Dear Psychiatrists, The Mental Health Act was not drafted for your convenience…

A question was asked in the House of Lords yesterday concerning the funding of mental health in-patient beds. I rarely feel angry any more about the politics of mental health in England and Wales. But the politics of ‘sectioning for a bed’ does make me angry. The Mental Health Act is not a toy. It creates a set of procedures which patients who may be detained in hospital should have a reasonable expectation will be followed consistently and objectively. The powers to detain they create for doctors and other professionals should not be exercised strategically, either locally to secure resources, or nationally, to score political points. Doing this creates the impression of arbitrariness and arbitrariness is the enemy of justice.

In the House of Lords yesterday Lord Bradley asked the following leading question:

‘Does the Minister agree that it is wholly unacceptable that, according to the Royal College of Psychiatrists, doctors are still being forced to section patients to get them their in-patient care?’

Yes, that sounds wholly unacceptable. But Earl Howe, on behalf of the Government, quite reasonably pointed out that the criteria for detaining people in hospital are specified in the Mental Health Act 1983 and must be very strictly observed or the detention of the patient will be unlawful. And ‘The patient must be so detained in order to get him a bed’ is not one of the criteria.

So if doctors are actually ‘sectioning for a bed’ they would be unlawfully depriving a patient of his liberty.

So what is really happening then?

No one knows. The question does not contain enough information to tell us.

First of all doctors do not section people. The Mental Health Act 1959 did two things. It treated mental health care as equivalent to care for physical disorders by stating that nothing in the Act would deprive anyone of the opportunity to receive mental health care on an informal basis. And it created a multi-disciplinary decision-making framework which emphasised the importance of reviewing voluntary or community-based support before considering inpatient treatment.

Our current statutory arrangements are only slightly different to the model adopted in 1959. Before a patient can be detained in hospital you need four things: a bed, an application to the hospital managers from an Approved Mental Health Professional (AMHP) who must have interviewed the patient and also obtained recommendations in favour of admission from 2 medical professionals as well as the consent of the patient’s nearest relative. Only one of the medical professionals needs to be approved as a mental health specialist under s.12 MHA 1983. Psychiatrists do not detain people with mental health needs. They are one of four voices which should be represented in the compulsory admission process. In practice, the small amount of empirical research which has been conducted has demonstrated that their recommendations tend to be highly influential on the opinions of the other participants. But it was clearly never the intention of Parliament that the psychiatric recommendation alone should be conclusive.

So what does ‘sectioning for a bed’ mean?

Admitting a patient to hospital without his consent is lawful if he has a mental disorder which it is appropriate to treat in hospital, he needs to be in hospital either for his own health and safety or for the protection of others and in the case of detention under s.3 MHA that treatment cannot be provided unless he is detained and appropriate treatment is available. Detaining a patient who consents to admission is, however, unlawful for a number of reasons outlined in this earlier blogpost.

It was the intention of the Percy Commission which advised the Government on the introduction of the MHA 1959 that for most people most of the time it should be possible to access both hospital and community care for mental health needs informally. This model held good for most of the next 50 years. But since 2007-8 we have seen a substantial rise in the absolute numbers of in-patients being subject to compulsion under the Mental Health Act. Since we have not seen a corresponding rise in voluntary use of in-patient mental health services it seems unlikely that the cause is simply an overall rise in the incidence of severe mental disorders requiring admission to hospital.

In fact no single explanation can fully account for this increasing use of detention. The best available statistical data is still fairly noisy, and no one has yet conducted any good inferential analyses of some of the proposed causes. So the level of the debate being held about this extremely worrying phenomenon is poor because the claims and counter claims being made are not being rigorously analysed.

One claim is that a reduction in the total number of in-patient beds in England and Wales has put pressure on Mental Health and NHS Hospital Trusts which deliver in-patient care to ration access to beds and that one way in which they are doing this is by allocating beds preferentially to detained patients over voluntary patients. Psychiatrists respond in turn by making strategic decisions about whether and when to recommend compulsory admission in order to ensure that their patients secure a bed. This is ‘sectioning for a bed’.

