Monday, 21 July 2014

The New Draft Code of Practice: a Brief Overview

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, 10 July 2014

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

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


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

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

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

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

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

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

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

I discussed the problem with the custody sergeant.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sam and Stuart

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I explained the situation to him.

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

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

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

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

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

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

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

Thursday, 3 July 2014

The Case of P and the MCA/MHA Interface: Recent Case Law

An urgent referral to the Courts for a child, P, aged 17 years, was made on 13th May 2014 and was heard late at night by Mr Justice Baker.

P had a history of self harming behaviour and was well known to the Child and adolescent Mental Health Service. She had briefly been detained under Sec.2 MHA, but had been discharged the previous week.

In the afternoon of 13th May 2014 she had taken an overdose of paracetamol, and was refusing lifesaving treatment. Although her mother had given consent to this treatment, the hospital trust was reluctant to treat her on this basis.

They arranged for the on call child and adolescent psychiatrist to assess P. He did not have any previous acquaintance with P prior to the assessment.

The judge noted:
“Although she suffered from a personality disorder, it was his view that she did not lack capacity to make decisions concerning her medical treatment. She was able to understand information and retain it, and also to weigh it up and use it. I was told that the physician at the hospital who was responsible for treating P this evening has some doubts about the psychiatrist’s opinion, having observed her behaving in an erratic and inconsistent way during the course of this hospital admission.”

Because of the necessity to treat the overdose before irreversible damage was done, the Trust went to the court to seek a declaration “that it was lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the overdose”.

The case depended entirely on a judgment relating to the capacity of P. The judge noted: “although the physician at present treating P in hospital has some doubts as to her capacity, the psychiatrist responsible for treating her has expressed the view that she has capacity, notwithstanding her mental health history and personality problems.”

The judge reached the conclusion that he was “not satisfied that P lacks capacity within the meaning of section 3 [of the MCA]. Having regard to the clear principles in section 1, I accordingly propose to make a declaration that on the basis of the information available at present, I am not satisfied that she lacks capacity to make decisions concerning her medical treatment.”

The judge then continued to consider issues of “Gillick competence”:

“A person with capacity under the age of 18 who is “Gillick competent” – that is to say, having a state of maturity, intelligence and understanding sufficient to enable her to take a decision as to medical treatment for herself – is deemed to have legal capacity to consent to treatment. Where, however, a Gillick competent child refuses to give her consent to the treatment, the court may, in the exercise of its inherent jurisdiction, override the child’s wishes in her best interests and give its consent to her treatment.”
He concluded:

“The wishes of a young person aged seventeen and a half are important. They are, of course, entitled to be taken into account as part of her Article 8 rights under ECHR. On the other hand, those rights are not absolute. Here, they are outweighed by her rights under Article 2 – everyone’s right to life shall be protected by law. The court is under a positive or operational duty arising from Article 2 to take preventative measures to protect an individual whose life is at risk.”

He therefore declared that “it is lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the effects of her overdose notwithstanding the fact that she is refusing treatment”.

There are a number of interesting and potentially highly significant conclusions to consider in relation to this judgment.

Here is another case in which a judge has relied on the concept of “inherent jurisdiction” to reach what he considered was the most appropriate decision. Under English common law, a superior court has the jurisdiction to hear any matter that comes before it, and it allows it to control its own processes and to control the procedures before it.

I recently considered a judgment from the Court of Protection in which inherent jurisdiction was invoked in order to reach, in that case, a somewhat extraordinary and legally dubious conclusion.

It does appear that, where existing legislation appears to a judge to be deficient, then “inherent jurisdiction” can be invoked to facilitate whatever judgment a judge wishes to make. I am concerned, especially in this case, that other potential resolutions to the case of P within existing law were not explored.

I am reminded of the case of Kerrie Wooltorton, a woman with a personality disorder who drank antifreeze and then refused life saving treatment. On the basis that she had capacity and had made an advance decision refusing treatment, she was allowed to die, and the subsequent inquest upheld the decisions of the doctors responsible for her care. I considered this case at some length here.

