Mental health law - operational issues
Immediate re-detention
We often hear from psychiatrists who feel they need to detain a person "immediately" after a previous order has expired. This may be unlawful, e.g. detaining someone on a short-term detention certificate (STDC) after a previous STDC or section 114 certificate has expired. "Immediate" is not defined in law and needs to be interpreted on an individual basis but re-detention within 24 hours is likely to be interpreted as "immediate". This often happens after an application for a compulsory treatment order has been rejected because of an error in making the application.
Immediate re-detention under these circumstances is a contravention of the Act and we cannot advise you to do this. If you think that it is clinically necessary to re-detain the person, then you must document the reasons for this very clearly. You must advise the patient that it is not in keeping with the Act but explain clearly why you are doing it. You should also give the named person an explanation. You must also tell the patient and named person that they may consult a solicitor and that what you have done can be legally challenged. We would also strongly suggest that you get legal advice before re-detaining a person under these circumstances.
In all cases, you should have a full discussion with the patient. If you think the patient needs to stay in hospital, you should discuss whether the patient is willing to stay as an informal patient and record clearly that you did this.
...And also on section 114
Section 114 allows for a patient who does not comply with a community CTO to be detained for up to 28 days. During this time, there must be an assessment of the need to vary the order to include detention in hospital. In my last advice note, I pointed out that the S114 certificate cannot be extended. We still get a lot of calls about what happens when it is about to expire. The way to prevent this is to start an application to vary as early as possible. It can always be withdrawn and the Tribunal can grant interim variations if there is uncertainty as to what will be needed after the 28 day period.
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Care plans
We hope that you find our guidance on care plans (under S76) helpful. If you haven't read it, you can find it here.
Applications for variation to orders must include the present care plan and any previous care plans. We have heard of applications for variation being rejected because previous care plans were missing. It is very important that they are retained.
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Who is the Responsible Medical Officer (RMO)?
Hospital managers must appoint an approved medical practitioner (AMP) to be the RMO. They can also appoint someone to deputise. See section 230. We are asked for advice about who can take on RMO duties for a particular patient. Two scenarios have come up recently:
1.There is a senior psychiatric trainee (who is an AMP) acting as RMO under the guidance of the supervising consultant. This is perfectly acceptable as long as the hospital managers agree that this sort of delegation is appropriate. The records department must record that the trainee is the RMO.
2.If the RMO is not available (on leave or otherwise unobtainable), another AMP must stand in. Hospitals will have arrangements for cross-cover and for a duty consultant. These broad arrangements should document who is the RMO if the usual RMO is unavailable.
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Young people
I had a good meeting with younger people's in-patient services recently. There were two major areas where I thought our views would be helpful.
1.Admitting young people to adult wards. We report on all such admissions and it is disappointing that we are not achieving the target of 50% reduction set out by the delivery plan. I want to make it clear that the Commission has never said that no young person should be admitted to an adult ward. On the contrary, there are times when a brief admission in crisis to a local adult ward is better than admission to an adolescent unit many miles away. We are concerned when the young person does not get access to adolescent medical and nursing expertise, age-appropriate activity or access to education. If young people get access to all of these while in an adult ward, we would not have great concerns. If these are not provided, the NHS Board may not be fulfilling its duty to provide age-appropriate services and accommodation.
2.Mental Health Act versus parental consent. We are often asked for our view on whether a young person with a mental disorder can be treated with parental consent or whether mental health legislation should be used. This is usually in relation to artificial feeding for young people with eating disorders. This is a serious step to take and the Act carries safeguards, including the right to appeal against compulsion and the statutory independent opinion from a designated medical practitioner before treatment starts. It is important to keep parents fully involved and seek their views on the treatment. We do not think that it is acceptable to rely on parental consent in this situation. In general, we advise using the 2003 Act where any young person is being treated against their will for mental disorder and we welcome discussions about any difficult individual case.
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Do we need to detain this person?
