Admission to Hospital under Part II of the Mental Health Act 1983 and Mental Capacity Act 2005 Deprivation of Liberty Safeguards.

Transcription

1 Document level: Trustwide (TW) Code: MH3 Issue number: 6 Admission to Hospital under Part II of the Mental Health Act 1983 and Mental Capacity Act 2005 Deprivation of Liberty Safeguards. Lead executive Authors details Type of document Target audience Document purpose Medical Director Mental Health Act Team Manager Policy All CWP staff To provide information regarding the procedures required to be followed, in accordance with the Mental Health Act 1983, for lawful admission to hospital under Part II of the Act - sections 2, 3 and 4. Approving meeting Patient Safety and Effectiveness Sub Committee 17-Jun-15 Implementation date 17-Jun-15 followed by an annual compliance review CWP documents to be read in conjunction with HR6 MH13 MH6 Trust-wide learning and development requirements including the training needs analysis (TNA) Consent to treatment, Part IV and IVA MHA 1983 Receipt and Scrutiny of Detention Papers Document change history What is different? Appendices / electronic forms What is the impact of change? Training requirements Financial resource implications Addition to guidance on Deprivation of Liberty Safeguards Three appendices have been added, two from the Code of Practice to clarify how to make a decision between MHA and MCA, and one appendix flowchart to clarify how to seek advice when making such a decision Will this new document change the way we do things currently Yes - Training requirements for this policy are in accordance with the CWP Training Needs Analysis (TNA) with Learning and Development (L&D) No External references 1. Mental Health Act as amended by the Mental Health Act Mental Health Act: Code of Practice Mental Health Act Manual 17th Edition, Richard Jones, Reference Guide to Mental Health Act 1983, Department of Health, Mental Capacity Act Code of Practice Deprivation of Liberty Safeguards Code of Practice 2008 Equality Impact Assessment (EIA) - Initial assessment Yes/No Comments Does this document affect one group less or more favourably than another on the basis of: Page 1 of 14 Do not retain a paper version of this document, always view policy / guidance documents from the desktop icon on your computer

2 Equality Impact Assessment (EIA) - Initial assessment Yes/No Comments - Race No - Ethnic origins (including gypsies and travellers) No - Nationality No - Gender No - Culture No - Religion or belief No - Sexual orientation including lesbian, gay and bisexual people No - Age No - Disability - learning disabilities, physical disability, sensory impairment and mental health problems No Is there any evidence that some groups are affected differently? No If you have identified potential discrimination, are there any exceptions valid, legal and/or justifiable? Is the impact of the document likely to be negative? No - If so can the impact be avoided? N/A - What alternatives are there to achieving the document without N/A the impact? - Can we reduce the impact by taking different action? N/A Where an adverse or negative impact on equality group(s) has been identified during the initial screening process a full EIA assessment should be conducted. If you have identified a potential discriminatory impact of this procedural document, please refer it to the human resource department together with any suggestions as to the action required to avoid / reduce this impact. For advice in respect of answering the above questions, please contact the human resource department. Was a full impact assessment required? No What is the level of impact? Low To view the documents Equality Impact Assessment (EIA) and see who the document was consulted with during the review please click here Page 2 of 14 Do not retain a paper version of this document, always view policy / guidance documents from the desktop icon on your computer

3 Content Quick reference flowchart 1. Introduction Definition of mental disorder Section Section Section Medical Recommendations Applications under the Act 8 8. Conflict of interest Receipt and scrutiny of documents Outcome of detention Statutory documents Deprivation of Liberty Safeguards Definition of Deprivation of Liberty Admission under MCA/DoLS Admission under MHA or DoLS Disputes regarding the appropriate legal framework.11 Appendix 1 Availability of MHA or DoLS Appendix 2 - Deciding whether the Act and/or MCA will be available to be used Appendix 3 Process flowchart for seeking advice on MCA/DoLS.. 14 Page 3 of 14 Do not retain a paper version of this document, always view policy / guidance documents from the desktop icon on your computer

