Thursday, 26 September 2013

What do the abbreviations and other jargon used on the Masked AMHP blog mean?

I try to avoid using too much jargon in this blog, but I inevitably have to use acronyms and abbreviations for brevity if nothing else. So here’s a list of acronyms and other common terms that crop up, with explanations. Any legislation referred to is British (or more specifically, referring to England and Wales, as Scotland and Northern Ireland have their own Mental Health legislation.)

Many of the explanations are highly simplified. If you want to know more about a particular topic, you can search the blog using the blog search box, or look up the Labels on the right hand side of the blog.

If I have left anything out, or if you want any further explanations, please leave a comment.

AMHP: Approved Mental Health Professional An AMHP can be a social worker, occupational therapist, mental health nurse or clinical psychologist. They have the power to detain people in hospital under the MHA.

Appeal Patients detained in hospital under Sec.2, Sec.3, Sec.4, and Sec.7, and those subject to a CTO, have the right to appeal against their detention. Their case is then heard by an independent Mental Health Tribunal, who have the power to discharge the patient from detention. Anyone who appeals has the right to free legal representation.

ASW Approved Social Worker The predecessor of the AMHP. Before 2007, only social workers could detain people.

CAMHS Child and Adolescent Mental Health Service

CMHT: Community Mental Health Team This is, or was, the most common way of delivering community mental health services. A CMHT consists of a range of different mental health professionals all working together, including psychiatrists, mental health nurses, occupational therapists, social workers and clinical psychologists. It’s a really good way of delivering a localised community service. Which is presumably why some Mental Health Trusts are withdrawing from this form of service delivery and having centralised teams covering vast geographical areas instead.

CoP: Code of Practice The MHA Code of Practice sets out what best practice should be when discharging the functions of the Mental Health Act.

CTO: Community Treatment Order When someone has been detained under the MHA under Sec.3, they can be discharged under a CTO, which gives powers to impose conditions, such as taking medication, or keeping appointments with their care coordinator or psychiatrist. If the patient does not comply with these conditions, they can be recalled to hospital.

DOLS: Deprivation of Liberty Safeguards DOLS are a part of the Mental Capacity Act. In certain circumstances, people who lack mental capacity can be deprived of their liberty. DOLS lays out the circumstances in which this might be done, and the safeguards available to protect people who are subject to deprivation of liberty, or who impose or manage situations of deprivation or liberty.

GP: General Practitioner This is a person’s family doctor.

Guardianship See Sec.7

HRA: Human Rights Act 1998 A working knowledge of the HRA is vital, as a failure to uphold the human rights it enshrines can render certain actions unlawful. At times it will “trump” mental health legislation.
The Rights delineated in the HRA include:
Article 2: Right to life
Article 3: Prohibition of torture
Article 4: Prohibition of slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Right to respect for private and family life
Article 9: Freedom of thought, conscience and religion
Article 11: Freedom of assembly and association
Article 12: Right to marry
Article 14: Prohibition of discrimination
The rights most likely to be compromised by actions taken under the MHA would include the right to liberty and security, the right to a fair trial, and the right to respect for private and family life.

Hospital Managers Hospital Managers are not employees of the hospital. They are volunteers who have a duty to review detained patients and to consider their discharge. A Managers Hearing will consider an appeal against detention under Sec.3 and some other sections and have similar powers of discharge to a Mental Health Tribunal.

Informal admission This is an admission to hospital where the patient has agreed to be admitted. Informal admission should always be considered as an alternative to the use of compulsion under other sections of the MHA.

Jones, Richard Author of The Mental Health Act Manual. Now on its 15th edition, the book has 1168 pages, is around the size of a breeze block and requires a sack barrow to transport it around. Nevertheless, it is the Bible for Mental Health Professionals, and an AMHP would feel naked if they were not carting around their own copy, well thumbed, with significant passages illuminated with highlighter pens, and with a blizzard of post-it notes bristling from its pages.

LSE: Low Stimulus Environment Some acute psychiatric units have a section away from the main ward where particularly disturbed patients can be nursed and treated in a safe and secluded setting. They will have one or two beds, a higher level of security, and a high level of supervision. (These are not padded cells.)

