Mental Health Act 2007: Workbook
Hospital Managers
Hospital Managers Workbook
Table of Contents
Introduction ...... 1
About this workbook...... 1
How to use the workbook...... 1
Module objectives ...... 2
Before you begin...... 3
The Mental Health Act 2007...... 10
Mental health legislation review ...... 10
Outline of the key changes to the Mental Health Act 1983...... 12
Mental Health Act 1983 Code of Practice for Wales ...... 14
The empowerment principles ...... 15
The equity principles ...... 15
The effectiveness and efficiency principles ...... 15
What does all this mean for hospital managers?...... 16
Discharge of patients from detention in hospital...... 17
Overview ...... 17
Criteria for detention under section 3 ...... 18
Mental disorder ...... 19
A simplified definition ...... 19
Learning disability ...... 20
Exclusions from the operation of the Act...... 20
What does this mean in practice? ...... 20
To summarise: ...... 21
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The appropriate medical treatment test...... 22
Overview ...... 22
What is meant by 'medical treatment'?...... 23
When does the appropriate medical treatment test apply? ...... 24
Summary...... 24
Other grounds ...... 25
The patient's own health or safety...... 25
The protection of other persons ...... 26
Discharge by hospital managers ...... 27
Activity 1...... 28
Supervised community treatment...... 38
Overview ...... 38
Making a community treatment order...... 40
Discharge from SCT...... 44
Discharge by hospital managers using powers under section 23...... 45
Activity 2...... 47
Professional roles...... 52
Overview ...... 52
Approved clinician ...... 52
Responsible clinician...... 53
Approved mental health professionals ...... 53
Referrals of a patient’s case to the Mental Health Review Tribunal for Wales by the hospital managers...... 56
Overview ...... 56
Patients for whom hospital managers must make a referral ...... 56
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Periods after which hospital managers must make a referral...... 57
Provisions for young people ...... 59
Informal admission of patients aged 16 or 17...... 59
Accommodation for patients aged under 18...... 59
Independent mental health advocates...... 61
Qualifying patients...... 61
How does the IMHA support the patient?...... 61
Communication and access to records ...... 62
Who can act as an IMHA? ...... 62
What does this mean for hospital managers? ...... 63
Outline of the principal changes to the Domestic Violence, Crime and Victims Act 2004 ...... 64
Overview ...... 64
Victims’ rights...... 64
Final Quiz ...... 66
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Acknowledgements Produced by: Walkgrove Ltd. 3 Enterprise Court, Hamilton Way, Mansfield, Notts. NG18 5BU
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Introduction
About this workbook
This workbook is for hospital managers (or those delegated to act on their behalf) who are involved in the provision of mental health and learning disability services.
Its aim is to provide an overview of the changes to existing mental health legislation following the implementation of the Mental Health Act 2007.
In particular, we will be looking at the changes that have been made to two Acts:
• Mental Health Act 1983 ('the 1983 Act')
• Domestic Violence, Crime and Victims Act 2004.
The content of the workbook examines the ways in which these have been changed by the Mental Health Act 2007, and examines some of the more important changes in practice that result. Except where noted otherwise in the workbook, these changes will come into effect on 3 November 2008.
The material in this workbook is consistent with the workshop module and has been designed to provide support for those people who prefer to work on their own or are unable to attend a workshop session. It is important to recognise that it is not guidance and should not be used to inform legal decision making.
How to use the workbook
The workbook contains a series of practical activities designed to help you expand and apply your skills and knowledge of the law and practice as it now stands. It is important that you take time to do the activities as skill development depends on practice.
To gain the most benefit from this workbook:
• Allocate dedicated time to complete the workbook
• If possible, find somewhere quiet and without interruptions
• Ensure you have a copy of the Mental Health Act 1983 Code of Practice for Wales, and the Mental Health Act 2007
• Discuss your answers with a colleague to ensure you have explored the relevant issues and you can relate it to your work as a hospital manager.
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Module objectives
After studying this workbook you will be able to:
• Define the processes and good practice that should be adopted when considering whether to exercise the power of discharge
• Explain the new simplified, single definition of mental disorder and the revised criteria for detention for treatment
• Explain the provisions of supervised community treatment and the hospital manager's role in considering a patient’s discharge from supervised community treatment
• Explain the role of the independent mental health advocate, and how this might impact on the running of hearings
• Explain the changes in professional roles and the impact for evidence-giving in these roles
• Explain the impact of the new duties in relation to Domestic Violence, Crime and Victims Act 2004 for evidence-giving and hearings.
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Before you begin...
Try to answer the following questions.
You may find out that you already know more about the Mental Health Act 2007 than you thought. Alternatively, you may discover that some of the things you thought you knew were inaccurate.
You will find the suggested answers on the next page.
Yes No Not sure
1 The Mental Health Act 2007 replaces the Mental Health Act 1983.
2 The definition of mental disorder is being widened.
3 Learning disabilities are not mental disorders unless they cause abnormally aggressive or seriously irresponsible behaviour.
4 The appropriate medical treatment test is just the "treatability test" by another name.
5 The appropriate medical treatment test enables the detention of people with personality disorders.
6 The Welsh Assembly Government wants approved mental health professionals to be health professionals employed by NHS trusts.
7 Supervised community treatment is only for people who need medication in the community.
8 A person does not have to be detained in hospital first for a community treatment order to be made.
9 A patient may replace the person acting as their nearest relative with someone else whenever they wish.
10 Responsible clinicians will be hospital clinicians.
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11 The new Mental Health Act 1983 Code of Practice for Wales is stronger than before.
12 The Mental Health Act 2007 is widening access to the Mental Health Review Tribunal for Wales.
13 An adult ward can be used for a child if it will meet the child’s needs.
14 The Mental Health Act 1983 takes precedence over the Mental Capacity Act 2005.
Feedback
Here are the suggested answers. Check yours against them.
1. The Mental Health Act 2007 replaces the Mental Health Act 1983.
No, it doesn’t!
The Mental Health Act 1983 remains but the 2007 Act amends it. The 1983 Act has been amended before; for example, the Mental Health (Patients in the Community) Act 1995 which introduced after-care under supervision.
2. The definition of mental disorder is being widened.
No.
There is a new single, simplified definition of mental disorder, namely “any disorder or disability of the mind”. Although this is simplified, there is no change in the scope of the definition.
This single definition also replaces the four categories of mental disorder currently set out in the 1983 Act. This is covered in more detail in this workbook below.
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3. Learning disabilities are not mental disorders unless they cause abnormally aggressive or seriously irresponsible behaviour.
No.
The learning disability qualification in section 1 of the 1983 Act as amended excludes learning disabilities unless they are “associated with” (not “causing”) abnormally aggressive or seriously irresponsible behaviour. The qualification only applies to certain sections for admission to hospital (but not, for example, section 2 or section 136). The effect is basically the same as now.
4. The appropriate medical treatment test is just the "treatability test" by another name.
No, it isn’t.
The so-called treatability test focused on the likelihood of alleviating or preventing a deterioration in the patient’s condition; the new test requires that appropriate treatment is actually available for the patient. The new test applies within the criteria for admission to hospital under section 3, related sections of Part 3 of the 1983 Act, and the corresponding criteria for renewal, and for discharge by the Mental Health Review Tribunal for Wales.
5. The appropriate medical treatment test enables the detention of people with personality disorders.
Yes, although that was already the case, but the new test does have practical effects.
Doctors making recommendations for detention in hospital must set out in their recommendation where the appropriate medical treatment is available.
6. The Welsh Assembly Government wants approved mental health professionals to be health professionals employed by NHS trusts.
No, the 1983 Act and the attendant secondary legislation give choice. Local social services authorities (LSSAs) can decide who to appoint from specified professional groups – it is permissive legislation. Although approved mental health professionals can only perform their functions if they are acting on behalf of a LSSA, LSSAs cannot tell approved mental health professionals what decision to reach.
The LSSA has responsibility for ensuring that an approved mental health professional service is provided. It will approve people to perform these functions on the basis of their competence and training rather than simply on the basis of their professional grouping.
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7. Supervised community treatment is only for people who need medication in the community.
No it is not. “Medical treatment” goes much wider than medication and there are many other treatments that may be required.
A person can be required to accept medication in the community. However, the introduction of supervised community treatment does not confer any new powers for someone to be forcibly treated in their own home.
It remains possible for a patient to be given medication by force in their own home, but only if they lack capacity to consent to it and (unless an attorney or deputy consents for them) only if it is immediately necessary and proportionate to the risk of harm they would otherwise face.
8. A person does not have to be detained in hospital first for a community treatment order to be made.
Yes, they do.
A patient can only be discharged onto supervised community treatment if they are first detained for treatment either under section 3 or a relevant unrestricted Part 3 order. When a patient is discharged onto supervised community treatment, a community treatment order is made by the responsible clinician with the agreement of an approved mental health professional.
9. A patient may replace the person acting as their nearest relative with someone else whenever they wish.
No, although there is a new right for a patient to apply to the county court for the nearest relative to be displaced on the grounds that were previously available to other applicants. For all applicants, including patients, there is also a new ground for seeking displacement.
County courts may make an order to displace a nearest relative where there are reasonable grounds for doing so.
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10. Responsible clinicians will be hospital clinicians.
No, there is nothing in the legislation (or elsewhere) to suggest that this should be the case.
