actually have the capacity to make those decisions.

While a person can be made subject to conditions in a Community Treatment Order, such as a condition to reside in a certain place, this power does not extend to either terminating a tenancy or taking out a tenancy on their behalf.

If the person  subject to such conditions does not have capacity in that area, then any legal decisions they make may be invalid. In such cases, referral to the Court of Protection appears to be the only remedy.