The Mental Health Act attaches a lot of importance to the concept of “nature or degree” in relation to mental disorder. In fact, the MHA refers to “nature or degree” at least 18 times (I’ve counted).
For example, Sec.2(a) states:
“(2) An application for admission for assessment may be made in respect of a patient on the grounds that he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period.”
The distinction between “nature” and “degree”, and its implications for practice, is a complex one. On a day to day basis, an AMHP tends to be more concerned with the “degree” of mental disorder present on assessment. For a patient not previously known to mental health services, the “nature” of their mental disorder may be unknown or unclear.
Someone who has taken amphetamines or a hallucinogen like LSD may present with symptoms difficult to distinguish from schizophrenia or bipolar affective disorder. It is only when the effects of the drugs have worn off that it might become clear that they do not have a mental disorder at all. Similarly, an older person with a urinary tract infection may present with symptoms very similar to dementia or other mental illness. It is only when there has been an opportunity to diagnose and treat the infection that it is apparent that they do not have a mental disorder.
I have detained many people presenting with acute indications of severe mental illness who have, following admission, been found to have taken drugs, or have some other organic cause for their presentation, which has quickly resolved with the passage of time or physical treatments. I recall the psychiatrist and I being convinced that someone being assessed at the CMHT had all the signs of bipolar disorder: pressure of speech, flight of ideas, sleeplessness, hyperactivity and irritability. However, on admission it was discovered that he had been drinking 10 or more cans of Red Bull daily prior to the assessment, and after a night in hospital he returned to normal.
Detention under Sec.2, then, might commonly occur when someone is presenting with symptoms of a “degree which warrants the detention of the patient in hospital for assessment”, but where the nature of their disorder may be far from clear.
“Nature” becomes more important when assessing someone under Sec.3, for treatment. Anyone being considered for detention under Sec.3 should have some sort of working diagnosis of mental disorder, and the psychiatrist should have a pretty clear idea of the sort of treatment that is required to treat that disorder. The patient must therefore have a mental disorder of a sufficient “nature” to warrant detention for treatment.
In fact, not only must the psychiatrist state on the medical recommendation that the patient has “a mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in hospital”, but he or she also has to give an account of the symptoms that have led them to that conclusion, the sort of treatment the patient requires, and where that treatment is available.”
If someone is in hospital at the time of assessment, “degree” is also very important; the AMHP needs to be satisfied that the patient has active symptoms of mental illness or disorder that require treatment in the first place to alleviate them.
It can, however, become more complicated when someone in the community is being considered for detention under Sec.3. While normally, both nature and degree should be present in order to justify detention for treatment, there are circumstances in which it may be justifiable to detain someone who has a known diagnosis, for example, paranoid schizophrenia, and therefore has a mental disorder of a “nature”, but who is currently symptom free.
In Smirek v Williams [2000] MHLR38, it was noted:
“”Where there is a chronic condition, where there is evidence that it will soon deteriorate if medication is not taken, I find it impossible to accept that that is not a mental illness of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment if the evidence is that, without being detained in hospital, the patient will not take that treatment”.
Richard Jones (Mental Health Act Manual) makes the proviso that making a decision to detain in such a case should be based on an assessment of the risk to the patient or others if they are not treated.
(I once detained a patient under Sec.3 who had made an advance decision requesting that she be detained if she became unwell and no longer had the capacity to make an informed decision about admission. In the past, she frequently damaged and destroyed her property when unwell, and would be understandably very distressed about this when she recovered.)
The question of “nature or degree” invariably arises in Tribunal hearings. Here, if the Tribunal is not satisfied that a patient is, at the time of the Tribunal, suffering from “mental disorder of a nature or degree which warrants detention in hospital” for either assessment or treatment, then they have to discharge the patient. They will therefore be keen to establish from the psychiatrist whether mental illness of a nature or degree or both are present in the patient.
The case of R (Smith) v MHRT South Thames Region (1998) EWHC Admin 832 very usefully examined the issue of “nature and degree”, especially in connection with Tribunals. This case related to a patient with a diagnosis of paranoid schizophrenia who appealed against his detention. A Tribunal considered that he had a mental illness of a nature but not a degree which warranted his detention in hospital. He challenged the legality of this decision.
The judge concluded: “It is quite clear that the illness was not of a degree which of itself made it appropriate for him to be liable to be detained. The reason for that was because he has a chronic condition which was static. However, the nature of the condition was that it might cease to be static so that the interpretation that nature is in some way unchanging in one view may be right, but the effect of the condition is that because of its very nature it may not remain static. It seems to me that if the facts upon which the Tribunal rely have shown that it may not be static, that goes to the nature of the condition. The degree in the instant case, in relation to his condition, was not relevant because it was static and stable.”
He went on to state: “If one had simply to look at the degree it would have been right for the discharge to take place, but the nature of the condition was such that it was clear that he should not be discharged.”
This decision was widely quoted in both the Reference Guide and the Code of Practice and has become the primary legal definition. C4.3 of the COP unequivocally states: “Nature refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient’s previous response to receiving treatment for the disorder. Degree refers to the current manifestation of the patient’s disorder.”
Whether you are presenting a social circumstances report or a medical report to a Tribunal, it is vital to understand this distinction. I have seen solicitors in Tribunals tearing inexperienced psychiatrists to pieces when they have sensed that they are unclear about the importance of establishing “nature and/or degree” and the difference between the two.
It’s not a pretty sight.
Friday, 17 February 2012
Wednesday, 8 February 2012
Origins 4: My First Caseload
Part 4 of an occasional series
Within a couple of weeks of starting as an unqualified generic social worker in Charwood in the Autumn of 1976, I began to acquire a caseload. It was quite a mixture. Being a complete novice, I did not question their histories, assuming they were “normal for Charwood”, but when I look back now, I realise how extraordinary some of these people and their life experiences were.
First, there was Benjamin. Private Benjamin. He was my very first mental health client. Benjamin had been a young man during the 2nd World War, and had been called up to serve in the Army. He had previously spent his life in a village in the Charwood area, living with his parents and family in a large timber frame farmhouse, and working on the family farm. He had a fiancée, whom he had to leave behind when he was called up. She promised to wait for him until his triumphal return.
While in the Army, Benjamin was badly injured. It was not in active service. A munitions lorry backed into him in the Army depot, crushing him against a wall and damaging his legs and spine. He was medically discharged, returning to his village permanently disabled, and only able to walk with the aid of sticks. His fiancée, on seeing his injuries, promptly left him, and married another.
Broken in heart and body, and no longer able to work on the land, he retreated to the family farmhouse, where his parents still lived with his sister and her son. He took over the attic rooms, and became a complete recluse. His mother would leave food and the daily local newspaper at the top of the steep attic stairs, he would take it once she had left, and return the empty plates to the landing when he had finished.
He continued to live like this for the next 20 or more years. No-one in the household ever saw him, although they would hear noises emanating from the attic from time to time, so they knew he was alive.
It is unclear how social services came to be involved with him. Perhaps the noises in the attic became more disturbing. Perhaps his family began to get concerned that they had allowed this crippled ex-serviceman to isolate himself in this way. Whatever the trigger, in the mid 1960’s an assessment was carried out under the Mental Health Act 1959.
The Mental Welfare Officer, his GP and a Psychiatrist climbed the steep stairs to the attic and entered the attic room in which he had lived unseen for over 20 years. The entire space was taken up with a warren made of old newspapers. They picked their way through these narrow corridors until they eventually discovered him, huddled in a nest of old newspaper. His hair and beard had grown down to his waist, his fingernails were several centimetres long, and worst of all, they discovered that, because he had not used his legs for decades, and had instead negotiated his warren by shuffling along on his bottom, his legs had atrophied under him and were completely immovable.
