DLM Module 15 PDF

Mental disorders, which include mental illnesses, adjustment disorders, substance misuse disorder, and other conditions in which there is a disturbance in mental state and functioning, are common and affect people across the entire age-range from childhood to the elderly. The classification of menta...

Mental disorders, which include mental illnesses, adjustment disorders, substance misuse disorder, and other conditions in which there is a disturbance in mental state and functioning, are common and affect people across the entire age-range from childhood to the elderly. The classification of mental disorders is complex and beyond the scope of this module. Further information about the diverse range of disorders which may be encountered by a healthcare professional can be found in information provided by the Royal College of Psychiatrists (RCPsych) here. People with intellectual or learning disabilities are over-represented in the criminal justice system, both in prison and police custody. This was addressed in the Bradley Report (2009) https://webarchive.nationalarchives.gov.uk/20130105193845/http://www.dh .gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh _098698.pdf. A study in 2014 of 200 detainees in police custody in SE London, screened for a number of issues, found that 6.7% had a learning disability, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3879086/#B2. In general, the population prevalence is said to be about 2% and further reading and information can be found here: http://www.bild.org.uk/resources/factsheets/ The majority of patients suffering from a mental disorder are treated in the community by a GP or other healthcare professional with relevant training and expertise. However, in the community there may be many people who also have a mental disorder, which has not caused them to seek medical advice and remains undiagnosed. Patients with more complex problems may be referred to secondary care or specialist services and may have care provided in the community by a multidisciplinary team including psychiatrists, community psychiatric nurses (CPN), social workers, psychologists, occupational therapists and support staff. A small minority of patients with the most complex problems may require care and treatment in hospital. Whilst many patients will be admitted to hospital voluntarily (sometimes referred to as an ‘informal’ admission), data from an NHS confederation report in 2016 showed that 51% of inpatients were subject to admission under the Mental Health Act, 1983. https://cdn.asp.events/CLIENT_AEO_6F6DAB1E_5056_B739_5434FCD3 0E5F9143/sites/AEO/media/Heads%20Up!/MHN-key-facts-and-trendsfactsheet_Fs1356_3_WEB.pdf Compulsory admission and treatment (‘section’) may be required under the relevant legislation: England and Wales: Mental Health Act (1983) https://www.legislation.gov.uk/ukpga/1983/20/contents and 2007 https://www.legislation.gov.uk/ukpga/2007/12/contents Northern Ireland: The Mental Health (Northern Ireland) Order, 1986 or http://www.legislation.gov.uk/nisi/1986/595 Scotland: Mental Health (Care and Treatment) (Scotland) Act 2003 http://www.legislation.gov.uk/asp/2003/13/contents Therefore, people with mental disorders (and when seen by health care professionals as patients) may be encountered in a variety of settings including primary and secondary care, in police custody or in the community. From the Syllabus Candidates should have an understanding of the applicable mental health law (including mental capacity and related legislation) and Codes of Practice in the UK jurisdictions. Examples of question topics might include: detention under mental health acts (legislation) detention of mentally incapacitated adults community treatment orders treatment without consent vulnerable adults To provide a good understanding of common mental disorders and the legislation relating to the care of people with mental disorder and intellectual disability in England, Wales, Scotland and Northern Ireland. By the end of this module a student will acquire knowledge and understanding of, detention under mental health law compulsory admission to hospital for assessment/treatment under mental health legislation in the UK police powers relating to sections 135 & 136 MHA, 1983, and equivalent in Northern Ireland and Scotland codes of practice and medical treatment covered by the MHA interplay between MHA & Mental Capacity Act (MCA) The Mental Health Act 1983 is the main piece of legislation that covers the assessment, treatment and rights of people with a mental disorder in England and Wales. The Act is divided into 10 Parts and 149 sections A number of important amendments were made in the 2007 Act and these include: Changed definition of ‘mental disorder ‘to “any disorder or disability of the mind” Although dependence on alcohol or drugs are recognised disorders in major classification systems, they are excluded within the meaning of mental disorder in the Mental Health Act Change in Professional Roles: Approved Clinician (AC) a person approved by the Secretary of State (in relation to England) or by the Welsh Ministers (in relation to Wales) to act as an approved clinician for the purposes of the MHA is a healthcare professional who is competent to become responsible for the treatment of mentally disordered people compulsorily detained under the Act. Until the 2007 amendments, ACs would almost exclusively have been senior psychiatrists, but other professionals, such as social workers, clinical psychologists and nurse specialists, are able to take on the role. ACs must attend a recognised training course prior to being granted AC status by the secretary of state (which is normally delegated to regional panels). Further details can be found https://www.rcpsych.ac.uk/members/england/wes t-midlands/conferences-training-events/events/trainingcourses Responsible Clinician (RC) A RC is the AC with overall responsibility for care and treatment of patents being assessed/treated under the MHA Approved Mental Health Professionals (AMHP) Previously known as an Approved Social Worker (ASW) Perform a broad range of tasks under the MHA including coordinating Mental Health Act Assessments and making applications for compulsory detention Although the majority of AMHPs are social workers, this role may be undertaken by other professionals such as nurses and occupational therapists following recognised training Guiding Principles: There are 5 Guiding Principles of the Act which should be considered when making decisions about possible detention. These are set out in the Code of Practice and include: Least restrictive option and maximising independence Where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. Wherever possible a patient’s independence should be encouraged and supported with a focus on promoting recovery wherever possible. Empowerment and involvement Patients should be fully involved in decisions about care, support and treatment. The views of families, carers and others, if appropriate, should be fully considered when taking decisions. Where decisions are taken which are contradictory