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Right to treat?: delivering physical healthcare to people who lack capacity and refuse or resist treatment
- Author:
- MENTAL WELFARE COMMISSION FOR SCOTLAND
- Publisher:
- Mental Welfare Commission for Scotland
- Publication year:
- 2011
- Pagination:
- 20p.
- Place of publication:
- Edinburgh
This document provides guidance on delivering physical healthcare to people who lack capacity and refuse or resist treatment. The hope is that the general principles and case examples in this guidance will give practitioners some assistance in a difficult area of law, medical ethics and clinical practice. Several areas of law are examined including the ‘common law’ (the principle of necessity and the basic duty of care that practitioners have), the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment)(Scotland) Act 2003, and the Human Rights Act 1998. Detailed case examples show how the guidance might work for difficult clinical dilemmas. In the appendices are included: a quick guide to the process for making decisions on the use of force; an outline of the legal options available if force is needed; and a flowchart showing procedures for hospital treatment for physical illness in the absence of consent.
Mental capacity to consent to treatment and admission decisions in older adult psychiatric inpatients
- Authors:
- MAXMIN K., et al
- Journal article citation:
- International Journal of Geriatric Psychiatry, 24(12), December 2009, pp.1367-1375.
- Publisher:
- Wiley
The mental capacity of older adult psychiatric inpatients to make informed treatment and admission decisions is investigated in this study. Ninety-nine consecutively admitted patients to 4 acute inpatient wards in inner and outer London were interviewed using the MacArthur Competence Assessment Tool for Treatment. The results showed that 52 (52.5%) of the participants had capacity for admission and 38 (38.4%) had capacity for treatment decisions, demonstrating that patients can have capacity to make decisions in one area but not in others. Capacity was associated with not having dementia and higher levels of insight and cognition, and was more likely with those admitted with dementia rather than psychosis. Three- quarters of the participants who lacked capacity to consent to admission were not legally detained under the Mental Capacity Act 2005. From April 2009, the Deprivation of Liberty Safeguards amendment to the Act was introduced in England and Wales to provide legal protection for patients without the mental capacity to consent to admission. This study demonstrates that this amendment is likely to apply to a significant proportion of older people. The study also showed that most people wanted doctors to make treatment and admission decisions, and very few wanted family to make decisions on their behalf.
Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales
- Authors:
- OWEN Gareth S., et al
- Journal article citation:
- British Journal of Psychiatry, 195(3), September 2009, pp.257-263.
- Publisher:
- Cambridge University Press
In England and Wales mental health services need to take account of the Mental Capacity Act 2005 and the Mental Health Act 1983. The overlap between these two causes dilemmas for clinicians. This study aimed to describe the frequency and characteristics of patients who fall into two potentially anomalous groups: those who are not detained but lack mental capacity; and those who are detained but have mental capacity. Cross-sectional study of 200 patients admitted to psychiatric wards. We assessed mental capacity using a semi-structured interview, the MacArthur Competence Assessment Tool for Treatment (MacCAT–T). Of the in-patient sample, 24% were informal but lacked capacity: these patients felt more coerced and had greater levels of treatment refusal than informal participants with capacity. People detained under the Mental Health Act with capacity comprised a small group (6%) that was hard to characterise. The data suggests that psychiatrists in England and Wales need to take account of the Mental Capacity Act, and in particular best interests judgments and deprivation of liberty safeguards, more explicitly than is perhaps currently the case.
Independent Mental Capacity Advocate involvement in accommodation decisions and care reviews
- Authors:
- SOCIAL CARE INSTITUTE FOR EXCELLENCE, THOMPSON David
- Publisher:
- Social Care Institute for Excellence
- Publication year:
- 2010
- Pagination:
- 53
- Place of publication:
- London
This guide aims to support the work of local authority and NHS staff who may need to work with Independent Mental Capacity Acts (IMCAs) in relation to accommodation decisions and care reviews. It explains when IMCAs should be involved in accommodation decisions. It should assist local authorities and NHS bodies in creating their local policies. Example policies for local authorities and NHS trusts based on the guidance are included in the appendices. The focus is on IMCA provision in England, although colleagues in Wales may find the document helpful. The guide has been produced in association with ADASS.
Your rights when detained under the Mental Health Act in England: civil sections
- Author:
- EQUALITY AND HUMAN RIGHTS COMMISSION
- Publisher:
- Equality and Human Rights Commission
- Publication year:
- 2020
- Pagination:
- 140
- Place of publication:
- London
This guide is for people detained under section 2 and 3 of the Mental Health Act or if you are staying in hospital as a voluntary patient. A voluntary patient (also called an informal patient) is someone who is in hospital but is not detained under the Mental Health Act. They can leave hospital at any time. However, if health professionals are concerned about their safety or the safety of others, they can stop them from leaving for up to 72 hours. The guide explains what rights individuals have and what should happen to them at different stages through their journey in hospital. There are six parts to this guide. The first four parts (A-D) relate to the different stages of stay in hospital in time order, covering: the decision to detain; being detained in hospital; staying in hospital; and leaving hospital. Part E explains how to make a complaint at any stage of one’s stay in hospital; and Part F explains some of the key terms used in this document. (Edited publisher abstract)
Mental health service interventions for rough sleepers: tools and guidance
- Authors:
- LONDON BOROUGH OF LAMBETH, et al
- Publisher:
- Lambeth Council
- Publication year:
- 2015
- Pagination:
- 54
- Place of publication:
- London
- Edition:
- 2nd ed.
