LLM coursework Medical Laws

Question: Discuss about the LLM coursework Medical Laws. Answer: Introduction Liberty rights are guaranteed to everyone in the society regardless of their social, economic, political, ethnic or racial diversity. The constitution is universal and applies to everyone in the society. According to the constitution, each and every person has a right to liberty. Despite the clarity of the law, there have been instances in which it has been challenging to address the liberty needs of the people with mental illnesses in the society[1]. As a matter of fact, mental conditions can make an individual to be at a greater risk both to themselves and to others as well. To protect the mentally-ill from jeopardizing their own lives and that of others around them, the mentally-ill patients should be admitted into a healthcare facility. Although this should not be forcefully done as outlined in the Mental Health Act and Article 5 of the European Convention on Human Rights and Fundamental Freedoms, certain situations might warrant an involuntary detention of the mentally-ill patie nts. This paper presents an insightful analysis of the effectiveness of the safeguards that protect the mentally-ill persons from unlawful use of the Mental Health Act 1983 to subject them to forceful detention. The paper focuses on the effectiveness of the Article 5 of the European Convention on Human Rights and Fundamental Freedoms in effectively safeguarding the rights of the mentally-ill individuals in the society. The Mental Health Act 1983 According to the Mental Health Act 1983, no person shall be forcefully-detained. If there is need to do so, everything should be done in compliance with well-outlined procedures. Part II: Compulsory Admission to Hospital and Guardianship of the act stipulates that any act of admission for assessment, or treatment should be done in accordance with the law. At no one time, unless specified in the law, should an individual be deprived of their liberty rights. As clearly stipulated in the Mental Health Act 1983, no person with mental disorder should be arbitrarily arrested. Meaning, every mentally-ill patient should be voluntarily detained. For instance, when a persons mental condition exposes him to personal risks, becomes danger to other people, or has a deteriorating health condition that requires immediate medical intervention[2]. In such circumstances, one might be involuntarily detained and admitted into a health facility to be cared for[3]. Once the patient has been admitted into a health facility, their rights should still be respected. Should any of these be done, an individual should be provided with the necessary healthcare. However, the service providers should not just do so at will without seeking for the consent of the patient. Such decisions should not be entirely made by the healthcare provider without seeking for the contributions of the patient. At the same time, the period of detention and medication should be done in a ccordance with the law. Despite the fact that the law is very clear on what should be done, there have been cases of abuse of the liberty rights of the mentally-ill patients in the society. Several people have been complaining if arbitrary arrest. Although the law specifies circumstances under which a mentally-ill person should be involuntarily arrested, many people have just been involuntarily detained without following the right procedure specified in the law. Such arrests infringe on individuals privacy or liberty rights. Even if the arrests might be done with a good motive, they should be carried by following the right procedure. People always lodge such complaints because of the arbitrary manner in which the arrests are made[4]. Even after that, the officers do not care to inform the arrested persons on the reasons why they have been detained. The violation of the patients liberty rights does not end at detention. Instead, it continues even after admission into a healthcare facility when the patients get wrongfully-detained for a longer period of time than accepted by the law. It is true that the law allows such people to be detained for some time if at all it is in the interest of their own health. However, some times, the authorities do not follow the law. Even after detaining such patients, they opt to do so for a longer time than specified in the law. This implies that they are depriving the patients of their liberty rights. Sub section 4 of the act is very clear on the kind of procedure to be followed while carrying out each of these activities. However, a deliberate abuse of these legislations has led to a persistent complain by a large number of people over the years. Safeguarding the Rights of the Mentally-Ill Persons against Arbitrary use of the Mental Health Act The Mental Health Act 1983 is very clear on the rights of mentally-ill patients. A part from providing protecting the liberty rights of the mentally-ill persons, it provides a clear guideline on how the patients can be treated in case of any detention. It specifies how the rights dealing with medication, information, and period of detention should be handled. Despite doing a commendable job in protecting the rights of the mentally-ill persons, it is no doubt that the application of the principles of the act has not been effectively done. As already hinted, the mentally-ill persons have been subjected to different forms of abuses. Whereas some of them have been arbitrarily detained, others have been forcefully-treated