Thursday, 1 March 2018

Ask the AMHP: Yet more ridiculous problems with S.117 Aftercare

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

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

My postbag continues to receive requests for advice from relatives who are being misled about responsibility for S.117 aftercare. Whether through ignorance, or a desire to save money, I can only guess. The son of an elderly lady wrote to me with this problem.

 My mother was recently discharged from a Psychiatric Hospital in Area A. She has a history of depressive mental illness having been hospitalised at least six times over the years and each time receiving ECT therapy to get better. She was  placed on S.2 MHA and subsequently S.3 MHA, and was given a diagnosis of severe depressive disorder with psychotic symptoms as well as dementia.

I attended her discharge meeting in the hospital and was told she would be subject to S.117. I was told that I should ‘Google it’ to see what it meant when I got home. The doctor at the hospital stated that it would not be a possibility to return home as she would need a substantial care package. As it was Christmas, I decided to take her home to spend Christmas with me. I live in Area B.

While she was with me it became clear that she would need some form of residential care. I contacted the community mental health team in Area A, but was told that she was now in Area B and that I should contact social services in Area B. Following a Care Act assessment conducted by Area B social services, she was placed in a care home near where I live.

I contacted Area A social services regarding help with her care home fees under S.117 to be told that it was nothing to do with them now she was in Area B. However, Area B then told me the responsibility was with Area A.

It appears that because I took my mother home for Christmas she has received no consideration regarding her after-care and I really should have let her go into respite care.

The Masked AMHP replies:

As your mother was detained under S.3 MHA, she will be entitled to free S.117 aftercare. She should also have a Care Act assessment of her needs. The costs of any needs identified should not be chargeable.

I received this reply:

In principal there appears to be agreement that my mother is entitled to S.117 aftercare, the argument now is who is responsible, is it Area A or Area B? My understanding is that when she was taken into hospital her GP was in Area A, she lived in Area A and was hospitalised in Area A, therefore they are responsible despite the fact she is now in a care home in Area B. Area A are apparently seeking legal advice.

The Masked AMHP replied:

This issue is covered by the Care Act 2014.

Sec.39(1) of the Care Act gives a clear definition of “ordinary residence”. Essentially, this applies to adults requiring residential care. “Ordinary residence” in the case of your mother is “in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”.

Sec.39(4) then explicitly applies this to Sec.117 after-care, stating:
“An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.”

I'm not sure why Area A is seeking legal advice since it seems quite clear.

If your mother was living in her own home in Area A at the time she was detained under S.3 MHA (or S.2 followed by S.3), then Area A are responsible for S.117 aftercare. The fact that you took her to live with you in Area B is immaterial. It is the "ordinary residence" at the time of admission to hospital. Assuming she has been assessed by the local authority as needing residential care to meet her care needs because of mental disorder, then Area A would be responsible for paying for it.

Here’s another relative with problems around S.117 aftercare:

Hi, wonder if you can advise. My elderly aunt has diagnoses of advanced Parkinson’s/Dementia, Psychosis, Paranoia, Anxiety and Depression. She was detained under s.2 then subsequently discharged to self funded residential care. This placement broke down and she was again detained under S.2, and this was followed by detention under S.3.

Her social worker recommended several possible placements for us to view, to be funded under S.117, that could meet her needs upon discharge and the deal was about to be done when she got Pneumonia and fractured hip and transferred from MH Hospital to regular hospital. This social worker then left their post and we were left to the mercies of the hospital discharge team. 

The CCG said no to S.117 funding as they considered there were no ongoing health needs. They based this on the fact that her MH was now much improved, The new social worker told us they would only provide funding up to their standard maximum, and anything above that would have to be topped up by my aunt.

We reluctantly agreed to this so as not to delay discharge even though the placement was as the original social worker’s recommendation!

We then received a phone call the day before discharge saying that we had to sign the top up agreement that day or she could not be discharged. It was the standard ‘means tested’ top up agreement and we remarked at the time that we were surprised there was not specific paperwork for S.117.

5 months later a newly allocated social worker is saying S.117 funding was never agreed and a financial assessment must take place.

The Masked AMHP replies:

As your relative was detained under S.3 MHA she will be entitled to S.117 aftercare.

