Background to development of the role and responsibilities of the AO

Section (9) of the Mental Health Act outlined the four types of applicants who may apply for the involuntary admission of an adult by making an application on the prescribed form for a recommendation to a registered medical practitioner. These included the spouse or relative, an AO, a member of the Garda Síochána, and any other person.

However, Section (9:2) of the Act outlined those persons disqualified from making an application and these included ‘a person under the age of 18 years, an authorised officer or a member of the Garda Síochána who is a relative of the person or of the spouse of the person, a member of the governing body, or the staff, or the person in charge, of the approved centre concerned, any person with an interest in the payments to be made in respect of the taking care of the person concerned in the approved centre concerned, any registered medical practitioner who provides a regular medical service at the approved centre concerned, and the spouse, parent, grandparent, brother, sister, uncle or aunt of any of the persons mentioned, whether of the whole blood, of the half blood or by affinity’.

Mental health professionals generally assumed that excluding staff of the approved centre would potentially exclude all mental health professionals from the role. Kennedy stated that ‘this appears to exclude mental health social workers and community mental health nurses who are part of the multi-disciplinary mental health team. If so, it is submitted that this will leave the work of “authorised officer” to those with no mental health expertise’ (Reference Kennedy2007: 77). This interpretation could have prevented the potential role of the AO mirroring the professional applicant that existed in the United Kingdom, however, this was not to be the case in reality. The Mental Health Commission (MHC) played an important role in ultimately ensuring the AO would be a professionally trained mental health applicant. Key to achieving this was in the publication of both the MHC Discussion Paper The Role of the Authorised Officer November 2004 and the MHC Advice to the Minister for Health and Children on the Regulations for Authorised Officers Relating to Section 9(8) Part 2 of the Mental Health Act 2001 May 2006.

The MHC’s discussion paper on the role of the AO (November 2004)

The MHC paper was significant because it began the discussion of suggesting that the AO role might go beyond what was envisioned in the Act. It included information regarding comparable roles within the mental health services in New Zealand, Northern Ireland, and Britain (Mental Health Commission, 2004).

The 1945 Mental Treatment Act which preceded the Mental Health Act 2001, had allowed other persons to husband, wife or relative who could make an application for the involuntary admission of a person to hospital and these included the “appropriate assistance officer”, a member of the Gardai Síochána or any other person. In the MHC paper it referred to the research conducted by the MHC in association with the Health Research Board on the pathways to involuntary admission for patients admitted in 2002 and stated ‘This research found for the 2,031 involuntary admissions analysed the applicants in these cases were Relatives 76%, Garda 9% and others 15%’ (MHC 2004, p. 5). At this time the number of involuntary admissions was significantly higher than was to be the case with the full enactment of the Mental Health Act in 2006. The total number of involuntary admissions of adults in 2005, still under the 1945 Act was 2830 but by 2007 now operating under the 2001 Act it had reduced to 2126. The fact that all detention orders were now going to be reviewed by the mental health tribunal arguably led to a less-paternalistic approach to detention. Notable too is the actual percentage of applications made by the Gardai that has risen in subsequent years, and in 2011 (see Table 1) 24% of all applications were made by the Gardai. This is likely to have been the direct result of the fact that in an emergency situation under the current Act it is only a member of the Gardai that can intervene quickly under Section 12 of the Act. Section 12 allows the Gardai to take a person believed to be suffering from a mental disorder directly into custody with regard to subsequently making an application to the registered medical practitioner.

Table 1

Analysis of applicants (involuntary admission of adults; MHC, 2011)

The low number of applications made by the AO reflects the fact that there were limited numbers of AOs available in many areas, with the reported underutilisation of AOs. Feedback from some AOs at Health Service Executive (HSE) national refresher training meetings suggested that they were often only requested to make an assessment for an application when family members, who had been approached first by team members, had refused to do so. Importantly, the low numbers of applications by the AO does not include the significant numbers of AO assessments that resulted in either a voluntary admission or a community alternative. Results from a survey completed by 33 AOs nationally which was conducted by the HSE’s National Mental Health Act Implementation Group in July 2012 (see Table 2), suggested that a significant number of assessments by the AO resulted in a non-involuntary admission to hospital. Clearly, further research of both the number of AO assessments and the long-term outcomes is required to ensure that avoiding involuntary admission is subsequently a positive outcome for patients. However, indications to date from the experiences of AOs nationally suggest that when the patient re-engages with the mental health service the outcomes are positive and there are also financial savings with the avoidance of the costs associated with mental health tribunals.

Table 2

Health Service Executive Mental Health Act Implementation Survey (July 2012): Q12

The MHC 2004 paper also made reference to the comparable role of the AO to the UK’s Approved Social Worker, acknowledging the specialised training that these health professionals undertake as a means to ensuring competence to carry out his or her duties. Gilbert describes the role ‘as a vital check and balance in the evaluation of whether someone needs compulsory admission to hospital, and that he or she is the provider of specialist assessment skills, with a systems perspective and a knowledge bearer and co-ordinator of resources so as to provide the least restrictive alternative for the service use’ (Reference Gilbert2003: 72).

