Friday, 17 February 2012

Nature or Degree

The Mental Health Act attaches a lot of importance to the concept of “nature or degree” in relation to mental disorder. In fact, the MHA refers to “nature or degree” at least 18 times (I’ve counted).

For example, Sec.2(a) states:
“(2) An application for admission for assessment may be made in respect of a patient on the grounds that he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period.”

The distinction between “nature” and “degree”, and its implications for practice, is a complex one. On a day to day basis, an AMHP tends to be more concerned with the “degree” of mental disorder present on assessment. For a patient not previously known to mental health services, the “nature” of their mental disorder may be unknown or unclear.

Someone who has taken amphetamines or a hallucinogen like LSD may present with symptoms difficult to distinguish from schizophrenia or bipolar affective disorder. It is only when the effects of the drugs have worn off that it might become clear that they do not have a mental disorder at all. Similarly, an older person with a urinary tract infection may present with symptoms very similar to dementia or other mental illness. It is only when there has been an opportunity to diagnose and treat the infection that it is apparent that they do not have a mental disorder.

I have detained many people presenting with acute indications of severe mental illness who have, following admission, been found to have taken drugs, or have some other organic cause for their presentation, which has quickly resolved with the passage of time or physical treatments. I recall the psychiatrist and I being convinced that someone being assessed at the CMHT had all the signs of bipolar disorder: pressure of speech, flight of ideas, sleeplessness, hyperactivity and irritability. However, on admission it was discovered that he had been drinking 10 or more cans of Red Bull daily prior to the assessment, and after a night in hospital he returned to normal.

Detention under Sec.2, then, might commonly occur when someone is presenting with symptoms of a “degree which warrants the detention of the patient in hospital for assessment”, but where the nature of their disorder may be far from clear.

“Nature” becomes more important when assessing someone under Sec.3, for treatment. Anyone being considered for detention under Sec.3 should have some sort of working diagnosis of mental disorder, and the psychiatrist should have a pretty clear idea of the sort of treatment that is required to treat that disorder. The patient must therefore have a mental disorder of a sufficient “nature” to warrant detention for treatment.

In fact, not only must the psychiatrist state on the medical recommendation that the patient has “a mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in hospital”, but he or she also has to give an account of the symptoms that have led them to that conclusion, the sort of treatment the patient requires, and where that treatment is available.”

If someone is in hospital at the time of assessment, “degree” is also very important; the AMHP needs to be satisfied that the patient has active symptoms of mental illness or disorder that require treatment in the first place to alleviate them.

It can, however, become more complicated when someone in the community is being considered for detention under Sec.3. While normally, both nature and degree should be present in order to justify detention for treatment, there are circumstances in which it may be justifiable to detain someone who has a known diagnosis, for example, paranoid schizophrenia, and therefore has a mental disorder of a “nature”, but who is currently symptom free.

In Smirek v Williams [2000] MHLR38, it was noted:
“”Where there is a chronic condition, where there is evidence that it will soon deteriorate if medication is not taken, I find it impossible to accept that that is not a mental illness of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment if the evidence is that, without being detained in hospital, the patient will not take that treatment”.

Richard Jones (Mental Health Act Manual) makes the proviso that making a decision to detain in such a case should be based on an assessment of the risk to the patient or others if they are not treated.

(I once detained a patient under Sec.3 who had made an advance decision requesting that she be detained if she became unwell and no longer had the capacity to make an informed decision about admission. In the past, she frequently damaged and destroyed her property when unwell, and would be understandably very distressed about this when she recovered.)

The question of “nature or degree” invariably arises in Tribunal hearings. Here, if the Tribunal is not satisfied that a patient is, at the time of the Tribunal, suffering from “mental disorder of a nature or degree which warrants detention in hospital” for either assessment or treatment, then they have to discharge the patient. They will therefore be keen to establish from the psychiatrist whether mental illness of a nature or degree or both are present in the patient.

The case of R (Smith) v MHRT South Thames Region (1998) EWHC Admin 832 very usefully examined the issue of “nature and degree”, especially in connection with Tribunals. This case related to a patient with a diagnosis of paranoid schizophrenia who appealed against his detention. A Tribunal considered that he had a mental illness of a nature but not a degree which warranted his detention in hospital. He challenged the legality of this decision.

