Richard cannot be forced to accept the accommodation offered to him unless he refuses help and is a danger to himself and others. A community doctor has the power to apply to the Magistrates Court for an order to remove Richard from his home. The criteria for compulsory admission into residential care are stated within s.47 NAA and apply to persons who: -
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Are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions; and
- Are unable to devote themselves, and are not receiving from other persons, proper care and attention.
It is important that both the criteria are met in order to show that Richard is unable to look after himself and is not merely choosing to live that way.
Should Richard’s situation be regarded as an emergency then the applicant can apply for an order which will allow him/her the power to remove Richard without giving him notice and to detain him for up to three weeks. The community doctor plus another doctor must certify that it would be in Richard’s best interests to remove him without delay (National Assistant (Amendment) Act 1951 s.1). Richard does, otherwise, have the right to at least 7 days notice of the court hearing. The order lasts for 3 months and is renewable indefinitely provided that the grounds for the order are satisfied. Once the compulsory detention lapses then Richard can leave or remain voluntarily.
In order to be aware of the range of services and service providers available it is possible to consult the Community Care Plan. It is required by every social services department that they publish a community care plan and update it at least once a year (NHSCCA s.46) in order that a wide range of needs are met within the area.
If, after a period of assessment, Richard is diagnosed as needing treatment under the Mental Health Act (MHA hereinafter) he must, before any application is made for an order, be interviewed in a “suitable manner” (MHA s.13). A suitable manner entails taking into account any barriers to communication that may exist (i.e. language, culture, environment etc.) and also that he not be interviewed whilst under the influence of alcohol.
If Richard is in agreement with, and consents to, treatment (Code para.15.13) the “informal admission” (MHA s.131 & Code para.2.7) into hospital may be in Richard’s best interests. The decision to admit Richard informally should be made by the doctor in charge of his treatment (Code para.2.8) and Richard’s views and feelings should be taken into account at all times. He is, in theory, free to leave the hospital at any time although, in an emergency, he can be temporarily detained (MHAs.5) by either the doctor or the nurse. The nurses holding powers [MHA s.5(4) & Code para.9.1] last for 6 hours and the nurse must be registered for mental disorder work under the Nurses Midwives & Health Visitors Act 1979. The grounds for detention are: -
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The patient appears to suffering from mental disorder to such a degree that it is necessary for his own health and safety or for the protection of others for him to be immediately restrained from leaving the hospital; and
- There is no doctor to write a report.
The doctors holding powers [MHA s.5(2) & Code para.8.2] last for 72 hours upon receipt of a written report by the doctor to the hospital manager stating that detention is necessary.
A second order for an emergency admission is available under s.4 of the MHA, should Richard need to be urgently admitted to hospital on the grounds of evidence of:
- An immediate and significant risk of mental or physical harm to himself or to others; and/or
- The danger of serious harm to property; and/or
- The need for physical restraint (Code para.6.3).
The application can be made by an Approved Social Worker (ASW hereinafter MHA s.114) or by the Nearest Relative (NR hereinafter MHA s.26) who, from the information given would be Richard’s sister, and must have seen Richard in the 24 hours previous to making the application. The application can proceed on the basis of the report of one doctor who has seen Richard within the previous 24 hours and the detention lasts for 72 hours.
Once invoked, the process for a Section 2 (28 day assessment) or Section 3 (up to 6 months treatment) should be started. The s.4 emergency detention is followed by s.2 assessment whereupon the medical recommendation of another doctor is required (i.e. Richard’s GP and a psychiatrist). The doctors can see Richard together or independently but it must be within 5 days of each other [s.12(1)] and must see Richard within 14 days of the application being made. The grounds for admission are: -
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The patient is suffering from mental disorder of a nature or degree which warrants his detention; and
- It is in the interests of his own health and safety or for the protection of others.
The application is again made by the ASW or NR (s.11) and addressed to the Hospital Manager [s.11(2)] and once properly completed this acts as sufficient authority to transport Richard to hospital within 14 days [s.6(1)(a)]. The 28 days can be extended for a further 7 days upon application. Once in hospital both Richard and his NR have the right to apply to the Mental Health Review Tribunal (MHRT) for a discharge within the first 14 days.
The procedure of application for MHA s.3 is as s.2 but the grounds are:
- The patient is suffering from;
- Mental illness, or
- Severe mental impairment, or
- Psychopathic disorder, or
- Mental impairment (Code para.30.5)
And that this mental disorder makes it appropriate for him to receive medical treatment in a hospital.