4 Quick reference flowchart For quick reference the guide below is a summary of actions required. Patient requires admission to hospital for assessment and/or care and treatment of a mental disorder Note 2 Patient has capacity and agrees to informal admission Patient requires formal admission to hospital Patient is admitted to the ward as an informal patient in accordance with the admission policy Assessment takes place to decide whether MHA or DoLS apply Patient meets the criteria for admission under DoLS Note 12 MHA assessment takes place with relevant professionals Notes 6, 7 and 8 An application to the relevant Local Authority must be made for either an Urgent and/or standard authorisation Note 12 Decision is made regarding Section 2, 3 or 4 and appropriate paperwork completed Notes 3, 4 and 5 The Local Authority grant a standard authorisation for a set period of time Note 12 NB: In cases where there is a dispute as to which legal framework should apply, further legal advice may be required. Staff must liaise with the Mental Health Act Team Manager who will seek further advice. If there is a differing of opinion, an application may be required to the Court of Protection. Note 12.3 and 12.4 Page 4 of 14 Nearest relative informed of decision to detain, if applicable Note 7 Patient transported to hospital and admitted. Section paperwork is handed to nurse in charge to be checked Note 9 Patient may be discharged from section by the RC, hospital managers, or Tribunal Service if the criteria is no longer met; or following an application by the nearest relative Note 10

5 1. Introduction This policy provides relevant professionals with guidance to facilitate compliance with the requirements in respect of admission to hospital under Part II of the Mental Health Act 1983, and Deprivation of Liberty Safeguards (Mental Capacity Act 2005). Part II of the Mental Health Act relates to the following: Section 2 - Admission for assessment or assessment, followed by treatment; Section 3 - Admission for treatment; Section 4 - Emergency admission to hospital. 2. Definition of mental disorder Section 145 of the Mental Health Act defines mental disorder as any disorder or disability of the mind. Chapter 2 of the Code of Practice 2015 lists clinically recognized conditions which fall into this category. NB dependence of drugs and alcohol is not considered to be a mental disorder or disability of the mind. However, if alcohol/drug dependence is accompanied, or associated with, a mental disorder then it does fall within this category. 3. Section 2 Detention under section 2 allows for the assessment of a patient, which may be followed by treatment as part of that assessment. It should be used only if: The full extent of the nature and degree of a patient s condition is unclear There is a need to carry out an initial in-patient assessment in order to formulate a treatment plan, or There is a need to carry out a new in-patient assessment in order to re-formulate a treatment plan. (Code of Practice ) Criteria: The person is suffering from a mental disorder or a nature or degree which warrants their detention in hospital for assessment (or assessment followed by treatment) for at least a limited period; and The person ought to be so detained in the interests of their own health or safety, or with a view to the protection of others. Duration: up to 28 days. Not renewable: if the patient is required to stay in hospital, this would be either as an informal patient or detained for treatment under section 3, except it can be extended when an approved mental health professional (AMHP) wishes to make an application to further detain a patient under section 3 but the nearest relative objects to the making of an application. As this objection prevents the application being made, the AMHP can consider displacing the nearest relative via application to the County Court. If the application is lodged with the court whilst the patient is detained under section 2, then this section can be extended until such time that the court has decided whether to displace the relative. Page 5 of 14

