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Cheshire West ruling has led to several AMHP teams facing surge in requests for Mental Health Act assessments, report finds
The fallout from a landmark Supreme Court ruling on deprivation of liberty is putting Approved Mental Health Professional services under ‘unprecedented pressure’, according to new research.
A report published by The College of Social Work’s AMHP network reveals that the March 2014 Supreme Court ruling, known as the ‘Cheshire West’ ruling, has triggered a surge in requests for Mental Health Act assessments at some local authorities. The ruling has also provoked anxieties among some practitioners over the interface between the Mental Capacity Act and Mental Health Act and when each framework should be applied for deprivation of liberty cases on psychiatric wards, the report found.
AMHPs are the group of mostly, but not exclusively, social workers who coordinate Mental Health Act assessments. One respondent said their AMHP team had seen “unprecedented” requests for Mental Health Act assessments in the wake of the ruling. A second respondent said their team had witnessed a “doubling” in assessments that has left AMHPs unable to “give the time they would otherwise have done to the people on their caseloads”.
The Supreme Court ruling
The Supreme Court ruling effectively lowered the threshold for what constitutes deprivation of liberty in care.
In doing so, it broadened the group of people in care homes, hospitals (including mental health wards) and other settings that are likely to require any deprivation of their liberty to be authorised under a legal framework.
Where a patient is in hospital to receive treatment for a mental disorder and lacks the capacity to consent to their care then, in principle, there are some cases where either a Deprivation of Liberty Safeguards (Dols) authorisation or detention under the Mental Health Act are options. Professionals must decide which legal framework is the most appropriate. Relevant factors include whether the person is objecting to the care arrangements or not.
The report, authored by Emad Lilo, the vice chair of the AMHP network, gathered feedback on the ruling’s impact from AMHPs working in 24 local authorities. It found that the ruling’s implications were most for local authorities where a large proportion of best interests assessors – specially trained staff who coordinate Dols cases – were drawn from their AMHP teams.
“The levels of activity have caused unprecedented pressure on already limited and stretched AMHP services across the country,” the report concluded.
“Notwithstanding this, there has been impressive response by services in working collaboratively and in partnerships with stakeholders including mental health trusts, higher education institutions and legal experts.”
The report makes nine recommendations. These include a recommendation that local authorities consider increasing their AMHP workforce capacity and for providers to put policies in place to deal with with circumstances where disagreement results in an inability to take a decision as to whether the Mental Health Act or Dols should be used to give legal authorisation to a deprivation of liberty.
Deprivation of liberty webinar
The report marks the latest evidence of the seismic impact the Cheshire West ruling has had on the health and care system. The judgement has also triggered a ten fold increase in Dols cases, with statutory timescales for assessments being breached as councils rack up case backlogs.
The government has asked the Law Commission to review the legal frameworks for authorising deprivation of liberty, including the Dols. Next week the Commission will publish its draft proposals for a new deprivation of liberty scheme. Tim Spencer-Lane, the lawyer leading on drafting the proposals, will present the draft framework at a free Community Care webinar on Tuesday 7 July. Sign-up here.
Proposals for the Care Quality Commission to regulate the Approved Mental Health Professional teams could boost support for staff by holding councils to account on their statutory duty to provide sufficient services, according to leading social workers.
A Department of Health and CQC review is underway to consider whether AMHP services should be brought under CQC regulation. The review was triggered by concerns that a lack of national scrutiny of AMHP services had led to inconsistent monitoring from councils around the capacity and quality of services.
Councils have a statutory duty under the Mental Health Act to ensure AMHP provision is sufficient to support a round-the-clock service. There is no national monitoring of AMHP provision and the CQC has previously revealed that one local authority was left with too few AMHPs to deliver a safe service after making staff redundant and cutting pay levels.
Faye Wilson, chair of the British Association of Social Workers’ mental health forum, said in practice the statutory duty to ensure sufficient AMHP provision was effectively being ignored by many councils and CQC regulation could help hold them to account.
“We’ve got AMHPs in some areas that are really struggling and their local authorities aren’t leading them or supporting them. Some councils simply base their AMHPs in NHS mental health trusts and then basically ignore them,” she said.
“There is a real lack of leadership from some councils and that isn’t helped by there being no national oversight of how they are fulfilling their statutory function. It’s not acceptable.”
Wilson said BASW welcomed the DH review and had pushed for CQC action in this area. She said the CQC wanted to work with the AMHP community to identify what was needed to improve local authority leadership of the role, including better support and training for staff.
‘Any system can’t just be punitive’
Ruth Allen, chair of the The College of Social Work’s mental health faculty, said more details were needed on the DH review and the proposals for any regulatory regime, but felt the project was focusing on “the right issue”.
“We need a much better system of accountability for the provision of strong AMHP services. The staffing numbers, the support for staff and the quality of services being provided all need looked at. It isn’t well overseen just now,” she said.
“If the CQC doesn’t take into account fhe quality of AMHP services, they can’t effectively regulate mental health services. Inspections at the moment look at everything but social care and AMHPs and they are very hospital-focused. So bringing regulatory scrutiny to AMHP provision might address some of these issues but if it is introduced it needs to be used to improve workforce planning and development, not just as a punitive measure.”