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Unit 1 Understanding Mental Health
About this unit
In this unit learners will gain an understanding of legal frameworks in order to ensure high quality care is provided for people with mental health issues.
Learning Outcome 1
The learner will:
Know what is meant by mental health and mental ill-health.
The learner can:
1.1 Define what is meant by mental health and mental ill-health 1.2 Describe the components of mental well-being 1.3 Describe the risk factors associated with developing mental health
problems 1.4 Identify examples of mental health problems
1.1 Defining mental health and mental ill-health
The World Health Organisation’s (WHO) definition of health is as the following:
“Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.
They (The WHO) provide a further definition of mental health and introduced the concept in 1948 as:
“A state of well-being in which every individual realises his or her own potential, can cope with the stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his own community”.
“Being able to cope with the normal stress of life” is an important component of most definitions of mental wellbeing, with great relevance for the prevention of mental illness.
Positive mental health is identified as mental and emotional stability.
Mental ill-health can be defined as:
“The impairment of normal cognitive (how you think), emotional (how you feel) and/or behavioural functions (how we behave)”.
The impairment of thinking, behaviour and emotions is very likely to impact negatively on the individual’s activities of daily living, their relationships, productivity and their ability to function socially. It is very likely that this will adversely affect their ability to enjoy life in general.
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1.2 The components of mental well-being
There are many parts or components of mental well-being, these include:
□ Thinking (Cognition) – To be able to make appropriate decisions and think clearly. The ability to process information and to understand
□ Perception – The ability to understand events/factors going on around us
□ Emotions/Affect/Mood – To be able to understand and express your
own feelings in an appropriate manner. This may include behavioural reaction/physical responses such as body language and facial expression
□ Functionality in society – Being able to participate in society and the
ability to make and sustain relationships.
1.3 Risk factors associated with developing mental health problems
There are many theories about what causes mental health problems and research continues. It is understood that there are risk factors which are not causes of mental ill health, but, if they are present, may make individuals more at risk of developing mental ill health. This said, the presence of risk factors in an individual’s life does not mean that they will develop mental health problems. In addition, the reason why some individuals develop mental ill-health and others do not despite similar risk factors is not entirely understood.
Risk factors may include:
Biological factors
□ Genetics – certain mental health problems are statistically more likely to occur if there is a family history of this illness
□ Biochemical imbalance – some mental health problems, such as
Bipolar Disorder, are thought to be associated with changes in the chemical balance of the brains of some individuals
□ Hormone imbalance- for example after child birth, during the
menopause, abnormalities in the level of thyroxin.
Physical Factors – may affect the individual’s quality of life, and this may, in turn, adversely impact on their mental well-being. Independence may be difficult to maintain, and the individual may become frustrated and despondent as they become dependent on others.
□ Physical disability
□ Physical illness-may cause the individual to become more dependent. □ Pain or other symptoms may cause mental anguish and distress.
Certain illnesses may cause mental / emotional psychological / behavioural symptoms.
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Social factors
□ Poverty and deprivation
□ Overprotection
□ Domestic violence
□ Abuse
□ Neglect
□ Isolation/loneliness
□ Difficult family background
□ Stressful life events
□ Relationship difficulties
□ Unemployment
□ Bereavement.
Psychological Factors
□ Personality – the kind of person you are and the way you cope with life’s demands will have a direct impact on your mental well-being. An individual may worry excessively, not cope well with pressure or over react to circumstances and situations. A person who is perceived as coping very well may, indeed, be at risk of mental ill-health as others become over reliant on them and they expect too much of themselves. Individuals may have low self- esteem, lack confidence or be very critical of themselves and/or others.
It is often difficult to separate psychological factors, such as personality and coping mechanisms, from social factors as they may be linked. Social factors, such as life experiences and family relationships, affect an individual psychologically. Factors such as abuse, trauma and loss may affect personality, coping mechanisms and self-esteem leading to the development of mental ill-health.
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1.4 Examples of mental health problems
In the following units of this programme a number of mental health problems will be covered, in detail. These units will provide information about the following:
□ Stress
□ Anxiety disorders
□ Phobias
□ Depression
□ Mania
□ Post-Natal Depression
□ Bipolar Disorder
□ Schizophrenia
□ Dementia
□ Eating Disorders.
Learning Outcome 2
The learner will:
Understand the impact of mental health care becoming more community based
The learner can:
2.1 Describe how mental health care has changed with the move towards community care
2.2 Explain the impacts of the changes in mental health care
2.3 Explain the difficulties individuals with mental health problems may face in day to day living
2.1 How mental health care has changed with the move towards community care
A brief history:
Prior to the 1950’s and 1960’s people who were considered mentally ill were housed in Victorian asylums, where effective and humane treatment was limited, rights and choices severely restricted and where, in some cases, people spent their lives, effectively imprisoned.
