Saturday, 27 June 2015

Who Should Write a Mental Health Tribunal Social Circumstances Report? Recent Case Law

This is a question that has exercised minds in the Masked AMHP’s Facebook Mental Health Forum recently. There have been a range of answers, mainly based on custom and practice within different areas.
When someone who is detained under the Mental Health Act appeals against their detention, their case has to be heard by a First Tier mental health tribunal. The tribunal require three reports: a medical report written by or on behalf of the patient’s responsible clinician (the hospital psychiatrist); a nursing report written by a nurse from the ward; and a social circumstances report.
The responsibility for writing the social circumstances report is generally seen as being that of a member of the community mental health service covering the area where the patient normally resides; this is usually interpreted as being any clinician -- ideally the patient’s care coordinator if they have one -- so it could be a nurse,  a social worker, or even an occupational therapist.
The dispute on the forum has revolved around local custom, depending on whether social workers are embedded in community mental health teams and employed by the mental health trust, or working separately and employed by the local authority. If integrated into the local teams, then whoever is or would be the care coordinator would be expected to write the report, regardless of their professional status; where social workers are detached from these teams, the community mental health teams have expected a social worker to write this report.

Now there has been some recent case law which clarifies the whole issue, and may have a significant impact on these local practices.

This is HM/2043/2014, involving a case heard in the Upper Tribunal, which was issued at the end of April 2015.

The patient’s legal representative appealed against a decision of the First Tier tribunal, on the grounds that both the social circumstances report and the inpatient nursing report “had been prepared by the same person a staff nurse on the ward contrary to the letter or spirit of the Senior President’s Practice Direction or otherwise contrary to principles of natural justice and fairness.”

While the judge quickly concluded that what he had to consider was whether or not the tribunal’s refusal to adjourn the original tribunal was unlawful, he was driven to state that:
The issue which this appeal is concerned with, at least ostensibly, is the lawfulness of a “social circumstances report” being prepared by a member of the nursing staff at the hospital where the appellant was detained (a nurse who had also compiled the in-patient nursing report) as opposed to it being prepared by a social worker.”
In his deliberation, he noted:
“It is the “Responsible Clinician’s Report” and not that of not anyone else. Likewise, it may be argued that the “In-Patient Nursing Report” by its title requires the reports to come from a nurse. On the other hand, the title “Social Circumstances Report” arguably does not identify the report by its author but rather its contents.”
He therefore concluded:
“As far as I can see there is nothing in the MHA, Code of Practice, Practice Direction or the TPR which as a matter of law requires that the social circumstances report be prepared by a social worker or CPN and not a nurse, or that that report writer must be a different person to the person who prepares the nursing report.  The important issue is not the professional title of the report writer but the relevance and quality of the information provided in the report and thus the report writer’s position of knowledge in respect of that information.”

The circumstances that gave rise to this appeal are in themselves unusual, as the mental health trust involved as a matter of policy permitted the ward nurse (of a forensic unit) to write both the nursing report and the social circumstances report. The trust has since changed this policy.

But what this judgment does state unequivocally is that there is no legal imperative for any particular professional to write the social circumstances report, as long as “the relevance and quality of the information provided” is adequate.

Saturday, 20 June 2015

Review: A Practical Guide to the Mental Capacity Act 2005, by Matthew Graham & Jakki Cowley

As an Approved Mental Health Professional, practicing under the Mental Health Act 1983, I am well aware that it is impossible to discharge the functions of the AMHP competently without a working understanding of the Mental Capacity Act 2005. Indeed the new MHA Code of Practice devotes a whole chapter to mental capacity and deprivation of liberty, stating:

A sound understanding and application of the principles and provisions of the Mental Capacity Act (MCA) and the Deprivation of Liberty Safeguards (DoLS) and of the common law relating to consent, is essential to enable decision makers to fulfil their legal responsibilities and to safeguard their patients’ rights under the European Convention on Human Rights (ECHR).”

