Mental health law is about securing benefits for, and protecting the rights of people with mental disorder with the primary objective to make sure individuals can receive effective care and treatment. The Mental Health Act (1983) is a significant statutory framework for anybody working within mental health, providing a framework for decision making, by providing a logical format in which balances the law and legal values in order for a mental health worker to reach a decision of action.
It defines the circumstances in which a person suffering from a mental health condition can be detained for treatment without their consent. To make sure that people with mental disorders get the care and treatment they need for their own health or safety or for the protection of other people. As The Department of Health overview states: The main purpose of the legislation is to ensure that people with serious mental disorders which threaten their health or the safety of the public can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others.
(DOH, 2007) The Act sets out the criteria that must be met before compulsory measures can be taken, along with protections and safeguards. The importance of this Act is to ensure people with an effective service with boundaries and laws to protect vulnerable individuals, maximising their safety and well-being and protecting them from harm. It also allows practitioners guidance, to ensure good professional practice of their duties, roles and responsibilities. Such as procedures on compulsory admission, rights and safeguarding and the codes of practice they are expected to follow required by the Act.
The importance of the Act provides such professionals with guidance on how to respond to situations and act in accordance to their expected role to prevent unfair treatment, inappropriate detainment and discrimination. For hundreds of years the response to what are now called mental health issues and problems has mainly been to separate people from others, often subjecting them to strange and punishing ‘treatments’. Such a policy resulted in a history of abuse, and the loss of people’s rights and freedom. There have been many changes in policy and provision for mental health services over the last 20 years.
This has included changes in the way services are organised, the kinds of services available, where they are provided and the workers involved. Over this time, there have been especially important changes from policy makers such as the introduction of the Mental Health Act. The Act saw the introduction of approved mental health workers, who are more skilled and have specialist training, equipped with working within the field, allowing professionals different ways of understanding and responding to situations.
This has caused a shift from the medical model and allowed a more holistic approach to be taken, allowing for a more person-centred service. Mental health services have historically been service-led and medically focused and have not always placed the wishes of the user at centre stage. The introduction of this act and the broader group of practitioners involved has brought a focus of being person-centred that encompasses much more than medical treatment, but responds to the needs of service users in a way that meets the multiplicity of individual needs.
Resulting in a service that protects the rights and promotes the interests of service users, highlighting rights such as personal freedom and providing more specialist services. 2. 2 Evaluate the principal strengths and weaknesses of the Mental Health Act As discussed the Mental Health Act has brought about many changes to services available and impacted the way they are organised. Such as the introduction of deprivation of liberty safeguards protecting individual’s rights and opinions.
The introduction of a broader group of practitioners who have brought different perspectives and models about understanding mental health. Laws and guidelines on the powers of detention and valuing people as a person allowing a more holistic approach. However there are some weaknesses to the Act. Mental health services are provided by health and social services through care management, underfunding and problems of coordination mean that the support service users receive is sometimes inadequate, inappropriate and unreliable.
Amendments to the Act are constantly being added to improve the service such as the Mental Health Act 2007 which extends the rights of victims by amending the Domestic Violence, Crime and Victims Act (2004), the introduction of deprivation of liberty safeguards and the introduction of direct payments to put people in control of the support they receive.
There are still however improvements that need to be made, one example being the stigma and stereotyped assumptions and ideas around mental health. Sometimes service users will try to avoid mental health services and deny support out of fear that their rights will be restricted and they will be subjected to treatment without their consent.
This can result in people who are need of help to not seek it due to the stigma around mental health. The Act has strengthened the rights of people, the benefits and support they receive, resulting in an improved service where care and treatment is provided. 2. 3 Analyse why a person might need to be sectioned under the Mental Health Act People with different types of defined “mental disorder” can be admitted to hospital against their will under the Mental Health Act.
