Showing posts with label Sec.139. Show all posts
Showing posts with label Sec.139. Show all posts

Thursday, 12 June 2014

TW v Enfield: The Meaning of “Reasonably Practicable”


This case has been meandering through the courts since 2007. It looked as if it had finally been settled in May 2013, but leave to appeal was allowed, and the Appeal Court finally gave its judgment in March 2014. It’s an important case for AMHP’s as it gives an interpretation of the term “reasonably practicable” when consulting with nearest relatives in connection with applications under Sec.3.

To recap: Judge Bean heard this case in 2013 (TW v London Borough of Enfield and Another [2013] EWHC 1180 (QB)).

The bare bones of the case were as follows.

On 29th June 2007 an ASW, 2 doctors and police executed a Sec.135 warrant and entered the property of TW. TW was then detained under Sec.3 MHA for treatment from her home and admitted to hospital. She remained subject to Sec.3 until she was discharged by a Tribunal on 14th September 2007.

TW’s case was that, as her Nearest Relative was not consulted in accordance with the requirements of Sec.11(4), then the application was illegal and that the LA and the ASW had “acted in bad faith or at least with a lack of reasonable care.” She therefore wished to sue the MH Trust, the Local Authority and the ASW.

In fact, there is a considerable amount of information in the Judgment relating to the psychiatric history and the behaviour of TW. She had a formal diagnosis of OCD, and had had inpatient treatment in a psychiatric hospital in the past.

There were letters written by TW and other statements that she had made in regarding her relationship with her parents. Her father was the Nearest Relative. One of the letters to her psychiatrist stated: “"my Mum and Dad called the police and my Dad threatened to hit me and my Mum ran next door to a neighbour's house. I was outside when the police came. My Mum and Dad tried to section me through the police who tried to smash the car window and get me out but I was able to stay in the car and drive away fast. … There are to be no meetings with my family." She subsequently left a message stating that no information should be given to her parents.

In another letter she stated: “My Dad threatened to smash my face in once again on the phone on my birthday and my Mum was making it worse”. This letter went on to say that “I would like my Mum to be taken off as my next of kin and my Dad off as the nearest relative." She suggested that she would like another person to act as her NR.

The Sec.135 and subsequent Sec.3 were triggered by a number of incidents prior to 29th June 2007. It was reported that TW “had hit a neighbour on 17th June 2007. She had been taking the rubbish out of the neighbour's dustbins into her flat. She had been unwilling to engage with support services or to allow them access to her flat. The flat was filled with rubbish and posed a risk to her and others because of the fire hazard.”

The Judgment records both the patient’s account of her assessment and detention, and the ASW’s account. They differ markedly from each other.

TW stated: "29th June 2007 was the day I was sectioned. More than nine people, including three police officers, doctors [and] officers from Environmental Health to section me. I was upstairs about to wash my hair and therefore when they knocked on the door I did not come to the door straightaway. They smashed my door in and humiliated me in front of all my neighbours. I was extremely frightened and felt totally helpless. As I did not recognise anyone in particular I shouted out aloud to them to call my parents. They must have heard me but simply ignored my requests."

It was reported that, according to the ASW, TW “spoke to the assessing team through her window but continued to refuse to open the door. The police then had no alternative but to execute the warrant to enter the property. The Applicant came downstairs shouting that she did not want anyone to come into her property, but then allowed Dr Duignan and Ms Muschett [the ASW] in.”

In considering whether or not to consult the Nearest Relative, the ASW clearly considered the case law of R(E) v Bristol City Council (2005). In this particular case, “the patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to become involved.” In that case, the Judge concluded that “"practicable" and "reasonably practicable" can be interpreted to include taking account of the Applicant's wishes and/or her health and well-being."

This Judgment is frequently considered by AMHP’s when deciding whether or not to consult with the NR, and evidence that an AMHP has thought about this is often sought in AMHP’s MHA Assessment Reports.

It appears that TW wanted things both ways. She wanted mental health services to respect her wishes that they not give any information to her parents, and gave testimony that the relationship with her parents had irretrievably broken down. At the same time, however, she wanted to sue the same authorities for not consulting with them.

The Judge stated that TW “had repeatedly, in dictated letters, instructed Enfield's staff not to involve her family. She had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality. These were not deluded ravings, and Ms Muschett and her colleagues were right to treat them seriously.”

