Mental Health and Care in the Community

intellectual health and Care in the CommunityThe come in of the psychic health of the enduring is complex and value-laden. Paternalism and autonomy interests confront difficulties of definition, diagnosis and the impact of labelling. Paternalism dictates intervention, and that the human right of autonomy be minimalist. (Davies, M., Medical virtue, Blackstone Press Limited, 1996, p.182). reason critically.Within rational health issues there has always been a large degree of paternalism. healthcare professionals and establishments appear to view those with psychic health line of works as incap open(p) of being able to make decisions for themselves and are often viewed as a potential danger1 to themselves and others.Over the years various pieces of jurisprudence see been enacted to deal with mint with mental health issues starting with the Lunatics sham 1845, the Lunacy mold 1890, Mental Treatment guess 1930, Mental Health typify 1959 and the Mental Health make a motion 1983. In 1995 the Mental Health (Patients in the Community) Act was introduced. This gave the relevant authorities the part of supervised2 discharge of mental health patients back into the community.Recent events where mental health patients were put back into society has ca exampled concern as there have been quite a few highlighted incidents where such patients have proven to be a danger to themselves and others3. The governments response to the public outrage when these patients have attacked or killed members of the public is to step back to a more paternalistic approach towards the manipulation of mental health patients by introducing the Mental Capacity Act 20054.The new Act allows the professionals to make value purposes over the patients and requires those dealing with such patients to make an appraisement of the psyches capacity5 to make decisions for themselves. contribution 2 (1) of the 2005 Act states(1) For the purposes of this Act, a person lacks capaci ty in relation to a matter if at the material era 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 brainpower or brain.Sub incision 2 goes on to say that(2) It does non matter whether the impairment or disturbance is permanent or ephemeral.The very wording of the Act is open to abuse as the scope of what dexterity be deemed as mental incapacity is too broad. In essence eachone who is suffering from a temporary mental breakdown either through circumstances within their own life or as the result of any prescribed medication they might be taken could be viewed as lacking the capacity to make decisions about their selves and could be institutionalised and pressure to have treatment.A further trouble with the new Act is that the decision on the privates capacity is based on the counterpoise of probabilities.(4) In proceedings down the stairs this Act or any other enactment, any questi on whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.In criminal proceedings the court has to prove beyond well-founded doubt that the person charged with the offence has committed the offence. With this new piece of legislation the level of proof required is equivalent to that required within the civil courts and therefore is open to greater abuse and it is likely that a higher dimension of people may find themselves being detained in a mental health institute and subjected to compulsory treatment6.Section 3 of the Act goes further to show how it give the axe be decided that a person is unable to make a decision for himself. It lists 4 areas that should be considered in deciding whether the person lacks the competency to make their own decisions.(1) For the purposes of department 2, a person is unable to make a decision for himself if he is unable-(a) to understand the schooling relevant to the decision,(b) to reta in that information,(c) to use or weigh that information as part of the process of fashioning the decision, or(d) to communicate his decision (whether by talking, using sign language or any other means).Subsection 2 does go on to say(2) A person is non to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, optic aids or any other means).In essence the supra is an attempt to limit those who can be regarded as incapable of making decisions collectable to any physical disability such as deafness or blindness, however, some privates may be so severely handicapped through conditions such as autism or mongolism that even things explained in simple language may not be understood by them. These people may not be a danger to themselves or others and are usually being cared for by members of their own families7.Some families find t he strain of a severely handicapped person in the household hard to cope with and for those people this new Act may help them to get the handicapped person institutionalised. Using the above Act they could argue that the person lacks the mental capacity to make decisions for themselves and is a potential danger8 to themselves so for their own protection they should be removed from society.If the person assessing the individual is satisfied that that individual does not have the capacity to make their own decisions then any treatment they consider to be in the best interests9 of the individual can be ordered. The person ordering the treatment must take into write up whether the patient may at some future term be able to make their own decisions again and if they decide that this is likely they must take all appropriate steps to ensure the patient receives all the help they need to recover to a position where they can make their own decisions.Effectively though the