Tuesday, 21 June 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, 10 June 2016

Section: Radio Drama about a Mental Health Tribunal

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

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


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

I can't wait to hear it!

Friday, 27 May 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, 20 May 2016

Death and Fire Bunnies: Another Story from an Out-of-hours Social Worker

I’ve mentioned before on this blog that in addition to my day job, I did shifts in the local out-of-hours social work team for about 14 years, throughout the 1980’s and 1990’s.

You were very much on your own: there were two social workers on duty covering a county that was 75 miles from west to east, and 50 miles from north to south. A deputising service took calls and passed them on to these two workers, who then dealt with the referral as they saw fit, whether it was a Mental Health Act assessment, an allegation of child abuse, a frail elderly person needing a night sitter – or anything else at all that could conceivably fall within the remit of social services.

We were pretty much allowed to make our own decisions without interference. Often it was as much about what you decided not to do as what you did.

One winter’s evening, I received a call from a medical ward in a hospital. The Sister was concerned about Erica, a woman in her 70’s who had been present at her terminally ill husband’s bedside when he had finally died.

“I’m very worried about her,” the Sister said. “She won’t stop crying. We’ve got her in a side room, and one of my staff is with her, but we’re worried she might do something silly if she goes home. She might need to be admitted to a psychiatric hospital.”

I couldn’t help feeling that the quality of the referral was dubious. After all, isn’t someone entitled to cry when a loved one has died? Isn’t it something that nurses on a medical ward come across frequently, and ought to know how to deal with such events?

However, the Sister maintained that this wasn’t normal, and that Erica needed to be assessed.

In the end, I decided I had to go out and see Erica, although I was not going to treat it as a formal request for a Mental Health Act assessment, which seemed disproportionate in the circumstances.

The county being so geographically large, it was about an hour before I got to the hospital. Erica was in a side room. She was no longer crying, and seemed quite composed.

“I’m very sorry you’ve been bothered,” she said. “As you can see, I’m quite all right now. But Jimmy and I have been married nearly 50 years, you see, and I’m going to miss him.”

A tear sprang into her eye, although she did not sob.

“Do you have any relatives nearby? Any children?” I asked gently.

“Jimmy and I never had children. I’ve got a sister, but she lives 200 miles away. I don’t want to bother her. I promise, I’ll be all right.”

“What would you like to happen right now?”

“I’ve paid my respects, I’ve said my goodbye. I don’t want to stay here any longer – Jimmy isn’t here now. He’s somewhere else. I’m tired. I’d like to go home.”

“Would you like me to take you home?” I asked.

“I don’t want to put you to any trouble.”

“It’s no trouble.”

Her home wasn’t far away, and we were soon at her dark cottage. She unlocked the door and I followed her inside. The house was clean and tidy, displaying the love she had had for their home, but it was cold. She did not have any central heating.

I noticed a tiled 30’s fireplace, with a grate and a bucket of coal on the grate.

“Shall I light the fire for you?” I asked her. “Have you got any firelighters?”

“I don’t use firelighters,” she said. “I just make some fire bunnies.”

“Fire bunnies? What are fire bunnies?”

“Don’t you know what fire bunnies are?”

I shook my head. “Can you show me?”

“Come and watch me,” she said, getting a newspaper and kneeling down by the fire.

I observed as she took a sheet of newspaper and rolled it into a long tube. Then she tied it into a loose knot and popped it into the grate. She continued to do this until she had used up the newspaper. Then she laid a few pieces of kindling wood on top, and finally added a few lumps of coal.

Once she was satisfied, she struck a match and lit one of the fire bunnies.

The fire very soon flared up, the fire bunnies providing a rapid and efficient source of heat, catching the kindling, and soon the fire was blazing away and bringing warmth into the room.

“That’s amazing,” I said, genuinely impressed. “I’ve never heard of fire bunnies before. What a good idea. I’ve got a woodburner at home. I’ll have to try that next time I’m lighting a fire.”

Her face lit up with pleasure. “Oh, I’ve known how to do that since I was a little girl. My mother taught me. Would you like a cup of tea?”

She made us a cup of tea and we sat in front of the fire while she told me about her mother, and her father, and even her grandmother. And about Jimmy, of course.