He was detained under Sec.25 of the 1959 Act, which was the equivalent of Sec.2, and admitted to the local Victorian asylum for assessment. He was diagnosed with paranoid schizophrenia and detained under Sec.26 (the equivalent of Sec.3), for the next 10 years.
When I took Benjamin on, it was with the specific purpose of facilitating his move out of hospital and back into the community. Although still physically disabled, physiotherapy had restored use to his legs, and he was again able to walk with the aid of sticks. His mental illness was in remission, and there was a project under way to decant the long stay patients from the hospital and back into the community.
It was not considered a good idea for Benjamin to return to the family farmhouse, where his elderly and frail mother now lived alone, and there was nowhere else in his village where he could live, but I did find a place for him in a hostel in Charwood, where he had his own room, his meals were provided, and he had company.
He was content with this for a year or so, until his elderly mother died, and the farmhouse was sold. He received a considerable share of the proceeds, and decided to leave the hostel and travel around the county, looking for a suitable place to buy a bungalow and settle down. As he was mentally capable, I could not stop him. He bade farewell, and left Charwood, and my caseload.
I thought I would never see him again.
However...
One day nearly 30 years later, I was asked to assess an inpatient on the older people’s psychiatric ward. He had been detained under Sec.2 and they wanted to further detain him under Sec.3.
It was Benjamin.
Since I last saw him in the late 1970’s he had spent over 10 years wandering around the county, staying in bed and breakfast accommodation, until being allocated a local authority flat in Charwood about 10 years previously. He had had no involvement with mental health services for 30 years.
I was the only professional who actually knew his history.
Over the previous few months, he had been refusing food, and had become emaciated and very frail. When assessed at home, they found him living in a warren of newspapers.
When I interviewed Benjamin in his room on the ward, I found a very elderly and frail man. He was by now in his 90’s. I asked him if he remembered me from the best part of 30 years ago. He did.
There were no significant signs of dementia, but he was displaying clear symptoms of psychosis. He was paranoid about food, and objected to the ward staff forcing him to eat. He thought they were poisoning him with food and medication. He wanted to go back home so that he did not have to eat or take any more medication.
There was no option. He needed to be detained under Sec.3.
He recovered. His nephew, his sister’s son, who had known him as “the mad man in the attic”, when he had been a child, and who had reconnected with him when he had settled again in Charwood, offered to accommodate him in his own home. Benjamin was his last living relative.
Benjamin agreed to this, and he was discharged.
Next time: more choice cases from my rooky caseload.
Within a couple of weeks of starting as an unqualified generic social worker in Charwood in the Autumn of 1976, I began to acquire a caseload. It was quite a mixture. Being a complete novice, I did not question their histories, assuming they were “normal for Charwood”, but when I look back now, I realise how extraordinary some of these people and their life experiences were.
First, there was Benjamin. Private Benjamin. He was my very first mental health client. Benjamin had been a young man during the 2nd World War, and had been called up to serve in the Army. He had previously spent his life in a village in the Charwood area, living with his parents and family in a large timber frame farmhouse, and working on the family farm. He had a fiancée, whom he had to leave behind when he was called up. She promised to wait for him until his triumphal return.
While in the Army, Benjamin was badly injured. It was not in active service. A munitions lorry backed into him in the Army depot, crushing him against a wall and damaging his legs and spine. He was medically discharged, returning to his village permanently disabled, and only able to walk with the aid of sticks. His fiancée, on seeing his injuries, promptly left him, and married another.
Broken in heart and body, and no longer able to work on the land, he retreated to the family farmhouse, where his parents still lived with his sister and her son. He took over the attic rooms, and became a complete recluse. His mother would leave food and the daily local newspaper at the top of the steep attic stairs, he would take it once she had left, and return the empty plates to the landing when he had finished.
He continued to live like this for the next 20 or more years. No-one in the household ever saw him, although they would hear noises emanating from the attic from time to time, so they knew he was alive.
It is unclear how social services came to be involved with him. Perhaps the noises in the attic became more disturbing. Perhaps his family began to get concerned that they had allowed this crippled ex-serviceman to isolate himself in this way. Whatever the trigger, in the mid 1960’s an assessment was carried out under the Mental Health Act 1959.
The Mental Welfare Officer, his GP and a Psychiatrist climbed the steep stairs to the attic and entered the attic room in which he had lived unseen for over 20 years. The entire space was taken up with a warren made of old newspapers. They picked their way through these narrow corridors until they eventually discovered him, huddled in a nest of old newspaper. His hair and beard had grown down to his waist, his fingernails were several centimetres long, and worst of all, they discovered that, because he had not used his legs for decades, and had instead negotiated his warren by shuffling along on his bottom, his legs had atrophied under him and were completely immovable.
He was detained under Sec.25 of the 1959 Act, which was the equivalent of Sec.2, and admitted to the local Victorian asylum for assessment. He was diagnosed with paranoid schizophrenia and detained under Sec.26 (the equivalent of Sec.3), for the next 10 years.
When I took Benjamin on, it was with the specific purpose of facilitating his move out of hospital and back into the community. Although still physically disabled, physiotherapy had restored use to his legs, and he was again able to walk with the aid of sticks. His mental illness was in remission, and there was a project under way to decant the long stay patients from the hospital and back into the community.
It was not considered a good idea for Benjamin to return to the family farmhouse, where his elderly and frail mother now lived alone, and there was nowhere else in his village where he could live, but I did find a place for him in a hostel in Charwood, where he had his own room, his meals were provided, and he had company.
He was content with this for a year or so, until his elderly mother died, and the farmhouse was sold. He received a considerable share of the proceeds, and decided to leave the hostel and travel around the county, looking for a suitable place to buy a bungalow and settle down. As he was mentally capable, I could not stop him. He bade farewell, and left Charwood, and my caseload.
I thought I would never see him again.
However...
One day nearly 30 years later, I was asked to assess an inpatient on the older people’s psychiatric ward. He had been detained under Sec.2 and they wanted to further detain him under Sec.3.
It was Benjamin.
Since I last saw him in the late 1970’s he had spent over 10 years wandering around the county, staying in bed and breakfast accommodation, until being allocated a local authority flat in Charwood about 10 years previously. He had had no involvement with mental health services for 30 years.
I was the only professional who actually knew his history.
Over the previous few months, he had been refusing food, and had become emaciated and very frail. When assessed at home, they found him living in a warren of newspapers.
When I interviewed Benjamin in his room on the ward, I found a very elderly and frail man. He was by now in his 90’s. I asked him if he remembered me from the best part of 30 years ago. He did.
There were no significant signs of dementia, but he was displaying clear symptoms of psychosis. He was paranoid about food, and objected to the ward staff forcing him to eat. He thought they were poisoning him with food and medication. He wanted to go back home so that he did not have to eat or take any more medication.
There was no option. He needed to be detained under Sec.3.
He recovered. His nephew, his sister’s son, who had known him as “the mad man in the attic”, when he had been a child, and who had reconnected with him when he had settled again in Charwood, offered to accommodate him in his own home. Benjamin was his last living relative.
Benjamin agreed to this, and he was discharged.
Next time: more choice cases from my rooky caseload.
Wednesday, 1 February 2012
Rectifiable and Non-rectifiable Errors and Other Misdemeanours
Blog Reader: Hi there, Masked AMHP. What’s this post all about when it’s at home, then?
