Friday, 27 May 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, 20 May 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“What would you like to happen right now?”

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

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

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

“It’s no trouble.”

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

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

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

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

“Fire bunnies? What are fire bunnies?”

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

I shook my head. “Can you show me?”

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

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

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

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

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

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

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

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

Friday, 15 April 2016

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

(Post contains references to weight loss and BMI)

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

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

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

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

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

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

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

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

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

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

He described her situation thus:

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, 6 April 2016

Sinking into a Legal Quagmire

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One of the police ushered me into his kitchen.

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

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

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

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

He was not making much sense.

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

At that point, things started to get worse.

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

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

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

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

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

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

And started to worry.

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

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

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

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

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

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

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

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

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

But at least that would be legal.

Thursday, 17 March 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ask the AMHP: This Week Sec.117 Aftercare v. Continuing Healthcare

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

The Masked AMHP's postbag continues to be inundated with enquiries concerning Sec.117 aftercare. Difficulties often arise in connection with what Sec.117 aftercare does and does not cover, and the relationship between Sec.117 aftercare and the provisions for Continuing Healthcare.

An AMHP asks:

I am working with someone who is subject to Sec.117 and has a 14 hour care package we pay for. She has a number of physical health problems which are getting worse and is currently on a medical ward.

Her discharge is delayed because she requires a significant increase in her care package and we are arguing about who pays. If she doesn't meet the criteria for Continuing Healthcare surely it shouldn't be mental health? Argument is it should be as she's Sec.117.

The Masked AMHP replies:

Sec.117 is very clearly only designed to meet aftercare needs arising from the patient's mental disorder. It is not unusual for people to have both a mental disorder and physical health problems – an example was a man with schizophrenia and Friedrich's Ataxia. He was placed in a Care home for physical disability and the cost of that was met by physical disability services, and he was expected to contribute towards this cost.

A relative writes to the Masked AMHP with a problem about the local authority’s calculation of care needs under Sec.117:

My father for many years had undiagnosed longstanding complex mental health issues including personality disorder & hypochondria.  Last year (following a lifetime of being fairly impossible for the family to get along with) he was eventually diagnosed with vascular dementia.  Turning very nasty in the excellent nursing home he had agreed to go into, they applied for Continuing Healthcare funding and he was sent to a psychiatric ward for full assessment under Sec 2.  When the 4 weeks came to an end, they tried to detain him further on a DOLs but his behaviour was such that he had to be detained under Sec 3. 

The nursing home had applied for 1:1 CHC funding to deal with his attention-seeking behaviour and to re integrate him successfully; there were several weeks of arguments about this so his stay was extended. It was eventually agreed to discharge him with temporary 1:1 funding.  Asked about where we would like him to go the family expressed strong preference to return him to the original nursing home though there were suggestions of placements very much further afield which would have been impossible for family & friends to visit.  He has now been in the home for some 2 months and is mostly calm.

However, the cost of the home is over £1000 per week without the nursing element which is paid by the NHS.  Though my father is not badly off, and our main concern is to ensure he is in the right place, our mother remains in the marital home which needs to be maintained and she has needed some temporary care which may of course be needed again and more frequently.

We have been told verbally that the s117 aftercare payable for dad will be around £460 per month – it has not yet been released.  Of course the Attendance Allowance was removed during his hospital stay and I assume will not be reinstated. We have wondered how the amount of s117 funding is arrived at, as no-one has been able to tell us.  I do not believe that there is anywhere which could offer care at that amount in the area and the staff at the present home have been very supportive to us all so a move would not really be acceptable.

The Masked AMHP replies: 

The Care Act has changed some aspects of Sec.117 aftercare. This includes allowing people to top up their care if they want to stay in a more expensive care home than the LA calculates is needed.

As your father has been detained under Sec.3, he will be entitled to free aftercare for anything connected with mental disorder, whether dementia or psychosis.

His needs for aftercare should not be assessed on the basis of how much the LA can afford, but what his care needs are. They might say that his needs can be met in Care home A costing £500 per week, but if you wanted him to go in Care Home B costing £700 per week, then the LA should pay the £500 and the patient can then top up. This is one of the changes in the Care Act. They cannot state an arbitrary amount, which would not purchase the care that has been identified as needed. As a relative, you should be involved in these assessments.

If an assessment concludes that only the care home you have chosen can provide adequate aftercare, then the LA should pay (taking into account any CHC assessment).

Once your father is out of hospital, he should be entitled to Attendance Allowance again.

