law resubmit

Table of Contents

Patients in health and social care are now legalised more than ever and a wide range of laws regulate the relationship between the nurse and the patients which are there to ensure public trust and confidence in the healthcare profession. The government is keen to maintain confidence and continue to introduce new laws and regulations to ensure maximum protection for patients in the healthcare system (Griffith and Tengnah, 2010).To improve care standards there are policies and procedures from the National Health Service (NHS) to inform best practice which are supported by other bodies such as the National Institute for clinical Excellence (NICE) and the Royal College of Nursing (RCN) which healthcare professionals can use to inform their practice. Simple knowledge of the law is alone not enough to practice safely but understanding the legal framework enables professionals to make ethical acceptable decisions (NMC, 2010).Mental health legislation provides a framework whereby people can be detained and given treatment without their consent (Maden and Spencer-Lane, 2010).There is often a clash between the need to provide adequate mental health care and treatment and the need to protect individuals from unwarranted restraint on person liberty which leads to the important questions of the autonomy and liberty of individuals(Maden and Spencer-Lane, 2010).The Human Rights Act(2010) states that people should be treated equally and with dignity, regardless of their gender ,age or other status and as health care practitioners the aim is to protect the service users whilst empowering them to have their rights protected (Health and Social Care Act ,2014).The criminal law plays its part mainly for some detained patients as it suggests punishment to be imposed where rules and statutes that defines the conduct prohibited by the government threatens and harms public safety and welfare (legal dictionary, 2017).The rule of law is not just about the government alone but entails that all citizens should adhere, respect and comply with the legal norms even when they disagree with them. At times the service user interests may conflict with other individuals and they should accept legal determinations of what their legal rights and duties are. Be it service user or healthcare professionals no one is above the law and most important people in positions of authority should exercise their power within a constraining framework of well-established public norms and not based on their random choice or ideology. Law expects health care practitioners to operate within a framework in everything they do and be accountable through law when thing go wrong.Throughout the time spent in forensic units the law in revolving all around our service users as to their legal rights and based on the ‘principal of meaning’ set out in the European Court of Human Rights. These rights and duties apply to people requiring nursing care and nurses and they are legally enforceable, and healthcare professionals as well as social providers have that duty to meet service user entitlements (Department of Constitutional Affairs, 2006).American philosophers Beauchamp and Childress (1989) developed a principle-based approach to ethical decision-making approach based upon four prima facie moral principles which are considered to encompass most of the moral issues faced in healthcare which are respect for autonomy, non-maleficence, beneficence and justice.Ethnic origin is important in healthcare as some health issues are specific to certain communities (Griffith and Tengnah, 2010).According to Acheson(1998) who explored associations between racism, social class, and health among ethnic minority people in England and Wales stated through his study that there may be cultural pressures to hide mental illnesses as seen when Sally refused to be treated and wanted to appeal her detention. Given that Sally is a woman of mixed heritage she may have faced discrimination on the grounds of race or colour which could have had devastating consequences and could have led to exclusion from participating fully in the community and accessing help for herself and her children (Mental health and human rights, 2012). The Race Relation Act (1976) outlawed discrimination and highlighted the UK on its assurance to stop discrimination and uphold equal opportunities for all. In the UK, human rights are protected by the Human Rights Act (1998). Article 9 which reflects the right to freedom of religion and beliefs is one of the protected rights and gives effect to the human rights set out in the European Convention on Human Rights.Furthermore Acheson(1998) also highlights cultural beliefs about the tendency to use traditional medicines and therapies.Gillon (1994) states autonomy requires respect for the choice made by an individual and when working with patients it is their right to decide to take or refuse healthcare intervention as Sally had the autonomy of action which involved her decision not to take treatment and refusing to consent to treatment. The Mental Capacity Act (2005) supports that the key to decision making capacity is autonomy. It states when the patient has capacity their decisions are binding and a patient with capacity has the right to accept or refuse treatment even when that might be detrimental to their health (Mental Capacity Act, 2005)). An exception to this rule is where the treatment is for a mental disorder and the patient is detained under the Mental Health Act (1983). Sally would have been unable to stop medication administration after she was detained and under the Act which states detained patients may be required to take medication prescribed by your doctor if they pose a danger to themselves and others Mental Health Act (1983). Before deciding that someone is unable to decide, supporting decision-making effectively requires a trusting relationship and working collaboratively between the practitioner and the person (NICE,2010). The Mental Capacity Act (2005) stresses practitioners should not persuade or pressure a person into deciding. The Act requires practitioners to recognise what is involved in a decision, and to realise what areas of decision-making someone may need to be supported with (Mental Capacity Act ,2005). The Mental Capacity Act (2005) provides factors that should be considered when deciding whether care and treatment is in the best interest of the patient lacking