New
New course
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health care professionals incuding psychiatrists
DH Transitional Arrangements: Additional clarification from Dr
Tony Zigmond, September 2008
Transitional arrangements
for psychiatrists becoming Approved
Clinicians –
Clarification
The headings, in my note dated 11 August 2008 for the three groups
of psychiatrists covered by the transitional arrangements refer to
‘current consultants’ and those appointed as a consultant within
the defined period. I have been asked for further clarification by
colleagues at other grades. The position is not entirely clear. My
understanding is below. The issue relates particularly to group
1.
The transitional arrangements require, for
group 1, that to become an AC the person:
(a) has carried out the functions of a
responsible medical officer under the 1983 Act within the period of
twelve months ending on 2nd November 2008, and
(b) is a registered medical practitioner
approved by that Authority under section 12(2) of the 1983 Act.
It should be noted that there is no
requirement to demonstrate possession of the specified competencies
(which is required to become an AC other than under the
transitional arrangements). The transitional arrangements state
that the doctor does not have to be a consultant.
The question, therefore, is under what
circumstances may a doctor, who is not a consultant, have fulfilled
the first requirement.
It has been said that only consultants can
undertake the responsibilities of a RMO, because only consultants
can be ultimately responsible for in-patients.
It has been reported to me that in some Trusts
and other hospitals non-consultant grade doctors have been
permitted to grant S17 leave (a RMO function) to detained patients
when the consultant RMO is unavailable.
The RMO is defined in section 34(1) MHA 1983
as: “the registered medical practitioner in charge of the treatment
of the patient”.
The current Code of Practice (para 20.3)
states that ”Only the RMO can grant leave of absence to a patient
formally detained under the Act. In the absence of the RMO (for
example if he or she is on annual leave or otherwise unavailable)
permission can only be granted by the doctor who is for the time
being in charge of the patient’s treatment. Where practicable this
should be another consultant psychiatrist, a locum consultant or
specialist registrar approved under section 12(2) of the Act”.
The Memorandum to the MHA 1983 (para 60)
states: “All hospital patients should be under the care of a
consultant who is in charge in the sense that he is not responsible
or answerable for the patient’s treatment to any other doctor. But
there are functions under the Act requiring swift action (e.g. the
decision to issue a report barring discharge by the nearest
relative under section 25) and the patient’s usual doctor may not
be available (e.g. owing to sickness or absence on annual leave).
In that case the doctor who is for the time being in charge of the
patient’s treatment should exercise the functions of the RMO”.
There is an issue as to whether or not any NHS
Trust or other employer organisation has permitted a non-consultant
to be in charge, in the sense set out in the Memorandum, “that he
is not responsible or answerable for the patient’s treatment to any
other doctor” If non-consultants believe they have functioned
as an RMO, e.g. granting S17 leave, when there has in fact been
a consultant covering, perhaps the duty consultant, then
their interpretation may have been incorrect (they may have
acted unlawfully) and they would probably not meet the
criteria for becoming an AC (through the transitional
arrangements).
The College cannot give legal advice.
Non-consultant grade doctors who have carried out the functions of
a RMO and so believe they qualify to become Approved Clinicians
under the transitional arrangements may wish to seek the advice of
their employer as to whether or not they have been “the doctor in
charge of the patient’s treatment” or whether, under the
circumstances described, there have been alternative cover
arrangements so that a consultant was in fact in charge.
I hope this helps answer queries.
Tony Zigmond
September 2008
DH Transitional Arrangements: Dr Tony
Zigmond as at 11 August 2008
There are arrangements covering three
different sets of circumstances in relation to psychiatrists
becoming Approved Clinicians:
1. Current consultants who have
carried out the functions of a Responsible Medical Officer within
12 months prior to November 2nd 2008:
An Authority shall approve to act as an
approved clinician a person who—
(a) has carried out the functions of a
responsible medical officer under the 1983 Act within the period of
twelve months ending on 2nd November 2008, and
(b) is a registered medical practitioner
approved by that Authority under section 12(2) of the 1983 Act.
The person shall be approved to act as an
approved clinician for the period of twelve months commencing on
3rd November 2008, or until the end of their period of approval
under section 12(2) of the 1983 Act, whichever is later.
