Review: The Approved Mental Health Professional Practice Handbook

The Approved Mental Health Professional (AMHP) Practice Handbook, Kevin Stone, Sarah Vicary, Tim Spencer-Lane; Policy Press, 2020

I will begin by saying that I think this is a very good book. I'm in no doubt that it will be an invaluable resource to assist trainee AMHPs in understanding and learning the AMHP role, and will also serve as a useful reference guide for practicing AMHPs to assist with certain aspects of mental health law.

The book is divided into three parts: the AMHP in context, the AMHP in practice, and AMHP theory.

The first part covers the unique practice context of the AMHP, the ethical context, and social perspectives in mental health, including the multi-professional context of the AMHP role, this role being open not just to social workers, but also mental health nurse, occupational therapists and clinical psychologists.

The second part focuses on practice issues. This includes the process of completing an assessment under the Mental Health Act, including the sections of the Act involved in detention in hospital; the associated risks and challenges; the interface between the MHA and the Mental Capacity Act; and the AMHP's involvement in community provisions under the MHA, including CTO's guardianship and s.117 aftercare.

The third part examines upholding rights and anti-oppressive practice; the importance of resilience, in managing to survive in this demanding role; and decision-making, including involvement of family members and other professionals, arrangements for transport to hospital and facilitating reflection on the role.

Each chapter begins with a clear explanation of the aim of the chapter, including explicit notes on relevant law, which AMHP competencies are covered by the chapter, and case studies to aid reflective activities, concluding with key messages of the chapter, a brief review of knowledge, and recommended further reading.

The book combines sound academic principles with reference to competence indicators, skills and practice, providing copious and relevant referencing throughout, as well as reference to other related legislation. There is throughout a good selection of practice examples to aid learning and reflection.

There are a few other handbooks for AMHPs, most notably The Pocketbook Guide to Mental Health Act Assessments by Claire Barcham, which is now into its second edition.. The Pocketbook Guide is more basic than the book in question, and perhaps more explicitly practice oriented, and is aimed more at students than practitioners. This book, by comparison, takes an academic research led approach but directly applies this to practice.

The structure of the book is clear and logical, leading the reader from the basics of Mental Health law and practice through to an analysis of theoretical perspectives of mental health and mental disorder, and into actual practice considerations and the application of theory to practice.

Throughout, there is a logical connect with the core AMHP competences, which will be very helpful for trainee AMHPs to evidence their competencies for their coursework, as well as assisting experienced AMHPs to compiling an AMHP Record of Achievement for statutory reapproval. It will also provide a very valuable resource for AMHP courses.

TheApproved Mental Health Professional (AMHP) Practice Handbook, Kevin Stone,Sarah Vicary, Tim Spencer-Lane; Policy Press, 2020

NHS Legal Guidance on the Use of the Mental Health Act in Light of the Coronavirus Act

NHS England has issued Legal Guidance on the use of the Mental Health Act during the coronavirus pandemic. You can find the full document here.

It begins by stressing that:

There are currently no changes to the Mental Health Act 1983 legislation and colleagues should continue to adhere to the MHA Code of Practice as it currently stands until further notice.

It makes clear that there must be a clear distinction between the principles of the MHA and possible requirements to manage people infected by the coronavirus:

MHA powers must not be used to enforce treatment or isolation for any reason unrelated to the management of a person’s mental health.

Schedule 8 of the Coronavirus Act, relating to amendments to the MHA 1983, is not in force (and may never be). The guidance clearly states that these powers

will only be enacted if it is deemed nationally that the mental health sector is experiencing unprecedented resource constraints that put patients’ safety at significant risk.

It also makes it clear from the outset that there will be no changes to the current Mental Capacity Act.

It continues to hammer home the message that:

It remains the case, even in the wake of the emergency powers, that the MHA should only be used ‘with respect to the reception, care and treatment of mentally disordered patients and other related matters’. Under no circumstances can the MHA be used to enforce treatment, restrictions or isolation that is unrelated to the management of a person’s mental health.

