Tag: Mental Health Legislation

What is the Libby Zion Law?

Published on by Andrew Marshall1 Comment

Introduction

New York State Department of Health Code, Section 405, also known as the Libby Zion Law, is a regulation that limits the amount of resident physicians’ work in New York State hospitals to roughly 80 hours per week. The law was named after Libby Zion, who died in 1984 at the age of 18 under the care of what her father believed to be overworked resident physicians and intern physicians. In July 2003, the Accreditation Council for Graduate Medical Education adopted similar regulations for all accredited medical training institutions in the United States.

Although regulatory and civil proceedings found conflicting evidence about Zion’s death, today her death is widely believed to have been caused by serotonin syndrome from the drug interaction between the phenelzine she was taking prior to her hospital visit, and the pethidine administered by a resident physician. The lawsuits and regulatory investigations following her death, and their implications for working conditions and supervision of interns and residents, were highly publicised in both lay media and medical journals.

Death of Libby Zion

Libby Zion (November 1965 to 05 March 1984) was a freshman at Bennington College in Bennington, Vermont. She took a prescribed antidepressant, phenelzine, daily. A hospital autopsy revealed traces of cocaine, but other later tests showed no traces. She was the daughter of Sidney Zion, a lawyer who had been a writer for The New York Times. She had two brothers, Adam and Jed. Her obituary in The New York Times, written the day after her death, stated that she had been ill with a “flu-like ailment” for the past several days. The article stated that after being admitted to New York Hospital, she died of cardiac arrest, the cause of which was not known.

Libby Zion had been admitted to the hospital through the emergency room by the resident physician assigned to the ER on the night of 04 March. Raymond Sherman, the Zion family physician, agreed with their plan to hydrate and observe her. Zion was assigned to two residents, Luise Weinstein and Gregg Stone, who both evaluated her. Weinstein, a first-year resident physician (also referred to as intern or PGY-1), and Stone, a PGY-2 resident, were unable to determine the cause of Zion’s illness, though Stone tentatively suggested that her condition might be a simple overreaction to a normal illness. After consulting with Dr. Sherman, the two prescribed pethidine (meperidine) to control the “strange jerking motions” that Zion had been exhibiting when she was admitted.

Weinstein and Stone were both responsible for covering dozens of other patients. After evaluating Zion, they left. Luise Weinstein went to cover other patients, and Stone went to sleep in an on-call room in an adjacent building. Zion, however, did not improve, and continued to become more agitated. After being contacted by nurses by phone, Weinstein ordered medical restraints be placed on Zion. She also prescribed haloperidol by phone to control the agitation.

Zion finally managed to fall asleep, but by 6:30, her temperature was 107 °F (42 °C). Weinstein was once again called, and measures were quickly taken to try to reduce her temperature. However, before this could be done, Zion had a cardiac arrest and could not be resuscitated. Weinstein informed Zion’s parents by telephone.

Several years had gone by before a general agreement was reached regarding the cause of Zion’s death. Zion had been taking a prescribed antidepressant, phenelzine, before she was admitted to the hospital. The combination of that and the pethidine given to her by Stone and Weinstein contributed to the development of serotonin syndrome, a condition which led to increased agitation. This led Zion to pull on her intravenous tubes, causing Weinstein to order physical restraints, which Zion also fought against. By the time she finally fell asleep, her fever had already reached dangerous levels, and she died soon after of cardiac arrest.

Publicity and Trials

Grieving the loss of their child, Zion’s parents became convinced their daughter’s death was due to inadequate staffing at the teaching hospital. Sidney Zion questioned the staff’s competence for two reasons. The first was the administration of pethidine, which can cause fatal interactions with phenelzine, the antidepressant that Zion was taking. Said interaction was known to few clinicians at the time, though because of this case it is now widely known. The second issue was the use of restraints and emergency psychiatric medication. Sidney’s aggrieved words were: “They gave her a drug that was destined to kill her, then ignored her except to tie her down like a dog.” To the distress of the doctors, Sidney referred to his daughter’s death as a “murder”. Sidney also questioned the long hours that residents worked at the time. In a New York Times op-ed piece, he wrote: “You don’t need kindergarten to know that a resident working a 36-hour shift is in no condition to make any kind of judgment call—forget about life-and-death.” The case eventually became a protracted high-profile legal battle, with multiple abrupt reversals; case reports about it appeared in major medical journals.

State Investigation

In May 1986, Manhattan District Attorney Robert Morgenthau agreed to let a grand jury consider murder charges, an unusual decision for a medical malpractice case. Although the jury declined to indict for murder, in 1987 the intern and resident were charged with 38 counts of gross negligence and/or gross incompetence. The grand jury considered that a series of mistakes contributed to Zion’s death, including the improper prescription of drugs and the failure to perform adequate diagnostic tests. Under New York law, the investigative body for these charges was the Hearing Committee of the State Board for Professional Medical Conduct. Between April 1987 and January 1989, the committee conducted 30 hearings at which 33 witnesses testified, including expert witnesses in toxicology, emergency medicine, and chairmen of internal medicine departments at six prominent medical schools, several of whom stated under oath that they had never heard of the interaction between meperidine and phenelzine prior to this case. At the end of these proceedings, the committee unanimously decided that none of the 38 charges against the two residents were supported by evidence. Its findings were accepted by the full board, and by the state’s Health Commissioner, David Axelrod.

