British Law in Health and Social Care

Section A: Mental Health Act

What are the key goals of the Mental Health Act (1983) and why is it important?

It is the key piece of legislation that prescribes the manner of treatment and procedures involved in the assessment and treatment of people with mental health disorder. It further provides for the rights of persons with mental disorder who are the subject to assessment and treatment. Normally, people with mental disorders lose the ability to care for themselves or make decisions that are in their best interest. Therefore it is necessary that government agencies come in to take care of such vulnerable citizens. In essence, the Act came in fill the above gap by allowing for the detention and treatment of people who have mental disorders and are at risk of harm to others and themselves. Apart from empowering and protecting such category of people, the Act was meant to allow them to plan ahead for their lives in case they may no longer in apposition to make important decisions for themselves in future.

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Why do you think the Act was passed by parliament?

In the 1950s the mental health legislation was reviewed by Lord Eustace Percy and several recommendations were implemented. The Mental Health Act was largely based upon that review. Additionally, the previous legislation which was the Mental Health Act 1959 was not clear on whether an order for detention under the Act extended to treatment of the detained person without their consent. The 1959 Act did not have a comprehensive legal framework for treatment procedures like psychosurgery, electroconvulsive therapy and psychiatric medications. There were also reports of abuse in the care and treatment of people detained in mental hospitals. All the above factors and others necessitated the enactment of a new mental health legislation to remedy the defects in the previous law

Are there any controversial aspects of the Act?

The detention aspect of the mental health legislation sometimes involves the use of force by police officers or carers in the restraint of the patient. Commentators have questioned this approach especially in light of the 2007 amendments that allows the police to take a person with signs of mental disorder to the hospital. However, according to the House of Commons Health Committee Report, only 1 out 5 people taken to the hospital by the police were detained by the clinicians (Senasinghe 2018). Consequently, the amendment under section 136 raises questions as to its effectiveness. Further, the use of force to detain and restrain patients has received backlash and condemnation after the infamous death of Seni Lewis in 2010. In fact the Mental Health (Use of Force) Act was enacted in response to the controversial nature of section 136.

How has more recent legislation developed the law in this area

In 2007 the Mental Health Act 1983 was amended and a number of changes were introduced that have continued to shape and develop the law on mental health. Today, there are Independent Mental Health Advocates (IMHAs) who support people who are detained or subject to Community Treatment Orders under the Act. The 2007 Act also introduced a broadened group of professionals that take particular roles in the assessment and treatment of persons with mental disorders (Department of Health Report 2013). The effect of this change is that social workers have been allowed to actively participate in the care of persons with mental disorders. For a long time the use of use of Electro-Convulsive Therapy remained a controversial topic and the amendments have introduced safeguards for patients in relating to the said treatment.

What can we learn from an examination of Case Law?

It goes without saying that the manner in which the courts interpret laws affect their validity and application. Court decisions has changed the landscape for mental health patients and facilities alike. In In HL v UK, the European Court of Human Rights disagreed with the House of Lords decision that upheld the compulsory detention of persons who are unable to consent and found that it was illegal and an affront to his right to liberty under Article 5 of ECHR. The upshot of the above case is that the final decision changed the manner in which mental health patients who were unable to give consent to detention were handled. After that landmark judgment the government proceeded to amend the Mental Capacity Act 2005 safeguards for the protection of the human rights of people who lack capacity and have been deprived of their liberty.

Why do you think the Act is important in your professional practice?

The Act is an indispensable roadmap in my profession because it prescribes in certain terms the acceptable ways of dealing with mental health issues in the society. Social care is a sector that is concerned with social justice and the only way to achieve that is by following a defined legal framework for mental health issues. It provides for minimum conditions that must be adhered to by the professionals involved in the health and social care sector. Further, the Act recognises the role of social and health services in the quest to attain the highest standards of assessment and treatment persons with mental disorder.

