• 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
• 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
• 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
• 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
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
• Before doing something to someone or making a decision on
their behalf, consider whether you could achieve the outcome
in a less restrictive way
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
(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).
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
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
• Part-time contracts or amalgamated
• The adults or children’s services
• Do you have an insurance policy?
• If it goes wrong who will take responsibility
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?
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
Section 2 issues
1. Is section 2 the section of choice?
2. Do we always consult with the nearest
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
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
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
(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.
• 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
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 135/136 more than one POS.
• Where is your place of safety?
• Reports of patients being ferried between places of
• The new POS should agree to accept the patient
• COP 10.45 says it is deemed to be an arrest (rights
• PACE – searched, finger prints, DNA and legal
• Can you admit to a bed on arrival? (Code 10.25)
• Should the assessing doctor be a Section 12
• 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
• Can the RC delegate powers?
• Do we always consult?
• Do we inform them of their rights?
• Should we tell patient of new right to
• 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?