Under New York law, however, the final decision in this matter rested with another body, the Board of Regents, which was under no obligation to consider either the Commissioner’s or the Hearing Committee’s recommendations. The Board of Regents, which at the time had only one physician among its 16 members, voted to “censure and reprimand” the resident physicians for acts of gross negligence. This decision did not affect their right to practice. The verdict against the two residents was considered very surprising in medical circles. In no other case had the Board of Regents overruled the Commissioner’s recommendation. The hospital also admitted it had provided inadequate care and paid a $13,000 fine to the state. In 1991, however, the state’s appeals court completely cleared the records of the two doctors of findings that they had provided inadequate care to Zion.

Civil Trial

In parallel with the state investigation, Sidney Zion also filed a separate civil case against the doctors and the hospital. The civil trial came to a close in 1995 when a Manhattan jury found that the two residents and Libby Zion’s primary care doctor contributed to her death by prescribing the wrong drug, and ordered them to pay a total of $375,000 to Zion’s family for her pain and suffering. The jury also found that Raymond Sherman, the primary care physician, had lied on the witness stand in denying he knew that Libby Zion was to be given pethidine. Although the jury found the three doctors negligent, none of them were found guilty of “wanton” negligence, i.e. demonstrating utter disregard for the patient, as opposed to a simple mistake. Payouts for wanton negligence would not have been covered by the doctors’ malpractice insurance.

The emergency room physician, Maurice Leonard, as well as the hospital (as legal persona) were found not responsible for Zion’s death in the civil trial. The jury decided that the hospital was negligent for leaving Weinstein alone in charge of 40 patients that night, but they also concluded that this negligence did not directly contribute to Zion’s death. The trial was shown on Court TV.

Law and Regulations

After the grand jury’s indictment of the two residents, Axelrod decided to address the systemic problems in residency by establishing a blue-ribbon panel of experts headed by Bertrand M. Bell, a primary care physician at the Albert Einstein College of Medicine in the Bronx. Bell was well known for his critical stance regarding the lack of supervision of physicians-in-training. Formally known as the Ad Hoc Advisory Committee on Emergency Services, and more commonly known as the Bell Commission, the committee evaluated the training and supervision of doctors in the state, and developed a series of recommendations that addressed several patient-care issues, including restraint usage, medication systems, and resident work hours.

“In 1989, New York state adopted the Bell Commission’s recommendations that residents could not work more than 80 hours a week or more than 24 consecutive hours” and that attending physicians “needed to be physically present in the hospital at all times. Hospitals instituted so-called night floats, doctors who worked overnight to spell their colleagues, allowing them to adhere to the new rules.” Periodic follow-up audits have prompted the New York State Department of Health to crack down on violating hospitals. Similar limits have since been adopted in numerous other states. In July 2003 the Accreditation Council for Graduate Medical Education (ACGME) adopted similar regulations for all accredited medical training institutions in the United States.

What was the Basaglia Law?

Published on by Andrew Marshall1 Comment

Introduction

Basaglia Law or Law 180 (Italian: Legge Basaglia, Legge 180) is the Italian Mental Health Act of 1978 which signified a large reform of the psychiatric system in Italy, contained directives for the closing down of all psychiatric hospitals and led to their gradual replacement with a whole range of community-based services, including settings for acute in-patient care.

The Basaglia Law is the basis of Italian mental health legislation. The principal proponent of Law 180 and its architect was Italian psychiatrist Franco Basaglia. Therefore, Law 180 is known as the “Basaglia Law” from the name of its promoter. The Parliament of Italy approved the Law 180 on 13 May 1978, and thereby initiated the gradual dismantling of psychiatric hospitals. Implementation of the psychiatric reform law was accomplished in 1998 which marked the very end of the state psychiatric hospital system in Italy. The Law has had worldwide impact as other counties took up widely the Italian model. It was Democratic Psychiatry which was essential in the birth of the reform law of 1978.

The law itself lasted until 23 December 1978. Then, its articles were incorporated, with very little changes, into a broader law (Italian: legge 23 dicembre 1978, n. 833 – Istituzione del Servizio sanitario nazionale) that introduced the National Sanitary System.

General Objectives

The general objectives of Law 180/1978 included creating a decentralised community service of treating and rehabilitating mental patients and preventing mental illness and promoting comprehensive treatment, particularly through services outside a hospital network. Law 180/1978 introduced significant change in the provision of psychiatric care. The emphasis has shifted from defence of society towards better meeting of patients’ wants through community care. New hospitalisations to the “old style” mental hospitals stopped instantly. The law required re-hospitalisations to cease without two years. Nobody was involuntarily discharged into the community.

