Risk and Legal Frameworks & MH legislation

Question 1

What is the mental health act?

Answer 1

• Legal framework for detaining and treating patients with psychiatric illness
• Used when patients are unwilling or lack capacity to consent
• Three main criteria:
  
  1. Mental disorder of a nature or degree which makes it appropriate for them to receive treatment in hospital
  2. Risk to self or others
  3. Appropriate treatment must be available
• Two notable exclusions:
  
  1. Dependence on drug or alcohol
  2. Learning disabilities

Question 2

What are community police holding powers?

Answer 2

• Used by the police if a mental illness is suspected and the person needs immediate ‘care or control’ for the interests of that person or the protection of others.
• Section 136 – public place
• Section 135 – private address
• Section 4 - emergency detention

Question 3

What is section 136?

Answer 3

• Section 136 – public place
  
  • Used to take a person from a public place to a place of safety
  • Can be a patient’s home, friend’s/relative’s home, a hospital or a police station
  • Warrant not required
  • Can be kept on this section for 24 hours – this may be extended for an additional 12 hours
  • Should be discussed with AMHP/clinician

Question 4

What is a section 135?

Answer 4

• Section 135 – private address
  
  • Allows police access to a private address without permission – including necessary property damage
  • Requires a warrant from the magistrate’s court and is address specific
  • Also used to take patient to place of safety
  • Same time-scale as above.
  • Must be accompanied by an AMHP & registered medical practitioner

Question 5

What is a section 4?

Answer 5

• Emergency application for admission when only one doctor is available at short notice
  
  • They should know the patient or be Section 12 approved
  • Rarely used and should be avoided if possible
• Must meet the criteria for other sections in addition to:
  
  • Greater level of urgency needed to admit to hospital
  • Finding another doctor would cause an ‘undesirable delay’
• Application can be made by an approved mental health professional (AMHP) or nearest relative
• Detention lasts for up to 72 hours
  
  • Not renewable but if second medical recommendation by hospital managers within this time can be converted to a Section 2

Question 6

What is section 5?

Answer 6

• Used to detain a patient who is already in hospital
• Nurses’ holding power – Section 5(4)
  
  • Only usable by trained mental health or LD nurses if no doctor is available & only in a psychiatric hospital
  • Can hold a patient for up to 6 hours – cannot be renewed
• Doctors’ holding power – Section 5(2)
  
  • Only usable by fully registered doctors (FY2 and above)
  • Can hold a patient for up to 72 hours – cannot be renewed or extended
    
    • If previously on section 5(4), 72 hours starts from when 5(4) was started
  • A written report must be submitted to hospital managers

If a voluntary patient asks to leave they must be allowed to do so or a section be implemented. Section 5 is only used if section 2 or 3 are not possible if the time-scale required

Question 7

What is a section 2?

Answer 7

• Admission for assessment (+/- treatment)
• Provides the time for doctors to determine:
  
  • Type of mental disorder
  • Whether treatment is required
  • What treatment this will be and the likely impact on overall health
• Patient may be kept in hospital for up to 28 days
  
  • Cannot be renewed
• Requires recommendation from 2 doctors and 1 AMHP
  
  • One doctor must have seen patient within 14 days
  • One doctor must be section 12 approved
  • AMHP is usually a social worker
• Treatment can be given against patient’s will on this section – assuming the criteria for the treatment is met

The AMHP will opt for a Section 2 over a section 3 if the patient has never been assessed or it has been a long time since last assessment

Question 8

What is a section 3?

Answer 8

• Admission for treatment
• Carried out in the same way, by the same professionals as section 2
• Patient may be kept in hospital for 6 months
  
  • This may be renewed for a further 6 months if required then up to a year at a time
• Patient may be treated without their consent for 3 months – after this requires approval by a ‘second opinion appointed doctor’ (SOAD)

Question 9

What are the sections involved when leaving hospital following detention?

Answer 9

• Section 17 – temporary leave
  
  • Allows patients detained under the MHA temporary leave from hospital
  • Used as a stepping stone towards recovery and discharge
• Section 117 – aftercare
  
  • Patients detained in hospital under certain sections of the MHA are entitled to help in the community following discharge
  • This may include healthcare, social care and supported accommodation

Question 10

What is a community treatment order (CTO)?

Answer 10

• Supervised treatment in the community
  
  • Can be used following discharge if a patient has been detained under certain sections of MHA
• Certain conditions must be met to ensure the patients continued wellbeing
  
  • Failure to meet these conditions may result in readmission to hospital
  • The patient’s clinician can keep the patient in hospital for up to 72 hours before deciding what to do next
  • Full MHA assessment is not required if patient is to be put back on section 3 (i.e. CTO is “converted” to S3)
• CTOs may be challenged by patients/NRs if they believe it inappropriate

Question 11

What are the principles of the mental capacity act 2005?

Answer 11

1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
2. People must be supported as much as possible to make their own decisions before anyone concludes that they cannot do so.
3. People have the right to make what others might regard as unwise or eccentric decisions.
4. Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
5. Anything done for, or on behalf of, people without capacity should be the least restrictive of their basic rights and freedoms.

Question 12

How to assess capacity for the mental capacity act 2005?

Answer 12

• The functional test of capacity (step1)
  
  • To be able to make a decision about whether an individual has the mental capacity to make a particular decision, it must first be established whether there is an impairment of, or disturbance in, the functioning of the person’s mind or brain (it does not matter if this is permanent or temporary).
• Are they able to make a decision? (step2)
  
  • If there is, the second question to ask is whether the impairment or disturbance makes the person unable to make the particular decision. The person will be unable to make the particular decision if, after all appropriate help and support to make the decision has been provided, he or she cannot:
  • understand the information relevant to that decision;
  • retain that information;
  • use or weigh that information as part of the process of making the decision;
  • communicate their decision (whether by talking, using sign language, pictures, symbols, Makaton or any other means)

Question 13

When should capacity be assessed? (mental capacity act 2005)

Answer 13

• The MCA makes clear that any assessment of a person’s capacity must be ‘decision-specific’. This means that:
  
  • the assessment of capacity must be about a particular decision that has to be made at a particular time
  • if someone cannot make complex decisions this does not mean that they cannot make simple ones.
  • decisions about capacity must not be based on a person’s age, appearance, condition or behaviour alone.

Question 14

Overall sections relevant to the mental health act

Answer 14