Masked AMHP: Hello, Blog Reader. Nice of you to drop by. This fascinating yet also informative post is all about how to fill in statutory forms correctly.
BR: Oh really? I think, perhaps, I’ll be off then. The Not So Big Society Blog has got some interesting stuff…
MA: Not so fast! This is really important! AMHP’s and doctors completing Mental Health Act forms have to get them right!
BR: Why’s that then?
MA: Because if they don’t, the whole detention could be completely illegal! Ultimately, it could lead to the patient being subject to unlawful imprisonment and they could sue!
BR: That sounds bad.
MA: It is bad! That’s why AMHP’s have it drummed into them from the very beginning the importance of filling in the forms correctly!
BR: You’re using a lot of exclamation marks today, Masked AMHP.
MA: I’m sorry. I was getting a bit over excited. I’ll try to avoid exclamation marks from now on! Oops! Oops.
BR: Now calm down, have a cup of chamomile tea, and tell me all about it.
MA: It’s all in The Mental Health (Hospital, Guardianship and Treatment) Regulations 2008 (SI 2008/1184). This states that there are certain statutory forms that have to be used for compulsory admissions and other legal aspects of the MHA, and these regulations give the wording that has to be used on the forms.
BR: Ah, yes! The dreaded pink forms, without which an AMHP is as powerless as a new born kitten!
MA: Yes. Although the forms don’t have to be pink. You see it’s the wording on the forms which is statutory, not the forms themselves – you could write them out by hand if you wanted, as long as you used the wording set out in the Regulations. These forms set out the information that has to be provided to the managers of a hospital in order for them to be able legally to receive and detain the patient. As the Code of Practice says: (13.2) “Regulations require specific statutory forms to be used for certain applications, recommendations, decisions, reports and records under the Act. The forms are set out in the regulations themselves.” Para 13.5 goes on to say: “People who sign applications and make the supporting medical recommendations must take care to comply with the requirements of the Act. People who act on the authority of these documents should also make sure that they are in the proper form, as an incorrectly completed or indecipherable form may not constitute authority for a patient’s detention.”
BR: Otherwise the patient could sue their asses!
MA: I’m not too keen on your terminology, but essentially that’s right. I always tell my AMHP trainees, or in fact anyone who’ll listen, that an AMHP’s responsibility for the assessment and admission of a patient under the Mental Health Act does not end until the patient is tucked up in the hospital and the papers have been accepted. The Reference Guide states clearly that detained patients “are treated as having been ‘admitted’ when the relevant application was received on behalf of the managers.” In other words, the assessment process does not end until the paperwork has been checked and signed off.
BR: How do you make sure that happens?
MA: It’s always best practice to go with, or at least to follow, the patient to hospital, and then not leave until someone authorised to do so has scrutinised the documents and made sure they are legally sound. That way, if there are any mistakes, at least on the AMHP’s form, they can be rectified while the AMHP is still there. I’ve recently come across a situation where the on call AMHP filled in their application form, then sent the papers off with the patient, who was being taken to the hospital by the police, but did not go themselves. When the patient arrived at the hospital, the person who received the forms discovered that the AMHP had put the name of the wrong hospital on the form. You see, the psychiatric unit was on the same site as the general hospital, but they were different Trusts. The AMHP had put the name of the general hospital on the form instead of the psychiatric unit. Although their address was the same, as the forms therefore related to a different hospital, the admission had no legal authority.
BR: What happened?
MA: The hospital admitted them as an informal patient. They could then have legally detained them under Sec.5(2) if necessary.
BR: But what if the hospital is a long way away? Does the AMHP still have to go?
MA: Ideally, yes. I’ve had to go as far as 100 miles with a patient where there’s either been a bed shortage at the local hospital or they’ve needed to be admitted to a special unit, such as a children’s ward or a secure unit.
BR: Is there no way round it?
MA: Well, there is – you can fax the forms through to the hospital in advance if it’s a long way away – that way, they can be scrutinised and approved in principle before the patient actually gets there. I’ve done that once or twice.
BR: So if a form has a mistake on it, does that make it illegal?
MA: Not necessarily. That’s where “rectifiable and non-rectifiable errors” come in. The CQC have a useful document called Scrutinising and rectifying statutory forms for admission under the Mental Health Act 1983. It gives examples of errors that can be rectified (although it’s a bit more vague when it comes to defining non-rectifiable errors). This document says that:
Documentary irregularities fall into three broad groups:
♦ Those that are both incapable of retrospective correction and sufficiently serious to render the patient’s detention invalid.
♦ Those that may be rectified within 14 days after admission, but which, if not rectified, are sufficiently serious to render the application invalid at the expiry of that period.
♦ Errors and omissions that, even if they are not corrected within the statutory period, are not sufficiently serious to render the admission application invalid.
Sec.15(1) MHA allows 14 days for rectifiable errors on forms to be corrected.
BR: So, what are “rectifiable errors” then?
MA: They are usually fairly minor things, like minor errors in the address or name of the patient, or not crossing out things that needed to be, or leaving blank spaces where you should have written something. An example might be not crossing out the bit on the application referring to being unable to identify the nearest relative, when in fact you have identified the nearest relative. But they can be bigger errors, such as two doctors from the same clinical team providing recommendations. As long as you get another medical recommendation within 14 days, you’re all right.
BR: And what about errors that make the detention invalid?
MA: I’ve already given one example. A failure to sign a form is another fatal error. Another one would be a form completed by someone not authorised to complete the form, for example an application made by someone who was not actually an Approved Mental Health Practitioner. Another would be using the wrong forms. I can remember one particular admission. I was on night duty, and was called out to do an assessment by the GP. However, by the time I arrived at the patient’s home, the patient had already gone off to hospital in an ambulance. When the ambulance arrived at the hospital, the patient was brought onto the ward, clutching a single pink piece of paper in their hand. This turned out to be a Nearest Relative Application form! The Nearest Relative had completed the first part of the form, and the GP had then written in a space on the back “I certify that this person should be detained under the Mental Health Act” and had then signed it!
BR: You’re using exclamation marks again.
MA: Sorry.
BR: Have you ever made any serious mistakes when completing an application, Masked AMHP?
MA: Me? The Masked AMHP? Made a serious mistake on an application? Well, I have actually. It was a woman with a history of bipolar affective disorder who would from time to time become manic and require detention under the MHA. She was well known to me, as I had had to detain her under Sec.3 on a number of occasions. One day there was a request to assess her under the MHA, so I set up the two doctors and went to her house. She was in the street behaving in an erratic manner. The police attended, and took her to the police station under Sec.136. I told the two doctors, who then went to see her at the police station. By the time I had arrived, they had already assessed her, and gave me a completed joint medical recommendation. I then assessed her myself, completed an application under Sec.3, and the police agreed to take her to hospital. I then followed in my car, with the pink forms on the passenger seat. Being a stickler, I double checked the paperwork as I was driving, and then realised with horror that the doctors had completed a joint recommendation for a Sec.2, not a Sec.3. I pulled into the next layby and hurriedly completed an application for a Sec.2 to make the whole thing legal.
BR: Do you feel better for getting that confession off your chest, Masked AMHP?
MA: I do, as a matter of fact.
BR: Perhaps you’d better go and have a lie down, now. And keep away from the exclamations marks!
MA: Perhaps I will.
Masked AMHP: Hello, Blog Reader. Nice of you to drop by. This fascinating yet also informative post is all about how to fill in statutory forms correctly.
