Week 6 Flashcards
Justifying a mental health act
Common law and mental capacity act 2005- competency: cognitive ability to understand and weigh up the key issues relevant to the decision
But mental illness may affect the process of decision- other than cognitively e.g. moderate depression may alter values but the person may still have good cognitive abilities
Justifying overruling refusal of treatment
-argue that the illness interferes with their normal values- so respecting the patients autonomy is to respect what that person wants when free from depressive illness
-argue that it is right because it is in their best interests (and others) todo so and they’re suffering from a mental illness
-English law takes this second (paternalistic approach), at least about the treatment of the mental (not physical) illness
Overruling refusal of treatment
A person can be treated for a mental disorder under the MHA without reference to their capacity
Ethical problems with this approach
Override a competent patients refusal:
-either it assumes that the presence of a mental illness automatically renders someone incompetent (false) or it simply discriminates between the physically and mentally ill
Protection of others as well as the patient- not usual in physical disorders to be treated for someone else’s sake
Protection of the patients or the protection of others
The question of capacity is central to overriding refusal for the sake of the person himself
The main method by which society protects itself from those dangerous to others is through the criminal law- it may be inappropriate to use the criminal law in the case of some mentally ill-they are not responsible for their dangerous acts. The central issue in the case of dangerousness to others is not capacity but responsibility
MHA: discrimination
-allows a competent patient’s refusal to be overruled
-gives society much wider powers forcibly to restrain for the protection of others, mentally disordered people compared with those without mental disorder
-eg dangerous mentally ill can be detained almost indefinitely
But those without mental disorder cannot be kept in a secure place, however dangerous they are thought to be, if they have either not yet committed a crime or have served their prison sentence
Mental health act 1983
Mental disorder
‘Dangerous’ to either themselves or others
Informal and compulsory admissions
Compulsory admission 3 routes:
- Admission for assessment S.2
- Emergency assessment S.4
- Admission for treatment S.3
Admission for assessment S.2
GROUNDS:
-A:mental disorder= ‘nature and/or degree’ which warrants detention- assessment
And
B: dangerous (to self or others),
application by NR/AMHP,
supported by 2 Drs (1 psychiatrist),
lasts for up to 28 days
Emergency assessment S.4
GROUNDS the same as S.2 i.e
A- mental disorder= ‘nature and degree’ which warrants detention assessment
And
B-dangerous (self/others
Application 1Dr
-up to 72 hours
Admission for treatment S.3
GROUNDS:
A-mental disorder= ‘nature’ which warrants treatment in hospital
And
B- dangerous (self/others)
And
Mental illness is ‘treatable’= alleviate or prevent deterioration in mental illness
Treatment includes symptoms
Application similar to S.2- although where SW makes the application NR must be consulted
-up to 6 months
-period is renewable
-cannot be used to enforce treatment on an out-patient basis
Section 1: removal of categories of mental disorder
Section 1 amended the wording of the definition of mental disorder in the 1983 act from ‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind’ to
“Any disorder or disability of the mind”
Section 4: replacement of “treatability” and “care” tests with appropriate treatment
Section 4 introduced a new “appropriate medical treatment test” into the criteria for detention under section 3 of the 1983 act, related sections of part 3 and the corresponding criteria for renewal and discharge. The effect was that these criteria could not be met unless medical treatment is available to the patient in question which is appropriate taking account of the nature and degree of the patients mental disorder and all other circumstances of the case
Professional roles
Chapter 2 provided for roles which are central to the operation of the 1983 act potentially to be performed by a wider range of professionals than previously. In particular it replaces the role of the ‘responsible medical officer” (RMO) with that of the “responsible clinician” RC and the role of the ‘approved social worker’ ASW with that of the “approved mental health professional “ AMHP
Safeguards for patients
Patients nearest relative
Section 23 introduced a new right for a patient to apply for an order displacing the NR on the same grounds available to other applicants under the 1983 act as it stands and on the additional ground that the NR is unsuitable to act as such
Electro-convulsive therapy
Section 27 inserted a new section 58A into the 1983 act. That new section provided that ECT and any other treatment provided for by regulations made under subsection (1)(b), can only be given when the patient either gives consent or is incapable of giving consent
Supervised community treatment
The supervised community treatment SCT provisions allow some patients with a mental disorder to live in the community whilst still being subject to powers under the 1983 act. Only those patients who are detained in hospital for treatment
Essential issues
Every competent adult has a legal right to refuse treatment even if life saving
They need not give any explanation, rational or otherwise
This respects the individuals right to autonomy
Capacity should be assumed until proven otherwise by a functional assessment
Suicide is no longer a criminal act
“Common law principles”
Is there capacity to refuse treatment?
-common law principles allowed treatment in an emergency, to prevent loss of life or deterioration of health in someone without capacity
Incorporated as statue in mental capacity act with guidance on “substitute decision making”
Is there a mental disorder here?
