Sunday, 10 December 2017

Should GP’s be involved in MHA Assessments?

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

I’ll deal with these two issues separately.

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

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

AMHPs must… be satisfied that detention in a hospital is the most appropriate way of providing the care and medical treatment the patient needs. In making that decision, AMHPs are required to consider ‘all the circumstances of the case’. In practice, that might include the past history of the patient's mental disorder, the patient’s present condition and the social, familial, and personal factors bearing on it, the other options available for supporting the patient, the wishes of the patient and the patient’s relatives and carers, and the opinion of other professionals involved in caring for the patient. (para 8.32)

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

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

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

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

Should GP’s be involved in MHA Assessments?

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

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

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

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

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

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

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

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

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

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

Wednesday, 15 November 2017

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

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

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

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

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

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

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

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

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

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

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

So what did the High Court conclude?

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

In a lovely paragraph, the Court demolished that argument:

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

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

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

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

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

But it did not.

Tuesday, 31 October 2017

A Halloween Mental Health Act Assessment

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

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

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

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

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

I introduced myself and explained why we were there.

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

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

“What do you mean?”

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

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

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

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

“No,” I said, “no he won’t.”

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

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

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

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

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

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

“Bert,” I said. He opened his eyes.

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

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

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

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

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

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

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

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

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

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

Tuesday, 10 October 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Does the Code of Practice offer any clarification?

I’m not sure it does.

Para35.3 states:

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

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

But then, para35.6 goes on to say:

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

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

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

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

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

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

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

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

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

Tuesday, 5 September 2017

Who Can Apply for a Sec.135(2) Warrant?

Our AMHP Service has from time to time had problems with Magistrates and others who are convinced that only an AMHP can apply for a warrant under Sec.135(2).

This is incorrect.

The text of Sec.135(2) is as follows:

(2) If it appears to a justice of the peace, on information on oath laid by any constable or other person who is authorised by or under this Act … to take a patient to any place, or to take into custody or retake a patient who is liable under this Act …to be so taken or retaken—
(a) that there is reasonable cause to believe that the patient is to be found on premises within the jurisdiction of the justice; and
(b) that admission to the premises has been refused or that a refusal of such admission is apprehended,
the justice may issue a warrant authorising any constable to enter the premises, if need be by force, and remove the patient.

In contrast, Sec.135(1) permits a police officer to enter the premises of someone who appears to be mentally disordered and is either being ill treated or neglected, or, living alone, is unable to care for themselves. Only an AMHP can apply for such a warrant. The purpose of this warrant is in order to enable the assessment of the person in question.

A Sec.135(2) warrant, on the other hand, is specifically for the purpose of removing a mentally disordered person and taking them to hospital. No assessment is required or needed. This would typically be used when a detained patient was refusing to return from Sec.17 leave, or a CTO patient who was being recalled to hospital and who was objecting to this. In other words, they would have to be already “liable to be detained”.

The Reference Guide states:

A warrant may be applied for by a police officer or any other person who is authorised to take or return the patient to any place or take them into custody.(para7.14)

A police officer is first on the list, which is logical, as it is only a police officer who can execute the warrant. Although an AMHP would be regarded as an authorised person, we need to look at Sec.18(1)(c) for more details. This gives an exhaustive list of those who are authorised to return or readmit people who are either liable to be detained or who are subject to a CTO and have been recalled. These patients can be returned “by any approved mental health professional, by any officer on the staff of the hospital, by any constable, or by any person authorised in writing by the managers of the hospital.”

So as well as a constable and an AMHP, other people who can apply for a Sec.135(2) warrant include hospital staff, local authority employees, and community staff such as care co-ordinators in community mental health teams. Richard Jones points out that even Mental Health Act Administrators have made applications under Sec.135(2). (1-1330 Mental Health Act Manual 19th Edition)

I have to say I find it surprising that a magistrate, having the support of a Court Clerk, may still insist that the applicant has to be an AMHP.

I find it less surprising that community staff, wishing to recall a resistant CTO patient are ignorant or this. But I am always happy to explain to them that they can go through the process of applying to the court for a warrant, rather than an AMHP from our AMHP Service.

We already have more than enough to do.

Wednesday, 23 August 2017

What happens when a hospital tries to prevent a nearest relative from discharging a patient?

Our AMHP Service recently had this rather contentious scenario.

Gerry was in his 20’s and was detained under Sec.3 MHA in a hospital for people with learning disabilities.

His mother, the Nearest Relative, had been unhappy for some time about the standard of care and treatment Gerry was receiving. This culminated in an incident in which he incurred significant bruising as a result of restraint by hospital staff. This incident triggered a safeguarding investigation.

She decided to exercise her right as NR under Sec.25(1) MHA to order the discharge of her son, by giving 72 hours’ notice in writing to the hospital, as required by this section. She sent this letter by registered post.

This section also gives the Responsible Clinician the power to bar such an order by the NR, by preparing a report within the 72 hour period of notice.

But Gerry’s RC did not do this.

Gerry’s mother duly arrived at the hospital after the 72 hours had expired, in order to take her son home.

At this point the ward psychiatrist detained Gerry under Sec.5(2) MHA.

The hospital then requested an assessment under the MHA.

I talked to the nearest relative. They told me that, while in the past they had had difficulties managing Gerry at home, they were now in a position to care for him, at least for a limited time. In fact, a community based residential placement had been found for Gerry, and they were just waiting for a bed to become available, which was going to happen in the near future.

The NR sounded like a grounded and sensible person, who was receptive to accepting support in the community.

I spoke to Gerry’s social worker, who knew him and his parents well, and he confirmed that there would unlikely to be any problem in Gerry returning home.

