Deprivation of Liberty Safeguards

The Bournewood case generated legal inconsistencies that notionally have been solved through the Deprivation of Liberty Safeguards (DOLS).

If someone's liberty is "restricted," this can lawfully happen within the Mental Capacity Act 2005 framework, if it's in the person's best interests. An example would be someone saying they wish to leave a care home and return home, but they're guided to have a cup of tea and moments later they're happy and chatting with other residents.

If the resident was hammering at the door, 'phoning for taxis to take them away all the time, sneaking out at every opportunity and adamantly refused to stay, that crosses from "restriction" to "deprivation" of liberty and the DOLS framework kicks in.

Grand. Folks get appropriate care, within a lawful framework.

On to a conversation I overheard this week :

Community mental health nurse (band 7 CPN) : "The patient's settled, the occasional comments she'd rather be at home can be managed as 'restriction' of liberty, not 'deprivation' in the care you've now structured in the detail within your care plans."

Care home manager : "Great, thank you."

CMHN : "If she progresses and makes persistent, active attempts to leave, we'll need to consider DOLS."

Manager : "Oh yes, we use doll therapy all the time to distract them."

Police

Jess raised the point of police accessing private places, to bring people to a place of safety for assessment.

In theory, this is covered under section 135 of the Mental Health Act 1983.

Someone's in a private place, refuses help, seems to need care, generates significant and risky problems (for themselves or others), what's to be done? An Approved Mental Health Professional presents their concerns to a magistrate who can then issue a warrant for police to access the person, eg forcing their way into their home, to then take them to a place of safety.

Unusually, they're then locked up in a place of safety for 72 hours, but I can't discharge them from the section 135. The police or the Approved Mental Health Professional does that.

In practice, it's hardly ever used. I've seen it used once.

If someone's in their own home or garden or other not-public area, invariably a section 2 is considered instead.

Jess is quite correct that this means someone who's presenting with a health problem, and consequent behavioural changes and evidence of ill health being manifest to one and all, then has an ambulance crew arrive who do . . . what? If detained under the MHA 1983 then they can be conveyed to hospital. If they're evidenced to be incapacitated adults (with respect to this decision) then they can be conveyed to hospital (if it's in their best interests) under the MCA 2005. Our ambulance crews need to be given completed locally agreed forms documenting this lack of capacity before they'll convey.

So locally, the use of the MHA 1983 (with sections 2 and 136) and MCA 2005 (sections 4 and 5) sort most out of hours problems where statutory powers need to be used to orchestrate care. Rarely, very rarely, section 135 is considered.

Section 136

I get called to a lot of section 136 assessments, out of hours. In fact, it's pretty much all that out of hours work typically involves. Section 136 of the Mental Health Act 1983 allows a police constable to stop and manage, ". . . a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control . . ." to, ". . . remove that person to a place of safety . . ."

Locally, that's a 136 suite in our hospital.

Police find someone acting "a bit odd" and have a choice. They can arrest them, with all the attendant paper work, take them to the cells, wrangle with the custody sergeant why the person needs locking up, do that paperwork . . . or they can fill out a paragraph on one of our forms and drop them at our doors.

No surprise, use of section 136 is increasing massively in my corner.

In fairness, much of the time the police get it right. It's just that sometimes it's clear that the alcohol and social situtation has generated the volatile presentation, so taking them to my door for a psychiatric assessment isn't going to generate hospital in-patient or acute psychiatric care since we've simply not been asked to (and therefore aren't resourced to) deal with this. If you're drunk and feisty, it's not a psychiatric problem.

I concede that having mental illness at the same time can ramp up risks of problems, but if the presentation at that point in time, in that place, in that situation, is because of getting roaringly drunk, I don't have an instant cure for that.

Section 136 is an interesting section of the MHA 1983. You can be picked up anywhere the public have access to. You are thought to need care. You're picked up by police. You have no choice. You're taken to a place of safety. You have no choice. You're held in this locked environment. You have no choice. You're detained there for assessment for as long as it takes, up to 72 hours (that's right, 3 whole days). You have no choice.

What rights do you have, how do you appeal, who do you appeal to? Can you get a First Tier Tribunal to discharge your section 136? No. You can't appeal. You're there for the duration. You have no choice.

