Legal Aspects Flashcards
What is the mental health act and which patients are included?
The Mental Health Act (2007) refers to a law used in England and Wales which provides a legal framework for both informal and compulsory care and treatment of people diagnosed with having a mental disorder.
A mental disorder is described as any disorder or disability of the mind and can include any of the following:
Mental illness
Personality disorder
Learning disability
Disorders of sexual preference (e.g. paedophilia)
Anyone under the influence of drugs and/or alcohol is specifically excluded from detainment under the Mental Health Act.
Which individuals are involved in application of the mental health act?
Section 12 doctor: a doctor approved to make specific medical recommendations.#
Approved mental health professional (AMHP): mental health worker (e.g. social worker, psychologist, mental health nurse, occupational therapist) who has additional mental health training and is approved by the local authority.
Responsible clinician: an approved clinician with the overall responsibility of patient care, they are responsible for renewing sections and discharging patients from a section.
Nearest relative: first relative in the MHA list.
What is section 131 of the MHA?
Section 131 of the Mental Health Act is a section of the legislation which covers the informal admission of patients.
This means that patients can be admitted for care and treatment without formal restrictions, and they are free to leave at any time.
Which section of the MHA covers the informal (voluntary) admission of patients?
Section 131
What is the criteria for admission under section 131 MHA?
To be admitted under section 131, patients must meet the following criteria:
The patient must have capacity
The patient must consent to the admission
The patient must not resist the admission
What is section 2 of the mental health act used for?
Section 2 of the Mental Health Act is used for compulsory detention for assessment.
A person can be detained under section 2 only if what two factors apply?
A person can be detained under section 2 only if both of the following apply:
The person suffers from a mental disorder that warrants detention in hospital for assessment for at least a limited period.
The person ought to be detained in the interests of their own health or safety or the protection of others.
For how long can someone be detained under section 2 of the mental health act?
The maximum period a person can be detained for assessment is 28 days, which cannot be renewed.
Who is involved in section 2 of the mental health act?
The application for admission can be made by an approved mental health professional (AMHP) or the nearest relative.
This application must be supported by two doctors, one of which must be an approved section 12 doctor.
What is section 3 of the mental health act used for?
Section 3 of the Mental Health Act is used for compulsory detention for treatment.
A person can be detained under section 3 only if what three factors apply?
The person suffers from a mental disorder of a nature or degree that makes it appropriate for them to receive treatment in hospital.
It is necessary for the health or safety of the person or the protection of others, that the person should receive treatment which cannot otherwise be provided unless the patient is detained.
Appropriate medical treatment is available for them.
For how long can someone be detained under section 3 of the MHA?
The maximum period a person can be detained under this section is 6 months, which can be renewed.
Who is involved in section 3 of the MHA?
The application for admission can be made by an AMHP or the nearest relative. The nearest relative can oppose this and/or request it is rescinded (unlike section 2).
This application must be supported by two doctors, one of which must be an approved section 12 doctor. Both doctors must have seen the patient in the last 24 hours.
Which sections of the MHA are used for involuntary admission in non-emergency situations
Section 2 and 3
Which sections of the MHA are used for emergency situations?
4
5 (2)
5 (4)
Which sections of the MHA involve police powers?
135 and 136
Which sections of the MHA involve community treatment orders?
Section 17a
What is section 5(2) used for?
Section 5(2) is an emergency order where an inpatient who is a voluntary patient in hospital can be detained for up to 72 hours for a mental health act assessment.
For how long can someone be detained under section 5(2)
72 hours
Who applys for section 5(2)
Only one doctor (usually the one in charge of the patient’s care) is required to make an application for this section.
What is section 5(4) used for?
This is similar to section 5(2), but a patient can be detained by a nurse for up to 6 hours to allow further assessment by medical staff.
When can section 5(4) be used by a nurse?
The application can be made by a qualified mental health or learning disabilities nurse if:
The patient is suffering from a mental disorder to such a degree that it is necessary for their health or safety or the protection of others, that they are immediately restrained from leaving hospital.
It is not feasible or practical for a clinician to be immediately available to detain the patient under Section 5(2).
For how long can someone be detained under section 5(4)
6 hours
What is section 135 used for
Section 135 is a court order that allows police officers to enter private property, by force, to remove a person suffering from a mental health disorder and place them in a place of safety (usually an Emergency Department or police station)
Section 135 is a court order that allows police officers to enter private property, by force, to remove a person suffering from a mental health disorder and place them in a place of safety (usually an Emergency Department or police station) if there is reasonable cause to suspect what?
They have been ill-treated or neglected
The are unable to care for themselves and are living alone
For how long can someone be detained under section135
72 hours
When is section 136 used?
Section 136 allows police officers to detain someone suspected of suffering from a mental health disorder, from a public place to a place of safety without a warrant, for up to 24 hours to allow them to be assessed by a medical practitioner.
For how long can someone be detained under section 136
24 hours to allow them to be assessed by a medical practitioner
What is section 17a of the MHA used for
Under section 17a, patients who are on a section 3 can leave hospital for treatment in the community if they are well enough.
When might section 17a of the MHA be deemed suitable
The decision is made by the responsible clinician in agreement with the AMHP if the following criteria are met:
The patient is suffering from a mental health disorder to a degree that is appropriate for them to receive medical treatment
It is necessary for the patient’s health or safety or the protection of others, that they should receive treatment
Treatment can be provided to the patient without the need to continue to detain them in hospital
Appropriate medical treatment is available to the patient
The patient can be recalled to hospital if there is non-compliance with treatment or they do not attend appointments.