In such cases, where a patient who has capacity is refusing treatment, perhaps consent to treat against the patient’s will can be obtained from the courts regardless of existing legislation, as long as the judge is prepared to invoke the court’s “inherent jurisdiction”.

The judge concluded that P had capacity, and therefore the Mental Capacity Act could not be used. But he did not appear to consider the powers under the Mental Health Act.

The 2007 MHA introduced an amendment: Sec.64G, which covers emergency treatment for patients lacking capacity. This does give powers for people to give emergency treatment, especially if the treatment is to be given in order to save the patient’s life.

However, since P was deemed by both the psychiatrist and the judge to have capacity, this section could not apply.

But, as I pointed out in my blog on Kerrie Wooltorton, the issue of whether or not a patient can be deemed to have capacity is not particularly relevant to a determination regarding detention under the MHA.

For example, in order to legally detain someone under Sec.2, the AMHP merely has to be satisfied that the patient “is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period” and that the patient “ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”

In order to be able to treat P under Sec.2 MHA, it was only necessary to establish that she was suffering from a mental disorder within the meaning of the MHA, and that this was of a nature of degree that warranted her detention for assessment and/or treatment.

Since P had been a patient of CAMHS, and the assessing psychiatrist was satisfied that she had a personality disorder, which is a “mental disorder” within the meaning of the Act, and she undoubtedly needed assessment/treatment, then an AMHP could have made an application using a medical recommendation from the psychiatrist and one from a hospital doctor who was intending to treat her.

It would certainly have avoided the necessity to get a High Court judge out of bed.

Thursday, 26 June 2014

Ask the AMHP -- This Week: Sec.5(2), Conflicts of Interest, and the Isle of Man MHA

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.
A psychiatrist asks:
Can someone detained under Sec.5(2) who is in need of medical treatment for physical reasons be transferred to a medical ward in a general hospital?

The Masked AMHP replies:

No. Para 12.40 of the Code of Practice states unequivocally:  “It is not possible for patients detained under section 5 to be transferred to another hospital under section 19 (because they are not detained by virtue of an application made under Part 2 of the Act).”

It would be justifiable to admit them to a medical ward on the basis of urgent medical necessity, especially if the patient recognises they are in need of medical treatment, but it could not be done by the use of either transfer or Sec.17 leave.

Another psychiatrist asks:
What constitutes a conflict of interest when conducting an assessment under the MHA?

The Masked AMHP replies:

Para 7.9 of the Code of Practice states that:
“a conflict of interest for professional reasons will occur where:
  • the assessor is in a line management or employment relationship with one of the other assessors or the patient or the nearest relative (where the nearest relative is the applicant);
  • the assessor is a member of the same team as the patient; or
  • where there are three assessors, all of them are members of the same team.”
It continues:
“7.10 A line management relationship will exist whether an assessor manages, or is managed by, one of the other assessors, the patient or the nearest relative (where the nearest relative is the applicant). Similarly an employment relationship will exist whether the assessor employs, or is employed by, one of the other assessors, the patient or the nearest relative (where the nearest relative is the applicant).
7.11 For the purposes of the regulations a team is defined as a group of professionals who work together for clinical purposes on a routine basis. That might include a community mental health team, a crisis resolution or home treatment team, or staff on an in-patient unit (but not necessarily the staff of an entire hospital).”

To translate this into a typical scenario, where Dr A and Dr B assess a patient with AMHP C:
  • If Dr A supervises Dr B, there would be a conflict of interest.
  • If Dr A and Dr B are of equal status and not supervised by the other, but they both work in the same Community Team as AMHP C, then there would be a conflict of interest.

Someone emails The Masked AMHP to ask:
Is Sec.117 aftercare contained in the Isle of Man Mental Health Act?

The Masked AMHP replies:

This is an interesting question. Many people will be unaware that the Isle of Man, which is an island in the Irish Sea about 80 miles northwest of Liverpool actually has its very own Mental Health Act. The Isle of Man is a British Crown Dependency. It is 32 miles long and 14 miles wide, and has a population of around 81,000 people.

Since it never became part of the kingdom of Great Britain, it has its own Parliament and makes its own laws. This includes a Mental Health Act, which became law in 1998.