-there may be a need for a mental health act assessment in arranging treatment for ongoing mental disorder
Competence (mental capacity act 2005)
Take in and retain information
Understand that information (in appropriate terms)
Weight up the information to arrive at a decision
Communicate that decision
The mental health act acknowledges that mental disorders can impair capacity
However compulsory hospital admission and treatment are only for that mental disorder or a physical illness contributing to that disorder or now physical consequences of the disorder
“Appropriate treatment” must be available
Mental capacity act v mental health act
Initial guidance was to use MCA in the first instance as the “least restrictive” option compared with MHA
Subsequent case law reversed the guidance
Where a patient met the criteria for detention under the MHA had to be used
However this has been complicated by other judgements and every case should be considered individually
Mental health act 1983 amended 2007
8 years in the making
Heated debate
2 abandoned bills
Finally amendments of the 1983 act
-broadened definition of mental disorder
-removal of exclusions
-appropriate treatment test
Supervised community treatment
Conditions set by RC on a community treatment order- treatment, attendance at appointments etc
Must be considered for any patient on section 3 who is going on 7 days s17 leave or more
Initial estimates of ~600 orders nationally
Probably 10x that number of people and therefore greater numbers of patients still subject to compulsion
“The psychiatric ASBO and just like a lobster pot”
The OCTET study found absolutely no difference in outcome between CTO and control
some historical perspective
WW II: 3-7 million people forced to move during, 11 to 12 million forced to move afterwards
Partition of India (1947): displaced >14 million people along religious lines, large scale violence- estimates of several hundred thousand to 2 million dead
Why do people migrate
Work, educational, or family reasons
-able to financially support themselves and have access to healthcare
-migration even in favourable circumstances does create some vulnerabilities eg: distancing from habitual support mechanisms and lack of familiarity with culture with social structures
Who migrates and why? National picture UK
Data is gathered from a variety of sources in an attempt to capture the complexity
-national insurance numbers, GP registrations, population surveys, national census
It’s almost impossible to gain an accurate picture of undocumented migration and how many people are here illegally
-as the “windrush crisis” has shown some people are unaware of their own immigration status/official bodies may not be aware of their status
Estimated 674000 people have irregular or undocumented immigration status: around 400000 live in London, the number of undocumented children increased 56% between 2011 and 2017, this is likely to rise dramatically as a result of the illegal migration act 2023
Reasons for immigration to the UK (excluding asylum)
-49% work
-12% joining or accompanying family
-27% for study
-13% other/no reason stated
Birmingham is diverse
Both net migration and the diversity of new arrivals is increasing
Home to people of more than 187 different nationalities
A “majority minority” city
In the 2021 census 26.7% population had been born overseas, 39.5% of those born overseas have been in UK for less than 10 years
In some wards almost 30% of residents have a main language other than English and around 10-12% cannot speak English well or at all
- in some wards 15-20% of households do not have a single household member over 16 who speaks English as a main language
Forced migration
Refers to the movements of refugees and internally displaced people (those displaced by conflicts) as well as people displaced by natural or environmental disasters, chemical or nuclear disasters, famine, or development projects
Reasons for forced migration also include:
-climate change impact of this is especially severe where other pressures on food security eg conflict
-persecution on basis of religious or political beliefs/activity or sexual orientation
Mixed migration
Mixed movements (or mixed migration) refers to flows of people travelling together
Moving in an irregular manner over the same routes and using the same means of transport
The men, women and children travelling in this manner often have either been forced from their homes by armed conflict or persecution or are on the move in search of a better life
People travelling as part of mixed movements have varying needs
May be asylum seekers, refugees, stateless people, victims of trafficking, unaccompanied or separated children and migrants in an irregular situation
Mixed movements are often complex, and can present challenges for all those involved
Mixed migration 2
Mixed migrations occur in a range of political and social contexts that impose their own challenges:
-the “opening of the borders” and germanys welcome in 2015
-progressive closure of the Macedonian border in 2016-INDOMENI
-the Greek economic crisis was background to this
—economy shrank 26% since 2008, public services devastated
-60000+ stranded in a society without means to support them
-the most expensive (per head) humanitarian crisis in history
-70 dollars in every 100 spent wasted
The migration cycle. Migration is not a single journey
Origin (predeparture and re migration),
Health and wellbeing of people and populations
Destination (temporary or circular or permanent (resettlement)
Short term transit
Interception
Longer term transit
Return
Trafficking
“The recruitment, transportation, transfer, harbouring or receipt of persons by means of threat or use of force or other forms of coercion, of abductions of fraud, of deception, of the abuse of power, or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person, resulting in control over another person, for the purpose of exploitation”
Migrants are vulnerable to trafficking before, during or after their journey
‘National referral mechanism” - an official 45 day recovery programme for victims of trafficking after which they may or may not claim asylum or accept repatriation
Smuggling
A person or persons pay another party to transport them illegally from one country to another
The person is free once they reach their destination
Its always illegal
Some terms- how people move
Modern slavery:
-define by the modern slavery act 2015
-“knowlingly holding a person in slavery or servitude or knowingly requiring a person to perform forced or compulsory labour”
Includes trafficking and exploitation
Over laps with smuggling
-the person paying the smuggler may be offered terms- eg “pay later” and given a deadline -this person is then vulnerable to bonded labour and other abuses
Resettlement:
-official programmes to move recognised refugees from LMIC to high income countries eg Syrian vulnerable persons resettlement scheme