Mh law and an overview to the act moodle (1)

MENTAL HEALTH LAWLegal concepts and the Mental Health 1983 (as amended 2007)

Psychiatry and Law

A question of social deviancy

If I steal, assault or murder I will be arrested, convicted and imprisoned.

These behaviours are socially unacceptable

In mental health the boundaries are less clear

But the perceived behaviours of those with mental health problems are generally considered socially unacceptable

The Mental Deficiency Act, 1913, allowed local authorities to certify and institutionalise, generally unmarried, pregnant women who were deemed ‘defective’, at this time of heightened panic over ‘racial degeneration’ and eugenic concern about the perpetuation of ‘unfit’ genes. ‘Mental defect’ was believed by some to have caused the women’s ‘immorality’... Pat Thane and Tanya Evans, Sinners? Scroungers? Saints?

Unmarried Motherhood in Twentieth-Century England(Oxford, 2012), pp. 24-25

Mental Health Law

Has worked on the principle that a person with a mental health problem can be detained, assessed and treated against their will.

For those that have broken criminal law and have mental illness there is the perceived need to protect the individual and society

Those that break criminal/civil law society punishes them by imposing a monetary or custodial sentence determined by a judge/Magistrate

Under mental health law boundaries for detention are less explicit

Person detained is not punished but treated

Principle views of Mental Health Legislation

Mental health problems can be conceptualised as an illness – which is treatable

Society has a moral right and duty to protect the majority from the minority and to protect those incapable of protecting themselves

Problems?

Personal freedoms and right to expression balancing with rights of the wider society

Eroding rights and criminalising

Public pressure to tighten legislation

High profile cases

Social and political control – the understanding of what constitutes an illness

USSR political dissent as mental illness

Psychiatrist as agents of the state

The consequence of being seen as mentally disordered

Civil LibertarianismEg Thomas Szasz

Welfarism eg ZitoTrust

As you move in this direction-Less responsibility for own actions-Possibility of detention & treatment in interest of own health or safety of others-Theoretically more mental health resources

Nature of degree of mental disorder

Level of risk to self or others

Resources

0 +

Where does the MHA (1983 as amended 2007) sit between the completing ideologies?

AMHPs, doctors, tribunal and courts are left to make the decision when circumstances justify treatment

For the MHA, mental capacity is not the relevant test. It is the nature or degree of the mental disorder plus risk level

Somewhere upper middle?

How mental health law progressed

1713 Vagrancy Acts – allowed detention of ‘lunaticks’

1774 Act regulating private madhouse

1808 Country Asylums Act

1845 Lunatics Act

1886 Idiots Act

1913 Mental Deficiency Act

1930 Mental Treatment Act – allowed for voluntary admission

1959 Mental Health Act

1983 Mental Health Act

2003 Mental Capacity Bill

2005 Mental Capacity Act

2007 MHA (Amends 1983)

Definitions needed for the Act

Mental Disorder Any disorder or disability of the mind. Section 1(2)

A list of possible examples set in code of practice (para 3.3) The presence of a condition in a manual does not necessarily

establish them as mental disorders for legal purposes

Excludes by reason only of dependence on alcohol or drugs

For longer term sections (3,7 or 37) appropriate medical treatment must be available and identified as to where this located

Where the patient has a learning disability (separate definition) it must be associated with abnormally aggressive or seriously irresponsible conduct

Does a person have to be treatable?

No

Treatability test with the MHA 1983 meant that someone diagnosed with psychopathic personality disorder who refuses treatment may not be treatable.

Now all that is need is the availability of appropriate treatment

A person’s refusal to accept treatment can no longer be an obstacle to detention as long is a treatment is available

Is detention treatment?

Criteria for detention (non offender) for s3

A) that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital

B) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained; and

C) that appropriate medical treatment is available to him

Civil Admission (Part 2)Section Number

Maximum duration

Can appeal to MHRT

Can NR apply to the MHRT

Automatic Tribunal

Consent to treatmentrules?

2 Admission for assessment

28 daysNot renewable

Yes. Within first14 days

No – s23 candischarge but see s25

No Yes

3 Admission for treatment

6 monthsRenewed for 6 months and the yearly

Yes. Within first 6 months and then in each period


Yes. At 6 months and then every 3 years (yearly if under 18)

Yes

4 Admission for assessment in an emergency

72 HoursNot renewable but second Dr can change to s2

Yes. Onlyrelevant if s4 converted to s2

No No No

5 (2) Doctor or AC’s holding power

72 HoursNot renewable

No No No No

5 (4) Nurse’s holding power

6 HoursNot renewable but Dr or AC can change to 5 (2)

No No No No

Section Number

Maximum duration

Can appeal to MHRT

Can NR apply to the MHRT

Automatic Tribunal

Consent to treatmentrules?

