Sunday, 6 April 2014

The Masked AMHP is Retiring…Sort Of

It’s true. After nearly 40 years as a social worker, and 33 years as a Mental Welfare Officer, approved Social worker, and approved Mental Health Professional, I am officially retiring.

I’ve seen a lot of changes in social work, and mental health service provision, over that time. In 1974, only two years before I started work as an unqualified social worker in 1976 (it was unusual then for social workers to be qualified), there had been a huge national reorganisation of social care provision, precipitated by the Local Authority Social Services Act 1970. This in turn had been inspired by the Seebohm Report, published in July 1968, which had proposed the integration of disparate social care services into single, generic departments overseen by local authority social services departments.

Until then, social care had been administered in a range of guises. For example, mental health had Mental Welfare Officers, defined by the Mental Health Act 1959. Services for children and families had Children’s Officers. Hospital social work was done by Hospital Almoners. In 1974, all these people were moved into these generic departments, and all became known as “social workers”.

The idea was that all social workers would have generic caseloads. This was an admirable aim.

Imagine a hypothetical family. Sid and Nancy are in their 30’s. They both met while inpatients in a psychiatric hospital. They have two children, Nora, aged 3, and Dora, aged 8. Dora has severe learning difficulties. Also living in the family home is Nancy’s elderly mother, Edna, who suffers from severe arthritis and the early signs of dementia.

Prior to the Seebohm changes, 3 or 4 social care workers could be involved with the family. But when I started as a social worker, one person would work with them all.

I liked this idea back then. I was all for the ideal of a social worker working across all the different client groups (people involved with social services were known as “clients”). But in practice it was more difficult. For a start, you had to have a working knowledge of all the relevant legislation, ranging from the National Assistance Act 1948, through to the Chronically Sick and Disabled Persons Act 1970, the Children and Young Persons Act 1969, the Children act 1975, and the Mental Health Act 1959.

It was actually impossible to be equally competent in working with children and families, juvenile offenders, older people, and people with physical disability, learning difficulties and mental illness. In practice, social workers in the team tended to specialise in areas of particular interest. This meant that for over 10 years I had a mixed caseload consisting of child protection work, young offenders, children in care, and mental health.

Over time, I became increasingly interested in mental health and the Mental Health Act 1983, when it replaced the 1959 Act in 1984 (26th September 1984 to be exact). And when my local authority decided to divide social workers into specialist teams in the late 1980’s, I opted to join the mental health social work team.

This coincided with the creation of new fangled multidisciplinary community mental health teams (CMHT’s), where a team consisting of a consultant psychiatrist, a clinical psychologist, an occupational therapist, community psychiatric nurses and mental health social workers all worked together out of a single office base in the community.

I joined such a team, and worked happily in this multidisciplinary way until our local Mental Health Trust abolished locality based teams in 2013. Did this have anything to do with my decision to retire? I couldn’t possibly comment.

There have been enormous changes over the time I have worked as a mental health social worker. Thatcher’s Government introduced the purchaser/provider split in social care provision in the early 1990’s, the practical result of which was to make many social workers little more than contractors for external, private services.

The ideal of mental health service provision based in a single local community centre rather than in mental hospitals survived for many years. It seemed like an efficient and patient/service user centred approach. Our local psychiatric wards generally ran with something like 80% or less occupancy. Our enthusiastic integrated team kept people out of hospital.

But innovations in this model, while on the face of it appearing to be all for the good, in practice had a different effect. These were the Crisis Resolution and Home Treatment Teams, the Early Intervention Teams, and the Assertive Outreach Teams. There were unintended consequences to the creation of such teams. One was that professionals with the greatest expertise tended to join these bright and shiny teams, leaving the CMHT’s with fewer and often less experienced staff.

In our local area, the strong and experienced inpatient nurse team was decimated, as their most experienced staff joined the CRHTT. This had a significant detrimental effect on the ability of ward staff to effectively treat and discharge inpatients.

When new teams set up in Primary Care under the Improving Access to Psychological Therapies initiative were created, our CMHT lost almost half of its most experienced staff to the new service. But IAPT somehow did not have the desired effect of reducing the bombardment rate of referrals to the CMHT.

The other problem with all these new teams was that each had their own gatekeeping requirements. It was often very difficult to get these teams to accept patients from the CMHT’s. Consequently, they had protected and limited caseloads, while the CMHT’s continued to have to take everything thrown at them.

