Wednesday, 1 February 2017

Anorexia and the Interface Between the Mental Health Act and the Mental Capacity Act: Recent Case Law

There is a growing body of case law relating to the treatment of patients with severe anorexia nervosa. I have discussed previous cases several times on this blog. They include the case of E, the case of X, and the case of W. There has recently been a fourth, the case of Z.

While all have been heard in the Court of Protection, and all involve issues relating to capacity to make decisions about treatment, they also illustrate the extent to which the Mental Health Act and the Mental Capacity Act intersect. They highlight the limitations the Mental Health Act may have when dealing with very complex and often intractable mental disorders like anorexia nervosa.

Z is a 46 year old woman. She has had anorexia nervosa since the age of 15 years. The Judge notes: “despite the fact that she has been admitted to hospital on innumerable occasions and received many different treatments, outpatient support and therapeutic input, it is impossible to identify any time in her history where Z has made anything which could be characterised as a sustainable recovery in terms of her weight gain.”

Her physical health has suffered, to the extent that she has osteoporosis “to such a severe degree that her entire skeleton is compromised in a way that would otherwise only be seen in the very elderly”. In October 2016, her Body Mass Index was 9.6 (normal is between 19-25), and in November 2016 she was detained under Sec.3 MHA.

The Trust bringing the case, Cheshire and Wirral Partnership NHS Foundation Trust, sought a declaration that Z lacked the capacity to make decisions about her care and treatment. This was given in the middle of December 2016, and the Judge concluded that there were three options open to the treating team. These were:
  • “to continue treatment under section 3 of the Mental Health Act 1983 which would involve detention in hospital and naso-gastric feeding under physical restraint until Z’s weight and physical health improved to the point where it would be possible to discharge her.”
  • “continuation of feeding, again under section 3 of the Mental Health Act 1983, involving detention in hospital, but the feeding to take place under chemical sedation”
  • To “be discharged from the framework of the Mental Health Act 1983 and treated, if she is prepared to engage at all, only on a voluntary basis.”

The Judge concluded that the third option should be followed, and that Z would therefore be discharged from detention under Sec.3 MHA and would return to live with her parents.

He noted: “Accordingly, the declarations and orders I make are pursuant to the Mental Capacity Act 2005.  That said, I consider that given this application is heard in the Court of Protection, sitting in the High Court, I would have had the scope to make the declarations under the Inherent Jurisdiction.”

Of other three cases, E, X & W, the Judge reached the same conclusion in the cases of X and W, which was essentially for there to be no forced treatment. Only in the case of E did the Judge advocate continued treatment, and I understand that treatment continued for E under Sec.3 of the Mental Health Act.

So, out of four cases of women with severe anorexia nervosa (and often with complicating conditions such as alcohol dependency and emotionally unstable personality disorder) three were essentially allowed to die. All the cases were deemed to lack the capacity to make decisions about their treatment, and it was concluded that these decisions were in their best interests.

What do these cases have to say about anorexia nervosa, and about the Mental Health Act?

Anorexia nervosa is an insidious and pernicious disorder. It is notoriously hard to treat. Mortality is high, whatever treatment is offered. For patients with anorexia serious enough to require inpatient treatment, less than half experience remission of symptoms after 12 years.

When patients lose weight to the extent that their life is endangered, treatment has to consist initially of ensuring that they gain weight and receive adequate nutrition. This often has to take the form of nasogastric feeding, in other words, inserting nutrition directly into the stomach using a tube. This is an exceptionally intrusive process, and often restraint of various forms has to be used. This is difficult and distressing not just for the patient, but for the doctors and nurses having to administer the treatment.

If the patient refuses to accept lifesaving treatment, the Mental Health Act (Sec.3, for treatment) may have to be used.

In the longer term, the talking treatments, such as cognitive behavioural therapy and cognitive analytic therapy, have the best outcomes. But these therapies can only be given with the consent and cooperation of the patient, and when they are in a reasonable state of physical health.

The Judge in the case of Z stated that “decisions of this nature impose very considerable intellectual and emotional burden on all those involved.” The majority of the decisions in these cases recognised that the clinicians involved with these women had reached a point at which the risks of continuing treatment were not only outweighing the risks of ceasing treatment, but were also causing unjustifiable distress to the patients and their relatives.

I am aware of little equivalent case law relating to other psychiatric disorders. I can only think of the case of C in 2015, a woman diagnosed with narcissistic personality disorder who did not wish to continue treatment for the effects of a serious overdose because she had “lost her sparkle”. There was considerable publicity about this case at the time.

It appears that anorexia nervosa is almost unique in producing case law relating to the ending of treatment for the effects of mental disorder. These judgments seem to suggest that there are times when the Mental Health Act should not be used indiscriminately to preserve and prolong life, that when all possible treatments for a mental disorder are exhausted, at least when it comes to anorexia nervosa, such patients should be allowed to die. The treatment becomes worse than the condition, the treatment becomes oppressive and disproportionate, and in breach of the patient’s human rights.

