mental health act 2007: workbook general … awareness...general awareness module version 1 1...

Version 1

Mental Health Act 2007: Workbook

General Awareness Module


Version 1

Table of Contents

Introduction ..................................................................................................................1

About this Workbook ...............................................................................................1

How to use the workbook........................................................................................1

Module objectives ...................................................................................................2

Before you begin ... ......................................................................................................3

The background to and purpose of the Mental Health Act 2007 ..................................5

Why was this review necessary? ............................................................................5

The Mental Health Act 2007....................................................................................5

Key changes to the Mental Health Act 1983 ................................................................7

Mental disorder .....................................................................................................10

Appropriate medical treatment ..............................................................................12

Professional roles..................................................................................................14

Supervised community treatment..........................................................................18

Nearest relative .....................................................................................................22

Informal admission of patients aged 16 or 17........................................................24

Independent Mental Health Advocates .................................................................25

Electro-convulsive therapy ....................................................................................27

Power to "take and convey" ..................................................................................28

Places of safety.....................................................................................................30

Mental Health Act 1983 Code of Practice for Wales...................................................31

Overview ...............................................................................................................31

The guiding principles in the new Mental Health Code of Practice for Wales .......31

Changes to the Mental Capacity Act 2005 .................................................................33

Background...........................................................................................................33

What is a 'deprivation of a person's liberty'? .........................................................34

Standard and Urgent Authorisations .....................................................................35

Standard Authorisations........................................................................................35


Version 1

Urgent Authorisations............................................................................................37

Feedback to quiz ........................................................................................................38


Version 1

Acknowledgements

Produced by:

Walkgrove Ltd. 3 Enterprise Court, Hamilton Way, Mansfield, Notts. NG18 5BU


Version 1 1

Introduction

About this Workbook

This workbook is for those indirectly involved in the provision of mental health and

learning disability services. It will be useful for you if you work in services such as the

police, ambulances, or in a General Hospital, Accident and Emergency.

Its aim is to provide a general awareness of the changes to existing mental health and

mental capacity 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

• Mental Capacity Act 2005

The content of the workbooks examines the ways in which these have been changed,

and examines some of the more important changes in practice that have resulted.

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 access to a copy of the Mental Health Act 1983 Code of

Practice for Wales

• Discuss your answers with a colleague to ensure you have explored the relevant

issues and you can relate them to your work.


Version 1 2

Module objectives

After studying this workbook you will be able to:

• Explain the background to and purpose of the Mental Health Act 2007

• Outline the following key changes to the Mental Health Act 1983:

• Definition of mental disorder

• Criteria for detention

• Professional roles

• Nearest relative

• Informal admission for 16 or 17 year olds with capacity

• Introduction of supervised community treatment (SCT)

• Transfer of persons between places of safety

• Advocacy

• Electro-convulsive therapy

• Identify the guiding principles of the Mental Health Act 1983 Code of Practice for

Wales and outline the importance of the Code when applying the Act

• Define the principal changes to the Mental Capacity Act 2005.


Version 1 3

Before you begin ...

Try to answer the following questions, then work through the workbook before checking

your answers. You will find the suggested answers at the end of the workbook.

You will have the opportunity to review and revise your answers (if you wish) before

checking them.

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.

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 for the purposes of the 1983 Act 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.


Version 1 4

10 Responsible clinicians will be hospital clinicians.

11 The new Mental Health Act 1983 Code of Practice for Wales is stronger than before.

12 An adult ward can be used for a child if it will meet the child’s needs.

13 The Mental Health Act 1983 takes precedence over the Mental Capacity Act 2005.


Version 1 5

The background to and purpose of the Mental Health Act 2007

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 criteria for

detention

• To bring mental health legislation into line with modern service provision 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

Following the review, the existing legislative framework has been amended by the

Mental Health Act 2007 (the 2007 Act).

This Act has introduced amendments to several earlier Acts, specifically:

• The Mental Health Act 1983

The principal legislation concerned with the reception, care and treatment of

mentally disordered people remains the Mental Health Act 1983 (the 1983 Act).

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 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 Act.


Version 1 6

• 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.


Version 1 7

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.

• Appropriate medical treatment

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.

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 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


Version 1 8

if necessary.

The introduction of SCT also involves the creation of a new community treatment

order (CTO), which is covered by a new section in the 1983 Act (section 17A).

