The elderly client and the Mental Health Act

Feature

posted 1 Nov 1998 in Volume 4 Issue 1

The elderly client & the Mental Health Act

For many people and their families, the difficulties of advancing age are compounded by the onset of mental health problems of one sort or another. Dementia is only one such condition; severe depression is also common, which is hardly surprising at a time of life when the rate of change, loss and physical pain is increasing. However, if the result is that the person concerned neglects his or her own needs, or puts his or her health or safety at risk in other ways, the psychiatric services may consider statutory involvement.

The vast majority of people who have contact with mental health services do so on an "informal" basis. For example, 90% of those receiving psychiatric treatment as hospital inpatients are informal. They are therefore free to refuse treatment and to discharge themselves at any time. If the medical view is that they will put their own health and safety at risk by doing so, both doctors and mental health nurses have limited "holding powers" (maximum of 72 hours and 6 hours respectively) to prevent discharge. However, if the patient clearly does not wish to stay, the hospital must allow her or him to leave, unless an application is made for compulsory admission under a Mental Health Act section.

This raises major issues for those who lack capacity to understand what is proposed, and give a valid consent to it. Camilla Parker's recent article in Elderly Client Adviser (Bournewood & Beyond, Volume 3 Issue 5, July - August 1998) dealt with the recent case of L v Bournewood Community Mental Health NHS Trust (1998) 3 All ER 289, and I do not propose to cover the same ground, except to say that MIND are very anxious that independent statutory safeguards should be introduced to protect patients in this position.

Most of those with a mental health diagnosis who are potentially putting themselves at risk will have sufficient capacity to consent or object to staying in hospital. Moreover, recent guidance from the NHS Executive (HSC 1998/122, issued 10 July 1998) confirms that, if a patient lacks capacity but is "not compliant" and objects to admission, consideration should be given to "formal" detention under the Act. In other words, "sectioning" remains the only lawful way of detaining someone in hospital who makes it clear that they do not want to be there.

Who decides?

There are some common misunderstandings around formal admissions under the Act, even among professionals. For example, it is not widely appreciated that it is the approved social worker who makes the decision to seek admission, not the GP or consultant psychiatrist who make the medical recommendations. I am aware of one County Council who have apparently declared that, as a matter of policy, their ASWs will follow the recommendations of the doctors concerned. Since it is the duty of the ASW to make an application for admission to a hospital or guardianship (see later) "in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him" (s.13(1)), it follows that simply rubber-stamping the medical recommendations is unlawful.

The family and nearest relative

A further misunderstanding is around the role of the family. Section 13 (above), together with the Mental Health Act Code of Practice attaches great importance to their views. However, we frequently hear of cases where a decision is taken to detain an elderly relative on section without asking or sometimes even informing the family. Not only is this bad practice; if the detention is specifically for treatment under section 3, the "nearest relative" (determined by law, not choice, under section 26) has the statutory right to be consulted and to object to admission. If she or he does so, the section 3 admission cannot proceed unless he or she is displaced by the county court under section 29. Yet all too frequently the nearest relative is either ignored or wrongly identified.

Sometimes this is understandable (as in R v Liverpool City Council ex parte F (1998) Legal Action, January, where there was an issue over who was the person's actual carer). Sometimes, however, there is no excuse. On MIND's legal advice line I recently spoke to a woman whose father, an informal patient, was being strongly pressed to accept ECT for his depression. He did not want it. Since he was in his 70s, had had to cope with major life changes and recent car accident, and also had a pacemaker fitted, his daughter thought he was justified in his views and made her own objections known. The next she heard was that he had been detained under section 3 of the Act. ECT may be administered to detained patients despite their objections if an independent "Second Opinion Appointed Doctor" confirms that it is in their best interests. The daughter (who did not know her rights as her father's nearest relative) had rung the psychiatrist to express her concern; he allegedly replied "I can do what I like". She had not been consulted or even informed that the ASW was about to make the application for admission. Once we had confirmed that her father's detention without consulting the nearest relative was clearly unlawful, she rang the social worker and the ward, where by pure chance she was able to alert the SOAD to the true position. Her father was "discharged" from the (unlawful) section that afternoon.

However, I am in no doubt that in many cases an elderly person is admitted to hospital for treatment without proper consultation with the nearest relative. For example, someone told me that he had been informed that his father was to be detained, and did not understand why the ASW had added (almost as an afterthought) "Is that OK?"

Mental health in the community

Section 2 (detention for assessment) and section 3 (treatment) may only be used where the person concerned is assessed as needing to be in a "hospital", which includes a registered mental nursing home. What about those who do not need to be in hospital, but who are not able to care for themselves in their own home?

Section 47 of the NHS and Community Care Act 1990 places a duty on a local authority to assess the needs of anyone who could in principle receive their services and who "may be in need of any such services". Powers to provide services are set out primarily in sections 21 (accommodation) and 29 (domiciliary and other services) of the National Assistance Act 1948, section 21 of the NHS Act 1977, and elsewhere. As readers will know, the Gloucestershire case confirmed that the authority can take its resources into account when assessing need (R v Gloucestershire County Council ex parte Barry (1997) 2 WLR 459, (1997) 1 CCLR 40). Less well-known is the associated case of R v Lancashire County Council ex parte RADAR and Gilpin (1996) 4 All ER 421, (1997) 1 CCLR 19. This case, which was heard in the Court of Appeal at the same time as Gloucestershire, concerned the extent of an authority's duty to provide services once the need had been established. In particular, could a council legitimately decide that a person's needs could be met more cheaply in a residential home than by putting in an expensive package of home care, despite the family's view that her health would deteriorate if she had to leave her home? The court confirmed that, provided the assessed needs were being met, the council could do so in a cost-effective manner. The person's physical needs could be met as easily in a residential setting, so there was no legal requirement to provide the same level of care at home, however "desirable" this might be.

