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Good practice guidance: provision of hospital treatment for physical illness where a person with a mental disorder refuses treatment
- Author:
- MENTAL WELFARE COMMISSION FOR SCOTLAND
- Publisher:
- Mental Welfare Commission for Scotland
- Publication year:
- 2010
- Pagination:
- 7p.
- Place of publication:
- Edinburgh
The presence of mental disorder may, for some people, be a barrier to necessary physical health care if the person lacks capacity. This guidance refers specifically to the situation where the person refuses to attend hospital in a situation where others think that such attendance for physical health reasons is necessary. The guidance emphasises the need to carry out a proper assessment of capacity; the need to take account of the views of the individual and other with an interest; and the need to base interventions on an analysis of the risks and benefits, including the risk of not intervening. A flow chart shows the decisions that can be made mental health and incapacity law. Case study examples are also provided.
Consenting adults?: guidance for professionals and carers when considering rights and risks in sexual relationships involving people with a mental disorder
- Author:
- MENTAL WELFARE COMMISSION FOR SCOTLAND
- Publisher:
- Mental Welfare Commission for Scotland
- Publication year:
- 2010
- Pagination:
- 40p.
- Place of publication:
- Edinburgh
Sexual expression, sexual relationships, marriage and children are a natural and expected part of a person’s life experience. People with a mental illness, learning disability or other mental disorder, have the same personal and sexual needs and rights as anyone else. At the same time people with a mental disorder can be at particular risk of abuse or exploitation. Balancing those rights and risks raises a host of legal and moral dilemmas. This guidance has been produced in response to the legal, ethical and practical issues concerning sexual relationships involving adults with a mental disorder. It is intended to provide a framework for discussion of the general issues that need to be considered when assessing risk and considering the need for intervention in a person’s sexual life. In assessing and deciding on the need for intervention, this guidance looks at a number of significant questions for practitioners. These include: assessment of capacity; issues of consent; knowledge of the person’s background and past and present wishes; the nature of the mental disorder; different forms of sexual expression; potential risks as against benefits; staff attitudes, knowledge and training; assistance given by staff; family attitudes; cultural and religious beliefs; the person’s living situation; statutory duties and professional and organisational responsibilities to investigate, including issues of confidentiality and disclosure; and intervention that may be required.
The nearest relative: losing the right to concur?
- Author:
- HEWITT David
- Journal article citation:
- Journal of Adult Protection, 12(3), August 2010, pp.35-39.
- Publisher:
- Emerald
Under the Mental Health Act 1983, a person who is suffering from a mental illness may be admitted to hospital and detained there. This is only the case, however, if the person’s nearest relative has not objected to such a course. A recent High Court case examined what it means to object to detention, and may have broadened the circumstances in which an objection is deemed to have been made. The judge said that although a nearest relative might be believed not to have objected, detention will only be lawful if that belief was reasonable. He also suggested that in some cases, objection should be inferred from a nearest relative's previous conduct. This article describes the case and discusses the implications of the decision.
Court experience of adults with mental health conditions, learning disabilities and limited mental capacity: report 3: at court
- Authors:
- MCLEOD Rosie, et al
- Publisher:
- Great Britain. Ministry of Justice
- Publication year:
- 2010
- Pagination:
- 45p.
- Place of publication:
- London
This report, the third in a series of six, considers the process of attending court, including arriving at court, waiting to go into the court room, being in the court room and giving evidence. Generally, court users made their way to the court room alone and were daunted by the formal environment; this stress was significantly reduced by prior familiarisation with the court process, the presence of a support worker, and the support of the Witness Service in criminal courts. Court users who felt they needed support were willing to disclose their condition, but were not always aware of whether disclosure was appropriate or who was responsible for informing the court. In turn, staff often assumed that identification would already have occurred and did not feel that they had the expertise to carry out this function. Where the judiciary were aware of need, the adjustments which they made were helpful to court users and increased their sense of inclusion in proceedings. In criminal cases, special measures were helpful in supporting court users to give evidence. More specialist support was only required by those who felt unable to manage their conditions.
Court experience of adults with mental health conditions, learning disabilities and limited mental capacity: report 2: before court
- Authors:
- MCLEOD Rosie, et al
- Publisher:
- Great Britain. Ministry of Justice
- Publication year:
- 2010
- Pagination:
- 51p.
- Place of publication:
- London
This report, the second in a series of six, outlines the experiences of court users with these vulnerabilities from their first involvement with the justice system until their attendance at court. Across the courts, conditions were more likely to be identified when a support worker was present with the court user. In criminal cases, experiences varied greatly depending upon police awareness of the court user’s support needs. In civil proceedings, a lack of contact with the courts could impede identification, and court users depended on legal representatives or existing support networks to identify needs and provide support. Identification was most likely in family proceedings where assessments and close contact with professionals were common. Court users were unlikely to disclose their condition unprompted. Protocols for support in criminal courts meant that court users were more content with the level of information and support offered than was the case in civil and family proceedings, where no protocols or designation of responsibility for support existed.