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Considerable social and political changes occurred following the end of World War II in 1945 and the establishment of the National Health Service (NHS) in 1948.The latter half of the twentieth century saw a change in attitudes towards the treatment and care of those with mental illness. In the 1950’s and 1960’s a rise in the patients’ rights movement, linked to the civil rights movement, created pressure towards care in the community. In addition, the Mental Health Act 1959 abolished the distinction between psychiatric and other hospitals and also encouraged the development of community care.
By the 1970’s District General Hospitals with their own psychiatric units or wards were opening and community care was developing. Victorian asylums were beginning to close and the number of beds decreasing. By 1975 beds had reduced to 80,000 from the mid-fifties level of 150,000.
The Mental Health Act 1983 addressed the assessment, treatment and rights of individuals and also dealt with compulsory detention and treatment in hospital.
The Report ‘Community Care- Agenda for Action’ was the forerunner of The Community Care Act 1990 and the Mental Health (Patients in the Community) Act 1995.
Further information relating to mental health legislation will be covered in Learning Outcome 4 of this unit.
2.2 The impact of the changes in mental health care
The Mental Health (Patients in the Community) Act 1995 represented recognition of the huge social changes taking place. People with mental health problems were now visible, as the movement away from the isolation of the mentally ill in old Victorian asylums resulted in their integration into the community. Care provision in the community was now under the spotlight.
Although very many people were receiving excellent care and support, the tragedies resulting in loss of life were viewed as confirmation that community care provision was inadequate. The perception was that some very seriously mentally ill people were not being supervised and treated in order to prevent these tragedies from happening.
Some health care professionals were also expressing concerns and recommending action. This put huge political pressure on the then government.
All these aspects resulted in the Mental Health (Patients in the Community) Act becoming law in 1995. This Act has, at times, been controversial with some people viewing it as taking away a person’s choices and freedoms. Concerns are also expressed about the adequacy of resources to ensure first class after care in order to meet the requirements of the Act.
However, there is no doubt that this Act represented the biggest political change in mental health care in the history of the NHS.
Activity 1 in your Activities and Self-Assessment Workbook relates to
the section above
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2.3 Difficulties individuals with mental health problems may face in day- to-day living
Individuals with mental health problems may face many difficulties and challenges in their day-to-day lives.
□ Behavioural issues - certain behaviours may mean that the individual will find it more difficult to function in the community and this may limit their life opportunities. For example, a person who experiences severe panic attacks when faced with certain situation may become isolated in their own homes as they fear suffering another panic attack and the reaction of others witnessing them.
□ Inability to cope with everyday tasks - certain mental health problems,
particularly those that affect motivation, mood or thought processes, may have a direct impact on the individual’s ability to carry out the activities of daily living. This may, for example, adversely affect their personal hygiene, employment prospects and management of their finances.
□ Problems with social interaction - may occur for a number of reasons
including low self- esteem and lack of confidence in social situations, disordered thinking affecting the ability to communicate appropriately and inappropriate behaviours affecting both the ability to communicate appropriately and the willingness of others to communicate with the individual.
□ Relationship problems - relationships with family and friends may be
affected as the individual’s mood, motivation, behaviour or insight into their difficulties causes tensions, sadness and anxiety for both the individual and their family.
Activity 2 in your Activities and Self-Assessment Workbook relates to
the section above
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Learning Outcome 3
The learner will:
Understand the social context of mental illness
The learner can:
3.1 Describe social and cultural attitudes to mental illness
3.2 Describe media attitudes to mental illness
3.3 Explain the impact of these attitudes on individuals and their care
3.1 Social and cultural attitudes to mental illness
Since the 1950s awareness and understanding of mental health issues have been gradually increasing. Attitudes have become more positive as those with mental illness have become more visible within the community, treatments, medications and support have improved and mental health issues are discussed more openly.
However, negative attitudes still prevail amongst some people, certain cultures and sections of the community, within some families and in the workplace. Perceptions about mental illness may be influenced by family attitudes and gender. An individual may not access or gain support if the belief of the individual or within a family or culture is that the individual is “weak” or should “pull themselves together”, that they have control or are “attention seeking”. Alternatively, families may ignore signs and symptoms of mental illness or accept their significance due to embarrassment or lack of understanding, and the individual may not seek help or may be actively discouraged from accessing services and support. In the extreme, some cultures still believe that certain signs and symptoms of mental illness are evidence that the person affected is ‘possessed’ by demons, the devil or evil spirits. This can lead to emotional and physical abuse that may occasionally be severe.