If therefore a person is neglecting his or her welfare, it will often be cheaper to offer residential care rather than substantial domiciliary assistance. This immediately raises a problem if the person refuses to budge. If that person has a clinically diagnosed mental health condition- including clinical depression- the Mental Health Act may once again come into play.

Sections 2 and 3 of the Act refer specifically to the need for detention "in a hospital". A residential care home, unless it is specifically registered as such, may not receive detained patients. In any case, section 2 lasts a maximum of 28 days, while section 3 may only be used if the detention is specifically for treatment for their "disorder". A person who accepted medication voluntarily- or for whom no treatment was available- could not be detained under these sections.

Guardianship

Local authorities have been looking hard at section 7 of the Act, under which a social worker or nearest relative can apply to the authority for a person to be received into guardians. [Not surprisingly, applications are usually accepted!]

Section 8 sets out the powers of the guardian (social services, or someone to whom they have delegated the role). They can require the "patient"- an unhelpful and disempowering term in this context- to reside at a specified place; to attend at specified places and times for treatment, occupation etc; and to provide access to a doctor, ASW or other specified person. Guardianship lasts for up to six months, and may be renewed by further application to the local authority.

These are, at first sight, considerable powers, which would seem to address many of the problems around community mental health care. It may therefore be surprising to learn how rarely guardianship is actually used (some 250 cases per year, compared with 20,000 detentions under sections 2 and 3).

The reason is that guardianship is not usually helpful. For a start, an application must be supported by two medical recommendations (one from a psychiatrist), confirming that:

(i) the person is "suffering from mental disorder": the doctors must agree on its nature, and give their grounds for believing so. NB. Learning disability does not count as a "mental disorder" unless it is associated with "abnormally aggressive or seriously irresponsible conduct";

(ii) the disorder is "of a nature or degree which warrants his reception into guardianship under this section";

(iii) "it is necessary in the interest of the welfare of the 'patient' or for the protection of other persons that the patient should be so received".

This means that guardianship has no application to someone who is choosing to neglect himself or herself but cannot reasonably be assessed as suffering from a "mental disorder". Moreover, if the person concerned is willing to co-operate entirely with health and social services, but refuses to leave her or his home, it would be hard to maintain that his or her reception into guardianship could be justified.

Even if the person's mental health condition might justify guardianship, the powers granted to the guardian are circumscribed. The Mental Health Act Code of Practice (1993 edition) states at paragraph 13.9:

"Guardianship should never be used solely for the purpose of transferring any unwilling person into residential care."

A revised Code of Practice is due before Christmas: the draft which went for consultation ominously omitted this comment, but in my view it is still reasonable to argue that forcing someone to move out of their home on a permanent basis is a misuse of the power under section 8. Moreover, there is no power for the guardian either to convey "patients" against their wishes, or to detain them there; any attempt to do so would constitute false imprisonment and possibly assault at common law.

Anyone working in the field, or who has any sort of awareness, will know the devastating effect upon elderly persons' health and well-being from being obliged to leave their home before they are prepared to accept it. There is already a draconian power under section 47 of the National Assistance Act 1948, whereby a local authority can apply to a magistrate for an order for the removal of a person who is not receiving proper care and attention, either because of a "grave chronic disease" or because, being "aged, infirm or physically incapacitated", he or she is living in insanitary conditions. The "medical officer of health" (usually the community physician or Director of Public Health) has to certify "after thorough inquiry and consideration" that removal is necessary, in the interests of the person concerned or others. The power lasts for three months, but can be renewed by further application to the court.

Unlike in guardianship, a section 47 application is scrutinised independently by a court; it lasts for half the time; and the person concerned will ordinarily be given seven days" notice of the application and be entitled to oppose it. There is provision in section 1 of the National Assistance (Amendment) Act 1951 for an application to be made ex parte, if the medical officer and another doctor both certify that removal is necessary without delay, in the person's own interests; but such an emergency order only lasts three weeks. This power seems perfectly adequate to deal with real need, without discriminating between those who have a "mental disorder" and those who do not.

Incidentally, neither guardianship nor a section 47 order authorises treatment without the consent of the person concerned. There is no scope in this article to discuss the issue of treatment without consent, and the government's apparent determination to introduce some form of compulsory treatment order for those living in the community. Perhaps this can be addressed in a future issue.

There is a further aspect to enforced admission to residential accommodation. Section 22 of the National Assistance Act 1948 obliges a local authority to charge the person concerned an appropriate amount (fixed centrally) for accommodation provided "under this Part of this Act". The Mental Health Act gives no express power to provide accommodation. If, therefore, guardianship could be used to require people to leave their homes and go into residential care, the council would have no choice but to charge them for the privilege of living in a place where they do not want to be. This is surely objectionable in principle, as well as potentially damaging the relationship between the social worker and the client.

Residential accommodation and former detained patients

It is worth noting that section 117 of the Mental Health Act places a duty on both local authorities and social services to provide aftercare services to a person who has been detained under section 3 and is now being discharged, until such time as those services are no longer needed. The duty still arises even if the person stayed on at the hospital as an informal patient before being discharged. As there is no power to charge for services under section 117 (see section 17 Health and Social Services and Social Security Act 1983), what happens if a former detained patient is assessed as needing residential accommodation before being discharged from hospital? MIND would like to think that this should be provided free of charge under section 117: the individual has enough to contend with already without being billed for accommodation. However, some councils are claiming that they do not provide the accommodation under section 117 but under section 21 of the 1948 Act. This approach is currently under judicial review.

Simon Foster, The author is a solicitor and Legal Services Manager of MIND's Legal Unit.