By the time I left, I was satisfied she was safe to be alone. She was best at home. I knew she had a long journey ahead of her, and it wouldn’t be easy. But she was already beginning to process her grief. She would make it.

Friday, 15 April 2016

Anorexia: Persist with Treatment or Allow to Die? Recent Case Law

(Post contains references to weight loss and BMI)

In the last few years there have been a couple of judgments from the Court of Protection relating to the treatment (or otherwise) of women with anorexia. There has now been a third.

Back in 2012 Mr Justice Peter Jackson considered the case of E. I wrote about this judgment here.

Briefly, E was a 32 year old woman suffering from Anorexia Nervosa, Emotionally Unstable Personality Disorder, and chronic alcohol dependence. She had a Body Mass Index of less than 12 (normal is 20-25). She was in a palliative care setting and was refusing to eat. She had a very long history of anorexia, and had had been subject to many treatment regimes over that time, with little or no success. She was at the point of death. The essential decision the Judge had to make was whether or not further life saving treatment against her will was in her best interests.

The Judge concluded: “The presumption in favour of the preservation of life is not displaced. I declare that E lacks capacity to make decisions about life-sustaining treatment, and that it is lawful and in her best interests for her to be fed, forcibly if necessary.”

This meant that she would continue to be treated, although at least initially under the Mental Capacity Act rather than the Mental Health Act, even though she had often been detained for treatment under the MHA in the past.

In 2014 there was the case of X, which I wrote about here. Her clinical team, far from requesting a decision to impose continuing treatment, were actually asking for declarations to permit them to cease treatment.

Ms.X had a 14 year history of severe anorexia nervosa, complicated by also having alcohol dependence syndrome which had caused chronic and irreversible cirrhosis of the liver. She had had many spells as an inpatient detained under the MHA when she had had forced refeeding. At the time of the judgment, she had a BMI of less than 13.

She seemed in many ways to have a similar presentation to E, but the Judge in her case reached a very different conclusion from the Judge in E’s case, stating that, although “the starting point is a strong presumption that it is in a person's best interests to stay alive … this is not absolute. There are cases where it will not be in a patient's best interests to receive life-sustaining treatment”.

He stated: “I have reached the clear conclusion that I should not compel treatment for Ms X's anorexia.”

Now there has been another Court of Protection judgment ([2016] EWCOP 13) which concerns W, a 28 year old woman with a 20 year history of anorexia nervosa. The Judge in the case of E, Mr Justice Peter Jackson, was again the Judge in this case.

He described her situation thus:

Since the age of 11, she has had six admissions for inpatient treatment, spread between five units around the country and amounting to about 10 years in total.  Her current admission has lasted for 2½ years and yet, despite the most intensive support, she is barely eating and is losing weight at the rate of 500 g – 1 kg per week.  She now weighs less than 30 kg and her BMI is 12.6.  If she continues to lose weight at this rate, she will die.

Despite this, the local health board (the case was in Wales) proposed that W “should now be discharged into the community with a closely thought-out package of support for her and her family. Given W’s fragile condition, it is a plan that has only been arrived at after the most anxious consideration by her care team. It will at first seem counter intuitive that someone so ill should be discharged from hospital. The conventional assumption is that hospital treatment is likely to bring benefits, but the evidence has persuaded me that in this case that is not so.”

The Judge considered a large amount of evidence from psychiatrists and others involved in her care, and also took full account of the views of W’s relatives, as well as speaking to W herself.

The Judge noted that the psychiatrist who offered professional advice to the court on the case “was guarded about any therapeutic intervention turning W’s situation around. At the moment she understands intellectually that her life is already in danger but she is not overly concerned at the prospect.  The history shows that W only eats when her situation deteriorates to such an extent that she actually believes that she might be in imminent danger of death.”

The Judge concluded that it “now has to be accepted that it is beyond the power of doctors or family members, and certainly beyond the power of the court, to bring about an improvement in W’s circumstances or an extension of her life.  The possibility that the withdrawal of inpatient mental health services will bring about a change for the better may not be very great, but in my judgment it is the least worst option from W’s point of view.”

To summarise these cases then: in one it was decided to enforce treatment outside of the Mental Health Act; in the second it was decided to cease all treatment and in effect permit the patient to die; and in the most recent, to cease inpatient treatment in the probably vain hope that the patient might see the error of her ways and start to put weight on again.

