scholarly journals Section 136: the ‘grey zone’ after the 24-h validity period lapses

2020 ◽  
Vol 27 (1) ◽  
pp. 62-64
Author(s):  
Yathooshan Ramesh ◽  
Mukesh Kripalani
Keyword(s):  
Mental Health ◽  
Clinical Review ◽  
Common Law ◽  
Mental Capacity ◽  
Grey Zone ◽  
Mental Health Act ◽  
Mental Capacity Act ◽  
Legal Grounds

SUMMARYIf a Mental Health Act section 136 lapses at 24 h because no in-patient bed is available, the legal grounds to continue holding an individual in the place of safety are dubious. Duty of candour and a senior clinical review are essential. The use of common law and the Mental Capacity Act have limitations, the latter also raising a question about whether deprivation of liberty safeguards would also apply. Clarity of this dilemma is needed through legislation.

scholarly journals The Mental Capacity Act 2005, the Mental Health Act 1983, and the Common Law

2014 ◽  
Vol 1 (13) ◽  
pp. 163
Author(s):  
Phil Fennell
Keyword(s):  
Mental Health ◽  
Common Law ◽  
Institutional Care ◽  
Mental Capacity ◽  
Bodily Integrity ◽  
Mental Health Act ◽  
European Court ◽  
Mental Capacity Act 2005 ◽  
The Common ◽  
Mental Capacity Act

<p align="LEFT">This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. Until the 2005 Act comes into force in 2007, practitioners will have to be aware of the interface between powers to admit to institutional care and treat without consent under common law and those which exist under the Mental Health Act 1983.</p><p align="LEFT">In simple terms, the interface question is ‘When may the common law or, after 2007, the 2005 Act, be used to admit to institutional care and treat without consent, and when will use of the Mental Health Act be required?’ This article argues that there are two decisions of the European Court which need to be considered in determining how to bridge what has become the “Bournewood gap”: <em>HL v United Kingdom</em> and <em>Storck v Germany</em>. These will require that the State must provide effective supervisory mechanisms to ensure that mentally incapacitated people are not deprived of their liberty (Article 5) and do not have their right of bodily integrity interfered with (Article 8) without lawful authority.</p>

scholarly journals Changes to the Mental Health and Mental Capacity Acts: implications for patients and professionals

2009 ◽  
Vol 33 (6) ◽  
pp. 226-230 ◽  
Author(s):  
Ian Hall ◽  
Afia Ali
Keyword(s):  
Mental Health ◽  
Work Load ◽  
Mental Capacity ◽  
Community Treatment ◽  
Mental Health Act ◽  
Mental Capacity Act 2005 ◽  
User Groups ◽  
Treatment Changes ◽  
Mental Capacity Act

SummaryThe new Mental Health Act 2007 for England and Wales has introduced substantial amendments to the 1983 Mental Health Act and has also amended the Mental Capacity Act 2005. Most provisions came into effect in November 2008. the introduction of supervised community treatment, changes to professional roles such as the role of ‘responsible clinician’, and the introduction of deprivation of liberty safeguards in the Mental Capacity Act are discussed. Many of the new safeguards in the Act are welcomed by clinicians and service user groups. However, other changes are more controversial and could potentially lead to an increase in the work load of clinicians.

Assessing mental capacity and making decisions

2019 ◽  
Vol 15 (4) ◽  
pp. 187-189 ◽  
Author(s):  
John Finch
Keyword(s):  
Mental Health ◽  
Mental Capacity ◽  
England And Wales ◽  
Mental Health Act ◽  
Mental Capacity Act 2005 ◽  
History Of ◽  
Mental Capacity Act

John Finch, a legal member of the Mental Health Act Commission for England and Wales from its creation by statute in 1983 until 1991, takes a fresh look at the uncomfortable history of the Mental Capacity Act 2005 and asks whether the Act has served any useful purpose.

Mental capacity assessments in secure care: an unnecessary complication?

2009 ◽  
Vol 33 (12) ◽  
pp. 461-464
Author(s):  
Ashimesh Roychowdhury
Keyword(s):  
Mental Health ◽  
Best Practice ◽  
Mental Capacity ◽  
Code Of Practice ◽  
Mental Health Act ◽  
Secure Care ◽  
Clinical Scenarios ◽  
Clinical Thinking ◽  
Mental Capacity Act ◽  
The Impact

SummaryThis is a review of the key criteria and implications of the Mental Capacity Act 2005 for patients in forensic care detained under the Mental Health Act 1983. Both Acts were amended by the Mental Health Act 2007 and its subsequent Code of Practice; the impact of these changes will be explored here. Through review of the Code of Practice and hypothetical clinical scenarios, I argue that capacity judgements in mental disorder are inherently complex, unreliable and inextricably linked to risk assessment, and that an overemphasis on capacity when making decisions about patient management in secure care can paradoxically obscure the more central issue of risk and proportionality. the key clinical implication is a call for secure services to be balanced in how they adopt best practice principles from the new Mental Capacity Act so that the spirit of the Act, such as valuing patient autonomy, is preserved and that the debate about what practices in secure care are truly proportionate and justified remains at the forefront of clinical thinking.

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