The guidance suggests a number of actions that those involved in the care and treatment of people with mental disorder can and should take to ensure that the word and spirit of the MHA are respected.

One recommendation is that at a local level there must be additional resources provided to maintain an adequate supply of s.12 doctors to conduct assessments under the MHA.

One of the ways it suggests is that the Department of Health and Social Care will extend the licences of s.12 doctors and approved clinicians. These licences will be extended for 12 months.

S.140 MHA gets a mention, stating that there should be local systems “to ensure s140 agreements in relation to bed availability are in place and updated in light of COVID-19”.

The guidance goes into some detail in stressing how people with learning disability and/or autism should be treated, reinforcing the recommendations in the Code of Practice by stating that “caution should be taken when determining whether an individual with a learning disability and/or autism is detainable under the MHA.”

One key statement relates the requirement that people with learning disability should be exhibiting “abnormally aggressive or seriously irresponsible conduct” in order to meet the threshold for detention under the MHA. It states unequivocally that:

non-compliance or difficulty in gaining compliance with any restrictions and interventions required for the management of COVID-19 is not interpreted as adequate grounds on which to detain them. Further, the fundamental principle that the MHA is not for the treatment of physical disorders must be borne in mind where there is no association between a person’s physical and mental disorder.

It also recognises that:

The emotional and behavioural responses of people with autism to the constraints, uncertainties and significant changes in daily living as a result of the management of COVID-19 may also provide a diagnostic challenge in assessments under the MHA.

It goes on to stress:

It is essential that the support of health and social care service practitioners with particular experience and expertise in learning disability and/or autism is sought wherever possible to enable appropriate, reasonably adjusted assessments.

With reference to use of the MCA, it recognises that the impact of the Coronavirus “may result in a justifiable need for restrictive practice in particular circumstances”. But it also stresses that the principle of employing the least restrictive option should always be paramount:

Any use of restriction must be proportionate to the risks involved and providers should refer to their ethics committees where required.

I remain hopeful that the current MHA can continue to function as it currently is, without the need for the emergency changes in the Coronavirus Act. AMHPs and other mental health professionals need to work together to ensure that all the principles underlying the MHA and the Human Rights Act are never dispensed with because of operational difficulties arising from this national health emergency.

The Coronavirus Bill – Proposed Amendments to the Mental Health Act 1983

26.03.20. Update: The Coronavirus Act 2020 has now been passed, but the changes, including to the MHA, are not as yet in force. Schedule 8, which relates to the MHA, appears unchanged from the Bill.

The Coronavirus Bill was published today (19^th March 2020). You can find the full text here. 

The full Bill obviously covers a multitude of proposed measures, including for example emergency registration of nurses and social workers. The proposed amendments to the MHA for England and Wales are contained in Schedule 7. Changes to the Scottish legislation are contained in Schedule 8.

This is my understanding of the main proposed changes relating to the MHA 1983.

The main substance of these changes appears to relate to an anticipated shortage of doctors who can make recommendations. It does not appear to anticipate any shortage of AMHPs, who will still be required to undertake an assessment and make the application.

As has been signaled, there will be changes to the requirements regarding applications under s.2 and s.3 MHA.

The Bill states:

An application by an approved mental health professional under section 2 or 3... may be founded on a recommendation by a single registered medical practitioner (a “single recommendation”), if the professional considers that compliance with the requirement under that section for the recommendations of two practitioners is impractical or would involve undesirable delay.

So it would appear that, while s.2 and s.3 can still involve two medical recommendations, an AMHP can decide to dispense with one if it is not practical to obtain 2 doctors to make recommendations.

The Bill then goes on to say:

An emergency application under section 4 may not be founded on a single recommendation (but this does not limit section 4(3)).

I’m taking this to mean that in effect s.4 (which only requires one recommendation) is suspended for the duration of these amendments.

The Bill makes it clear that the single recommendation has to be made by a s.12 approved doctor, but that doctor does not need to have had previous acquaintance.

