Mental Health Law

286 Pages·2012·1.747 MB·English

by  Brown, Robert, Puri, Basant, McKee, Heather

Mental
Health
Law
This page intentionally left blank
Mental
Health
Law
a practical
guide
second edition
Basant K. Puri MA, PHD, MB BCHIR, BSC (HONS) MATHSCI,
FRCPSYCH, DIPSTAT, PG DIP MATHS, MMATH.
Hammersmith Hospital
Imperial College London and University of Limerick
Robert A. Brown MA APPLIED SOCIAL STUDIES
Director of Edge Training and Consultancy Ltd. Social Worker. Visiting Fellow
Bournemouth University, Bournemouth, UK
Heather J. McKee MB, CHB, BAO, MRCPSYCH, LLM
Consultant Neuropsychiatrist, Royal Hospital for Neurodisability, West Hill,
Putney, London, UK
Ian H. Treasaden MB, BS, LRCP, MRCS, FRCPSYCH, LLM
Consultant Forensic Psychiatrist, Three Bridges Medium Secure Unit, West
London Mental Health NHS Trust, London; and Honorary Clinical Senior Lecturer
in Forensic Psychiatry, Imperial College, London, UK
CRC Press
Taylor & Francis Group
6000 Broken Sound Parkway NW, Suite 300
Boca Raton, FL 33487-2742
© 2012 by Taylor & Francis Group, LLC
CRC Press is an imprint of Taylor & Francis Group, an Informa business
No claim to original U.S. Government works
Version Date: 20121026
International Standard Book Number-13: 978-1-4441-4975-3 (eBook - PDF)
This book contains information obtained from authentic and highly regarded sources. Reasonable efforts have been made to pub-
lish reliable data and information, but the author and publisher cannot assume responsibility for the validity of all materials or the
consequences of their use. The authors and publishers have attempted to trace the copyright holders of all material reproduced in
this publication and apologize to copyright holders if permission to publish in this form has not been obtained. If any copyright
material has not been acknowledged please write and let us know so we may rectify in any future reprint.
Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmitted, or utilized in any
form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and
recording, or in any information storage or retrieval system, without written permission from the publishers.
For permission to photocopy or use material electronically from this work, please access www.copyright.com (http://www.copy-
right.com/) or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400.
CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For organizations that have been
granted a photocopy license by the CCC, a separate system of payment has been arranged.
Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification
and explanation without intent to infringe.
Visit the Taylor & Francis Web site at
http://www.taylorandfrancis.com
and the CRC Press Web site at
http://www.crcpress.com
Contents
Contributors vii
Legal advisors viii
Preface ix
1. History of mental health legislation 1
2. Definitions used in mental health legislation 13
3. Professional roles 25
4. Safeguards for patients under the Mental Health Act 37
5. Compulsory Admission to Hospital: (Sections 2, 3 and 4 of the Mental
Health Act) 43
6. Consent to Treatment Provisions under the Mental Health Act 53
7. Community Treatment Orders, Leave of Absence and After-care 57
8. Guardianship (Sections 7 or 37 of the Mental Health Act) 63
9. Patients concerned in criminal proceedings or under sentence 73
10. Mental Health Tribunals 97
11. Hospital Managers 103
12. Cross-border arrangements 109
13. The Mental Health Act Code of Practice and the Reference Guide 115
14. The Care Quality Commission 123
15. Consent and Capacity 129
16. The Mental Capacity Act 2005: Principles 139
17. Mental Capacity Act 2005: Provisions 143
18. Assessment of Capacity 155
19. Safeguards under the Mental Capacity Act 2005 161
20. The Mental Capacity Act Codes of Practice 167
21. Human Rights Act 1998 in mental health legislation in the UK 173
22. Mental health, medication and the law 177
23. Research ethics 187
24. Child mental health law 191
25. Race, culture and mental health 207
26. Suicidal patients 211
27. Assessment of risk of violence 217
28. International comparison of mental health legislation 237
Appendix I Legal cases 248
Appendix II Summary of civil treatment codes 263
Appendix III Summary of civil compulsion sections 265
v
Appendix IV Flowchart of decisions involving consent to treatment 266
Appendix V Sample forms 267
Index 275
S
T
N
E
T
N
O
C

vi
Contributors
Paul Barber BA Oxon
Solicitor and Former Partner, Bevan Brittan Solicitors
Freelance Lecturer and Trainer in Mental Health, Incapacity and Human Rights
Law, UK
Sharon Davies BA MBBS MRCPsych
Consultant Adolescent Forensic Psychiatrist, West London Mental Health NHS
Trust, London, UK
Claire Dimond BSc MBBS MRCPsych
Consultant Adolescent Forensic Psychiatrist, Adolescent Forensic Directorate,
WLMHT
Christine Dixon MRPharmS
Principal Pharmacist
S.W. London Elective Orthopaedic Centre, Epsom, Surrey, UK
vii
Legal advisors
Sections of the manuscript related to mental health law and to criminal law were
reviewed by the following advisors, who made suggestions and recommendations
to the authors on the basis of their specialised experience and knowledge on
current law and legal practice. Their help is much appreciated. The final version
of the text is the work of the authors, incorporating those suggestions and
recommendations as the authors have judged best:
Nick Hopkins and Rebecca Hill
Solicitors, Needham Poulier & Partners, London, UK
Helen Kingston
Solicitor and Principal Lecturer in Law, Northumbria University, Newcastle upon
Tyne, UK
viii
Preface
The preparation of a second edition of this book has given us the opportunity to
cover the major developments in mental health legislation since the publication
of the previous edition. These have included the new Mental Health Act 2007,
the Mental Capacity Act 2005 together with its two Codes (one general and one
covering the Deprivation of Liberty Safeguards), the revised Mental Health Act
Code of Practice published in 2008 and changes in legislation related to research
involving the mentally disordered.
Once again, we have sought to strike a balance between the need to provide
the reader with a relatively short and portable handbook containing practical
advice and the desire to be over-inclusive with detailed considerations of the
ramifications of legal argument. While the usual cautionary legal principle is
that the reader should always refer to the latest primary legislation, this is rarely
realistic in day-to-day practice. However, it is hoped that the new edition of this
mental health law handbook will continue to live up to its name and provide
helpful practical medico-legal advice.
We wish to thank all those who reviewed the first edition and the draft second
edition and we are grateful for the feedback we received.
We are very sorry to relate that Dr Paul Laking, the author of the excellent
chapter on child mental health law in the first edition, has died. We valued his
contribution greatly and extend our sympathies to his family.
ix