Health CommitteeWritten evidence from a person who wishes to remain anonymous (MHA 02)

Mental Health Act 2007

1. The purpose of the Act was inter alia to amend the Mental Health Act 1983 (“MHA”) and the Mental Capacity Act 2005 (“MCA”) in relation to mentally disordered persons.

Background

2. These comments are from the perspective of an A & E patient (“P”) having collapsed at home and diagnosed with a grand mal seizure (1st), the after-effects of which can last several hours and can result in temporary lack of capacity. The final note in P’s A & E medical record states, “I don’t think this gentleman has capacity.”

Nevertheless, an A & E Consultant referred P for mental health assessment within 2½ hours of arrival without reviewing P in person and the assessment took place six hours after arrival in A & E. P was sectioned under s.2 of the MHA (as amended).

3. P was sectioned unnecessarily and transferred to an acute NHS psychiatric hospital.

On discharge, the Consultant Psychiatrist at the NHS psychiatric hospital wrote that the team at that hospital agreed P had not been manic from the start. However, P had been detained on a Friday evening and was refused access to facilities to apply for discharge until Monday. Four needless days “care” and the resulting complaints (still ongoing after 18 months) have wasted and continue to waste substantial public money.

P is left with the stigma of a section on record for life. Even though an allegedly independent investigator found that, at the time of the mental health assessment, it is, “Undisputed” that P had presented only with the after-effects of a seizure without psychosis, mania or hypomania, the NHS refuses to accept the section as wrong.

In P’s case, the NHS has used more resources defending and concealing the indefensible than it would have taken to settle the dispute at the outset.

4. Unlike alleged offenders found “not guilty” in Court, a section is irreversible unless the patient has the financial resources to apply for Judicial Review. This offends common law and common sense. Detaining patients improperly under the MHA or the MCA violates their Rights inter alia under Articles 3, 5, 6 and 8 of the European Convention on Human Rights.

Yet there will be no cost-effective remedy until:

(i)NHS Chief Executives and the relevant regulators are informed robustly that complaints processes should themselves conform to Article 6 if they involve serious disputes about patients’ Rights, including NHS treatment: it does not necessarily have to be in Court.1

(ii)The culture of denial in the NHS, medical profession and their regulators (identified by Mr Robert Francis QC) ceases to exist.

Recently, P found an Employer Liaison Advisor at the GMC and an NHS Hospital Medical Director agreeing that a referral of misconduct was not necessary. They did not consult the GMC’s “Fitness to Practise” Directorate, who, it transpired, would have welcomed it.

5. The assessors justified P’s section by dissembling on section forms and related papers: they dissembled again in their evidence to the “independent” inquiry. This is not P’s opinion—it is de facto from the written record.

6. It is unnecessary for the purpose of reviewing the MHA 2007 to proffer further information about P’s case, unless requested. However, the Department of Health has more (but not all) of the details.

Lessons

7. Although the purpose of MHA 2007 was to amend the MHA 1983 and MCA 2005, in relation to mentally disordered persons, from the original event and the complaints process, P identified complete confusion among professionals about the interface between the MHA and MCA.

There is compelling evidence that there is insufficient clarity as to which Act should be applied when mental capacity and mental health issues might exist in a single patient. This leads, for example, to patients, whose capacity might be impaired temporarily by physical ill health, being detained in the disturbing environment of an acute NHS psychiatric hospital.

For example, P is unable to obtain a satisfactory explanation of why doctors can choose on a whim between using the MHA and the MCA. In P’s case:

(i)He was not at the time (and never had been) subject to any of the powers of the MHA.

(ii)Notwithstanding P’s A & E records stating, “I don’t think this gentleman has capacity” no “best interests” assessment was carried out before the mental health assessment.

It seems especially perverse to engage the MHA knowing that P had experienced a grand mal seizure (1st) that day, which was likely to result in temporary impairment of capacity.

8. Regardless of (7), P offered:

(i)To stay voluntarily at the general hospital for neurological monitoring: this would have allowed time for the doctors to see if his capacity recovered.

(ii)If necessary, to admit himself voluntarily to a private psychiatric hospital for assessment—at no cost to the public purse. In case the medics doubted his capacity, P’s wife (as his Nearest Relative) agreed to pay too.