Quite scary, really. Anyone acting "a bit odd" can be locked up for 3 days with no rights of appeal or redress.

In fairness, section 136 assessments usually are undertaken pretty sharpish. I always do them straight away, attending immediately. It only seems fair. I need to do the assessment anyway, so why wait? Also it's just a stress to me, knowing I've work to do but not doing it. So when a section 136 is 'phoned through, I'm skipping off to see the patient as soon as an Approved Mental Health Professional (AMHP) can get there (which in my corner still means a band 7 social worker).

The last assessment was relatively brief. A gentleman was brought, by police, after saying over many hours in a pub that he was feeling suicidal. He wasn't. It took just an hour to go through history, mental state and formulation. Discharge options were then discussed and off he was, on his merry way. He's been seen subsequently when both he and staff felt he was in fine form, consistently cheerful, with no mental illness evident.

Another gentleman. Another assertion of suicidality. Another assessment over the course of an hour, with no evidence of mental health problems (meaning neither psychological problems nor psychiatric illness) but social upsets (rows with two girlfriends, thrown out by one of them, feeling skint yet owed friends cash, hated his poorly paid sporadic monotonous work). He was told the good news by the AMHP that he wasn't that ill, he didn't need hospital in-patient care and was no longer detained. A free man. He became angry, smashing his fists on walls and kicking doors and screaming like a banshee. He wanted to be in hospital, but wanted to be detained, to show his girlfriend what she had done, what she caused. Police don't like patients being angry and violent aronud NHS staff. Thankfully they take it seriously, here. They arrested him and he had a night in the cells.

A recent section 136 assessment was different.

The gentleman was brought in mid week. He had a curious account of overdose and suicidal thoughts and actions which was inconsistent. Police didn't find his presentation was in keeping with having taken the materials he said he'd taken. When he presented it was clear he was pretty well, physically, when if he'd taken all he said he had, he'd be flat. Odd. Assessing lethality of overdose and ongoing suicidality perplexed the AMHP who sought more information. The section 136 continued after we saw him, so more information could be gleaned, to inform the assessment (and need for discharge or detention). Blood tests were undertaken and showed he'd not taken what he'd asserted. The next day the AMHP tracked down the clinical team in another county that had been looking after him, prior to his drive to my corner and subsequent overdose here. They gave details of two other counties he'd had contact in. More information was gleaned from them. It was on day 3 that he was discharged from his section 136. Only then did the AMHP feel she had sufficient information of psychosocial history, support available, past behaviour, risk, how he'd managed problems historically (with what escalated risks and what reduced risks) and what sensible discharge planning could helpfully and realistically effect support and change. Months on, he's back in his own locality but I heard that he's coping well and is much, much improved. The assessment and care planning and initial local support was of merit, did effect change and this has been sustained back in his own corner.

Maybe then sometimes, just sometimes, detaining someone for 3 days is in their best interests after all.

I still favour getting it all done and dusted in an hour, though . . .

Sex

Can people have sex?

Well, yes. Obviously. Or we'd not be here and the world'd be an emptier place. But, if there weren't people then there wouldn't be Pot Noodle, so it wouldn't be all bad.

I chanced upon an article in Slate Magazine today, because I was looking for information on sex. It's with hindsight that it dawned on me that Googling (is that a verb?) for "sex" at work may raise a few eyebrows when the IT server guys see what I came up with. My, human creativity really does know no bounds. I'm so glad I did it all on someone else's computer.

The rationale for finding oh so many sites of oh so many obliging women? Because I don't know enough about sex and older people. Always one to value CPD and a thirst for knowledge and self directed learning, I assiduously studied all I could, online.

Better still, the whole team poured over it all. We didn't learn a lot. I did learn that some of my colleagues know far too much about obscure specialist subjects.

Back to the reason for our diligent search. Sex. Can older people do it?

Really, can they?

No no no, not in a sweaty, physical, swinging from the chandaliers sort of way. In a legal, "Are they allowed to?" sort of way. A tricky matter to disentangle. Googling found far more sites of scantily clad ladies of a certain age than it did of learned legal discourse. There were of course some sites dedicated to lusty, obliging women. And sites dedicated to lawyers. All from the same search. I guess lawyers and prostitutes have more in common than one may first imagine, seeking to use their skills to satisfy their clients for significant amounts of cash.