BR: Oh really? I think, perhaps, I’ll be off then. The Not So Big Society Blog has got some interesting stuff…
MA: Not so fast! This is really important! AMHP’s and doctors completing Mental Health Act forms have to get them right!
BR: Why’s that then?
MA: Because if they don’t, the whole detention could be completely illegal! Ultimately, it could lead to the patient being subject to unlawful imprisonment and they could sue!
BR: That sounds bad.
MA: It is bad! That’s why AMHP’s have it drummed into them from the very beginning the importance of filling in the forms correctly!
BR: You’re using a lot of exclamation marks today, Masked AMHP.
MA: I’m sorry. I was getting a bit over excited. I’ll try to avoid exclamation marks from now on! Oops! Oops.
BR: Now calm down, have a cup of chamomile tea, and tell me all about it.
MA: It’s all in The Mental Health (Hospital, Guardianship and Treatment) Regulations 2008 (SI 2008/1184). This states that there are certain statutory forms that have to be used for compulsory admissions and other legal aspects of the MHA, and these regulations give the wording that has to be used on the forms.
BR: Ah, yes! The dreaded pink forms, without which an AMHP is as powerless as a new born kitten!
MA: Yes. Although the forms don’t have to be pink. You see it’s the wording on the forms which is statutory, not the forms themselves – you could write them out by hand if you wanted, as long as you used the wording set out in the Regulations. These forms set out the information that has to be provided to the managers of a hospital in order for them to be able legally to receive and detain the patient. As the Code of Practice says: (13.2) “Regulations require specific statutory forms to be used for certain applications, recommendations, decisions, reports and records under the Act. The forms are set out in the regulations themselves.” Para 13.5 goes on to say: “People who sign applications and make the supporting medical recommendations must take care to comply with the requirements of the Act. People who act on the authority of these documents should also make sure that they are in the proper form, as an incorrectly completed or indecipherable form may not constitute authority for a patient’s detention.”
BR: Otherwise the patient could sue their asses!
MA: I’m not too keen on your terminology, but essentially that’s right. I always tell my AMHP trainees, or in fact anyone who’ll listen, that an AMHP’s responsibility for the assessment and admission of a patient under the Mental Health Act does not end until the patient is tucked up in the hospital and the papers have been accepted. The Reference Guide states clearly that detained patients “are treated as having been ‘admitted’ when the relevant application was received on behalf of the managers.” In other words, the assessment process does not end until the paperwork has been checked and signed off.
BR: How do you make sure that happens?
MA: It’s always best practice to go with, or at least to follow, the patient to hospital, and then not leave until someone authorised to do so has scrutinised the documents and made sure they are legally sound. That way, if there are any mistakes, at least on the AMHP’s form, they can be rectified while the AMHP is still there. I’ve recently come across a situation where the on call AMHP filled in their application form, then sent the papers off with the patient, who was being taken to the hospital by the police, but did not go themselves. When the patient arrived at the hospital, the person who received the forms discovered that the AMHP had put the name of the wrong hospital on the form. You see, the psychiatric unit was on the same site as the general hospital, but they were different Trusts. The AMHP had put the name of the general hospital on the form instead of the psychiatric unit. Although their address was the same, as the forms therefore related to a different hospital, the admission had no legal authority.
BR: What happened?
MA: The hospital admitted them as an informal patient. They could then have legally detained them under Sec.5(2) if necessary.
BR: But what if the hospital is a long way away? Does the AMHP still have to go?
MA: Ideally, yes. I’ve had to go as far as 100 miles with a patient where there’s either been a bed shortage at the local hospital or they’ve needed to be admitted to a special unit, such as a children’s ward or a secure unit.
BR: Is there no way round it?
MA: Well, there is – you can fax the forms through to the hospital in advance if it’s a long way away – that way, they can be scrutinised and approved in principle before the patient actually gets there. I’ve done that once or twice.
BR: So if a form has a mistake on it, does that make it illegal?
MA: Not necessarily. That’s where “rectifiable and non-rectifiable errors” come in. The CQC have a useful document called Scrutinising and rectifying statutory forms for admission under the Mental Health Act 1983. It gives examples of errors that can be rectified (although it’s a bit more vague when it comes to defining non-rectifiable errors). This document says that:
Documentary irregularities fall into three broad groups:
♦ Those that are both incapable of retrospective correction and sufficiently serious to render the patient’s detention invalid.
♦ Those that may be rectified within 14 days after admission, but which, if not rectified, are sufficiently serious to render the application invalid at the expiry of that period.
♦ Errors and omissions that, even if they are not corrected within the statutory period, are not sufficiently serious to render the admission application invalid.
Sec.15(1) MHA allows 14 days for rectifiable errors on forms to be corrected.
BR: So, what are “rectifiable errors” then?
MA: They are usually fairly minor things, like minor errors in the address or name of the patient, or not crossing out things that needed to be, or leaving blank spaces where you should have written something. An example might be not crossing out the bit on the application referring to being unable to identify the nearest relative, when in fact you have identified the nearest relative. But they can be bigger errors, such as two doctors from the same clinical team providing recommendations. As long as you get another medical recommendation within 14 days, you’re all right.
BR: And what about errors that make the detention invalid?
MA: I’ve already given one example. A failure to sign a form is another fatal error. Another one would be a form completed by someone not authorised to complete the form, for example an application made by someone who was not actually an Approved Mental Health Practitioner. Another would be using the wrong forms. I can remember one particular admission. I was on night duty, and was called out to do an assessment by the GP. However, by the time I arrived at the patient’s home, the patient had already gone off to hospital in an ambulance. When the ambulance arrived at the hospital, the patient was brought onto the ward, clutching a single pink piece of paper in their hand. This turned out to be a Nearest Relative Application form! The Nearest Relative had completed the first part of the form, and the GP had then written in a space on the back “I certify that this person should be detained under the Mental Health Act” and had then signed it!
BR: You’re using exclamation marks again.
MA: Sorry.
BR: Have you ever made any serious mistakes when completing an application, Masked AMHP?
MA: Me? The Masked AMHP? Made a serious mistake on an application? Well, I have actually. It was a woman with a history of bipolar affective disorder who would from time to time become manic and require detention under the MHA. She was well known to me, as I had had to detain her under Sec.3 on a number of occasions. One day there was a request to assess her under the MHA, so I set up the two doctors and went to her house. She was in the street behaving in an erratic manner. The police attended, and took her to the police station under Sec.136. I told the two doctors, who then went to see her at the police station. By the time I had arrived, they had already assessed her, and gave me a completed joint medical recommendation. I then assessed her myself, completed an application under Sec.3, and the police agreed to take her to hospital. I then followed in my car, with the pink forms on the passenger seat. Being a stickler, I double checked the paperwork as I was driving, and then realised with horror that the doctors had completed a joint recommendation for a Sec.2, not a Sec.3. I pulled into the next layby and hurriedly completed an application for a Sec.2 to make the whole thing legal.
BR: Do you feel better for getting that confession off your chest, Masked AMHP?
MA: I do, as a matter of fact.
BR: Perhaps you’d better go and have a lie down, now. And keep away from the exclamations marks!
MA: Perhaps I will.
Sunday, 15 January 2012
Criminal Mental Health Acts
Part IX of the Mental Health Act creates a number of offences relating to practice under the Act and to people with mental disorder. Some have greater implications (and usage) than others.
Sec.127 relates to the ill-treatment of people with mental disorder. It is an extremely singificant provision. It makes it an offence for staff or managers of hospitals and care homes “to ill-treat or wilfully to neglect” anyone receiving treatment for mental disorder in that hospital or care home, either as an inpatient or as an outpatient. It is also an offence for “any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)”.