legislation allow s the person treating the patient with the mental health problem to remove all autonomy from the patient and force treatment on them that they might ordinarily object to if they had the capacity to do so. The legislation does state that the person making the decision on behalf of the patient should take into account the patients past and present wishes and feelings and make judgments based on what they perceive the patient would want if they were able to decide for themselves.The new Act is designed to operate alongside the Mental Health Act 1983 and the Mental Health (Patients in the Community) Act 1995, as was introduced with the demand of simplifying the way in which a person can be adjudged to be in need of treatment in respect of a mental health issue10.Under the 1983 Act compulsory admission fee to mental institutions is determined with reference to section 1 of the Act and refers to mental affection but also covers any other disorder or disability of the mind. The Act atte mpts to specify the persons who they deem in need of admission for treatment and covers four broad areas namely mental illness, severe mental impairment, psychopathologic disorder or mental impairment. The first 2 conditions trigger automatic admission regardless of whether the treatment is likely to be effective or not. With the last 2 conditions psychopathic disorder and mental impairment, admission can only be ordered if the patients are likely to turn a profit from the treatment.Under the new Act the definition has been extended to cover a far wider audience and it is likely under the provisions of the 2005 Act that those with a psychopathic disorder can be detained regardless of whether treatment will assist their condition.The 1983 Act does not specifically define mental illness and can be problematic as it does not cover conditions where a person may undertake activities that are potentially life threatening due to a urgency for risk taking. It is possible that the 2005 A t might encompass this area as section 3 (4) states that when deciding whether someone is capable of making their own decisions account should be taken as to whether the person has the capability of being able to reasonably foresee the consequences of the decisions they are making.Whilst it could be argued that this is a positive move11 there is agency for abuse of this inclusion in the legislation and could theoretically be used to cover sado masochistic activities between consenting adults or the participation of dangerous sports. To be effective the 2005 Act should incorporate examples where there is a clear demonstration that the patient lacks the capacity for being able to foresee the consequences of their actions. This would assist the person making the decision about the patients mental capacity as they could compare the actions of their patient with actions previously seen to be harmful.There are a few dangers surrounding the 2005 Act in that mental capacity is judged accor ding to the individuals capacity to make their own decisions. The 1983 Act defines psychopathic behaviour as a long disorder or disability of mind (whether or not including impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned. Research into psycopathy has shown that whilst the psychopath may not always conform to rules they do have the ability to do so.Following the guidance in the 2005 Act regarding mental capacity this could mean that dangerous psychopaths could slip through the net as they may well be able to show that they do not lack the necessary capacity to make decisions on their own. By establishing this they will be able to refuse treatment as autonomy is only forfeited where the patient lacks the capacity to make their own decisions.The new Act is inherently flawed in that temporary mental incapacity can speck to compulsory admission to an institute12. This could have a dramatic effect on people such as women suffering post natal falloff aft(prenominal) childbirth. In the past doctors have prescribed tranquilisers and anti depressants to attempt to cure the patient. Under the 2005 Act the partner of the patient suffering post natal depression could request that their partner be assessed for mental capacity. If the person doing the assessment is of the opinion that the mother is incapable of making their own decisions the mother might find herself placed in a mental institute and forced to receive treatment she might otherwise object to.The 2005 Act also contains a section authorising power of attorney13 to family and other persons connected to the person who has been assessed as lacking in mental capacity. This is open to widespread abuse as greedy relatives may use a temporary mental impairment of their family member to gain power of attorney over their monetary assets and squander any of their savings away.It has also been proven by past examples that once a p erson has been admitted to a mental institution it is difficult for the patient to convince the doctors and medical staff that they have now recovered from their mental illness and no longer need to be institutionalised14.In the UK paternalistic intervention15 has been used even when the patient having the treatment poses no threat to others or himself. In the case of W v Egdell 1990 ch 359 a psychiatrist was asked to examine a patient at the request of the patients solicitor to assess the suitability of transferring the patient from a secure infirmary back into the community. The psychiatrist submitted his report to the Home Office in order to prevent what he perceived could be a danger if the patient was prematurely