Published: 22/04/2002, Volume II4, No. 5902 Page 31

David Hewitt gives practical advice on avoiding litigation

In the last accounting year, nearly 450 mental health claims were reported to the clinical negligence scheme for trusts, which indemnifies the health service against clinical claims and is administered by the NHS Litigation Authority.

Those claims could be worth as much as£42m. These figures might seem relatively small beer - almost 6,500 surgery-related claims were reported in the same period, and the estimated value of obstetric claims was almost£1.2bn - but they represent a great deal of suffering for patients, and upset for relatives and carers (and for mental health practitioners).

The demands on mental health staff can often seem overwhelming: CNST standards, star-ratings, and still the national service framework to contend with for mental health.

It would be easy to get swept away on a tide of audits, but mental health service providers must be careful not to lose sight of their other, older obligations.

The consequences of breaching some official standards are even worse than being embarrassed by the NHSLA. The 1983 Mental Health Act code of practice has been given renewed vigour by the Appeal Court, and a breach of the code can spark legal proceedings.

Circulars from the Department of Health and other bodies, such as the Mental Health Act Commission, can also be referred to in legal proceedings.

The professional conduct rules of bodies such as the General Medical Council and the Nursing and Midwifery Council also have something to say about issues relevant to the care and treatment of mentally disordered patients.

Finally, it seems likely that before long a breach of health and safety guidance will be the basis for a corporate manslaughter charge.

Staff who detain patients or treat them against their will must be familiar with the Mental Health Act, including the facts that the three-month consent-totreatment period begins on the day a detained patient first receives medicine for mental disorder; that leave must be granted by a patient's current responsible medical officer; and that supervised discharge has to be applied for while the patient is still detained under section three, which deals with patients who may be detained in hospital for up to six months.

But knowing the act is not enough: you have got to be awake when you use it. So staff should check that the 'nearest relative' has been identified correctly, ensure that at least one of the recommending doctors is approved under section 12 of the act (which states that all approved doctors must have special experience in diagnosis or treatment of mental disorder), compute a patient's period of detention period correctly and make sure they know when a patient is due back from leave.

Patients should be observed when they are supposed to be observed and every patient needs an after-care appointment that would be chased up if they miss it.

In particular, make sure managers know when they can - and when they must - discharge a detained patient. These points may seem obvious, but it is amazing how often they catch trusts out or cost them legal fees.

Not all professionals who deal with mental illness share the same perspective. Some are not your friends.

Do not assume that every piece of information can be shared with every agency that asks for it; and do not be too easily swayed by the blandishments of the police.

When preparing a statement for an inquest, make sure it deals only with relevant matters.And bear in mind that seemingly unimportant details may turn out to be of interest to a coroner.

Write everything down.A full, careful, contemporaneous record is not a hostage to fortune, it is often the only thing that makes it possible to defend acts, or omissions, months after the event.

It is also, lest we forget the point, an integral part of the care given.

Developing a comprehensive risk-management strategy - one that is not a bureaucratic kneejerk reaction but pays heed to the MHA, the code of practice and relevant case law - could produce a double benefit.

It might make the NHSLA, the MHAC and the Healthcare Commission happier, and it should also help mental health providers and practitioners to understand why it is an important exercise.

If mental health service providers are alert to these sorts of issues, they may have a better chance of keeping their patients alive, their patients' loved ones free from grief, and their staff out of court.

David Hewitt is a partner at solicitors Hempsons.He is also a member of the Mental Health Act Commission, for whom, among other things, he has reviewed the deaths of a large number of mental health patients.