to views expressed, professionals should explain the reasons for this. Respect and dignity Patients, their families and carers should be treated with respect and dignity and listened to by professionals. Purpose and effectiveness Decisions about care and treatment should be appropriate to the patient, with clear therapeutic aims, promote recovery and should be performed to current national guidelines and/or current, available best practice guidelines. Efficiency and equity Providers, commissioners and other relevant organisations should work together to ensure that the quality of commissioning and provision of mental healthcare services are of high quality and are given equal priority to physical health and social care services. All relevant services should work together to facilitate timely, safe and supportive discharge from detention. These Principles need to be balanced in different ways according to individual circumstances. Part I – Application of the Act Part I of the Act includes the definition of mental disorder (amended by the 2007 Act): “Any disorder or disability of the mind” This should be determined in accordance with good clinical practice and accepted standards. The previous definitions of “mental impairment” and “psychopathic disorder” have been omitted. Mental disorder in itself is not sufficient to warrant detention under the Act. Compulsory measures are permitted only where specific criteria are met (see below). Dependence on alcohol or drugs (in isolation) is not considered to be a disorder or disability of the mind for the purposes of the definition of mental disorder. If alcohol or drug dependence is accompanied by a mental disorder (and the relevant criteria are met) then it is possible for a patient to be subject to the Act. Disorders related to alcohol/ drug dependence remain mental disorders for the purpose of the Act (e.g. a patient presenting with a withdrawal state with delirium or associated psychotic disorder and acute intoxication may fulfil the criteria for compulsory detention/treatment under the MHA). Intellectual (learning) disabilities (LD) and Autistic Spectrum Disorders (ASD) are forms of mental disorder as defined in the Act. However, those with LD and no other form of mental disorder may not be detained under the Act unless they also demonstrate “abnormally aggressive or seriously irresponsible conduct”. (This does NOT apply to detention for assessment under Section 2 of the Act). It is possible for someone with ASD alone to be detained with no other mental disorder, provided the relevant criteria are met. The Act does not distinguish between other forms of mental disorder and therefore applies to those with a Personality Disorder. Prior to the 2007 Act, patients with mental impairment or psychopathic disorder could not be detained in hospital for treatment unless it could be stated that medical treatment was likely to alleviate or prevent a deterioration of their condition. This has now changed to a test of appropriate treatment being available. Appropriate treatment can include ward leave and psychological therapies. Part II - Compulsory Admission to Hospital & Guardianship (civil sections): Part II of the Act defines inter alia: the statutory grounds for compulsory detention of a patient either as an emergency or for assessment or treatment the statutory process of making an application under the MHA and the general provisions for making medical recommendations the statutory grounds for Guardianship, Leave of Absence from hospital and Supervised Community Treatment defines “relative” and “nearest relative” Section 2: Compulsory Detention for Assessment: person has mental disorder (nature or degree) which warrants detention in hospital for assessment AND detention is in the interests of their own health or safety or the protection of others. Section 3: Compulsory Assessment for Treatment: person has mental disorder (nature or degree) which makes it appropriate for them to receive treatment in hospital, it is necessary for their health or safety or the safety of others to receive such treatment AND it cannot be provided unless the patient is detained. Appropriate medical treatment must also be available. Although unusual, a ‘nearest relative’ can also make an application for a person to be sectioned or placed under guardianship. Detention under Section 2 or 3 requires assessment by: two medical practitioners (one of whom must be Section 12 approved) and an Approved Mental Health Practitioner. The medical practitioners provide the medical recommendations for the detention The AMHP makes the application on receipt of the two recommendations. Section 4: Admission for Assessment in Cases of Emergency: allows for emergency admission and requires a recommendation from only one medical practitioner. The emergency application ceases to have effect after 72 hours and within this time frame a full mental health act assessment should be completed, and a decision should be made whether to detain the patient under another section (e.g. section 2 or 3) or to discharge the patient from compulsory detention. Medical Recommendations section 12: There is a requirement for two medical recommendations before a patient can be compulsorily detained (e.g. under sections 2 or 3), and one medical practitioner should be approved under section 12 which makes provision for the Secretary of State to approve practitioners “as having special experience in the diagnosis or treatment of mental disorder”. Relevant legislation is section 12(2) Mental Health Act 1983 Supervised Community Treatment: section 17A of the MHA provides for Supervise Community Treatment or Community Treatment Orders (CTO). A patient subject to Section 3 of the MHA can be discharged to the community by the Responsible Clinician subject to being liable to recall. Such an Order is known as a Community Treatment Order and must be made by the Responsible Clinician and an AMHP. A CTO may specify conditions with which the patient must comply. These may include making themselves available for assessment, taking medication, and where the patient may reside (amongst others). The criteria for a CTO include: that the patient is suffering from a mental disorder of nature or degree which makes it appropriate for him to receive medical treatment, AND it is necessary for his health or safety or the protection of others that he receive such treatment AND that subject to being liable to be recalled, such treatment can be provided without continued detention in hospital AND that appropriate medical treatment is available. It is possible that a patient subject to a Community Treatment Order will be seen by healthcare professionals in a variety of settings (e.g. general practice or in police custody). Such a patient is already subject to the Mental Health Act (so another MHA assessment is not required). If hospital admission is deemed necessary, the patient may agree to admission. If not, the Responsible Clinician (or his/her nominated deputy) should be contacted to consider whether there are grounds to recall the patient to hospital. Once recalled to hospital, the