Legal Aspects Flashcards
Why do we have mental health law?
- Power to provide compulsory care and treatment for people with a mental disorder
- Rights and safeguards to make sure those powers are used appropriately
- Duties on NHS Boards and local authorities to provide a wide range of services for people with a mental health disorder
Mental Health (Care and Treatment)(Scotland) Act 2003:
what are the principles?
what is a Mental Disorder
as defined by the MH(C&T)(S)A2003?
Section 328 defines mental disorder as:
- any mental illness,
- personality disorder or
- learning disability
- however caused or manifested
(These on their own are not a mental disorder) Section 328 says not only by:
- Sexual orientation
- Sexual deviancy
- Transsexualism
- Transvestism
- Dependence on, or use of, alcohol or drugs
- Behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person
- Acting as no prudent person would
Who can be detained?
- > 18yrs
- < 18
- Can still be detained
- Need child / adolescent specialist (CTO etc)
- Use specialist resources (where ever possible)
Anyone can be detained
Overview of Key Civil Compulsory Powers - what are they?
Emergency detention certificate EDC
Short-term detention certificate STDC
Compulsory Treatment Order CTO
Nurses holding power
Overview of Key Civil Compulsory Powers:
how long does Emergency detention certificate EDC authorise detention for?
Authorises detention for up to 72 hours
Overview of Key Civil Compulsory Powers:
how long does nShort-term detention certificate STDC authorise detention for?
Authorises detention for up to 28 days
Overview of Key Civil Compulsory Powers:
how long does Compulsory Treatment Order CTO authorise detention for?
Authorises detention for up to six months
Overview of Key Civil Compulsory Powers:
how long does Nurses holding power authorise detention for?
Authorises detention for up to three hours (changed in 2015 Act)
Emergency Detention Certificate Section 36 of the 2003 Act:
what is needed to give this?
•Registered Medical Practitioner
Must consider it likely that:
- the patient has a mental disorder; and
- because of that mental disorder, the patient’s decision making ability with regard to medical treatment for that mental disorder is significantly impaired
Must also be satisfied that:
- it is necessary as a matter of urgency to detain the patient in hospital in order to determine what medical treatment should be provided to the patient for the suspected mental disorder
- there would be a significant risk to the health, safety or welfare of the patient or to the safety of another person if the patient were not detained in hospital; and
- making arrangements with a view to granting a short-term detention certificate would involve undesirable delay
Short Term Detention Certificate Section 44 of the 2003 Act:
what is needed to give this?
Approved Medical Practitioner
Must consider it likely that:
- the patient has a mental disorder;
- because of the mental disorder, the patients ability to make decisions about the provision of medical treatment is significantly impaired;
- it is necessary to detain the patient in hospital for the purpose of determining what medical treatment should be given to the patient or giving medical treatment to the patient;
- if the patient were not detained in hospital there would be a significant risk to the health, safety or welfare of the patient or to the safety of any other person; and
- the granting of a short-term detention certificate is necessary
Compulsory Treatment Order Section 64 of the 2003 Act: who descided if it should be given?
Application to Mental Health Tribunal made by Mental Health Officer for the granting of a CTO
Tribunal considers evidence and makes decision
Mental Health Reports (GP and Approved Medical Practitioner or 2 Approved Medical Practitioners)
Compulsory Treatment Order Section 64 of the 2003 Act: what must be satisfied in order to give this?
(Again same 5 criteria)
the patient has a mental disorder
medical treatment is available and would be likely to prevent deterioration or alleviate symptoms
without treatment there would be significant risk to health, safety or welfare of patient or safety of others
mental disorder significantly impairs decision making ability
making of compulsory treatment order is necessary
what is the Criteria for Detention?
(Some differences between the orders but in short)
- Mental disorder
- Significant Impairment of Decision Making Ability for medical treatment about mental disorder
- Significant risk to health, safety or welfare of the person or the safety of any other person
- Treatment available
- Order necessary
Mental disorder
SIDMA
Risk
Treatment
Necessity
what are some Important Others that may be involved?
Named Person:
- A right to be party to proceedings
- Since 30th June 2017 – must be nominated by the patient and witnessed and the named person must have witnessed acceptance
Named person = someone the patient can nominate and that thinks their opinion would be important to the tribunal and the professionals looking after them
Access to Advocacy:
•Right of every person with a mental disorder
workers available to patients to make representations to service and tribunals on their behalf
what act is responsible for deciding if an adult has capacity to make decisions?
adults with incapacity act (Scotland) 2000
what makes someone incapable?
whata re the principles of the adults with incapacity act?
- The intervention must benefit the adult
- Any intervention shall be the least restrictive in relation to the freedom of the adult, consistent with the purpose of the intervention
- Account must be taken of the past and present wishes of the adult
- Where practicable, account should be taken of - the views of relatives and carers, the views of relevant others (guardians, attorneys, etc.)
Capacity is presumed to be _______ unless _______ otherwise
present
proven
does capacity depend on the situation?
yes
- May have capacity for some decisions but not others
- Said to be decision specific
what areas does the adults with incapacity act cover?
