Tuesday, 27 September 2016

What Exactly is the Ministry of Justice Intending to Do with Mental Health Tribunals?


Almost everyone who is subject to a section of the Mental Health Act, including Sec.2, 3 & 4, Guardianship and Community Treatment Orders, is entitled to appeal against their detention.

Prior to the changes to the MHA made by the 2007 Act, the Mental Health Act Commission was responsible for arranging and overseeing these appeals. The 2007 Act, however, transferred this duty to the Ministry of Justice, and the Mental Health Tribunal became just one of the Tribunals in the First Tier system. These tribunals cover everything from employment issues to Social Security and Child Support.

A Mental Health Tribunal consists of a Judge, a consultant psychiatrist, and a specialist lay member, who is someone not a lawyer or a doctor but with a particular interest in mental health, such as a social worker or a nurse.  This ensures that there is a balanced perspective when assessing whether or not a detained patient should be discharged.

I have had mixed feelings about this transfer of responsibilities, not least because the now defunct Mental Health Act Commission kept useful statistics relating to what happened to people who appealed.

For example, in 2008, the last year that such records were kept, there were a total of 7295 tribunals. Of these, 967 patients were discharged, which amounts to 13% of all appeals.

However, in addition to this, 5862 patients who appealed were discharged by their psychiatrist prior to a hearing. In other words, it was clear that it was worth a patient appealing, as they would have a good chance of being discharged before the hearing simply because their psychiatrist either could not justify continued detention, or (Heaven forbid) could not be bothered to write a report. Even if the appeal did get to a hearing, they then had a 13% chance of being discharged.

Unfortunately, the Ministry of Justice does not keep such records, so we have no way of knowing this sort of information.

Anyway, the reason I am writing this blog is to highlight a document which has just been released by the Department of Justice, titled Transforming Our Justice System.

There are a lot of fine words in this document. It begins by boasting how wonderful our present justice system is, before stating:

“The transformation of the courts and tribunals across the country will be based on three core principles that build on its established strengths: Just, Proportionate, Accessible.”

It is also keen to save costs, and sees one of the ways of doing this as using technology to streamline the legal process.

It breezes through somewhat vague plans for the criminal and civil courts before reaching its plans for the Tribunal system, towards the end of the document’s brief 16 pages.

On the surface, there is nothing contentious about this section. It begins:

“Tribunals are an essential component of the rule of law. They enable citizens to hold the state and employers to account for decisions that have a significant impact on people’s lives. The hallmark of the tribunals system is the delivery of fair, specialist and innovative justice. That must not change.”

It is keen to adopt “a more inquisitorial and problem-solving approach, focused around the needs of individuals so that claimants can be more confident that their needs will be understood.”

It goes on to suggest that “Innovative ‘problem-solving’ opportunities will be created to improve the determination of a range of issues which have historically been spread across courts and tribunals. This ‘one stop shop’ approach is being piloted with property disputes which can be dealt with before one specialist Judge”.

And then it drops a bombshell: “The potential to extend this into other areas such as Mental Health and Employment will be explored.”

And that’s all. There is no detail as to exactly how these changes will come about.

But what the vision statement is saying is that the Ministry of Justice are seriously considering replacing the current Mental Health Tribunal, with its three members, with a single Judge.

They are actually thinking that it may be OK to dispose of the psychiatrist and the lay member.

In my view, the Tribunal psychiatrist has a very important role to play. They may be the only psychiatrist not employed by the NHS (or a private hospital) to interview and independently assess the patient. It is the patient’s only chance to put their views about detention to someone not involved in their treatment.

The lay member also has an important role to play, to explore the social dimension of the patient, and to provide a “lay”, if also expert, opinion.

Unless, like a Coroner, the Judge is qualified in both Law and Medicine, I find it hard to understand how a Judge alone can make the complex judgments required to reach a just conclusion in the absence of the other two Tribunal members.

I know it’s only mentioned in passing, that this statement is a mere outline, that there may be many changes before these proposals are initiated.


But we need to be on our guards, if we want the Mental Health Tribunal to continue to provide a check on the mental health system, and give detained patients a platform on which to be properly heard.

Thursday, 18 August 2016

What is the Mental Health Act For?

Working in a busy AMHP office triaging requests for assessments under the Mental Health Act, I am driven to conclude that often an AMHP’s role is as guardian and upholder of the law.

We can receive requests from a number of sources. They can come from a GP, or a care coordinator in a mental health team, or a mental health liaison nurse working in a criminal justice or medical hospital setting, or a psychiatric ward, or even a care home manager. They can also come from the police, either because they have detained someone under Sec.136, or because they have arrested someone who subsequently appears to be mentally disordered.

And of course, the nearest relative has a right under Sec.13(4) to request an assessment under the Mental Health Act. Although not quite: the Act actually states that the local authority must “make arrangements… for an approved mental health professional to consider the patient’s case with a view to making an application for his admission to hospital”, which isn’t the same thing.

