Mental Health Act 2007: Workbook General Awareness Module

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

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 1

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 2

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. 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 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 3

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 4

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 5

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 6

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 7

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 8

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 9

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 10

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 11

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 12

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 13

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 14

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 15

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 16

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 17

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 18

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 19

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 20

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 21

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 22

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 23

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 24

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 25

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 26

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 27

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 28

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 29

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 30

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 31

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 32

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 33

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 34

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 35

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 36