In the UK, if you are detained under the mental health act against your will, you have the opportunity to appeal your detention. You’ll be appointed a solicitor and they will listen to your instructions and help you argue that you shouldn’t be detained because either your problems aren’t of a nature or degree that require compulsory treatment and/or that detention isn’t required to protect your health, your safety or the safety of others. Your solicitor might get some independent experts in if they can help with your case. An example might be bringing in another psychiatrist to say that your doctor has got your diagnosis all wrong and that the treatment you’re being offered looks nothing like what you’re supposed to get.
I’ve written in the past that I really enjoy doing tribunals. I think the reason I enjoy them is that they help me feel very effective in my work. So far, every person I’ve done a report for is someone who did risky things in the community, does near lethal things in a restrictive environment, has a care plan that looks nothing like what quality care is supposed to look like and is being kept in an environment where they have been the most dangerous to themselves ever. The plan is to keep them in this environment until they stop doing the things they only do in this environment. I’m very fortunate in that every tribunal panel I’ve presented this argument to has discharged the person appealing their detention. Now in some ways, this isn’t the typical role of an occupational therapist. In other ways you can argue that making sense of peoples actions and the way the environment influences their functioning is as OT as you can get.
I got into this because after bleating about the injustice of prolonged detention for those given a ‘personality disorder’ diagnosis, a relative of someone detained contacted me and asked if I could help. I think it would be fair to say that this relative was tenacious, driven, and exceedingly goal directed when pursing the best care for their offspring. They persuaded their daughter’s solicitor to talk to me and after that conversation I was instructed to do a report and come to a tribunal. The appeal was won and the barrister and solicitor involved were kind enough to say that my evidence was a significant factor.
I waited to be rushed off my feet with similar invitations but nothing came. After about six months I got a call from a different firm of solicitors. The barrister I’d worked with had recommended me and on that basis, I did some work for that firm and eventually another again, after being recommended by the barrister. I’ve done multiple reports for these firms now and because there are so many young women detained in private hospitals offered nothing like a specialist service, they keep being discharged from their sections.
In some ways I’ve been slightly frustrated that I don’t get to work outside of the 2 solicitors that use me regularly, but a part of me just assumed that this is how the tribunal system works, that different solicitors have experts that they use regularly and in some ways it’s luck whether or not you get ‘found’ by other companies.
This assumption was challenged this week. Once again I ended up talking to someone who had a relative detained in a private hospital. To make sure they don’t end up paying me anything out of their own pocket, I always advise them to talk to their relative’s solicitor and they can then instruct me under legal aid if it’s agreed I might be helpful. I had a chat with their solicitor and I outlined what I’ve done in the past and how my areas of knowledge might influence a decision to continue or cease someone’s detention. Once we’d agreed I might be helpful we came to the assumption rocking bit. We talked about how it was easy to apply for funding to get an independent medic, psychologist or social worker, but it was hard to work out how had solicitors justified getting funding for an OT report in the past. While I’d known my work in this area was relatively novel, I hadn’t realised the hoops solicitors had had to jump through to be able to get me involved. Those I’d previously worked for had either had a desperate parent or a Queens Council barrister pushing for me to be involved. It was only when speaking with someone outside of those influences that I realised that it wasn’t that having an OT involved was novel, it was like it couldn’t be contemplated. There seemed no obvious way to get a legal aid panel to possibly sanction the involvement of a profession so obviously distanced from the tribunal process.
It had never occurred to me before that my profession was ostensibly so irrelevant for establishing whether someone met the criteria for involuntary detention under the mental health act. I’ve nothing against the solicitor I was talking to here, they were just really helpfully reflecting the impact OTs have had on this process so far.
As you might have suspected, I’m going to suggest that we have a lot to add to this area. We help people with what they want and need to do, we look at the skills they have to do it and we look at how the environment supports or hinders them doing this.
““Nature” involves a longer-term view of the condition: it can involve a consideration of whether the patient, if discharged, would be likely to relapse in the near future. For “nature” you can consider issues such as insight into the need for treatment in the future”
We can have a view on this. We can consider not just the person but the physical and social environment around them. We can also consider whether the ‘nature’ of the difficulties might make detention inadvisable. A history of being made powerless and hurt by people who were supposed to care for you may mean that prolonged detention in a place where you are powerless and don’t trust those around you might not lead to life feeling jolly.
“Degree” refers to the severity of the condition at the time of the hearing
Again, we can have a view on this. Are things so bad that someone should be detained against their will? Can they function? If not, why not? A really useful thing for us to have a view on might be “have changes in the physical and social environment resulted in an increase in severity?”. I’m not seeing other professions answer these questions, but those professional’s views impact on whether our clients live lives behind locked doors or in their own homes. Surely we have relevant things to say about this?
Danger to health, self or others
Because we are talking about the actions people take I think again, we can put forward a view on this. We can differentiate between self harm with a clear rationale and actions aimed towards dying, we can explore what has led to violence in the past and whether the circumstances will be the same in the future. We can bring a clear understanding of why people do what they do that is more useful than “because they are ill”. A good read of anything by Rebecca Twinley will help a lot with this.
I almost wrote that if we don’t get vocal about occupations that result in harm, we make ourselves irrelevant in this area. Because of my experiences this week I need to write “we will continue to be seen as irrelevant in this area”. Then I start thinking about NICE not wanting OTs on the committee to review NICE guidelines and I start to feel despondent…
Anyway, if nothing else, being locked in a hospital has a pretty hefty impact on someone’s ability to function so if we are working with people who are detained, we need to be pretty certain that this restriction is in their best interests.
I’m pretty sure that once I post this, someone will comment that it’s awful we don’t get invited to submit reports for tribunals. It is awful, and we can’t wait to get invited.
If this sounds like something that might interest you, try to push against the idea that the intervention of detaining someone in hospital is the domain of other people. Express a view. When people involved in the tribunal are around, give them your opinion. Ask to sit in on a tribunal – they can be scary places but much of that is due to it being unfamiliar. Listen to how experts are questioned. Consider how you might answer these questions. Wonder if the perspective of your profession might add something to the debate. If you come to the conclusion that your profession has nothing to say that is relevant to these proceedings, have another think.
Let your patients know that you have something to say that might help. Encourage them to ask their solicitor to contact you (this has never worked for me). In the past I have contacted solicitors of patients and suggested they ask me to attend the tribunal. It’s generally not something that makes you popular with your colleagues, but if you think detention is harming someone, you don’t really have many other options.
The next step, getting solicitors to request your input as an independent expert, is a lot harder. At present I think many will think of us as irrelevant. We need to combine a stronger presence within this process with some assertive marketing around what we can do. No one will do this for us. If this is an area we should be involved in (and interested to hear from those who think we shouldn’t), then we need to get in there and show our worth.
As I’m writing this I’m waiting for a tribunal to start. I know that in an environment where guidelines exist describing good practice around medication, a psychiatrist is going to assert that as a non medic, I cannot have an opinion on practice that beaches that guidance. Lets see how that goes…
Many thanks to twitters @asifAMHP for looking over this for me. He is a MHA guru