S.5(2) is being amended so that instead of this hospital detention lasting 72 hours, it will now last for up to 120 hours, or 5 days. The time limit for s.5(4), the nurse’s holding order, is also extended, from 6 hours to 12 hours.

Along the same lines, Part III of the MHA, relating to criminal proceedings, will only require one medical recommendation. This relates to s.36, s.37, s.38, and s.45A.

Presumably anticipating delays in admissions to hospital, the time limits for conveyance of accused or convicted prisoners to hospital have been relaxed, the Bill stating:

The provisions listed in sub-paragraph (2) have effect as if references to conveying or admitting a person to hospital within a specified period were references to doing so within that period or as soon as practicable after the end of that period.

Finally, s.135 & s.136 are amended to extend the period of detention in a place of safety from 24 hours to 36 hours (not 72 hours, as had previously been the time limit until the recent amendments in 2018).

Any existing forms that conflict with these changes can be used with “appropriate amendments” (which can presumably be handwritten if necessary).

There is no indication of how long these changes might continue.

The Bill does, of course, still have to pass through, and be approved by, Parliament, and there may be further amendments.

However, it does seem likely that most, if not all, of these changes will go through.

What constitutes a formal assessment under the MHA?

An assortment of hats, some of which may or may not be AMHP hats

There are regular discussions among AMHPs as to what constitutes a formal assessment under the Mental Health Act. The main argument is along the lines of: has an assessment only taken place once an AMHP and two doctors have interviewed the patient?

Even more contentiously, I have come across AMHPs who have considered that, even if both an AMHP and two doctors have interviewed the patient, if a decision is then made not to admit the patient, it was not a real assessment, and they did not therefore have to write a report.

I am of the view that it all depends on whether or not the AMHP has their AMHP hat on at the time they are considering whether or not a particular person needs to be admitted to hospital under the Act.

Assessments under the MHA all begin at s.13(1) MHA. S.13(1) states:

If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.

AMHPs do not generally drive around looking for someone to detain under the MHA. All assessments begin with a formal request to assess someone with the explicit outcome of detaining them in hospital. This can come from a wide range of sources: GP’s, hospitals, community mental health professionals, the police, ambulance crews and relatives.

Once a LA has received such a request, the task of taking the request forward is delegated to an AMHP.

The crucial wording, mentioned in both s.13(1) and (4), is that the AMHP should “consider the patient’s case”. This is “with a view to making an application for his admission to hospital”.

[A slight pause here, to consider the wording of the above quote. The Act makes an assumption that not only are all patients male, but that all AMHPs are male, too. As the AMHP Workforce Review which I reviewed in January noted, 69% of AMHPs are female, and only 31% male. So it goes.]

The AMHP is acting as a free agent. The Act explicitly states that a LA cannot instruct an AMHP to make an application. It is their decision alone, and they will take into account any information they consider relevant, and indeed, conduct those enquiries whoever they see fit, taking into account the requirements of the Act.

S.13(2) makes it clear that before making any application the AMHP “shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.”

It is very common for AMHPs, once they have received a request, to immediately arrange for two doctors to attend an assessment. However, there is no legal requirement to convene such an assessment team as the first step.

An obvious example of where this is not necessarily indicated is a request to assess a patient detained by the police under s.136 MHA. While an assessment, involving a face to face interview with the patient, is required, s.136 only states that an AMHP and a medical practitioner must conduct that assessment. It says nothing of two medical practitioners.

Bearing in mind that only around 1 in 10 of people detained under s.136 are subsequently admitted to hospital, unless there are very clear reasons to justify involving two doctors in the assessment, for example, where the patient is well known and is known to have been deteriorating in their mental state, it is perfectly adequate, and fulfills the legal requirements, for an AMHP to only use one doctor, albeit one who is s.12 approved.

In AMHP hubs, which are managed by an experienced AMHP who triages all the requests and decides whether or not to allocate the request to an AMHP for further consideration, a few simple enquiries, including speaking to the referrer, can often result in no further action needing to be taken by an AMHP.

