Thursday, 6 August 2015

How long can a patient living and receiving treatment outside hospital be considered to be “liable to be detained in a hospital for treatment”? Recent case law

A recent appeal to the Upper Tribunal has raised some interesting issues relating to the legal concepts of “treatment in hospital” and “liable to be detained” within the context of the Mental Health Act.
The case of SL v Ludlow Street Healthcare (Mental Health:All) [2015] UKUT 398 (AAC) (16 July 2015) concerned a patient, SL, who had diagnoses of mild learning disability and hyperkinetic disorder, associated with seriously irresponsible conduct, and in the past had been detained under Sec.3 for treatment, and at other times had been on a Community Treatment Order.
SL had more recently been detained under Sec.3, but was actually living in a care home on extended Sec.17 leave at the time he appealed to the Mental Health Tribunal.
Although it was established that he mainly resided in the care home, and only actually attended hospital fortnightly for psychology sessions, and monthly for the ward review, the Tribunal found that “it was not the time he spent at the hospital that mattered, so much as the extent to which his time there contributed to the decision-making of the clinical team.” He therefore remained on Sec.3.
He appealed to the Upper Tribunal on the basis that “almost all of the treatment that the patient received was being delivered in the community, so he no longer justified being subject to section 3.”
The Judge in the case considered that the crucial point to be decided was “whether it was appropriate for the patient to remain liable to be detained in hospital for medical treatment.” He made a clear distinction between “liable to be detained” and “detained”, as someone who is in law “liable to be detained” may not in fact actually be in hospital.
He referred to case law from the early 2000’s, in which the Judge did not consider there was any distinction between treatment “in” a hospital and treatment “at” a hospital. I remember looking at this case law with some bemusement at the time, as it did seem to me that there was a quite clear difference. Nevertheless, the Judge was satisfied with this case law, and applied it to the current case.
The Judge went on to consider Sec.145(c)(ii) MHA, which gives a broad definition of “medical treatment”, including “nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care”.
Taking these factors into account the Judge concluded that SL’s Sec.17 leave in itself, as well as the rehabilitation provided in the care home, constituted part of his treatment plan, which therefore rendered him both “liable to be detained” and to be receiving “treatment in hospital”.
As a consequence, the appeal was dismissed.
Incidentally, this broad interpretation of “treatment in hospital” runs counter to some parts of the new Code of Practice. In particular, I would take issue with the case example cited in Chapter 13 CoP, which purports to describe the interface between the MHA and the Mental Capacity Act. While this refers to an elderly lady with dementia who lacks capacity, some of the statements can be directly applied in the case of SL.
In the case example P is detained under Sec.3 MHA, and is treated, but when this treatment is finished, it is considered that she no longer needs to be in hospital, and should be placed in a care home. The CoP then states: “P no longer needs to be detained in hospital for care and treatment for the mental disorder. As such, the Act is no longer available.”

If this guidance were in fact true, then patients would have to be discharged from detention under Sec.3 once they were no longer considered to require treatment in hospital, and extended Sec.17 leave would not be available to the patient’s responsible clinician.

The other contentious implication of this CoP case is the idea that treatment for mental disorder could somehow magically cease. The SL case makes it very clear indeed that the bar for what constitutes “treatment” is set low, and it would be hard to argue that anyone with an ongoing mental health disorder did not require treatment. And that treatment does not even need to take place in a hospital for a patient to remain “liable to be detained”.

A lesson to be learned from this is not necessarily to believe everything you read in the Code of Practice.

Thursday, 30 July 2015

Law Commission Publishes Consultation Paper on Mental Capacity & DoLS

On 7th July 2015, the Law Commission released its long awaited consultation paper on mental capacity and deprivation of liberty. It makes very interesting reading, and suggests sweeping changes to the whole process of the management of people who lack capacity, and makes some recommendations that would require significant changes to the Mental Health Act.
One of the encouraging things about this document is that it weighs in to the Deprivation of Liberty Safeguards, and has hardly anything good to say about them, quoting a wide range of eminent sources criticising its ““bewildering complexity”, with Mr Justice Charles saying that writing a judgement on a DoLS case was “as if you have been in a washing machine and spin dryer”.