In most Court of Protection cases involving threats to the health of people lacking capacity, the issue tends to relate solely to physical interventions for physical problems. These quite often concern surgery to remove gangrenous limbs (there have been a remarkable number of CoP decisions relating to people with complications associated with diabetes, which I might consider in a separate post at some point), or where a pregnant woman lacking capacity needs a caesarean section or other intervention associated with childbirth.

But these three cases all involve people with severe mental illness, who need treatment in order to treat the consequences of their mental disorder. While this treatment may require medical interventions, they arise from mental disorder, and compulsory treatment is permitted by the Code of Practice under the Mental Health Act.

I remain uncomfortable with the concept of using the law, whether it be the Mental Health Act or the Mental Capacity Act, to permit the stopping of life saving treatment, but I also recognise that there may be occasions when diligent clinical teams reach a point at which they can no longer justify continuing treatment, especially when that treatment could be considered unjustifiably invasive and oppressive. I suppose it is then appropriate to ask to courts to adjudicate.

But I also remain uncomfortable with the fact that these three cases are all concerned with women with anorexia nervosa. Having worked with people with anorexia (men as well as women), I know how frustrating it can be to attempt to treat them and effect change in their behaviour. I also know how difficult it can be to establish a balance between the need to provide treatment and the need to respect the human rights of the individual.

Maybe there are times when the right of someone with a severe mental disorder to refuse treatment, even if the consequence is that they will die, must be respected.

Or do these cases say more about the ineffectiveness of current treatments for anorexia?

Wednesday, 6 April 2016

Sinking into a Legal Quagmire

I was on AMHP duty recently when I received a request for an urgent assessment under the Mental Health Act. It had come from the local criminal justice liaison nurse, who was ringing from the patient’s flat.

This in itself was very unusual. Criminal justice liaison nurses usually only assess people who are in police custody or in court.

The circumstances were as follows. Every year, the local housing association has to make a gas safety check of all their properties. One particular tenant, a man in his late 60’s who lived in a ground floor flat, had ignored all their letters and calls, and was refusing entry.

Eventually the housing association had obtained a warrant from a magistrate to enter the premises in order to check the gas supply. Two officials from the housing association had then attended the man’s flat with police officers, a locksmith and a gas engineer.

Despite the police attempting to gain entry without force, the tenant refused to open the door. At this point, the locksmith was employed to drill the lock and entry was then obtained. The tenant objected strenuously to what was happening, and the police, noticing a knife on a table near to the tenant, and fearing an incident, had then restrained and handcuffed him.

The behaviour of the person, and the condition of the property, gave the police cause to believe that he might be mentally disordered, and they then asked the liaison nurse to assess, which he did. As he thought that the person was acutely psychotic, and needed to be assessed with a view to admission to hospital for assessment, he contacted me.

There was indeed a degree of urgency. There were four police at the flat, the man was being held in handcuffs, and something needed to be done as soon as possible to resolve the situation one way or another.

I managed to obtain some background information on the patient from case records before I took any further action.

He was called Alfred and was 69 years old. He was a highly educated man, who had graduated with a first in English from Cambridge University in the 1960’s, and had gone on to teach English literature in a private school for a number of years.

Sometime in the 1980’s he had been admitted to psychiatric hospital under Sec.2 and had remained in hospital under Sec.3 MHA for several months. He had received a diagnosis of paranoid schizophrenia.

He never returned to work, and indeed disappeared from view for over a decade, when he was found by police sleeping rough, and was detained under Sec.136. He had again ended up in hospital under Sec.3, and was discharged to the housing association flat in around 2000, at which point he was receiving a regular antipsychotic depot injection. The records showed that after about 5 years it was decided to reduce and then withdraw the depot, and he was eventually discharged from Sec.117 aftercare and from secondary mental health services.

So although he had a long history of psychiatric disorder, he had not had any involvement with mental health services for nearly 10 years.

I quickly managed to obtain two Sec.12 doctors and within two hours of receiving the call we were all at the flat.