The Mental Capacity Act, and the later Deprivation of Liberty Safeguards, which was included in the Mental Health Act 2007 (which amended the Mental Health Act 1983 – do keep up), were designed to address gaps in the law which had been identified by a number of legal decisions in Europe and the UK relating to the treatment of people who lacked capacity to make their own decisions.

This new book by Matt Graham and Jakki Cowley is described as “a practical guide”, and it certainly is: it is written in order to be easily understood, and the authors take pains to explain the core essence of the MCA. They also make it clear that knowing about the MCA is not only important for professionals, but for everyone; they make the useful point that “when we consider the term ‘service users’ or ‘people who use services’ we are not referring to an exclusive group of people who might use specialist services...the term ‘service user’ means everybody, because we all use health and social care services.”

The basic purpose of this book is to provide “accessible information as to what the MCA ‘looks like’ in practice and to offer something which the readership can easily digest and apply in practice in order to enhance the experiences of people who require support with making decisions or who require decisions to be made for them in their own interests.” Its 180 or so pages proceeds to do just that.

The 7 chapters cover various aspects of the MCA, beginning with an overview of the Act, then a chapter each on maximising capacity and assessing capacity, and chapters on advocacy and empowerment, advance care planning, best interests, and finally liberty and choice, which covers restriction and deprivation of liberty.

Each chapter includes illustrative case studies, as well as references to relevant case law, and there are a number of useful checklists for practice and decision making.

I very much like the way the authors constantly distil the essence of the MCA, such as suggesting that the MCA is:  about two things and two things only:
1.      People’s rights to make decisions.
2.      People’s rights to have decisions made for them if they lack the capacity to make the decision themselves.
Confidence, competence and compliance with the MCA can be demonstrated if practitioners know the differences between the two and can remain mindful of the tensions that exist when trying to work out the difference.”

Even more profoundly, the authors aver that, regardless of the decisions being made relating to people lacking capacity, professionals ought to ask themselves: “On what authority am I making this decision?”

The chapter on maximising capacity is based on the implications of the first principle of the MCA, which is: “A person must be assumed to have capacity unless it is established that he lacks capacity.”

This naturally puts the necessity to assess capacity at the forefront. The authors again pose useful questions:
What is the decision that needs to be made?
What problems or difficulties is the person having relating to this decision?
What support do they need?

They point out that “there is a risk that a presumption of incapacity is what starts the process and an immediate move towards considering best interest decision-making takes place. This is not the intention of the Act.”

The chapter on assessing capacity poses another useful question for the assessor right at the beginning: “What right do I have to assess this person’s capacity and why would I even do so?” Such questions compel the assessor to examine their motivations and the reasons for the capacity assessment, and make them confront a major potential problem in capacity assessments, which is that the assessor is in a position of power over the person being assessed, because “to hold the keys to making a decision that someone lacks capacity is a powerful act”.

Each chapter is full of statements designed to make the professional think critically about their practice. One such statement in this chapter is: “You are always assessing capacity – whether you know it or not!” The authors suggest that it is important, when it is suggested that someone lacks capacity, to ask the questions, “what for?” and “what evidence do you have?”

This chapter goes on to guide the assessor, in everyday language, through the process of assessing capacity. It concludes by offering useful tips for recording your conclusions.

The chapter on advocacy and empowerment goes into detail about the functions of the Independent Mental Health Advocate, while the chapter on advance care planning looks at advance decisions, including decisions to refuse treatment, and the role of the lasting power of attorney.

Setting up a lasting power of attorney, giving instructions for another person to make decisions on your behalf if you lack capacity, is extremely important for everybody. If you decide to leave it till you or someone close to you begins to lose capacity, it may already be too late; then it would be necessary to go to the Court of Protection if major decisions needed to be made on your behalf. My wife and I have both set up lasting powers of attorney, for the eventuality that at some point in the future one or both of us might lose the capacity to advocate on our own behalf.

