Posted By Barrie Price-Davies At a recent training session I was asked to what extent does HASAWA74 impinge or otherwise on the Human Rights Act in relationship to those patients sectioned under the Mental Health Act, i.e those on 1:1 nursing or special care? Does either of them outweigh the other or take precedence, or should they be seperate entities? A puzzle I know, anyone any views??? Thanks Barrie

Posted By Robert K Lewis Barrie You are not clear as to whether you are taking a patient or a nurses stance. Also I find it problematic as to the link between HASAWA and MHA as their approaches are not intended to deal with similar problems. One can push the Section 3 issue to deal with the business of the Hospital making correct diagnoses, the detention aspect is however a medical decision and will be dealt with under other legislation if it is incorrect. With the new regulations dealing with Dangerous and Severe Personality Disorders we are I believe to enter the world of Human Rights Act. The detention of a person following a DSPD decision even without any outward sign of violence is for me a major issue. Having made the DSPD diagnosis I do wonder if there are going to be specific measures to safeguard staff above normal high security. Logically these are required as such persons would normally be spread through the commnuity and classed as untreatable, by bringing them all together at Whitemoor the risk in that place will have been dramatically increased. The probability of an attack will increase in some proprtion to the numbers. Or worse still, some may say, we would place innocent persons in solitary confinement, silence of the lambs style, for the rest of their lives!! There are major issues of HRA v MHA and DSPD Regs but these are not I feel a problem for HASAWA Bob

Posted By Mark Dawes Hi Barry There is certainly one area where the HRA and the H@SAWA co-incide and that is with regard to the use of physical force. In mental health settings physical restraint will be used and all staff receive training in line with health anjd safety policy. With regard to the use of physical force there are two main articles that apply, namely Article 2, the Right to Life and Article 3, Prohibition of Torture. The test in Article 2 of the HRA in the Convention is whether the use of force was ‘Absolutely Necessary’. On the basis of that test the determination of whether the force used was reasonable must be objectively assessed by deciding whether the force used was disproportionate to the apparent threat that it was intended to prevent. In making any decision a Court will take into consideration not only the actions of staff who actually administer the force but also the surrounding circumstances including such matters as the planning and control of the actions under examination. This idea of planning and control is important. The Court will has held in the past that ‘the state (in the case of McCann v United Kingdom [1995] 21 EHRR 97) must give appropriate training, instructions and briefing to its agents who are faced with a situation where the use of lethal force is possible. The state must also exercise ‘strict control’ over any operations that may involve the use of lethal force.’ In short, the case law supports the health and safety issues that all hazardous activities must be suitably and sufficiently controlled by the undertaking of suitable and sufficient risk assessments, especially where there is a risk to life. This therefore, places emphasis on all Mental Health Trusts to ensure that their training in this field comlies to the Convention Standard. If you need any specifics on this issue feel free to get back in touch. We specilise in the use of physical force in teh workplace and have had all of our training legally audited and risk assessed. Mark Dawes Director & National Coach Tutor NFPS Ltd.