Evaluate critically the role of and the relationship between professionals and lay- persons in the process of civil admissions under the mental health act 1983?
LAW OF MENTAL HEALTH AND CARE IN THE COMMUNITY
QUESTION 3
Evaluate critically the role of and the relationship between professionals and lay- persons in the process of civil admissions under the mental health act 1983?
The present law relating to the care and treatment of mentally disordered people in England and Wales is contained in the Mental Health Act 1983. This consolidated the MHA 1959 with the substantial amendments made by the Mental Health (amendments) Act 1982.
The process of civil admissions under the MHA 1983 may be viewed as an infringement of ones freedom. However, the state's justification of this is the need to protect either the individuals concerned or to protect others in society. 1Price states that; 'a clear dichotomy should be created between parens patriae (detentions in the best interests of the individual himself) and police power (detentions for the protection of others) commitments!
Many people with mental health problems receive care and treatment in the community when necessary, and some will never need to go to hospital. Others will experience severe problems from time to time and admission to hospital for assessment or treatment, or both, may be necessary. Usually the person concerned will agree to be admitted and will be referred to as a 'voluntary' or 'informal' patient. Compulsory admission may be necessary if someone has such severe problems that there is a risk to their health or safety, or to the safety of other people, and they refuse to go into hospital. This type of admission can be arranged under one of the sections of the 1983 Mental Health Act (MHA).
An individual does not have to be 'dangerous' in order to warrant hospital admission under the act. However, to be considered as 'dangerous' to oneself is often mentioned as being a requirement for confinement, and forms part of a public interest to preserve public peace and safety. However, it remains to be said that much uncertainty exists around the application of this criterion and defining a patient as dangerous.
Sections 2 and 3 of the MHA 1983 are concerned with civil admissions.2 Under Section 2, an application for admission for assessment authorises the patient's detention for up to 28 days and is non-renewable.
Section 3 allows, for an application made for treatment of a patient. The patient may be detained in the first instance for up to six months. The detention may then be renewed, on the advice of a responsible medical officer (RMO) for a second six months and thereafter for a year at a time.
The process of civil confinement requires an application for admission to the hospital from either an 'approved social worker' (ASW) or the nearest relative (NR) of the individual. The application must be supported by two medical recommendations; one must be an approved specialist in mental disorder. In an emergency, one recommendation will serve under Section 4 of the Act. This has raised several issues surrounding Asw's using this approach to save time. However, the code of practice clearly states that section 4 should not be used for 'administrative convenience'.3
Briefly, an Asw is an officer of a local social services authority appointed by his authority for this purpose. The appropriate authority must be able to prove that the ASW has the competence in dealing with people who suffer from mental illness. This requirement is set under section 114(2) of the MHA 1983. Furthermore, an ASW must have undertaken a twelve-week training course to obtain a qualification in social work.
The nearest relative (NR) is normally determined by taking whoever comes first on the list of relatives. Section 26(1) of the MHA 1983 provides a legal ...
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Briefly, an Asw is an officer of a local social services authority appointed by his authority for this purpose. The appropriate authority must be able to prove that the ASW has the competence in dealing with people who suffer from mental illness. This requirement is set under section 114(2) of the MHA 1983. Furthermore, an ASW must have undertaken a twelve-week training course to obtain a qualification in social work.
The nearest relative (NR) is normally determined by taking whoever comes first on the list of relatives. Section 26(1) of the MHA 1983 provides a legal definition of the NR. The relatives of whole blood are usually preferred over relatives of half blood. In the event that there is more than one relative in the same category, the elder of the two is preferred regardless of sex as the NR.
In contrast to the ASW, the NR does not require any specialist training or knowledge. Nevertheless, the NR has a role parallel to that of an ASW in arranging the patient's compulsory admission to hospital.
Under Section 11(1) of the 1983 Act, applications for compulsory admission to hospital for assessment or for treatment may be made either by an ASW or by the NR. Even if the professional opinion of the ASW is that the application should not be made, he cannot prevent the NR from making it.
