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: richard.jones2@morgan-cole.com

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Community Treatment Orders Supervised discharge provisions repealed and replaced by supervised community treatment Transitional regulations have been made SCT will only apply to those who would be a risk to their own health or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 DE case.

CTO Applications (2) The four specific categories of mental disorder have been replaced by a single definition – “any disorder of disability of the mind” The “treatability” test has been replaced by an appropriate treatment test The RC applicant must obtain the written agreement of an AMHP that criteria met and CTO appropriate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) Mandatory: p make himself available for examination for renewal and for Part 4A certificates. Mandatory. P available for examination for renewals and Part 4A certificates Mandatory – p available for examinations for renewals and Pert 4A certificates (failure - RECALL). Discretionary – ensure p receives medical t., prevent risk of harm to p., protecting other persons (CONSIDER RECALL).

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 Mandatory: p make himself available for examination for renewal and for Part 4A certificates. Mandatory. P available for examination for renewals and Part 4A certificates Mandatory – p available for examinations for renewals and Pert 4A certificates (failure - RECALL). Discretionary – ensure p receives medical t., prevent risk of harm to p., protecting other persons (CONSIDER RECALL).

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 Recalled patient can be treated under either Part 4 or 4A

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) No right to challenge conditions at MHRT

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