Legal Arguments for the Discharge of Edna Elliot by the MHRT - Essay Example

Order No: 203678 Topic In no more than 2,000 words, you are required to give a detailed account of the legal arguments you would put forward for thedischarge of Edna Elliot by the MH Title Legal Arguments for the Discharge of Edna Elliot by the MHRT 15 February 2008 Order No: 203678 Legal Arguments for the Discharge of Edna Elliot by the MHRT 1. Introduction The psychological disorder of the people, especially among the vulnerable adults has been a crux issue and a tool of deep concern in all the quarters throughout the country. "At 31st March 2004, there were about 14,000 patients who were being detained and treated in hospital for a mental disorder" (Winterton, 2006, p.1). Mental health has been the burning issue in the recent days (Nishat, 1998, p.47). As a result, UK has adopted a new medical view putting emphasis on each individual patient's need. "Mental health problems affect one in four people in their life-times and can lead to high levels of stigma and social exclusion" (Reform of Mental Health Legislation, 2003, p.1). 2. Nature of Mental Incapacity Every adult is presumed to deserve the sufficient capacity of understanding the decisions made by him and consequences of any action (Sumond, 2005, p.45). "Mental capacity is the term used to describe a cluster of mental skills that people use in their day to day lives in making decisions" (Capacity and Consent, p.1) Speaking in easier terms, mental capacity means the ability of an individual to make a decision about specific elements of their life" (Crawley & Williams, 2007, p.3). Actually, the concept is not a unanimous as it differs in varied context. "Consent is the voluntary or unconditional permission of a person to a given dealing" (Crawley & Williams, 2007, p.3). This relates to the free-will of an individual about a particular matter and corresponds to the psychoanalytical explanation. Permission or decision obtained through force, fraud or intimidation is not considered as consent. As per the provision of Mental Health Act, 1983 consent indicates a voluntary or unconditional willingness of a person for the commission of a particular act which is within the knowledge of the said person. If a certain adult suffers from mental incapacity, effort should be taken so that the best interests of the individual can be sustained. House of Lords has defined 'best interest' as: "[n]ecessary to save life or prevent a deterioration or ensure an improvement in the patient's physical or mental health; and in accordance with a practice accepted at the time by a responsible body of medical opinion skilled in the particular form of treatment in question" (Capacity and Consent, p.4). Mental incapacity is equally applicable to persons of all ages including the children. The Children's Commissioner for England ('the Children's Commissioner') was established under by the Children Act 2004. This body is invested with the responsibilities of promoting and protecting the interests of Children. Clause 24 of Mental Health Act 1983 has made some changes regarding the children under the age of 18. The amendment states that "children with mental health problems would receive assessment, treatment and care from child and adolescent mental health specialists and where in-patient care is needed, are placed in age appropriate settings" (Children's Commissioner. n.d., p.3). 3. Legislation Regarding Mental Health There are several enactments governing the mental health in the country. The most prominent amongst these instruments is The Mental Health act, 1983. Other enactments are Mental Incapacity act, 2005, Court protection rules 1994. For the convenience and proper understanding over the topic, it is required to have a careful and through analysis over those relevant legislations. 3.1. The Mental Health Act 1983 The Mental Health Act 1983 sets out the law on assessing and/or treating a mentally disordered patient under compulsion. The legislative provisions concerning the mental incapacities and their treatment as inserted in The Mental Health Act, 1983 are described below: Section 17 states that Responsible clinician if thinks appropriate, may grant any specified or indefinite period of leave to the persons detained in the Hospital under this Act. If it is so required by the situation, the clinician while granting leave of absence may direct that the patient would remain in custody. Clinician is also authorized to revoke the leave where the leave has already been granted. Section 37 speaks about the hospital admission or guardianship. The provisions as said in this section is that if a person is convicted by the court for any offence other than ordinary form of conviction, the court may by order authorise his admission to and detention in such