Friday, 2 February 2018

Can a person in police custody be detained under S.136?

Following the recent changes to S.136 MHA by the Policing & Crime Act, there has been some discussion in mental health circles about whether or not a person who has been arrested for an offence and is in police custody can be detained under S.136 while still in custody.

This question would not have arisen prior to 11th December 2017, as someone could only be made subject to S.136 if they were in “a place to which the public have access.” A police station was most definitely not such a place.

However, the new S.136(1B) has dispensed with this requirement, and now states that the power can be used in “any place”, with only a few exceptions, which include a private dwelling.

So theoretically at least, it would be within the law to use the S.136 powers in a police station.

Let’s look at a possible scenario.

Scenario 1
Gary is arrested after he was challenged by police in the town centre and threw a can of lager at the police officer. Once in custody, it becomes clear to the custody officer that Gary is suffering from some sort of mental disorder.

Prior to 11th December 2017 the custody officer would have had to contact the local AMHP service, who would then have arranged to conduct an assessment under the Mental Health Act at the police station.

Now, however, a second option is available: to detain under S.136 and then either transfer them to a place of safety or allow them to be assessed in accordance with S.136 requirements in the police station.

Clearly, the question of using S.136 in these circumstances depends on the seriousness of the offence; it would probably not be appropriate to consider moving someone to a S.136 suite who has been arrested on suspicion of murder.

I can certainly see that S.136 could possibly be appropriate, as well as legal, if the custody officer believes the person needs an assessment of their mental health, and would be better served in a non police based place of safety.

But what if the person in custody has already been assessed under the MHA?

Scenario 2
The custody officer considers Gary has a mental disorder and an AMHP and two doctors assess him in the police station. They conclude that he has a mental disorder within the meaning of the Act, and that he should be detained in hospital.

However, no bed has been identified, and the 24 hour PACE clock is running out.

Again, prior to December 2017, the custody officer would have had no choice but to watch the PACE clock run out and then make a decision whether or not to release someone who has been assessed as needing detention in a hospital because of risks to themselves or others, or to keep them in custody, outside of any legal mechanism.

Unfortunately, because of the dire nationwide shortage of beds, exacerbated by an even worse shortage of specialist beds, such as Psychiatric Intensive Care Units (PICUs), and placements for children, this scenario is not uncommon. In a few instances in our area, people have been kept in legal limbo in police custody for up to 72 hours before a bed has been found.

A custody officer could be forgiven if, after perusal of the revised S.136, they exclaimed “I can detain this person under S.136 and that gives another 24 hours to find a bed!”

But would this be legal? My first response to this scenario would be to say that it would not, but close reading of S.136 throws up complications.

Let’s look at what the MHA, and the Code of Practice, has to say.

The first thing that an AMHP would focus on is their duties under S.136. This is to be found in S.136(2):

A person removed to, or kept at, a place of safety under this section may be detained there … for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care.

The Code of Practice stresses:

The purpose of removing a person to a place of safety in these circumstances is only to enable the person to be examined by a doctor and interviewed by an AMHP, so that the necessary arrangements can be made for the person’s care and treatment.(para16.25)

An AMHP (myself included) would argue that in Scenario 2 Gary has been assessed, and therefore does not need another assessment. Would it not be an abuse of S.136 to use the powers simply to manage the PACE clock?

However, what is the precise wording of S.136(1), where it relates to the police’s powers?

This says:

If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons…remove the person to a place of safety.

What this section is saying is that all a constable has to establish in order to exercise their power is to be satisfied that a person appears to be suffering from mental disorder and is in immediate need of care or control.

They don’t have to worry about the niceties of assessment by an AMHP and a doctor, even though that is the legal consequence of using S.136.

Essentially, S.136(1) provides instructions for the police alone, as AMHPs would only be involved at that stage if the constable’s duty to consult with a mental health professional was being exercised.

S.136(2), however, provides instructions for the AMHP. The constable has no part in decisions relating to disposal of the person once detained, except for circumstances in which the police are required to manage the person.

So the custody officer in Gary’s case would certainly have the evidence of mental disorder. After all, Gary has had a full MHA assessment and a decision has been made that Gary should be admitted to psychiatric hospital. The custody office could equally conclude that, being mentally disordered, and having been arrested because of his behaviour, Gary was in immediate need of care or control.

