A View Of Mental Health Law From England And Wales

A View Of Mental Health Law From England And Wales Presented by: Mr. Keene Date: 20 October 2022 Essential Statutory Framework - Mental Health Act 1983, still based on Percy Commission thinking and 1959 Act - Mental Health Act 2007, amends 1983 Act - Mental Capacity Act 2005 Civil structure MHA 1983 - Admission to hospital for Assessment, Treatment and in Emergency. - In addition, Dr's and Nurses holding power and place of safety orders - Guardianship - Compulsory treatment powers - Community treatment powers - hospital first - Discharge from hospital by - nearest relative, RC, managers, tribunal - i.e. detain first, challenge afterwards. Criminal Structure - Entry to hospital via the criminal justice system: pre-trial, post trial at conviction or on transfer from prison. - Separation of hospital disposal from questions of criminal culpability diversion. - Discharge: RC, managers, tribunal and Secretary of State. Statistics (NHS Digital) - In 2019/2020 50,893 new detentions were recorded: majority on admission to hospital. Others following informal admission, s136 and revoked CTOS (0.8% increase on the year before) - 4,650 new patients were placed on Community Treatment Orders (CTOS) - Amongst the five broad ethnic groups, known rates of detention for the 'Black or Black British' group (321.7 detentions per 100,000 population) were over four times those of the White group (73.4 per 100,000 population) - and ten times the rate for the White group for CTOS - Detentions in the most deprived areas had the highest rates of detention (147.9 detentions per 100,000 population). This was around three and a half times higher than the rate of detention in the least deprived areas (42.8 detentions per 100,000 population) (new statistic for 2019-20) The MCA - The Structure - Key concepts: • Statutory principles • Mental capacity: a functional test, with a 'causative nexus' required between disturbance or impairment in the functioning of the mind of brain and the inability to make the decision • - Best interests: a statutory test based on 'checklist' Re MN [2017] UKSC 22, per Baroness Hale • Informality: "Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P's best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court." - Mostly applying to those aged 16+. Overlap between the MCA and common law to age 18. - Lasting Powers of Attorney (H&W and P&A) - Advance Decisions to Refuse Treatment - Oversight by Court of Protection, specialist superior court of record - Not every decision is governed by the MCA or the Court of Protection - the inherent jurisdiction for those who have capacity but who are vulnerable The MHA and the MCA 2005: The Key Differences - The MCA 2005 relates to a person's functioning; the MHA 1983 relates to a person's status - The MCA 2005 requires acts done or decisions made under the Act on behalf of persons who lack the requisite capacity to be done or made in their best interests. No such equivalent in the MHA 1983 => an individual can (for instance) be detained solely on the basis of the risk that they pose to others. - The MCA 2005 covers all decision-making, whereas the MHA 1983 is, to a very large degree, limited to decisions about care in hospital and medical treatment for mental disorder. The Overlaps - Detention under MHA 1983 does not exclude operation of MCA 2005 in relation to e.g. medical treatment for physical disorder or management of their property and affairs. - Inpatient hospital settings: deprivation of liberty - 'DOLS' under the MCA 2005 or detention under MHA 1983? - Outside the hospital: the 'community' provisions of the MH Reform Debates - Review of MHA - Wessely Review reported December 2018, Government White Paper - legislation promised • Tightening admission criteria • More statutory weight upon (advance) choices - MCA being amended to address deprivation of liberty issues - No prospect of fusion but confidence tests in Wessely Review Wider Context - The wider context: the CRPD and the Geneva/Strasbourg impasse - N v Romania and Rooman v Bulgaria: deprivation of liberty - AM-V v Finland: Article 8 and respect for rights, will and preferences