When a patient is compulsory admitted on the application of his NR Section 14 requires that the hospital managers notify social services for an ASW to provide a formal report to the hospital about the patients social circumstances. Under the MHA 1983, hospital managers have important statutory powers, responsibilities and duties relating to compulsory powers of detention. In particular, the hospital managers are the "competent authority" as required under Article 5 of the European Convention on Human Rights4 in relation to civil admissions and powers of detention.
Many ASW's feel strongly against the NR making an application for various reasons. Firstly, there is a potential of harming family relationships, this view has been reinforced by MIND,5 where it has been suggested that the role of the NR should be abolished. Furthermore, by removing the NR from the process of admissions increases the power of the ASW in making an application.
The ASW may also feel that the NR lacks any kind of professional knowledge both in mental disorder and of the facilities available for treatment, and therefore feel that their decision should be held superior to that of a NR in making an application. It is also believed by many ASW's that a NR is too closely involved with the patient to judge the situation dispassionately, and might easily assume that the only response to a crisis was immediate admission to hospital.
Yet it was for exactly the same reasons that the DHSS (DHSS at al 1978)6 argued that the NR should retain his powers. They argued that "some relatives may prefer to feel that they are in control of the situation and they will be in the best position to judge when they are unable to cope with the patient."
The near relative has a power of veto over an application for treatment, if he or she disagrees with the ASW, unlike the ASW, he or she also has the power to discharge a civil patient from detention. However, discharge from hospital may be prevented if the patient would be likely to act dangerously if they were to be released. However, ASW's may avoid the power of veto by making an application under section 2 before going on to apply for section 3.7
Under Section 29, the ASW or any other relative or any other person with whom the patient is living or was living just before going into hospital may override the wishes of a NR by applying to the County Court for replacement of the NR.
The County Court may replace the NR if it finds the NR unreasonable, the case of W v L [1974]8 illustrates this, and here the Court of Appeal used the objective welfare test to make the decision. However, the court may disagree and may not find the NR unreasonable. In S v G [1981]9 the Judge declined to find the NR unreasonable.
The NR cannot prevent the ASW from making an application for admission for assessment. However, either before or within a reasonable time after making such an application Section 11(3) requires that the ASW must inform the NR, not only of the admission but also the relatives right to discharge the patient. However, it should also be mentioned to the NR that a doctor might override this decision if a patient is considered to be dangerous.
The NR can object in transferring a patient from Section 2 to Section 3 for treatment. However, this decision can be overruled by making an application under Section 29, and whilst this is in process the 28 day period may be extended. The patient therefore, is detained for assessment until the application has been finally disposed of. 10In R v Central London County Courts, it was stated that a patient could be admitted under Section 3 during the hearing of Section 29 if it were deemed necessary to do so. Therefore, the ASW can apply for Section 2 before applying for Section 3 thereby avoiding the power of veto.
The Mental Health Act procedures allow medical intervention in circumstances for wider than those, which the common law would allow. The procedures accept that any individual social worker may refuse to act on the medical recommendations. There may be times when an ASW is in disagreement with the decision of a psychiatrist, and this raises tension between the professionals.
The psychiatrists may view the ASW as at least a junior member of a professional team and at worst as little more than a messenger to supply the focuses, as such he may feel that the ASW lacks the skills and expertise to diagnose mental illness. On the other hand, the ASW may feel that the psychiatrist is infringing the patient's civil liberties. This is reflected in Cavadino's statement, which said that the two professions viewed each other with low self-esteem.11
There may be specific features of a particular illness about which a psychiatrist will be more knowledgeable, however, Bean found in his study that psychiatrists were more likely to rate a patient 'dangerous to others' than ASW's.12 Furthermore, " Psychiatrists have not shown themselves to be particularly skilled at predicting dangerousness nor have they been too astute in distinguishing the potential suicide from the pretender" Clare 1980.13
Walton stated that ASW's " find that adopting an independent position in relation to health professionals, particularly psychiatrists, is a key element in their task of forming a social view of serve users" situation.14 This desire to act independently and autonomously has raised much tension between ASW's and doctors.