These requests are not necessarily appropriate. More than that, our service is increasingly finding that requests for formal assessments under the MHA may not be triggered only after all other alternatives have been exhausted, but rather because of a shortage of suitable resources, or a failure of the system, or even because the referrer is reluctant to do their job.

Sometimes requests come from the duty worker in a community mental health team. They have taken a concerning call from a relative, or a GP, but either the care coordinator of the patient is on leave, or the patient has been referred to the team but a shortage of staff has meant that they have not been allocated a worker.

Sometimes requests come from someone such as a care home manager who believes that a MHA assessment is a fast track way of getting someone assessed by a psychiatrist.

And sometimes relatives contact the local community mental health team to express concerns about the mental health of their relative who is a patient of the team, and the person they contact advises them to request an assessment under Sec.13(4).

Here are a couple of real conversations I have had with referrers.

The Mental Health Professional

Referrer:        I’m a nurse in the Early Intervention Team. Jeremy, who’s 19, was referred to us by his GP, and I gave him an appointment to see him at our office today. I am referring Jeremy for a Mental Health Act Assessment.

Me:                 And what are your concerns?

Referrer:         His mother has given me a lot of information about his behaviour, which appears to indicate he is psychotic.

Me:                 His mother?

Referrer:        Yes. Jeremy refused to come to the assessment, but his mother did, and I had a long conversation with her about the problems.

Me:                But you haven’t actually seen him? We would expect someone making a request for an assessment under the Mental Health Act to have seen the patient first.

Referrer:       But he won’t come to an appointment.

Me:                Have you considered going out to see him?

Referrer:       Oh, that’s not necessary. I’ve made my assessment, and he definitely needs a MHA assessment.

Me:                I’m just a little surprised you feel that a conversation with his mother, without actually having made contact with Jeremy, is sufficient evidence to justify an AMHP and two psychiatrists knocking on his door.

Referrer:       I’ve made a professional decision that he needs a MHA assessment, so it’s your job to go out and assess him.

Me:               But Jeremy hasn’t actually been seen by a doctor or a mental health professional.

Referrer:      Are you questioning my professional ability to make an
                        assessment?

Me:               But all you’re basing your assessment on is reports from his mother. I really think you should make an effort to see him before making a decision about referring him for a MHA assessment.

Referrer:      But his mother says that he won’t see anyone. And anyway, I’d be concerned that he might be aggressive if I went to see him.

Me:               You haven’t convinced me that Jeremy needs a formal assessment under the MHA. But I’ll tell you what I’ll do. I can arrange for one of our AMHP’s to go out with you for a “look see”. Then at least there’s been an effort to actually see the patient. And we can take it from there.

Referrer:      But I’ve made a professional decision that Jeremy needs an assessment under the MHA. There’s no need for me to go out to see him.

Me:               Bangs head on table repeatedly

The GP

GP:              I’m requesting an assessment under the Mental Health Act for one of my patients, Giles. He’s in his 60’s, and he’s got terminal cancer which is metastasising, and Parkinson’s Disease. I arranged for our palliative care nurse to arrange to see him. When she rang up, he told her that he didn’t want to see anyone, and was going to cut the cancer out himself, since no-one was doing anything about it. We know he’s got a knife, which he keeps under his pillow, he’s told us about it before.

Me:              So has anyone actually seen Giles?

GP:              The nurse has spoken to him on the phone. His usual GP saw him a week ago.

Me:              But on-one’s seen him today? Because we would expect a doctor to have actually seen the patient before referring for a MHA assessment. From what you’ve told me, his current behaviour could be the result of physical illness. If the cancer is metastising, it might be affecting his brain and thought processes. The Parkinson’s Disease could also be affecting his mental state.

GP:              So you’re suggesting I go out and see him to see if there’s something physically wrong with him?

Me:              Yes. He might need to be admitted to a medical ward rather than a psychiatric unit. And he might even agree to an admission to hospital. That needs to be explored before we go down the MHA route, which should only be considered once all less restrictive options have been tried. 
 
GP:              But I’m frightened to go out in view of the fact he has a knife and he expressed aggression to one of my nurses.

Me:              You could ask the police to accompany you if you have concerns about your safety. After all, if an AMHP went out to assess, they’d probably want the police with them in view of what you’ve told us.

GP:              That’s a good idea! I’ll go out with the police, see if he’s physically ill, and then I can get back to you if I think the main problem is mental illness.

Me:              Yes.

(The GP contacted the AMHP service the following day to let us know that he didn’t after all need a MHA assessment, as the problems were mainly physical, and he’d been admitted to a medical ward.)

In response to the level of referrals which were deemed inappropriate, our AMHP Service has developed a protocol for referring, which has been circulated to all organisations who may refer for MHA assessments.