We've a lady in a care home. She holds hands with a man. They kiss and cuddle. They're both widowed, so single. They're both demented, and are incapacitated adults (within the meaning of the Mental Capacity Act 2005, with respect to the decision of an intimate relationship). They like to sleep together. They've sought to have a sexual relationship together.

It's a bit like this.

MCA 2005 directs what can and can't happen, about a great many things (e.g. marriage) but not specifically about sex. Neither does the European Convention of Human Rights, that we could find. Nor did any guidance we rummaged around, on such sites that weren't gloriously lurid.

So, the question remains unanswered. And care homes in my corner take very different views on it "meddling" as they feel wont to do. A definitive answer 'pon desire is desirable. Do older adults have a right to sex?

Advocacy

I am sure, of course, that all commissioners have ensured that robust, effective advocacy services are in place for next week. Because they have had to do so. They got the cash last November, but it wasn't ring fenced, so I'm a little uneasy about how much has been used to commission front line staff to do this work.

Why does it matter?

Because every patient in my corner detained under section 2, 3, 7, 37, a Supervised Community Treatment order (SCT) or conditionally discharged will, from next week, be a "qualifying patient" and entitled, nay obliged to have offered to them, an Independent Mental Health Advocate (IMHA). Why? The Mental Health Act 1983 was ammended in 2007 and from next week advocacy is a statutory requirement.

Does it matter? Well, quite probably. There are very few patients detained, in my corner. Although I've a typical (according to the Royal College) size of patient population in my patch, who I'm responsible for, my team and I don't use the Mental Health Act 1983 very often, at all. In case my memory failed me, and in the interests of determining how often SCTs may be considered, my Mental Health Act office kindly let me know how often I've had patients under my care detained under section 3. Since 2003, there have been 3 of them. Not many, then. What can I say, I'm blessed to work with exceptional staff. Nationally, it's a different story. The total number of people detained under the Mental Health Act 1983 is about 42000 in a year. That's a lot of pink forms.

Quite how we'll suddenly, from next week, be awash with advocacy services (that are qualified or will have the national level 4 City & Guilds IMHA qualification within a year), to manage the advocacy needs of 42000 people perplexes me. Every detention, every meeting, every Hospital Managers hearing, every Tribunal, an IMHA should be offered.

The IMHAs have powers. They have a right to see the patient in private. They have a right to interview clinical staff (nurses, psychiatrists, whoever). With the patient's consent, or without if they're incapacitated and it's in their best interests, the IMHA has a right to access the patient's medical records. Good luck to them accessing the electronic medical records in my corner. And even more luck in deciphering the meaning of what's documented. Interesting times.

Okay, I've no patients detained under the MHA 1983 and haven't had any for an age. But in forensic and LD corners, I can see April being a very, very busy month . . .

Meddling

When to meddle?

I've a lady who's not coping perfectly well (past diagnoses include panic disorder (moderate), major depressive disorder, emotionally unstable personality disorder (impulsive type), PTSD) but manages. She's been managing for a few years, now. I know this because I've been seeing her at home at frequent intervals over the last couple years. She's making errors (unable to recall recent events accurately, unable to appreciate the value of assetts, unable to understand meaning behind interactions). She has been prompted to do activities of daily living for years, so cues in to meal times, bed time, time to bathe, when to change clothes according to when she's directed to do so. She only takes medication when prompted to do so.

She lives with her husband. He has mild dementia. He has coped with her mental health problems and his role as carer through self medicating with half a bottle of spirits a day, every day, for years. He doesn't act on things adeptly but in fairness this is longstanding and hasn't changed (e.g. every time I go I end up throwing out mouldy rotten food from their fridge). Sometimes he drinks more, gets drunk and falls over. Every couple months an ambulance crew attend.

Social services have offered support which has been accepted then after a short time refused. They don't want folk in their home, meddling.

He prompts her to take medication. He does this suboptimally. She has arthritic pains and dyspepsia. He gives her over the counter medication including paracetamol, ibuprofen and aspirin. The NSAIDs will probably be making her dyspepsia worse but since they're pain killers and she has mediastinal/stomach pains, they use more of them. Ho hum.

