Peter Edwards
Solicitor
The 1st April 1996 saw the introduction of this important new development in Mental Health Law.
It has three elements to it.
This Act has not been welcomed by any of the professional bodies in the UK. It has been enacted apparently as a result of public concern about people with mental health problems in the community who have killed or injured people. The cases of Ben Silcock (who jumped into the Lions' Den in London Zoo) and Christopher Clunis (who stabbed Jonathan Zito on a railways station) come immediately to mind. We have seen a proliferation of Inquiries. There are echoes here of the era of Inquiry and public concern over social worker's perceived inadequate responses to the needs of children. We are told that this is the tenth part of the Department of Health's ten point plan.
Other than the concerns of the public I can identify two other sources of this legislation. Firstly, the Royal College of Psychiatrists were keen to promote, initially the 'Community Treatment Order' and then the 'Community Supervision Order'. This was aimed at providing further powers where patients in the community stopped taking their medication, relapsed and had to be readmitted to hospital. The second group to make a particular contribution were Approved Social Workers who for years have resisted using Guardianship for many reasons but amongst them was the lack of the power to convey. The new act contains such a power.
If a person is detained under section 2, 3 or 37 of the Mental Health Act 1983 then no conditions can be imposed on them when they are discharged from hospital. Under existing law conditions can only be imposed on discharge if they are detained on a restriction order under s.37/41 and they are then conditionally discharged.
S.117 of the Mental Health Act places a joint legal duty on Health and Social Services to provide after-care for patients who are discharged from hospital if they have been detained under s.3, s.37 or s.37/41 of the Act and are then discharged. However there is no obligation on a patient to accept after-care. A patient has the legal right to refuse it.
Health and Social Services should exercise with great caution their willingness to remove s.117 responsibility. It is easy to do this unlawfully. The decision to remove s.117 responsibility has got to be a joint one. This is because it is a joint obligation. If either Health or Local Authority remove it unilaterally then, in my opinion, that would be unlawful.
Another way that the legal requirement may not be complied with is for the duty to be removed either if the client requests it or alternatively, if there are no current after-care plans.
The words in the statute indicate that the one and only reason that the s.117 duty might be removed is if the person is 'no longer in need of 'after-care services. An unwillingness to receive services by the client is often evidence that they are required. Because long term sections of the Mental Health Act tend to be used on clients who have a severe and enduring mental illness, in many cases the responsibility could be lifelong.
Schedule 1 of the New Act amends s.117 to make it quite clear that if a patient is detained under a long term section of the Mental Health Act and is then discharged from section then s.117 applies, even if they are not immediately discharged from hospital.
It may require very good record keeping to be sure that at no time since 1983 has a person been subject to s.117 responsibility.
You may ask why this matters. There are at least three very good reasons
Firstly, a MHRT for a person detained under s.2 may enquire as whether s.117 responsibilities apply. They clearly would if the patient has ever been detained on a long term section under the Mental Health Act 1983 and it had not been brought to an send or alternatively , it had been determined unlawfully.
Secondly is that until the law in relation to charging policies is clarified, there is at least a possibility that if a client is unlawfully removed from s.117 responsibility and is subsequently charged for services that they would not have been charged for had the 117 remained then they would be entitled to reimbursement. This could be a substantial sum of money.
Thirdly, as departmental guidance indicates that community care services should be prioritised to those people who have a severe and enduring mental illness, then those who are subject to the statutory requirements of s.117 are likely to be high on the list. In some areas it may be the only way to get appropriate services.
I would suggest that the descending order of priority might be those who are subject to the following :
It is possible that patients may have to remain in hospital longer because the doctor, the hospital managers or a Mental Health Review Tribunal are concerned that a person's mental health might deteriorate if they don't co-operate with after-care. This often means taking the medication prescribed by the doctor.
Indeed as one of the statutory requirements for being subject to supervised discharge is that without it, there would be either a substantial risk of serious harm or of serious exploitation, then if supervised discharge were not used, the patient would surely have to remain detained on section.
It is therefore ironic that it is sometimes easier to persuade a Tribunal to conditionally discharge a restricted patient (s.37/41) than an unrestricted patient who can only be discharged without conditions.