Negative attitudes may also exist in employment, where work colleagues or employers react negatively towards an employee who experiences mental illness. Employers may hold negative attitudes towards employing individuals with a history of mental illness, believing that they may be unreliable, have frequent periods of sick leave or be more likely to be unable to cope with workplace demands.
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Prejudice and fear
Prejudice - Its Meaning and Effect
Prejudice
The term prejudice means the forming of unreasoned opinions. These opinions may not have been formed by personal experience, but by listening to the ideas and opinions of others.
It is important to understand how your own beliefs and values effect your opinions and ideas.
The way to do this is to look at your:
□ Cultural background / Race
□ Religion
□ Language.
Think about how these have affected your ideas and opinions about people.
Make an effort to get to know those you consider different to you.
□ Examine any information about other cultures and religions in your workplace
□ Talk to people
□ Ask questions
□ Show an interest
□ Build relationships.
Then
□ Form opinions.
Diversity – “Variety, Differences”
Recognising and respecting the diversity of people is vital. It is unfair to discriminate against or form prejudices because someone is different to our idea of “normal”.
All people must be treated with respect and receive the equal rights to which they are entitled. Always remember prejudice leads to unfair discrimination.
Your work place should have an Equal Opportunities or a Diversity of People Policy. This will prevent discrimination and inequality.
Prejudices often develop because of lack of knowledge and understanding, and we frequently fear what we don’t understand. This is particularly so with mental health issues, especially when individuals display inappropriate, sometimes frightening, behaviours, make strange statements and become detached from reality. Fear can make us say and do irrational things as we try to protect ourselves or hide our fear.
Stereotyping
Stereotyping means to have set ideas about an individual because of the “group” to which you feel they belong. These ideas are quite often negative and are generally based on opinion rather than fact. This can lead to prejudice and discrimination.
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Labelling
Labelling is to describe a person by the use of a ‘label’ or word, which creates a certain image and can give a negative impression of that person.
Perceived association with violence
There are many misconceptions with regard to mental illness and one of these is fear that an individual with mental health issues may become violent. This may be rooted in our fear of the unknown, fear of what we don’t understand, or pre-conceived ideas based on what others have told us, what we have read or viewed (either fiction or fact).
The use of discriminatory language Discrimination and Oppression
To discriminate or oppress is to treat people unfairly because of who they are, or because they belong to a certain group of people. Whatever the reason the effect is always negative.
Discriminatory language can lead to people forming unreasoned opinions about individuals who then may be treated unfairly, denied choices and access to care, treatment and services.
Individuals with mental health issues, have, over the years, been labelled with many discriminatory words, both inside and outside care environments. Some language may be very obviously discriminatory whilst other words and phrases may not be quite as obvious. Some Examples you may have heard may include:
□ Loony
□ Mental/mentalist
□ Odd/strange/weird
□ Mad/crazy
□ Psycho
□ Aggressive
□ Unreasonable
□ Attention seeking
□ Needy
□ Unbalanced
□ Confused
□ Demanding.
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This list is not exhaustive, and you may be able to think of many more. The way a person is spoken to may also discriminate, particularly when assumptions are made about the person’s ability to understand or have insight into their own mental health. Care professionals may make comments based on assumptions rather than evidence such as; “he won’t be able to understand/co-operate/integrate etc.” The way a person is spoken to is also very important. Communication should always be at a level and pace to suit the individual and should always be carried out in a respectful manner. Shouting, swearing or laughing at an individual is never acceptable and should be considered abusive.
3.2 Media attitudes to mental illness
Media coverage of mental health problems can have a considerable impact on the public’s views on mental health, particularly when this is the only information or experience some people may have. Impartial and accurate information can have a positive impact on public perception. However, the media have, on occasion, focussed on high profile cases of violent attacks, by mentally ill people, on members of the public. This type of coverage, understandably, causes fear and anxiety and convinces people that all mental health problems lead to dangerous, even murderous, behaviour.
3.3 The impact of positive and negative attitudes on individuals and their care
Positive attitudes
Positive attitudes can have a profound effect on individuals and their care. Health care professionals will endeavour to treat individuals with respect, uphold rights and choices and ensure individuals have access to the best quality care and treatment. Individuals will have their needs assessed holistically, including emotionally, psychologically and physically, as positive attitudes enable people to have their voices heard and their needs, wishes and preferences met. Self-esteem will improve and individuals with mental health problems will feel more confident and able to express their wishes and access the services they require.
