Friday, 18 May 2018

Hallucinations and the Mental Health Act

I’ve been reading the late Oliver Sacks’ excellent book Hallucinations. Not surprisingly, in view of the book’s title, it consists of a wide range of accounts of different medical conditions that can produce hallucinations or hallucinatory experiences. As Sacks says: “In the popular imagination hallucinatory voices are almost synonymous with schizophrenia – a great misconception, for most people who do hear voices are not schizophrenic.”

In fact, most of the conditions he writes about do not amount to mental illness at all. One such example is Charles Bonnet Syndrome, where sufferers can experience very vivid hallucinations.

For them, the condition is a result of blindness, and Sacks discusses a range of conditions or situations that produce hallucinations of various types as a result of sensory deprivation of various kinds, ranging from physical states such as blindness to self imposed states of sensory deprivation such as immersion in salt tanks, tanks of warm salt water, where one can lie in a state of suspension and with the entire absence of external stimuli.

It appears that when the conscious brain has nothing to do, it can create often complex and elaborate, but completely unreal, visual and auditory environments.

One of the crucial distinctions between hallucinations arising from physical disease and those experienced by people with psychosis is that the people experiencing these phenomena have complete insight and recognise them not to be real, and tend not have any accompanying delusions.

One of Sacks’ conclusions appears to be that hallucinations can be experienced by anyone, as a normal part of life experience, whether as a result of some physical process, such as migraine or epilepsy, or as an entirely normal part of the functioning of the brain, such as hypnogogic hallucinations (hearing or seeing something when about to fall asleep) or sleep paralysis, which can occur when someone is waking up from sleep, during which time the person can believe themselves to be awake when in fact they are still asleep.

The fact that experiencing hallucinations does not invariably mean that someone is mentally ill is an important factor to consider when assessing people’s mental health, whether under the Mental Health Act, or as a standard mental health assessment.

When I worked in a community mental health team, we conducted standard assessments which included the question “Have you ever heard a voice when there has been no-one around?” Probably around 15% of those I asked answered that they did, but hardly any of them appeared to be psychotic.

One woman told me that every day, as she walked with her child to school, she would hear a voice calling her name at a particular point on the journey. I asked her what she did about it.

“Oh,” she said, “I decided to take a different route to school, and I never heard the voice again.”

I was once asked to assess a woman who was severely disabled by multiple sclerosis. Although living with a partner, he went to work and she was alone for much of the day, and unable to move about or do much for herself. She reported to the GP that her day was spent in the company of film and TV celebrities, who would visit her and entertain her.

After interviewing her, I concluded that her mind was compensating for the loneliness and isolation and general lack of external stimulation, by populating her empty home with people she had seen on TV.

She did not need detention in hospital or antipsychotic medication. She just needed useful daytime occupation, which could be provided through involvement with support workers, day centres and other social activities outside the home.

I have certainly had experiences that could be regarded as hallucinations. On occasion, I have heard a voice just as I was about to fall asleep, which has jerked me awake.

And once I woke up in the middle of the night when a full moon was shining into the room. I could not recognise where I was and sleepily got out of bed to look out of the window. The angles and shadows of the moonlight outside made me think that I was seeing a completely unfamiliar and unknown environment.

At that point my partner woke up and asked me what I was doing. “I don’t know where we are,” I replied.

She got up and also looked out of the window, and for a short time we shared the belief that we had somehow been transported as we slept to a completely different world. Eventually, one of us found a light switch, and the light from the bulb instantly oriented us to the familiar room.

I always try to be open minded when I am listening to patients telling me about their experiences. Sometimes what someone says may seem so unlikely as to be a sign of mental disorder, but which later turns out to be true.

An example is Edna, an lady in her late 80’s who used to live in Charwood in an old semi-detached flint cottage. She complained to her doctor that she kept hearing strange noises in her house and feared that the house was haunted. Concerned that she was experiencing auditory hallucinations, the doctor arranged for an older people’s mental health nurse to visit her.