capacity. This is a holistic approach that ensures the wishes of the patient and views of carers are considered (Mental Capacity Act, 2005). Furthermore, the Mental Capacity Act (2005) sets out five statutory key ethics that are supported by legislation and apply to every decision and action engaged under the act (Maden and Spencer-Lane, 2010). They include the presumption of capacity, maximising decision-making capacity, unwise decisions, best interest and least restrictive intervention (Maden and Spencer-Lane, 2010).The use of restrictive interventions must be compliant with the Human Rights Act (1998) which gives effect in the UK to certain rights and freedom under the European Convention on Human Rights therefore practitioners should not exercise restrictive intervention unless its medically necessary otherwise practitioners may well breach a patient`s rights under article 3 ,which forbids inhuman or undignified treatment (Puri, 2012).However if the patient is detained under the Mental Health Act(1993) or subject to a Deprivation of Liberty Safeguards(2018) authorisation, practitioners should be careful to ensure the use of restrictive interventions does not impose restrictions to their liberty (Deprivation of Liberty Safeguards, 2018).This is portrayed when Sally refused treatment when offered and appeared to understand the consequences although the health professionals thought it was a wrong idea and this is seen by the constant appeal by David.Health care professionals should not assume that an individual has no capacity without taking all the practical steps to help establishing they lack capacity and if they should make an unwise decision themselves it should accepted they have capacity and can change their minds and withdraw consent at any time, if they have the capacity to do so (Mental Capacity Act ,2005). Unexpected decisions do not prove the patient is incompetent; such decisions may indicate a need for further information or explanation (Mental Capacity Act ,2005). Generally, all people aged 16 and over are presumed, in law, to have the capacity to consent to treatment unless there is evidence to the contrary (NHS,2014). A patient who has a mental disorder or impairment does not necessarily lack the competence to consent to treatment (Buchanan, 2014).Some patients are not covered by the rules of the Act and they have the same right to either consent or refuse treatment such patients include those remanded to hospital for a report on their mental health condition under section 35 and others who may be held temporarily in hospital as a place of safety under section 37 or 45A awaiting admission into a hospital (Puri, 2012) .Sally was currently detained under section 2 of the Mental Health Act and under this Section a person can be detained in hospital if medical professionals decide that they are suffering from a mental disorder which warrants detention in hospital for assessment or assessment followed by treatment for a short time. This detention ought to be for their own health, safety, or for the protection of others (Jones, 2007) .Sally became violent and tries to hit Sam which may be grounds for a section 37 of the Mental Health Act which is imposed by the criminal courts if they think you should be in hospital instead of prison.The person has the right to appeal against their detention in hospital to the Mental Health Tribunal, the application must be placed within a certain timeframe of the section commencing and can appeal to their responsible clinician, hospital mangers whom at their discretion can discharge or at the request of their nearest relative (Jones, 2007).Whilst subject to section 2 the hospital can treat a person for a mental disorder without their consent (Jones, 2007).Although the law is in support for autonomy, the right to consent is limited by both common law and statute (Griffith and Tengnah, 2010).When a person lacks capacity to make decisions they can appoint someone who will be able to have authority to make decisions in place of the patient and manage their affairs(Mental Capacity Act, 2005).A legal guardian is a person who has the legal authority to care for the personal and property interests of another an incapacitated person which includes guardianship for a minor. Sally’s children were taken into care by her parents which might suggest her parents were guardians appointed by her covering decisions about financial affairs, health and care and comes into effect if you lose mental capacity, or if you no longer want to make decisions for yourself (Mental Capacity Act, 2005).At times the patient may not find a suitable person to appoint as an attorney to consult on what would be in the best interest of the patient therefore there may be a duty to instruct an Independent Mental Capacity Advocate (IMCA). The advocate makes representations about the persons wishes beliefs and feelings and advice the patient to the factors relevant to their decision. Sally’s father Neville is instructed by her to instruct a solicitor on her behalf and both her father and the solicitor would be acting as advocates. The right to an independent mental capacity advocate was introduced by the Mental Capacity Act 2005 which recognises the same areas of difficulty with the Care Act (2014) where both require a person with these difficulties to be supported and represented, either by family or friends, or by an advocate to communicate their views, wishes and feelings` (Mental Capacity Act, 2005).When Sally was detained under section 2 of the Mental Health Act (1983) she would have been exposed to Independent mental health advocates (IMHAs) whose aim is to enable qualifying users to participate in decisions about their care and treatment. An independent mental health advocate is a statutory advocate, granted specific roles and responsibilities under the Mental Health Act to assist patients comprehend the legal provisions to which they are subject under the Mental Health Act (1983) and the rights and safeguards to which they are eligible (, 2019). They also assist patients to exercise their rights by supporting participation in decision-making. The Health and Social Care Act (2012) supports people who wish to make a complaint about the NHS. This service used to be centrally commissioned by the Department of Health on a regional basis, but now the new service is appointed by local authorities individually or in collaboration with others (Health and