Relationships with others will be maintained as lines of communication and understanding are open and honest leading to positive experiences in the community and the workplace.
Activity 3 in your Activities and Self-Assessment Workbook relates to
the section above
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Negative attitudes
Stereotyping and labelling can have a very negative effect on the individual or group.
In a care setting this can affect:
□ The way in which we relate to people
□ How we communicate with them
□ The quality of care they receive.
Action you can take:
□ Try to keep an open mind
□ Challenge people who stereotype others
□ Think about the way people form opinions about you
□ Ask yourself “would I prefer to be judged by the ‘group’ I belong to, or by the way I behave, treat people, and do my job?”
The message is clear - get to know people as individuals.
Individuals who are labelled may have their rights withheld and the quality of the care they receive may suffer.
□ An individual who is labelled “confused” may not be given a choice about when they wish to get up or go to bed, or what they like to eat
□ An individual labelled “aggressive” may have genuine distress and anxiety ignored.
Ensure that all individuals are treated with respect, that their rights are upheld and that they are not discriminated against.
Negative attitudes can have an adverse impact on all aspects of an individual’s life. Psychologically and emotionally the individual may suffer low self-esteem, be reluctant to socialise, feel isolated and excluded and symptoms of their mental health problem may deteriorate. Negative attitudes within health care services may result in individuals being inadequately supported, necessary services not being offered or provided or they are being unable to fully access services. Family and friends may respond negatively, and relationships may break down. Physical health needs may not be met as communication between the individual, health care professionals and others is inadequate.
Individuals with mental health problems may hide their distress as they experience feelings of guilt, shame and inadequacy or fear negative responses from others. This may result in individuals delaying or avoiding accessing help and support.
.
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Individuals may hide a history of mental illness from their employer or prospective employer, fearing the stigma may affect their employment or promotional prospects. This may lead to increased stress and anxiety as they worry about their ’secret’ being exposed.
Learning Outcome 4
The learner will:
Understand the legal context of mental illness
The learner can:
4.1 Identify relevant legislation in relation to mental illness
4.2 Outline the implication in legislation for the provision of care to an individual with mental health problems
4.3 Outline legal provisions for individuals who are unable to make decisions for themselves due to mental health problems
4.4 Outline the legal issues around confidentiality and data protection in relation to individuals with mental health problems
4.1 Legislation relevant to mental illness
Relevant legislation includes:
□ National Health and Community Care Act 1990
□ Mental Health(Patients in the Community) 1995
□ Mental Health Act 1983
□ Mental Health Act 2007
□ Mental Capacity Act 2005
□ The Office of the Public Guardian
□ The Court of Protection
□ Caldicott Report 1997
□ Data Protection Act 1998
□ The Care Standards Act 2000 & The Health and Social Care Act 2008
– Section 126 Education and Training of Approved Mental Health
Professionals.
Activity 4 in your Activities and Self-Assessment Workbook relates to
the section above
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4.2 Implications in legislation for the provision of care
NHS and Community Care Act 1990 - The Act’s introductory text
“An Act to make further provision about health authorities and other bodies constituted in accordance with the National Health Services Act 1997; to provide for the establishment of National Health Service trusts; to make further provision about the financing of the practices of medical practitioners; to amend Part VII of the Local Government (Scotland) Act 1973 and Part III of the Local Government Finance Act 1982; to amend the National Health Service Act 1977 and the National Health Service (Scotland) Act 1978; to amend Part VIII of the Mental Health (Scotland) Act 1984; to make further provision concerning the provision of accommodation and other welfare services by local authorities and the powers of the Secretary of State as respects the social services functions of such authorities; to make provision for and in connection with the establishment of a Clinical Standards Advisory Group; to repeal the Health Services Act 1976; and for connected purposes.”
The Mental Health (Patients in the Community) Act 1995
This Act represents the political and social changes taking place and the movement away from the isolation of the mentally ill in old Victorian asylums towards their integration in the community.
“An Act to make provision for certain mentally disordered patients in England and Wales to receive after-care under supervision after leaving hospital; to provide for the making of community care orders in the case of certain mentally disordered patients in Scotland; to amend the law relating to mentally disordered patients absent without leave or on leave of absence from hospital; and for connected purposes.”
The Act was intended to improve the supervision of discharged patients and to protect the person and the public. There had been great public pressure to prevent those with mental health problems harming others or themselves. It was also politically expedient to review previous Mental Health Acts and update and reform.