Chapter 6 is devoted to best interests, and is designed to demystify this area of the MCA, and reassure professionals about how to decide on someone’s best interests. The authors make the suggestion that competence to make these decisions is not necessarily the issue, but confidence is. They point out that many professional just get on with the job in hand, “but when we have to justify our decisions, evidence how we have reached them and then go forth with authority given to us by law to enact them, then the confidence drops and we start to question whether we know what we’re doing.”

Again, they pose questions, this time the question, “how do I know what is in this person’s best interests?” They answer this by reformulating the question to: “Why does a decision need to be made in this person’s best interest and what must be considered in order to achieve this?”

They break down the decision making into two categories, less complex decisions, and complex decisions. What sort of decision that needs to be made depends on “the complexity of who is consulted, who is involved in the decision-making process, how urgent the decision is and what the decision specifically involves”, for example, whether it is to do with day to day living decisions, or major life decisions with legal implications.

This chapter also looks at how to manage best interests meetings, and suggests a simple balance sheet for weighing up the advantages and disadvantages of the various options.

The final chapter concentrates on liberty and choice, which is mainly concerned about restriction of liberty and deprivation of liberty. The Deprivation of Liberty Safeguards, and the considerable amount of case law that has accumulated (and continues to accumulate:  the very recent case of Bournemouth Borough Council & PS & DS [2015] EWCOP 39 appears to fly in the face of the far reaching Cheshire West judgement) is not only complex but at times impenetrable, and while this chapter attempts to address this, I would have liked more of the book to have been devoted to this fraught area.

Nevertheless, they attempt to shed light on the difference between a restriction and a deprivation of liberty, for example dispelling the myth that the MCA prohibits the restraint of people. They make the point that, for example,  “paramedics who use reasonable and proportionate restraint, including sedation, to convey someone who lacks capacity to hospital and who is resisting, following a road accident, will be protected from liability unless that act demonstrates negligence.”

Elsewhere in the book, the authors give an example of an elderly woman who had incurred a head injury in a care home and an ambulance was called. Although she needed to go to A&E, the lady stated that she wanted to remain at the home. The ambulance crew left her, saying that “they couldn’t make someone go to hospital against their will.” The authors point out that “there is this myth in practice that appears to be part of the culture of care that practitioners cannot act if someone refuses.”

This scenario is one that will be familiar to AMHPs, who are often asked to undertake assessments under the MHA for patients who ought to be dealt with within the MCA. I hope that ambulance crews and others in the medical frontline will hear the message the authors are trying to get over, which in this sort of scenario is that “the MCA permits the use of reasonable and proportionate force in exceptional circumstances if it is in someone’s best interests if they lack capacity and the criteria are met.”

While some reference is made to the Mental Health Act, I would have liked to have seen more discussion and guidance on the interface between the MHA and the MCA, which frequently causes AMHPs much confusion and frustration. However, despite this minor niggle, this book is a considerable achievement.

A Practical Guide to the Mental Capacity Act 2005 is a very readable and informative book, and of much more practical use than Jones’ rather drier and legalistic Mental Capacity Act Manual. I would wholeheartedly recommend this book to all who find themselves in a position of having to make decisions relating to people who lack capacity, and I have already recommended to my AMHP colleagues that they should get this book.

A Practical Guide to the Mental Capacity Act 2005, by Matthew Graham & Jakki Cowley, published by Jessica Kingsley (

Sunday, 24 May 2015

DOLS or Guardianship? Recent Case Law

A recent appeal to the Upper Tribunal considered the case of NM (NM v Kent County Council [2015] UKUT 0125 (AAC)).

NM has diagnoses of mild learning disability with behavioural difficulties, and paedophilic sexual interest, and was subject to guardianship under the Mental Health Act, as well as being subject to the Deprivation of Liberty Safeguards.

He appealed to the Mental Health Tribunal, requesting to be discharged from guardianship.

The guardianship order required him to live in a residential care home, and also to attend for treatment with clinicians and therapists. The Judge stated that NM had the capacity to decide where to live but not the capacity to decide on the supervision that was required to keep him and any child he came into contact with safe.

