Answers to a quiz for World Mental Health Day : The British* Patient

More views of - or before - Cambridge Film Festival 2014 (28 August to 7 September)
(Click here to go directly to the Festival web-site)11 October

'Treating' The British* Patient

A quiz for World Mental Health Day (#WMHD2014 on 10 October), about patients’ rights, was inspired by re-watching The English Patient (1997) earlier in the week : here are the answers to the quiz. (That said, the answers are all The Agent Apsley’s and so - necessarily - is any responsibility for any mistakes or misunderstandings in writing them : unless, that is, you fail to offer a correction…)


A suggestion for reading : by all means read it all through, but why not focus on the answer to a question where you felt that a right had been outlined ?


Which of the following are rights of a patient in a psychiatric unit (in England & Wales*) when detained under section 2 of the Mental Health Act 1983 (as amended), headed ‘admission for assessment’ ? :


1. To be placed in a unit within 25 miles of home

Sadly, this is not a right, as recent news stories have highlighted, and even a patient being detained somewhere at that distance could effectively cut him or her off from most visits :

In rural Cambridgeshire, Huntingdon used to have its own units for adult and elderly mental health, whereas the provision for the town and its area is now located in Peterborough. A bed only being found initially at a distance (sometimes now hundreds of miles) is not a new phenomenon, but it is one that has been made more likely, and is so affecting more people, by reductions in both the numbers of units and the provision of accommodation (i.e. the capacity for which funding exists, irrespective of how many people the unit could hold (and even have been built for), if enough nursing and ancillary staff, supplies, etc., existed)


2. To see a psychiatrist within 3 hours if distressed

Since, as one might have been led to believe, psychiatric units are therapeutic, such a right might seem plausible.

However, even if the movement that gave us Patients’ Charters promised such a standard of care, or an NHS Trust itself committed to provide it, nothing under the Act itself gives this entitlement : seeing a psychiatrist within a specified time would not derive from being on section 2, but have to be a matter of Trust, or ward, policy.


3. Not to take medication, if offered twice already and refused

Although section 2 of the Act is headed ‘admission for assessment’, and section 3 ‘admission for treatment’, there is nothing to choose between them in this respect :

There is no general right not to be treated, i.e. not to take prescribed medication - which, if the patient repeatedly refuses when offered, can be given against his or her will.

This will either be by single injection (if the original medication exists in injectable form, failing which something similar), or, for anti-psychotic medications (properly called 'neuroleptics'), a long-lasting (depot) injection (to avoid the need for multiple forced administrations).


4. To take a walk in the ground for up to an hour, if the staff are told first

When on section, even such a simple thing as this depends on it being granted by the person who, at the time, is the Responsible Clinician** (RC), who can authorize (or rescind) it - for the starting position is that one is not allowed to leave the unit at all without permission.

If the staff have not been told that a person is granted ground leave, but he or she still goes for a walk, he or she is considered to be absent without leave (is this the Army ?) and can be brought back by force – if it were a longer walk, it might be interpreted as trying to abscond (is this HM Prison ?), and the police could seek out him or her and oblige his or her return.

And - cynically speaking - the unit is easier to manage, and there is less work and documentation, if patients are not, as they should be, encouraged to exercise and be physically active : RCs do not need to grant permissions that have to be checked, and it is easier to carry out the regular head-count (is this Colditz ?)


5. To have family or friends visit outside visiting hours in the first two weeks of the admission

This, too, might sound reasonable, but it is not a right that is given by falling under the Act (although the Code of Practice may have something to say about what is good practice) :

If the NHS Trust, or the manager of the unit, makes such a facility available, all well and good. (Likewise, the visiting hours themselves are determined at that level.)


6. To drive, as long as one’s partner is present

The Mental Health Act is silent about this (and it could be just as relevant to someone not detained under it, an informal patient).

Unfortunately, all too often, consultant and other staff are also silent, failing to ask themselves – by enquiring of the patient and / or his or her family whether he or she drives – whether the patient’s family realizes that his or her diagnosed (or suspected) mental-health condition needs to be reported to the DVLA (Driver and Vehicle Licensing Authority), and that it is appropriate to recommend to them whether he or she should be allowed to drive.

The DVLA then contacts the consultant for medical evidence, and makes a decision about maintaining, limiting, or revoking the driving licence, based on the diagnosis and what the consultant reports.


7. To go home on overnight leave at least once per week

Leave is sometimes called section 17 leave, because that is the section of the Act under which the Responsible Clinician** (RC) can choose to grant it. That will be a clinical decision, and, since RCs are cautious beasts (as they are still largely consultant psychiatrists), granting leave is never going to be tied to how long the patient has been admitted :

Not least on the common assumption that, if in doubt, it is better for the patient to be on the unit, rather than on leave at home (even if that is 'the least restrictive' option - and a noisy ward, with other patients who are 'high', may not do someone much good who is very depressed).