Court experience of adults with mental health conditions, learning disabilities and limited mental capacity: report 6: technical report
- Authors:
- MCLEOD Rosie, et al
- Publisher:
- Great Britain. Ministry of Justice
- Publication year:
- 2010
- Pagination:
- 26p., bibliog.
- Place of publication:
- London
This report, the sixth in a series of six, presents details on a research project exploring the court experience of adults with mental health conditions, learning disabilities and limited mental capacity. The research relates to victims and witnesses in criminal cases, and to participants in civil and family cases. The report outlines the background to the research and presents the project’s research aims and methodology. This research was designed to investigate how the court system supports the complex and specific needs of adults with mental health conditions, learning disabilities and limited mental capacity. It explored the direct experiences of victims and witnesses in criminal cases, and case participants in civil and family courts. The project had two phases: a developmental scoping study and a programme of interviews with practitioners, court users and carers. The methodology was entirely qualitative. Recruitment was conducted in house through contact with a range of networks and support organisations. All study participants voluntarily self-disclosed their conditions, and definitions of conditions followed participants’ own usage. A process of informed consent tailored to individual need was used for all interviews.
Court experience of adults with mental health conditions, learning disabilities and limited mental capacity: report 4: after court
- Authors:
- MCLEOD Rosie, et al
- Publisher:
- Great Britain. Ministry of Justice
- Publication year:
- 2010
- Pagination:
- 25p.
- Place of publication:
- London
This report, the fourth in a series of six, outlines the ‘after-court’ process, including receiving verdicts in court, leaving the court and making the journey home, awaiting outcomes and receiving news at home, and moving on from the experience. Hearing a verdict in court and receiving news of the case outcome at home were times of particular stress and low mood for court users. They needed clear explanations to understand their case outcome, and emotional support to come to terms with it. Co-ordination between agencies to ensure that the court user was adequately supported at this point required careful management, but there are few protocols for support provision following court appearances. Many of the court users who were interviewed for this research did not feel any further support was necessary following case closure. However, where it was required, communication and cross-referrals between service providers were important to ensure the court user was not left unsupported.
Newly introduced deprivation of liberty safeguards: anomalies and concerns
- Authors:
- SHAH Ajit, HEGINBOTHAM Chris
- Journal article citation:
- Psychiatrist (The), 34(6), June 2010, pp.243-245.
- Publisher:
- Royal College of Psychiatrists
This article raises concerns over irregularities within the newly introduced deprivation of liberty safeguards. The European Court of Human Rights found that the care and treatment of HL in the ‘Bournewood case’ constituted infringement, in the form of deprivation of liberty, of his rights under Articles 5 (1) and 5 (4) of the European Convention on Human Rights. To prevent the infringement, the Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 via the Mental Health Act 2007. The recent implementation of the Deprivation of Liberty Safeguards on 1 April 2009 has highlighted some difficulties in its implementation and application, and these are described in this article. It concludes that many such issues may only be resolved with emerging case law.
Legal dilemmas for clinicians involved in the care and treatment of children and young people with mental disorder
- Authors:
- BOWERS M., DUBICKA B.
- Journal article citation:
- Child: Care, Health and Development, 36(4), July 2010, pp.592-596.
- Publisher:
- Wiley
This paper highlights the legal dilemmas relating to the care and treatment of under 18-year-olds for mental disorder and discusses the impact of these on clinical practice. The new legal framework is discussed with reference to hypothetical cases. Key issues outlined include age and maturity, capacity, deprivation of liberty and the zone of parental control. The authors suggest it is essential that clinicians are aware of their responsibilities within the new legal framework in order to avoid becoming a target for litigation. This paper designed to enable clinicians to meet the recommendations and to be aware of their responsibilities to engage in appropriate training.
The approved mental health professional and the nearest relative: detention need not be negligent, even if it is unlawful
- Author:
- HEWITT David
- Journal article citation:
- Journal of Adult Protection, 12(4), November 2010, pp.43-45.
- Publisher:
- Emerald
A patient may be detained under section 3 of the Mental Health Act 1983 (HM Government, 1983) only if his nearest relative does not object. Whether an objection has been made will be a question for the approved mental health professional (AMHP) concerned, but their answer will have to be a reasonable one. If the belief of the AMHP is not reasonable, a patient's section 3 admission will be unlawful. That does not mean, however, that the AMHP's conduct will necessarily be negligent, or that the patient will be entitled to damages. This article describes the case of Mr M, who remained in hospital after he was discharged from detention under the MHA, but before long was detained again under section 3. Mr M alleged that his re-detention was illegal, primarily because his nearest relative had objected to it. The judge ruled that his detention was indeed unlawful and ordered his release. Several months later, Mr M came back before the court seeking damages against the local authority who employed the AMHP. In this case the judge decided not to give permission for a damages claim, holding that even though Mr M’s detention had been unlawful ‘there is no reasonable prospect of success in any negligence claim’. This article discusses this logic of this position.