The Issues of Mental Health Law - Assignment Example

Discuss the Issues of Mental Health Law Scenario A There exist various crucial factors in this scenario. The first issue is the fact that Dracus’ rights under the MHA 1983 were ignored and denied to him. As Brentano1 points out, under section 4, an individual should only be detailed for not more than 72 hours. This means that Dracus should not have been detained for four days as the case indicates. Section 4 of the Mental Health Act 1983 is only a provision that is supposed to help in emergency situations in order to have the person (patient diagnosed) by the relevant professional in order to determine their mental wellbeing. Placing Dracus under dentition for than 72 hours was unlawful and it violated his rights. Yet, as seen in Justice Bell’s decision in a similar case2, the judge referred to the fact that it is only under the provision of the MHA that an adults decision can be restricted, against their will. The other issue that came up is the fact that the doctor who was used as a consultant to determine that Dracus should be hospitalized under the provision of section 3 of the Mental Health Act 1983 is a business partner to Dracus. This raises a question of vested interest. Since Dracus and Reno own a business together, it raises the issue of the fact that Reno could be intending to kick him out of his own enterprise so that he can take over the business. It is to be noted that Dracus’ mother was opposed to the detention of Dracus, which may raise a number of concerns. Since section 3 provides that a close member of the family can apply for the detention of patient in this condition, there are a number of issues that come up. First, this application to detain Dracus after he had already been detained under the emergency detainment as provided for in the section 4, the application was made by Castro, who is Dracus brother. However, the issue is the fact that this was done in conjunction with Reno, who is not only a business partner to Dracus but also a brother to Dracus. At the same time, the fact that Dracus’ mother objected to this detainment is another important factor to consider. It is not clear whether Dr. Reno is a section 12 approved doctor. Either way, the relationship between him and the patient may indicate a controversial issue going on in this scenario. As Ian3 says, the Mental Health Act 1983 fails to address issues like this and this creates a challenge for mental healthcare. As seen in the 4 case, the judge applied that the detention of a person on the basis of their mental wellbeing should be done in good faith and by a person close to the affected person. Scenario B In this scenario, there are some issues that come up with regard to Mental Health Act 1983. The first issue if the issue if renewal of the application for the detention of a person5. The law under Mental Health Act 1983 identifies that application to detain a person under section 2 of the MHA 1983 is not renewable and cannot be extended. This is necessary to protect a person who may be a victim of malicious people trying to detain him or her for selfish purpose. However, as Moonie6 points out, the law fails to provide clear guideline as to what “extended” or “renewed” means. It is necessary to note that these sections and provision in the Mental Health Act 1983 are geared towards making sure both the patient and the public is protected from any negative situations which may arise from the mental illness of an individual7. For instance, in a similar case8, legal authorities were found as having neglected their civil duty because they refrained from detaining a person who had attempted to commit suicide, and so he eventually committed suicide. However, as seen in this case for Eloise, the law blurs out on the definitions of what it mean by that the application under section 2 cannot be renewed. Would it mean that a person can never be placed under this situation again in their life time if they have been placed there at any time prior? This issue can be seen as deliberated by the court in St Georges Healthcare NHS Trust v S; R v Collins and others9 about forced detention based on mental illness. Of course, common sense says that this is not the case. The provision of the application under section 2 of the MHA 1983 cannot be renewed or extended refers to a situation within a given context. However, after that context has been left behind in the time line, the same person can be placed under detention if an application under the same section (section2) has been made by the right person as defined by the Mental Health Act 198310. However, how to determine the time difference between incidents is the problems. For instance, the Mental Health Act 1983 does not mercenarily provide as to how long it should take for an individual to be placed again in this situation11. This is why Eloise found herself in this situation. Section 2 provides for detentions period of up to 28 days. Although it says that this application cannot be renewed or extended, it does not explain how the situation can be handled if by the end of the 28 days the person has not treated12. Looking at the case also indicates another issue of the patient’s ability to make their decision. For instance in a case in 2009, the court ruled on the fact that in some cases, the decision by a doctor to force a patient to receive medication was necessary13. Scenario C One of the major problems regarding the Mental Health Act 1983 is the fact that it does have a clear definition of what a mental disorder is14. Even without the issue of lack of a clear definition in the Mental Health Act 1983 of who a mentally ill person is, it is still hard to clearly identify some abnormal behavior as emanating from mental illnesses. A drunk person for instance may behave like a person with a mental illness, yet this does not qualify them to be so. In this regard, there are some issues which should be analyzed in order to make sure a person like Tony does not end up being described as a mentally ill person just because they did something awkward. However, as Mohr15 says, this issue is the man remains why there are professional psychiatrists how can assess a person and identify if they are healthy or not. It is in this