He could also legitimately conclude that Gary, being definitely mentally disordered, would be better off in a S.136 suite than in a police station.

On this reading, there would be nothing in law to stop the custody officer from detaining Gary under S.136.

I just hope they don’t do this too often, or AMHPs are going to have an even greater workload.

Monday, 22 January 2018

Can a person be detained under more than one section of the Mental Health Act at once?

This is by no means as straightforward an issue as it may seem, and can from time to time create difficulties and anomalies.

While as a general rule, a person cannot be subject to more than one section of the MHA simultaneously, there are exceptions to this rule. There are also implications regarding whether or not certain sections can continue once a decision has been made.

I’ll look at some examples.

S.5(2)
The Code of Practice states that S.5(2) cannot apply “to a patient who is already liable to be detained under section 2, 3 or 4 of the Act”(para18.7).

If an informal hospital patient is detained under S.5(2) an AMHP has up to 72 hours to arrange an assessment with a view to detaining under S.2 or S.3. Once a decision has been made, and an application completed for S.2 or S.3, the S.5(2) detention ends. This also applies if the decision is made not to detain.

The Code of Practice states: “Although the holding power lasts for a maximum of 72 hours, it should not be used to continue to detain patients after the doctor or approved clinician decides that, in fact, no assessment for a possible application needs to be carried out, or a decision is taken not to make an application for the patient’s detention.”(para18.20)

Additionally, it needs to be borne in mind that detention under S.5(2) does not permit the patient to be moved from one hospital to another. If they are moved, for example from a general hospital to a psychiatric hospital, or vice versa, then the S.5(2) would automatically end.

What about S.2 to S.3?
Ah. If an AMHP assesses a patient who is detained under S.2 for assessment with a view to detention under S.3 for treatment, and makes the decision not to detain them, then, although best practice would be for the Responsible Clinician to discharge them from S.2, there is no requirement to do so, so the S.2 could legally continue to the end of the 28 day period of detention.

There are situations in which this could be justified. An example that springs to mind is where a patient has been detained under S.2 and the request to detain under S.3 comes within the first couple of weeks of the original detention. The AMHP may consider that it is too premature to consider detention under S.3, which could last for up to 6 months, and may think that the patient’s condition could improve sufficiently over the remaining time of the S.2 to make further detention unnecessary.

S.136
A similar rule as that for S.5(2) applies for detention under S.136. If an AMHP and at least one doctor have assessed and decided that a patient detained under S.136 does not need to be detained under the MHA, the S.136 can remain in force only while any necessary arrangements are made for the disposal of the patient, such as arrangements for informal admission or transport home. The Code also points out that someone subject to S.135(1) or S.136 cannot be placed on S.5(2), since S.5(2) only applies to inpatients.

The S.136 will also remain in force while arrangements are being made for a hospital that is able to take the patient if it has been decided to detain under S.2 or S.3. Of course, this will only apply until the end of the maximum length of detention of 24 hours.

Assuming there is a bed, then the S.136 ends as soon as the relevant application has been made. As the patient is then liable to be detained, this authorises the AMHP, the police or any other relevant person to hold the patient in custody until they can be transferred to hospital.

The same will apply for a patient detained under S.135(1) who has either been taken to a place of safety for assessment, or assessed at the place where the warrant has been executed.

Guardianship (S.7)
No-one can be detained simultaneously under both Sec.3 and S.7, as the Reference Guide states: “Once a patient subject to guardianship is admitted for treatment, the guardianship ceases.” (para8.99)

However, a patient subject to Guardianship can be detained under S.2 (and S.4) (para30.36).

Community Treatment Orders
Possibly because Community Treatment Orders were added to the MHA 1983 by the 2007 MHA, many years after the original drafting, it gets rather more complicated.

Because people can only be subject to a CTO if they are detained under S.3, people on CTO’s can be regarded as still subject to the original, latent, S.3.

