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About this book

A practical understanding of the Mental Health Act is essential for social workers, as well as other health and social care professionals. This succinct yet comprehensive book sets out sections of the MHA, from civil and criminal routes into hospital to aftercare in the community, and summarises protections and rights for those subject to the Act.

Table of Contents

Introduction

Abstract
Social workers are involved in issues concerning mental health, regardless of their area of practice. Mental health is an area that raises issues of discrimination, individual and societal values, ethics and morals, all of which are core considerations for the social worker. Social workers practise across boundaries. They may work in child protection but have to consider the impact of parental mental illness on child development. Hospital social work assessments may conclude that a physical health problem and mental health problem are inextricably linked. Social workers who liaise with schools will have experience of child mental health and the work of child and adolescent mental health services (CAMHS). Those working in the learning disability field will be aware that the recognition and diagnosis of mental disorder in this group is low but that the prevalence of mental disorder is high. Social workers supporting people seeking asylum may be faced with the impact of posttraumatic stress disorder (PTSD). Disorders such as postnatal depression, anorexia, anxiety or drug-induced psychosis could feature in any social work setting. Social workers liaise with a variety of services and professions. Some of the key standards of proficiency for qualified social workers include being able to work appropriately with others; recognise the roles of other professions, practitioners and organisations; operate effectively within multi-agency and inter-professional partnerships and settings; understand roles, responsibilities and accountabilities of key colleagues as well as upholding their role and social work function in a multi-disciplinary context.
Christine Hutchison, Neil Hickman

1. Professional Roles

Abstract
Professional roles in the Mental Health Act 1983 There are a range of professional duties and powers in the operation of the MHA 1983, including specific roles for assessing doctors and approved mental health professionals (AMHPs), police and the courts, prior to, during and after admission to hospital as well as in community settings. The 2007 MHA amendments introduced the role of independent mental health advocate (IMHA) for patients subject to certain sections of the Act. The Act also covers the role of relatives, specifically the nearest relative (NR) and their important powers and rights under the Act, which are discussed in later chapters along with the roles of the Care Quality Commission (CQC), Care and Social Services Inspectorate in Wales (CSSIW), hospital managers and second opinion appointed doctors (SOADs). The roles above form part of a wider range of safeguards designed to both prevent arbitrary decisions being made by one person and provide scrutiny and regulation on the use of the Act and support to those subject to the MHA provisions. The professional roles that are the focus of this chapter include the roles of the AMHP, AC, RC and IMHA. The precursors to these roles go back several hundred years, and many of the current duties and powers are recognisable from earlier statutes.
Christine Hutchison, Neil Hickman

2. Mental Disorder

Abstract
Current legal definition of mental disorder and compatibility with the European Convention on Human Rights No freeman ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty or property but by judgement of his peers, or by the law of the land. (Magna Carta of 1215) Moving forward more than seven hundred years, Article 5(1) of the European Convention on Human Rights (ECHR) similarly states: Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. One of the exceptions is the lawful detention of persons of unsound mind. (Art 5(1)(e)) The right to liberty is therefore a limited rather than an absolute human right, and unsoundness of mind may provide lawful justification for the detention of an individual. Our domestic procedure for lawfully depriving someone of liberty due to unsoundness of mind is the MHA. The deprivation of liberty of adults who lack capacity may also be authorised under DoLS or by the Court of Protection (see Chapter 8). The language of A5 ECHR is closely reflected in the legal criteria for detention in the MHA.
Christine Hutchison, Neil Hickman

3. Civil Admissions and Police Powers

Abstract
There are various routes into hospital for assessment or treatment of mental disorder. Chapter 5 covers routes into or out of hospital via the courts or prison. This chapter looks in more detail at Part II of the Act (generally termed ‘civil admissions’) as well as the role of the police in admissions to a ‘place of safety’. The chapter will look at the process for admission under those sections, the duties and powers of the AMHP, doctors and police. An overview of these sections, timescales, treatment rules, access to Tribunals and powers of the nearest relative is set out in grids throughout this chapter. Civil admissions under Part II of the MHA As we have seen, assessing professionals are required to consider the least restrictive option and maximise independence (Code para 1.2-1.6). They should attempt to avoid depriving someone of liberty wherever possible, considering whether alternatives such as community resources can be mobilised. This could, for example, include the use of crisis and home treatment teams whose general aim is to offer rapid assessment in a mental health crisis and, if possible, offer intensive treatment at home as an alternative to admission. If admission to hospital is necessary, they should consider use of informal admission under s.131 MHA or, where it is applicable, the use of the MCA 2005.
Christine Hutchison, Neil Hickman

4. Compulsion in the Community

Abstract
The MHA provides for compulsion in the community for certain patients, and there is also a duty upon the local authority, clinical commissioning group or health board to provide aftercare for patients who are liable to be detained or are discharged from detention under certain sections. Leave of absence (s.17) Patients who are detained in hospital for assessment and/or treatment (some Part II or non-restricted Part III patients) can only leave hospital with permission of their RC. For restricted patients, leave has to be approved by the Secretary of State for Justice. Granting leave of absence from the hospital is usually part of a longerterm plan towards discharge. As such, it should be part of planning and involve the patient, even though the patient need not consent to it. It cannot be underestimated how important many patients view the opportunity to have leave from hospital. S.17(1) states that the RC may grant to any patient who is for the time being liable to be detained in a hospital under this part of this Act, leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interest of the patient or for the protection of other persons.
Christine Hutchison, Neil Hickman