It's not a great situation, is it? But, somehow, they've managed for a year or so, limping along together. No serious harm has befallen them. They're living as they wish to, together, in their own home. On deciding future care and where to reside, both are incapacitated adults, within the meaning of the Mental Capacity Act 2005.

They're refusing practical support. There's no medication that can improve their experiences or mitigate risks. The choices are therefore quite stark. Do we leave them to limp along, or are they placed in 24 hour care?

Treatment

There's a presumption that patients have a right to treatment.

There's a duty of care that mental health folk have to patients.

There're laws passed (statutory instruments) that give us the tools to undertake this care.

All well and good, most of the time. But what if it's taken to extremes? Who should be treated, and how much, for how long? At best it's quirky and autocratic care, at it's worst it's paternalistic and tyrannical health care. Gets you thinking, this does, when patients crop up with unmet clinical needs that could be treated.

Let's take a lady and call her Alice. Alice is elderly and depressed. She's often had bouts of depression in the past so has a diagnosis of F33.2 Recurrent depressive disorder, current episode severe, without psychotic symptoms. She was unable to look after herself well, feeling weary and disinterested in "stuff to deal with" to get through a day, wasn't eating anything but gingernut biscuits and wasn't drinking much fluid at all. She smoked over 100 cigarettes in a day (usually it's less than 20) and was too demotivated to go and get more so was withdrawing from nicotine abruptly, too. Life's bleak, she'd rather go to sleep and not wake up. She's no energy, no hope, no joy, no quality sleep, no feeling refreshed, no motivation. She feels utterly worthless and a nuisance to everyone.

2 months ago she was right as rain.

In the past when this has happened she's had ECT, been cured, gone home and stayed well for between 10 to 22 months before another depressive episode occurs.

She refuses people coming in to her home to help. It's started anyway, but she doesn't let them in. She refuses hospital admission and is fading away fast. She's admitted under section 3 of the Mental Health Act 1983 for treatment of her underlying mental disorder, depression.

She refuses medication and historically has poor concordance with prescribed medication on discharge, with the only antidepressants in her flat on this occasion being 4 months out of date and untouched.

She's said in the past that she doesn't want ECT again.

Through her depression she's got marked bradyphrenia, depressive cognitions, cognitive distortions and abberant ideation. She's not frankly psychotic, but her thought process are disturbed through her depression so, within the meaning of the Mental Capacity Act 2005, she has imparied function of her mind and is an incapacitated adult (with respect to the decision to determine current treatment such as ECT).

This time, what should happen?

It's not even up for discussion as the law stands; she should have ECT :
- she has a mental disorder
- we have a duty of care
- she has been detained under the Mental Health Act 1983 for the treatment of this mental disorder
- statistically we know ECT is the treatment of choice (better outcomes than tablets, swifter resolution of symptoms, safer with half the mortality of antidepressants) and specifically we know it works very well for her, very quickly, such that's she's well and functioning independently for a year or two even off all medication. So the clinical intervention of choice, for her, at this stage, is ECT
- she refuses ECT and has, in writing, an Advance Decision refusing ECT treatment. But ECT can be given under Part IV of the Mental Health Act 1983 under section 62 then with a Second Opinion doctor agreeing under section 58, so we've a statutory instrument allowing us to deliver the care she needs.
- ECT is given, she gets better after 4 sessions (two weeks) but has 2 more sessions to consolidate the treatment course, she's regraded and discharged and is well

Outcome : a lady got the care she needed when she was unwell and vulnerable and was cured, for a while at least.

As an aside, having taken advice on this, if her Consultant Psychiatrist didn't give her ECT he'd be open to claims of medical negligence (having a duty of care, admitting her for treatment, having a statutory instrument to use to deliver the treatment but then electing not to do this and thus not providing her with the care she needs and deserves). Like it or not, that's the law as it stands today in England.

I'm totally for people with insight making rational decisions about their current and future care. Some people can very sensibly and very thoughtfully describe why they will or won't buy in to treatments offered to them and make a choice on this. Whether I agree or disagree with that choice then, generally, is irrelevant . . . I'm bound to accept their wishes.