References

Department of Health Report. Post-legislative Scrutiny of the. Mental Health Act 2007: Response to the Report of the Health Committee of the. House of Commons. Presented to Parliament

Senasinghe, B., 2018. Does section 63 of the Mental Health Act 1983 disempower patients with mental illness? Analysis of the case law. Medico-Legal Journal, 86(1), pp.19-22.

Section B: The Children Act (1989)

What are the key goals of the Children Act (1989) and why is it important?

The Act was introduced in 1989 to reform the law relating to children and to provide a legal framework through which local authorities would render services for children in need. Apart from local authorities, the Act intended to allocate duties to parents, courts and other government agencies so that children are safeguarded and their welfare promoted. One of the things that is at the centre of the Act, is upholding the best interests of the child and this has been brought out by presumption that children are best cared for by their parents and it is only in necessary circumstances that the children will be taken away from their care.

What do you think the Act was passed by parliament?

To afford every child the right to protection from abuse and exploitation, the Act was passed by parliament. In particular, the Act was meant to reform the existing law at the time which was the Children Act 1974. In its reform agenda, parliament wanted to create a more comprehensive legal framework that would guide different bodies and agencies in safeguarding the children. Although there were already child protection laws in place even before 1989, they did not adequately address all the important issues to do with children’s welfare. Therefore, parliament in its wisdom decided to introduce a legislation that would apportion specific duties to different stakeholders in primary care of children.

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Are there any controversial aspects of the Act?

There has been an array of criticisms against certain provisions and aspects of the Act. Some commentators are concerned that the definition of abuse in the Act is not accurately legislated and it has resulted to children being wrongly taken away from their parents. The use of child protection registers under the 1989 Act has been blamed for one of the reasons that led to the escalation and eventual death of Victoria Climbie. In fact after her death, the Act was amended in 2004 to introduce new measures that would ensure that child protection services are able to detect abuse of children. (Banting et al 2017) The volunteer programme under the Act has been criticised for lack of background checks and negligence that led to the death of Jessica Chapman and Holly Wells in 2002.

How has recent legislation developed the law in this area?

In 2018, the Department of Education published a document known as Working Together to Safeguard Children.it set up partner agreements and replaced the Local Safeguarding Children Boards with the aim of enhancing improved partnership[s to protect children. As a result children who are at a risk of abuse or neglect will now be protected through better partnership between different players including health services, councils and police officers. Further, the enactment of the Digital Protection Act 2017 has strengthened the efforts to protect children under the Children Act 1989. It provides a legal framework for the locking of online websites that display pornography to children in the UK.

What can we learn from the examination of Case Law?

Court precedents are a manifestation of the judges’ view on the application of the provisions of the Act. The death of Baby P was a revelation that there were more children being abused outside there without the knowledge of the authorities. The conviction of the offenders raised questions regarding the intervention measures that ere in place at the time. Baby P case raised issues regarding the quality of services in paediatric health services in the UK and the need for improvement (Low, Roland, Baird and Chantler 2015). Similarly, the Leming Report which was as a result of an inquiry into Climbie’s death lead to the creation of a national children’s data base that would maintain records of any contact between the child and members of staff including local authorities, police and health services. In essence, these cases have led to the improvement of welfare of children in the UK

Why do you think the Act is important in terms of your professional practice?

Health and social care is a sector that is vital to the lives of children that are in need of care. Because of their age, they become vulnerable and the Children Act 1989 provides a legal framework through which they can receive various services necessary for their lives. Therefore the Act is a useful tool in monitoring, facilitating and providing care services to this vulnerable group. It lays down the four corners of social service provision to children so everything is done in accordance with the law. Further, it imposes duties on various agencies and specific persons including social workers. In short, the Act defines the work of each person and agency involved in social and health services targeting children.

References

Bunting, L., McCartan, C., McGhee, J., Bywaters, P., Daniel, B., Featherstone, B. and Slater, T., 2017. Trends in child protection across the UK: A comparative analysis. British Journal of Social Work, 48(5), pp.1154-1175.

Low, D., Roland, D., Baird, G. and Chantler, C., 2015. Safeguarding children and improving their care in the UK. The Lancet, 386(9991), pp.313-314.

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