This has a broad application – it is intended to protect anyone with a mental disorder, whether in institutional care, or living in their own home, which would include people with mental illness, as well as people with learning disability and older people with dementia. They do not ever have needed to have been subject to the Mental Health Act. The penalty for this offence can be up to 5 years imprisonment, and/or an unlimited fine.
Although this has been in the Mental Health Act since 1983, it appears that it was not used until 2007. It is reported that Liudas Poderis was the first person to be prosecuted under Sec.127. Mr Poderis was a care worker in a nursing home in Wilmslow, Cheshire. In November 2006 he attempted to suffocate an elderly man with dementia by placing a plastic bag over his head. This was witnessed by another care worker. In August 2007 he received a prison sentence.
Prosecution under this Section has since become much more prevalent. The police appeared to have become more aware of this offence since Poderis’ conviction, as in 2008 Tanya Paterson, the manager of a care home for people with learning disabilities, was found guilty of ill treatment of a 21-year-old woman “with an intellectual age of between five and eight by bullying, shouting and swearing at her, putting her outside in the rain and pushing her about in a hallway. The charges relate to a seven-day period in May 2007.” It was reported at the time that she had “initially been charged with counts of assault but they were replaced with the allegation under s.127 (1)”.
Since then, dozens of people, mainly staff in care homes and hospitals, have been successfully prosecuted for the ill-treatment and neglect of vulnerable mentally disordered people under this section.
Sec.126 relates to forgery and false statements. This section makes it an offence to forge or to deliberately make false statements in Mental Health Act forms such as applications under Sec.2, 3 or 4, and medical recommendations. It is also an offence to knowingly possess or hold such a false document. The maximum penalty for this offence is 2 years imprisonment and/or an unlimited fine.
I suppose that examples of falsehoods on these documents could include such things as stating on Form A6 (Application by an AMHP for admission for treatment) that you have consulted with the patient’s nearest relative when you haven’t, or even signing the form which among other things states that you have interviewed the patient, when in fact you haven’t.
It’s worth saying that inadvertent errors, such as putting the wrong name or address of the patient on the form, while possibly affecting the validity and legality of the paperwork, would not in itself amount to an offence under Sec.126.
So how often has Sec.126 been used? I haven’t the faintest idea. In the many years in which I have practiced under the 1983 Act (since 1983, if you’re asking), I have never in my personal experience come across any occasion in which I have been aware of an ASW or AMHP knowingly and deliberately falsifying an application for detention. I have also been unable to find any record of any prosecutions nationally under this section (although perhaps they may be blog readers out there who know differently).
The closest to a prosecution of an ASW/AMHP that I have discovered, is the cases outlined in my post When Nearest Relatives Object. These were both civil cases brought before the High Court. In one the ASW had made an application under Sec.3 despite knowing that the nearest relative had objected to the application. In the other, again relating to a Sec.3 application, the ASW had stated that it had been “impracticable” to consult with the nearest relative, when in fact he had avoided contacting the nearest relative, knowing full well that the nearest relative would object to the application. However, in neither case was a prosecution brought under Sec.126.
Sec.128 relates to “Assisting patients to absent themselves without leave, etc”. This makes it an offence to assist a patient detained under Sec.2, 3, or 4 (or Guardianship) to “to absent himself without leave”, as well as harbouring a detained patient who is absent without leave. The maximum penalty is 2 years imprisonment and/or an unlimited fine.
There is a current “live” example of a prosecution under this section. In October 2011 a patient detained in a medium secure unit for people with learning difficulties and challenging behaviour in North Suffolk managed to escape, and was missing for several days before being recovered.
In December 2011, at a hearing at Ipswich Crown Court, Rebecca Martin, who was a member of staff at the unit, pleaded guilty to assisting the patient to escape. The case was adjourned until the end of January 2012 for sentencing. It is reported that the judge told Martin that she had pleaded guilty to an extremely serious offence. “It is highly likely you will receive a custodial sentence. It is an appalling breach of trust when someone aids and abets someone who is suffering from a psychiatric illness to escape from lawful custody.” (Eastern Daily Press 15.12.11.)
Sec.129 relates to obstruction. Among other things, this section states:
“(1) Any person who without reasonable cause—
(a) refuses to allow the inspection of any premises; or
(b) refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act or to give access to any person so authorised; or…
(d) otherwise obstructs any such person in the exercise of his functions,
shall be guilty of an offence.”
Furthermore:
“(2) … any person who insists on being present when required to withdraw by a person authorised by or under this Act to interview or examine a person in private shall be guilty of an offence.”
Anyone found guilty of these offences can receive a prison sentence of up to 3 months, and/or a fine.
What this means is that potentially AMHP’s have powers to order the arrest of people who are obstructing them in the execution of their duties under the MHA. I wonder how many police officers are aware of the powers under this section?
How many times have AMHP’s found themselves in the position of having to persuade a relative to allow them into their house so that they can assess someone under the MHA? On how many occasions have AMHP’s found relatives or other interested parties interfering with or impeding their efforts to interview a patient “in a suitable manner”? And yet how often has anyone been prosecuted under this section? Again, I am not aware of any such prosecution.
It is not generally in the nature of AMHP’s to use coercion in such a blatant way. AMHP’s usually try to get round such problems through negotiation. I know that, when confronted with such difficulties, I have usually been able to persuade the person to cooperate sufficiently to be able to discharge my legal duties.
It is a Section I have always been aware of in the back of my mind, but have never take advantage of. Even when AMHP’s are physically assaulted, they can be very reluctant to make a formal complaint.
(Digression: Although I have been physically assaulted on a handful of occasions during my social work career, some of which I have recounted in my posts on “Assault and Battery”, I have only once made a formal complaint. This was an occasion when one of my service users had physically abused her child. I had to accompany the child protection social worker so that the service user could give an account of the incident, and so that the social worker could tell her what action was being taken.
I could immediately tell that the service user was extremely angry and was potentially dangerous. The child protection social worker, however, seemed oblivious to this. I tried to warn her that we should leave, but she continued to go through her set agenda, oblivious to the increasing fury of the child’s mother.
Eventually, I took the social worker firmly by the arm and tried to lead her down the hallway and out of the door. The child’s mother, however, had other plans, and tried to block our way. As I pushed my way past her, and made a break for the door, she drop kicked me, striking my buttock. Hard.
On the advice of a team manager, I gave a full statement to the police, and even endured having to drop my pants while a female police officer took a photograph of my injured buttock. The service user was arrested and interviewed. She received a caution.)
While we’re discussing the whole issue of offences, I should mention Sec.139, “Protection for acts done in pursuance of this Act”. This provides valuable protection for AMHP’s and others against civil or criminal proceedings while undertaking their lawful duties, unless “the act was done in bad faith or without reasonable care”. This does mean that honest mistakes, or even incompetence, are protected from civil or criminal action as long as the actions were not done in bad faith. It’s worth knowing.
Sec.127 relates to the ill-treatment of people with mental disorder. It is an extremely singificant provision. It makes it an offence for staff or managers of hospitals and care homes “to ill-treat or wilfully to neglect” anyone receiving treatment for mental disorder in that hospital or care home, either as an inpatient or as an outpatient. It is also an offence for “any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)”.
This has a broad application – it is intended to protect anyone with a mental disorder, whether in institutional care, or living in their own home, which would include people with mental illness, as well as people with learning disability and older people with dementia. They do not ever have needed to have been subject to the Mental Health Act. The penalty for this offence can be up to 5 years imprisonment, and/or an unlimited fine.
