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Caught between Commissioners – the plight of forensic patients waiting for a rehabilitation bed

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February 12, 2018 | By Michael Kennedy |

February 12, 2018 | By Michael Kennedy |

I have recently acted for clients detained under the Mental Health Act 1983 (“the Act”) who have experienced lengthy delays in being provided with a rehabilitation service despite the fact that, clinically, there is no dispute that that is what is needed. These cases have highlighted to me what appears to be a problem replicated across the country – from anecdotal evidence gathered from a number of mental health professionals.

The scenario is this: a patient has a significant forensic history and a range of related problems, such as substance abuse and a lack of social ties etc. They were detained in conditions of high and / or medium security, and have now ‘stepped down’ to low secure care. Sometimes, they are restricted patients (s.37/41 or s.47/49 of the Act) and so the Secretary of State for Justice must permit transfers between units; sometime they are un-restricted and the Ministry of Justice has no role to play (e.g. s.37 notional).

In any event, the clinical team are of the firm view that low secure care is no longer required, but that a discharge direct to the community is clearly inappropriate – the risk of relapse and reoffending being too high. What is required, they feel, is a final phase of in-patient treatment. This would: consolidate the therapeutic work completed in secure conditions; prepare the patient for the practicalities of a return to the (perhaps increasingly stressful) ‘real world’; test them out on s.17 leave to a supported living placement and gradually introduce, or reintroduce, the patient to their community mental health team.

The recommendation is, therefore, that the patient makes a final pre-discharge step down – to a rehabilitation service. This might be a locked or an unlocked service, but the key point is that it would involve transfer, under s.19 of the Act, to a rehabilitation bed.

So far, so logical and uncontroversial? All basic and appropriate forensic psychiatric practice, right? This ‘pathway’ is also (in my experience) largely accepted by the patient (my client). They might prefer to miss out on the final phase; they might think they do not need it, but they often do accept the logic. In any event, they know that they will probably just have to accept it. They generally just want to ‘get on with it’, so they can then be discharged from detention, which may have been of many years duration. They also appreciate that, on arrival in a rehabilitation unit, they will be able to get out and about more and generally have more freedom and responsibility. In addition, they really can now be confident that the next stage will be treatment in the community – there being no level below the rehabilitation level, in terms of hospital care. NHS England can commission secure care – but not rehabilitation care.

So what’s the problem? Why are perhaps significant numbers of such patients being denied appropriate health care? Why is their ultimate discharge being delayed? Why is a rehabilitation bed simply not commissioned on their behalf, on receipt of clinical opinion as to their needs?

The answer is that when a patient is detained in high secure and needs to step down to medium; or if in medium and needs to step down to low, they come within the commissioning remit of NHS England. Yes, there may be the odd problem but, generally speaking, NHS England will commission the step down bed on receipt of an independent clinical view in the form of a gate-keeping opinion (more recently termed an access assessment) from an appropriate consultant forensic psychiatrist. NHS England commissioners are (often former mental health practitioners) knowledgeable about mental health services and, crucially, have the budget to commission and will do so. When the patient seeks to step down from low secure to rehabilitation, however, they leave NHS England behind and come under their local Clinical Commissioning Group (CCG) – which is where the problems can begin.

CCGs are relatively small (in terms of geographic coverage and financial resources) and have to commission health care services across the board. As a result, they have a limited budget and a lack of expertise when it comes to the very specialist area of commissioning mental health services for forensic patients. There may also be a lack of enthusiasm to meet the (generally very expensive) care needs of someone with a history of offending – sometimes in the most serious manner. In some cases, the patient is a ‘lifer’, on a s.47/49 transfer, and (however unlikely), there might be that hope that they will be remitted to prison and will no longer come under their budget. The temptation is to knock the request for a commissioning decision about a bit – in the hope it might just go away… or delegate the problem to someone else.

The way some CCGs delegate is to enter into a block contract arrangement with their local specialist provider NHS Trust and ask that body to make the commissioning decision for them. The logic of this is that the provider Trust knows and understands this patient cohort and their needs. That might work fine but for two issues: (a) the CCG may not provide enough money for the Trust to be able to commission all the required services; (b) if something goes wrong in the process, the lines of accountability are blurred. An added problem is that of patient choice. If the patient is happy to return to their home area (where their CCG/Provider Trust and responsible s.117 local authority are all situated), then the provider Trust might be in a position to offer a rehabilitation bed in their own service. If, however, the patient does not want to return to that area, then the provider Trust faces the prospect of commissioning an out-of-area rehabilitation bed – when they may not have the money or the knowledge of what is available locally to do so.

In my experience, this scenario, where the patient does not want to return to the area where they were resident at the time of their index offence is not uncommon. Their reasons for not wanting to return may be entirely rational and in line with victim sensitivities and reduction of risk to the public – but they don’t often sit well with bureaucratic planning.

The net effect, in this scenario, is that the commissioning process doesn’t work and the patient is left high and dry. Statutory principles, such as ‘the least restrictive’ service and so on are – just words. The patient sits on a low secure ward, his treatment there finished, and he waits and he waits.

Can the law come to the rescue for a stranded patient?

