Wednesday, 27 August 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, 23 August 2014

The Case of QR: Capacity and Tenancy Agreements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, 18 August 2014

When is a MHA Assessment Not a MHA Assessment?

A: When there are alternatives.

Not very funny, I know, but then neither are the inappropriate requests we sometimes get when on AMHP duty.

Take Babs, for example.

Babs was a lady in her 70’s living alone. A call came through to the AMHP office from her social worker insisting that she be assessed under the Mental Health Act.

The social worker said that Babs had been referred to social services by a neighbour because for a week or so the neighbour had been passing food to Babs through her window.

Babs had called out to the neighbour one day, asking them to get her some food and waving some £5 notes out of the window. She said that she had lost her key, and couldn’t open the door to get out. The neighbour at first did what she was asked but became increasingly concerned about the situation.

The social worker visited Babs and managed to help her get a new key. She arranged for a keysafe to be fitted, so that a spare key could be kept, and home carers could then be sure of getting access.

But Babs then said she didn’t need any home care. The social worker was concerned that Babs was not getting adequate nutrition, and called for an assessment under the MHA.

There was, however, only sketchy evidence that Babs had a mental disorder. In any case, the local procedure was for the older people’s intensive support team to become involved. Their function was specifically to avoid hospital admission, and could offer intensive home support and assessment, including the use of the MCA to provide alternatives to hospital admission if the person was assessed as lacking capacity.

The social worker huffed and puffed a little, but eventually agreed to making a referral to this team.

Formal MHA assessment avoided. After all, it had to be necessary to explore the least restrictive options before considering detention.

A few days later, the AMHP office phone went again. This time it was a worker from the older people’s intensive support team. She was requesting a formal assessment under the MHA for Babs.

The conversation went something like this:

Masked AMHP: Hi there, how can I help you?

IST worker: I’m at Babs’ house. Our team’s been visiting her daily for the last few days. When I called today, I couldn’t get any reply. I tried to use the spare key, but she had a door chain on. I called the police, and they’ve managed to get in. I found Babs in bed. She was not happy to see us, I can tell you.

MA: So what’s the exact problem today?

IST: Well, we’re planning to set up home care to go in twice a day, but they won’t be able to get in if she puts the door chain on.

MA: Does Babs have a mental disorder?

IST: Well, it’s not at all clear. She seems a bit depressed, and her memory’s poor.

MA: So let me get this clear in my mind. You’re asking me to visit Babs with two doctors with a view to detaining her in hospital under the Mental Health Act, because you’re concerned that home carers may not be able to get in the house because she might put her door chain on?

IST: Ye-ees…

MA: Are the police still there?

IST: Yes, they are.

MA: Is it possible that they could persuade her to let them remove the chain, so that this situation won’t happen again?

IST: Well, that would be a solution. If we can get her to agree to that, then we could carry on with out home care plan.

MA: And that would be the least restrictive option. And then she wouldn’t need to be admitted to hospital.

IST: That’s right. I tell you what I’ll do. We’ll see if we can get her to have the chain removed, and then I’ll get back to you.

MA: That’d be great.

Thirty minutes later:

IST: Everything’s fine. We’ve removed the door chain, and she’s agreeing to the home care. I’m happy to withdraw my request for a MHA assessment.

MA: That’s great.

Thursday, 14 August 2014

Why Does a Section 3 Last for Six Months?

I was at a committee meeting of the Mental Health Faculty of the College of Social Work the other week, and we were discussing the new Draft Code of Practice with representatives from the Department of Health (as you do), and making suggestions for changes.

One of the suggestions related to the length of time it takes for patients’ appeals and referrals to the Tribunal following a Sec.3., as it can often be 2-3 months before an appeal is heard. It was suggested that the new Code should include guidance to the Tribunal to hear these appeals much more quickly.

While we were talking about this, I suddenly wondered why detention  for treatment under Sec.3 lasts for a whole six months in the first place. This got me thinking.

Being The Masked AMHP, I just love mental health law. I wrote a blog post a while ago about the Lunatic Asylums Act 1853, one of the predecessors of the Mental Health Act. There were clear references even that far back of legislation that eventually evolved into Sec.2, Sec.3, Sec.4 and even the police powers of Sec.136.

