TREATMENT IN HOSPITAL
(1) treated the same as general public patients e.g. can refuse treatment and leave etc
(2) Re: T (1992) - all adults have right to refuse treatment, but if the patient is mentally incapable of making a decision doctor has duty to treat in best interests of patient
(1) Part IV MHA allows treatment without consent even if patient is mentally capable to decide
(2) this only applies to treatments for the MD right to refuse other treatments is unaffected - Re: C (1994)
(3) this raises issues of if this were to stretch to all walks of life and all addicts etc could be detained (Scott-Moncrief)
Part IV - MHA 1983
(1) most serious treatments (psycho-surgery) require Ps consent and a second opinion (s.57)
(2) less severe treatments require Ps consent or a second opinion (s.58)
(3) these can be overridden in an emergency (s.62)
(4) capable Ps are not overridden when it comes to ECT (s.58(a))
(5) any other treatment at the direction of the responsible clinician can be imposed (s.63)
(6) treatments need to be a therapeutic necessity to be impose-able - B v RMO
(1) statutory definition under s.145
(2) treatments that can be imposed on Ps include a 'range of ancillary acts' - B v Croydon (1995)
(3) this includes control/discipline - Pountney v Griffiths (1976)
(4) there can be some 'unspoken' powers that are ancillary to treatment - R v Broadmoor (1998)
(1) scope is quite broad although it can only apply to treatments for MDs not physical disorders although this line is ambiguous.
(2) could potentially be said that treatment for a physical disorder would make P feel better so would treat MD too (Bartlett)
(1) drugs - constitute about 25% of the prescriptions from the NHS. Include a lot of stabilisers and levellers that can chemically 'castrate' a patient. Skill of clinician comes with balancing side-effects of drugs with benefits they bring.
(2) ECT - last resort and provides temporary relief.
(3) psycho-surgery - e.g. lobotomy, used extremely rarely and requires consent every time
(4) non-physical - including counselling, CBT etc
Article 3 - ECHR
(1) as long as a treatment is a therapeutic necessity it can never be a degrading/inhuman. It's down to court to decide if it is a medical/therapeutic necessity.
(1) to be legal it needs to be:
(b) freely given
(e) specific to decision being made
(2) it has been suggested that the fear of sectioning or extended time in hospital is a form of coercion that could vitiate consent.
(3) coercion is based on if P is willingly making decision or just saying stuff for a 'quiet' life (Re: T), many IPs would fit this (Bartlett)
(1) doctors are only liable for non-disclosure (to patient) if the particular risk of the non-disclosed information was 'so obviously necessary' to make an informed choice - Bolam v Friern (1957)
(2) it has been suggested that most patients are unaware or dissatisfied with the information they've been given - Goldrick (1997); Brown (2001)
(1) s.139 allows for 'reasonable restraint' to be used in the course of Ps treatment.
(2) this has to be a medical necessity however - Herczegfalfy
(3) has been recognised by Courts that there does need to be restrictions on how much restraint etc should be used (Munjaz)
(1) s.2 cannot be renewed.
(2) s.3 can be renewed under s.20 which initially is at 6-months and then annually.
(3) s.20 requires the responsible clinician to decide if criteria for renewal is satisfied 2-months before detention is meant to expire.
(4) s.20(4) criteria:
(a) mental disorder, which makes it appropriate for treatment,
(c) necessary for health/safety of self/others
(d) appropriate medical treatment is available
s.17 = authorised temporary leave
(1) following B v Barking Havering (1999) - detention can be renewed whilst a patient is on leave however, they must require some inpatient treatment.
(2) inpatient requirements are very lax, potentially only needing 2-days p/week - R v Mersey Care (2002)
(1) s.2/3 detention can be applied for by an approved mental health professional (AMHP) or the nearest relative.
