Thursday, 6 July 2017

How to Become an AMHP 2: The Interview

AMHP courses are almost invariably only open to employees of local authorities or mental health trusts. Even before having an interview, a candidate has to fulfill certain requirements.

As an example, my local authority stipulates that, as well as having at least 2 years’ post qualification experience, your line manager has to be prepared to allow you to undertake the training, with the commitment of time that that involves. All courses require a period of full time training, which will take you away from your day job for several months.

There is an expectation that you should have a sound knowledge of Care Act legislation, as well as safeguarding and mental capacity issues. Although it is not essential for a prospective AMHP trainee to have experience of working in a mental health setting, there is an expectation that they should shadow experienced AMHP colleagues while undertaking formal assessments under the MHA.

The putative AMHP then needs to make a formal application, and has to provide a written record of their continuing professional development (CPD) over the last 2 years, especially linked to mental health, with a reflective commentary, as well as providing a reflective analysis of their experience of shadowing a MHA assessment.

Social workers from any field are eligible to train as AMHPs. Clearly, working in a mental health team is relevant, but social workers working with older people and people with learning disabilities will also be in a position of working with people with mental disorder.

Although few children’s services social workers train as AMHPs, or are allowed to train by their line managers, these social workers are always welcome, as the Code of Practice advises that AMHPs with experience of working with children and families are ideally required when undertaking MHA assessments of young people under the age of 18.

Having overcome these initial hurdles, the prospective AMHP has to have a formal interview.

I have to confess that I have never had to undertake one of these interviews myself. This is because when I started to practice (back in 1981, as a Mental Welfare Officer under the Mental Health Act 1959), the requirements for acting as a MWO were somewhat less stringent. (If you want to know what it was like back then, have a read of my blog post about my first MHA assessment here.)

Members of the Masked AMHP Facebook group are often asked for guidance on how to prepare for the interview.

Those who have successfully managed the interview and have gone on to qualify often kindly offer hints and tips.

Here are a few of these hints and tips, taken from the threads on the Facebook group:

  • Look at the guiding principles in the code of practice.
  • Have some knowledge of current research into mental health and the AMHP role.
  • You will have extensive awareness already of the importance of narrative practice, partnership working and contingency planning - just expand on these and look at what it means to interview a service user in a suitable manner - whereby you will aim to reduce a service users anxieties to help inform the assessment and facilitate communication.
  • Demonstrate that you are aware of the importance of the role and its importance for adherence to the Human Rights Act.
  • Show that you have a basic awareness of the role and that your values are compatible with the role.
  • Stress the importance of informal admission as an example of striving for the least restrictive option. 
  • They won't expect you to have a detailed knowledge of the law or indeed the Code of Practice, but it is good to have a basic understanding and awareness of the role.
  • If your basic belief is that you would never section anybody, then you are probably not suited to managing the conflicts inherent in the role.
  • You must be aware of and ready for the time and effort commitments involved in the training, as the course will cost your employers several thousand pounds per candidate.
  • Give examples of anti-oppressive practice in your current role.
  • Awareness of and willingness to work in situations of risk.
  • Demonstrate your commitment to learning.
  • Try and just be yourself, as that demonstrates what you can bring to the role.

Finally, have a look at some of the relevant posts about the AMHP role on this blog:

Wednesday, 28 June 2017

How to Become an AMHP

The Masked AMHP's AMHP Warrant. Honest
Members of the Masked AMHP Facebook Mental Health Forum quite often ask what is entailed in becoming an Approved Mental Health Professional. I also get a number of people emailing me asking about it. Here, then, are some guidelines about the process.

Who is eligible to become an AMHP?

In order to be eligible to train as an AMHP, you have to be a qualified professional. Eligible professionals are social workers, mental health nurses, occupational therapists and clinical psychologists. Professionals will need to have at least 2 years post-qualification experience in order to be considered for training.

The Health and Care Professions Council (HCPC) is responsible for approving training courses for AMHPs. They state:

The criteria for approving AMHP programmes are designed to equip individuals with the threshold skills necessary to engage in safe and effective AMHP practice. They set out the processes and procedures that education providers delivering AMHP training must have in place, and the knowledge, understanding and skills that an individual must have when they complete their AMHP training.