and detained for longer periods. This is unlawful and should not be condoned. To address such challenges, measures have been put in place to safeguard the rights of the mentally-ill persons. The first way through which this is done is by upholding the principles of the Mental Health Act 1983. The act is a good legislation that can greatly benefit the mentally-ill persons if at all it is applied to the letter. It provides good guidelines on exactly how the authorities should diligently carry out their activities without unnecessarily infringing on the rights of the patients. For example, if all the voluntary and involuntary detentions are done in accordance with the law, the mentally-ill patients cannot be victimized whatsoever[5]. Instead, they can be treated with all the dignity that they deserve. For example, if adequate information on detention is provided, the patient will get to know and appreciate why they have to be subjected to such procedures. Otherwise, if they are humiliated and harassed without given an opportunity to protest, the rights would have been seriously violated[6]. Apart from the Mental Health Act, the safeguarding of the mentally-ill persons can be achieved by applying Article 5 of the European Convention on Human Rights and Fundamental Freedoms. According to this legislation, every individual is entitled to liberty rights. The legislation can be applied in safeguarding the liberty rights of the mentally-ill persons. Just like any other person, the mentally-ill persons have rights that should not be infringed whatsoever. It can help in ensuring that the mentally-ill persons are protected from unlawful detention[7]. The application of this legislation can bar the authorities from using force to detain a mentally-ill person because it outlaws it[8]. The legislation only gives room for involuntary detention in case of certain acceptable circumstances such as protection of the right of the person and other people who might be at risk as a result of exposure to mental illness or mentally-ill person[9]. So, it means that the legislation is appropria te for protecting the liberty rights of the mentally-ill persons from any unnecessary abuses as was evidenced in the case of Wai Kwong Ng[10]. The Effectiveness of the Safeguards which Exist to Protect Against the Arbitrary The safeguarding of the liberty rights of the mentally-ill persons has been prospering well because of the application of such laws. The existence of legislations such as the Mental Health Act 1983 and Article 5 of the European Convention on Human Rights and Fundamental Freedoms have played a significant role in the safeguarding of the mentally-ill persons from abuse of liberty rights. These are good legislations which have helped in many ways[11]. The reduction in the rate of abuses of the liberty rights of the mentally-ill persons has therefore been attributed to the application of these legislations. It is therefore right to claim that these legislations have been effective in the safeguarding of the mentally-ill persons from abuses because of the following reasons: First, the legislations have provided a clear framework on the detention mechanisms to adopt whenever dealing with any person. According to the Article 5 of the European Convention on Human Rights and Fundamental Freedoms, no one should be forcefully detained. Each and every person is entitled to freedom. At no one time should ones freedom be infringed unlawfully. Every person should be allowed to enjoy their freedom as long as it does not interfere with others. This legislation has been effective because it bars the authorities from taking laws into their own hands. It therefore bars them from unlawfully arresting and detaining anyone without seeking for their consent. However, in order to be much effective, the legislation has provided for exceptional conditions under which a mentally-ill person can be involuntarily detained. It specifies that such involuntary detentions can be done in case of law-breaking, court order, or protecting the life of the mentally-ill person from imminen t danger or rather preventing them from endangering other peoples lives[12]. This is a good thing to do because it helps in ensuring that no unlawful detention is made. Such safeguards are appropriate for the mentally-ill persons. It prevents the authorities from taking advantage of the situation to violate the law by arbitrarily detaining a mentally-ill person o matter how good the intention might be[13]. Besides, the Article 5 of the European Convention on Human Rights and Fundamental Freedoms is effective because it guarantees victims of unlawful arrest to be compensated. As clearly outlined in Article 5(5) of the legislation, every person who is unlawfully-detention has a right to be compensated. This legislation is a good one because it helps in discouraging the officers from unlawfully detaining anyone. The fact that any such misconducts warrant compensation makes it difficult for the law enforcement officers to arbitrarily detain anybody. Should they be convicted of such offences, they can be held accountable for their actions. Meaning, it can cost them the job or be compelled to compensate the victim whenever necessary[14]. By coming up with such a clause, the article can be relied upon to effectively fight the cases of abuse of peoples liberty rights. Once any such violations are liable for punishment, no one can deliberately attempt to do it. This justifies why most detention s are done in accordance