He concluded that: “The evidence of Enfield's witnesses is that they considered that involving TW's father on 29 June 2007 would be likely to cause her distress and emotional upset... The test on this issue is a subjective one, and a matter of professional judgment.”

The Judge went on to say “it is clear that it was "not reasonably practicable", within the meaning of Sec.11(4) of the Mental Health Act 1983, for Enfield to have consulted TW's father before applying for her admission for treatment on 29 June 2007; and that the claim against Enfield is therefore bound to fail.”

At this point it looked as if the decision of the ASW had been upheld. However, the recent Court of Appeal Judgment ([2014] EWCA Civ 362; [2014] WLR (D) 145) has taken a different view.

The Judge concluded: “when an ASW is considering whether it is "reasonably practicable" to consult the "nearest relative" before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the ASW an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life.”

The Judge continued: “a patient's assertion, even if founded on fact and even if reasonable, that consultation would lead to an infringement of her Article 8(1) rights cannot, as a matter of law, lead automatically to the conclusion that it is "not reasonably practicable" to consult the "nearest relative". Nor is an ASW's conclusion that such consultation would lead to an infringement of the patient's Article 8(1) rights enough, in law, to lead to the decision that there should be no such consultation under section 114). Equally, as a matter of construction of section 11(4), it must be wrong in law for the ASW to conclude that because consultation with TW's "nearest relative" would require disclosure of details of TW's case and that would therefore constitute an interference with TW's Article 8(1) rights, that must necessarily lead to the conclusion that it was "not reasonably practicable" to consult the "nearest relative".”

The Judge’s final conclusion was: “In my view, on what is known of the reason for the ASW's decision not to consult, there is obviously an arguable case that the decision was not made on the right basis. Whether the decision not to consult was, in all the circumstances, correct, must ultimately depend upon a careful analysis of the facts. In my view that is not something that can be determined summarily in this case.”

So what does this mean?

It seems to me that the Judge, while allowing the appeal, and stating that there were errors in law in the previous judgment, in failing to properly consider the implications of the Human Rights Act, does not actually reach a definitive conclusion as to whether or not the ASW was wrong to conclude that consultation with the NR was “not reasonably practicable” in this particular case.
 
It appears that this matter will still need to be considered in a future application by TW to bring a claim for unlawful detention and psychiatric injury under Sec.139 MHA.

As a reminder, Sec.139 MHA provides protection for professionals taking actions in pursuance of the MHA. Sec.139(2) states that civil proceedings cannot be taken without leave of the High Court. This hearing gave such leave. However, Sec.139(1) prevents action being taken unless it can be shown that, in this case, the ASW acted “in bad faith or without reasonable care.” A future court will still have to decide this.

I’m not sure whether this ruling clarifies circumstances in which it is “impracticable to consult” or simply makes the AMHP’s job even more complex and onerous. After all, AMHP’s are not in the position of a lawyer, who is able to spend days or weeks reading the relevant case law before making a decision. AMHP’s are frequently having to make such decisions under situations of extreme stress and where delay may lead to endangering the safety or lives of not just the patient, but of other professionals, relatives and members of the public.
 
What this case does reinforce is the need for an AMHP to think long and carefully, and to weigh up not just the legal requirements of the MHA, but also the potential conflicts of consultation with the Human Right Act. And it’s very important for any AMHP to record in detail their decisions where they conclude that it has been “impracticable to consult”.

Wednesday, 22 May 2013

When is it “not reasonably practicable” to consult the Nearest Relative? Some recent Case Law

Police discreetly executing a Sec.135 Warrant
A very recent (8th May 2013) High Court Case, TW v London Borough of Enfield and Another [2013] EWHC 1180 (QB) was asked to consider whether or not there was a case that Sec.139 was incompatible with the Human Rights Act.
 
As all AMHP’s will know, Sec.139 Mental Health Act 1983 exempts AMHP’s and others who are doing “any act purporting to be done in pursuance of this Act” from civil or criminal proceedings “unless the act was done in bad faith or without reasonable care”.
 
While at first glance this appears to be of interest primarily to lawyers, in fact the case hinges on the legality of a patient’s detention under Sec.3, and whether or not the ASW (the actual incident took place prior to the introduction of AMHP’s in 2008) acted unlawfully by not consulting with the patient’s Nearest Relative.
 