AMHP training courses are almost invariably provided by universities. They may take different forms, and be of different lengths, but will generally last for between 6 and 12 months. They may be part-time, or have a combination of part-time and full-time modules. A practice placement, during which trainees are placed with AMHPs and take part in Mental Health Act assessments, is an essential and integral part of the training process.

At present, there are 20 universities and training consortia providing a total of 32 different qualifying programmes. All the courses are at postgraduate level, and the successful candidate will be awarded a range of qualifications: from a Postgraduate Certificate to a Postgraduate Diploma up to a MA or MSc degree.

How do I get onto an AMHP course?

The Code of Practice, para14.35, states that local authorities are responsible for ensuring that sufficient AMHPs are available to carry out their roles under the Act”. Your employing authority must therefore maintain an AMHP service that can fulfil their legal obligations. The local authority will therefore be responsible for paying the course fees and would have to authorise you to undertake the training. This would generally involve writing some sort of reflective piece relating to their experience and desire to train as an AMHP, as well as a formal interview involving the local authority and the academic lead of the course.

What if I don’t have a local authority prepared to give me the training?

I have to say that it is almost impossible for someone to train independently as an AMHP. 


While nearly all courses will refuse to take an independent student, the course on which I teach did take such a student this year. They, of course, had to pay the full cost of the course out of their own pocket, and also pay for a placement with the local authority sending students to the course.

At the end of the course, unless the student was prepared to work for the local authority as an AMHP, they would not actually be approved, but would be given the necessary evidence to show a prospective employer that they have successfully completed the qualifying training.

What does the training entail?

I teach on one of these AMHP training courses, so I will describe in more detail this particular course. The course is based within the university School of Social Work.

The course is at post-graduate level, and successful candidates receive a Postgraduate Diploma and will also receive credits towards a Master’s degree.

There is an initial part-time period of occasional days in university from October to December, then a full time segment from February through to June. There is a month of intensive teaching of the law and practice relating to AMHP practice and mental health, then a two month placement period, during which the candidates are placed with AMHPs and have to shadow at least 6 MHA assessments during the course of the placement.

The AMHP trainees then have to produce a portfolio, which must include evidence supporting a range of competencies, which are stipulated in the HCPC guidance. These competencies cover seven broad areas of practice: 
  • knowledge
  • autonomous practice
  • informed decision making
  • equality and diversity,
  • communication,
  • collaborative working, and 
  • assessment and intervention.

There is also a Law Test, which consists of case studies covering a cross section of the sort of assessments that AMHPs are likely to encounter, with questions designed to elicit the AMHP’s knowledge of law and practice.

Phew! Then what?

This is not, however, the end of the process. The HCPC points out:

Successful completion of an approved programme only makes an individual eligible to be approved to act as an AMHP. Only those who have completed approved training and have been approved to act as an AMHP by a Local Social Services Authority in England may perform the functions of an AMHP.

This means that, having completed the course, the LA in which they will be practicing has a panel meeting, during which each candidate if formally approved. They will then be issued with a warrant.

In our local authority, the newly warranted AMHP is then expected to undertake three Mental Health Act Assessments, during which they will be shadowed by an experienced AMHP. They are then deemed to be fully competent to practice independently.

See also the next post : The Interview

Thursday, 15 June 2017

The Meaning and Implications of “Previous Acquaintance” for Mental Health Act Assessments

You need two doctors when conducting MHA assessments
The use of doctors when conducting assessments under Sec.2, 3, or 4 of the Mental Health Act has to be done with care. The MHA stresses the importance of these medical practitioners either having special experience of mental disorder, or knowing the patient being assessed.

Sec.12(2) MHA states:
Of the medical recommendations given for the purposes of any such application, one shall be given by a practitioner approved … as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance.

The medical recommendation forms for Sections 2, 3 & 4 require doctors to state whether or not they had had "previous acquaintance". There is a pre-printed statement on these forms stating “I had previous acquaintance with the patient before I conducted that examination”. This is a default statement, which has to be crossed out if the doctor has not had previous acquaintance.