The Mental Health Act 1983 Code of Practice for Wales is quite explicit that in appointing a responsible clinician, the primary consideration must be the individual needs of the patient concerned. Furthermore, the needs of the patient may well change over time, so it is important that the suitability of the responsible clinician is kept under review. Consequently, the responsible clinician can change as often (and as soon as) necessary.
Note also that it is not just doctors who may act as responsible clinicians, but all responsible clinicians must be approved clinicians (see below for more detail).
11. The new Mental Health Act 1983 Code of Practice for Wales is stronger than before.
No, its status is essentially the same as now.
The Act sets out the legal framework and the Code of Practice for Wales provides the principles and guidance on how the framework should be applied in practice.
Departures from the Code of Practice for Wales could give rise to legal challenge and a court, in reviewing any departure from the code will scrutinise the reasons for the departure to ensure there is sufficiently convincing justification in the circumstances. It is good practice to ensure any such reasons are appropriately evidenced.
12. The Mental Health Act 2007 is widening access to the Mental Health Review Tribunal for Wales.
Yes, up to a point. Rights to apply for patients under the Act are not changing, just being adapted to deal with supervised community treatment. There are also changes to the hospital managers’ duty to refer people who do not apply themselves, and introducing a new duty to refer the case of a patient whose community treatment order has been revoked.
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13. An adult ward can be used for a child if it will meet the child’s needs
No, not exactly. Although the provisions in the 2007 Act which amend the 1983 Act in this area have not yet commenced, because of Welsh Assembly Government guidance from 2002, hospital managers already have a duty to make sure that the environment is suitable having regard to the patient’s age (and subject to the patient’s needs).
This means that generally, hospital managers should choose an environment that is suitable for a patient of this age, unless there is some factor that suggests otherwise.
That could be a specific need of the patient (e.g. an age-suitable environment would not be therapeutically-suitable for the patient) – or an overriding need (e.g. an age suitable hospital environment is not available). But if the needs could equally well meet needs in an age suitable environment or an unsuitable one – then there is a duty to use the age suitable one.
Point to note
This amendment to the 1983 Act is not commencing in November 2008 but will take effect at a later date.
14. The Mental Health Act 1983 takes precedence over the Mental Capacity Act 2005.
No, except where one or the other says so. Beware of generalisations.
That said an approved mental health professional could not make an application under section 3 if using the deprivation of liberty safeguards under the Mental Capacity Act (when they commence) instead would be just as safe and effective.
And before making an application for assessment under section 2 or guardianship or making a community treatment order practitioners should always consider if the Mental Capacity Act meets a patient’s needs or better meets them than the 1983 Act.
The 1983 Act refers to treatment for mental disorder only, and does not affect treatment and decisions about other health and welfare matters to which the framework of the Mental Capacity Act applies.
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How well did you do?
Do not worry if you got some of the questions wrong or if you realise now that you had some misconceptions. The whole purpose of this workbook is to help you improve your knowledge and understanding of these important changes.
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The Mental Health Act 2007
Before we start looking at the role of the hospital managers in any detail, it will be worthwhile to spend a little time considering the background to the changes brought in by the Mental Health Act 2007 (the 2007 Act).
Mental health legislation review
In 1998 the UK Government announced its intention to review how mental health legislation could be shaped to reflect contemporary patterns of care.
Why was this review necessary?
The UK Government considered that there were various reforms that were needed. Amongst other things, their objectives included:
• to help ensure that people with serious mental disorders could be required, where necessary, to receive treatment necessary to protect them and the public from harm
• to simplify and modernise the definition of mental disorder and the grounds for detention
• to bring mental health legislation into line with modern service provisions by allowing a broader range of professionals to carry out functions and by enabling people to be treated in the community where appropriate
• to strengthen patient safeguards and tackle human rights incompatibilities.
The Mental Health Act 2007
The existing legislative framework has now been amended by the 2007 Act. This Act has introduced amendments to several earlier Acts, specifically:
• The Mental Health Act 1983
The principal item of legislation which is concerned with the reception, care and treatment of mentally disordered people remains the Mental Health Act 1983 (the 1983 Act).
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The 1983 Act is largely concerned with the circumstances in which a person with a mental disorder can be detained for treatment for that disorder without their consent. It also sets out the processes that must be followed, as well as the safeguards for patients to ensure that they are not inappropriately detained or treated without their consent.
Its main purpose is to ensure that people with serious mental disorders can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others.
Although the structure of the 1983 Act remains intact, some significant changes have been made to many of its provisions by the 2007 legislation.
• The Domestic Violence, Crime and Victims Act 2004
The amendments to the Domestic Violence Crime and Victims Act 2004 extend victims’ rights concerning information about the discharge of certain mentally disordered offenders convicted of a violent or sexual offence who are not subject to restrictions under the Mental Health Act 1983.
• The Mental Capacity Act 2005
The main amendments to the Mental Capacity Act introduced by the 2007 Act provide procedures for authorising the deprivation of liberty of people resident in hospitals or care homes who lack capacity for the decision to reside there, and who are not subject to the mental health legislation safeguards. These are known as the deprivation of liberty safeguards, and are expected to commence in England and Wales in April 2009.
The Mental Capacity Act principles of supporting a person to make a decision when possible, and acting at all times in the person's best interests and in the least restrictive manner, apply to all decision making in operating the procedures.
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Outline of the key changes to the Mental Health Act 1983
As we have already noted, the 1983 Act is chiefly concerned with the circumstances in which a person with a mental disorder can be detained for treatment for that disorder without their consent.
Although the structure of the 1983 Act remains largely intact following the passing of the 2007 Act, several significant changes have been made to its provisions.
In summary these are:
• Definition of mental disorder The legislation now defines mental disorder as 'any disorder or disability of the mind'. This new definition provides a single, simple definition rather than specifying categories of disorder.
These amendments complement the changes to the criteria for detention.
• Criteria for detention If patients are to be detained for treatment under section 3 and related sections of Part 3, there is an important addition to the criteria that 'appropriate medical treatment' must be available for them.
This means that a patient may be compulsorily detained (or have their detention renewed) only if medical treatment is available for them which is appropriate taking into account the nature of and degree of their mental disorder and all the other circumstances of their case.
At the same time, the previously used 'treatability test' has been removed.
• Supervised community treatment (SCT) The 2007 Act introduces SCT for patients following a period of detention in hospital for treatment, this will allow a small number of patients with a mental disorder to live in the community whilst still being subject to certain conditions under the 1983 Act, aimed at ensuring they continue with the medical treatment that they need.
SCT can only follow an initial period of detention and treatment in hospital.
SCT replaces after-care under supervision (sometimes known as ‘supervised discharge’) which is being abolished by the 2007 Act. The main difference is that SCT will allow patients who do not need to continue receiving treatment in hospital to be discharged into the community, but with powers of recall to hospital if necessary.
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• Professional roles The group of practitioners who can take on the functions previously performed by the approved social worker (ASW) and the responsible medical officer (RMO) has been broadened.
The role of responsible clinician (RC) has replaced that of responsible medical officer. The responsible clinician does not need to be a consultant psychiatrist, but must be an 'approved clinician' (AC). This term will be explained later.
The role of approved mental health professional (AMHP) has replaced that of approved social worker. In addition to registered social workers, other mental health professionals will be able to take on the role of AMHP after suitable training.
• Mental Health Review Tribunal for Wales Changes have been made to the requirements for a case to be referred to the MHRT for Wales by hospital managers where the patient has not applied for a review.
• Treatment of children and young people Hospital managers will be required to ensure that where patients aged under 18 are admitted to hospital for mental disorder, they are accommodated in an environment that is suitable for their age, subject to their needs.
Another change concerns consent or refusal to informal admission made by 16 and 17 year old patients who have the capacity to consent. In such cases, the individual's decision may no longer be overridden by a person who has parental responsibility for them - this has been in force since 1 January 2008.
Point to note
The provisions concerning age suitable accommodation do not take effect in November 2008; they will take effect at a later date.
• Advocacy A new requirement for independent mental health advocacy to be made available for qualifying patients has been introduced.
Independent Mental Health Advocates (IMHAs) provide patients with support and help in areas such as:
− Understanding the conditions or restrictions to which they are subject and any medical treatment that is given or proposed
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− Understanding any rights which may be exercised, and help in exercising those rights.
• Electro-convulsive therapy (ECT) New safeguards have been introduced for patients concerning the use of ECT. Chief among these is the abolition of the power to administer ECT on a detained patient who has the capacity to consent but is refusing the treatment, other than in an emergency situation by virtue of section 62.
Mental Health Act 1983 Code of Practice for Wales
Key content
The 1983 Act (as amended by the 2007 Act) sets out the legal framework that underpins the detention and treatment of patients under compulsion.
The Mental Health Act 1983 Code of Practice for Wales (the Code) provides guidance, including good practice, as to how the Act should be applied. It also sets out principles which should inform decisions under the Act.
The Code highlights, where relevant, the connections between the 1983 Act and other legislation, such as the Mental Capacity Act 2005.
The 1983 Act provides that practitioners must have regard to the Code in relation to admitting persons to hospital or guardianship, community patients and in providing medical treatment to patients. Failure to do so could give rise to legal challenge. A court, in reviewing any departures from the Code, will scrutinise the reasons for the divergence to ensure there is sufficient and convincing justification in such circumstances.