(2) this application is made to the managers of the hospital
(3) gives legal power to applicant to convey patient to hospital
(4) as long as all paper work is in order (which is extensive)
(5) s.12(2) - need two medical professionals but only one needs to be a psychiatrist, other could be a GP
(1) trained to work in mental health and to safeguard patients rights, otherwise decisions would only be down to doctors
(2) working for patients, to give them a voice, not to work for clinicians (although they might help them out)
(1) s.11(5) - must personally meet patient 14 days prior to admission
(2) s.13(2) - this must satisfy them that detention is appropraite care option
(3) length of interview is discretionary, only 20 minutes can be sufficient - Re: Makin (2000)
(4) if patient is uncooperative then meeting is not necessary - R(M) v Queen Mary (2008)
(1) defined under s26:
s.26(1) - husband/wife, son/daughter, father/mother, brother/sister and eldest prevails (e.g. if more than one sibling)
s.26(6) - husband/wife includes 6-months + cohabitees and civil partners
s.26(4) - relatives who patient usually resides with given priority
s.26(7) - anyone else who has ordinary resided with patient for 5 years or more can be considered a NR
(1) if the NR is abusive it can be a breach of ECHR Art. 8 to not allow patient to appoint own NR - JT v UK (2000)
(2) this was extended to 'hatred' of NR so patient could displace - R v S/S for Health (2003)
(3) following common law consolidation in MHA 2007 if a court believes patient choice is unsuitable, or no nomination is made, then they can appoint the NR
Objection or Unknown
(1) s.11 - AMHP has duties to contact NR if applying for detention:
s.11(3) - must take reasonable steps as are practicable to inform the person
s.11(4) - must consult NR before application is made, and application cannot be made if NR informs AMHP they object unless objection is impracticable or unreasonable.
s.11(6) - NR must be in UK, not requirement to search elsewhere.
(2) just because patient does not like NR does not mean AMHP cannot take steps to inform them - R v Bristol (2005)
(3) needs to be a 'full' consultation about application - BB v Cygnet (2008)
(4) have to consult NR even if you believe they will object - R(V) v Maudsley (2010)
(5) lots of discretion with AMHP about steps taken - Whitbread v Kingston (1998)
(1) s.29 - any relative, AMHP or patient can apply for a displacement for the NR
(2) s.29(3) - this can be because:
(a) NR does not exist/cannot be found,
(b) is incapable (e.g. due to illness),
(c) unreasonably objects
(d) does not act with due regard for patient welfare
(e) they are otherwise not suitable to act as such.
(3) unreasonable objection is an objective test - Surrey v McMurray (1994)
(4) cannot have extend detention whilst NR proceedings are ongoing due to Art 5 - R (MH) v S/S Health (2005)
Conveyance to Hospital
(1) s.6(1) - once an application is successful any person can use reasonable force to get the patient to the hospital they are being admitted to.
(1) if an application looks in order and 'duly made' hospital have to take no steps to verify facts within it
(2) if they then find application is defective continued detention becomes unlawful, and the patient must be informed, and discharged (s.23), and a note recorded.
(3) under s.15(1) administrators can rectify mistakes they find on application documents.
(4) under s.2 NR need only be informed whereas under s.3 they can object. s.2 can't be renewed however.
(1) personal power to not be interfered with by another party
(2) Liberty - freedom from external influences
(3) Agency - freedom to make own decisions
(1) the intentional overriding of another's autonomy for their own protection
(2) example is in healthcare where professional has more knowledge/training to know what is best for patient
Legalism v Medicalism
(1) Fennell - legal and medical objectives are at odds with one another
(2) Legalism - need to limit professionals powers and respect individuals autonomy
(3) Medicalism - safeguards on individuals rights should not interfere with medical treatment
(4) this is shown where consent can be overridden by medical professionals as long as MHA '83 is satisfied.
(1) defined under s.1 as 'any disorder or disability of the mind', however, this does not include learning difficulties unless paired with other abnormal conduct.
RISK AND DANGEROUSNESS
(1) the degree of harm that may occur.
(2) harm is not limited to personal injury or a class of people (Birch)
(3) no effective definition although used all the time (Butler Committee)
(1) detaining the 'insane' has been around for over 600 years, and methods of detainment have not changed much with high security perimeters etc - Parker (1985)
(2) MHA '83 is littered with reference to 'dangerousness' and protection.
(3) potential 'Fixated Threat Assessment Centres' to deal with those who are 'untreatable' (as no need to detain those who can't be treated). This is unlikely to occur though as anyone can be treated with sedatives etc.
(1) risk assessment is to try and make a more objective and robust system for MDPs - Duggan (1997)
(2) although suggestions that risk assessment do not actually improve public safety - Munro (2000)
(3) people see risk as behaviour begetting behaviour, a static phenomenon, but it is effected by specific scenarios (Gunn 1996)
(4) focusing on risk increases stigma, and causes professionals to be overly cautious to avoid liability (Littlechild 2005)
(5) although can find higher prevalence and prevent crime (Shaw)
(6) compulsory MHA provisions are to remove risk that comes from MDPs not being able to understand and account for their actions.
1 - Formal (Basic)
(1) identify hazard
(2) characterise risk
(3) assess likelihood of exposure to hazard
(4) estimate risk
2 - Clinical
(1) determine whether MD is present
(2) determine connection between MD and aggressive behaviour
(3) spell out how connection causes behaviour and what aspects of MD cause behaviour
3 - Statistical
(1) look at statistics between two correlating factors and extrapolate to future situations
(2) Bradley (1993) - statistics show trends, not when next thing will occur (e.g. flipping coin will be 50% heads but statistics can't show you what next flip will be).