Edna was insistent that she was indeed hearing strange noises. She knew they were in the house, but could not identify where they were coming from. However, as no untoward sounds were apparent while the nurse was there, the nurse became convinced that the only explanation was that Edna had dementia. He persuaded her to agree to be admitted to hospital for further assessment.

A few days later, the nurse went to her house to collect some personal effects for her. While there, he was startled to hear inexplicable noises emanating from somewhere within the cottage, when he knew there was no-one else in the property.

It eventually transpired that the two cottages both had cellars, although Edna’s cellar was not accessible from her house. The next door neighbour had knocked his own cellar through into the lady’s cellar, and had been converting it into additional accommodation for himself.

Edna had been hearing her neighbour’s d-i-y activities directly beneath her feet.

So when I am making an assessment as to whether or not someone is experiencing mental illness, I do not automatically discount reports of hearing voices or noises, or even seeing things that others don’t see as evidence of disorder. I will make efforts to check for myself to exclude more mundane explanations before getting out the pink papers.

Tuesday, 8 May 2018

Mental Health Act Review – Interim Report


The Government arranged for a review of the current Mental Health Act back in October 2017.

The review’s terms of reference were “to make recommendations for improvement in relation to rising detention rates, racial disparities in detention, and concerns that the act is out of step with a modern mental health system.”

Having taken submissions and recommendations for changes from service users, professionals and professional bodies, this interim report was published at the beginning of May 2018.

This is still an ongoing review, which will make concrete recommendations later in the year. However, judging from the tone of this report, I am very encouraged that the eventual recommendations will reflect changes in the approach to human rights, and will make sensible and achievable changes.

The report states from the beginning that “the aspiration is to increase informal admissions and/or alternatives to admission, rather than compulsory admissions, in keeping with the original intentions of modern mental health legislation, first laid out in the 1959 MHA.”

It is worth remembering that much of the current Act, despite the extensive amendments from the 2007 MHA, the Health & Social Care Act 2012, the Care Act 2014, most recently the Policing and Crime Act 2017, still contains a lot of the original MHA from 1959.

It is also worth remembering that the MHA 1959 replaced the Lunacy Act 1890. It is incredible now to think that a Victorian law governed the management of people with mental health problems well into the middle of the 20th Century.

One of the largest conceptual changes was to introduce the concept of a social perspective informing assessments for compulsory detention in hospital. Rather than doctors having virtual free rein to incarcerate mentally ill and learning disabled patients in asylums, often for many years, the 1959 Act only allowed doctors to make recommendations. The final decision was to be made by a “mental welfare officer”, a non medical role that eventually evolved into the “approved social worker” role created by the 1983 Act. This role morphed again into that of the “approved mental health professional”.

Having had all three of those titles, I can speak from personal experience of the impact that that change in approach had on decisions about whether or not to admit people to psychiatric hospital. While MWO’s had minimal training, the ASW role in the early years required a compulsory training course and the necessity to pass an examination in order to practice. Today, the AMHP not only has to undergo months of training, but also has to prove their ongoing competence to practice.

The interim report makes some cogent observations, one being that “we have seen unprecedented investment in talking therapies for those with common mental health problems, and an upsurge of general interest in mental health”. It goes on to say:

“Most of this new interest is at one end of the spectrum, with far less attention given to those at the other end of the spectrum, those with the most severe forms of mental illness. Yet those with the most severe forms of mental illness have the greatest needs, and continue to be the most neglected and discriminated against. Furthermore, they are also the group who are the most likely to be subject to the influence and powers of the MHA.”

The report is clear that “we remain committed to the goal we set out when we began – namely to make the MHA work better for everyone. We know that much of what is required to achieve these goals, of a mental health service that provides dignified and therapeutic care for those with the most severe of mental illnesses, is not going to be achieved by legislative means alone. We know that issues such as resources and staffing are fundamental to these objectives.”

The report lays out 10 explicit aims to improve mental health care.