The history of mental health legislation tends to reflect, and be enacted in response to, changes in the approach to the treatment of mental disorder. In Victorian times, there were no treatments at all for mental illness, and therefore legislation was about the humane containment of “lunatics” until they eventually spontaneously recovered, if ever.

The Lunacy Act 1890 laid down the duration for “reception orders” for admitting and detaining “lunatics”. The first spell lasted for one year. If renewal was required, this would last for 2 years. A further renewal would last for 3 years. After that, the order could be extended for 5 year periods. And judging by the records of lunatic asylums from the period, people could often be incarcerated for their entire adult lives.

However, by the time the Mental Treatment Act was enacted in 1930, the concept of “treatment” was even being reflected in the name of the legislation. Although parts of the older Lunacy Act still remained, the Mental Treatment Act introduced the concept of voluntary patients, people who recognised that they were unwell, and who were agreeable to receiving some form of treatment in a psychiatric hospital.

There was also a category for “temporary patients”. These were people deemed to have mental illness by two medical practitioners, but who were not prepared to reside in a hospital on a voluntary basis. The first period of detention would last for 6 months, and this could be extended, in three month increments, up to a maximum of 12 months. After that, the patient would have to be “certified” in writing by the Medical Officer under the Lunacy Act.

Both of these Acts were repealed by the Mental Health Act 1959. Even the name of this act contained the implication that Parliament was convinced that a state of mental “health” could be achievable.

Sec.25, the forerunner of the 1983 Act’s Sec.2, introduced a strict time limit of 28 days for assessment. It could not be extended. Sec.26, the forerunner of Sec.3, for treatment, then lasted for up to 12 months. It could be extended for a further 12 months, and after that for 2 years at a time.

The legislators of the Mental Health Act 1983 clearly thought that an order for detention lasting 12 months was out of order (cough), so reduced the duration to 6 months, with a further 6 month renewal, and 12 months thereafter.

But the 2007 Act, which amended the 1983 Act, left the lengths of time for Sec.3 unchanged. Additionally, when introducing Community Treatment Orders, they used the same timescales.

As regular readers of this blog will know, I am so incredibly ancient that I was actually a Mental Welfare Officer under the 1959 Act, and used this Act to detain several people under both Sec.25 and Sec.26.

Back then, it was not unusual for mental patients to spend many years in hospital, either informally, or detained. There were large long stay hospitals all over the country. There was very little in the way of treatment in the community.

But the drive since then has been to change the entire approach to the care and treatment of people with mental disorder from being centred around a hospital base, to being centred in the community, with admission to hospital being the exception rather than the norm. This has undoubtedly been helped by new antidepressants and atypical antipsychotics.

It is now very rare for patients to be detained under Sec.3 for as long as 6 months. In fact, when I inform patients I have assessed that I am detaining them under Sec.3, and that this will last for up to 6 months, I always hastily add the proviso: “But it’s very rare for someone to be detained for that long. Usually, people are not detained for more than two or three months.”

So taking into account that treatment and practice now means that it is unusual for a patient to be detained for a full six months, why was this not addressed back in 2007?

Since there has been a steady reduction in legal lengths of detention over the last century or so, why was the length of detention under Sec.3 not shortened further to reflect modern practice? There is a case for arguing that these timescales contravene the Human Rights Act.

I would therefore like to suggest that Sec.3 should last for no more than three months, with renewals lasting only for another three months at a time. CTO’s should perhaps have a similar time scale.

I know that this cannot be addressed by a Code of Practice, and would require a change in primary legislation. But how about it?

Sunday, 27 July 2014

If The Masked AMHP Had a World Cup Commentary

Fabio:              Well, here we are on a fine day, not a cloud in the sky. The Masked AMHP’s sitting at his desk in the AMHP Office, chewing at the bit to take a referral. It’s a quiet day so far, isn’t it, Adrian, but who knows what could be just around the corner?

Adrian:            That’s right, Fabio, but look! Just as he’s settling back to read the paper –

Fabio:              It looks like the Guardian to me, Adrian –

Adrian:             I believe you’re correct there, Fabio – but The Masked AMHP’s  mobile’s now ringing, he’s picking it up – and he’s taking notes!