2. Current consultants who have not
carried out the functions of a Responsible Medical Officer within
12 months prior to November 2nd 2008:
An Authority shall approve to act as an
approved clinician a person who—
(a) has not carried out the functions of a
responsible medical officer under the 1983 Act within the period of
twelve months ending on 2nd November 2008, but
(b) has been in overall charge of the medical
treatment for mental disorder of a person within the period of
twelve months ending on 2nd November 2008, and
(c) is a registered medical practitioner
approved by the Authority under section 12(2) of the 1983 Act.
The person shall be approved to act as an
approved clinician for a period of twelve months commencing on 3rd
November 2008, and that period shall be extended for a further two
years if during that period of twelve months the person
completes a course for the initial training of approved
clinician.
3. A psychiatrist
appointed as a consultant psychiatrist in England within the period
of eighteen months ending on 2nd November 2009.
An Authority shall approve to act as an
approved clinician a person who—
(a) has not carried out the functions of a
responsible medical officer under the 1983 Act within the period of
twelve months ending on 2nd November 2008 and has not, within that
period, been in overall charge of the medical treatment for mental
disorder of a person, but
(b) is a registered medical practitioner
approved by an Authority under section 12(2) of the 1983 Act who
has been appointed to the post of consultant psychiatrist in
England within the period of eighteen months ending on 2nd November
2009.
The person shall be approved to act as an
approved clinician until 2nd November 2009. Prior to this they must
undertake AC training.
PLEASE NOTE:
The phrase “carried out the functions of a
Responsible Medical Officer” has been the subject on discussion. It
has been said by DH officials that being on a duty-rota, even if
the hospital policy specifies that the on-call consultant acts as
RMO to all detained patients, does not satisfy this criterion. The
criterion will only be satisfied if some specific RMO task has been
carried out e.g. granting S17 leave or fulfilling a statutory
responsibility under S58 etc. Consultant colleagues who work in the
community and ‘act as RMO’ as part of their on-call duties, and who
wish to be considered for the 1st group above, may wish
to keep a separate record of performing such functions to ensure an
easy transition.
August 2008
June 2008 update for Members of the Royal College of
Psychiatrists by Dr Tony Zigmond
Dr Tony Zigmond is the former Vice-President of the Royal
College of Psychiatrists (2004 – 2007) leading on Mental Health
Legislation Reform. He currently represents the College on the
National Advisory Groups for Approved Clinician Training and
Section 12 Training, he is a MHA trainer for the College Education
and Training Centre and Consultant Psychiatrist is Leeds.
Colleagues should note that:
- once it is in force, the 2007 Act will disappear. We will
continue to use the Mental Health Act 1983 (as amended) and the
Mental Capacity Act 2005 (as amended).
- we are awaiting the Regulations and Code of Practice for
Wales.
1. When does the Act come
into force?
Current Timetable
Implementation is staged, some parts already
being in force.
October 2007:
- Section 19: Approval of courses for
AMHPs
- Section 20: Amends section 62 of Care
Standards Act 2000 – codes of practice for Social workers when
acting as AMHPs
- Section 39: Amends section 17 Cross border
arrangements – leave and transfer of patients (Schedule 5 - Cond.
Discharge)
- Section 40: Amends section 41 – stops time
limited restriction orders
- Section 42: Offence of ill-treatment:
increase in maximum penalty
- Section 46: Local health boards (Wales). It
adds a reference to local health boards to the definition of “the
managers” of hospitals in section 145(1) of the 1983 Act.
- Section 49: Amends section 40 MCA, IMCAs to
limit the exceptions to the duty to instruct an IMCA.
December 2007:
- Section 26: Civil Partners have same standing as Married
Partners in relation to the role of Nearest Relative.
January 2008:
- Section 43: Patients aged 16 or 17 capacitous refusal of
treatment cannot be overridden by parents or guardians.
April 2008:
- Section 135 &136 amended to enable transfer of patients
from one place of safety to another.
November 3rd 2008:
- MOST of the provisions of the Act come into force.
April 2009:
- Independent Mental Health Advocates. Deprivation of Liberty
(Bournewood) amendments to the Mental Capacity Act 2005
April 2010:
- CAMHS - Age appropriate facilities
2.