Among the requirements are:
  • For patients unknown to secondary services, the GP should first have seen the patient and considered alternatives.
  • For patients known to community teams but unallocated, that team should have made efforts to see and assess the patient first.
  • The referrer must have seen and spoken with the patient, or the patient must have been seen by another professional worker and advised of the concerns, unless there are clear, defensible reasons not to do so.
  • If the referrer is not a Clinical Team Leader/ Team Manager or senior worker then they will be expected to have discussed the referral with a senior member of their team in order to rule out alternative support or treatment options. For example:

o   Has the referrer considered a referral for a Social Care Assessment and/or Carer’s Assessment?
o   Has the referrer considered or made a referral to the Dementia Intensive Support Team or the Crisis Resolution Team to avoid an admission to hospital?
o   Has the person’s Crisis Contingency Plan to avoid admission been implemented?
o   Has the referrer considered and discussed with the patient an informal admission to hospital?
o   Has consideration been given to use of Mental Capacity Act and guiding Principles, including issues of capacity and consent?
o   Have all least restrictive alternatives to detention under the MHA been considered?

This brings me back to my initial statement at the beginning of this post. The Mental Health Act is designed to protect the liberty and other human rights of those deemed to have a mental disorder, to prevent coercion and forced hospitalisation if at all possible. A Mental Health Act assessment is therefore the last resort.

The AMHP Service should not be regarded as an emergency service. (This statement may surprise many, but in genuine cases of emergency, for example, someone standing at the top of a multi-storey car park threatening to jump off, getting an AMHP and two doctors to attend at that point would serve no useful function until the immediate crisis had been resolved via other emergency services.)

The Code of Practice states as its first guiding principle that the least restrictive option should always be tried first:
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 encouraged and supported with a focus on promoting recovery wherever possible.(para1.1)

It goes on to say:
Commissioners, providers and other relevant agencies should work together to prevent mental health crises and, where possible, reduce the use of detention through prevention and early intervention by commissioning a range of services that are accessible, responsive and as high quality as other health emergency services.(para.1.3)

So this protocol merely draws attention to the guiding principles of the MHA, and in particular para1.3.


Issuing this guidance has resulted in fewer inappropriate referrals over time. But hard pressed professionals, faced with a lack of “accessible, responsive” resources, will still try in desperation to use an AMHP to fill the gaps.

Saturday, 13 August 2016

Sec.136 and Compliance with Article 5 of the Human Rights Act 1998

Here is a guest blog, written by John Holden, an AMHP with  Surrey Emergency Duty Team, discussing the implications of Article 5 HRA in relation to Sec.136 MHA.

A primary function of the AMHP role is the protection of the liberty interests of the individual.  It is in tension with our duty to ensure the safety of those individuals and that of the public, alongside the promotion of their wellbeing.

I have mapped out my thinking regarding two related issues which straddle this tension, to seek people's views.  Both involve the nature of the relationship of Sec.136 Mental Health Act to the requirements of Article 5 of the Human Rights Act 1998, relating to the right to liberty, and demonstrate the complexity of our work having to take regard of the interface between domestic law and the requirements of the HRA.

The first follows from an interesting debate which has recently arisen amongst the AMHPs in my local authority, stemming from the bed crisis which is nationally affecting us all: the question of whether it is proper, or even lawful, to continue to detain someone under Sec.136 when they are able to consent to, or lacking capacity do not object to, hospital admission, but a bed is not currently available.

Some of our AMHPs, concerned about inordinate waiting times, which can exceed twenty-four hours, combined with the possibility that the person may change their mind, believe it is proper to do so. Others are passionately against the practice.  This is issue A.

The second, Issue B, arises from a concern I have had for some time about the compatibility of the direction in the Code of Practice, at para.16.51 with Article 5, where a person is concluded by a doctor to ‘have a mental disorder’ and therefore has to be seen by an AMHP before they can be released from detention under Sec.136.

Issue A:
Having looked at the statute and relevant aspects of the Code of Practice, it appears clear to me that domestic law provides a framework to authorise the continued detention of someone who is consenting to informal admission.

In brief, Sec.136(2) permits the continued detention of a person taken to a place of safety for up to 72 hours to enable 'him' to be examined by a registered medical practitioner, to be interviewed by an AMHP and, importantly for our purposes: ‘of making any necessary arrangements for his treatment or care’, i.e. the finding and subsequent offer of a bed.

Although the use of the term 'may' (be detained) permits the ending of detention prior to the statutory limit of ‘not exceeding 72 hours’, the Code of Practice guides (at para.16.50) that detention ends as soon as ‘suitable arrangements have been made’.  If a bed is not available it cannot be offered and suitable arrangements are in the process of being made, rather than ‘have been made’. Consequently the authority to detain remains in place.

However, having thought about this matter further, it occurred to me that my colleague’s passionate objection might find grounds in the question as to whether domestic law meets the requirements of the Human Rights Act 1998 and the injunction for the prevention of arbitrary detention following from Article 5. My examination of this question led me to the position that the continued use of detention can in fact be lawful, but in circumstances narrower than I had first thought.