released. As a result of this report the patient was forced to remain within the secure hospital despite the fact that at no time had the patient committed any acts of violence.This kind of paternalistic intervention offends against the principle of autonomy16 and sho uld only really be justified when the person for whom the decision has been made is unable to make an informed choice for himself. The approach to deciding whether paternalism should be allowed when assessing a person with a mental illness should be to ask whether the patient would consent17 to the proposed treatment if they were able to make a rational choice.In America they used what is known as the substituted judgment test which is autonomy based in the sense that the intervention is directed towards the goal of restoring the patients autonomy.Another way in which the mental health professionals have want to circumvent claims of enforced treatment is by the use of implied consent18. The notion behind this is that although the person by reason of incapacity cannot give their consent at that commove in time they may be able to endorse the treatment at a later date, which would then amount to a form of backward consent19.Obviously there are difficulties with this approach as the re is no way of predicting that subsequent consent will be given when the person is in a position to give that consent. Frequently those who resent involuntary treatment will continue to do so after recovery.Due to the obvious problems associated with prophylactic device with the autonomy of the patient most mental health professionals adopt the paternalistic best interests20 test as outlined in the Mental Health Act and uses the Act to order compulsory treatment of the patient.The 1983 Act provides 3 ways in which a patient can be compulsorily admitted to hospital for treatment21. Section 2 of the Act gives the patients nearest relative or any person authorised to act on their behalf the right to apply for the admission of the patient into hospital. In order to qualify for the right to make such an application the applier must have seen the patient within the 14 old age prior to the application. The application must be supported by 2 registered practitioners one of whom must be q ualified in psychiatry. Grounds22 for admission under section 2 are that a patient is suffering from a mental disorder of a degree which warrants detention in a hospital at least for a limited period of time and should be to prevent harm to himself or others.Under this kind of admission the maximum time the patient can be detained is 28 days and admissions cannot be renewed thereafter.The second way in which patients can be admitted is under section 4 of the Act which covers emergency admissions and can be applied for on the recommendation of one doctor only but is only valid for 72 hours. The doctor does not need to be a specialist in the treatment of mental health but if possible must have known the patient beforehand. The applicant must have seen the patient within the last 24 hours. Such emergency admissions can be converted to treatment for 28 days by seeking a second opinion from a mental health specialist.The third way in which compulsory admission can occur is under s3 of th e Act and application is similar as those under section 2 of the Act. Under this section of the Act the patient can be detained for up to 6 months and can be renewed thereafter, initially for an extra 6 months and then yearly for periods of a year at a time. Detention under this section can last indefinitely.Those who do recover from their mental disorder may be released from the secure units23 but held under supervision24 orders using section 117 of the Mental Health Act, and although they can no longer be forced to receive treatment they will be expected to attend at a treatment centre. unfortunately there is no system in place to ensure that such patients do attend the treatment centres and no sanctions available to the authorities to enforce their attendance. It has been suggested that those patients who have been discharged and do not comply with the supervision orders should be readmitted to hospital under a compulsory admission so as treatment can be enforced without the pat ients consent.In order to prevent claims being made by those who have been compulsorily admitted to hospital and forced to afford treatment section 139 of the Mental Health Act was added which states thatno person shall be liableto any civil or criminal proceedingsin respect of any act purporting to be done in pursuance of this Actunless the act was done in bad faith or without reasonable care.This effectively gives the hospitals total paternalism25 over the treatment of compulsorily admitted patient and negates any patient autonomy or rights to personal autonomy until such a time as the persons treating them are satisfied that the patient is recovered sufficiently to render them capable of making their own decisions.The overall view that is apparent from looking at the 1983 Act and the recent 2005 Act is that paternalism has always been present within the treatment of mental health patients. The 2005 Act broadens the classes of people who may now be assort as in need of compulsor y admission and treatment and therefore strengthens the position of paternalism whilst reducing personal autonomy practically into non-existence.The danger in allowing the government to increase the power for compulsory treatment could in the future spread to other areas of medical treatment and could lead to persons with terminal illness who have express a wish not to be treated being forced to undergo