The Code of Practice expands a little on the issue of previous acquaintance:
14.73 Where practicable, at least one of the medical recommendations must be provided by a doctor with previous acquaintance with the patient. Preferably, this should be a doctor who has personally treated the patient. It is sufficient for the doctor to have had some previous knowledge of the patient’s case.
14.74 It is preferable that a doctor who does not have previous acquaintance with the patient be approved under section 12 of the Act. The Act requires that at least one of the doctors must be so approved.

The intention of the MHA is that the ideal assessing team would consist of the patient’s GP, who would be intimately acquainted with the patient, but who probably would not also be Sec.12 approved, and a Sec.12 doctor, who is likely to be a psychiatrist, but who may not have previously had contact with the patient.

However, in my experience, it is increasingly difficult to get a patient’s GP to attend a MHA assessment, whether in the community or in a hospital, as they are invariably too busy and understandably unwilling to abandon their surgery for what could be a protracted assessment process.

This increasingly means that the AMHP has to use two Sec.12 doctors. The AMHP may be fortunate if one of these has had previous acquaintance with the patient.

All of this raises two issues: what is meant by the term “previous acquaintance”, and what are the consequences of using two doctors, when neither of them have had “previous acquaintance”?

The AMHP’s application forms for Sec.2 & 3 has a statement saying:
If neither of the medical practitioners had previous acquaintance with the patient before making their recommendations, please explain why you could not get a recommendation from a medical practitioner who did have previous acquaintance with the patient.

If this is the case, then the AMHP must write a detailed explanation on the form justifying this omission.

The Reference Guide says this about previous acquaintance, which is the closest any of the guidance comes to giving a definition of “previous acquaintance”:
At least one of the doctors should, if practicable, have had previous acquaintance with the patient. Preferably, this doctor should have treated the patient personally, but case law has established that previous acquaintance need not involve personal acquaintance, provided the doctor in question has some knowledge of the patient and is not ‘coming to them cold’.(para. 8.40)

In fact, the Reference Guide likes this statement so much that it is repeated word for word later on, in para 28.41.

Ann R (By her Litigation Friend Joan T) v Bronglais Hospital Pembrokeshire and Derwen NHS Trust [2001] EWHC Admin 792 is perhaps the case law to which this is referring.

In this case, Ann R was a new patient to the GP in question. He had attended a meeting relating to the patient (but not relating to her mental health), had visited her for 5 minutes, and had scanned, but not read her medical notes. The Judge in the case held that prior “personal” acquaintance was not required. The GP had some knowledge of her background prior to the MHA assessment, and this was deemed to be all that was required.

In another case, TTM v LB Hackney [2010] EWHC 1349 (Admin), TTM attempted, among other things, to declare that their detention under Sec.3 MHA was unlawful on the grounds that neither doctor had “previous acquaintance” with the patient.

This was based on the fact that two doctors without “previous acquaintance” had provided the recommendations, even though doctors who knew the patient  were available. It was argued that external doctors were chosen because there was a division of opinion in the treating team. The court concluded that this was reasonable and took into account what was in the patient’s best interests, and therefore there was no breach of Sec.12(2). 

Not satisfied with the overall judgment, TTM took the case to the Court of Appeal (TTM (by his litigation friend TM v (1) London Borough of Hackney; (2) East London NHS Foundation Trust; (3) Secretary of State for Health [2011] EWCA Civ 4)

While the Court of Appeal upheld much of the patient’s case, they still concluded that there was no Sec.12(2) breach on the grounds that it had been reasonable to obtain two external opinions given the divergence of views between the treating doctors.

To summarise: there is no requirement for a doctor to have detailed knowledge of a patient in order to establish “previous acquaintance”.  It is enough to have had brief contact, perhaps in connection with a medical examination for an ear infection some years ago, or even a telephone conversation with the patient. Indeed, it is enough simply to have read the patient’s medical notes.

There are a number of valid circumstances in which an assessment can legitimately take place without a doctor with previous acquaintance. One example is an assessment I undertook just a few days ago. The police detained a man under Sec.136 following reports that he was knocking on neighbours’ doors and attempting to enter properties in the middle of the night.