spirit that the Mental Health Act 1983 creates higher standards for psychiatrists who can be used to determine that a person is mentally ill. The inability to judge when a person is mentally ill can be a hindrance in delivering mental healthcare due to the fact that some people with mental illnesses can be left out while those with these illnesses are detained for no reason16. For instance, in a recent case dealing with this kind of scenario17, the court considered the relationship between the common law and the duty of care requirements and argued that the doctors can in some cases decide to listen to the patient and not give them the care. There are many past cases that have placed precedence on how cases concerning the mental health of a patient should be considered as decapitating him from making rational decisions. For instance, Jugde McDougall J18 argued that in such cases, it not the rationality of the patient’s decision that is important but their ability to make such decisions. Yet, in other cases such as Marshall v Watson19, the court placed more emphasis on the fact that the restriction of a person’s freedom is against the law. The same scenario can be seen in Sidaway’s20 case where the judge rules that a patient’s refusal to be treated does not need to be rational. This can be seen as being reinforced by judge Walsh J21 in a case where he ruled that the police had violated the personal freedom of a person by transporting him to a mental healthcare. Scenario D Aloysius (section 37) By being detained on a section 37 order, it might appear that Aloysius’s mental health may have caused him to do something dangerous and harmful to the public. Section 37 deals with these issues and if Aloysius had been detained on such an order, it can be assumed that he had caused some damage. This order has no timeline and it is only ended on the advice by a qualified clinician after they are convinced that he patient in question is now okay and safe for him to mingle with the public. It is necessary to assume that this scenario seems to indicate that Aloysius was ordered to the hospital along with the rest, that is, Barny and his girlfriend Lulu, and Clubber and his girlfriend Paulina. As a result, there is a high possibility that this group of individuals had done something that warranted them to be perceived as having some mental health issues. The major question to deal with here is whether it is a probable possibility that a group of five people can be mentally ill at the same time. That notwithstanding, this group is interesting because of a number of factors. Each was admitted on a different application. Secondly, they all managed to get away. For Aloysius, who seems to have been the mastermind of whatever they had done in order to warrant an order for them to be placed in the mental hospital, the issue is that even after the thirteen months of exile, the order for him to be detained still stands and may face this if he is caught. Barny (section 4) (Lulu) Barny was detained on a section 4 application which would mean that the main reason for his detention was just for observation and examination in order to ascertain his mental health condition. In this regard, there is no much about him in this scenario. It is however necessary to note that his girlfriend Lulu was admitted under the application as provided for in section 35 which may indicate a more serious issue. Section 35 offers the power to the necessary authority to remand a person who has been accused of something related to mental health so that the person and be examined. In most cases, those patients admitted in under the application in these sections are those patients who have done something outrageous. Clubber (41) (Paulina) Clubber was admitted under the provision of section 41. This section is a more serious issue because it means that the person is having problems not only because he is being accused of being mentally ill, but because they are already in trouble with the authorities for some crime22. Section 41 provides for court to order a doctor not to release the person or transfer them to another facility23. References: Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010) Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 at [24] Bekaert, S. (2011). Hot Topics in Adolescent Health: A Practical Manual for Working with Young People. London, UK: Radcliffe Publishing. Brentano, F. (2002). Sectioned: Social Services and the 1983 Mental Health Act. London, UK: Routledge. Cochrane, E. Barkway, Y. & Nizette, P. (2010). Mosbys Pocketbook of Mental Health. Nairobi: Elsevier Australia. Crowley v Commonwealth [2011] ACTSC 89 at [891]-[921] Elder, R. (2012). Psychiatric & Mental Health Nursing. New York, NY: Elsevier Health Sciences. Happell, B. (2008). Introducing Mental Health Nursing: A Consumer Oriented Approach. New York, NY: Allen & Unwin. Harrison, M. H. (2004). Acute Mental Health Nursing: From Acute Concerns to the Capable Practitioner: New York, SAGE. Hunter & New England Area Health Service v A (2009) 74 NSWLR 88, Ian, M. (2013). The Art And Science Of Mental Health Nursing: Principles And Practice: A Textbook of Principles and Practice. London, UK: McGraw-Hill International. Mima, C. & Sylvia, T. (2006). Mental Health Promotion: A Lifespan Approach: A Lifespan Approach. London, UK: McGraw-Hill International. Mohr, W. (2006). Psychiatric-mental Health Nursing, Volume 1. London, UK: Lippincott Williams & Wilkins. Moonie, K. (2005). GCE AS Level Health and Social Care Single Award Book (For OCR). London, UK: Heinemann. Marshall v Watson [1972] 124 CLR 640. Norman, I. (2004). The Art and Science of Mental Health Nursing: A Textbook of Principles. London, UK: McGraw-Hill International. OCarroll, M. (2007). Essential Mental Health Nursing Skills. London, UK: Elsevier Health Sciences,. Stuart v Kirkland-Veenstra (2009) 237 CLR 215, St Georges Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998] 3 All ER 673, [1998] Fam Law 526, CA Sidaway v Board of Governors of the Bethlem Royal Hospital& Maudsley Hospital [1985] AC 871) Videbeck, S. (2011). Psychiatric-mental Health Nursing. London, Uk: Lippincott Williams & Wilkins, 2011. Watson v Marshall (1971) 124 CLR 621 at 627. Watson v Marshall (1971) 124 CLR 621. Read More