People can only be detained if the strict criteria laid down in the Act are met. The person must be suffering from a mental disorder as defined by the Act. A patient can be sectioned if they are perceived to be a threat to themselves or other people. Generally, a patient can only be sectioned if two doctors and a social worker or a close relative of the patient believe it is necessary. One of these doctors is usually a psychiatrist. The other is often a doctor who knows the patient well. However, in an emergency one doctor’s recommendation may be sufficient.
An approved social worker also has to be involved in the assessment, and has to agree that being sectioned is the best course of action for that patient. The social worker then makes the application for a place in secure accommodation for the patient. Sectioning a patient enables doctors to assess the extent of the patient’s mental disorder and, if necessary, to administer treatment. If a patient is sectioned as an emergency case, then they are said to be detained under section 4 of the Mental Health Act. This enables doctors to detain them for up to 72 hours.
If doctors believe that further assessment or treatment is necessary then the patient can be detained under section 2 of the Act. This means that they can be admitted to hospital and detained for up to 28 days to undergo a full psychiatric assessment. At the end of the 28-day period, if the medical recommendation is for the patient’s stay in hospital to be extended, a further six months can be given under section 3 of the Act. 6 months can be increased to another 6 months, and then a year at a time under section 37 if required.
2. 4 Summarise the principal aspects of the Mental Capacity Act The Mental Capacity Act (2005) provides a statutory framework to empower and protect vulnerable people over the age of 16, who are not able to make their own decisions. It makes clear who can take decisions, in which situations, and how they should be gone about. It enables people to plan ahead for a time when they may lose capacity or to protect those who may not have the capacity to make decisions for themselves.
The Act presumes that everyone has the capacity to make their own decisions unless proved otherwise, and states that people must be supported to make their own decisions. Anything done on behalf of a person who lacks capacity must be in their best interests and the least restrictive of their rights and freedom. The main reason for this legislation is to provide a process by which a person with a mental disorder can be detained for treatment with or without his or her consent.
It also provides legal processes that must be followed in order to safeguard the rights of the patient. The Department of Health overview states: The main purpose of the legislation is to ensure that people with serious mental disorders which threaten their health or safety of the safety of the public can be treated irrespective of their consent where necessary to prevent them from harming themselves or others. (Department of Health guidance, 2007).
Section 2 of the MCA (Mental Capacity Act) says: “…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. The impairment or disturbance can be permanent or temporary. 2. 5 Summarise the implications of the Human Rights Act in the context of Mental Health People who have mental health problems from time to time become vulnerable and may need treatment and care, even if this against their wishes at the time.
Compulsory admission to hospital is just one part of the legislative framework of the Mental Health Act but is so significant because of the potential infringement of the person’s human rights. There is however principles to protect individuals under section 1 of the Act where a person must be assumed to have capacity unless it is established that he does not (s. 1 (2) to prevent practitioners to make stereotyped assumptions of an individual with a mental health disorder.
where individuals are not to be treated as unable to make decisions unless steps to help him do so have been taken without success (s. 1 (3)). A person is not to be treated as unable to make decisions merely because he makes an unwise decision (s. 1 (4)) and decisions made on the behalf of a person who lacks capacity must be in his best interests (s. 1 (5)) and regard must be had to whether the purpose of which is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action (s.1 (6)).
These principles underpin the key message that everyone has the right to make choices and decisions for themselves (the right to autonomy), encouraging first hand decision making and have the person’s best interests in mind. Difficulties and complexities arise where a person is not mentally competent to make relevant decisions, where a mentally competent person is unwilling to consent to proposed care and/or treatment and/or where a person with mental health problems presents a risk of harm to self and/or others.
For the best interests of that person or the interests of society compulsory admission is sometimes needed against their will which impinges on their human rights, such as the right to autonomy. This breaches Article 5 of the European Convention on Human Rights (the Convention), which protects against unjustified detention, and Article 14, which prohibits discrimination. Resulting in changes to allow for individuals to be lawfully deprived of their liberty in order to live in a care home or hospital as Part II of the MHA commonly known as ‘sectioning’.