My starting point was the fact that all public authorities are required to act in accordance with the Convention, within the scope provided by the primary legislation (Sec.6, HRA 1998) and to have regard to European jurisprudence (Sec.2, HRA 1998).

Importantly, this includes, in Stanev v Bulgaria (2012), the fact that the European Court of Human Rights considered ‘the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interests which might require that the person concerned be detained.  That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances.’ (para.143, my emphasis). 

Additionally, for persons detained on the ground of ‘unsoundness of mind’ (Article 5 (1)(e)) their continued detention must accord with the Winterwerp (1979) ruling: whereby the person must be reliably shown to be of unsound mind by a medical expert; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of such continued confinement depends upon the persistence of such a disorder.

It is also the case that any interference with a person’s rights under the European Convention of Human Rights must be proportionate.

Finally, public authorities have a positive duty to take reasonable steps to prevent a deprivation of liberty in situations where they know, or ought to know, that a deprivation of liberty is taking place (Stork v Germany [2006], para.102).

Therefore, where a person subject to Sec.136 has been examined by a doctor (or doctors) and has been interviewed by an AMHP, it would be reasonable to infer that the continued detention, for the making of suitable arrangements, would require that the person is found to be currently of unsound mind (see issue B below), the kind or degree of which warrants their continued detention and, irrespective of the provisions which may authorise the detention under domestic law, it, in addition, must be demonstrated to be necessary to continue that detention, in the person's or public's interests, and the measures taken must be seen to be proportionate to the ends for which the detention has proved to be necessary. This would include having explored all alternative options providing for less restriction.  If these criteria were not met, following from one's positive duty under Article 5 (particularly as the AMHP has become party to the detention), action would be required to seek to end the detention. 

I am not entirely clear how this should take place.  As far as I can see no agent, per se, has a designated power to do this (other than a Custody Sergeant in a police station).  Rather, the detention lapses at the point at which the suitable arrangements have been made.  This, however, implies that someone has made the judgment that the arrangements have indeed been made and that they are suitable.  Given that the doctor and the AMHP are charged with establishing the care and treatment needs and delineating what arrangements would be suitable to meet the identified need, it would imply that one or both would have a role.  If this were the case (given that Sec.6 HRA 1998 restricts decisions in respect of article rights' to be within the scope of the primary legislation) then there would be scope to act, as the condition of termination is defined by the Code and not by statute: there would be a cogent reason for the decision maker(s) to depart from the Code as the situation was in violation of the person's Article 5 rights.

It follows from the above that the situations which permit continued detention are therefore circumscribed.  The evidence must establish unsoundness of mind of a kind or degree warranting continuation of the nature of the compulsory confinement proposed (Re PS (an adult) [2007] para. 23 (ii)).  This would mean that they are likely to meet the general grounds for detention under the Act – although, it may not be necessary nor warranted to be admitted to hospital under detention.

It is to be remembered that, exercising the principle of least restriction, it is within the AMHP’s discretion not to seek to make an application - the balance being tipped towards promoting the person's liberty interests (whether the intention is to return the person to the community or to await a hospital bed).  The caveat to this is that if the person is to be admitted, then a lawful framework for their likely deprivation of liberty at hospital will need to be in place in advance of that admission.

The next step in the argument is to look at the important relationship between capacity to consent and deprivation of liberty.  As this relationship has an equal, determinative, role in both issue A and B, I would like to pause at this point to introduce issue B. 

Issue B:
This issue arises from a similar concern with regard to engagement of Article 5 and the risk of arbitrary detention.  The Winterwerp criteria referred to above were re-affirmed in Varbanov v Bulgaria (2000). At para.47, it was clarified that in urgent cases the necessary opinion of a medical expert can be obtained immediately after a person's arrest. However, it was explicitly specified that ‘the assessment must be based on the actual state of mental health of the person concerned and not solely on past events’, i.e. the unsoundness of mind has to be both contemporary and persisting, rather than latent and potential (unless rapid decline is indicated).

This is underscored by the fact that, as we have already seen, to qualify for continued detention the unsoundness of mind must be of a kind or degree which warrants that detention. This has always appeared to me to be to be at odds with the requirement of para.16.51, of the Code of Practice, where a doctor alone sees the person first, concludes that compulsory admission to hospital is not necessary and establishes that they 'have' a mental disorder - i.e. they are known to suffer from, but are not currently manifesting signs or symptoms of that disorder - the person's detention is to continue until they can be seen by an AMHP.  I have long felt that this contradiction was a cogent reason for departing from the Code of Practice and for the responsible doctor undertaking the examination to discharge the person from detention.

Although the initial duty would fall to the responsible doctor, where an AMHP has been informed that the person is not currently mentally disordered, the positive duty following from Article 5 would require them, at a minimum, to bring the doctor’s responsibility to their attention.