The police were unable to use a Sec.136 suite in the patient’s locality as a place of safety, as the local one was occupied. They therefore took him to a place of safety elsewhere in the county 30 miles away.

It was impracticable for the GP  to attend because of the distance involved, and as the patient had had no previous involvement of any sort with secondary mental health services, there wasn’t a psychiatrist with previous acquaintance. I therefore used two local Sec.12 doctors to conduct the MHA assessment.

A similar situation may also occur when someone is detained under Sec.136 while elsewhere in the country, and where a patient requires assessment under the MHA in the middle of the night, it is very common for there to be no doctor available who knows the patient.

So it is just as well that there are justifications to the use of two doctors without previous acquaintance, otherwise the AMHP’s local authority could be liable to pay compensation for unlawful imprisonment.

Thursday, 25 May 2017

What’s in Theresa May’s proposed Mental Health Treatment Bill?

No, it's not Cruella DeVil
It was with some surprise on 7th May 2017  that I heard that Theresa May was announcing that she was “pledging to rip up the 1983 Act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

She went on to say: “On my first day in Downing Street last July, I described shortfalls in mental health services as one of the burning injustices in our country. It is abundantly clear to me that the discriminatory use of a law passed more than three decades ago is a key part of the reason for this.

“So today I am pledging to rip up the 1983 act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

It was stated that "vulnerable people are being subject to detention, including in police cells, unnecessarily", and cited the increase in compulsory detention in hospital as a reason for reform.

It was also announced that there would be new safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.

Jeremy Hunt added "If you have a child that has severe mental health problems and you find that that child, instead of getting treated by the NHS ends up in a police cell, that is a terrible thing for the child... but it is also very bad for the police as well - we want to stop that."

Intrigued by these announcements, since Theresa May and the Conservative Government in general had not previously given any indication that they had an interest in introducing completely new mental health legislation, I waited to see what further detail there would be in the Conservative Party Manifesto.

Encouragingly, this new Bill was first mentioned on page 4, where a Britain was described “in which burning injustices are tackled and overcome, with the first new Mental Health Bill for thirty years to put parity of esteem at the heart of treatment and end the stigma of mental illness once and for all.”

But it wasn’t then until page 57 that a Mental Health Bill was referred to again. Beginning with a promise to “address the need for better treatments across the whole spectrum of mental health conditions”, the Manifesto goes on to state: 

“We will also reform outdated laws to ensure that those with mental illness are treated fairly and employers fulfil their responsibilities effectively.

“The current Mental Health Act does not operate as it should: if you are put on a community treatment order it is very difficult to be discharged; sectioning is too often used to detain rather than treat; families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned.

“So we will introduce the first new Mental Health Bill for thirty-five years, putting parity of esteem at the heart of treatment.”

And, er, that’s it. There is no more detail to be found.

My first thought was to wonder why on earth they had decided at this point in time to introduce a new Mental Health Act. My second thought was to wonder how both the Prime Minister and the Health Secretary could display such a large amount of ignorance about legislation, some of it the direct responsibility of the Conservative Government, as well as a lack of understanding about the actual content of existing legislation.

Let’s look at the statements they have so far made.

  • “We will introduce the first new Mental Health Bill for thirty-five years.”

As long ago as 2002 the then Labour Government were promising to introduce a new Mental Health Bill. A first draft was published in June 2002, which among other things contained a controversial proposal that allowed for the detention of people described as having a “dangerous and severe personality disorder (DSPD)”. It also removed a requirement for such patients that treatment “is likely to alleviate or prevent a deterioration" of a patient's condition, which could lead to people with a “diagnosis” of DSPD being detained indefinitely, without having had to have committed any offences supporting their “dangerousness”.

Not surprisingly, as this would almost definitely have breached the Human Rights Act, this part was dropped from future drafts, and the culmination of years of consultation and drafting eventually produced the Mental Health Act 2007, which basically extensively amended the existing Mental Health Act 1983. As well as making changes to comply with the Human Rights Act and to reflect cultural changes (such as recognising same sex partners and civil partnership), this introduced Community Treatment Orders – and Approved Mental Health Professionals. I guess that, on the basis that “if it ain’t broke, don’t fix it” it was considered that a large part of the 1983 Act was still perfectly workable.