Point to note
To put it simply, the Code is designed to guide practitioners in discharging their powers and duties under the Mental Health Act 1983. There is, for example, a specific chapter (Chapter 27) which deals with the hospital manager’s power of discharge under section 23 of the 1983 Act.
The guiding principles
Chapter 1 of the Code of Practice for Wales provides a set of nine guiding principles which should be considered whenever a decision has to be made about a course of action under the Act. The principles work together to form a balanced set of considerations which should inform all decision-making.
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Point to note
All of the other chapters of the Code of Practice of Practice for Wales should be read in the light of these principles.
In the Mental Health Act 1983 Code of Practice, the nine guiding principles are grouped together under three broad headings.
The empowerment principles
1. Patient well-being and safety should be at the heart of decision-making. 2. Retaining the independence, wherever practicable, and promoting the recovery of the patient should be central to all interventions under the Act. 3. Patients should be involved in the planning, development and delivery of their care and treatment to the fullest extent possible. 4. Practitioners performing functions under the Act should pay particular attention to ensuring the maintenance of the rights and dignity of patients, and their carers and families, while also ensuring their safety and that of others.
The equity principles
5. Practitioners must respect the diverse needs, values and circumstances of each patient. 6. The views, needs and wishes of patients’ carers and families should be taken into account in assessing and delivering care and treatment. 7. Practitioners should ensure that effective communication takes place between themselves, patients and others.
The effectiveness and efficiency principles
8. Any person made subject to compulsion under the Act should be provided with evidence based treatment and care, the purpose of which should be to alleviate, or prevent a worsening of, that person's mental disorder, or any of its symptoms or manifestations. 9. Practitioners should ensure that the services they provide are in line with the Welsh Assembly Government’s strategies for mental health and learning disability.
Fuller information on these principles, as well as guidance on how the principles should be used, is given in Chapter 1 of the Code.
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What does all this mean for hospital managers?
We will now move on to look at these changes in a little more detail, and at how they will impact on your role.
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Discharge of patients from detention in hospital
Overview
As you will know, under the 1983 Act the hospital managers have always had an important role to play in the discharge of unrestricted patients from detention. Hospital mangers were, and remain, part of the group, along with the RC, the nearest relative, and the MHRT for Wales, to whom the 1983 Act gives the power of discharge for unrestricted patients.
The amendments brought in by the 2007 Act do not change the exercise of this power, but do extend the power to cover a new group of patients:
Community patients
The hospital managers' power of discharge has been extended to cover the discharge of community patients – those who have been discharged onto SCT under a community treatment order (CTO).
Signpost
We will be looking at SCT in more detail later (see page 38). For the moment, we will concentrate on the discharge of patients detained in hospital for treatment under the 1983 Act.
Review panels
A review panel considering the case for discharging a patient must have three or more members.
The Act does not define either the criteria or the procedure for reviewing a patient's detention. However, Chapter 27 of the Code of Practice for Wales does set out that in this situation, the hospital managers should consider whether the criteria for admission or continued detention under the Act are satisfied.
It follows therefore that you will need to have a clear understanding of what those criteria are.
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Criteria for detention under section 3
Before a person can be detained for treatment under section 3, all of the following criteria must be met:
• The person must be suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital, and
• It is necessary for their own health or safety or for the protection of other persons that he or she should receive such treatment and it cannot be provided unless the person is detained, and
• Appropriate medical treatment is available for the person.
What is new in these grounds?
As an experienced hospital manager you will be aware by now that in this respect, the main changes to the 1983 Act made by the 2007 Act are:
• Definition of mental disorder: It changes the way the 1983 Act defines mental disorder, so that a single, simplified definition applies throughout the Act.
• Appropriate medical treatment: It introduces a requirement that 'appropriate medical treatment' must be available if patients are to be subject to powers of detention for treatment.
We will move on now to look at these particular changes in more detail.
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Mental disorder
Let us begin by looking at what is meant by the term 'mental disorder' as it is used in the revised Act.
A simplified definition
The definition of mental disorder has been amended to 'any disorder or disability of the mind'. This replaces the previous wording of 'mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind'.
The 2007 Act also abolishes the four categories of mental disorder that were previously used (i.e. mental illness, mental impairment, psychopathic disorder and severe mental impairment).
This new definition provides a single, simple definition rather than specifying categories of disorder.
• Clearly this new definition would include clinically recognised mental illnesses such as schizophrenia, bipolar disorder, anxiety or depression, as well as personality disorders, eating disorders, autistic spectrum disorders and learning disabilities
• It would also, for example, encompass forms of personality disorder
• Disabilities of the brain would not be classified as mental disorders unless they give rise to a disability or disorder of the mind as well.
Point to note
The fact that a person suffers from a mental disorder does not, in itself, mean that any action can or should be taken in respect of them. Action can be taken or continue only where all the relevant grounds are met.
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Learning disability
Whilst learning disability in general does come under the definition of mental disorder, a person can only be detained for treatment (or discharged on to SCT) where the learning disability is associated with abnormally aggressive or seriously irresponsible conduct.
These provisions were included in the 1983 Act and are explicitly re-stated in the new amendments. In effect there is no change to the previous position. Where the old rules would have precluded the use of compulsory measures on the basis of a learning disability, the revised rules will have the same effect.
The reason for explicitly re-stating this provision is that the reference to abnormally aggressive or seriously irresponsible conduct was previously derived from the definitions of 'mental impairment' and 'severe mental impairment' which have now been abolished.
Point to note
The wording is very explicit that any abnormally aggressive or seriously irresponsible conduct must be associated with a learning disability. It does not have to be caused by it.
Exclusions from the operation of the Act
Section 1(3) of the 1983 Act formerly provided that the definition of mental disorder should not be construed as implying that a person may be dealt with as suffering from mental disorder by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.
This has now been replaced with a single exclusion stating that 'dependence on alcohol or drugs is not considered to be a disorder or disability of the mind'.
What does this mean in practice?
Promiscuity and immoral conduct
Clinically, neither promiscuity nor 'other immoral conduct' by itself is regarded as a mental disorder, so the deletion of that exclusion makes no practical difference.
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Sexual deviancy
Likewise, sexual orientation alone is not regarded as a mental disorder. However, there are disorders of sexual preference which are recognised clinically as mental disorders. Some of these disorders might be considered 'sexual deviance' which means that previously they would have been subject to the exclusion. The new wording brings such disorders within the scope of the 1983 Act.
Dependence on alcohol and drugs
On the other hand, dependence on alcohol and drugs is regarded clinically as a mental disorder. However, under the revised wording of the exclusion, no action can be taken under the Act simply because a person is dependent on alcohol or drugs.
Point to note
This does not mean that such people are excluded entirely from the scope of the 1983 Act. A person who is dependent on alcohol or drugs may also suffer from another mental disorder arising as a result of that dependence which warrants action under the 1983 Act.
To summarise:
The new definition of mental disorder as 'any disorder or disability of the mind' means much the same as the old definition. Remember that:
• The four categories of disorder have been abolished, so there may be a few disorders now covered which previously were outside the scope
• The exclusions to mental disorder have been amended, and now only include dependence on alcohol or drugs
• The learning disability provisions exclude learning disabilities unless they are 'associated with' abnormally aggressive or seriously irresponsible behaviour. The effect is essentially the same as before.
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The appropriate medical treatment test
The 2007 Act has introduced a new 'appropriate medical treatment test' into the grounds for detention for treatment under the 1983 Act.
Overview
As we have seen, the grounds that must be met for a patient to be subject to powers of detention under section 3 remain generally much as before. These grounds also now apply to the new provisions for SCT, which we will be looking at shortly.
However, there is an important addition to the grounds in that 'appropriate medical treatment' must be available for the patient. This applies to all situations in which compulsory measures would be considered.
At the same time, the previously used 'treatability test' has been removed.
Chapter 4 of the Code of Practice for Wales makes it clear that the appropriate medical treatment test requires a judgement about whether, in all the circumstances, medical treatment is available to the patient which is appropriate. This needs consideration of the nature and degree of the patient’s mental disorder and all other factors relating to the patient’s case. These other circumstances of a patient’s case might, for example, include:
• the patient's physical health – how it might impact on the effectiveness of the available medical treatment for mental disorder and the impact that treatment might have in return
• any physical difficulties that the patient has
• the patient’s culture and ethnicity
• the patient’s age
• the patient’s gender, gender-identity and sexual orientation
• the location of the available treatment
• the implications of the treatment for the patient’s family and social relationships
• its implications for the patient’s education or work
• the consequences of the patient not receiving the treatment available (for mentally disordered offenders about to be sentenced for an offence, the consequence will sometimes be a prison sentence).
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Point to note
There is no requirement that the treatment proposed has to be demonstrably the most appropriate; so long as it is in fact appropriate and available. Nor does it need to address every aspect of the patient’s mental disorder. But the treatment available at any time must be an appropriate response to the patient’s condition and situation.
The overall effect then is that the appropriate medical treatment test cannot be met unless medical treatment:
• is available to the patient in question
• and is appropriate, given the nature and degree of the patient’s mental disorder
• and all other circumstances of the case.