5. Patients Concerned in Criminal Proceedings or Under Sentence

Abstract
Overview, terminology and professional roles The assessment and/or treatment of patients concerned in criminal proceedings is largely dealt with under Part III, MHA. This chapter, however, also considers other policy and legislation relevant to patients at each stage of contact with the criminal justice system, from the point of arrest to discharge from hospital following detention. The Scheme of Part III is, on the face of it, relatively straightforward and, in summary, provides for the detention in hospital of patients: after charge; pre-sentencing; post conviction and for those already in prison either serving a custodial sentence or on remand. However, the interface with the criminal justice system and other statutory provisions and the nexus between treatment and punishment make this a legally and ethically complex area. Terminology for this group of patients tends to be used interchangeably and sometimes misleadingly, and patients may be described as mentally disordered offenders or forensic patients (‘forensic’ simply meaning relating to the courts). However, it is perfectly possible for patients detained under one of the civil sections discussed in Chapter 3 to find themselves within forensic mental health services, even in conditions of high security, without having committed an offence. In addition, a patient may be detained or transferred from prison to hospital under Part III provisions before any conviction for an offence.
Christine Hutchison, Neil Hickman

6. Treatment and Consent

Abstract
Legal principles and definitions The very first sentence of the MHA says: ‘The provisions of this Act shall have effect with respect of the reception, care and treatment of mentally disordered patients’ (s.1(1) MHA 1983). Despite the enormous complexity of mental health legislation, in essence, the MHA is a legal framework to ensure that people with mental disorder can be treated without their consent if necessary. A legal framework is required because, ordinarily, medical treatment without consent may be both a trespass against the person under the civil law and an assault under the criminal law (Sidaway v Board of Governors of the Bethlem Royal Hospital [1985]). Clearly, medical treatment decisions in relation to a person subject to compulsion under the MHA will largely be the domain of the RC and medical staff. However, it is important for social workers acting as care coordinators or AMHPs to have knowledge of the legal framework regarding consent to treatment in order that clients (and families) can be properly informed about what can or cannot be imposed on a patient under the MHA. The Code defines valid consent in general as agreeing to allow someone else to do something to you or for you. Particularly consent to treatment. Valid consent requires that the person has the capacity to make the decision (or the competence to consent if a child) and they are given the information they need to make the decisions and that they are not under any duress or inappropriate pressure.
Christine Hutchison, Neil Hickman

7. Safeguards

Abstract
This chapter explores the main safeguards against arbitrary detention and the role of inspection services. The nearest relative (NR), Mental Health Tribunal (MHT) and hospital managers all have powers to discharge patients from detention. The nearest relative Relatives have played a role in admission and detention of family members for many years. The Madhouses Act 1774 introduced ‘certification’ by a relative of a ‘lunatic’. The 1959 MHA introduced the current hierarchy of relatives referred to below in s.26. The NR is a concept unique to the MHA and is not the same as ‘next of kin’. NRs have specific powers and rights that provide some potentially powerful safeguards of the patient’s A5 right to liberty. However, these powers do not apply to patients subject to short-term detention (such as s.135, s.136 or s.5) or patients detained under Part III court orders or transfer directions. The NR’s powers and rights are as follows: They can make applications (s.11(1)) for assessment, treatment and Guardianship (s.2, s.4, s.3 and s.7). They can require the local authority to arrange for an AMHP to ‘consider the patient’s case’ for possible admission under s.2 or s.3 and provide a reason in writing if they do not do so (s.13(4)).
Christine Hutchison, Neil Hickman

8. Interface Between the Mental Health Act and The Mental Capacity Act

Abstract
The Mental Capacity Act The Mental Capacity Act 2005 (MCA) is intended to be ‘enabling and supportive’ (MCA Code of Practice ch. 2). Its main aim is to assist those over age 16 to make decisions for themselves, only intervening in their best interests (s.4), if they are unable to make that decision when it needs to be made, as a result of incapacity (s.3). Empowerment and personal autonomy are key considerations in the MCA. The Act is also intended to discourage carers from being ‘overly restrictive or controlling’ (MCA Code 1.4). Those working in health and social services should be well acquainted with the MCA and its Code of Practice (e.g. see the Introduction to the MHA Code; and DH 2015b). Although it is now ten years old, ‘prevailing cultures of risk averse and paternalistic practices of social services and health professionals’ have been criticised for preventing the Act from becoming widely known or embedded into practice (House of Lords Select Committee 2014). The DH (2014d) has indicated that professionals’ responsibility to familiarise themselves with this piece of legislation is a ‘basic professional duty’. This applies to anyone working with adults, including a requirement to ensure that an assessment is made of the parents’ capacity to give consent to arrangements for their child (Re CA (A baby): Coventry City Council v C [2012] and Newcastle City Council v WM [2015]).
Christine Hutchison, Neil Hickman
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