There are clearly situations in which an AMHP will need to convene a full assessment. Such situations include detention under s.136, a hospital detention under s.5(2), or a request for a patient already detained under s.2 MHA for assessment to be detained under s.3 for treatment.

But there are many situations where a formal request may not result in either detention, or indeed any admission. Requests from nearest relatives, while they have to be acted on, frequently do not result in convening two doctors and an AMHP to assess the patient.

There is a reason for this in the Act. As the Reference Guide points out:

AMHPs must be satisfied that detention in a hospital is the most appropriate way of providing the care and medical treatment the patient needs. In making that decision, AMHPs are required to consider ‘all the circumstances of the case’. In practice, that might include the past history of the patient's mental disorder, the patient’s present condition and the social, familial, and personal factors bearing on it, the other options available for supporting the patient, the wishes of the patient and the patient’s relatives and carers, and the opinion of other professionals involved in caring for the patient. (para8.32)

The Code of Practice goes on to say:

Before it is decided that admission to hospital is necessary, consideration must be given to whether there are alternative means of providing the care and treatment which the patient requires. This includes consideration of whether there might be other effective forms of care or treatment which the patient would be willing to accept.(para14.7)

An AMHP must always have in their mind the basic nature of their role:

to provide an independent decision about whether or not there are alternatives to detention under the Act, bringing a social perspective to bear on their decision, and taking account of the least restrictive option and maximising independence guiding principle.(para14.52)

I have always felt that I am an AMHP 24 hours a day, 7 days a week. But it all depends on whether or not I have my AMHP hat on. If I am on duty, and I am allocated a request, then I definitely have my AMHP hat on. Everything I then do in response is as an AMHP, and acting under the MHA.

In considering such a request, an AMHP may spend a several hours before reaching a decision as to whether or not to call on two doctors. They may speak to relatives, and other professionals involved with the patient. They may read case notes and reports of other AMHPs who may have assessed the patient in the past.

And of course, they may speak to, and interview the patient themselves.

Something I like to do, if at all possible, especially when I receive a request from a Crisis Team or community mental health professional, is to conduct a joint visit with a professional who knows the patient, to make an assessment as to whether or not they are likely to require admission to hospital.

Often, alternatives to admission can be found. It is also possible to reach the conclusion that as an AMHP, wearing my AMHP hat, that in any case the threshold for detention is not reached, and admission to hospital under the Act is not appropriate. That would be my decision, as an AMHP. So why would it be necessary to involve further assessment with doctors, if that decision has already been made?

It can, of course, also work the other way. When I worked within a multidisciplinary community mental health team, there were times when I would visit a service user as their social worker or care coordinator, but based on the person’s presentation, suddenly find my AMHP hat slipping on, and realising that a formal MHA assessment was going to be necessary.

So my basic argument is that when an AMHP is acting as an AMHP, in accordance with their legal duties under the MHA, those actions equate to a formal assessment under the Act, whether or not one or more doctors have been involved in that assessment, and whatever the outcome.

The AMHP Workforce Review for 2019

Skills for Care have recently (November 2019) published the annual statistics relating to the AMHP workforce. This is the second year that statistics on the AMHP workforce have been published. I wrote about the first year's statistics here.

Whereas the statistics from 2018 were based on a 92% response rate from local authorities, 2019's statistics are based on a near perfect 99% response rate, so reflect even more accurately the current state of play with AMHP across England (it does not cover Welsh AMHP's I'm afraid).

This shows that there are currently approximately 3,730 AMHPs. The previous year there were 3,900, which indicates a decrease of 4%. This is in the face of every increasing demands on AMHPs to undertake assessments under the MHA.

80% of all AMHPs are directly employed by a local authority. Of the rest,16% are employed by the NHS (but not necessarily nurses) and 4% are agency or freelance.

