The compliant court — Procedural fairness and social control in compulsory community care

Compulsory community care (CCC) was introduced in Sweden in 2008. This article investigates all written court decisions regarding CCC over a 6 month period in 2009 (N = 541). The purpose is to examine how the legal rights of patients are protected and what forms of social control patients are subjected to.     

Implementing the Mental Health Act 2007 in British general practice: Lessons from Ireland

Changes in mental health legislation (e.g. Mental Health Act 2007 in England and Wales, Mental Health Act 2001 in Ireland) have generally improved adherence to international human rights standards, but also present challenges to primary care providers. When mental health legislation was substantially reformed in Ireland, 62.9% of general practitioners (GPs) felt the new legislation was not user-friendly. Majorities of GPs who felt the legislation affected their practice reported increased workloads (85%) and various other difficulties (53%). GPs who had received training about the legislation were more likely to find it user-friendly (43% versus 30.9%), and informal training (e.g. from colleagues) was just as likely as formal training to be associated with a GP finding it user-friendly. With similar changes to mental health legislation being introduced in England and Wales, it is significant that informal training is just as good as formal training in helping GPs work with new mental health legislation.     

Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

The nearest relative in the Mental Health Act 2007: still an illusionary and inconsistent safeguard?

Abstract

The role of nearest relative (NR) is intended as a safeguard in the Mental Health Act 1983 (as amended in 2007) to curb the excesses of professional discretion and protect patients from unwarranted compulsory hospitalisation. It is unique to the mental health compulsory detention process in England and Wales. There are, however, evident tensions in the role and a lack of clarity surrounding the precise functions of the NR. There is also some uncertainty and confusion among practitioners about the scope of the NR involvement, and government plans announced recently to review mental health legislation will include a focus on the role of family and carers in the care of detained patients. Despite long-standing concerns about the role, there is remarkably little published research available to date on its use and effectiveness, in so far as evaluating the extent to which it provides an adequate safeguard for patients, as intended by the legislation. This article will briefly explore the background to the role, highlight some of the difficulties and tensions within it and conclude with some observations about where further research and reform may be needed to provide greater protection and clarity for patients, relatives and health and social care practitioners.     

Mental and physical health symptoms of family court intimate partner violence petitioners

This paper explores the impact of intimate partner violence on victim health and proposes interdisciplinary coordination between legal and mental health services as a means to assist victims. Data was collected from 95 female petitioners at an upstate New York Domestic Violence Intensive Intervention Court (DVIIC). Study participants completed surveys on physical health, mental health, and social functioning. Survey results demonstrated decreased mental health and social functioning as well as a strong willingness to utilize court-based mental health services if offered. Findings from this study support court-based settings as appropriate sites for addressing mental health needs through collaborative efforts between legal and mental health professionals.     

Therapeutic jurisprudence and mental health tribunals: changing patterns of demand and its impact

For decades the mental health system has been ‘in crisis,’ with too little funding, too much demand and fragmented services. In England and Wales, decisions made concerning the care and treatment of those suffering from a mental disorder is governed by the Mental Health Act 1983 (as amended) (MHA 1983). Detention under the legislation is fraught with conflict; patient and clinical views are often at odds. Mental health tribunals enable patients to seek a review of their case and the legality of their detention. This paper argues that with the increased use of formal detention under the MHA 1983, the caseloads of mental health tribunals have similarly risen. Whether it is possible to advance therapeutic benefit to psychiatric patients attending tribunals is open to question. While mental health tribunals have a role to play in generating a positive psychological impact on an applicant, there is a risk that time and resource pressures may inhibit the adoption of a therapeutic approach. This paper considers the key drivers that are currently pushing detention rates up, the impact this is having on mental health tribunal caseloads and whether it is possible to bring therapeutic jurisprudence to the patient.     

