4th International Conference on the Care and Treatment of Offenders with a Learning Disability

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• Legal Issues
• William Bingley

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• Introduction
• Mental Health Bill
• Report of the Joint Committee on the Mental
  Health Bill published March 23rd 2005
  www.publications.parliament.uk
• Mental Capacity Bill
• Bournewood Consultation

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• Issues
• The Mental Health Bill and the Joint Committee
  Report.
• The Mental Health Bill and the Mental Capacity
  Bill
• The Bournewood Consultation

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• Report of the Joint Committee on the Mental
  Health Bill published March 23rd 2005
  www.publications.parliament.uk
• The Code of Practice
• Patients involved in decisions
• Decisions are made openly and fairly
• Interference to patientsminimum necessary to
  protect their health and safety or protect others
• Principles will be in Code and can be
  dis-applied. Clinicians have to have regard to
  Code
• Principles in Bill
• Broader set of explicit guiding principles
• Significantly impaired decision making
• No disaplication

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• The definition of Mental Disorder
• An impairment of or a disturbance in the
  functioning of the mind or brain resulting from
  any disability or disorder of the mind or brain
  
• 2004
• Retain scope but narrow by specific exemptions
  and by conditions
• Substance misuse
• Sexual orientation
• People with learning disabilities or
  communicative disorders only liable for
  compulsory treatment if severely irresponsible or
  seriously aggressive behaviour as a result of
  their condition and if such treatment as is
  properly and reasonably required can only be
  provided under conditions of compulsion.
• Exclude cultural or political beliefs or
  behaviour alone.

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• The Criminal Provisions
• Remand
• Mental Health Orders
• Restriction Orders
• Hospital Directions
• Prisoners to Hospital

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• Improve drafting and make readable with Criminal
  Justice Act 2003
• Disagreement over which hospital person to be
  sent then SHA to resolve.
• If prisoners clinical supervisor satisfied
  transfer conditions met and recommends transfer
  then Home Secretary under duty to do so.
• Tighten criteria for MHO and HD
• MHT power to order transfer and leave of absence
  of restricted patients.
• Judge consult Expert Panel Member about care plan
• Clinical Supervisor must consult care plan as
  with non-offender patients.

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• The Mental Health Bill and the Mental Capacity
  Bill
• Is it apparent which legal framework provided by
  mental capacity and mental health laws should
  form the basis of a patient treatment?
• Both bills deal with potentially the same
  treatments
• Clause 28 of the Capacity Bill does not authorise
  medical treatment for mental disorder if at the
  time of the treatment the patients medical
  treatment is regulated under Part iv of the
  Mental Health Act (or its equivalent Part V of
  the Bill)
• Clause 28 helpful but gives little help in
  relation to which piece of legislation might be
  the appropriate legal framework for the
  imposition of treatment in an individual case

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• The Mental Health Bill and the Mental Capacity
  Bill
• Draft Mental Health Bill provides (except in the
  case of a patient posing serious threat to
  others) it should only be used when no other
  lawful route available. Would appear to
  prioritize the Capacity Bill where proposed to
  give treatment to an incapacitated patient. Was
  it intended that the Bill should be used in this
  way with the Mental Health Bill being used only
  where patients competently refuse or in
  situations where there is substantial risk to
  others.
• Are safeguards sufficient in the Capacity Bill in
  the light of HL v United
• Kingdom case?

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• Bournewood Consultation
• The approach to be taken in response to the
  judgement of the European Court of Human Rights
  in the Bournewood case.

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• The Problem
• A substantial gap in public policy
• Patient in particular circumstances of this case
• Deprived of liberty contrary to Article 5(1)
  because his admission was not in accordance with
  a procedure prescribed by law.
• Deprived of liberty contrary to Article 5(4)
  because he was unable to take proceedings by
  which the lawfulness of his detention shall be
  decided speedily by a court
• Where people deprived of their liberty current
  arrangements are unlawful i.e. breach
  Convention.
• May extend beyond hospital to people of unsound
  mind who lack capacity who do not require
  hospital treatment i.e. care homes.
• No clear definition of deprivation of liberty

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• The Options
• Protective Care
• Person needs to be detained for care and
  treatment to be provided in best interests and
  public authority involved in placement.
• New procedure to govern admission, detention,
  review and appeals about detention.
• Envisaged that incapacitated persons who resist
  admission for medical treatment for mental
  disorder still detainable under Mental Health Act
  and propose to amend MHA so could still be used
  even if liable for Protective Care.

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4th International Conference on the Care and
Treatment of Offenders with a Learning Disability

• The Options
• Extending the use of detention under the 1983 Act
  to Bournewood patients.
• Could leave unprotected those who do not meet
  criteria of Act (i.e. need a care home)
• Widen scope of Act considerably and might seem
  disproportionate
• Stigmatising?
• Using a modified form of Guardianship under the
  1983 Act
• Extend to people of unsound mind who lack
  capacity (perhaps in care homes or in hospital
  but not sectionable) and who are deprived of
  their liberty.
• More acceptable than sectioning?
• Strengthen safeguards?
• Make Guardianship more attractive?