Brief History

The new Italian law was created after conducting the long-term pilot experiments of deinstitutionalisation in a number of cities (including Gorizia, Arezzo, Trieste, Perugia, Ferrara) between 1961 and 1978. These pilot experiments succeeded in demonstrating that it was possible to replace outdated custodial care in psychiatric hospitals with alternative community care. The demonstration consisted in showing the effectiveness of the new system of care per its ability to make a gradual and ultimate closure of psychiatric hospitals possible, while the new services, which can appropriately be called “alternative” instead of “complementary” to the psychiatric hospitals, were being created. These services include unstaffed apartments, supervised hostels, group homes, day centres, and cooperatives managed by patients.

In the early sixties, a critical factor for development of the new Law was the availability of widespread reform movements across the country led by the trade unions, the working class, university students, and radical and leftist parties. This unique social milieu led to the passing of innovative legislative bills including legislation on rights for workers, abortion, divorce and finally, Law 180.

Main Provisions

Law 180 was based on the following main provisions:

  • Psychiatric assistance was to be shifted away from mental hospitals to Community Mental Health Centres, newly organised in a sectorised or departmental manner to assure integrations and connections with services and community resources.
  • Hospitalisation of new patients to the existing mental hospitals was not to be allowed. The construction of new mental hospitals was also prohibited.
  • Psychiatric wards were to be opened inside General Hospitals with a limited number of beds (no more than 14-16).
  • Compulsory treatments were to be exceptional interventions applied only when adequate community facilities could not be accessed and when at the same time the treatment outside of the hospital was not accepted by the patient.

Effects of Law 180

Dichotomy in Nental Health Treatment

Since the passing of Law 180 in 1978, the Italian Mental Health Act has produced serious debate, disputing its sociopolitical implications, appraising its positive points and criticising its negative ones. However, the international discussion has never questioned what Law 180 has done to improve the destiny of the mental ill who commit crimes. The Italian experience demonstrates how, when there are no convenient solutions, difficult issues may be sidestepped. Italian legislation has created a dichotomy in mental health treatment: to its credit it has given the law-abiding mentally ill the right to refuse treatment and has stopped all further admission of mental patients; at the same time, it allows the law-breaking mentally ill to be confined in special institutions on indeterminate sentences, thereby depriving them of all civil rights. As a consequence, the approval of Law 180 led to the closure of psychiatric hospitals in Mantova, Castiglione delle Stiviere and in Mombello.

Main Consequences

The main long-term consequences of implementation of Law 180 are that:

Patients who were staying in mental hospitals before 1978 were gradually discharged into the community, and;
The availability of psychiatric beds in Italy is lower than in other comparable countries: Italy has 46 psychiatric beds for every 100, 000 population, compared with 58 in the United Kingdom and 77 in the United States of America.

Legacy

American psychiatrist Loren Mosher called the Basaglia Law a revolutionary one and believed that valuable lessons might be learned from the gradualism intrinsic to the models used in developing the law, and from the national health insurance support which implemented it.

In 1993, Italian psychiatrist Bruno Norcio stated that Law 180 of 1978 was and still is an important law: that it was the first to establish that the mentally ill must be cured, not secluded; that psychiatric hospitals must cease to exist as places of seclusion; and that the mentally ill must be granted civil rights and integrated into community life.

In 2001, Stefano Carrara wrote that in Italy, the “enlightened” (as per the definition provided by Nobel laureate Rita Levi-Montalcini) Law 180/1978, more known as “Basaglia Law”, gave rise little more than twenty years ago to model of psychiatric care considered so avant-garde in the world that it was put under observation by some countries, such as France, for its export.

In 2009, P. Fusar-Poli with coauthors stated that thanks to Basaglia law, psychiatry in Italy began to be integrated into the general health services and was no longer sidelined to a peripheral area of medicine.

British clinical psychologist Richard Bentall argues that after Franco Basaglia had persuaded the Italian government to pass Law 180, which made new hospitalisations to large mental hospitals illegal, the results were controversial. In the following decade many Italian doctors complained that the prisons had become depositories for the seriously mentally ill, and that they found themselves “in a state psychiatric-therapeutic impotence when faced with the uncontrollable paranoid schizophrenic, the agitated-meddlesome maniac, or the catatonic”. These complaints were seized upon psychiatrists elsewhere, eager to exhibit the foolishness of abandoning conventional ways. However, an efficient network of smaller community mental health clinics gradually developed to replace the old system.

Giovanna Russo and Francesco Carelli state that back in 1978 the Basaglia reform perhaps could not be fully implemented because society was unprepared for such an avant-garde and innovative concept of mental health. Thirty years later, it has become more obvious that this reform reflects a concept of modern health and social care for mental patients. The Italian example originated samples of effective and innovative service models and paved the way for deinstitutionalisation of mental patients.

According to Corrado Barbui and Michele Tansella, after 30 years of implementation, Law 180 remains unique in mental health law around the world, as Italy is the only country where traditional psychiatric hospitals are outside the law.

What is Mental Health Law?

Published on by Andrew Marshall2 Comments

Introduction

Mental health law includes a wide variety of legal topics and pertain to people with a diagnosis or possible diagnosis of a mental health condition, and to those involved in managing or treating such people.

Refer to Chronology of UK Mental Health Legislation.