We were told by the housing association staff and the police that Alfred had been expressing extreme racist views about both the police and the housing association staff. He had used a range of racially abusive epithets, which was in itself slightly odd, as all the police and the staff were white British, as was Alfred.

We were told that Alfred appeared to be paranoid about infiltration and contamination. He had screwed closed the gas meter box, had sealed all the ventilation ducts in the flat, and had placed wooden shutters over the inside of the windows.

We went into the hallway of the flat. The flat itself was crammed with cardboard boxes. The living room was lined to the ceiling with bulging cardboard boxes, leaving little room for the dilapidated armchair and a coffee table. The bedroom was so full of boxes that there was only room for his single bed.

One of the police ushered me into his kitchen.

“Look at this,” he said, kneeling down and shining his torch through the glass door of Alfred’s washing machine. The washing machine was half full of water. Floating in the water were several large, dead fish. They looked like mackerel, or possibly herring. This added to the overall sense of unreality.

Alfred himself was sitting on the bed. He was in handcuffs, and a police officer was crouching in front of him clutching the handcuffs to prevent him from struggling. There was not enough room for the doctors and I to enter the bedroom, and we therefore had to attempt to interview him from the hallway.

It all felt very unsatisfactory. I was not sure this constituted assessing “in a suitable manner”. I did not feel in control of the situation.

Alfred unsurprisingly did not cooperate with the assessment. He harangued and swore at us, accusing us of being part of a conspiracy by the Muslims to convert him to Islam so that he could be used as a suicide bomber. He did not believe we were police, or doctors, or an AMHP. Instead, he appeared to be convinced that we were spies, intent on stealing his home and shipping him off to Syria through extraordinary rendition.

He was not making much sense.

The doctors and I, despite our disquiet at the circumstances of the assessment, concluded that Alfred had had a relapse of his paranoid schizophrenia, and was acutely unwell, and that he needed to be admitted to hospital for assessment of his mental state. The doctors gave me a joint medical recommendation for Sec.2 MHA.

At that point, things started to get worse.

In an ideal world, I would have completed an application for detention under Sec.2, the police would have accompanied Alfred to hospital, and Alfred’s flat could have been made secure.

But we are not in an ideal world, dear reader.

I rang the bed manager, who told me that there were no beds anywhere in the Trust. They would look elsewhere in the country, but it was going to take time, and it would probably be in a private hospital. And they would require me to fax through to them a full risk assessment, because private hospitals would not consider anyone without a full risk assessment. The bed managers appeared to be oblivious to the difficult and untenable situation, and the pressing need in the circumstances for the patient to be taken to a hospital.

I explained this to the police. They said they would stay there for now, but they were obviously unhappy that the patient was in handcuffs. But then they had taken that action in the first place, and had then called me.

So I went back to the AMHP office to write a risk assessment.

And had some space to think about the full implications of the whole thing.

And started to worry.

In the heat of the moment, and at the behest of the police and the forensic liaison nurse, I had gone out to assess someone in their own home without fully considering the legal status of the request.

The warrant the housing association had obtained was under Sec.2 of the Environmental Protection Act 1990. This is specifically for the purpose of servicing or maintaining a gas appliance. Did that give me the power to enter his flat in order to assess him under the Mental Health Act, even at the request of the police? I wasn’t at all sure that it did.

And now I had assessed him, I was powerless to make it even a little bit legal by completing an application and therefore making him “liable to be detained”. This would have then given the police, or an ambulance crew, the power to convey him to a hospital.

In the meantime, Alfred couldn’t be detained under Sec.136 and taken to the Sec.136 suite until a bed was available for two reasons: firstly, he was not in “a place to which the public have access”, as he was most definitely in his own home; and secondly, as the purpose of detention under Sec.136 is for a patient to be assessed for possible detention under the MHA, since he had already been assessed, it would be an abuse of the Act.

He couldn’t be arrested, and then taken to a place of safety, as according to the police, he had not actually committed an offence.

So currently there were no legal powers for the police to keep Alfred in handcuffs, or indeed to remain in his property without his consent.

I rang the duty sergeant and discussed this with her. Since there was no immediate prospect of a bed being available, enabling me to complete an application for his detention, I advised that the police would have no option but to leave Alfred’s flat immediately.