The Reference Guide states unequivocally that someone on a CTO cannot be made subject to S.5(2)(para8.72). It goes on to explain that “because patients on CTOs can be recalled to hospital for treatment if required, it should not be necessary to make applications for their detention.”(para8.96) The Code states that “where the person is known to be on a CTO and compulsory admission is indicated, the recall power should be used”(para18.17)

You might think therefore, that no other sections of the MHA can be used with people on CTOs, but that is not necessarily the case. The Reference Guide recognises that in practice patients may end up being detained under other sections “if the people making the application do not know that the patient is on a CTO"(para8.96). It goes on to state:

An application for admission for assessment under section 2 or 4 does not affect the patient’s CTO. Nor does an application for admission for treatment under section 3 if, before going onto a community treatment order (CTO), the patient had been detained on the basis of a hospital order, hospital direction or transfer direction under part 3 of the Act. (para8.97)

So this does mean that a police officer, not being aware of a person’s status as being subject to a CTO, may legitimately detain someone under S.136.

Consequently, an AMHP and a doctor would still need to assess in accordance with the requirements of S.136, but if they decided the person needed to be admitted to hospital, they could then make arrangements for their recall to hospital under the rules for a CTO.

An application for detention for treatment under S.3 would automatically end a CTO, in the same way that a S.3 would end a Guardianship Order. However, the Code says, “an application for detention should not be made in respect of a person who is known to be on a CTO” (para15.17), so the correct procedure would be recall to hospital, followed by revocation of the CTO if necessary. That action will then reactivate the latent S.3.

If in ignorance, perhaps because the person on a CTO has turned up in another part of the country, they are then detained under S.2 or S.4, the recall and revocation process can be initiated once the person’s true status is known, and once the S.3 had been restored, any other sections would cease to have effect.

I hope that’s cleared up any confusion.

Monday, 18 December 2017

So you think you have what it takes to be an AMHP? The Masked AMHP’s Christmas Quiz!

The AMHP of the future?
Warning: Contains gratuitous examples of reprehensible practice.

Lots of people want to be AMHPs – they’re attracted to the glamour and status of the role, the reverence with which they’re regarded by psychiatrists, police and other professionals, not to mention the greatly enhanced salary that the role attracts.

But quite simply, not everyone is cut out to undertake this complex and demanding task.

So, despite the wishes of those who devised it, I’m exclusively revealing the top secret questionnaire that AMHP courses use, which is designed to identify those who are likely to make good AMHPs, and to exclude those who just aren’t going to make the grade.

Here are some typical scenarios that AMHPs are likely to encounter in their practice, with 4 possible answers.

You have assessed Kylie, a woman with bipolar disorder, at home, and have made the decision that she needs to be detained under the MHA. However, there is no bed. You are concerned about leaving her because of possible risks. While you’re waiting for a bed, do you:
a)    Attempt to get the Crisis Team to keep an eye on her in the meantime.
b)    Offer to put her up in your spare room.
c)     Secure her firmly to a chair with duct tape.
d)    Go home and open a bottle of wine.

You are planning to conduct an assessment of Derek at his home, but you have reason to think that he may resist and become violent. You ask the police to attend to assist, but they refuse. Do you:
a)    Obtain a warrant under S.135(1) MHA which gives a constable the power to enter the property, if needs be using force.
b)    Go to the house and call through the letterbox, offering to buy him a drink if he lets you in.
c)     Go round the back of the house with a crowbar, break in through a window and secure him firmly to a chair with duct tape.
d)    Go home and open a bottle of wine.

You have assessed Jessica at home, decide she needs to be detained, and for once there is a bed. However, Ambulance Control tell you that it will be at least 4 hours before an ambulance will arrive. Do you:
a)    Wait patiently for the ambulance, in order to ensure that she is safely dispatched to hospital
b)    Pop her in the back of your car and take her yourself, playing soothing music during the journey.
c)     Flag down a passing car, telling them you are an undercover agent, secure her in the back seat with duct tape and give instructions to the driver on how to get to the hospital.
d)    Go home and open a bottle of wine.

You’ve been called to assess Joanne, who is on a medical ward. Although there is nothing medically wrong with her, she is completely mute, so when it comes to interviewing her, she does not say anything. In order to fulfil your duty to interview in a suitable manner, do you:
a)    Explain the purpose of the interview and the importance of hearing her own views about what she would like to happen.
b)    Fluff up her pillow, get her a cup of tea and a doughnut, and stroke her hand while at the same time talking about fluffy kittens in order to get her to relax and open up.
c)     Secure her to the bed with duct tape and threaten to waterboard her if she doesn’t talk.
d)    Go home and open a bottle of wine.