Changes in Mental Health (Care in the Community) Act 1995 is responsible for
Under the ‘Care Programme Approach’ patients should only be discharged from hospital, after the risks of discharge are fully assessed. This applies to patients detained under a section of the Mental Health Act 1983 and Voluntary (informal) patients. A plan should be formulated detailing the after- care that will be provided and a key worker appointed. Regular review should take place.
The Purpose of the Mental Health Act 1983
The Mental Health Act 1983 makes provision for the compulsory detention and treatment in hospital of those with mental disorder. The Mental Health Act 1983 does not just cover the compulsory detention and treatment of individuals. It also covers the assessment, treatment and rights of people with a mental health condition.
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Parts of the Act
i. Application of the Act (the scope)
ii. Compulsory admission to hospital and Guardianship
iii. Patients concerned in criminal proceedings or under sentence
iv. Consent to treatment
v. Treatment of community patients not recalled to hospital
vi. Mental health Review Tribunals
vii. Removal and Return of Patients within UK etc.
viii. Management of property and affairs of patients
ix. Miscellaneous functions of local authorities and the Secretary of State
x. Offences
xi. Miscellaneous and Supplementary.
The majority of patients being treated in hospital for mental health conditions are informal (admitted voluntarily) patients. This means their consent is required for all treatments and they have the right to leave anytime they wish, and, as any other hospital patient, they take responsibility for their own discharge if this is against medical advice.
Whether the individual is detained under a civil section of the Mental Health Act 1983, they have a right to be assessed and treated appropriately whilst maintaining dignity and respect. Even in situations where treatment is given without consent the person still has legal rights, including the right of appeal.
The Civil Sections of the 1983 Mental Health Act
The most common civil sections of the Act under which patients are compulsorily admitted to hospital are:
Section 2 – admission to hospital for up to 28 days for assessment Section 3 – admission to hospital for up to six months for treatment Section 4 – admission on an emergency basis for up to 72 hours.
Mental Health Act 1983 – Civil Sections
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Section 4
Emergency
Admission to
Hospital for up
to 72 hours
Not renewable
Treatment
cannot be
given without
consent
unless in an
emergency
under
common law
No right of
appeal
Section 2
Admission for
assessment
for up to 28
days
Not renewable
Treatment can
be given
without
consent if it is
necessary.
Certain
treatments
such as ECT*
cannot be
given without
consent.
Appeal
permissible to
Hospital
Managers and
Tribunal
Section 3
Admission for
treatment for
up to 6
months and
renewable
Treatment can
be given
without
consent for
first 3 months
and thereafter
only with the
agreement of
an
independent
doctor who
has examined
you
Appeal
permissible to
Hospital
Managers and
Tribunal
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*Electroconvulsive Therapy
Criminal Sections
Section 37
Hospital order from Court for up to 6 months and renewable
Treatment can be given without consent for first 3 months and thereafter only with the agreement of an independent doctor who has examined you
Appeal permissible to Hospital managers at any time but only after 6 months to Tribunal
No right of
appeal
Treatment
cannot be
given without
consent
unless in an
emergency
under
common law
Remand in
Hospital for
Court Report
purpose for 28
days and
renewable
Section 35
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Other Sections
Informal
You have the
right to leave
Hospital at
any time
You are
strongly
advised to
discuss your
decision with
nursing and
medical staff
who will
respect that
decision
unless it is
thought that
there is a
danger to your
mental health
You have the
right to expect
care and
treatment as
needed and in
discussion
with yourself
Section
5(4)
Nurses
holding power
for up to 6
hours
Not renewable
Treatment
cannot be
given without
consent
unless in an
emergency
under
common law
No right of
appeal
Section
5(2)
Doctors
holding power
for up to 72
hours
Not renewable
Treatment
cannot be
given without
consent
unless in an
emergency
under
common law
No right of
appeal
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Individuals involved in decisions with regard to compulsory admission or detection
Individuals may be detained under a number of different sections of the Act on the basis of the presence of mental disorder as described in the Act and which requires hospital treatment. Admission to hospital under the civil sections of the Act (Part II) may only be made where there is a formal application by either an Approved Social Worker (ASW) or the nearest relative, as described in the Act. An application is founded on two medical recommendations made by two qualified medical practitioners, one of whom must be approved for the purpose under the Act. Different procedures apply in the case of emergencies.
The Mental Health Act 2007 in relation to the Human Rights Act
1998 The Human Rights Act 1998
In 2000 the European Human Rights law of 1998 was incorporated into UK domestic law. It gives all citizens of the UK protection and promotion of their basic human rights.