Background

Laws that relate to mental health include:

  • Employment laws, including laws that prohibit employment discrimination on the basis of a mental health condition, require reasonable accommodations in the workplace, and provide mental health-related leave;
  • Insurance laws, including laws governing mental health coverage by medical insurance plans, disability insurance, workers compensation, and Social Security Disability Insurance;
  • Housing laws, including housing discrimination and zoning;
  • Education laws, including laws that prohibit discrimination, and laws that require reasonable accommodations, equal access to programmes and services, and free appropriate public education;
  • Laws that provide a right to treatment;
  • Involuntary commitment and guardianship laws;
  • Laws governing treatment professionals, including licensing laws, confidentiality, informed consent, and medical malpractice;
  • Laws governing admission of expert testimony or other psychiatric evidence in court; and
  • Criminal laws, including laws governing fitness for trial or execution, and the insanity defence.

Mental health law has received relatively little attention in scholarly legal forums. The University of Memphis Cecil C. Humphreys School of Law in 2011 announced the formation of a student-edited law journal entitled “Mental Health Law & Policy Journal.”

United States

Employment

Title I of the Americans with Disabilities Act of 1990 (“ADA”) is a civil rights law that protects individuals with depression, post-traumatic stress disorder (“PTSD”), and other mental health conditions in the workplace. It prohibits employers with 15 or more employees from firing, refusing to hire, or taking other adverse actions against a job applicant or employee based on real or perceived mental health conditions. It also strictly limits the circumstances under which an employer can ask for information about medical conditions, including mental health conditions, and imposes confidentiality requirements on any medical information that the employer does have.

The ADA also requires employers to provide reasonable accommodations to job applicants or employees with mental health conditions under some circumstances. A reasonable accommodation is a special arrangement or piece of equipment that a person needs because of a medical condition to apply for a job, do a job, or enjoy the benefits and privileges of employment. Examples include a flexible schedule, changes in the method of supervision, and permission to work from home. To have the right to a reasonable accommodation, the worker’s mental health condition must meet the ADA’s definition of a “current disability.” Conditions that should easily qualify include major depression, PTSD, bipolar disorder, obsessive-compulsive disorder (“OCD”), and schizophrenia. Other conditions may also qualify, depending on what the symptoms would be if the condition were left untreated, during an active episode (if the condition involves active episodes). The symptoms do not need to be severe or permanent for the condition to be a disability under the ADA.

Under the Family and Medical Leave Act of 1993 (FMLA), certain employees are entitled to up to twelve weeks of job-protected and unpaid leave to recover from a serious illness or to care for a family member with a serious illness, among other reasons. To be eligible, the employer must have had 50 or more employees in 20 or more workweeks in the current or preceding calendar year, or else must be a public agency, elementary school, or secondary school, and the employee must have worked for the employer for at least 12 months, must have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and must work at a location where the employer has at least 50 employees within 75 miles.

United Kingdom

Various pieces of legislation (including the Mental Health Act 1983 and the Mental Capacity Act 2005) govern mental health law giving mental health professionals the ability to commit individuals, treat them without consent and place restrictions on them while in public through outpatient commitment, according to the rules of this legislation.

These decisions can be challenged through the mental health tribunals which contain members of the judiciary, though the initial decisions are made by mental health professionals alone.

Around the World

Civil Commitment

Mental health legislation is largely used in the management of psychiatric disorders, such as dementia or psychosis, and developmental disabilities where a person does not possess the ability to act in a legally competent manner and requires treatment and/or another person to act in his or her best interests. The laws generally cover the requirements and procedures for involuntary commitment and compulsory treatment in a psychiatric hospital or other facility.

In some jurisdictions, court orders are required for compulsory treatment; in others, psychiatrists may treat compulsorily by following set procedures, usually with means of appeal or regular scrutiny to ensure compliance with the law.

Sources of Law

Mental health law includes areas of civil and criminal common and statutory law.

Common law is based on long-standing English legal principles, as interpreted through case law. Mental health-related legal concepts include mens rea, insanity defences; legal definitions of “sane,” “insane,” and “incompetent;” informed consent; and automatism, amongst many others.

Statutory law usually takes the form of a mental health statute. An example is the Mental Health Act 1983 in England and Wales. These acts codify aspects of the treatment of mental illness and provides rules and procedures to be followed and penalties for breaches.

Not all countries have mental health acts. The World Health Report (2001) lists the following percentages, by region, for countries with and without mental health legislation.

RegionWith LegislationNo Legislation
Africa59%41%
The Americas73%27%
Eastern Mediterranean59%41%
Europe96%4%
South-East Asia67%33%
Western Pacific72%28%

Note:

  • It is important to note that the WHO has not updated the above figures and a number of the countries included in the Table have since enacted or amended legislation.

What is Capacity (in Scots Law)?

Published on by Andrew Marshall1 Comment

Introduction

Legal capacity is the ability of an individual to transact with others.

It should be distinguished from consent, where the individual with capacity, agrees for another to commit an act involving the consenter, such as consent to sexual relations under the Sexual Offences (Scotland) Act 2009.

Refer to Chronology of UK Mental Health Legislation and Mental Health Law.

Rights Capacity

All persons, human and juristic, have rights capacity, i.e. the ability to hold a right. This derives from the classification of the law of persons found in Roman law.