AMHP’s will undoubtedly continue to be asked to make applications for treatment under the MHA for people with anorexia nervosa, but it is important to weigh up the likelihood that proposed treatment is likely to have the desired effect, and will not merely serve to prolong the patient’s suffering and possibly be in breach of the Human Rights Act.

AMHPs will have to continue to be mindful of the psychiatric opinions informing their decisions. But it may be that referral to the Court of Protection for opinions relating to ongoing invasive treatment should sometimes be considered in preference to the Mental Health Act.

Either way, these are not easy decisions to make.

Tuesday, 10 January 2017

The Policing and Crime Act 2017 – Implications for the Mental Health Act and AMHPs

The Policing and Crime Bill is likely to become law in April 2017. So what, you may ask? This is surely about policing and crime. What does it have to do with the Mental Health Act?

Well, it’s true that this new piece of legislation covers a wide range of matters, including police complaints procedures, the Police and Criminal Evidence Act, and Maritime enforcement, but it is also concerned with changes to police powers, and this is where there are significant implications for AMHPs (and the police, of course).

For the second time in 3 years, the Mental Health Act 1983 will have some significant amendments. The last time this happened was with the Care Act 2014, which among other things, amended Sec.117. Now, Sections 81-84 of the Police and Crime Act will significantly amend Sec.135 and Sec.136 MHA, which of course relate to police powers relating to people with mental disorders.

Reduction of period of detention
One of the most significant changes is to reduce the period of detention of people under both Sec.135, which is concerned with entering the premises of mentally disordered people in order to be assessed and removed to a place of safety, and Sec.136, which is concerned with police powers to remove people from public places.

Ever since the Mental Health Act 1983 came into force 32 years ago, the maximum period of detention has been 72 hours. This will be cut to 24 hours. In exceptional circumstances a medical practitioner can extend this by another 12 hours to a maximum of 36 hours. But that’s it.

This seems likely to create significant problems for mental health services who, despite Theresa May’s recent promises to improve services for people with mental health problems, are grossly underfunded, and likely to remain so, whatever the Prime Minister says.

It has become a not uncommon situation for there to be considerable delays in finding a bed for a patient who has been assessed under Sec.136. While it has always been exceptional for Sec.136 to last the maximum allowed time of 72 hours, it’s far from unknown for a Sec.136 to last for more than 24 hours, especially if there has been a delay in assessment, for instance because a patient was unfit for interview through drink or drugs, or if a patient was detained out of normal working hours.

What will happen if a bed has still not been found after 24 hours? Mental Health Trusts are simply going to have to ensure that sufficient beds are available.

“Public places” and “places of safety”
There are also some intriguing changes and clarifications to the existing MHA. For example, under the amended Sec.136, a police officer may “if the person is already at a place of safety within the meaning of that section, keep the person at that place”.

The new amendments also clarify the meaning of “public place” for the purposes of the Mental Health Act. While it does not exactly define what a public place is, it specifies that a police officer can exercise their powers under Sec.136 “at any place”, the explicit exceptions being “any house, flat or room where that person, or any other person, is living,” or “any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.”

This might mean that there will be fewer arguments about what may constitute a public place, since powers will essentially be able to be exercised “at any place”. However, it also leaves the question of what constitutes a “place of safety” rather vague.

It would appear that someone could be detained in an A&E department of a hospital, or in a care home, for example, and the police officer can then keep them there in order to be assessed, as these might constitute places of safety.

Children detained under Sec.136
The Policing and Crime Act inserts a new Sec.136A, which principally states that “a child may not… be removed to, kept at or taken to a place of safety that is a police station.”

It would therefore not only be extremely undesirable for a child under the age of 18 to be detained in a police station, but actually illegal.

This is a logical development of the longstanding intention that nobody detained under Sec.136 should be detained in police cells, and most places now have sufficient designated Sec.136 suites to make it extremely unlikely for anyone, adult or child, to be detained elsewhere.

The most recent statistics for use of Sec.136, taken from Uses of the Mental Health Act: Annual Statistics, 2015/16 (November 2016), show a drastic reduction in the use of police cells. Let’s hope a consequence is that police cells are never used for anyone detained under Sec.136 in future.

Police consultation before using Sec.136
One final interesting amendment is that before exercising powers under Sec.136 a police officer “if it is practicable to do so” must consult a doctor, a registered nurse, an AMHP, or “a person of a description specified in regulations made by the Secretary of State” whoever that may be.

It is difficult to see quite how “practicable” this consultation might be, since a police officer may be dealing with a very fraught crisis situation with a mentally disordered person in a very public place, such as a town centre or a multi storey car park, and may have to take drastic action immediately to prevent serious harm.

