Heading down the wrong road

Where someone with mental illness is detained in hospital that will usually be because of an application was made by an Approved Mental Health Professional (AMHP). The role is unique to the Mental Health Act 1983 (MHA), but two recent cases suggest it is even more onerous than was previously thought.

In the first case, because a patient was to be admitted under section 3 of MHA, an AMHP tried to consult his relative, who might have been able to veto detention (MHA 1983, section 11(4)). But then, the AMHP stopped trying, he said because the need for admission was too urgent.

The court found that the AMHP should have done more to contact the relative and, therefore, that the patient's subsequent detention was unlawful (R (GP) v Derby City Council (2012) EWHC 1451 (Admin)).

The AMHP had said that detention was urgent because nursing staff told him the patient needed to be admitted to 'psychiatric intensive care unit'. That didn't happen, however, for at least a further 14 days. Moreover, the judge said it was an "oddity" of the case that the AMHP had not performed an "independent check" of what the nurses said.

The notion that an AMHP might be expected to go behind what he is told, whether by nurses or by doctors, is controversial. It appears, for example, to contradict the MHA code of practice, which says that the job of finding a hospital bed doesn't fall to the AMHP, but to the two doctors who recommend detention. The second case, however, appears to go even further.

The case concerns a man who was detained in hospital, at first under section 2 of MHA, and then under section 3. For a while, the man was nursed away from other patients, in 'seclusion', and he complained that the relevant room was almost bare and continuously lit. He also complained that he could only visit the toilet with permission and had no privacy when doing so; that he was rarely given hot food and had no exercise or fresh air; and that he was not permitted a pen or paper, a TV or a radio.
The man said this breached his rights, not least under articles 3 and 8 of the European Convention on Human Rights.

Crucially, the man said that as well as the NHS trust that ran the hospital, the AMHPs that applied for his detention were responsible for those breaches. At first, he was refused permission to bring proceedings against the relevant local authorities (DD v Durham County Council and Middlesbrough City Council (2012) EWHC 1053 (QB)).

The court said it was "obvious" that neither AMHP had any control over the man once he entered hospital; that their functions did not extend "to choosing an institution in which the person concerned is to be detained, still less to researching the available facilities or carrying out a reconnaissance to assess their quality".

Recently, however, the Court of Appeal has suggested that a different view might be tenable, and the man has been given permission to pursue his case ((2013) EWCA Civ 96).

The court referred to section 13 of MHA, which states that before making an application, an AMHP shall satisfy himself, amongst other things, that detention is, "in all the circumstances of the case, the most appropriate way of providing the care and medical treatment of which the patient stands in need." In an earlier case, the court had said this means that "the social worker must exercise her own independent judgement on the basis of all the available material... and personally make the appropriate decision" (St George's Healthcare NHS Trust v S [1998] 3 All ER 673, per Judge LJ).

Now, the court said it was at least arguable that an AMHP cannot merely rely upon what the doctors tell him, and that he must make "an independent assessment of the suitability of the hospital and the regime of the hospital" (per Moore-Bick LJ).

These two decisions will have come as a surprise. More than 30 years after the current Mental Health Act was introduced, there seems little appetite for the changes they would entail. It is one thing to give a patient his day in court. It would be quite another thing, however, to find that an AMHP, who may be unfamiliar with - and even have no part in the selection of - a hospital, is in some way liable for everything the patient subsequently encounters there.