The word ‘person’ is usually taken to mean humans. However, in Scots law and in many other jurisdictions, the term is also used to describe corporate entities such as companies, or partnerships, Scottish Charitable Incorporate Organisation (SCIO) or other bodies corporate established by law (such as a government agency or local authority).

Organisations and associations must have the rights capacity to own property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland.

If the transferee in a voluntary transfer is an unincorporated association, which there is no definition in Scots law but is generally interpreted as “a group of persons bound together by agreement for a particular purpose.” Without a corporate body, the association has no legal person status in Scots law and as such when unincorporated associations transact to obtain ownership of the land, all the members of the association instead will own the property jointly in trust rather than ownership of the land vesting in solely in the association itself.

Transactional Capacity (Capacity to Contract)

Children

Children under the age of 16 years old do not have capacity to enter into a transaction. Instead the law provides that those with parental rights and responsibilities under the Children (Scotland) Act 1995, Part I can act on a child’s behalf. This means that parents or a legal guardian appointed by the courts can transact on a child’s behalf. However children are still granted a range of exceptions under section 2 of the Age of Legal Capacity (Scotland) Act 1991 including:

  • A person under the age of 16 years shall have legal capacity to enter into a transaction of a kind commonly entered into by persons of his age and circumstances, an on not unreasonable terms.
  • A child over 12 years may make a will or testamentary writing.
  • A child over 12 can consent to the making of an adoption order in relation to them.
  • A child under 16 can consent to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment. This also includes the storage of gametes and the donation of cells for research.
  • A child under 16 shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so. A child over 12 shall be presumed to be of sufficient age and maturity to have such understanding. A child who has capacity to instruct a solicitor also has the right to sue or be sued in the Scottish courts.

Any other transaction a child enters into is void, this means that contract is void ab initio (Latin: from the beginning) from the moment the child enters into the contract. Where a parent or guardian enters into a prejudicial transaction.

Prejudicial Transactions Remedy for Young Adults (16-18 Years Old)

A person under the age of 21 may apply to the Sheriff court or Court of Session to have any previous prejudicial transactions set aside where the transaction was made by the applicant between the ages of 16 to 18. A prejudicial transaction is that:

“(a)an adult, exercising reasonable prudence, would not have entered into in the circumstances of the applicant at the time of entering into the transaction, and (b) has caused or is likely to cause substantial prejudice to the applicant”

An example of an application can be seen in X v British Broadcasting Corporation, where the applicant was successful in obtaining an interim interdict (in other jurisdiction this is termed an interim injunction) based on her “real prospect of success” in her action against the BBC that, among other things, that the agreement she had reached with the BBC to participate in a courtroom-documentary was a prejudicial transaction because she had been 17 at the time she had consented (transacted) while suffering from dyslexia, substance abuse and did not consult a solicitor prior to entering into the agreement to participate.

Adults Generally

All adults over 16 years old have legal capacity under the Age of Legal Capacity (Scotland) Act 1991. However a human person’s capacity to contract may be affected by the following:

Adults Without Capacity

In situations where an adult is infirm, elderly or has other learning/social difficulties, the adult’s capacity to transact may be affected as a consequence and they may be considered incapax, now termed an adult with incapacity under the Adults with Incapacity (Scotland) Act 2000. The 2000 Act, one of the first Acts of the new Scottish Parliament, followed on from the Scottish Law Commissions report critical of the contemporary law in 1990. The test for capacity is found in Section 1(6) of the 2000 Act:

  • “Section 1(6) of the Adults With Incapacity (Scotland) Act 2000:
  • “adult” means a person who has attained the age of 16 years;
  • “incapable” means incapable of—
  • (a) acting; or
  • (b) making decisions; or
  • (c) communicating decisions; or
  • (d) understanding decisions; or
  • (e) retaining the memory of decisions, as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);
  • and “incapacity” shall be construed accordingly.”

If an adult without capacity enters into a contract, the contract is void irrespective of whether the other party knew of the lack of capacity. Under the In its place, a person can act for another individual by means of three legal routes:

  • Power of Attorneys;
  • Intervention Orders; and/or
  • Guardianship Orders.

Companies

Rights Capacity

Organisations and associations must have the rights capacity to own property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland. Companies and partnerships, and other corporate bodies will usually have rights capacity based on the statute enabling their creation. However, it is a matter of academic debate whether partnerships are capable of owning corporeal heritable property (land) in its own right, or whether the partners hold the property jointly in trust on behalf the partnership.

If the transferee in a voluntary transfer is an unincorporated association, which there is no definition in Scots law but is generally interpreted as “a group of persons bound together by agreement for a particular purpose.” Without a corporate body, the association has no legal person status in Scots law and as such when unincorporated associations transact to obtain ownership of the land, all the members of the association instead will own the property jointly in trust rather than ownership of the property vesting in solely in the association itself.