The report also reviewed the New Zealand Mental Health Act 1992 and the comparable role of Duly Authorised Officer (DAO), it stated that the position was generally held by mental health nurses and that DAO ‘can assist anyone to make an application for assessment of a person who may be mentally disordered, or alternatively make the application him/herself. The DAO is provided with formal training, professional support and development opportunities’ (p. 8).

Finally, because the Mental Health Act 2001 placed a strong emphasis on respecting human rights and ensuring that treatment would be beneficial to the patient, the paper stated ‘Alternatives to involuntary admission, such as voluntary admission or community care, should therefore be actively considered by authorised officers. A care professional with a background and training in mental health will be best placed to have an awareness of what is available and to provide and to co-ordinate a less restrictive option’ (p. 14).

MHC advice to the Minister for Health and Children on the regulation for AOs relating to Section 9(8) part 2 of the Mental Health Act 2001 (May 2006)

The MHC having circulated the 2004 discussion paper, concluded from the responses received that there was a general agreement that a professional AO service was an important component in the implementation of part two of Mental Health Act. The MHC formed a working group in December 2005 to consider the operational training, resource, and implementation issues, and inform the MHC’s advice to the government on the regulations for AOs. The report when accepted by the Minister for Health and Children was pivotal in the subsequent development of the role of the AO, as it stated ‘the most appropriate model for an authorised officer service is one based within the mental health services where practitioners with a professional mental health qualification are well informed of the services available, the legislation and the types of disorders that they would be asked to deal with as authorised officers. The preferred option should offer more than the signing of the application form (what is known as the pure applicant model) and should offer some level of support and/or treatment. This view is formed based on negative feedback from service users and carers on the current “pure applicant” model in place under the 1945 Mental Treatment Act’ (Mental Health Commission, 2006; pp. 11–12).

Mental Health Act 2001 (AO) regulations 2006

Following receipt of the MHC’s advice regarding the regulations for AOs, the Minister of State at the Department of Health and Children made the regulations to address the need to define for the purposes of Section (9) of the Mental Health Act 2001, the relevant grades of staff who might take on the role of the AO (Department of Health, 2006; Statutory Instrument S.I. No. 550 of 2006). The regulations came into force on 1 November 2006 and for the purposes of Section (9) of the Mental Health Act 2001, the rank and grade of the AO was prescribed as Local Health Manager, General Manager, Grade VIII, Psychiatric Nurse, Occupational Therapist, Psychologist, or Social Worker. The inclusion of the administrative grades above was initially proposed as a temporary measure as a consequence of the limited numbers of staff available at that point to take on the AO role. Those administrative grades were senior managers who in large had undertaken the applicant role previously under the 1945 Mental Treatment Act.

HSE AO working group report and AO policy

Following the acceptance by the Minister of the MHC 2006 report advising on the regulations for AOs, the HSE formed an AO working group to offer advice on the implementation of the regulations. The remit was to prepare a report outlining an appropriate model for selection, recruitment, and training of eligible officers for the AO role.

The HSE AO report was subsequently completed in 2007, but only after a key issue was resolved clarifying who was and who was not a staff member of the approved centre. The Mental Health Act 2001 Section (9:2) had outlined those persons disqualified for making an application and these included; ‘(c) a member of the governing body, or the staff, or the person in charge, of the approved centre concerned’ and legal opinion was sought which argued that ultimately, it was the relevant responsible manager, the HSE Local Health Office Manager, who decided who was and who was not a staff member of the approved centre. Hence, it was concluded by the HSE AO working group that a member of a community mental health team (CMHT) could undertake the AO role but a member of staff that was rostered to the approved centre could not. This was an important clarification for the subsequent selection and training of AOs and it also facilitated the implementation of the MHC 2006 recommendation that stated ‘CMHTs will be best placed to locate any initial authorised officer service’ (p. 8).

The HSE AO working group planned the programme that was delivered in each of the four HSE areas and trained 160 AOs. The working group developed an AO policy which stated in Section 1:11 ‘that the AO should exercise their own judgement and not act at the direction of any person who might be involved in the person’s welfare’. Among the working group there was general agreement regarding the AO acting independently, but there was some debate as to the pressure an AO might come under from within their own service to make an application based on the wish of a family member or a CMHT member. However, awareness by the group regarding the experience of the Approved Social Worker role in the United Kingdom offered reassurance and suggested that well-trained AOs in this jurisdiction would also liaise closely with professionals and family members as part of their assessment before making a final decision.

The availability of the AO service did not develop as planned

There is general agreement that there was a lack of awareness of the developing role as outlined in the 2006 MHC’s AO report. Most clinicians and managers were not privy to the report, which was not widely circulated, as it was originally a document for the Minister’s attention and so may have been unaware of the recommended enhanced role of the AO.

