Download Conference - Health in Wales

THE MENTAL HEALTH ACT
2007
Implications for the medical treatment of
patients in the community
Richard Jones
Consultant in Mental Health and Community Care Law
Morgan Cole, Solicitors
E-mail: [email protected]
MHA Community Powers
• Guardianship
• Long term s.17 leave
• Supervised Community Treatment
Guardianship
• A new power to take the person to the
place where he or she is required to be
• Reasonable force can be used during
conveyance (s.137). More than “closing a
loophole”
• Authority to treat under common law or
MCA 2005
Long Term s.17 Leave
• Longer term s.17 leave (7 days +) cannot be
granted unless CTO “considered” by RC
• Effect of the decisions of the High Court in cases
involving the use of s.17
• Is hospital treatment a “significant component” of
the patient’s treatment plan
• Authority to treat under Part IV of the Act
Community Treatment Orders
• Supervised discharge provisions repealed
and replaced by supervised community
treatment
• Transitional regulations have been made
• SCT will only apply to those who would be
a risk to their own health or safety or that
of others if they do not continue to receive
their treatment when discharged from
hospital – the “revolving door” patient
CTO Applications
• Patient (of any age) must have been
assessed and treated in hospital first
whilst under s.3 or a Part III power without
restrictions
• Patient can be on s.17 leave
• Criteria similar to those in section 3 + it is
necessary that the RC should be able to
exercise the power to recall the patient
CTO Applications (2)
• The four specific categories of mental disorder
have been replaced by a single definition – “any
disorder of disability of the mind”
• The “treatability” test has been replaced by an
appropriate treatment test
• The RC applicant must obtain the written
agreement of an AMHP that criteria met and
CTO appropriate
Effect of Application
When it comes into effect, the application
suspends –
• The authority to detain the patient in
hospital – no need to renew section
• The operation of Part IV of the Act in
respect of the patient
CTO Conditions
• Package of after-care services (NHS and
LA) must be in place before the patient
leaves hospital (s.117)
• Patient subject to mandatory conditions to
make himself available to SOADs (for Part
IVA certificates) and to RCs (for renewals)
CTO Conditions (2)
• Wide discretion for additional conditions –
“necessary or appropriate” to ensure that
treatment received and/or patient or others
protected
• RC must agree conditions with AMHP
• RC may subsequently vary or suspend
conditions without the agreement of an
AMHP
CTO Conditions (3)
“Conditions might include stipulating
where the patient might live, the
arrangements for receiving treatment in
the community and may cover matters
such as avoiding the use of illegal drugs,
non-prescription drugs and/or alcohol
where their use has lead to relapse in their
mental disorder” (Code of Practice,
para.30.33)
CTO Recall to Hospital
• RC may recall patient by written notice if (1) he needs
treatment and there is a risk to him or others if he is not
recalled (even if complying with conditions) or (2) where
patient fails to comply with a mandatory condition
• Recall need not be to the “responsible hospital” and can
be for out-patient treatment in a hospital clinic
• Effect of recall – reinstatement of s.3 regime
• Recall is for a maximum of 72 hours
CTO Options on Recall
The patient’s RC has the following options on a
patient’s recall:
• Revoke CTO if criteria for detention under s.3
satisfied (with AMHP’s agreement) – automatic
referral to MHRT
• Release patient from detention – the patient
continues to be subject to the CTO
• Transfer to another hospital
Community Treatment of CTO
patients
• Patient subject to new Part 4A (medication and ECT)
while in the community (or in hospital informally)
• Mentally capable patients must consent (SOAD
certificate required). Power of recall can be used if
treatment refused
• Incapacitated patients can be treated if either a donee or
deputy consents or a SOAD certifies
• Incapacitated patient cannot be treated contrary to a
valid and applicable advance decision or if donee or
deputy objects
Community Treatment of CTO
patients (2)
• Provision for emergency treatment to be given to an
objecting incapable patient in order to prevent harm to
the patient, using proportionate force if necessary (no
equivalent for capacitated patients)
• Certificate not required for medication within one month
of making of CTO, or three months from when
medication first given, whichever is later
• SOAD may attach conditions to certificate
• Separate provision for children under the age of 16
Treatment on Recall (s.62A)
Patient may be given treatment which would
otherwise require a s.58 or 58A certificate on
the basis of a certificate given under Part 4A if
the certificate specifies that the treatment can be
given on recall, and giving the treatment would
not be contrary to any condition in the certificate
Otherwise Part IV applies and existing
certificates are resurrected. Treatment can
continue, pending compliance with Part IV, if its
discontinuance would cause serious suffering
CTO – Renewals and MHRT rights
• Renewal periods and procedure as for s.3
• RC reports to Hospital Managers that criteria are
satisfied + risk assessment completed with respect of
need for recall power
• AMHP’s agreement needed + consultation with another
professional
• Same rights of access to MHRT as for s.3 (MHRT can
recommend CTO for s.3 patient)
Ending of CTO
CTO, (and, apart from revocation, the underlying
authority for detention) ends if:
• Period runs out and CTO not extended
• Discharged under s.23 or by MHRT
• RC revokes CTO following patient’s recall
• Patient received into guardianship
Criteria for Discharge of CTO
• Is the patient suffering from a mental
disorder disorder of a nature or degree
which makes it appropriate for the patient
to receive medical treatment?
• Is it necessary in the interests of the
patient’s health or safety or for the
protection of others that he should receive
such treatment?
Criteria for Discharge of CTO (2)
• Is it necessary that the RC should be able
to exercise the power to recall the patient
to hospital?
• Is appropriate treatment available for the
patient?
• If the patient has been discharge by his
NR (Part 2 patients only), would the
patient be likely to act in a manner
dangerous to other persons or to himself?
Advantages of s.17 Leave
• Familiarity
• Contains similar powers to SCT
• Far less bureaucratic
• More acceptable to patients?
Disadvantages of s.17 Leave
• No automatic MHRT referral on a recall
• Less structured than SCT
• Does not provide for the protection of
AMHP involvement