Robert is detained under S.2 for assessment in a psychiatric ward, and the psychiatrist is recommending a S.3. You feel that continuing detention is justified, but the second S.12 doctor disagrees. Do you:
a)    Have an extensive discussion with both the doctors in order to reach a consensus of opinion.
b)    Take the dissenting doctor to the hospital canteen, buy them a cup of tea and a doughnut, and talk about kittens.
c)     Take the dissenting doctor into a side room, secure him to a chair with duct tape, and threaten to give him an acuphase injection unless he changes his mind.
d)    Go home and open a bottle of wine.

You’ve assessed Sylvia in hospital. She is currently detained under S.2. She has a long history of schizophrenia, and is prone to relapses, and you and the doctors have decided she needs to be detained under S.3 for treatment. However, her husband, who is the Nearest Relative, has objected to this. Do you:
a)    Decide to go to court to have him displaced as Nearest Relative.
b)    Take the husband out to a tea shop, buy him a lovely cream tea, and have a long chat with him until he changes his mind.
c)     Secure the husband to a chair with duct tape and threaten to pull his finger nails out with pliers unless he agrees.
d)    Go home and open a bottle of wine.

Donald lives a long way away, and has been removed from a train in your area and detained under S.136. He is in the S.136 suite. You have assessed him and conclude that he needs to be detained under S.2 for assessment. You contact the bed manager, who states that, as the patient is registered with a GP outside the Mental Health Trust’s area, they have no responsibility to find him a bed. The S.136 detention will run out in 6 hours. Do you:
a)    Find out where he’s from, contact the bed managers for his area, and try to get a bed in his home area.
b)    Put him up in your spare room.
c)     Break into the bed manager’s office, secure him firmly to a chair with duct tape, and suggest he finds a local bed straight away, while you wield a lump hammer in a threatening manner.
d)    Go home and open a bottle of wine.

How did you score?

Mainly A’s – You’ve definitely got what it takes to be an AMHP.
Mainly B’s – You’re a lovely person, but too lovely to be an AMHP
Mainly C’s – Erm, have you thought about a career in MI5?

Mainly D’s – You’d make a lousy AMHP, but you’re ideally suited to a job in the Conservative cabinet.

Sunday, 10 December 2017

Should GP’s be involved in MHA Assessments?

It is a disciplinary offence for a GP not to have
a stethoscope around their neck at all times
An AMHP recently emailed me about whether or not a patient’s GP should be involved when they are being assessed under the Mental Health Act. The argument among the emailer’s AMHP colleagues appeared to revolve around whether an attempt should invariably be made to contact a GP and have them involved in the assessment if at all possible, or whether doing this without consulting with the patient first would amount to a breach of confidentiality.

I’ll deal with these two issues separately.

Does contacting a patient’s GP in relation to a MHA assessment amount to a breach of patient confidentiality?

In my view, this is an absurd position to have. The Reference Guide states:

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. (para 8.32)

The AMHP therefore has a duty to obtain as much background information as possible about a patient in preparing for a MHA assessment. The AMHP explicitly needs to consult with a wide range of people, and since a patient’s GP may know them very well, it would be ridiculous not to at least make an attempt to contact them. Indeed, it is often the GP who has initiated the request. The Code of Practice confirms: “AMHPs should also consult wherever possible with other people who have been involved with the patient’s care” (para 14.69)

It just does not make sense professionally to withhold information relating to their patient from a GP, and indeed the Code goes on to say:

Having decided whether or not to make an application for admission, AMHPs should inform the patient, giving their reasons. Subject to the normal considerations of patient confidentiality, AMHPs should also give their decision and the reasons for it to… the patient’s GP, if they were not one of the doctors involved in the assessment (14.100)

While the Code does bring up issues of confidentiality, I do not think the GP is one from whom such information should be withheld. Potential breaches of confidentiality are more likely to arise when consulting with, or obtaining information from, neighbours or other interested parties not related to the patient. In accordance with para14.100, our local AMHP Service writes to the patient’s GP to give the outcome of a MHA assessment as a matter of course.