Much of the Act mirrors the English MHA 1983, although the Isle of Man still has Approved Social Workers. It even has provision for Aftercare under supervision. It also has an equivalent to Sec.117, which under the Isle of Man MHA is contained in Sec.115:
“(1) This section applies to persons who are-
(a) detained under section 3,
(b) admitted to a hospital in pursuance of a hospital order made under section 54(1) of the Criminal Jurisdiction Act 1993 or paragraph 2 of Schedule 2A to the Summary Jurisdiction Act 1989, or
(c) transferred to a hospital in pursuance of a transfer direction made under section 53 or 54 or a hospital direction, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.
(2) It shall be the duty of the Department, in co-operation with the Department of Health and relevant voluntary agencies, to provide, or to make arrangements for the provision of, after-care services for any person to whom this section applies until such time as the Department is satisfied that the person concerned is no longer in need of such services; but it shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject."

The Isle of Man MHA also has its own Code of Practice. Chapter 27 deals with aftercare. Although most of the chapter equates aftercare with the English Care Programme approach, 27(3) does state:

"Section 115 of the Act requires the Department in conjunction with voluntary agencies, to provide after-care for certain categories of detained patients. This includes patients given leave of absence under section 17. The after-care of detained patients should be detailed in the care plan but because of the specific statutory obligation it is important that all patients who are subject to section 115 are identified and records kept of them. There is a section 115 after-care entitlement when the patient stays in hospital informally after ceasing to be detained under the Act, and also when a patient is released from prison, if they have spent part of their sentence detained in hospital."

I am afraid that I am unable to say whether or not aftercare under Sec.115 is chargeable. Perhaps an ASW in the Isle of Man could enlighten me.

Tuesday, 17 June 2014

Stalemate: Dilemmas When Working Out-of-hours and the Difficulty with Teenage Girls

