Mental Health, Drugs and Alcohol Policy Network

Mental Health, Drugs and Alcohol Policy Network Mental Health Act 2007 Local Social Services Authorities and the Approved Mental Health Professional Role Advice note for ADASS members July 2008

Foreword from the Co-Chairs of the ADASS Mental Health Network We welcome the Mental Health Act (MHA) 2007 and are pleased to present the first in a series of Advice Notes to our members. We will be working with social care colleagues and the NHS Confederation over the coming year, to develop further advice and guidance on other aspects of the Act. This note outlines the key changes in legislation that need to be implemented by local government and other agencies as employers of the role of the Approved Mental Health professional (AMHP). We would like to thank the various experts who have put in considerable effort to ensure the advice given is of a high quality and we would welcome any feedback to further develop this, and future guidance notes. Jenny Goodall and Richard Webb 1. Background 1.1 The Mental Health Act 2007, which received Royal Assent in July 2007, further developed the Mental Health Act of 1983. Some amendments have been implemented already. The Department of Health has not yet announced a commencement date for the introduction of new professional roles, but advise that for planning purposes implementation on 3 rd November 2008 can be assumed. Councils with Social Services Responsibilities have a range of statutory responsibilities in relation to this Act. 1.2 The Act has established new roles and responsibilities for people who work with service users subject to compulsion. It has introduced flexibilities which support the wider modernisation agenda incorporated within the New Ways of Working papers issued by the Department of Health. The flexibilities are associated with two new roles; those of the Responsible Clinician and the Approved Mental Health Professional (AMHP). 1.3 The National Institute for Mental Health in England (NIMHE) will publish detailed guidance for Local Social Service Authorities (LSSAs) regarding Approved Mental Health Professionals. This guidance offers information on duties, transition arrangements, selection processes, approval and re-approval processes for the new Approved Mental Health Professional role and also relates to the Code of Practice, MHA Guide, Secondary Legislation and General Social Care Council (GSCC) guidance. This briefing note provides additional guidance for LSSAs on governance, legal issues and contractual arrangements for Approved Mental Health Professionals not employed by the Local Authority. ADASS feels that it is vital for LSSAs to access clear guidance to ensure effective governance of the new arrangements. 2. Approved Mental Health Practitioners: Changes to the New Role 2.1 The role of the AMHP is very similar to that of the Approved Social Worker (ASW). The AMHP, like the ASW, has a central responsibility for co-ordinating the assessment process, considering the need for admission and pursuing alternatives to the use of compulsion wherever possible, and whilst working in partnership with other professionals, reaching an independent judgement about whether the use of compulsion is necessary and appropriate. They remain the applicant in the process. LSSAs retain responsibility for ensuring that the service is provided but have new powers in enacting flexibilities enabling other suitable trained and qualified professionals to take on the AMHP role. Mental Health Act 2007 ADASS Members Employers Guidance Page 2

3. Local Social Services Authorities Responsibilities 3.1 The primary responsibility of the LSSA is to provide the AMHP service and ensure that there are sufficient AMHPs available in their area to provide access to a 24 hour service. It is good practice for LSSAs to provide AMHP skills and knowledge in a number of places and is responsible for the commissioning of AMHP training. Typically AMHPs will be drawn from: Mental Health Services Learning Disability Services Adult Care Older Person/ Physical Disability Services Child & Adolescent Mental Health Services (CAMHS) Emergency duty services Substance misuse services 3.2 Whenever an AMHP starts an assessment under the Mental Health Act, or carries out a Best Interest Assessment in a residential care home under the Mental Capacity Act, they will be acting on behalf of the LSSA and will need a contractual relationship with that authority. This is particularly important for AMHPs who are not on the payroll or in the employment of the LSSA on whose behalf they act as an AMHP. 3.3 LSSAs have a number of key duties in relation to AMHPs who undertake assessments on their behalf, these include: Ensuring that all AMHPs have access to professional supervision and support in their role as AMHPs Provide a minimum of 18 hours of refresher training, relevant to the AMHP role each year as determined by the local authority Responsibility for the health and safety of AMHPs whilst they are undertaking assessments on their behalf Responsibility for professional competence in their role as AMHP, and for removing or suspending their warrant as necessary Legal indemnity whilst undertaking the AMHP role Access to legal advice whilst carrying out AMHP duties 3.4 LSSAs can enter into arrangements with another organisation to employ an AMHP in their substantive role, and provide a frontline AMHP service (for instance a provider trust), but the LSSA will retain the ultimate legal responsibility for the service. The LSSA should draw up s75 agreements and individual contracts with AMHPs to ensure responsibilities on both sides are met. 3.5 Good practice suggests (see NIMHE guidance referred to in 1.3 above) that LSSAs should identify and establish a robust process to ensure that a potential AMHP has successfully undertaken the required professional training and has sufficient knowledge to be approved as an AMHP. Once approved, the process should identify the requirement for re-approval on an agreed frequency which should be no more than every 5 years. 3.6 LSSAs have a responsibility to agree protocols with other agencies, such as Police and Ambulance Service i.e. to cover transport arrangements, use of Places of Safety and roles and responsibilities of such organisations in relation to work under the MHA. Such protocols should include monitoring arrangements and mechanisms for dealing Mental Health Act 2007 ADASS Members Employers Guidance Page 3