However, throughout this time, it did at least mean that more money was being spent on mental health. Until the radical redesign of the NHS in 2013 and the creation of the Community Care Groups.

Mental health services are now suffering the effects of concealed and not so concealed cuts to funding, both in the NHS in general and in mental health in particular. I still feel uncomfortably clammy when considering the concepts of “clustering” and “payment by results”: harbingers of privatisation, the final dismantling of a joined up mental health service. And of course the savage cuts in benefits for the poor and disabled are having a drastic effect on mental health service users, creating even more demand for a shrinking service.

So I have now decided to retire. But…

It does not mean that I will be spending all my time digging the garden, or reading the Guardian and growing ear hair.

It certainly doesn’t mean I will no longer be an AMHP, masked or not. (By the way, since my identity is no longer very much of a secret, do you think I should now rename myself The Naked AMHP?)

In fact, although I will cease to be a care coordinator, and will no longer have to wrestle with personal budgets and direct payments, I will continue to work as a duty AMHP for a couple of days a week, a role I continue to find worthwhile.

And it doesn’t mean that I’ll stop writing The Masked AMHP blog, or stop running the Masked AMHP Facebook Group (which now has over 1200 members!) or close down The Masked AMHP Twitter account.

But it will free me up to develop other interests. I am an elected member of the steering committee of the Mental Health Faculty of The School of Social Work. I will have more time to attend committee meetings and to work on initiatives designed to protect and enhance the social work and the mental health social work role.

Some will have seen me at AMHP and social work conferences around the country in the last year or so. I will have more time to provide training sessions on a freelance basis. So, if you would like the Masked AMHP to enhance your AMHP or other mental health conference with a personal appearance and presentations on a wide range of topics relating to mental health law and practice – from a practitioner’s perspective – then please contact me via my email or Twitter account.

And maybe, just maybe, if there’s any interest, I might also have time to write a book or two.

Tuesday, 4 March 2014

Ian Brady’s Mental Health Tribunal – anything to learn?

In June 2013, Ian Brady had a week long mental health tribunal to appeal against his detention in Ashworth Hospital. He claimed that he had only feigned mental illness, and he wanted to be transferred back to prison on the grounds that he was not suffering from mental disorder of a nature or degree that made it appropriate for him to receive medical treatment.

In 1966 Ian Brady and Myra Hindley were convicted of the murders of five children. Myra Hindley spent the rest of her life in prison. However, Ian Brady was later transferred to a special hospital, and has remained in high secure hospitals until the present day.

This hearing was remarkable in several ways. Tribunals are normally held in private: the only people at most tribunals are the patient, his or her legal representative, and professionals involved in their care. But at Brady’s request, this one was held in public. It was only the second time that a hearing has been held in public. It was also the longest hearing that I can recall; generally, hearings take between 1-3 hours. It is reported that his legal costs amounted to £250,000.

He lost the appeal. Judge Robert Atherton concluded that: “Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him”.

This decision was made at the end of June 2013. However, the written decisions were only published at the end of January 2014.

At the time of the original decision, the Daily Mirror described Brady as “unhinged and insane”. However, the written decision, which runs to 115 pages, is far more measured, although essentially reaching the same conclusion.

For many reasons, there was a high level of publicity surrounding this tribunal. This was the first time that Ian Brady had been at a public hearing since his original conviction in 1966. He and Myra Hindley have been notorious ever since their conviction for their truly appalling crimes, and interest in Brady is bound to continue until his death.

I’ve now read all 115 pages of the written adjudication. It makes fairly interesting reading.

It is important to understand that a Mental Health Tribunal can only decide on certain issues. In the case of Brady, these are that:

  • Brady is then suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment;
  • it is necessary for his health or safety or for the protection of others that he should receive such treatment; and
  • appropriate medical treatment is available for him.
If the Tribunal is not satisfied on these points, then the patient must be discharged. In Brady’s case, this would have meant a return to prison, which is what he wanted.

One of the remarkable things about the Tribunal’s reasons for their decision is the weight of medical evidence presented by psychiatrists, clinical psychologists and nurses involved with his care, as well as evidence provided by psychiatrists acting on behalf of Brady. In total, seven professionals gave evidence.