Should GP’s be involved in MHA Assessments?

GP’s are mentioned in the Code of Practice, but only in relation to limited functions under the MHA. For example, in relation to the function of Second Opinion approved doctors (SOAD) when it suggests that a GP may be consulted in connection with a part 4A certificate (for authorising treatment). GP’s are also mentioned in para 34.12, in relation to constructing an after-care plan under the Care Programme Approach.

However, both the Reference Guide and the Code of Practice stress the importance of assessing doctors having previous knowledge of the patient in question. The Reference Guide states:

At least one of the doctors should, if practicable, have had previous acquaintance with the patient. Preferably, this doctor should have treated the patient personally. (para 8.40)

Para 14.73 reiterates this virtually verbatim. While this may be the patient’s community psychiatrist, their GP will of course also qualify. It does not matter if the GP has only treated them for physical ailments.

If it was the GP who referred the patient for a MHA assessment, I will try to speak with them about the reasons for the referral, and ascertain whether there may be any physical factors affecting the person’s presentation, and of course, whether the GP has referred them first to the Crisis Team or Dementia Intensive Support Team, as this would constitute less restrictive options.

If it appears there is a need to conduct a formal assessment, I will see whether or not the GP is able to take part in the assessment. If the GP has a particularly good relationship with the patient, and many do, it could be very advantageous for the GP to attend the assessment.

This, however, is where the AMHP may encounter problems. In practice, GPs are frequently unable, or unprepared, to attend an assessment. They generally have other pressing commitments, such as their surgery. However, they will often be able to provide a medical recommendation. This saves having to find two S.12 doctors to attend the actual assessment.

In my experience, GPs will generally find time to see the AMHP at their surgery and provide time to complete a medical recommendation (although as most GPs rarely get involved in providing medical recommendations, they will need help with completing the form legally.)

Involving the GP in the process certainly fulfils the Code’s recommendation to have a doctor with “previous acquaintance”. Indeed, it can perversely often be even more difficult to get the patient’s own consultant to attend the assessment, or even to provide a medical recommendation.

So it is certainly preferable to involve the GP if possible, as the alternative is the less desirable option of having two S.12 doctors who do not have previous acquaintance. Indeed, the MHA and the Code are so clear about the importance of this that if neither of the doctors had previous acquaintance, an AMHP has to give detailed reasons on their application explaining why it was not practicable.

Wednesday, 15 November 2017

Can a person’s financial resources ever be considered when arranging for S.117 After Care? Recent Case Law

Regular readers of this blog will know how exercised I can become about S.117 after care entitlement, especially when that entitlement is being concealed or misrepresented to patients by local authorities. Indeed, one of the commonest enquiries I receive is from relatives of people entitled to S.117 who are, to put it bluntly, being hoodwinked by local authorities who are at best ignorant of their duties, and at worst seek to defraud patients out of their money.

And so to a recent judgment from the Court of Appeal concerning a case that has been meandering through the courts for some considerable time, no doubt at considerable expense.

The case concerns a man called Damien Tinsley. Back in 1998 he was hit by a car while cycling which caused considerable brain damage and left him with an organic personality disorder. He ended up being detained under S.3 MHA, and was discharged to a mental health nursing home. In accordance with the requirements of S.117, the costs were paid by Manchester City Council.

In 2005 he was awarded damages approaching £3.5 million, of which £2,890,257 represented the costs of future care.

Interestingly, it was successfully argued during this court case that “the relevant authorities were entitled to have regard, when deciding how the claimant’s needs were to be met, to the resources available to them, and he concluded that they would not fund either a care regime which the claimant was prepared to accept (namely, accommodation at home) or even the care regime which the judge found to be reasonable.”

The consequence of this was that from that time Mr Tinsley has been using the settlement to fund his care, which has included the purchase of accommodation for him to live in.
After a number of years a new deputy was appointed for Mr Tinsley by the Court of Protection, who took the view that the Manchester “has always been obliged to provide him with appropriate after-care services” and in 2010 the deputy started to pursue Manchester for both a refund of the money Mr Tinsley had paid as well as damages.