We are often asked about detaining people because they are in locked wards or because they are on a heightened level of observation. Both scenarios are likely to involve a significant deprivation of liberty. It should be unusual for informal patients to be in these situations but sometimes it can be justified. Here is the advice we gave in two particular situations.
Admission to a locked ward
A man was admitted to an intensive psychiatric care unit (IPCU). He agreed to come into hospital and he asked to be in the IPCU. He had been in the IPCU previously and knew the nursing and medical staff of the unit well. We were asked if he should be detained just because he was in the IPCU. In this case, we did not think that detention was necessary. It was evident that admission to the IPCU was likely to be of greatest benefit and that it was in accordance with the patient's wishes. We said that the patient and all staff should understand that he is informal and that, with appropriate agreement in the care plan, he can leave the ward if he wishes. Each individual situation is different and there is a risk that informal patients in IPCUs and other locked wards could be "de facto" detained. In all cases, we advise telling the person that, if they think they are being "detained" while actually informal, there is a right of appeal against this to the Tribunal (section 291).
Constant or special observation
Nursing staff contacted us because they were uneasy about "special observation" for an informal patient. Special observation meant having a nurse within arm's length at all times. This seemed such a restriction on the person's freedom that they thought she should be detained. The reason for special observation was to prevent impulsive self-harming behaviour. We said that if the reasons for the high level of observation were made clear to her and she agreed with the plan, then there was no need to detain. If she expressed or demonstrated resistance to special observation, then detention should be seriously considered.
Again, each situation is different. In general, if the heightened observation is because of a risk of absconding, then this may be a deprivation of liberty. If it is to prevent people harming themselves or others, then it is less straightforward. Using principles (e.g. maximum benefit, least restriction of freedom and the importance of information and patient participation) will help and it is important to avoid excessive coercion. There is a danger in accepting people's consent to such a deprivation of liberty and interference with their right to privacy. Again, we advise letting the patient know about the section 291 provisions for appeal.
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Extending a CTO or CO: medical examination
We have identified a few cases of improper extension of orders because medical examinations have not been performed at the right time, or sometimes not performed at all.
The responsible medical officer (RMO) must examine the patient, or arrange for another approved medical practitioner to conduct an examination. This must be within two months before the order expires. If we receive a form that states that the examination was earlier than this, we will query it and we are likely to say that we consider the order improperly extended. The form is not statutory so if the RMO can provide written documentation that there was a further examination of the grounds for compulsion within the two month period, that would be acceptable. If not, we think it would be safest to regard the order as having lapsed.
Extending a community order can be a problem if the patient does not attend for review. We have been notified of orders that were extended on the basis of a report to the RMO by a community psychiatric nurse. This is not a proper determination to extend and we take the view that the order has lapsed. There must be a medical examination. If the order contains the measure that the patient attend for appointments with the RMO, then section 113 could be used. This would allow for a brief admission so that the RMO can conduct an examination. The principle of least restriction of freedom applies and admission should be for the shortest time possible.
Part 16 again
A few issues and reminders about medical treatment under part 16 or the 2003 Act:
Please use version 6.1 of the T2 and T3 forms (available here).
Only a child specialist can certify consent on a T2 form for someone under the age of 18
Reminder – any medication given for mental disorder after two months since any such treatment was first given must be authorised by a T2 or T3 form. I a DMP opinion is needed, please notify the Commission in plenty of time before the two months is up. If we cannot arrange a DMP in time, you can continue treatment if it meets the grounds of section 243 and you should notify us on form T4.
Adults with incapacity law - operational issues
Indefinite guardianship: again
We still see many orders for welfare guardianship granted on an indefinite basis. We already identified the problem of no automatic review. As well as our concerns about young people, we have many notifications of indefinite welfare guardianship for people with acquired brain injury and alcohol-related brain damage. These conditions can improve. We suggest that orders should be granted on a time-limited basis. If not, we strongly recommend particular attention to periodic reviews to ensure that the adult still lacks capacity and that the measures remain necessary and that their use is meeting the adult's needs. Such reviews are in keeping with both the principles of the legislation and the Code of Practice.
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