The role of capacity, consent and deprivation of liberty

It is important to remember that we are addressing concerns regarding the interface of the MHA 1983 with Sec.6 of the HRA 1998.  Issues A and B turn on the engagement of Article 5 and therefore whether a deprivation of liberty is occurring in each situation.  Capacity and consent, which have no role in criteria under the MHA 1983, take on significance at the interface of the two schemes as they play a role in defining whether a deprivation of liberty is likely to be occurring. Let's take these matters in turn.

Both issues A and B only arise if the person's situation can be considered to constitute a deprivation of their liberty.  If the particular situation doesn't, then there is no conflict with the domestic guidance and it's authority remains.  As we know, deprivation of liberty is a tricky beast.  Most importantly it is an 'autonomous concept'.  Although all deprivations of liberty are detentions, not all 'detentions' are deprivations of liberty (see Foka v Turkey (2008), para.75, where the ECtHR found no deprivation of liberty where a stay in a police station, lasting a few hours, did not go beyond the time strictly necessary to complete certain administrative functions).

The calibration of a 'detention' as to whether it amounts to a deprivation varies by the interplay of the 'Acid Test' and such factors as intensity e.g. whether coercion is involved (see Foka v Turkey 2008), and duration e.g. whether there is undue delay in the completion of process (see R(Sessay) v South London and Maudsley NHS Foundation Trust (2011)). I suspect, given the cautious approach advised by Baroness Hale in the Cheshire West ruling, the need to err on the side of caution would lead us to construe those subject to Sec.136 as deprived of their liberty - particularly as coercion is implied.  With regard to duration, if the wait could be considered to be ‘negligible’ then, possibly, it is likely that no breach would occur. 

The exception to the above, in both issues A and B, will be where the person is able to consent to remaining in the Sec.136 suite and does so. This follows from the fact that the subjective element of the test for a deprivation of liberty has not been met.  Care, of course, would have to be taken about the information provided to ensure the person's understanding of what it means to remain until suitable arrangements can be made, or to agree to be seen by an AMHP.  However, if this is the case, there would be no conflict with Article 5 and the authority for detention under s136 would continue.

The issue of capacity and its relationship to determining whether the situation is a deprivation of liberty is therefore important. As far as I can see:

A) people awaiting suitable arrangements to be made, whether going into hospital or back to the community, the situation will be determined as follows:
(i)              People who can consent to remaining, and do so, are not deprived of their liberty.  There is therefore no conflict with the provisions of Article 5, and they remain subject to detention under s136.  The detention will end when it has been decided that suitable arrangements are in place.
(ii)             People who can consent to remaining and object, or who are found to lack such capacity, weather compliant or objecting, are likely to be derived of their liberty. Continued detention must be shown to be both necessary and proportionate with respect to the person's or public's interests, following the scheme discussed above.

B)  For those who have been seen by a doctor and are not currently of 'unsound mind',  the situation will be determined as follows:
(i)              People who can consent to remaining, and do so, are not deprived of their liberty. Therefore no conflict with the provisions of Article 5 arise, and they remain subject to detention under s136.  The detention will end when it has been decided that suitable arrangements are in place.
(ii)             In all other situations they will be subject to a deprivation of their liberty, which would conflict with Article 5 rights as the ground of being currently of ‘unsound mind’ is not met – one’s positive duty to prevent arbitrary detention would then have to be considered.


Therefore, for all those involved with a person detained under Sec.136, in order to promote their liberty interests, the above can be distilled down to the need to ask the question: is the person deprived of their liberty? If so: is it necessary and proportionate, by establishing unsoundness of mind of a nature or degree, considering the person’s interests and that of the public, to continue their detention? Finally, following from the positive duty under Article 5, are there grounds for departing from the Code of Practice to end the detention under Sec.136? 

Wednesday, 6 July 2016

The meaning and implications of “legal custody” when applied to the Mental Health Act

Recently, when I was on duty triaging the county’s requests for assessments under the Mental Health Act, one of my AMHP colleagues was required to arrange for the conveyance to hospital of a patient who had been detained under Sec.2 the previous evening. The conveyance had not taken place then because the receiving hospital would not accept a patient late at night.

Because of the general shortage of psychiatric beds for all types and ages of mental health patients, it is now not unusual for an AMHP to undertake an assessment with two doctors, decide that a patient needs to be detained under the Mental Health Act, but be unable to complete their application because of the lack of beds.

It then falls to another AMHP to have to conduct another assessment sometimes many days later when a bed finally becomes available.

Even when a bed is identified, it is often not practicable to arrange conveyance to hospital until the following day, which is why it is increasingly the case for our AMHP service to have to send AMHP’s off to complete the admission process on a patient they have not actually assessed themselves.

But this is not the subject of this blog post.

This particular patient was resident in a care home. It was known that the patient would be resistant to admission to hospital, so at 10:00 hrs my colleague arranged for the ambulance service and the police to attend.

This should have been a fairly routine task: arrange for transport, get the patient into the transport, and then send them on their way to the receiving hospital, with the section papers accompanying them, and return to base.

In the middle of the afternoon, and several hours after my colleague had gone to the patient’s home, I received a plaintive call from him.

