1. Medico-Legal Aspects In Delirium
Dr Alan Duncan

2. Not Enough time But Remember These !!!

3. Legal Rights - Human Rights Act 1998
Article 2 Right to life
Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 5 Right to liberty and security of person
Article 8 Right to respect for private and family life.
Human Rights Act articles in total
Article 2 Right to life, where failure to intervene may lead to danger of death.
Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 5
Right to liberty and security of person. Any infringement of article 5 rights should allow the person right
of appeal.
Article 8
Right to respect for private and family life. Any interference with article 8 rights must be necessary and
proportionate and in accordance with the law.

4. Legal Principles 5 Principle Benefit Minimum intervention
Take account of the wishes of the adult
Consultation with relevant others
Encourage the adult to utilise whatever skills he or she has

5. I’m No Goin’ In

6. Getting to Hospital

7. Immediate Legal provisions
Common Law
Self Defence
Necessity
Prevent immediate harm
Or prevent damage to property
Or committing a crime
Duty of Care
Individual & Organisational
Responsibility to protect from reasonably foreseeable harm
Can use restrain to protect other from harm

8. Welfare Guardianship – AWI
Sheriff Court Appointed
Requires 2 medical Recommendation
Can be interim order if urgency required
Additional power (s70 required to move someone)

9. MHA(CT)A Scotland S293 Removal Power
Emergency Detention Certificate (EDC)
Doesn’t authorise treatment on own
Short Term Detention Certificate (STDC)

10. Treatment

11. p.s. don’t forget the treatment plan !!!
s47 AWI
p.s. don’t forget the treatment plan !!!

12. Legal use of Force for treatment

13. Mental Health (Care & treatment) Act
“Medical treatment for an unrelated physical disorder is not authorised by the Act. However, medical treatment for a physical disorder which is directly causing the mental disorder would be authorised. For example, where a patient has delirium (as a mental disorder secondary to a chest infection), then the administration of antibiotics would be a medical treatment (indirectly) for the mental disorder and so authorised by the Act. …….”
Para 22 -Code of practice MH(CT)A Vol

14. Valid Advanced Refusals

15. I’m off !!

16. S47 to the Rescue ?
Subsection 47(7) of the Act prohibits the use of force or detention, unless it is immediately necessary and only for so long as is necessary in the circumstances. The interpretation of this will depend on the particular circumstances of each case, but the principles set out in section 1 of the Act must be applied. So, for example, the degree of force applied must be the minimum necessary. Where an adult shows continued resistance to treatment for mental disorder consideration should be given to making use of the options available under mental health legislation. Code of Practice AWI part 5

17. But the Daughter has a PoA …?
“We therefore consider than whilst an attorney can persuade the person to comply with the powers, and can insist that they comply, they cannot enforce compliance.”

18. Use Of Restraint ?
“ We believe that restraint should be seen as a ‘last resort’, where there is absolutely no alternative.” “..some actions can clearly be recognised as restraint. These can include any direct interference with the bodily movement of an individual, whether by the direct action of another person or by mechanical means; any physical or electronic barriers to freedom of movement in a care setting; and the use of drug treatment to limit physical movement by sedation.”

19. Bournewood & Deprivation of Liberty An English Only Issue ?

20. Cheshire West Scotland’s Bournewood Moment ?
2014 Supreme Court Ruling covering
P v Cheshire West
P&Q v Surrey County Council (Mig & Meg)
Ruled Deprivation of Liberty is
Not dependant on purpose of Intervention
Not dependant on nature of individual circumstances
Not related to compliance or lack of Objections

21. Defining Deprivation ?
“If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.” Baroness Hale [2014] UKSC 19

22. Sound Familiar ?

23. Possible Scottish Plug for the Bournewood Gap
s50A-50C AWI (proposed by Law Commission)
Measures for Hospital (like s47)
Measures for Community Settings
Assessment period
Not permanent
Subsequent application to courts
Consultation ended 2016

24. 13ZA Revision in 2007 to 1968 Social Work Act
Local authorities allowed (where patient lacks capacity) with resorting to Guardianship
To implement community care
To move to residential Care
Potential issues following Cheshire West
MWCS still indicate useable if robust

25. “ Life is never risk-free. Some degree
of risk-taking is an essential part of
good care.”
MWCS Rights, risks and limits to freedom 2013