The Approved Mental Health Professional?s Guide to Mental Health Law

Robert Brown

• Publisher: Learning Matters
• Year: 2019
• Print ISBN: 9781526450289
• eBook ISBN: 9781526471482
• Edition: 5
• Topic: Social Sciences
• Subtopic: Social Work
• Index: Social Sciences

This highly practical book brings together the elements of legislation, Code of Practice, Memorandum, Government Circulars and relevant case law, policy and AMPH regulations that trainees are required to get to grips with to pass the course and practice as a registered Mental Health Professional.

This fully-revised fifth edition is an essential guide for practising AMHPs, or those currently in training. With extensive appendices which cover Mental Health Act Assessments, Practice Directions (first tier tribunal) and the AMHP Regulations for both England and Wales. it also offers checklists, multiple choice questions and exercises to aid practice and learning, and includes:

- Updates to recent legislation, case law and policy

- The impact of the Policing and Crime Act 2017 on patient admissions and the Mental Health Act

- The implications of the 2017-18 Annual Report by the CQC and HIW looking at detained patients

- Anticipated outcomes of the Mental Capacity Act (Amendment) Act 2019

- A new appendix documenting The Mental Health Act 1983 (Places of Safety) Regulations 2017

Chapter 1 Introduction and definitions of mental disorder

Becoming an Approved Mental Health Professional

This chapter should help candidates to achieve the following competences:

Application of knowledge: the legal and policy framework

Applied knowledge of:

• 2(1)(a)(i) mental health legislation, related codes of practice, national and local policy guidance.

Application of knowledge: mental disorder

Critical understanding of:

• 3(a) a range of models of mental disorder, including the contribution of social, physical and developmental factors;
• 3(b) the social perspective on mental disorder and mental health needs in working with patients, their relatives, carers and other professionals;
• 3(c) the implications of mental disorder for patients, their relatives and carers.

Common law

Although the role of the approved mental health professional (AMHP) is rooted firmly in statute there are sometimes overlaps with the common law. The Oxford Dictionary of Law (Law, 2018, p122) gives three basic definitions of common law:

1. The part of English law based on rules developed by the royal courts during the first three centuries after the Norman Conquest (1066) as a system applicable to the whole country, as opposed to local customs . . .
2. Rules of law developed by the courts as opposed to those created by statute.
3. A general system of law deriving exclusively from court decisions.

Montgomery (2002, p7) has described common law as:

The rules which are extrapolated from the practice of the judges in deciding cases. Judges should take a consistent approach to recurring issues and are obliged to follow the decisions of earlier cases, at least when they have been given by the higher courts. Once a matter has been resolved by a judge it therefore sets a precedent which enshrines the legal rule.

Some practitioners have referred to this as ‘common sense under a wig’.

An example of an area covered by common law rather than statute is intervention in an emergency for an informal patient. Even if the patient lacks capacity he may be an immediate risk to others and relying on the Mental Capacity Act may not be possible in terms of treatment or restraint. See Chapter 6 for a more detailed discussion of this area of law.

‘Judge made law’ has become critical in mental health and mental capacity issues over the last few years when the Supreme Court in particular has made some important rulings which affect practitioners. Tom Bingham (2011) provides an excellent analysis of how these judgements need to be intelligible if the rule of law is to be followed.

Civil liberties vs welfarism

Before considering models and definitions of mental disorder in depth it is important to think of the consequences which might flow from being seen as mentally disordered. This depends to some extent on the prevailing ideology as reflected in law and practice. One way of looking at the effects of different ideologies on mental health law is to contrast the views of those with ‘civil libertarian’ leanings such as Thomas Szasz with those of a more ‘welfarist’ persuasion represented by the Zito Trust until its closure in 2009. If one were to adopt Szasz’s views (disputing the notion of ‘mental illness’ but, if conceding that it might exist, adopting the view that people should make their own decisions about their treatment, as with physical illness), then presumably there would be no need for mental health law at all. There might be a case to consider law relating to mental incapacity linked to brain injury, dementia, demonstrable learning disability, and so on, but this would not allow for the detention of people who psychiatrists consider to be suffering from schizophrenia, depression, and so on.

