Mind, 'Legal Newsletter' (March 2018)
Legal newsletter This newsletter contains news under the following headings: (1) Brick by Brick; (2) Chief Constable of Norfolk v Coffey UKEAT/0260/16/BA; (3) DL-H v West London Mental Health Trust & Another [2017] UKUT 387 (AAC)M; (4) JMcG v Devon Partnership NHS [2017] UKUT 348 (AAC)M; (5) Mind research - the impact of legal aid cuts on people with mental health problems; (6) Leaving hospital; briefing on discharge from mental health inpatient services; (7) Monitoring the Mental Health Act: 2016/17.
Newsletter
The text is reproduced below.
Brick by Brick
In 2017 the Research and Evaluation team here at Mind reviewed over 200 articles and reports about housing and mental health. They also conducted 21 in-depth interviews with people with a wide range of mental health problems and different housing situations. The result of their findings was Brick by Brick, a review of mental health and housing. It explores the issues under 6 headings which include: -
Housing quality and neighbourhood
There is a strong association between bad housing and poor mental health, particularly in children. Problems with mental health can persist even after someone moves out of bad housing. Conversely good quality housing is key in maintaining good mental health. There is a particularly strong evidential base for the negative impact of damp, cold and mouldy property on people’s wellbeing. Overcrowding and the general characteristics of a neighbourhood are also issues which have an effect on mental health. Many of these housing problems do have solutions with energy efficiency initiatives and smart housing design having a part to play.
Accessing accommodation
Everyone knows there is a housing crisis with high quality housing in short supply. Less well known is the fact that this crisis hits those with mental health problems particularly hard. They are at a disadvantage in being allocated social housing because they are assessed by local authority staff or contractors with no mental health expertise or training and their vulnerability is often downplayed to deny them housing. The process of applying for housing can be a bewildering and stressful process and vulnerable people are given very little effective support in navigating the system. The private rented sector has the highest concentration of poor housing. ‘Slum landlords’ exploit the vulnerable who have little or no power to challenge them. Additionally people with mental health problems face outright discrimination with some landlords refusing to let to them. There is often no security of tenure in this sector, with landlords able to terminate tenancies simply by serving a notice.
Moving and losing a home
People with mental health problems are much more likely to move home than those with physical problems or no health problems at all. There are complex reasons for this including the fact that they are more likely to live in sub-standard accommodation which in itself makes them more likely to move. Residential instability can itself have an effect on mental health impacting likelihood of experiencing crisis, suicidal behaviour and life expectancy. People with mental health problems are more likely to be evicted from their home. This can be for financial reasons or relate to disproportionate anti-social behaviour enforcement. Some people with mental health problems can get caught up in a cycle of eviction where they are evicted, present themselves as homeless, are rehoused in temporary accommodation, get evicted etc. Eviction can cast a heavy shadow. Even for people who do not get evicted, the threat of it can impact significantly on their wellbeing, and people living in areas where there are high levels of eviction feel an impact. A high proportion of homeless people have mental health problems particularly personality disorders and psychosis. Homelessness can exacerbate these problems.
Conclusion
The overall picture is unsurprisingly complex. The impact of stigma, a lack of financial security, poor quality accommodation or the sheer shortage of available housing, and the barriers that exist to getting advice and support can have a devastating impact on mental health. Together they are creating a toxic environment which is having a disastrous long-term impact on some of the most vulnerable people in our society.
Chief Constable of Norfolk v Coffey UKEAT/0260/16/BA
An employer directly discriminates against a non-disabled job applicant if it rejects them because it believes their condition could develop into a disabling condition
The Claimant was a serving police officer in the Wiltshire Constabulary. When she applied in 2011 it was discovered that she suffered from bilateral mild sensi-neural hearing loss with tinnitus. Home Office Medical Standards for Police recruitment set a standard for hearing loss which the Claimant fell outside of. The Guidance to these standards suggested that if the hearing loss was only below standard in one ear or if it was a borderline test then consideration should be given to a practical hearing test to assess functional disability. If both ears were below standard the Guidance only suggested that the candidate was ‘unlikely to be suitable’.