The revisions to the Mental Health Act 1983 are making things slightly different. In the future, if you've an Advance Decision to refuse treatment (including ECT treatment) andf that Advance Decision is undertaken in accordance with the Mental Capacity Act 2005, it'll be legally binding. The Mental Health Act 1983 can't then be used to deliver ECT even if the person's incapacitated with regards to this decision.

I wonder what this will mean for Alice.

Criminal Conduct

I've spent the last few months working with criminals.

No, not the patients. Us, the staff. My colleagues, and me.

We receive referrals from our neighbouring acute hospital Trust. They've an endless stream of delirium, dementia, depression (and placement issues and capacity assessments) to sort out, frequently with disturbed patients battering their staff. We accept the appropriate referrals, we go to their hospital, we can't park, we return home. But sometimes, just sometimes, we get to see their patients. We speak with the ward staff, read the notes, meet the patient then document our contact contemporaneously in their medical records in keeping with the GMC's direction, "Good Medical Practice" document, Good Clinical Care, "In providing care you must . . . make records at the same time as the events you are recording or as soon as possible afterwards."

I heard today from a Caldicott Guardian (the chap responsible for protecting patient information) from another Trust that the Data Protection Act makes this unlawful. We can't read or see or use their notes at all. Clinical details of their Trust's patients (including referral details) are protected by the Data Protection Act. It's unlawful to rummage around in them.

Whoops.

Free Care

The NHS, notionally, is free at the point of contact.

Okay, we pay for prescriptions and eye tests and dental work but, for the most part, it's true that most of the NHS is free at the point of delivery.

Excellent.

Health care is delivered without charge.

But, the huge grey cloud dominating the faint silver lining is that social care is not free. We pay a lot in to social care as taxpayers (over twice what we pay in to health) and then the recipients of social care (when patients) invariably pay for it, too.

If I've a patient who's not coping awfully well at home but can manage with support, they're helped and usually manage in their own home for a goodly length of time, sometimes indefinately. Get a cleaner to do the housework, Social Services to arrange 4 social care visits a day to help with personal care, prompting with medication, checking they're alright (although officially that can't be the reason for their visit), helping heat up a meal for them and acting a resource to sort out problems (letters they don't understand, or whatever). Their loneliness and weary days can be addressed in part through social day care where they've more vibrant company with local folk and ongoing support.

But none of this is NHS work, none of it is free. They pay for their cleaner, they pay for each home care visit, they pay for their meals delivering, they pay for their day care.

The exception . . . if you're detained under section 3 of the Mental Health Act 1983 then you're entitled to section 117 aftercare. The Code of Practice states that this, ". . . require health and local authorities . . . to provide after-care for patients who have been detained under the longer-term provisions of the Act . . . until they are satisfied that is is no longer necessary . . . section 117 obligations have statutory force."
This means if I'm involved in a detained patient's care and consider a care package such as social care visits would be useful, we can't force the patient to spend their money on this (but they have no choice but to be in hospital and have treatment) so any social care is paid for by the local authority (i.e. Social Services). On leaving hospital, both health care and social care is free.

Bit of a puzzle, this. If we manage folk as we do, keeping them in their own homes where they wish to be for as long as possible then their family and they choose a 24 hour care home if things progress and it's necessary, they're enjoying time in their own home (i.e. in the least restrictive setting) and all is well. If we drag them kicking and screaming in to hospital under section 3, when they leave hospital everything's free.

The General Medical Council document from 2006, "Good Medical Practice", states the duties of a doctor registered with the GMC with the first and foremost requirement being, "Make the care of your patient your first concern."
Care, not health. Hmmm. Should we be detaining everyone, so their social care is free?

Sections

The Mental Health Act 1983 is, obviously, the law. It's a "statutory instrument" that contains provision to detain people with mental health problems and unmet needs in hospital (even though they don't wish to be there). There's a Code of Practice that tells us how we're to use the MHA 1983.

A couple points are worthy of mention.


"Sectioning"

When I was a trainee doctor, we'd get shredded for talking of "sectioning" someone. We were instead to speak of "detaining someone under section blah" which at the time seemed pedantic thought control. One Royal College examiner said he'd failed a candidate for such talk. With hindsight it's sitting increasingly well with me, but p'raps I'm simply becoming more pedantic as time marches on. Being less glib and more professional is important, though.


