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Magna Carta

No freeman shall be seized or imprisoned or stripped of his rights or possessions …….. Nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

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ARTICLE 5: THE RIGHT TO SECURITY AND LIBERTY OF PERSON

Everyone has the right to liberty of person. No one shall be deprived of their liberty save in the following cases and in accordance with a procedure prescribed by law …

1.e “…… the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”

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Article 5

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.

(5) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful.

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Physical disorder v Mental disorderMCA Enhances autonomy

All help to make decision

Best interest (as defined by the patient)

Lasting power of attorney

Advance decisions

MHA Removes autonomy

Overrides capacitous refusal

Best interest ish (as defined by RC)

Role of NR Removes authority of

AD Note s141 etc

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Rosie Winterton Minister of State 2004

“Of course, they do address two quite separate issues, one dealing with people who have lost the capacity to consent to treatment and the other dealing with people who do not wish to consent to treatment but for whom treatment is felt to be a necessity.”

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Scotland The patient has a mental disorder That because of the mental disorder the patient’s ability to make

decisions about the provision of medical treatment is significantly impaired

That it is necessary to detain the patient in hospital for the purpose of determining what medical treatment should be given to the patient or giving medical treatment to the patient

That if the patient were not detained in hospital there would be significant risk to the health, safety or welfare of the patient or to the safety of any other person

That the granting of a short-term detention certificate is necessary.

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Egypt

Emergency - grievous and instant danger against his safety and life and against safety and life of others, or against properties OR incapable of looking after himself due to the gravity of the psychiatric disorder.

Non-emergence - severe psychiatric disorder AND grievous and imminent danger to the patient himself, to others or to properties AND necessary for treatment to avert an imminent and significant deterioration of the mental condition AND treatment available and the patient is not consenting

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India

Has recently threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself AND/OR

has recently behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her AND/OR

has recently shown or is showing a lack of competence to care for himself or herself to a degree that places the individual at risk of harm to himself or herself

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Re B

“A competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even when that decision may lead to his or her death”.

Dame Elizabeth Butler-Sloss Re B 2002

“Never again may a clinician administer treatment against the will of a mentally competent patient”

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The Rule of Law

“Most British people today would, I think, rightly regard equality before the law as a cornerstone of our society. But we would also accept that some categories of people should be treated differently”.

Children.

Prisoners.

The mentally ill who “may have to be confined if they present a danger to themselves or others”.

Lord Tom Bingham

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Number subject to MHA March 31st

2008 – 15,181 2009 – 16,073 + 1,755 CTO 2010 – 16,622 + 3,325 CTO 2011 – 16,647 + 4,291 CTO

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Rosie Winterton Minister of State 2003

"The intention of the legislation is not to increase the numbers of people who are subject to compulsion.”.

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Compulsion - treatment

1983-5 : 4,000 statutory second opinions 2008-10 : 18,000 (of whom over 5,000 were

recorded as capacitous refusing medication). CTO patients, over 55% were described as having

“insight” and 20% were described as “refusing” medication .

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‘Leverage’

35% (12% 2 or more) Housing Criminal justice Finance Child care

MH v Physical Health

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The OCTET study - CTO research

 A randomised controlled trial examining the efficacy and cost-effectiveness of the new supervised Community Treatment Orders (CTOs).

Research question: •Do CTOs reduce time to readmission, the rate and

duration of readmission to hospital?

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Eliza Manningham-Buller If we ourselves are to be free, and to feel secure in our freedom,

it’s important to keep a rational perspective on terrorist risk. The world is full of risks and dangers, only some of which can be reduced. Why then, when we in this country know that, for example, hospital-acquired infections and road traffic accidents both kill many more than terrorism, do we react as we do?

Politicians lose their way if they become too apprehensive about how the media will react to terrorism when it happens. We compound the problem if we use it as a reason to erode the freedom of us all.

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Violence to others

How much? Screening - how predictable? What population?

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Physical illnesses

Heart-attack

Breast Cancer

Diabetes

Obesity

Alcohol

Smoking

Physical & Mental illness

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Diabetes

Chronic illness with no cure but much positive treatment It is both progressive and potentially life threatening Primarily risks to self

higher risk of heart disease stroke kidney failure eye disease (which can lead to blindness) foot ulceration (which can lead to amputation)

Risks to others

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The Downside

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Some adverse effects

Parkinsonism, dystonia, akathisia, tardive dyskinesia, hypotension, hypothermia, hyperthermia, neuroleptic malignant syndrome (which may be fatal), drowsiness, apathy, agitation, excitement, insomnia, convulsions, dizziness, headache, gastro-intestinal disturbances, nasal congestion, dry mouth, blurred vision, difficulty with micturition, acute urinary retention, urinary incontinence, constipation, tachycardia, arrythmias, (including sudden death), menstrual disturbances, galactorrhoea, gynaecomastia, impotence, weight gain, diabetes, agranulocytosis or leucopenia, (both of which may be fatal), photosensitization, contact sensitisation, rashes, jaundice, corneal and lens opacities, and pigmentation of the skin, cornea, conjunctiva and retina (which may cause blindness).

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Some losses

Responsibility Medical confidentiality Fresh air Exercise Bedtime Watch whatever you want on the television Drink alcohol Make love/have sex

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The Spectator 1839

“A lunatic, in law language, is civilitus mortuus. If committed unduly, he receives in his single person nearly all the civil liberties that can be afflicted; for not only is his liberty thereby taken away and his property removed from his control but he suffers an imputation which operates with all the force of a libel… A party detained on a charge of insanity may be acquitted and restored to liberty; but we all know that this is a question of such a nature that it cannot even be raised without attaching suspicion ever after to the individual to whom it relates”.

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The Choice – and who decides?

Taking medication Staying mentally symptom

free and out of hospital but obese and impotent

Stopping medication Relapsing twice a year

requiring two weeks in hospital each time but feeling fit and functioning well the rest of the time

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UN Convention on the Rights of Persons with Disabilities

Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished.

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UN Convention on the Rights of Persons with Disabilities

This should not be interpreted to say that persons with disabilities cannot be lawfully subject to detention for care and treatment or to preventive detention, but that the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.

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A thought

What good is it making someone safer if it merely makes them miserable?

Lord Justice Munby

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