treatment by being held to be mentally incapable of making rational decisions.There could also be problems where patients refuse treatment on the grounds of religious belief. It might be argued by the person giving the treatment that the patient has been indoctrinated by the religious group they are part of and are therefore incapable of making decisions independent of the doctrines instilled in them by their religious teachings.Allowing paternalism to start acceptable for one classification of person could ultimately lead to problems in all areas of legislation and could result in criminals being locked away indefinitely as it could be viewed as in the best interests of society to keep them locked away.Governments have used the fear that the universal public have of people with mental illnesses comprise a threat to ordinary members of the public by highlighting those incidents were patients have been released from institutions and then have harmed or killed others26. By using this fear they have persuaded the general public that compulsory admission of the mentally ill is the only way to prevent others from being harmed and that it is in the best interests of the patient and society for them to be forced to undergo treatment and remain institutionalised27.BibliographyMason McCall Smith, uprightness and Medical Ethics, 5th Ed 1999, Butterworths.Darjee R, Crichton J. The MacLean committee Scotlands answer to the dangerous people with severe constitution disorder proposals? Psychiatric Bill 200226 6- Watts J, Priebe S. A phenomenologicalaccount of users ex periences of assertive community treatment. Bioethics 2002 16 439-454 division of Health and Home Office. Managing dangerous people with severe personality disorder. London Stationery Office, 1999.Scmukler, G, Homicide Enquiries. What sense do they make?, Psychiatric Bulletin , 24, pages 6-10, 2000 economical Executive. Report of the committee on serious dotty and sexual offenders. Edinburgh Scottish Executive, 2000Steadman, H, Mulvey, E, Monahan, J, Robbins, p, Applebaum, P, Grisso, T, Roth,L, and Silver, E, Violence by people discharged from acute psychiatric inpatient facilities and others in the same neighbourhoods, inscriptions of General Psychiatry, 55, pages 393-401, 1998.Who Decides Making Decisions on Behalf of Mentally injure Adults (LCD, 1997)http//www.ethox.org.ukhttp//www.dh.gov.ukhttp//www.guardian.co.ukhttp//bjp.rcpsych.orghttp//akmhcweb.orgTable of CasesR v Bournewood Community and Mental Health NHS Trust ex p L 1998 3 WLR 107Re F 1990 2 AC 1Re T (adult refusal of medical treatment) 1992 4 All ER 649, CA.).Re Y 1996 35 BMLR 111S v McC W v W 1972 AC 24St Georges Healthcare NHS Trust v S R v Collins and others, ex parte S 1998 3 All ER 673, 1998 Fam Law 526, CAW v Egdell 1990 ch 359Table of StatutesLunacy Act 1890Lunatics Act 1845Mental Capacity Act 2005Mental Health (Patients in the Community) Act 1995Mental Health Act 1959Mental Health Act 1983Mental Treatment Act 19301Footnotes1 Scottish Executive. Report of the committee on serious violent and sexual offenders. Edinburgh Scottish Executive, 20002http//www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/MentalHealth/MentalHealthArticle/fs/en?CONTENT_ID=4131958chk=/1k+X33 Steadman, H, Mulvey, E, Monahan, J, Robbins, p, Applebaum, P, Grisso, T, Roth,L, and Silver, E, Violence by people discharged from acute psychiatric inpatient facilities and others in the same neighbourhoods, Archives of General Psychiatry, 55, pages 393-401, 1998.4http//www.guardian.co.uk/Archive/Article/0,4273,44484 43,00.htmlhttp//www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/MentalHealth/MentalHealthArticle/fs/en?CONTENT_ID=4089588chk=we/GKL5 St Georges Healthcare NHS Trust v S R v Collins and others, ex parte S 1998 3 All ER 673, 1998 Fam Law 526, CA6 Mason McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths. P510 -5127 R v Bournewood Community and Mental Health NHS Trust ex p L 1998 3 WLR 1078 Darjee R, Crichton J. The MacLean committee Scotlands answer to the dangerous people with severe personality disorder proposals? Psychiatric Bill 200226 6-89 Re F 1990 2 AC 110 Department of Health. Reforming the Mental Health Act. London Stationery Office 2000.11http//www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/MentalHealth/MentalHealthArticle/fs/en?CONTENT_ID=4089589chk=1fWV9012 Mental Capacity Act 2005 s2 (2)13 Mental Capacity Act 2005 s914 http//akmhcweb.org/ word of honor/HungerStrike/LATimesMag10-26-2003.htm15 Mason McCall Smith, Law and Medical Ethics, 5t h Ed 1999, Butterworths p50616 http//www.ethox.org.uk/Ethics/econsent.htmintroduction17 (S v McC W v W 1972 AC 24 Re T (adult refusal of medical treatment) 1992 4 All ER 649, CA.).18 Mason McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths p50719 Watts J, Priebe S. A phenomenological account of users experiences of assertive community treatment. Bioethics 2002 16 439-45420 Re Y 1996 35 BMLR 111 http//www.ethox.org.uk/Ethics/econsent.htmintroduction21 Who Decides Making Decisions on Behalf of Mentally Handicapped Adults (LCD, 1997).22 Mason McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths p50323 Mental Health (Patients in the Community) Act 199524 Mental Health (Patients in the Community) Act 1995 (c.52) s125http//bjp.rcpsych.org/cgi/content/full/177/3/196?ijkey=b0b6443d7c871c32507c07da36faadf7633b7b9bkeytype2=tf_ipsecsha26 Scmukler, G, Homicide Enquiries. What sense do they make?, Psychiatric Bulletin , 24, pages 6-10, 200027 Department of Health and Ho me Office. Managing dangerous people with severe personality disorder. London Stationery Office, 1999.