Should clinical psychologists as

					Should clinical psychologists assume legal
   responsibility for detained patients?
              -A short history

               Mental Health Act Day
                   23rd October 2009

                   Bruce Gillmer

            Consultant Clinical Psychologist

               Lead: non-medical field test
         Northumberland, Tyne & Wear NHS Trust

            Chair: BPS Working Party on MHA
       How the non-medical Approved Clinician roles
                    were introduced

• England & Wales Mental Health Act 1983 (as amended by MHA 2007):
   – Extended roles
       •   Distributed responsibility
       •   In capability-based teams
       •   Providing for efficient & effective
       •   Pt-centred care, choice & participation

• Legal cornerstone of the Government Health policy
   – ‘New Ways of Working’

• New extended role: ‘non-medical’ Approved Clinicians (AC)
   – assume overall responsibility
   – for appropriate patients
   – allocated to them
       The concept of ‘Non-medical’ Responsible

• A statutory function,

• Existing, demonstrable, professional capabilities

• Not assuming the competencies of a psychiatrist

• Eligible, Approved professionals
   – have ‘objective medical expertise’

• Carry all of the responsibilities
   – for which they have competence

• Bring a distinctive perspective to the patient’s care
The Issue of ‘Objective Medical Expertise’

 • Does MHA 2007 comply with the European Convention on
   Human Rights (ECHR)?

 • The parliamentary Joint Committee on Human Rights
   (JCHR): MHA 2007 is not compatible with ECHR
    – because of anomaly

 • Government: Renewal of detention need not be medical
    – as required by the ECtHR following Winterwerp v Netherlands.
BPS Legal Opinion from Richard Gordon, QC
 •   The MHBill (primary binding legislation): competency v qualifications

 •   AC Directions (‘Approvals’) (secondary regulatory legislation)
      –   defines persons
      –   includes persons without medical qualifications

 •   Approvals also define ‘relevant competencies’
      –   without which approval will not be given

 •   The effect of MHBill :
      –   a person other than medical practitioner
      –   with competence , hence, approved by the Secretary of State
      –   would possess statutory powers under MHB

 •   The Joint Committee on Human Rights (JCHR) ignores
      –   relationship between MHBill and competencies in AC Directions

 •   Varbanov vs. Bulgaria : objective medical expertise
      –   is not = medical qualification

 •   Substance (medical competence) over form (medical qualification)

 •   Objective medical expertise = competencies in the AC Directions

 •   MHB 2007 & therefore amended 1983 Act is ECHR compliant
     For which they have the relevant competence?

• What is ‘medical treatment’?

• What is the ‘appropriate medical treatment test’?
   – ‘That is available’?

• What does it mean to ‘ensure that the patient’s RC is the
  available AC with the most appropriate expertise to meet the
  patient’s main assessment and treatment needs’?

• Functions, capabilities and competence
                      Medical treatment

• …includes nursing, psychological intervention and specialist
  mental health habilitation, rehabilitation and care.

• Medical treatment for mental disorder means medical treatment
  which is for the purpose of alleviating, or preventing a
  worsening of, a mental disorder or one or more of its
  symptoms or manifestations.

• Purpose is not the same as likelihood.

• It should never be assumed that any disorders, or any patients,
  are inherently or inevitably untreatable

                                     Code of Practice pp55-6
                   Appropriate treatment test

• To ensure that no-one is detained unless they will actually be
  offered medical treatment for their mental disorder

• This medical treatment must be appropriate,
   –   taking into account the nature (type & history)
   –   and degree (current status) of the mental disorder
   –   and …all other circumstances
   –   Must be for purpose of alleviation/ prevention of deterioration

• Requires a judgement about whether
   – an appropriate package of treatment is available
        • In the hospital where detained (or in community under SCT)
   – Need not be the most appropriate treatment ideally available

• May consist only of nursing and specialist care under the
  clinical supervision of an AC in a safe and secure therapeutic
  environment with a structured regime
   Hospital managers should …ensure that the Pt’s RC is the
available AC with the most appropriate expertise to meet the pt’s
              main assessment & treatment needs

• Selection of RC based on individual patient needs
   – eg psychological therapies & RC with particular expertise
   – But see BPS interim guidance

• Needs do change over time…
   – Keep appropriateness of RC under review
   – Balance this with continuity and pt knowledge

• Where RC qualified wrt pts main needs but not with subsidiary
  treatment (eg medication)
   –   RC has overarching responsibility for case
   –   Appropriate professional (AC) takes responsibility for intervention
   –   RC must be kept informed
   –   Second opinion (local procedure) if unresolved differences
 Functions, capabilities & competence

• The AC/RC is a function, not a post

• Psychologists will be bringing existing demonstrable
  professional capabilities to that function

• A psychologist (or other non-medical AC) is not assuming the
  competencies of a psychiatrist, but is taking on a previously
  reserved function

• In practice, will assume all of the responsibilities, associated
  with that function, for which that psychologist has competence
 Distinctive Contributions of Applied Psychologists
• Formulation cf. diagnosis and categorisation – consistent with new
  MHA 2007 definition of mental disorder (‘… any disorder or
  disability of mind’)

• Collaborative and shared understanding approach to formulation
  and treatment is fundamental to psychological therapy

• Strong evidence base for effective psychological interventions

• Skills in work with developmental disabilities and PDs
   – Also eating disorders; CAMS

• Skills in systematic and reliable approaches
   – to risk assessment and management

• Skills in managing behavioural problems and contingencies
   – (cf. SCT)
Idealised ‘capable team’ needs-led service provision

Medium secure         = mental disorder needs      Psychiatry

Enhanced low-secure       = criminogenic            Psychology

        Low secure          = PD/ cognitive          Nursing

          Pre-discharge     = habilitation needs        OT

                Community       = supervised treatment Social work
       Clinical leadership within a multi-disciplinary team

                     Consultant Clinical Psychologist
                         Responsible Clinician

                                                        (CBT specialist)
Psychiatrist          Patient in enhanced low secure:
Approved Clinician   psychological programme delivery     Psychiatrist
(medication)                                               therapist)

                         My service

• Action learning set
   – Most senior eligible nurses & psychologists
   – Forensic LD & LD: single site
   – Intensive CPD- curriculum informed; based on self
     assessment (New Roles)
   – Portfolio developed
   – Pre-approval scrutiny
   – Approval.



                 Habil                           Women
Pre-disch                           OA L/S
                  L/S                             L/S


  MIND THE GAP                          MIND THE GAP
                      Sequential progress in Trust

•   July 2007 MHA receives Royal Assent
•   January 2008 NTW Trust approves non-medical field test
•   March 2008 learning set identified by Field Test Working Group
•   April 2008 initial learning set convenes
     – Identifies competency deficits to inform intensive CPD
     – CPD through action learning model (June 2008 onwards)
•   November 2008 MHA implementation
•   December 2008 NEERAP accepts non-medical approval responsibility
    & appoints 2 learning set members to Panel
•   June 2009- preparation of portfolios for submission underway
•   July-September 2009 Approval & Deployment Plan approved
     –   By Directorate: Operational Management Group (OMG)
     –   By Senior Management Team (SMT)
     –   By Mental Health Legislation Committee
     –   By Board
•   December 2009 ‘initial training’ for learning set
•   January 2010 submission to NEERAP for approval
•   Process of deployment as RCs commences