Helen Flanagan in Coronation Street
Throughout the 1980’s and 1990’s, as well as doing my day job, I also worked one or two shifts a week on the out-of-hours standby duty team. This team, consisting mainly of fulltime social workers, dealt exclusively with emergencies and crises that arose outside normal working hours. We covered nights, weekends, and Bank Holidays.
Out of hours, two social workers covered the entire county. It was a large geographical area, and although I lived fairly centrally within the county, it could still entail a journey of 40 or 50 miles to reach the far ends.
We dealt with all the service user groups: children and families, young offenders, older people and people with physical disabilities, as well as people with mental health problems. We dealt with any sort of crisis, including child protection investigations and emergency protection orders, assessments under the Mental Health Act, and obtaining night sitters or emergency residential care for elderly people.
Here then, are two true tales from The Masked AMHP’s archives.
For some reason, teenage girls often seemed to present the most intractable problems...
One evening I received a call from a woman, reporting that her daughter had brought Angela, a 14 year old friend, home with her. Angela was saying that she hated living at home, and that she would not go home tonight. The friend’s mother seemed a reasonable person. After a discussion, it was agreed that Angela would stay the night with them and I would then report the matter to the local social services department in the morning. This seemed to me to be a good temporary solution to the problem.
I rang Angela’s parents and told them what had happened, and what was planned. They did not like this.
“She’s our daughter, and she belongs with us. We’re not giving permission for her to stay with her friend,” the father insisted.
I suggested that if he felt that way, he could go to the friend’s house, which was several miles away, and collect her. However, he had no transport.
I talked to the friend’s mother, who did not think she should go home, was not prepared to take Angela home herself.
I had a dilemma. Her parents were insisting she went home. There was no legal authority for Angela to stay with her friend overnight. Angela was unable to give me any evidence that she had been abused in any way by her parents, so I could not apply for an emergency protection order. A teenage girl not wanting to go home was not exactly a matter for the police.
I reached the conclusion that the only thing I could do was for me to collect her and take her home, despite the fact that I would have a drive of over 40 miles to get to the friend’s house.
When I got there, Angela was understandably not happy about this arrangement.
“I’m not going home. I hate them. They hate me. I’m not going home.”
It took me some time to persuade her that, much as I might sympathise with her situation, I had no powers to endorse her staying with her friend. I told her that she would have to go home tonight, and discuss her feelings with a social worker in her locality the next day if she was that unhappy about being at home.
We drove back to the estate in the town where she lived. The estate was a warren. It was not easy to find her address. I asked her to give me directions, but she refused to cooperate.
Without her help, and in spite of Angela huffing and tossing her hair back in the passenger seat, I eventually found her road. Her house was the last in a line of terrace houses overlooking a grassed area. It was not therefore possible to park directly outside the house.
I got out of the car and opened the passenger door.
“Here we are Angela,” I said to her.
She did not move.
“I’ve got to take you home,” I said, my heart already sinking.
“I’ve already told you. I’m not going home.”
“You have to, I’m afraid.”
“No I don’t. What are you going to do about it?” she asked defiantly.
What was I going to do about it? I couldn’t physically manhandle her out of the car, and certainly couldn’t restrain her and drag her, kicking and screaming, past the other houses until I got to hers.
This was in the days before mobile phones, so it was not an option to ring her parents to say I was nearby and get them to help.
It was clear I could not persuade her to get out of the car voluntarily. I also knew that if I left the car to go to her house, she would take the opportunity to run away.
In the end, knowing what would happen, but being powerless to prevent it, I went to her parents’ house. As I left the car, I heard the passenger door open and close. When I turned round, Angela had already disappeared into the night.
I informed her parents, and notified the police. I found a phone box and let Angela’s friend’s mother know what had happened. I suggested that if Angela happened to turn up at her house that night, that she leave it till the morning before letting anyone know.
Fairly late one evening, I received a call from a rural police station many miles from where I lived. Anthea, who was also aged 14, had voluntarily come into the police station. She was in the care of the local authority, and had recently been placed with foster carers. She was refusing to go back to them.
It seemed to me that the most straightforward solution, taking into account the late hour, would be for her to be placed overnight in one of our children’s homes. The police could transport her there. I would not have to go out.
In order to facilitate this, I had to ring the local children and families team manager.
“Anthea’s trying it on,” he said. “There’s no good reason why she should not go back to the foster carers. I’m not agreeing to a placement in a children’s home.”
I let the police know this. They were not happy.
“She says she hates the foster carers. She won’t go back there,” the sergeant said.
“But she’s got to. There’s no reason for her not to go to the foster carers. We’re playing into her hands if we give in to her demands.”
“Well, I’m not deploying any of my officers to take her there,” the sergeant told me.
So I would have to go to this police station, pick her up and take her to the foster carers myself.
When I arrived, Anthea was not at all pleased to see me.
“I’m not going back to those bastards,” she said.
“There’s no other option,” I said.
“I’m telling you, there’s no way I’m going back there.”
Had it been my decision, I would have concurred, and placed her in a children’s home overnight, at least until her social worker could sort out a longer term solution. But my hands were tied, and I was having to execute an action that was ordained by others.
She refused point blank to get in my car, so the police reluctantly agreed to transport her in police transport as long as I accompanied them.
I followed the police car to the foster carers’ home, which was on the edge of a remote village. By now it was after midnight.
Anthea refused to get out of the police car. I asked the police to help me get her back to the foster home, but they saw me as the wrongdoer in all this, and refused to cooperate.
As I was discussing this with the officers,  Anthea did get out of the police car, but instead to going into the house, she instead headed off in the opposite direction, down the pitch black lane.
“Can you stop her?” I asked the police again.
“It’s your problem,” I was told.
She was the responsibility of the local authority. I couldn’t allow her go wandering off into the night, miles away from anywhere. And even if I could physically drag her into the foster home, I could not ensure, in the mood she was in, that she would not go AWOL as soon as I had left.
“Wait,” I called to Anthea. “Let me try and sort something out.”
She reluctantly returned and sat in the police car, while I phoned the team manager again and explained what was going on. I really didn’t think there was an alternative. We would have to use a children’s home.
He reluctantly agreed, and I arranged a placement.
She was quite happy with this arrangement. She was prepared to go to this home. But only if the police took her.
They were equally happy to do this.
“You’d have saved a lot of time and aggro if you’d done that in the first place,” one of the officers said as they drove off.
I could only agree.