MCA: Mental Capacity Act 2005 This legislation relates to people who are considered to lack mental capacity. It provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. It is based on five statutory principles:
1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Mental Disorder The Mental Health Act only applies to people identified as having a mental disorder. However, the definition of “mental disorder” in the MHA is very broad, being “any disorder or disability of the mind”.
The Code of Practice gives examples of disorders that would fall within this definition. These include:
• affective disorders, such as depression and bipolar disorder
• schizophrenia and delusional disorders
• neurotic, stress-related and somatoform disorders, such as anxiety, phobic disorders, obsessive compulsive disorders, post-traumatic stress disorder and hypochondriacal disorders
• organic mental disorders such as dementia and delirium (however caused)
• personality and behavioural changes caused by brain injury or damage (however acquired)
• personality disorders
• mental and behavioural disorders caused by psychoactive substance use
• eating disorders, non-organic sleep disorders and non-organic sexual disorders
• learning disabilities
• autistic spectrum disorders (including Asperger’s syndrome)
• behavioural and emotional disorders of children and adolescents
However, there are explicit exclusions. The MHA states that learning disability of itself does not mean that a person is suffering from a mental disorder, unless that disability “is associated with abnormally aggressive or seriously irresponsible conduct”. The MHA defines “learning disability” as “a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.”
The MHA explicitly states that “dependence on alcohol or drugs is not considered to be a disorder or disability of the mind”.

Mental Health Tribunal (MHT) Mental Health Tribunals are part of the Judicial system. They are effectively a court of law. Their function is to hear appeals against detention under the MHA. They consist of a Judge, a Psychiatrist, and a specialist lay member, which is someone who has particular interest and experience in working in the mental health field. Their main purpose is:
  • to review the cases of detained, conditionally discharged, and supervised community treatment (SCT) patients under the Act
  • to direct the discharge of any patients where it thinks it appropriate
  • to consider applications for discharge from guardianship.
Mental Welfare Officer (MWO) The predecessor to the ASW and the AMHP under the 1959 Act.

MHA 1959: Mental Health Act 1959 This was the predecessor to the 1983 Act. I’m so old that I practiced under this act for a couple of years, until it was replaced by the 1983 Act.

MHA 1983: Mental Health Act 1983 The principle legislation defining what can and cannot be done with people with mental disorders.

MHA 2007: Mental Health Act 2007 This Act amended the 1983 Act. Among other things it simplified the definition of mental disorder, and introduced Supervised Community Treatment (SCT).

NR: Nearest Relative The Nearest Relative has a particular meaning under the MHA 1983. A patient’s NR has certain rights and powers under the Act, which is why AMHP’s have to be very careful about correctly identifying who the NR is. The NR is the first person you encounter in the following list:
husband, wife or civil partner
son or daughter
father or mother
brother or sister
uncle or aunt
nephew or niece.
But it’s rather more complicated than that; for example, a relative of the full blood takes precedence over a relative of the half blood; the elder of  two parents or siblings would take precedence. Whole books have been written about how to identify the NR.

Part III Part III of the Mental Health Act is concerned with mentally disordered people who are subject to criminal proceedings or who have been convicted of a criminal offence.

Patient The term “patient” is explicitly used within the MHA to refer to people with mental disorders. I'm afraid that patients are always referred to in the masculine throughout the MHA.

PIC: Police Investigation Centre Some police authorities have purpose built centres where all arrested people are taken for questioning. At times, people with mental health problems who have been arrested or even detained under Sec.136 may be held in a PIC, and may be assessed under the MHA while there.

PICU: Psychiatric Intensive Care Unit These are specialist short stay units which are generally low secure, meaning that they are locked units with a fair degree of security. They are used when a patient is so disturbed or violent that they cannot be managed in a general acute psychiatric unit.

RC: Responsible Clinician This is usually the consultant psychiatrist clinically in charge of a patient, whether in hospital or in the community. Under the revised MHA other mental health professionals, such as nurses, clinical psychologists or social workers can now be appointed RC’s.