The hearing first had to decide whether or not Brady was suffering from mental disorder of a nature and/or degree making it appropriate for him to be treated in a hospital. There appeared to be no dispute that Brady had a severe personality disorder. On balance, the unanimous conclusion was that he had a personality disorder “which includes antisocial and narcissistic traits”.

The main area of dispute appeared to be regarding whether or not he additionally suffered from paranoid schizophrenia. The Ashworth professionals maintained that he did, while those representing Brady maintained that he did not. Brady himself stated in the Tribunal that he only pretended to exhibit symptoms of paranoid schizophrenia.

There is considerable discussion about “nature or degree”. The Ashworth contingent argued that his paranoid schizophrenia was indeed of both a nature and degree, while Brady’s supporters contended that “it is neither of a nature nor degree which makes it appropriate to continue his detention in hospital for treatment. They accept that he suffers from paranoia but attribute that to his personality disorder and regard any mental illness as being of minor importance”.

The problem with all this is that it is very difficult to argue against “nature or degree”. If  it is decided that someone does indeed have paranoid schizophrenia, then it is by definition of a “nature” to make it appropriate for them to receive treatment, even if the condition might be in remission and therefore not of a “degree”. Perhaps inevitably, those arguing on Brady’s behalf would fail to convince a Tribunal if the Tribunal had concluded, as they did, that Brady did indeed have paranoid schizophrenia.

Once the Tribunal had concluded that Brady had both mental illness (paranoid schizophrenia) and mental disorder (personality disorder), and that these were of a “nature and degree” that required treatment in a hospital, it was a simple step for them also to conclude that it was also necessary for his health or safety and for the protection of others. His defense could then only rely on whether or not “appropriate treatment” was available for him.

The Tribunal accepted that treatment would not include the use of medication, and that “Mr Brady is very unlikely to take part in any psychological treatment.” They therefore considered at length the definition of “treatment”.

The Tribunal stated that:
“Section 145(1) Mental Health Act 1983 provides “medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care. The Tribunal observed that this sub-section does not seek to provide a comprehensive definition. It sets out various actions which may be taken when seeking to assist a patient. There may be a degree of overlap of the nature of that assistance encompassed by the items mentioned but they must also connote some different action. Thus, in the opinion of the Tribunal whilst “specialist care” may include “nursing” it must also encompass other actions. Conversely, “nursing” does not necessarily encompass “specialist care”. This indicates the width of meaning of the term “treatment”.

The Tribunal considered, and clearly approved of, one of the witnesses, Professor Eastman, who “had divided the treatment of patients with mental health problems into three different forms, which had been referred to during the case as limbs one, two and three.”

 The Tribunal went on to describe these three treatment “limbs”:
“Limb one is treatment of the patient’s core disorder; limb two is seeking to give the patient the skills necessary to cope with situations that they had previously found difficult or stressful but without attempting to change the core disorder; limb three is management focused on managing the patient’s environment so that conflict in situations is minimised. This includes management in the hospital when the patient is on leave from the hospital and when the patient is in the community; “this neither alters the core disorder nor gives skills to the patient.””

While Brady’s defenders sought to disregard such things as nursing care and the building of a therapeutic relationship Brady as constituting “treatment”, the Tribunal ultimately disagreed, and adopted a much wider definition of treatment which was not confined purely to medical concepts of treatment.

The Tribunal therefore concluded, after 115 pages of argument and consideration of all the available evidence, that “it has been demonstrated by this evidence that it is necessary in the interests of his own health and safety that he be detained in hospital for treatment and that appropriate treatment is available.”

Brady did not, therefore return to prison.

While the findings of this Tribunal did not particularly contribute to case law regarding treatment, if nothing else, the publication of the Tribunal’s findings gives an insight into the workings of Tribunals which are generally invisible to the general public.

Friday, 21 February 2014

Compulsion in the Community: the Ethics of Community Treatment Orders

A couple of days ago I did a session on Community Treatment Orders for our local AMHP course cohort. We had an interesting discussion about the ethics of CTO’s in the context of decision making when an AMHP is asked to endorse an application for a CTO or an extension to a CTO. This post is a response to that discussion.

Supervised Community Treatment, as it is also known, was introduced by the Mental Health Act 2007, which amended the 1983 Act. The Code of Practice (25.2) states that: “The purpose of SCT 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.”

