Mental Health Act 2007: Workshop Core Module Facilitator Resource Pack
Introduction This training workshop is for those directly involved in the provision of mental health and learning disability services. Its aim is to provide an overview of the changes to existing mental health and mental capacity legislation through the implementation of the Mental Health Act 2007. In particular, it will be looking at the changes that have been made to three Acts: 1. Mental Health Act 1983 2. Mental Capacity Act 2005 3. Domestic Violence, Crime and Victims Act 2004. The content of the workshop examines the ways in which these Acts have been changed by the Mental Health Act 2007, and examines some of the more important changes in practice that result. Except where noted otherwise, these changes will come into effect on 3 November 2008. Learning objectives The workshop will enable you to: Explain the background to and purpose of the Mental Health Act 2007 including the role of the regulations Outline the key changes to the Mental Health Act 1983 Outline the key content of the new Mental Health Act 1983 Code of Practice for Wales, and in particular identify and describe the guiding principles in the Mental Health Code of Practice for Wales Outline the changes to the Mental Capacity Act 2005 Outline the principal changes to the Domestic Violence, Crime and Victims Act 2004.
Activity 1 Myths and confusions Try the following questions. Don t worry if you are unsure of the answers, we will be reviewing the answers at the end of the workshop. 1 The Mental Health Act 2007 replaces the Mental Health Act 1983. 2 The definition of mental disorder is being widened. Yes No Not sure 3 Learning disabilities are not mental disorders 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. 10 Responsible clinicians will be hospital clinicians. 11 The new Mental Health Code of Practice for Wales is stronger than before.
12 The Mental Health Act 2007 is widening access to the Mental Health Review Tribunal for Wales. 13 An adult ward can be used for a child if it will meet the child s needs. 14 The Mental Health Act 1983 takes precedence over the Mental Capacity Act 2005.
Activity 2 Key changes to the Mental Health Act 1983 Using the information in your participant pack, work in pairs to identify the significant changes to the Act. What will be the impact of these changes on your role?
Activity 3 Mental Health Act 1983 Code of Practice for Wales Using the information in your participant pack, discuss in your groups What needs to be considered to ensure these guiding principles are applied in practice? Record your answers below to share with the full group.
Activity 4 - Criteria for detention Here are some typical situations which you might be presented with. In your groups, read through the information and then decide whether in your view the person has a mental disorder, and whether detention under the Mental Health Act 1983 would be possible. Give reasons for your answers. 1. Maggie is an 18 year old female, of no fixed abode. She is pregnant, dependant on drugs, and has 2 children already in care. Last night she was arrested by the police after getting involved in a fight and suffering injuries which might harm her unborn child. Does she have a mental disorder; might she meet the criteria for detention? 2. Morgan is an 86 year old male, suffering from mild dementia. He is not receiving any medical treatment for the dementia although he is having treatment for various other physical ailments. For the last three years he has been cared for by his wife at home as he is not capable of looking after himself. His wife has now concluded that she can no longer sustain the responsibility of caring for him at home, and she has sought his admission into a care home. Does he have a mental disorder; might he meet the criteria for detention?
3. Jim is 30 years old and has a long term history of drug and alcohol misuse. He experiences hallucinations and delusions whilst under influence of drugs. His friends have called for help from his GP as he has recently threatened suicide on more than one occasion as a result of auditory hallucinations. Does he have mental disorder; might he meet the criteria for detention?
Activity 4 Feedback Criteria for detention 1. Maggie Maggie s dependence on drugs would not in itself amount to a mental disorder within the meaning of the 1983 Act. Her aggressive behaviour alone would not warrant her detention under the Act because she must be suffering from a mental disorder. Unless there are other signs in her behaviour which would indicate she is suffering from a disorder or disability of the mind she does not meet the criteria for detention and cannot be detained under the 1983 Act. 2. Morgan His dementia would meet the definition of a mental disorder for the purposes of the 1983 Act, but this may not necessarily be of a nature or degree to warrant treatment in hospital under the Act. There is no evidence that he requires admission to hospital for his own health or safety, or for the protection of others. As such he would not meet the criteria for detention in hospital for treatment. However he may meet the criteria for admission under guardianship (section 7 of the Act). If however his mental disorder was of a nature or degree to warrant detention in hospital, and this was necessary for his health or safety or for the protection of others, there would also need to be appropriate medical treatment available for his condition. Morgan s wife has asked for admission of her husband to a care home; as part of the consideration for this it would be appropriate to explore the possibilities of home support first. That would be more in keeping with the section 1 principles of the Mental Capacity Act. If Morgan is kept in a hospital or care home but it is not considered appropriate for him to be subject to detention under the 1983 Act then his circumstances could amount to a deprivation of liberty in which case the care home or hospital would be required to make a request for authorisation under the Deprivation of Liberty safeguards.