It follows that P did not need to be detained under either Act but the mental health assessors dissembled on the section forms by stating P refused informal admission—even though P’s A & E notes confirmed that P offered it.

9. Notwithstanding (8), subsequent research convinces P that confusion between the two Acts contributed to the decision to detain him. For example:

(i)The General Hospital did not know (until P researched it later and informed them) that it [the General Hospital] was Hospital Manager and the PCT was the Supervisory Authority for the purpose of the MCA. As a result, they did not even consider the applicability of the MCA before referring P for mental health assessment.

(ii)It is inherently confusing that responsibility for detention:

(a)Under the MHA lies with the local authority covering the area where the hospital is located.

(b)Under the MCA lies with the local authority covering the patient’s home and/or his GP’s surgery address.

In P’s case, the hospital is in one Local Authority area, whereas he and his GP are in a different area. There are parts of the country where the hospital, the patient and the GP all could have addresses in different local authority areas.

This is a recipe for confusion.

Conclusions

10. To give state employees the legal right to detain persons without adequate (if any) safeguards or cost-effective remedies in place against unlawful detention is an issue Government should take very seriously indeed.

It offends common sense and Articles 5 and 6 of the European Convention on Human Rights that a person detained improperly under the MHA has the stigma of a sectioned psychiatric patient attached to him for the rest of his life: arguably it is a failure of Government.

11. The confused nature of current legislation (and/or the lack of clarity in the guidance issued to those who enforce it) contributes significantly to the risk of unlawful detention.

Pursuant to (9) above P avers that there is a compelling case for putting both the MCA and MHA under the same jurisdiction.

12. There are also serious inequities inherent in the MHA, for example lack of access to justice for patients detained improperly and/or as a result of gross professional misconduct (including dissemblance) by mental health assessors.

For example, to bring a Civil Claim for unlawful detention, Counsel advises that the patient first has to make application for leave of a High Court Judge even if the case would normally be heard in the County Court. The High Court Judge considers whether the case needs further investigation before making a decision on whether it should proceed.

13. It is innately unfair that, compared to the police:

(i)Mental health assessors have more powers to detain persons and do so unsupervised.

(ii)There are fewer safeguards in place for the patient, on the day and thereafter, against unlawful detention.

(iii)Patients detained unlawfully have no cost-effective means of obtaining a remedy unlike alleged offenders in the criminal justice process.

(iv)Mental health assessors have a safeguard in place, which is not enjoyed even by police officers, ie the requirement at (12) for a patient to seek leave of a High Court Judge even to issue proceedings for compensation in the County Court.

(v)Mental health assessors can rely on the ineffectual NHS complaints process (found by P in his area and confirmed elsewhere in the Francis Report) to protect them.

This balance in favour of the assessors should be redressed by legislation.

Summary

14. P believes that, whereas the MHA 2007 was an amending Act inter alia for the MHA 1983 and the MCA 2005, in respect of mental health, there are strong grounds for a consolidation Act. A new Act would include new amendments to increase clarity and redress the balance between the interests of the patient (and his Right not to be deprived of his liberty) and the interests of the mental health assessors.

15. The MHA regime is a murky, innately unfair process. It is a charter for inter alia:

(i)Untrustworthy, dishonest and greedy doctors, who earn substantial fees for assessments on top of their generous salaries as (for example) Consultants or GPs.

(ii)Dishonest, left-wing social workers who, just like in child adoption, revel in opportunities to interfere with the private lives of those they perceive as middle-class: specifically in P’s case, those that can afford private health care.

(iii)NHS Trusts to make their achievements and figures [against their targets] look good by clearing hospital beds in short order when they should admit patients themselves and thereby transfer responsibility (and costs) to another Trust.

16. It is Government policy to reduce the stigma attached to mental illness. “Campaigns” will not achieve this without legislation to safeguard the physically ill from unjustified stigmatisation and whilst the NHS itself discriminates against those perceived as mentally ill.

March 2013

1 A Guide to the Human Rights Act 1998—paragraphs 3.51 & 3.52 October 2006, The Department of Constitutional Affairs

Prepared 9th August 2013