NM’s solicitors put forward two grounds for appealing. The first was that because of the DOLS certificate, he was not free to leave the home, and therefore did not require guardianship in addition to DOLS. The second ground was that there was a contradiction in the Tribunal finding that he had capacity to decide where to live.

Kent County Council, who had responsibility for NM, argued that on the evidence presented to it the Tribunal was entitled to reach the decision it did, which was that Mr M had capacity to decide where to live, but not to decide the level of supervision he required.

NM’s solicitors in reply made reference to 26.10. & 26.13 of the Mental Health Act Code of Practice. These paragraphs suggest that it may be entirely appropriate to rely on DOLS rather than guardianship, and that AMHP’s and doctors had to consider all the circumstances of a particular case.  The CoP also suggests that “in cases which raise unusual issues” it may be preferable to go to the Court of Protection for a best interests decision.

The Judge observed:

The tribunal’s analysis, identified the conditions that had to be satisfied if Mr M were to remain subject to guardianship. The key to the case was where Mr M would live. It found that he would not remain in the home without being subject to the guardianship. For practical purposes, he might not be able to abscond from the home itself, but he had opportunities to do so when he was on escorted leave. He needed to be in the home, or in a similar environment, if he were to preserve the continuity of his treatment. That treatment was not complete to the point where he was able to control his behaviour towards children.

He went on to state that “it was essential to retain [guardianship] powers, given that Mr M lacked the capacity to regulate his behaviour without the treatment and supervision for which his continued residence at the home was necessary.

The Judge concluded that the Tribunal had not made any error in law in reaching the decision to refuse to discharge the guardianship order, on the basis that DOLS was not sufficient protection to prevent NM from leaving the home, as it did not deal with the possibility of NM absconding. “This is a limitation inherent in the nature of a DOLS”.

The Judge therefore dismissed the appeal to the Upper Tribunal, noting that: “The Mental Capacity Act deals with the person’s best interests, whereas the Mental Health Act deals with protection of the patient and the public.

Thursday, 16 April 2015

Why Public Services are Like a Fat Lady in a Corset

I think there may be a General Election coming up soon.

This has got me thinking even more than usual about political parties’ manifestos and the policies that they all feel sure will make the country a better place.

The trouble is, that all these policies are based on ideologies that do not reflect the reality of life in this country, and take no account of the long term consequences of those policies.

To be blunt, governments and political parties continually fail to grasp the basics of joined up planning for managing Society as a whole.

You’d have thought that setting a fixed five year term of office would have obviated the political need for short term policy, and facilitated longer term rational planning. But not being a politician, I suppose I’m hopelessly na├»ve to think this.

One thing all the major parties seem to have in common is the belief that it is necessary to make cutbacks in public spending. But none of them stand back and take a long, hard look at what would actually happen if and when these cutbacks are implemented.

Because Big Society is like a fat lady in a corset: you can try squeezing in one place, but all that will happen is that there will be a bulge in another place. The whole remains the same. In fact, squeezing too much might simply end up in asphyxiating the body you’re trying to manage.

I’m not going to make an ideological argument based on airy fairy social work concepts of social equity and fairness. I’m simply going to try and show that cutting certain services, or throwing money at the political ideology of the day, may not actually result in an overall reduction in the costs of all services in general, and can even result in greater expenditure for less social benefit.

Let’s take housing policy as an example. The Government appears to regard home ownership as an innately good and desirable thing. To this end, the current Conservative Party Manifesto says that it will extend the “right to buy” to people living in housing association homes.

Here’s another way of looking at this policy.

·       The Government gives money, either directly or via local authorities, to housing associations in order to build houses for people who do not have the income or ability to buy their own houses.

·       The Government then sells these houses at a large discount to people who are probably able to afford to buy a home of their own in any case.

·       The Government makes an immediate loss on its investment.

·       The people who buy these houses may then quite possibly decide to sell them in order to realise a considerable profit, only some of which will return to the Government in Stamp Duty.

·       The people who buy these houses then let them privately at larger rents than the housing associations were charging when they owned them.