Many police forces now have some sort of triaging process, for instance, having a mental health nurse physically based in a police control room, so it may be not be totally impracticable to gain instant advice, but it is likely to be a lot more difficult to get into contact with a doctor or AMHP within an acceptable time scale.

As these changes are almost certainly going to be in force within 3 months, mental health services are going to have to have robust contingency plans in place pretty quickly.

Thursday, 1 December 2016

Ask the AMHP: Problems with Sec.117 and Autistic Spectrum Disorders

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.

My postbag continues to contain frequent requests for advice from parents of mentally disordered people who are encountering problems in receiving appropriate aftercare, and are then being charged for it despite being subject to Sec.117 aftercare. They often find themselves caught in funding arguments between the local authority and the Clinical Commissioning Group (CCG).

Here are a couple of cases which also involve issues concerning Autistic Spectrum Disorders and mental illness.

A parent writes:
My daughter has learning disabilities and was admitted to an assessment and treatment unit under Sec. 2, followed by a Sec.3. She was discharged onto a CTO after a long drawn out battle trying to get the CCG and the local authority to agree who was going to pay for her continuing care.

She lived in residential accommodation before the section but it was not appropriate for her to return due to the severity of her needs. She had been diagnosed with Bi-polar disorder, and subsequently whilst in hospital on the Sec.3 she was assessed as being on the Autistic Spectrum and it was agreed she would be best supported by a provider with specialist knowledge around Autism.

She has been settled in her placement, but after a financial assessment by the local authority she has to pay nearly £90 per week towards her care costs. She has Sec.117 aftercare funding and the CCG pay 50% of her fees and the local authority pay 50% of her fees (then bill her for the £90 per week) After a recent DoLS application the BIA has questioned why she is paying for her care at all when she has Sec.117 funding. They are adamant my daughter should not be paying at all. My daughter had to be housed out of area as there was no provision to meet her needs in her home area. They have not argued this.

Can you help?

The Masked AMHP replies:
There can be no doubt. As she is subject to Sec.117 aftercare she should not be paying anything towards her identified mental health needs. She should be entitled to a full rebate of what she has been charged already.

The parent:
Would it make a difference that the CCG argued that her learning  disability is not related to her mental health issues? So they should only pay for half?

The Masked AMHP:
A learning disability is a mental disorder within the meaning of the Mental Health Act. Therefore needs arising from the learning disability are covered under Sec.117.  They're really trying it on!

Another parent writes:
My son is 30 and lives in supported accommodation that is funded by the local authority where he was living when he was sectioned under the 1983 MHA (many times, mostly under Section 3).  He was in and out of hospital for several years before being discharged 3 years ago.

Since he left home to go to college when he was just 19 his mental health was very poor and he was admitted to hospital with psychosis on numerous occasions.  He was put on anti-psychotic medication and eventually, when discharged from hospital, he was on a CTO.  The medication made things worse for him. The CTO is now lifted and he is now off medication.

For many years we thought our son was autistic (Asperger's) and that this was at the heart of his distress.  Eventually he was diagnosed with Autism Level 1. This diagnosis has really helped him turn his life round but we have had to pay for the psychological and day-to-day specialist support for him as the supported accommodation that he has been living in for the last 3 years is for people with mental health problems only and is very inadequate.

We have now found excellent supported housing that is Asperger's specific that will support our son to gain the life skills he lacks.  It will only cost a little bit more than his current care package (24 hours a week) but the CMHT and LA social worker are saying that the Housing Panel is not likely to support the move as the recent Placement Review recommended our son be stepped down to 'independent living'.  We have said we can afford the top-up on the fee difference.

The social worker is now implying that our son no longer has a mental health condition, that he is autistic and therefore should be assessed by the Adult Social Care team and won't be eligible for funding for supported housing.  Our son is very bright and articulate but this masks so much of his vulnerability and fragility.  The social worker is now intimating that he is no longer entitled to Section 117 aftercare funding.  This would mean he would be expected to live alone without support (unless we pay for it) and all that might mean for his safety and fragile mental health.

We see a continuum from our son's autism to his previous poor mental health - the social worker just sees CMHT/LA dividing lines and overstretched budgets.  How can we protect our son's Section 117 funding at least until he is receives the right support to enable him to live independently successfully?
The Masked AMHP replies:
It's difficult to give a definitive reply to your question. You say your son has experienced periods of psychosis in the past, but that he is no longer prescribed any medication. However, if he is still seeing a psychiatrist and/or has a care coordinator in a mental health team, then he is still receiving aftercare, and therefore would continue to be entitled to Sec.117 aftercare.

He could only be discharged from Sec.117 aftercare if he was no longer receiving any services for mental disorder, and was no longer considered to be suffering from a mental disorder within the meaning of the Mental Health Act. However, the definition of mental disorder is broad, and would include autism or autistic spectrum disorder.

A difficulty would be the difference between what you would like for your son, and what the local authority and mental health services consider he requires to meet his mental health needs.