Unless there has been a formal meeting with Health and Social Services agreeing that your relative has no needs whatsoever for mental health aftercare, then S.117 responsibilities will continue, which means at the least that there have to be regular review meetings to review her needs. The CCG cannot unilaterally say she has no needs, although they may consider that her needs can be met through social care.

If your relative is in a nursing home, then nursing costs should in any case be met by the CCG.

It is very curious that one social worker identified a placement which presumably reflected her mental health needs, but another social worker is now saying this is not covered by S.117.

Under S.117, all the costs of a care home identified as being the most suitable should be met. A top up would only be required if you and she chose to go to another care home that was more expensive.

Even if the current social worker says no S.117 funding was ever agreed, that does not negate the local authority's duties under S.117. It just means that they have not fulfilled their duties under S.117.

The only complication would be if the care provided was solely arising from physical care needs, but this would be hard to establish, as care homes for elderly people will generally care for a mixture of people with physical and mental frailty.

Even if your relative's other mental health conditions have been successfully treated, she must still be receiving some sort of medication for mental disorder, eg antipsychotic and/or antidepressant medication, which proves an ongoing requirement for mental health aftercare. Also, Parkinson's Disease, which can produce dementia, and any other underlying dementia, are not curable, so she must still have these conditions, which are covered by S.117 aftercare.

I would point these matters out to the current social worker – the bottom line is that as she has at some point been detained under S.3 MHA, she is entitled to S.117 aftercare, whether local authority likes it or not.

If they refuse to budge, then I would make a formal complaint to the local government ombudsman, who has taken a dim view of local authorities trying to dodge their S.117 responsibilities in the past.

I received this reply:

The CCG pretty much said that her needs going forward were social care needs. She currently resides in a residential care home registered for EMI. This is what we told she needed.

As far as we know she is not taking any MH meds. She was taken off them because they were causing complications with her Parkinson's meds and she had a couple of episodes of 'dropping' which they felt was due to the MH meds. On balance, they felt it was the lesser of two evils not to take them.

Thank you for the reassurance that we have not got completely the wrong end of the stick. I shall be making the case that we should not be (and should never have been) paying a top up. We have been truly let down as a family with no mental health follow up being put in place after either of her stays in mental health hospitals and had to beg to have a social worker allocated again when the current placement was looking dodgy a few months ago.

The Masked AMHP replied:

They are clearly accepting that she is entitled to S.117 aftercare, and furthermore she is in an EMI care home. In the circumstances, it is irrelevant what medication she might or might not be taking.

As this is the specific care home identified to meet her needs, they cannot legitimately insist on top-up payments, and S.117 should cover the entire cost.

They're really trying it on!

Friday, 2 February 2018

Can a person in police custody be detained under S.136?

Following the recent changes to S.136 MHA by the Policing & Crime Act, there has been some discussion in mental health circles about whether or not a person who has been arrested for an offence and is in police custody can be detained under S.136 while still in custody.

This question would not have arisen prior to 11th December 2017, as someone could only be made subject to S.136 if they were in “a place to which the public have access.” A police station was most definitely not such a place.

However, the new S.136(1B) has dispensed with this requirement, and now states that the power can be used in “any place”, with only a few exceptions, which include a private dwelling.

So theoretically at least, it would be within the law to use the S.136 powers in a police station.

Let’s look at a possible scenario.

Scenario 1
Gary is arrested after he was challenged by police in the town centre and threw a can of lager at the police officer. Once in custody, it becomes clear to the custody officer that Gary is suffering from some sort of mental disorder.

Prior to 11th December 2017 the custody officer would have had to contact the local AMHP service, who would then have arranged to conduct an assessment under the Mental Health Act at the police station.

Now, however, a second option is available: to detain under S.136 and then either transfer them to a place of safety or allow them to be assessed in accordance with S.136 requirements in the police station.

Clearly, the question of using S.136 in these circumstances depends on the seriousness of the offence; it would probably not be appropriate to consider moving someone to a S.136 suite who has been arrested on suspicion of murder.

I can certainly see that S.136 could possibly be appropriate, as well as legal, if the custody officer believes the person needs an assessment of their mental health, and would be better served in a non police based place of safety.

But what if the person in custody has already been assessed under the MHA?

