The Law as it stands

1. The Law as it stands

2. The Law as it stands • There are no easy definitive answers to the complex situations that face professionals and carers in day to day practice.

3. The Human Rights Act Article 8 • “The right to respect for private and family life” • 1).Everyone has the right to respect for private and family life, home and correspondence • 2) .There shall be no interference by a public authority ... Except such is in accordance with the law .....for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others.

4. Policies and procedures • We would expect organisations to have a policy regarding the use of pornography and internet access if it is relevant. • We would, however, also expect people to be treated within this on a needs led individual basis

5. Duty of Care This involves: • 1) Having an understanding of actions and their implications. • 2) Understanding and responding to ethical issues. • 3) Maintaining accurate records setting out where, when and what happened and who was involved. • 4) Take action when care and services are inadequate.

6. Mental Health(Care and Treatment)(Scotland) Act 2003 Principles • Past and present wishes • Information and support • Views of carer, named person • Full range of options • Maximum benefit

7. MHA Principles: contd. • Take into account background, beliefs , abilities • Restrictions should be the minimum necessary • Equity (not treated less favourably than other patients) • Carers needs taken in to account • Welfare of under 18’s

8. Mental Health (Care and Treatment) (Scotland) Act 2003 • CTO ......Specified person • Access to the internet and pornography can only be covered by “safety and security” The RMO has to determine that the person has sought to acquire or is likely to seek to acquire an item which is prejudicial to the health or safety of any person or the security or good order of the hospital. This cannot be used in a community setting

9. Criminal Procedures (Scotland) Act 1995 • A Compulsion Order has the same requirements as a Compulsory Treatment Order in relation to “specified persons” and cannot be used in the community. However the individual may be subject to other restrictions imposed by MAPPA or a SOPO. • CORO. Restricted (First Minister) patients may also have additional sanctions placed upon them.

10. Adults with Incapacity (Scotland) Act 2000 Principles • 1) Benefit • 2) Least restrictive option • 3) Take account of the wishes of the adult • 4) Consultation with relevant others • 5) Encourage the adult to exercise whatever skills he or she has and to develop new skills

11. Adults with Incapacity (Scotland) Act 2000 • Some very specific powers can be granted by the Sheriff in relation to restricting a persons life if they do not have capacity to consent or understand the consequence of actions.

12. Case Study • Joe is a 27 year old man with mild LD and ASD • He was adopted as a young child having had a chaotic early life. • He attended a “special school” although his academic functioning was at a reasonable level his emotional and social functioning was very poor. He was diagnosed with ASD in

13. Case study • His adoptive parents became increasingly concerned about his sexual attitude towards women in his early teenage years and made every effort to guide him . In particular, when he was 14, inappropriate sexual drawings of females being bound and tortured were discovered.

14. Case study • At 16 he was assessed when it was discovered that he had written and hidden a story on his school computer with explicit details of violent sexual conduct towards a fellow student and that he would want to act out these fantasies without having the ability to understand the consequences .

15. Case study • An application for guardianship was made as his parents wanted to continue to have legal authority to help him manage his life safely. This was granted for 3 years and included several powers regarding his dress, diet etc. The most important one covered “who to consort with” This meant that they were able to limit his access to vulnerable women. • During the 3 years of the operation of the order there were many difficulties and as time and access to technology moved on Joe got more sophisticated in seeking out fantasy material which now included torture and death.

16. Case study • When the order was due for review it was submitted with a request for the power to • “limit and restrict access to electronic and wireless devices” i.e. the internet. • This was granted and now Joe is living in supported accommodation with a robust risk management plan which includes restricting access to the internet, with “parental controls” set and his mobile phone is a basic model. The care package includes 24/7 staffing at a cost of £107,000

17. Case study • This is an example of a good guardianship order which takes in to account the principles of least restrictive alternatives as it does not ban the use of the internet altogether but limits the risk. • It is of benefit as it has a preventative measure to avoid offending as it had become clearer that Joe would be likely to act out fantasies. • It made the actions of the care team lawful

18. For interest • MWC will be carrying out a themed visit to people with a learning disability in high cost care packages. This is to examine the quality of support that they are receiving, that any restrictions imposed are lawful and that people are being treated with dignity and respect.

19. The Law as it stands • AND FINALLY • REVIEW • REVIEW • REVIEW!!!!!!!!!

20. The Law as it stands • Susan.Tait@mwcscot.org.uk