with the law. The enforcement of such clauses makes the safeguards to be more effective in protecting the rights of the mentally-ill persons that might be subjected to lots of violations. The safeguards therefore appear to be in the interest of the mentally-ill persons. In addition, the safeguards are effective because they advocate for a strict observation of the due process of the law. The legislation safeguards the victims from abuse of rights because it outlines that once an individual is detained, one must be promptly informed about the reasons why such measures have been taken against them. The law requires that every person should be adequately informed on the reasons why a detention should be carried out. This can help in safeguarding the individual even if they are not in a stable mental condition to make their own decisions[15]. It is a commendable thing to do because it can enable the detained person to be aware of what is happening. Even if detention is done for the sole purpose of providing medical treatment to the mentally-ill person, it should not be secretly done. Instead, all the information should be disclosed to the patient lest his rights be violated. This will help in safeguarding the right of the patient because it can enable t hem to be knowledgeable. The healthcare providers always have an ethical obligation to deliver patient-centered care. Meaning, all services should be provided to the patient by giving them accurate information and respecting them[16]. Moreover, the safeguard has been considered effective in the protection of the rights of the mentally-ill persons because it advocates for a strict compliance with the principle of due process of the law. This simply means that any detained person should be brought before a court of law. The following of the due process of the law implies that a detained mentally-ill patient should be taken before a court of law. Once this is done, the individual gets a chance to know the charges and be allowed to respond to them[17]. Such responses can be done in person or through a representation of a lawyer. Indeed, the advocating for a due process is a commendable initiative. It can help in preventing any cases of abuse on the rights of the mentally-ill person. The subjecting of mentally-ill persons to the due process of the law makes it possible for them to get the justice they deserve even if they are convicted or acquitted. Although due process does not apply to all the patients, it should be granted to the mentally-ill persons who are presented before a court of law. When all these are effectively done, the rights of the mentally-ill persons are properly safeguarded[18]. It helps in preventing any abuse of the liberty rights of the mentally-ill persons as was seen during the conflict between Dittenhafer and Colvin[19]. Finally, the safeguard measures effective because they grant the detained persons with an opportunity to participate in the healthcare delivery process. When a person is detained, they deserve to be safeguarded by getting an interrupted access to quality healthcare series. However, to guarantee quality, the healthcare services should be provided by highly trained and experienced healthcare providers[20]. The providers can contribute towards the safeguarding of the patients rights by seeking for their consent whenever serving them. After informing the patient on the nature and role of medical services to be delivered, the provider should not fail to allow the patient to give their opinion regarding the medication provided. The law of consent can be exempted only when the patient is not in a good state of mind. Should this be the case, a formal consent can be sought from a third party mainly driven from the patients family members. All in all, the seeking of consent is a good thing to do while attending to a mentally-ill patient[21]. It can help in ensuring that high quality and safe healthcare services are delivered to the patient. Otherwise, the patients rights might have been violated. The existing safeguards are quite effective in the protection of mentally-ill persons from arbitrary application of the Mental Health Act 1983. The act is a good one because it serves the interests of the mentally-ill persons. Unlike the rest of the society, the mentally-ill persons are so vulnerable. Their mental state exposes them to lots of challenges including illnesses. At times, the mentally-ill persons cannot make rational decisions regarding their safety and health. This might make it easier for them to be detained and admitted to healthcare facilities so as to be given healthcare services[22]. The effectiveness of the safeguards has helped in protecting this class of people from unlawful detentions. The safeguards have clearly outlined the procedures to follow while admitting the mentally-ill persons into healthcare facilities to attend to them. Indeed, the safeguards have made it easier for the authorities to respect the liberty rights of the mentally-ill persons. If it wer e not for the effectiveness of these safeguards, the rights of people like Searing would have been seriously violated[23]. Over the years, the existing laws have been amended and made to be much better for every person in the society. Whenever any tough situation arises, appropriate changes are made. For example, in 2009, the Deprivation of Liberty Safeguards (DoLS) came into effect following the 2004 landmark ruling by the European Court of Human Rights[24]. The enactment of such legislations has