The Human Rights Act 1998 (October 2002) builds on the European Convention of Human Rights that means any breaches can be dealt with within the UK. Care organisations have a responsibility to uphold human rights and some of the basic 16 rights are especially relevant to vulnerable adults and practice is informed by legislation and guidelines.
The Human Rights Act was partly responsible for the introduction of the Mental Health Act 2007. The courts had three times found that the Mental Health Act 1983 was not compatible in specific respects with the European Convention on Human Rights.
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The Health and Social Care Act 2008
The aim of the Health and Social Care Act 2008 is to protect and promote the health, safety and welfare of people using Health and Social Care Services. The legislation contains five key policy areas.
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The Health and Social Care Act 2008
In summary this Act:
□ Establishes the Care Quality Commission, a regulatory body for Health
and Social Care Services including amendments of functions of the Mental Health Act 1983
□ Reforms professional regulation – including the education and training
of approved mental health professionals
□ Up-dates Public Health legislation
□ Allow cash grants to pregnant women
□ Strengthens the protection of vulnerable people
The Health and Social Care Act 2008 is therefore relevant to all aspects of Health and Social Care, directly affecting mental health legislation and professional regulation. Depending on the care setting most or even all of the five key policy areas may affect you, your clients, or your colleagues.
4.3 The legal provisions for individuals who are unable to make decisions for themselves due to mental health problems
The Aims of the Mental Capacity Act (MCA) 2005
The Act intends to protect people who lose the capacity to make decisions.
The five statutory core principles of the Mental Capacity Act 2005
The Mental Capacity Act is intended to be enabling and supportive of people who lack capacity. It is not intended to be restrictive or controlling of their lives. It aims to protect people who lack the capacity to make particular decisions, but also to protect and increase their ability to make decisions, or to participate in decision making, as far as they are able to do so.
Within the Mental Capacity Act 2005, section 1 sets out five statutory core principles. These core principles are the values that underpin the legal requirements within the Act.
Activities 5, 6 & 7 in your Activities and Self-Assessment Workbook
relates to the section above
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Definition of the Mental Capacity Act
‘Mental Capacity’ within the context of the Mental Capacity Act 2005 refers to ‘an individual’s ability to make a decision’. There are various differing factors which can affect an individual’s ability to make a decision, including conditions such as a stroke, dementia, learning disability and physical illness, head injury, drug or alcohol intoxication, mental health problems, trauma, loss and bereavement. In addition, conditions such as an intimidating or unfamiliar environment can also affect capacity.
Defining Lack of Mental Capacity
If Mental Capacity refers to an individual’s ability to make a decision then we can assume that there may be times when individuals may lack the capacity to make a decision, and there are several factors that can influence this. Within the context of the Mental Capacity Act 2005, a person is deemed to lack capacity if because of an impairment of or a disturbance in the functioning of the mind or brain’ (Which may be temporary or permanent) he/she cannot do one or more of the following four things:
1. Understand the information relevant to the decision 2. Retain that information long enough to make the decision 3. Weigh up the information available to make the decision 4. Communicate their decision (whether by talking, using sign language
or other means).
There may be an assumption that those individuals who are elderly or are living with Mental Health problems lack capacity. However, mental capacity, or the ability to make a decision cannot be established by solely referring to a person’s age, appearance, or any condition or aspect of a person’s behaviour. The danger is that this might lead others to make unjustified assumptions about capacity.
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Who does the Mental Capacity Act affect?
The Mental Capacity Act 2005 applies specifically to people aged 16 years or over and is specifically designed to cover situations where an individual is unable to make a decision because the way their mind or brain works is affected, for instance, by illness or disability, or the effects of drugs or alcohol.
A lack of mental capacity could be due to:
□ A stroke or brain injury
□ A mental health conditions
□ Dementia
□ A learning disability
□ Confusion, drowsiness or unconsciousness because of an illness or
its treatment
□ Substance misuse.
The Mental Capacity Act 2005 also affects individuals who may be faced with making decisions on behalf of those who lack capacity. This may include any sector that provides care for people who have a potential to lack the capacity to make decisions will be affected by the Act, including:
□ Private homes that offer personal care
□ Private homes that offer nursing care
□ Dual registered homes
□ Voluntary sector organisations
□ Hospitals.
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People who are working within these organisations within a professional capacity, for example:
□ Care managers
□ Doctors
□ Nurses
□ Psychiatrists
□ Psychologists
□ Mental health nurses
□ Allied professionals such as Occupational Therapists and Physiotherapists
□ Social workers.