3. Jim A person may not be classed as suffering from a mental disorder solely because of 'dependence on alcohol or drugs'. However, there seems to be more than just a dependence in Jim's case. Jim's hallucinations may represent psychotic episodes related to his drug use, in which case he would have a mental disorder within the meaning of the 1983 Act. As his behaviour is threatening his own health and safety, he would also meet that criterion for detention under the 1983Act, but he may only be detained if his mental disorder is of a nature or degree to warrant detention in hospital and provided that appropriate medical treatment is available for him in hospital.
Activity 5 Supervised Community Treatment Read through this information about a current patient. John was detained under section 3 some months ago, having been diagnosed with schizophrenia. He has a history of prior admissions with acute symptoms, followed by fairly good response to treatment. However, on discharge his history has been of rapid relapse following failure to comply with medication. This relapse has been associated with drug and alcohol misuse. During the second six month period of detention, John s RC decides that he wants to discharge him onto SCT because he no longer requires treatment in hospital, although there may be a need to recall him in the future. John has his own accommodation and is self-caring. In your groups discuss and record your answers to the following questions. Please give explanation for your answers. 1a. Who else does the RC have to consult before recommending SCT? 1b. Which criteria must be met?
2a. What conditions must appear in all CTOs? 2b. What conditions might it be appropriate to attach to John s CTO? 3. What happens to the section 3 detention when the CTO is made?
4. When can John apply to the MHRT for Wales if he wants the CTO discharged? Six months later, John is still in the community and compliant with the conditions of his CTO. He does not want it to be extended. The RC however considers it should be extended because of John s history of relapse. Answer these questions. 5. What criteria have to be satisfied for the RC to extend the CTO? 6. If the RC does extend the CTO, what can John do about it?
The CTO is extended and a month later John fails to turn up for a hospital appointment and members of the community mental health team report that he is non-compliant with medication and is thought to be misusing drugs. There is evidence that he is neglecting himself. Answer these questions. 7. If the RC wants to recall John to hospital, what criteria have to be met? 8. If a recall is made and John remains in hospital for a week, what is the effect on the CTO, and what is his legal status? 9. What rights does John have to challenge his continued detention at this stage?
Activity 5 Feedback Supervised Community Treatment Here are the suggested answers. Check yours against them. 1a. Who else does the RC have to consult before recommending SCT? An AMHP must be consulted and needs to agree that SCT is appropriate. 1b. Which criteria must be met? The RC and AMPH must be satisfied that the following five criteria have been met: (a) that John is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment (b) it is necessary for John s health or safety or for the protection of other persons that he should receive such treatment (c) subject to John being liable to be recalled... such treatment can be provided without his continuing to be detained in a hospital (d) it is necessary that the responsible clinician should be able to exercise the power to recall John to hospital (e) appropriate medical treatment is available for John. 2a. What conditions must appear in all CTOs? There are two conditions that must appear in all CTOs: 1. The patient must be available for medical examinations as required for the purposes of determining whether the CTO should be extended. 2. They must also be available for medical examinations to allow a SOAD to make a Part 4A certificate. 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.
2b. What conditions might it be appropriate to attach to John s CTO? Specific conditions in this case might include: Remaining drug and alcohol free (and attending for monitoring) Living at a specified location Complying with medication Allowing visits from community mental health team. 3. What happens to the section 3 detention when the CTO is made? The detention is suspended. 4. When can John apply to the MHRT for Wales if he wants the CTO discharged? John may apply to the MHRT for discharge: when a CTO is made when it is revoked when it is extended. 5. What criteria have to be satisfied for the RC to extend the CTO? There must still be grounds for a CTO to exist. This means that the same criteria must be satisfied as for the granting of a CTO in the first place. 6. If the RC does extend the CTO, what can John do about it? John may apply to the MHRT for Wales at that stage, he may also apply to the hospital managers to be discharged.