·       Because this social housing has been sold off without the necessary investment to replace them, there is then a shortage of rented housing, which pushes up the rents of these now privately owned properties.

·       People renting these properties, whether “hard working families” on low incomes or those unable to work because of age or disability, then claim housing benefit to cover these increases.

·       The Government’s costs for housing benefit then increase.

·       So the policy costs the Government not once but twice – and it still hasn’t solved the underlying problem of the national shortage of housing which continues to drive up the value of houses and makes it even harder for “hard working people” to afford to buy in the first place.

Then there’s that policy of allowing people to withdraw and spend their pension funds.

·       The Government makes an initial killing by taxing the money that is withdrawn.

·       A significant number of those pensioners use that money to buy property in order to let it out.

·       The increased demand in property inflates house prices.

·       This makes housing even less affordable, driving demand in renting.

·       Increased demand for private rented property inflates rents.

·       This leads to an increase in people’s claims for housing benefit.

·       This costs the Government more money.

·       And let’s not forget that years in the future, those people who drew their money out of their pension funds then spent it, will be making claims on the welfare benefits system in the form of housing benefit and pension tax credit.

·       And this costs the Government even more money.

And as for that policy known, to the annoyance of the Coalition Government, as the “bedroom tax”?

·       Well, it will continue to cost housing associations money in lost revenue because people are not able to afford the higher rent.

·       They fall into arrears and the housing associations then incur further expense taking them to court to evict them.

·       Housing associations are generally funded through central or local government grants.

·       Vulnerable homeless people have to be accommodated by the local authorities.

·       These people may then end up in those privately rented houses, which had previously belonged to the housing associations until sold off, with inflated rents, and have to claim higher rates of housing benefit than they would have been claiming before the “bedroom tax” was introduced.

And one final example close to my heart – cuts in funding for mental health services:

·       Despite Coalition claims that funding to the NHS has increased, the reality is that, according to Andy McNicoll’s excellent report in Community Care on 20.03.15., there has been a cut in real terms of over 8% to funding for mental health trusts.

·       Community mental health teams have been cut by 5% despite an increase in referrals of 20%.

·       At the same time as there have been cuts to these community services, psychiatric beds have been reduced by 2,100 since 2011.

·       This is during a period of recession when one of the inevitable consequences of high unemployment and low wages was an increase in mental ill health.

·       Trusts attempted to save money by closing hospital beds, but understaffing of community services meant that people could be less efficiently managed in the community, leading to an increase in demand for the available beds, and an increase in requests for assessments under the Mental Health Act.

·       This led to an increase in the use of leave beds, beds nominally occupied by a patient who was on leave as part of discharge care planning, and by the wards being under increased pressure to discharge too early.

·       The consequence of all this was that people were more likely to relapse, and need an acute bed.

·       This inexorable pressure on beds led to increased use of beds out of trust areas, trusts frequently having to use private hospitals.

·       These beds are far more expensive than “in house” beds.

·       There are also increased costs in transporting these patients long distances, often having to use a private ambulance service, because local ambulance trusts would refuse to provide transport.

·       Holes in service provision for crisis intervention also leads to increased use of police emergency powers under Sec.136, and then associated delays in completing the Sec.136 assessment because of delays in finding a bed. This puts increased pressure on police time and resources.

·       And of course there have been huge cuts in funding for local authorities, who among other things are responsible for providing police services, so policing levels have been cut at the same time.

·       Another consequence of cuts to local authorities is that funding for services that have the effect of providing alternatives to hospital admission, such as respite care, or reducing demand on mental health services, such as support services and personal budgets for vulnerable service users, have also been cut, adding even more pressure on NHS mental health services.

As I said at the beginning, you can squeeze as much as you like in one place, it will simply increase pressure on the system in another place.

Regardless of doctrine or ideology, sometimes you have to spend money in order to save money.

Saturday, 14 March 2015

CTO’s – Fit for Purpose?

Community Treatment Orders were introduced by the 2007 changes to the Mental Health Act 1983, and came into force in 2008.

