1. Introducing Mental Health Law Peter Bartlett Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law University of Nottingham

2. The Basic Rules people get to make up their own minds. people get to make up their own minds. The law generally allows intervention; it does not generally require intervention. The law generally allows intervention; it does not generally require intervention. Any departure from those rules requires specific legal justification. Any departure from those rules requires specific legal justification.

3. Two Obvious Justifications Mental Capacity Act 2005/common law Mental Capacity Act 2005/common law Mental Health Act Mental Health Act

4. Determining Incapacity Decision specific Decision specific Can individual understand relevant information? Can individual understand relevant information? Can individual retain the information Can individual retain the information Can individual weigh information Can individual weigh information

5. Caveats about Capacity It’s about ability It’s about ability Stereotypical decision-making Stereotypical decision-making Can change over time Can change over time

6. Advance Decisions to Refuse Treatment Refusals only Refusals only Are advance refusals your problem? Are advance refusals your problem?

7. Treatment in Best Interests Current law: flexible Current law: flexible Under Act: Under Act: Consultation with family and other carers Consultation with family and other carers Substitute decision approach relevant: what would the person have wanted? Substitute decision approach relevant: what would the person have wanted? Substitute decision approach not necessarily determinative Substitute decision approach not necessarily determinative

8. Substitute Decision- Makers Court-appointed deputies Court-appointed deputies Lasting Powers of Attorney Lasting Powers of Attorney Is the document registered? Is the document registered? Does individual lack capacity? Does individual lack capacity? Does the document cover the decision? Does the document cover the decision? Does not alter best interests test Does not alter best interests test Otherwise: you make best interests determination Otherwise: you make best interests determination

9. Confidentiality Right to disclose necessary information to decision-maker? Right to disclose necessary information to decision-maker? Best interests test? Best interests test? What can you disclose when asking carers about best interests? What can you disclose when asking carers about best interests?

10. Mental Health Act Ways into Act’s legal compulsion powers: s 2 and 3 Ways into Act’s legal compulsion powers: s 2 and 3 Once in: MOST treatments for 3 months Once in: MOST treatments for 3 months After that: SOAD second opinion After that: SOAD second opinion In community: ACUS, guardianship, LOA In community: ACUS, guardianship, LOA

11. Definitions of Mental Disorder Kinds of mental disorder Kinds of mental disorder Mental illness Mental illness ‘mental impairments’ ‘mental impairments’ ‘psychopathy’ ‘psychopathy’ ‘promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs’ ‘promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs’

12. S 2: Application for Assessment (a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and (a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and (b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons. (b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

13. Processes of Detention ASW (or nearest relative) ASW (or nearest relative) 2 doctors-- s 12 psychiatrist and, if possible doc with knowledge of person 2 doctors-- s 12 psychiatrist and, if possible doc with knowledge of person assess individual personally assess individual personally right of NR to object (but can be replaced) right of NR to object (but can be replaced)

14. Emergencies, etc s 4: emergency applications - second medical cert within 72 hours s 4: emergency applications - second medical cert within 72 hours s 135: JP order re ‘ill-treated’, ‘neglected’, not ‘under proper control’ or alone and unable to care for self s 135: JP order re ‘ill-treated’, ‘neglected’, not ‘under proper control’ or alone and unable to care for self s 136: police finding person in ‘public’ place, in ‘immediate need of care or control’ s 136: police finding person in ‘public’ place, in ‘immediate need of care or control’ s 5 holding powers s 5 holding powers

15. Treatment 1 Psychosurgery and surgical implantation of hormones to reduce male sex drive: only if consent AND second opinion from SOAD Psychosurgery and surgical implantation of hormones to reduce male sex drive: only if consent AND second opinion from SOAD

16. Treatment 2 Consent OR second opinion from SOAD for ECT ECT Treatment beyond 3 months Treatment beyond 3 months

17. Community controls Guardianship? Guardianship? After-care under supervision? After-care under supervision? LOAs LOAs

18. Review Tribunals One challenge per section One challenge per section composition composition criteria similar to admission criteria - but MAY release even if threshold met criteria similar to admission criteria - but MAY release even if threshold met challenge to detention only, not treatment challenge to detention only, not treatment

19. Re-Sectioning Not unless ‘the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal.’ Not unless ‘the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal.’