It is important to note that there are a number of sub-claims involved in this narrative which could all be tested. As far as I am aware no Mental Health or NHS Hospital Trust has a published policy of preferring to allocate beds on the basis of admission status as opposed to clinical need. Indeed writing down such a policy would be scandalous. The Trust’s duties to provide services are identical towards all service users and a person’s clinical need for care is not automatically greater because he or she meets the criteria for admission under the MHA. Indeed meeting the criteria for detention under the Act would be a poor proxy for seriousness of clinical need – detention under the MHA does not predict the likelihood that an individual will commit suicide within two weeks of discharge for example.

Useful qualitative data about the way in which doctors and AMHPs make these decisions does not exist. Currently we have two very weak sources of quantitative data about this practice. One is a survey of AMHP leads conducted last year by The College of Social Work [warning:pdf]. 102 responses were received and 16.5% (or 17) responders ‘stated that in one or more cases a person has been detained under the MHA because an informal admission to psychiatric inpatient care was not available’.

The second source is a survey of psychiatrists mainly in training posts conducted by the Royal College of Psychiatrists Trainees Committee. Rather confusingly the survey did not ask respondents if they were s.12 approved or not so some of the respondents may have been people who gave recommendations to admit and others were not. I tried asking one of the study designers why this was and received an equivocal response.

The actual headline figure from this study is that 24% of 517 respondents had been told at least once within the last 6 months by a hospital bed manager that a patient who was informal (i.e. voluntary) was not entitled to a bed. This is robust evidence that some individuals are using detention status as a mechanism to allocate beds and there is no legal basis for doing this since the obligations of service providers to both groups of patients are identical. If psychiatrists are then using this information to deliberately deprive people of their liberty to secure a bed then it is also a daft practice, since all it is achieving is an increase in the total number of people being detained with the costs associated with that.

However, it may not be having that effect. Only 17.6% of respondents then say that their decision ‘to use compulsory detention has been influenced by the likelihood of securing an inpatient bed’.

This is intriguing because it suggests that doctors do not simply recommend compulsory admission when faced within an intransigent ward manager. I may be wrong but I doubt very many psychiatrists have openly discussed the need to recommend compulsory admission to secure a bed with a patient they know would unequivocally agree to go into hospital voluntarily. But we are talking about relationships in which there is a power imbalance and what we know about coercion is that it is often experienced in what is not communicated rather than what is. Perhaps psychiatrists or AMHPs with sincere concerns about a patient’s well-being do not wholeheartedly encourage voluntary admission if they fear it would cause delays.

Another story is also revealed within the AMHP lead survey, that 31.9% of respondents knew of situations where patients who would have agreed to a voluntary admission to a local bed, had to be detained to secure their admission to an out-of-area placement and 34.1% knew of situations where the nearest relative had objected to an out-of-area placement. Situations like this will multiply as mental health services deliver more specialist in-patient services. Of necessity not every specialist service will be available close to home.

What we really need are qualitative data from ward managers, doctors, AMHPs, patients and their families about how decisions to admit are made and communicated when beds are scarce.

This doesn’t seem too bad after all. Why are you so cross?

Well we do not know if and how ‘sectioning for a bed’ occurs or not. We know needing to secure a bed influences some doctor’s decisions to recommend compulsion, and that some AMHP leads are aware of cases where informal admission was not possible. We need a lot more descriptive data before we can build any robust hypotheses about what is going on or test these hypotheses against the statistical data to find out whether they are contributing to the rise in the use of compulsion under the MHA.

What I am angry about is that the phrase ‘sectioning for a bed’ is entering the public debate with the apparent endorsement of the Royal College of Psychiatrists and they do not seem to have noticed how outrageous it would be if it were really taking place.

If the Prison Officers Association announced that their members were deliberately violating the Prison Rules and depriving prisoners of their rights to association for long periods in order to convince the government to address under-staffing in prisons there would be an outcry.

If the Police Federation announced that their members were deliberately classifying mentally ill or learning disabled adults as not vulnerable so they did not have to provide them with additional support during detention in order to convince the government to improve the staffing of custody suites there would be an outcry.

In fact these examples are so extreme we cannot actually imagine them happening. But they are legally analogous to what the Royal College of Psychiatrists seems to be doing. In fact they are rather tamer since they only involve ignoring the provisions of statutory guidance and not statute itself.