Responsible Clinician and AMHP have 72 hours to assess whether the CTO should be revoked. If revoked the patient remains subject to the provisions of Section 3 of the Mental Health Act. Relative and Nearest Relative section 26 provides definitions of Relative and Nearest Relative. The Act recognises the relationships given in the table below as Relatives, and the Nearest Relative is the surviving relative who appears highest in this list: husband or wife or civil partner son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece. A cohabitee who lives with the patient ‘as’ husband/wife/civil partner, and has done so for six months or more, is treated as being the husband/wife/civil partner (s26(6)). This person could only be NR if there is no marriage/civil partnership, or the husband etc is disqualified (see below). The patient can apply under s29 to displace his nearest relative on five grounds, including the ground that the NR is unsuitable. The new ground is also available to AMHPs and others who could previously apply for displacement. Nearest Relatives have particular functions in respect of the Mental Health Act which include the right to make an application for compulsory admission to hospital; the right to request discharge from compulsory detention and the right to be informed or consulted prior to an application being made by an AMHP for admission or detention under s.3. Part III - Patients Concerned with Criminal Proceedings or Under Sentence (‘forensic’ or ‘criminal’ sections) The provisions within Part III allow for the admission to hospital of persons involved in criminal proceedings (during the remand period, post-conviction, at the time of sentencing or during a prison sentence). Whilst the forensic physician, nurse or paramedic cannot make the recommendation, (see below), they might help identify the need, and about which the Court can be made aware. s35 allows for a remand to hospital for a report on the accused’s mental condition; that is for an assessment leading to a report. This can be made by a Crown Court or magistrates’ court, subject to the provisions within the subsections s36 allows for the remand of an accused person to hospital for treatment, by the Crown Court Home Office Restriction Orders ensure decisions on trial leave; hospital transfer or discharge can only be made with the consent of the Home Secretary. (N.B. - a "prison hospital" does not constitute a "hospital" in MHA terms) Part IV - Consent to Treatment Part IV specifies: the conditions to be fulfilled before treatment can be given against a patient's wishes when detained under the Act when and which treatments require an assessment by a Second Opinion Approved Doctor (SOAD). SOADs are appointed by the Care Quality Commission (which has taken on the responsibility from the Mental Health Act Commission). the provisions for the administration of ECT to a detained patient, for both capacitous and incapacitous patients. In summary a capacitous detained patient cannot be given ECT without consent unless they fulfil criteria which deem it an “emergency”. Incapacitous patients require Second Opinions to be sought and consideration of advance directives is included. Part V - Mental Health Review Tribunals (MHRT). Mental Health Review Tribunals (MHRT) comprise a lawyer, known as a Tribunal Judge, (in the case of Home Office restricted patients, a circuit judge or specially trained Queen’s Council (QCs)), an independent psychiatrist and a lay person. They review the detention of patients held under the Mental Health Act 1983 (except those under sections 4, 5(2), 35 & 36) Patients can apply for MHRT at specified times or are referred automatically and have the right to be represented by a lawyer of their own choice. MHRT can order the discharge of any patient. Patients detained under a Restricted Hospital Order (sections 37 & 41 of the Act) can be discharged absolutely or, more usually, conditionally. In the case of the latter they remain liable to be recalled to hospital for the duration of the Conditional Discharge. Part VI: Removal and Return of Patients Within UK etc Part VIII: Miscellaneous Functions of Local Authorities and the Secretary of State Part IX: Offences Part X: Miscellaneous and Supplementary SECTION 2: Length of detention: 28 days maximum Type of order: Assessment (or assessment followed by treatment) Persons implementing: Two medical recommendations - at least one Section 12 approved Application made by AMHP or Nearest Relative (NR). Reasons: Person is suffering from 1. mental disorder “of a nature or degree which warrants the detention of the patient in hospital for assessment” AND 2. is in the interests of the patient's own health or safety, or for the protection of other persons. Outcome: Patient (or NR on patient's behalf) has right of appeal to a Mental Health Review Tribunal within 14 days of admission and can be represented by a solicitor (legal aid available) Discharged: by Mental Health Tribunal by Hospital Managers by Responsible Clinician by Nearest Relative Allowed to expire; this is not good practice and can only legally be allowed to expire if, at midnight on the 28th day the patient’s condition improves sufficiently forthem no longer to require detention. If prior to that dateand time the patient no longer meets the criteria for continued detention, the RC should discharge the patient from detention and then the patient can leave oror stay informally. Detention renewed (usually under Section 3) Notes: Nearest Relative (if not making application) must be informed but cannot object to application being made. NR can be displaced if there is a good reason; see: J.T. v. THE UNITED KINGDOM - 26494/95 [2000] ECHR 133 (30 March 2000) http://www.bailii.org/eu/cases/ECHR/2000/133.html SECTION 3 Length of detention: 6 months maximum (but can be renewed) Type of order: Treatment Persons implementing: Two medical recommendations, at least one section 12 approved Application made by AMHP or Nearest Relative. Reasons: 1. 2. person must be suffering from mental disorder of nature or degree which makes it appropriate for person to receive medical treatment in a hospital and must be necessary in the interests of person’s health or safety, or for protection of other persons that he should receive such treatment and must be the case that the treatment cannot be provided without detention and 3. treatment must be available for the patient which is appropriate in his case taking into account the nature and degree of the mental disorder and all other circumstances of the case Outcome:Patient has right of appeal to a Mental Health Review Tribunal within 6 months of admission and once during each period for which detention is extended. Discharged: by Mental Health Review Tribunal by Hospital Managers by Responsible Clinician by Nearest Relative Allowed to expire; this is not good practice and can only legally be allowed to expire if, at midnight on the 28th day the patient’s condition improves sufficiently forthem no longer to require detention. If prior to that dateand time the patient no longer meets the criteria for continued detention, the RC should discharge the patient from detention and then the patient can leave oror stay informally. Responsible Clinician applies for renewal of Section for further 6 months, annually thereafter. Notes: Nearest Relative can be displaced by the court, see above. Patient can be on extended leave from hospital on Section 3 - but consideration should be given to the appropriateness of Supervised Community Treatment. SECTION 4 Length of detention: 72 hours maximum Type of order: Admission for assessment in cases of emergency Persons implementing: One medical recommendation, if practicable a doctor acquainted with the person. Application made by AMHP or (rarely) Nearest Relative. Reasons: 1. person suffering from a mental disorder and detention is in the interests of person's own health or safety, or for the protection of others. 