• Professional roles

The group of practitioners who can take on the functions previously performed by

the responsible medical officer (RMO) and the approved social worker (ASW)

has been broadened.

The role of responsible clinician (RC) has replaced that of RMO. The RC does

not need to be a consultant psychiatrist, but must be an approved clinician (AC).

The role of approved mental health professional (AMHP) has replaced that of

ASW. In addition to registered social workers, other mental health professionals

will be able to take on the role of AMHP after suitable training.

• Nearest relative

Patients now have a right to make an application to the county court to displace

their nearest relative and county courts are able to make such a displacement,

where there are grounds for doing so.

The provisions for determining the nearest relative have also been amended to

include civil partners amongst the list of relatives (alongside spouses) - this has

been the case since 1 December 2007.

• Treatment of children and young people

An important 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.

• 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.


Version 1 9

• 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 impose ECT on a detained

patient who has the capacity to consent, other than in an emergency situation.

• Powers to transfer patients

New powers have been introduced for transferring and conveying certain

patients, including:

• The power to "take and convey" a person received into guardianship to

the place where they are required to reside (from 3 November 2008).

• The power to transfer a person detained under sections 135 or 136 from

one place of safety to another (from 30 April 2008).

• Code of Practice for Wales

Finally, as a result of changes to the 1983 Act, the Welsh Ministers have decided

to issue a separate Mental Health Act 1983 Code of Practice for Wales, to which

those performing certain functions under the 1983 Act must have regard.

The Code includes a set of guiding principles which should be considered

whenever a decision has to be made about a course of action under the 1983

Act.

Let us now move on to look at each of these changes in a little more detail.


Version 1 10

Mental disorder

Definition of mental disorder

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).

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 only where

criteria are met.

Exclusions

There are some important exclusions from the conditions that would be classed as

mental disorders within the meaning of the Act.

Learning disability

While learning disability in general would come under the definition of 'mental disorder',

the legislation specifies that a person can only be detained for treatment, received into

guardianship or discharged onto SCT where their learning disability is associated with

abnormally aggressive or seriously irresponsible conduct.

However, a person with a learning disability can be detained for assessment, even in

the absence of such abnormally aggressive or seriously irresponsible conduct.

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.


Version 1 11

Dependence on Alcohol or Drugs

Section 1(3) of the 1983 Act formerly said 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”.

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 1983 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 Act. A

person who is dependent on alcohol or drugs may also suffer from another mental

disorder arising as a result of that dependency 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

• Learning disability is excluded (save with respect to assessments) unless

associated with abnormally aggressive or seriously irresponsible behaviour. The

effect is essentially the same as before.


Version 1 12

Appropriate medical treatment

Overview

The criteria that must be met before a patient can be subject to detention under section

3 of the 1983 Act remain generally much as before. Similar criteria also now apply to

the new provisions for SCT.

However, there is an important addition to the criteria for detention for treatment in that

'appropriate medical treatment' must be available for the patient. At the same time, the

previously used 'treatability test' has been removed.

Point to note

The appropriate medical treatment test does not apply to section 2 of the 1983 Act

(admission for assessment).

Applying the 'appropriate treatment' test

The new appropriate medical treatment test replaces the previously used 'treatability'

test. The treatability test required a judgement to be made on whether medical

treatment was 'likely to alleviate or prevent deterioration in the patient's condition'. This

requirement no longer applies.

The appropriate medical treatment test will only be met if medical treatment:

• is available to the patient in question, and

• is appropriate for them, given the nature and degree of the patient’s mental

disorder, and

• all other circumstances of the patient's case.

Let's look at some of those conditions in a little more detail.

� Availability

The test requires that appropriate treatment is actually available for the patient. It is

not enough for appropriate treatment to exist in theory for the patient's condition.

� What is meant by 'medical treatment'?

The definition of medical treatment (at section 145 of the 1983 Act) has been

amended to read:

"Medical treatment includes nursing, psychological intervention and specialist

mental health habilitation, rehabilitation and care".


Version 1 13

The Act also now stipulates that the purpose of medical treatment "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.


Version 1 14

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 Clinicians (ACs)

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

approved clinicians.

To fulfil the professional requirements, a person must be one of:

• a registered medical practitioner

• or a chartered psychologist

• 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.


Version 1 15

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).

In addition to the functions which RCs have taken over from RMOs, they also have 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.