The judge concluded: “It is quite clear that the illness was not of a degree which of itself made it appropriate for him to be liable to be detained. The reason for that was because he has a chronic condition which was static. However, the nature of the condition was that it might cease to be static so that the interpretation that nature is in some way unchanging in one view may be right, but the effect of the condition is that because of its very nature it may not remain static. It seems to me that if the facts upon which the Tribunal rely have shown that it may not be static, that goes to the nature of the condition. The degree in the instant case, in relation to his condition, was not relevant because it was static and stable.”

He went on to state: “If one had simply to look at the degree it would have been right for the discharge to take place, but the nature of the condition was such that it was clear that he should not be discharged.”

This decision was widely quoted in both the Reference Guide and the Code of Practice and has become  the primary legal definition. C4.3 of the COP unequivocally states: “Nature refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient’s previous response to receiving treatment for the disorder. Degree refers to the current manifestation of the patient’s disorder.”

Whether you are presenting a social circumstances report or a medical report to a Tribunal, it is vital to understand this distinction. I have seen solicitors in Tribunals tearing inexperienced psychiatrists to pieces when they have sensed that they are unclear about the importance of establishing “nature and/or degree” and the difference between the two.

It’s not a pretty sight.

Wednesday, 8 February 2012

Origins 4: My First Caseload

Part 4 of an occasional series

Within a couple of weeks of starting as an unqualified generic social worker in Charwood in the Autumn of 1976, I began to acquire a caseload. It was quite a mixture. Being a complete novice, I did not question their histories, assuming they were “normal for Charwood”, but when I look back now, I realise how extraordinary some of these people and their life experiences were.

First, there was Benjamin. Private Benjamin. He was my very first mental health client. Benjamin had been a young man during the 2nd World War, and had been called up to serve in the Army. He had previously spent his life in a village in the Charwood area, living with his parents and family in a large timber frame farmhouse, and working on the family farm. He had a fiancée, whom he had to leave behind when he was called up. She promised to wait for him until his triumphal return.

While in the Army, Benjamin was badly injured. It was not in active service. A munitions lorry backed into him in the Army depot, crushing him against a wall and damaging his legs and spine. He was medically discharged, returning to his village permanently disabled, and only able to walk with the aid of sticks. His fiancée, on seeing his injuries, promptly left him, and married another.

Broken in heart and body, and no longer able to work on the land, he retreated to the family farmhouse, where his parents still lived with his sister and her son. He took over the attic rooms, and became a complete recluse. His mother would leave food and the daily local newspaper at the top of the steep attic stairs, he would take it once she had left, and return the empty plates to the landing when he had finished.

He continued to live like this for the next 20 or more years. No-one in the household ever saw him, although they would hear noises emanating from the attic from time to time, so they knew he was alive.

It is unclear how social services came to be involved with him. Perhaps the noises in the attic became more disturbing. Perhaps his family began to get concerned that they had allowed this crippled ex-serviceman to isolate himself in this way. Whatever the trigger, in the mid 1960’s an assessment was carried out under the Mental Health Act 1959.

The Mental Welfare Officer, his GP and a Psychiatrist climbed the steep stairs to the attic and entered the attic room in which he had lived unseen for over 20 years. The entire space was taken up with a warren made of old newspapers. They picked their way through these narrow corridors until they eventually discovered him, huddled in a nest of old newspaper. His hair and beard had grown down to his waist, his fingernails were several centimetres long, and worst of all, they discovered that, because he had not used his legs for decades, and had instead negotiated his warren by shuffling along on his bottom, his legs had atrophied under him and were completely immovable.

He was detained under Sec.25 of the 1959 Act, which was the equivalent of Sec.2, and admitted to the local Victorian asylum for assessment. He was diagnosed with paranoid schizophrenia and detained under Sec.26 (the equivalent of Sec.3), for the next 10 years.

When I took Benjamin on, it was with the specific purpose of facilitating his move out of hospital and back into the community. Although still physically disabled, physiotherapy had restored use to his legs, and he was again able to walk with the aid of sticks. His mental illness was in remission, and there was a project under way to decant the long stay patients from the hospital and back into the community.

It was not considered a good idea for Benjamin to return to the family farmhouse, where his elderly and frail mother now lived alone, and there was nowhere else in his village where he could live, but I did find a place for him in a hostel in Charwood, where he had his own room, his meals were provided, and he had company.

He was content with this for a year or so, until his elderly mother died, and the farmhouse was sold. He received a considerable share of the proceeds, and decided to leave the hostel and travel around the county, looking for a suitable place to buy a bungalow and settle down. As he was mentally capable, I could not stop him. He bade farewell, and left Charwood, and my caseload.