This new appropriate medical treatment test replaces the previously used 'treatability' test. The treatability test required the decision-makers (including hospital managers at renewal hearings) to determine whether medical treatment was 'likely to alleviate or prevent deterioration in the patient's condition'. This requirement no longer applies.
What is meant by 'medical treatment'?
The definition of medical treatment (at section 145 of the Act) has been amended to read: "Medical treatment includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care."
This definition covers medical treatment in its normal sense as well as the other forms of treatment mentioned.
The Act also now stipulates that medical treatment (in the context of the Act) “shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations”.
Point to note
An important difference here is that this is about the purpose of the treatment, rather than being about its likely outcome as in the previous 'treatability' test.
The purpose of the appropriate medical treatment test is to ensure that no one is detained (or remains detained) for treatment, or is an SCT patient, unless they are actually to be offered medical treatment for their mental disorder.
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When does the appropriate medical treatment test apply? The 2007 Act introduces the appropriate medical treatment test into the grounds for detention under section 3 of the 1983 Act, and related sections of Part 3.
The test is also included as part of the criteria for CTOs, which are covered by a new section (section 17A) of the Act.
It should therefore also be used as part of the corresponding grounds for renewal and discharge.
Point to note
The appropriate medical treatment test does not apply to section 2 or section 4 of the 1983 Act (admission for assessment).
Summary To summarise then:
• The former treatability test focused on the likelihood of the outcome of treatment. The appropriate medical treatment test does not require anyone to say what is likely to happen.
• The appropriate medical treatment test has a much wider scope– it is about appropriateness in all the circumstances of the case and means that the medical treatment has to be available.
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Other grounds
Finally, let us consider the requirement that for a patient to be admitted to hospital under section 3 of the Act, it must be in the interests of their own health or safety or for the protection of other persons.
In this respect, the grounds remain unchanged by the provisions of the 2007 Act. Nevertheless, it will be worthwhile to remind ourselves of what this requirement means in practice.
Point to note
A similar condition applies to the making of a CTO, although in this case clearly it must be possible for the patient to receive the treatment they need without having to be detained in hospital.
The patient's own health or safety A patient may be admitted to hospital under section 3 in the interests of their own health or safety even if there is no risk to other people.
The Code of Practice for Wales sets out a number of typical factors that may be taken into account when making such an assessment. These include:
• any evidence suggesting that the patient’s mental health will deteriorate if they do not receive treatment
• the views of the patient, any carers or close friends or family, on the likely course of the disorder and the possibility of it improving
• the possible impact of any future deterioration or lack of improvement would have on carers or close friends or family - especially those living with the patient
• whether there are other methods of coping with an expected deterioration or lack of improvement.
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The protection of other persons
In considering the protection of other persons, there are two separate issues to consider. These are:
• The nature of the potential risks - what type of harm might arise from the patient’s mental disorder, and potentially how serious it could be. Thus, for example, a risk of physical harm or serious persistent psychological harm to others would be an indicator of the need for compulsory admission.
• The likelihood of such harm occurring - what the potential risk is that anything will actually occur. Much will depend here on the willingness and ability of those with whom the patient lives and those who provide care and support to cope with and manage the risk. It will also be important to consider whether there are alternative options available for managing the risk.
Overall, the need is to arrive at a balanced view of the acceptability of the risks, in terms of likelihood and harm to those involved in the care of the patient and to any others who are potentially at risk.
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Discharge by hospital managers
The hospital managers:
• may undertake a review at any time at their discretion
• must review a patient's detention when the responsible clinician (RC) submits a report under section 20(3) renewing detention
• must consider holding a review when they receive a request from a patient
• must consider holding a review when the RC makes a report under section 25(1) barring a nearest relative's application for the patient's discharge.
When reviewing the case of a patient detained in hospital for treatment (section 3 or 37), the review panel should consider the following questions:
• is the patient still suffering from mental disorder?
• if so, is the disorder of a nature or degree which makes treatment in a hospital appropriate?
• is detention in hospital for treatment still necessary in the interests of the patient's health or safety, or for the protection of other people?
• is appropriate medical treatment available for the patient?
Where the responsible clinician has made a report under section 25(1) barring a nearest relative's application for the patient's discharge, the review panel should also ask:
• would the patient, if discharged, be likely to act in a manner dangerous to other persons or to him or herself?
Point to note
This question focuses on the probability of dangerous acts, such as causing serious physical injury, not merely the patient's general need for safety and others' general need for protection.
These questions should be asked in the order given. The panel must order the discharge of the patient unless they are satisfied, on the basis of all the questions asked, that continued detention is appropriate.
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Activity 1
Let's move on to look at what all this means in practice. Rather than discussing things from an 'academic' viewpoint, we will work through a typical example of the type of case that you will be called on to handle.
Read through the information about Jane, and then work through the questions that you will find in the following section.
At the end of the section, you will find some feedback showing the correct answers together with some practical guidance.
As you work through the questions, you may find that you need to consult the following reference materials:
• The Mental Health Act 1983 (as amended by the Mental Health Act 2007)
• The Mental Health Act 1983 Code of Practice for Wales
• The Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008.
Background details
Jane is a 24 year old single woman who has a diagnosis of borderline personality disorder. She is well known to the community mental health team and often requires intensive support in the community from the crisis team for her repetitive self harm behaviour, which includes taking overdoses of drugs and excessive consumption of alcohol and also cutting her arms.
A few months ago, Jane came into the poisons unit of the local district general hospital following a very serious overdose, her fourth in as many weeks. She continued to express suicidal ideas and wanted to leave. The deputy of the approved clinician in charge placed her under section 5(2) to allow an assessment to be undertaken as it was felt that if allowed to leave she would be very likely to take another overdose or carry out further self harm.
A formal assessment under the 1983 Act was arranged, following which Jane was compulsorily admitted to her local psychiatric hospital for assessment. This was followed by her compulsory admission for treatment.
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Assessment of the need for ongoing detention
It is now some 17 weeks since Jane was admitted. Her treatment has consisted of general psychotherapeutic care aimed at helping her to settle down while keeping her safe from harm. It has been suggested that Jane might respond to dialectical behaviour therapy. However, this is not available locally.
Overall, it would appear that although it has not been possible to treat Jane's underlying disorder, she has made some progress while under general psychotherapeutic care. However, there have also been several instances of severe deterioration as evidenced by her behaviour. During these periods, she has continued to manifest self-harming behaviour, and to express suicidal ideas. She is currently in one of these periods of relapse.
Consider the following questions, giving full explanations for your answers.
1. How long will Jane’s detention last from the point when she is first admitted to hospital for compulsory treatment (under section 3)?
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2. Who has responsibility for considering whether Jane's detention should be renewed when the time comes?
3. What role do the hospital managers have in respect of the decision to continue Jane's detention?
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4. What are the criteria on which such a review would be considered?
5. For the purposes of coming to a decision, what do you understand by the term 'mental disorder'? Does it appear to you that Jane is suffering from such a disorder and that it is of a nature or degree that makes it appropriate for her to receive treatment in hospital?
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6. How would you interpret the requirement for appropriate medical treatment to be available for her? Does it have any relevance that she is not receiving any specific treatment for her disorder?
7. It has been suggested that Jane might respond to dialectical behaviour therapy. However, this is not available locally. If it is correct that this would be the most appropriate treatment for her, can she continue to be detained without it being available to her?
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8. It seems that Jane does not represent any danger to the safety of anyone other than herself. Does this mean that she falls outside the criteria for continued detention?
9. How should the review panel proceed if it comes to the conclusion that Jane does not meet the criteria for her detention to be continued?
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Activity feedback
Here are the suggested answers. Compare your answers with them.
1. How long will Jane's detention last from the point when she is first admitted to hospital for compulsory treatment (under section 3)?
The periods for which detention will last have not changed from those that applied under the previous legislation. This means that:
• Initially, Jane will be detained for a period not exceeding six months beginning with the day on which she was admitted for treatment
• At the end of this first period, her detention may be renewed for a further period of six months
• From the end of the second or any further period of renewal, her detention may be renewed for a further period of one year, and so on for periods of one year at a time.
2. Who has responsibility for considering whether Jane's detention should be extended when the time comes?
It is Jane's RC who has the responsibility under the Act for assessing whether she should continue in detention. The RC is, in fact, the only person who has the authority to extend the period of detention in this way.
There is a statutory requirement that the RC must examine her within the period of two months ending on the day on which liability for detention would cease.
If the RC is satisfied that the statutory grounds for continued detention are met, there is a further statutory obligation on the RC to make a report recommending continued detention, provided that he or she believes that this would be appropriate in all the circumstances of Jane's case.
Before making their report, the RC has a duty to consult at least one other person who has been professionally concerned with the patient’s medical treatment and who belongs to a profession other than their own. Section 20 now requires that person to confirm in writing that he or she agrees that the grounds are met.
The report will be made on the appropriate statutory form.
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3. What role do the hospital managers have in respect of the decision to continue Jane's detention?
The hospital managers must review a patient's detention when the RC submits a report under section 20(3) renewing detention.
The review panel considering the case for discharging a patient must comprise three or more members.
The Act does not define either the grounds or the procedure for reviewing a patient's detention. However, the Code of Practice for Wales does set out that the hospital managers should consider whether the criteria for admission or continued detention under the Act are satisfied.