The RC is responsible for renewing a patient's detention or extending their CTO. Before

furnishing a renewal report for detention, the RC must secure the written agreement of

a second professional. This second person must have been professionally concerned

with the patient’s medical treatment and not belong to the same profession as the RC.

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.

Who will be the RC?

In all cases the RC will be the AC with overall responsibility for the patient’s case. This

is set out in section 34(1) of the 1983 Act.

If the RC is not qualified to make decisions about a particular treatment then another

appropriately qualified professional will take charge of that matter, with the RC

continuing to retain overall responsibility for the patient's case.


Version 1 16

For example, where a patient is receiving SCT, it is possible that a social worker who is

an AC will be named as their RC, being well placed to oversee the patient's progress

while living in the community. In such a case, there may well be a medical component

to the overall care plan, but the social worker acting as the RC, will not have to make

decisions on that particular aspect; an AC who is a registered medical practitioner will

take on that responsibility.

Bear in mind also that the person appointed as the RC may change over time in order

that the individual's needs continue to be met. Thus, in the example quoted, it is

possible that such a change would have occurred when the person was discharged

onto SCT, with the role moving from a registered medical practitioner who is an AC to a

social worker who is an AC.

Approved mental health professionals

Now let us move on to consider the role of the AMHP.

Functions of the AMHP

As has already been noted, the AMHP has taken over 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.

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 if

they have the right skills, experience and training. This means that in future first level

nurses, occupational therapists and chartered psychologists may be an AMHP.

Point to note

A registered medical practitioner is specifically prohibited from being approved to act as

an AMHP.

The intention is to ensure that there will be a mix of professional perspectives at the

point in time when a decision is being made regarding a patient's detention.


Version 1 17

How is an AMHP 'approved'?

Local Social Services Authorities (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 (see below) 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 a:

• 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.


Version 1 18

Supervised community treatment

Overview

An important change brought about by the 2007 Act is the introduction of supervised

community treatment (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

they continue with the medical treatment that they need.

An individual may be discharged onto SCT by way of a community treatment order

(CTO) being made. This is intended to ensure that they receive their treatment.

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.

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.

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.

• 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 is 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.


Version 1 19

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.

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 Act) with

the agreement of an AMHP.

Criteria for the CTO

The RC and AMHP must be satisfied that the following 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.

When making these decisions, the RC must consider the risk that the patient’s condition

might deteriorate after discharge from hospital. For example, this could happen as a

result of their refusing to receive the treatment they need.

Conditions of the CTO

The CTO will 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.


Version 1 20

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.

How long does the CTO last for?

A CTO may initially last for up to 6 months from the date when the order was made. The

order can then be extended for a further 6 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.

Recall to hospital

A community patient may be recalled temporarily to hospital if the RC decides:

1. that the patient needs to receive treatment for his or her mental disorder in a

hospital, and

2. 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.

The RC can recall a patient only for a maximum of 72 hours without revoking the CTO.

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. If the AMHP does not agree, the patient will remain on SCT.


Version 1 21

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.

Signpost

Chapter 30 of the Code of Practice for Wales gives specific guidance on SCT.


Version 1 22

Nearest relative

Role of the patient's nearest relative

The 1983 Act provides a role for the patient's nearest relative.

Under the legislation, the nearest relative has certain rights in connection with the care

and treatment of a mentally disordered patient, including

• the right to apply for admission to hospital

• the right to block an admission for treatment

• the right to discharge a patient from detention in hospital or SCT

• the right to certain information that has been given to the patient.

Point to note

The 2007 Act has not made any changes to the role and functions of the nearest

relative (except to extend the safeguard for patients who have been discharged onto

SCT).

Who may act as the nearest relative?

Section 26 of the 1983 Act included a list of persons who may act in this role:

• husband or wife

• son or daughter

• father or mother

• brother or sister

• grandparent

• grandchild

• uncle or aunt

• nephew or niece.

The person appointed will usually be the highest in the list, starting with any spouse or,

if there is none, the eldest son or daughter, and so on.

The 2007 Act has updated this list of persons who may act in the role of nearest relative

by giving a civil partner equal status to a husband or wife - this has been the case since

1 December 2007.


Version 1 23

Displacing the nearest relative

The 1983 Act allowed various parties to apply to the county court for an order displacing

the nearest relative on grounds such as:

• the nearest relative is too ill to act

• the nearest relative unreasonably blocks admission

• the nearest relative has discharged (or is likely to discharge) the patient without

due regard.