Service users and carers being treated with dignity and respect
Greater autonomy for people subject to mental health legislation
Greater access to services for those that need them
Making the least restrictive option appropriate to a person’s circumstances the default option
Improved service user and carer wellbeing
Service users and carers supported to be fully involved in treatment as possible
Reduced disparities between groups with protected characteristics
Greater focus on rights-based approaches
Reduced harm and improved safety for all
Professionals better able to deliver their expertise 

I cannot find anything there with which to take issue.

From an AMHP perspective, I am also heartened with the comment that “Many service users had a positive or largely positive view that [detention under the MHA] was the right course of action, with some service users, on reflection, commenting that being detained saved their life and prevented suicide. However this view was not universal and an almost equal number did not believe detention had been the right approach for them.”

The Review identifies a total of 18 key topics requiring particular attention. These are divided into four areas: before detention, during detention, leaving hospital, and issues for specific groups. I will not analyse all of these, as this post would risk being a long as the Interim Report itself.

Rising numbers of detentions

The Review sees it as a priority to address the rising numbers of detentions under the MHA, noting that this has grown steadily for each of the last 10 years. (Is it coincidental that this period largely covers the time since the Coalition, and then the Conservative Government, have been in power? I can only speculate.)

It goes on to say that:

“We have been told people are not receiving the care they need in the community, and which might have prevented them from reaching crisis. We have also been told that a reduction in acute bed numbers has made the use of the MHA more important to get someone a bed when needed.”

It is encouraging that the Review is listening to the legitimate concerns of those with both a professional and personal interest in mental health legislation.

The Review also makes observations relating to changes in the perception and handling of risk:

“The decision to detain, either at the stage of initial admission or at the point of renewal, is primarily based on risk. A theme identified by many stakeholders has been the emphasis on risk and the differing risk thresholds that are applied when making decisions about using the MHA or continuing to detain a service user when a renewal is due.”

One interesting suggestion is that sections 2 & 3 should be combined into a single section of shorter duration. I certainly posited some time ago on this blog that there was no rational reason for a S.3 to last for 6 months.

The Police Role

The Report notes that:

“The police recognise that helping people with mental health issues is a part of their core business. The police are key partners in the community-based model of mental health care. This is particularly true in cases of immediate responses to people in mental health crisis.”

It continues by recognising that the police should not be placed in a position of having to make up for gaps in NHS provision, and also that it should be a matter of principle that those under arrest who have been assessed as requiring detention in hospital “should be treated within the NHS rather than a police cell.”

The Nearest Relative Role

I am pleased to see that attention has been given to changing the NR role. This is directly in accordance with the recommendations of the three main professional bodies representing those involved in administering MHA legislation: The Royal College of Psychiatrists, the Law Society, and the British Association of Social Workers, all of whom have submitted that the current NR role does not reflect current needs.

“At present, this provision and the statutory order of preference of the nearest relative can result in inappropriate people automatically being selected to be the nearest relative. AMHPs have highlighted the complexity of identifying the correct nearest relative. “

The favourite model appears to be a system whereby a patient can appoint their own person to take on the role, in a way similar to the Scottish MH legislation. In principle, I would welcome this, although I can also see that the legislative framework to ensure this best meets the needs of the patient could be fraught with problems.

A similar situation to that under the Mental Capacity Act, where someone can in advance appoint a lasting power of attorney to manage their affairs were they to lose capacity might work, but how many people would foresee this need, and appoint an NR in advance?

Community Treatment Orders

These were introduced by the changes in 2007, and have been somewhat controversial. The Report says:

“About 5,000 people are currently on a CTO at any time, considerably more than the number estimated by the government prior to their introduction. The latest MHA statistics show that ‘Black or Black British’ people are nine times more likely to be given a CTO than white people.”

The submissions by BASW and the Law Society expressed clear misgivings about this legislation, the Law Society asking “are they in practice a crude mechanism for the chronic bed management issues in hospitals?” BASW suggested that they should either be abolished, or “the criteria for their use strengthened so that they only apply to individuals with clear and evident history of rapid and repeated relapses,” although the RCPsych preferred CTOs to be retained, although with some modifications.