Social Care Act (2012).The service aims to provide support to people are wanting to make a complaint about the NHS and need some support to do this (Health and Social Care Act, 2012). Sally received some treatment that she claimed she did not consent to and was thinking to sue the Mental Health Trust. She would have been supported in making that complaint through this service.When Sally is lastly detained under the Mental Health Act the question of capacity was asked but according to the case study a risk assessment was not carried out which should have been done according to Deprivation of liberty safeguards (DOLS) which states that on some occasions a person lacking decision making capacity could be deprived their liberty in their best interest when admitted into hospital but to ensure human rights are upheld the deprivation of liberty has to be authorized by firstly having a risk assessment completed by care professionals including a mental health nurse(Mental Health Act,1993). This assessment eliminates lacking capacity maybe due to impairment or disturbance of the brain or to check if it would be in their best interest to be deprived of their liberty (Mental Health Act,1993). The Deprivation of liberty safeguards is a framework of safeguards that set out for people who need to be deprived of their liberty for treatment or care in their best interest to which they may lack capacity to consent to (Deprivation of Liberty Safeguards, 2018).Carers and parents have primary care for their children and in turn local authorities with other organisations have the responsibility to safeguard and promote welfare for children in the surrounding area, regardless of their location section 47 of the Act allows them to undertake enquiries if they are concerns raised that a child has suffered or is likely to suffer significant harm(FORTIN, 2009) .Solomon raised a point of concern as her mother clearly did not acknowledge the distress she was causing him and furthermore he dropped out of her arms during a violent incident.Under the Children’s Act (1989) local authorities are responsible in providing services for children who may be in need for safeguarding purposes and welfare.The Bechard inquiry (2004) following the murders of Jessica Chapman and Holly Wells in 2002 highlighted the lack of safeguards to protect vulnerable adults and children and a more robust system was put in place following this enquiry .The Safeguarding Vulnerable Groups Act (2006) was passed to ensure protecting for those at risk which came into force in 2009 to protect vulnerable adults from risk of ham by employees or volunteers. The employee should have had adequate training and through the Bichard enquiry(2004) the employer should have followed the recommendations that were introduced which included those who wanted to work with vulnerable adults to be registered through the Independent Safeguarding Authority(ISA) who are responsible for assessing the suitability of people who want to work with vulnerable groups in partnership with the Criminal Record Bureau(CRB) which is a vetting and barring scheme. It is a requirement to report any suspected incidents of abuse (Mandelstam, 2009).In tort law, duty of care is a legal obligation, which is imposed on an individual requiring a standard of rational care (RCN, 2019).The Care Act (2014) states legally employers must abide by relevant health & safety and employment law which is a moral and ethical duty not to cause, or fail to prevent, physical or psychological injury and clearly defining jobs and undertaking risk assessments are some requirements under an employer’s duty of care.The Deprivation of Liberty Safeguards (DOLS) is part of the Mental Capacity Act (2005) which aims to protect people in hospitals making sure they are looked after in a way that does not incorrectly restrict their freedom (NHS, 2018).The safeguards set out a process that hospitals and care homes should follow if they believe it is in the person’s best interests to deprive a person them of their liberty, in order to provide a particular care plan. All staff, whether they work in a hospital or general practice have a responsibility to safeguard children and adults at risk of abuse or neglect in the NHS. Developing an organisational culture such that all staff are aware of their personal responsibility to report concerns and to ensure that poor practice is identified and tackled.Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person (IRVINE, 2018). When it was revealed that Sam qualifications indicated he was not a nurse this could have serious implications for both the worker and employee. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place during their employment (IRVINE, 2018). Proceedings for carelessness are usually instigated at civil law). It is likely one could face criminal prosecution where gross negligence has occurred (IRVINE, 2018. Nurses owe a duty of care to their patients and failure to provide that duty can lead to criminal prosecution if the breach of duty is grossly negligent (Plunkett, 2018).Nurses are legally and professionally accountable for their actions irrespective of whether they are following instructions from someone else or using own initiative and litigation is growing within the healthcare system with patients increasingly prepared to assert their legal rights (Griffith and Tengnah, 2010).Currently compensation payments in the National Health Service are over £807 million a year (NHS Litigation Authority,2009).This is why the NMC(2004) insists healthcare professionals practice in accordance with an ethical and legal framework ensuring patient and client interest.For a treatment or intervention, the courts allow the profession to set their own standard and the essence of the Bolam test is that as professionals you should act in a way which is accepted by a professional body (Mulheron,2016). Nevertheless the final say comes from the courts with the professional standard of care and although it accepts the different methods of providing treatment within a profession, it has the authority to reject a standard when it considers it not logical (Bolitho v City and Hackney HA, 1998).It is essential, therefore that throughout practice decisions should be made based on evidence and research and keep our practice up to date by making reference to improvements and the ever changing amendments introduced through changes in the law (Pryjmachuk, 2011)