I find the last statistic interesting, as I, and the Masked AMHP Facebook Group, regularly get enquiries from professionals wishing to become freelance AMHPs and encountering difficulties. The main problems for freelancers are obtaining places on qualifying training courses, obtaining opportunities for work placements, and then finding a local authority prepared to formally approve them.

Very few AMHP courses accept self funding candidates, although the University of East Anglia has been one.

In 2018 95% of AMHPs were qualified social workers. In 2019 this figure was 94%, with the remainders consisting of 5% nurses, less than 1% being occupational therapists, and a single clinical psychologist, despite all these occupations being eligible to train and practice as AMHPs.

I do think this is a shame, as from my own experience being involved with the training of AMHPs since the creation of the role in the MHA 2007, I have found nurses and OTs are well able to take on the social perspective necessary to practice as an AMHP, and their professional backgrounds make a valuable contribution to the overall AMHP workforce. I would like to see NHS MH Trusts allowing more nurses and other eligible professions to undertake the training.

The current survey estimates that 32% of AMHPs are aged 55 or more. The previous year, it was 30%. This implies that overall, if only slightly, the population of AMHPs is aging. This continues to be of concern, as more AMHPs reach retirement age, but are perhaps not being replaced. The survey notes that " this group may retire within the next ten years."

It goes on to say:

There were notably fewer qualified AMHPs under 40 compared to social workers. The average age of a social work graduate was 31 in 2017/18 3, which indicates that social workers may progress to becoming an AMHP later in their career.

(I confess here that I am now approaching 66 years of age, and though still warranted as an AMHP, I officially retired in October 2019, when I reached State retirement age. I still have a zero hours contract with my local authority, but while I was previously, on a semi retired basis, working for my local authority in the AMHP service two days a week, I now officially only have to undertake 3 MHA assessments a year to retain my AMHP approval. How many others are in the same position, or approaching it, and are they being replaced?)

For social workers considering undertaking the AMHP role, the survey provides data on current salaries. The average salary for an AMHP is £38,100 per annum.

I will conclude this brief review with a statement from the foreword:

We know that detention rates are increasing and AMHPs are dealing with increased challenges in local systems as they support people and fulfil their roles. This highly trained and skilled workforce has had to adapt to the changing contexts as the prevalence of mental ill health episodes are still increasing. AMHPs are core to the application of the Mental Health Act bringing independence and scrutiny to enable the best outcomes, striving to develop options within the persons home and community rather than hospital.

Even as I slowly withdraw from the active AMHP workforce, I would endorse the sentiment that AMHPs work hard to find alternatives to hospital admission, and hope that the challenges of the role will encourage professionals to take on the AMHP role, rather than deterring them from it.

What’s in the political parties’ manifestos relating to mental health?

Since we are about to have yet another General Election on 12 December 2019, I thought it might be informative to see what the main national political parties have to say about mental health.

Mental health is name checked 16 times in the Labour Party Manifesto. They have a total of seven paragraphs devoted to mental health.

Their manifesto says:

A Labour government will provide an additional £1.6 billion a year to ensure new standards for mental health are enshrined in the NHS constitution ensuring access to treatments is on a par with that for physical health conditions.

They also promise £2 billion to modernise hospital facilities and end the use of inappropriate, out-of-area placements.

Encouragingly, they give a nod to the recent Mental Health Act Review, stating:

The legislation for detaining people with learning disabilities and mental illnesses is outdated. We will implement in full the recommendations set out in the independent review of the Mental Health Act, so that people are given choice, autonomy and the treatment they need.

As well as briefly addressing the need to improve eating disorders services, they also say they will improve access to psychological therapies. They mention children’s mental health services, saying they will double the spending on children and adolescent mental health services, and say they will appoint 3,500 counsellors to be placed in schools.

Oh, and in the section on policing they mention mental health once:

Effective police work requires the police to serve their communities and work collaboratively with youth workers, mental health services, schools, drug rehabilitation programmes and other public agencies.

Er... with less than 3 weeks until the General Election, the Conservatives have still not actually published their Manifesto.