Thursday, 12 June 2014

TW v Enfield: The Meaning of “Reasonably Practicable”

This case has been meandering through the courts since 2007. It looked as if it had finally been settled in May 2013, but leave to appeal was allowed, and the Appeal Court finally gave its judgment in March 2014. It’s an important case for AMHP’s as it gives an interpretation of the term “reasonably practicable” when consulting with nearest relatives in connection with applications under Sec.3.

To recap: Judge Bean heard this case in 2013 (TW v London Borough of Enfield and Another [2013] EWHC 1180 (QB)).

The bare bones of the case were as follows.

On 29th June 2007 an ASW, 2 doctors and police executed a Sec.135 warrant and entered the property of TW. TW was then detained under Sec.3 MHA for treatment from her home and admitted to hospital. She remained subject to Sec.3 until she was discharged by a Tribunal on 14th September 2007.

TW’s case was that, as her Nearest Relative was not consulted in accordance with the requirements of Sec.11(4), then the application was illegal and that the LA and the ASW had “acted in bad faith or at least with a lack of reasonable care.” She therefore wished to sue the MH Trust, the Local Authority and the ASW.

In fact, there is a considerable amount of information in the Judgment relating to the psychiatric history and the behaviour of TW. She had a formal diagnosis of OCD, and had had inpatient treatment in a psychiatric hospital in the past.

There were letters written by TW and other statements that she had made in regarding her relationship with her parents. Her father was the Nearest Relative. One of the letters to her psychiatrist stated: “"my Mum and Dad called the police and my Dad threatened to hit me and my Mum ran next door to a neighbour's house. I was outside when the police came. My Mum and Dad tried to section me through the police who tried to smash the car window and get me out but I was able to stay in the car and drive away fast. … There are to be no meetings with my family." She subsequently left a message stating that no information should be given to her parents.

In another letter she stated: “My Dad threatened to smash my face in once again on the phone on my birthday and my Mum was making it worse”. This letter went on to say that “I would like my Mum to be taken off as my next of kin and my Dad off as the nearest relative." She suggested that she would like another person to act as her NR.

The Sec.135 and subsequent Sec.3 were triggered by a number of incidents prior to 29th June 2007. It was reported that TW “had hit a neighbour on 17th June 2007. She had been taking the rubbish out of the neighbour's dustbins into her flat. She had been unwilling to engage with support services or to allow them access to her flat. The flat was filled with rubbish and posed a risk to her and others because of the fire hazard.”

The Judgment records both the patient’s account of her assessment and detention, and the ASW’s account. They differ markedly from each other.

TW stated: "29th June 2007 was the day I was sectioned. More than nine people, including three police officers, doctors [and] officers from Environmental Health to section me. I was upstairs about to wash my hair and therefore when they knocked on the door I did not come to the door straightaway. They smashed my door in and humiliated me in front of all my neighbours. I was extremely frightened and felt totally helpless. As I did not recognise anyone in particular I shouted out aloud to them to call my parents. They must have heard me but simply ignored my requests."

It was reported that, according to the ASW, TW “spoke to the assessing team through her window but continued to refuse to open the door. The police then had no alternative but to execute the warrant to enter the property. The Applicant came downstairs shouting that she did not want anyone to come into her property, but then allowed Dr Duignan and Ms Muschett [the ASW] in.”

In considering whether or not to consult the Nearest Relative, the ASW clearly considered the case law of R(E) v Bristol City Council (2005). In this particular case, “the patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to become involved.” In that case, the Judge concluded that “"practicable" and "reasonably practicable" can be interpreted to include taking account of the Applicant's wishes and/or her health and well-being."

This Judgment is frequently considered by AMHP’s when deciding whether or not to consult with the NR, and evidence that an AMHP has thought about this is often sought in AMHP’s MHA Assessment Reports.

It appears that TW wanted things both ways. She wanted mental health services to respect her wishes that they not give any information to her parents, and gave testimony that the relationship with her parents had irretrievably broken down. At the same time, however, she wanted to sue the same authorities for not consulting with them.

