Legislation
Recent Submissions
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The Mental Capacity Act 2005 and autoerotic asphyxiation: pleasure versus the risk of harmThere has been a series of judgments in recent years emanating from the Court of Protection in England and Wales involving sexual relations. One such judgment is unique in that it is the first time the court has assessed capacity in the sexual practice of autoerotic asphyxiation in a person with a diagnosis of autism spectrum disorder. This article reviews the judgment and specifically the key section of the Mental Capacity Act 2005, section 27, which applies to capacity decisions in the context of family relationships, including sexual relationships. The practice of autoerotic asphyxia can be a complex and emotive subject and dangerous to individuals undertaking it. The judgment provides guidance and a framework for applying the Act to assess the capacity of someone practising autoerotic asphyxia that can be used in clinical practice for people with any mental disorder.
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The interface between the Mental Health Act and Mental Capacity Act: physical health treatmentThe interface between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) can throw up complex issues. This article reviews a Court of Protection case that considered this interface specifically in the context of physical healthcare for a patient detained under the MHA. The court analysis also included consideration of the European Convention on Human Rights, the Mental Health Units (Use of Force) Act 2018 and the concept of residual liberty. The judgment describes principles to be applied when considering whether non-consensual physical health treatment for detained patients could result in a further deprivation of liberty. Discussion of other Court of Protection cases considers the issue of communication during a capacity assessment, the MHA/MCA interface in obstetric cases and what test to apply in determining whether a patient could be detained under the MHA. Such principles and guidance are helpful in clinical practice for healthcare professionals who deal with the MHA/MCA interface.
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Evaluating patients and healthcare professionals' understanding of voting rights for patients in government electionsAims To understand whether mental health patients vote in government elections To ascertain the barriers that prevent them from doing so To explore ways in which mental health services can support patients to vote To determine whether mental health staff are aware of patients’ right to vote Background Members of Parliament (MPs) can influence decisions regarding the National Health Service (NHS) and mental health legislation. The general election on 12th December 2019 highlighted that many patients were not using their democratic right to vote. It also appeared that many staff members were not aware that patients under the Mental Health Act (MHA) were entitled to vote (except for those under ‘forensic’ sections of the MHA). We therefore conducted a survey to ascertain both patient and staff understanding of their democratic rights and to better understand how we could increase the rate of voting amongst psychiatric patients. Method Two questionnaires were produced, one for patients and the other for staff members. This was tested by the clinical governance team before approval was granted. Data were collected at the Coventry and Warwickshire Partnership NHS Trust in the form of paper forms or electronically through a survey website. Forty-two patients and twenty-five staff members responded. Result No staff members had received formal training with regards to patients’ right to vote. Over half of staff members incorrectly believed that patients under Section 2 or 3 of the MHA and those lacking capacity couldn't vote. More than half of the team members surveyed stated that they had not supported patients in registering or casting a vote. Roughly one third of healthcare professionals felt that it was their responsibility to promote patients’ right to vote, with one third disagreeing and the remaining third unsure. Over 75% of patients did not vote but less than one quarter of all patients surveyed felt support from mental health services would increase the likelihood of them voting. The main barriers to voting were being mentally unwell, hospital admission or a lack of knowledge on the candidates and election process. Conclusion Basic training is required to improve staff knowledge of patients’ voting rights, which should help improve their ability to support patients to vote. Trusts should have a clear protocol in place in the event of future elections, with information on who can vote, how to request a postal vote and the candidates in that area.
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The Court of Protection: expert witness and professional reportsThe Court of Protection has the legal jurisdiction to make decisions about people who lack capacity to make decisions themselves (in England and Wales). When hearing cases, evidence can be provided to the court by expert witnesses and professionals. The Court of Protection Rules 2017 inform the practice and procedure within the Court of Protection. This article reviews the judgment from a Court of Protection case that analyses the proper role of the expert witness in the court. In doing so the article provides guidance to authors of expert witness reports and reports under section 49 of the Mental Capacity Act 2005 submitted as evidence to the court.