SCT: Supervised Community Treatment (also known as a Community Treatment Order)

Section (verb) People involved professionally or personally with the MHA often refer to “sectioning” someone or “being sectioned”. This is a form of shorthand which refers to the process of assessing and detaining someone under a section of the MHA, particularly, Sec.2, Sec.3 and Sec.4. In my view, the use of this term, while being tempting to use by professionals, should not be encouraged, as it is disrespectful to the process and the individual.

Sec.2: Section 2 of the MHA This is an application made for someone to be assessed (which can include treatment) in a hospital. This lasts for up to 28 days. An AMHP can make an application on the recommendations of two doctors.

Sec.3: Section 3 of the MHA This is an application made for someone to receive treatment in a hospital. This lasts for up to 6 months in the first instance. An AMHP can make an application on the recommendations of two doctors.

Sec.4: Section 4 of the MHA This is an application made for someone to receive assessment in a hospital in an emergency. This lasts for up to 72 hours. An AMHP can make an application on the recommendation of a single doctor.

Sec.7: Section 7 of the MHA Otherwise known as Guardianship. This can be imposed on someone subject to Sec.3. Guardianship can impose certain conditions.
The residence power allows a guardian to require a patient to live at a specified place.
The attendance power lets a guardian require a patient to attend specified places at specified times for medical treatment, occupation, education or training.
The access power entitles a guardian to require that access to the patient be given at the place where the patient is living, to any doctor, (AMHP), or other specified person.
The main purpose of guardianship is to ensure that someone receives care and protection rather than medical treatment. Although guardians have powers to require patients to attend for medical treatment, they do not have any power to make them accept this treatment.

Sec.12 Approved Doctor When a patient is being detained under Sec.2 or Sec.3, where two medical recommendations are required, Sec.12 MHA states that one of the assessing doctors has to be “approved … by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder”.

Sec.35 A criminal court can remand an offender to hospital in order to assess their mental condition. This remand can last for up to 28 days, and can be extended for up to 3 months.

Sec.37/41 A criminal court, once a patient have been convicted of an offence, may order that the patient be detained in a hospital. A Crown court can place restrictions on the discharge of the patient, so that only the Secretary of State can order their discharge. A patient subject to Sec.37/41 may be living in the community, but subject to a range of conditions. If any of these conditions are broken, they can be recalled to hospital.

Sec.117 Aftercare Sec.117 lays down a duty for the local authority and the NHS to provide services for people who have been detained and then discharged from certain sections of the Act. The most common section is Sec.3, where a patient has been detained for treatment. There are some other sections of the Act relating to people who have committed criminal offences for whom Sec.117 also applies. These are Sections 37, 45A, 47 and 48. Detention under these sections is much less common.
A patient who has only ever been an informal patient, or who has only ever been detained under Sec.2 (for assessment) is not entitled to aftercare under Sec.117.
The most significant aspect of Sec.117 is that any aftercare provided under this section cannot be charged for. See other blog posts devoted to Sec.117 aftercare for more information.

Sec.135  Sec.135(1) gives a justice of the peace the power to issue a warrant for an AMHP and a constable to enter premises with the purpose of removing someone believed to be suffering from a mental disorder in order for them to be assessed. There has to be evidence that the person “has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or, being unable to care for himself, is living alone in any such place.”
Sec.135(2) allows a justice of the peace to provide a warrant to a constable the enter the premises of a patient “if need be by force” and remove the patient. The patient has to be liable to detention under the MHA (for example, having been detained under Sec.2 they have then absconded). There has to be “reasonable cause to believe that the patient is to be found on premises within the jurisdiction of the justice; and that admission to the premises has been refused or that a refusal of such admission is apprehended.” The patient can then be returned to hospital.

Sec.136 Sec.136(1) MHA states: “If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety.”
A place of safety can be anywhere, but most areas have a policy that people detained under Sec.136 should be taken to a specially designated “Sec.136 suite”, which would usually be on the site of a hospital.
A Sec.136 lasts for up to 72 hours. Once someone has been detained under Sec.136, they have to be assessed by an AMHP and a doctor whose job it is to assess whether or not the person needs to be detained in hospital.

Saturday, 7 September 2013

Should AMHP’s be scared about DD v Durham County Council?

