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In this chapter we will explore the occasions where AMHPs engage community provisions, under the MHA, other than through MHA assessments, and under other legislation. Inpatient treatment, care and support will, for the vast majority of people, only be a temporary phase in their life. Notwithstanding that, for some, detention under the MHA may recur again in their lives. To this end, some people need a legal framework around them to enable them to remain in the community. To this end, the MHA permits a person’s freedom to be restricted to enable community living, but these restrictions must fall short of depriving that person of their liberty. This position has been crystallised by two important cases, MM v Secretary of State for Justice [2018] UKSC 60 and Welsh Ministers v PJ [2018] UKSC 66, which will be discussed later.
The Guiding Principles of the MHA express that ‘where it is possible to treat a patient safely and lawfully without detaining them under the [MHA], the patient should not be detained’, and that the person’s reasonably ascertainable past and present views, wishes and feelings should be considered (DH, 2015a, paras 1.2 and 1.8). To this end, enabling people to successfully reintegrate and live, or remain, in the community is the ambition, so as to promote recovery and uphold people’s rights. Indeed, section 13(2) of the MHA requires that AMHPs, before they make an application, must be satisfied that detention in hospital is in all the circumstances of the case the most appropriate way of providing the care and treatment that the person needs.
In this chapter we will consider the nature of the AMHP role in terms of its unique features and key responsibilities in relation to reaching a decision. AMHPs have to make significant decisions as part of their role, most obviously whether they apply for a person to be compulsorily admitted to hospital or not. However, AMHPs have to make a host of other practice decisions before and after the decision whether to detain under the MHA, including involvement of the Nearest Relative and family, the correct form of transport, whether to use 14 days to decide to detain or not, protection of property, and caring responsibilities, including pets, and these are discussed in Chapters 6 and 7. This chapter will support AMHPs to reflect on the factors that impact on their decision-making, introduce frameworks to support ethical decision-making and consider interprofessional working in the AMHP context. This chapter will also link to the discussions on risk and AMHPs’ understanding their own risk thresholds, and the implications of this for practice.
In AMHP practice you may find that some aspects of decision-making are more straightforward than others. Social care and health professionals make countless decisions in the work they undertake with people, their families and the support systems they engage with. Decision-making often appears fast and intuitive, powered by the professional’s accumulated knowledge and practice experience. Decision-making in AMHP practice warrants specific consideration because the principal decision – whether to make a formal application for detention, and in doing so temporarily deprive a person of their liberty – is so serious.
AMHPs are employed in varied employment contexts throughout England and Wales: working within dedicated AMHP teams in local authorities (LAs); embedded in National Health Service (NHS) trusts, including mental health community teams; or working sessionally on a rota. Such diversity means that service delivery can be different from area to area and these differences may be reflected in practice. Alongside this, AMHPs are working within a legislative and policy context which can be interpreted differently across geographical regions. Therefore, it is necessary for the AMHP to understand their working context, to recognise these differences and to reflect on how this impacts on their work. This chapter aims to consider the AMHP in context, and explores the issues and themes that arise.
The AMHP role is probably one of the most powerful within England and Wales, and therefore for good reason is independent and autonomous. On the one hand an AMHP can be directed to consider a referral for an MHA assessment, yet on the other hand an AMHP makes decisions independently and cannot be directed to use their powers. The AMHP is central to coordinating professionals and resources for the purpose of assessing need and risk, and deciding if it is proportionate for a person to lose their liberty, even temporarily. We return to the issues of independence and proportionality in Chapter 3.
Through the making of an application for detention founded on medical recommendation(s), an AMHP can remove a person’s liberty: for up to 28 days (under MHA, s 2) or for up to six months, initially (under MHA, s 3).
As an AMHP engaging in mental health work with young people and adults, you will be using and interpreting the legislation contained within the MHA and the Mental Capacity Act (MCA) 2005, as well as the accompanying case law. When accepting a referral for an MHA assessment, the person being referred for assessment may be considered to lack capacity to make decisions regarding their care and treatment. In such cases, you will need to navigate the sometimes complex relationship between the two legal frameworks.