After a considerable amount of cajoling and persuasion, the patient had entered the ambulance, but was refusing to sit down and allow themselves to be strapped in. The ambulance crew decided it was unsafe to proceed unless the patient was secure.

The police were in attendance, but were refusing to assist in the conveyance in any way, arguing that they had neither the power nor the duty to do so.

Eventually, both the ambulance and the police left, leaving the patient at the care home. It was then decided that the AMHP would arrange for a private ambulance service, with a crew trained to physically restrain patients, to attend. By now, it was after 17:00 hrs.

But this ambulance was based 80 miles away, and it was estimated they would take at least 2-3 hours to arrive. The responsibility for conveyance was transferred to the out-of-hours service, and the weary and frustrated AMHP left the paperwork with the care home. In the end, this ambulance did not arrive until after 23:00 hrs, and it was after midnight before the patient was finally admitted to hospital.

So what exactly are the legal implications of detaining a patient under the MHA, whether it be Sec.2, Sec.3, or Sec.4?

The act of completing an application for detention instantly confers powers on the AMHP and others.
Sec.6(1) MHA states: “An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of this Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital.”

Richard Jones, in The Mental Health Act Manual, 18th Ed., observes:
“If, following an assessment of the patient, the potential applicant and recommending doctor(s) agree that an application to detain the patient should be made, the common law provides authority to use restraint on the patient during the time that it takes to process the application as long as the process is not unduly delayed.”(1-104)

He goes on to say: ““The power to convey is only triggered when the application is “duly completed”. This does mean that, until all the forms have been filled in and signed, if the patient insists that the assessing team should leave, they have no choice but to do so, unless “one co-owner gave them permission to stay”.

However, once the patient is “liable to be detained”, Sec.6 MHA and all its implications, applies. This includes the powers under Sec.137 and Sec.138 MHA.

(I’ve explored the meanings of the terms “detained” and “liable to be detained” within the meaning of the MHA on this blog before. You can find it here.)

Sec.137 MHA unequivocally states:
“(1) Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety… shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.
(2) A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable.”

In relation to Sec.137(2), Jones notes that “either the applicant or the person delegated to the applicant (including ambulance staff) can use such force as is reasonably necessary to achieve the objective of conveying the patient”

The Reference Guide explicitly notes that this includes “patients being conveyed to hospital to be admitted on the basis of an application for admission under part 2”(Para11.4) (ie, Sec.2, Sec.3 or Sec.4)

The Code of Practice adds:
“17.13 If the patient is likely to be unwilling to be moved, the applicant will need to provide the people who are to transport the patient (including any ambulance staff or police officers involved) with authority to transport the patient. This will give them the legal power to transport patients against their will, using reasonable force if necessary, and to prevent them absconding en route.
17.14 If the patient’s behaviour is likely to be violent or dangerous, the police should be asked to assist in accordance with locally agreed arrangements.”

What the legislation and guidance states clearly is that:
  • Once detained under Sec.2, Sec.3 or Sec.4, the MHA, a patient is deemed to be in “legal custody”
  • This confers powers on the AMHP, the Police, or anyone authorised by the AMHP, to convey the patient to hospital, if necessary using reasonable force.

Jones elucidates these powers as follows:
 “Power… which a constable has. Which include the powers to arrest a person who is wilfully obstructing him in the execution of his duties, to use reasonable force in effecting an arrest, to prevent a person from escaping, to secure the conveyance of the person, and to require other persons to assist him in the execution of his duties.” ( 1-1343)

The Code of Practice also adds:
“People authorised by the applicant [the AMHP] to transport patients act in their own right and not as the agent of the applicant. They may act on their own initiative to restrain patients and prevent them absconding, if absolutely necessary. “(17.18)

And here’s what the Reference Guide has to say:
“When someone who is deemed to be in legal custody as a result of section 137 absconds, they can be returned by:
any police officer, or other constable
any approved mental health professional (AMHP) acting on behalf of a local authority, or
by the person in whose custody they were when they absconded.” (11.8)

So, to apply all this to the example I gave earlier, the fact that this patient was detained under Sec.2 MHA meant that the AMHP, the Police and the ambulance crew all had the power to take the patient to hospital, using whatever force was reasonable in the process. And if the patient were to abscond from legal custody, the police would have legal powers to arrest and detain the patient.

But what about the Police & Criminal Evidence Act 1984? What about Sec.26 of this Act, which is concerned with the repeal of statutory powers of arrest without warrant or order? Doesn’t that prevent police from arresting and holding a mental health patient who is liable to be detained?

Well no, it doesn’t. Because Sec.26(2) PACE states: “Nothing in subsection (1) above affects the enactments specified in Schedule 2 to this act.”

And what is in Schedule 2? This schedule is concerned with preserved powers or arrest, and states that several sections of the Mental Health Act, including Sec.18 and Sec.138, have police powers of arrest preserved.