Although this has been in the Mental Health Act since 1983, it appears that it was not used until 2007. It is reported that Liudas Poderis was the first person to be prosecuted under Sec.127. Mr Poderis was a care worker in a nursing home in Wilmslow, Cheshire. In November 2006 he attempted to suffocate an elderly man with dementia by placing a plastic bag over his head. This was witnessed by another care worker. In August 2007 he received a prison sentence.
Prosecution under this Section has since become much more prevalent. The police appeared to have become more aware of this offence since Poderis’ conviction, as in 2008 Tanya Paterson, the manager of a care home for people with learning disabilities, was found guilty of ill treatment of a 21-year-old woman “with an intellectual age of between five and eight by bullying, shouting and swearing at her, putting her outside in the rain and pushing her about in a hallway. The charges relate to a seven-day period in May 2007.” It was reported at the time that she had “initially been charged with counts of assault but they were replaced with the allegation under s.127 (1)”.
Since then, dozens of people, mainly staff in care homes and hospitals, have been successfully prosecuted for the ill-treatment and neglect of vulnerable mentally disordered people under this section.
Sec.126 relates to forgery and false statements. This section makes it an offence to forge or to deliberately make false statements in Mental Health Act forms such as applications under Sec.2, 3 or 4, and medical recommendations. It is also an offence to knowingly possess or hold such a false document. The maximum penalty for this offence is 2 years imprisonment and/or an unlimited fine.
I suppose that examples of falsehoods on these documents could include such things as stating on Form A6 (Application by an AMHP for admission for treatment) that you have consulted with the patient’s nearest relative when you haven’t, or even signing the form which among other things states that you have interviewed the patient, when in fact you haven’t.
It’s worth saying that inadvertent errors, such as putting the wrong name or address of the patient on the form, while possibly affecting the validity and legality of the paperwork, would not in itself amount to an offence under Sec.126.
So how often has Sec.126 been used? I haven’t the faintest idea. In the many years in which I have practiced under the 1983 Act (since 1983, if you’re asking), I have never in my personal experience come across any occasion in which I have been aware of an ASW or AMHP knowingly and deliberately falsifying an application for detention. I have also been unable to find any record of any prosecutions nationally under this section (although perhaps they may be blog readers out there who know differently).
The closest to a prosecution of an ASW/AMHP that I have discovered, is the cases outlined in my post When Nearest Relatives Object. These were both civil cases brought before the High Court. In one the ASW had made an application under Sec.3 despite knowing that the nearest relative had objected to the application. In the other, again relating to a Sec.3 application, the ASW had stated that it had been “impracticable” to consult with the nearest relative, when in fact he had avoided contacting the nearest relative, knowing full well that the nearest relative would object to the application. However, in neither case was a prosecution brought under Sec.126.
Sec.128 relates to “Assisting patients to absent themselves without leave, etc”. This makes it an offence to assist a patient detained under Sec.2, 3, or 4 (or Guardianship) to “to absent himself without leave”, as well as harbouring a detained patient who is absent without leave. The maximum penalty is 2 years imprisonment and/or an unlimited fine.
There is a current “live” example of a prosecution under this section. In October 2011 a patient detained in a medium secure unit for people with learning difficulties and challenging behaviour in North Suffolk managed to escape, and was missing for several days before being recovered.
In December 2011, at a hearing at Ipswich Crown Court, Rebecca Martin, who was a member of staff at the unit, pleaded guilty to assisting the patient to escape. The case was adjourned until the end of January 2012 for sentencing. It is reported that the judge told Martin that she had pleaded guilty to an extremely serious offence. “It is highly likely you will receive a custodial sentence. It is an appalling breach of trust when someone aids and abets someone who is suffering from a psychiatric illness to escape from lawful custody.” (Eastern Daily Press 15.12.11.)
Sec.129 relates to obstruction. Among other things, this section states:
“(1) Any person who without reasonable cause—
(a) refuses to allow the inspection of any premises; or
(b) refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act or to give access to any person so authorised; or…
(d) otherwise obstructs any such person in the exercise of his functions,
shall be guilty of an offence.”
Furthermore:
“(2) … any person who insists on being present when required to withdraw by a person authorised by or under this Act to interview or examine a person in private shall be guilty of an offence.”
Anyone found guilty of these offences can receive a prison sentence of up to 3 months, and/or a fine.
What this means is that potentially AMHP’s have powers to order the arrest of people who are obstructing them in the execution of their duties under the MHA. I wonder how many police officers are aware of the powers under this section?
How many times have AMHP’s found themselves in the position of having to persuade a relative to allow them into their house so that they can assess someone under the MHA? On how many occasions have AMHP’s found relatives or other interested parties interfering with or impeding their efforts to interview a patient “in a suitable manner”? And yet how often has anyone been prosecuted under this section? Again, I am not aware of any such prosecution.
It is not generally in the nature of AMHP’s to use coercion in such a blatant way. AMHP’s usually try to get round such problems through negotiation. I know that, when confronted with such difficulties, I have usually been able to persuade the person to cooperate sufficiently to be able to discharge my legal duties.
It is a Section I have always been aware of in the back of my mind, but have never take advantage of. Even when AMHP’s are physically assaulted, they can be very reluctant to make a formal complaint.
(Digression: Although I have been physically assaulted on a handful of occasions during my social work career, some of which I have recounted in my posts on “Assault and Battery”, I have only once made a formal complaint. This was an occasion when one of my service users had physically abused her child. I had to accompany the child protection social worker so that the service user could give an account of the incident, and so that the social worker could tell her what action was being taken.
I could immediately tell that the service user was extremely angry and was potentially dangerous. The child protection social worker, however, seemed oblivious to this. I tried to warn her that we should leave, but she continued to go through her set agenda, oblivious to the increasing fury of the child’s mother.
Eventually, I took the social worker firmly by the arm and tried to lead her down the hallway and out of the door. The child’s mother, however, had other plans, and tried to block our way. As I pushed my way past her, and made a break for the door, she drop kicked me, striking my buttock. Hard.
On the advice of a team manager, I gave a full statement to the police, and even endured having to drop my pants while a female police officer took a photograph of my injured buttock. The service user was arrested and interviewed. She received a caution.)
While we’re discussing the whole issue of offences, I should mention Sec.139, “Protection for acts done in pursuance of this Act”. This provides valuable protection for AMHP’s and others against civil or criminal proceedings while undertaking their lawful duties, unless “the act was done in bad faith or without reasonable care”. This does mean that honest mistakes, or even incompetence, are protected from civil or criminal action as long as the actions were not done in bad faith. It’s worth knowing.
Sunday, 8 January 2012
The Mental Health Act: A Lightning Tour
The Mental Health Act 1983 could conceivably be compared to a department store (at least, I’ve conceived it). There are 10 Parts to the Act, just like there are different floors in a department store, of varying importance and relevance to AMHP practice. As a bit of a MHA train spotter, I have tried to read all of the Act, even the really boring bits – and there are plenty of them – just so that you don’t have to.
Each Part contains different aspects of Mental Health law – just like a department store, if a department store contained law instead of goods.
Bear with me. Let’s see how it runs.
Part I could be compared to the foyer of a department store. It’s by far the smallest part of the Act, and consists of a short and sweet introduction defining mental disorder (which since the changes in the 2007 Act is now defined as “any disorder or disability of the mind”), as well as a useful reminder that people with learning difficulties are largely excluded from the Act.
