VIEWS: 16 PAGES: 24 POSTED ON: 4/9/2010
Six Questions • What are the main articles of the ECHR? • What the 5 principles of the HRA? • What is the diagnostic test definition of mental incapacity in S2 of the MCA? • What is the test for inability to make a decision that is given in S3 of the MCA? • What is the definition of mental disorder in S1 of the MHA? • What are the 5 guiding principles of the MHA, as found in the Code of Practice? THE HUMAN RIGHTS ACT 1998 • The Convention guarantees the following rights and freedoms: • Article 2: The right to life • Article 3:The Right to Freedom from Torture and Inhuman or Degrading Treatment or Punishment • Article 4:The Right to Freedom from Slavery, Servitude and Forced or Compulsory Labour • Article 5: The Right to Liberty and Security of Person. • Article 6: The right to a fair and public trial within a reasonable time. • Article 7: The Right to Freedom from Retrospective Criminal Law and no Punishment without Law • Article 8: The right to respect for private and family life, home and correspondence • Article 9: The Right to Freedom of thought, conscience and religion • Article 10: The Right to Freedom of Expression • Article 11: The Right to Freedom of assembly and association • Article 12: The Right to marry and found a family • Article 14: The prohibition of discrimination in the enjoyment of convention rights. • Article 3:The Right to Freedom from Torture and Inhuman or Degrading Treatment or Punishment • Article 5: The Right to Liberty and Security of Person. • Article 8: The right to respect for private and family life, home and correspondence MCA Section 2: People who lack capacity For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Principles of the Mental Capacity Act • Assume a person has capacity unless proved otherwise • Do not treat people as incapable of making a decision unless you have tried all practicable steps to help them • Do not treat someone as incapable of making a decision because their decision may seem unwise • Do things or, take decisions for people without capacity in their best interests • Before doing something to someone or making a decision on their behalf, consider whether you could achieve the outcome in a less restrictive way • Plumb PLUMB Presume capacity Less restrictive Unwise decisions Maximise Best Interests Section 3: Inability to make decisions A person is unable to make a decision for himself if he is unable- (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). URUC Definition of Mental Disorder "Mental Disorder" means any disorder or disability of the mind. But a person with learning disability shall not be considered by reason of that disability to be suffering from mental disorder for the purposes of the act; or requiring treatment in hospital for mental disorder, unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part. Chapter 1 of the Code of Practice to the Mental Health Act 1983 - Guiding principles • Purpose principle • Least restriction principle • Respect principle • Participation principle • Effectiveness, efficiency and equity principle PURPLE (without U) Some Practice Issues • Approval by one authority (who decides) • How is the information shared? • How many of you work for more than one authority? • Part-time contracts or amalgamated services? • The adults or children’s services • Do you have an insurance policy? • If it goes wrong who will take responsibility for you? Sections 1,2,3,4 and 13 Mental Health Act Section 1 Change to definition of mental disorder Section 2 No change Section 3 Changes Section 4 No change Section 13 Changes Do EDT workers ever use section 3 of the act? Some thoughts: 1. It’s not an emergency order? 2. When you carry out a MHA assessment do you assume its for a 2? 3. If the patient’s well known, why not S3? 4. What is the significance of treatment? 5. Who organises the bed to the named hospital? Section 2 issues 1. Is section 2 the section of choice? 2. Do we always consult with the nearest relative? 3. If not do we follow up afterwards? 4. Would it be better to use section 4 and await a doctor who knows the patient rather than 2 section 12’s who don’t? 5. If you make a section 2 are you then responsible for a follow up section 3 if requested? Section 2/3 case It's Saturday November the 8th 2008. A man has been found at a railway station in south London the police are called and they are so concerned for his mental health and have placed him on a section 136. He is taken to the agreed place of safety. He is clearly unwell and appears to be of no fixed abode. He is placed on a section 2 by the EDT worker. A few days later it comes to light he is from another city (Holby). He is street homeless there and well known to mental health services. There is a street homeless team who help him take his medication. He is transferred to the hospital that knows him well. It is now December the 5th. It has just been realized that the man is still very unwell and that he needs continuing hospital care, he refuses to remain as a voluntary patient. It seems an urgent assessment with a view to section 3 is needed. The hospital have contacted their local EDT who say they do not do section 3 assessments as they are not an emergency but it's now the originating authorities duty to respond because they were responsible for the original section 2. Section 13 MHA Section 13 Duty of approved mental health professionals to make applications for admission or guardianship (1) If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient's case on their behalf. (1A) If that professional is— (a) satisfied that such an application ought to be made in respect of the patient; and (b) of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, he shall make the application. Section 13 MHA (1B) Subsection (1C) below applies where— (a) a local social services authority makes arrangements under subsection (1) above in respect of a patient; (b) an application for admission for assessment is made under subsection (1A) above in respect of the patient; (c) while the patient is liable to be detained in pursuance of that application, the authority have reason to think that an application for admission for treatment may need to be made in respect of the patient; and (d) the patient is not within the area of the authority. (1C) Where this subsection applies, subsection (1) above shall be construed as requiring the authority to make arrangements under that subsection in place of the authority mentioned there. Section 4 • Is it used? • What is urgent necessity? • Does the patient have rights? • Is it better to use as a ―holding power‖ so those (the clinical team) who know the patient can asses more fully on the next working day? Police Powers Sections 135/136 Section 135 Not often used outside of office hours? • Is it used for MHA assessment or to take someone to a place of safety? • May be used to assess on premises (Code 10.4) • What is your local policy? • More than one place of safety • CTO patients and recall Section 136 • Section 135/136 more than one POS. • Where is your place of safety? • Reports of patients being ferried between places of safety • The new POS should agree to accept the patient (Code10.39) • COP 10.45 says it is deemed to be an arrest (rights under PACE) • PACE – searched, finger prints, DNA and legal advice. • Can you admit to a bed on arrival? (Code 10.25) • Should the assessing doctor be a Section 12 (preferred Code10.27) • Joint assessment? (Code10.28) • Not mentally Disordered (Code 10.31) • CTO patients? Patients on CTOs • Patient turns up in A and E or gets arrested taken to police station, request for MHA assessment. • Patient becomes unwell in community, police in attendance. • They are on CTO can you/how do you recall? • Can the RC delegate powers? Nearest Relatives • Do we always consult? • Do we inform them of their rights? • Should we tell patient of new right to displace? • Where there is no NMR do we advise they can ask court to appoint one? Mental Capacity Act Protections • When can you use the protection of the MCA and not use the MHA? • Compliant patients • What is restraint • What is DOL • Use of MCA to move someone • Person taken from home to A and E or POS using the protection of MCA S5/6. Can you then use section 5 MHA? • Do we find out if there is an LPA, Deputy, advance directive or a statement of ―wishes and feelings‖? Deprivation of Liberty DOLs • What are the procedures? • Will EDT workers need to implement them? • Easter weekend? • Who will receive 7 day orders outside of office hours who can extend them for a further 7 days? • Do you what your policies are for recall?
Pages to are hidden for
"THE HUMAN RIGHTS ACT 199820104622230"Please download to view full document