And Sec.138(1) MHA states: “If any person who is in legal custody by virtue of section 137 above escapes, he may, subject to the provisions of this section, be retaken— (a) in any case, by the person who had his custody immediately before the escape, or by any constable or approved mental health professional.”


The law is clear. The Police cannot claim that they have no legal powers (or duties) to arrest, detain or convey a patient, once an application under the MHA has been made. And they should assist an AMHP in the discharge of their legal obligations under the Mental Health Act.

Tuesday, 21 June 2016

Ask the AMHP: Getting discharged by a Tribunal; aftercare for a Sec.37/41 patient; and treatment, accommodation and mental capacity

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

Debbie, who was an inpatient detained under Sec.3 MHA, writes to the Masked AMHP:   

Debbie:
I read your blog to get advice about my tribunal, which is tomorrow. I wondered if you have any further advice as to how I can win and how to present myself, as I am told by the solicitor that this will be most of the problem.

Masked AMHP:
Look as smart and "together" as possible in the circumstances. Look attentive during the tribunal itself. It's probably better to let your solicitor lead and basically keep as quiet as possible. Don't interrupt when others are speaking, even if you feel they're wrong in what they are saying. Take notes, then ask your solicitor to raise your concerns on your behalf.

Around a fifth of appeals result in the section being lifted, so it's always worth appealing.

Debbie:
Thanks. Do you happen to know what chance someone has if they have been on 2 weeks consecutive leave and are being told they do not need to be in hospital? Because I was told by the psychiatrist that I was being discharged after the Sec.117 meeting, however as the care coordinator objected at the meeting and said she wanted me put on a CTO I was not discharged after all. How easy is it to get the hospital managers to discharge you?

Masked AMHP:
Managers are less likely to discharge than Tribunals.

Debbie:
OK thanks, but if the tribunal fails then is it worth trying?

Masked AMHP:
Normally there is a managers meeting, then if they don't discharge, there is a tribunal. So you get two chances to appeal against Sec.3.

Debbie:
Thanks, I won the tribunal!!!! I got a deferred discharge.

The Nearest Relative of a patient detained under Sec.37/41 writes concerning discharge and aftercare arrangements:

My wife was detained after being sentenced for manslaughter due to diminished responsibility. The offence occurred during a severe depressive episode which came about as a result of a short, intensely stressful, period which cannot be repeated. Since the ‘index offence’ 3 years ago, she has been completely symptom-free.

Before the depression leading to the index offence, her life was settled, stable and secure. I fully support her in all she wants to do. We have a stable and relaxed home life, we have no money worries and have a large and very supportive circle of friends.  Her medication has been refined since she has been in hospital; it is effective and well tolerated and she willingly accepts that she will have to take it for the rest of her life.  We feel that we don’t need support from social services; we don’t need help with housing, medication, money, training, jobs (we are both retired), or with independent living.

As you say in your article, a Sec.117 meeting must be held for patients due to be discharged from s.37. Is this aftercare compulsory?  Can she refuse any Sec.117 help and support?  Would a refusal or rejection of support jeopardise her discharge?

The Masked AMHP replies:
In the specific case of your wife, as she is currently detained under Sec.37/41, she can only be released with the consent of the Home Secretary, and she would be subject to conditional discharge. Although there would still be entitlement to Sec.117 aftercare, to a certain extent this is trumped by the Sec.37/41. Discharge conditions would be likely to include taking medication, seeing her psychiatrist and community social supervisor, as well as other possible conditions, such as residing in a particular place. I would imagine that if she has a supportive environment to return to, this would be a plus for her, and I am sure that discharge plans would take into account what is available for her. However, by the nature of Sec.37/41, any eventual conditions could not be refused.

In time, after reviews, she may be able to be discharged from Sec.37/41.

And finally, two care coordinators ask questions relating to capacity and treatment:

Care coordinator 1:
We currently have a lady who has been in hospital for a year under Sec.3.  Her delusional beliefs have not responded to treatment.  As part of planning for her discharge she has been assessed as not having capacity to decide where she lives. A best interest meeting has been held. We have identified residential placements, but she has refused to even look at them, because of her delusional beliefs.  What authority do we have to move her? A CTO relies on some level of agreement, and she is content to remain where she is, and not accepting of need for any medication or support following discharge.

The Masked AMHP replies:
You could try placing her in a prospective care home under extended Sec.17 leave. That way, it could be argued she is still an inpatient in the hospital in which she seems happy to remain. If she settles, you could then consider a CTO or Guardianship. Alternatively, if she continues to maintain she wants to leave, but it is considered to be in her best interests to remain, you could try a combination of CTO or Guardianship plus possibly a Deprivation of Liberty authorisation.

Care coordinator 2:
I am the care coordinator of a patient recently admitted informally to hospital.  She has a 5 year history of possible paranoid schizophrenia. She has previously been detained under Sec.3 and has in the past been on a CTO.

She does not believe she has a psychotic illness and believes that there are bugs in her flat and possibly implanted in her body. 