6 4. Section 3 Detention under section 3 allows for admission for treatment. Criteria: The person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital It is necessary for the health or safety of the person or for the protection of other persons that they should receive such treatment and it cannot be provided unless the patient is detained under this section, and Appropriate medical treatment is available Duration: up to six months. Renewable: for up to six months in first instance, and then annually. Appropriate treatment must be available: in all cases, the recommending doctors are required to state on the form that appropriate treatment is available, including the name of one of more hospitals who can provide the treatment. Learning disability criteria for section 3: under the provisions of section 3 of the Act, learning disability is only considered to be a mental disorder if it is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned (this does not apply to section 2). 5. Section 4 Detention under section 4 allows admission to hospital in an emergency. It is implemented following one single medical recommendation and an application. An emergency arises where those involved cannot safely manage the mental state or behaviour of the patient. To be satisfied that an emergency has arisen, there must be evidence of: An immediate and significant risk of mental or physical harm to the patient or to others; and / or The danger of serious harm to property; and / or The need for physical restraint of the patient. Criteria: The criteria as for section 2 is met Detention is required as a matter of urgent necessity Obtaining a second recommendation would cause undesirable delay The AMHP making an application for detention under section 4 must have personally seen the patient within the previous 24 hours. The patient must be admitted within 24 hours of either the medical recommendation or the application being made. There is no statutory duty placed on the AMHP to consult with the patient s nearest relative unless the section 4 is converted to a section 2. Duration: up to 72 hours. Not renewable: may be converted to section 2 within the 72 hour timescale by the addition of one other medical recommendation. Note: on conversion, the 28 day period under section 2 begins from the date of the section 4. As a matter of good practice, it should be noted that section 4 should only Page 6 of 14

7 be used if there is a serious intent for the patient to be placed on section 2. Arrangements for obtaining the second medical opinion must be initiated immediately. If the approved clinician in charge of the patient s treatment considers that section 3 is more appropriate, two fresh recommendations and a new application must be made within the 72 hour timescale. Unlike a conversion to section 2, the new treatment order would begin from the date of the application for section Medical Recommendations A medical examination must involve: A direct personal examination of the patient and their mental state, and Consideration of all available relevant clinical information, including that in the possession of others, professional or non-professional Section 2 and 3: Two medical recommendations are required for section 2 and 3. At least one of the recommending doctors must be section 12(2) approved. Where practicable, at least one of the medical recommendations must be provided by a doctor with previous acquaintance with the patient. It is, however, acceptable for a GP to make a recommendation if they have knowledge of the patient s case even though they may not personally have treated the patient. This would be considered as having had previous acquaintance. Where the GP is not available, it is good practice for another section 12(2) approved doctor to undertake the assessment. At least one of the recommending doctors should discuss the patient s case with the applicant. Section 4: Only one medical recommendation is required. If practicable, this should be made by a doctor who has had previous acquaintance with the patient. The doctor does not need to be section 12(2) approved/ 7. Applications under the Act Either an AMHP or the patient s nearest relative may make an application to detain a patient under sections 2, 3 or 4 of the Mental Health Act However, Code of Practice guidance advises that the AMHP is usually the most appropriate applicant. The applicant must be satisfied that detention in hospital is the most appropriate way of providing the care and medical treatment that the patient needs, and that the criteria for that particular section is met. Consideration should also be made of the following: The patient s wishes and views and their own needs The patient s age and physical health Past wishes or feelings expressed by the patient The patient s cultural background The patient s family and social circumstances The impact on children, relatives/carers The effect on the patient of a decision to admit or not to admit under the Act Alternative ways of providing treatment/care that the patient needs. Less restrictive options should be considered. Page 7 of 14