Transactional Capacity

Organisations and associations must have the transactional capacity to enter into contracts and transfer property in their own right in order to act as a transferor (the person transferring ownership) or transferee (the person receiving ownership) in a voluntary transfer of land. It is necessary to check their respective articles of association, constitutions or founding legislation in order to ascertain whether the transferor and/or transferee has rights capacity in order to legally own land in Scotland. Companies and partnerships, and other corporate bodies will usually have rights capacity based on the statute enabling their creation. However, it is a matter of academic debate whether partnerships are capable of owning corporeal heritable property (land) in its own right, or whether the partners hold the property jointly in trust on behalf the partnership. With transfers of land, an authorised officer of the company or other corporate organisation can act as an agent of the body corporate and sign any formal contracts under the Requirements of Writings (Scotland) Act 1995.

What is the Mental Welfare Commission for Scotland?

Published on by Andrew Marshall4 Comments

Introduction

The Mental Welfare Commission for Scotland is a non-departmental public body, responsible for safeguarding the rights and welfare of people in Scotland with a learning disability, mental illness or other mental disorder.

The Commission was original established by the Mental Health (Scotland) Act 1960.

It enquires into cases of alleged ill treatment or deficiency of care or treatment, with investigations that include visits to alleged victims in hospitals and community settings.

The Commission is accountable to the Scottish Government Health and Social Care Directorates for its statutory duties and how its public money is spent. It is required to follow NHS customary accounting rules and to meet NHS financial targets.

Refer to Chronology of UK Mental Health Legislation.

Legal Framework

It has statutory duties to safeguard the interests of people considered to be mentally disordered or incapacitated under the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Adults with Incapacity (Scotland) Act 2000.

The Scottish Executive’s introduction to the Act specifies:

“Part 2 of the 2003 Act sets out provisions relating to the continued existence of the Mental Welfare Commission for Scotland. The Commission will have:

  • new duties to monitor the operation of the Act and to promote best practice;
  • specific powers and duties in relation to carrying out visits to patients, investigations, interviews and medical examinations, and to inspect records; and
  • powers and duties to publish information and guidance, and to give advice or bring matters to the attention of others in the mental health law system.

These powers and duties should enable the Commission to maintain and develop its vital role in protecting the rights of service users, and in promoting the effective operation of mental health law. Schedule 1 of the Act sets out more detail on the membership, organisation and general powers of the Commission and makes provision for regulations to specify some matters in more detail, if necessary.”

The same act also set up the Mental Health Tribunal for Scotland, which hears appeals against detentions and applications for compulsory treatment orders under the 2003 act.

Working with Other Organisations

The Commission also works closely with several other organisations including the Office of the Public Guardian, Scottish Public Services Ombudsman (SPSO), Scottish Social Services Council (SSSC), Healthcare Improvement Scotland and the Care Inspectorate.

Location

The offices of the Commission are based in Edinburgh. In 2005 the Scottish Executive had wanted the Commission to relocate to Falkirk as part of a Scotland-wide approach to the location of government jobs. However, the Commission did not need to comply with the policy on the location of government jobs because it is an independent body.

What was the Mental Health (Public Safety and Appeals) (Scotland) Act 1999?

Published on by Andrew Marshall1 Comment

Introduction

The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 was an Act of the Scottish Parliament which was passed by the Parliament in September 1999 and was designed to close a loophole in the law which led to the release of mentally ill killer, Noel Ruddle, who was released from the state hospital at Carstairs after arguing its treatment programmes were no longer of benefit to him.

An Act of the Scottish Parliament to add public safety to the grounds for not discharging certain patients detained under the Mental Health (Scotland) Act 1984; to provide for appeal against the decision of the sheriff on applications by these patients for their discharge; and to amend the definition of “mental disorder” in that Act.

This was the first act passed by the Scottish Parliament after its establishment in 1999.

Refer to Chronology of UK Mental Health Legislation.

Purpose of Act

The Act had two main purposes:

The first was to add a new criterion to the statutory tests applied by a sheriff or the Scottish Ministers when considering whether to order the discharge of a restricted patient. The sheriff and the Scottish Ministers must now refuse to order a discharge (either conditional or absolute) if satisfied that the patient has a mental disorder, the effect of which is that continuing detention in hospital is necessary to protect the public from serious harm. That is so whether or not the patient is to receive medical treatment for the mental disorder.

The second is to introduce a right of appeal against a decision, notification or recommendation of a sheriff in relation to an appeal brought by a restricted patient in terms of Part VI of the Mental Health (Scotland) Act 1984. The right of appeal against the sheriff’s decision, notification or recommendation is conferred on both the patient and the Scottish Ministers. The appeal is to the Court of Session.

The Act also widens the term ‘mental disorder’, which appears in earlier legislation, to include a personality disorder.

Brief History

In December 1991, Noel Ruddle killed his neighbour with a Kalashnikov rifle. On 20 March 1992, Ruddle pled guilty to several charges at Glasgow High Court and was ordered to be detained and sent to Carstairs State Hospital without limit of time. Ruddle obtained his released in August 1999 after making a legal appeal at the Lanark Sheriff court on the basis that treatment programmes were no longer of benefit to him. With the risk of other patients at Carstairs making appeals on similar grounds, an emergency bill was quickly brought by the Scottish Executive to the Scottish Parliament. An executive bill was introduced by Jim Wallace on 31 August and some amendments made. It passed on 08 September 1999 and then gained Royal Assent on 13 September 1999, becoming the first legislation to be passed by the Parliament.