- The detention is necessary (i.e. there is no appropriate alternative) for the health of the patient and/or the protection of other persons.
- The treatment is necessary and it cannot be provided unless the patient is detained under Section 3 (Marquand 2000).
These concepts are outlined in MHA s.1 and further criteria outlined in the Code para.2.9&2.10. His diagnosis cannot be founded on the basis of alcohol abuse [MHA s.1(3)].
In the case of psychopathic disorder and mental impairment the treatment must be likely to alleviate or prevent deterioration in his condition (“treatability test”). Richard should be fully informed throughout, any communication barriers overcome and his individual needs taken into account (Code para.1&14). The duration of the admission is for 6 months, renewable for a second 6 month period, and yearly after that and can be renewed indefinitely providing the grounds are satisfied (MHA s.20). The NR must be informed [s.11(3)] and the application cannot proceed against the wishes of the NR [s.11(4)]. The ASW, making the application, can apply to the county court for another person to be appointed as NR if the objection is unreasonable (s.29). Under s.3, during each period of detention, both Richard and his NR a right to apply once during each period for a discharge any time in those 6 or 12 months. The Recommended Medical Officer (RMO) can also discharge Richard, providing the criteria is met, by giving an order in writing (s.23) or can renew detention by submitting a report [s.20(3)] at which point the hospital manager must undertake a review (Code para.23.7).
It must always be satisfied that detention in hospital is, in all circumstances, the most appropriate way of providing the necessary care and medical treatment that Richard requires [s.13(2)]. Upon being discharged from hospital under s.3 Richard automatically receives services under s.117 for as long as he will need them. A care plan should be implemented and the purpose of the care plan and the services is to equip Richard to cope with life outside the hospital without being a danger to himself and others. Considerations for after care and who should be involved are outlined in the Code para.27. Support and accommodation would also be available to Richard under ss.21&29 of the NAA.
An alternative to compulsory or non-compulsory detention in hospital for Richard could be to receive community care with conditions attached. There are two provisions in place to ensure supervised care within the community:
- Supervised Discharge (s.25A-25J)
- Guardianship (s.7)
They both last for 6 months, renewable for a 6 month period and yearly after that on the grounds that:
- The patient is suffering from 1 of the 4 mental disorders as defined in the MHA.
- That it is of a nature or degree that warrants the order.
There is an added criterion for supervised discharge, which is:
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That the patient is at substantial risk of serious harm or serious exploitation or is such a risk to other persons if such care was not provided; and
- Supervised discharge is likely to secure that he receives the after care services [s.25A(4)].
Both require that Richard comply with certain conditions such as:
- That he live in a certain place
- That he attend certain places for medical treatment, occupation, education or training; and
- To ensure that an approved social worker, doctor or other authorised person has access.
In the case of supervised discharge the application is made by the RMO, supported by the recommendation of a doctor and ASW and made to the relevant health authority. It must be accompanied by a statement of after care services to be provided. Richard can apply at any time to the MHRT for a discharge if he objects to receiving supervised after-care (s.66). A whole team of people are involved in the implementation of supervised discharge (Code para.27.8) and if, at any time, they believe that Richard’s condition warrants readmission to hospital they should contact an ASW or seek and informal admission with Richard’s consent.
Alternatively, an application for a Guardianship Order (s.7) can be made by the NR or an ASW to the local social services department on the recommendation of 2 doctors, one of whom has prior knowledge of Richard. A degree of stability on Richard’s part is required and the duties and powers of the guardian are set out in the Code para.13.
If, at any time, the ASW is asked by the NR to assess Richard [s.13(4)] then that assessment must be carried out even if it is in the form of a short interview.
The Mental Health Act encourages treatment in the least restrictive environment and, should he no longer require treatment or assessment, the Local Authority still have certain obligations towards Richard. A care plan should be implemented and a time scale agreed. The care plan should be regularly reviewed until it is agreed that it is no longer necessary (Code para.27.12). Richard should have facilities and activities available to him and there should be a contingency plan available should he relapse. There are services available also under Sch.8 & s.21 of the NHSCCA for the “prevention, care and after care of the ill” as cited earlier.
It is important that Richard is not “stereotyped”, that respect is given to him as an individual and that assumptions are not made and respect given to his age, gender, sexual orientation, social, ethnic, cultural and religious background at all times (Code para.1).
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BIBLIOGRAPHY
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