4. What are the criteria on which such a review would be made?
The criteria on which Jane's continued detention would be judged are essentially the same as the grounds that had to be satisfied before she became subject to compulsory measures in the first place.
These are that:
• She is suffering from a mental disorder of a nature or degree which makes it appropriate for her to receive medical treatment in hospital, and
• It is necessary for her own health or safety or for the protection of other persons that she should receive such treatment and it cannot be provided unless she is detained, and
• Appropriate medical treatment is available for her.
If Jane is to continue to be detained for treatment under section 3, the review panel must be sure that all three of the above criteria are met.
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5. For the purposes of coming to a decision, what do you understand by the term 'mental disorder'? Does it appear to you that Jane is suffering from such a disorder and that it is of a nature that makes it appropriate for her to receive treatment in hospital?
The legislation defines mental disorder as 'any disorder or disability of the mind'.
The definition of mental disorder within the 1983 Act has been amended by the 2007 Act. It provides a single, simple definition rather than specifying categories of disorder, as was previously the case.
All clinically recognised mental illnesses such as schizophrenia, bipolar disorder, anxiety or depression would fall under this definition. So too would personality disorders, eating disorders, autistic spectrum disorders and learning disabilities.
Clearly, then, the review panel would be justified in concluding that Jane does indeed meet this criterion.
6. How would you interpret the requirement for appropriate medical treatment to be available for her? Does it have any relevance that she is not receiving any specific treatment for her disorder?
Section 3(4) of the Act states:
"In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case."
The purpose of medical treatment is to "alleviate or prevent a worsening of the disorder or one or more of its symptoms" (section 145).
The care that Jane is receiving is clearly intended at least to alleviate symptoms of her disorder, and consequently her continued detention falls within that particular requirement.
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7. It has been suggested that Jane might respond to dialectical behaviour therapy (DBT). However, this is not available locally. If it is correct that DBT would be the most appropriate treatment for her, can she continue to be detained without it being available to her?
There is nothing in the wording of the Act to suggest that there is any requirement for treatment to be demonstrably the most appropriate treatment. If there is more than one treatment that could justifiably be classed as appropriate, taking into account all the circumstances, any of them would meet this criterion.
In Jane's case, it may well be arguable that dialectical behaviour therapy would be the most appropriate treatment for her. The fact that this treatment is currently unavailable in Jane’s local psychiatric hospital does not necessarily mean that she cannot be detained there, provided that an appropriate alternative treatment is available at this hospital. It would appear then that she could continue to be detained and treated.
8. It seems that Jane does not represent any danger to the safety of anyone other than herself. Does this mean that she falls outside the grounds for continued detention?
No. It is enough for there to be a threat to Jane’s own health or safety.
The second of the criteria for detention is that "it is necessary for their own health or safety or for the protection of other persons that he or she should receive such treatment".
9. How should the review panel proceed if it comes to the conclusion that Jane does not meet the criteria for her detention to be continued?
If Jane does not meet the criteria for continued detention, the Act gives the review panel the power to discharge her from detention. Indeed, they would have a duty to do so.
Note, as always in respect of the Act discharge refers to discharge from detention and does not refer specifically to discharge from hospital.
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Supervised community treatment
We will move on now to look in more detail at the topic of supervised community treatment (SCT) and community treatment orders (CTOs). As we have already noted, the hospital manager's powers of discharge have been extended to include the power to discharge a patient from SCT – this means absolute discharge from the Act.
However, before we go on to look at how that power can be exercised, we need to discuss the topic of SCT in more general terms.
Overview
One of the most important changes embodied in the 2007 Act is the introduction of SCT. This provides for some patients with a mental disorder to live in the community while still being subject to powers under the 1983 Act to ensure that they continue with the medical treatment they need.
Signpost
Chapter 30 of the Code of Practice for Wales deals in detail with the implementation of SCT. You may wish to read through that chapter when you have completed this module.
An individual may be discharged onto SCT, this is achieved by way of a CTO.
Only those patients who are detained in hospital for treatment (under section 3 or an unrestricted order under Part 3 of the Act) can be discharged onto SCT. The Act refers to patients on SCT as community patients.
In order for a patient to be eligible for SCT, various criteria need to be met. We will examine those criteria shortly. An AMHP also needs to agree that SCT is appropriate.
Point to note
The aim of SCT is to break the cycle in which some patients leave hospital and do not continue with their treatment. Their health then deteriorates and they require detention again.
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Patients who are discharged onto SCT will be subject to conditions whilst living in the community.
• Most conditions will depend on individual circumstances but must be for the purpose of ensuring the patient receives medical treatment, or to prevent risk of harm to the patient or others (more guidance on the nature of the condition is given below)
• The conditions will form part of the patient's CTO which is made by their RC.
Patients discharged onto SCT may be recalled to hospital for treatment should this become necessary; this may be for either in-patient or out-patient care. Afterwards they may then resume living in the community or, if they need to be treated as an in-patient again, their RC may revoke the CTO.
The 2007 Act abolishes after-care under supervision (which is sometimes known as ACUS or supervised discharge); SCT is one of the options that are available in its place. The principal difference between ACUS and SCT is that SCT allows patients who do not need to continue receiving treatment in hospital to be discharged into the community, but with powers of recall to hospital if necessary.
Some patients who are subject to the ACUS provisions when the changes to the 1983 Act made by the 2007 Act commence may be readmitted to hospital under section 2 or section 3, received into guardianship under section 7 or placed onto SCT. Others will be discharged absolutely. You may therefore hear the cases of patients who were previously on ACUS but are now subject to other legal requirements under the Act. In those cases you should consider their detention based on the section of the 1983 Act to which they are subject to at that time – not their original detention or ACUS arrangements.
Point to note
SCT is different from leave of absence under section 17 of the 1983 Act, which remains suitable for a patient as a means to give shorter term leave from hospital as part of the patient’s overall management as a hospital patient.
Let us move on now to look in more detail at how CTOs are to be made, and how they will work.
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Making a community treatment order
Under the new arrangements, the RC may make a CTO for a patient detained under section 3, or for a patient who is not subject to restrictions under Part 3 of the 1983 Act, with the agreement of an AMHP.
Criteria for the CTO
The RC and AMHP must be satisfied that the following five criteria, as set out in section 17A of the Act, are met:
(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him or her to receive medical treatment
(b) it is necessary for the patient’s health or safety or for the protection of other persons that the patient should receive such treatment
(c) subject to the patient being liable to be recalled ... such treatment can be provided without the patient continuing to be detained in a hospital
(d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) to recall the patient to hospital
(e) appropriate medical treatment is available for the patient.
Point to note
As well as agreeing that the criteria are met, the AMHP must also concur that SCT is appropriate for that patient. The CTO, and the AMHP’s agreement to it, will be in writing.
When making these decisions, the RC must consider the risk that the patient’s condition will deteriorate after discharge from hospital. For example, this could happen as a result of their refusing to receive the treatment they need.
In considering that risk, the RC must have regard to the patient’s history of mental disorder and any other relevant factors.
If the RC and the AMHP cannot come to an agreement, then the CTO cannot be made. However, before such a stage is reached, there should have been adequate discussions between those involved, and in practice such disagreements are likely to be rare.
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Conditions of the CTO
CTOs must specify the conditions to which a community patient will be subject.
There are two conditions that must appear in all CTOs:
1. Patients must make themselves available for medical examinations as required for the purposes of determining whether the CTO should be extended
2. They must make themselves available for medical examinations to allow a second opinion approved doctor (SOAD) to make a Part 4A certificate.
Further conditions will be set as required with the intention of:
• ensuring that the patient receives medical treatment, and/or
• preventing risk of harm to the patient’s health or safety, and/or
• protecting other persons.
The RC and an AMHP must agree the conditions. The RC may subsequently vary the conditions, or suspend any of them without the agreement of an AMHP although to do so immediately after the making of a CTO would be considered poor practice if there had been no change in the patient’s circumstances.
Point to note
As always, the term 'medical treatment' has a much wider interpretation than just the administration of medication.
How long does the CTO last for?
A CTO may initially last for up to six months from the date when the order was made. The order can then be extended for a further six months and following that it can be extended for periods of one year at a time.
For a CTO to be extended, the RC must examine the patient and provide a report to the hospital managers confirming that the necessary criteria are met. An AMHP must agree that the criteria for extension of the CTO are satisfied, and that it is appropriate to extend the CTO, before the report can be made.
Point to note
These are exactly the same criteria as when the CTO was first made. Thus the RC can only make a report to extend the CTO if the criteria for the CTO still apply.
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A CTO comes to an end if:
• the period of the CTO runs out and the CTO is not extended
• or the patient is discharged from the applicable powers of the 1983 Act
• the RC revokes the CTO following the patient's recall to hospital.
Recall to hospital
A community patient may be recalled temporarily to hospital if the RC decides:
• that the patient needs to receive treatment for his or her mental disorder in a hospital, and
• that without this treatment there would be a risk of harm to the patient’s health or safety, or to other people.
Both conditions must be met. If the criteria for recall are met, the recall power may still be exercised even if the patient is complying with the conditions set out in the CTO.
The patient can also be recalled to hospital if they fail to comply with the condition that they must make themselves available for examination.
The patient may be detained in hospital for a maximum of 72 hours after recall to allow the RC to decide what should happen next.
