dementias and mental health law

Update on Mental Health Law

Jonathan Waite FRCPsych LLM

Nottinghamshire Healthcare NHS Trust

[email protected]

1st December 2016

Dear stakeholder,

I am writing to inform you that unfortunately the publication of our final report and draft bill will

be delayed. We had planned to publish by the end of 2016, but we now expect to publish in

March 2017.

The reason for the delay is the complexity of the task of drafting legislation on such an

important issue. It is vitally important to get the law right here. Badly drafted, over-

complicated law is a big part of the problem with the current DoLS, and we do not want to fall

into the same trap again.

We are very aware that the project deadline was brought forward at the request of the

Department of Health and for a good reason: there is an urgent need for the system to be

improved. We know too that many stakeholders are waiting for our report and draft Bill and

will be disappointed with any delay. For this we apologise.

But we are convinced that it is far more important to deliver a fully completed draft Bill that

can deliver effective safeguards to those being deprived of liberty. We are also confident that

our new publication date will not delay the introduction of legislation into Parliament, should

the Government wish to do so. It will be for Government to decide how to take forward the

recommendations and draft Bill.

Regards

Tim

Tim Spencer-Lane | Law Commission

Themes

• Policing & Crime Bill

• Deprivation of Liberty Safeguards

• Capacity & Mental Health Legislation

• Dementia & Violence

Policing & Crime Bill

• Part 9 Clause 180

• “a person is not in state detention at any time when he or she is deprived of liberty under section 4A(3) or (5) or 4B of the Mental Capacity Act 2005.”

• (DoLS)

• (Coroner is not required to investigate)


• Chapter 4 – Powers under the Mental Health Act 1984

• New s.135

• “If the premises specified in the warrant are a place of safety, the constable executing the warrant may, instead of removing the person to another place of safety, keep the person at those premises for the purpose mentioned in subsection.”



• S.136 amended to allow constable to remove a mentally disordered from any place which isn’t the patient’s home

• Can enter premises by force

• Can keep them there if it’s place of safety



• Duration reduced to 24 + 12 hours

• Should consult with RMP, nurse or AMHP before “detaining”

• Restrictions on use of police stations as place of safety

• Right to conduct a personal search

Law Commission Report

8

• Proposals:• A scheme of ‘protective

care’.

• Approved Mental Capacity

Act Professionals

• Difference for hospitals –

doctor authorises for up to

28 days.

• Mental Health Act

amendments to cover

those in mental health

hospitals.

Law Commission

• Interim statement on consultation published May 2016

• Draft bill expected December 2016

• Now due to be published March 2017

Do DoLS do any good?

Covert Medication

• AG v BMBC and SNH [2016] EWCOP 37

• Where covert medication is used it should be discussed with supervisory body & RPR

• There should be regular reviews, any changes discussed with SB & RPR

Lack of safeguards

• BHCC v KD [2016] EWCOP B2

• Patient with long standing functional psychosis requiring clozapine, placed in a care home under DoLS

• MH assessor concerned about lack of safeguards

• No provision for SOAD in DoLS

Ferreira v Coroner of Inner South London

[2017] EWCA Civ 31

• 45 yr old woman (Maria) with severe mental impairment died in ICU at KCH

• Her sister contends that Maria was deprived of her liberty, and was entitled to a coroner’s inquest with a jury.

• The divisional courts disagreed

• The Court of Appeal upheld their finding

• ITU is not “state detention” for purposes of Coroners & Justice Act 2009

DoLS in General Hospital

• Para 88-92 “Life-saving medical treatment: in general no deprivation of liberty”

• “Commonly occurring restrictions on movement”

• "so long as [it is] rendered unavoidable as a result of circumstances beyond the control of the authorities and is necessary to avert a real risk of serious injury or damage, and [is] kept to the minimum required for that purpose"

LB Haringey v FG [2011] EWHC 3932 (COP)

• Making the decision involves:

• “An ability to understand what the issues are that determine family or Local Authority provision, what the consequences of any such decision are, and how they are likely to impact on the person’s emotional, physical and educational welfare.”

• “That is a relatively sophisticated process, and […] a difficult one.”

UN Convention on the Rights of Persons with Disabilities

• Article 5 Equality and non-discrimination

• 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

Scotland

• Mental Health (Care and Treatment) (Scotland) Act 2003 s.44 (4)(b)

• “because of the mental disorder, the patient’s ability to make decisions about the provision of medical treatment is significantly impaired;”

Northern Ireland

• Mental Capacity Act (Northern Ireland) 2016 Sch 2 2(3)

• “(d) P lacks capacity in relation to whether he or she should be so detained; and

• (e) it would be in P's best interests for him or her to be so detained.”

Violence against staff

Who is violent in the NHS?

‘Perpetrators’: Men (and women) aged 70-95 Victims: female nurses

NHS Protect 2016

Mental Health Wards

• Highest rates of physical assault on elderly organic wards

• Acts of violence more random

• Other patients more likely to be victims

• Elderly wards less well designed and equipped

Health Care Commission 2008

dementias and mental health law

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