Mental Health Legislation Critical Appraisal Essay

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The Carers and Disabled Children Act 2000.

The Carers (Equal Opportunities) Act 2004.

The Carers Recognition & Services Act (1995) compacts in a straight line with the requirements of carers, it consists of the major legal duties. Through the 2000 Act carers rights were extended. They were given right to impede support services and to get payment for these services. The 2004 goes one step ahead. It impends a legal obligation on social services to notify carers about their rights. It also give carers the right to acquire education or training if they wish to work and take part in the assessments

3. Differing professional roles and systems for communication and collaboration

The nature of public health practice requires a delicate balance between protecting the health of a population group on the one hand, and respect for the rights of the individual within that population group on the other. Measures needed for public health protection may result in the infringement of individual autonomy, and in extreme cases, restrictions on individual liberty. This is particularly the case in relation to communicable diseases such as tuberculosis and SARS, where the incidence of contagion can be considerably reduced by isolation of infectious persons. Given the 27 per cent increase in the incidence of tuberculosis in the UK over the last ten years,( Public Health Act 1984) and, in particular, the increase in multidrug resistant tuberculosis, public health powers continue to be necessary for protection of the public health ( Harris, A and Martin, R, 2004).Download full Download Microsoft Word File
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TOPIC: Essay on Mental Health Legislation Critical Appraisal Assignment

At common law, a competent person cannot be locked up just on the basis of dangerousness to himself or others,( Mental Health NHS Trust, 1999) and if lawful detention were to take place it must be authorised by statutory powers to avoid an action in trespass against the detaining authority. The Public Health Act 1984 contains powers of forcible removal to hospital and detention in relation to certain diseases made modifiable under the Public Health (Infectious Diseases) Regulations 1988. These powers were framed in early public health legislation (Coker, R, 2000)

In particular, the powers of removal and detention as they are framed in the Public Health Act can be implemented by a fairness of the peace acting ex-parte. Within common law it is not confirm as if a judge can hear an ex-parte request which engages a denial of freedom, (St. George, 1982) but more significantly Art 6 of the ECHR offers that every individual shall have the right to have a just public hearing as the fortitude of his civil rights. The plaintiff must have genuine and effectual admittance to a court, should be given time to organise a defence and a real chance to present of the case (Dombo Beheer BV v Netherlands 1993). In reality, many persons subject to detention orders have no such opportunity. Nor is there any provision in the Public Health Act for review or appeal in relation to detention for diseases such as tuberculosis. The right to apply for judicial review of an order for detention may not in itself amount to a sufficient opportunity for appeal where the original decision has been made in an ex-parte hearing and there has been no opportunity for review or appeal to an independent panel (Dorset County Council 2001 ). The power to detain under the Act need not be time limited, and this is of particular concern when comparison is drawn with provisions under the Mental Health Act 1983, where an initial application for civil confinement can only be made for up to 14 days. It is unlikely that human rights would support fewer rights to competent persons who refuse detention than to incompetent persons.

The powers of forcible detention might also contravene Art 5 of the ECHR which protects against unnecessary deprivation of liberty. While there is an exception to this provision in cases where deprivation is for the purposes of prevention of the spread of infectious disease, the onus is on the detaining body to justify the detention. It is arguable that the WHO (World Health Organisation)-recommended Directly Observed Therapy approach to tuberculosis is a less restrictive alternative to detention,( Department of Health, 1998) and, as the powers contained in the Public Health Act allow only for compulsory detention in a hospital and not at home or in any other appropriate place, such detention might be difficult to justify as proportionate to the public health objective. Equally, detention might be in breach of Art 8, the right to private and family life. The shortage of isolation units in hospitals may result in patients being detained far from home and family.

4. Relevant Legislation

The laws are present for the protection of rights of service users and carers, and to hold liable the public health authorities for any harm exercised to the patients. For example, Case law since Barrett v Enfield District Council (2001, 2 AC 550)

( Wright, J,2004).

Harm resulting from negligent health advice may well be foreseeable, but satisfying the 'proximity' arm of the test for duty of care (Caparo v Dickman, 1990) will not be easy. It may be possible to argue that where an individual member of the public is invited to seek advice about a specific identifiable medical condition, with the expectation that they will act on the advice given without seeking face-to-face advice from a primary or secondary health care provider, then proximity can be predicated on an assumption of responsibility, (White v Jones, 1995) and reliance by the patient on the advice given (Smith v Bush, 1989).

A consequence of the Human Rights Act 1998 has been an erosion of the immunity of public bodies from liability for failure to meet the responsibilities they have assumed. Indeed Art 2 (see Sch 1 of the Act) imposes a positive duty to promote and safeguard life, a duty which lies with those public bodies with responsibility for infectious disease. The fact that the number of litigants who suffer harm in a disease outbreak might be large need not in itself suggest that a duty of care should be denied. Most of the current successful proceedings against public bodies had not requisite assessment of the policy arguments close floodgates of applicants,( Phelps v Hillingdon Borough Council, 2001) but it appears that the likelihood of a floodgate of actions effecting on public resources will not in itself cancel out a duty of care where other pointers of duty exist (Z v UK, 2001)

The power to charge is given to social services in respect of services to be provided to carers under the Carers and Disabled Children Act 2000 which received Royal Assent on July 20, 2000. That Act goes far beyond the Carers Recognition and Services Act 1995 which gave the right to carers to ask for an assessment but not to receive any services as a result. The 2000 Act gives a power, not a duty it appears, to local authorities to supply services to help a carer care for a disabled person and to make direct payments to carers, rather than to service users, to meet those carers' own assessed needs. These services can be charged for. The Act also introduces the concept of a voucher scheme to allow carers to take breaks from their caring roles although quite how this would operate in practice is not entirely clear.

Voucher schemes are not new; it may be remembered that in relation to their duties to asylum seekers, local authorities were prevented from making cash payments and as a result devised voucher schemes with local retailers in order to allow asylum seekers to purchase their own food and toiletries. The law in relation to asylum seekers has undergone considerable change in the past year but the disinclination to give them cash remains. The Immigration and Asylum Act 1999 attempts to remove the obligation on Social Services Departments to provide for asylum seekers under section 21 of the National Assistance Act 1948 by inserting into section 21 a new sub-section 1(A) which provides that local authorities may not provide accommodation for people where the only reason for their requiring it is that they are destitute or suffering from the physical effects of destitution. The plan is that responsibility for asylum seekers should be transferred from local authorities to the Home Office subject to transitional arrangements.

Finally, it is likely that the attempt to display the in relation to asylum seekers may be just that -- an attempt. There is currently no answer to the question which arises when an individual reaches the end of the asylum process. At that point there will be no duty on either the Home Office or the Social Services Department under the… [END OF PREVIEW] . . . READ MORE

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