In 2001, the legislation survived a challenge made to the Judicial Committee of the Privy Council.

The act was repealed on 05 October 2005 by the Mental Health (Care and Treatment) (Scotland) Act 2003.

What is the Mental Health (Care and Treatment) (Scotland) Act 2003?

Published on by Andrew Marshall3 Comments

Introduction

The Mental Health (Care and Treatment) (Scotland) Act 2003, which came into effect on 05 October 2005, is an Act of the Scottish Parliament which enables medical professionals to detain and treat people against their will on grounds of mental disorder, with the Mental Health Tribunal for Scotland and the Mental Welfare Commission for Scotland providing safeguards against mistreatment.

An Act of the Scottish Parliament to restate and amend the law relating to mentally disordered persons; and for connected purposes.

It largely replaces the Mental Health (Scotland) Act 1984.

Refer to Chronology of UK Mental Health Legislation and the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.

Detention Certificates

The act provides for short-term detention certificates and emergency detention certificates.

Short-term certificates are referred to by the act as the ‘preferred gateway’ to detention, and lead, notionally, to up to 28 days’ detention during which treatment may be administered against the will of the detainee, and can also lead to compulsory treatment orders, which have longer term implications for the detainee’s liberty.

Detainees can apply to the Mental Health Tribunal for revocation of short-term certificates.

Emergency certificates lead, notionally, to up to 72 hours’ detention, and can also lead to detentions under short-term certificates.

Emergency certificates do not enable treatment against the will of detainees, except for urgent treatment, and there is no formal process of appeal against them.

Unless a certificate is completed for someone who is already in a mental health hospital, both forms of detention are preceded by detention of up to 72 hours in what are called ‘places of safety’, while transport to hospital is arranged.

Also, short-term detentions may be extended for periods of up to three ‘working days’, to facilitate applications to the Mental Health Tribunal for compulsory treatment orders.

Saturdays, Sundays and Scottish bank holidays are not counted as working days.

Principles

The law is based on a set of principles. These principles should be taken into account by anyone involved in a person’s care and treatment.

Past and Present Wishes

Patients should be given the information and support they need to take part in decisions about their care and treatment. To help service users get their views across, the Act puts in place the right to access independent advocacy services. It also puts in place advance statements as a way to help service users say what care and treatment they would and would not want to have. The Mental Health Commission in Scotland examines cases where a person’s advance statement has been overridden.

The Views of any Carer, Guardian or Welfare Attorney

Carers should be involved in decision-making and should be given information they need to help them in their role. We will be developing guidance this year to help service providers and carers with the problem of patient confidentiality and sharing information.

Options

A patient’s care plan should reflect their needs as an individual. A Mental Health Tribunal reviews care that looks for a compulsory treatment order that lasts longer than 2 years or the service users can request this if they wish to appeal a compulsory treatment order after 3 months.

The Care and Treatment that will be of Most Benefit

This should be reflected in a care plan. In addition the Act puts in place safeguards when consent to treatment has not been given.

On many occasions a patient’s care and treatment becomes much to the opinion of any one person, with a psychiatric disorder (mentalis confusio), latest labels that of chemical imbalance or chemical disorder, perplex and confuse not only the patient, but those whom may be designated decision makers on a patient’s behalf. Family members all too often are not given any information, nor the correct questions to ask.

All too often the system fails to accept a lack of science behind these labels. “where is that chemical test for this chemical imbalance?” Truth is that like the word illness: no such disease exists, nor any chemical as where is this chemical test; well paid professionals or populus of institutions together, with no clear facts and no willingness to discuss any way except that of psychiatry & adding of substance of those many same category as Class substances.

Individual Abilities and Background

Important things about a person such as their age, gender, sexual orientation, religion, racial origin or membership of any ethnic group should be taken into account by people providing care and treatment.

People providing care should also make sure that:

  1. Any restrictions on a person’s freedom are the least necessary.
  2. The person being treated under the act shouldn’t be treated any less favourably than anyone else being treated for a mental illness, or other mental disorder.
  3. Carer’s needs are taken into account.
  4. The person being treated is getting services that are right for them.
  5. When a person is no longer receiving compulsory treatment, he or she should still continue to get care and treatment if it is needed.
  6. If the person being treated is under 18, his or her welfare is of the highest priority.

What is the Adults with Incapacity (Scotland) Act 2000?

Published on by Andrew Marshall2 Comments

Introduction

The Adults with Incapacity (Scotland) Act 2000 (2000 asp 4) is an Act of the Scottish Parliament.

An Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of adults who are incapable by reason of mental disorder or inability to communicate; and for connected purposes.

Refer to Chronology of UK Mental Health Legislation and Mental Capacity Act 2005.

Background

It was passed on 29 March 2000, receiving royal assent on 09 May 2000.

It concerns the welfare of adults (the age of legal capacity in Scotland being 16) who are unable to make decisions for themselves because they have a mental disorder or are not able to communicate. It provides the framework for other people (such as carers) to act on the behalf of people with incapacity.

The Act was one of the first pieces of legislation passed by the Scottish Parliament upon it being reconvened in 1999.

