Flashcards in Legal Aspects of Psychiatry Deck (45):
Why do we have mental health law?
-Power to provide compulsory care and treatment for people with a mental disorder
-Rights and safeguards to make sure those powers are used appropriately
-Duties on NHS Boards and local authorities to provide a wide range of services for people with a mental health disorder
What are the principles of the mental health (care and treatment) (Scotland) act 2003?
-Respect for diversity
-Respect for carers
-Least restrictive alternative
How is mental disorder defined in the MH(C+T)(S)A2003?
Section 328 defines mental disorder as:
-Any mental illness,
-Personality disorder or
-However caused or manifested.
Section 328 says you are not mentally disorder only by...
-Dependence on, or use of alcohol or drugs
-Behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person
-Acting as no prudent person would
Who can be detained?
Over 18 years olds or under 18 years olds:
-Can still be detained
-Need child/adolescent specialist (CTO etc)
-Use specialist resources
What are the key civil compulsory powers?
Emergency detention certificate EDC
-Authorises detention for up to 72 hours
Short-term detention certificate STDC
-Authorises detention for up to 28 days
Compulsory Treatment Order CTO
-Authorises detention for up to six months
Nurses holding power
-Authorises detention for up to three hours (changed in 2015 Act)
Who can use the emergency detention certificate section 36?
Registered medical practitioner
What must be considered LIKELY for use of the EDC section 36?
-The patient has a mental disorder; and
-Because of that mental disorder, the patient's decision making ability with regard to medical treatment for that mental disorder is significantly impaired
What must be satisfied for the use of the EDC section 36?
-It is necessary as a matter of urgency to detain the patient in hospital in order to determine what medical treatment should be provided to the patient for the suspected mental disorder
-There would be a significant risk to the health, safety or welfare of the patient or to the safety of another person if the patient were not detained in hospital and;
-Making arrangements with a view to granting a short term detention certificate would involve undesirable delay
Who can use the short term detention certificate section44?
Approved medical practitioner
What must be considered LIKELY for use of the STDC section 44?
-The patient has a mental disorder;
-Because of the mental disorder, the patients ability to make decisions about the provision of medical treatment is significantly impaired;
-it is necessary to detain the patient in hospital for the purpose of determining what medical treatment should be given to the patient or giving medical treatment to the patient;
-If the patient were not detained in hospital there would be a significant risk to the health, safety or welfare of the patient or to the safety of any other person; and
-The granting of a short-term detention certificate is necessary
How is a compulsory treatment order section 64 obtained?
-Application to Mental Health Tribunal made by Mental Health Officer for the granting of a CTO
-Tribunal considers evidence and makes decision
-Mental Health Reports (GP and Approved Medical Practitioner or 2 Approved Medical Practitioners)
What must be satisfied for use of a CTO section 64?
-The patient has a mental disorder
-Medical treatment is available and would be likely to prevent deterioration or alleviate symptoms
-Without treatment there would be significant risk to health, safety or welfare of patient or safety of others
-Mental disorder significantly impairs decision making ability
-Making of compulsory treatment order is necessary
What is the main criteria for detention?
-Significant impairment of decision making ability for medical treatment about mental disorder
-Significant risk to health, safety or welfare of the person or the safety of any other person
Who has a right to be party to proceedings?
A named person; must be nominated by the patient and witnessed and the name person must have witnessed acceptance
What is a right for every person with a mental disorder?
Access to advocacy
How is an adult defined in the Adults with Incapacity (Scotland) Act 2000?
A person who has attained the age of 16 years
How is 'incapable' defined in the Adults with Incapacity (Scotland) Act 2000?
Incapable of ...
-Making decisions or
-Communicating decisions or
-Understanding decisions or
-Retaining the memory of decisions
What principles must be considered when applying for an AWIA?
-The intervention must benefit the adult
-Any intervention shall be the least restrictive in relation to the freedom of the adult, consistent with the purpose of the intervention
-Account must be taken of the past and present wishes of the adult
-Where practicable account should be taken of the views of relatives and carers and of relevant others
When is capacity presumed?
Capacity is presumed to be present unless proven otherwise
Why is capacity said to be decision specific?
May have capacity for some decisions but not others
What are the areas of capacity?
What is a guardianship order?
