Mental Health and Mental Capacity

Posted by Eve Piffaretti on
We advise on mental health law including in particular deprivation of liberty (DOLS), equality, Human Rights and consent/capacity. We provide prompt and accurate advice and which provides your staff with the re-assurance needed to proceed lawfully. In particular, we offer:
  • Specialist, often urgent, advice to help providers navigate the complex balance between patient safety, individual rights, dignity in care and capacity.
  • Urgent advice around treatment options including detention under the Mental Health Act to assist in routine and emergency treatment situations for mental health patients.
  • Critical Incident and reputational risk management support 24/7 in relation to inquests, safety incidents, mental health, capacity and DOLS queries, Court of Protection, police and safeguarding investigations, care and support needs assessments, funding concerns and regulatory enforcement.
  • Advice on a full range of issues relating to mental health and mental capacity law, including the Mental Health Act 1983, the Mental Capacity Act 2005, the statutory Codes of Practice, and interface with Human Rights Act 1998, Data Protection Act 1998 and Care Act 2014.
  • Advice ranging from ad hoc enquiries regarding treatment to representation at Tribunals and inquests.
  • Bespoke training including for Approved Clinicians, Approved Mental Health Professionals (AMHPs) and Best Interest Assessors (BIAs)
  • Horizon-scanning on legislative and policy developments which impact the sector including recently the Care Act 2014, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014(as amended) and the new Mental Health Act 1983 Code of Practice.

Case examples

  • Throughout 2015 we have operated a telephone advice line on behalf of a Consortium of the five Local Authorities and an NHS Provider .We were granted an extension to our contract to 2016 which sees us provide 24 hour/7 days a week mental health, mental capacity and deprivation of liberty safeguards advice based on our specialist knowledge. The Consortium has confirmed that not only do they find the service accurate, accessible, cost effective and efficient, but it has enabled them to both identify and address risk issues including skill gaps, training needs and professional performance issues. For example, we identified a hot spot of concern around section 135 and identification of the Nearest Relative under the Mental Health Act 1983 leading to policy amendment and bespoke training. We believe that this remains an innovative project - providing advice and training to an integrated Consortium
  • Advising an NHS client providing hospital care under s3 to a patient with autism and learning disabilities. Due to a significant escalation in violent behaviour, the client sought transfer to a more suitable unit. The only unit able to take the patient was in Brighton, which the family did not support. A judicial review letter before action seeking injunctive relief was received on Thursday. Interim injunctive relief was granted on Tuesday and the matter proceeded to a full hearing on Friday, when the injunction was lifted and the patient transferred. The case required collation of supporting evidence and detailed witness statements under significant time pressure and under press scrutiny.
  • We represented an NHS client in a police and coronial investigation relating to the death of a detained patient attributable whilst under control and restraint. We subsequently advised and represented that client throughout the six-week coroner’s inquest which included submissions about the right to life made by the deceased’s representative under Article 2 of the European Convention on Human Rights.
  • We provided advice to a mental health provider client in relation to a patient’s detention under the Mental Health Act 1983, subsequent discharge, and standard authorisation pursuant to the Mental Capacity Act DOLS. Later, we advised in relation to Court of Protection proceedings to determine where the patient should reside, in his best interests, following discharge from our client’s hospital. The patient was found by the court to lack capacity to litigate issues in the proceedings and to make decisions about where he should live, the level of care and support he requires and contact. There was a dispute between the patient’s mother and the local authority as to where the patient should reside and receive treatment on discharge from hospital. This issue was particularly sensitive given the background of Children Act proceedings. A further dispute arose in relation to the patient’s fitness for discharge, and in particular, at what stage it would be in his best interests to be so discharged from our client’s hospital.

Training offering

Blake Morgan delivers regular training and knowledge transfer to our clients. Much of this training is delivered in-house to the NHS, local authorities, housing associations and care home managers. Our strength lies in our ability to deliver training and advice in a way that enables key staff at all levels to gain an appreciation of the principles and the obligations of the legislative framework without becoming unnecessarily overwhelmed by its complexities. So far in 2015, we have provided a suite of training on the following subjects:

  • Mental Health law update 
  • Implications of the Care Act 2014 for Mental Health Providers
  • s117 Aftercare Services
  • Child’s play? DOLS or the Mental Health Act ?
  • The new Code of Practice on the Mental Health Act 1983 – what’s in it for you?
  • Community Treatment Orders 
  • Court of Protection law and Practice update 
  • Determining best interests 
  • Inquests - what to expect
  • Children and Adolescent Mental Health Services
  • Nearest Relative update
  • Advance Care Planning
  • Consent to Treatment 
  • Tribunals : procedure , practice and report writing

For further information about our Mental Health/ Mental Capacity training contact Eve Piffaretti.

About the Author

Eve heads our Commercial team in Wales and the Public Law Group. She acts for public sector organisations across the UK advising on public law and regulatory issues.

Eve Piffaretti
Email Eve
029 2068 6143

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