Legal issues related to mental Mental health ( uganda) CRPD and others act

Mental health issues related
to capacity and legal powers
BY
MMED. PSY. INENA WA INENA .2019-01-05430
Supervisor :Dr GUMUSIRIZA

OUTLINE
 INTRODUCTION
 HUMAN RIGHTS OF MENTALLY ILL PATIENTS( CRPD, 2009 California Probate Code -
Section 810-813 )
 LEGAL MENTAL CAPACITY MENTAL TREATMENT ACT OF UGANDA
-ADMISSION TO HOSPITAL
-DISCHARGE OF PATIENT
-COMMUNITY TREATMENT
-CONSET OF MENTALLY ILL
 CONCLUSION

INTRODUCTION
• What is capacity of a person?
Ability, capability, or fitness to do something; a legal right, power, or competency to
perform some act. Capacity relates to soundness of mind and to an intelligent
understanding and perception of one's actions.
• Who can assess capacity?
In the codes of practice, the people who decide whether or not a person has the
capacity to make a particular decision are referred to as 'assessors’.
This is not a formal legal title. Assessors can be (family members, care worker, care
service manager, nurse, doctor ,social worker,…)

…
• 4 steps of establishing capacity
The Mental capacity Act (UK.) says that a person is unable to make their own decision
if they cannot do one or more of :
1.Understand information given to them.
2.Retain that information long enough to be able to make the decision.
3.Weigh up the information available to make the decision
4. Communicate their decision ( By talking, using sign language or even simple muscle
movements such as blinking an eye or squeezing a hand).

…
Legal Capacity
• Is to have the capacity to contract. means the person entering into the contract has a
legal competence.
• This means they are competent to perform the act they're agreeing to in the
contract.
• A person must have a sound mind to get in this situation
• Who has legal capacity?
-A person who has reached the age of 18 has the legal capacity to contract as an
individual.

…
4 different types of capacities of a legal subjects
1. Legal subject’s ability to bear rights and duties.
2. legal subject’s ability to perform juristic acts
3. Locus standi in iudicio . capacity to be a party in court proceedings (for
example the plaintiff or defendant)
Persons who cannot participate as a party themselves are usually assigned a
curator personae, bonae or ad litem to represent them as parties in a trial

…
a person can have the capacity to act in terms of three categories:
A. No capacity to act: Persons that fall into this category cannot perform a legally
valid juristic act. Children under the age of seven (infantes) and insane persons are
examples of legal subjects with no capacity to act.
B. Limited capacity to act: Some legal subjects do not have the capacity to perform
legal acts unless assisted by someone designated by the law. For example, a company
cannot hire a new secretary by itself since it is merely an abstract entity. It has to be
represented by people who are designated to hire new staff on behalf of the company.
C. Full capacity to act: People with full capacity to act can perform all juristic acts
themselves.
• People over the age of 18 and emancipated minors are presumed to have full
capacity to act

…
4. Accountability is the capacity to be held accountable (or liable) for unlawful
acts.
• It concerns the ability to distinguish between right and wrong8 and to
conduct one’s actions accordingly.
• Persons who do not have this ability are considered to be doli incapax

…
Who determines legal incapacity?
judge
The judge is the only person that can determine that a person lacks the capacity
to manage his or her property and make decisions about his or her health or
safety.

…
• What is legal mental capacity
Mental capacity in law is a term used to describe a person's ability to be able to
make decisions for themselves and to be able to understand what those
decisions will mean for them

…
• Who determines mental capacity
Capacity is determined by a physician and not the judiciary.
Capacity refers to an assessment of the individual's psychological abilities to
form rational decisions, specifically the individual's ability to understand,
appreciate, and manipulate information and form rational decisions

HUMAN RIGHTS OF MENTALLY
ILL PATIENTS

…
• A person who has a mental or physical disorder may still be capable of contracting,
conveying, marrying, making medical decisions, executing wills or trusts, and
performing other actions.
• A judicial determination that a person is totally without understanding, or is of
unsound mind, or suffers from one or more mental deficits so substantial that,
under the circumstances, the person should be deemed to lack the legal capacity to
perform a specific act, should be based on evidence of a deficit in one or more of
the person's mental functions rather than on a diagnosis of a person's mental or
physical disorder

…
(a) A determination that a person is of unsound mind or lacks the capacity to make a
decision or do a certain act, including, but not limited to, the incapacity to
contract, to make a conveyance, to marry, to make medical decisions, to execute
wills, or to execute trusts, shall be supported by evidence of a deficit in at least one
of the following mental functions, subject to subdivision
(b) and evidence of a correlation between the deficit or deficits and the decision or
acts in question:
(1) Alertness and attention, including, but not limited to, the following:
(A) Level of arousal or consciousness.
(B) Orientation to time, place, person, and situation.
(C) Ability to attend and concentrate.