made it much possible for the authorities to effectively safeguard the mentally-ill persons from any unnecessary abuses[25]. If it were not for such safeguards, the rights of the mentally-ill persons would have been trampled and abused without any care. Conclusion Indeed, the enactment of the Mental Health Act 1983 is the greatest development in the history of the nation. It has been of enormous contribution towards the safeguarding of the rights f the mentally-ill persons in the society. For a very long time, many people have been taking advantage of the vulnerability of the mentally-ill persons to throw them into detentions without necessarily seeking for their consent or following the due process of the law. The many cases of abuse of the Mental Health Act 1983 have been eradicated by the safeguard measures put in place. So far, the liberty rights of the mentally-ill persons have been effectively safeguarded by the existing measures. They have made it much easier for the concerned authorities to protect the mentally-ill persons from unnecessary violations[26]. The laws clearly outline circumstances under which a person suffering from a mental illness can be detained. So, whenever conducting their duties, the authorities should not arrest an yone unless warranted by the relevant exceptions. Such legislations have made it easier to protect the liberty rights of the mentally-ill persons. The existence of such legislations has created room for the human rights activists to advocate for the rights of the mentally-ill persons and among other things, safeguard them from unlawful detentions and violation of privacy, security and liberty rights. However, the fact that some form of abuses still occur implies that the safeguards have not been the best. Meaning, a lot of measures still need to be taken to improve the existing safeguards. If further improvements are made on the existing safeguards, the welfare of the mentally-ill persons will be adequately safeguarded. References Ashmore, Russell. "Visa refusal following compulsory hospital admission under the Mental Health Act 1983 (England and Wales): fact or fiction?." Journal of psychiatric and mental health nursing 22, no. 6 (2015): 390-396. Baehr, Peter. Human rights: universality in practice (Springer, 2016) 99. Barkes v. First Correctional Medical, Inc., 766 F.3d 307 (3d Cir. 2014). Buckland, R.,. The decision by Approved Mental Health Professionals to use compulsory powers under the Mental Health Act 1983: a Foucauldian discourse analysis. British Journal of Social Work, p.bcu114, 2014. Canvin, K., Rugksa, J., Sinclair, J. and Burns, T., 2014. Patient, psychiatrist and family carer experiences of community treatment orders: qualitative study. Social psychiatry and psychiatric epidemiology, 49(12), pp.1873-1882. Decker, Michele R., Anna-Louise Crago, Sandra KH Chu, Susan G. Sherman, Meena S. Seshu, Kholi Buthelezi, Mandeep Dhaliwal, and Chris Beyrer. "Human rights violations against sex workers: burden and effect on HIV." The Lancet 385, no. 9963 (2015): 186-199. DITTENHAFER v. Colvin, No. 3: 15-cv-00214-LB (N.D. Cal. Sept. 30, 2015). Donnelly, Jack. Universal human rights in theory and practice (Cornell University Press, 2013) 39. Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014). Gunn, Michael. "Reform of the Mental Health Act 1983: The Relevance of Capacity to Make Decisions." International Journal of Mental Health and Capacity Law 3 (2014): 40-44. Harris, David John, Michael O'Boyle, Ed Bates, and Carla Buckley. Harris, O'Boyle Warbrick: Law of the European convention on human rights. Oxford University Press, USA, 2014. Jewell, Amelia, Kimberlie Dean, Tom Fahy, and Alexis E. Cullen. "Predictors of Mental Health Review Tribunal (MHRT) outcome in a forensic inpatient population: a prospective cohort study." BMC Psychiatry 17, no. 1 (2017): 25. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 569 U.S. 12, 185 L. Ed. 2d 671 (2013). Lvsletten, Maria, Elisabeth Haug, Arild Granerud, Kjell Nordby, and Toril Smaaberg. "Prevalence and management of patients with outpatient commitment in the mental health services." Nordic journal of psychiatry 70, no. 6 (2016): 401-406. Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S., 191 L. Ed. 2d 953 (2015). Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015). Rainey, Bernadette, Elizabeth Wicks, and Clare Ovey. Jacobs, White and Ovey: the European convention on human rights (Oxford University Press (UK), 2014) 121. Renteln, Alison Dundes. International human rights: universalism versus relativism (Quid Pro Books, 2013) 68. Rogers, Anne, and David Pilgrim. A sociology of mental health and illness (McGraw-Hill Education (UK), 2014) 20. Sharpe, Robert, Birgit Vllm, Amina Akhtar, Ramneesh Puri, and Andrew Bickle. "Transfers from prison to hospital under Sections 47 and 48 of the Mental Health Act between 2011 and 2014." The Journal of Forensic Psychiatry Psychology 27, no. 4 (2016): 459-475. Searing v. VIVAS, No. 84A05-1506-DR-530 (Ind. Ct. App. Mar. 8, 2016). Singh, S.P., Burns, T., Tyrer, P., Islam, Z., Parsons, H. and Crawford, M.J. Ethnicity as a predictor of detention under the Mental Health Act. Psychological medicine, 44(05), pp.997-1004, 2014. Smith, Rhona, and Rhona KM Smith. Textbook on international human rights (Oxford University Press, 2016) 54. Tomuschat, Christian. Human rights: between idealism and realism (OUP Oxford, 2014) 83. WAI KWONG NG v. Holder, No. 12-70594 (9th Cir. Oct. 31, 2014).ghts (Oxford University Press, 2016) 54.