7Reception into guardianship

6 monthsRenewable for 6 months and then yearly



No No

17ACommunityTreatment Order (CTO)




Only if CTO revoked

YesPart 4A

19Transferbetween s7 and hospital




Yes. At 6 months and every 3 years

Yes

25 Restriction by RC of discharge by NR

Variable No Yes. Within 28 days of being informed

No N/A

135 Warrant to search for and remove patient

72 hoursNot renewable

No No No No

136Police power in public place

72 hoursNot renewable

No No No No

S2 Form example

Section 2 Admission for Assessment

Compulsory admitted and detained to hospital for up to 28 days.

For assessment or for assessment followed by medical treatment rather than just observation.

2 doctors sign recommendation (one must have special experience in diagnosis or treatment of mental disorders (Section 12) and one must have previous acquaintance with the patient.

Recommendations S2(2):

a)He is suffering from mental disorder of a nature ordegree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

b)He ought to be so detained in the interests of his own health or safety or with a view to the protection of others.

S3 Form example

Section 3 Admission for treatment

Compulsory admitted and detained to hospital for up to 6 months. If grounds still met may be renewed for 6 months and after that for one year at a time.

2 doctors sign recommendation (one must have special experience in diagnosis or treatment of mental disorders (Section 12) and one must have previous acquaintance with the patient.

Recommendations state;

He is suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

It is necessary for the health or safety of the patient orfor the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and

Appropriate medical treatment is available to him.

S2 or S3?

S2 considered where: Full extent of the nature and degree is unclear

Need to carry out initial assessment to formulate a treatment plan or to reach a judgement whether the person will accept treatment on voluntary basis or to reformulate a treatment plan

S3 when following met: The patient is already detained under S2; or

The nature and current degree, the treatment plan and the likelihood of the patient accepting treatment on a voluntary basis are already established

Section 17A Community Treatment Orders

RC should consider the use of CTO in any case when granting S17 leave that exceeds 7 consecutive days

Applies conditions that the patient makes themselves available for examination and any other discretionary conditions eg ensuring person receives treatment, prevents risk ro protects others.

S17 example form

Consent to Treatment

Part 4 of the Act

Those patients not covered by Part 4 cannot be treated without there consent except where the MCA 2005 or common law would allow this

Knowing who is covered is vital

Generally those detained for more than 72 hrs are covered

A detained patient is not necessarily incapable of giving consent. The patient’s consent should be sought for all proposed treatments which may lawfully be given under the Act. It is the personal responsibility of the patients RC to ensure that valid consent has been sought. The interview at which such consent was sought should be properly recorded in the medical notes

Code of Practice 16.4

Definition of medical treatment

S145 defines this as

Nursing, psychological intervention and specialist health habilitation, rehabilitation and care...the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.

Does Part 4 apply? This will be:YES if S2, 3, 36, 37, 38, 44, 45A, 47, 48NO if S4, 5, 7, 17A, 35, 135, 136 or informal

NO

NO

YES

DO NOT TREAT without patients consent unless under MCA or common law

Identify the treatment: Is it for mental disorder?

S58: Meds after 3 Months from when detained

Not listed in Regs or Act eg meds before 3 Months

REQUIREMENTS: (either 1 & 2 or 3)1 consent of patient2 cert verifying consent by RC & SAOD2 Cert that treatment is appropriate signed by SOAD after consult with nurse and one other professional

TreatDo not treat

Not satisfied

YES

Type of treatment involved?

Form T6 – cert of 2nd opinion (patients who are not capable of understanding the nature, purpose and likely effects of the treatment.

Form T1 – Cert of consent to treatment and 2nd opinion

Form T2 – cert of consent to treatment

S62

Emergency treatment Only allows:

a) Which is immediately necessary to save life; orb) Which (not being irreversible) is immediately necessary

to prevent a serious deterioration of his condition; orc) Which (not being irreversible or hazardous) is

immediately necessary to alleviate serious suffering by the patient; or

d) Which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or other

Other areas to look at in detail

All civil sections

All criminal sections (Part 3 of the Act)

Identifying NR

MH Tribunals and Hospital Managers’ Reviews

The Mental Health Act Commission

Further reading

Brown, R. (2010) The Approved Mental Health Professionals Guide to Mental Health Law. Learning Matters.

Barber, P., Brown, R. & Martin, D(2012) Mental Health Law in England & Wales. Learning Matters

Department of Health (2008) Mental Health Act 1983: Code of Practice. TSO

A very good website!

http://www.mentalhealthlaw.co.uk/Main_Page

http://www.mentalhealthlaw.co.uk/Main_Page

Documents

Mh law and an overview to the act moodle (1)