So essentially, the current Mental Health Act is 10 years old – not 35 years old (or even 34 years old, since 2017-1983=34). Or even 30 years old. Theresa May and the Conservatives appear to have forgotten the 2007 Act.

  • “A new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

They also appear to have forgotten that the 2007 Act was introduced to make necessary changes to mental health legislation to incorporate changes in case law arising as a result of the necessity to comply with human rights legislation, including discrimination and “unnecessary detention”.

So it seems disingenuous to be suggesting that the 2007 Act does not address this – especially as the Conservative Government were not so long ago keen to abolish the Human Rights Act in any case.

I think AMHPs without exception would consider it insulting to suggest that they habitually detain patients unnecessarily. At the heart of all AMHP practice is the first principle, which is to always seek the least restrictive option.

  • "If you have a child that has severe mental health problems and you find that that child, instead of getting treated by the NHS ends up in a police cell, that is a terrible thing for the child.”

Jeremy Hunt appears to be unaware of the existence of the Policing and Crime Act 2017, which amends Sec.135 and Sec.136 of the Mental Health Act. As well as reducing the maximum period of detention under Sec.135 & Sec.136, this Act also introduces a new Sec.136A, which principally states that “a child may not… be removed to, kept at or taken to a place of safety that is a police station”. It would therefore not only be extremely undesirable for a child under the age of 18 to be detained in a police station, but actually illegal.

The only problem with this is that it has not yet entered statute. This section was due to become law this month – but was delayed because of calling a General Election. While I have heard that there will be plans to enact this in July (assuming the Conservatives are returned to power) I can’t help wondering if it will simply be forgotten once the fallout of the General Election has settled. (Although I am certain that Inspector Michael Brown, OBE, would do his best to ensure that the timetable was adhered to.)

  • New safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.
  • “Sectioning is too often used to detain rather than treat.”

These two statements appear to contradict each other. Capacity has never been an issue when it comes to making decisions under the MHA, and is never actually explicitly mentioned in the MHA. People may be legally detained, and treated, even if they are deemed to have capacity, but are objecting. I can think of circumstances where a capacitous person may need to receive treatment despite their objection – I am not sure that patients would best be served by making this impossible.

I do not even understand what the second statement means. Detention under the MHA is not just in order to treat; Sec.2 is designed to assess, but no-one would be detained simply to hold them without assessment or treatment in hospital.

  • Families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned.”

I am again somewhat perplexed by the meaning of this statement. If we are talking about children, then parents are an integral part of the assessment process, and I find it inconceivable, and probably illegal, that a parent with parental responsibility would not be deeply involved in decisions relating to their child.

We must also remember that children can be deemed to have competence in regard to making decisions about their treatment, and that it may contravene their right to privacy in certain circumstances to consult with relatives.

But in any case, the Nearest Relative of a child, with certain well-defined exceptions designed to safeguard the rights of the patient, would by law need to be informed if the patient was detained.

I cannot conclude this analysis without pointing out that at least some of the complaints that Theresa May makes about the deficiencies of the current MHA are not due to any deficiency in the existing legislation, but rather due to cutbacks in services – a loss of a significant percentage of inpatient mental health beds over the last 7 years, as well as the loss of thousands of frontline mental health professionals. Coincidentally, all this during the time the the Conservatives have been in power

This has been compounded by the severe cutbacks local authorities have had to make in providing social care. This includes the withdrawal of funding for voluntary organisations that provide services for people with mental health problems, as well as the rationing of social care that has been a consequence of the Care Act.

You can’t cut back on beds and services that can provide alternatives to hospital admission, and still expect the Mental Health Act to continue to function efficiently.

Of course, Theresa May does recognise that any change to the existing mental health law would be subject to a process of consultation with interested parties. This consultation took over 5 years when the 2007 Act was being drafted. So there may be no change to existing law within the lifetime of the next Parliament.