The Claimant undertook a functional hearing test which she passed and was appointed as a constable.
In 2013 she made an application to the Norfolk constabulary which was accepted subject to a medical test. A medical advisor stated that she had hearing loss ‘just outside the standards for recruitment strictly speaking’. He noted that she was undertaking a police role without undue problems and recommended an ‘at-work’ hearing test. However, Norfolk Constabulary sought clarification from another medical advisor who observed that the 2011 and 2013 audiogram tests were very similar. The Claimant was not offered an individual assessment and her application for a post with Norfolk was rejected.
The Claimant herself did not consider herself a disabled person and made a claim of discrimination on the basis of a perceived disability. At the Employment Tribunal the Acting Chief Inspector who had made the decision to reject the Applicant gave evidence that she did not perceive the Claimant to be disabled. However, she gave evidence of the austere circumstances in which the constabulary was operating and said that “To knowingly risk increasing the pool of restricted officers who did not meet the nationally published criteria” was not consistent with service delivery.
The Employment Tribunal found that the Norfolk Constabulary had discriminated against the Claimant on the basis of a perceived disability. The Employment Appeal Tribunal (‘EAT’) agreed.
Discussion
Section 13 of the Equality Act 2010 sets out a definition of direct discrimination wide enough to encompass discrimination on the basis of a perceived characteristic. If an employer rejected a white man’s application for a job wrongly believing he was black that is direct discrimination. Similarly you don’t have to be disabled to claim direct disability discrimination.
However, perceived direct disability discrimination is not as straightforward as perceived direct discrimination on grounds of other protected characteristics such as race, sex, age etc. A prospective employer probably does not have much knowledge of the definition of disability under the Equality Act 2010 when it makes its recruitment decisions. A recruiter probably does not apply his or her mind to whether an applicant has an impairment that has a substantial and long-term adverse effect on his abilities to carry out day-to-day activities. So how can it be said that an employer perceives that a non-disabled person has a disability?
The EAT in Coffey said that whether or not an employer has directly discriminated against a person will not depend on whether it perceives that person to be disabled as a matter of law and therefore does not depend on knowledge of disability discrimination law. It will depend on whether the employer perceived that person ‘to have an impairment with the features which are set out in the legislation’.
What the EAT in Coffey decided is that it is direct discrimination if an employer knows that someone has an impairment, doesn’t believe that it currently amounts to a disability but perceives that the impairment could well have a substantial long-term impact in the future.
Relevance to mental health
A disability can be a physical or a mental impairment. But judging whether a mental impairment amounts to a disability is more difficult than with physical ones. Mental health problems can be fluctuating in nature, unpredictable in how they manifest themselves and have a high-level of interactivity with environments like a workplace.
Employers may make judgments about workers, for example thinking that someone who has problems with depression or anxiety won’t be up to the rigours of a stressful job. People miss out on jobs and promotions and might be unable to say with confidence that they are currently disabled. However, a view by an employer that someone won’t be up to the rigours of a stressful job could well amount to discrimination by perception.
Coffey was an employment case and this article has spoken so far about ‘employers and employees’. But there is no reason why this case could not apply to the other areas in which the Equality Act 2010 applies. Coffey might prove useful in proving that an insurer who declines to offer cover to someone who they judge will present a risk of making a claim in the future has discriminated by perception, for example.
DL-H v West London Mental Health Trust & Another (2017) UKUT387 (AAC)
A patient was detained on a section 37/41 since 2006. He had been diagnosed with schizophrenia and personality disorder. He applied to the First-tier Tribunal who decided that he should remain in hospital.
The patient appealed to the Upper Tribunal but it was dismissed.
The patient said that he was expressing religious beliefs which weren’t a mental disorder and the hospital chaplain was a witness to support his case. The Upper Tribunal said that when they are deciding whether a patient is expressing religious beliefs or mental disorder, a tribunal can consider evidence from both religious and medical experts. The Upper Tribunal can only consider whether there is an error on a point of law but this assessment of evidence and finding of fact was a matter for the First Tier Tribunal. The judge confirmed that there is no rule of evidence that only a religious expert’s evidence is admissible on issues of religion.