8 If the applicant is an AMHP all reasonable steps must be taken to inform the nearest relative of their application, although the nearest relative cannot present the making of an application under section 2. If the nearest relative objects to an application being made under section 3, the AMHP cannot proceed. However, if it is felt that the nearest relative is objecting unreasonably, an application may be made to court to displace the nearest relative under section 29 of the Act. This will enable the section 3 to proceed. Refer to Chapter 5 of the Code of Practice 2015 for further guidance on the nearest relative. The applicant must have seen the patient within 14 days of the last medical examination as stated on the medical recommendations. The application MUST be made out to the hospital where the patient is to be admitted. If the wrong hospital is named, this will invalidate the application. For further guidance on applications for detention in hospital refer to the Code of Practice 2015, chapters 14 and Conflict of interest A conflict of interest would apply where: The assessor is in a line management or employment relationship with one of the other assessors or the patient or the nearest relative (where the nearest relative is the applicant) The assessor is a member of the same team as the patient, or Where there are three assessors, all of them are members of the same team The Code of Practice 2015, as clarified in the Reference Guide 2015, states that it is good practice to ensure that one of the medical recommendations is completed by a doctor not on the staff of that hospital. That is, there may be a potential conflict if both doctors giving recommendations are on the staff of the same hospital within the trust. For further guidance see the Code of Practice 2015, Chapter 39, and the MHA Reference Guide 2015, pages 98 and Receipt and scrutiny of documents Once the application has been completed, the AMHP must deliver the detention documents to the appropriate officer acting on behalf of the Hospital Managers. This would normally be the nurse in charge of the ward, who will complete form H3 - Record of Receipt of Medical Recommendations, together with the checklist. For further guidance see Trust policy MH6, Receipt and scrutiny of detention papers. 10. Outcome of detention Section 4 The approved clinician in charge of the patient s treatment may decide further detention is not required and discharge the patient from detention. It is not good practice to allow section 4 to lapse as the patient should be assessed and an outcome documented. Section 2 and 3 The Responsible Clinician (RC), Hospital Managers, First Tier Tribunal Service or the nearest relative may discharge the patient from detention. Page 8 of 14

9 Before the section is due to expire the RC must decide whether the patient s current detention should be regarded or renewed. For section 3 the RC must examine the patient and decide within the two months leading up to expiry, whether the criteria for renewal under section 20 is met. The RC may decide to discharge the relevant section at any time during the period of detention under section 23 of the Act is the criteria is no longer met. Nearest relative application for discharge Although the nearest relative may not apply for discharge of section 4 of the Act, an application can be made for the patient s discharge from their detention under section 2 and 3, although this must be in writing, giving the Responsible Clinician 72 hours to consider the application. The Responsible Clinician may bar the discharge if s/he considers that the patient, if discharged would be likely to act in a manner dangerous to him/ herself, or others. This question focuses on the probability of dangerous acts, such as causing serious physical injury or lasting psychological harm, not merely on the patient s general need for safety and others general need for protection. (Code of Practice ) The Responsible Clinician s barring order, form M2, must be completed within the 72 hour period. If a barring order is not issued the patient becomes informal at the end of the 72 hour period. 11. Statutory documents Section 2 2 medical recommendations: Form A4 x2 or 1 joint medical recommendation: Form A3 and 1 Application: Form A2 (AMHP) or Form A1 (nearest relative) Section 3 2 medical recommendations: Form A8 x2 or 1 joint medical recommendation: Form A7 and 1 Application: Form A6 (AMHP) or Form A5 (nearest relative) Section 4 1 medical recommendation: Form A11 1 Application: Form A10 (AMHP) or Form A9 (nearest relative) To convert to section 2, another medical recommendation is required using form A4 Page 9 of 14

10 12. Deprivation of Liberty Safeguards (DoLS) The Deprivation of Liberty Safeguards relates to people aged 18 and over. It these safeguards are to be considered for a person under the age of 18 other legislative safeguards should first be considered; e.g: Section 35 of the Children Act 1989 or Mental Health Act Authorisation of a Deprivation of Liberty Safeguard for this age group will need to be obtained from the Court of Protection. In order to do this advice must be sought from the Mental Health Act Team, who in turn will seek further advice from the Trust solicitors, Hill Dickinson. A patient admitted to an in-patient ward informally who lacks capacity to make a decision regarding admission and treatment must be assessed to ascertain if they are likely to be deprived of their liberty. In such cases an application for a Deprivation of Liberty Safeguard (DoLS) must be made. There are two types of authorisation: Urgent an urgent authorisation can last up to seven days and is given when: it is believed that the requirement for deprivation of liberty is so urgent that deprivation needs to begin before a standard request is made, or when a standard authorisation is made but the need for deprivation has become so urgent that it needs to begin immediately. An urgent authorisation should never be given without simultaneously submitting a request for standard authorisation. Standard a person may be deprived of their liberty if: It is in their own best interests to protect them from harm It is a proportionate response to the likelihood and seriousness of the harm If there is no less restrictive alternative 12.1 Definition of Deprivation of Liberty The Supreme Court clarified the definition of deprivation of liberty by the acid test as follows: The person is under continuous supervision and control, and Is not free to leave, and The person lacks capacity to consent to these arrangements Admission under MCA/DoLS A person may be admitted under the DoLS regime in the following circumstances: They lack capacity to consent to admission They are not objecting to being in hospital or to any part of their mental health treatment The admission is primarily for physical care/treatment, ie their mental health presentation does not warrant detention The person has finished active treatment and is awaiting discharge NB: A person who lacks capacity to consent to being accommodated in hospital for care and/or treatment for mental disorder and who is likely to be deprived of their liberty should never be admitted to hospital informally (whether they are content to be admitted or not). Code of Practice A person may be ineligible for DoLS if they are detained under sections 2, 3, 4, 35 38, 44, 45A, 47, 48 or 51 of the MHA. Further criteria for ineligibility can be found in Chapter 13 of the Code of Practice para Page 10 of 14

