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Year 3 > Legal Aspects of Psychiatric > Flashcards

Legal Aspects of Psychiatric Flashcards

1
Q

why do we have mental health law?

A

gives power to provide compulsory care and treatment

rights and safeguards to make sure those powers are used appropriately

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2
Q

what is the main mental health act used?

A

Mental Health (Care and Treatment) (Scotland) Act 2003

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3
Q

what are the section 1 (Millan) principles of the Mental Health (Care and Treatment) (Scotland) Act 2003?

A
  • Non-discrimination
  • Equality
  • Respect for diversity
  • Reciprocity
  • Informal care
  • Participation
  • Respect for carers
  • Least restrictive alternative
  • Benefit
  • Child welfare
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4
Q

section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 defines mental disorders as

A

any mental illness, personality disorder or learning disability; however caused or manifested

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5
Q

according to section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 a person cannot have a mental disorder only by what?

A

sexual orientation
sexual deviancy
transsexualism
transvestism
dependent on, or use of, alcohol and drugs
behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person
acting as no prudent person would

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6
Q

who can be detained under the Mental Health (Care and Treatment) (Scotland) Act 2003

A

Anyone over the age of 18. Under 18s can still be detained but must be under the supervision of a
child or adolescent specialist (CTO etc). Wherever possible specialist resources for children should be
used.

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7
Q

what are the key civil compulsory powers described in the Mental Health (Care and Treatment) (Scotland) Act 2003?

A

emergency detection certificate
short-term detention certificate
compulsory treatment order
nurses holding power

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8
Q

who can issue a emergency detection certificate?

A

registered medical practitioner - F2>

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9
Q

to detain someone under an emergency detection certificate you must consider it likely that?

A

o The patient has a mental disorder; and
o Because of that mental disorder, the patient’s decision-making ability with regard to
medical treatment for that mental disorder is significantly impaired

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10
Q

how long can a person be detained under an emergency detection certificate??

A

72 hrs

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11
Q

to detain someone under an emergency detection certificate you must also be satisfied that?

A

o 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
o 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
o Making arrangements with a view to granting a short-term detention certificate
would involve undesirable delay

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12
Q

how long can a person be detained with a short-term detention certificate?

A

28 days

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13
Q

who can issue a short-term detention certificate?

A

approved medical practitioner - reg

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14
Q

to issue a short-term detention certificate you must consider it likely that?

A

o The patient has a mental disorder;
o Because of the mental disorder, the patients ability to make decisions about the
provision of medical treatment is significantly impaired;
o 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;
o 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
o The granting of a short-term detention certificate is necessary

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15
Q

who must make an application to issue a compulsory treatment order?

A

Mental Health Officer

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16
Q

to where is the application for a compulsory treatment order made?

A

Mental Health Tribunal

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17
Q

before issuing a compulsory treatment order reports must be mental health reports must be gained from how many people? who?

A

2
usually GP and approved medical practitioner
2 approved medical practitioners

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18
Q

to issue a compulsory treatment order you must be satisfied that?

A

o The patient has a mental disorder
o Medical treatment is available and would be likely to prevent deterioration or
alleviate symptoms
o Without treatment there would be significant risk to health, safety or welfare of
patient or safety of others
o Mental disorder significantly impairs decision making ability
o Making of compulsory treatment order is necessary

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19
Q

what are the general criteria for detention?

A

• 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

20
Q

what is a named person and their rights?

A

a right to be party to proceedings

nominated by the patient and witnessed and the named person must have a witnessed acceptance

21
Q

in regards to access to advocacy what is the right of every person with a mental disorder?

A

access

independent of the care team and there to translate patient wishes

22
Q

an adult with incapacity means incapable of what?

A 
acting
making decisions
communicating decisions
understanding decisions
retaining the memory of decisions
23
Q

what law deals with incapacity?

A

adults with incapacity (scotland) act 2000

24
Q

how does the adults with incapacity act protect those with communication difficulties?

A 
As mentioned in any provisions of this Act, by reason of mental disorder or of inability to communicate
because of physical disability; but a person shall not fall within this definition by reason only of a lack
or deficiency in a faculty of communication if that lack or deficiency can be made good by human or
mechanical aid (whether of an interactive nature or otherwise).
25
Q

the adults with incapacity act assumes what?

A

capacity is present until proven otherwise

26
Q

what principles must be considered when applying the adults with incapacity act

A

o The intervention must benefit the adult
o Any intervention shall be the least restrictive in relation to the freedom of the adult,
consistent with the purpose of the intervention
o Account must be taken of the past and present wishes of the adult
o Where practicable, account should be taken of
§ The views of relatives and carers
§ The views of relevant others (guardians, attorneys, etc.)

27
Q

what does capacity depend on?

A

the situation - decision specific

28
Q

what is an interventions order?

A

one off power required

application to the court

29
Q

what is a guardian?

