Legal Aspects of Psychiatry

Question 1

List the 5 Statutory Principles of the Mental Capacity Act?

Answer 1

1. All persons must be assumed to have capacity until proven otherwise.
2. A person is not to be treated as unable to make a decision unless all practical steps to help them do so have been taken.
3. Just because a person makes a decision which is considered to be unwise does not mean they don’t have capacity.
4. Any decisions made on behalf of a person who lacks capacity should always be in their best interests.
5. Any decision made on behalf of a person who lacks capacity should always be the least possible restrictive option.

Question 2

How is Mental Capacity Assessed?

Answer 2

The Mental Capacity Act sets out a 2-stage test of capacity:

1) Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?

2) Does the impairment mean the person is unable to make a specific decision when they need to?

Question 3

What criteria must be met for a person to have capacity?

Answer 3

1. Person must be able to understand information relevant to the decision in question.
2. Person must be able to retain the information long enough to make and communicate their decision.
3. Person must be able to use/ weigh up the information in order to make their decision.
4. Person must be able to communicate their decision.

Question 4

Who does the Mental Health Act Apply to?

Answer 4

The Mental Health Act Scotland 2003 applies to people who have a mental disorder - defined under the act and includes any mental illness, personality disorder or learning disability.

Question 5

What are the Main Civil Compulsory Order which can be issued?

Answer 5

1. Emergency Detention Certificate.
2. Short-Term Detention Certificate.
3. Compulsory Treatment Order.
4. Nurses Holding Power.

Question 6

Which Criteria must be met for an Emergency Detention Certificate to be Authorised?

Answer 6

It is likely that:
1. The patient has a mental disorder.
2. Because of that mental disorder, the patient’s decision-making ability with regard to medical treatment for that mental disorder is significantly impaired.
3. 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.
4. 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.
5. Making arrangements with a view of granting a short-term detention certificate would involve undesirable delay.

Question 7

What is an Emergency Detention Certificate?

Answer 7

An emergency detention certificate allows a person to be held in hospital for up to 72 hours whilst their condition is assessed (does NOT allow for the provision of treatment EXCEPT in an emergency)

Question 8

Who can Authorise an Emergency Detention Certificate?

Answer 8

Any registered medical practitioner can authorise an emergency detention certificate (FY2 and above)

Question 9

Can Patients Appeal an Emergency Detention Certificate?

Answer 9

No patients have no right to appeal an emergency detention certificate.

Question 10

What is a Short Term Detention Certificate?

Answer 10

A short term detention certificate authorises a person’s detention in hospital for up to 28 days and allows for the provision of medical treatment.

Question 11

Who can Authorise a Short Term Detention Certificate?

Answer 11

Only an Approved Medical Practitioner (Psychiatrist) can authorise a short-term detention certificate and they must obtain consent from a Mental Health Officer.

Question 12

Which Criteria Must be Met Before a Short Term Detention Certificate can be Authorised?

Answer 12

1. The patient has a mental disorder.
2. Because of the mental disorder, the patient’s ability to make decisions about the provision of medical treatment is significantly impaired.
3. 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.
4. 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 another person.
5. The granting of a short-term detention certificate is necessary because the patient is refusing to accept treatment on a voluntary basis.

Question 13

Can Patients Appeal a Short Term Detention Certificate?

Answer 13

Yes - both the patient and the patients named person have a right to apply to the Tribunal under section 50 for a revocation of the short-term detention certificate.

Question 14

Can Short Term Detention Certificates be Extended?

Answer 14

Yes, an Approved Medical Practitioner can extend a short-term detention certificate by three working days.

Question 15

What is a Compulsory Treatment Order?

Answer 15

An application for a CTO can only be made by a Mental Health Officer to the Mental Health Tribunal and must include:
1. Two medical reports by doctors who have examined you.
2. A report by the MHO making the application.
3. A proposed care plan setting out the care and treatment that you would be given if you were put on the CTO.

Question 16

Who makes up the Mental Health Tribunal?

Answer 16

The mental health tribunal in Scotland is made up of:
1. A legally qualified member (convenor)
2. Medical Member (psychiatrist)
3. General Member (experience or qualifications in social care)

Question 17

How long does a Compulsory Treatment Order Last?

Answer 17

Generally lasts for 6 months and is then reviewed 5

Question 18

What is Nurses Holding Power?

Answer 18

Nurses holding power allows ONLY a Mental Health Nurse or Learning Disability Nurse to prevent a patient from leaving hospital for up to 3 hours to allow for medical assessment.

Question 19

What is a Guardianship Order?

Answer 19

A guardianship order is where the court appoints a person to act and make decisions on behalf of an adult with incapacity.

Question 20

What is Power of Attorney?

Answer 20

Power of attorney is where someone who currently has capacity appoints a person to act and make decisions on their behalf should they at any point in the future lack capacity to make decisions.