Fabio:              Just look at the skill there! He’s asking pertinent questions at the same time as he’s madly scribbling on his notepad! What a consummate professional!

Adrian:            And just look at the ease with which he writes down all the salient details! From here it looks like it’s a referral from the Home Treatment Team. It’s for a woman in her 40’s called Dolores, with a long history of schizophrenia, who’s been refusing her depot injection. Home Treatment have been trying to persuade her to take oral medication –

Fabio:              Looks like Quetiapine to me –

Adrian:            I do believe you’re correct there, Fabio. Hard to tell, The Masked AMHP’s handwriting leaves something to be desired!

Fabio:              No-one’s perfect, not even The Masked AMHP!

Adrian:            Never a truer word, Fabio, never a truer word. Anyway, she’s refusing that too, and becoming increasingly psychotic!

Fabio:              Looks like The Masked AMHP’s going to have to go out on this one, Adrian!

Adrian:            You’re right there, Fabio! And just look at that! A quick browse through his contact list and he’s got two Sec.12 doctors on board! What a mover!

Fabio:              That was a bit of luck there.

Adrian:            Luck’s got nothing to do with it! The Masked AMHP knows all the Sec.12 doctors who’re wanting to build swimming pools or saving up for a BMW 7 Series.

Fabio:              And they’ll never turn down a chance for a quick 170 quid.

Adrian:            You’re not wrong there, Fabio.

Fabio:              That’s all well and good, but what about a bed? He’s ringing the bed managers, but he doesn’t look like a happy bunny!

Adrian:            He’s muttering something about the nearest bed being in Harrogate!

Fabio:              Phew! That’s 300 miles away! He won’t get the local ambulance service to transport a patient there!

Adrian:            He’ll have to get a private ambulance for that little job.

Fabio:              The Masked AMHP’s Trust must have deep pockets, Adrian.

Adrian:            Either that, or they’ve got no common sense.

Fabio:              A bit close to the knuckle there, Adrian.

Adrian:            But seriously, doesn’t this put paid to any Mental Health Act action today? There’s no point in going out to assess if there’s no bed, surely?

Fabio:              Au contraire, Adrian. The Masked AMHP’s legally bound to make an assessment. And don’t call me Shirley.

*   *   *

Adrian:            Well here we are outside the patient’s house. Nice little suburb, by the look of it – but look at that! There’s a broken window, and the TV’s out on the front lawn! Doesn’t look good to me, Fabio!

Fabio:              But ever the professional, The Masked AMHP’s calmly sitting it out, waiting for the doctors to arrive.

Adrian:            Perhaps we can turn to our guest expert in the studio for an opinion. Tell me, Richard, what do you think he’ll go for here? Section 2 or Section 3?

Richard Jones: (For it is he) Of course, we mustn’t jump the gun. An AMHP will always have to consider the least restrictive option before resorting to a formal application under the Mental Health Act. But as a rule of thumb – Section 2 if you don’t know the patient, or there’s been a significant change in presentation requiring a fresh assessment, and Section 3 if the patient is known and the appropriate treatment has been decided. But I’d probably tend to favour a Section 2 if the patient’s in the community, especially in these circumstances. Of course, the new Draft Code –

Adrian:            Thanks for that Richard – but look at what’s going on! The doctors have arrived, they’ve all had a bit of a chinwag in The Masked AMHP’s car, and now they’re going to the front door!

Fabio:              What are the odds on The Masked AMHP getting through the door, do you suppose, Adrian?

Adrian:            Well, judging from past performance, he can be a nifty little mover in a tight spot.

Fabio:              There’s Dolores, she’s opened the door – and The Masked AMHP is engaging her in conversation!

Adrian:            And look at that – foot in the door, stepping forward – and they’re in!

Fabio:              Amazing bit of footwork from old Masky there.

Adrian:            Now they’re in, he’s telling her the purpose of the visit.

Fabio:              Ever the professional. Oh and look! She’s asked him for his ID and he’s showing her his card!

Adrian:            Is that a yellow card, Fabio?

Fabio:              No, it’s just a trick of the light.

Adrian:            Well, Dolores is cooperating with the assessment so far, she’s even telling them about the voices she’s been hearing telling her not to take her medication!