Being detained

I've never detained anyone. Well, technically not. I've made medical recommendations. Approved Social Workers have made applications to hospital managers for a patient to be detained. Hospital Managers have agreed to detain the patient in their hospital.

Sophistry?

It shouldn't be.

Nurses have to be the patient's advocate, the NMC says so. Curiously, the GMC doesn't have anything like that directing doctors but most of us do feel we have such a role. As such, when we're advocating that a patient has a right to get the help they need and deserve it's useful to be part of the decision making process rather than be painted wholly as the prison warden. We don't detain people, we make recommendations for their care then social workers and hospital managers detain them if that's necessary. As such we can continue to focus on their care. A seemingly tiny point, but such things shift the culture and philosophy of mental health units from paternalistic/abusive to collaborative/clinically driven.

Anyway, I'm a civilian. Should I be locking people up?


Least restrictive setting

We've got to manage patients in the least restrictive setting. Hospital in-patient care should be for folk who have needs that can only be addressed through hospital care and increasingly these are far and few between . . . what can be done in a hospital that teams can't do in the community? There are assessments and interventions, of course. But typically it's rare that there's specific work that a hospital admission does that couldn't be done in the community (which is self evident, given that 1/4 of the population will at some point in their lives experience mental illness, but so few reach Secondary Care services let alone in-patient admission).

Hands up who thinks detaining people is just about hospitals? A not uncommon scenario for me is of someone with dementia who's been diagnosed and treatment's been optomised but they can't manage in the community despite having lots of support. One elderly lady this Summer became more confused at night, thinking since it was light that 9.00pm was 9.00am. She was helped to bed at 8.00pm by home care and would then rise to wander around the street through the night - living on a busy main road made this particularly unsafe. She'd been active at night for many months, it got worse, what were we to do? She was adamant that she wanted to stay at home.

Section 7 of the MHA 1983 lets the local Social Services authority force someone to reside at a specific address (e.g. you now live at Care Home X). As this is then the law, if they leave police are obliged to return them to this property. They're also compelled to attend out-patient clinics, any medical reviews and even non-medical meetings such as job centre attendance, going to a specific place of work, or having to attend specific evening classes as well as having no choice where they live.

All this seems pretty heavy, doesn't it? What I find more perturbing is that the protection patients have within the MHA 1983 are pretty good. The Mental Capacity Act 2005 is far more widely reaching (e.g. allowing community treatment orders against the patient's wishes) but has none of the scrutiny, no need for 2 doctors/doctors with specialist training and experience, no rights of appeal to hospital managers and a Mental Health Review Tribunal and no review dates. Scary.

Sex

Psychiatrists talk about sex a lot, apprently, so it's about time it was blogged.

The Mental Capacity Act 2005 has had explanation on it's implementation through the Code of Practice which presents helpful guidance.

I have a lady who has dementia. She enjoyed frequent intimate relations with a longstanding friend who has had a turn for the worse and been admitted to hospital. When his name is mentioned her face lights up.

Since he was admitted months ago, another man has started seeing my patient who is an affable old dear and opens her door to anyone. He has started having intimate relations with her. She has repeatedly told nursing staff she doesn't like him but then on other occasions is confused and is more ambivalent. When his name is mentioned she recoils. Her daughter is mortified the man who her mum hardly knows has no relationship with mum except for sex and wants the man to go away and never see mum again.

Within the meaning of the Mental Capacity Act 2005 she is an incapacitated adult. She can not consent to sex. The Code of Practice says in 1.10 that there are ". . . specific decisions which can never be made . . . by family members, carers, professionals, attorneys or the Court of Protection." The subsequent list includes, "consenting to have sexual relations."

She can not consent to having sexual relations and the Mental Capacity Act 2005 makes it clear that nobody can consent on her behalf.

Is it that incapacitated adults can't have sex? Can the issue be ignored? Is it that a man, having sex with a woman without consent, should be charged as a sex offender?

Ethics

In my neck of the woods, people who developed dementia used to readily get help. Crucially, the patients with Alzheimer's Disease also got medication. All of them could.

The National Institute for Health and Clinical Excellence (NICE) has determined that antidementia medication is now just for those with moderate dementia only.

This puts me in a peculiar position.

