Mental Health and Mental Capacity Law: Some Mutual Concerns for Social Work Practice

Mental health legislation and human rights in England, Wales and the Republic of Ireland

<p>When the Bamford Review of Mental Health and Learning Disability completed its work in the autumn of 2007, it drew to a close an extensive consultation and analysis of mental health and learning disability services and the law in Northern Ireland. Its last report on A Comprehensive Legislative Framework made<br />a compelling case for a major overhaul of the law that the Review team itself described as ‘quite radical’. The Review identified the case for reform in the need to ensure that mental health law conforms to the requirements of human rights law, reflects changes to professional practice, reflects the needs of service<br />users and their carers, and keeps pace with reform elsewhere in the UK. Alone of all the jurisdictions in the UK, Northern Ireland has been operating largely in a legislative vacuum in relation to mental capacity law. The Review’s proposals for reform therefore extended to reform of mental health law and the introduction of mental capacity law.</p><p>In the autumn of 2008 the NI Executive published its response to the Bamford Review indicating that it intended to develop the law sequentially: reform of the Mental Health (NI) Order 1986 by 2011 followed by the introduction of mental capacity law in 2014. Responses to the Executive’s consultation resulted in<br />the Department of Health Social Services and Public Safety (DHSSPS) revising its approach and it signalled its intention to bring forward mental capacity and mental health legislation together. This reated a unique opportunity in Northern Ireland for fusion of incapacity and mental health legislation. A further consultation paper was issued in January 2009, setting out the key approaches to the content<br />of two bills. However as a result of the consultation, the Health Minister Michael McGimpsey announced in September 2009 that there would be a single bill with an overall principle of autonomy. His press statement noted: “ A strong body of opinion, particularly from professional groups and lead voluntary organisations, which considered that separate mental health legislation continues to be stigmatising and recommended that mental capacity and mental health provisions should instead be encompassed into a single piece of legislation”</p><p>This short paper provides an overview of the current direction of travel on law reform in Northern Ireland. It comments on the policy climate and arguments for a fusion of mental capacity and mental health legislation. It also highlights some of the key policy issues that will need to be further explored as the Department develops its law reform proposals and concludes with some hopes and fears for the new legislation.</p>

Epistemic struggles: The role of advocacy in promoting epistemic justice and rights in mental health

The study reported makes use of an existing database in order to examine a group of individuals assessed by approved social workers (ASWs) under the Mental Health Act, with a view to detention in psychiatric hospital. The study aims to develop a profile of these individuals, their pathways to assessment and the outcome of the assessments, and to examine the social implications of the findings. The study also seeks to identify changes over a nine-year period. The role of the ASW is reviewed in the light of the analysis of the nine-year information. Key features in the social situations of individuals are identified that may be associated with mental health need. Specific aspects of gender and life-stage vulnerability are suggested, as are poor material resources, isolation and lifestyle issues such as drug and alcohol misuse. The close association of psychiatric severity and social disadvantage is evident, presenting assessing ASWs with challenging and complex assessments. Mental health social workers are uniquely equipped to identify issues in the social context that may contribute to mental health crisis. Interventions underpinned by social approaches, including social inclusion and the recovery model, have the potential to help provide services in the longer term that provide social support and minimize the need for crisis admission.

Reform of mental health legislation in England and Wales has caused widespread concern.1,2 Initial recommendations, from an expert committee for progressive and ethical reform, mutated into an initial draft bill...

The CRPD and mental health law reform in Scotland

Purpose This paper aims to examine reform of mental health legislation in England and Wales. It covers the period from the introduction of the 1983 MHA to the proposed reforms outlined in the Wessley Review that was published in December 2018. Design/methodology/approach This is a literature-based project. Findings Reform of the mental health legislation reflects two potentially conflicting strands. One is the state’s power to incarcerate the “mad”, and the other is the move to protect the civil rights of those who are subject to such legislation. The failures to development adequately funded community-based mental health services and a series of inquiries in the 1990s led to the introduction of Community Treatment Orders in the 2007 reform of the MHA. Research limitations/implications The development of mental health policy has seen a shift towards more coercive approaches in mental health. Practical implications The successful reform of the MHA can only be accomplished alongside investment in community mental health services. Originality/value The paper highlights the tensions between the factors that contribute to mental health legislation reform.

Scottish legislation, based on “care and treatment,” has lessons to offer R eform of mental health legislation in England and Wales has caused widespread concern.1 2 Initial recommendations, from an...

With the waves of reform occurring in mental health legislation in England and other jurisdictions, mental capacity is set to become a key medico‐legal concept. The concept is central to the law of informed consent and is closely aligned to the philosophical concept of autonomy. It is also closely related to mental disorder. This paper explores the interdisciplinary terrain where mental capacity is located. Our aim is to identify core dilemmas and to suggest pathways for future interdisciplinary research. The terrain can be separated into three types of discussion: philosophical, legal and psychiatric. Each discussion approaches mental capacity and judgmental autonomy from a different perspective yet each discussion struggles over two key dilemmas: whether mental capacity and autonomy is/should be a moral or a psychological notion and whether rationality is the key constitutive factor. We suggest that further theoretical work will have to be interdisciplinary and that this work offers an opportunity for the law to enrich its interpretation of mental capacity, for psychiatry to clarify the normative elements latent in its concepts and for philosophy to advance understanding of autonomy through the study of decisional dysfunction. The new pressures on medical and legal practice to be more explicit about mental capacity make this work a priority.