I for one was certainly relieved when the Judge in DD v Durham County Council dismissed DD’s attempt to sue AMHP’s for breaching his human rights by not satisfying themselves that a particular hospital placement was suitable for his needs before sectioning him.
I wrote more fully about this case in August 2012. The Judge then concluded:
“It is obvious that an AMHP is not directly responsible for the medical or other regimes to which a detained person is subjected… An AMHP has certain responsibilities under the Mental Health Act which include recommending a person for detention under s.2 or under s.3. Their responsibilities have to be discharged in the light of all the relevant circumstances of the case, which would include taking into account the assessments of qualified doctors. Their functions do not extend, however, to choosing an institution in which the person concerned is to be detained – still less to researching the available facilities or carrying out a reconnaissance to assess their quality.”
But that is unfortunately not the end of the matter. In January 2013, the Court of Appeal ((2013) EWCA Civ 96) heard the claimant’s appeal against this earlier decision, and decided that there was enough of a case that it should be reconsidered.
DD’s legal representative contended that “the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty…Under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held. Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps to ensure that the patient's Article 3 and 8 rights were not infringed.”
It was submitted that the medical practitioners making the assessment were only responsible for making a recommendation regarding detention; it is therefore the duty of the AMHP under Sec.13(2) to be satisfied that a particular hospital is suitable.
Sec.13(2) relates to the AMHP’s duty to interview the patient:
"Before making an application for the admission of a patient to hospital an approved mental health professional shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need."
Durham had argued that this duty related to “a” hospital, and not a specific hospital. It was therefore a general duty to establish that the patient needed to be detained in a hospital, not a duty to identify the exact hospital in which the patient needed to be detained.
DD’s legal representative, however, maintained that “the AMHP must put himself in a position where proper independent judgment as to the recommendation made by the doctors can be scrutinised and a decision made as to whether what is proposed or recommended by them is the proper place for an assessment or for treatment”.
The judge, concluding that “the scope of the duty of an AMHP is a question of law of some importance” therefore decided that the case should be heard and decided in the High Court, recognising the implications of a finding in favour of DD.
So what are the implications, if the High Court finds in favour of DD?
AMHP’s have certainly always seen the job of finding a bed as being the responsibility of the medical practitioner or the local hospital itself.
Although protocols vary, essentially either the local Crisis Team or a designated Bed Manager in the hospital would have the job of arranging for a bed. The AMHP would clearly prefer that that bed should be in the hospital nearest to the patient, but if that is not possible, then the hospital has to find a bed somewhere else. That may be anywhere within the particular Mental Health Trust, or failing that, even further afield. Sometimes beds in private hospitals are arranged. Sometimes these beds can be over a hundred miles away.
But the concern has always been to find “a” bed, and where there is a delay, this task is undertaken by others while the AMHP is occupied at the patient’s house.
So what would be the implications if an AMHP had to find not just any old bed, but a bed in a ward which was uniquely suitable for the particular patient?
Para4.75 of The Code of Practice states:
"If the doctors reach the opinion that the patient needs to be admitted to hospital, it is their responsibility to take the necessary steps to secure a suitable hospital bed. It is not the responsibility of the applicant, unless it has been agreed locally between the LSSA and the relevant NHS bodies that this will be done by any AMHP involved in the assessment. Primary care trusts are responsible for commissioning mental health services to meet the needs of their areas. They should ensure that procedures are in place through which beds can be identified where required."

The Code of Practice gives many examples of things that AMHP’s should be responsible for, eg. arranging for the care of children and pets, and there are certainly enough tasks to keep the AMHP fully occupied without seeking a suitable placement for the patient. How would they do that while they were trying to manage all their other duties?
With many Trusts radically reducing the numbers of beds, it is frequently a cause of major delay simply to find a bed at all. It would lead to delays of potentially weeks before the right bed was found. What would happen to the patient in the meantime? What would happen to the AMHP, since they would by definition not be able to delegate that function?
The eminent David Hewitt, writing in the Solicitors Journal (Heading down the wrong road) was very dubious about this case. He concluded:
"More than 30 years after the current Mental Health Act was introduced, there seems little appetite for the changes they would entail. It is one thing to give a patient his day in court. It would be quite another thing, however, to find that an AMHP, who may be unfamiliar with - and even have no part in the selection of - a hospital, is in some way liable for everything the patient subsequently encounters there.”
A judgment in favour of DD would quite simply make the role of the AMHP utterly impossible, and the Mental Health Act completely unworkable.