If the patient requires inpatient treatment beyond 72 hours, the RC will need to consider revoking the CTO, which would mean the patient will again be detained under the powers of the 1983 Act.
Point to note
Other than the conditions concerning availability for examination, the conditions specified under the CTO are not in themselves enforceable. However, if a patient fails to comply with any condition, the RC may take that into account when considering if it is necessary to use the recall power.
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Revocation of the CTO
If the RC decides that the patient meets the normal criteria for detention for treatment in hospital, the RC may revoke the patient’s CTO. This will require an AMHP’s agreement that it is appropriate to do so.
If the AMHP does not agree that the CTO should be revoked then the patient cannot be detained in hospital after the end of the maximum recall period of 72 hours and will therefore remain on SCT.
Where a CTO is revoked in this way, the authority to detain the patient is revived, exactly as if the patient had never been a community patient except that it is considered a new period of detention and the patient has the normal rights of appeal. The hospital managers are under a duty to refer the patient’s case to the Mental Health Review Tribunal for Wales as soon as possible after revocation has occurred.
Expiry of a CTO
A community patient will be discharged absolutely from liability to recall on the expiry of the CTO, if the order has not previously ceased to be in force.
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Discharge from SCT
Orders for discharge
Community patients can be absolutely discharged from SCT (and therefore liability to recall to hospital) in much the same way as patients can be discharged from detention.
Under section 23 of the Act, the patient can be discharged from SCT in the following ways:
• by the RC at any time
• by the hospital managers, using their powers of discharge
• by the hospital managers, following application by the patient’s nearest relative giving not less than 72 hours notice (Part 2 patients only).
The patient may also be discharged:
• by the MHRT for Wales
• following the patient’s reception into guardianship.
Point to Note
The Code of Practice for Wales emphasises that the need for a patient to remain on SCT should be kept under review by both the RC and by the hospital managers.
There are restrictions on discharge of community patients by a nearest relative just as there is for detained patients:
• the nearest relative must give 72 hours notice in writing to the hospital managers if they wish to make such an order.
• the RC may bar the order for discharge from taking effect, using their powers under section 25(1), by making a report that certifies that the patient is likely to act in a dangerous manner to themselves or others if discharged from SCT.
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Discharge by hospital managers using powers under section 23
When to review SCT
The hospital managers:
• may undertake a review of the patient's case at any time at their discretion
• must review a patient's case when the RC submits a report under section 20(3) renewing the CTO
• should consider holding a review when they receive a request from a patient
• should consider holding a review when the RC makes a report under section 25(1) barring a nearest relative's application for the patient's discharge.
Criteria for review
As we saw with compulsory detention, the legislation does not define the criteria to be used by the hospital managers when reviewing a patient's SCT. However, the Code of Practice for Wales indicates that in deciding whether to discharge the patient, the hospital managers should consider the same criteria that were used in making the order.
Therefore the review panel of hospital managers should consider the following questions:
• Is the patient still suffering from mental disorder?
• If so, is the disorder of a nature or degree which makes it appropriate for them to receive medical treatment?
• If so, is it necessary in the interest of patient’s health and safety or for the protection of other people?
• Can such treatment be provided without their being detained in hospital but subject to being liable to recall?
• Is appropriate medical treatment available for the patient?
These should be considered in the order given. Unless satisfied that all these questions can be answered positively, the panel should direct the discharge of the patient.
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Point to note
Bear in mind that although the hospital managers can discharge the patient from SCT, they cannot otherwise review or amend the conditions of the CTO.
Where the RC has made a report under section 25(1) barring discharge by the nearest relative, the hospital managers should also consider the following question:
• If discharged, would the patient be likely to act in a manner dangerous to other persons or to him or herself?
This question focuses on the probability of dangerous acts, such as causing serious physical injury, not just on the patient's general need for safety and others' general need for protection.
If, on consideration of the report under section 25(1) and other evidence, the hospital managers disagree with the RC and decide the answer to this question is "no", they should discharge the patient.
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Activity 2
Read through this information about a current patient.
John was detained under section 3 some 18 months ago having been diagnosed with schizophrenia. He has a history of prior admissions with acute symptoms, followed by fairly good response to treatment.
However, on discharge his history had always been of rapid relapse following failure to comply with medication. This relapse has been associated with drug and alcohol misuse.
During the second six month period of detention, John’s RC (with the agreement of the AMHP) decided that as John no longer required treatment in hospital, it would be appropriate to discharge him onto SCT as there may be a need to recall him in the future.
John was discharged to his own accommodation where he was self-caring. Under the CTO he was subject to various conditions, including:
• remaining drug and alcohol free (and attending for monitoring)
• living at the specified location
• complying with his medication
• allowing visits from community mental health team.
Six months later, John is still in the community and compliant with the terms of his CTO. He doesn't want it to be extended. The RC however does want to extend it because of John’s history of relapse.
Now answer the following questions, giving full explanations for your responses where appropriate.
1. What role would the hospital managers have to play in respect of the proposed renewal? Is any action required from them?
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2. What criteria have to be satisfied for renewal of the CTO to be made?
3. What would be the situation if the hospital managers conclude that John should be discharged?
The CTO is extended, but a month later John’s nearest relative gives notice of the intention to discharge him from SCT using their power of discharge. The RC immediately makes a report barring this discharge. John therefore remains subject to the CTO.
Answer these questions.
4. Does the RC have the power to bar discharge from SCT by the nearest relative?
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5. Do the hospital managers have any role to play in respect of the action taken by the RC?
6. If the hospital managers decide to review John's case following the action taken by the RC, are there any specific matters that they should address?
Activity 2 - Feedback
Here are the suggested answers. Check yours against them.
1. What role would the hospital managers have to play in respect of the proposed renewal? Is any action required from them?
The hospital managers must review a patient's case when the RC submits a report under section 20A(4) renewing SCT.
The CTO is renewed by the RC; the hospital managers consider whether or not it is appropriate in light of the renewal to exercise their power of discharge.
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2. What criteria have to be satisfied for renewal of the CTO to be made?
As the legislation does not define the criteria to be used by the hospital managers when reviewing a patient's CTO, they should consider the same criteria that were used in making the order. These are:
• the patient is suffering from mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment
• it is necessary for their own health or safety, or for the protection of others that the patient should receive such treatment
• subject to the patient being liable to be recalled, such treatment can be provided without the patient continuing to be detained in hospital
• it is necessary that the RC should be able to exercise the power under section 17E(1) to recall the patient to hospital
• appropriate medical treatment is available.
3. What would be the situation if the hospital managers conclude that John should be discharged?
If they do not agree that SCT remains appropriate, the hospital managers have the power to discharge the patient. They do not have the power to revoke the SCT and for John to return to hospital under section 3 – they may only discharge him absolutely.
It would be appropriate for the hospital managers to inform the RC and the other healthcare professionals of their intentions to discharge John, so that any necessary arrangements for after-care may be made.
4. Does the RC have the power to bar discharge from SCT by the nearest relative?
Yes. The RC has the power to make a report under section 25(1) which effectively bars the discharge by the nearest relative, and prevents them from making a further order for discharge for six months.
It is specifically to allow for this possibility that the nearest relative is required to give notice of their intention to discharge the patient.
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5. Do the hospital managers have any role to play in respect of the action taken by the RC?
There is no specific duty on the hospital managers to undertake a review of the patient's case when the RC makes a report under section 25(1) opposing a nearest relative's application for the patient's discharge. However, they should consider holding a review in these circumstances.
Generally, it is likely that they will elect to do so, as it is clearly in the patient's best interests for there to be as little doubt about their situation as possible.
6. If the hospital managers decide to review John's case following the action taken by the RC, are there any specific matters that they should address?
As with any such review, they should concern themselves first with the question of whether the patient continues to meet the criteria for SCT.
They should also specifically address the question of whether the patient would be likely to act in a manner dangerous to other persons or to himself, if he was discharged. As part of their decision making process they will need to consider the probability of dangerous actions occurring.
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Professional roles
Overview
A major change brought in by the 2007 Act is that it has broadened the group of practitioners who can take on the roles which are central to the operation of the 1983 Act.
In particular:
• it replaces the role of the responsible medical officer (RMO) with that of the responsible clinician (RC)
• it provides that an RC will be an approved clinician (AC) with overall responsibility for a patient’s case
• it replaces the role of the approved social worker (ASW) with that of the approved mental health professional (AMHP).
Let us look at each of these new roles in turn in a little more detail.
Approved clinician
In Wales, an AC is a person approved as such by the Welsh Ministers for the purposes of the 1983 Act. Such approval has been delegated to Local Health Boards.
The professions whose members may be approved and the type of skill and experience required have been set out in the Mental Health Act 1983 Approved Clinician Directions 2008 issued by the Welsh Ministers. These specify that for a person to be approved, they must meet the following criteria:
• they fulfil the professional requirements
• they are able to demonstrate that they possess the relevant competencies, and
• they have completed within the last two years a course for the initial training of ACs.
To fulfil the professional requirements, a person must be:
• a registered medical practitioner
• or a chartered psychologist
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• or a first level nurse whose field of practice is mental health or learning disabilities nursing
• or an occupational therapist
• or a registered social worker.
Responsible clinician
Under the 1983 Act, the RMO was the registered medical practitioner in charge of the patient's treatment. The RMO had various designated functions, such as deciding when patients could be discharged and allowed out on leave. In practice, RMOs have usually been consultant psychiatrists.
