Tuesday, 20 January 2009

Seconds out ...

The second edition of my book, The Nearest Relative Handbook, is now available.

The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.

The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.

The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.

Review of the first edition were very favourable. They include:

An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School

This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law

The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre

There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal

The second edition of The Nearest Relative Handbook is published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here

What is a public place?

Where a person who is in a public place appears to be suffering from mental disorder, section 136 of the Mental Health Act allows him to be arrested by a police constable and detained for up to 72 hours in an appropriate place of safety.

It is hard to find definitive statistics on section 136. The Mental Health Act Commission has suggested that between 2002/3 and 2003/4, the power was used 4,450 times, with patients detained either in hospital or in a police station. (MHAC, 2006, In Place of Fear? Eleventh Biennial Report, 2003-2005, paragraph 4.165 and figure 76) The Independent Police Complaints Commission, however, has calculated that in 2005/6, patients detained under section 136 were held in police cells on 11,517 occasions. (Maria Docking et al, September 2008, Police Custody as a “Place of Safety”: Examining the Use of Section 136 of the Mental Health Act 1983, IPCC Research and Statistics Series: Paper 11, pages 10 & 11)

Because the concept of a public place is used in a wide variety of statutes, the cases it produces are rarely collected together, and as a result, it is hard to know quite what the law permits.

The new Reference Guide to the Mental Health Act 1983 says that a ‘public place’ is “any place (whether indoors or outdoors) to which the public have access, whether by right, by explicit or implied permission, on payment, or otherwise.” (Paragraph 30.17). Because of the courts, however, we also know: that the grounds of a bail hostel have been held not to be a public place. (Harriott v DPP [2005] EWHC (Admin) 965) The contrary may be true both of the upper landing and of a communal balcony in a block of flats. (Knox v Anderson (1983) 76 Cr App R 156; Carter v Metropolitan Police Commissioner [1975] 1 WLR 507)The front garden of a private house will not usually be a public place, (R v Edwards (1978) 67 Cr App R 228) even if it is so small that someone standing in it could inflict harm on a pedestrian on an adjacent pavement. (R v Leroy Lloyd Roberts [2003] EWCA Crim 2753) A car park is a public place, at least during licensing hours, (David Lewis v DPP [2004] EWHC (Admin) 3081) and, even if it is said to be for customers only, if it is attached to commercial premises and accessible from a public place. (May v DPP [2005] EWHC (Admin) 1280) Finally, a private driveway shared by neighbouring private properties is not a public place; members of the public who use it do so as visitors rather than as members of the public. (R v Bogdal [2008] EWCA Crim 1)

It is felt that sometimes, where a person with mental disorder is found in a private place, police constables will attempt to entice him into a public place simply so that the section 136 power can be used. The standard texts say that such a tactic would be unlawful, but a brand new case suggests that it is not.

In that case, a police officer was held to have acted lawfully where he arrested a woman for being drunk and disorderly in a public place, having physically escorted her from a garden to a private footpath. The High Court accepted that the constable had been attempting to reach a negotiated conclusion that would have been in the woman’s own interests, and that he was not motivated by the desire to justify an arrest for an offence that could only be committed in a public place. The High Court said he could properly be said to have acted in conformity with generally acceptable standards of conduct. (McMillan v CPS [2008] EWHC (Admin) 1457)

In order to understand the limits of the section 136 power, practitioners will have to look beyond the Mental Health Act, which was responsible for only one of the cases mentioned above. The other cases were brought under statutes as diverse as the Public Order Act 1936, the Prevention of Crime Act 1953, the Criminal Justice Act 1988, the Road Traffic Act 1988 and the Dangerous Dogs Act 1991. Conventional guidance is rarely so diverse as to embrace all these sources.

What is vulnerable?

That is likely to be one of the hot questions of the next few months. It has been posed most recently by the Department of Health, which is reviewing adult protection guidance published in 2000. (Department of Health and Home Office, October 2008, Safeguarding Adults) At the moment, the guidance – and the safeguards to which it gives access - relate solely to ‘vulnerable’ adults. But what does that mean?

The notion of vulnerability precedes the adult protection guidance. It is used in the Care Standards Act 2000, for example, and also at the heart of the special measures available to certain witnesses in criminal proceedings. (Youth Justice and Criminal Evidence Act 1999, section 16)

The guidance of 2000 is contained in the No secrets document. It says that a vulnerable adult is one who needs community care services because of disability, age or illness; and who cannot take care of himself, or protect himself against significant harm or exploitation.” (Department of Health and Home Office, 2000, No Secrets: Guidance on Developing and Implementing Multi-agency Policies and Procedures to Protect Vulnerable Adults from Abuse) Such a person might expect to be protected by a comprehensive ‘inter-agency’ framework.

There is concern, however, that this framework is more restricted than it should be, and that the problem is one of definition.