If your son is still under a mental health team, it might be worth getting a NHS psychiatrist to review his diagnosis. If he has been discharged from the mental health team, then his GP could refer him for a NHS diagnostic assessment.

But in any case, autism is still a mental disorder.

The parent:
Thank you for your very detailed response.  It is helpful to understand that autism (albeit Aspergers) is considered to be a mental disorder (eating problems, anxiety and OCD are part of my son's life too).  My son hasn't yet been discharged from the mental health team but the pressures on the LA social care budget are such that he would be an easy one to pick off and no longer fund.  You are right it seems that there is now a difference of opinion about what we feel our son needs and what the CMHT and LA feel - painful.

Thursday, 17 November 2016

Can an AMHP discharge a patient detained under Sec 136 without a doctor?

An AMHP emailed me to ask “whether a person can still be detained on a Sec.136 once they have been seen by an AMHP (without a doctor) and assessed as not requiring detention”. A discussion followed, which raised a number of questions concerning the AMHP’s powers of discharge, and whether or not Sec.136 MHA might be in breach of the Human Rights Act in some circumstances.

I think this is worth exploring in more detail, as it has implications for the extent that an AMHP can exercise their legal powers and duties.

The Reference Guide states that AMHPs must have “appropriate competence in dealing with people who are suffering from mental disorder.” (para30.8). These areas of competence consist of:
  • application of knowledge of mental disorder, and the legal and policy framework
  • application of skills in  working in partnership, and making and communicating informed decisions

Some AMHPs are mental health nurses, whose basic training and day to day experience will include identification of different mental disorders and knowledge of medication used to treat mental disorder. However, all AMHPs (and the majority are social workers) have an intensive period of training, including practical work placements, to teach them the competencies required to practice effectively.

This means that AMHPs are able to get a fairly clear idea of whether or not a patient may be suffering from a mental disorder.

When an AMHP receives a request to assess a patient under the Mental Health Act, they are acting autonomously, and will make their own decisions about how, or even if, to conduct the assessment. It is not uncommon for an AMHP to have a “look see” first, before deciding whether or not to involve doctors.

I have often gone out with a member of the Crisis Team, or the patient’s care coordinator, in order to make an initial assessment and explore the “least restrictive option”, as we are required to do as AMHPs. Alternatives to compulsory admission might include engaging with the Crisis Team for home treatment, or informal admission.

If these alternatives are viable, then there is no need to proceed further with the assessment. A formal assessment, involving two doctors, would only take place if there appeared no other alternative.

As the AMHP has their “AMHP hat” on, they are acting within their powers and duties under the MHA, and that initial assessment, in my view, counts as a Mental Health Act assessment; certainly as a proportionate response to a request.

As the final decision about whether to detain or not lies with the AMHP, if an AMHP concludes that they would not detain a patient, even with two medical recommendations, then what would be the point of involving two doctors, which would also incur a cost of around £185 per medical practitioner?

This is certainly an approach to be considered when responding to a request for a patient at home. But what about someone detained by police under Sec.136 who has been taken to a place of safety? Wouldn’t the same logic apply?

Well, the Mental Health Act would appear to be fairly clear about this. Sec.136(2) states that a person detained under Sec.136 and taken to a place of safety “may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care.”(my italics)

That would appear to be pretty unequivocal, especially when read in conjunction with The Code of Practice, para16.25:

“The purpose of removing a person to a place of safety … is only to enable the person to be examined by a doctor and interviewed by an AMHP, so that the necessary arrangements can be made for the person’s care and treatment.” (my italics)

But then the Code also says:

“Although AMHPs act on behalf of a local authority, they cannot be told by the local authority or anyone else whether or not to make an application. They must exercise their own judgement, based on social and medical evidence, when deciding whether to apply for a patient to be detained under the Act. The role of AMHPs is to provide an independent decision about whether or not there are alternatives to detention under the Act, bringing a social perspective to bear on their decision, and taking account of the least restrictive option and maximising independence guiding
principle .”(para14.52)

If an AMHP is expected to “exercise their own judgment” then shouldn’t that include the ability to discharge a Sec.136, with or without a doctor being involved?

Richard Jones applies the Winterwerp judgment (Winterwerp v Netherlands (1979)2EHRR387 ECHR) to detention under Sec.136. He observes: “Except in emergency cases” an individual “should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’”.

He notes that the European Court of Human Rights said that it “cannot be inferred from the Winterwerp judgment that [a medical report on the patient] must in all conceivable cases be obtained before rather than after the confinement of a person on the ground of unsoundness of mind” (X v United Kingdom (1981) 4EHRR188).

You might think that this provides a legal justification for an AMHP to dispense with a doctor if an AMHP sees the patient and is convinced that they are not mentally disordered. In such a situation, would it not breach their human rights to prolong their detention?