Under the new system, the RC may be any practitioner provided that that person has been approved for that purpose - i.e. an approved clinician (AC).
The functions that RCs have taken over from RMOs have been supplemented by new functions in relation to SCT.
Responsibilities under Part 2 of the Act
Where a patient is subject to compulsory admission to hospital or guardianship, the RC has taken over the duties previously fulfilled by the RMO. The RC has also taken on a similar role in respect of SCT.
• Where the patient is liable to be detained or a community patient, the RC is defined as the AC with overall responsibility for the patient's case
• Where the patient is subject to guardianship, the RC is defined as the AC authorised by the responsible LSSA to act.
Responsibilities under Part 3 of the Act
Where a patient is concerned in criminal proceedings, the RC has again taken over the duties previously fulfilled by the RMO.
In addition, certain functions previously restricted to registered medical practitioners can now be exercised also by ACs. For example, an AC may now be responsible for the report on the medical condition of a person remanded to hospital for that purpose under section 35 of the 1983 Act.
Approved mental health professionals
Now let us move on to consider the role of the AMHP.
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Functions of the AMHP
As we have already noted, the AMHP has taken over the duties and functions of the ASW. This includes functions such as:
• making applications for admission and detention in hospital under Part 2 of the 1983 Act
• making applications for guardianship.
LSSAs who have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area have a duty to arrange for an AMHP to consider the patient's case on their behalf.
Like RCs, the AMHPS also have certain new functions in relation to SCT.
Who may be an AMHP?
As well as social workers, AMHPs may be drawn from a wider group of professionals that have the right skills, experience and training. This means that in future first level nurses, occupational therapists and chartered psychologists may be an AMHP.
There is no requirement that an AMHP be an employee of an LSSA.
A registered medical practitioner is specifically prohibited from being approved to act as an AMHP.
How is an AMHP approved?
LSSAs will approve AMHPs.
Before doing so they must be satisfied that the individual:
• has appropriate competence in dealing with persons who are suffering from mental disorder, and
• meets requirements set out in Regulations setting out conditions for approval, factors as to competency and requirements for training.
The Care Council for Wales must approve courses for the training of AMHPs in Wales, regardless of the trainees' profession.
To fulfil the professional requirements set out in the Mental Health (Approval of Persons to be Approved Mental Health Professionals) (Wales) Regulations 2008, a person must be:
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• a registered social worker
• or a chartered psychologist
• or a first level nurse whose field of practice is mental health or learning disabilities nursing
• or an occupational therapist.
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Referrals of a patient’s case to the Mental Health Review Tribunal for Wales by the hospital managers
Overview
As you will know, the MHRT for Wales is an independent judicial body with the power to order the discharge of a patient from compulsion under the Act.
The MHRT for Wales reviews a patient's case on:
• application from the patient or the patient's nearest relative
• referral by hospital managers if the MHRT for Wales has not reviewed the case within a given period
• referral from the Welsh Ministers (in non-restricted cases)
• referral from the Secretary of State for Justice (restricted cases).
The new arrangements make some changes to referral by hospital managers both by widening the group of patients to whom it applies and by amending the periods after which referral must be made.
Patients for whom hospital managers must make a referral The revised list of patients for whom hospital managers must make a referral after an appropriate period is:
• patients admitted to a hospital in pursuance of an application for admission for assessment
• patients admitted to a hospital in pursuance of an application for admission for treatment
• community patients
• patients whose CTO is revoked
• patients transferred from guardianship to a hospital.
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Periods after which hospital managers must make a referral
Six months after detention
If no previous application has been made, hospital managers are now required to refer the patient at six months from the day on which:
• the patient was first detained for assessment (under section 2) or for treatment (under section 3), or
• the patient is admitted following revocation of a CTO, or
• the patient was detained in hospital following a transfer from guardianship.
This is defined as the "applicable day".
Point to note
The new arrangements make the referral period the same for all patients whether they have first been detained for treatment or for assessment.
After three years without review
Hospital managers are now required to refer patients under Part 2 of the 1983 Act if three years have passed (or one year for patients aged under 18 years) and the MHRT for Wales has not reviewed the case in that time.
There are two significant changes in these new arrangements:
• Previously, hospital managers were only under a duty to make such a referral to the MHRT for Wales upon the renewal of patient's detention. In practice, that meant it could be nearly four years for some patients before their case was considered by the MHRT for Wales if the patient did not apply.
• The requirement to refer a patient aged under 18 years after one year represents an extension to the previous age limit of 16 years.
Following revocation of a CTO
As we have already seen, the RC may recall the patient to hospital where appropriate. If thereafter the RC decides that the patient meets the normal grounds for detention for treatment in hospital, the RC may revoke the patient's CTO. This will require an AMHP's agreement that it is appropriate.
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Where a patient's CTO is revoked in this way, the managers of the hospital have a statutory duty to refer the patient's case to the MHRT for Wales as soon as possible after the order is revoked. This is in addition to the duty to refer the matter 6 months after the patient’s admittance following revocation of that CTO (as referred to above).
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Provisions for young people
The 2007 Act makes some new provisions for the treatment of young people.
Informal admission of patients aged 16 or 17
Changes have been made to the rules governing the informal admission of patients aged 16 or 17 years to hospital or registered establishment for treatment for mental disorder. These changes came into force on 1 January 2008.
Where such patients have the capacity to consent to the making of such arrangements, they may consent or refuse consent, and their decision cannot be overridden by a person with parental responsibility for them.
This means that:
• If the patient consents, they can be admitted to hospital and their consent cannot be overridden by a person with parental responsibility refusing to consent to admission
• If the patient does not consent, they cannot be informally admitted on the basis of consent from a person with parental responsibility.
Point to note
In the latter case, the young person could nevertheless be admitted to hospital for compulsory treatment if they meet the relevant grounds.
Accommodation for patients aged under 18
A new section 131A has been added to the 1983 Act concerning the accommodation of patients under the age of 18.
Point to note
Unlike other provisions of the Act, this section does not take effect in November 2008. The new arrangements will commence at some date in the future, but the specific timing has yet to be announced.
This section, when it comes into effect, will place hospital managers under a duty to ensure that patients aged under 18 admitted to hospital for mental disorder are - subject to their needs - accommodated in an environment that is suitable for their age.
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The term 'subject to their needs' is not intended to authorise the use of an adult ward for a young person just because it will meet their needs; there would have to be some overriding factor.
The decision would have to be taken on the basis of:
• What is suitable for a patient of this age?
• Is there something about this patient or the circumstances that suggests the use of an environment that would not normally be suitable for a patient of this age?
Thus, for example, if there was no age-suitable accommodation, then an age-unsuitable hospital environment would be better than no hospital environment at all. But if the patient's needs could be equally well met in an age-suitable environment, then that should be used.
In determining whether the environment is suitable, the hospital managers will be required to consult a person whom they consider to be suitable because of their knowledge of or experience in child and adolescent mental health services cases.
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Independent mental health advocates
A new independent mental health advocacy scheme has been introduced for qualifying patients. Under these arrangements, independent mental health advocates (IMHAs) provide patients with support.
Signpost
Chapter 25 of the Code of Practice for Wales covers the role of the IMHA in detail. You may wish to read through that chapter once you have finished this section.
Qualifying patients
Patients who qualify for advocacy support are essentially:
• persons who are liable to be detained under the Act (excluding those subject to sections 4, 5(2), 5(4), 135 or 136)
• patients subject to guardianship
• community patients
• informal patients being considered for section 57 or 58A treatments.
Qualifying patients must be informed that they are eligible for the services provided by an IMHA as soon as is practicable. An IMHA will meet with a patient on the request of the patient, the nearest relative, the RC or an AMHP.
How does the IMHA support the patient?
The support available to a qualifying patient includes help in obtaining information about and understanding:
• the patient’s rights under the Act
• the provisions of the Act under which the patient qualifies for an IMHA
• any conditions or restrictions which affect the patient
• the medical treatment the patient is receiving or is being proposed or discussed and the reasons for it
• the legal authority for providing the treatment
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• the requirements of the Act which apply to treatment.
The IMHA may also support the patient to exercise their rights under the Act, including by representing them.
IMHAs may also support patients in other ways to ensure they can participate in decisions about care and treatment.
Communication and access to records
Where a patient has the capacity to consent and does so, an IMHA has a right to access and inspect relevant hospital or local authority records relating to the patient.
If a patient lacks the capacity to consent, the record holder can still allow access to such records if it is appropriate and relevant to the support the advocate will provide to the patient. IMHAs have a right to meet patients in private and to visit and interview anyone professionally concerned with the patient’s medical treatment.
It is important to note also that the hospital managers cannot withhold correspondence between patients and their advocates.
Who can act as an IMHA?
The Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2008 set out that no-one may act as an IMHA unless they have been approved by the Local Health Board or are employed by a provider of advocacy services to act as an IMHA.
Before approving any person as an IMHA the Local Health Board must be satisfied that the person:
• has appropriate experience or training
• is of integrity and good character
• will act independently of any person who instructs them to act as an IMHA or is professionally concerned with the medical treatment of the qualifying patient.
Point to note
The Welsh Ministers issue guidance from time to time as to what constitutes 'appropriate experience or training'.