The House of Commons Health Committee, for example, says No secrets should not be confined to people requiring community care services, and that it should also apply to old people living in their own homes without professional support and anyone who can take care of themselves. (House of Commons Health Committee, 2004, Elder Abuse, Second Report of the Session 2003-04, Volume 1, HC 111-I, paragraphs 8 & 14)

This echoes the Association of Directors of Adult Social Services (ADASS), which has argued that ‘vulnerability’ “seems to locate the cause of abuse with the victim, rather than placing responsibility with the acts or omissions of others.” (ADASS, 2005, Safeguarding Adults: A National Framework of Standards, page 5)

As the new consultation document notes, there is “a broad belief that the definition does need revision, but no clear agreement on how this revision may take place.” (Department of Health and Home Office, October 2008, op cit, chapter 9) And the Law Commission has recently weighed into the debate. As part of a much wider review of adult social care law, it says it wants to look for itself at the notion of vulnerability. (Law Commission, November 2008, Adult Social Care: Scoping Report, paragraphs 4.280-4.293)

So, what are the alternatives? The Law Commission speaks favourably of the Safeguarding Vulnerable Groups Act 2006, which, it says, understands vulnerability “purely through the situation an adult is placed [in]”. (Law Commission, 2008, op cit, paragraph 4.290) Some have argued, however, that it would be better to abandon the notion of vulnerability and instead, seek to protect people who are simply at risk.

That, certainly, is the purpose of legislation recently enacted in Scotland. The Adult Support and Protection (Scotland) Act 2007 covers people who “(1) are unable to safeguard their own well-being, property, rights or other interests; (2) are at risk of harm; and (3) because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.”

ADASS, too, supports the use of risk as the keystone of adult protection, although its definition differs from the one used in Scotland. It says an adult at risk is one “who is or may be eligible for community care services” and whose independence and wellbeing are at risk due to abuse or neglect. (ADASS, 2005, op cit) This reference to community care need not fall foul of the Commons Health Committee, however, for ADASS says it includes “those people who are assessed as being able to purchase all or part of their community care services but whose need – in relation to safeguarding – is for access to mainstream services such as the police.” (Ibid)

It remains to be seen what the adult protection review will yield, and which notion the government will choose. But its task might be even more important than the consultation document suggests.

The stakes
With the coming of the Mental Capacity Act 2005 and the creation of a new Court of Protection, the High Court has lost the work it used to do with incapable people. Recently, however – and perhaps not coincidentally - it has set about transforming its inherent jurisdiction so as to offer protection to what it calls ‘vulnerable adults’. It proposes nothing less than the regulation of “everything that conduces to [their] welfare and happiness”. (Re SA (Vulnerable adult with capacity: Marriage) [2006] 1 FLR 867)

Adult protection is too important a task to be scuppered by questions of nomenclature. Everyone concerned needs to know precisely when the safeguards will kick in; when, it seems, an adult will be vulnerable. And the apparent willingness of the High Court to supplement the No Secrets guidance with real, enforceable rights means that as far as such people are concerned, the stakes have never been higher.

A real and immediate risk: clinical negligence and the right to life

Where health services and practitioners face claims under the Human Rights Act (HRA), they will usually have to show that they did all that could reasonably be expected of them.

That was the decision in a case involving a woman with paranoid schizophrenia, who was able to leave the hospital in which she was detained, walk two miles to a railway station and throw herself in front of a train. (Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74)

The woman’s daughter wishes to bring proceedings against the NHS trust that manages the hospital. She says the trust breached her mother’s right to life under article 2 of the European Convention on Human Rights. She is unable to bring proceedings under either the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Accident Act 1976, and therefore chose to pursue her claim via the HRA. Ultimately, she will have to establish that she is a ‘victim’ of the alleged breach, but for present purposes, that issue was not in play.

In a judgment delivered on 10 December 2008, the House of Lords said the daughter’s claim could proceed to trial, and it gave guidance as to the standard the trust will have to meet if it is to defend the proceedings successfully.

Their Lordships said the effect of article 2 is to impose two duties upon health bodies such as NHS trusts.

The first duty is to protect the lives of patients. Hospital trusts must ensure they employ competent staff, who are trained to a high professional standard, and adopt safe systems of work. If, for example, there was no proper system for supervising mentally ill patients - and if, as a result, a patient was able to commit suicide - the trust would have violated his right to life.

Even where there are competent staff and safe systems, of course, an individual doctor or nurse might act negligently and thereby cause a patient’s death. In that situation, the practitioner would be personally liable in damages. The health body might also be vicariously liable for the practitioner’s negligence, but it would not have breached article 2, because it had done all that the article requires of it to protect the patient’s life.

Their Lordships said the second duty imposed by article 2 is operational in nature and more specific than the first one. It arises only if members of staff know or ought to know that a particular patient presents a ‘real and immediate’ risk. In that circumstance, article 2 requires staff to do all that can reasonably be expected to do to protect the patient from the risk. If they fail in this regard, not only will they and the health body be liable in negligence; there will also be a violation of the obligation under article 2 to protect the patient’s life. It was accepted, however, that resources are not unlimited, and their Lordships said that in attempting to fulfil their obligation to a patient, practitioners need not behave any more cautiously than they were already persuaded to do by the ordinary law of negligence.

Traditionally, of course, the right to life has most often been engaged by deaths occurring in custody, with little or no distinction being made between prison and police custody and detention under the Mental Health Act. One judge, however, suggested that article 2 might extend further than that.

Baroness Hale – who, as well as being a senior judge, is also a noted mental health law expert – said she found it difficult to distinguish between compulsory hospital patients and those on formal leave, and also between detained and informal patients, and between them and the incapable patients who, from next April, will be subject to the Deprivation of Liberty Safeguards. All of them, she implied, might now be entitled to the protection of this special duty of care.

The primary function of this decision is to clarify the obligations imposed by the Human Rights Act: generally, it is unlikely to impose upon health care services and practitioners greater obligations than they already owed. But the decision does acknowledge a special duty in some circumstances, and in time, we may conclude that its greatest novelty was to extend those circumstances and, therefore, the number of patients protected by article 2.