But Jones is not advocating that an AMHP can protect a person’s human rights in this situation, as he then goes on to say that “a medical assessment should take place promptly after the person’s arrival at the place of safety”. AMHPs do not figure in this scenario.

So it would appear that an AMHP alone cannot discharge a patient from Sec.136. This power is, however, conferred on a medical practitioner. The Code states:

“If a doctor assesses the person and concludes that the person is not suffering from a mental disorder then the person must be discharged, even if not seen by an AMHP.(para16.50)

Ultimately, it is not the role of the AMHP to identify whether or not a patient is suffering from a mental disorder. That can only be done by a medical practitioner.

While “there is no obligation on an AMHP … to make an application for admission just because the statutory criteria are met” (CoP para14.103), an AMHP must still ensure that they have fulfilled the requirements of Sec.136, by arranging for at least one doctor to be involved in the assessment.

But what’s this on the Mental Health Cop blog?

In his advice to police on Sec.136, he concludes with the following statement:

“But whatever situation you’re wrestling with, it comes back to three things –
  1. Has a Doctor said, “This person is not mentally disordered within the meaning of the Mental Health Act”?
  2. Has an Approved Mental Health Professional made necessary arrangements for that person’s treatment or care?
  3. Has 72 hours expired since their arrival at the first place of safety to which they were taken after detention?

If the answer to any of them is “Yes”, then s136 has legally ended; if the answer is “No”, then it is still running.”

I’m afraid that, in this instance, the eminent Inspector has erred, as an AMHP cannot  in law make “necessary arrangements for that person’s treatment or care” without having first involved a doctor in the process.

Thursday, 27 October 2016

How difficult can it be to get an ambulance to convey a detained patient to hospital?

I’m going to tell you a horrifying, but also a tedious and frustrating, true story. It’s all about trying to get an ambulance to transport an elderly man with dementia detained under the Mental Health Act from a care home to a hospital.

The fact that the hospital is a private hospital 100 miles away from the care home should be immaterial…

What ought to happen when a person, any person, is assessed under the Mental Health Act follows a particular routine.
1. Arrangements for the patient to be assessed are made. This includes notifying the bed managers that a bed may be required, and arranging for two doctors, at least one of whom must be Sec.12 approved, to attend with the AMHP.
2.The assessment takes place.
3, A hospital is identified that will accept the patient.
4. Arrangements are made for the patient to be conveyed to the hospital. An ambulance is usually the most suitable mode of transport.
5, The patient is conveyed to hospital and admitted.

The chronic nationwide shortage of psychiatric hospital beds, in our area especially for people with dementia, is now routinely meaning that the assessment process is suspended after step 2. It can be days, or even weeks, before a bed can be found and admission arranged. It is now very common in our area for this particular private hospital to be used almost as an additional ward for our local dementia patients.

This hospital often visits the potential patient before making a final decision, which can take several days in itself, and if the patient is fortunate enough to be considered suitable, the hospital requires that they be admitted before 13:00 hrs on the day of admission.

But even once a bed is identified and the patient can be formally detained under the MHA, we have been encountering problems with the local ambulance trust.

Where a patient is in a care home, and the receiving hospital requires admission before 13:00 hrs, it makes sense to order the ambulance in advance, the previous day.

That’s where our AMHP hub first encountered problems.

It was my job as the duty Practice Consultant (see my previous blog post for an explanation of what a PC is) to ring the ambulance service and order the ambulance.

However, I was told in very clear terms that the ambulance service was an emergency service, and could not be booked in advance. They could only dispatch an ambulance on the day, using the “traffic light” protocol agreed between the AMHP service and the ambulance service.

Briefly, this arrangement prioritises the response times. A “red light” means that the patient is seriously distressed, the situation is critical, and they need to be taken to hospital as soon as possible. The ambulance will try to arrive within 30 minutes.

An “amber light” means that the patient is less distressed, and the ambulance will endeavour to arrive within two hours, while a “green light” means that the patient is settled and in a safe place, and the ambulance will then arrive within four hours of  being requested.

Generally, this system works well, although even for “red light” requests, ambulances can still be diverted to more urgent calls, such as cardiac arrests. I can’t complain about this.

I pointed out that, as it was a “green light” request, if the AMHP service made the request at 08:45 hrs, at the start of the working day, if the ambulance did not arrive for 4 hours, then it would be impossible for the ambulance to get the patient to the hospital before the admission deadline, as the journey would take at least two hours.

But the ambulance service were not to be swayed, as the request was not within what they were contracted to provide.

In the end, my PC colleague who was on duty the following day had to ring the ambulance service from home at around 07:30 hrs in order to ensure that the ambulance would arrive in time to transport the patient the two hour journey to the hospital. In the event, the ambulance arrived at 10:45 hrs and dropped off the patient at the receiving hospital 5 minutes before the admission deadline.