People on CTO’s are subject to a range of conditions. The basic ones are to accept treatment, especially medication, and to attend appointments with their care coordinator, psychiatrist, and other professionals. They can also be required to live at a certain place, and then there can be many other conditions. For example, I have worked with a few patients with eating disorders where a condition of their CTO was to maintain a certain weight.

CTO’s have teeth. A failure to comply with a condition can result in a recall to hospital, and even a revocation of the CTO, which actually means that the CTO reverts to detention in hospital under Sec.3 MHA.

The idea, then, of compulsion in the community, of having wide ranging powers to define what someone can and can’t do in their life, with the power to enforce compliance and effectively punish transgression, can understandably make AMHP’s and social workers, with their basic values of service user empowerment and self determination, feel somewhat uncomfortable. Can “recovery” have any real value if it is done against the will of the patient?

The latest annual report on Detentions under the MHA, produced by the Health and Social Care Information Centre, which is part of the Government Statistical Service, provided statistics on the current use of CTO’s.

The report notes that “there were 4,647 CTOs made during 2012/13, an increase of 427 (10 per cent) since last year”. The report also notes that “in spite of larger numbers of CTOs being ended each year, the number issued continually outweigh this, resulting in an increasing number in place at the end of each reporting period.”

There is no doubt that, while being a fairly recent addition to the powers under the MHA, it is very popular with psychiatrists, who are the applicants for CTO’s.

There would be no problem with this if CTO’s did indeed “help patients to maintain stable mental health outside hospital and to promote recovery”, but such evidence as there is so far has been somewhat equivocal.

In March 2013, the OCTET study on CTO’s was published. The research selected detained patients with a diagnosis of psychosis. The total sample consisted of 333. Half the sample (166) were discharged on a CTO and the other half (167) were made subject to extended Sec.17 leave. Sec.17 leave is a process whereby a patient is not formally discharged from detention under Sec.3 Mental Health Act, but allowed out of the hospital on leave. They can be recalled at any time, with little formality.

The object of the research was to see if CTO’s reduced readmission. They monitored the samples 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.”

The message from this research seemed to be unequivocal: CTO’s don’t work, and cannot therefore be justified ethically.

However, I think there are problems with this research, which I’ve commented on previously on this blog, so I am not convinced that the case for CTO’s has been demolished.

In October 2013, NIHR School for Social Care Research & the University of Brighton published a piece of largely qualitative research on service user and practitioner experiences (An Exploration of Service User and Practitioner Experiences of Community Treatment Orders ).

The study found that 4 main themes emerged from interviews with service users and professionals on their experiences:
  • The CTO provides a legal recognition of the need for care;
  • The care is defined as predominantly medical;
  • The CTO provides a structure and containment for the ‘right’ Service User;
  • There is ambivalence surrounding the power and conditions of the CTO.
A fair degree of ambivalence was expressed by AMHP’s and other professionals. There was also a degree of ambivalence expressed by the subjects of CTO’s. However, nearest relatives were positive about CTO’s. The research found that:

“What many NRs valued about the CTO was that it enabled their relative to be admitted to hospital more quickly and without having to go through a new assessment under the Act. Many NRs felt that the CTO had made a positive impact on their own relationship to services and that communication between their relative’s care team and themselves had improved.”

I’ve been involved as an AMHP in quite a few CTO’s now. For the record, at the time of writing I have endorsed 14 CTO’s, 12 CTO extensions, and 5 revocations.

Perhaps not surprisingly, very few service users in my experience have objected to a CTO being made. After all, if they are told that they can be discharged from hospital providing they agree to being made subject to a CTO, they are unlikely to disagree.

But my experience has often been that service users see being subject to a CTO as a positive experience. In one recent interview for an extension of the CTO after the initial 6 month period, the service user was frightened that I might not extend it.

For her, life prior to being on a CTO had been chaotic and miserable, with the loss of her job and her child, extended periods of homelessness, living in abject poverty and being vulnerable to exploitation. Since being discharged on a CTO, she had acquired a permanent home, her mind was clear, and she was actually happy and content. She did not want to risk losing that.

Another service user, who remained on a CTO for 2 years, was always very clear when the time came to consider discharge or extension, that he was very happy with being on a CTO, as he saw it as comforting, knowing that he would receive ongoing supervision and support.