Scenario 2
The custody officer considers Gary has a mental disorder and an AMHP and two doctors assess him in the police station. They conclude that he has a mental disorder within the meaning of the Act, and that he should be detained in hospital.

However, no bed has been identified, and the 24 hour PACE clock is running out.

Again, prior to December 2017, the custody officer would have had no choice but to watch the PACE clock run out and then make a decision whether or not to release someone who has been assessed as needing detention in a hospital because of risks to themselves or others, or to keep them in custody, outside of any legal mechanism.

Unfortunately, because of the dire nationwide shortage of beds, exacerbated by an even worse shortage of specialist beds, such as Psychiatric Intensive Care Units (PICUs), and placements for children, this scenario is not uncommon. In a few instances in our area, people have been kept in legal limbo in police custody for up to 72 hours before a bed has been found.

A custody officer could be forgiven if, after perusal of the revised S.136, they exclaimed “I can detain this person under S.136 and that gives another 24 hours to find a bed!”

But would this be legal? My first response to this scenario would be to say that it would not, but close reading of S.136 throws up complications.

Let’s look at what the MHA, and the Code of Practice, has to say.

The first thing that an AMHP would focus on is their duties under S.136. This is to be found in S.136(2):

A person removed to, or kept at, a place of safety under this section may be detained there … for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care.

The Code of Practice stresses:

The purpose of removing a person to a place of safety in these circumstances is only to enable the person to be examined by a doctor and interviewed by an AMHP, so that the necessary arrangements can be made for the person’s care and treatment.(para16.25)

An AMHP (myself included) would argue that in Scenario 2 Gary has been assessed, and therefore does not need another assessment. Would it not be an abuse of S.136 to use the powers simply to manage the PACE clock?

However, what is the precise wording of S.136(1), where it relates to the police’s powers?

This says:

If a person appears to a constable 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 the person to a place of safety.

What this section is saying is that all a constable has to establish in order to exercise their power is to be satisfied that a person appears to be suffering from mental disorder and is in immediate need of care or control.

They don’t have to worry about the niceties of assessment by an AMHP and a doctor, even though that is the legal consequence of using S.136.

Essentially, S.136(1) provides instructions for the police alone, as AMHPs would only be involved at that stage if the constable’s duty to consult with a mental health professional was being exercised.

S.136(2), however, provides instructions for the AMHP. The constable has no part in decisions relating to disposal of the person once detained, except for circumstances in which the police are required to manage the person.

So the custody officer in Gary’s case would certainly have the evidence of mental disorder. After all, Gary has had a full MHA assessment and a decision has been made that Gary should be admitted to psychiatric hospital. The custody office could equally conclude that, being mentally disordered, and having been arrested because of his behaviour, Gary was in immediate need of care or control.

He could also legitimately conclude that Gary, being definitely mentally disordered, would be better off in a S.136 suite than in a police station.

On this reading, there would be nothing in law to stop the custody officer from detaining Gary under S.136.

I just hope they don’t do this too often, or AMHPs are going to have an even greater workload.

Monday, 22 January 2018

Can a person be detained under more than one section of the Mental Health Act at once?

This is by no means as straightforward an issue as it may seem, and can from time to time create difficulties and anomalies.

While as a general rule, a person cannot be subject to more than one section of the MHA simultaneously, there are exceptions to this rule. There are also implications regarding whether or not certain sections can continue once a decision has been made.

I’ll look at some examples.

The Code of Practice states that S.5(2) cannot apply “to a patient who is already liable to be detained under section 2, 3 or 4 of the Act”(para18.7).

If an informal hospital patient is detained under S.5(2) an AMHP has up to 72 hours to arrange an assessment with a view to detaining under S.2 or S.3. Once a decision has been made, and an application completed for S.2 or S.3, the S.5(2) detention ends. This also applies if the decision is made not to detain.

The Code of Practice states: “Although the holding power lasts for a maximum of 72 hours, it should not be used to continue to detain patients after the doctor or approved clinician decides that, in fact, no assessment for a possible application needs to be carried out, or a decision is taken not to make an application for the patient’s detention.”(para18.20)

Additionally, it needs to be borne in mind that detention under S.5(2) does not permit the patient to be moved from one hospital to another. If they are moved, for example from a general hospital to a psychiatric hospital, or vice versa, then the S.5(2) would automatically end.