Non-compliance with section 17a
The patient can be recalled to hospital if there is non-compliance with treatment or they do not attend appointments.
Once recalled, they may be detained for up to 72 hours for assessment.
What does the mental health permit treatment of?
The MHA only permits the treatment of mental health problems, UNLESS a patient’s physical problem is a result of or a cause of their mental disorder (e.g. refeeding in anorexia).
The Mental Health Act (Criteria that must be met)
They must have a mental disorder
There must be a risk to their health/safety or the safety of others
There must be a treatment (however this can include nursing care, not just drugs)
What are the 5 principles of the mental capacity act
A person is assumed to have capacity unless proven otherwise
Steps must be taken to help a person have capacity
An unwise decision does not mean a person lacks capacity
Any decisions made under the MCA must be in the person’s best interests
Any decisions made should be the least restrictive to a person’s rights and freedoms
When might someone be deemed not to have capacity
For a person to lack capacity they must show an ‘impairment of, or disturbance in, the functioning of the mind or brain’ AND they are unable to undertake any of the following:
Understand relevant information
Retain the relevant information
Weigh up the relevant information
Communicate a decision
What do you have a legal requirement to attempt to do before making a Best Interest Decision for someone without capacity
Consult next of kin
MCA - two stage test
In order to decide whether an individual has the capacity to make a particular decision you must answer two questions:
Stage 1 – Is the person unable to make a particular decision (the functional test)?
Stage 2 – Is the inability to make a decision caused by an impairment of, or disturbance in the functioning of, a person’s mind or brain? This could be due to long-term conditions such as mental illness, dementia, or learning disability, or more temporary states such as confusion, unconsciousness, or the effects of drugs or alcohol (the diagnostic test).
The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:
- 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.
Who should assess capacity?
Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity – follow the two-stage test.
The MCA is designed to empower those in health and social care to do capacity assessments themselves, rather than rely on expert testing by psychiatrists or psychologists – good professional training is key.
However, in cases involving complex or major decisions you may need to get a professional opinion. This could be a general practitioner (GP) or a specialist (consultant psychiatrist or psychologist).
Best interest decsions
<ade when a pt is lacking capacity
Advance Decisions
Only relate to medical treatments
Only in the negative to refuse medical treatment of a specific type
Cannot require a doctor to provide treatment
Person must be over 18 and have capacity - may be withdrawn or altered orally if the person still has capacity
LPA
Must be made on the prescribed form and registered with the public gaurdian
Enables a mentally capavle person to plan for incapacity
Can extend to welfare, property and healthcare matters
Decisions taken by the A are still subject to best interests requirement
For the responsible body to authorise any deprivation of liberty, it needs to be clear that:
The person lacks the capacity to consent to the care arrangements
The person has a mental disorder
The arrangements are necessary to prevent harm to the cared-for person, and proportionate to the likelihood and seriousness of that harm.
CRITERIA FOR IMPLEMENTING MHA
PERSON MUST HAVE A MENTAL DISODER AS DEINED BY LAW
DISORDER OF A CERTAIN NATURE OF DEGREE (how unwell)
SIGNIFICANT RISK TO THE PERSONS HEALTH, SAFTEY OR SAFTEY OF OTHERS
NO ALTERNATIVE TO HOSPITAL AMISSION AS A MEANS OF SAFEGAURDING THAT RISK - SO CANNOT MANAGE IN A LESS RESTRICITVE SETTING
Sections and 5(2) and 5(4) can only be used in what setting
Inpatient - A&E
What do sections 5(2) and 5(4) NOT allow for that sections 2 and 3 do
Treatment
Which sections of the MHA allow for treatment
Section 2 and Section 3
Where can sections 2 and 3 be placed?
Anywhere except prisons - community, inpatient
Appeals in section 3
1 appeal to both hospital and managers panel and tribunal
Who can discharge patients from section?
Consultant/responsible clinican
Tribunal (if appeal sucsessful)
Hospital managers
Next for kin power of discharge - must give the Consultant 72 hours notice
MHA - who involved in tribunal appeal
Panel from CQC
Judge
Independent psychiatrist
Laymember
Patient has a solicitor to assist them with the appeal
Section 136 vs 135
135 - own home
136 - public
Section 2 vs section 3
Section 3 additional criteria: Appropriate medical treatment is available for them.
Section 2 of the Mental Health Act is used for compulsory detention for management
Section 3 of the Mental Health Act is used for compulsory detention for treatment.
S2: Up to 28 days, which cannot be renewed
S3: Up to 6 months, can be renewed
The nearest relative can oppose this and/or request section 3 is rescinded (unlike section 2).
What is section 117
Any patient who has been on section 3 is entitled to S117 aftercare from local authority (do not have to self fund)
Community treatment order
Patient on S3 can be considered for a CTO
Patient is 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, attend appointments etc
Can still appeal to the tribunal
Which risks are considered when assessing someone under the Mental Health Act?
Risks to self, e.g. suicide, malnutrition, vulnerability.
Risks to others, e.g. direct harm to others, unsafe driving.
Risks of further deterioration of mental health, e.g. Refusing treatment.
When might section 4 be used?
Section 4 allows for the compulsory hospitalisation of patients by a single appropriately qualified professional in an emergency when a second practitioner cannot be located for a Section 2 to be completed, and seeking another professional would cause an unsafe delay. Those suffering a manic episode can be a danger to both themselves and others, and it is therefore important that this patient receives a rapid psychiatric assessment.