Someone else is appointed to make decisions on behalf of the adult (financial or welfare or both)
What is an intervention order?
-One off power
-Requires application to the court
Use of an AWIA does not authorise...
-The use of force or detention unless it is immediately necessary and only for so long as is necessary in the circumstances
-Action which would be inconsistent with any decision by a competent court
-Placing an adult in a hospital for the treatment of mental disorder against his will
What police powers are there in the Mentally disordered offender provisions : Criminal Procedure (Scotland) Act 1995?
-Removal from a public place
-Appears to be in immediate need of care or treatment to a place of safety
-Detain for up to 24 hours
-Purpose to allow assessment and make arrangements for their care and treatment.
In the Criminal Justice and Licensing(Scotland) Act 2010,when is a person not criminally responsible?
A person is not criminally responsible for conduct constituting an offence and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature of wrongfulness of the conduct
In the Criminal Justice and Licensing(Scotland) Act 2010,when is a person criminally responsible?
A person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct
In the Criminal Justice and Licensing(Scotland) Act 2010,when is a person unfit for trial?
A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial.
CJaLA: When determining whether a person is unfit for trial the court is to have regard to...
The ability of the person to...
-Understand the nature of the charge
-Understand the requirement to tender a plea to the charge and the effect of such a plea
-Understand the purpose of and follow the course of the trial
-Understand the evidence that may be given against the person
-Instruct and otherwise communicate with the person's legal representative and any other factor which the court considers relevant
What is diminished responsibility?
A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person's ability to determine or control conduct for which the person would otherwise be convicted of murder was at the time of the conduct, substantially impaired by reason of abnormality of mind
What forensic sections are there?
-Compulsion Order and Restriction Order: Section 57 and 59 of 1995 Act
-Assessment Order: Section 52 1995 Act
-Treatment Order: Section 52 1995 Act
-Interim Compulsion Order
-Transfer for Treatment Direction: Section 136
-Hospital Direction: Section 59A 1995 Act
What are restricted patients?
-Restricted patients are persons detained in hospital under a compulsion order with a restriction order
-About 1/2 are not managed by forensic psychiatrists
-Require a great deal more paperwork
What is the effect of being restricted?
-Defined in part 10 of the 2003 act
-Special provisions for leave (MAPPA and SGMHD)
-Oversight by Scottish ministers
-Duties on ministers and RMO to review at certain points
-Specific functions for the tribunal
Assessment Order: The court must be satisfied there are reasonable ground s that (one registered medical practitioner)...
-Detention in hospital is necessary
-Civil risk criterion met
-Suitable bed available within 7 days
-Assessment could not be undertaken if not in hospital
Court also has to consider
-All the circumstances (including the offence)
-Any alternative means of dealing with the person
How long does a treatment order last?
Lasts until final disposal or another order is granted
Treatment Order: Court must be satisfied on the basis of 2 medical practitioners (at least 1 approved) that...
-Suitable bed available within 7 days
Compulsion Order: Court must be satisfied on the evidence of 2 medical practitioners (at least 1 approved) ...
-Availability of medical treatment
-Necessary to be in hospital
-Need to consider level of security and if a restriction order is necessary
What must happen for a restriction order to be placed?
Court must heart ORAL evidence from at least 1 medical practitioner
What criteria must the courts be satisfied of for a restriction order?
-Having regard to the nature of the offence with which he is charged;
-The antecedents of the person; and
-The risk that as a result of his mental disorder he would commit offences if set at large
What are the effects of a restriction order?
-Without limit of time cf 6 months
-RMO must review annually
-MWC can initiate a review
-Scottish Ministers have a duty to review
-Patient and Named Person can make an application for a review by a Tribunal
-Automatic hearing if no hearing in last two years
-MHO has responsibilities as CO and are set out in the MOP.
What is a state hospital?
The secretary of state shall provide such hospitals as appear to him to be necessary for person's subject to detention under the Criminal Procedure (Scotland) Act 1995 or the MH(C+T)(S)Act 2003 who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities
What are medium secure units?
-Step up or step down units
-They are units with less security than the state hospital but maintains a higher degree of procedural, relational and physical security than low secure units
What are low security units?
-Patients in general will have more access to the community
-Relatively lower level offenders or step down through the pathways of care
-Not NO security