So this was my thinking. Assuming an AMHP assessed and concluded that the grounds for detention under the MHA were met:
  •  It would not be possible to make an application under Sec.2, because the patient had been detained under Sec.3, diagnosis and treatment needs were known etc.
  •  It would not be possible to make an application under Sec.3, because the NR would object.

The only other option left for an AMHP in that situation would be to apply for the displacement of the NR. But this could only be done it there was evidence that the NR was acting unreasonably.

In the circumstances, there was no evidence at all that the NR was acting unreasonably; quite the contrary.

Of course, if the Responsible Clinician had exercised their power to prevent the discharge, the NR would have been disappointed, but the AMHP Service would never have become involved.

We presented this to the Responsible Clinician, who instantly agreed with all the points, and rescinded the Sec.5(2) without the need for a formal assessment.

The NR and her partner were understandably delighted with this news, and Gerry went home that day.

And that is what AMHPs are for: to safeguard the rights of patients and their relatives, to apply a social perspective to the law, and to act as a constraint on the unfettered powers of the doctors.

Tuesday, 15 August 2017

What Happens When the Professionals Involved in a MHA Assessment Disagree?

A member of the Masked AMHP Facebook Mental Health Forum recently posted about a situation in which a hospital psychiatrist had objected to an assessing AMHP concluding that it was not appropriate to detain the patient under the MHA, and demanding that another AMHP conducted another assessment. The issue was whether or not a psychiatrist had a right to do this.

This raises some interesting issues about what should happen when mental health professionals involved in a MHA assessment cannot reach agreement about what should happen with the patient.

The MHA has little to say about procedures relating to differences of opinion, and there is little, if any, case law on the subject.

However, it must be borne in mind that the AMHP is the professional with responsibility to making an application for detention under Sec.2, 3 & 4 MHA.

An AMHP does not have to act on the medical recommendations provided. By their nature, they are “recommendations”. It is at the AMHP’s discretion whether or not to make an application based on those recommendations.

Sec.13 (2) MHA States:

Before making an application for the admission of a patient to hospital an approved mental health professional… [must] satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.

The AMHP’s duty is to consider “all the circumstances”. The Code of Practice goes on to say:

AMHPs may make an application for detention only if they have interviewed the patient in a suitable manner,  are satisfied that the statutory criteria for detention are met, and are satisfied that, in all the circumstances of the case, detention in hospital is the most appropriate way of providing the care and medical treatment the patient needs.(para14.49)

The AMHP must give due regard to the first overarching principle when making decisions regarding the detention of people under the MHA, which is to always go for the least restrictive option. The Code of Practice makes it clear that “where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained.” (para1.2)

Furthermore, the Code of Practice says: “There is no obligation on an AMHP… to make an application for admission just because the statutory criteria are met.” (para14.103)

It must be remembered that the AMHP exists as a check on unimpeded decision making by medics. The AMHP’s role is to employ a social perspective when making assessments of people with mental disorder.

To give an example, I recently assessed a person whose GP wanted detained under the MHA on the grounds that they had stopped taking their antipsychotic medication several months previously. The GP had not actually seen the patient, as they had missed an appointment.

When I assessed the person at their own home (they readily let us in), it became clear that there was some evidence of paranoid delusions. However,  these were not in any way impinging on their ability to look after themselves and to live a full and meaningful life. Neither was their reluctance to take medication having any adverse effect on anyone else.

I declined to use the MHA, on the basis that people have the right to be quietly mad, as long as it is not affecting themselves or others, and it was therefore disproportionate.

Although the Code does give some advice on resolving disagreements between professionals (para14.109 & 14.110), it does not offer advice on what to do if any of the professionals are unwilling to accede to a decision.

For guidance on this problem, it is necessary to turn to Richard Jones in the Mental Health Act Manual (19th Edition). He observes:

If the AMHP decides not to make an application, it would be improper for that decision to be reviewed by another AMHP in the absence of any change in circumstances, fresh evidence or concern that the AMHP had acted unprofessionally. (p117)

However, he does offer suggestions as to how such disputes may be resolved by stating:

If the decision not to make the application was made by an AMHP with little knowledge of the patient, there should be no objection to that decision being reviewed by an AMHP who has an extensive knowledge of the patient’s history and current situation. A procedure which allowed for the automatic review of a decision of an AMHP not to make an application would undermine the independent nature of the AMHP’s role.

Interestingly, he does not consider that an AMHP has similar restrictions. In a situation where an AMHP is not satisfied with a refusal by a doctor to provide a medical recommendation, he has this to say:

If a doctor who has been approached with a view to making a medical recommendation decides not to do so on the ground that the statutory criteria are not satisfied, there is nothing to prevent an AMHP from taking steps to see whether another doctor might be willing to provide the recommendation. (p114)

When it comes to consideration of Community Treatment Orders, it seems that the AMHP still holds the upper hand.

The Reference Guide states that before a CTO can be made an AMHP “must agree with the responsible clinician’s opinion that all the criteria are met and agree that it is appropriate for the patient to become a CTO patient.”(para26.14)

The Code then states:

If the AMHP does not agree with the responsible clinician that the patient should go onto a CTO, or if they do not agree with the conditions attached to the CTO, then the CTO cannot be made. A record of the AMHP’s decision and the full reasons for it should be kept in the patient’s notes. The responsible clinician should not approach another AMHP for an alternative view. (para29.25)

So it appears that a doctor’s hands are largely tied when it comes to disagreeing with an AMHP’s decision not to detain; but an AMHP may still persist in searching for a doctor prepared to make a medical recommendation if the AMHP believes that the patient should be detained under the MHA.