7- Legal issues in psychiatry (MCA, MHA sections, safeguarding) Flashcards
consent must be
-
Informed
o Appropriate level of information -
Competent
o Capacity to consent -
Voluntary
o Not coerced by relatives, medics, nurses etc
what is capacity
- Ability to make a decision
- Can involve personal welfare, healthcare and financial decision
- Empowers adults to make as many decisions as possible
- Some adults will have fluctuating capacity- time specific
- Some adults will have the capacity for some things but not others- decision specific/ issue specific
capacity is both
decision and time specific
Types of consent
- Implied
- Withdrawn
- Verbal, non verbal or written
- Under age 16 may be competent
o But cannot refuse life saving treatment until 18
capacity threshold
- Could be drunk or intoxicated with drugs
- Lack of capacity could be temporary or permanent- may be possible to defer a decision to await return of capacity
two stage capacity test
- Is there an impairment or disturbance in the functioning of the person mind?
- Has it made the person unable to make a particular decision?
How to decide if the person can make that decision?
LEARN
- Understand information given to them
- Retain that information long enough to be able to make the decision
- Weigh up the information available to make the decision
- Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
Incapacitated adult
- MCA places in statute law the ability to make decisions in advance of becoming incapacitated (advanced decision)
o E.g. a Jehovah’s witness refusing blood in advance - If AD have not been made ensure that decisions are made in the patients best interest
- LPA allows someone else to legally make healthcare decisions for another- but must be made at a time when the person had capacity
principles of the mental capacity act
LEARN
- Presumption of capacity
- All efforts to help them make a decision with capacity e.g. translation, braille
- Allowed to make unwise decisions
- Best interest decisions
- Least restrictive options
best interest decisions and the MCA
- All relevant circumstances must be considered
- The patient should participate even if lacking in capacity
- If patient will regain capacity may be appropriate to wait
- Decision maker MUST ascertain and consider the patients past and present wishes an feelings
- Must take into account if both practical and appropriate the views of their advance decisions
lasting power of attorney
- Must be made on the prescribed form and registered with the public guardian (essentially a judge)
- Enables a mentally capable person to plan for incapacity
- Can extent to propery, welfare , healthcare matters
- Decisions taken by the LPA are still subject to best interest requirement (go to public guardian if unsure)
DOLS- deprivation of liberty safeguards
- For patients in hospital or care homes who lack capacity
- MDT assessment
- Lead by social workers
- Example: yes you can stop this person from leaving the premises, but twice a week carers will take this patient outside
Difference between the mental capacity act and mental health act
- MHA- can only force you to take mental health treatment and not treatment for other physical conditions such as insulin for T1DM
- MCA- can force patients to take medication for both physical and mental health conditions
can a person <18 yo refuse lifesaving treatment
No - even if gillick competent
however if over 16 can consent to surgery if gillick competent
example of a pregnant women who needs a cat 1 emergency C-section however refuses to have any injections and is therefore refusing C-section putting her life at risk
Needle phobic- try and reason with patient, however due to their needle phobia she does lack capacity- therefore can hold her down
a 16 yo boy has consented to have surgery for abdominal trauma. Just before anaesthetic he clearly says he has changed his mind
- Should try and reconsent patient by chatting to them
- Have they lost capacity by this point?
- Is the surgery life saving
patient with abdominal trauma is unconscious - if you dont operatr he will die
Operate- best interest decision
- Try and speak to best of kin- legal duty
- See if they have a card saying their wishes
- least restrictive
patient with abdominal trauma needs surgery but is too drunk to have capacity
if it can wait would be best to wait for the patient to have capacity
mental health act 1983 (amended in 2007)
- Can only be used to enforce treatment for mental health conditions
guiding principles of the MHA
- minimise the undesirable effects of the mental illness
- least restrictive
- participation of patient and NoK
- equity, effectiveness and efficiency
Criteria for implementing the act (learn)
- Presence of a mental disorder as defined by law ‘any disorder or disability of the mind’
- Disorder is of a certain nature (relapsing etc) or degree (severity)
- Significant risk to the persons health, safety, or safety of other
- No alternative to hospital admission as a means of safeguarding that risk
Important sections of the mental health act
- Section 5(4)
- Section 5(2)
- Section 2
- Section3
- Section 136
- Section 17/117
Section 5(4)
- Power granted to RMNs (mental health nurse) to detain an inpatient
(emergency department does not count as being admitted to hospital)
Length and purpose of section
- up to 6 hours for assessment where mental illness is suspected
Protocol
- pink form needs to be completed and submitted to hospital manage
Section 5(2)
- Resident Medical Officer (RMO) doctor or nominated deputy (e.g. junior doctor) can detain inpatient (have to have been admitted) for up to 72 hours under the MHA
- no appeal
Protocol
- legal form for hospital managers
- to allow formal mental health act to be completed
Section 2
- 2 doctors (at least 1 of whom should be Section 12(2) approved and 1 AMHP (mental health approved) (not just social worker now)
- can be done in community or inpatient (not prison)
Length and purpose of section
- up to 28 days
- for assessment (and treatment) of a mental disorder
Protocol
- can appeal within first 14 days- heard within 7 days by tribunal
section 3
- 2 doctors (at least 1 of whom should be Section 12(2) approved and 1 AMHP (mental health approved) (not just social worker now)
- community or inpatient (except prison)
Length and purpose of section
- maximum of 6 months for treatment of mental disorder
- may have another 6 months added
protocol
- appeal to both hospital amangers panel and tribunel
section 136
police power to remove to a place of safety (mental health hospital, police station, a and e) from a public place for an assessment by AMHP and 1 doctor
- if needed a second doctor attends for a MHA assessment for section 2 and 3
Length and purpose of section
- 72 hours to allow assessment
section 17
- whilst detained in hopsital under S2, S3 a patient may have leave under S17
- leave to walk outside, go home for several hours or overnights
section 117
anyone who has been on a section 3 is entitled to S117 aftercare from local authority
community treatment order
- patients on S3 can be considered for a CTO
- patients well enough to leave hospital but may default from treatment/follow up
- treatment is necessary for the patients health, safety or protection of others
- patient can be recalled to hospital if they do not comply with treatment, attent appointments etc
- can still appeat to the tribunal
which section
Section 5(2)
which section
- Section 135 (for person in own home/ hotel room)
- Section 136 (for person in public space)
which section
section 2