Fabio:              It’s going smoothly so far, but it could still be an early bath for The Masked AMHP.

Adrian:            Well I didn’t expect that! She’s saying she’ll agree to an informal admission! Isn’t that offside?

Fabio:              Don’t get me started, Adrian!

Adrian:            Well they’ve concluded the assessment – now it’s decision time. What do you think Richard – Section 2, Section 3, or – Oh, and they’ve gone with the informal admission.

Fabio:              Bit risky that, don’t you think? What if she changes her mind?

Adrian:            I think old Masky’s weighed it all up, and he’s gone for the less restrictive option.

Fabio:              But couldn’t he have gone with Home Treatment?

Adrian:            You’re forgetting – they’ve already tried Home Treatment and it didn’t work. So that only leaves informal admission, or detention under the Act.

Fabio:              Masky’s on the phone to the bed managers – and he’s smiling! It can only mean one thing! They’ve used a leave bed and got her into a local hospital.

Adrian:            That’s cause for celebration, all right!

Fabio:              Well, they think it’s all over – it is now!

Monday, 21 July 2014

The New Draft Code of Practice: a Brief Overview

I always thought that the revised Code of Practice introduced following the MHA 2007 was overall a fairly useful and easy to follow piece of guidance. However, cracks have been showing for some time, arising from implications of the MHA/MCA interface, the Human Rights Act, the Equality Act, changes in case law, and such scandals as Winterbourne View and of course, the Bournewood Gap, which was not, as hoped, bridged by the MCA and DOLS.

So now a new Draft Code has been issued, with a pretty tight time period for consultation: published on 7th July 2014, the consultation period ends in the middle of September.

At 371 pages, it’s at least as long as the previous Code. Although many chapters remain largely unchanged, there are several new sections which were not in the 2008 Code; for example, there is a new chapter on Equality and Human Rights.

The physical layout of the Code is rather clearer than the old Code, grouping the chapters into related sections: Using the Act; Protecting patients’ rights and autonomy; Assessment, transport and admission to hospital; Additional considerations for specific patients; Care, support and treatment in hospital; Leaving hospital; and Professional responsibilities.

The accompanying document, Stronger Code: Better Care, helpfully summarises the main changes in the new Draft Code, and goes through these chapter by chapter. This document also contains a wide ranging series of questions to facilitate the consultation process. I would recommend that anyone with a personal or professional interest in the Mental health Act should at the least read through this document, which, at 50 pages, is much shorter than the Draft Code itself.

Using the Act
Chapter 1 outlines five overarching principles, stressing that “they inform decisions rather than determining them.” The DoH comments that they are intended to “focus on an individual patient’s recovery, better reflect the current and future health and care system, and which clarify the roles of all professionals in ensuring high quality and safe care for individuals subject to the Act.”

These are a rather more detailed than in the old Code, and I feel it is worth reproducing them in their entirety here:
  • Least restrictive option and maximising independence: Where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. Wherever possible a patient’s independence should be maintained with a focus on recovery.
  • Empowerment and participation: Patients, their families and carers should be fully involved in decisions about care, support and treatment.
  • Respect and dignity: Patients, their families and carers should be treated with respect and dignity and listened to be professionals.
  • Purpose and effectiveness: Decisions about care and treatment must be appropriate to the patient, and must be performed to current national guidelines and/or current, available evidence based practice.
  • Efficiency and equity: Providers, commissioners and other relevant organisations should work together to ensure that the quality of commissioning and provision of mental health care services is equivalent to physical health and social care services.
Chapter 3 is the completely new chapter on Equality and Human Rights. This explicitly addresses the relevant legislation to consider in conjunction with the MHA, ranging from the 1948 UN Declaration of Human Rights through to the Health and Social Care Act 2012. It introduces the “PANEL” principles: Participation, Accountability, Non-discrimination and equality, Empowerment and Legality.

Protecting patients’ rights and autonomy
Nine chapters are included under this heading, including chapters on information for patients, nearest relatives, carers and others; the nearest relative; independent mental health advocates; wishes expressed in advance; and the Tribunal. The DoH comments that it has taken on board the investigations into Winterbourne View and has “strengthened wording in the revised Code” in order to ensure that patients have a say in their own care and treatment.