Transitional arrangements for Approved
Clinicians:
We are awaiting news of the final
arrangements. The draft order states that all current Section 12
approved doctors who have been an RMO (i.e. had a detained patient
under their care) in the 12 months prior to November 3rd 2008 will
automatically become Approved Clinicians, for 3 years.
The position of those who work in the
community but do ‘on call’ covering in-patients is unclear. Some
Trusts’ policies make it clear that covering consultants become RMO
for all detained patients out-of-hours. It is presumed that this
would enable those consultants to state that they have been an RMO
within the qualifying period. Whether or not this applies in Trusts
where no such policy exists is much less certain. Trusts may wish
to seek legal advice about this.
The College has recommended that all Section
12 approved doctors who are consultants on November 3rd, but have
not been an RMO within the previous 12 months, should automatically
become Approved Clinicians for 12 months. We still await the
outcome of the DH deliberations.
3. Who can be an Approved
Clinician?
Approved Clinicians have to be a member of one
of the named professions (doctor, nurse, psychologist, occupational
therapist, social worker). They will have to demonstrate they have
the competencies set out in the regulations. This will be decided
by the relevant Strategic Health Authority (although they can
delegate this function to PCTs). The College has argued that having
a CCT in psychiatry should automatically be evidence of having
attained the competencies. We have yet to hear if this has been
accepted by the DH.
Any registered medical practitioner, who can
demonstrate they possess the competencies, can become an Approved
Clinician. This means, for example, Staff Grade psychiatrists may
become Approved Clinicians and so become Responsible Clinicians
i.e. be the clinician in charge of a detained patient’s (or
informal patient’s) care.
4. Training
requirements:
There are no transitional training
requirements for either Section 12 approved doctors or Approved
Clinicians. Nonetheless, CSIP / NIMHE recommend that both groups
attend training. Most of this training is expected to be
provided by employing organisations. The College Education and
Training Centre courses fulfil their recommendations.
Section 12 training requirements are currently
unchanged. CSIP/NIMHE is leading a National Advisory Group to agree
standards for S12 training courses to be adopted by Strategic
Health Authority Section 12 panels.
Approved Clinician training - professionals
who have demonstrated the necessary competencies will have to
undergo a two-day training course. It is likely that these will be
provided by the same, or similar, organisations / groups who
currently provide Section 12 training. Again CSIP / NIMHE is
leading a National Advisory Group to agree standards for the
courses.
It should be noted that all medical Approved
Clinicians will be Section 12 approved (unlike the present position
where there is no requirement for RMOs to be Section 12 approved).
Clearly, not all Section 12 approved doctors will be able to
qualify as Approved Clinicians (e.g. GPs).
5. Who makes
recommendations re Deprivation of Liberty and the Mental Capacity
Act?
Colleagues will be aware that the Mental
Capacity Act has been amended to enable patients to be deprived of
their liberty under that Act (the so-called Bournewood amendment).
Six assessments have to be made by two or more people:
- Age (18+);
- Mental disorder (as defined in MHA without
exclusions relating to learning disability);
- Mental capacity (lacks capacity to consent to being
accommodated for the purpose of being given relevant
treatment);
- Best interest (to be detained and proportionate to likelihood
and seriousness of harm);
- Eligibility requirement (“the person is either subject to the
MHA or objects to being detained in hospital for treatment of
mental disorder);
- The no refusals requirement (there is a valid refusal by a
donee or deputy or advance directive).
The Mental Health assessment must be
undertaken by a Section 12 approved doctor or a doctor who, whilst
not Section 12 approved, has special experience in the diagnosis or
treatment of mental disorder. The Best Interest assessment has to
be undertaken by an AMHP or equivalent. The Eligibility requirement
has to be undertaken by a Section 12 approved doctor or an AMHP. In
other words, all authorisation for deprivation of liberty will
require a Section 12 approved doctor or AMHP. The College would be
pleased to hear from members their views on the workforce
consequences of this requirement.
6.
The Code of Practice and Regulations, including competencies for
Approved Clinicians
Comments from members on the above MHA
information can be sent to cetc@rcpsych.ac.uk and will be
forwarded to Dr Tony Zigmond.
The next National Advisory Group meetings for
S12 Training and Approved Clinician Training Standards are on
Wednesday 2 July 2008. Further information will be made available
as soon as possible via this eNews.
24 June 2008