In fact, this produced a bizarre situation in a Mental Health Tribunal, which had automatically been convened following an extension. Although he had not wanted to attend the Tribunal, he nevertheless requested legal representation, as was his right. The patient had then instructed the solicitor to request that the CTO should remain in force. This resulted in a Tribunal attended by the psychiatrist, myself and the patient’s solicitor, all of whom unanimously praised the effectiveness of the CTO and the patient’s contentment with its benefits.

Those concerned about the medicalisation of community care might take heart from the pilot project currently running in Norfolk & Suffolk Foundation Trust (NSFT), whereby Miles France is the first ever social worker to act as an Approved Clinician and Responsible Clinician. His responsibility is as an RC making applications for, and reviewing CTO’s. He is able to apply a social perspective to this process. Indications so far are that this pilot is succeeding in keeping people out of hospital and maintaining them in the community.

While AMHP’s may nevertheless feel that there is a conflict between their social care values and the concept of compulsion inherent in CTO’s, there is another way of looking at this.

What is better? For someone with a severe and enduring mental illness to have an endless cycle of acute hospital admission, recovery and discharge, followed by refusing treatment, deterioration in functioning and consequent compulsory admission, with the damage it can do to relationships with family, friends, employers and loved ones, or to impose a modest degree of compulsion to ensure that the patient accepts treatment, but can then live happily and with relatively little interference in their own home?

There is even the argument that AMHP’s and other professionals have a duty of care to ensure the health and safety of vulnerable people. That duty of care has long been embodied in the powers and duties under the MHA to detain people in hospital for assessment and treatment. Why should the same duty of care not apply to maintaining people in the community?

Tuesday, 21 January 2014

Displacing the Nearest Relative

Not the right way to displace the nearest relative
The Mental Health Act 1959 first introduced the concept, role and statutory rights and duties of the Nearest Relative as applied to patients subject to the Act. The 1983 Act and the 2007 Act hardly made any changes. I have discussed the role of the Nearest Relative in a number of previous posts (just look up the Nearest Relative tag on the Blog).

In certain circumstances, the NR under the Mental Health Act can be displaced, and replaced with an acting NR.

The Code of Practice states (Para 8.6):
“An acting nearest relative can be appointed by the county court on the grounds that:
  • the nearest relative is incapable of acting as such because of illness or mental disorder;
  • the nearest relative has objected unreasonably to an application for admission for treatment or a guardianship application;
  • the nearest relative has exercised the power to discharge a patient without due regard to the patient’s health or wellbeing or the safety of the public;
  • the nearest relative is otherwise not a suitable person to act as such; or
  • the patient has no nearest relative within the meaning of the Act, or it is not reasonably practicable to ascertain whether the patient has a nearest relative or who that nearest relative is.”
I was recently asked by an AMHP: Is there any guidance to the practicalities of executing the role of acting nearest relative for professionals?

This got me thinking. And searching. While displacing a patient’s NR and appointing an acting NR is not a very common procedure, it happens often enough that all local authorities have detailed written procedures for how AMHP’s may displace nearest relatives. However, none of them appear to give written guidance on exactly how an individual appointed to take on that role should discharge that duty.

The Code of Practice has nothing to say about how someone appointed to act as a nearest relative should act, and neither does the Reference Guide. The MHA itself makes the only reference to specific duties, and this is in Sec.116.

Sec.116(1) states:
“Where a patient to whom this section applies is admitted to a hospital ... the authority shall arrange for visits to be made to him on behalf of the authority, and shall take such other steps in relation to the patient while in the hospital as would be expected to be taken by his parents.”

Sec.116(2) defines to whom this section applies. It predominantly applies to children and young people, but it also includes “(c) a person the functions of whose nearest relative under this Act are for the time being transferred to a local social services authority.”

Richard Jones in the Mental Health Act Manual has little to add to the bare words of the MHA. However, David Hewitt, the author of The Nearest Relative Handbook, in an interesting and informative lecture I attended at a North West & North Wales AMHP Conference in 2013, observed that the acting nearest relative “must be treated as if they were the substantive nearest relative”. He interprets this to mean that they should exercise all the nearest relative rights, interestingly including the right to delegate nearest relative status.