The Report was clear that:

“We are not persuaded that CTOs should remain in their current form. In reforming or replacing them, we will start by ensuring that there is clarity of purpose, and also that future provisions do not reproduce the current overrepresentation of some BAME groups, particularly men of black African and Caribbean descent.”

Issues for particular groups

The Report has clearly identified issues and problems associated with specific groups, not least those from black and minority ethnic communities, who are disproportionately represented in statistics relating to detention under S.2, S.3, and S.136, as well as CTOs.
It correctly identifies problems with hospital beds for children and young people, who are often placed in hospitals far from home. It also flags up the anomalies associated with the interface between different legislation, including the MHA, the Mental Capacity Act and children’s legislation.

The Report identifies “wider questions about whether or not learning disabilities and autism are conditions that are treatable under the MHA definition of treatability”, the authors observing that “we have been struck by the significant level of disagreement about the inclusion of learning disability and autism in the MHA and the subsequent role of the interaction with the MHA to provide the most appropriate care for their needs.”

BASW has gone so far as to suggest that “it is inhumane for learning disabled people to be detained in hospitals because their behaviour cannot be managed in the community”, also stating that “formal detention of learning disabled people in hospital where there is evidence of ‘seriously irresponsible or abnormally aggressive’ behaviour is inappropriate”, and because “psychiatric hospitals can exacerbate the distress of these service users, their needs should be met in the community”.

It appears clear that those in charge of this Review are committed to ensuring as far as possible that the needs of people subject to the MHA are met, and that their consideration of their human rights should be paramount. I am very encouraged by this.

The final recommendations of the Review will likely be far from the end of the process of revision, however.

In the late 1990’s a review of the MHA 1983 was mooted, and several draft Bills were published, which culminated not in a completely new Act, but merely extensive revisions to the existing Act in 2007. On the way, some of the more contentious proposals were jettisoned, such as the concept of a power to detain indefinitely someone deemed to have a dangerous and untreatable personality disorder, even if they had not actually committed any offence.

And of course, the present Government has other legislative priorities, which may indefinitely postpone a new Mental Health Act, especially if it is likely to cost more money.

Thursday, 26 April 2018

Are AMHPs an Emergency Service?

AMHPs of the future?
Working as I do in an AMHP hub, where part of my job is triaging requests for assessments under the Mental Health Act, I quite often receive requests for “urgent” assessments.

One example was a community mental health nurse who had visited Geoffrey, an elderly man, at the request of his GP. The concern was that he was paranoid and possibly had dementia.

The nurse was ringing from the home of the next door neighbour, an equally elderly and frail couple, as Geoffrey lived in sheltered housing. Geoffrey had demanded to be let into their home at 7.00 in the morning, complaining that his house was being bugged. He was refusing to leave, and was presenting as distressed and agitated.

For this reason, the nurse was requesting a MHA assessment. Immediately.

I began by trying to unpick the exact nature of the crisis.

Did Geoffrey have a mental disorder? The nurse was unable to answer, as they had not been able to assess him.

Would Geoffrey agree to informal admission to hospital? The nurse had not actually asked him this.

After some more questioning, it appeared to me that the presenting problem was that Geoffrey was refusing to leave the frail neighbours’ home.

I pointed out that it would take 2-3 hours to arrange an assessment involving an AMHP and two doctors; possibly longer, if the GP, as a doctor with previous acquaintance, was going to be involved.

The assessment itself could take an hour or more, and if, after the assessment, it was concluded that Geoffrey did need to be detained in hospital, there could be a wait of, at best, several hours, but more likely several days, before a bed could be found.

Even if a bed was available, it could be several more hours before an ambulance might arrive to convey him.

In other words, the presenting problem was not something that could quickly be resolved by invoking the Mental Health Act.

I suggested that what needed to happen first was for Geoffrey to return to his home next door. Once there, the actually crisis, which was the distress being caused to his neighbours, would be resolved, and it might then be easier for the nurse to interview Geoffrey, and explore less restrictive options, such as reviewing his medication, involving a home support service, or informal admission.

But what if Geoffrey refuses to leave? the nurse wanted to know.