with incidents or significant problems. LSSAs must seek advice from its insurers when employing AMHPs from other organisations. 3.7 LSSAs have responsibility for governance including standards for warranting, rewarranting and quality assurance. 4. Section 75 (s75) Agreements 4.1 In order to meet these new obligations ADASS recommends that LSSAs ensure that s75 (NHS Act 2006) agreements cover the following issues: Provision of the AMHP service - how the daytime service will be configured Supervision and support arrangements, including access to senior support from within the LSSA where issues related to conflicts of interest arise Access to legal advice for those staff carrying out Mental Health Act assessments in their role as AMHPs Agreement to release staff for initial and refresher AMHP training If warranting panels are situated within trusts, agreement should be included on how they should work, and the relationship between the recommendations of a warranting panel, and the warranting powers of the LSSA Governance issues and the collection of information on AMHP activity should be detailed. When and how this information should be reviewed should also be considered Mechanisms should be agreed on how and in what circumstances to highlight/ share urgent feedback on issues of concern regarding the service as a whole. For instance, where significant problems or incidents are arising with the Police and Ambulance Services, mechanisms for keeping the responsible directors aware of the issues should be considered. The LSSA has a responsibility to work with other organizations such as the Police Authority and Primary Care Trust, to resolve significant problems occurring during the admission process. LSSAs retain responsibility for the assessment process up to the point when a person is accepted onto the ward. Remuneration for duties (LSSAs need to outline the terms and conditions, including extra allowances for taking on AMHP duties if relevant see section 4 below). 5. Individual contracts with AMHPs 5.1 In addition to robust s75 agreements ADASS recommends that LSSAs enter into a contractual arrangement with the individual AMHP. This will cover remuneration, training requirements, disciplinary procedures, access to legal advice and legal indemnity whilst carrying out duties on behalf of he LSSA. The type of contractual arrangement will vary depending on the individual circumstances of the LSSAs but could include: Honorary contract where no money is involved, LSSAs and AMHPs may enter into honorary contracts that detail the commitments on both sides Zero hours contracts where the AMHP will be paid extra per session as and when they undertake duties. A zero hours contract that states the obligations plus the reciprocal agreements as above Reciprocal contract- where the s75 partner is paid to provide the AMHP service, including extra finances for taking on the AMHP role, a contract stating the reciprocal agreement between the individual AMHP and the LSSA is still required Mental Health Act 2007 ADASS Members Employers Guidance Page 4

5.2 LSSAs may employ AMHPs through employment agencies. A clear contract with the AMHP must exist in these instances. 5.3 LSSAs may wish to train and warrant appropriately qualified, skilled and experienced workers from non-s75 partners including private and voluntary sector services. However, in these cases the LSSA must ensure that appropriate support is available to the AMHP, and that there are no financial or other conflicts of interest that may exist which would undermine their AMHP role. 5.4 LSSAs without s75 agreements would have to have individual contracts with agreements on what the LSSA will provide in return for example, legal advice. It is important for LSSAs to seek advice from their legal departments on this. 6. Responsibilities for the AMHP service within LSSAs. 6.1 Over the last few years, the formation of partnership arrangements in mental health services has lead to some LSSAs no longer directly employing senior managers with responsibility and knowledge of the ASW/ AMHP role. 6.2 With this in mind, ADASS recommends that LSSAs maintain at least one directly employed senior manager or officer who has knowledge of the AMHP role and/or service to ensure that AMHPs have access to independent advice and support and to act as a champion to highlight any problems identified by AMHPs, and to protect the role s independence where the source of the problem may be within the substantive employer s control. It is also important for AMHPs in other care groups within the LSSA to have access to champion within their authority. 7. Supplementary Information 7.1 With these changes, LSSAs would also need to be mindful of obligations under the Adult Safeguarding Policy as well as taking account of the potential impact on the AMHP service of the introduction of Deprivation of Liberty Safeguards in April 2009. 7.2 The National Institute for Mental Health in England is soon to publish best practice guidance titled 'The New Ways of Working Guide to the Mental Health Act' that in addition to the guidance provided in this advice note, also considers conflicts of interest and the overlap between the Mental Health Act and the Mental Capacity Act. Also included is information about the preparatory training which ASWs will need to have before becoming AMHPs, and information about the Approved Clinician (AC) training and competencies. More information can also be found on the NIMHE website http://mhact.csip.org.uk. 7.3 ADASS aims to become a focal point for employers of mental health professionals and will issue updates to this guidance as experience with the application of the legislation provides new insights or presents new issues. Future guidance notes planned include contracts, pay differentials, training standards, BIA and DOLS and Governance. Note: This Advice Note has been prepared by Lucy Butler, ADASS Lead on the Mental Health Act (contact details: lucy.butler@hants.gov.uk). Mental Health Act 2007 ADASS Members Employers Guidance Page 5