David Hewitt, in The Nearest Relative Handbook, points out that to act as a patient’s representative is not the identified role of the NR. This means that the local authority appointed acting NR is a distinct role from that of the Independent Mental Health Advocate (IMHA). He acknowledges that the role of the acting NR is ill-defined, but also points out that this is also the case for a normal NR.

The NR has some wide ranging powers and duties. These include the right to be consulted regarding decisions being made by professionals concerning the patient, the right to make an application in their own right under Sec.2, 3, 4 or 7 MHA, and the right to request that an AMHP assess the patient under Sec.13(4) MHA.

If the acting NR is an AMHP employed by either the local authority or the local MH Trust, it is actually quite difficult to see how they might comfortably exercise some of these powers and functions.

Indeed, David Hewitt points out that there ais considerable scope for conflicts to arise with the role of the AMHP, the role of the IMHA, the wider advocacy role, and with the role of the Director of Adult Services. He has suggested that possible solutions to these conflicts could be by neighbouring local authorities having reciprocal arrangements to provide this role, or even to use some sort of external independent provider.

It seems to me that this is an issue that local authorities and Trusts need to address.

Saturday, 4 January 2014

AM v SLAM: How to Decide between the Mental Capacity Act and the Mental Health Act

For some time I’ve been trying to get my head round the implications of the case of AM v South London & Maudsley NHSFoundation Trust (SLAM) and the Secretary of State for Health [2013] UKUT 0365(AAC), as it appears to both clarify and complicate the decision making process that an AMHP, a hospital or a Best Interests Assessor has to make when deciding between the Mental Health Act and the Mental Capacity Act.

The notorious Bournewood case in 1997, in which a mentally incapacitated man was held in a psychiatric hospital without any formal detention under the Mental Health Act, was one of the factors that led to the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards. But the MCA has never actually satisfactorily resolved the ethical and legal issues surrounding the keeping of a complaint mentally incapacitated person in hospital.

The case of GJ v. A Foundation Trust in 2009 provided some clear guidelines concerning when to use the MHA and when to use the MCA, but the same Judge (Mr Justice Charles), in AM v SLAM, has now produced new guidelines.

Mr Justice Charles recently considered (well, in August 2013) the case of AM. AM was a 78 year old woman living with her daughter. The local mental health services were concerned about her wellbeing, and her daughter was preventing an assessment. An AMHP consequently obtained a Sec.135(1) warrant, and AM was admitted to hospital under Sec.2 MHA.

AM remained under Sec.2 MHA while an application was made for her daughter to be displaced as Nearest Relative. Two Tribunals considered the case, and both upheld her continuing detention. There was a consequent appeal against the second decision.

It was being argued on AM’s behalf that her stay in hospital could be covered by Sec.5 of the Mental Capacity Act, and that an authorisation under the Deprivation of Liberty Safeguards (DOLS) could be issued if it was considered that there was a deprivation of liberty.

The Judge had previously found in GJ v. A Foundation Trust that when there was a choice between the MCA and the MHA, then the MHA had primacy. My own view as an AMHP was that this was appropriate, as the MHA provided more legal safeguards, for instance, the right to appeal against detention, and the right to automatic referrals to a Tribunal if detention continued.

However, AM v SLAM has essentially displaced this judgment, and goes into extensive detail on how to decide between the MCA and the MHA in a range of different circumstances.

The judgment places all people who may be being considered for detention under Sec.2 or Sec.3 MHA into four categories. These are:
“i) The compliant capacitated.
ii) The compliant incapacitated.
iii) The non-compliant capacitated.
iv) The non-compliant incapacitated.”

The Judge goes on to state that:
“i) the MCA cannot apply in respect of any matter which the relevant person has the capacity to decide for himself or herself,
ii) a person with the capacity to do so can consent to a deprivation of his or her liberty, and
iii) a person with the relevant capacity who is refusing to be admitted to hospital or is demanding to leave hospital (so a category (iii) person) can only be detained there pursuant to the MHA.”

It is the view of the Judge that the entire process of deciding between the MCA or the MHA hinges on S.131 MHA – informal admission to hospital. The Judge states: “The application of s.131 MHA and ss.5 and 6 of the MCA to the assessment and treatment of a compliant incapacitated patient work together.” Here, the crucial factor is whether or not the patient has capacity.