I suggested that as he was in the neighbours’ home without consent, then the police might be able to persuade him to leave. They could also consider use of S.136 if Geoffrey was not in a private residence.

The nurse was clearly not happy with this advice, and the conversation ended.

An hour or so later, it transpired that the police had attended and Geoffrey had returned home. The nurse had then been able to talk to him about admission to hospital, and he had agreed to this.

As the nurse had some concerns about his physical health, she called the GP out, who concluded that on reflection he probably had a urinary tract infection, and arranged for him to be admitted to a medical ward.

Oddly, the nurse had not phoned the AMHP hub back to inform us of this outcome.

The point I am making by recounting this story is that the Mental Health Act is not equipped, or indeed intended, to deal with real emergencies.

The police, fire and ambulance services are designed to respond to emergencies. In the event of a serious road traffic accident, appropriate emergency services will prioritise and endeavour to be at the scene within minutes. Once there, they have the equipment to be able to release people if they are trapped, and provide emergency treatment.

But responding to requests for MHA assessments is a much more leisurely affair.

S.136 is an certainly an emergency power, but it is firstly for the use of the police. It can be invoked in cases where the police encounter a situation where a person appears to be mentally disordered and to be in a situation of high risk.

Examples might include where someone has taken an overdose and is refusing treatment, or where they are attempting to jump off a bridge, or where they have seriously injured themselves.

For the AMHP, however, who is legally required to formally assess a patient detained under S.136, there is no such need for an instant response. However there is a deadline, as S.136 can generally only last for a maximum of 24 hours, during which time an AMHP and a doctor have to assess the patient, and make the necessary arrangements for their admission to hospital if necessary.

This is a tight schedule, and always takes top priority when notification is received, but it cannot really be described as an emergency.

S.4 is another example of emergency Mental Health Act powers, where an application is made using only one medical recommendation.

The Reference Guide states that “In exceptional cases, it may be necessary to admit patients for assessment as an emergency before obtaining a second medical recommendation.”(8.46)

In such a circumstance, the application must state that “it is of urgent necessity that the patient should be admitted and detained for assessment, and that compliance with the normal procedures would involve undesirable delay.”(8.47)

AMHPs traditionally rarely use S.4. In 36 years of practice under the MHA 1983, only 3% of assessments I have undertaken have resulted in detention under S.4, and the majority of those were in the early years of the MHA, when it was often impossible to arrange for a S.12 doctor to attend a community assessment, and assessments sometimes had to be done with only the GP.

I’ve written about some of the occasions when I have used S.4 here, here, here & here.

Of course, even if you decided to use S.4, it is still dependent on the availability of a bed, and then the availability of an ambulance to convey the patient once detained.

So, what I am getting round to saying is that a MHA assessment cannot provide a quick fix for an acute situation of risk. Even if an assessing team can arrive to assess the patient within a couple of hours, it may still take at best 4 or 5 hours more to ensure the patient is tucked up safely in a hospital. A seven hour response time would not be considered adequate for an ambulance called to a cardiac arrest, or a police officer called to a serious road traffic accident.

Unfortunately, mental health professionals, care home managers and others often seem to think that AMHPs can instantly solve their problems. An example is when the behaviour of an elderly person with dementia cannot be managed by a care home. The problem may be more to do with the person having been wrongly placed, or there being insufficient resources to manage that behaviour.

AMHPs are not an emergency service precisely because the MHA requires AMHPs to consider all options before even deciding to conduct a formal assessment. The first guiding principle for AMHP practice in the Code of Practice is to always explore the least restrictive option:

Where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. (1.2)

It will necessarily take time to establish this, more time to set the assessment up, and then an unpredictable length of time to arrange a bed and conveyance. If a patient is likely to come to serious harm while this process is going on, then other emergency services, such as the police or ambulance service may need to be involved.

While those services may be circumscribed by legal limitations, the police in particular have legal powers, including those under the MHA, that allow them to respond assertively to situations of high risk in a way that an AMHP cannot.

I can’t conclude this post without mentioning one more situation when the AMHP finds themselves up against a severe time limit. This is when a hospital ward rings the AMHP at 16:00 hrs on a Friday afternoon to request assessment of an inpatient under S.3, whose detention under S.2 expires at midnight.

