Rank: Guest 
|
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
|
|
|
|
|
|
Rank: Guest
|
Posted By John Webster
There have been several debates on this issue in the Forum, with differing views. However, I maintain that the "pecking order" is quite clear.
The Articles of the Act which confer various rights also apply the following condition
"..subject to such ... restrictions ... as are prescribed by law and are necessary in a democratic society, in the interests of .... public safety..... for the protection of health ...for the protection of the ....rights of others...." etc.
So any action taken in accordance with other laws enacted to protect public safety, health & the rights of others - which must include the HSWA and Mental Health Act - would appear lawful under the Human Rights Act.
Also, Section 6 of the Act states
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
So the above subsection 2 gives precedence to other primary legislation - again this would include HSWA and MHA - in respect of actions taken by a public authority.
I guess the main legal debating point could be whether or not any conflictiong provisions of HSWA and MHA were "necessary in a democratic society"
John
|
|
|
|
|
|
Rank: Guest
|
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
|
|
|
|
|
|
Rank: Guest
|
Posted By Dave Partington Barrie, simply put when you read the Human Rights Act it says that one has such and such rights as long as there is not a national law which says that you do not have that right. For instance under the HRA one has the right to congregate with any number of people. However, anti trade union law says that only six people can stand on a picket line. In this instance the national law would take precedence. Conversely my employer (part of the State) has issued a dress code. As far as I can see there is no way they could in-force a ban on shorts as Article 10 states the right of freedom of self expression and as long as there is not a national law banning shorts then the employer would be in breach of the Act and the 1951 HR Convention. For your purposes the Mental Health Act 1983 says that people that need to be sectioned and restrained can be restrained and therefore the HRA and The Convention would be subservent to this act. I hope this helps. David.Partington@southwark.gov.uk
|
|
|
|
|
|
Rank: Guest
|
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.
|
|
|
|
|
|
Rank: Guest
|
Posted By Robert K Lewis
Mark has made some succinct points and from them I have to return to the DSPD classified persons. The governments intent is to bring these 250 - 350 people, their estimates, together into one or two institutions, ignoring the fact that by their own definitions these people are dangerous and untreatable. I for on would be cautious about the risk assessment for the management of these people. This legislation may yet prove to be in Breach of HRA.
I totally agree that we must keep the 2 strands separate but we should remember that there are necessarily aspects which can produce undesired impacts for the H&S of others.
Bob
|
|
|
|
|
|
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.