A tribunal doesn’t have to agree with all of the evidence but it must have good reason not to. It is allowed to use its own expertise to make a different diagnosis from those of the medical witnesses, provided it allows the parties a chance to make submissions and explains its decision.
JMcG v Devon Partnership NHS (2017) UKUT 348
The mental health tribunal cannot defer a patient’s discharge to a date after their renewal.
JMcG was transferred from prison to hospital under section 47 of the Mental Health Act 1983 (MHA). After the expiry of his sentence he applied to the tribunal for discharge. He requested that his discharge be deferred under section 72(3) to allow an appropriate aftercare package to be put in place, including the suitable accommodation.
JMcG’s application was refused, the tribunal finding that the statutory criteria for detention were met. The tribunal noted in the decision that JMcG’s detention period was due to expire 3 weeks after the hearing (absent being renewed by his Responsible Clinician) and that that period ‘would not be long enough to wean him from Diazepam and nor would it be enough time to give the best opportunity of finding appropriate discharge accommodation nor to reintroduce him to the community by way of controlled leave’.
JMcG appealed to the Upper Tribunal on the grounds that:
The tribunal had misinterpreted the law by holding itself as being unable to defer a patient’s discharge at a date beyond the date of renewal The tribunal had failed to give adequate reasons for why the statutory criteria for detention were met. The Upper Tribunal held that the tribunal did not in fact assert that discharge could not be deferred beyond the date of expiration, but that, though obiter, it could not. To order discharge at a later date would effectively extend the period of authorisation: a power which the Act does not provide the tribunal.
Judge Knowles QC noted that the power to defer a discharge is usually used where the tribunal considers that the patient ought to be discharged but that adequate aftercare arrangements have not been made. In such cases an application for an adjournment could be made instead. The Upper Tribunal cited the following passage from R (Ashworth Hospital) v MHRT [2002] EWCA Civ 923M:
"If the tribunal had any doubt as to whether such services would be available, they should have adjourned to obtain any necessary information. I regard the alternative of a deferral…as less satisfactory … if the tribunal is in doubt as to whether suitable after-care arrangements will be available, it is difficult to see how they can specify a particular date for discharge. In cases of doubt, the safer course is to adjourn…"
Patients whose hearings are scheduled relatively close before their renewal date will need to consider whether they are in a position to argue for their immediate discharge or whether they will need to apply for their hearing to be adjourned beyond that date. Applications should be made in advance of the hearing where possible and specify directions sought in relation to aftercare arrangements.
Mind research - the impact of legal aid cuts on people with mental health problems
‘An unjust system?’ shows that 50% of people who don’t get legal aid because of LASPO have mental health problems.
Mind has long been concerned that legal aid cuts have a particularly negative impact on people with mental health problems. We believe that people with mental health problems are more likely to have legal problems, more likely to need legal aid, and that the impact of not getting it will be particularly serious.
Now we have that evidence in ‘An unjust system’? So what does it say? It confirms that people with mental health problems are more likely to have experienced legal problems – 52% compared to 27% of those without mental health problems. It confirms that people with mental health problems are likely to have morelegal problems – almost 1 in 4 will have experienced 6 or more legal complaints compared to 8% of those without. It confirms that people with mental health problems are more likely to be financially eligible for legal aid – 36% of eligible respondents had mental health problems compared with 15% of those who were not eligible.
The key finding from the research is that 49.6% of financially eligible people whose legal problem was removed from scope by LASPO had a mental health problem, whereas 18% of the survey respondents as a whole reported a mental health problem. The Government needs to be aware that the cuts are hitting people with mental health problems particularly hard.
This research comes at a crucial time. Criticism of LASPO is widespread and compelling. The Government has committed to conducting its post-legislative review of LASPO, though the summer deadline appears to be slipping. We hope that the review will focus on the impact of the cuts on the most vulnerable, including the case studies that we are releasing with the report.