The bare bones of the case are as follows.
 
On 29th June 2007 an ASW, 2 doctors and police executed a Sec.135 warrant and entered the property of TW. TW was then detained under Sec.3 MHA for treatment from her home and admitted to hospital. She remained subject to Sec.3 until she was discharged by a Tribunal on 14th September 2007.
 
TW’s case was that, as her Nearest Relative was not consulted in accordance with the requirements of Sec.11(4), then the application was illegal and that the LA and the ASW had “acted in bad faith or at least with a lack of reasonable care.” She therefore wished to sue the MH Trust, the Local Authority and the ASW.
 
In fact, there is a considerable amount of information in the Judgment relating to the psychiatric history and the behaviour of TW. She had a formal diagnosis of OCD, and had had inpatient treatment in a psychiatric hospital in the past.
 
There were letters written by TW and other statements that she had made in regarding her relationship with her parents. Her father was the Nearest Relative. One of the letters to her psychiatrist stated: “"my Mum and Dad called the police and my Dad threatened to hit me and my Mum ran next door to a neighbour's house. I was outside when the police came. My Mum and Dad tried to section me through the police who tried to smash the car window and get me out but I was able to stay in the car and drive away fast. … There are to be no meetings with my family." She subsequently left a message stating that no information should be given to her parents.
 
In another letter she stated: “My Dad threatened to smash my face in once again on the phone on my birthday and my Mum was making it worse”. This letter went on to say that “I would like my Mum to be taken off as my next of kin and my Dad off as the nearest relative." She suggested that she would like another person to act as her NR.
 
The Sec.135 and subsequent Sec.3 were triggered by a number of incidents prior to 29th June 2007. It was reported that TW “had hit a neighbour on 17th June 2007. She had been taking the rubbish out of the neighbour's dustbins into her flat. She had been unwilling to engage with support services or to allow them access to her flat. The flat was filled with rubbish and posed a risk to her and others because of the fire hazard.”
 
The Judgment records both the patient’s account of her assessment and detention, and the ASW’s account. They differ markedly from each other.
 
TW stated: "29th June 2007 was the day I was sectioned. More than nine people, including three police officers, doctors [and] officers from Environmental Health to section me. I was upstairs about to wash my hair and therefore when they knocked on the door I did not come to the door straightaway. They smashed my door in and humiliated me in front of all my neighbours. I was extremely frightened and felt totally helpless. As I did not recognise anyone in particular I shouted out aloud to them to call my parents. They must have heard me but simply ignored my requests."
 
It was reported that, according to the ASW, TW “spoke to the assessing team through her window but continued to refuse to open the door. The police then had no alternative but to execute the warrant to enter the property. The Applicant came downstairs shouting that she did not want anyone to come into her property, but then allowed Dr Duignan and Ms Muschett [the ASW] in.”
 
In considering whether or not to consult the Nearest Relative, the ASW clearly considered the case law of R(E) v Bristol City Council (2005). In this particular case, “the patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to become involved.” In that case, the Judge concluded that “"practicable" and "reasonably practicable" can be interpreted to include taking account of the Applicant's wishes and/or her health and well-being."
 
This Judgment is frequently considered by AMHP’s when deciding whether or not to consult with the NR, and evidence that an AMHP has thought about this is often sought in AMHP’s MHA Assessment Reports.
 
It appears that TW wanted things both ways. She wanted mental health services to respect her wishes that they not give any information to her parents, and gave testimony that the relationship with her parents had irretrievably broken down. At the same time, however, she wanted to sue the same authorities for not consulting with them.
 
The Judge stated that TW “had repeatedly, in dictated letters, instructed Enfield's staff not to involve her family. She had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality. These were not deluded ravings, and Ms Muschett and her colleagues were right to treat them seriously.”
 
He concluded that: “The evidence of Enfield's witnesses is that they considered that involving TW's father on 29 June 2007 would be likely to cause her distress and emotional upset... The test on this issue is a subjective one, and a matter of professional judgment.”
 
The Judge went on to say “it is clear that it was "not reasonably practicable", within the meaning of Sec.11(4) of the Mental Health Act 1983, for Enfield to have consulted TW's father before applying for her admission for treatment on 29 June 2007; and that the claim against Enfield is therefore bound to fail.”
 