As indicated above, there are principles which all should adhere to when applying the Act. These are set out in the Code of Practice to the Act (Chapter 1: Guiding Principles). All of which are relevant in this type of scenario:

Least restrictive option and maximising independence
1.4 “If the Act is used, detention should be used for the shortest time necessary in the least restrictive hospital setting available.”

• Empowerment and involvement
1.7 “Patients should be given the opportunity to be involved in planning, developing and reviewing their own care and treatment to help ensure that it is delivered in a way that is appropriate and as effective for them as possible”.

• Respect and Dignity
“Patients… should be listened to… by professionals”.

• Purpose and effectiveness
“Decisions about care and treatment should be appropriate to the patient, with clear therapeutic aims, promote recovery…”

• Efficiency and Equity
“Providers, commissioners and other relevant organisations should work together to ensure that commissioning and provision of mental healthcare services are of high quality and are given equal priority to physical health and social care services. All relevant services should work together to facilitate timely, safe and supportive discharge from detention.”

Whilst a lawyer acting on behalf of a client facing this predicament can refer to these principles in correspondence with healthcare bodies and allege that they are not being adhered to, what may then be needed is a method by which a failure to commission a bed in these circumstances can be challenged – and that is far from straightforward.

What about asking the mental health tribunal to do something?

The primary role of the First-tier Tribunal (mental health) (“the Tribunal”), in a case where the patient is an in-patient, is to consider whether the patient meets the statutory test for detention under the Act. It has a limited role in respect of the level of security/clinical appropriateness of the service that the patient is detained in.

In the case of restricted patients, the case of C v Birmingham & Solihull Mental Health NHS Trust [2012] UKUT 178 (AAC) confirmed, essentially, that the Tribunal cannot make a recommendation of transfer in respect of a patient. If the patient is, therefore, detained under s.37/41 or s47/49 of the Act, the Tribunal cannot really do anything – other than to express disquiet as to any evident delay in a recommended move to lesser security.

In the case of non-restricted patients, the Tribunal used to be of great assistance where there were bureaucratic problems of this nature – but not anymore. Whilst the Act provides the Tribunal with a power to make a formal, statutory recommendation that the patient be transferred to another unit (pursuant to s.72(3) of the Act), it cannot make such a recommendation in the scenario above. That is because of the judgment of in the case of RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 73 AAC. The way this decision is applied by the Tribunal is that, if detaining authority is supportive of the transfer – then there is no point in the Tribunal making a statutory recommendation in favour of transfer: as it is already in their contemplation. The problem with this application is that it means that, where the obstacle to transfer is not the detaining authority, as in our scenario, the Tribunal cannot assist. A transfer recommendation in the scenario I have referred to could really help, because the CCG would know that the issue of transfer remained live; that the Tribunal would be likely to reconvene if it failed to act; and that a senior representative might be called as a witness to a reconvened hearing. As it is, the Tribunal will tend to accept the evidence that the criteria for detention remain met; decline to make a recommendation of transfer – and close its file.

What about a judicial review challenge?

The use of judicial review requires legal aid and obtaining legal aid in order to bring such challenges is extremely difficult. Reforms to the operation of legal aid in such public law cases mean that payment of costs is contingent on lawyers for the patient obtaining permission to proceed – that it is a very risky basis on which to run expensive litigation. Even if one can obtain the funding, there are other practical problems such as: the capacity of the patient to litigate in this way; obtaining a litigation friend if they do not have the requisite capacity (although the Official Solicitor can be very helpful); the possibility that the clinical picture changes in the interim, making any challenge academic etc.

Despite the above, a public law challenge of this nature is a possible remedy and a guidance decision from the Administrative Court would be of assistance – but it shouldn’t really have to come to high court litigation.

Austerity

Of course, one cannot ignore the role of austerity in all of this. I don’t recall coming across the examples of delayed provision I see now, in the past. I suspect the switch from the larger Primary Care Trusts to the smaller CCGs a few years ago may well have contributed to this particular problem.

I note that the Royal College of Psychiatrists has recently tweeted an optimistic reference to the anticipated effect of every CCG having to meet the Mental Health Investment Standard and linking to: Refreshing NHS Plans for 2018-19 NHS England and NHS Improvement (Published by NHS England, 2 February 2018). It is fair to say that there were references to a range of mental health commissioning needs in that document (e.g. Services for people with Eating Disorders) but I don’t recall seeing any reference to the needs of forensic patients.

The bottom line for forensic patients is that they often have to spend many years in detention, often well into double figures. They can spend a lot longer in secure psychiatric units than they might have done if they had been sentenced to a period of imprisonment for their offence/s. During their detention, they can be treated with anti-psychotic and other medication without their consent and they face a range of restrictions whilst an in-patient. All of this is, of course, justified in law and clinical practice and the patient can have no complaint – given the risks to the public. All of that is, however, predicated on the patient being able to step down when they are ready to do so. If that is not permitted to happen, because of resource constraints and bureaucratic concerns, then the legal justification is eroded and, no doubt, the therapeutic relationship damaged.

Michael Kennedy

Michael is a Barrister within our Court of Protection & Mental Health Law team and is also a Director of Switalskis. He is based at our Wakefield office but helps clients nationally and is recognised as a leading specialist in his field. He regularly lectures and trains a variety of legal professionals. Michael's profile

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