This was clearly an untenable situation, so our AMHP hub manager spent several days negotiating with the relevant Clinical Commissioning Group (CCG), who actually make the contracts with the ambulance trust, as to how this sort of situation could be avoided in future.

By the time I was duty PC the next week, an agreement had been reached.

The CCG contracts manager gave instructions that we were to ring a different number when wishing to arrange an ambulance in these circumstances. This was the number of the patients booking line. These ambulances were part of the local ambulance trust, but this particular service allowed routine booking of ambulances to transport patients in a range of situations.

As it happened, another patient was in identical circumstances, so it was again my job to arrange for an ambulance to convey him to the same hospital by 13:00 hrs the following day.

I rang the number, explained that the CCG contracts manager had told us to do this, and requested an ambulance for 09:00 the next day.

The call handler was non-plussed. He went off to consult with several different people during the course of the call, before finally giving me not one but three reasons why they could not or would not convey this patient.

Reason #1 Their service was not contracted to convey patients detained under the Mental Health Act.

Reason #2 As both the hospital and the care home were private, this meant that the patient was not an NHS patient, and they would not in any case transport such a patient. (The fact that the hospital was being paid by the mental health trust/CCG, and hence the NHS, to receive and treat the patient appeared to make no difference).

Reason #3 Even though their contract was with a CCG that explicitly covered the town in which the patient resided (it was in the name of the CCG), they didn’t actually, really, cover that area, as it was in another county.

So I rang the CCG’s contracts manager and explained the difficulty I was having. She suggested I spoke to the contracts performance manager in the mental health trust.

I spoke to this officer, who admitted that there appeared to be a gap in the contract, and told me to leave it with them.

Somewhat to my surprise, an hour or so later I received a phone call from another call handler at the ambulance booking service. He took all the necessary details of the transport request, including his current medication regime, the fact that he was being prescribed lorazepam 4 times a day, and the fact that he was frail and would need wheelchair transfer. It was arranged that the patient would be collected from the care home at 09:00 hrs the following morning. I was even given a booking reference number.

Success at last! Sanity had prevailed!

Ah. An hour later I received a call from the patient ambulance booking manager. They had discovered Reason #4: their service was not contracted to take sedated patients. We would therefore have to make a request tomorrow morning.

So it was again left that my colleague the next day had to make an early morning phone call to the usual ambulance service number.

They initially tried to give a Reason #5 why they could not transport the patient. This was on the grounds that the hospital, being in another county, was outside the area they covered. However, this was withdrawn when it was pointed out that the ambulance trust covered a very large geographical area which explicitly included the county in question.

They didn’t seem to be able to come up with a 6th reason, so eventually an ambulance crew picked the patient up and took him to hospital within the required time scale.

What’s the significance of this in the wider scheme of things?

This sorry failure to meet what would appear to be a straightforward request exemplifies a far deeper problem in the NHS:  privatisation by stealth.

This has been happening gradually for many years. It goes all the way back to Margaret Thatcher’s government in the early 1990’s, which brought in the NHS & Community Care Act 1990. Among other things, this introduced the concept of the purchaser/provider split in the provision of social care, which was explicitly designed to encourage the use of private services. Whereas before, home care was provided in house, the Act required at least 80% of home care to be purchased from private organisations.

In mental health, NHS trusts have been operating under various guises for many years, opening the way, at least in theory, for trusts to compete with each other in an internal market to provide services, while the introduction of clustering and “payment by results” in 2013 made it possible for packages of care and treatment for mental disorders to be “sold off” to private companies prepared to offer specific services. I discuss this in more detail in this blog post.

The Health and Social Care Act 2012 disposed of Primary Care Trusts and replaced them with Clinical Commissioning Groups, supposedly led by clinicians, whose function was to purchase services from NHS Trusts – or indeed, private companies prepared to offer these services. Companies such as Virgin Care have stepped in and provide a range of health services, relieving the NHS of billions of pounds in the process.

Apart from these private health care companies, there is now a well-established internal market within the NHS. While ostensibly this is designed to facilitate provision of services, in practice this does not necessarily happen. The example I have given highlights the problems with this artificial division of budgets.

The problems I encountered in obtaining transport for a detained patient are entirely due to this bizarre internal market. The local Ambulance Trust, which is of course part of the NHS, has a range of contracts with the Clinical Commissioning Groups within its area.

These contracts are not necessarily to provide a blanket ambulance service, but are written in such a way that very specific services are offered, and if a request does not fit with the wording of the contract, then the service will not be offered.

It has long been established that the local ambulance trust will not convey patients out of its area, and will not convey patients requiring restraint. The AMHP service then has to rely on private ambulance services, at huge expense to the CCGs.

Another local example of what would appear to be a nonsensical interpretation of a contract is that the local ambulance service will convey a patient detained under Sec.135(1) to a place of safety for the purpose of assessment, but if the patient is then detained  under the MHA and needs to be conveyed to a hospital, this transfer is not covered by the contract.

