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This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based 'fusion' law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government's 2018 Independent Review of the Mental Health Act 1983. [ABSTRACT FROM AUTHOR]

Most of the late 20th century wave of reforms in mental capacity or competence law were predicated upon the so-called 'functional' model of mental capacity, asking not merely whether a person had a mental disorder or disability but rather whether they were capable of making a specific decision (or decisions) at a specific point of time. This model is now under sustained challenge, most notably from the Committee on the Rights of Persons with Disabilities, and this challenge has focused a spotlight on the difficulty of applying the legally 'neat' concepts of the functional model of mental capacity across the full complex spectrum of human life. This paper presents a review, in two parts, of the first ten years of the Court of Protection, a specialist mental capacity court in England and Wales which applies a functional model of mental capacity. The first part outlines the history of the functional model in England and Wales, and the development of this specialist mental capacity court (Court of Protection), created by the Mental Capacity Act 2005. The second part presents an empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence. The authors found that in 70% of cases the subject of proceedings (or P) had either a learning disability or dementia, and the court ruled on P's capacity for a wide range of issues, most commonly residence, care and contact. The judge considered the support principle, or whether practical steps were taken to maximise P's capacity, in 23 of 40 (57.5%) cases. The subject P was determined to have capacity in 13 cases, to lack capacity in 22 cases, and in 5 cases P was found to have and lack capacity for different issues before the court. The functional inability to use or weigh relevant information was most commonly cited by the judge, being cited in all but 2 cases in which P was determined to lack capacity and inabilities were cited. The propensity for the system to learn was shown by an increase in the proportion of cases which considered the 'causative nexus' from 2013, when a Court of Appeal case emphasised that impairment must not merely be present alongside functional inability but must be the causal basis of inability. The authors conclude that whilst the Court of Protection is still on a learning curve, its work provides a powerful illustration of what taking capacity seriously looks like, both inside and outside the courtroom. The implications for judges, lawyers and psychiatrists that can be drawn from the study are generalisable to other comparable socio-legal frameworks in which mental capacity or competence plays a role and is likely to do so for the foreseeable future. [ABSTRACT FROM AUTHOR]

Abstract: Evidence Based Policy has been articulated and practiced in Europe, particularly under the ‘New Labour’ policies of the former Labour government in the United Kingdom. In the United States, the impact of research on policy has been inconsistent due to differing relationships between researchers and policy makers. This paper gives an overview of evidence based policy and presents critiques based on its reliance on positivist methods and technical approach to policy making. Using these critiques as a framework, the paper discusses the case of Housing First, a policy adopted by the Bush Administration in order to address the problem of chronic homelessness. The case is an example of research driven policy making but also resulted in a progressive policy being promoted by a conservative administration. In discussing the case, the paper elaborates on the relationship between evidence and policy, arguing that evidence based policy fails to integrate evidence and values into policy deliberations. The paper concludes with alternative models of policy decision making and their implications for research. [Copyright &y& Elsevier]

The UK has one of the highest rates of self harm (SH) in Europe, and almost four times more people die by suicide than in road traffic collisions. Emergency ambulance paramedics are often the first health professionals involved in the care of people who have self-harmed, yet little is known about the care provided or issues raised in these encounters. The aim of this study is to explore paramedics' perceptions and experiences of caring for people who SH, to inform education and policy. Semi structured interviews were conducted with paramedics, and themes generated by constant comparison coding. This paper reports two emerging themes: Firstly, professional, legal, clinical and ethical tensions, linked to limited decision support, referral options and education. The second theme of relationships with police, revealed practices and surreptitious strategies related to care and detention, aimed at overcoming complexities of care. In the absence of tailored education, guidance or support for self-harm care, 'ways and means' have evolved which may negatively influence care and challenge ethical and legal frameworks. There is an urgent need to include evidence from this study in revised guidance and educational materials for paramedics working with people who self-harm in the prehospital emergency setting. [ABSTRACT FROM AUTHOR]

Cyberbullying is a worldwide problem affecting mental health, education, safety and general well-being for individuals across the globe. Despite the widespread availability of the Internet, research into prevalence rates of cyberbullying in Qatar is lacking and legislating for the crime has been slow to develop. Recently there have been some positive initiatives in the country such as a Cybercrime Prevention Law, the development of a National ICT Strategy, and a website detailing safe practice guidelines for Internet usage. However, the implementation and usage of these initiatives are still limited and there is a lack of awareness of cyberbullying in Qatar. As a result, the risk factors and consequences among school-aged children are unknown. The current paper presents an evaluation of the legislative and public policy solutions to cyberbullying available in Qatar, and outlines the critical challenges that could potentially face educators in shaping best practice guidelines for the future. [ABSTRACT FROM AUTHOR]