I see a patient and diagnose Alzheimer's Disease causing their dementia. This will progress, robbing them of their memory, thoughts and function, then kill them. This is not nice. In many ways, it's a worse diagnosis than cancer. But there's a silver lining . . . we have medication which can help, which doesn't change the underlying course but can delay symptoms for an average of a couple years. And it works. Numerous trials confirm this. NICE say the evidence is that it works in Mild dementia. But the benefit is pretty modest, so it should only be prescribed when dementia is of Moderate severity, not Mild.

Can we tell patients to go away and come back when they've deteriorated so much that we can then start treatment to maintain them at that lower level of function?

I can't. My colleagues can't. Our local GPs don't want us to. Our patient's don't want us to. Their families don't want us to. Our PCT is surprisingly supporting of my practice and is ambivalent about this NICE guidance.

So what do we do?

Everyone who could profit from the medication is given a trial of the medication and reviewed. If they have been assessed as having Mild dementia and the odd person queries prescribing, well, let's say they've got Moderate dementia then. Just that they're in the fortuitous position of faring rather well in a few domains to bump up their score. Hurrah.

It's grim that medics are bending the truth, but if it's necessary for our patients to get the care they deserve, is this the right thing to do?

Containment

I'm a doctor. The professionals I work with with most are nurses. We're part of the local health community, improving health through helping patients and supporting GP colleagues.

We try to help patients a lot, seeing every new referral within days, sorting out usually at least half a dozen (and up to 15, recently) helpful interventions to improve things with them. We invariably work with them rather than passively doing things to them. Last year I had a ward for several months with no inpatients at all . . . if we can help folk cope in the community (even with significant risk present) then we do.

Last year I managed 11 months without any use of the Mental Health Act at all, but in December had to recommend admission under a section of the Mental Health Act 1983 (MHA 1983) for one individual.

Overall we admit seldom and compulsory admission is pretty rare. Patients trust us, and rightly so.

Zarathustra has provoked discussion about assessment for treatment. Rather than derailing his thread with rambling comments I wanted really to take it away from the discussion on legislation and Code of Practice and towards implications arising from a shift in culture.

At the moment patients who have mental health problems and present criminal risk (of harming others) have their health needs treated. This is done mostly in psychiatric hospitals (and sometimes in the community) and what can't be treated isn't treated. Obviously. Because it can't be treated. When such an individual then makes threats to harm others they're then managed through the Criminal Justice route, being locked up in prison if necessary.

This makes sense to me.

If you're being bad 'cause you're ill, society believes we should treat the illness, get the person well and all is good.

If you're being bad 'cause you're choosing to be bad (and you're not ill), you go to the courts.

If you're being bad and it's all a bit of as muddle then section 35 of the MHA 1983 means that instead of remanding the person in prison they're admitted to a psychiatric hospital for preparation of reports for the court (initially for 28 days then renewed by the court for up to 12 weeks).

Courts can then make sensible decisions as to how much a person's actions are their own elective choices and how much arises through mental illness.

At present, even with mental illness being present, most folk go to prison not hospital. If you've a violently explosive personality and hit people a lot, you've tried to "get help" but that's just how you are, what can a hospital do for you? It can contain you. Keep you locked up so you don't hit people. It's not improving you, it's not helping you in any meaningful way, it's simply reducing risk to people at large through containing you. Since this role is served better by prisons, unsurprisingly most violent individuals with F60.2 Dissocial Personality Disorder (also called psychopathic) who can't be improved/cured are in prison. They're contained.

There's a fashionable idea in the corridors of power that these folk should be in hospitals. In fact, anyone who's a risk to the public and is mentally ill should be locked up in psychiatric hospitals. Given we can't cure these people and we've no way of evidencing a reduction in risk at some point in the future, they've no easy way of getting out. Ever.

Do we want psychiatric units which currently serve vulnerable, distressed individuals who are unwell to be awash with folk who are violent and essentially untreatable? If patients see mental health work not as collaborative partnership but as a scary unsafe world with folk locking people away for ever "just in case" I'd see the essence of care being thoroughly undermined and the positive culture (that we're finally coming to experience) will be lost.

