-----Original Message-----
From: Murphy, Glynis
Sent: 18 October 2004 12:44
To: [log in to unmask]
Subject: FW: Bournewood repercussions up-date
Colleagues
This seems to be moving fast!
Your views?
Glynis murphy
Professor Of Clinical Psychology of Learning Disability Institute for
Health Research Lancaster University Lancaster LA1 4YT
email: [log in to unmask]
tel: 01524-592771
-----Original Message-----
From: Murphy, Glynis
Sent: 18 October 2004 12:04
To: 'Dr Peter Kinderman'
Subject: RE:
Great. This would be my preference too - ie to bring in appeals under
mental capacity bill - rather than put everything of Re L variety under
Mental health Act.
I agree that automatic appeals about everything would be prohibitive. I
think your wording for a point at which appeals etc could cut in is good
- but what precsiely is the meaning of 'material' ? - ie what would it
cover and what would it exclude?
Glynis Murphy
Professor Of Clinical Psychology of Learning Disability Institute for
Health Research Lancaster University Lacaster LA1 4YT
email: [log in to unmask]
tel: 01524-592771
-----Original Message-----
From: Dr Peter Kinderman [mailto:[log in to unmask]]
Sent: 15 October 2004 12:24
Subject:
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Subject: Mental Capacity Bill, the "re L" ECHR ruling on appeals, and
the interface with the Mental Health Act
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Dear all,
re Mental Capacity Bill, the "re L" ECHR ruling on appeals, and the
interface with the Mental Health Act.
The discussion on this issue has moved on.
I have spoken to Roger Freeman from the Royal College and Camilla
Herbert. Karen's points reflect what I understand to be the Making
Decisions Alliance and the Royal College's position (which Tony Zigmond
will put to the Scrutiny Committee on the Mental Health Bill on their
allocated date).
Essentially, the position is:
1. If a person meets the conditions of the Mental Health Act, then that
Act (and all its safeguards and appeals professes) applies. If these
conditions are met, the Mental Health Act has priority.
2. But not all people whose needs are addressed under the Mental
Capacity Act will meet the criteria of the Mental Health Act. However,
they still need the provisions of the Mental Capacity Act, and should (I
think there is a consensus
here) definitely NOT be brought under the Mental Health Act unless they
meet the conditions - poitn 1.
3. But the re L ECHR appeal has highlighted the problem with appeals
procedures under the Capacity rout.
4. The MDA and the Royal College assume that the Mental Capacity Bill
will receive Royal Assent in pretty much its present form. They,
therefore, are arguing for greater safeguards and specifically appeals
processes under the Mental Capacity Bill. They believe, and I think this
is absolutely right, that these should be identical to the Mental Health
Bill.
5. This offers considerable opportunities for developments in respect to
professional guidance and multi-disciplinary agency at the DoH and DCA
level.
6. Therefore, the BPS position should be to agree - that the Mental
Capacity Bill should be amended to introduce safeguards identical to the
Mental Health Bill - A right to an independent advocate, appointment of
a nominated person who must be consulted on the persons care,
requirement of a care plan to be prepared with regular reviews, right of
patient or nominated person to appeal to a tribunal.
7. In this case, the Mental Capacity Bill would need to be amended.
8. The MCB Draft Code of Practise also clearly needs to be revised.(To
quote
Karen: "There is still too much deference to medical decision-making").
9. But Tribunals and appeals are very expensive. Very important and now
forced by ECHR, but expensive. To have tribunals on ALL MCB issues would
be crippling
- because the MCB is designed to address through a legal aegis even the
most trivial issues.It would also be practically crippling to
practitioners.
10. We, BPS, therefore should, in my opinion give advice to the DoH./DCA
that the appeals/Tribunals safeguards should cut in for 'registered
actions or decisions'. Ie that there should be a threshold. (Of course,
anyone should be able to appeal everything, but AUTOMATIC procedures
cannot, I would suggest, be universal).
11. We could advise this now, but we would also have to think about what
legal wording we could offer as to the cut-in for Tribunal processes. To
start the ball rolling "actions or decisions which have, may have or are
perceived to have a material impact on the social or financial
circumstances or on the physical or mental health of the individual".
Which we could elaborate on in a Code of Practice.
Thoughts?
----------------------------------
Dr Peter Kinderman
Reader in Clinical Psychology
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