In England and Wales, the non-consensual care and treatment of people with mental health problems is governed largely by two parallel legal schemes: the MHA and the MCA 2005. In very broad terms, the MHA provides mainly for the detention and treatment of people in hospital for mental disorder on the basis of protection of the person and the public, and irrespective of mental capacity. The MCA 2005 applies only to those who lack the relevant decision-making capacity, covers (nearly) all decisions, and provides for deprivation of liberty based on the person’s best interests. There is considerable overlap between the two regimes, and the relationship can be extremely complex. This chapter briefly sets out how the MCA 2005 enables care and treatment to be delivered. It then explores the three primary interfaces between the two Acts: inpatient care and treatment, deprivation of liberty in hospital, and community MHA powers.
Whereas the MHA has no age limit, the MCA 2005 applies to those aged 16 and over. The interface therefore only arises in relation to people aged 16 and over; consequently this chapter does not address the position of children aged below 16.
Approved Mental Health Professionals are specialist professionals authorised to make ethically complex and difficult decisions on the behalf of people with severe mental health difficulties. In this complex and challenging role, AMHPs must possess and deploy a range of skills, knowledge and values. This invaluable handbook considers these challenges and provides in-depth guidance on all key aspects of the role, including:
• working with mental health law;
• risks and challenges in a Mental Health Act assessment;
• staying safe as an AMHP;
• resilience as a trainee and practitioner.
Packed with helpful features such as illustrations, chapter summaries, discussion questions and further reading lists, this clear and concise book will be invaluable to students on AMHP and Best Interests Assessor programmes, as well as for professionals in the field.
In this chapter we will consider the stages that are involved in progressing an MHA assessment from initial referral through to the differing outcomes that arise. These stages include an exploration of the information that an AMHP will need to seek, collect, analyse and weigh up before an MHA assessment is progressed, as well as establishing what risks are being communicated to the AMHP, and considering what outcomes others are seeking, to ensure that advancing an MHA referral is justifiable.
This chapter needs to be read alongside the MHA, the relevant case law, the MHA Codes of Practice and the Reference Guide, as it is not attempting primarily to be a ‘law chapter’ (although it does consider key legal provisions). Instead, this chapter seeks to map the process that an AMHP is likely to face and advise how to approach it, using practice wisdom gathered from wide sources.
Links will be made to Chapter 7 when considering the risks and challenges in MHA assessments.
This chapter includes:
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taking the MHA assessment referral;
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the MHA assessment;
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resourcing the MHA assessment;
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the MHA assessment interview;
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the decision and outcome of the MHA assessment; and
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the post-assessment requirements.
The reason we have divided the chapter into these subsections is to reflect the differing, but interrelated moments of AMHP work. In a qualitative study exploring the work of the AMHP’s predecessors, Approved Social Workers (ASWs), Quirk describes these subsections as: the build-up to the assessment, the assessment and the aftermath (Quirk, 2008). Each requires different skills and knowledge, but all are interlinked if robust practice is to be adhered to.
This chapter will include exploration of ethical issues for AMHP practice including:
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proportionality;
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types of ethics;
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the ethical nature of the existence of mental health legislation and how this is reflected in reviews of it;
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vicarious liability;
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Guiding Principles; and
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the concepts of good faith and reasonable care, including the Bolam test.
Robert Johns’ opening chapter in his book exploring ethics and law for social workers (Johns, 2016) is titled ‘But I want to be a social worker, not a philosopher!’ This exclamation captures the ultimate challenge faced by all social workers, which is perhaps brought into sharp relief for AMHPs, who must practise within a legal and ethical context, especially when dealing with the accompanying dilemmas that can arise. Ethics, a subdivision of philosophy, is concerned with moral issues, including the concepts of right and wrong. AMHPs make decisions, taking into consideration all the circumstances of the situation, which means that they must know how to weigh up ethical dilemmas proportionally when applying the law while also ensuring that they can account for their decisions. In doing so, AMHPs must follow their relevant professional codes of conduct or standards. These include:
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the Health and Care Professions Council’s Standards of Conduct, Performance and Ethics (HCPC, 2016), which apply to registered social workers, occupational therapists and psychologists;
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the Nursing and Midwifery Council’s The Code (NMC, 2018);
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the Mental Health Act 1983: Code of Practice for Wales (Welsh Assembly Government, 2016), which applies to social workers in Wales;
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the College of Occupational Therapists’ (2015) Codes of Ethics and Professional Conduct;
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the British Association of Social Workers’ Code of Ethics for Social Work (BASW, 2018); and
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the British Psychological Society’s (2018) Codes of Ethics and Conduct.