What about S.2 to S.3?
Ah. If an AMHP assesses a patient who is detained under S.2 for assessment with a view to detention under S.3 for treatment, and makes the decision not to detain them, then, although best practice would be for the Responsible Clinician to discharge them from S.2, there is no requirement to do so, so the S.2 could legally continue to the end of the 28 day period of detention.

There are situations in which this could be justified. An example that springs to mind is where a patient has been detained under S.2 and the request to detain under S.3 comes within the first couple of weeks of the original detention. The AMHP may consider that it is too premature to consider detention under S.3, which could last for up to 6 months, and may think that the patient’s condition could improve sufficiently over the remaining time of the S.2 to make further detention unnecessary.

A similar rule as that for S.5(2) applies for detention under S.136. If an AMHP and at least one doctor have assessed and decided that a patient detained under S.136 does not need to be detained under the MHA, the S.136 can remain in force only while any necessary arrangements are made for the disposal of the patient, such as arrangements for informal admission or transport home. The Code also points out that someone subject to S.135(1) or S.136 cannot be placed on S.5(2), since S.5(2) only applies to inpatients.

The S.136 will also remain in force while arrangements are being made for a hospital that is able to take the patient if it has been decided to detain under S.2 or S.3. Of course, this will only apply until the end of the maximum length of detention of 24 hours.

Assuming there is a bed, then the S.136 ends as soon as the relevant application has been made. As the patient is then liable to be detained, this authorises the AMHP, the police or any other relevant person to hold the patient in custody until they can be transferred to hospital.

The same will apply for a patient detained under S.135(1) who has either been taken to a place of safety for assessment, or assessed at the place where the warrant has been executed.

Guardianship (S.7)
No-one can be detained simultaneously under both Sec.3 and S.7, as the Reference Guide states: “Once a patient subject to guardianship is admitted for treatment, the guardianship ceases.” (para8.99)

However, a patient subject to Guardianship can be detained under S.2 (and S.4) (para30.36).

Community Treatment Orders
Possibly because Community Treatment Orders were added to the MHA 1983 by the 2007 MHA, many years after the original drafting, it gets rather more complicated.

Because people can only be subject to a CTO if they are detained under S.3, people on CTO’s can be regarded as still subject to the original, latent, S.3.

The Reference Guide states unequivocally that someone on a CTO cannot be made subject to S.5(2)(para8.72). It goes on to explain that “because patients on CTOs can be recalled to hospital for treatment if required, it should not be necessary to make applications for their detention.”(para8.96) The Code states that “where the person is known to be on a CTO and compulsory admission is indicated, the recall power should be used”(para18.17)

You might think therefore, that no other sections of the MHA can be used with people on CTOs, but that is not necessarily the case. The Reference Guide recognises that in practice patients may end up being detained under other sections “if the people making the application do not know that the patient is on a CTO"(para8.96). It goes on to state:

An application for admission for assessment under section 2 or 4 does not affect the patient’s CTO. Nor does an application for admission for treatment under section 3 if, before going onto a community treatment order (CTO), the patient had been detained on the basis of a hospital order, hospital direction or transfer direction under part 3 of the Act. (para8.97)

So this does mean that a police officer, not being aware of a person’s status as being subject to a CTO, may legitimately detain someone under S.136.

Consequently, an AMHP and a doctor would still need to assess in accordance with the requirements of S.136, but if they decided the person needed to be admitted to hospital, they could then make arrangements for their recall to hospital under the rules for a CTO.

An application for detention for treatment under S.3 would automatically end a CTO, in the same way that a S.3 would end a Guardianship Order. However, the Code says, “an application for detention should not be made in respect of a person who is known to be on a CTO” (para15.17), so the correct procedure would be recall to hospital, followed by revocation of the CTO if necessary. That action will then reactivate the latent S.3.

If in ignorance, perhaps because the person on a CTO has turned up in another part of the country, they are then detained under S.2 or S.4, the recall and revocation process can be initiated once the person’s true status is known, and once the S.3 had been restored, any other sections would cease to have effect.

I hope that’s cleared up any confusion.