Content

  • Part 2 of the act concerns power of attorney and provides the framework for an individual (whilst they have capacity) to appoint someone to act as their continuing (financial) or welfare attorney.
  • Part 3 of the act concerns the accounts and funds of the adult with incapacity. It enables access to the bank or building society account of the adult with incapacity, in order to pay their costs of living.
  • Part 4 of the act concerns the management of finances of adults with incapacity who are residents of registered establishments including health service or private hospitals, psychiatric hospitals, state hospitals and care home services.
  • Part 5 of the act concerns medical research and treatment of adults with incapacity. It allows, under certain circumstances, medical research to be carried out on adults unable to give consent.
  • Part 6 of the act concerns intervention orders and guardianship orders. An intervention order can be applied for by, or on behalf of, an adult with incapacity and granted by the sheriff court. It may cover welfare or financial matters. An application for a guardianship order may be made by individuals or by a local authority regarding an adult with incapacity who may have long-term needs.
  • Part 7 of the act (“Miscellaneous”) makes it an offence for an individual to wilfully neglect and adult with incapacity.

What was the Lunacy (Vacating of Seats) Act 1886?

Published on by Andrew Marshall1 Comment

Introduction

The Lunacy (Vacating of Seats) Act 1886 (49 Vict.c.16) was an Act of the Parliament of the United Kingdom.

It provided a mechanism for a Member of Parliament who was judged to be of unsound mind to be removed from his seat.

Refer to Chronology of UK Mental Health Legislation.

Background

There had been a number of cases of Members of Parliament who were felt, in the language of the time, to be lunatics. The most celebrated of these was John Bell the MP for Thirsk who in July 1849 was found to be insane by a commission of enquiry. It was then discovered that there was no way of depriving him of his seat and he remained a Member until his death in 1851.

In January 1886, Charles Cameron (later Sir Charles), known in the House of Commons as Dr Cameron, introduced the Lunacy (Vacating of Seats) Bill to deal with the problem. His determination was such that despite being a private members bill it went through all its Parliamentary stages with little opposition, in less than five months and received its Royal Assent on 10 May 1886, hence becoming the Lunacy (Vacating of Seats) Act 1886.

The Act

The Act was very short, barely more than a page long; and containing only three paragraphs.

It states what should happen if any member of the House of Commons should be committed to a lunatic asylum:

All those involved with the committal must send a report to the Speaker of the House of Commons or face a fine.

The Speaker should send the reports to the Commissioners in Lunacy and that two of them should visit the member and report to the Speaker. If the report is that he is of unsound mind then after six months the Speaker should request a further visit. If this second visit shows that the member is still of unsound mind then the reports are placed on the table in the House of Commons and at that point the seat of the member is declared vacant, and a byelection is called for his replacement.

Consequences

In practice there was a reluctance to call on the Act and it was only used once in the rather special circumstances of the First World War. An election was overdue and during the hostilities it was impossible to hold one. In August 1916, in these circumstances, Charles Leach, the MP for Colne Valley, was declared of unsound mind and relieved of his seat.

Repeal

The Lunacy (Vacating of Seats) Act 1886 was repealed and replaced by the Mental Health Act 1959; the Mental Health Act 1959 was itself repealed and replaced by the Mental Health Act 1983.

The section was subsequently repealed by the Mental Health (Discrimination) Act 2013.

What was the Mental Health Act 1959?

Published on by Andrew Marshall5 Comments

Introduction

The Mental Health Act 1959 was an act of the Parliament of the United Kingdom concerning England and Wales which had, as its main objectives, to abolish the distinction between psychiatric hospitals and other types of hospitals and to deinstituitionalise mental health patients and see them treated more by community care.

An Act to Repeal the Lunacy and mental Treatment Acts 1890 to 1930, and the Mental Deficiency Acts 1913 to 1938, and to make fresh provisions with respect to the treatment and care of mentally disordered persons and with respect to their property and affairs, and for purposes connected with matters aforesaid.

Refer to Chronology of UK Mental Health Legislation.

Background

The Act also defined the term mental disorder for the first time: “mental illness as distinct from learning disability. The definition was “mental illness; arrest or incomplete development of mind; psychopathic disorder; and any other disorder or disability of mind”.

At the time, 0.4% of the population of England were housed in asylums, receiving the standard treatments of the time. Their treatment was considered by the 1957 Percy Commission (A central purpose of the Percy Commission was to assess the extent to which people with mental disorders could be treated as voluntary patients.) and the act resulted from its deliberations. The act was designed to make:

  • Treatment voluntary and informal; and
  • Where compulsory give it a proper legal framework and made as a medical decision; and
  • To move treatment, where possible, away from institutional care to that in the community.

The Act repealed the Lunacy and Mental Treatment Acts 1890 to 1930 and the Mental Deficiency Acts 1913 to 1938.

One of the changes introduced by the Act was the abolishment of the category of “moral imbecile”. The category, which had been introduced in 1913, had been defined in so vague terms that it had allowed also mothers of illegitimate children, especially in case of repeated births out of wedlock, to be regarded as “moral imbeciles” and thus to be placed in an institution for defectives or to be placed under guardianship.

Refer to Mental Health Act 1983, the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency (scans of original document can be found here).