11 12.3 Detention under MHA or DoLS There are some instances when both the Mental Health Act and Deprivation of Liberty Safeguards apply (see Appendix 1). The choice of legal regime should not be based on preference, or on the basis that one regime is less restrictive than the other. Whether a patient is objecting has to be taken in the round, taking into account all individual circumstances, the patient s behaviour, wishes, feelings, beliefs and values, so far as they can be ascertained. Decision makers must fully document their decision, and the reasons, in the patient s record. For guidance on which regime is appropriate see Appendices 1 & 2. For guidance on seeking advice regarding the decision making process see Appendix Disputes regarding the appropriate legal framework If there is a disagreement between the trust and the relevant local authority regarding which legal regime is to be applied, legal advice must be sought. An application to the Court of Protection may be required in order to lawfully detain the person. In such cases the Mental Health Act Team Manager must be contacted in order to seek advice from the Trust solicitors The Law Society guidance on the interface of MHA and MCA/DoLS, as well as guidance on how to apply for a DoLS authorisation can be found on the Trust Mental Capacity Act webpage. Page 11 of 14

12 Appendix 1 - Availability of the MHA or DoLS Individual has the capacity to consent to being accommodated in a hospital for care and/or treatment Individual objects to the proposed accommodation in a hospital for care and/or treatment; or to any of the treatment they will receive there for mental disorder Only the Act is available Individual does not object to the proposed accommodation in a hospital for care and/or treatment; or to any of the treatment they will receive there for mental disorder The Act is available. Informal admission might also be appropriate. Neither DoLS authorisation nor Court of Protection order available Individual lacks the capacity to consent to being accommodated in a hospital for care and/or treatment Only the Act is available The Act is available. DoLS authorisation is available, or potentially a Court of Protection order Code of Practice Chapter 13, Figure 5. Appendix 2 - Deciding whether the Act and/or MCA will be available to be used (Code of Practice Chapter 13, Figure 6) Page 12 of 14

13 Appendix 3 Process flowchart for: Seeking advice regarding a decision involving DEPRIVATION OF LIBERTY SAFEGUARDS (DoLS) and/or THE MENTAL CAPACITY ACT Page 13 of 14

14 Decision to be made: Specifically relating to the Mental Capacity Act and/or Deprivation of Liberty Safeguards (DoLS) Decision made locally no further specialist advice needed Decision requires further/specialist advice Support available: Peer advice locally MCA intranet site MCA documentation via Learning Disability Services intranet site Safeguarding children and adults intranet site Administrative/legal advice Clinical Advice Contact: consultant in charge of patient care locality Clinical Director Medical Director Contact Mental Health Act Team MHA Team to respond Resolved Unresolved Refer to Mental Health Act Team Manager for gatekeeping of the query and escalation to the Trust s solicitors if appropriate Decision made and communicated Page 14 of 14