Under what is known as the Care Programme Approach, all patients who are discharged from hospital (whether sectioned or not) should only be discharged after the risks of discharge have been fully assessed. There must also be a plan setting out the after-care that will be provided and a key worker should be appointed with specific tasks. There should also be a systematic arrangements for the regular review of the after-care.
The assessment of risk at discharge should be carefully based on the after-care services which will actually be provided rather the those which might be desirable but not attainable. If some services are withdrawn the assessment of risk should be reconsidered.
Some patients, who may present a substantial risk of harm to themselves or others should be placed on the Supervision Register.
This is different to Supervised Discharge because it involves the patient's doctor putting them on the Register which is an entry in a person's case notes. It is an administrative decision based on clinical judgement and there is no effective mechanism for appeal. Supervision Registers and the Care Programme Approach are part of departmental guidance rather than the law.
A patient's RMO will be able to make an application to the Health Authority that is responsible for s.117 after-care. The application is for a patient to be placed on After-care under Supervision (or Supervised Discharge) when the patient leaves hospital.
The following conditions must be met.
1. A patient is already detained under s.3, s.37, s.47 or s.48. (or on s.17 leave of absence).This does not apply to s.37/41. and 2. The patient is 16 or over. and 3. The patient is suffering from: - mental illness - psychopathic disorder - mental impairment or - severe mental impairment. 4. There is substantial risk of serious harm to : - the health or safety of the patient or - the safety of others. or 5. There is a risk that the patient will be seriously exploited if the after-care services provided under s.117 were not received. and 6. That by placing the patient on Supervised Discharge it is likely to help to ensure that the patient will receive after-care services.
The reference to 'serious exploitation' will be particularly relevant when discharging vulnerable patients into the community. Defining substantial and serious will be problematic and guidance should be included in local policy and guidance. The new code does not help on this point.
This above criteria could possibly be used for the following patients:
Under the 1983 Mental Health Act the maximum period a person could be on s.17 leave was 6 months. However, the new Act gives RMO's the power to keep patients detained on section under the Mental Health Act for longer. A patient can now be kept on Leave of Absence from hospital under s.17 Mental Health Act 1983 up until the time that the section is next due for renewal.
E.g. A person is detained under s.3 and their section has just been renewed for 12 months They are then granted Leave of Absence to live outside hospital. This could continue for nearly 12 months i.e. the time when the section is next due for renewal.
While on leave under s.17 a patient has to comply with the conditions that are imposed by the doctor. One of those conditions may well be to take medication. Because the patient is still detained on section, even though out of hospital on leave, the provisions of the Mental Health Act which require a patient to continue taking medication still apply. Indeed, even if the conditions are being complied with, it is still possible for the RMO to recall the patient back to hospital if they believe that the patient's condition justifies this.
Remember that the discharge criteria where a patient is on s.17 leave is their liability to be detained in hospital for medical treatment.
Because patients on leave are still the responsibility of the Trust, there could well be financial implications if people are on s.17 leave for longer periods. e.g. who pays for the residential placement?
The Purpose of the Legislation
You may have noticed that the press show a lot of interest in cases of community care when it goes wrong. They do not show the same interest in the vast majority of cases where people with mental health problems live safely and where they are valuable members of their own communities. Sexism and racism are 'isms' of which we are conscious. Mentalism (i.e. discrimination on the grounds of a person's mental ill health) is not.
The trend in mental health legislation and guidance from the Department of Health over the last few years has been to introduce greater powers for mental health professionals and less resources to support people with mental health problems in the community. The proportion of people detained in psychiatric hospitals who are on a section is increasing.
Perhaps one of the most valuable uses of the new Act does not explicitly appear in the Act or the Code. Concern has often been expressed to me that services and resources are often withdrawn from patients in the community on the basis that they are doing well. However, if the reason that they are doing well is the success of their current after-care plan then any reduction in this could be disastrous. The process of changing an after-care plan or requirement under the new Act is so laborious that it may act as a disincentive.
The power that some considered had been omitted from the Mental Health Act 1983 was the power to force people to accept psychiatric medication after they were discharged from hospital and section. The original plan was to force people to have medication in their own homes. This was scuppered when the community nurses said they wouldn't do it and it was realised that it would breach European Law.
As far as the government is concerned, The Mental Health (Patients in the Community) Act, is the next best option. The model letter in the new Code states,
" You must however keep to the arrangements which have been made unless it is decided that they should be changed. If you do not do this, a review of the supervised discharge arrangements will take place. This may include considering whether you should be assessed again for possible admission to hospital under the Mental Health Act 1983."