The research is due to be published imminently. See here for our key findings. A link to the full report will be there shortly.
Leaving hospital; briefing on discharge from mental health inpatient services
We have produced this briefing which sets out some of the guidance and standards about discharge from hospital and looks at whether this is happening in practice. The results are based on Mind’s own 2017 survey into the experiences of leaving hospital of 1,221 people. NICE guidance, for example, says that hospital should start discharge planning as early as possible, preferably on admission, and to do so collaboratively. However, 31% of survey respondents were not involved in their care planning and 23% were unaware of any plan.
Again, NICE guidance says to give 48 hours’ notice of discharge whereas a third of respondents received less than that and one in five was given no notice at all. These are just 2 examples of NICE guidelines not being followed and putting recovery at risk and possibly leading to further crises, readmissions and even suicide.
The briefing does, however, give examples of some NHS mental health trusts delivering some outstanding patient-centred care around discharge showing what can be done even in the context of the huge pressure that NHS and local authority mental health services are operating under. Mind is calling on every crisis care concordat partnership, CCG and mental health trust to review discharge practice and provision and ensure that everyone leaving hospital gets the right care and support.
Monitoring the Mental Health Act: 2016/17
The CQC’s annual report published in February. The news? Detention rates up, collaborative care planning down.
In their annual report on the usage of the Mental Health Act (MHA) the CQC provides a range of useful statistics as well as commentary on issues that continue to cause them concern.
The unsurprising headline: detention rates under the MHA continue to rise, with the total number of detentions in hospital at 63,622 in 2015/16, up from 58,399 in 2014/15. Pulling from its report in January this year the CQC suggests eight possible reasons, all of which are likely to be at play to a degree. The report also flags a change in the way MHA data is collected which is likely to result in some unreliability in 2016/17 figures.
There are a number of areas of concern raised in the report, but the one I want to focus on here is the lack, and potentially decline, of collaborative care planning, and steps that can be taken to address this. First of all, some troubling statistics:
- 32% of care plans reviewed showed no evidence of patient involvement. This was 29% last year.
- 17% showed no evidence of consideration of the patient’s particular needs. This was 10% last year.
- 31% showed no evidence of the patient’s views. In 2015/16, 26% had not been recorded.
While a lack of evidence does not necessarily mean these things are not being done, in the CQC’s 2017 Community Survey 24% of patients similarly reported not being involved in their care planning. The CQC note that ‘in every report since 2008, we have highlighted difficulties with care planning processes for people subject to the MHA.’ Given the lack of improvement over this time the CQC pins its hopes on the Independent Review of the Mental Health Act, due to publish its interim report shortly. On care planning the CQC suggests that:
‘… statutory duties (including duties to record or follow specific processes, or duties on managers to make sure that they take place) may provide an additional lever to effect change.
Opinion
There is a clear need for a statutory framework for care planning for those subject to the MHA. Lessons can be learnt from the relatively recent introduction of the Care Act 2014. Despite its imperfections, what that Act gives you are clear processes for assessing needs, deciding how those need will be met and the provision of any necessary support. The process places clear duties on local authorities to assess, inform and involve, all of which are enforceable.
While the MHA provides a detailed framework for when and how people with mental health conditions can be admitted to hospital involuntarily and when they must be discharged, it is pretty quiet about what happens to them once they are there.
Why the stark difference between the two regimes? People subject to the MHA have a range of needs which should be assessed and met, in the method of their choosing where possible, and involving the people they wish to be involved. While a statutory framework under the MHA would need to differ in a number of ways from that under the Care Act, having a statutory framework allows us to consider what needs to be included. It could provide a way for views to be sought and recorded, in advance and at the time; for decisions on capacity to be made explicit; for the ability to challenge individual bits of your care plan; for discharge planning to start in a timely manner, and a whole host of other things.
Without this the MHA will remain a very one-sided instrument where once you’re in you’re in and you get what you’re given. This power imbalance has to be a focus for the Independent Review.