Local social services authorities have various functions in relation to the care of mentally disordered people living in the community. These include acting as guardian or approving and supervising the appointment of others to act as guardians of mentally disordered persons under the Mental Health Act 1983 (MHA 1983). The purpose of guardianship is to enable patients to receive community care where it cannot be provided without the use of compulsory powers. Section 7 of the MHA 1983 specifies the circumstances whereby a patient aged 16 or over may be received into the guardianship of a local social services authority or a person who is acceptable to the authority. A guardianship application may be made in respect of a patient on the grounds: (1) that he is suffering from a mental disorder of a nature or a degree which warrants his reception into guardianship under MHA 1983; and (2) that it is necessary in the interest of the welfare of the patient or for the protection of other persons that the patient should be so received.
Where a guardianship application is duly made it confers on the local authority the power to: (1) require the patient to reside at a place specified by the local authority; (2) require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training ; (3) require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person that the authority may specify.
The responsible local social services authority must arrange for every patient received into guardianship to be visited at intervals the authority may decide but, in any case, at intervals of not more than three months, and at least one such visit in any year must be made by an approved clinician or approved medical practitioner.
Approved Mental Health Practitioners
A number of functions under the Mental Health Act 1983 are carried out by approved mental health practitioners (“AMHPs”). This includes co-ordinating the process of assessment for the patients they assess for possible detention under the Act, agreeing to the making of a community treatment orders and making applications for admission to hospital or a guardianship order. These functions were previously carried out by ‘approved social workers’. However the Mental Health Act 2007 amended MHA 1983 to open up the range of registered mental health professionals who are able to undertake the functions and introduced the term AMHPs.
Occupational therapists, nurses and psychologists as well as social workers can now be approved as AMHPs.
Local social services authorities are required by section 114 of MHA 1983 to appoint a sufficient number of AMHPs to carry out the functions conferred on them under MHA 1983. Local social services authorities are also responsible for approving individual AMHPs. A local social services authority may only grant approval to a person to be an AMHP, if that person fulfils the professional requirements, is able to demonstrate that he possesses the relevant competencies and has completed a course for the initial training of AMHPs approved by the Care Council for Wales .
Under section 114A of MHA 1983, the Care Council for Wales may approve courses for persons who are, or wish to become, approved to act as AMHPs by a local social services authority. The Care Council for Wales may also carry out, or assist other persons in carrying out, research into matters relevant to training for AMHPs.
Section 13(1) of MHA 1983 places a duty on local social services authorities to arrange for an AMHP to be available to consider the circumstances of a patient in their area where they have reason to believe that admission to hospital or reception into guardianship may be needed. If the patient is detained under section 2, the local social services authority that arranged for an AMHP to consider the patient’s case for admission remains responsible for arranging for an AMHP to consider the patient’s case if the local authority has reason to believe that an application for further detention in hospital for treatment under section 3 is required.
Social reports and visits
Local social services authorities also have functions under section 14 of the Mental Health Act 1983 (MHA 1983) in relation to social reports of patients admitted to hospital in pursuance of an application made under Part 2 of MHA 1983. Social service authorities have a duty to provide hospital managers with a report on a patient’s social circumstances. This could include an account of the patient’s family and social relationships, history of mental disorder and previous contact with the local authority. The report should be prepared following an interview with the patient by an AMHP.
Section 116 of MHA 1983 obliges local social services authorities to arrange for visits to be made to patients who have been admitted to hospital, independent hospitals and care homes where the local authority is that patient’s guardian or the patient’s nearest relative. Nearest relative is the patient’s nearest relative for the purposes of the statutory provisions relating to compulsory admission and reception into guardianship. Where the patient is a child or young person and is in the care of a local authority by virtue of a care order, that authority is deemed to be the nearest relative of the patient. There are circumstances in which the nearest relative can be displaced by the county court, which may direct that the nearest relative’s functions are carried out by another person or by local authority social services.
Section 117 of the Mental Health Act 1983 (MHA 1983) imposes a joint duty on local social services authorities and local health boards to provide after-care for certain categories of mentally disordered patients who have ceased to be detained and leave hospital. Section 117 applies to persons who are detained under section 3 of MHA 1983, or admitted to a hospital in pursuance of a hospital order made under section 37, transferred to a hospital in pursuance of a hospital direction made under section 45A or a transfer direction made under section 47 or 48.
Social services and local health boards should establish jointly agreed polices on providing after-care services. After-care services are services which have the purposes of meeting a need arising from or related to the person’s mental disorder and reducing the risk of a deterioration of the person’s mental condition and, accordingly reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder. Services will therefore normally include treatment for mental disorder, social work support to help the patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities. Services under section 117 can include those directly provided by primary and secondary health and social care services as well as those provided under arrangements with private and voluntary service providers. The duty to provide after-care services exists until the local health board and local social services authority have jointly decided that the patient no longer needs them.
Section 75 of the Care Act 2014 has amended section 117 of the 1983 Act to include a definition of “after care services” (section 117(6)) and to make clear which local authority in England or Wales is responsible for meeting a person’s needs for after care services (section 117(3)).
Where a person was ordinarily resident in Wales immediately before they were detained, the local authority for the area in Wales in which they were ordinarily resident will be responsible for the provision of after care services. Where a person was ordinarily resident in England immediately before they were detained, the local authority for the area in England in which they were ordinarily resident will be responsible for the provision of after care services.