The case ended up in the High Court, where it was concluded that it was unlawful for Manchester to refuse to pay for after care “on the basis that Mr Tinsley had no need for such provision because he could fund it himself from his personal injury damages.”

Manchester again appealed, and the case finally arrived at the Court of Appeal, which issued a judgment in October 2017.

On the face of it, it would appear perfectly reasonable for the money that Mr Tinsley had received in damages for disabling injuries that were not his fault, and which were specifically identified to cover the cost of his current and future care, to be spent on that care. After all, huge sums are frequently paid by the NHS for damage to patients which is designed to cover their long term care needs.

However, the issue here is that of entitlement to S.117 after-care, and the basic principle that after-care for the purpose of meeting a person’s mental health needs cannot be charged for.

So what did the Court of Appeal conclude?

Manchester submitted that “the mere fact that an obligation is imposed on it by s.117 to provide after-care services to persons compulsorily detained pursuant to section 3 of the Act does not require it to provide, or arrange for the provision of, such services if a claimant has funds available for that purpose”.

In a lovely paragraph, the Court demolished that argument:

This is an impossible argument… A refusal to pay for such services is effectively the same as providing such services but charging for them.  The House of Lords has made it clear in Stennett that charging persons such as the claimant is impermissible.  Manchester is effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it cannot recover by the front.
.
The appeal by Manchester was therefore dismissed.

This has to be a harsh reminder to local authorities of their absolute duty to meet the expenses of patients entitled to after care under S.117, tempting though it may be, in view of the severe cutbacks to local authorities for social care, to seek to tap the person’s personal funds.

While it may seem perverse that even someone with unlimited funds is entitled to free care if they have once been detained under S.3 MHA, it is nevertheless the law.

Parliament had the opportunity when drawing up the Mental Health Act 2007 to remove this absolute entitlement, but it did not.

Parliament again had the opportunity to change the law when drawing up the Care Act 2014, which substantially amended S.117.


But it did not.

Tuesday, 31 October 2017

A Halloween Mental Health Act Assessment

It was late afternoon one 31st October. I had received a referral for Bert, an elderly man living alone in a cottage a few miles out of Charwood. His GP was concerned that he had dementia and was expressing severe paranoid symptoms, including being tormented by someone he called Mr Dark, who, he said, was entering his cottage, interfering with his possessions and stealing the electricity from his lights.

I popped into the GP’s surgery and got him to complete a medical recommendation for Sec.2. I then arranged to go with a psychiatrist.

The light was failing by the time we arrived at his cottage, in a remote location a little way outside the village, at the end of a narrow lane. The cottage was in a state of dilapidation; once thatched, many years ago this had been replaced by corrugated iron sheets, which were now rusting and ragged at the edges. The garden was overgrown and choked with brambles and nettles.

The psychiatrist and I made our way to the front door and knocked. A frail looking old man opened the door, and appeared pleased to see us.

“Come in, come in,” he said, without bothering to ask who we were, and led us into a heavily beamed room with a cooking range in the fireplace. We sat down on wooden chairs that were arranged around a large table.

I introduced myself and explained why we were there.

“Your doctor’s worried about you. He says that you’re worried about people coming into the house –“

“Not people,” he said, leaning into us. “Not people.”

“What do you mean?”

“Mr Dark. He’s not people. He’s not a person. He steals my light. He’ll steal my soul. He’ll extinguish me. He won’t let me alone until he’s taken everything and I’m just a husk.” He started to cry.

He continued rambling on in this vein. He looked terrified and exhausted. He couldn’t continue like this.

“How do you feel about coming into hospital?” I asked him.

“Hospital?” Some semblance of animation lit up his eyes. “I’ll go to hospital – as long as Mr Dark’s not there. Will Mr Dark be at the hospital?”

“No,” I said, “no he won’t.”

Although Bert appeared happy enough about informal admission, I did not feel he could make informed consent, and he might possibly change his mind before he got there. So the psychiatrist and I decided that it was best to complete an application for admission under Sec.2 MHA, to assess him further.

We completed the forms, and I told him he would indeed be going to hospital. This seemed to calm him.

I called for an ambulance, and the psychiatrist, as they always do, left.

Bert sat by the table, and rested his head on his folded arms. He appeared to fall asleep. By now night had fallen.