The new Code stresses the importance of allowing patients to make and receive communications from relatives and others, explicitly including email and internet access. I am aware from the experiences of bloggers with mental disorder, that this has not always been the case.

The DoH explicitly states:
“Throughout the Code, we make it clearer that families, carers and ‘nearest relatives’ (who have specific powers under the Act with regard to the care of the patient) should be involved in decisions about care and treatment. Although the current Code already states this, it frequently does not happen, so we have strengthened references to the role of families, carers and other supporters throughout.”

Assessment, transport and admission to hospital
This includes a new Chapter 13, devoted to mental capacity and deprivation of liberty. The accompanying document states:

“Chapter 13 has three main objectives. First, it explains the key principles of the MCA and makes clear the relevance of these principles to those working with the Act. Second, it provides guidance (including a flowchart) that enables professionals to determine whether an individual should be subject to the Act or DoLS. Third, a case study illustrates how professionals might determine in practice between the different regimes.”

This chapter summarises the Mental Capacity Act, and the five fundamental principles of the Act, and gives examples of the sorts of acts that can be conducted under the MCA, and what can or should be done under the MHA. This includes explicit guidance on treatment for physical conditions for patients detained under the MHA.

This section helpfully states that: “The fact that an individual is being assessed or treated for a mental disorder does not mean that they lack capacity.” This seems to be a fact that is frequently overlooked when considering the MHA/MCA interface.  It also suggests that “if, however, a patient requires treatment for an injury resulting from mental disorder (eg they have as a result of a hallucination or delusion broken their arm) and the treatment for that physical condition does not alleviate or prevent a worsening of the mental disorder, then the treatment is unlikely to fall within the Act”.

This clearly differentiates between acts done as a direct result of a mental disorder, for example, taking a deliberate overdose or deliberately self harming with suicidal intent, and accidental injuries arising incidentally of the mental disorder. I hope that this guidance will help to prevent further situations such as Kerrie Wooltorton, who successfully refused lifesaving treatment after drinking antifreeze, and the case of P, a 17 year old who was refusing treatment for a paracetamol overdose, both of whom I have written about on this blog.

Chapter 14 looks at applications for detention in hospital, and includes a rather brief (2 paragraphs) discussion of the use of Sec.2 and Sec.3. Perhaps this is deliberate, as the DoH ask the question:

“What further guidance could the Code give professionals to support their decision making between the choice of adopting section 2 or section 3 for individual patients?”

I am increasingly aware of situations arising where a Sec.3 for treatment might be applied for, were it not for the fact that at the time of the assessment there are no beds available. This makes it impossible for the medical practitioners to complete their recommendations, as they must be able to put the name or names of a hospital where the patient can receive appropriate treatment. One psychiatrist wondered whether he could attach a list of all the inpatient facilities in the country. I think he was being ironic.

The above scenario either results in an abortive assessment, with the possibility of an AMHP having to convene a further assessment with two new medical practitioners once a bed has been identified, or the two doctors completing their recommendations for Sec.2 and then giving them to the AMHP, who then has to wait until a bed is available before they can complete an application.

Of course, all professionals must adhere to the highest standards of decision making in order to comply with the requirements of the Act, but it might be helpful for the Code to contain some guidance as to how to approach some of the realities of practice under the MHA, such as the dire shortage of psychiatric beds for children, adults, older people, and people with learning difficulties.

There is a new Chapter 16 on police powers and places of safety. The DoH refers to the report A Criminal Use of Police Cells, noting that police cells are being routinely used or Sec.136 detention, rather than this being the exception. It also notes that this report recommends that the time limit for Sec.136 should be reduced to 24 hours. The DoH is suggesting that the draft Code makes it clear that “a person should spend no longer than necessary in police custody and that good practice sets an upper limit of 24 hours.”

Additional considerations for specific patients
These chapters cover a range of specific patients. These include patients under the age of 18, including a whole new Chapter 19 providing guidance on the legal framework as it applies to children and those under 18; people with learning difficulties or autistic spectrum disorders; people with personality disorders; and patients concerned with criminal proceedings.

Chapter 19 aims to clarify existing guidance, such as assessing competence for those under 16, and capacity for those under 18, issues of deprivation of liberty, and the contentious “zone of parental control”.

