DMH 15 Memorandum from Leslie Carr
I am submitting this as an individual rather than
a member of an Agency. As an Approved Social Worker working in
an Acquired Brain Injury Rehabilitation Unit whilst also sitting
as a Justice of the Peace I am particularly interested in the
relationship between the proposed Mental Health Bill and the proposed
Mental Capacity Bill and I am offering a suggestion concerning
'moving' people without capacity from the Mental Health field
to the Mental Capacity field.
1) One of the achievements of the MH Bill and the
MC Bill is to move those with a Learning Disability and Acquired
Brain Injury out of the field of Mental Health into a new field
of Mental Capacity by removing the diagnoses of Severe/Mental
Impairment from Mental Health legislation.
2) This is likely to be beneficial as working in
the area of ASW/ABI for several years I have had, on several occasions
to use the 1983 MHA when the health or safety of the ABI sufferer
as been at risk. Although this is legal it has always felt uncomfortable
as it has often meant an individual with specific ABI needs left
inappropriately on a psychiatric ward for several weeks.
3) At present there is nothing outside MH legislation
for the care and control of those without a MH diagnosis except
common law and the rare use of a High Court statutory declaration.
The MC bill will of course change this with Lasting Power of Attorney
and Court Appointed Deputies.
4) However it is unclear as to whether the MC bill
will cope with emergency intervention as not all will have a LPA
and a CAD is unlikely to be available in the few hours that a
genuine emergency requires.
5) As such it is likely that many sufferers of Acquired
Brain Injuries or Learning Disabilities when in an emergency will
become under the remit of the MH Bill and admitted to Psychiatric
Hospitals under its powers.
6) Although it is likely that clinicians and practitioners
will take steps to transfer such individuals to the Mental Capacity
field it is unlikely to prove a speedy resolution and it will
take weeks and probably months before their care is transferred,
leaving them in a totally inappropriate environment for far too
long.
7) What appears to me to be one possible option is
to extend the power of the Mental Health Tribunal at the 28 day
stage. If it appears to the Tribunal that the individual needs
to be managed under the Mental Capacity Bill rather than the Mental
Health Bill then the Tribunal should have the power to impose
an Interim Court Appointed Deputyship, perhaps to the Chief Executive
of an appropriate body like a Health Trust or Social Services,
for a period of 28 days.
80 This would achieve the goal of removing the individual
with ABI/LD from the Mental Health field, keep an element of care
and control in place for emergency situations whilst ensuring
a review within 28 days by a court qualified to deal with issues
of Mental Capacity.
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