The New Code of Practice states that the purpose of a CTO “is to allow suitable patients to be safely treated in the community rather than under detention in hospital, and to provide a way to help prevent relapse and any harm – to the patient or to others – that this might cause. It is intended to help patients to maintain stable mental health outside hospital and to promote recovery.” (Para.29.5)

It goes on to suggest that CTO’s could be regarded as fulfilling the principles of  treating patients using the least restrictive option and maximising their independence.

CTO’s have been very popular since their inception in 2008. This could be at least partly due to the process being initiated and managed by psychiatrists rather than AMHP’s, unlike with admission to hospital under Sec.2, 3, or 4, where an AMHP, as a non-medical professional, leads the process and makes the final decision.

But CTO’s have also been very contentious. Critics regard them as being excessively controlling and interfering with patients’ human rights, while supporters regard them as a way of enabling patients with severe and enduring mental disorder to live as normal and fulfilled a life as possible outside hospital.

Both views have their merits. It is one thing to argue that it is unreasonable to enforce treatment on a person who is not in a hospital, but there is also a point in arguing that it has to be better that someone remains out of hospital as long as there is a framework to ensure treatment for their mental disorder.

For compulsory treatment in the community to be justifiable, it has to be shown not only that it results in fewer admissions to hospital, but that is can also demonstrate a better quality of life for the patients involved.

So has there been a reduction in the numbers of admissions since 2008? It appears not. The Health and Social Care Information Centre (HSCIC) publish annual statistics for patients formally detained under the MHA, and for people subject to CTO’s. The figures for 2013-14 came out at the end of October 2014.

The Report states that since 2008 the number of people subject to CTO’s as of 31st March 2014 has more than doubled, an increase of 206% or 3,610. Over the same period there has indeed been a reduction in the number of people detained under Sec.3 for treatment, which must be linked to the increase in CTO’s, as patients can be recalled to hospital and their CTO’s revoked without the need for a fresh assessment under the MHA.

However, over the same period, overall detentions in hospital under the MHA have increased by a third, so that in the period 2013-14 “the Act was used 53,176 times to detain patients in hospital for longer than 72 hours” (ie. Under Sec.2 or Sec.3).

So, while there has been a reduction of people detained in hospital under Sec.3, mainly as a result of the introduction of CTO’s, overall detentions have increased to record levels.

While it may be tempting to reach the conclusion that CTO’s have not fulfilled their function of reducing admissions to hospital, the reality is far more complex, as it is likely that the nationwide cutbacks in services for people with mental health problems over the same period have contributed to this rise in acute admissions.

The only significant research into the link between CTO’s and hospital admissions is the OCTET Trial, published in 2013.

The object of this research was to see if CTO’s reduced readmission. They monitored the samples (a total of 333, of whom 166 were discharged on CTO’s and the rest on extended Sec.17 leave) for 12 months. Their conclusion was that “the imposition of compulsory supervision does not reduce the rate of readmission of psychotic patients. We found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients' personal liberty.”

While the conclusion seemed unequivocal, I had some considerable misgivings about the usefulness of this piece of research, not least because of the miniscule size of the sample, which I wrote about on this blog back in April 2013. It is clear that much more research needs to be done in this area.

So what about the effectiveness of CTO’s in improving the quality of life of patients?

Unfortunately, there is again very little research into this, and it would appear that there is none at all in the UK. However, other countries have equivalent powers, including Australia, New Zealand, the USA and Israel, and there has been a recent review of available research, Compulsory community and involuntary outpatient treatment for people with severe mental disorders, by Steve Kisley and Leslie Campbell, which was published in December 2014.

The research looked at three trials consisting of a total of 752 people. The report concluded: “Results from the trials showed overall [compulsory community treatment] was no more likely to result in better service use, social functioning, mental state or quality of life compared with standard 'voluntary' care.”

It did note that “people receiving CCT were less likely to be victims of violent or non-violent crime.”