Of course, a lot depends on what happens on 8th June.

Saturday, 1 April 2017

Nooks & Crannies of the Mental Health Act 1: The Farne Islands (Removal of Lunatics to England & Wales) Regulations 1927

The Mental Health Act has been evolving over centuries. Indeed, the Victorian Lunacy Acts in the 1800’s contained recognisable germs of the current MHA (an example being Sec.136, the origins of which can be found in legislation written over 150 years ago).

The Mental Treatment Act 1930 first introduced the idea of treatment for people with mental disorder, while the MHA 1959 introduced the concept of the Mental Welfare Officer, whose role provided an independent check on doctors having complete control of the detention process.
The MHA 1983 further refined this process of legal protection for people being detained against their will in psychiatric hospitals, and the 2007 Act enshrined subsequent changes in human rights legislation into mental health law.

These Acts, and accompanying regulations and statutory instruments, tended to amend, consolidate or even abolish previous legislation. Sometimes, however, anomalies survived.

The smaller islands of the British Isles are a case in point. The Isle of Man, for instance, with a population of around 81,000, has its own Mental Health Act, which still has Approved Social Workers rather than AMHPs, and Jersey in the Channel Islands its own Mental Health Law going back to 1969.

Part VI of the Mental Health Act consists of almost unreadably tedious regulations covering the removal of mental health patients from one part of the British Isles to another.

But what is almost unknown (and not mentioned at all in the Jones’ Mental Health Act Manual) is the existence of regulations relating to mentally disordered persons in the Farne Islands. This piece of legislation appears to have been forgotten by legislators, with the result that The Farne Islands (Removal of Lunatics to England & Wales) Regulations 1927 was never repealed, and is not even mentioned in Part VI.

The Farne Islands are a group of small islands off the coast of Northumberland in Northern England. They are now owned by the National Trust.

Mainly inhabited by a vast range of seabirds, including puffins, as well as a large colony of seals, in the early part of the century there was still a community of people living permanently on the islands.

This small but tight-knitted group, known disparagingly as “Fannies” by the mainlanders, eked a precarious living by farming seaweed, milking seals to make seal cheese, and taking eggs and any seabirds they could catch using finely woven nets thrown off the top of the guano covered cliffs.
"Fannies" preparing to catch puffins

The Farne Island regulations were created as a result of a notorious incident in 1927 known in the press of the time as the Wellington King.

An aristocrat known as the Honourable Petrus Wimple-Burgoyne developed the delusion that the Farne Islands were the remains of the lost continent of Atlantis, and that as his family originated from Atlantis, he was the rightful king. He started to petition King George VI, challenging him to the throne of the Farne Islands, and demanding that he be invested in Westminster Abbey.

He became such a nuisance that he was eventually committed to a lunatic asylum under the Lunacy Act 1890. However, he got wind of this, and before the ambulance arrived he fled to the Northumberland coast, where he hired a boat at Seahouses and just after dawn on 1st April 1927 he reached the Farne Islands.

He was able to convince the rather credulous and inbred “Fannies” that he was their rightful king, and in a ceremony involving the smearing of the rather oily seal cheese over his entire upper body, an india rubber wellington boot was forced over his head, crowning him the “Wellington King” of the Farne Islands.
The Wellington King

When it was discovered where he was, efforts were immediately commenced to recover him to the mainland. It was at this point that it was realised that there was no legal instrument that could be invoked to lawfully remove him.

An emergency session of Parliament was convened, and so was born the Farne Islands (Removal of Lunatics to England & Wales) Regulations.

Within days, a Naval Frigate sailed to the Farne Islands and a dozen sailors alighted on the island of Inner Farne to apprehend him. Despite the sailors being pelted mercilessly with puffin eggs and foul-smelling lumps of seal cheese by the loyal “Fannies”, the so-called “Wellington King” was seized, and returned to England, where he was placed in St Bernard’s Hospital in Southall, Middlesex.

To this day, the Honourable Petrus Wimple-Burgoyne is the only person for whom this regulation has been used.

Wednesday, 1 February 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Either way, these are not easy decisions to make.

Tuesday, 10 January 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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