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Our legal right to make decisions on behalf of others requires us to follow ‘procedures prescribed by law’. But where do we find these? In addition to the legislation, the MHA, the MCA and Deprivation of Liberty Safeguards all have their own statutory Codes. The purpose of this article is to remind decision makers just how important they are.

I was recently asked by a client ‘What is the Code of Practice?’ This person was detained under Section 3 MHA in hospital and it was in response to me advising in relation to Hospital Managers discharge powers (Chapter 38).

At Peter Edwards Law as we are based close to the Welsh border we have two Mental Health Act ‘Codes’ to work with, the English and the Welsh.

The Secretary of State has a statutory duty under s.118 MHA 1983 to publish a Code of Practice from time to time.

The English Code of Practice is said to ‘provide stronger protection for patients and clarify roles, rights and responsibilities – including:-

Involving the patient and, where appropriate, their families and carers in discussions about the patient’s care at every stage
Providing personalised care
Minimising the use of inappropriate blanket restrictions, restrictive interventions and the use of police cells as places of safety

At page 9 it states

This Code of Practice provides statutory guidance to registered medical practitioners, approved clinicians, managers and staff of providers, and approved mental health professionals on how they should carry out functions under the Mental Health Act in practice. It is statutory guidance for registered medical practitioners and other professionals in relation to the medical treatment of patients suffering from mental disorder’.

It also states:

‘The guidance given in the Code to local authorities and their staff is statutory guidance given under section 7 of the Local Authority Social Services Act 1970 (duty to exercise social services functions under guidance of Secretary of State).

The Welsh Code of Practice states.

’The Code is designed to support and promote good practice amongst all those who are providing mental health services under the Act’.

The power of the Code is underlined by the statement (English page 12 para V):

The people…. to whom the Code is addressed must have regard to the Code. It is important that these persons have training on the Code and ensure that they are familiar with its requirements. As departures from the Code could give rise to legal challenge, reasons for any departure should be recorded clearly. Courts will scrutinise such reasons to ensure that there is sufficiently convincing justification in the circumstances.’

The case of R (Munjaz) v Ashworth Hospital Authority [2005] UKHL 58 made it clear that the Code is statutory guidance rather than instruction, however it should not be departed from in the absence of cogent reasons and a record being made of those reasons.

Both English and Welsh Codes list ‘guiding principles’ under Chapter 1 unlike the Mental Capacity Act which lists the MCA principles as part of the legislation. In fact you can hardly miss it as you find them at section 1. Sadly the MHA in effect downgrades the principles by placing them in the Code.

Here I will explain the principles of the Mental Health Act in an effort to allow everybody to appreciate and understand how important they are. I say this in the context that in our experience at Peter Edwards Law, we see little or no evidence that the principles are used when decisions are made about patients. The weight to be attached to them is graphically set out at the beginning of Chapter 1.

‘1.1 It is essential that all those undertaking functions under the Act understand the five sets of overarching principles which should always be considered when making decisions in relation to care, support or treatment provided under the Act.’

Least Restrictive Option and Maximising Independence

This principle is focused on encouraging professionals who interfere with a person’s Article 5 (right to liberty) and Article 8 rights (to respect for privacy, home and family life) as minimally as possible. It is a fundamental principle for someone detained under the MHA that they must be detained for the shortest time necessary in the least restrictive environment possible as near to where the patient identifies as home.

It is important to remember that a person assessed as lacking capacity to consent to informal admission cannot be admitted without a section being in place.

Any restriction should not be for the convenience of those providing the service. This is important when considering blanket bans on certain items which could include electronic devices etc.

Empowerment and Involvement

This principle is about involving the patient as much as possible in their care in order to eventually progress to recovery and safely returning to independence. Patients should be encouraged to participate in decision making in relation to their care as much as possible. The care planning aspect in Wales is commendable as any Tribunal reports which we receive are accompanied by a Care and Treatment Plan (CTP). This is an incredibly useful document which the Tribunal would usually not have the benefit of receiving in England.

Our experience is that on many occasions patients are excluded from meeting that are about them badging meetings as ‘professionals meetings’. Any decision to exclude patients from discussions about them must be justified in the notes to avoid falling foul of this principle.

How can it respect this principle where reports are written about patients for Managers or Tribunals which may contain factual errors cut and pasted from other reports? In the case of R (on the app of DJ) v MHRT; R (on the app of AN) v MHRT 11th April 2005 Mr Justice Munby (as he then was) summed up the frustrations of patients very well:-

‘The Tribunal must be alert to the well-known problem that constant repetition in ‘official’ reports or statements may, in the ‘official’ mind, turn into established fact something which rigorous forensic investigation shows is in truth nothing more than ‘institutional folk-lore’ with no secure foundation in either recorded or provable fact.’

Surely if ‘Empowerment and Involvement’ not to mention ‘Respect and Dignity’ were to be adhered to then the draft of reports would be gone through with the patient.

Paragraph 1.10 English code states ‘Consideration should be given to what assistance or support a patient may need to participate in decision-making and any such assistance or support should be provided, to ensure maximum involvement possible’.

Respect and Dignity

Practitioners should appreciate the diverse needs of all people without discrimination. Patients, families and carers should have their opinions recorded and taken in to account when decisions are being made about a patients care. Religion and culture may be of significant importance to a patient’s life and this is one example of the needs of a patient being considered when decisions about them are being made. These may also go to the heart of diagnoses, treatment and care planning.

Purpose and Effectiveness

Care and treatment should be provided in accordance with the best professional practice guidance from professional bodies. Patients should be offered treatment in an environment which is safe as well as therapeutic. An important point raised here is the physical health needs of patients being assessed and addressed. This is to promote healthy living and hopefully reducing any potential ill-effects of treatment.

Efficiency and Equity

Health and Social Care should work together to deliver treatment which minimises the duration of detention in hospital. This should be with a view to facilitating discharge. This is very relevant when considering discharge planning where often delays can occur.

This principle clearly states that all relevant organisations should work to build relationships to ensure efficient progress.  Paragraph 33.8 of Welsh code states ‘Although the duty to provide after-care begins when the patient leaves hospital, the planning of after-care should start whilst the patient is in hospital’.

A Mental Health Tribunal will not be pleased having to adjourn proceedings due to lack of information relating to suitable appropriate discharge planning due to the lack of any s. 117 aftercare meeting prior to the hearing.

Keeping People Safe (Welsh Code)

This only appears in the Welsh Code although the emphasis is consistent with the English code. The well-being and safety of the patient is key. Patients (and family/carers) should be involved in assessing potential risk to their own health or safety as well as others. This states that discharge planning should begin before the actual discharge takes place with a view to the safest possible discharge.

All principles listed here are of equal importance and should be at the forefront of decision makers minds. When carrying out their inspections, the Care Quality Commission will look for evidence that decision makers have referenced the Code, or if they have not, reasons as to why.

In conclusion

Professionals ignore the Code and the Principles at their peril. As the Code sets out graphically the emphasis to be attached to certain trigger words:-

Reflects legal obligations which it is essential to follow
No exceptions

For those to whom this is statutory guidance
Exceptions should be documented and recorded including reasons.
Patients, families and carers, regulators, commissioners and other professionals may ask to see this

For those to whom it is not statutory guidance
Good practice but exceptions permissible

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