It is difficult to understand how this system is of benefit to patients, and how it might save the NHS money.

Friday, 7 October 2016

How Can We Make the AMHP Role Manageable?

A busy AMHP Hub (all the AMHP's are out on MHA Assessments)
Andy McNicoll’s recent analysis of national AMHP shortages, published in Community Care, revealed a desperate situation across England.

The lack of adequate mental health resources, caused by year on year reductions in funding for Mental Health Trusts, has led to difficulties in finding alternatives to hospital admission, at the same time as a desperate shortage of suitable beds has meant community based services are required even more.

The role of the AMHP is therefore becoming increasingly fraught and stressful. It is hardly surprising that AMHP’s are giving up the role, especially when social worker AMHP’s are also struggling to implement the Care Act.

Para14.35 of the Code of Practice states that:
Local authorities are responsible for ensuring that sufficient AMHPs are available to carry out their roles under the Act, including assessing patients to decide whether an application for detention should be made. To fulfil their statutory duty, local authorities should have arrangements in place in their area to provide a 24-hour service that can respond to patients’ needs.

Unfortunately, “sufficient” is nowhere defined. BASW’s consultation on the Draft Code, back in 2015, observed thatWe often work on a guideline of 1 AMHP per 10,000 population. If this is thought to be a good guideline figure, it may be helpful to state this in the Code.” However, this suggestion did not make it into the final Code.

Hampshire’s total population in 2015 was around 1,350,000. If this guideline were to be applied, Hampshire would require 135 AMHPs to adequately serve the county. However, Andy McNicoll discovered that AMHP numbers had fallen to 46, while at the same time assessments had risen by 12%. Hampshire was working to build this number up to 55, which would still appear to be little more than a third of the numbers ideally required.

Northamptonshire has a population of around 694,000, but has also been losing AMHP’s, currently having only 34, even though assessments rose 19%. If BASW’s recommendation was applied, the county should have at least 94 AMHP’s.

Norfolk’s current population is approaching 900,000. There are currently around 85 AMHPs registered in Norfolk, which is actually close to the BASW’s ideal number. However, with several on long term sickness, or maternity leave, or otherwise unable to practice, the actual number of available AMHPs is less.

The 2016 National AMHP Leads Survey, presented to the AMHP Leads Conference on 19.09.16. does not use BASW’s definition of “sufficient” AMHPs, or indeed suggest another definition. This found that in reality the average number of AMHPs per 100,000 population is 5.7. This would be around half of BASW’s “ideal” number.

Whatever the definition of “sufficient” AMHPs may be, the Community Care article highlights difficulties in retention, through the stress of the role, and having to reconcile normal work commitments, such as implementing the Care Act and managing a case load, with being on an AMHP rota.

There are ways of supporting AMHPs in their role and providing incentives to continue practising. For example, some local authorities provide a financial incentive for being a practising AMHP. This may not, however, in itself be sufficient incentive to undertake the stresses of the role.

The current dire state of mental health services nationally, where there is a national shortage of suitable hospital beds, and where other services, such as the Police and Ambulance Service, are struggling to manage their core duties, makes it difficult, if not impossible at times, for AMHPs to undertake their legal duties, leading to long hours spent trying to organise arrangements for patients who have been assessed.

While the only solution to a lack of resources would appear to be more money, which is to materialise in the current climate of austerity, there are ways in which local authorities can support AMHPs and reduce the stresses of the role. This is through the way that local AMHP services are managed.

Approaches to managing an AMHP service

Nationally, there appear to be three basic approaches to running an AMHP service.

Dedicated AMHP team
This consists of a team of full time AMHPs, whose job is solely to staff the AMHP rota. With such a system, it would be possible to manage with a smaller number of dedicated full time AMHPs.

The advantages of this system are that the team members would not be encumbered with a caseload and can devote their working day to the AMHP role. It also facilitates having a shift system, which might encompass a 24 hour rota.

Disadvantages might include a deskilling of team members, using only their specialist skills and knowledge relating to mental health legislation.

A disparate AMHP rota
This system takes AMHPs from a range of social work (and/or nursing) teams, where AMHPs on duty are situated within their teams, scattered across a geographical area, and are contacted directly when requests for MHA assessments are made.

There are a number of problems associated with working in isolation and receiving requests for assessments directly. One is that you can be bombarded and overwhelmed with requests, if the system is a geographical one, and several requests relate to your specific area.

Another is that you may feel bound to deal with the referral that day, when you are on duty, even though there might be advantages in taking no immediate action.

An example might be a request to assess someone detained under Sec.5(2). This allows for up to 72 hours to assess the patient, who is an inpatient. A patient may be detained under this section when they are an informal patient who impulsively decides they want to discharge themselves.