The term 'capacity' has come to assume a variety of meanings in the law of England and Wales, and the failure of statutes and judges to specify its meaning and application across the civil and criminal law leads to problems. Nowhere is this perhaps clearer than in the law relating to sexual capacity. This paper begins with an overview of two streams of law on sexual capacity in the civil and criminal law. The first stream traces through the criminal law provisions of the Sexual Offences Act 2003, the work by the Law Commission which led to its enactment, and the ways in which its provisions have been applied by the courts in practice; and the second examines the Mental Capacity Act 2005 ('MCA 2005') and its parallel application by the civil courts. We illustrate how the case of A Local Authority v JB [2021] UKSC 52 brought these problems to the fore, as the Supreme Court was at last confronted with the differences between the definition and use of the term 'capacity' by the civil and criminal law on sexual capacity. We suggest that the decision made by the Supreme Court in JB has left open terrain which ought to be used to reframe, or perhaps even replace, the concept of 'capacity' within the criminal law on sexual capacity.1. [ABSTRACT FROM AUTHOR]

Since its inception in the 1980s, the growing body of Therapeutic Jurisprudence scholarship has continued to challenge and optimise not only our understanding of what the law "is", but also how we can leverage its agency to improve the ways in which we apply, observe and evaluate the law. By focusing on the emotional, human and psychological consequences of legal processes, Therapeutic Jurisprudence empowers practitioners to design emotionally intelligent and remedial strategies to either minimise harmful consequences or enhance restorative legal goals and outcomes. As the influence of Therapeutic Jurisprudence scholarship and its practical applications has continued to gain traction in rapid and organic growth, collaborations brokered with a wide range of social science disciplines have called for a more robust focus on validated measurement scales. To that end, there is a clear and growing need for a suite of Therapeutic Jurisprudence specific tools for empirical evaluation. As there has been no formal attempt within the Therapeutic Jurisprudence research community to begin this process, this paper breaks new ground by providing a validated tool for empirical measurement of the therapeutic quality of judicial officers' behavioural and interactional styles in problem-solving court jurisdictions. Using original empirical data recently collected at a problem-solving court in England, the paper takes the reader through the journey of statistically validating the levied scaling systems by performing Principal Component Analysis and Cronbach's Alpha. In doing so, the paper offers an original contribution to Therapeutic Jurisprudence methodology. [ABSTRACT FROM AUTHOR]

Safeguarding, balancing the concept of risk with the need for public protection and its implication for the lives of individuals, is an important facet of contemporary mental health care. Integral to safeguarding is the protection of human rights; the right to live free from torture, inhuman, or degrading treatment, and having the right to liberty, security, respect, and privacy. Professionals are required to recognise all of these rights when delivering care to vulnerable people. In the United Kingdom (UK) there has been growing public concern regarding abusive practices in institutions, with a number of unacceptable methods of restraint being identified as a feature of care, particularly in mental health care. In keeping with the service user movement, and following a review of the literature, this paper discusses the evidence regarding restraint from the perspectives of service users and professionals within mental health services and considers the implications for future practice and research. In reviewing the literature, findings revealed that restraint can be a form of abuse, it's inappropriate use often being a consequence of fear, neglect, and lack of using de-escalation techniques. Using restraint in this way can have negative implications for the well-being of service users and mental health professionals alike. [ABSTRACT FROM AUTHOR]

The UK Law Commission's Discussion Paper, Criminal Liability: Insanity and Automatism , recommends introducing the concept of capacity to the insanity defence. The concept of capacity has an established role in those parts of the law that concern the validity of the decisions that people make, for instance in composing a will or entering into a contract. Making mental capacity a criterion for criminal responsibility in a mentally disordered defendant, however, is potentially problematic. First, the term capacity already has several different meanings in the literature on the jurisprudence of mental abnormality. Second, using the concept of capacity in the way that the Law Commission proposes poses difficulties that relate to the provision of testimony by expert witnesses. [ABSTRACT FROM AUTHOR]

The proper boundaries of criminal liability with respect to those with questionable mental capacity are currently under review. In its deliberations in the areas of unfitness to plead, automatism and the special verdict of not guilty by reason of insanity the Law Commission for England and Wales have been cognizant of particular difficulties in fairly attributing criminal responsibility to those whose mental capacities may or may not have impinged on their decisions, either at the time of the offence or at trial. And they have referenced the potential breaches of the European Convention on Human Rights (ECHR) posed by the state of our current laws. However, in their efforts to remedy these potential deficiencies is the Law Commission heading in a direction that is fundamentally incompatible with the direction embodied by the United Nations Convention on the Rights of People with Disabilities (CRPD)? Whether one must cede sensibly to the other, or whether some compromise might emerge, perhaps through an extension of supportive services or through the development of disability-neutral criminal law, forms the subject of this paper. [ABSTRACT FROM AUTHOR]