The 2007 Act has changed this in two ways.

1. Not a suitable person

The grounds on which an application for displacement may be made have been

extended, and now includes provisions that “the nearest relative of the patient is

not a suitable person to act as such”. Thus a nearest relative who has, for

example, in the past subjected a patient to physical abuse may be displaced by

the county court from exercising the majority of the rights of the nearest relative.

2. Right for a patient to apply

There is a new right for a patient to apply to the court for the nearest relative to

be displaced on the same grounds available to other applicants.


Version 1 24

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.

In the latter case, the young person could nevertheless be admitted to hospital for

compulsory treatment under the 1983 Act if they meet the relevant criteria.


Version 1 25

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.

Qualifying patients

Patients who qualify for support from an IMHA are:

• 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 (i.e. those on SCT)

Qualifying patients must be informed that they are eligible for the services provided by

an IMHA as soon as is practicable. An IMHA may 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

• 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.


Version 1 26

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.

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 a 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'.

Signpost

Chapter 25 of the Code of Practice for Wales gives more guidance on the role of the

IMHA.


Version 1 27

Electro-convulsive therapy

Section 58A has been inserted into the 1983 Act by the 2007 Act.

This introduces new safeguards for patients concerning the use of electro-convulsive

therapy (ECT), including the abolition of the power to impose ECT on a detained patient

who has the capacity to consent. This does not prevent such treatment being given in

emergency situations under section 62.

Need for consent

Section 58A provides that ECT can only be given when the patient:

• has capacity to decide and gives consent, or

• is incapable of giving consent.

More detail is given in these circumstances below.

Patients capable of consent

The patient's consent must be certified by an appropriate professional:

• Where a detained adult patient consents to treatment with ECT, their consent

must be certified by either the AC in charge of their treatment or by a Second

Opinion Appointed Doctor (often referred to as a SOAD).

• Where a patient under 18 years of age who is either a detained patient or an

informal patient not subject to a CTO consents to such treatment, a SOAD must

certify their consent and that it is appropriate for the treatment to be given.

Point to note

These rules are subject to the provisions about urgent treatment in section 62 of the

1983 Act. This is to ensure that a patient, including one who is not consenting, can still

receive such treatment in an emergency if there is insufficient time to apply the above

procedures.


Version 1 28

Power to "take and convey"

Section 18 of the 1983 Act already included a provision that a patient who is for the time

being liable to be detained can be taken into custody and returned to the place where

they are required to reside, as named in their care plan.

This provision related normally to situations where the patient is 'absent without leave'.

They may, for example, have absented themselves from hospital or simply failed to

return to hospital after a period of leave of absence.

This provision remains in place, but the 2007 Act has made some important additions to

it, specifically relating to:

• community patients, and

• the interpretation of 'returned'.

Let's look briefly at each of those.

Community patients

Under a new subsection (2A) of section 18, the power has been extended to include

community patients. Thus, a community patient who has been recalled to hospital can

be taken into custody and returned to the hospital.

'Returned' includes the first time

A new subsection 7 of section 18 provides that a reference to a patient’s being

'returned' to a place where they are required to be means that the patient can be taken

there for the first time.

It is therefore not confined to their being returned after absconding or failing to return

voluntarily.

Point to note

This latter change covers all patients under the 1983 Act, including those subject to

guardianship.


Version 1 29

Who can exercise this power?

The power to 'take and convey' the patient may be exercised by:

• an AMHP

• an officer on the staff of the hospital

• a constable (in effect any police officer)

• anyone authorised in writing by the RC or the hospital managers.


Version 1 30

Places of safety

Existing powers of removal to a place of safety

The 1983 Act, prior to amendment, had already conferred on the police powers to

remove a person to a place of safety.

Under section 135(1) the police can, on the authority of a magistrate, enter premises

and remove to a place of safety a person who:

• is thought to have a mental disorder, and

• has been or is being ill-treated or neglected, or

• if living alone, is unable to care for themselves.

Under section 135(2) the police can, on the authority of a magistrate, enter premises (if

need be by force) and remove a patient who is liable under the 1983 Act to be taken or

retaken into custody.

Under section 136 the police can remove from a public place to a place of safety a

person who:

• appears to have a mental disorder, and

• appears to be in immediate need of care or control.

Removal under section 136 may take place if the police officer believes it necessary in

the interests of that person, or for the protection of others.

Under these sections, the person can be detained at the place of safety for up to 72

hours.