A welfarist approach might make an assumption that mental illness is linked to a degree of mental incapacity (as in the term ‘lack of insight’) but whether or not this is the case, a welfarist view would be that it is sometimes necessary to intervene against someone’s will to protect a person from himself or for the protection of others. The rapid growth in the numbers of community treatment orders could be seen as a victory for welfarism, especially as there is no reduction in the number of detained patients.

The contrast between these competing ideologies is illustrated in Figure 1.1. The Mental Health Act 1983 can be seen as positioned somewhere in the middle of the upper continuum illustrated. AMHPs, doctors, tribunals and courts are left to make decisions as to when the circumstances justify intervention. With the exception of electro-convulsive therapy treatment, however, mental capacity is not the relevant test used in the Mental Health Act. The criteria needed are a mental disorder of a nature or degree to warrant intervention plus an appropriate level of risk.

Figure 1.1 Different perspectives on mental health law.

Gostin (1977) made the ethical point that, if you deprive someone of liberty, you should have a duty to provide a good-quality service. One part of the Mental Health Act which addresses this issue is section 117 relating to after-care. Consistent guidance that section 117 services should not incur charges could be seen to reflect the link between the positive end of the resource continuum with the welfarist intervention point. Similarly the Richardson Committee on the Reform of the Mental Health Act considered the principle of ‘reciprocity’. Free after-care services have been retained in the Mental Health Act despite the controversy on this subject. The same is not true, however, for the new Deprivation of Liberty Safeguards or indeed where guardianship is used. Neither of these powers is linked to the principle of not charging for any required services.

Another way of using Figure 1.1 is to imagine a point in the middle of the upper continuum where detention would be justified if there was:

• mental disorder of a nature or degree to justify this;
• a level of risk to self or others which also justified detention.

Any reform of mental health legislation will need to look at how far to link any compulsory powers with issues of mental capacity.

Mental health terminology and the law

Common law distinguished ‘idiots’ from ‘lunatics’ before the first of the Acts. These terms correspond with the distinction between people with a learning disability and those who are mentally ill. Historically, the groups have sometimes been dealt with in separate legislation and sometimes together, as in the Mental Health Act 1983.

• 1713/44 Vagrancy Acts allowed detention of ‘Lunaticks or mad persons’.
• 1774 Act for regulating private madhouses.
• 1845 Lunatics Act included ‘Persons of unsound mind’.
• 1886 Idiots Act provided separately for idiots and imbeciles.
• 1890 Lunacy (Consolidation) Act ignored the distinction.
• 1913 Mental Deficiency Act favoured segregation of ‘mental defectives’: idiots were unable to guard themselves against common physical dangers such as fire, water or traffic; imbeciles could guard against physical dangers but were incapable of managing themselves or their affairs; feeble-minded needed care or control for protection of self or others; moral defectives had vicious or criminal propensities (use of this category later included many poor women with unsupported babies).
• 1927 Mental Deficiency Act emphasised care outside institutions. Mental deficiency was defined as ‘a condition of arrested or incomplete development of mind existing before the age of 18 years whether arising from inherent causes or induced by disease or injury’.
• 1930 Mental Treatment Act allowed for voluntary admissions. It enabled patients to enter the county mental hospitals as voluntary patients, as long as they could express volition on admission, it being only necessary for them to sign a form stating they were willing to enter the hospital and would abide by the rules. They could discharge themselves by giving 72 hours’ notice in writing (the opposite approach to the current s5).
• 1946 NHS Act ended distinction between paying and non-paying patients.
• 1948 National Assistance Act made provision for those in need.
• 1959 Mental Health Act. Mental disorder means: ‘mental illness; arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind’. Further classifications for long-term compulsion were: mental illness, severe subnormality, subnormality, psychopathic disorder, with a kind of treatability test for the last two.
• 1970 LA Social Services Act created Social Services Departments.
• 1983 Mental Health Act. The broad definition was exactly the same as in the 1959 Act. However, the classifications were changed to: mental illness (undefined); severe mental impairment: ‘a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’; mental impairment: ‘a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’; psychopathic disorder: ‘a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’.
• 1984 Police and Criminal Evidence Act (PACE) (plus its Codes of Practice) uses the term ‘mental disorder’ as per the Mental Health Act and the revised PACE Codes use the concept of the mentally vulnerable adult.
• 2002 Draft Mental Health Bill definition: ‘any disability or disorder of mind or brain which results in an impairment or disturbance of mental functioning’.
• 2003 Mental Capacity Bill. Provides for people unable to make a decision ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’. This then becomes the s2 ‘diagnostic test’ for mental incapacity in the Mental Capacity Act 2005.
• 2004 Revised Draft Mental Health Bill definition of mental disorder was: ‘an impairment of or a disturbance in the functioning of mind or brain resulting from any disability or disorder of the mind or brain’.
• 2005 Parliamentary Scrutiny Committee accepted the above definition but stated: ‘that a broad definition of mental disorder in the draft Bill must be accompanied by explicit and specific exclusions which safeguard against the legislation being used inappropriately as a means of social control’. However, the final version as a result of reforms is . . .
• 2007 ‘Any disorder or disability of the mind’. The word ‘brain’ is removed, which gives at least some potential space between the Mental Health Act definition and that of the test for incapacity in the Mental Capacity Act. However, it is still a very broad definition and the removal of most of the exclusions has potentially broadened it still further. There are no longer any separate classifications of mental disorder, apart from ‘learning disability’ when considering longer-term detention or guardianship. Learning disability is discussed in more detail below.