Covenanting for Nature: A Comparative Study of the Utility and Potential of Conservation Covenants

Conservation covenants over private land are extensively used in some jurisdictions to secure a wide range of public benefits: in some cases primarily to promote nature conservation, while elsewhere to foster conservation alongside greater public access to ‘green’ space. This article considers the use of conservation covenants in New Zealand, Scotland, and England and Wales. It argues that they can play a unique role in balancing nature conservation, property rights and increased public access to private land. It reviews proposals for new legislation in England and Wales and argues that, if it is to be successful, the potential of conservation covenants to secure greater public access to private land should be more strongly emphasised. Their successful use in New Zealand shows that, while recognising the important balancing function that they can perform, this emphasis is critically important if covenants are to fulfil their potential to ‘reconnect’ people and nature.     

Changing housing policy: women escaping domestic violence

Domestic violence has risen up the political agenda, as women's action has inspired changes in police, social work and legal practice. At the same time, one of the oldest pieces of legislation that protected women from violence - the Homeless Persons Act of 1977 - has been transmuted into the Housing Act of 1996. This legislation was introduced by a Conservative government, which was anxious to reduce the rights of homeless people to secure permanent accommodation, on the grounds that these rights gave incentives to pregnancy, lone parenthood and economic migrants. New Labour have softened the Housing Act to give more scope to local authorities to respond to homelessness. This article asks: What are the implications of changing homelessness rights under this legislation and subsequent regulations for women's ability to escape violent relationships and find long term solutions to the housing needs which domestic violence creates? How new is New Labour policy as expressed in housing regulations and its policy Green Paper?     

Education law: Excluding the child

Education law in England and Wales has remained largely immune from the general trend in social welfare legislation to accord children and young people of independence of status and provide opportunities for their participation in some of the decisions that relate to them. This article examines the extent of the denial of children's rights in this context. It focuses, in particular, on the areas of special educational needs and exclusion from school, including the relevant appeal processes. It sees, in developments in Scottish legislation, more positive signs and expresses the hope that similar progress will follow south of the border.     

Examining Causal Attributions Towards Crime on Support for Offender Rehabilitation

This study investigates the predictors of support for rehabilitation among 899 residents of one county in Western New York. The results from the current study indicate that respondents strongly support rehabilitation as a goal of punishment. The findings show that sex and political ideology are important predictors of support with females and those holding a more liberal political ideology being more supportive of rehabilitation than males and conservatives. In addition, the study found support for the idea that one’s causal attributions towards crime influence their views toward punishment. Five of the causal attribution scales assessing support for different theoretical perspectives (strain/critical, social bond/attachment, deterrence, biological, and labeling) were found to significantly impact one’s overall support for rehabilitation.     

FROM RIGHTS TO RESPONSIBILITIES FOR PARENTS

Few pieces of legislation in recent years have been heralded with such enthusiasm as the Children Act 1989, in force in England and Wales as of October 14, 1991. This article looks at the philosophy and principles underpinning this radical landmark in family law, outlines the new provisions in both public and private child care issues, and considers some of the implications and dilemmas for social workers, lawyers, and the courts.     

反思精神障碍强制医疗的“危险性”原则

很多国家精神卫生立法在强制医疗人院标准方面都适用了“危险性”原则,我国《精神卫生法》也在其列。然而,“危险性”原则是基于三个错误的假设,因此实际上“危险性”原则可能会增加精神疾病对患者的伤害和较大程度增加社区危险的风险。本文呼吁参考Large及Richardson的观点及美国部分州与苏格兰精神卫生立法的实证经验,在“危险性”原则基础上补充“拒绝治疗的能力”评定作为精神障碍者强制医疗入院标准。     

Mentally disordered offenders and the European Court of Human Rights

Mentally disordered offenders find themselves at the intersection of the healthcare system and the criminal justice system in most European countries. Decisions on their care often involve lengthy discussions in relation to care versus control in society. In this article, the focus is on one aspect of this debate — that of human rights. An analysis of cases, taken to the European Court of Human Rights by mentally disordered offenders, demonstrates the difficulties inherent in ensuring appropriate care to individuals and safeguards to the public at the same time. The issues raised include the problems raised by indeterminate sentences, the use of detention for preventive purposes, and debates about treatment.The countries represented in this selection of cases are Belgium, Norway, Poland, the Netherlands, Russia and the United Kingdom.     