(1) practitioners will go through a number of factors to determine if there is a risk present but it is not a checklist
(2) should be 3 S's of Risk - Gunn
(a) Security - to provide minimum level to keep patient and public safe. Regards nature and seriousness of MD.
(b) Supervision - continuous assessment of patient to update and evaluate MD and treatment options.
(c) Support - strong commitment to the patient to ensure trust etc
(3) Prins - humans are not infallible, you have to accept that society will always have some risk attached.
DEPRIVATION OF LIBERTY
R v Bournewood (1999)
The patient was incapable of consenting to treatment, and was incapable of understanding and objecting to it. He was then taken to hospital and informally admitted as he showed no resistance to admission. Doctors then decided he should go and live with known persons, at the earliest possible date. These persons disappointed with the trust's actions applied for a review of the patients detention.
(1) patient had been detained (as those in control of premises had intention to not let him leave)
(2) the MHA '83 was complete and so ignored doctrines of necessity
(3) as patient couldn't consent s.131 was of no help
(1) no detention as nothing stopping him leaving and kept on an unlocked ward
(2) necessity was applicable as statutory intention interpreted as being that even if you can't consent you should have treatment that is in your best interest
(3) s.131 did not only apply to those who could consent as otherwise compulsory (so more severe) powers would always have to be used unless patients could positively ask for treatment.
(1) there was a detention that breached Art 5(1) and (4)
(2) there were no procedural rules for admission and detention of compliant incapacitated persons (the Bournewood Gap)
(3) due to this, people's right to liberty was not being protected
(1) need for Government to impose some safeguards in order to satisfy ECHR
(2) this lead to the Deprivation of Liberty Safeguards (DoLS) being implemented into MHA 2005
(1) allows for deprivation alongside two other avenues (ruling by Court of Protection or detention for life-saving treatment
(2) appeared to be a huge step forward for protection of mentally incapable mentally disordered patients
(3) however, necessity is still present in the common law, and DoLS as 'guidelines' only adhered to when under scrutiny
(4) DoLS applied inconsistently across the nation, and wording is complex/uncertain so hard to apply
(5) murmers that DoLS can't cope with excessively applications, and a more streamlined paper based (as opposed to investigation based) system may arise - Re: X (2014)
(1) there is no concrete definition of deprivation of liberty however Engle v Netherlands stated it had to be actual deprivation and not simply a restriction of liberty
(2) under s.64 MHA 2005 must follow Art 5
(3) judiciary in Chesire West have two stage test:
(a) is there continuous supervision/control and;
(b) is the patient not free to leave
(4) this gave a clear (and certain) test as opposed to judicial discretion and investigation
Local Authority v A & Anor (2010)
Both claimants were mentally incapable and suffered from a disease that caused behavioural issues. Due to this both were locked in their rooms at night and knocked to get out. Neither seemed distressed by this and guardians/professionals agreed this was for the claimants best interests.
(1) factually there was no deprivation (as allowed to leave with knock)
(2) even if there was deprivation it was justified as in best interest
(3) there is a duty on local authority to intervene where they know or ought to know there is a DoL against a vulnerable person
(4) in the instant case the local authority was doing that
(1) DoLS do apply to domestic settings too, however, they are based on the facts of each individual case
s.131 MHA '83
(1) assumption that admission is voluntary
(2) this can cause issues where patient is non-verbal or may not understand their admissions - R v Bournewood 
s.2 - detained for 28-days for assessment that cannot be renewed
s.3 - detained for 6-months for treatment renewed after 6-months then annually
s.4 - detained for 72-hours for emergency
s.136 - power of police to assess and detain
s.2(2) - admission of assessment requires:
(a) mental disorder which warrants detention for at least a limited period of time, and
(b) they ought to be detained in the interest of his own health/safety or health/safety of other persons
s.3(3) - admission for treatment requires:
(a) mental disorder which warrants detention
(c) necessary for health/safety of self or others
(d) appropriate medical treatment is available
(1) suffering from mental disorder is at discretion of doctor (but is agreed by objective medical expertise - Winterwerp v Netherlands (1979).
(2) appropriate treatment must be something that can alleviate the symptoms or prevent deterioration - R v MHRT ex P Smith (1999).
(3) burden of proof is on hospital to show that patient still needs detention and treatment is available - R (H) v MHRT (2001)