2. doctor must state that admission is of urgent necessity and that delay in applying for a Section 2 would be undesirable. SECTION 135(1) Warrant to search for and remove patients Type of order: Assessment Persons implementing: AMHP must apply to a magistrate for a warrant Police Officer can then act on the warrant if accompanied by an AMHP and a medical practitioner Reasons: 1. person is believed to have a mental disorder and is not receiving proper care and it is necessary to gain access to their premises to remove them. Following entry to Person’s home: Patient can be removed to a Place of Safety if appropriate or kept there for assessment. The Code of Practice states that thought should be given to the place of safety prior to applying for a Section 135 warrant. Outcome: A MHA assessment should be undertaken in the place of safety to consider further detention (e.g. under Section 2 or 3) Discharged after further examination reveals detention no longer needed Discharged on expiry of 24 hours, or 36 hours if so authorised by a clinician. Notes: The Policing and Crime Act, 2017, has amended s135 of the MHA, (http://www.legislation.gov.uk/ukpga/2017/3/part/4/chapter/4/enacted) such that the person does not have to be removed, person has right to legal advice, but no right of Appeal against Section 135 order SECTION 136 N.B This is the revised s136, following a change in the legislation in the Policing and Crime Act, 2017 (Chapter 4, http://www.legislation.gov.uk/ukpga/2017/3/part/4/chapter/4/enacted) The new legislation states: In section 136 (mentally disordered persons found in public places), for subsection (1) substitute “(1)If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons— (a)remove the person to a place of safety within the meaning of section 135, or (b)if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety. (1A)The power of a constable under subsection(1) may be exercised where the mentally disordered person is at any place, other than— (a)any house, flat or room where that person, or any other person, is living, or (b)any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms. (1B)For the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.” (5)After subsection (1B) of that section (inserted by subsection (4) above) insert— “(1C)Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult— (a)a registered medical practitioner, (b)a registered nurse, (c)an approved mental health professional, or (d)a person of a description specified in regulations made by the Secretary of State.” (6)In subsection (2) of that section, for “removed to” substitute “removed to, or kept at,”. Therefore, in summary: Mentally disordered Person Length of detention: 24 hours maximum (previously 72 hours), but can be extended by a maximum of 12 hours (i.e. 36 hours total) Type of order: Assessment Persons implementing: Police Constable Reasons: Person appearing to be suffering from a mental disorder where removal to a place of safety is deemed necessary in the interests of that person or for the protection of others. The purpose is to ensure a MHA assessment by a medical practitioner and AMHP. Place of Safety: Locally agreed policies detailing these should be in place. A child, (i.e. under 18 years of age) is not to be taken to a police station, as it is not deemed a place of safety. Mental Health Act 1983 (Places of Safety) Regulations 2017 Significantly, a police station may never be used as a place of safety for anyone under 18, and the Places of Safety Regulations 2017 set out extremely onerous requirements which must be met before a police station may be used as a place of safety for an adult. The key requirements are that: the behaviour of the adult poses an imminent risk of serious injury or death to her/him, or to another person, (regulation 2(1)(a)(i)) because of that risk, no place of safety other than a police station in the relevant police area can reasonably be expected to detain the adult, ((regulation 2(1)(a)(ii)) and so far as is reasonably practicable, a healthcare professional will be present and available to the detained adult throughout the period in which s/he is detained at the police station ((regulations 2(1)(a)(iii) and 4(1)(b)).Examples of further requirements are as follows: One of a list of health professionals must be consulted before a decision is made to use a police station as a place of safety ((regulation 2(2)). The use of the police station as a place of safety must be authorised by an officer of the rank of inspector or above (regulation 2(1)(b)). During the use of the police station as a place of safety, the custody officer must (among other requirements) ensure that the welfare of the detained adult is checked by a healthcare professional at least once every thirty minutes, and any appropriate action is taken for her/his treatment and care (regulation 4(1)(a))The Guidance makes clear at paragraph 3.1 that: “…The expectation remains that, with limited exceptions, the person’s needs will most appropriately be met by taking them to a ‘health-based’ place of safety - a dedicated section 136 suite where they can be looked after by properly trained and qualified mental health and other medical professionals…” Outcome: Person to be assessed by a medical practitioner (ideally Section 12 approved)* and AMHP. Detention under another section (e.g. Section 2 or 3) or released from detention. Notes: Person has right to legal advice. * Whilst a s12 approved medical practitioner may be the ideal, if the first registered medical practitioner to assess the detainee is not s12 approved, and they decide that the detainee does not have a mental disorder, the detainee has to be released even though they may not have been assessed by an approved mental health professional. Mental health problems are commonplace in the community. Much of the workload, acute and chronic, in primary medical care is the result of mental illness and other mental disorders so it is scarcely surprising that mental health problems surface frequently in custody suites. Forensic practitioners will be all too aware of the frequency with which mental health diagnoses arise when histories are taken from detainees. When questioned about prescribed medications, a high percentage of those in custody disclose