Transcript Development of Mental Health Law

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Magna Carta
 No freeman shall be seized or imprisoned or stripped of his
rights or possessions …….. Nor will we proceed with force
against him, or send others to do so, except by the lawful
judgement of his equals or by the law of the land.
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ARTICLE 5: THE RIGHT TO SECURITY
AND LIBERTY OF PERSON
Everyone has the right to liberty of person. No one shall be
deprived of their liberty save in the following cases and in
accordance with a procedure prescribed by law …
1.e
“…… the lawful detention of persons for the prevention of
the spreading of infectious diseases, of persons of unsound
mind, alcoholics or drug addicts or vagrants.”
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Article 5
(3) Everyone arrested or detained in accordance with the
provisions of paragraph 1(c) of this article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial.
(5) Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness
of his detention shall be decided speedily by a court and his
release ordered if his detention is not lawful.
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Physical disorder v Mental disorder
MCA
 Enhances autonomy
 All help to make
decision
 Best interest (as defined
by the patient)
 Lasting power of
attorney
 Advance decisions
MHA
 Removes autonomy
 Overrides capacitous
refusal
 Best interest ish (as
defined by RC)
 Role of NR
 Removes authority of
AD
 Note s141 etc
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Rosie Winterton Minister of State 2004
“Of course, they do address two quite separate issues,
one dealing with people who have lost the capacity to
consent to treatment and the other dealing with people
who do not wish to consent to treatment but for whom
treatment is felt to be a necessity.”
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Scotland
 The patient has a mental disorder
 That because of the mental disorder the patient’s ability to make
decisions about the provision of medical treatment is significantly
impaired
 That 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
 That if the patient were not detained in hospital there would be
significant risk to the health, safety or welfare of the patient or to the
safety of any other person
 That the granting of a short-term detention certificate is necessary.
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Egypt
 Emergency - grievous and instant danger against his safety and
life and against safety and life of others, or against properties
OR incapable of looking after himself due to the gravity of the
psychiatric disorder.
 Non-emergence - severe psychiatric disorder AND grievous and
imminent danger to the patient himself, to others or to
properties AND necessary for treatment to avert an imminent
and significant deterioration of the mental condition AND
treatment available and the patient is not consenting
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India
 Has recently threatened or attempted or is threatening or
attempting to cause bodily harm to himself or herself
AND/OR
 has recently behaved or is behaving violently towards another
person or has caused or is causing another person to fear
bodily harm from him or her AND/OR
 has recently shown or is showing a lack of competence to care
for himself or herself to a degree that places the individual at
risk of harm to himself or herself
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Re B
 “A competent patient has an absolute right to refuse to consent
to medical treatment for any reason, rational or irrational, or
for no reason at all, even when that decision may lead to his or
her death”.
Dame Elizabeth Butler-Sloss Re B 2002
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“Never again may a clinician administer treatment against the
will of a mentally competent patient”
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The Rule of Law
“Most British people today would, I think, rightly regard equality
before the law as a cornerstone of our society. But we would
also accept that some categories of people should be treated
differently”.
Children.
Prisoners.
The mentally ill who “may have to be confined if they present a
danger to themselves or others”.
Lord Tom Bingham
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Number subject to MHA March 31st
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2008 – 15,181
2009 – 16,073 + 1,755 CTO
2010 – 16,622 + 3,325 CTO
2011 – 16,647 + 4,291 CTO
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Rosie Winterton Minister of State 2003
"The intention of the legislation is not to increase the
numbers of people who are subject to compulsion.”.
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Compulsion - treatment
 1983-5 : 4,000 statutory second opinions
 2008-10 : 18,000 (of whom over 5,000 were
recorded as capacitous refusing medication).
 CTO patients, over 55% were described as having
“insight” and 20% were described as “refusing”
medication .
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‘Leverage’
35% (12% 2 or more)
 Housing
 Criminal justice
 Finance
 Child care
MH v Physical Health
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The OCTET study - CTO research
 A randomised controlled trial examining the efficacy
and cost-effectiveness of the new supervised
Community Treatment Orders (CTOs).
Research question:
 •Do CTOs reduce time to readmission, the rate and
duration of readmission to hospital?
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Eliza Manningham-Buller
 If we ourselves are to be free, and to feel secure in our freedom,
it’s important to keep a rational perspective on terrorist risk. The
world is full of risks and dangers, only some of which can be
reduced. Why then, when we in this country know that, for
example, hospital-acquired infections and road traffic accidents
both kill many more than terrorism, do we react as we do?
 Politicians lose their way if they become too apprehensive about
how the media will react to terrorism when it happens. We
compound the problem if we use it as a reason to erode the
freedom of us all.
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Violence to others
 How much?
 Screening - how predictable?
 What population?
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Physical illnesses
Heart-attack
Breast Cancer
Diabetes
Obesity
Alcohol
Smoking
Physical & Mental illness
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Diabetes
 Chronic illness with no cure but much positive treatment
 It is both progressive and potentially life threatening
 Primarily risks to self
 higher risk of heart disease
 stroke
 kidney failure
 eye disease (which can lead to blindness)
 foot ulceration (which can lead to amputation)
 Risks to others
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The Downside
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Some adverse effects
Parkinsonism, dystonia, akathisia, tardive dyskinesia, hypotension,
hypothermia, hyperthermia, neuroleptic malignant syndrome (which
may be fatal), drowsiness, apathy, agitation, excitement, insomnia,
convulsions, dizziness, headache, gastro-intestinal disturbances,
nasal congestion, dry mouth, blurred vision, difficulty with
micturition, acute urinary retention, urinary incontinence,
constipation, tachycardia, arrythmias, (including sudden death),
menstrual disturbances, galactorrhoea, gynaecomastia, impotence,
weight gain, diabetes, agranulocytosis or leucopenia, (both of which
may be fatal), photosensitization, contact sensitisation, rashes,
jaundice, corneal and lens opacities, and pigmentation of the skin,
cornea, conjunctiva and retina (which may cause blindness).
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Some losses
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Responsibility
Medical confidentiality
Fresh air
Exercise
Bedtime
Watch whatever you want on the television
Drink alcohol
Make love/have sex
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The Spectator 1839
 “A lunatic, in law language, is civilitus mortuus. If committed
unduly, he receives in his single person nearly all the civil
liberties that can be afflicted; for not only is his liberty
thereby taken away and his property removed from his control
but he suffers an imputation which operates with all the force
of a libel… A party detained on a charge of insanity may be
acquitted and restored to liberty; but we all know that this is a
question of such a nature that it cannot even be raised without
attaching suspicion ever after to the individual to whom it
relates”.
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The Choice – and who decides?
Taking medication
 Staying mentally symptom
free and out of hospital but
obese and impotent
Stopping medication
 Relapsing twice a year
requiring two weeks in
hospital each time but
feeling fit and functioning
well the rest of the time
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UN Convention on the Rights of
Persons with Disabilities
Legislation authorizing the institutionalization of persons with
disabilities on the grounds of their disability without their free
and informed consent must be abolished.
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UN Convention on the Rights of
Persons with Disabilities
This should not be interpreted to say that persons with
disabilities cannot be lawfully subject to detention for
care and treatment or to preventive detention, but that
the legal grounds upon which restriction of liberty is
determined must be de-linked from the disability and
neutrally defined so as to apply to all persons on an
equal basis.
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A thought
 What good is it making someone safer if it merely
makes them miserable?
Lord Justice Munby
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