Health care should do the caring for the peoples' health. Prisons and specialist forensic units should do containment. I can't see how else folk with mental health problems would ever be tempted to enthusiastically seek out and engage with mental health services.

Mental Capacity Act 2005

There's been a bit of sneaky legislation.

The Mental Capacity Act 2005

Have you had a rummage around through The Mental Capacity Act 2005 (MCA 2005) yet?

I've read it from cover to cover a couple times now, since it's highly relevant to my work, but even so it was only when a number of lawyers have explained some of it to me that the implications are becoming clear. And scary.

The legislation is broad. It doesn't apply just to mental health, or just to health in fact.

Question : When a social worker determines if a person can make decisions about going in to care, solicitor determines if I have capacity to instruct them on the conveyancing to buy a new house, when a bank clerk determines if someone's capable of managing their finances, whether a frail old lady in a care home can refuse a bath, what test is used in any and all circumstances to decide if I, or whoever, does have capacity to do these things?

Answer : The Mental Capacity Act 2005. It has within it the test that is used to assess capacity. Any capacity. In any situation. For anything. By anyone. So, a pretty big bit of legislation, then.


Good bits

No longer will social workers routinely be able to ask me if a patient on a medical or surgical ward, or in their own home, has capacity to make choices about going in to a care home. The social worker will have to determine that for themselves. It is not a delegable duty. Professionals taking responsiblity for their professional decisions, this is a good thing. Specialists still can give a view in complex cases but that doesn't over ride the decision any other individual makes on their own assessment of capacity.


Worrying bits

Let's assume that I've a patient who lacks capacity to make decisions about their future treatment. Maybe they're too depressed and thought disordered to weigh up choices, benefits, risks, consequences and outcomes of various alternatives. Maybe they're dementing through Alzheimer's disease. Within the meaning of the MCA 2005 this makes them an "incapacitated adult" with respect to this decision on treatment.

Section 5 lets us treat an incapacitated adult.

Positively, it means nurses and carers can deliver care lawfully. The patient needs dressing in a morning, may need help bathing, may need help dressing in nightwear on an evening. Section 5 lets them deliver this hands on care without this undressing of a patient without their consent constituting trespass against the person and criminal assault. Which is a good thing, carers are empowered to deliver care.

Worryingly, it means I can give any care on the understanding, ". . . that it will be in [the patient's] best interests for the act to be done."

The MCA 2005 covers personal welfare (health and social welfare) decisions.

If a muddled patient needs care (medical, nursing or social) such as, say, an injection, it could be given to the adult under the MCA 2005. In fact, ECT or any other treatment can be. Antibiotics, amputation, arthoplasty, whatever is needed and the patient's doesn't have capacity to consent to (but otherwise could consent to).

This effectively obliges us to use community treatment orders. When the MCA 2005 comes fully in to force this Autumn a psychotic patient who doesn't appreciate the role of medication can then have depot antipsychotic medication injected in to them in their own home without their consent.


The safeguards

They're not detained under the Mental Health Act 1983 (MHA 1983), they have none of the protections of the MHA 1983 and no scrutiny or review that the MHA 1983 requires.

An independent MCA advocate (IMCA) can give an opinion and a court appointed deputy can give a direction. If you've made a Lasting Power of Attorney (LPA) then your Donee can give or refuse consent for health and social welfare decisions, if you have empowered them to do so in the LPA. Nobody else can. In all other circumstances then other folks views are taken in to account but the only ones truly empowered and determining what is is the patient's best interests is the multi-disciplinary team.

So if I'm knocking on someone's door with a nurse to inject them in their own home, how can they appeal against this decision? No Mental Health Act Commission review. No second doctor needing another medical recommendation. No Second Opinion Act Doctor (SOAD) approving medication, ECT and so on. No right to appeal (to managers or to a Mental Health Act Commission tribunal). No right of relatives to discharge.

Hmmm, not many safeguards or rights at all, in fact . . .


A thought

1 in 4 of us will experience mental illness at some point in our lives.

Lest, in a moment of lost capacity, malign or unwanted care is benevolently foisted 'pon us, I reckon it's time for us to see our solicitors and sort out Advance Decisions and two Lasting Power of Attorneys (one for Personal Welfare and one for Property and Affairs).

Who's going to win here, then?

Solicitors must be ecstatic with glee.