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What does this mean for hospital managers?
One of the principal ways in which these changes will impact upon your role is in relation to hospital manager hearings.
You should expect to see IMHAs supporting patients at such hearings, and you will need to consider how you will respond to this.
For example, you will need to consider such topics as:
• Whether you will take evidence at the hearing
• How you will respond if the patient wishes to speak without professionals present.
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Outline of the principal changes to the Domestic Violence, Crime and Victims Act 2004
Overview
The Mental Health Act 2007 extends, with some modifications, the rights of victims under the Domestic Violence, Crime and Victims Act 2004 to victims of persons convicted of a sexual or violent offence.
These extended rights will apply where:
• the offender is made subject to a hospital order without restrictions, or
• the offender is made subject to a hospital and limitation direction and the limitation direction subsequently ceases to have effect, or
• the offender is transferred from prison to hospital under a transfer direction without a restriction direction, or where the restriction direction is removed.
Victims’ rights
Right to make representations and receive information
The local probation board must take reasonable steps to establish:
• whether the victim of the offence wishes to make representations as to whether the patient should be subject to conditions in the event of discharge from hospital, and
• whether the victim wishes to receive information about those conditions in the event of the patient’s discharge.
Point to note
These duties are the same as those that the probation board held previously in relation to other offenders.
As the local probation board has no remit in relation to non-restricted mentally disordered offenders detained in hospital, the board will need to inform the hospital of the victim’s wish to receive information and/or make representations.
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The hospital managers then have responsibility for forwarding the victim's representations to the relevant persons and bodies responsible for making decisions on discharge or CTOs. They also have discretion to pass any information received from those persons or bodies to the victim. However, they are not required to disclose any information that the RC would not normally disclose where it is viewed as confidential.
Informing the victim
In appropriate cases, a victim who has so requested must receive information if the offender is being considered for discharge or is to be discharged.
Unrestricted patients cannot be conditionally discharged, so the victim should also be informed when the patient is to be discharged onto a CTO. In such cases, they must also be informed of:
• any conditions relating to contact with the victim or the victim’s family
• any variation of such conditions
• the date on which the order will cease.
Victims also have the right to make representations about the conditions to be attached to a CTO.
So that the hospital managers are in a position to comply with these obligations, the RC and the MHRT for Wales are required to inform the hospital managers if the patient is to be discharged.
RCs must also inform the hospital managers whether they are to make a CTO and give the hospital managers information regarding the imposition or variation of any conditions and when the order will end.
Point to note
In your role, you will need to bear these provisions in mind when exercising the power of discharge in respect of a patient who falls within the provisions of the Act.
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Final Quiz
You have now completed this workbook.
Before leaving this topic completely, here are some questions to help you check how much you have learned from your studies.
In each case you should mark all of the options that apply with a 'tick'. Put a 'cross' against the options that are not appropriate.
Question True?
1. Which of the following statements are true in respect of the appropriate medical treatment test?
Medical treatment must be actually available to the patient.
The treatment proposed must be the most appropriate treatment for the patient.
The treatment must take account of the nature and degree of the patient's mental disorder.
2. Who has the power to renew the detention of a patient who has been compulsorily detained for treatment of a mental disorder?
The responsible clinician.
An approved mental health professional.
The hospital managers.
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3. What is the duration of a community treatment order?
A CTO will last initially for 12 months; it can then be extended for a further 12 months, and following that, for 24 months at a time.
A CTO will last initially for 12 months; it can then be extended for a further 6 months, and following that, for 12 months at a time.
A CTO will last initially for 6 months; it can then be extended for a further 6 months, and following that, for 12 months at a time.
4. In which of these circumstances must the hospital managers refer an adult patient to the MHRT for Wales?
In all cases, 6 months after the initial detention, if no previous application has been made.
Where the CTO for a patient on SCT has been revoked by the RC with the AMHP's agreement.
Where a patient was not discharged by the MHRT for Wales, the hospital managers must refer again 3 years after the last renewal of the patient’s detention.
5. Which of these statements are true in respect of young people (patients aged 16 or 17)?
They may be admitted to hospital for treatment without their consent.
They may be treated on an adult ward where there is no other more suitable accommodation available.
They may not be treated as a compulsory in-patient if there is no accommodation available that is suitable for their age group.
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6. Which of the following actions may be undertaken by an Independent Mental Health Advocate for a patient subject to a CTO?
An IMHA may make an application for discharge on the patient's behalf.
An IMHA may represent a patient at the MHRT.
An IMHA may obtain the patient's hospital records even if the patient doesn't have the capacity to consent.
7. In which of the following circumstances are the hospital managers under a duty to review the case of a patient on SCT?
When they receive a request to do so from the patient.
When the RC submits a report under section 20(4) renewing the CTO.
When the RC makes a report under section 25(1) barring the nearest relative's application for the patient's discharge.
8. In which of the following situations does the Mental Health Act 2007 provide extended rights to the victims of a sexual or violent offence?
The offender is made subject to a hospital order without restrictions.
The offender is made subject to a hospital and limitation direction and the limitation direction subsequently ceases to have effect.
The offender is transferred from prison to hospital under a transfer direction without a restriction direction.
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9. In considering whether a patient continues to meet the grounds for detention under section 3, one of the criteria concerns the patient's own health or safety or the protection of other persons. When assessing the protection of other persons, what are the main issues to consider?
The nature of the potential risks.
The availability of treatment.
The likelihood of such harm occurring.
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Final Quiz - Feedback
Here are the suggested answers. Check yours against them.
Question True?
1. Which of the following statements are true in respect of the appropriate medical treatment test?
Medical treatment must be actually available to the patient.
The treatment proposed must be the most appropriate treatment for the patient.
The treatment must take account of the nature and degree of the patient's mental disorder.
There is no requirement that the treatment proposed has to be the most appropriate, so long as it is, in fact, appropriate.
2. Who has the power to renew the detention of a patient who has been compulsorily detained for treatment of a mental disorder?
The responsible clinician.
An approved mental health professional.
The hospital managers.
It is the RC who has the responsibility under the Act for assessing whether the person should continue in detention, and is the only person who has the authority to renew. The hospital managers must review the patient's detention when the RC renews detention in this way.
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3. What is the duration of a community treatment order?
A CTO will last initially for 12 months; it can then be extended for a further 12 months, and following that, for 24 months at a time.
A CTO will last initially for 12 months; it can then be extended for a further 6 months, and following that, for 12 months at a time.
A CTO will last initially for 6 months; it can then be extended for a further 6 months, and following that, for 12 months at a time.
For a CTO to be extended, the RC must confirm to the hospital managers that the criteria are met; an AMHP must agree and confirm that it is appropriate to extend the order.
4. In which of these circumstances must the hospital managers refer an adult patient to the MHRT for Wales?
In all cases, 6 months after the initial detention, if no previous application has been made.
Where the CTO for a patient on SCT has been revoked by the RC with the AMHP's agreement.
Where a patient was not discharged by the MHRT for Wales, the hospital managers must refer again 3 years after the last renewal of the patient’s detention.
There is a requirement for the hospital managers to refer an adult patient's case after three years only if no other application or reference has been made; this referral should be made three years after the last hearing (rather than after three years and subsequent renewal of detention).
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5. Which of these statements are true in respect of young people (patients aged 16 or 17)?
They may be admitted to hospital for treatment without their consent.
They may be treated on an adult ward where there is no other more suitable accommodation available.
They may not be treated as a compulsory in-patient if there is no accommodation available that is suitable for their age group.
If there really is no age appropriate accommodation, then such accommodation as there is would normally be better than none.
6. Which of the following actions may be undertaken by an Independent Mental Health Advocate for a patient subject to a CTO?
An IMHA may make an application for discharge on the patient's behalf.
An IMHA may represent a patient at the MHRT.
An IMHA may obtain the patient's hospital records even if the patient doesn't have the capacity to consent.
The IMHA does not have any role in making applications on behalf of the patient, although they may support the patient in doing so.
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7. In which of the following circumstances are the hospital managers under a duty to review the case of a patient on SCT?
When they receive a request to do so from the patient.
When the RC submits a report under section 20(4) renewing the CTO.
When the RC makes a report under section 25(1) barring the nearest relative's application for the patient's discharge.
The hospital managers must review the case when the RC submits a report under section 20A(4) renewing the CTO. In the other situations, they should consider holding a review.
8. In which of the following situations does the Mental Health Act 2007 provide extended rights to the victims of a sexual or violent offence?
The offender is made subject to a hospital order without restrictions.
The offender is made subject to a hospital and limitation direction and the limitation direction subsequently ceases to have effect.
The offender is transferred from prison to hospital under a transfer direction without a restriction direction.
These are all situations in which the Act provides extended rights for the victim. In addition, the Act would apply where the offender is transferred from prison to hospital under a transfer direction where the restriction direction is removed.
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9. In considering whether a patient continues to meet the grounds for detention under section 3, one of the criteria concerns the patient's own health or safety or the protection of other persons. When assessing the protection of other persons, what are the main issues to consider?
The nature of the potential risks.
The availability of treatment.
The likelihood of such harm occurring.
Overall, the need is to arrive at a balanced view of the acceptability of the risks, in terms of likelihood and possible harm to those involved in the care of the patient and to any others who are potentially at risk.
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