The Judge stated that TW “had repeatedly, in dictated letters, instructed Enfield's staff not to involve her family. She had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality. These were not deluded ravings, and Ms Muschett and her colleagues were right to treat them seriously.”

He concluded that: “The evidence of Enfield's witnesses is that they considered that involving TW's father on 29 June 2007 would be likely to cause her distress and emotional upset... The test on this issue is a subjective one, and a matter of professional judgment.”

The Judge went on to say “it is clear that it was "not reasonably practicable", within the meaning of Sec.11(4) of the Mental Health Act 1983, for Enfield to have consulted TW's father before applying for her admission for treatment on 29 June 2007; and that the claim against Enfield is therefore bound to fail.”

At this point it looked as if the decision of the ASW had been upheld. However, the recent Court of Appeal Judgment ([2014] EWCA Civ 362; [2014] WLR (D) 145) has taken a different view.

The Judge concluded: “when an ASW is considering whether it is "reasonably practicable" to consult the "nearest relative" before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the ASW an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life.”

The Judge continued: “a patient's assertion, even if founded on fact and even if reasonable, that consultation would lead to an infringement of her Article 8(1) rights cannot, as a matter of law, lead automatically to the conclusion that it is "not reasonably practicable" to consult the "nearest relative". Nor is an ASW's conclusion that such consultation would lead to an infringement of the patient's Article 8(1) rights enough, in law, to lead to the decision that there should be no such consultation under section 114). Equally, as a matter of construction of section 11(4), it must be wrong in law for the ASW to conclude that because consultation with TW's "nearest relative" would require disclosure of details of TW's case and that would therefore constitute an interference with TW's Article 8(1) rights, that must necessarily lead to the conclusion that it was "not reasonably practicable" to consult the "nearest relative".”

The Judge’s final conclusion was: “In my view, on what is known of the reason for the ASW's decision not to consult, there is obviously an arguable case that the decision was not made on the right basis. Whether the decision not to consult was, in all the circumstances, correct, must ultimately depend upon a careful analysis of the facts. In my view that is not something that can be determined summarily in this case.”

So what does this mean?

It seems to me that the Judge, while allowing the appeal, and stating that there were errors in law in the previous judgment, in failing to properly consider the implications of the Human Rights Act, does not actually reach a definitive conclusion as to whether or not the ASW was wrong to conclude that consultation with the NR was “not reasonably practicable” in this particular case.
It appears that this matter will still need to be considered in a future application by TW to bring a claim for unlawful detention and psychiatric injury under Sec.139 MHA.

As a reminder, Sec.139 MHA provides protection for professionals taking actions in pursuance of the MHA. Sec.139(2) states that civil proceedings cannot be taken without leave of the High Court. This hearing gave such leave. However, Sec.139(1) prevents action being taken unless it can be shown that, in this case, the ASW acted “in bad faith or without reasonable care.” A future court will still have to decide this.

I’m not sure whether this ruling clarifies circumstances in which it is “impracticable to consult” or simply makes the AMHP’s job even more complex and onerous. After all, AMHP’s are not in the position of a lawyer, who is able to spend days or weeks reading the relevant case law before making a decision. AMHP’s are frequently having to make such decisions under situations of extreme stress and where delay may lead to endangering the safety or lives of not just the patient, but of other professionals, relatives and members of the public.
What this case does reinforce is the need for an AMHP to think long and carefully, and to weigh up not just the legal requirements of the MHA, but also the potential conflicts of consultation with the Human Right Act. And it’s very important for any AMHP to record in detail their decisions where they conclude that it has been “impracticable to consult”.

Thursday, 5 June 2014

Restraint, Restriction and the MHA/MCA Interface

Over the last few months I’ve been looking at several pieces of case law which relate to circumstances in which the Mental Health Act and the Mental Capacity Act interface. These include the recent Court of Protection case relating to ML, a man with autism, and the AM v SLAM case, which attempted to define when and in what circumstances the MHA or the MCA should be used. There is also, of course, the Cheshire West case.