As the paper says, referring to DoLS:
In March 2014 two events inflicted significant damage. First, the House of Lords post-legislative scrutiny committee on the Mental Capacity Act published a report which, amongst other matters, concluded that the DoLS were not “fit for purpose” and proposed their replacement. A few days later, a Supreme Court judgment widened the definition of deprivation of liberty to a considerable extent. The practical implications have been significant for the public image of the DoLS, and the regime has struggled to cope with the increased number of cases. (1.6)

The Deprivation of Liberty Safeguards should be replaced by a new system called “protective care"

The paper makes the important point that:
The DoLS assume that nursing staff and care workers on the ground can identify and respond to deprivations of liberty. Yet this requires an assessment of a highly technical question of fact and law which is ultimately to be decided by the Strasbourg court. The concept of deprivation of liberty continues to cause disagreement amongst lawyers, academics and – as witnessed in Cheshire West – Supreme Court justices. The result is that “care providers, insofar as they think about DoLS at all, seem to perceive it as a technical legal solution to a technical legal problem” and not something that will benefit the relevant person in any tangible way. Reports have shown that in care homes knowledge of, and confidence in, the DoLS is limited, and managers and staff are heavily reliant on their local authority to identify potential deprivations of liberty amongst residents. (2.15)

As if that were not enough to sound the death knell of the DoLS, the paper goes on to say:

Terms such as “standard authorisations”, “managing authority” and “supervisory body” have been described variously as cumbersome, Orwellian, and failing to reflect modern health and social care functions. Particular criticism has been directed at the label “Deprivation of Liberty Safeguards”.

It does not come as a surprise, then, to find that one of the first recommendations the paper makes is that “the Deprivation of Liberty Safeguards should be replaced by a new system called “protective care”. It recommends that this should include hospitals, care homes, supported living, and even “shared lives and domestic accommodation.”

The paper makes a distinction between “supportive care” and “protective care.” While “protective care” would replace the current Deprivation of Liberty Safeguards, and would also be extended to include anyone aged 16 or over, “supportive care” “is intended to provide suitable protection for people who are in a vulnerable position, but not yet subject to restrictive forms of care and treatment (including deprivation of liberty). In other words, it is intended to establish a preventive set of safeguards that reduce the need for intrusive interventions in the longer term.”(6.2)
Supportive care would apply where someone is living in a care home, supported living or shared lives accommodation, and also if a move into such accommodation is being considered. However, the whole point of supportive care is “to authorise preventive forms of care and support, such as enhanced assessment and care planning oversight procedures – and would not authorise a deprivation of liberty”. (6.12)

The role of the Best Interests Assessor will be abolished, and replaced by an Approved Mental Capacity Professional.

Where deprivation of liberty is being considered, but outside the current parameters of the Mental Health Act, a proposed “restrictive care and treatment scheme” would come into play. But crucially: “it is not organised around deprivation of liberty. Instead it looks at whether care and treatment arrangements are becoming sufficiently intrusive or restrictive to justify enhanced formal safeguards. This will include those deprived of liberty, but will also include some whose arrangements fall short of this”.
This is where one of the major changes to the existing arrangements is being proposed. The role of the Best Interests Assessor will be abolished, and replaced by an Approved Mental Capacity Professional. These “Approved Mental Capacity Professionals” would be “in the same position legally as Approved Mental Health Professionals. In other words, they will be acting as independent decision-makers on behalf of the local authority.”(7.104)
These AMCPs would have powers and duties which appear to be even more wide ranging than those of the AMHP. They would be involved in assessing and reviewing people subject to restrictive care and treatment, who would be people defined as lacking “decision-making capacity as a result of an impairment of, or a disturbance in the functioning of, the mind or brain.” AMCPs would be required to arrange for the assessment of such people “to be undertaken by a person already involved in the person’s care (eg the person’s social worker or nurse) and quality assure the outcome of that assessment or oversee or facilitate the assessment; or undertake the assessment themselves.”
Other tasks of the AMCP would include ensuring that decision-making processes and care arrangements comply with the Care Act, the Mental Capacity Act and other regulations, that there are regular review meetings, and that the person has an advocate and appropriate person to take care of their interests. Where someone is subject to restrictive care and treatment, the AMCP would even be required to specify the duration “which may not exceed 12 months.” They would even have discretion to discharge the individual from such a regime.
Where people who are in a hospital setting, they would be able to be deprived of their liberty for up to 28 days; but if such deprivation continued beyond that, then an AMCP would have to agree to this.
The paper suggests that the Mental Health Act definition of mental disorder, broad though it is, would not be used for these cases, stating that “people with a pure brain injury and those dependent on alcohol or drugs should not be excluded automatically from the benefits of supportive care.”
We are attracted to the approach taken under the Mental Health Act whereby decision-making is more coherently and clearly defined than under the DoLS
Their proposals would obviate the need to go to the High Court for cases currently excluded by the MHA, which includes “people in a persistent vegetative state or minimally conscious state caused by a concussion or brain injury, or someone suffering from a stroke or locked in syndrome.”