Once you’ve negotiated the foyer, we enter Part II, which contains the bread and butter matters of most concern to AMHP’s and patients. It’s a bit like Harrod’s main food hall – bustling with people, with a lot of activity going on, and a lot of transactions taking place. Part II is predominantly concerned with the powers and duties defined in the Mental Health Act – these of course relate mainly to detention under Sec.2, 3, or 4, Guardianship, and more recently Supervised Community Treatment. In fact, probably less than 25% of the Mental Health Act impacts on AMHP practice on a day to day basis. AMHP’s will therefore spend much of their professional time with issues relating to Part II.
The lift then takes us to Part III -- although this is an important part of the Act, it is not necessarily directly of relevance to AMHP’s , unless they work in a forensic setting, as it relates mainly to the powers of criminal courts to detain mentally disordered offenders.
Next up is Part IV, the medical floor – the equivalent of the orthopaedic bed and surgical appliance department (or maybe not) -- concerned with Consent to Treatment, which is predominantly to do with the strictly medical aspects of the MHA. It includes directions relating to Electro-convulsive Therapy (ECT) and other treatments such as “any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue”. While psychosurgery was far from uncommon in the 1950’s and 1960’s, and I have in my earlier years working with people with mental illness come across patients with leucotomy scars on their foreheads, I am not sure that any such procedures are still in use.
The lift doors open next on Part V, which concerns itself with Mental Health Review Tribunals, while Part VI is a dim and murky floor, as it gets into seriously arcane and convoluted territory, relating to “Removal and Return of Patients within the UK”. It contains the rules relating to transfers and extractions of patients between England, Scotland, Wales and Northern Ireland – as well as the Channel Islands and the Isle of Man.
Section 86 appears to stray into Roswell UFO territory, as it refers to “Removal of aliens”. Unfortunately, this does not relate to transfer arrangements for ET back to his home planet, but to patients who are non-British nationals and “the conveyance of the patient to his destination in that country or territory and for his detention in any place or on board any ship or aircraft until his arrival at any specified port or place in any such country or territory”.
Of course, AMHP’s really don’t need to know any of this stuff – until, that is, a patient who has absconded from Jersey turns up in Llanelli.
Part VIII relates to the “Miscellaneous Functions of Local Authorities and the Secretary of State”, perhaps comparable to the lingerie department, since it clothes the Act in some of the necessary accoutrements that make the Act work. Among other things, it establishes that “a local social services authority may approve a person to act as an approved mental health professional for the purposes of this Act.” Sec.115 gives an AMHP the important power to “enter and inspect any premises (other than a hospital) in which a mentally disordered patient is living, if he has reasonable cause to believe that the patient is not under proper care.” It also includes Sec.117 and the duty to provide aftercare.
Part IX created a number of offences relating directly to practice under the MHA and to people with mental disorders within the meaning of the Act.
Part X, the very top of the department store, along with the roof garden, contains everything that doesn’t fit on any of the other floors, being called “Miscellaneous and Supplementary”. It’s a bit of a rag bag, containing the new rules relating to Independent Mental Health Advocates, as well as the essential Sec.131, which establishes the principal of the supremacy of informal admission (“Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or registered establishment in pursuance of such arrangements after he has ceased to be so liable to be detained.”)
Part X also refers to the duties of Hospital Managers (including the withholding of “postal packets”), as well as the important Sec.135 (warrants to search for and remove patients) and Sec.136 (police powers relating to mentally disordered persons in public places). It also contains Sec.141, relating to mentally disordered MP’s, which I covered in my last post.
If you’re still reading this post, you’re probably wondering what happened to Part VII – why didn’t the lift stop at that floor?
Well, there’s a simple answer, which is that there is no longer any Part VII. It used to contain the rules relating to the Court of Protection, but it was repealed in its entirety by the Mental Capacity Act 2005.
When I first started to work on this post, I was intending to devote it to Part IX, relating to offences, but decided that it was necessary to put it into the context of the Act as a whole.
Next time, then, I will be taking a closer look at the implications of Part IX. Wouldn’t you just love to get obstructive relatives arrested when you’re trying to undertake an assessment under the MHA in a person’s home? Maybe you can.
Each Part contains different aspects of Mental Health law – just like a department store, if a department store contained law instead of goods.
Bear with me. Let’s see how it runs.
Part I could be compared to the foyer of a department store. It’s by far the smallest part of the Act, and consists of a short and sweet introduction defining mental disorder (which since the changes in the 2007 Act is now defined as “any disorder or disability of the mind”), as well as a useful reminder that people with learning difficulties are largely excluded from the Act.
Once you’ve negotiated the foyer, we enter Part II, which contains the bread and butter matters of most concern to AMHP’s and patients. It’s a bit like Harrod’s main food hall – bustling with people, with a lot of activity going on, and a lot of transactions taking place. Part II is predominantly concerned with the powers and duties defined in the Mental Health Act – these of course relate mainly to detention under Sec.2, 3, or 4, Guardianship, and more recently Supervised Community Treatment. In fact, probably less than 25% of the Mental Health Act impacts on AMHP practice on a day to day basis. AMHP’s will therefore spend much of their professional time with issues relating to Part II.
The lift then takes us to Part III -- although this is an important part of the Act, it is not necessarily directly of relevance to AMHP’s , unless they work in a forensic setting, as it relates mainly to the powers of criminal courts to detain mentally disordered offenders.
Next up is Part IV, the medical floor – the equivalent of the orthopaedic bed and surgical appliance department (or maybe not) -- concerned with Consent to Treatment, which is predominantly to do with the strictly medical aspects of the MHA. It includes directions relating to Electro-convulsive Therapy (ECT) and other treatments such as “any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue”. While psychosurgery was far from uncommon in the 1950’s and 1960’s, and I have in my earlier years working with people with mental illness come across patients with leucotomy scars on their foreheads, I am not sure that any such procedures are still in use.
The lift doors open next on Part V, which concerns itself with Mental Health Review Tribunals, while Part VI is a dim and murky floor, as it gets into seriously arcane and convoluted territory, relating to “Removal and Return of Patients within the UK”. It contains the rules relating to transfers and extractions of patients between England, Scotland, Wales and Northern Ireland – as well as the Channel Islands and the Isle of Man.
Section 86 appears to stray into Roswell UFO territory, as it refers to “Removal of aliens”. Unfortunately, this does not relate to transfer arrangements for ET back to his home planet, but to patients who are non-British nationals and “the conveyance of the patient to his destination in that country or territory and for his detention in any place or on board any ship or aircraft until his arrival at any specified port or place in any such country or territory”.
Of course, AMHP’s really don’t need to know any of this stuff – until, that is, a patient who has absconded from Jersey turns up in Llanelli.
Part VIII relates to the “Miscellaneous Functions of Local Authorities and the Secretary of State”, perhaps comparable to the lingerie department, since it clothes the Act in some of the necessary accoutrements that make the Act work. Among other things, it establishes that “a local social services authority may approve a person to act as an approved mental health professional for the purposes of this Act.” Sec.115 gives an AMHP the important power to “enter and inspect any premises (other than a hospital) in which a mentally disordered patient is living, if he has reasonable cause to believe that the patient is not under proper care.” It also includes Sec.117 and the duty to provide aftercare.
Part IX created a number of offences relating directly to practice under the MHA and to people with mental disorders within the meaning of the Act.