All these cases have one thing in common: they relate to the restraint and restriction of people with learning difficulties. ML had been detained under the MHA in a hospital in which he was subjected to extreme levels of restraint and seclusion, and the local NHS services were seeking to enforce this further, while the three subjects of the Cheshire West Supreme Court decision grappled with the concept of physical liberty as defined by Article 5 of the Human Rights Act.

Cheshire West, or to give it is full title, P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council a and Another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent), [2014] UKSC 19, Supreme Court (Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge), 19th March 2014, finally concluded a convoluted court process that had taken several years.

Both P, and P & Q, were subjected to high levels of control in their daily lives. P “was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance”. Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty”.

P & Q, (also known as MIG & MEG), are sisters. MIG lived with a foster carer, while MEG was in a NHS facility. Earlier court hearings to consider these cases had concluded, somewhat contentiously, that the situations of such severely mentally disabled people were not to be compared to normal or absolute concepts of freedom and restriction, but should instead be compared with others with similar problems.

An earlier Judge had stated: “What was a deprivation of liberty for some people might not be a deprivation for others”. He said: “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P”.

Lady Hale, in the Supreme Court, said: “The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled.”

She makes the elegant statement; “it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs… may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.”

She concluded that: “it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else.”

This ruling has already led to a vast increase in the number of applications for declarations under the Deprivation of Liberty Safeguards, and has placed considerable strain on local authorities’ Best Interest Assessor teams.

Then there is the recent Department of Health guidance on the use of restrictive interventions in health and care services (Positive and Proactive Care: reducing the need for restrictive interventions), which was published in April.

The guidance specifies certain situations in which the Mental Health Act, rather than the Mental Capacity Act, should be used. It states early on that “Staff must not use seclusion other than for people detained under the Mental Health Act 1983.”

It continues: “The provisions of the Mental Health Act 1983 will only very rarely authorise the application of restrictive interventions in community-based health and social care services and non-mental health hospital settings. The MCA  will, if certain conditions are met, provide legal protection for acts performed in the care or treatment of people who lack the capacity to consent to the care or treatment The MCA will be particularly relevant when staff in general hospitals are considering the use of restrictive interventions to protect the person. If the MHA and/or MCA do not apply, the use of force is only justified legally for the purposes of self-defence, the defence of others, prevention of crime, lawful arrest or to protect property and the same statutory and common law provisions apply within health and care services as elsewhere.”

It states unequivocally that: “Only people detained under the MHA should be considered for seclusion. If an emergency situation arises involving an informal patient and, as a last resort, seclusion is necessary to protect others from risk of injury or harm, then it should be used for the shortest possible period to manage the emergency situation and an assessment for detention under the MHA should be undertaken immediately.”

Para 89 says: “The seclusion of a person under the MHA in a community setting (for whom neither a Deprivation of Liberty authorisation nor a Court of Protection order under the MCA to authorise the deprivation of their liberty is in place) is also likely to amount to an unlawful deprivation of liberty. If the circumstances of a person’s care resemble seclusion, it is seclusion whatever it is called locally. An assessment should be undertaken promptly to determine whether the person should be detained under the MHA immediately.”

The guidance concludes: “Long-term segregation must never take place outside of hospital settings and should never be used with people who are not detained under the MHA” and also states: “The MHA authorises deprivation of liberty if the person meets the criteria for being detained for the purpose of assessment and/or treatment for mental disorder, even in the absence of their consent.”

I think that this guidance clarifies issues which have been of concern to Approved Mental Health Professionals, as well as proponents of human rights, for some time.

I have certainly felt very uncomfortable about the concept of comparative deprivation of liberty, which appeared to me to be a circular argument condoning and even encouraging the restraint and restriction of the liberty of people with learning difficulties purely on the justification that because they had learning difficulties they must need it.

The recent Supreme Court judgment, which came out in March 2014, fortuitously dovetails quite neatly with the DH guidance that came out in April.

It is to be hoped that all professionals , both in the public and private sector, and in social and nursing care and hospital settings, will take this guidance on board and be very careful not to restrain or restrict individuals’ liberty without ensuring that the appropriate legislation and associated legal safeguards have been used.