Monday, 2 September 2013

What Is Covered by S.117 Aftercare? Further Recent Case Law

A recent court judgment has clarified further what is covered by S.117 Aftercare.  R v LB Camden, [2013] EWHC 1637, 13th June 2013, concerned a man, Mr Tewodros Afework, who had been detained under Sec.3 MHA in 1992 & 1993. He had then lived in a number of local authority flats with his sister, for which they received housing benefit.
In 2000, he was assaulted and incurred significant brain damage. As a consequence he was no longer able to live independently and had to live in specialist accommodation. S.21 National Assistance Act 1948 applied, but he was not charged for his accommodation on the grounds of low income.
It would appear that the application arose as a result of Mr Afework being awarded a considerable sum of money in Criminal Injuries compensation, which it was likely the local authority providing accommodation would take into account when assessing his contribution to his accommodation charges.
Mr Justice Mostyn, the judge in the case, reiterated a number of previous cases which looked at issues of accommodation and S.117 Aftercare. In particular, the case of R (Stennett) v Manchester City Council [2002] 2 AC 1127, looked at three cases where people who had been detained under Sec.3 had then been charged for residential accommodation. It was affirmed that residential accommodation came within the remit of S.117 aftercare, and could not therefore be charged for. This decision was upheld by the House of Lords.
He also referred to Mwanza, which I have looked at before (R v Greenwich London Borough Council and Bromley London Borough Council, ex parte Michael Mwanza (2010) [2010] EWHC 1462 (Admin) QBD (Admin) (Hickinbottom J) 15th June 2010, to give it its full title.)
This case involved a Zambian national who was in this country on the basis that his wife had a student visa. He was subsequently detained under Sec.3. He and his wife stayed in this country for several years, during which time his wife’s student visa ran out and they were then considered to be residing in this country unlawfully, so they were unable to work.
They applied for accommodation and financial support. When this was refused, he applied for judicial review on the basis that S117 aftercare covered both eventualities, as they could be considered to be necessary in order to prevent a deterioration in his mental health.
The Court found that a local authority’s duty to provide aftercare was limited to the services necessary to meet a need arising from a person’s mental disorder. As his mental disorder had not been the cause of his homelessness or destitution, then there was no requirement on the local authority to meet this need.
The judge also examined the case of R (Gary Baisden) v Leicester City Council [2011] EWHC 3219 (Admin). In this case, a man called Gary Blaisden, who had paranoid schizophrenia and who had been detained under Sec.3 MHA in 2010, was being evicted from his accommodation on the grounds of his antisocial behaviour. This antisocial behaviour had arisen not by his mental illness but by his drug abuse. It was argued that the local authority should provide him with accommodation under S.117 aftercare provisions were he to become homeless.
The judge in this case rather sensibly concluded:
“If the mental condition does not require specialised accommodation with elements of support, then the duty to provide bare accommodation is under section 21 of the National Assistance Act. In any event, in respect of both duties the defendant says that the assessment of the consultant psychiatrist is that it is his voluntary drug taking that is the cause of his predicaments rather than his underlying schizophrenia that can respond to medication. Therefore what he needs to do is to stop taking drugs and to co-operate with his Outreach team in that respect, at which point he will be able, if he so chooses, to manage independent living, look after himself, abide by the conditions of his tenancy and not be a nuisance with his neighbours.”
Based on these cases, Mr Justice Mostyn therefore held that:
i) The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place ("the original condition");
ii) The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and
iii) The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.”
As he found that the applicant’s need for residential care arose entirely from his head injury, and was not the result of his underlying mental illness, then S.117 aftercare did not apply.

The conclusion to be drawn from these cases therefore could not be clearer:

  • Residential care is certainly covered by S.117 aftercare, but only if the need for that care arises from the patient’s mental condition which resulted in their detention under Sec.3 MHA.
  • Ordinary accommodation, eg a flat or house, is not under any circumstances covered by S.117.