If you receive a request and assess a patient who has just been placed on Sec.5(2), you may be assessing someone in personal crisis, whereas leaving the assessment for a day or two may give time for the patient to reconsider and decide to remain as an informal patient. So this system could lead to more people being detained under the MHA.

While there are clear disadvantages to patients with this system, there are also disadvantages for the AMHP, who may feel isolated and alone, with no-one to assist when operational problems arise. They may also be expected to accept referrals right to the end of their working day, which could mean working late into the evening.

I worked this system for many years, and our Emergency Duty Team was very strict about not accepting requests before 17:30 hrs. This meant on some occasions having to accept a referral within minutes of the end of the working day.

In my view this system carries a significant likelihood that AMHPs will burn out and decide to hand in their warrants.

Centrally managed AMHP Service
This model consists of a local authority wide AMHP service, with a central “hub”, where duty AMHP’s are based in one or two locations, depending on the geographical size of the area, and where referrals are triaged before being allocated.

This is the system we have operated in my local authority for two years. I like it. Let me tell you how it works.

Our AMHP hub consists of a team manager, who is also the County AMHP Lead. In addition, there are three full time equivalent Practice Consultants, and a business support officer to provide administrative support. The manager and the Practice Consultants are all AMHPs themselves, and take turns on the AMHP rota.

The team is based in a suite of offices based in one of the psychiatric hospitals. One of the county’s Sec.136 suites is based on the same site.

The model has a daily rota of AMHPs, taken from social work and nursing teams across the county – most are based in the central AMHP hub, in a room with the duty Practice Consultant. In addition, because of the geographical size of the county, one is based in the west of the county, and one in the east.

Duty AMHPs are expected base themselves in designated AMHP offices, with the bulk being in the AMHP hub. All the AMHPs have laptops, and there are sufficient docking stations for all the duty AMHPs to be able to log in to the central database.

The AMHP hub is a lively place, where AMHPs can support each other, share problems or practice issues, and discuss various aspects of Mental Health law. And drink coffee and eat biscuits.

Each day, there is a Practice Consultant on duty. Their job is to receive requests for Mental Health Act assessments, to triage and prioritise them, and to allocate to AMHPs if appropriate.

This is a robust and proactive job. I know, as one day a week I am the duty PC (Only one day a week, you ask? Remember, I am semi-retired, I only work two days a week, one day as a duty AMHP, and one day as a PC).

Some requests clearly require the allocation of an AMHP. These would include Sec.5(2) on a hospital ward, where an assessment has to take place within 72 hours, and Sec.136, which generally cannot be discharged without the involvement of an AMHP. Sec.136 detentions always take priority. They would also include patients detained under Sec.2, where the hospital psychiatrist wants to detain them under Sec.3, and requests relating to patients in police custody.

Some requests require more investigation before a decision is made whether or not to conduct a formal assessment. The duty PC will see what available information there might be about the person. They may ring the referrer, to establish what action has been taken prior to the request, with a focus on establishing that all less restrictive options, in accordance with the first principle of the Code of Practice, have been exhausted prior to making the referral.

Sometimes these conversations can become difficult, especially if the PC has made a decision not to accept the referral (you can see a sample in a previous blog post). But the PC needs to make sure that any request does actually require the involvement on an AMHP; the need to protect a scarce resource is important.

This system also allows the PC to prioritise requests. Often, there is no great urgency in the assessment. There may be a week or more before a Sec.2 expires, allowing plenty of time to undertake an assessment under Sec.3. A Sec.5(2) allows 72 hours to undertake an assessment. And of course, with a dire shortage of beds, even if an assessment takes place, the AMHP may not be able to complete the section papers because there is no bed.

(As a current example, I am aware at the time of writing that there are 8 dementia patients awaiting a dementia bed. There are frequent requests to assess dementia patients in care homes. How can this be treated as requiring an urgent response, if there may not be a bed available for one or two weeks?)

This system permits the service to protect AMHPs to a considerable extent. It means that fewer AMHPs have to go out at the end of their working day. It often means that referrals can be stacked and dealt with first thing the next morning, making it more likely that the assessment would be concluded within the normal working day. The duty PC is also available on the phone to offer advice and support to the AMHPs out in the field.

This system has a further advantage: the management team, with direct day to day experience of the AMHP role, are ideally suited to provide professional AMHP supervision, to ensure that AMHPs maintain their Record of Achievement in order to meet reapproval requirements, and to maintain quality control. An example of this is that it is one of the duties of PCs to sign off AMHP reports, meaning that every report is read by a PC, and any practice issues can then be identified and managed within professional supervision.

It also means that specific operational issues, such as bed shortages, issues with police and ambulance response times, etc, can be flagged up, and taken forward to higher level multi-agency meetings for resolution.

The evidence so far is that this approach can help to maintain staff morale, to provide an environment in which the AMHP role is supported and valued, to reduce “burnout” and to aid in staff retention and maintain an effective AMHP service.

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.