Part X, the very top of the department store, along with the roof garden, contains everything that doesn’t fit on any of the other floors, being called “Miscellaneous and Supplementary”. It’s a bit of a rag bag, containing the new rules relating to Independent Mental Health Advocates, as well as the essential Sec.131, which establishes the principal of the supremacy of informal admission (“Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or registered establishment in pursuance of such arrangements after he has ceased to be so liable to be detained.”)
Part X also refers to the duties of Hospital Managers (including the withholding of “postal packets”), as well as the important Sec.135 (warrants to search for and remove patients) and Sec.136 (police powers relating to mentally disordered persons in public places). It also contains Sec.141, relating to mentally disordered MP’s, which I covered in my last post.
If you’re still reading this post, you’re probably wondering what happened to Part VII – why didn’t the lift stop at that floor?
Well, there’s a simple answer, which is that there is no longer any Part VII. It used to contain the rules relating to the Court of Protection, but it was repealed in its entirety by the Mental Capacity Act 2005.
When I first started to work on this post, I was intending to devote it to Part IX, relating to offences, but decided that it was necessary to put it into the context of the Act as a whole.
Next time, then, I will be taking a closer look at the implications of Part IX. Wouldn’t you just love to get obstructive relatives arrested when you’re trying to undertake an assessment under the MHA in a person’s home? Maybe you can.
Thursday, 5 January 2012
The Masked AMHP makes it into the Guardian -- again!
Here is the link to a piece the Masked AMHP has had published in the Guardian Social Care Network section of its website today. You can find the article here.
Monday, 2 January 2012
How To Section Your MP
Since
I wrote this, Sec.141 was repealed by the Mental Health Discrimination Act
2013. Section 1 of the Mental Health Discrimination Act 2013, which repealed
section 141 of the 1983 Act, came into force at the end of April 2013. I am
leaving this post on the Blog as a matter of historical curiosity.
Members of Parliament are not the same as you or me when it comes to the Mental Health Act. MP’s have their very own Section of the MHA – Sec.141. This states that:
Where a member of the House of Commons is authorised to be detained … on the ground … that he is suffering from mental disorder, it shall be the duty of the court, authority or person on whose order or application, and of any registered medical practitioner upon whose recommendation or certificate, the detention was authorised, and of the person in charge of the hospital or other place in which the member is authorised to be detained, to notify the Speaker of the House of Commons that the detention has been authorised.
This roughly means that an AMHP who finds themselves in the position of having to detain an MP (or a Member of the Welsh or Northern Ireland Assembly or Scottish Parliament) under Sec.2, 3 or 4 has to notify the Speaker of the House of Commons of the action taken.
This then sets off a chain of events: the Speaker instructs two Psychiatrists to examine the MP and provide a report stating “whether the member is suffering from mental disorder and is authorised to be detained”. Once that has been established, if the MP is still detained under the MHA after 6 months (which includes sections of Part III of the Act relating to offenders, eg Sec.37), two Psychiatrists again have to examine him or her and furnish a further report. The Speaker shall then “forthwith lay both reports before the House of Commons, and thereupon the seat of the member shall become vacant.”
In other words, if an MP is unlucky enough to be sectioned for at least 6 months, he or she will automatically lose their seat.
You might think this discriminates against an MP who becomes mentally unwell. The Royal College of Psychiatrists would agree with you. In 2009 they pointed out that “there are no provisions to remove MPs suffering from physical illnesses which stop them from carrying out their duties and responsibilities for the same length of time. Furthermore, if the MP lacks capacity and is detained for a period of 6 months using the authority of the Mental Capacity Act, he or she will not automatically lose their seat.” The RCP recommended that the MHA be amended to remove all the parts of this section beyond the requirement to notify the Speaker. This has not yet happened.
However, before you lobby Parliament about this injustice, which may indeed contravene other legislation, including the Human Rights Act and the Equality Act 2010, this provision, which was first made law in the 1959 MHA, according to Parliament itself, has never been used.
In fact, there is only one known instance of an MP being removed from their seat on the basis of mental disorder – and that was in August 1916, when the Liberal MP Dr Charles Leach became a victim of the Lunacy (Vacating of Seats) Act 1886 (which was eventually replaced by the provisions of the 1959 MHA) on the basis of “unsoundness of mind.”
David McKie wrote an article about this case in the Guardian (Bedlam on the benches, Guardian, 12.07.07.). Dr Leach, who had been a Nonconformist minister, first became an MP in 1910 at the age of 60. He apparently became mentally unwell in 1915, and by August 1916 he was removed from the House of Commons.
Although the precise nature of Dr Leach’s illness appears to be unknown, McKie states: “At the outset of the First World War he had volunteered, though approaching 70, to serve as a nonconformist chaplain at the front. It seems to have been this that brought on his breakdown.”
Members of Parliament are not the same as you or me when it comes to the Mental Health Act. MP’s have their very own Section of the MHA – Sec.141. This states that:
Where a member of the House of Commons is authorised to be detained … on the ground … that he is suffering from mental disorder, it shall be the duty of the court, authority or person on whose order or application, and of any registered medical practitioner upon whose recommendation or certificate, the detention was authorised, and of the person in charge of the hospital or other place in which the member is authorised to be detained, to notify the Speaker of the House of Commons that the detention has been authorised.
This roughly means that an AMHP who finds themselves in the position of having to detain an MP (or a Member of the Welsh or Northern Ireland Assembly or Scottish Parliament) under Sec.2, 3 or 4 has to notify the Speaker of the House of Commons of the action taken.
This then sets off a chain of events: the Speaker instructs two Psychiatrists to examine the MP and provide a report stating “whether the member is suffering from mental disorder and is authorised to be detained”. Once that has been established, if the MP is still detained under the MHA after 6 months (which includes sections of Part III of the Act relating to offenders, eg Sec.37), two Psychiatrists again have to examine him or her and furnish a further report. The Speaker shall then “forthwith lay both reports before the House of Commons, and thereupon the seat of the member shall become vacant.”
In other words, if an MP is unlucky enough to be sectioned for at least 6 months, he or she will automatically lose their seat.
You might think this discriminates against an MP who becomes mentally unwell. The Royal College of Psychiatrists would agree with you. In 2009 they pointed out that “there are no provisions to remove MPs suffering from physical illnesses which stop them from carrying out their duties and responsibilities for the same length of time. Furthermore, if the MP lacks capacity and is detained for a period of 6 months using the authority of the Mental Capacity Act, he or she will not automatically lose their seat.” The RCP recommended that the MHA be amended to remove all the parts of this section beyond the requirement to notify the Speaker. This has not yet happened.
However, before you lobby Parliament about this injustice, which may indeed contravene other legislation, including the Human Rights Act and the Equality Act 2010, this provision, which was first made law in the 1959 MHA, according to Parliament itself, has never been used.
In fact, there is only one known instance of an MP being removed from their seat on the basis of mental disorder – and that was in August 1916, when the Liberal MP Dr Charles Leach became a victim of the Lunacy (Vacating of Seats) Act 1886 (which was eventually replaced by the provisions of the 1959 MHA) on the basis of “unsoundness of mind.”
David McKie wrote an article about this case in the Guardian (Bedlam on the benches, Guardian, 12.07.07.). Dr Leach, who had been a Nonconformist minister, first became an MP in 1910 at the age of 60. He apparently became mentally unwell in 1915, and by August 1916 he was removed from the House of Commons.
Although the precise nature of Dr Leach’s illness appears to be unknown, McKie states: “At the outset of the First World War he had volunteered, though approaching 70, to serve as a nonconformist chaplain at the front. It seems to have been this that brought on his breakdown.”
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