It is, however, stated in the Press that they will give the NHS “its biggest cash boost in history”. This will apparently amount to £33.9 billion. So far, there is no mention of how much of this would be seen by mental health services.

It is unknown whether a new Conservative Government will implement the recommendations of their own Mental Health Act Review, which was flagged in their last Manifesto in 2017. But then this was published when Theresa May was Prime Minister, who had at least expressed a concern about mental health.

 

A search of their Manifesto reveals 59 mentions of mental health. They really go into considerable detail, and whoever wrote it really appears to have a grasp of what the problems are and what is needed to remedy them.

Mental health is even mentioned in the introduction, stating:

We will transform our mental health service by treating it with the same urgency as physical health. About one in four people in the UK experience a mental health problem each year, and while the NHS may be the envy of the world, our mental health service falls far short of what patients deserve.

They go on to say that:

A Liberal Democrat government will invest £11 billion in mental health to expand access to therapies and increase the number of psychiatrists and specialist mental health practitioners. We will make mental health services 24-hour, including placing mental health liaison teams in all hospitals so that those facing a mental health crisis are not put in police cells.

They have a whole section entitled “Fixing Mental Health Services.”

They argue for parity of esteem with physical and mental health, to the extent of legislating to give them equality under the law. They also plan to prioritise early intervention to prevent people from experiencing a mental health crisis and to minimise the number and duration of in-patient stays.

Their policies include introducing standards for waiting times for mental health services, increasing the range of and access talking therapies, making prescriptions for people with severe mental illness free, and they will:

Implement all the recommendations of the Wessely review of the Mental Health Act, including bringing forward the necessary investment to modernise and improve inpatient settings and ambulances. We will apply the principle of ‘care not containment’ to mental health, while ensuring an emergency bed is always

available if needed.

There are three references to mental health in the Green Party Manifesto, contained within a single paragraph. They intend to focus funding:

to enable major improvements to mental health care to truly put it on an equal footing with physical health care, and ensure that everyone who needs it can access evidence-based mental health therapies within 28 days.

The UKIP Manifesto has 6 references to mental health. However, these references are mainly concentrated in a single statement referring to younger people:

An increasing number of younger people are suffering from mental health issues and this needs to be addressed. We will introduce practical policies to improve the delivery of mental health services and increase mental health funding by £500m per annum.

 

Nigel Farage has said that “the word 'manifesto' was a "horrible, horrible word that equates to 'lie'". They have not therefore released a Manifesto.

Instead, they have released a “Contract with the People”. This “contract” contains no reference at all to mental health. They do, however, refer to the NHS in the most general of terms, including a promise not to privatise the NHS.

So there it is. I am not making any recommendations as to whom readers of this blog should vote for. However, purely on the basis of the published manifestos, the Liberal Democrats have the most detailed and highly developed policies relating to mental health services.

Although realistically they have no chance of forming a majority government, they could still have the balance of power, and might use this to prioritise improvements in services to children and adults with mental health problems.

What is a hospital within the meaning of the Mental Health Act?

Artist's impression of a NHS hospital ward following Brexit

You’d think that some words do not need interpretation or explanation. We’re all quite clear about what constitutes a “hospital”, surely.

But as with many things to do with the Mental Health Act, things are not necessarily as straightforward as they may appear.

This particular question arose in our AMHP hub following a MHA assessment of a patient in a hospice. Since the hospice was part of a larger hospital, and since the hospice had wards, doctors and patients who lived in the hospice, then it must be a hospital, and an inpatient could therefore be detained to it.

Couldn’t they?

In order to answer this question, I will have to delve into the really boring bits of the Mental Health Act, the bits no-one ever reads unless they really have to. This includes the interminable Part VI, which is concerned with “Removal and Return of Patients within United Kingdom, etc”. (By the way, did you realise that the MHA includes a whole section, s.86, which concentrates on removal of aliens?)