Section 117(4) makes provision for the determination of disputes about where a person was ordinarily resident for the purpose of section 117(3).
Prosecution for offences under MHA 1983
Under section 130 of MHA 1983, local social services authorities have the power to institute proceedings for certain offences that have been committed under MHA 1983. These offences include assisting patients to escape and the ill-treatment or willful neglect of patients who are subject to guardianship.
Independent Mental Capacity Advocates
Local authorities also have functions under the Mental Capacity Act 2005 (MCA 2005) to provide Independent Mental Capacity Advocates (IMCAs) in specified circumstances. The 2005 Act provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. IMCAs work with, and support, people who lack capacity and represent their views to those who are making decisions about serious medical treatment and changes of accommodation.
Under section 39 of MCA 2005 local authorities must instruct an IMCA for people lacking capacity who have no-one else to support them (other than paid staff) if it carries out an assessment and decides to provide care services in the form of residential accommodation in a care home. The duty only arises when the provision of accommodation is likely to be longer than 8 weeks. Local authorities have the same duty to provide IMCAs to people who fund themselves in long-term accommodation if the local authority carries out an assessment under section 47 of NHSCCA 1990, and decides it has a duty to the person (under section 117 of MHA 1983). Any information or reports provided by an IMCA must be taken into account as part of the process of working out whether a proposed decision is in the person’s best interests.
Deprivation of liberty safeguards
Under the Mental Capacity Act 2005 (MCA 2005) where a person suffering from a mental disorder lacks capacity to consent to his care or treatment, and such care or treatment amounts to a deprivation of liberty (within the meaning of Article 5 of the European Convention on Human Rights) there will be a breach of that person’s right to liberty if it is not accompanied by certain safeguards. Schedule 1A of MCA 2005 sets out the process for putting such safeguards in place and the authorising process required to lawfully deprive persons of their liberty. The safeguards exist to provide a proper legal process and suitable protection in those circumstances where deprivation of liberty appears to be unavoidable, in a person’s own best interests. The provisions do not apply to people detained under MHA 1983.
The safeguards provide for deprivation of liberty to be made lawful through ‘standard’ or ‘urgent’ authorisation processes. The deprivation of liberty safeguards set out that a ‘managing authority’ must seek authorisation from a ‘supervisory body’ in order to be able lawfully to deprive someone of their liberty. The managing authority in the case of a care home is the person registered, or required to be registered, under part 2 of the Care Standards Act 2000 in respect of the care home. The supervisory body will be the local authority for the area in which the person is ordinarily resident.
Local authorities acting as a supervisory body are responsible for considering requests for authorisations, commissioning the required assessments and, where all the assessments agree, authorising the deprivation of liberty. There are 6 types of assessment which must be carried out including a mental capacity assessment and a best interest assessment. The Deprivation of Liberty Code, which supplements the main Mental Capacity Act 2005 Code of Practice, provides guidance to authorising authorities as to how to consider applications. This code is issued in accordance with sections 42 and 43 of MCA 2005.
Primary mental health support services
The Mental Health (Wales) Measure 2010 (MHWM 2010) makes provision in relation to primary mental health support services. Part 1 makes it a legal requirement for local health boards and local authorities to work together to expand and strengthen mental health services at primary care level across Wales for people of all ages.
Under MHWM 2010, local mental health partners (local health boards and local authorities), must take all reasonable steps to agree a scheme for a local authority area which (1) identifies the treatment which is to be made available for the purposes of local primary mental health treatment and (2) which identifies how such treatment is to be secured. The local mental health partners must provide local primary mental health support services in accordance with the scheme for their area as agreed. Whilst local health boards and local authorities remain ultimately responsible for ensuring that primary mental health services are being delivered properly, services may not always be delivered by them but by local partners. Services can include counselling, stress and anxiety management, advice and support for managing conditions such as dementia and eating disorders etc.
Section 5 of the Measure provides that mental health assessments must delivered as part of local primary mental health support services. Such assessments are comprehensive mental health assessments for individuals who have first been seen by a GP, and for whom the GP considers a more detailed assessment is required, or who are referred through secondary mental health services.
Secondary mental health services
Part 2 of the Measure requires that all individuals accepted into secondary mental health services in Wales have a dedicated care coordinator and receive a care and treatment plan which is proportionate to their clinical need. Secondary mental health services refer to services provided to an individual for the treatment of their mental health, except those which are delivered as part of the General Medical Services contract.
Typically, secondary mental health services provide care and treatment for individuals suffering with more severe and/or enduring mental disorders where the level of need, risk and complexity requires the provision of specialist care. The services provided at secondary level will include services for individuals subject to the provisions of MHA 1983, inpatient hospital care, and community mental health teams for adults and older adults. Local authorities who are providing any secondary mental health services are required therefore to appoint care coordinators for persons in receipt of those services. Patients very often receive services from both their local health board and their local authority, therefore local authorities and local health boards are required to cooperate with each other to improve the effectiveness of mental health services to patients.
Part 3 of the Measure deals with adults who have been discharged from secondary mental health services but who subsequently believe their mental health is deteriorating to such a point as to require such care and treatment again.
Under Part 3 such persons have the right to refer themselves back to secondary services directly, without necessarily needing to first go to their general practitioner or elsewhere for a referral. Local health boards and local authorities are required to have arrangements in place to receive self-referrals of this kind, and to undertake timely assessments.