The Scottish Mental Health Act 2003 defines mental disorder as mental illness, personality disorder or learning disability. This is probably more in line with current mental health practice than the definition for England and Wales, especially as Scotland retained exclusions for sexual orientation, sexual deviancy, transsexualism and transvestism.

Models of mental disorder

There are many theoretical approaches to mental disorder. In the Journal of Mental Health Pilgrim (2002) traces the history of the biopsychosocial model. There is also a chapter by Dallos in the Open University text, Mental Health Matters (Heller et al., 2000). This is rather light on social explanations so the biosocial model is outlined below and a few other approaches are considered. Dallos identified three levels of analysis: societal, interpersonal ...

Table of contents

• Cover
• Half Title
• Acknowledgements
• Title Page
• Copyright Page
• Contents
• List of abbreviations
• About the author
• Foreword from the Series Editor
• Preface
• Chapter 1 Introduction and definitions of mental disorder
• Chapter 2 Civil admissions, guardianship and community treatment orders
• Chapter 3 Relatives and carers
• Chapter 4 The role of the approved mental health professional
• Chapter 5 Patients concerned in criminal proceedings
• Chapter 6 Consent to treatment and mental capacity
• Chapter 7 Mental health tribunals and hospital managers’ reviews
• Chapter 8 The Care Quality Commission for England and the Healthcare Inspectorate Wales
• Chapter 9 Other relevant legislation
• Chapter 10 The Human Rights Act 1998
• Chapter 11 The Deprivation of Liberty Safeguards
• Appendix 1 Checklists for applications and forms
• Appendix 2 The Human Rights Act 1998
• Appendix 3 The Mental Health Act 1983: sections relevant to AMHPs
• Appendix 4A The AMHP Regulations for England
• Appendix 4B The AMHP Regulations for Wales
• Appendix 5 Forms used in England and Wales
• Appendix 6 Tasks for approved mental health professionals (AMHPs) involved in Mental Health Act assessments (answers)
• Appendix 7 Practice Direction (First-tier Tribunal) (Health, Education and Social Care Chamber) Statements and Reports in Mental Health Cases
• Appendix 8 The Conflicts of Interest Regulations for England
• Appendix 9 Multiple choice answers
• Appendix 10 Supervision Orders under the Criminal Procedures (Insanity) Act 1964
• Appendix 11 Suggested documentation for Regulation 24
• Appendix 12 The Mental Health Act 1983 (Places of Safety) Regulations 2017 (SI2017/1036)
• References
• Index