that they take prescribed antidepressants, benzodiazepines and hypnotics, or other psychotropic medication. PACE Code C https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/592547/pace-code-c-2017.pdf This is the ‘Code of Practice for the detention, treatment and questioning of persons by Police Officers’. Paragraph 9 covers the care and treatment of detained persons and states 9.5 ‘The custody officer must make sure a detainee receives appropriate clinical attention as soon as reasonably practicable if the person: ….. a. appears to be suffering from physical illness; or b. is injured; or c. appears to be suffering from a mental disorder; or d. appears to need clinical attention. The forensic practitioner should ask about their history, and undertake a holistic assessment of the detained person’s (DP’s) physical and mental health, as well as determine whether they are fit to be detained and/or fit to be interviewed. This involves appropriate consent being taken, addressing confidentiality issues, records being made, and necessary information being shared with the police. The 2007 Act also made amendments to the Mental Capacity Act 2005 (MCA). The main change was the Deprivation of Liberty Safeguards for a person in a hospital or care home who lacks capacity to consent to being there (and whose liberty may be deprived) Deprivation of liberty may occur through physical restraint, locked doors or through the use of medication, depending on individual circumstances. Further information can be found here The introduction of these MCA Deprivation of Liberty Safeguards (MCA DOLS) was in response to the 2004 European Court of Human Rights judgment (HL v United Kingdom (2004) 40 EHRR761. See http://www.bailii.org/eu/cases/ECHR/2004/720.html The case involved an adult man with severe autism and unable to speak, who had lived for more than 30 years in an NHS Hospital. He was then successfully placed with paid carers from 1994 to 1997. Following some behavioural issues at the day centre, which he attended, (he was admitted as an emergency to Bournewood Hospital, where he remained for nearly six months. His carers were unable to visit him for nearly five months. The European Court of Human Rights found that HL’s admission to and detention in hospital under the common law of necessity, amounted to a breach of article 5(1) ECHR (deprivation of liberty) and of article 5(4) (right to have lawfulness of detention reviewed by a court). In general, if an individual lacking mental capacity has a mental disorder which requires treatment (to which they do not or are unable to consent) then, provided that the patient meets the criteria for detention, the Mental Health Act should be used to provide appropriate care and treatment. It should be noted that there are plans to replace DoLS with Liberty Protection Safeguards, although at the time of writing this module, this has not been legislated for. Further information is available at: https://www.scie.org.uk/mca/dols/practice/lps https://www.hsj.co.uk/insight-and-influence/an-update-on-the-reform-ofdeprivation-of-liberty-safeguards/7024094.article Relevant Legislation: England & Wales Mental Capacity Act (2005) Scotland Adult with Incapacity Act 2000 Northern Ireland Mental Capacity (NI) Act (2016) – not yet in force Purpose To provide a legal framework for decision making where someone is unable to make a decision. Mental Capacity Act 2005 http://www.legislation.gov.uk/ukpga/2005/9/introduction Principle 1: ‘A person must be assumed to have capacity unless it is established that he lacks capacity.’ (section1(2)) Principle 2: ‘A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.’ (section1(3)) Principle 3: ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ (section 1(4)) Principle 4: ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.’ (section 1(5)) Principle 5: ‘Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.’ (section 1(6)) s2(1) ‘…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ As well as the detail of the act, further information is available in: The MCA Code of Practice (https://assets.publishing.service.gov.uk/government/uploads/system/up loads/attachment_data/file/497253/Mental-capacity-act-code-ofpractice.pdf) information from the Office The Social Care Institute of Excellence (link https://www.scie.org.uk/mca) The Office of the Public Guardian https://assets.publishing.service.gov.uk/government/uploads/system/upl oads/attachment_data/file/348440/OPG603-Health-care-workers-MCAdecisions.pdf The Act aims to provide a structured framework for making treatment decisions for patients who lack capacity Assessment by healthcare professionals will depend on a ‘best interests’ approach but taking into account the person’s views and, where appropriate, those of others close to him, or others able to provide information on his views and wishes Where decisions involve ‘serious medical treatment’ a requirement to instruct an Independent Mental Capacity Advocate (IMCA), where only paid carers are available to consult It also enables people to plan ahead for a time when they lack capacity – Personal Welfare Attorney & Advance decisions Deprivation of Liberty Safeguards (DoLS) are the extra safeguards when people in care homes and hospitals require to be restrained or restricted, for their safety, i.e. it has to be in their best interests. When the person is in a care home or hospital the application is made to the Local Authority. If the person is in another setting (location) the application is made to the Court of Protection. https://www.gov.uk/courts-tribunals/court-of-protection N.B. It is proposed that DoLS will be replaced by Liberty Protection Standards, as part of The Mental Capacity Amendment Bill, which is currently being considered by Parliament, (February 2019) Assessing Capacity Remembering, at all times, that: A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. A person is not to be treated as unable to make a decision merely because he makes an unwise decision Advance Decisions to Refuse Treatment Section 24-26 MCA 2005 Can only be made by competent persons over the age of 18 years Must specify the treatment being refused Life-sustaining treatment refusal must be in writing Can be withdrawn at any time by a person with capacity Become effective upon loss of capacityMust be valid and applicable to the treatment Not valid if: Withdrawn Person has conferred authority for that particular decision to a Healthcare & Welfare Attorney Person has done anything else clearly inconsistent with the ADRT Person has capacity Treatment is not what is specified Circumstances are not what is specified Reasonable grounds exist for considering circumstances exist which the person did not envisage at the time of making the ADRT Proxy Decision Makers A competent person can appoint a proxy to make welfare and healthcare decisions in the event they lose capacity in the future Must be registered by the Office of the Public Guardian The Court may appoint a Deputy to make decisions on behalf of an incompetent person Proxy decision makers make ‘best interest’ decisions Summary Northern