New power to transfer

The 2007 Act has amended both section 135 and section 136 so as to enable a person

detained at a place of safety to be transferred to another place of safety. Their detention

remains subject to the overall time limit of 72 hours.

Point to note

A place of safety for this purpose is defined in section 135(6) of the 1983 Act and

includes a hospital, a care home, a police station or other suitable place.


Version 1 31

Mental Health Act 1983 Code of Practice for Wales

Overview

The 1983 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, more

particularly in relation to admitting persons to hospitals 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.

The guiding principles in the new Mental Health Code of Practice for Wales

Chapter 1 of the Code 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.

Point to note

All of the other chapters of the Code of Practice 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 categories.

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.


Version 1 32

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.


Version 1 33

Changes to the Mental Capacity Act 2005

Background

The Mental Capacity Act 2005 has been amended to provide additional safeguards for

people whose care or treatment necessarily involves a deprivation of liberty, but who

are not, or cannot be, detained under the Mental Health Act 1983.

Essentially, a hospital or care home must now seek authorisation from a ‘supervisory

body’ in order to be able to deprive someone of their liberty in such circumstances.

Such authorisation may be either 'standard' or 'urgent'.

These safeguards are referred to as 'deprivation of liberty safeguards'. They have been

introduced to the Mental Capacity Act 2005 through the relevant amendments made by

the Mental Health Act 2007. It is expected that these will come into force in April 2009.

They come into play when:

• someone who has a mental disorder, and

• who lacks capacity to make decisions for themselves,

• is (or is to be) deprived of their liberty

• in a hospital or care home

except where that person:

• is detained under the provisions of the Mental Health Act 1983, or

• is under 18 years of age.

Where all the above conditions are met:

• the hospital or care home (which is referred to as a 'managing authority') must

seek authorisation for its actions from a 'supervisory body'.

• without such authorisation being granted, the deprivation of liberty may not

proceed.

Point to note

In Wales, the supervisory body for persons in hospital will be a Local Health Board

(LHB) unless a primary care trust (PCT) commissions the relevant care and treatment,

in which case the PCT itself will be the supervisory body.

For persons in a care home, the supervisory body will be the local authority for that

area.


Version 1 34

Authorisation for the deprivation of liberty will be given by the supervisory body only if it

is satisfied that:

• it is in the person's best interests, and

• there is no less restrictive alternative available.

The deprivation may continue only for the shortest period that is necessary.

What is a 'deprivation of a person's liberty'?

Deprivation of liberty is not specifically defined in the Mental Capacity Act 2005.

This means that the legal interpretation of deprivation of liberty will in the end be a

question for the courts, as decided in cases brought before them.

There can be no simple definition that would apply in all cases:

• it will depend very much on the circumstances of the particular individual.

• although it is a fine distinction, the person must definitely have been deprived of

their liberty; if their liberty has been only restricted, then their case will not come

within these safeguards.

Based on existing case law, the following factors might well be considered by the courts

to be relevant when considering whether or not a deprivation of liberty is occurring,

rather than just a restriction:

• the person is not allowed to leave the home or hospital.

• the person has no, or very limited, choice about their life within the care home or

hospital.

• the person is prevented from maintaining contact with the world outside the care

home or hospital.

Practically, this means that the question of whether a person is being deprived of their

liberty will need to be kept under review and addressed explicitly whenever a change is

made to their care plan.


Version 1 35

Standard and Urgent Authorisations

Standard Authorisations

Qualifying requirements

Before a managing authority applies to the supervisory body for a standard

authorisation to detain a person as a resident in a hospital or care home in

circumstances which amount to deprivation of their liberty, it must be satisfied that the

individual appears to meet the qualifying requirements.

There are six requirements against which the case must be assessed:

1. The age requirement

The person must be aged 18 or over. The deprivation of liberty safeguards only apply to

people aged 18 or over. For people under the age of 18, different safeguards apply.

2. The mental health requirement

The person must be suffering from a mental disorder within the meaning of the 1983

Act. However, this is not an assessment to determine whether the person requires

mental health treatment.

3. The mental capacity requirement

The person must lack capacity to decide whether or not they should be a resident in the

hospital or care home.

4. The best interests requirement

The deprivation of liberty sought must be:

• in the best interests of the person

• necessary in order to prevent harm to him or her

• a proportionate response to the likelihood of suffering harm and the seriousness

of that harm.