The judgment goes on to outline the three stages in the decision making process:

1. Is there a need to admit the patient? And if so, does the patient have the capacity to consent to informal admission under S.131 MHA?
2. Can the hospital rely on the MCA alone to assess and treat the patient?
3.  If the MCA could be used, “How should the existence of a choice between reliance on the MHA and the MCA and its DOLS be taken into account?”

The Judge considers S.16A MCA and paragraph 17 of Schedule A1 to the MCA, relating to a patient who is considered to be “ineligible to be deprived of his liberty”. Essentially the judgment is saying that the MCA/DOLS can only apply to categories ii) & iv), so that in category i) one would rely on S.131 MHA, and for category iii) one would consider detention under S.2 or S.3.

I have attempted to visualise some of this process in the form of a flow chart:
Having reached a point in the assessment process when it can be considered that MCA/DOLS may apply, that is not yet the end. It is still necessary to consider whether, even so, it is more appropriate to use the powers of the MHA.
AM’s representatives argued that in her case MCA/DOLS should be used, but the Judge made it clear that “the correct position is that there may be cases in which a compliant incapacitated person may properly and lawfully be admitted, assessed or treated and detained under Part II MHA when he or she could be assessed or treated pursuant to s. 131 MHA and ss 5 and 6 MCA and be the subject of the DOLS.”
He points out that “examples of circumstances when this will be the case are found in paragraph 4.21 of the MHA Code of Practice and paragraph 4.48 of the Code of Practice to Supplement the Mental Capacity Act Code of Practice.”
To save you the onerous task of looking up these references, here they are.
Para 4.21 of the MHA CoP gives the following examples of when the MCA is not appropriate:
“• the patient’s lack of capacity to consent is fluctuating or temporary and the patient is not expected to consent when they regain capacity. This may be particularly relevant to patients having acute psychotic, manic or depressive episodes;
• a degree of restraint needs to be used which is justified by the risk to other people but which is not permissible under the MCA because, exceptionally, it cannot be said to be proportionate to the risk to the patient personally; and
• there is some other specific identifiable risk that the person might not receive the treatment they need if the MCA is relied on and that either the person or others might potentially suffer harm as a result.”
Para 4.48 of the DOLS CoP basically repeats the MHA CoP guidance:
“Even where a person does not object and a deprivation of liberty authorisation is possible, it should not be assumed that such an authorisation is invariably the correct course. There may be other factors that suggest that the Mental Health Act 1983 should be used (for example, where it is thought likely that the person will recover relevant capacity and will then refuse to consent to treatment, or where it is important for the hospital managers to have a formal power to retake a person who goes absent without leave).”
The Judge suggests that there will be a need to take “a fact sensitive approach, having regard to all the relevant circumstances, to the determination of the “necessity test” and thus in the search for and identification of the least restrictive way of best achieving the proposed assessment or treatment”. This will need to include “the practical / actual availability of the MCA regime”.
Is that all clear?
Mills & Reeve’s helpful analysis of this case may be able to elucidate. They suggest:
“When applying the “necessity test”, the decision maker is looking for the alternative that best achieves the objective of assessment or treatment in the least restrictive way, whether this is under ss2 or 3 MHA. This requires consideration of the MCA/DOLS against the MHA detention to ensure that deprivation of liberty is lawful and governed by a statutory regime.
The decision maker needs to consider the theoretical and practical availability of the MCA/DOLS authorisation, as well as the overall impact of each statutory regime in best achieving the desired outcome.”
Overall, I’m not sure whether this Judgment helps or hinders an AMHP, hospital or other decision maker, in reaching a decision about whether to use the MCA or the MHA in these circumstances. It still seems to boil down to a matter of individual professional judgment.

Tuesday, 31 December 2013

Let’s Play Big Society Jenga!

For those unfamiliar with the game of Jenga, it consists of a tower of wooden blocks. During the game, players take turns to remove a block from this tower and balance it on the top. The structure becomes increasingly unstable as the blocks supporting the structure from lower down are removed.

The Coalition Government are currently playing their very own version of this game, which I call Big Society Jenga. They are seeing how many basic elements of the structure that supports British Society can be removed before the entire edifice collapses.

Let’s take out Disability Living Allowance, which permits disabled people, who are unable to work, to have something approaching a decent quality of life, and see what happens!