There are some provisos to these findings. For a start, the authors considered that the quality of evidence for the main outcomes was low to medium grade. They also noted that “other than feelings of coercion or being controlled, there were no other negative outcomes”

None of the available research satisfactorily provides evidence one way or another for the efficacy or otherwise of compulsory community treatment. All that is certain is that there should be much more research if such a potentially contentious form of intervention is to continue to be used at the current levels.

Friday, 6 March 2015

How do you define “a place to which the public have access” under Sec.136?

The ambulance or the highway?
There has recently been an interesting discussion on the Masked AMHP Facebook Mental Health Forum concerning whether or not an ambulance could be considered to be “a place to which the public have access” within the meaning of Sec.136 MHA.

Sec.136 permits a police officer who “finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control… if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety”. The person then has to be assessed by an AMHP and a doctor to see if they need to be detained in hospital.
The question is, of course, what exactly constitutes “a place to which the public have access”?
The New Code of Practice (para16.18) says that this “includes places to which members of the public have open access, access if a payment is made, or access at certain times of the day. It does not include private premises, such as the person’s own place of residence or private homes belonging to others”.
Richard Jones suggests that this “probably includes: public highway, public access if payment is made, eg a cinema, public access at certain times of the day, eg a public house.”
The problem with all this is that there appears to be almost no case law at all specifically relating to what constitutes “a place to which the public have access” under Sec.136. As Insp Michael Brown observed:
‘"A place to which the public has access" isn't legally defined. "A public place" is defined - at least five or six different times, depending on whether you're reading the Public Order Act, the Highways Act, the Road Traffic Act, etc., etc., etc.’
These definitions, and other case law relating to various Acts of Parliament, may assist in providing guidance. I consider some of these in an earlier blog post on this subject. In particular, they examine issues such as whether or not a garden is a public place (yes if it’s a pub garden, no if it’s a private individual’s front garden, however small.) Insp. Michael Brown, on the excellent Mental Health Cop blog, also considers possibly relevant case law at greater length.
But there’s no mention at all anywhere of whether or not a motor vehicle can be regarded as a public or a private space.
The general consensus in the Forum discussion was initially that an ambulance, or indeed any other vehicle, could not be regarded as “a place to which the public have access.”
But I was not so sure.
I took the view that a vehicle (apart possibly from a residential caravan, which although ostensibly being a wheeled vehicle has the main purpose of providing living accommodation for an individual) could not be considered to be a “place” at all. On that basis, the important and defining factor was the location of this vehicle.
Inspector Michael Brown usefully enlarged upon this:
“If you were found sitting in your own car and all other criteria were met, the police could use s136. If you were the passenger in another vehicle that was stopped by the police and the other criteria satisfied, they could use s136. I don't see how being in a vehicle alters this consideration massively - you get few legal protections in a car or truck from police activity and those are usually connected to things like powers to search it.”
I would argue that a car is simply a means of moving from one place to another, as is a bicycle, a motor cycle or a pogo stick. Would someone on a bicycle on a public highway be regarded as not being in a place to which the public have access? I think not. The mere fact that a car, or an ambulance, or a bus, has doors which can be closed from inside does not make it a “place” immune from the police exercising their powers under Sec.136.
The discussion moved to considering whether a tent was “a place to which the public have access.” Again, several people regarded the interior of a tent as being a private space.
An anonymous commentator on my blog has said: “I was put on a Section 136 whilst I was asleep in a tent at a festival last summer. I woke up as the police grabbed my ankles to drag me out.”
The writer was understandably annoyed at this rude awakening, but I have to conclude that merely being surrounded by canvas does not make one immune from Sec.136. If that was the case, then your clothing could constitute such a “place”.
Again, it all comes down to location: if the tent is pitched in “a place to which the public have access”, then it is fair game. If, however, it is pitched in your back garden, or someone else’s back garden with permission, then you are not in “a place to which the public have access” and you will be safe from the attentions of the police -- unless they have a warrant under Sec.135.
Now there is some case law about what constitutes a “road”. Alun Griffith (Contractors) Ltd v Driver and Vehicle Licensing Agency [2009] EWHC 3132 (Admin), [2010] RTR 7) established that a grass verge on the edge of a road constitutes part of a public highway, and even if it is behind a crash barrier, it could still be regarded as “a place to which the public have access". So you can’t pitch your tent on the grass of a roundabout with impunity.
There are indeed places that would be universally regarded as “a place to which the public have access”, such as a street, a park, common land, a public house, an A&E department of a hospital, and there are places that would be regarded as private places, such as a private home, a private garden, a hospital ward, an office, etc.
There are also places which are more difficult to categorise, such as a communal area in a block of flats, or a residential barge or houseboat. But the overarching rule in this case is “location, location, location”.
I am confident that the police can happily continue to detain people under Sec.136 found in a tent, a bivouac, a car, a van, an ambulance, or a canoe, providing that object is in “a place to which the public have access”.
And the only thing stopping them would be a complaint to the courts resulting in case law that defines once and for all what actually constitutes “a place to which the public have access”.