I thought I would never see him again.


One day nearly 30 years later, I was asked to assess an inpatient on the older people’s psychiatric ward. He had been detained under Sec.2 and they wanted to further detain him under Sec.3.

It was Benjamin.

Since I last saw him in the late 1970’s he had spent over 10 years wandering around the county, staying in bed and breakfast accommodation, until being allocated a local authority flat in Charwood about 10 years previously. He had had no involvement with mental health services for 30 years.

I was the only professional who actually knew his history.

Over the previous few months, he had been refusing food, and had become emaciated and very frail. When assessed at home, they found him living in a warren of newspapers.

When I interviewed Benjamin in his room on the ward, I found a very elderly and frail man. He was by now in his 90’s. I asked him if he remembered me from the best part of 30 years ago. He did.

There were no significant signs of dementia, but he was displaying clear symptoms of psychosis. He was paranoid about food, and objected to the ward staff forcing him to eat. He thought they were poisoning him with food and medication. He wanted to go back home so that he did not have to eat or take any more medication.

There was no option. He needed to be detained under Sec.3.

He recovered. His nephew, his sister’s son, who had known him as “the mad man in the attic”, when he had been a child, and who had reconnected with him when he had settled again in Charwood, offered to accommodate him in his own home. Benjamin was his last living relative.

Benjamin agreed to this, and he was discharged.

Next time: more choice cases from my rooky caseload.

Wednesday, 1 February 2012

Rectifiable and Non-rectifiable Errors and Other Misdemeanours

Blog Reader: Hi there, Masked AMHP. What’s this post all about when it’s at home, then?

Masked AMHP: Hello, Blog Reader. Nice of you to drop by. This fascinating yet also informative post is all about how to fill in statutory forms correctly.

BR: Oh really? I think, perhaps, I’ll be off then. The Not So Big Society Blog has got some interesting stuff…

MA: Not so fast! This is really important! AMHP’s and doctors completing Mental Health Act forms have to get them right!

BR: Why’s that then?

MA: Because if they don’t, the whole detention could be completely illegal! Ultimately, it could lead to the patient being subject to unlawful imprisonment and they could sue!

BR: That sounds bad.

MA: It is bad! That’s why AMHP’s have it drummed into them from the very beginning the importance of filling in the forms correctly!

BR: You’re using a lot of exclamation marks today, Masked AMHP.

MA: I’m sorry. I was getting a bit over excited. I’ll try to avoid exclamation marks from now on! Oops! Oops.

BR: Now calm down, have a cup of chamomile tea, and tell me all about it.

MA: It’s all in The Mental Health (Hospital, Guardianship and Treatment) Regulations 2008 (SI 2008/1184). This states that there are certain statutory forms that have to be used for compulsory admissions and other legal aspects of the MHA, and these regulations give the wording that has to be used on the forms.

BR: Ah, yes! The dreaded pink forms, without which an AMHP is as powerless as a new born kitten!

MA: Yes. Although the forms don’t have to be pink. You see it’s the wording on the forms which is statutory, not the forms themselves – you could write them out by hand if you wanted, as long as you used the wording set out in the Regulations. These forms set out the information that has to be provided to the managers of a hospital in order for them to be able legally to receive and detain the patient. As the Code of Practice says: (13.2) “Regulations require specific statutory forms to be used for certain applications, recommendations, decisions, reports and records under the Act. The forms are set out in the regulations themselves.” Para 13.5 goes on to say: “People who sign applications and make the supporting medical recommendations must take care to comply with the requirements of the Act. People who act on the authority of these documents should also make sure that they are in the proper form, as an incorrectly completed or indecipherable form may not constitute authority for a patient’s detention.”

BR: Otherwise the patient could sue their asses!

MA: I’m not too keen on your terminology, but essentially that’s right. I always tell my AMHP trainees, or in fact anyone who’ll listen, that an AMHP’s responsibility for the assessment and admission of a patient under the Mental Health Act does not end until the patient is tucked up in the hospital and the papers have been accepted. The Reference Guide states clearly that detained patients “are treated as having been ‘admitted’ when the relevant application was received on behalf of the managers.” In other words, the assessment process does not end until the paperwork has been checked and signed off.

BR: How do you make sure that happens?