A collection of screening tools and guidance that aim to help workers assess people with mental health problems who are sleeping rough, and obtain the right support from statutory agencies. It is intended for use when other forms of engagement have failed or the situation is urgent due to signification risk. The document includes advice on assessing the risks associated with rough sleeping; guidance on the use of the Mental Capacity Act 2015 in relation to making an informed decision to sleep on the streets; guidance on the use of the Mental Capacity Act and developing a hospital admission plan; and guidance on raising safeguarding adults alerts. It also contains a Mental Capacity Act screening tool for street outreach teams and a Mental Health Act 1983 screening tool to enabling outreach workers to assess whether a referral for a Mental Health Act assessment is appropriate a hospital admission plan. First published in 2013, this revised edition now covers the requirements of the Care Act 2014, and incorporates the experience of outreach teams. (Edited publisher abstract)
Use of the Mental Health Act in children and young people with a intellectual disability
- Author:
- RIPPON Lisa
- Journal article citation:
- Advances in Mental Health and Intellectual Disabilities, 7(2), 2013, pp.82-87.
- Publisher:
- Emerald
Drawing on relevant literature, legislation and guidance, this article summaries the legislation in place within England and Wales concerning the care and treatment of children and young people with an intellectual disability. It also provides a brief outline of the equivalent law in Scotland. It seeks to describe how the age of a young person will determine which piece of legislation should be used to ensure an admission into an inpatient Child and Adolescent Mental Health Unit will be lawful. It also seeks to consider the role of those with parental responsibility in the decision-making progress and discuss which components of a proposed treatment plan they would or would not be able to consent to on behalf of those children and young people in their care. The results found legislation governing the admission and treatment of children and adolescents with an intellectual disability to be complex. All clinicians working with those under the age of 18 should have knowledge of the relevant legislation to ensure that the rights of children and young people are upheld. (Edited publisher abstract)
Mental capacity to make decisions on treatment in people admitted to psychiatric hospitals: cross sectional study
- Authors:
- OWEN Gareth S., et al
- Journal article citation:
- British Medical Journal, 5.7.08, 2008, pp.40-42.
- Publisher:
- British Medical Association
To estimate the prevalence of mental capacity to make decisions on treatment in people from different diagnostic and legal groups admitted to psychiatric hospital. Participants were 350 consecutive people admitted to psychiatric wards from the community over 16 months. Mental capacity was assessed by clinical interview and the MacArthur competence assessment tool for treatment. Estimates of mental capacity were obtained on 97% (n=338) of the 350 people admitted. Of those an estimated 60% (95% confidence interval 55% to 65%) lacked mental capacity to make decisions on treatment. This proportion varied according to diagnosis, ranging from 97% (n=36) in people with mania to 4% (n=24) in people with personality disorder. Mental incapacity was common in patients admitted informally to the psychiatric wards (n=188; 39%, 32% to 46%). Incapacity and detention are closely associated under non-capacity based mental health law. Mental incapacity to make decisions on treatment is common in people admitted to psychiatric wards from the community but cannot be presumed. It is usual in those detained under the Mental Health Act and common in those admitted voluntarily.
Mind the gap: the Deprivation of Liberty Safeguards in the amended Mental Capacity Act 2005
- Authors:
- MACKENZIE Robin, WATTS John
- Journal article citation:
- Tizard Learning Disability Review, 15(1), January 2010, pp.51-55.
- Publisher:
- Emerald
In 1997, a man with severe learning disabilities and autistic traits was admitted to hospital informally. Following an application to the European Court of Human Rights, this was ruled to be in violation of Articles 5(1) and 5(4) of the European Convention on Human Rights. Until this judgement, people not subject to the MHA 1983 but lacking the capacity to consent for themselves and needing hospital admission in their own interests had been admitted informally; this had now been ruled to be not lawful. This legal loophole became known as the Bournewood Gap. The UK government subsequently closed the Bournewood Gap by introducing the Deprivation of Liberty Safeguards into the Mental Capacity Act 2005. The Deprivation of Liberty Safeguards are a series of assessments that are undertaken by professionals when an adult is admitted to a hospital or care home and lacks the capacity to decide to be admitted themselves. They give legal safeguards to these vulnerable people that were previously missing. This article discusses the case that was the background to the legislation, explores the safeguards, and discusses the impact on services and individuals in the UK.
The legal aspects of the care and treatment of children and young people with mental disorder: a guide for professionals
- Author:
- NATIONAL INSTITUTE FOR MENTAL HEALTH IN ENGLAND
- Publisher:
- National Institute for Mental Health in England
- Publication year:
- 2009
- Pagination:
- 119p.
- Place of publication:
- London
This document provides guidance and good practice to assist practitioners to identify the appropriate legislative framework to use when assessing or treating a child or young person who may require inpatient treatment for services mental health problems. The Guide is divided into two parts. Part 1 considers the application of the law, and covers general principles; decision making in relation to the admission and treatment of children and young people; admission to hospital for assessment and/or treatment for mental health disorder; treatment, capacity and consent; discharge from hospital; supervised community treatment; and treatment regulated under part 4A of the Mental Health Act 1983. Part 2 contains additional information and resources, including an overview of relevant legislation; the framework of services to children and young people after discharge from hospital, such as after care planning and the Care Programme Approach; and glossary and resources. The guide is aimed at mental health professionals working with children, young people and families in children and adolescent services (CAMHS) and adult mental health services. It is relevant to children services practitioners with responsibilities for safeguarding.