The favourite saying of one of my AMHP colleagues is: “A lack of planning on your part, does not constitute an emergency on my part."

Referrers and AMHPs should be mindful of that.

Wednesday, 11 April 2018

The Ins and the Outs of Guardianship



S.7, guardianship, is not the most extensively used of sections in the Mental Health Act. Indeed, as you can see from the NHS Digital graphic above, new and ongoing guardianships have declined by over 50% since 2003-4.

The purpose of receiving a mentally disordered person into guardianship is for the guardian, usually the local authority, to be able to exert certain powers. These are outlined in S.8(1):

(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health
professional or other person so specified.

There are reasons, however, why guardianship is not that popular. Perhaps the main one is that these powers are not really enforceable. While S.18(3) does allow someone absent without leave to be taken into custody and returned, in practice these decisions tend to be undertaken as a best interests decision under the Mental Capacity Act. [With thanks to Richard Jones for pointing out an earlier error, which I have rectified]

Similarly, while you may be able to take someone to a day centre for “occupation, education or training”, you could not actually force that person to participate.

Another reason is that the person in question, while not needing to have mental capacity, needs to have some basic understanding of the powers of guardianship and to essentially be in agreement with it. If someone is clearly indicating by their behaviour that they are not prepared to comply with the requirements of guardianship, then the Code of Practice suggests that guardianship is probably not appropriate.

Community Treat Orders, in contrast, have far greater powers to compel treatment and residence.

In practice, guardianship tends mainly to be used for people lacking capacity, either because of dementia or learning disability.

When one reads the relevant sections of the MHA, it becomes clear that, as with S.2 & 3, a guardianship application has to be made by an AMHP (or the nearest relative) on the medical recommendation of two doctors. The doctors would complete either Form G3 (joint medical recommendation) or G4 (single medical recommendation. The AMHP would then complete Form G2, actual application.

Unlike S.2 & 3, however, this is really only the start of the process. The local authority has to decide whether or not to accept the person into guardianship. Procedures for this process vary between LA’s but will tend to require a fairly protracted process, which will commence even before the application is made.

But there is another, perhaps simpler and more streamlined way to complete guardianship.

This is tucked away in S.19. S.19(1)(a) states:

(a) a patient who is for the time being liable to be detained in a hospital by virtue of an application under this Part of this Act may be transferred to another hospital or into the guardianship of a local social services authority or of any person approved by such an authority.

The Reference Guide goes into some depth about this:

Patients may also be transferred to guardianship from detention in hospital,
with the agreement of the responsible local authority … On transfer, part 2 patients are treated as if subject to a guardianship application accepted on the day they were admitted to hospital on the basis of the application to which they were subject immediately before the transfer.( 28.141)

This also works the other way:

Patients subject to guardianship can be admitted to hospital in the same way as anyone else, without having to be detained under the Act. Likewise, they may also be detained under the Act on the basis of an application for admission under part 2 like anyone else, but there is also a specific procedure for transfer from guardianship to hospital. (28.144)

In this situation, apart from having to make the necessary arrangements with the local authority to agree to receive the person into guardianship, all that needs to be done is for the patient’s responsible clinician to complete form G6.

This reads in part:

Authority is hereby given for the transfer of [full name of patient] who is at present liable to be detained in [name and address of hospital] to the guardianship of [name, and address of proposed guardian] in accordance with the Mental Health (Hospital, Guardianship and Consent) Regulations 2008.

I only know about this because our local authority has recently been involved in a guardianship request for a patient detained under S.3 in which this transfer procedure was used. There was some nerdy excitement in the AMHP hub at this discovery.

While preliminary investigations need to be made by an AMHP, including the reasoning for the transfer, and involving other members of the local authority, this does appear to be a much smoother way of achieving the objective.

However, it's not quite so smooth in the other direction. An AMHP and two doctors would still need to assess and complete the paperwork for a S.3 if the person needed to be readmitted to hospital.


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.