Our problem is not a shortage of in-patient beds leading to ‘sectioning for a bed’. Our problem is the Royal College of Psychiatrists cannot see that this lobbying strategy involves presenting its members as people who will happily abuse their statutory duties to violate the human rights of people with mental health needs.

The Royal College of Psychiatrists should renounce the practice of ‘sectioning for a bed’. If it actually is taking place in the extreme sense of ignoring the wishes of a patient who wishes to be admitted voluntarily then the Royal College has a duty to issue stern warnings to their members that such conduct is completely inconsistent with the duties of a s.12 approved doctor and with the requirements of domestic human rights law. If their members are frustrated at local decision-makers rationing resources in favour of detained patients then the focus of their frustration should be those decision-makers. Psychiatrists do have a choice not to recommend detention if it is inconsistent with the patient’s wish to enter hospital voluntarily.

Using/abusing patient rights as a trump card in a debate about funding of mental health services is completely inconsistent with the logic of parity of esteem which the College is keen to promote. No cardiologist would recommend that his patients should be detained in hospital against their express wishes in order to access in-patient care.

Allowing the College’s name to be tied to this rhetorical device is equivalent to announcing that ‘We want parity of funding, but we will not recognise our patients as people with a right to liberty equal to that of all other patients’.


5 thoughts on “Dear Psychiatrists, The Mental Health Act was not drafted for your convenience…

  1. Hi, thanks for the article. Hopefully I can clear up the equivocal answer you felt you received about the rcpsych survey: we chose to ask respondents of they were SHOs or registrars, as those 2 groups very largely overlap with section 12 approved and not approved. In retrospect it would have been useful to know both, but asking too many questions limits response rates.

    I can understand your frustration at the use of the term ‘sectioned for a bed’ and only use it myself in quotation marks. It’s use does risk the interpretation that people are being sectioned ONLY because a bed is unavailable, clearing breaching their human rights and painting professionals as complicit in this. I don’t think this happens; what I do think happens (as the AMHP survey strongly supports too) is that patients in the grey area between clearly informal and clearly MHA-suitable are becoming the latter more frequently due to chronic and sometimes overtly stated bed pressures. This is still a human rights issue but not one in which professionals are complicit. The ‘least restrictive’ options are simply and sadly shrinking due to resourcing restrictions. In this respect, patients ARE being sectioned because of beds, just no one case is solely because of it.

    Finally I think the portrayal of psychiatrists being the people who lead the ‘sectioning’ process, not AMHPs, is largely down to the media simplifying a complex process for the sake of readability. A side issue, perhaps.

    All in all a pervasively difficult situation which needs more urgent attention than it is getting in spite of overwhelming evidence of harm.

  2. I think we definitely agree on the last paragraph.

    I am fascinated by this topic because I’m working on something on the relationship between austerity and mental health coercion and I have been drawn into the thorny thickets of the data on this one. I simply cannot find any compelling relationship between changes to funding, even bed losses and legal coercion. All the trends towards increasing legal coercion predate the reductions in services we’ve seen in the last 3 years. Which makes me uncertain that anyone knows anything about what is causing the upwards trend in the use of legal coercion. And extremely circumspect that increasing funding will reduce levels the phenomenon – we might just end up paying for even more of it.

    So yes, there is overwhelming evidence of harm in mental health services though my metric of harm and yours might differ.

    We agree no professional ever tells a patient who says they want to go in to hospital that they must nevertheless be detained because it is the only way to get a bed. But the ‘grey area’ you describe is still legally problematic – the role of the medical practitioners assessing the patient is to ensure that the criteria for detention are met because he meets the criteria in s.2 or s.3. No other considerations should play a role in that assessment. And the AMHP also needs to be satisfied that ‘detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need’. The requirement for a need for detention cannot be met if the patient can be accommodated voluntarily. The need for detention is quite clearly linked to the patient’s need for care and treatment. If individual ward managers are refusing to meet certain patient’s needs for care and treatment by providing beds to voluntary patients then the choice is to call ‘Bullshit’ on the ward manager who is prioritising access to services unlawfully, not to unlawfully detain someone – try s.131(1) MHA for the ward manager and point out s.3(1)a NHS Act 2006 for the CCG.