Part X relates to “Miscellaneous Provisions”, and this is where everything that needs to be in the MHA, but which doesn’t fit anywhere else, exists. Within this Part is everything to do with Independent Mental Health Advocates, which were created by the MHA 2007. Oh, and s.135 and s.136, for some reason, which are rather important parts of the MHA.

Fun fact: s.135 and s.136, to do with applying for warrants and the police power to detain to a place of safety, first appear in the MHA 1959. When the MHA 1983 was drafted, their numbers remained unchanged, which is why they are in a comparatively obscure part of the Act. It was a widespread belief among ASWs back then that these sections remained because the police would not be able to cope with the sections being given different numbers.

Anyway, Part X contains s.145. This consists of a list of definitions of terms used in the MHA. S.145(1) states:

“Hospital” means—

(a) any health service hospital within the meaning of the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 the Secretary of State where the Secretary is responsible for the administration of the hospital; or

(b) any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under that Act; and

(c) any hospital as defined by section 206 of the National Health Service (Wales) Act 2006 which is vested in a Local Health Board; and “hospital within the meaning of Part II of this Act” has the meaning given in section 34 above

That’s all quite clear, isn’t it?

No, me neither.

So it then becomes necessary to rove outside the MHA and into other parts of legislation, in particular the National Health Service Act 2006. S.275(1) gives its own definition of “hospital”.

“Hospital” means—

(a) any institution for the reception and treatment of persons suffering from illness,

(b) any maternity home, and

(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation

While this seems somewhat closer to an easily comprehensible definition, it is still necessary to go even further afield to the Health & Social Care Act 2008. This is all about the functions of the Care Quality Commission (CQC). Chapter 2 is concerned with the necessity for registration with the CQC in order to provide health and social care services.

But we’re not there yet, as the crucial part of this legislation is The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This states precisely who can, and who can’t, provide assessment or medical treatment for persons detained under the MHA.

5(1) requires that a hospital which is providing “the assessment of, or medical treatment (other than surgical procedures) for, a mental disorder affecting a person in a hospital where that person is… detained in that hospital pursuant to the provisions of the 1983 Act” must be registered with the CQC.

And now we come full circle, because 5(3) states that: “’hospital’ means a hospital within the meaning of Part 2 of the 1983 Act”.

What all this means in lay terms is that a hospital has to be registered with the CQC in order to receive and accommodate mental health patients detained under the MHA.

This will always apply to NHS psychiatric hospitals, as well as most independent psychiatric hospitals, and many, but not all, general acute hospitals.

And it did not apply to this particular hospice, even though it was part of a hospital, since the hospital was not registered with the CQC for this purpose.

This raises the question of what happens if a patient is in a specialist hospital setting not designed for people with mental disorder, but whose behaviour indicates the need for detention, but who nevertheless would best be accommodated in the specialist hospital.

An example might be a hospital unit specifically for the rehabilitation of people who have suffered a stroke. I was once asked to assess such a patient. His behaviour had alarmed the rehabilitation team, but when I actually came to assess him, it became clear that his behaviour was entirely due to his distress at the disability the stroke had induced, which included difficulties in communicating his needs.

It was clear that he did not need assessment or treatment in a psychiatric hospital, as he precisely needed the rehabilitation programme available in the unit. I did not detain him, and persuaded the treating team that he should remain where he was, much to the relief of him and his wife.

In such circumstances, if the person is assessed as lacking capacity to make informed decisions about remaining in the hospital, then DoLS ought to be considered.

What about s.5(2) & (4)?

These are hospital holding powers, to prevent an inpatient from leaving until a formal assessment under s.2 or s.3 MHA has been made.

A hospital does not have to be a psychiatric hospital to use the powers; general hospitals can also use them. However, such hospitals would still need to be registered with the CQC, so this particular hospital could not even use s.5(2) or s.5(4).

Such a hospital would have to apply for an emergency DoLS in order to prevent the patient from leaving until a MHA assessment had taken place, and then only if the patient was assessed as lacking the capacity to make a decision about discharge.

(I am thankful to a member of CQC staff for pointing this out to me.)