I have been working with her since last year; she has been well and in all other areas functioning and capacity are not affected. She is willing to continue on antipsychotic medication as she feels it does benefit her. 

There are discussions about her capacity regarding treatment with some stating that because she denies having schizophrenia/psychosis how can she have capacity to decide what medication she should take. I argue that she accepts psychiatric medication and acknowledges it does help alleviate some of her symptoms. 

I suppose the question is, can have someone have capacity to agree to treatment for a mental illness if they do not believe they have a mental illness? Even if they are given information, understand, can weigh it up and communicate their point of view?

The Masked AMHP replies:
I guess that if the patient accepts that there are benefits to the medication they are taking, even if they deny they have a specific diagnosis, then they could be regarded as having the capacity to agree to treatment. They may on some level or other recognise there is a disorder, even if they do not agree what that is. Even if they lack capacity, if they are amenable to accepting treatment, then I can't see there's a problem.


Consider a hypothetical case of an elderly person with dementia who clearly lacks capacity, but is accepting of medication for both physical and mental problems. If it is in their best interests, then there should not need to be any formal legal framework for treatment, as it can be managed within the guidelines of the Mental Capacity Act.

Friday, 10 June 2016

Section: Radio Drama about a Mental Health Tribunal


This sounds really interesting: there's a radio play going out on BBC Radio 4 at 2.15 pm on 14th June 2016, which is about a patient subject to Sec.37/41 (I guess) who appeals to a Mental Health Tribunal. The writer, Clara Glynn, tells me she got inspiration from reading the Masked AMHP blog, so it ought to be good!

If you can't listen to it live (some of us will be at work), you'll be able to catch up with it on the BBC iPlayer.

clara_glynn.jpg

Clara Glynn (pictured) is a writer/director with extensive experience in drama and documentary production. She has written and directed a number of dramas and documentaries, including I met Adolf Eichman a documentary that won the gold medal at the New York Festival

I can't wait to hear it!

Friday, 27 May 2016

Can Conditions Imposed Under Sec.37/41 Breach Article 8 Human Rights? Recent Case Law

Conditions can be imposed on patients subject to conditional discharge under Sec.37/41 MHA, as well as those subject to Community Treatment Orders under Sec.17A MHA. These can impose considerable limits on a patient’s freedom, such as stating where the patient must live, and what they can and can’t do. These conditions can include anything from stipulating whether or how a patient can access the internet, to prohibitions on drinking alcohol or taking illegal drugs.

Generally, patients do not object to these conditions, if it means that they can be released from hospital, so there is little case law relating to whether or not such requirements could breach an individual’s human rights. However, a recent Upper Tribunal appeal did address this issue.

The Upper Tribunal considered an appeal from the 1st Tier Mental Health Tribunal concerning a conditionally discharged patient (RP v Dudley and Walsall Mental Health Partnership NHS Trust and the Secretary ofState for Justice, [2016]UKUT 204 (AAC) (26 April 2016).

RP had a diagnosis of paranoid schizophrenia, and had been made subject to hospital and restriction orders under Sec.37/41 following convictions for offences of violence.

He was conditionally discharged in September 2011, and had been living in the community since then. RP’s order and conditions were reviewed by a 1st Tier Tribunal in February 2015, who decided the conditions should continue.

The appeal was based on the contention that there had been errors in law, the most significant being that the Tribunal had failed to comply with the patient’s right under Article 8, and it was this aspect that the Upper Tribunal had to consider.

Article 8 of the Human Rights Act is, of course, concerned with the right to respect for private and family life.

Specifically, Article 8 states:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

One of the conditions stated that “The patient shall abstain from using illicit drugs and steroids. He is also to refrain from the consumption of alcohol to excess.” It was the contention of the patient’s solicitors that this breached his human rights.

The Upper Tribunal gave this due consideration, stating:
 It is possible, for example, that the conditions imposed on a conditional discharge might represent an unjustified interference with private or family life. The tribunal is entitled to expect a representative to draw attention to any specific Article 8 issues that arise.

The Judge went on to state:
Most conditions that are imposed on conditional discharges are capable of being operated oppressively, but in practice they are not. It is understood when the conditions are imposed that they will be applied reasonably and according to the circumstances at the time. Intervention may be light-handed or heavy-handed as required. The application of Article 8 will be calibrated to the needs of the patient and the public. The tribunal is more likely to be concerned to ensure that the conditions are reasonable in principle.

Considering the condition relating to “excess alcohol consumption”, the Judge concluded:
It is, as the solicitors say, inherently vague. But it is reasonable for a tribunal to impose some kind of control over alcohol consumption and the difficulties of precise definition are capable of causing as many problems as they try to solve. What matters is how the conditions are operated and Article 8 operates to protect the patient at that stage.

The decision therefore was that the conditions of the discharge, even the contentious issue relating to drug and alcohol use, did not breach the patient’s Article 8 Human Rights.