The Law and Incapacity Determinations: A Conflict of Governance?

This article will consider the highly charged questions raised by two major sets of law reforms in England and Wales, the Mental Capacity Act 2005 and the Mental Health Act 2007, which, although applying to closely related clinical populations, proceeded along entirely separate legislative paths. By justifying its proposals for reform of mental health legislation on the grounds of 'risk', the Government failed to take into account the implications of enforced treatment on patients who may retain decision-making capacity.     

Implications of an Arrest in Domestic Violence Cases: Learning From Korean Social Workers' Experiences in the U.S.

In response to the lack of research on the effect of arrest in deterring domestic violence in minority communities, a qualitative exploratory study was conducted with Korean American social workers providing services to Korean domestic violence victims in the New York metropolitan area. The authors examined study participants' perceptions about their clients' experiences of arrests in domestic violence situations. Findings reveal major barriers for Korean victims that prevent them from utilizing help from the police. Main themes from the data show both negative and positive results from arrests. Participants perceived arrest as an ultimately necessary tool for deterring domestic violence in the Korean community in the U.S. Participants suggested some changes in the criminal justice system to better respond to immigrant victims of domestic violence. Practice and policy implications are discussed. This study was, in part, presented at the 23rd APPAM (Association for Public Analysis and Management) Annual Research Conference in Washington, D.C. on November 1, 2001.     

No longer a civil matter? The design and use of protection orders for domestic violence in England and Wales

ABSTRACT

This paper assesses the design and use of protection orders for domestic violence in England and Wales. It draws on data from 400 police classified domestic violence incidents and 65 interviews with victims/survivors, as well as new analysis of government justice data from England and Wales, to address a gap in literature on protection orders.

The paper identifies an increasing civil-criminal ‘hybridisation’ of protection orders in England and Wales, and argues that a dual regime has developed, with orders issued by police and/or in criminal proceedings increasingly privileged (and enforced) over victim-led civil orders. Whilst protection orders are being used – as intended – flexibly to protect domestic violence victims, the way they are applied in practice risks downgrading domestic violence in criminal justice terms.

The conclusions are especially timely in light of current Government proposals to rationalise protection orders by introducing a single overarching Domestic Abuse Protection Order in England and Wales.     

Justice and equality in mental health law: the European experience

This is the text of a lecture delivered at the World Conference of the International Academy of Law and Mental Health in Sydney in September 2003 on the occasion of the award to the author of the Prix Philippe Pinel. Its theme is the potential of the European Convention on Human Rights to secure the human rights of people with mental disorders and disabilities, viewed in the context of the legislation on mental health and mental incapacity in England and Wales. Its conclusion is that the Convention is better at protecting them from unwanted or unnecessary treatment and care than it is at securing for them equal access to the treatment and care they want or need. The lecture has been updated to reflect developments in the United Kingdom since 2003.     

If i Go There Will Be Trouble,If i Stay There Will Be Double: Revenge Porn,Domestic Violence,and Family Offenses

New York State's current lack of legislation criminalizing the threat of revenge porn allows repetitive, invasive, and embarrassing attacks on the morality and sexuality of victims. This can have a severe impact on survivors of domestic violence who are prevented from leaving dangerous situations by threats of dissemination. Victims of revenge porn and domestic violence often face isolation, threats of violence, and thoughts of suicide. This Note proposes that threats of revenge porn become family offenses under the New York Family Court Act § 812.     

Alternative sanctions: myth and reality

For this study the author has reviewed 134 documents from 12 western countries: the US, Canada, Australia, New Zealand, England, Scotland, Sweden, Finland, Norway, Germany, Austria and France. The documents include the research literature as found in the RDC documentation department and documents obtained by writing to official authorities.