Civil Admissions under the Mental Health Act 1983 - Procedure
| Author | Michael Butler |
| Pages | 41-55 |
Chapter 5
Civil Admissions under the Mental Health Act 1983 – Procedure
5.1 INTRODUCTION
Whatever the circumstances behind it, any decision to admit a person to hospital under the MHA 1983 requires a formal assessment involving three key sets of participants: an AMHP, a nearest relative and (usually) two RMPs. The AMHP’s role is to organise the assessment of the patient, to make the decision whether to apply for admission to hospital and, where appropriate, to make the application itself. The nearest relative’s role is to be informed of the application in cases under section 2, or to be consulted in cases under section 3. The role of the RMP is to conduct the medical examination and to recommend to the AMHP whether or not the person meets the criteria for admission. This chapter considers each role in turn.
5.2 ROLE OF THE APPROVED MENTAL HEALTH PROFESSIONAL
5.2.1 Who is the approved mental health professional?
There is little in the way of any statutory duty to assess an individual who may be in need of admission to hospital in respect of a mental disorder. What little duty there is, however, falls on the local social services authority (LSSA) (see para 5.2.2), which will, generally, delegate its responsibility in this regard to an AMHP.
The AMHP is the mental health professional approved to act as such by the LSSA under section 114 of the MHA 1983. The AMHP must have ‘appropriate competence’ in dealing with persons with mental disorder, which requires, inter alia, completion of an approved course. The AMHP must also fulfil the
42 A Practitioner’s Guide to Mental Health Law
‘professional requirement’, which means being a first level nurse practising in mental health or learning disabilities nursing, an occupational therapist, a social worker or a chartered psychologist (regulation 3 of the Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008 (SI 2008/1206)). Invariably, the AMHP will, in fact, be a social worker.
5.2.2 Arrangements to assess the patient
Section 13(1) of the MHA 1983 requires an LSSA to make arrangements for an AMHP to consider a patient’s case where there is ‘reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area’. More specifically, section 13(4) places a duty on the LSSA, ‘if so required by the nearest relative of a patient residing in their area, to make arrangements ... for an approved mental health professional to consider the patient’s case with a view to making an application for his admission to hospital’. Whether or not prompted by the nearest relative, therefore, the duty is no more than to ‘consider’ the patient’s case.
5.2.3 Duty to interview the patient
If an application for detention under the MHA 1983 is to be made, however, the AMHP must have interviewed the patient concerned.
Section 13(2) of the MHA 1983 requires the AMHP to ‘interview the patient in a suitable manner and satisfy himself that detention in a hospital 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’.
An AMHP cannot insist that a patient responds to any questions put, but he must ensure that an interview has taken place. The interview need not, however, be a particularly long one, and, in Re GM: Patient Consultation [2000] 1 MHLR 41, Burton J noted that there might be circumstances in which ‘the approved social worker can arrive at a sufficient conclusion for the purposes of the relevant interview under section 13(2) within seconds if, for example, extreme violence is used’.
While the patient should normally be given the opportunity to speak to the AMHP alone during any assessment, the AMHP should insist that another professional is present if he is concerned for his safety (1983 Code, para 4.53). If the AMHP is unable to access premises in order to conduct an interview, he should consider applying for a warrant under section 135(1) of the MHA 1983 (see para 6.2.3). The 1983 Code provides (para 4.52) that the patient is entitled
to have someone present for moral support during the course of an assessment, if that is possible to arrange.
5.2.4 Duty to inform/consult the nearest relative
There is a duty on the AMHP to make contact with the nearest relative during the assessment process, although the nature of the duty varies according to whether an application under section 2 or section 3 of the MHA 1983 is being contemplated. In the former case, the AMHP need only inform the nearest relative of the application; in the latter, he must consult, and may not proceed if the nearest relative objects (see paras 5.3.3 and 5.3.4).
In either case, however, the AMHP is required to identify the nearest relative, and, where it appears that the patient has no nearest relative, the AMHP should advise the patient of his right to apply to the county court to have someone appointed as such.
The nearest relative should also be advised of his rights and duties. Section 11(3) of the MHA 1983 requires the AMHP when informing the nearest relative of a proposed section 2 application to inform him of his power to discharge the patient. There is no such duty on the AMHP in cases under section 3 (presumably because the AMHP may not proceed if the nearest relative objects), but the 1983 Code confirms (para 4.64) that when consulting the nearest relative, the AMHP should ‘inform the nearest relative of their role and rights under the Act’.
The duty to inform under section 2 or to consult under section 3 of the MHA 1983 is subject to the patient’s right under Article 8 of the ECHR to privacy, and an AMHP is entitled to conclude that he need not contact the nearest relative if that would contravene the wishes of the patient (see R (on the application of E) v Bristol City Council [2005] EWHC 74 (Admin)). The role of the nearest relative is, however, a significant safeguard for the patient and, in the words of Bennett J, ‘should not lightly be removed’.
5.2.5 Arranging the medical recommendation
No application for admission may be made unless it is founded on the appropriate medical recommendations. A person may not be admitted unless he meets the criteria in section 2 or section 3 of the MHA 1983, and confirmation that he does must come from two RMPs. It is for the AMHP to arrange medical assessments by the RMPs, ‘unless different arrangements have been agreed locally between the relevant authorities’ (1983 Code, para 4.40).
44 A Practitioner’s Guide to Mental Health Law
The RMPs and the AMHP must reach decisions on the need for detention independently of each other, but a patient should be seen jointly by the AMHP and at least one of the RMPs (1983 Code, para 4.44).
5.2.6 Deciding on admission
Having interviewed the patient, informed or consulted the nearest relative and obtained the recommendations from the RMPs, the AMHP must then decide whether an application is called for. Responsibility for making the decision is his alone. Section 13(1A) of the MHA 1983...
To continue reading
Request your trial