The DoH asks the question: “In relation to the ‘zone of parental control’, do you think that this is a helpful term? If not, do you have any suggestions for an alternative term or is it sufficient to explain that there are limits to decisions that parents can take for their children?"

Care, support and treatment in hospital
The draft Code includes a new Chapter 26, devoted to the use of restraint, seclusion and segregation, and are intended to support the issues raised in the document Closing the Gap, which I wrote about in Community Care in January 2014.  It is also designed to accommodate the DoH guidance on the use of restrictive interventions in health and care services, Positive and Proactive Care: reducing the need for physical interventions, which I discussed on this blog in June 2014.

Leaving hospital
This section covers CTO’s, guardianship aftercare and the care programme approach. This includes changes arising from the Care Act, and a new Chapter 34 devoted to the CPA.

Professional responsibilities
This final section covers general topics that do not fit elsewhere, such as the functions and powers of hospital managers, conflicts of interest, and support for victims.

This is necessarily only a very brief overview. My initial thoughts are that it does go quite a long way to address changes in legislation and concepts of best practice since the last revision in 2008.

However, the draft Code of Practice is clearly still a work in progress. It is important to use the time available for consultation to put forward amendments and additions, in order to ensure that the new Code encourages best practice and provides a useful guide to what best practice should be, not just for the professionals at the sharp end of the Act, but also for those responsible for providing the infrastructure (such as properly staffed places of safety, an adequate number of appropriate hospital beds, and viable alternatives to hospital admission) without which the MHA will struggle to fulfil its statutory functions.

Thursday, 10 July 2014

Where the Police Fear to Tread: Two True Tales of Troublesome Teenage Boys

You may have read my recent blog about difficult situations with teenage girls while working out of hours. While I was having a look in the Masked AMHP’s vault, I came across a couple of incidents from the 1980’s which involved teenage boys, and a certain reluctance on the part of the police to intervene, which I thought I would share.


One evening I received a call from Charwood Police to attend as an Appropriate Adult under PACE (The Police & Criminal Evidence Act) while they interviewed a young boy who had been arrested for a distraction burglary.

Little was known about him, as he appeared unable or unwilling to provide much information. He was from a group of Irish travellers, who had settled on a piece of wasteland on the edge of Charwood. He had been arrested when he and an older boy had been reported for attempting to steal from a Charwood householder.

Distraction burglaries involve one of a pair engaging someone in their garden in conversation, while the other nips into their house and has a search for valuables. The older boy had made off, but the police had managed to catch Sean.

Sean was unclear about his surname, and appeared not to know his date of birth. All he knew was that he was 13 years old. This knowledge could have been influenced by knowing that he could not be remanded in custody if he was under 14.

I sat in on the interview, during which he admitted nothing, and appeared to know nothing. Having gone through the due process, the custody sergeant was keen to dispose of him.

This gave me a problem. As an Appropriate Adult, I had a responsibility for his welfare unless and until I could find an adult, preferably a parent, who could take on responsibility for him.

Sean was extremely vague about whether or not he had any relatives living in the UK. He said that his mother was in the Republic of Ireland, but was unclear as to the whereabouts of his father, or any other relatives. Unless I could find somebody, I would have to accommodate him in a local authority children’s home.

I discussed the problem with the custody sergeant.

“Do you think you could get an officer to pop over to the travellers’ site and see if there’s a relative there?” I asked hopefully.

The sergeant looked at me as if I had suggested that he take Sean home with him at the end of his shift.

“We’d be asking for trouble if a police car turned up there,” he said. “It’d be too dangerous. It’s strictly off limits.”

So what was I to do? I really did not want to place Sean in a children’s home if I could help it.

In the end, I decided I’d have to go there myself.

By now it was quite late in the evening. I cautiously entered the site in my car. The caravans all appeared to be in darkness. Although there were a number of vehicles on the site, there appeared to be no actual people. I wandered around somewhat apprehensively for a little while, then saw a face peering at me through a window in one of the caravans.

When the face saw that I had spotted them, it rapidly withdrew, but I went forward and knocked on the door.

After a pause, the door opened a little and a man looked suspiciously at me.

“I wonder if you can help me,” I began. “Do you happen to know a boy called Sean?”