7. If the RC wants to recall John to hospital, what criteria have to be met? John may be recalled to hospital if the RC decides: that he needs to receive treatment for his mental disorder in a hospital, and that without this treatment, there would be a risk of harm to his health or safety, or to other people. Both conditions must be met. The patient may also be recalled if they fail to comply with one or both of the statutory conditions in the CTO. 8. If a recall is made and John remains in hospital for a week, what is the effect on the CTO, and what is his legal status? If John is recalled for over 72 hours, the CTO must be revoked. Thereafter, authority to detain under section 3 will apply, in effect as if the CTO had never been made. If the CTO is not revoked, the patient must be allowed to leave or stay as an informal patient. 9. What rights does John have to challenge his continued detention at this stage? On revocation of the CTO, John can apply to the MHRT for Wales and may also apply to the hospital managers. The hospital managers are under a duty to refer the case of a patient whose CTO has been revoked to the MHRT for Wales.
Activity 6 Deprivation of liberty safeguards Here are two common scenarios for you to think about. In your groups read through the information given in each case, and then answer the questions. Patient 1 Megan Megan is 80 and living in a Care Home some distance from her own home. She has dementia and has been assessed as lacking the capacity to decide where she should live. Her family are happy for her to live in the home and visit her regularly. She often tries to leave the care home through the open doors when visitors come to see her saying that she is "going home". When this happens the staff are able, by talking to her, to persuade her that she should return to the day room. The staff are concerned because she does not know the immediate area and has no awareness of the dangers of walking in a busy urban area. No physical restraint has had to be used on her. She is not being detained under the provisions of the Mental Health Act 1983. 1. Is the care home depriving Megan of her liberty within the meaning of the Mental Capacity Act? What are your reasons for your decision? 2. What factors would help to decide whether her situation represented a restriction rather than a deprivation of Megan's liberty?
Patient 2 Huw Huw is resident in a care home. He has dementia and although he can sometimes be very difficult to deal with, he has never appeared to represent any threat to himself or to others. He has for some time expressed a wish to leave the home and go back to live with his wife, Jenny. Jenny supports him in this and has frequently asked to be allowed to "take him home". The staff of the care home do not believe that Jenny would be able to cope if Huw went home, and maintain the position that he must not leave their care. They have told Jenny that they will prevent her from taking him away. They have also told Huw that if he tries to leave they will stop him, using physical restraint if necessary. Huw is not currently being detained under the provisions of the Mental Health Act 1983. 1. Is the care home depriving Huw of his liberty within the meaning of the Mental Capacity Act? What are your reasons for your decision? 2. If Huw was being deprived of his liberty, what steps should the managers of the care home take to comply with the deprivation of liberty safeguards?
Activity 6 - Feedback Deprivation of Liberty Safeguards Patient 1 Megan 1. Is the care home depriving Megan of her liberty within the meaning of the Mental Capacity Act? What are your reasons for your decision? It is unlikely that Megan is being deprived of her liberty. She has a mental disorder and as a result does not have capacity to give her consent to live in the care home. The fact that she has said she wants to go home and has tried to leave but has been prevented from doing so by the staff might suggest that she is being deprived of her liberty. However in this case, whilst her liberty is restricted for her own safety she is not being confined to a specific area. She has freedom of association with other residents and regular visitors. It is therefore unlikely that a court would consider that she had been deprived of her liberty and it is not necessary to request authorisation. If, however, Megan consistently tries to leave the home and constantly expresses her unhappiness about being there or if the staff have to use force to return her to the home then the manager may then need to consider whether authorisation might be necessary. Assessors will be able to consider her circumstances and whether the home is the best place for her. 2. What factors would help to decide whether her situation represented a restriction rather than a deprivation of Megan's liberty? All of the circumstances and factors will be relevant in determining whether there is a deprivation of liberty. One factor by itself may not amount to a deprivation of liberty, but when taking account of another factor it could. Typical factors to take into account include: - whether the person is allowed to leave the facility - how much choice they have about their life within the care home - whether they can maintain contact with the outside world.