Nothing! No wobbles yet!

Let’s penalise poor and disabled people in social housing for having too many bedrooms!

Look! Nothing’s happened. The tower’s still standing!

Let’s impose ridiculous and perverse capability for work tests! Then we can reduce the income to sick people, who can’t actually get into work in any case!

Still nothing! This is a great game!

What’s next? I know, we’ll reorganise the NHS and in the process reduce funding to make it even more difficult for it to function! We’ll make it so that they have to sack doctors and nurses, reduce the pay of NHS staff and at the same time give them higher work loads. That should be a good one!

Hmmm. Extra pressures on A&E. More old and sick people dying. Wobbling a bit. Still, let’s impose a few targets. That should sort it. And the old and sick can always be looked after by the local authorities.

That gives me an idea! Let’s reduce funding to local authorities!

Well, the tower hasn’t fallen down yet! It’s a bit shaky, don’t breathe too closely to it.

We could always divert attention from the instability by demonising those dreadful economic migrants and health tourists. Everyone hates them any way. Easy target.

The object of this game is to undermine Society. You win if the entire structure doesn’t collapse before the General Election in 2015. And even if it does collapse, then you win anyway, because you can blame it on the previous evil Labour Government, and then privatise what’s left.

Happy New Year!

Wednesday, 18 December 2013

Essential Christmas Gifts for Mentalists!

The Masked AMHP™ produced some indispensable products for AMHP’s a couple of years ago. He’s now introducing a range especially for people with mental health issues! He’s called it the Mentalist Collection.

AMHP Detector
Carry this handy device with you at all times, and you need no longer live in fear of that unexpected knock on the door heralding the arrival of an evil AMHP and his or her Sec.12 doctor henchmen. It will detect an AMHP in the vicinity anywhere within 100 metres, and give you those essential extra minutes in order to make your escape through the back door.
Disappearing ink

Left it a bit late to get away from that pesky interfering AMHP? Well, there’s another crafty ruse! When they’re about to fill in those pink forms, show you’re cooperating by giving them this innocent looking pen. What they don’t know is that within 2 hours the ink will evaporate leaving no trace! So by the time you get to the hospital, they’ll be presented with nothing but blank forms!

Escape kit

So, despite your AMHP detector and disappearing ink, they’ve still somehow managed to get you into hospital. Don’t despair! This amazing lightweight rope ladder folds away and can be concealed inside a toothbrush holder! Then, after lights out, it’s a simple matter to make a clean getaway through your bedroom window!

Tin foil hat kit

Everyone knows that the ESA and GCHQ are monitoring the entire nation’s thoughts with undetectable microwaves. A great way to protect yourself from this intrusion is with a tin foil hat! This kit contains everything you need to make your own! Will also prevent aliens from employing their nefarious mind control techniques!

Electromagnetic mind shield

Concerned that even a tin foil hat may not protect you from external thought wave interference? This unobtrusive headgear is guaranteed not only to shield your brain from any remote sensing equipment, but will also stop your thoughts from being broadcast on local TV stations and prevent persons unknown from taking thoughts out of your head! Comes in three colours: Men-in Black, Paranoid Paisley, and Lucy-in-the-Sky Tangerine!

Pull Yourself Together and Snap Out Of It DVD

You know the saying “There’s always someone else worse off than yourself?” Well, the Masked AMHP Blog team have tracked that person down and have interviewed him for a special mood boosting DVD!

Feeling down in the dumps? Watching this DVD is guaranteed to cheer you up! There really is someone worse off than yourself!

Comes with a special bonus DVD consisting of someone who’s never had any mental health problems saying motivational things designed to make you feel better! Examples include such classic lines as:
  • “It’s like you’re not even trying.”
  • “Try having a nice long bath.”
  • “Go for a walk.”
  • “There’s no such thing as mental illness.”
  • “It’s all in the mind.”
  • “You’ve no reason to feel depressed.”
  • “Try thinking positively.”
  • “It’s as if you don’t want to get better.”
  • “Try smiling once in a while.”
  • And of course the classic “Just snap out of it!”
Please note: The Masked AMHP has now gone for a nice long lie down in a darkened room. He might then go for a walk in the countryside, followed a long bath surrounded by scented candles. It is hoped that normal service will be resumed on the Blog after Christmas.