This is further reinforcement of the AMHP’s duty to consider very carefully the implications of consultation with the Nearest Relative when making an application under Sec.3, and not to be afraid to take into account the wishes of the patient in relation to consultation with the NR, and therefore to make a decision not to consult where the evidence indicates that harm or distress may be incurred by the patient.

Wednesday, 8 August 2012

AMHP’s in Court: Some Recent Case Law


Case Law relating specifically to the discharge of AMHP’s powers under the MHA is fairly rare. I don’t know whether this is because AMHP’s rarely make mistakes, or whether it is because most people who are detained under the MHA don’t know enough about the legal process to know whether or not an error in law has been made.

Whatever the reason, court cases of relevance to AMHP practice seem to be like buses – you don’t get any for ages, then two come along at once. In fact, the two particular cases I’m writing about were heard within a month of each other – in March and April 2012.

The first is DD v.Durham County Council & Middlesbrough City Council ([2012] EWHC 1053 (QB)). Although the events with which the Claimant took issue occurred at the end of 2009 and the beginning of 2010, the Claimant did not actually issue proceedings until nearly the end of 2011.

DD had been serving a prison sentence. When the sentence ended, but during a period in which DD continued to reside in the prison, he was assessed under the MHA by two AMHP’s, and the decision was made to detain him under Sec.2 for assessment. He was admitted to a medium secure psychiatric unit. Before this expired, he was assessed by two more AMHP’s, who decided that he should be detained for treatment under Sec.3. Because the location of the assessment was not in the Durham area, and because of the adverse weather conditions pertaining at the time, a Middlesbrough AMHP subsequently assessed and applied for his detention under Sec.3.

DD wanted to instigate proceedings under Sec.139 MHA. This relates to liability for acts “done in bad faith or without reasonable care”. In effect, he wanted to sue one or more of the AMHP’s who had been involved for detaining him illegally.

DD argued that both the AMHP’s who had completed the Sec.2 application and the subsequent Sec.3 had breached their duties under Sec.13(2) MHA.

Sec.13(2) states:
“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.”

He argued that the AMHP in question had “a duty to investigate the proposed place of detention, the location where the patient will be kept while there and the regime to which he will be subject. This is said to arise because of the need to make a recommendation in the light of ‘all the circumstances’”. This was because he was objecting to the secure unit he was sent to, instead preferring to go to Rampton.

The Judge in the case dismissed this argument in one paragraph:

“It is obvious than 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.”

This is reassuring confirmation of what I am sure is a universal view held by AMHP’s, which is that they only need to decide whether or not a patient needs to be detained, and not the suitability or otherwise of the hospital they will be admitted to.

DD described himself as having “a paranoid, narcissistic and antisocial personality disorder”. This observation would be entirely consistent with the nature of his complaint.

While in this case, the AMHP’s involved were all exonerated, this was not the outcome in GP v. Derby City Council ([2012] EWHC 1451 (Admin)).

At the time of the court hearing, GP had been detained under Sec.3 in a low secure unit since July 2011. He was challenging the legality of this detention on the grounds that the AMHP had failed to consult with the patient’s Nearest Relative as required under Sec.11(4)(a).

The AMHP who made the application maintained that he had attempted to contact the NR on her mobile phone, but had not been able to speak to them. He therefore stated that it was not reasonably practicable, or would involve unreasonable delay to do so, and completed the application. In the space provided on Form A6, he had written: "I have tried to contact several times but the mobile went to answer machine. As GP Section 2 is due to lapse later today and given his current state I felt it would involve unreasonable delay to consult with Ms P."

This assessment was concluded at around 1600 hrs on the day that the existing Sec.2 detention was due to expire at midnight. The AMHP had been under pressure of time, and was also being pressured by the ward staff to complete the application on the basis that the patient needed to be transferred to a Psychiatric Intensive Care Unit (PICU).

The Judge noted that the AMHP had been ringing the wrong number, but that the correct number was available on medical records. He also noted that the AMHP himself had stated in evidence that it was his usual practice to visit the NR at their home in order to consult with them under Sec.3. The Judge concluded that there had been enough time to visit the NR, and that the AMHP should have done this. He therefore concluded that the AMHP had indeed failed in his duty to consult with the NR, and as a consequence, this rendered the Sec.3 unlawful.