Ireland The Mental Capacity (NI) Act 2016 is not yet in force. There is no Parliamentary or Assembly law. The terminology is “Advance Decision” There is no option for proxy healthcare decision makers Deprivation of Liberty Safeguards (DoLS) ‘Acid Test’ Is the person subject to continuous supervision and control? AND is the person free to leave? Definitions: Supervisory authority – the Local Authority Managing authority – the body with management responsibility (hospital or care home) Standard authorisation – issued by the Supervisory Authority. Maximum of 12 months Two assessors Age >18 years Mental health assessment – is there a mental disorder? Mental capacity assessment Eligibility No refusals Best interests Urgent authorisation – by the Managing Authority for a maximum of 7 days, 1 extension is permissible, but an application must have been made for standard authorisation. Key cases Cheshire West and Chester Council v P [2014] UKSC 19 https://www.supremecourt.uk/cases/uksc-2012-0068.html Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 (26 January 2017) http://www.bailii.org/ew/cases/EWCA/Civ/2017/31.h tml s178 of the Policing and Crime Act 2017 http://www.legislation.gov.uk/ukpga/2017/3/section/178/enacted Scotland: Adult with Incapacity Act 2000 Provides a framework for safeguarding the welfare and managing the finances for those aged 16 years and over, who lack capacity due to mental illness, learning disability, dementia or a related condition, or an inability to communicate. In the Act (https://www.legislation.gov.uk/asp/2000/4/section/1), s1 states; Incapacity = incapable of: Acting; or Making decisions; or Communicating decisions; or Understanding decisions; or Retaining the memory of decisions Roles and responsibilities Office of the Public Guardian Primarily relates to financial and property matters Welfare Guardianship Can make decisions about where a person lives as well as personal and medical matters. Local authorities have a duty under the AWI Act to supervise all welfare guardians and to visit both the guardian and the adult at regular intervals. LAs also have a duty to make an application for welfare guardianship where it is required and no one has made an application. Financial Guardianship - Part 6 of the Act allows for an application to be made to the court for: An intervention order authorising a person to take action, or make a decision, of which the adult is incapable. An order appointing a person or office holder as guardian in relation to the adult's property, financial affairs, and personal welfare. An order appointing a person or office holder in relation to a child who will become an adult (age 16) within three months, but such an order will not have effect until the person's 16th birthday. LAs have a duty to make application for financial guardianship where it is required and no one has made an application. Power of Attorney Authority given by an individual with capacity (the Granter) to another person(s), (the Attorney) to deal with aspects of the Granter’s affairs Can include financial/property and or personal welfare Welfare powers cannot be exercised until the Granter has lost capacity to make decisions A power of attorney document is completed detailing the powers which the Granter wishes the Attorney to have, and must be signed by the Granter. It is then certified by a solicitor or medical practitioner and must then be registered by the Office of the Public Guardian. Under the Act a number of public bodies are involved in the regulation and supervision of those authorised to make decisions on behalf of a person with incapacity, including the Office of the Public Guardian (Scotland), the Mental Welfare Commission for Scotland, the courts and local authorities. Decisions on intervention: a principle-based approach Determine whether or not the person lacks capacity Practitioners must be satisfied that treatment should be given Force should only be used if necessary – must be lawful and proportionate The common-law principle of necessity in emergency situations applies. Provides a framework for care, treatment and protection of those with a mental disorder Establishes systems to regulate the powers & duties of professionals 1986 Guide to the Order, 1992 Code, RQIA (GAIN) guidance Applies to all individuals with a mental disorder in Northern Ireland, whether or not they are ordinarily resident in Northern Ireland. It comprises eleven Parts subdivided into 137 separate sections or Articles. The Order makes provision with respect to the assessment, detention, care and treatment of patients suffering from mental disorder (Part 2) and provides the legal framework for their compulsory admission to hospital. Arrangements for the transfer of persons concerned in criminal proceedings, or under sentence, to hospital for assessment and treatment are dealt with at Part 3. The legislation can be accessed here Parts 4 and 5 deal with the role of the Mental Health Review Tribunal and the Mental Health Commission for Northern Ireland respectively. The Order at Part 1 defines a number of words and terms necessary for an understanding of the legislation. Article 3 sets out what constitutes a "mental disorder" and what does not. Mental disorder is thus defined in Article 3(1) as including any of the following, mental illness - "means a state of mind which affects a person's thinking, perceiving, emotion or judgement to the extent that he requires care or medical treatment in his own interests or the interests of other persons" mental handicap - "means a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning" severe mental handicap - "means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning" severe mental impairment - "means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned". Article 3(2) states that "no person shall be treated under this Order as suffering from mental disorder, or from any form of mental disorder, by reason only of personality disorder, promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs". Part 2 of the Order sets out the circumstances in which, and the procedures through which, a mentally disordered person can be compulsorily admitted to and detained in hospital. A clear distinction is made between admission for assessment on the one hand and detention in hospital for treatment on the other. The 1992 Code sets out the following principles Respect Consideration of the needs of the patient Safety Minimal control Self determination Application for admission for assessment: An application for admission for assessment can only be made by: the patient's nearest relative [Article 5(1)(a)] – form 1 to be completed an approved social worker (ASW) [Article 5(1)(b)] – form 2 to be completed a person appointed by the Court to act as the nearest relative [Article 36] The nearest relative is defined in Article 32(1) of the Order by reference to a list of relationships, a caring relative taking priority over a non-caring relative regardless of position on the list. There is no provision for a patient to displace the Nearest Relative. Detention for Assessment: The doctor completing