MA: It’s always best practice to go with, or at least to follow, the patient to hospital, and then not leave until someone authorised to do so has scrutinised the documents and made sure they are legally sound. That way, if there are any mistakes, at least on the AMHP’s form, they can be rectified while the AMHP is still there. I’ve recently come across a situation where the on call AMHP filled in their application form, then sent the papers off with the patient, who was being taken to the hospital by the police, but did not go themselves. When the patient arrived at the hospital, the person who received the forms discovered that the AMHP had put the name of the wrong hospital on the form. You see, the psychiatric unit was on the same site as the general hospital, but they were different Trusts. The AMHP had put the name of the general hospital on the form instead of the psychiatric unit. Although their address was the same, as the forms therefore related to a different hospital, the admission had no legal authority.

BR: What happened?

MA: The hospital admitted them as an informal patient. They could then have legally detained them under Sec.5(2) if necessary.

BR: But what if the hospital is a long way away? Does the AMHP still have to go?

MA: Ideally, yes. I’ve had to go as far as 100 miles with a patient where there’s either been a bed shortage at the local hospital or they’ve needed to be admitted to a special unit, such as a children’s ward or a secure unit.

BR: Is there no way round it?

MA: Well, there is – you can fax the forms through to the hospital in advance if it’s a long way away – that way, they can be scrutinised and approved in principle before the patient actually gets there. I’ve done that once or twice.

BR: So if a form has a mistake on it, does that make it illegal?

MA: Not necessarily. That’s where “rectifiable and non-rectifiable errors” come in. The CQC have a useful document called Scrutinising and rectifying statutory forms for admission under the Mental Health Act 1983. It gives examples of errors that can be rectified (although it’s a bit more vague when it comes to defining non-rectifiable errors). This document says that:
Documentary irregularities fall into three broad groups:
♦ Those that are both incapable of retrospective correction and sufficiently serious to render the patient’s detention invalid.
♦ Those that may be rectified within 14 days after admission, but which, if not rectified, are sufficiently serious to render the application invalid at the expiry of that period.
♦ Errors and omissions that, even if they are not corrected within the statutory period, are not sufficiently serious to render the admission application invalid.
Sec.15(1) MHA allows 14 days for rectifiable errors on forms to be corrected.

BR: So, what are “rectifiable errors” then?

MA: They are usually fairly minor things, like minor errors in the address or name of the patient, or not crossing out things that needed to be, or leaving blank spaces where you should have written something. An example might be not crossing out the bit on the application referring to being unable to identify the nearest relative, when in fact you have identified the nearest relative. But they can be bigger errors, such as two doctors from the same clinical team providing recommendations. As long as you get another medical recommendation within 14 days, you’re all right.

BR: And what about errors that make the detention invalid?

MA: I’ve already given one example. A failure to sign a form is another fatal error. Another one would be a form completed by someone not authorised to complete the form, for example an application made by someone who was not actually an Approved Mental Health Practitioner. Another would be using the wrong forms. I can remember one particular admission. I was on night duty, and was called out to do an assessment by the GP. However, by the time I arrived at the patient’s home, the patient had already gone off to hospital in an ambulance. When the ambulance arrived at the hospital, the patient was brought onto the ward, clutching a single pink piece of paper in their hand. This turned out to be a Nearest Relative Application form! The Nearest Relative had completed the first part of the form, and the GP had then written in a space on the back “I certify that this person should be detained under the Mental Health Act” and had then signed it!

BR: You’re using exclamation marks again.

MA: Sorry.

BR: Have you ever made any serious mistakes when completing an application, Masked AMHP?

MA: Me? The Masked AMHP? Made a serious mistake on an application? Well, I have actually. It was a woman with a history of bipolar affective disorder who would from time to time become manic and require detention under the MHA. She was well known to me, as I had had to detain her under Sec.3 on a number of occasions. One day there was a request to assess her under the MHA, so I set up the two doctors and went to her house. She was in the street behaving in an erratic manner. The police attended, and took her to the police station under Sec.136. I told the two doctors, who then went to see her at the police station. By the time I had arrived, they had already assessed her, and gave me a completed joint medical recommendation. I then assessed her myself, completed an application under Sec.3, and the police agreed to take her to hospital. I then followed in my car, with the pink forms on the passenger seat. Being a stickler, I double checked the paperwork as I was driving, and then realised with horror that the doctors had completed a joint recommendation for a Sec.2, not a Sec.3. I pulled into the next layby and hurriedly completed an application for a Sec.2 to make the whole thing legal.

BR: Do you feel better for getting that confession off your chest, Masked AMHP?

MA: I do, as a matter of fact.

BR: Perhaps you’d better go and have a lie down, now. And keep away from the exclamations marks!

MA: Perhaps I will.