The Judge said:

“On the evidence that is available, the question has to be asked as to whether it was plainly wrong to proceed with an immediate certification in the circumstances as they were. I conclude that it was because, as I have attempted to explain, section 11 provides constitutional protection for those that are faced with detention under the Mental Health Act. Compliance with the requirements of section 11(4) is therefore the price which is paid for the ability of those charged with the treatment of those with mental illnesses and disabilities to detain people without immediate recourse to a court and in a way which is compliant with Article 5. Thus there is a heavy duty on those who carry out these tasks to ensure that those statutory provisions are complied with.”

This case has considerable implications for AMHP practice. The Judge makes it clear that, in order not to breach Article 5 of the Human Rights Act (The right to liberty and security), an AMHP must go to considerable and quite possibly arduous lengths to fulfill their legal obligations. It is not enough to ring the NR a couple of times and then fill in the form saying that it is impracticable to consult with them. The AMHP must show far more evidence of their efforts.

The consequence of this particular lapse was that the patient was deemed to have been unlawfully detained for up to 9 months.

Sunday, 15 January 2012

Criminal Mental Health Acts

Part IX of the Mental Health Act creates a number of offences relating to practice under the Act and to people with mental disorder. Some have greater implications (and usage) than others.

Sec.127 relates to the ill-treatment of people with mental disorder. It is an extremely singificant provision. It makes it an offence for staff or managers of hospitals and care homes “to ill-treat or wilfully to neglect” anyone receiving treatment for mental disorder in that hospital or care home, either as an inpatient or as an outpatient. It is also an offence for “any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise)”.

This has a broad application – it is intended to protect anyone with a mental disorder, whether in institutional care, or living in their own home, which would include people with mental illness, as well as people with learning disability and older people with dementia. They do not ever have needed to have been subject to the Mental Health Act. The penalty for this offence can be up to 5 years imprisonment, and/or an unlimited fine.

Although this has been in the Mental Health Act since 1983, it appears that it was not used until 2007. It is reported that Liudas Poderis was the first person to be prosecuted under Sec.127. Mr Poderis was a care worker in a nursing home in Wilmslow, Cheshire. In November 2006 he attempted to suffocate an elderly man with dementia by placing a plastic bag over his head. This was witnessed by another care worker. In August 2007 he received a prison sentence.

Prosecution under this Section has since become much more prevalent. The police appeared to have become more aware of this offence since Poderis’ conviction, as in 2008 Tanya Paterson, the manager of a care home for people with learning disabilities, was found guilty of ill treatment of a 21-year-old woman “with an intellectual age of between five and eight by bullying, shouting and swearing at her, putting her outside in the rain and pushing her about in a hallway. The charges relate to a seven-day period in May 2007.” It was reported at the time that she had “initially been charged with counts of assault but they were replaced with the allegation under s.127 (1)”.

Since then, dozens of people, mainly staff in care homes and hospitals, have been successfully prosecuted for the ill-treatment and neglect of vulnerable mentally disordered people under this section.

Sec.126 relates to forgery and false statements. This section makes it an offence to forge or to deliberately make false statements in Mental Health Act forms such as applications under Sec.2, 3 or 4, and medical recommendations. It is also an offence to knowingly possess or hold such a false document. The maximum penalty for this offence is 2 years imprisonment and/or an unlimited fine.

I suppose that examples of falsehoods on these documents could include such things as stating on Form A6 (Application by an AMHP for admission for treatment) that you have consulted with the patient’s nearest relative when you haven’t, or even signing the form which among other things states that you have interviewed the patient, when in fact you haven’t.

It’s worth saying that inadvertent errors, such as putting the wrong name or address of the patient on the form, while possibly affecting the validity and legality of the paperwork, would not in itself amount to an offence under Sec.126.

So how often has Sec.126 been used? I haven’t the faintest idea. In the many years in which I have practiced under the 1983 Act (since 1983, if you’re asking), I have never in my personal experience come across any occasion in which I have been aware of an ASW or AMHP knowingly and deliberately falsifying an application for detention. I have also been unable to find any record of any prosecutions nationally under this section (although perhaps they may be blog readers out there who know differently).

