Our speakers looked at the legal framework for maternal mental health issues, the obstetrician’s perspective & the psychiatrist’s perspective.
Rebecca Fitzpatrick, Partner, Browne Jacobson
Rebecca is one of the leading national specialists in mental health law, with 20 years of experience in the field including work in relation to the Mental Health Act, the Court of Protection (mental capacity issues), the High Court (complex treatment cases, e.g. involving children), the Administrative Court (judicial review, human rights and community care issues) and the Coroner’s Court. She sits as a fee-paid First-Tier Tribunal judge (mental health) and also regularly lectures in the above areas of law to a range of professionals, including the Royal College of Psychiatrists.
If P is over 16 and
There will be a deprivation of liberty
If they are not MHA detained, a DoLS authorisation (or when they come in LPS authorisation) will need to be considered/obtained.
Black v Forsey  SLT 57 (HL Scottish case) confirmed that a common law power exists of a private individual to detain in a situation of necessity, a person of unsound mind who is a danger to himself or others.
R v Bournewood NHS Trust Ex parte L (1998) HL confirmed the existence of a common law limited power to detain:
“The common Law permits the detention of those who were a danger or potential to themselves or others, in so far as this was shown to be necessary”
These common law powers cannot be used as an alternative to the MHA if that is the appropriate framework. However, they can be used for a short period where the persons with the appropriate MHA powers are not immediately available.
NHS Trust & Ors v FG  EWCOP 30
Keehan J gave guidance as to when and how applications should made to the Court of Protection where a treating Trust is concerned that pregnant woman lacks, or may lack, the capacity to take decisions about her antenatal, perinatal and post-natal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from a diagnosed psychiatric illness.
Held that even where P is MHA detained, in some rare cases where there is likely to be deprivation of her “residual liberty” during the delivery, may need to apply for a court order.
97. "The Trusts must, therefore, plan how P is to receive obstetric care in sufficient detail to identify whether there is potential for a deprivation of liberty to arise. When trusts identify there is a real risk that P will suffer an additional deprivation of her residual liberty during transfer to and from the acute hospital and/or when present at the acute hospital, the Trusts must take steps to ensure the deprivation of liberty is authorised in accordance with the law”
98. Where the Trusts identify there is a real risk that P will suffer a deprivation of liberty in these circumstances it is for them to decide whether the same is achieved by a standard authorisation under schedule A1 of the MCA, by an application to the court or under another lawful jurisdiction.
If the intervention proposed is likely to amount to "serious medical treatment" within the meaning of COP PD 9E, irrespective of whether obstetric treatment might otherwise be provided under the MCA or MHA, (including, specifically, when caesarean section - if the merits are finely balanced - is proposed or where a proposed caesarean section is likely to involve more that transient restraint) or,
The matter should be referred to the court.
United Lincolnshire Hospital NHS Trust v CD  EWCOP 24
The Trust sought and was granted anticipatory and contingent declarations, allowing for interventions (including those amounting to a deprivation of liberty) to take place in the event that CD lacked the relevant decision-making capacity.
However – word of caution – recent case Lieven J (written judgment awaited) refused to grant such an order and felt mixture of MCA and common law powers sufficient – full judgment awaited – these cases are dependent on the facts of the individual case and in this case the mother whilst still capacitous had been fully involved in care planning and agreed to the care plan.
“Mental health unit” means—
The Act sets out requirements in relation to the use of restraint and recording in relation to the same and comes into force in March 2022.
This will only be an option if the Trust is registered with the CQC for the regulated activity of “Assessment or medical treatment for persons detained under the Mental Health Act 1983”
This regulated activity only applies to the use of the Mental Health Act in hospitals, rather than its use in any other setting, so it does not apply to locations that are not hospitals. It does not apply to prisons, community or residential treatment settings for substance misuse or community-based mental health services.
This regulated activity includes the use of short term, emergency holding powers under Section 5 of the Mental Health Act. It therefore also applies to hospital services other than specialist mental health inpatient services, such as acute hospitals, where the Mental Health Act could be used to detain patients for short periods under temporary arrangements.
Kara Dent, Consultant Obstetrician, Clinical Director for Obstetrics, UHDB Foundation Trust
Kara is a Consultant in Obstetrics with over 20 years of experience in High Risk Obstetrics and Fetal-Maternal Medicine and a special interest in diabetes in pregnancy. She is Clinical Director for Obstetrics at University Hospitals of Derby and Burton NHS Foundation Trust (UHDB). She spoke about her experience of treating patients with mental health issues and set out a case study in some detail (not repeated here).
Mental health is a very current issue in Obstetrics and is being recognised by recent MBRRACE reports on maternal deaths. It attributes around 13% of maternal deaths to this cause – suicide being the leading cause of direct deaths within the year after delivery (from 6 weeks to 1 year postpartum).
There is a lot of work being done nationally to develop and fund better services for these women in their pregnancies and post-partum to reflect this.
Whilst Obstetricians recognise that the fetus, whilst in utero, has no legal rights of its own, they are looking after a woman and her potential baby with a duty of care to both. Kara explained that mental health is an area that may not be well understood to obstetricians as a profession so they welcome sessions such as these to understand the legalities and practicalities in looking after these women in a combined approach. There is a recognition that potentially difficult cases require a lot of forward planning in the antenatal period and discussions with colleagues in the mental health services to help protect these women and their babies in a safe environment.