People who are paid to provide care and support, for example:
□ Support workers
□ Care assistants
□ Hospital and prison staff
□ Court appointed deputies
□ Attorneys.
The Act applies whether we are dealing with everyday matters such as when to get up, when to go to bed, what to wear, or life changing events such as where to live or whether or not to receive treatment or have an operation.
Other factors that can affect Capacity
There are many other aspects that can affect Mental Capacity. A person's capacity may vary over time or according to the type of decision to be made. External elements, for example, an intimidating or unfamiliar environment, can also affect capacity, as can trauma, loss and health problems.
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The Office of the Public Guardian
The Office of the Public Guardian (OPG) protects people who lack the mental capacity to make decisions for themselves. It does this through regulating and supervising court-appointed deputies, and by registering the Lasting Powers of Attorney. In some cases, where there are suspicions that an attorney or deputy might not be acting in the best interests of the person they represent, the Office of the Public Guardian will work with other organisations to ensure that any allegations of abuse are fully investigated and acted on. The Office of the Public Guardian also provides information on mental capacity to the public and can provide contacts with other organisations working in the field of mental capacity.
The Court of Protection
The Court of Protection is a specialist court that has the power to deal with all issues relating to people who lack capacity to make specific decisions, for example, concerning financial or serious healthcare matters. It will look at cases where the person's carer and healthcare worker or social worker disagree on what are the person's best interests. The Court of Protection also has specially trained judges to deal with decisions relating to personal welfare, as well as property and financial affairs.
The Court of Protection has powers to:
□ Decide whether a person has the capacity to make a particular
decision for themselves
□ Make declarations, decisions or orders on financial or welfare
matters affecting people who lack capacity to make such decisions
□ Appoint deputies to make decisions for people lacking capacity to
make those decisions
□ Decide whether a lasting power of attorney or an existing enduring
power of attorney is valid
□ Remove deputies or attorneys who fail to carry out their duties or act
inappropriately.
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Lasting Powers of Attorney (LPA)
A power of attorney is a legal document that allows a person to give another person the authority to make a decision on their behalf. This ensures that whilst an individual still has the capacity to make decisions, he or she can appoint another person who will make decisions on their behalf if a time arises by where the individual loses their capacity to make decisions. Decisions could relate to financial, welfare or healthcare matters. This will give vulnerable people greater choice and control over their future and enable people to choose someone they trust to look after their affairs if necessary.
A Lasting Powers of Attorney must be registered with the Office of the Public Guardian (OPG) before it can be used. An unregistered Lasting Powers of Attorney will not give the attorney any legal powers to make a decision for the donor. The donor can register the Lasting Powers of Attorney while they are still capable, or the attorney can apply to register the Lasting Powers of Attorney at any time.
In order for a Lasting Powers of Attorney to be valid, the donor must also follow the correct procedures for creating and registering a Lasting Powers of Attorney, otherwise the Lasting Powers of Attorney will be invalid.
Procedures for creating and registering a Lasting Powers of Attorney are set out in the Code of Practice.
Independent Mental Capacity Advocate
The Independent Mental Capacity Advocate service was launched in
England on 1st April 2007 and in Wales on 1st October 2007. Under the Mental Capacity Act 2005, the Independent Mental Capacity Advocate (IMCA) service was set up in order to help vulnerable people who cannot make some or all-important decisions about their lives. The Independent Mental Capacity Advocate service means that certain people who lack capacity, for example, some people with certain forms of dementia such as Alzheimer's disease, or people with brain injury or a very severe learning disability will be helped to make difficult decisions such as medical treatment choices or where they live. The Independent Mental Capacity Advocate is aimed at people who do not have relatives or friends to speak for them.
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The Independent Mental Capacity Advisor will be instructed by the Local Authority and will:
□ Be independent of the person who is lacking capacity
□ Provide support for the person who lacks capacity and represent their
views to any person who is making a decision
□ Represent the person without capacity in discussions to work out
whether the proposed decision is in the person’s best interests
□ Provide information to help work out what is in the person’s best
interests
□ Raise questions or challenge decisions which appear not to be in
the best interests of the person
□ Identify alternative courses of action
□ Obtain further medical opinion if required
□ Examine relevant records in order to obtain and evaluate relevant
information
□ Obtain the views of professionals and paid workers who are providing
care and treatment for the person who lacks capacity.
An Independent Mental Capacity Advocate is not there to make decisions for the person who is lacking capacity. They are there to support and represent that person and to ensure that any decision making is appropriate and is carried out in accordance with the Mental Capacity Act 2005.