The following day, I was notified that a bed was available. The good news was that it was in a local hospital. It meant that I could complete my Sec.2 application form and render Alfred at last “liable to be detained”.

However, since it was extremely unlikely that Alfred would permit anyone to enter his flat in order to take him to hospital, I would have to obtain a warrant under Sec.135(2), giving the police the power to enter his flat in order to “take or retake” a patient liable to be detained under the MHA.

But at least that would be legal.

Thursday, 17 March 2016

When can someone not related to you be regarded as your Nearest Relative under the MHA?

Related or not?
Our local AMHP service was greatly exercised recently trying to decide the nearest relative of a particular patient who needed to be assessed under the Mental Health Act.

The patient was a woman in her 30’s. She had no partner, and no children, but she did have a mother and a father. She had lived with a boyfriend in his parents' home for a couple of years, but this relationship had ended, he had moved out, but she had remained living there with his parents. This arrangement had continued for the last 10 years. As she had a number of chronic and disabling physical and mental health conditions, they had not just acted as landlords, but had been providing substantial care, including managing her medication, and taking her to medical and other appointments.

Who should be regarded as the nearest relative within the meaning of the Act?

Following the hierarchy set out in Sec.26 of the MHA, I would be inclined to identify the first people who came in that list.

Sec.26(1) states:
(1) In this Part of this Act “relative” means any of the following persons:—
(a) husband or wife or civil partner;
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(e) grandparent;
(f) grandchild;
(g) uncle or aunt;
(h) nephew or niece.

Looks fairly straightforward, doesn’t it? It would surely be the elder of the patient’s parents.

(By the way, someone living with you as a husband, wife or civil  partner, whether of the same or different sex, for at least 6 months, will automatically count as your nearest relative.)

However, Sec.26(7) states:
A person, other than a relative, with whom the patient ordinarily resides… and with whom he has or had been ordinarily residing for a period of not less than five years, shall be treated for the purposes of this Part of this Act as if he were a relative but shall be treated… as if mentioned last in subsection (1) above.

And of course, we mustn’t forget Sec.26(4), which states:
Where the patient ordinarily resides with or is cared for by one or more of his relatives… his nearest relative shall be determined… by giving preference to that relative or those relatives over the other or others.

So does the fact that the patient has lived with, and been cared for, by people not her relatives for over 5 years trump the parents?

The MHA Reference Guide has a generally helpful seven step procedure for identifying the nearest relative. This makes reference to a modified hierarchy, which places at the bottom, in 13th place, “other person aged 18+ who qualifies as a relative by having lived with the patient for at least five years”.
It also states that:
“The general rule is that the nearest relative is the person who comes first in the list of relatives described above (with people who are only relatives because they have lived with the patient for at least 5 years coming at the bottom of that list)” (Para 2.12)

It then adds that “a relative who ordinarily lives with or cares for the patient takes
precedence over other relatives.”(Para 2.15)

Richard Jones in the Mental Health Act Manual, observes that subsection (7) “provides that a person who has been living with the patient for five years or more shall be treated as if he or she were a relative who came last on the hierarchy of relatives…By virtue of subsection (4), that person, as a relative who “ordinarily resides” with the patient, becomes the patient’s nearest relative unless a relative who came higher in the hierarchy is either living with or caring for the patient.” (1-412, 18th edition)

So while the Act itself does not include such people in the list in Sec.26(1), the Reference Guide does include them. And if they are therefore included at all, then Sec.26(4) must logically apply to them.

I have to confess that I always believed that a non-relative with whom the patient had been living for at least 5 years could only count as a relative if there was no-one else on the hierarchy of permitted relatives.

Indeed, I remember the general sense of unfairness that a same sex couple only had the same status as a non-relative, even if they’d lived together for their entire adult lives. This was eventually rectified in case law, and then explicitly added to the MHA in the 2007 amendments.

However, the guidance does appear to state that in the case of the patient I mentioned earlier, the people she is living with, and who care for her, would take precedence over other, blood relatives.

While I recognise that non-relatives may often be providing substantial care and have some right to be consulted, I am not sure that Parliament necessarily intended for such people to take precedence over actual relatives of the whole blood, in the same way that the MHA, in Sec.26(3)), explicitly states “relatives of the whole blood being preferred to relatives of the same description of the half-blood.”