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:
- that he is suffering from a mental disorder of a nature or a degree which warrants his reception into guardianship under MHA 1983;
- 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:
- require the patient to reside at a place specified by the local authority
- require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training
- 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.
In accordance with The Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008 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
An approved Mental Health Practitioner (AMHP) is a professional approved by a Local Social Services Authority, in accordance with section 114 of the MHA 1983 and the Mental Health (Approval of persons to be Approved Mental Health Professionals (Wales) Regulations 2008 to carry out certain functions under the MHA 1983.
A social worker, nurse, psychologist and occupational therapist can be approved as an AMHP. In accordance with Regulation 3(1), a person may only be approved as an AMHP, if that person fulfils the professional requirements, is able to demonstrate that he or she possesses the relevant competencies and has completed a course for the initial training of AMHPs approved by Social Care Wales.
Under section 114A of MHA 1983, Social Care Wales may approve courses for persons who are, or wish to become, approved to act as AMHPs by a local social services authority. Social Care Wales may also carry out, or assist other persons in carrying out, research into matters relevant to training for AMHPs.
Under section 11 of the MHA 1983 an application for assessment, an application for admission for treatment and a guardianship application may be made by an AMHP or the patients nearest relative. However no such application can be made by an AMHP where:
- the nearest relative has notified the AMHP or the Local Social Services Authority they object to the application.
- the AMHP has not, as in so far as reasonably possible, consulted with the person appearing to be the nearest relative.
- the AMHP has not seen the patient within a period of 14 days ending with the date of the application
- there is a conflict of interest.
Section 13(1) of the 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. The AMHP has a duty to make an application where they are satisfied that such an application should be made; and are of the opinion having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper to be made by them.
Local Social Services Authorities should ensure that a 24 hour AMHP service is available to ensure that a nearest relative is not put in the position of having to make an application under the Act because an AMHP is unable to attend for assessment.
If the patient is detained under section 2 of the MHA 1983, 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 of the MHA 1983 is required.
The Mental Health Act 1983 Code of Practice for Wales provides guidance with regards to undertaking functions and duties under the Act.
Social reports and visits
Local social services authorities also have functions under section 14 of the (MHA 1983) in relation to social reports of patients admitted to hospital 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 for the purposes of the statutory provisions relating to compulsory admission and reception into guardianship under the MHA 1983. 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 MHA 1983 imposes a joint duty on local social services authorities and LHBs 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,
- admitted under a hospital order made under section 37,
- transferred to a hospital under a hospital direction made under section 45A or a transfer direction made under sections 47 or 48 of the 1983 Act.
Social services and LHBs should establish jointly agreed polices on providing after-care services. After-care services are services which have the purposes of meeting an assessed need arising from, or related to, the person’s mental disorder. These services are aimed at 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. After-care services 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 LHB 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 the 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 or arrange care services in the form of residential accommodation in a care home or equivalent. 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 National Health Services and Community Care Act 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 (DoLS)
Under the 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.
The DoLS provide legal protection for those vulnerable people who are or may become deprived of their liberty in a hospital or care home whether placed under public or private arrangements. Deprivation of liberty in any other setting would only be lawful if it were a consequence of giving effect to an order of the Court of Protection on a personal welfare matter, in accordance with the provisions of the MCA 2005. The DoLS do not apply to people detained under the MHA 1983.
Schedule A1 to the 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 provide for deprivation of liberty to be made lawful through ‘standard’ or ‘urgent’ authorisation processes. The DoLS 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 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 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 of Practice, which supplements the main Mental Capacity Act 2005 Code of Practice, provides guidance to authorising authorities as to how to consider applications.
Primary mental health support services
The Mental Health (Wales) Measure 2010 (the Measure) makes provision in relation to primary mental health support services. Part 1 makes it a legal requirement for LHBs 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 the Measure, local mental health partners (LHBs and local authorities), must take all reasonable steps to agree a scheme which secures the provision of primary mental health support services for the local authority area. The scheme established under section 2 will set out the arrangements for the service, including the type and extent of the local primary health treatment that will be made available as part of the service, and which partner is responsible for different aspects of the service. The local mental health partners must provide the local primary mental health support services agreed in the scheme for their area. Whilst LHBs 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. The Mental Health (Care Co-ordination and Care and Treatment Planning) (Wales) Regulations 2011 make provisions about the care co-ordination and care and treatment planning for patients using secondary mental health services.
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 and/or as part of a scheme for the provision of primary mental health services
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 LHB and their local authority, therefore local authorities and LHBs 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 this part 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. LHBs and local authorities are required to have arrangements in place to receive self-referrals of this kind, and to undertake timely assessments.
The Code of Practice to Part 2 and 3 of the Mental Health (Wales) Measure 2010 provides guidance to mental health service providers, including local authorities, in respect of meeting their obligations under the measure.