The writers of this paper state that “we are attracted to the approach taken under the Mental Health Act whereby decision-making is more coherently and clearly defined than under the DoLS. They go on to say:

We have considered several options for the interface between our scheme and the Mental Health Act. First, we could retain and clarify the existing interface. In doing so, it is important to emphasise that we would not wish to preserve the current drafting of schedule 1A, which is widely viewed as impenetrable. (10.17)

The paper therefore makes a proposal that the MHA should be amended. This is in order to establish “a formal process for the admission of people who lack capacity and who are not objecting to their care and treatment.” This would place such people within the safeguards already available to patients subject to the MHA, and would importantly include the right to appeal to a mental health tribunal.

I’ve necessarily only skimmed the surface of this extensive paper, which runs to 230 pages (although you can read the 12 page summary), picking out proposoals and recommendations particularly close to my heart. But there is a great deal to like in these proposals, which go a long way to addressing the deficiencies of the Deprivation of Liberty Safeguards in particular. I also like the fact that they recognise the Mental Health Act as being a good place for these changes to reside.

However, this is a consultation paper. The final proposals for changes in the law may be quite different. Not least is the impact of the Conservative Government’s plans to scrap or reform the Human Rights Act, and the fact that many of the proposals are designed to address issues raised by recent case law and the European Convention on Human Rights.

It is far from clear whether the current government is concerned enough about human rights in general to spend much time legislating to reform and extend the rights of people who lack capacity.

Sunday, 5 July 2015

Important Guidance from The College of Social Work on the Impact of Cheshire West on AMHP Practice

This was authored by the eminent Emad Lilo, who is Vice Chair of TCSW AMHP Community and works as AMHP practice lead at Mersey Care Foundation Trust. He is well known for producing extraordinary annual social care conferences, some of which I have reported on this blog.

This is an important document for two reasons.

The first is that it is quite probably the last document The College of Social Work will ever issue, as the Government in their wisdom has seen fit to withdraw funding from TCSW with the consequence that the organisation will cease to exist by September.

The second reason is that it provides important guidance for Approved Mental Health Professionals, Best Interests Assessors and their employers on how to negotiate the minefield that is the interface between the Mental Health Act and the Mental Capacity Act.

Last year, the Supreme Court issued a judgement, P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014] UKSC 19, which attempted to clarify when and how deprivations of liberty might arise for people lacking mental capacity.

Lady Hale in the judgement offered a simple “Acid Test” to assist in determining whether someone suffered a Deprivation of Liberty. It revolved around two facts: that the person is not “free to leave”, and that they are subject to continuous supervision and control. She recommends that professionals shoulderr on the side of caution” when reaching a decision regarding potential deprivation of liberty, which means that AMHPs and BIAs should ensure they use their respective powers in such cases.

These powers are essentially: to detain the patient under the MHA, to obtain an authorisation under the Deprivation of Liberty Safeguards, or if there is no other route, to obtain an order from either the Court of Protection or via the inherent jurisdiction of the High Court.

You can read more about  the Cheshire West judgement on my blog here.