The closest to a prosecution of an ASW/AMHP that I have discovered, is the cases outlined in my post When Nearest Relatives Object. These were both civil cases brought before the High Court. In one the ASW had made an application under Sec.3 despite knowing that the nearest relative had objected to the application. In the other, again relating to a Sec.3 application, the ASW had stated that it had been “impracticable” to consult with the nearest relative, when in fact he had avoided contacting the nearest relative, knowing full well that the nearest relative would object to the application. However, in neither case was a prosecution brought under Sec.126.

Sec.128 relates to “Assisting patients to absent themselves without leave, etc”. This makes it an offence to assist a patient detained under Sec.2, 3, or 4 (or Guardianship) to “to absent himself without leave”, as well as harbouring a detained patient who is absent without leave. The maximum penalty is 2 years imprisonment and/or an unlimited fine.

There is a current “live” example of a prosecution under this section. In October 2011 a patient detained in a medium secure unit for people with learning difficulties and challenging behaviour in North Suffolk managed to escape, and was missing for several days before being recovered.

In December 2011, at a hearing at Ipswich Crown Court, Rebecca Martin, who was a member of staff at the unit, pleaded guilty to assisting the patient to escape. The case was adjourned until the end of January 2012 for sentencing. It is reported that the judge told Martin that she had pleaded guilty to an extremely serious offence. “It is highly likely you will receive a custodial sentence. It is an appalling breach of trust when someone aids and abets someone who is suffering from a psychiatric illness to escape from lawful custody.” (Eastern Daily Press 15.12.11.)

Sec.129 relates to obstruction. Among other things, this section states:
“(1) Any person who without reasonable cause—
(a) refuses to allow the inspection of any premises; or
(b) refuses to allow the visiting, interviewing or examination of any person by a person authorised in that behalf by or under this Act or to give access to any person so authorised; or…
(d) otherwise obstructs any such person in the exercise of his functions,
shall be guilty of an offence.”

Furthermore:
“(2) … any person who insists on being present when required to withdraw by a person authorised by or under this Act to interview or examine a person in private shall be guilty of an offence.”

Anyone found guilty of these offences can receive a prison sentence of up to 3 months, and/or a fine.

What this means is that potentially AMHP’s have powers to order the arrest of people who are obstructing them in the execution of their duties under the MHA. I wonder how many police officers are aware of the powers under this section?

How many times have AMHP’s found themselves in the position of having to persuade a relative to allow them into their house so that they can assess someone under the MHA? On how many occasions have AMHP’s found relatives or other interested parties interfering with or impeding their efforts to interview a patient “in a suitable manner”? And yet how often has anyone been prosecuted under this section? Again, I am not aware of any such prosecution.

It is not generally in the nature of AMHP’s to use coercion in such a blatant way. AMHP’s usually try to get round such problems through negotiation. I know that, when confronted with such difficulties, I have usually been able to persuade the person to cooperate sufficiently to be able to discharge my legal duties.

It is a Section I have always been aware of in the back of my mind, but have never take advantage of. Even when AMHP’s are physically assaulted, they can be very reluctant to make a formal complaint.

(Digression: Although I have been physically assaulted on a handful of occasions during my social work career, some of which I have recounted in my posts on “Assault and Battery”, I have only once made a formal complaint. This was an occasion when one of my service users had physically abused her child. I had to accompany the child protection social worker so that the service user could give an account of the incident, and so that the social worker could tell her what action was being taken.


I could immediately tell that the service user was extremely angry and was potentially dangerous. The child protection social worker, however, seemed oblivious to this. I tried to warn her that we should leave, but she continued to go through her set agenda, oblivious to the increasing fury of the child’s mother.


Eventually, I took the social worker firmly by the arm and tried to lead her down the hallway and out of the door. The child’s mother, however, had other plans, and tried to block our way. As I pushed my way past her, and made a break for the door, she drop kicked me, striking my buttock. Hard.


On the advice of a team manager, I gave a full statement to the police, and even endured having to drop my pants while a female police officer took a photograph of my injured buttock. The service user was arrested and interviewed. She received a caution.)

While we’re discussing the whole issue of offences, I should mention Sec.139, “Protection for acts done in pursuance of this Act”. This provides valuable protection for AMHP’s and others against civil or criminal proceedings while undertaking their lawful duties, unless “the act was done in bad faith or without reasonable care”. This does mean that honest mistakes, or even incompetence, are protected from civil or criminal action as long as the actions were not done in bad faith. It’s worth knowing.