If you were the patient would not this sound as if the doctor is saying that if you do not take your medication then you will be sectioned? I know that this is not what is actually says but is it not designed to mislead?
Under the new Supervised Discharge there is no provision similar to the compulsory treatment section in the Mental Health Act. A person cannot be forced against their wishes to take medication after they have been discharged from hospital and section.
In the Code of Practice to the new Act it states:
' Supervised discharge is an arrangement by which a patient who has been detained in hospital for treatment under the provisions of the 1983 Act may be subject to formal supervision after he or she is discharged. The purpose is to help ensure that the patient receives the after-care services to be provided under s,117 of the Act.'
The law that applies to the treatment of patient's in the community under the new Act is the Common Law.
There is an important principle in Common Law that if a person has the ability to understand then they have the right to refuse medical treatment. This right is only affected if a person is a young child, is detained under the Mental Health Act or does not have the legal capacity to make decisions about their treatment.
In all other cases a person has the right to say yes or no to medical treatment even if they do not have a good or sensible reason.
One worrying factor in the new Act is how it affects the principle of informed consent. When deciding whether or not to give consent a person must not be put under undue pressure.
The Common Law of informed consent is set out in the Code of Practice to the Mental Health Act. It states that:
'Consent is the voluntary and continuing permission of the patient to receive a particular treatment, based on an adequate knowledge of the purpose, nature, likely effect and risks of that treatment..... Permission given under any unfair or undue pressure is not consent..'
I will put my concern in the form of a question.
Assume that we have a patient living at home and they are under Supervised Discharge. They are told that they should take the medication prescribed by their Community Responsible Medical Officer. The patient knows that they have the legal right to refuse treatment but under section 25E(2) of the New Act failure to comply with the conditions could lead to being sectioned.
Is this consent to take medication given under unfair or undue pressure? If it is then it is not consent and if it is not consent it is an assault. It is a fine dividing line between giving truthful information and creating unfair or undue pressure.
As can be seen there is a complex process of application and consultation involving many people before the new Supervised Discharge can be take effect.
Under the new Act various conditions can be imposed on the patient such as where to live or whether to attend a day centre or outpatient clinic and there is even a power to convey people, against their wishes to these places. These conditions are known as requirements.
The new Act indicates that where a patient refuses or neglects to receive the prescribed after-care or doesn't comply with the requirements that are imposed, then those responsible for the after-care must consider (amongst other things) whether it would be appropriate to admit a person to hospital on section.
In other words, it may seem from the patients point of view that if you don't do as you are told you might be sectioned.
Mental Health Review Tribunals have new powers to remove Supervised Discharge and, to recommend that the RMO consider making an application for its imposition. If the RMO does not do this within the time stipulated by the Tribunal, then the Tribunal may reconvene if they wish to do so and require the attendance of those who are seeking to frustrate the recommendation. Tribunals could well be the driving force behind the use of these new powers.
The Application for Supervised Discharge
This can only be made by the patients RMO while the patient is still in hospital on section or on Leave of Absence under section 17 Mental Health Act. This has to be made on a Form 1S.
The application has to be supported by two other people.
If he/she is not available, or the RMO is also going to be the CRMO then the application can be made by any other doctor, preferably the patient's own General Practitioner . It could be another doctor from the same hospital as the RMO but not one who works under the direction of the RMO. This doctor does not have to be approved under s.12 Mental Health Act as having special experience in psychiatry.
They should each visit and interview the patient preferably within a week of each other and all three should discuss the application with each other.
They should inspect all the patient's records including details of treatment in hospital and the proposed after-care arrangements.
They should base their opinion on a fully informed judgement.
It should be noted that the application reverses the existing principles under the Mental Health Act 1983 where it is the ASW who makes the application and it has to be supported by two medical opinions. In the new Act the RMO makes the application and it is supported by the ASW and another doctor.
A social worker involved in a patient's case may sometimes be acting in a quasi independent role as ASW and sometimes as the spokesperson for the Local Authority as to what is available. Sometimes they will be the patient's social worker, in which case they will be trying to secure what should be available and sometimes they will be carrying out the financial assessment under the National Health Service and Community Care Act. Sometimes they will be fulfilling all of these roles!