hospital as may be specified in the order. In passing such order, the court is to be convinced that two registered medical practitioner have confirmed that the alleged practitioner is suffering from mental illness. But, where the patient is below the age of 16 years, the said patient is to be kept under guardianship. Section 41 describes as to the restriction order and says that if a hospital order is made by a county court and it is appeared that there is a potential risk if the patient is discharged, High Court may restrict the discharge of the convicts from Hospital. Section 73 sates about the discharge of the patient against the restriction order passed by the high Court. If a restriction order is imposed upon a patient, he or she is entitled to make an application to a Mental Health Review Tribunal, the Tribunal being satisfied on the following grounds, may direct for the absolute discharge of the detained patient: The detained person is not suffering from mental disorder or such treatment is not necessary for the safety of health or considers that appropriate medical treatment is available for him. Section 117 describes about the after care services provided to the patients. "The Primary Care Trust or Health Authority and the local social services authority are responsible to provide after care services to the patients in co-operation with relevant voluntary agencies" (Department of Health, 2006, p.162). Section 132 of Mental Health Act suggests, the Trust should immediately after the beginning of the detention period inform the detained patients their legal rights considering their mental state. "All patients whether they are detained under the 1983 Mental Health Act or not MUST be informed of their legal rights whilst being cared for by the service" (NHS, June 2005, p.1). The nearest relative is empowered to undertake the functions and responsibilities which may safeguard the interest of the patient. 3.2. The Mental Capacity Act 2005 "The Mental Capacity Act 2005 is a timely and efficacious legislative approach which received Royal Assent in 2005, and came into force in April 2007" (Mental Health Act Commission n.d., p.1). The act deals with the decision-making on behalf of adults who lose the mental capacity or where an individual is mentally incapable since his/ her birth. The Mental Capacity Act 2005: Code of Practice has been designed to articulate and address the following concerns. The Code of Practice has framed provisions to provide a practical guidance for the effective implementation of the Mental Capacity Act. For instance, examining or assessing the mental capacity of a particular person, determining whether a particular course of action is to be deemed as the best interest to a particular individual or not. 4. Against the Notion of Best Interest Ironically, people are not conscious in taking decisions about their treatment even where they are not detained under the Mental Health Act, 1983. Though the relevant provision states that for the best interest of the patient, treatment should be given even against his/ her will, such propositions has a little value as consideration of patient's willingness and therapeutically viable examination should be coordinated for the better treatment. 5. Advance Directives Choice and self-determination are the cardinal principles of health policy. So, the matter of taking decision concerning the treatment of mental health should be given an equal importance alongside the notion of best interest as determined by the nearest relatives of the mentally vulnerable patients. While dispensing the vulnerable adults with their mental incapacities, advance directives bear much importance. Advance directives are those documents which are drawn up by individuals express their wishes as to their future care and medical treatment. These advance directives have a significant place in the care and treatment of people who are covered under the Mental Health Act. For example, if a person lacks capacity and care and treatment is urgently required for him, an advance directive would indicate whether the patient had stated that a treatment was to be refused. Much logically, advance refusals of treatment should be legally binding unless there is a solid ground as to the consideration that why this should be overridden. By dint of the relevant provisions of the Mental Health Act, 1983 an advance directive can be over-ridden if the person is subject to compulsory treatment. A patient cannot use an advance directive to prevent treatment being given to him/her under the Mental Health Act 1983.Because, for the better sake of the patient; the treatment is given irrespective of his/her capacity or consent. The Government has amended the Mental Health Act 1983 for the purpose of affording the people with serious mental and others to get