 That was when I heard a sound coming from upstairs. It sound like footsteps.

As far as I knew, Bert lived alone. I had established that he had no relatives in the area, only a sister who lived many miles away and was in a care home.

“Bert,” I said. He opened his eyes.

“Bert, is there anyone else in the house? Only I thought I heard someone upstairs.”

Bert’s face filled with dread. “He’s here! He’s coming for me.”

I was sure it must be rats. Most likely in a rundown old cottage. Rats.

I decided not to investigate. Instead, I rang Ambulance control to see how much longer they would be.

Then the door from the hall opened and someone walked in. A tall, gangly man with a pale face, coal black eyes, and a wide lipless mouth.

He pulled up a chair and sat down at the table.

Excuse me,” I said, as always polite. “What are you doing here? You’re not a relative are you?”

The man smiled broadly, revealing two rows of rotting teeth.

“A relative? No, I’m not a relative. I’m Mr Dark.”

He waved a hand and the lights in the room flickered and then went out.

Tuesday, 10 October 2017

Do photocopied, faxed or scanned MHA forms constitute valid documentation?

The issue of photocopied, scanned, emailed or faxed Mental Health Act medical recommendations and applications has arisen quite a bit lately, both in the Masked AMHP Facebook Group and in my local AMHP Service.

Here’s an example of a problem an AMHP reported:

Had a dispute today: I'd emailed a scanned copy of my application which was then printed out for conveyance of the patient as a bed became available 15 hours after my assessment. I completed my application remotely so they didn't have to be reassessed. I'd already informed the patient and Nearest Relative of my decision. I had a MHA administrator state they'd raise this as an incident and inform the patient that they were unlawfully detained unless I drove the originals to the hospital (I'd said I would post them). The rationale was their policy states it has to be the original and that no trust would accept a photocopy/scanned copy.

I would say that in cases where the hospital to which a patient detained under the MHA is a long way away (a not uncommon scenario nowadays!) it is fairly common practice to fax the forms to the receiving hospital so that they can be scrutinised prior to the admission. This also saves the problem of a patient arriving at a hospital only to find that there has been some non-rectifiable error rendering the paperwork, and the detention, invalid.

In such situations, however, the original paperwork will accompany the patient in the ambulance so that the originals can then be formally received by the hospital.

I had a situation recently where I had assessed a patient in our local Sec.136 suite and it was concluded that they needed to be detained under the MHA. The psychiatrists completed a joint medical recommendation for Sec.2 MHA, but as the patient was from another area, there was a delay of several hours while the patient’s home area arranged for a bed. I faxed a copy of the medical recommendation to the patient’s local bed managers.

As a consequence I was unable to complete an application before my shift ended. I left the medical recommendation at the hospital where the Sec.136 suite was located, and when a bed was identified during the evening an out of hours AMHP attended the Sec.136 suite, assessed the patient again, and completed an application under Sec.2 MHA.

Unfortunately (and through no fault of my own), when needed the original medical recommendation could not be found. However, the receiving hospital accepted the faxed copy in lieu of the original, and the patient was taken there, along with the original application form.

The patient was duly admitted to the hospital. The following day, the medical recommendation miraculously turned up and was transported to the hospital (don’t ask me how this happened; I suspect it was the Statutory Forms fairy.)

Clearly, this hospital was sufficiently satisfied that there was evidence that the patient was legally liable to be detained, that they did not insist on the original form before accepting the patient.

With delays in finding beds for detained patients becoming the norm, it is quite a common procedure for an AMHP to complete an application the following day, or even days later, at which point they may be in their office, while the medical recommendations are with the patient, for example where a patient is resident in a care home.

There can then be logistical problems in uniting the paperwork. Our AMHP Service’s business support officer is quite often employed in transporting wayward section papers from one place to another, so that they can eventually be received at a hospital.

All of this appears to indicate, however, that it is a matter of individual hospitals making their own rules about what constitutes a valid application.

It is not easy finding a definitive answer to this issue.