Activities 8 & 9 in your Activities and Self-Assessment Workbook relates
to the section above
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4.4 The legal issues surrounding confidentiality and data protection in relation to individuals with mental health problems
The Caldicott Report 1997 and Data Protection Act 1998 The
Caldicott Report
The Caldicott Report (December 1997) was a review commissioned by the Chief Medical officer to make recommendations to improve the way the National Health Service handles and protects patient information.
The Caldicott Committee was set up to review the confidentiality and flows of data throughout the NHS for purposes other than direct care, medical research or where there is a statutory requirement for information. Its recommendations are now being put into practice throughout the NHS and in the Health Protection Agency.
The Caldicott report identified 6 principles, similar in many respects to the principles outlined in the Data Protection Act.
1. Justify the purpose(s).
Every proposed use or transfer of patient identifiable information within or from an organisation should be clearly defined and scrutinised. With continuing uses regularly reviewed, by an appropriate guardian.
2. Don’t use patient identifiable information unless it is absolutely
necessary.
Patient identifiable information items should not be included unless it is essential for the specified purpose(s) of that flow. The need for patients to be identified should be considered at each stage of satisfying the purpose(s).
3. Use the minimum necessary patient identifiable information.
Where use of patient identifiable information is considered to be essential, the inclusion of each individual item of information should be considered and justified so that the minimum amount of identifiable information is transferred or accessible as is necessary for a given function to be carried out.
4. Access to patient identifiable information should be on a strict need to know basis.
Only those individuals who need access to patient identifiable information should have access to it, and they should only have access to the information items that they need to see. This may mean introducing access controls or splitting information flows where one information flow is used for several purposes.
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5. Everyone with access to patient identifiable information should be aware of their responsibilities.
Action should be taken to ensure that those handling patient identifiable information - both clinical and non-clinical staff - are made fully aware of their responsibilities and obligations to respect patient confidentiality.
6. Understand and comply with the law.
Every use of patient identifiable information must be lawful. Someone in each organisation handling patient information should be responsible for ensuring that the organisation complies with legal requirements.
The Data Protection Act
The purpose of the Data Protection Act is to protect human rights. Registration with the Data Protection Registrar limits what can be done with information. This will affect the way the computerised information is stored and commits the organisation to keep the information safe and secure.
The Act seeks to strike a balance between the rights of individuals and the, sometimes, competing interests of those with legitimate reasons for using personal information.
These regulations offer good advice for the handling of hand written records. For example, records held in a file, should be stored in a locked cabinet, with access restricted to those who have a right to access these records.
Records that are in use should be stored securely, in accordance with legislation and organisational policy. Each member of the care team should know what records they are entitled to access, and those to which they are not. You should know where records are stored and be familiar with retrieval and filing procedures.
Access to records act
It is important that you are aware, not just in your role as a care worker, but as an individual, that people have a right in law to access their own records.
.
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The client access to records
The content of the client’s medical notes is not usually read by the client, although the client has a legal right to request access to these under the Access to Health Records Act. There are a few exceptions:
□ Health service records completed before 1991- although clients are
usually allowed to see these
□ Client’s records which include confidential information about another person/s - although they still have the right to see records about themselves
□ When a doctor considers that medical records would cause so much distress that the client’s health would be damaged.
Many care organisations encourage the sharing of nursing records such as care plans and charts with clients. This helps clients to understand the care and treatment they receive and enables them to feel more involved in their care.
Although clients rarely ask to see their records, it is important to remember that they have a right to. You should ensure that you report any requests by clients to access their records, to your manager who can facilitate this.
Certain staff have access to certain records. This will be dependent on legislation and organisation policy.
Other agencies
There will be times when staff from other agencies need to examine the records of clients. These records will give information which will assist these agencies to provide services required by clients. This may be following a needs assessment or care plan review.
If you have concerns that information is being accessed by people who have no right to it, or that confidentiality is being breached in other ways, you must report this immediately. Storage of Confidential information
Records held in a file, should be stored in a locked cabinet, with access restricted to those who have a right to access these records. Records that are in use should be stored securely, in accordance with legislation and organisational policy. Each member of the care team should know what records they are entitled to access, and those to which they are not. You should know where records are stored and be familiar with retrieval and filing procedures.
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Problems
You may encounter problems with the storage, retrieval and maintenance of records. These problems may include mis-filing, lack of space, errors and omissions when recording and loss or damage to records.
Now go to your Activities/Self-Assessment Workbook and answer the self-assessment questions for Unit 1. Following review with your tutor, you should then complete the activities for Unit 1.
Activity 10 in your Activities and Self-Assessment Workbook relates to
the section above