However, in practice, there will be a correlation between the length of the admission and the length and frequency of leave granted, if the patient is considered to be ‘getting better’ : so, patients can be directed to the fact that leave is being given more often, and for longer, if questioning what the consultant thinks of his or her state of mind.


8. To vote in local and national elections

One can find a summary of the position, under the sub-heading ‘Patients in psychiatric hospitals’, on Citizens’ Advice’s Advice Guide web-site.

As to the law, Acts of Parliament other than the Mental Health Act 1983 have legislated on this topic. Most recently, section 73 of the Electoral Administration Act 2006 has taken the trouble to abolish the so-called common-law rules about ‘mental state’ and ‘incapacity’ (s. 73(1)).

Also, the Representation of the People Act 2000 amended the 1983 Act of that name, to specify that, if registered to vote, there is a right to vote. Practically, though, one would not only have to get to a polling-station in one’s registered constituency, but also not be ‘subject to any legal incapacity to vote’ (s. 1(1)(b) of the 1983 Act (as amended)) : practically, then, staff on the psychiatric unit will not let one’s family take one to vote, if one has been determined to lack capacity.


9. To choose to be treated, on the NHS, by another psychiatrist who is employed by the same NHS Trust

If one credited that provisions in the Health and Social Care Act 2012 signified anything, such as the duty (under section 4) on the Secretary of State for Health to ‘have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service’, one might believe in a right to a second opinion, or even a choice of practitioner.

Or one can read NHS England’s web-site for what it similarly has to say about the much-vaunted principle of parity of esteem (under the 2012 Act), but one will probably search more successfully for a chimæra than in the 1983 Act for the right to choose who has oversight of one’s psychiatric care…


10. To specify that one would never, whatever the consequence, wish to have ECT

Yes, one has the right to make an advanced directive to this effect (as section 58A, sub-section (5), of the Act acknowledges (s. 58A(5)).

That said (and, again, despite that so-called parity of esteem, as discussed in answering Q9), one has less comfort in this than one might think, for, as Stephen Weatherhead (@SteWeatherhead) and The Agent (@THEAGENTAPSLEY) have suggested, the Act also stipulates (in s. 62(1), in the cases specified by paragraphs (a) and (b)) that the directive sometimes does not even signify :

For section 62(1A) says ‘Section 58A above, in so far as it relates to electro-convulsive therapy by virtue of subsection (1)(a) of that section, shall not apply to any treatment which falls within paragraph (a) or (b) of subsection (1) above’ :

Which means, as those paragraphs tell us, treatment ‘which is immediately necessary to save the patient’s life’ (para. (a)), or ‘which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition' (para. (b))…


11. To see a mental health advocate about any matter of concern

Under section 130A of the Act, the role of Independent Mental Health Advocates (IHMAs) was established (as inserted by the Mental Health Act 2007), and there is national provision for IMHAs (and their establishment and regulation).

Prior to the 2007 Act, but not in name, IMHAs already operated in some places, because advocacy services were already funded : they had protocols and agreements with psychiatric units that allowed these proto-IMHAs to see patients on units, and, because it was not IMHA, they were not limited (as IMHA requires) to addressing rights and concerns arising under the 1983 Act.

To answer the question, then, whether one has a right to see an advocate about ‘any matter of concern’, e.g. whether one can be dismissed for having been sectioned, depends on whether IMHA and general advocacy have been funded in one's locality. Only if so, and then not wholly because of the Act, could a patient raise any concern with an advocate.


12. To spend at least two hours per week, as a total duration, in conversation with one’s primary nurse

By now, the overall pattern may have emerged, so one may not be surprised that the Act would not require this amount of contact-time.

Which is not to say, whether or not directed to do so by a Clinical Commissioning Group (CCG), an NHS Trust could not have made that promise, or a manager of a unit made that part of its operational rules…


Those are The Agent's Answers (as at 11 October (updated 15 October))

It may be open to question whether any rights that are talked about were actually given by the Mental Health Act, or exist despite someone's being detained under one of its sections - the most common mistake of which there was already evidence is to believe that section 2 differs from section 3 regarding treatment under compulsion.

Probably the closest that we come is, with Q8, the changes that finally allowed someone to vote when on section 2 (whereas those in hospital because of the Act's criminal provisions are treated along with this government's attitude towards the prison population, hated for seeking to invoke the right to vote as a Human Right), provided that the person is not determined to lack capacity, though (as in Q10) there is this rather empty victory of advanced directives being acknowledged, but not always being binding (which feels as though one hand gives, the other takes away again)...

However, it was generally intended to challenge with these questions : the fact that, almost certainly, none of them embodied what one could call an absolute, unequivocal right for a detained patient.



End-notes

* Scotland has its own Mental Health Act, so this is only applicable to the law of England & Wales.

** Prior to 2007, this person was the RMO, or Responsible Medical Officer : most RCs are still psychiatrists, however, although the intention of the Mental Health Act 2007 was to widen eligibility for the role.


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Unless stated otherwise, all films reviewed were screened at Festival Central (Arts Picturehouse, Cambridge)