Thursday, 19 February 2015

CTO’s and a dreadful case of unlawful imprisonment

Mistakes in law can come back to haunt you, even many years later.
A recent Court of Appeal  judgment on 10th February 2015 ([2015] EWCA Civ 79) considered a request for compensation for unlawful imprisonment arising as a result of illegally imposing, then revoking, a Community Treatment Order which went as far back as 2009.
This related to a man called Lee Bostridge. He was lawfully detained under Sec.3 MHA in July 2008. In April 2009 a mental health tribunal reviewed his case and ordered his discharge, suggesting in the process that he should be discharged on a CTO.
But by so doing, the tribunal had committed an error in law. A CTO can only be imposed on a person who is "liable to be detained in a hospital in pursuance of an application for admission for treatment", but as the tribunal in their judgment no longer considered that that applied to Mr Bostridge, the subsequent CTO was by definition unlawful. (In essence, anyone on a CTO continues to be subject to detention under Sec.3, and when a CTO is revoked, the underlying Sec.3 detention comes back into force.)
After Mr Bostridge was discharged on this erroneous CTO in April 2009, he remained in the community until August, at which point his Responsible Clinician recalled him to hospital, under his powers of recall, and then revoked the CTO.
Despite having had two tribunals during this period of detention, it was not until 3rd November 2010, when he attended another mental health tribunal, that it was realised that his initial discharge on a CTO back in 2009 was unlawful, and that he had therefore been unlawfully imprisoned for a grand total of 442 days!
As soon as this was discovered, Mr Bostridge was immediately released. However, I don’t think he can have enjoyed much time out of hospital, as he was assessed and lawfully detained under Sec.3 on the same day. This period of (lawful) detention lasted until 13th September 2011.
Mr Bostridge received compensation for the 442 days that he was illegally deprived of his liberty. However, he appealed to the higher court on the basis that he ought to be entitled to a greater, and perhaps exemplary, compensation payment.
The Court of Appeal disagreed with the less than fortunate Mr Bostridge, concluding that “had the appellant been detained lawfully, he would have suffered the same unhappiness and distress that he suffered anyway”. He had therefore suffered no significant loss, and was not therefore entitled to any more than a nominal payment.
This sort of mistake was not unknown in the period following the introduction of CTO’s, which came into force as a result of the amendments to the MHA 1983 in the MHA 2007.
As well as having the power to discharge patients from detention under the MHA (generally Sec.2 & Sec.3), tribunals are allowed to make suggestions as to the disposal and aftercare of a detained patient and frequently do.

The tribunal regulations state that tribunals must discharge if certain things are concluded. One of these is if the tribunal is “not satisfied that the patient is then suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment”.

Since Mr Bostridge’s tribunal had come to this conclusion, even though they were merely trying to be helpful in guiding the hospital towards a decision to use a CTO, the consequence of their decision was to make it illegal for the hospital to follow their suggestion.

Isn’t the law a wonderful thing?