Essay: Case study – law and decision making around mental health and how the law is applied

This case study report is based on law and decision making around mental health (MH) and how the law is applied. This study will use the name Olga. (Olga) is not a real name this name has only been selected for the purpose of this case study. Some challenges will be discussed in regards to a patient and agencies involved in the subject. The implications of responsibility and accountability in line with legal framework will be debate and how these fit into the MH and the law. The law can be defined in many ways but the simple defination: The law is a system of the country or community with particular rules to regulate action which enforces everyone to abide by based on the will of the state (Clements, 2012).
There are distinctions between different laws as follow; civil law jurisdictions, many bodies come together and consolidate legislation. Common Low a precedent is made by the judge, this is acknowledged and become a law. Criminal law is responsible for the harmful conducts to social orders if any party is guilty they can be subjected to punishment of some kind or imprisonment this depends on the country. Civil law deals with dispute between individuals for resolution this include organisations. Statutory law is used for laws that are written down these laws are passed on by the agencies. In this study the writer will not cover all the laws, acts and legislations due to limitation of word count and the law being a wider topic this piece of work will only cover specifics one which are related to the topic (The Law Society, No Date).
Main Body:
In many hospitals patients who are being treated in the hospital facilities, have consented to treatment, Referrals are sent to other specialist services because the patient has consented to attend voluntarily or patients themselves are seeking help from services (Equality Act, 2010). There is a piece of legislation known as the (Mental Health Act, 1983). This legislation gives powers to registered professionals and clinicians to treat patients without consent if they have some mental disorder and under the mental health detention (Mental Health Act, (1983).
As opposed to Olga’s case she refused a specialist treatment however this piece of legislation enforced her to be at the place in which she never wanted to be. Decision maker’s takes patients liberty away for the purpose of treatment against their will, therefore a least restrictive options must fail to come to such conclusion everyone liberty should be exercised by all professionals (Human Right Act, 1998). Patient opinion should be taken serious and making some considerations to how their involvement would make a difference to their recovery. Patient should be informed of the process and the outcome of direct or indirect safeguarding. It is important to inform the patient when appropriate the sign and symptoms of abuse or neglect in a simple and clear information this is part of educating patients to recognise when things are going right or wrong (Mental Health Act , 2007 Code of Practice).
Professions are to be aware of their limit and exercise proportionality. Many patients would know their baseline to accept support when they need it however they can also advise professionals that they feel comfortable to manage themselves with no extra support therefore professionals should only act in patient’s best interest (POhWER, 2016). When Olga attended Metal health act assessment before jumping off the bridge, it would have been beneficial to explore more information to safeguard and protect her. All forms of abuse and neglect should be tackled at the right time as this can cause severe damage to a concerned person. Safeguarding is open for the protection of victims of abuse and neglect this includes children and adults and people with high nature or degree of the mental health (Beckett, 2010).
Most services work with multi-agencies therefore some implication of this would be sensitive information and information sharing. The patient has the right to refuse treatment their information being shared or they can choose who can see and access their information and how the information is used (Data Protection Act, 1998). Olga does not want family involved however there are no evidence to show that her information cannot be shared with other services to seek more help. Professionals should be accountable, being aware of the role and responsibility in which they should explain to the patient and the patient should understand the role of professionals in regard to what they are doing and why they are doing it (Department of Health and Social Care, 2015).
Once the patient is under a section, this should be in best interest, to safeguard and protect patient promoting the Human right (Mental Health Act, Code of Practice, 2007). An assessment should be completed before the treatment of patients with mental illness. Patients who are detained under the mental health act will receive treatment against their own will if Doctors and other agencies feel that a patient does not have enough capacity to consent to their care and treatment (Mental Capacity Act, 2005).The team will make decision after a full mental health act assessment is completed which involves 2 approved S12 doctors and an Approved Mental Health Professional (AMHP) (Mental Health Act, 1983).
There are specific people or an independent body which can decide discharge patients from a Section. This process is done through the mental health tribunal or the doctors. Patients detained under the mental health act have the right to appeal against their section. The patient is also eligible to a solicitor who helps them to do this. It was assumed that Olga had no capacity to sit through tribunal therefore professionals did not evidence her rights being given for the opportunity to appeal against this section as her liberty was taken away (Royal College of Psychiatry, 2015). The person, who can discharge a patient from a section, would only be doctors or the tribunal may decide that the patient is discharged from a section. An appeal should be made to enable tribunal to take place. Nursing staff and ward managers are able to support patients writing an appeal (Freedom of Information Act, 2000).