A worker in a voluntary organisation asks:

A recent determination from our local Community Care Group states that ' individual who is funded under Sec.117 will only become eligible for NHS Continuing Healthcare funding (following a Continuing Healthcare assessment ) when they are discharged from Sec.117 or if they develop complex physical healthcare needs.'

The determination goes on to say that whilst mental health needs -- evidenced by challenging behaviour -- make the person concerned eligible for funding under Sec.117, the person's nursing needs due to physical health are not of a 'nature, complexity’, etc. to warrant NHS funding.

What I've been unable to clarify in several emails to the Continuing Care team at said CCG is whether the person's scoring in those domains related directly to mental health conditions was too low or whether, in fact, they weren't even considered because of a prior eligibility for Sec.117 funding. I'm a little confused by the distinction that seems evident in the determination, between 'physical health needs' and 'mental health needs' used in determining eligibility for Continuing Care.

The Masked AMHP replies:

Eligibility for Sec.117 aftercare is quite distinct from whether or not someone is eligible for continuing healthcare. CCG's have responsibilities for both Sec.117 aftercare and continuing healthcare. Under the MHA, both local authorities and CCG's have a duty to provide aftercare under Sec.117. How that aftercare is determined and paid for is a matter between the CCG and the LA (the Health side will generally be delegated to the local Mental Health Trust).

The Department of Health document, NHS Continuous Healthcare: Frequently Asked Questions, published in 2011 states:

“Arrangements under the Mental Health Act are separate and different from NHS Continuing Healthcare and the two should not be confused. .. It is preferable for a PCT to have separate budgets for funding Sec.117 and NHS continuing healthcare. Where they are funded from the same budget they still continue to be distinct and separate legal provisions.”

It also goes on to say: "It is preferable for a PCT to have separate budgets for funding Sec.117 and NHS continuing healthcare. Where they are funded from the same budget they still continue to be distinct and separate legal provisions."

Although that seems clear enough, things have changed since 2011. Primary Care Trusts were abolished on 31 March 2013 as part of the Health and Social Care Act 2012, which created GP led Community Care Groups to replace them. These CCGs were often dismayed to discover the expensive continuing healthcare duties that were transferred to them, and many tried to limit expenditure by unfairly and arbitrarily imposing conditions on eligibility. It does not necessarily mean that the CCG's don't have a requirement to meet these needs, whatever they may say.

However, the more recent document, NHS ContinuingHealthcare: Guide for Health and Social Care practitioners, published by NHS England in 2014 states:

“An individual subject to section 117 should only be considered for NHS CHC where they have significant healthcare needs which are not related to their mental health aftercare needs.”

It is true that Sec.117 aftercare is only designed to meet the specific mental health needs of a patient. If they also have physical health or disability needs, these will not be covered by Sec.117. The social care needs of a physical disability would be met by the LA, but the nursing needs, eg in a nursing home, would be met by Health, ie the CCG. Social care needs for a physical disability would be chargeable to the patient, whereas any specific mental health aftercare needs would not be.

Thursday, 3 March 2016

Guest Blog: Recent case law on moving people lacking capacity from home to other accommodation

This week, I am posting a guest blog. An AMHP has written an interesting analysis of recent case law (Re AG 2015) posing questions relating to the legality or otherwise of moving incapacitous adults.

I am a believer in an independent judiciary and the “rule of law” (ideally providing the laws are to do with creating a fair and just society and protecting individuals though in a democracy I suppose we cannot pick and choose).  I also am aware of (indeed witnessed as a newly qualified social worker prior to the NHS and Community Care Act) past poor practice / abuses where individuals with a variety of disabilities and frail / confused older people were placed in care on the signature of a doctor without the service user’s agreement (or even involvement) and often, or so it seemed,  for the benefit of others (family and professionals) when with a bit of thought and planning people could have been supported at home with home help (remember them?) and other services available at the time.  I would like to think we would not tolerate this now.

However, at our latest AMHP Forum I was made aware of yet another legal ruling (Re AG[2015] EWCOP 78) which will build in the need for further oversight of social work practice where it is stated that “Local Authorities must seek and obtain appropriate judicial authority before moving an incapacitous adult from their home into other accommodation”.

This particular case concerned a 30 year old woman (AG) with a moderate learning disability and autistic spectrum disorder.  There appears to have been a lot going on in this woman’s life from 2007 – 2011.  AG took her own tenancy in 2007 but lived between this and her mother’s home.  In 2011 both made allegations against each other (of physical abuse) and her mother reported tensions at home and difficulties caring for her daughter.  The safeguarding investigation was inconclusive but the plan following on from this was for AG to leave her mother’s home and live in her own home with 24 hour support – which commenced in August 2011.  This quickly broke down with yet more allegations that AG’s mother was physically and emotionally abusing her, her mother said the care staff were providing inadequate care and that the staff said they were being abused physically and verbally by both AG and her mother.  The care provider terminated the contract and AG moved on to a care home in November 2011.