Patient 2 Huw 1. Is the care home depriving Huw of his liberty within the meaning of the Mental Capacity Act? What are your reasons for your decision? This appears to be a reasonably clear case of deprivation of liberty. Unlike Megan in the previous scenario, the actions that the staff are taking in respect of Huw appear to go beyond a simple restriction of his liberty. The staff of the home may well believe that they have good reasons for the line they have taken. Nevertheless, it is apparent that they have been exercising complete and effective control over where Huw could live, whether he could leave the home permanently, and whether he could be with his wife. It would make no difference if the home never had any real intention of actioning the 'threat' of preventing Huw from leaving. The fact that he and his wife had been led to believe that this was the case would be sufficient. 2. If Huw was being deprived of his liberty, what steps should the managers of the care home take to comply with the deprivation of liberty safeguards? If the care regime does amount to a deprivation of liberty, then the managers of the care home should consider if there are less restrictive means by which they can care for Huw which do not deprive him of his liberty. If not then it will be necessary for the home to obtain authorisation for this from the supervisory body. The managers will need to check that he meets the six qualifying requirements: 1. Age 2. Mental health 3. Mental capacity 4. Best interests 5. Eligibility 6. No refusals Authorisation will be given only if he meets all of the qualifying requirements.
Activity 1 - Feedback Myths and confusions Here are the suggested answers. Check yours against them. 1. The Mental Health Act 2007 replaces the Mental Health Act 1983. No, it doesn t! The Mental Health Act 1983 remains but the 2007 Act 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. There is a new single, simplified definition of mental disorder, namely any disorder or disability of the mind. Although this is simplified, there is no change in the scope of the definition. This single definition also replaces the four categories of mental disorder currently set out in the 1983 Act. This is covered in more detail in this workbook below. 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 1983 Act excludes learning disabilities unless they are associated with (not causing ) abnormally aggressive or seriously irresponsible behaviour. The qualification only applies to certain sections for admission to hospital (but not, for example, section 2 or section 136). The effect is basically the same as now.
4. The appropriate medical treatment test is just the "treatability test" by another name. No, it isn t. The so-called treatability test focused on the likelihood of alleviating or preventing a deterioration in the patient s condition; the new test requires that appropriate treatment is actually available for the patient. The new test applies within the criteria for admission to hospital under section 3, related sections of Part 3 of the 1983 Act, and the corresponding criteria for renewal and for discharge by the Mental Health Review Tribunal for Wales. 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 must set out in their recommendation where the appropriate medical treatment is available. 6. The Welsh Assembly Government wants approved mental health professionals to be health professionals employed by NHS trusts. No, the 1983 Act and the attendant 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 decision to reach. The 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.
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.
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, but all responsible clinicians must be approved clinicians (see below for more detail). 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. 12. The Mental Health Act 2007 is widening access to the Mental Health Review Tribunal for Wales. Yes, up to a point. Rights to apply for patients under the Act are not changing, just being adapted to deal with supervised community treatment. There are also changes to the hospital managers duty to refer people who do not apply themselves, and introducing a new duty to refer the case of a patient whose community treatment order has been revoked.
13. 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 for the patient) or an overriding need (e.g. an age suitable hospital environment is not available). But if the needs could equally well meet needs 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. 14. 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. The Mental Health 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. 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 patients needs or better meets them than the 1983 Act.
Action plan Learning points Including key points learned from today s workshop Action points Including reading, further study and issues to resolve
Evaluation 1. How well did you feel that your personal goals were achieved during this workshop? Not very well 1 2 3 4 5 Very well Please use this space if you would like to give reasons for your answer 2. How well did the workshop meet its stated objectives? Do you now feel able to: Explain the background to and purpose of the Mental Health Act 2007? Not very well 1 2 3 4 5 Very well Outline the key changes to the Mental Health Act 1983? Not very well 1 2 3 4 5 Very well Outline the key content of the new Mental Health Act 1983 Code of Practice for Wales? Not very well 1 2 3 4 5 Very well Identify and describe the guiding principles in the Mental Health Code of Practice for Wales? Not very well 1 2 3 4 5 Very well - Outline the changes to the Mental Capacity Act 2005? Not very well 1 2 3 4 5 Very well - Outline the principal changes to the Domestic Violence, Crime and Victims Act 2004? Not very well 1 2 3 4 5 Very well
3. Which of the workshop sessions was/were the most useful and interesting for you? Please give brief reasons for your answer. 4. Which of the workshop sessions was/were the least useful and interesting for you? Please give brief reasons for your answer. 5. How do you rate the effectiveness of the facilitators? Not very good 1 2 3 4 5 Excellent Please use this space if you would like to make a comment about individual facilitators. 6. How do you rate the training/learning methods used? Not very good 1 2 3 4 5 Excellent 7. How would you rate the standard of the handouts and visual aids? Not very good 1 2 3 4 5 Excellent 8. How do you rate the workshop overall? Not very good 1 2 3 4 5 Excellent 9. Please note any further learning or development needs that you have now identified. Thank you for your help.