Doctors may discuss treatment plans with families and carers but this must be consented by the patient. They can also visit the patient as this is part of their right however visiting times are normally arranged directly with the hospital. Patient may refuse visitors in some cases and their wishes should be prioritized. Olga did not have a good relationship with her parents and she never wished them involved in her care or visiting therefore staff had to respect this fact. Family could be a good source of information however Olgas care her wishes were followed by not involving her parents (Royal College of Nursing, 2018). The European Union introduced human right law which should be abide by including the article 5 of the right to life, therefore patient have to be safeguarded and protected from harm or torture of any kind. Best interest can be used in a justifiable situation as all practitioners have the duty of care and duty to safeguard the vulnerable (Human Right, 1998).
Patient with dementia, severe learning disability, brain injuries, mental health illness, stroke, and unconscious; these are in the criteria’s of persons who may lack capacity (Mental capacity, 2005). The mental capacity act is aimed for protection and empowerment of people who may lack capacity to make decision about treatment this only apply to people from 16 years of age and above. Because of medical condition or mental health issues does not guarantee that someone lack capacity to make own decision. They may lack capacity to decide about financial matter but still have capacity to decide what to eat drink or buy. If it is not proven assume a person has capacity ensuring they are encouraged and supported and empowered in decisions and their views should be respected (Mental Capacity Act, 2005).
Olga has brain injury and mental health problems therefore she may lack capacity at this time but this does not guarantee that her capacity will be lost indefinitely. At the moment Olga may require an advocate to stand up for any arising matter. They may ask someone to seek legal advice, going to court or a tribunal concerning her properties and land include who can make decisions about her care (Royal College of Nursing, 2018). Many patients who are under a MHA section it is their right and entitlement to have an advocate and also to appeal for the legal right which practitioners should respect and abide by. Staff assumed that Olga had no capacity to make decisions and the rights were recorded as patient would not understand them. This would show that the hospital were in breach of the patients’ rights (Freedom of Information Act, 2000).
There are two stages to test capacity which is set out by (MCA). Firstly if the person has impairment of mind or brain caused by illness or substances and secondly if the persons impairment makes them unable to make specific decision. Principles include if the person understand information relevant to decision, able to retain information and weigh up information (Mental Capacity Act, 2005). To empower the person, information should be provided in an alternative way which is easier to understand or finding an advocate for them who can represent them for example a family member or carers ensuring an assessment has been completed to check if the person does regain capacity at particular times of the day considering location and environment when necessary decision could be delayed whilst observing for any changes. Olga already fail the first two questions as she has brain injuries and uses substances, She has mobility problem and on a Section where her liberty has been already taken away (Human Right Act, 1998).
Decision should be made in best interest of Olga if she lacks capacity ensuring she is still encouraged to take part. Discrimination can be a big thing in terms of gender race appearance and behaviors of the conditions everyone should not make assumptions whilst acting in persons best interest (Equality Act, 2010). The patient should constantly be assessed as they might regain capacity and involve others in consultation to making decision including the previous carers, family members, close friends and any appointed lasting power of attorney or ending power of attorney about best interest of the patient. For example Olga refused to go to a specialist place this may indicate that she was recovering and regaining capacity to make her own decisions (Equality Act, (2010).
When acting in best interest of the patient it is important to avoid things which interfere with their basic rights and freedom as least restrictive as possible all action taken or decision made must be in patient’s best interest. This may not work in all cases to use least restrictive options therefore when these types of decision are made should only be in best interest. Policies are changing most times depending on the government in power, because practitioners are provided with standard framework usually they aim to work within the scope set out by the government (Carers Trust 2015).
Professionals embrace changes positively by, adapting rapidly to different ways of working and putting effort into making them work these policies work. Clinicians and mental health practitioners may have been flexible and open to alternative approaches to solving problems however they may have been stretched to the amount of resources available or may have decided to use least restrictive options during this assessment resulting in discharging Olga with no support which then led to Olga attempting to take own life (Carers Trust (2015). For cases like this, policy makers should review it and finds better, more cost-effective ways to do things, making suggestions for change and putting forward ideas for improvement. The Mental health Act 1983 is legislation for compulsory treatment for some people with mental disorders. This was then amended in 2007 to improve safeguarding and protection with least restrictive to deprivation of liberty. The amendment through Mental Capacity Act 2005 ; extended the rights of victims Crime and Victims Act 2004. The Mental Health Act 1983 focus on circumstance mental disordered person to be detained for treatment.