5. The eligibility requirement

In summary, a person is ineligible under these safeguards if they are already subject to

the Mental Health Act in one of the following circumstances:

• they are actually detained in hospital under the main powers of detention in the

Act


Version 1 36

• they are on leave of absence from detention or subject to guardianship, SCT or

conditional discharge and in connection with that are subject to a measure which

would be inconsistent with the authorisation if granted.

6. The 'no refusals' requirement

The purpose of the no refusals assessment is to establish whether authorisation would

conflict with other existing authority for decision-making for that person.

This might be the case, for example, if:

• the authorisation is for the purposes of treatment or care covered by a valid and

applicable advance decision by the person, or

• it would conflict with a valid decision by an attorney or a deputy on their behalf.

If there is a conflict, the no refusals assessment qualifying requirement will not be met

and authorisation for deprivation of liberty may not be given.

Assessments

The managing authority of a hospital or care home must request authorisation from the

supervisory body if a person is to be deprived of their liberty as a resident in that

hospital or care home.

The supervisory body will then conduct a series of assessments to verify that the

person meets the six qualifying requirements. These assessments must be made as

soon as possible after the application.

If any of the assessments conclude that the person does not meet the criteria, the

supervisory body must turn down the request for authorisation.


Version 1 37

Urgent Authorisations

When is an urgent authorisation appropriate?

The managing authority can issue itself an urgent authorisation for deprivation of liberty

where it:

• is required to make a request to the supervisory body for a standard

authorisation, but believes that the need for a person to be deprived of liberty is

so urgent that it is appropriate to begin the deprivation before the request is

made, or

• has made a request for a standard authorisation but believes that the need for a

person to be deprived of liberty has now become so urgent that it is appropriate

to begin the deprivation before the request is dealt with by the supervisory body.

This means that an urgent authorisation can never be issued without a request for a

standard authorisation being made.

How long does an urgent authorisation last?

An urgent authorisation can only last for a maximum of 7 days unless in exceptional

circumstances it is extended to 14 days by the supervisory body.

The supervisory body may grant a request to extend an urgent authorisation for up to a

further 7 days if there are exceptional reasons why it has not been possible to decide on

a request for standard authorisation and it is essential that detention continues.

An urgent authorisation ceases to be in force at the end of the period specified or earlier

if a decision is reached on the application for a standard authorisation.


Version 1 38

Feedback to quiz

You will remember that at the start of this workbook there was a quiz designed to test

how much you already knew about the Mental Health Act 2007.

Here are the suggested answers.

Before you check your answers against them, you might like quickly to go through the

quiz again to see whether you would now answer any of the questions differently.

Suggested answers

1. The Mental Health Act 2007 replaces the Mental Health Act 1983.

No, it doesn’t!

Basic mental health legislation remains the Mental Health Act 1983 and the 2007

Act just 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.

The new definition “any disorder or disability of the mind” means the same as the

old definition, it’s just simplified. The key point is that the new definition is simpler

and easier to understand, but it should not lead to an increase in compulsion.

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 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 (but not section 2 or section 136, for example). The effect is

basically the same as now.


Version 1 39

4. The appropriate medical treatment test is just the "treatability test" by another

name.

No, it isn’t.

The 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; it is about availability. The new test applies equally to all groups of

patients (though not to all patients, because it’s not part of the criteria for section

2, for example).

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 will need to know in

advance where the patient is likely to be detained.

6. The Welsh Assembly Government wants approved mental health professionals

to be health professionals employed by NHS trusts.

No, the Act and the resulting 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

decisions to reach.

An 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.


Version 1 40

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’s 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 for the nearest relative to

be displaced on the same grounds that were previously available to other

applicants. There is also a new ground for displacement which is available to all

applicants.

County courts may make an order to displace a nearest relative where there are

reasonable grounds for doing so.


Version 1 41

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.

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 provides the

principles and guidance on how the framework should be applied in practice.

Departures from the Code of Practice 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.


Version 1 42

12. 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) – or an overriding need (e.g. an age

suitable hospital environment is not available). But if the needs could be equally

well meet 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.

13. 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.


Version 1 43

How well did you do?

Do not worry if you got some of them wrong or if you realise now that you started out

with some misconceptions. The whole purpose of this workbook has been to help you

improve your knowledge and understanding of these important changes.

mental health act 2007: workbook general … awareness...general awareness module version 1 1...

Documents