Abstract: Given the increasing number of interactions between police and people with mental illnesses (PMI), there has been widespread interest in the development of education for police about how best to interact with PMI. This paper reflects the review of current practice in a variety of jurisdictions across Canada as well as in the United States (U.S.), the United Kingdom (U.K.) and Australia; it proposes a comprehensive model of learning based on the literature that addresses not only the content in the narrow sense but also the importance of broader contextual knowledge and understanding in developing effective education and training. Embedded in the principles articulated in the Mental Health Strategy for Canada, the TEMPO (Training and Education about Mental illness for Police Organizations) model is a multilevel learning strategy for Canadian police personnel. Learning objectives and key principles are articulated in order to ensure the model is applicable to a wide range of police agencies and individual jurisdictional needs. In addition to providing a firm basis of factual knowledge for police personnel, the resultant model embraces a human rights/anti-stigma philosophy, provides for a range of education appropriate to diverse police audiences, emphasizes a systems approach to police/mental health liaison activities and addresses issues related to the delivery and implementation of police education and training. [Copyright &y& Elsevier]

Abstract: In 2009, two seminal documents were published by the United Kingdom (UK) government concerning healthcare services for offenders. The Bradley review into diversion for people with mental health problems and learning disabilities emphasised a need to improve offender health, not least because of the high economic costs to society as a whole resulting from unresolved mental illness, physical ill-health and substance abuse problems commonly experienced by offenders. The Bradley review made wide-reaching recommendations for change, requiring strong partnership between health and justice agencies at both central government and local levels. A framework for the delivery of Bradley''s recommendations has been set out in Improving health, supporting justice, the Department of Health''s offender health strategy which sets out the direction of travel for the next 10years. This paper discusses the reality of working toward improving health services for this marginalised group in the context of the influence of the current straitened financial climate on the allocation of resources to publically funded healthcare in the UK; it examines the historically based, and widely held, belief in the principle of “less eligibility” within our society, whereby there is much public and media resistance to allocating resources to improving care for offenders when other, more “deserving”, groups are perceived to be in continuing need. [Copyright &y& Elsevier]

In this paper we aim to offer a balanced argument to motivate (re)thinking about the mental illness clause within the insanity defence. This is the clause that states that mental illness should have a relevant causal or explanatory role for the presence of the incapacities or limited capacities that are covered by this defence. We offer three main considerations showing the important legal and epistemological roles that the mental illness clause plays in the evaluation of legal responsibility. Although we acknowledge that these advantages could be preserved without having this clause explicitly stated in the law, we resist proposals that deny the importance of mental illness in exculpation. We argue, thus, that any attempt at removing the mental illness clause from legal formulations of the insanity defence should offer alternative ways of keeping in place these advantages. [ABSTRACT FROM AUTHOR]

Psychiatric inpatients are particularly vulnerable to the transmission and effects of COVID-19. As such, healthcare providers should implement measures to prevent its spread within mental health units, including adequate testing, cohorting, and in some cases, the isolation of patients. Respiratory isolation imposes a significant limitation on an individual's right to liberty, and should be accompanied by appropriate legal safeguards. This paper explores the implications of respiratory isolation in English law, considering the applicability of the common law doctrine of necessity, the Mental Capacity Act 2005, the Mental Health Act 1983, and public health legislation. We then interrogate the practicality of currently available approaches by applying them to a series of hypothetical cases. There are currently no 'neat' or practicable solutions to the problem of lawfully isolating patients on mental health units, and we discuss the myriad issues with both mental health and public health law approaches to the problem. We conclude by making some suggestions to policymakers. [ABSTRACT FROM AUTHOR]

Independent mental health advocacy (IMHA) has been proposed as a way of maintaining peoples' rights in involuntary settings, but little is known about the challenges and opportunities associated with the provision of independent mental health advocacy to those on compulsory treatment orders in the community. In Victoria, Australia, an IMHA service is available to people who are at risk of or subject to compulsory treatment, including those who are subject to Community Treatment Orders. The IMHA service is based on the independent advocacy model developed in the United Kingdom. This paper details the benefits and challenges of providing independent non-legal advocacy to those in the community, drawing on a 15-month independent co-produced evaluation of the IMHA service. With limited publicly available sector level data, the evaluation employed qualitative approaches. Issues raised include the need to better target limited resources in the most effective way and the problem of ensuring timely and adequate access. While advocacy was well received by consumers, tensions specific to the community setting were influenced by the attitudes of clinicians to need, risk and recovery as opposed to a coherent understanding of consumer preference and choice. [ABSTRACT FROM AUTHOR]