Deprivation of liberty may apply in some cases to people who lack capacity to make their own decision this can only be judged based on individual cases this process happens by the hospital or a care home applying to the local authority (Clements, 2012). It may suggest that Olga may have lacked insight or capacity to make own some decisions has she was in distressed situation making decision to Jump of bridge and take own life not considering a 18 months old baby. Safeguarding and protecting the child as well as the mother may have been a good option. This follows by further assessment of a person care and treatment to enable decision on deprivation of liberty in the best interest. There after the local authority will have the power to grant the legal authorization if the case is different other than care and treatment the deprivation of liberty must change otherwise it will deem as unlawfully. This process is also known as deprivation of liberty safeguarding (Royal College of Psychiatrists, no .date.).
People write advance statement of their own personal wishes about future healthcare, beliefs and values for their is not legally binding. This is guidance which aims to provide person of best interest to communicate these decisions should the need arise at the time the concerned person loses capacity (Human Right Act, 1998). An advance decision to decline treatment is also known as a ‘living will’ this allows a person who is over the age of 18 to legally make decision to refuse treatment whilst they are capable. As this is legally binding when they loses capacity their wishes must be respected (Human Right Act, 1998). This document must be written down with name; signed and witnessed the statement should be clear even when life is at risk. Olgas current illness maybe be subjected to complete recover or not. It maybe that Olga have an advanced decision written down if she wishes to decline treatment this is because she never wanted to go to a specialist place for rehabilitation to recover and wanted to go home. Should Olga not on a section this could have been the case and her wishes of declining treatment would have been met if she had this written down (Clements, 2012). The court of protection works with MCA to oversee the issues surrounding welfare, properties and finance for people who lack capacity. The aim is to resolve matters among social workers and healthcare workers during disagreement of the person’s best interest and conflict of attorneys in regards to properties, welfare and finance. This is to do with whether NHS should discontinue treatment or if the treatment is in the person’s best interest and whether it is necessary to deprive person’s liberty in their best interest. These cases can be reported by advocates, family or professionals involved (Barnard, 2017).
This responsibility is given to a person or people who can make decision about financials, properties and welfare documents are made separately for each decision by appointing or many attorneys. Power of attorney was written with (MCA, 2007) stating a person can appoint someone when they are over the age of 18 and have capacity to make such decisions and this remains valid as at present. However there are statutory principals to follow this include to ensure that a person has capacity or has lost their capacity to make decision by using (MCA) the court of protection appoints deputies who can make decision on health, welfare and finance if the concerned person has lost their capacity (Jones, 2014).
Deputies are not usually required if the person has already appointed their own LPAs. The public guardian’s works with multi agencies such as the police social services and financial sectors for the purpose of investigating any concerns to ensure a smooth run of welfares of a person in concern (Hafford-Letchfield, 2009). Staffs are required to acts with integrity, in line with the values and ethical standards to empower service users. Professionals should take ownership for resolving problems involving the family, carers and other agencies, (Carers Trust, 2015). The key would include demonstrating the courage and resilience in dealing with difficult and potentially volatile situations such as outlined in the case study. Most organisations have public liability insurance in place to protect and cover their own staff for accidents, negligence and other misconduct. In this case Olgas family will have a an issue suing individuals if the court was to find negligence in this matter therefore the trust may pay off the price or claim from its insurance. The trust takes an overall responsibility and accountability for the staff. It may be good for staff to be held liable for their responsibilities as this may improve the seriousness when dealing with service users, (Jones, 2014).
The care Act was produced for the provision of reforming the law in relation to support of care for adults. This law applies to both adult patient and carers. These provisions have been implemented to support and safeguard adults from abuse and neglect (Kelly, 2016). Carers should engage and cooperative work with patients, family and carers including other agencies to gather the necessary information, by assessing patients, share information which is relevant and in the interest of the patient ensuring consent is gained (Care Act, 2004) . Olga has been known to using drugs and also having a 18 months old baby with her safeguarding of both Olga and the child in necessary and reasonable (Collins, 2009). Olga was known to services from previous admission therefore they had some history already which could have indicated that Olga was at risk as well as her child. Including men coming around to deal drugs this would have required some more investigation and safeguarding referrals (Issues in Criminal, Social, and Restorative Justice, 2017).
Conclusion:
Hospital staff should have demonstrated a real belief in saving the nature of mental health crisis in Olga’s situation, focusing on what matters to her this could have been done in the interests of Olga. If staff had an understanding of the expectations, changing needs and concerns of different issues Olga was experiencing, this could have saved her life or finding the solution to meeting her need by striving to address the problems she was encountering due to her vulnerability of the mental health problems in the first instance. Olgas family may have lost confidence in professionals as they expressed their feelings that if it was not for practitioners negligence Olgas situation would have been resolved or managed therefore they wish to take a legal action against the NHS.