the form (form 5) must satisfy the following requirements, a. the recommendation shall be given and signed by a medical practitioner who has personally examined the patient not more than two days before the date on which he signs the recommendation b. the recommendation shall, if practicable, be given by the patient's medical practitioner or by a medical practitioner who has previous acquaintance with the patient. c. the recommendation shall not, except in a case of urgent necessity, be given by a medical practitioner on the staff of the hospital to which admission is sought d. the recommendation shall not be given by any of the persons described in Schedule 1 The criteria for application and medical recommendation for admission are set out in Article 4(2) and (3) of the Order. Article 4(2) provides that an application may be made in respect of the patient on the grounds that, a. he is suffering from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) and b. failure to so detain him would create a substantial likelihood of serious physical harm to himself or to other persons The word “nature” refers to the particular mental disorder that the person is thought to be suffering from, its chronicity, prognosis and the person’s previous response to receiving treatment for the disorder. The word “degree” refers to the current severity of the person’s mental disorder. Article 4(3) of the Order states that an application must be founded on a medical recommendation which includes, a statement that, in the opinion of the recommending doctor, the grounds set out in Article 4(2)(a) and (b) above apply the grounds, including a clinical description of the mental condition, for his opinion that the detention is warranted and the evidence for his opinion that failure to detain the patient would create a substantial likelihood of serious physical harm Article 2(4) (a) and (b) specifies the evidence which can be used in determining that there is a substantial likelihood of serious physical harm to him or to other persons. Process for completing Doctor assesses and completes medical recommendation, addressing legal criteria for admission – Form 3 Applicant (ASW/NR) completes Form 1(NR) or 2 (ASW) If ASW is applicant – he/she must take practicable steps to consult with NR Applicant is responsible for ensuring patient taken to hospital Detention for treatment: Article 12(1) allows for the patient to be detained for treatment for a period not exceeding 6 months from the date of admission following an appropriate recommendation from the responsible medical officer in the hospital. Under Article 13(1) this authority can be renewed for periods of 1 year at a time thereafter if the appropriate procedure is followed. Periods of detention Article 9 Assessment 14 days Article 12 Treatment 6 months Article 13 Further 6 months Article 13 Further 12 months The Trust can discharge at any point. Assessment The patient can be detained for assessment for a maximum period of 14 days. This period cannot be extended. There is a statutory duty to review the grounds for detention at: 48 hours (if the admitting doctor was not the RMO or a Part II doctor) 7 days Before the end of the 14-day period The Mental Health Review Tribunal The Mental Health Review Tribunal (MHRT) is a judicial body set up by the Order. It provides independent oversight mechanism to review the lawfulness of detention in hospital for treatment. The detained person can apply once during the first 6 months, once during the second 6 months and once every 12-month period thereafter. Admission of children and young persons under the age of 18 years: Part 2 of the Order applies equally to children and young persons but there are a number of issues that should be considered when someone under the age of 18 is being admitted either on a compulsory or a voluntary basis, young people have a right to be kept fully informed about their care young people should, unless statute intervenes, have the right to make their own decisions if they have sufficient understanding and intelligence any intervention in the life of a young person, considered necessary because of a mental illness, should be the least restrictive possible Mentally disordered persons found in public places: Article 130(1) provides power such that: 1. If a constable 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, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety (the meaning of place of safety is discussed in the UK section) within the meaning of Article 129. 2. A person removed to a place of safety under this Article may be detained there for a period not exceeding 48 hours for the purpose of enabling him to be examined by a medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his care or treatment. 3. Where a person is removed as aforesaid, it shall, where practicable, be the duty of the constable who has so removed him without delay to inform some responsible person residing with that person and the nearest relative of that person of that removal. The place of safety referred to above may be any hospital or police station or place the occupant of which is happy to receive the patient. The police are often reluctant to arrest an obviously ill person "for his own safety" as it is not covered by PACE. The Order does provide the power however for them to bring someone to a place of safety without placing that person under arrest. There are no powers to move a person from one place of safety to another. Guidance on Place of Safety is available at: Regional Inter Agency Protocol on the Operation of Place of Safety and Conveyance to Hospital under the MH NI Order 2015 http://www.hscboard.hscni.net/download/PUBLICATIONS/MENT AL%20HEALTH%20AND%20LEARNING%20DISABILITY/gui delines_and_protocols/Regional-Interagency-Protocol-on-theOperation-of-Place-of-Safety-and-Conveyance-to-Hospital-underthe-Mental-Health-NI-Order-1986.pdf Article 130 assessment process Doctor & ASW 1 hour ASW response time Should not be delayed just on account of drug/alcohol intoxication If decision made that grounds for compulsory detention not met – must be released from custody Warrant to search for and remove patients: Article 129 allows that if it appears to a justice of the peace, on complaint on oath made by an officer of a Board or a constable, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder, a. has been, or is being, ill-treated, neglected or kept otherwise than under proper control; or b. being unable to care for himself, is living alone, the justice may issue a warrant authorising any constable, accompanied by a medical practitioner, to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application under Part II in respect of him, or of other arrangements for his care or treatment. Hospital admissions ordered by a Court: A Court may order a person's admission to hospital under Articles of Part 3 of the Order. ARTICLE 9 Purpose: Observation and assessment Duration: 14 days Applicant: ASW or nearest relative Nearest relative: Must be informed Doctors: One – ideally usual GP Requirements: Must be examined within 2 days Immediate assessment by hospital Dr, then RMO within 48 hrs, 7 days and at end of 14 days RMO – appointed for purposes of Part II by the RQIA. Responsible for assessment & treatment of the patient Other points It is usually the doctor’s responsibility to find a bed Usually the hospital in the HSCT where they reside/if NFA – nearest hospital RMO – appointed for the purposes of Part II by the RQIA who is responsible for the assessment and treatment of the patient. Usually consultant psychiatrist Part II Dr – appointed by the RQIA, can act as RMO and also provide 2nd opinions for patients in other trusts. Equivalent – Section 12 approved England CRITERIA FOR DETENTION FOR TREATMENT, PART IV, article 12 Mental illness or severe mental impairment of a nature & degree which warrants detention in hospital for medical treatment AND Failure to so detain the patient would create a substantial likelihood of serious physical harm to himself or other persons Severe mental impairment – ‘a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct.’ This law came into effect in Scotland in April 2005. Mental disorder – section 238 Any mental illness Personality disorder Learning disability however caused or manifested Specific exclusions: sexual orientation, sexual deviancy, trans-sexualism, transvestism dependence on, or use of drugs or alcohol behaviour that causes or is likely to cause harassment, alarm or distress to any other person; or by acting as no prudent person would act Guiding Principles These were developed by the Milan Committee. This committee was specifically asked by Parliament to explore the ethical basis of compulsory treatment and to set out recommendations for new Scottish mental health legislation. 1. Non-discrimination 2. Equality 3. Respect for diversity 4. Reciprocity 5. Informal care 6. Participation 7. Respect for carers 8. Least restrictive alternative 9. Benefit 10. Child welfare Mental Welfare Commission for Scotland This is an independent statutory organisation whose task is to safeguard the rights and welfare of anyone with a mental illness, learning disability or other mental disorder. It has a broad aim to promote the principles of the 2003 Act and to encourage best practice in its operation. It also has an important role to play regarding the welfare aspect of people who are being treated under the Adults with Incapacity (Scotland) Act 2000. It achieves this by: Visiting people who are affected by mental illness, learning disability or other mental disorder Conducting inquiries and investigations Monitoring the use of the Acts and promoting their principles Appointing, training and monitoring the work of designated medical practitioners Providing information and advice services Influencing and challenging policy makers and service providers Mental Health Tribunal for Scotland This is an independent judicial body established by Part 3 of the 2003 Act. The types of proceedings that a tribunal deals with are: Applications to the Tribunal References to the Tribunal Appeals to the Tribunal Reviews by the Tribunal- Cases remitted to the Tribunal Special Professional Roles Approved Medical Practitioner (AMP) A doctor with experience in the diagnosis and treatment of mental disorder. AMPs have a range of responsibilities including the authorization of a period of short-term detention Responsible Medical Officer (RMO) A named AMP who is responsible for a particular patient’s care and treatment. Mental Health Officer (MHO) A social worker with specialist training and experience in mental health. Play a significant role in the 2003 Act including preparation of reports, making applications for compulsory powers and consenting to certain forms of detention. Designated Mental Health Practitioner Appointed by Mental Welfare Commission and have a special role in relation to certain medical treatments. Nurses of the ‘prescribed class’ Have the power in specific situations to detain patients for 2 hours pending medical examination. Must be registered in Sub-Part 1 of the Nurses’ Part of the register established and maintained in accordance with article 5 of the Nursing and Midwifery Order (2001), whose entry includes an entry to indicate that: a. The nurse has a recordable qualification in mental health nursing or learning disabilities nursing b. The nurse’s field of practice is mental health nursing or learning disabilities nursing. Named Persons The Act gives patients over the age of 16 the right to appoint a named person to protect his or her interests. If a patient does not nominate anyone, the primary carer becomes the named person. If there is no primary carer, the patient’s nearest relative (as per section 254 of the Act) becomes the named person. If the person is under the age of 16 years, the named person is a person who has parental rights. The named person has various rights and responsibilities aimed at providing safeguards for the patient if compulsory measures are used or contemplated. He/she receives notice at various stages of the compulsion process and can appeal against compulsory orders (except emergency certificates) and any extension or variation of an order. If an MHO considers a person is inappropriate to act as named person, then he/she is under a duty to apply to the tribunal for an order declaring that the person is not a named person and appointing someone else. Independent Advocacy Section 259 of the Act states that every person with a mental disorder shall have a right of access to independent advocacy. Compulsory Powers There are 3 main compulsory powers: A For long term Compulsory RMO prepares If not Compulsory Treatment Order (CTO) treatment Can only be granted by a Mental Health Review Tribunal Application must be accompanied by: 2 mental health reports The MHO report A proposed care plan Duration 6 months from when granted Then can be extended 6 months Then annually measures include: Detention in hospital Giving of medical treatment (Part 16) care plan (s76) compliant: LA designates MHO There are various powers to be taken into custody and conveyed to for treatment or further assessment. MHO prepares Social Circumstances Report Requirement to attend certain places at certain times for receiving community care services Mandatory reviews Residency requirement Requirement to allow certain parties to visit the patient’s residence Requirement to obtain approval of MHO re any proposed change of address A Short Term Detention Certificate (STDC) Section 44 Section 16 (treatment) For assessment/treatment Lasts up to 28 days Granted by an Approved Medical Practitioner Extension by: Extension certificate s.47 or Used when a person is not willing to be admitted, where they may have a mental disorder that is affecting their judgment about treatment and admission is required for further assessment/and or treatment Hospital managers must inform: The patient The named person Any guardian Any welfare attorney Can be revoked by: RMO Tribunal Mental Welfare Commission 5 day extension period by s.68 over a short period of time The Tribunal and the Commission Criteria: The patient has a mental disorder Because of that mental disord