Richard Jones has a brief section on Faxed Forms. In the 19th Edition of the Mental Health Act Manual, he states on page 675:

Although only reg.25((2)(a) provides specific authority for a form to be served by fax, it is submitted that a faxed reproduction of a completed form can be acted upon if (a) the recipient confers with the signatory by telephone to confirm that the form was completed by the signatory; and (b) the original is delivered to the recipient at the earliest opportunity. The Mental Health Act Commission endorsed the use of faxed forms (MHAC, Sixth Biennial Report, 1993-1995, para.3.13). (I have been unable to locate a copy of the 6th Biennial Report, so I have to trust to the accuracy of Jones’ statement.)

Jones is referring to The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008.

These regulations contain the text of the MHA forms, but also has this to say about the delivering of forms to hospitals:

3(2) Any application for the admission of a patient to a hospital under Part 2 of the Act shall be served by delivering the application to an officer of the managers of the hospital to which it is proposed that the patient shall be admitted, who is authorised by them to receive it.
(3) Where a patient is liable to be detained in a hospital under Part 2 of the Act—
(a) any order by the nearest relative of the patient under section 23 for the patient’s discharge, and
(b) the notice of such order given under section 25(1), shall be served either by—
(i) delivery of the order or notice at that hospital to an officer of the managers authorised by the managers to receive it, or
(ii) sending it by pre-paid post to those managers at that hospital, or
(iii) delivering it using an internal mail system operated by the managers upon whom it is to be served, if those managers agree.

25(2)(a) relates to the Responsible Clinician’s barring order when a nearest relative orders the discharge of a detained patient, and states:

(2) In addition to the methods of serving documents provided for by regulation 3(1), reports under this regulation may be furnished by—
(a) transmission by facsimile, or
(b) the transmission in electronic form of a reproduction of the report,
if the managers of the hospital agree.

There appears to be no logical reason why this should not apply to all MHA forms. However, there is the clear proviso here that while this particular legal form can explicitly be faxed or emailed, it is with the agreement of the hospital managers. This appears to leave the hospital managers with discretion about what they deem to be an acceptable method of delivery.

Does the Code of Practice offer any clarification?

I’m not sure it does.

Para35.3 states:

If no hard copies of the statutory forms are available, photocopies of the original blank forms can be completed instead, as can computer-generated versions. The wording of the forms must correspond to the current statutory versions of the forms set out in the regulations.

Unfortunately, this only refers to the filling in of forms, and restating, as is well established, that as long as the wording accords with the regulations, the actual format of the form is irrelevant.

But then, para35.6 goes on to say:

This chapter distinguishes between receiving admission documents and scrutinising them. For these purposes, receipt involves physically receiving documents and checking that they appear to amount to an application that has been duly made (since that is sufficient to give the managers the power to detain the patient). Scrutiny involves more detailed checking for omissions, errors and other defects and, where permitted, taking action to have the documents rectified after they have already been acted on.

This paragraph is concerned with the difference between receipt and scrutiny. Unfortunately, it does not really define exactly what “physically receiving documents” means.

I suppose on the plus side, one could quote this to an intransigent hospital manager and argue that receiving a valid copy of a form is the same as receiving the actual original copy.

One has to look elsewhere to find guidance on the legality of forms that are not in the traditional handwritten form.

The Ministry of Justice is very keen on reducing paperwork and speeding up the process of law. For example its website lists electronic copies of literally hundreds of legal forms, and offers the helpful advice: “Save a downloaded form and fill it in electronically, or print a form and fill it in by hand.”

Our regional Magistrates’ Courts group (the area covering the whole of South East England) has entirely dispensed with the old system of applying to a magistrate for a warrant under Sec.135(1) or (2).

For as long as I have been an AMHP, and ASW before that, the procedure has been that an AMHP must manually complete the paperwork for applying for a warrant, then attend the local magistrates’ court, have a word with the court clerk, and then wait for a gap in proceedings in order to convince a magistrate that they should grant the warrant.

That system has now changed. An AMHP now books a slot online for a telephone consultation. They then complete electronic forms and send them by secure email to a central address. After a 10 minute discussion with a magistrate situated a hundred or more miles away, the magistrate (if satisfied) then electronically completes and signs the warrant and emails it to the AMHP. This form can then be infinitely copied, and each is regarded as the original valid warrant, with only an electronic signature.

If this is considered valid for warrants under Sec.135(1) & (2) MHA, then who is to say that the same should not apply to all the other MHA forms?