A

someone who is appointed by court to make decisions on behalf of the adult (financial or welfare or both)

30
Q

the adults with incapacity act does not authorise

A

• The use of force or detention, unless it is immediately necessary and only for so long as is
necessary in the circumstances;
• Action which would be inconsistent with any decision by a competent court;
• Placing an adult in a hospital for the treatment of mental disorder against his will.
The authority conferred by subsection (2) shall not authorise medical treatment prescribed in
regulations made under section 48.

31
Q

describe the Police Powers Section of the Criminal Procedure (Scotland) Act 1995

A
  • 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 hrs
  • Purpose to allow assessment and make arrangements for their care and treatment
32
Q

according to the Criminal Justice and Licensing (Scotland) Act what is criminal responsibility of those persons with a mental disorder?

A

(1) A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.
(2) But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct.
(3) The defence set out in subsection (1) is a special defence.
(4) The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities.
(5) In this section, “conduct” includes acts and omissions.

33
Q

according to the Criminal Justice and Licensing (Scotland) Act what is unfitness for trial?

A

(1) A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial.
(2) In determining whether a person is unfit for trial the court is to have regard to—
(a) the ability of the person to—
(i) understand the nature of the charge,
(ii) understand the requirement to tender a plea to the charge and the effect of such a plea,
(iii) understand the purpose of, and follow the course of, the trial,
(iv) understand the evidence that may be given against the person,
(v) instruct and otherwise communicate with the person’s legal representative, and
(b) any other factor which the court considers relevant.
(3) The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge.
(4) In this section “the court” means—
(a) as regards a person charged on indictment, the High Court or the sheriff court,
(b) as regards a person charged summarily, the sheriff court.”.
(2) The title of section 54 of the 1995 Act (insanity in bar of trial) is replaced by “Unfitness for trial: further provision”, the cross-heading which precedes it is omitted and the section is amended as follows—
(a) in subsection (1)—
(i) the words “, on the written or oral evidence of two medical practitioners,” are repealed, and
(ii) for “insane” substitute “ unfit for trial ”,
(b) in subsection (3)—
(i) for “the insanity of a person” substitute “ whether a person is unfit for trial ”, and
(ii) after “mental” insert “ or physical ”, and
(c) in subsection (5), for “insane” substitute “ unfit for trial ”.
(3) Subsections (6) and (7) are repealed.

34
Q

according to the Criminal Justice and Licensing (Scotland) Act what is diminished responsibility?

A

(1) A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.
(2) For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder.
(3) The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself—
(a) constitute abnormality of mind for the purposes of subsection (1), or
(b) prevent such abnormality from being established for those purposes.
(4) It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied.
(5) In this section, “conduct” includes acts and omissions.”.

35
Q

discuss restricted patients

A
  • 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
36
Q

what are the forensic sections of law?

A
  • Compulsion Order and Restriction Order – Section 57 and 59 of 1995 Act
  • Assessment Order – Section 52 1995 Act
  • Treatment Order – Section 52 1995 Act
  • Interim Compulsion Order
  • Transfer for Treatment Direction – Section 136
  • Hospital Direction – Section 59A 1995 Act
37
Q

what is the effect of being restricted?

A 
• Defined in Part 10 of the 2003 Act
• Special Provisions for Leave
o MAPPA and SGMHD
• Oversight by Scottish Ministers
• Duties on ministers and RMO to review at certain points
• Specific functions for the tribunal
38
Q

to issue an assessment order the court must be satisfied by one registered medical practitioner that there is?

A 
o Mental disorder
o Detention in hospital is necessary
o Civil risk criterion met
o Treatment
o Suitable bed available within 7 days
o Assessment could not be undertaken if not in hospital
39
Q

to issue an assessment order the court has to consider:

A

o All the circumstances (including the offence)

o Any alternative means of dealing with the person

40
Q

how long does a treatment order last?

A

until final disposal or another order is granted

41
Q

in order to issue a treatment order the court must be satisfied on the basis of evidence who?

A

from two medical practitioners one must be approved

42
Q

in order to issue a treatment order the court must be satisfied about what?

A

§ Mental disorder
§ Treatable
§ Civil Risk
o Suitable bed available within seven days
§ Reasonable alternative? Necessity
o Need to consider the other things above
• Treatment may be given under part 16.

43
Q

court must be satisfied from the evidence of who to issue a compulsion order?

A

from two medical practitioners one must be approved

44
Q

in order to issue a compulsion order the court must be satisfied about what?

A 
o Mental disorder
o Availability of medical treatment
o Significant risk
o Necessary to be in hospital
• Need to consider the level of security
• Need to consider if a restriction order is necessary
45
Q

discuss a restriction order

A

• (s.59 of the 1995 Act) Court must hear ORAL evidence from at least one medical practitioner
• Court must be satisfied that the criteria are met
o Having regard to the nature of the offence with which he is charged;
o The antecedents of the person; and
o The risk that as a result of his mental disorder he would commit offences if set at large
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

46
Q

what are the effects of a restriction order?

A
  • 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.

Year 3 (164 decks)

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