better treatment and protect them from further harms and sufferings, strengthen safeguards for the patients, tackle human rights incompatibilities. The provisions of Mental Health (Care and Treatment) Act of Scotland as adopted in 2003 as enforceable asserts that people detained are allowed to make an advance statement irrespective of the refusal or wishing for taking the treatment. This provision has made conveniences for the clinicians on the fact that a certain patient can not express his or her opinion concerning treatment. Consequently, the clinicians can easily decide over the matter of supplying medical treatment to the concerned patient. The provisions as enshrined in section 63 of the Mental Health Act permits any kind of mental disorder which are not covered or regulated by sections 57 and 58 of the same act. An example of such treatment may be set as stating that drug treatment up to three months does not require consent (Raul, 1990, p.67). So, things like this issue do not require the requirement that the wishes or refusals of the patient should be heard and taken into consideration. There is nothing denying that the psychiatric medications have serious effects. Hence, in deciding for treatment the potential benefits and harms likely to be caused on the patients should be sparingly considered so that the effects does not result a reverse outcome instead of cure and proper medication. So, the views or consent given by the patient should be duly evaluated for the purpose of ensuring a better consequence from such medication serving the best interests of the patients. 6. Recommendation for Edna From a perusal of the report and information produced from different authorities, psychiatrist, Social worker, Nurse and clinical assessment, it is very much conspicuous that Edna has been suffering from mental illness and schizophrenia. Though, the nurse has opined that Edna could be discharged provided that she should be accompanied with her friends. But, from a rational point of view it can be asserted that this release or discharge of Edna might result another mishap causing injury or killing lives of several persons. Again, the provisions as enunciated in the Mental Health act, 1983 suggest that if a person is deemed as dangerous for the protection of lives of others, the clinician is authorized to restrict the discharge of the said patient. Again, in this connection, High Court is also authorised to pass a restriction order for the discharge of the patient. But, there are some alternative ways to improve the position of Edna. She may be released conditionally. After the discharge, she should be kept under supervision. Edna is also prone to suicide and reluctant to medications, despite she has a severe mental disorder, she should be under treatment unless and until the final recovery of her mental disorder is eliminated or reasonably reduced. Bibliography Capacity, Consent and Best Interest. 1-6. Available at http://www.eastsussex.gov.uk/NR/rdonlyres/5E98CCF8-044A-4D8C-A6D9-F3E56D52CE57/0/Capacityconsent_bestinterest.pdf (12/02/2008) Children's Commissioner for England. (n.d.). Submission to the Mental Health Public Bill Committee Office of the Children's Commissioner. P. 3. Available at https://www.childrenscommissioner.org/documents/MHBillSubmission.pdf (11/02/2008) Crawley, Linda and Williams, Vince. (2007, October). The Mental Capacity Act 2005: Policy and Procedures. 1-20. Department of Health. (15 November 2006). Mental Health Act 1983. (1-206) Available at http:// www.bps.org.uk/downloadfile.cfmfile_uuid=4DD0BB2A-1143-DFD0-7EA5-23C23996E7A0&ext=pdf (11/02/2008) Mental Health Act Commission. n.d., Guide to Mental Health Law. Warrington Borough Council. Available at http://www.warrington.gov.uk/Healthandsocialcare/Mentalhealth/mhealthsub/Guide_to_Mental_Health_Law.aspx (14/02/2008) Nishat, Raha. (1998). The Role of Medicine in Mental Health. Journal of Mental Health. 3(2). 45-67. North Lincolnshire Primary Care Trust (NHS). (June 2005). Human Rights Act Compliant. Mental Health Act: Procedure for Informing Patients Detained Under the 1983 Mental Health Act of their Legal Rights. Director of Mental Health:Human Rights Act Compliant. Available at http://www.nlpct.nhs.uk/ policies/docs/ MentalHealth/LegalRightsProcedure.doc (14/02/2008) Raul, F. 1990. Mental Health Act and Perspective. Oxford press. Reform of Mental Health Legislation. (October 2003). Available at http://www.parliament.uk/post/pn204.pdf (15/02/2008) Sumond, Didar. 2005. Mental Health Law in Indian Sub-continent. New Delhi: Roma Publications. Winterton, Rosie. (23 March 2006). Ministerial Statement on the Mental Health Bill. Retrieved from Available at http://www.dorsethealthcare.nhs.uk/ Portals/3/corporate%20services/MH%20Bill_Ministerial%20Statement23Mar06.pdf (12/02/2008) Read More