…
(2) Information processing, including, but not limited to, the following:
(A) Short- and long-term memory, including immediate recall.
(B) Ability to understand or communicate with others, either verbally or otherwise.
(C) Recognition of familiar objects and familiar persons.
(D) Ability to understand and appreciate quantities.
(E) Ability to reason using abstract concepts.
(F) Ability to plan, organize, and carry out actions in one's own rational self-interest.
(G) Ability to reason logically.

…
(3) Thought processes.
• Deficits in these functions may be demonstrated by the presence of the
following:
(A) Severely disorganized thinking.
(B) Hallucinations.
(C) Delusions.
(D) Uncontrollable, repetitive, or intrusive thoughts.

…
(4) Ability to modulate mood and affect.
Deficits in this ability may be demonstrated by the presence of a pervasive and
persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression,
hopelessness or despair, helplessness, apathy or indifference, that is
inappropriate in degree to the individual's circumstances.

…
(b) A deficit in the mental functions listed above may be considered only if the
deficit, by itself or in combination with one or more other mental function
deficits, significantly impairs the person's ability to understand and appreciate
the consequences of his or her actions with regard to the type of act or
decision in question
(c) In determining whether a person suffers from a deficit in mental function so
substantial that the person lacks the capacity to do a certain act, the court may
take into consideration the frequency, severity, and duration of periods of
impairment

…
(d) The mere diagnosis of a mental or physical disorder shall not be sufficient
in and of itself to support a determination that a person is of unsound mind or
lacks the capacity to do a certain act.
(e) This part applies only to the evidence that is presented to, and the findings
that are made by, a court determining the capacity of a person to do a certain
act or make a decision, including, but not limited to, making medical decisions.

…
• Except where otherwise provided by law, a person lacks the capacity to make a
decision unless the person has the ability to communicate verbally, or by any other
means, the decision, and to understand and appreciate, to the extent relevant, all of
the following :
(a) The rights, duties, and responsibilities created by, or affected by the decision.
(b) The probable consequences for the decisionmaker and, where appropriate, the
persons affected by the decision.
(c) The significant risks, benefits, and reasonable alternatives involved in the decision

…
(a) For purposes of a judicial determination, a person has the capacity to give
informed consent to a proposed medical treatment if the person is able to do all of
the following:
(1) Respond knowingly and intelligently to queries about that medical treatment.
(2) Participate in that treatment decision by means of a rational thought process.
(3) Understand all of the following items of minimum basic medical treatment
information with respect to that treatment:
•

…
(A) The nature and seriousness of the illness, disorder, or defect that the
person has.
(B) The nature of the medical treatment that is being recommended by the
person's health care providers.
(C) The probable degree and duration of any benefits and risks of any medical
intervention that is being recommended by the person’s health care providers,
and the consequences of lack of treatment.
(D) The nature, risks, and benefits of any reasonable alternatives.
(b) A person who has the capacity to give informed consent to a proposed
medical treatment also has the capacity to refuse consent to that treatment.