Implications for mental health workforce strategy, professional training and supervision of more widespread adoption of the multi-professional Responsible Clinician role: Results of a qualitative inquiry

Pressure from human rights groups has recently led to a major change in mental health legislation in England and Wales. An Amendment Act is designed to provide additional guarantees for patients who are compulsorily detained and provides for automatic referral of certain cases to a Mental Health Review Tribunal. It provides for the establishment of a Mental Health Commission to act as a watchdog over all compulsorily detained patients and tightens the rules relating to consent by compulsorily detained patients to certain types of treatment.KeywordsPsychiatric HospitalFemale StaffInjured EmployeeIndustrial InjuryMental Health LegislationThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Commentary Those of us working in mental health tend to forget that much of medical ethics consists of coming to terms with scientific discoveries. Whilst society is still digesting the news that we can choose a child's sex, genome researchers tell us we will soon be able to know its medical future as well. In this world of breakthroughs and bombshells, psychiatry is the hick town where nothing happens; its dilemmas are the timeless ones. Ethicists have always worried about balancing the rights of the individual against those of the general public, and the antiquarian overtones of terms such as non-maleficience remind us that Hippocrates (460–370 BC) got there first. So Lepping's paper has an elegiac tone; he laments the passing of respect for individual rights, swept away by the tide of utilitarianism.

BackgroundThe UK government committed to legislating for Advance Choice Documents/Advance Statements (ACD/AS) following their recommendation by the Independent Review of the MHA (2018). ACDs/AS are yet to be implemented in routine practice despite evidence and high demand; they are associated with improved therapeutic relationships and a reduction (25%, RR 0.75, CI 0.61–0.93) in compulsory psychiatric admission. Barriers to their implementation are well documented, ranging from low knowledge levels to logistical challenges in accessing the content during episodes of acute care. In the UK this is an issue for Black people, who experience detention rates disproportionately (over three times) higher than those of White British people and have poorer care experiences and outcomes. ACDs/AS allow for Black people to have their concerns heard by mental health professionals in a care system where they often feel their views are ignored. AdStAC aims to improve Black service users’ experiences in mental health services in South London by co-producing and testing an ACD/AS implementation resource with Black service users, mental health professionals and carers/supporters of Black service users.Methods/designThe study will take place in South London, England over three phases: 1) formative work through stakeholder workshops; 2) co-production of resources through a consensus development exercise and working groups; and 3) testing of the resources using quality improvement (QI) methods. A lived experience advisory group, staff advisory group and project steering committee will support the study throughout. The implementation resources will comprise: advance choice document/advance statement (ACD/AS) documentation, stakeholder trainings, a manual for mental health professionals to facilitate the processes of creating and revising advance statements, and informatics development.DiscussionThe implementation resources will help increase the likelihood of the new mental health legislation in England being implemented effectively; through aligning evidence-based medicine, policy and law to effectively provide positive clinical, social and financial outcomes for Black people, the National Health Service (NHS) and wider society. This study will likely benefit a wider group of people with severe mental illness, as when marginalised groups who are least engaged, can be supported with these strategies, then the strategies are likely to work for others.

Mental health legislation in England & Wales requires assessment by a second opinion appointed doctor (SOAD) to safeguard the rights of patients detained in a hospital under this law if they are either refusing certain treatments or are deemed incapable of consenting to them. Our aim was to evaluate timeliness of SOAD assessments. Data were collected from the Mental Health Act administrator on all SOAD requests in 1 year for all in-patients in two English medium security hospital units. One hundred and six patients required a SOAD assessment during the 1-year period examined, of a combined resident total of 295, as did a further 14 patients who had been discharged from hospital and were subject to a community treatment order. About half of the inpatients were seen by a SOAD within 30 days and a further quarter within 60 days, but the remaining quarter waited up to 150 days or more. These results suggest that in these trusts, unlikely to be atypical, neither patients nor clinicians are being adequately protected by legal safeguards on decisions to treat with medication (or electroconvulsive therapy) in the event of impaired competence for decisions about mental health treatments. There should be clear standards for the appropriate length of time from referral to assessment by an independent doctor (SOAD). Compliance with standards should be transparent, so anonymised data on the matter should be routinely collected and stored by health trust Mental Health Act offices. Data should be monitored at agreed intervals by an independent body.

This chapter examines the legal framework for compulsory admission and treatment of persons with a mental disorder in England and Wales in the Mental Health Act 1983 (as amended by the Mental Health Act 2007). The chapter sets out the criteria and process for compulsory civil admission, including the roles and responsibilities of mental health professionals and relatives in that process. Powers in Part 3 of the Mental Health Act given to the police, courts, and prisons for persons with a mental disorder in the criminal justice system are not included. The provisions relating to the regulation of compulsory treatment are considered, as well as the use of restrictive practices, including the introduction of the Mental Health Units (Use of Force) Act 2018. The chapter concludes with an account of the safeguards in the legislation and the provisions for discharge and aftercare in the community. Consideration is also given to recent proposals to reform mental health legislation in England and Wales.