“I’m not sure about that,” the man answered with a strong Irish accent.

“You see,” I continued. “I’ve got this problem. Sean’s down at the police station –“

“I don’t know anything about that,” the man interrupted.

“The police have finished interviewing him and he’s ready to be released. I’m a social worker, and unless I can find a relative, or at least a responsible adult who can take charge of him, I’ll have to put him into care in a children’s home.”

The man looked at me silently, considering what I had said.

At last, he said, “I’ll tell you what, you bring this young lad down here and I’ll see if I can find anyone who knows him and can take care of him.”

I went back to the police station, picked Sean up, and brought him back to the site.

The man opened the door of his caravan and examined the young boy for a moment.

“You come and get in here, son” he said to Sean at last.

“Yes, Dad,” Sean replied sheepishly, and slipped inside.

Sam and Stuart

It was late in the afternoon on an August Bank Holiday Monday when I received another call from Charwood Police. This time they had two 13 year olds who had been found by a passing police car hitchhiking down a quiet country lane. They said that they’d been threatened, and were in fear of their lives.

That August Bank Holiday weekend there had been a New Age Travellers Festival on a rural site a few miles outside Charwood. These two boys were there with the father of one of them.
New Age Travellers were particularly prevalent in the 1980’s and early 1990’s. They were mainly itinerant, travelling from one place to another fairly aimlessly in ramshackle convoys of old buses, ambulances, vans and other vehicles that had been converted into somewhat makeshift mobile homes, especially during the summer months, when they would move from one free festival or country fair to another.

They were essentially the tail end of the 1960’s/1970’s Hippy movement. Having had some pretensions to being a hippy in my teenage years, before getting a haircut and getting a job as a social worker, I had some sympathy for them.

But these boys were making allegations that could amount to child abuse. Their story was that they had been wrongly accused of a misdemeanour by some sort of ad hoc hippy parliament, and were escaping from some dreadful, but unspecified punishment.

Clearly, I was going to have to do some investigation and try to get to the bottom of it, otherwise I would have to place them in a children’s home, at least until the local social services office could sort something out the following day.

“Have you made any attempt to find the father?” I asked the duty sergeant.

“I expect he’ll be on the festival site,” the sergeant said.

“Yes, I know, but have you sent any officers out to try and find him, so we can find out what’s actually going on?” I had an inkling of the reply I would receive.

“I can’t send any of my officers out there,” he said. “Far too dangerous. Asking for trouble.”

So it looked like I would have to make my own investigations. Again.

I drove out to the site. By now the festival had finished, and many of the attendees had left, or were packing up.

There was nobody managing the entrance, so I drove over several fields that had been used for the festival until I reached a group of tents and vans. A few people were milling about, or just sitting round campfires, cooking or smoking.

I saw a man with long hair and a beard standing at the mouth of a yurt.

“Hello,” I said hopefully. I explained briefly who I was. “Do you know a couple of young lads called Sam and Stuart?”

“Yes I do,” he replied a little grimly. “Do you know where they’ve got to?”

I explained the situation to him.

“Come inside,” he said and ushered me into his yurt. It was quite a comfortable and surprisingly roomy space, with a potbellied wood burner in one corner, and a few beds which also stood in as seating. He said that he was Sam’s father, and Stuart was with them with the permission of his parents for the duration of the festival. Now the festival was over, they would be returning to another part of the country.

He told me to sit down, while he got the nominal leader of the group.

He came back with a pleasant looking middle aged woman. She explained that Sam and Stuart, far from being the innocents they were claiming to be, had actually been caught stealing minor items from others at the festival.

The habit of the group when a member had contravened one of their few rules (stealing was one of them), was to convene a meeting, confront the offender with their misdemeanour, and then suggest some sort of restitution. In the case of Sam and Stuart, their appointed job was to help to clean up the site. They had not wanted to do this, so had decided to run away.

There really did not appear to be any reason to put Sam and Stuart into care. The best solution was to return them to the traveller group, and they could then go on their way.

I took the father with me to the police station, where the boys looked rather forlorn, but not in any way fearful.

After getting some fish and chips from a local Chinese, which was open on the Bank Holiday, I took them all back to the camp and went on my way.