- Property
- Welfare (Medical)
- Financial
adults with incapacity act:
what is a Guardianship Order?
Someone else is appointed to make decisions on behalf of the adult (financial or welfare or both)
adults with incapacity act:
•The authority conferred by subsection (2) shall not authorise:
(a) the use of ______ or _________, unless it is immediately necessary and only for so long as is necessary in the circumstances;
(b) action which would be inconsistent with any decision by a competent court; (cant do something _____)
(c) placing an adult in a hospital for the treatment of mental disorder against his ____ (this is properly done under the MHA)
(regulations which excludes certain treatments)
force
detention
illegal
will
Mentally Disordered Offenders Provisions
Criminal Procedure (Scotland) Act 1995
what are the police powers?
- Removal from a public place
- Appears to be in immediate need of care or treatment to a place of safety
- Detain for up to 24 hours
- Purpose to allow assessment and make arrangements for their care and treatment.
what is the criminal justice and licensing (scotland) act 2010
what determinies if someone is unfit for a trial?
what is diminished responsibility?
Culpable homicide = manslaughter
what are restricted patients?
- First Minister Patients
- About 300 in Scotland
- Until 1995 Act all had to be at the State Hospital
- About half are not managed by forensic psychiatrists
- Require a great deal more paperwork
forensic sections:
what is an assessment order?
Court satisfied there are reasonable grounds that (one registered medical practitioner):
- Mental disorder
- Detention in hospital is necessary
- Civil risk criterion met
- Treatment
- Suitable bed available within 7 days
- Assessment could not be undertaken if not in hospital
Court also has to consider - All the circumstances (including the offence), Any alternative means of dealing with the person
forensic sections:
what is an Treatment Order – Lasts until final disposal or another order is granted?
Court satisfied on the basis of evidence from two medical practitioners (one of whom must be approved): Mental disorder, Treatable, Civil Risk
Suitable bed available within seven days -Reasonable alternative? Necessity
Need to consider the other things above
Treatment may be given under part 16.
forensic sections:
what is a compulsion order?
- Court Satisfied on the evidence of two medical practitioners (one of whom is approved): mental disorder, availability of medical treatment, significant risk, Necessary to be in hospital
- Need to consider the level of security
- Need to consider if a restriction order is necessary
Criminal equivalent of a CTO
Lasts upto 6 months then a review to see if its continued or not
what is a restirction order?
- Having regard to the nature of the offence with which he is charged;
- The antecedents of the person (background matters of their history); and
- The risk that as a result of his mental disorder he would commit offences if set at large (risk of recurrence or risk of violence to the public)
That it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in Part 10 of the 2003 Act, without limit of time
what are the effects of a restirction order?
- Without limit of time cf 6 months
- RMO must review annually
- MWC can initiate a review
- Scottish Ministers have a duty to review
- Patient and Named Person can make an application for a review by a Tribunal
- Automatic hearing if no hearing in last two years
- MHO has responsibilities as CO and are set out in the MOP.
Summary:
- People with severe mental illness more likely to have a history of _______
- Severe mental illness not at higher risk of serious violence eg deadly weapons, forced sexual acts. Also not more likely to be bizarre
- US population survey 75% viewed those with mental illness as dangerous and 60% believed people with schizophrenia were likely to commit violent acts
- Risk of violence will fluctuate depending on contextual factors
- Dynamic factors may be an intervention target (work, diagnosis, marital conflict, anxiety management to combat stress)
violence
quiz
- Who can complete a Certificate of Incapacity form? Tick all that apply
GP
Consultant pyschiatrist
FY1
Registered nurse
Dental practitioner
Family member
Optician
Next of kin
how long does each allow detention for?
- Which legal document is used in Scotland when assessing if an individual has capacity?
A.Mental Capacity Act (2005)
B.Adults with Incapacity (Scotland) Act 2000
C.Mental Health Act 2007
D.Mental Health (Care and Treatment) (Scotland) Act 2003
E.Adult Support and Protection (Scotland) Act 2007
B
- The power from which legal document is needed if you think a patients mobile phone may need to be confiscated as they are putting themselves or ward staff at risk, or it has a detrimental effect on their care?
A.Specified person
B.Named person
C.Power of Attorney
D.Guardianship order
E.Restriction order
A
- Select which of the following are powers available to the Police
Removal from a public place
Removal from their home address
Detention for up to 24 hours
Compulsory medical treatment against patients wishes
Transfer patients to places of safety
Transfer patients for assessment and treatment
- Which act would be used to determine if an individual had diminished responsibility due to their mental health?
A. Mental Health Act 2007
B. Adults with Incapacity (Scotland) Act 2000
C. Adult Support and Protection (Scotland) Act 2007
D. Criminal Justice and Licensing (Scotland) Act 2010
E. Criminal Procedure (Scotland) Act 1995
D
- Which of the following are the 5 necessary factors when assessing if a treatment order is necessary?
Mental disorder is likely
Poor compliance with treatment
Treatment available
Refusal of treatment by patient
Risk to patient or others
Suitable bed available
Hospitalisation is necessary