    I fundamentally believe that psychiatric authority in the field of deprivation of liberty should be treated as a privilege. No other profession including the police or the judiciary, can exercise such unconstrained authority over the rights and freedoms of others. That was the point of clarifying how the law already tries to circumscribe the role of medical authority in detention. It obviously did not work.

    • Neil

      A few observations:

      For s2 there is no duty on the AMHP to consult the NR before sectioning – but it is good practice – the need to CONSULT [my emphasis] is only when a s3 is being considered – the NR does not need to AGREE, only NOT OBJECT to the AMHP applying for the s3. Indeed [rarely] the NR is able to make the application themselves if they wish.

      Also – you can section a patient who agrees to admission – I have sometimes done so – but ONLY if it is NECESSARY for them to receive the care, assessment and treatment they are in need of. I have done it for some people, e.g. with diurnal mood variations who, when calmer, can accept the need to be in hospital, but later they become agitated as their mood changes and they become impulsive and are unable to restrain themselves from leaving hospital. People suffering both mania and severe depression may be in this situation.

      As to the more important points re: why have rates of sectioning of IPs gone up???, how about:

      Fewer beds – so you have to be more ill/disturbed before it triggers admission, so more likely to be uncooperative.

      More patients reluctant to take psychotropic drugs due to side effects – more relapses?

      More patients using street drugs [often in an attempt to self medicate as a result of last point] sometimes leads to deterioration of mental state/ increased vulnerability.

      More controversial is the possibility that rates of personality disorders have increased – possibly due to increased numbers of people growing up in distressed family situations as divorce rates and numbers of single parents have gone up over the last few decades. Like I said, it would be very difficult to measure whether this is both accurate data and even harder whether, if so, it is a factor in admission / illness rates.

  3. I completely agree with Alex, above all in saying that this is a very difficult situation. ‘Sectioning for beds’ has become a fairly common term, and as a (non-psychiatrist) medic with manic depression I don’t see it as essentially anything other than an indicator of just how dire inpatient mental health services are. The issue that I think is far more important than the voluntary agreement of a patient to be detained under the MHA (when in that grey area and in desperate need of a bed) is the number of people who are being driven to stretch themselves to their financial limits in order to obtain inpatient treatment in a safe therapeutic environment (in the private sector). Having had professional first hand knowledge of a local NHS inpatient unit where use of restraint is amongst the highest in the UK, where violence between male and female patients had been documented, and where there had been more than one rape of a female patient, I opted for treatment in a unit that could make me better. Over the past decade I have made this choice several times and have met many others who have, at the extreme, remortgaged their home in order to pay for private inpatient care. As far as I am concerned this is the real scandal. I live with survivor guilt – the guilt of having violated all my principles (of violent opposition to all private medical care) in order to survive. I know that I would have died by now if I had depended on NHS inpatient care; others are less financially fortunate. Being sectioned into a bed in an unsafe unit is no help at all.
    As for ‘quotas’, if there are fewer inpatient beds available then surely it is obvious that if they are filled with patients on sections then there are unlikely to be many if any beds left for voluntary patients.

  4. I am wondering if one reason for an increase in “sectioning for a bed” involves cuts to older adults’ services. I have seen many cases of elderly clients with dementia who have not been coping living at home, have no family around them and many are eventually assessed as lacking capacity (under the MCA) to manage their finances and to decide where they should live and a deputyship is needed. Sometimes they have been living in squalor and refusing access to care staff and after other avenues have been explored, they are sectioned to be taken into hospital for care. These people are extremely vulnerable and their views and preferences are often overridden by MCA “best interests” reasoning. These cases seem to me to be on the rise due to people living longer, lack of community support, increasing rates of dementia and (perhaps) cuts to home care services. Might be an interesting link to your research on the impact of austerity! In most of these cases it seems that deputyship is used as a tool to sort out financial situations including settling local authority care charges. Perhaps it is no coincidence that there has been a shift in mentality of people working with the MHA since 2007 as this was when the MCA came in and often the overlap is misunderstood and the MCA logic of best interests may be affecting decisions under the MHA?

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