The mental health service was arguably not as organised as it is now with the Mental Health Area Management Teams in each service area reporting to the recently established HSE National Mental Health Directorate. There was an absence of leadership in terms of having a responsible senior person to champion the potential benefits of the AO service in each area, and this may have contributed to a haphazard approach in promoting the AO service nationally. Feedback from a number of AOs suggested that the lack of support structures and an initial expectation in the 2009 AO policy that AOs might routinely work alone resulted in a number deciding to withdraw from undertaking the AO role.

Professional staff representation bodies had no experience of this role, and in response to the HSE AO working group report 2007, they issued a joint statement, in December 2008. It stated that ‘the proposed fees are completely inadequate. In this regard we noted the AO will be required to work alone; that health and safety provisions are to date inadequate; that they will be required to defend their practice before tribunals and possibly other courts; that no satisfactory recognition is given to the complicated care which involves children, other dependents, pets/farm etc. and which may take several hours’. As a result of these difficulties, the HSE Mental Health Service Strategic Management Group realising that there would not be a sufficient number of AOs decided not to formally inform general practitioners and primary care teams of the availability of the AO service.

The AO as applicant for the involuntary admission of an inpatient to hospital

An important High Court Judgement related to the role of the AO has resolved a difficulty regarding the Mental Health Act 2001, where a mentally unwell voluntary patient in the approved centre refuses treatment, but is not expressing a desire to leave the unit. The Judgement of Judge Gerard Hogan 4th July 2013 between K.C. V Clinical Director of St Loman’s Hospital & ANOR Neutral Citation: 2013 IEHC 310. High Court Record Number 2013 1129 SS 04/07/2013 High Court Judgement by Hogan J. ruled that an application made by an AO on an inpatient who was refusing treatment and was assessed as having a mental disorder, but who was not expressing a wish to leave the hospital, was lawful (The High Court, 2013 No. 1129 SS). Justice Hogan ruled that the fact the patient is already within the approved centre is not of any particular relevance, as admission under Section (14) is concerned with the status of the patient so admitted, rather than his or her physical location at the time the admission was put in train under Sections (9) and (10) of the 2001 Act. It is now common practice for AOs to be asked to make assessments for an involuntary application on mentally unwell voluntary patients who are not willing or able to consent to treatment but expressing no desire to leave the approved centre. This has brought an element of common sense to situations where clinicians assumed that they were powerless to treat a patient with a mental disorder under the Act merely because the patient was not expressing a wish to leave the hospital.

The Mental Health Act 2001 Expert Review Group and the AO role

Before the setting up of the Mental Health Act Expert Review Group, the Interim Report of the Steering Group on the Review of the Mental Health Act 2001 was published in April 2012 (Department of Health, 2012). It made a number of suggestions in relation to the AO role, most notable was the suggestion that ‘a full authorised officer service would have considerable benefits as such officers are best placed to consider alternatives to detention, can offer specific advice and mobilise support for the service user and the family. The Group therefore recommends that Section 9 be amended in order to establish a hierarchy of persons who can make application for detention and an AO should be the first-mentioned applicant’ (p. 30).

Submissions to the Mental Health Act Expert Review Group from a number of professional bodies reiterated the recommendations of the Steering Group for a more enhanced role for the AO. The College of Psychiatry of Ireland stated that ‘authorised officers should be independent of the responsible consultant psychiatrist, and it is important the Act allows for an applicant, who may be able to provide an alternative to hospital admission, if a recommendation is not made’. The MHC called for an amendment to Section (9); to allow ‘a hierarchy of persons who can make applications with the AO as the first-mentioned applicant, remove the Garda as an applicant and consider making amendment to section (13:2), to permit AO arrange the removal of the person to the approved centre without recourse to the clinical director’. The Irish Association of Social Workers also called for a hierarchy of applicants with the AO as the first applicant and they recommended that ‘the Act should be amended, from the current wording of the authorised officer making an application for a recommendation to the registered medical practitioner, to the authorised officer making an application for involuntary admission founded on the recommendation of the registered practitioner section (9:1)’. This was to acknowledge the practice of both the AO and the registered medical practitioner co-ordinating their visit so as to work together in the patient’s best interest. It would avoid undue delay in completing the assessment process with or without the eventual completion of the application and recommendation for involuntary admission.

Arguably, the Expert Review Group will need to balance the potential benefit of recommending an enhanced role for the AO with the likely demands that this might make on resources. A hierarchy of applicants with the AO as first mentioned as is the case in the United Kingdom would allow the HSE to build up its AO capacity. A recommendation to only have AOs make all applications might be a step too far for the HSE to deliver in terms of the demands that would make on human resources. Currently, AOs volunteer to be available during their working week and receive a payment for each completed assessment but this would not meet the demands for a requirement to be part of a 24 hours, 7 days a week rota.