MENTAL TREATMENT ACT OF UGANDA
-DISCHARGE OF PATIENT
-COMMUNITY TREATMENT
-CONSET OF MENTALLY ILL

DISCHARCHE OF PATIENT
-A patient who is admitted under assisted admission, may on
the request of a relative or concerned person ,be discharged from
the mental health unit, where the relative or concerned person is
willing and able to take care of the patient.
-The relative or concerned person who makes to have a patient
discharged under subsection (1), shall be the person who
authorised the admission

DISCHARGE OF PATIENT …..Cont
• The request under this section shall be in writting to the officer in
charge of the mental health unit where the patient is admitted
and shall give an undertaking to take care of the patient .
• Detained patients can be discharged if the responsible medical
officer believes that it is no longer necessary to detain the patient
. where appropriate ,a community treatment order can be made
• A patient believing that he or she has been improperly detained
can bring an action for habeas corpus :if this establish then the
court wimm order his or her release

DISCHARGE OF PATIENT …CONT
• There is also the option of using informal procedures ,wich are to
be heard by the manager .
• Patients have the right to appeal to a tribunal once for each period
of time during wich their detention is authorized the following
décision considers further the effect of being discharged

DISCHARGE UNDER THE MHA 1983
• The action is appropriate when there was no legal power to detain
the patient.
• It is not appropriate where there was a legal power to detain the
patient , but It is claimed that there was an improper exercice of
discrétion decinding wheter or not to detain the patient.
• In the latter type of claim.an application for judicial review could
be brought.

COMMUNITY TREATMENT ORDERS
• When the patient is discharged having been detained under the
MHA1983,the clinician can impose a community treatment order.
• This will mean that the release will be conditional .The order can
be made if the clinician and a mental health Professional agree
that it is appropriate to make an order:
-The patient is suffering from mental disorder of a nature or degrée
which makes it appropriate for him to receive médical treatment

COMMUNITY TREATMENT
ORDERS…CONT
-It is necessary for his health or safety or for the protection of other
persons that he should receive such treatment
-Subject to his being liable to be recalled as mentioned in paragraph
-Below, such treatment can be provided without his continuing to be
detained in a hospital

COMMUNITY TREATMENT
ORDERS…CONT
-It is necessary that the responsible clinician should be able to
exercise the power to recall the patient to hospital and
-Appropriate médical treatment is available for him
The conditions placed on the release must be for the following
purposes:
-Ensuring that the patient receive médical treatment
-Preventing risk of harm to the patient’s health or safety;
-Protecting other persons
•

COMMUNITY TREATMENT
ORDERS…CONT
The Conditions can be suspended or varied by the responsible
The responsible clinician can recall a patient subject to a community
treatment order
The responsible clinician may recall a community patient to hospital if
in his opinion
-The patient requires medical treatment in the hospital for his mental
disorder ;and

COMMUNITY TREATMENT
ORDERS…CONT
-There would be a risk of harm to the health or safety of the
patient or to other persons if the patient were not recalled to
hospital for that purpose
-The responsible clinician may also recall a community patient to
hospital if the patient fails to comply with a condition specified

CONSENT TO TREATMENT BY
VOLUNTARY PATIENTS
1. A voluntary patient shall before receiving treatment ,give consent
to the treatment
2. A voluntary patient shall also give consent where her or she is to:
-Undergo a surgical or médical intervention that may lead to
irreversible structural or physiological change; or
-Participate in a clinical ,experimental or research based
intervention

VOLUNTARY PATIENTS…cont
3. A voluntary patient shall not be given treatment for mental illness without
his or her consent
4. A voluntary patient shall, before being asked give consent be given a clear
explanation of the proposed treatment , by the mental health practitioner who
attends to him or her ,of the proposed treatment he or she is to receive and the
duration of the treatment
5.The explanation shall:
-Contain sufficient information to enable the patient make a balanced
judgement about the treatment

-Identify and explain any medication or technique about wich there is
insufficient knowlegde, to justify its being recommended or to enable its effect
to be reliably predicted ;and
-Warm the patient of any risks which may be inhérent in the care or the
treatment
6.The explanation shall be communicated to the patient:
-In a language and form that is readily understood by the patient and where
necessary , by a competent interpreter;

-In a manner that facilitates the understanding of the patient of
what is communicated
7 For the purposes of this section, a voluntary patient is deemed to
have given consent to care or treatment only where:
-The requirements of this section are complied with and
-The consent is freely and voluntarily given

8. A voluntary patient shall only be deemed to give consent where
he or she is allowed sufficient time to consider the matters involved
in the decision to be made and to obtain the advice and assistance
that may be necessary before giving the consent.
9.A voluntary patient is deemed to be incapable of giving consent
except where he or she is capable of understanding:
-The requirements of this section as shall be communicated to him
or her:

-The matters involved in the decision to be made ;and
-The effect of giving the consent
10.Where a voluntary patient lacks the capacity to consent , the
consent shall be obtained from the personal representative of the
patient and, where the patient does not have a personal
representative an opinion on the treatment to be administered shall
be sought from a mental health practitioner

11. The consent given by a voluntary patient shall specify that he
or she consents to the treatment to be administered and to the
duration of the treatment
12.Failure by a voluntary patient to offer resistant to treatment
does not in itself constitute consent to treatment

WITHDRAWAL OF CONSENT TO
TREATMENT BY VOLUNTARY
PATIENTS
• A voluntary patient may in writing to the mental health
practitioner who attends to him or her ,withdraw the consent
• The mental Health Practitioner , shall on receipt of a
Withdrawal of consent to treatment ,immediately cease
providing the treatment

PATIENTS…..cont
• Notwithstanding subsection (2), where the mental health
practitioner is of the opinion that the treatment should be
continued, the mental health practitioner, shall, within forty
eight hours of receipt of the request to withdraw consent to
treatment ,review the request and seek the opinion of another
mental health practitioner

PATIENTS…..cont
Where the mental health practictioner who reviews the request to
withdraw treatment under subsection (3) and the mental health
practitioner who gives an opinion under subsection (3)are Both of
the opinion that treatment should continue ,the patient shall be
treated as an involuntary patient

RIGHT TO APPEAL DECISION TO
CONTINUE TREATMENT WITHOUT
CONSENT
• A voluntary patient who is not satisfied with the
decision of a mental health practitioner made under
section 32 may appeal to the Board

INVOLUNTARY PATIENTS
1.An involuntary patient who is capable of giving consent , shall be
requested to give consent to treat treatment before receiving the
treatment.
2.Where treatment is administered without consent ,the mental health
practitioner shall indicate this in the médical records of the
involuntary patient

INVOLUNTARY PATIENTS…cont
3.where a mental health practitioner who attend to an
involuntary patient determines that the involuntary patient
needs the treatment to be administered, but the involuntary
patient refuses to consent to the treatment , the mental
health practitioner shall before giving the treatment ,seek the
opinion of an other mental practitioner on the treatment to
be given

INVOLUNTARY PATIENTS…cont
• Not withstanding the fact that treatment is given without consent , the
mental health practitioner treating the patient shall in all cases inform the
involuntary patient of the treatment to be administered on him or her
• Where an involuntary patient is to Participate in clinical or experimental
research for psychiatric treatment , consent shall be obtained from the
involuntary patient before the research is carried
• Where an involuntary patient does not consent or is not capable of
consenting to participation in clinical or experimental research ,the
involuntary patient shall not Participate in the research.

CONCLUSION
• Concerns about mental incapacity-based infringements on legal capacity centered around discrimination
against people with mental disabilities, which is said to diminish a person's status before the law;
• The idea that mental incapacity regimes are rooted in misguided preconceptions about people with
psychosocial or intellectual disabilities, which presume the person is unable to make decisions;
• That mental capacity assessments are based on criteria with unsettled meaning, requiring clinical or judicial
judgment where mistakes can be made;
• or, more strongly, that mental capacity assessments are significantly based on diagnostic status;
• A claim that such regimes have not ensured protection for people with mental disabilities;
• And that they do not adequately recognize that some abilities necessary for making a decision need not rest
in the cognitive abilities of the person, but can be provided though decision-making support.

REFERENCES
• Alzheimer's Disease International, 2015 Alzheimer's Disease International World
Alzheimer Report 2015. The Global Impact of Dementia: An analysis of prevalence,
incidence, cost and trends https://www.alz.co.uk/research/world-report-2015 (2015),
Accessed 20th Jun 2018 Google Scholar
• Appelbaum, 2016 P.S. Appelbaum Protecting the rights of persons with disabilities: An
international convention and its problems Psychiatric Services, 67 (4) (2016), pp. 366-
368CrossRefView Record in Scopus Google Scholar
• Bach, 2018 M. Bach Vulnerability to losing legal power over personal life: A disability rights
framework for analysis IRIS Institute for Research and Development on Inclusion and
Society, Toronto (2018)(forthcoming) Google Scholar

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