Kara set out a case study where a woman in the late stages of pregnancy was admitted on labour ward and had become very agitated. She needed restraint to protect her and others on the ward. It was obvious the labour ward was not the right environment for her.
She talked of the frustrations of trying to understand what information the mental health team needed in order to make the appropriate decisions to help this patient and transfer her to a safer environment. She also explained how it had highlighted gaps in knowledge from an obstetric perspective of how obstetricians can support sectioning women when it is required.
Dr Sally Arnold, Perinatal Psychiatrist, Midlands Partnership NHS Foundation Trust
Sally is a general adult psychiatrist who has a special interest in perinatal psychiatry. She is due to take up a consultant post on the mother and baby unit in Staffordshire next month. During her training she has had an interest in psychiatry for women and the impact obstetric and gynaecological conditions can have on a woman's presentation. This has included publications in PMDD, posters at international conferences on substance use in pregnancy, an interest in gender dysphoria and undertaking a diploma in obstetrics and gynaecology. Currently Sally is undertaking a masters in medical ethics and law. She set out 5 practical tips.
During the discussion that followed we covered a number of issues including:
Kara Dent - That situation is very difficult – you have to have two qualified midwives for delivery but potentially it would be just the midwives and the partner in that situation. The easy answer would be not to plan a home birth to keep staff safe but often these patients may benefit from home births as hospital might be a triggering factor.
Rebecca Fitzpatrick - In cases where a woman has chosen home birth it is important there is robust record keeping as that will give you more protection if there is an adverse outcome.
Sally Arnold - There are different targets for mental health liaison teams – the target for referrals from A&E is patients should be seen within an hour, through the referral portal it is 4 hours and for patients on the ward it is 24 hours. In practice it should be about treating clinical needs - if a patient needs help now phone back and keep pushing.
Kara Dent - Joined up working between the obstetric team and liaison team is something that is getting better. It is much easier when we have been working with the liaison team all the way through the pregnancy and can put things in place to keep pathways running. The issue is when the unexpected happens. On the ward the patient is deemed as safe which is difficult for clinicians as the situation still feels very imminent and time restrained.
Not all mental health staff are trained in restraint, it depends on their role. If a patient needs full restraint a team of several staff may be required. Some mental health staff are only required to have 'breakaway' training. In some areas, the liaison service is for short term assessment and would not help with restraint. Models of working vary between different geographical areas, for example which team carries out MHA assessments.
Rebecca Fitzpatrick - Advanced care planning to raise these issues is key. Some Trusts are trying to draw up joint memoranda of understanding and agreeing a process so everybody in both organisations understands what is happening and who does what. It does get complicated around the commissioning but can be really helpful.
Rebecca Fitzpatrick – Section 4 is another option in cases of urgent necessity – you can also potentially use S.5(2), or S.5(4). Section 4 is an emergency section which is used when there are issues getting a second medical assessment. This can only be undertaken by the AMHP and one of the two medical recommendations. Section 5(2) is an emergency doctor’s holding power which can be used by any doctor with a full medical licence for an existing inpatient. S. 5(4) is a nurse’s holding power but can only be used by a psychiatric/LD nurse where the patient is already an inpatient. Sections 5(2) and 5(4) are for immediately urgent situations where the patient is already an inpatient at the hospital e.g. when patients are trying to walk off the ward and you have to stop them.
S.4 and s.5(2) can be used for up to 72 hours to detain a patient to enable a full MHA assessment to be undertaken. S. 5(4) can be used to detain a patient for up to 6 hours.
Sally Arnold - The difficulty I have had in practice when struggling to get a second doctor – some AMHPs can be more reluctant about S.4 as it doesn’t provide the “safety” of two doctors reviewing and detaining the patient. This is particularly difficult with more subtle presentations, and risks. You can transfer to a psychiatric hospital under section 4 and the second doctor will do assessment once the patient is there if it is needed in an emergency, but it is best practice to undertake a full MHA assessment where possible.
There was some discussion about neither Section 5(4), Section 5(2) or Section 4 allowing treatment of mental disorder against the patient’s wishes - the patient would need to consent.
Rebecca Fitzpatrick – You can cover some treatment under MCA if they are particularly agitated – that includes covert medication – as long as it is proportionate to the potential harm to P and in their best interests.
One Trust shared their experience of the CQC frowning upon the use of S4 as a stop gap rather than trying to solve the underlying issues of working as a team together. At that Trust they now individually review every S4 but still use it where it is needed. It should not be used to get round resourcing issues.
Rebecca Fitzpatrick – See page 5 of this note about the Mental Health use of Force Act coming in in March this year and whether this applies to acute Trusts.
When using restraint it is important it is recorded when used, why it is proportionate, that it is only used when necessary and is kept under review.
Examples were given of teams cross working, considering a patient’s history and agreeing at an early stage which team will lead.
If any Trusts have written memoranda of understanding which they would be prepared to share as examples with the people on the call, please let us know and we will disseminate.
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