During disagreements between doctors and ASW's, particularly GP's, over a patients admission, many doctors have been known to advise the NR to make an application. This goes against the code of practice15 and by no means should a doctor use this to avoid involving an ASW in the assessment. Furthermore, one must bear in mind that the NR may not always be acting in the best interests of the patient, particularly if the patient becomes a burden for his relatives. The case of JT v UK16, illustrated that the law needs to be modified.
The Code of Practice is all about inter-disciplinary co-operation;17 everyone involved in the process of compulsory admission of a patient should work together synergistically. The working relationship between health professionals (doctors and ASW's) and lay persons (NR) in the civil admissions process is in reality much different. The potential of conflict and tension arising between members involved has been largely overlooked. It is obvious that many ASW's are not entirely satisfied with the NR having a role parallel to theirs. Despite the Percy Commissions18 aims that professionals should work as part of a multidisciplinary team, the desire to work independently has caused yet more conflict between health care professionals. Differing opinions between members causes further antagonism.
In the government green paper,19 the reduction of the ASW's involvement in the compulsory admissions procedures may cause greater resentment amongst ASW's.
The need to maintain the role of ASW's and NR's in hospital admissions of mentally ill patients is fundamental, as they provide a sound foundation of social thinking in the whole procedure. In addition, the justification for the continued role of the patients NR is to counter-balance the over-mighty power of the professionals who know what's best for us.
Price, P.T.D, 'Civil commitment of the mentally ill: compelling arguments for reform', Medical Law Review, 2, Autumn 1994, 321, pg, 321.
2 Pg 2, Craven Mental Health Handbook - Mental Health Act 1983.
3 The Mental Health Act 1983 Code of Practice Department of Health and Welsh Office, (1999), London: HMSO, para 6.2.
4 Winterwerp v The Netherlands [1979] 2 EHRR 387
5 Cavadino, M., 'Mental Health Law in Context: Doctor's Order?' (1989), Aldershot: London, Pg 117.
6 DHSS et al (1978) Review of the Mental Health Act 1959, Comnd, 7320, (London: HMSO).
7 Pg 61, Mental Health Law, Brenda Hoggett, Fourth Ed, Sweet and Maxwell.
8 [1974] QB 711, Pg 61, Mental Health Law, Brenda Hoggett, Fourth Ed, Sweet and Maxwell.
9 [1981] J.S.W.L. 174, Pg 61, Mental Health Law, Brenda Hoggett, Fourth Ed, Sweet and Maxwell.
0 County Court and another, ex parte London [1999] 3 WLR 1.
1 Cavadino, M., 'Mental Health Law in Context: Doctor's Order?' (1989), Aldershot: London, pg 114.
2 Bean, P., (1980), 'Compulsory Admissions to Mental Hospitals,' Chichester: John Wiley, Pg 162.
3 A.W (1980).
4 Walton, P, 'Reforming the Mental Health Act 1983: an approved social worker perspective,' Journal of Social Welfare Law 22(4) 2000 401, Pg 407.
5 The Mental Health Act 1983, Code of Practice Department of Health and Welsh Office (1999), London, HMSO, para 6.2.
6 Application No. 26494/95 European Court of Human Rights, 30th March 2000.
7 The Mental Health Act 1983, Code of Practice Department of Health and Welsh Office (1999), London, HMSO, para 6.2.
8Royal Commission on the Law relating to Mental Illness and Mental Deficiency 1954 - 1957, (The Percy Commission) (1957), Cmnd 169, London, HMSO, Para 403.
9 Reform of the Mental Health Act 1983 (Cm 4480)(1999).