The statement quoted in the second paragraph above is a “final observation” where Sir James Munby is “inclined to agree” with a submission by the barrister acting on behalf of the Official Solicitor (AG’s litigation friend).  He goes on to state that “Local authorities do not themselves have the power to do this (moving an incapacitous adult)”.   At our AMHP Forum it was suggested that this direction would not apply if there were immediate, serious risks which required urgent admission - to a care home for example.  Sir James does not qualify his observation by saying it would be acceptable to move someone without judicial authority if the need was urgent.  The DoLS Code of Practice appears to cover this matter in Chapter 2 where it acknowledges that taking someone to a place where they might be deprived is not covered by an authorisation but that unless the journey is long or the service user needs to be more than restrained (by which I take it to mean sedated) the provisions of the MCA cover this.  Otherwise a court order would be required.

However, I came across this matter in my practice as an AMHP some time ago (2 years at least) where I was asked to see a very confused older man who lived with his wife.  She wanted some respite but he was refusing to go.  The proposed placement was not far (not more than a mile as I recall).  I was asked to assess him with a view to admission to a mental health ward as a way of resolving the issue because under Sec.2 we would have the legal power to convey.  Otherwise I was told a court order would be required which might take time.  He did not need to be in hospital. The respite placement had been arranged and funding secured.  His sons persuaded him to go and may even have resorted to “therapeutic lying” to get him there.  I do not know if a DoLS authorisation was requested but he was home again in 2 weeks.

When I queried this and asked why we were not following the Code I was told that the Official Solicitor was of the view that anything more than the most gentle restraint should not be used.  It seems they took the opportunity of this case to raise this view with the Court of Protection.  Sir James does not – in this judgement at any rate – appear to consider this observation but simply agrees with it.

From my perspective as a practitioner it is potentially even more of an issue than Cheshire West.  Why is judicial authority required in cases where there is no objection from anyone (other than the possibly the service user – which is not to be ignored and I am not aware of people doing so), where the matter is clear cut, where the move may only be a couple of miles and take a few minutes, where a DoLS authorisation will be applied for when the person gets to the home (or may even have been done in advance) and there will be the safeguards from that?

I do understand the probable trauma of moving to and then living in an unfamiliar place for a very confused person.  However, I think we have moved on from the sort of decision making that took place in the early 1990s where moves were agreed quickly and with apparently less thought and assessment than there is now.  Funding will not be agreed – particularly in these times of restricted budgets – unless the move is necessary.

I do accept that there are sometimes situations where supporting someone at home may be more expensive than moving people into care and am aware of cases where, had substantial packages of care been agreed, the service user could have stayed at home.  Getting these packages for older people (65 yrs plus) has been very difficult for some time (not that any local authorities have “policies” about allowing a maximum of 4 visits a day to older people).  However, for straightforward cases why introduce another barrier (as I see it – safeguard as the courts perhaps see it)?

The AG case strikes me as being complex, with a family member objecting to aspects of AG’s care plan (though not the actual conveyance as far as I can see).  However, it also seems that when AG did move into care there was some urgency as otherwise (short of moving home to her mother) she would have been unsupported.  How quickly can judicial authorisation be arranged?  How is it done?   

What about when the out of hours service get a phone call at 3.00am on a Sunday morning from the local A & E because the husband and carer of a very confused and frail 80 year old woman has been admitted in an emergency and she is home alone, there are no family to care for her and we cannot get a care package in place for 48 hours?

Are social workers and other professionals who might be involved in such cases not to be trusted to act reasonably and responsibly at least in urgent situations and where there will have to be a DoLS authorisation (or at least assessment) in due course?

Our local advice is that we have the common law power of necessity if urgent.  If non-resisting (whether urgent or not) we still have the powers noted in the DoLS Code and under Sec.4 Mental Capacity Act if in the person’s best interest and we can evidence that we have complied with Sec.4 as best we can (if urgent).

I would love to hear the reflections of other social workers.  Am I just being over-sensitive?   I am not saying that there should not be judicial authorisation where there are contentious issues with a range of people objecting or where the service user has enough awareness to know what is happening and to benefit from the opportunity to have their voice heard (though I do think social workers listen to and take on board what people say) but where a service user is extremely confused and may well not even be aware of or remember any judicial intervention I find it hard to see the need to introduce yet another hurdle for us to jump over.