TCSW surveyed 24 AMHP service providers across England and Wales in order to find out the impact that this Supreme Court decision had had on:
·         AMHP practice and the use of the Mental Health Act
·         The use of DoLS or MHA or MCA for admitting incapacitated patients to a mental health unit
·         The use of DoLS or MHA or MCA for the provision of care/treatment to incapacitated patients already in a mental health unit
·         What training/guidance is or should be made available to improve practice including effective and lawful implementation of the judgment
As a result of this survey, the report makes a number of recommendations in order to ensure that all professionals and organisations working with people who are mentally incapacitated are practicing within the law and the spirit of the legislation.

The report also provides some useful grids and flowcharts to assist in making decisions regarding the use of the Mental Health Act or DoLS.

All but one service provider reported an increase in the burden of work carried out by AMHPs. One respondent noted:
“We have seen an unprecedented increase in the number of MHA assessments being requested, and the number of patients being detained as a direct consequence of the CW ruling.

There has also been a corresponding increase in the level of requests for authorisations under the Deprivation of Liberty Safeguards. A respondent noted:
“The dedicated BIA team has been expanded by recruitment of extra BIAs and admin staff as this is the main point of contact for inquiries. Despite these increases the BIA service cannot adequately respond to the increase in contact and demand.”

The report observes:
“The situation appears to be more challenging for certain local authorities where a large proportion of their Best Interests Assessors for DoLS are drawn from the AMHP service. The levels of activity have led to unprecedented pressure on already limited and stretched AMHP provision across the country.”

The report also contains extensive discussion of the implications of the Cheshire West judgement in context of the new Code of Practice, and also examines the Law Society guidance issued on behalf of Department of Health.

The MHA Code of Practice was revised subsequent to the Cheshire West judgement. It must therefore be concluded that the writers of the revised Code had the judgement in mind.

Nevertheless, the Code contains some potentially alarming recommendations. For example, it states that "a person who lacks capacity to consent to being accommodated in a hospital for care and/or treatment for mental disorder and who is likely to be deprived of their liberty should never be informally admitted to hospital (whether they are content to be admitted or not)."(13.53)

A consequence of this would appear to be that the MHA is almost invariably going to be used when someone lacking capacity needs to be admitted to hospital.

However, Professor Richard Jones, author not only of the Mental Health Act Manual but also the Mental Capacity Act Manual, stated, “In my opinion, compliant mentally incapacitated patients can continue to be admitted informally under the authority of ss.5 and 6 of the MCA.  After admission, they can be assessed to see whether they satisfy the Acid Test. In any event, I do not see how the use of the MHA can be justified in anticipation of a possible future deprivation of liberty.”

Neil Allen, a Barrister at 39 Essex Street Chambers and lecturer at Manchester University went on to say: “If I lack capacity and need to be admitted to a psychiatric ward to treat my mental disorder, if I object or would object if able to, use the MHA. If I am non-objecting, use MCA 5-6 to take me there and urgent DOLS with request for standard DOLS…. In deciding whether I object or would object, if in doubt Code says err on the side of caution (i.e. consider me to be objecting).”

The report also looks at the Law Society guidance. In connection with conveyance, this states:

“Transporting a person who lacks capacity from their home, or another location to a hospital by ambulance in an emergency will not usually amount to a deprivation of liberty. In almost all cases, it is likely that a person can be lawfully taken to a hospital or care home by ambulance under the wider provisions of the Act, as long as it is considered that being in the hospital or care home will be in their best interests.”

I pick out these particular quotes as in my work as an AMHP and also having responsibility for triaging MHA assessment requests for my local authority, I am always keen to adhere to the MHA Code of Practice’s first principle, which is to use the least restrictive option wherever possible. I am therefore reluctant to use the powers of detention under the MHA if there are alternatives, including use of the MCA for people who lack capacity.
The report makes a range of recommendations, including that AMHPs need to be familiar with the Mental Capacity Act and the Deprivation of Liberty Safeguards and need to be familiar with the key points from the Cheshire West judgment, that local authorities should increase the number of AMHPs to cope with the increased demand, that there needs to be additional training on the MHA Code of Practice, and that “hospitals, local authorities and care homes must work together locally to raise awareness and improve understanding of the MCA more widely and embed it in the health and social care culture.”
This review can necessarily only outline what is contained in this important document. There is so much that is of relevance to professional decision making that I recommend all AMHPs, BIAs and others professionally involved with making decisions on behalf of people lacking capacity should read it in full.

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.