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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25451
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Does it mean that I don't have capacity just because I am in

Resolved Question:

Does it mean that I don't have capacity just because I am in hospital under section 3 of the mental health act? My consultant psychiatrist is trying to force treatment on me, against my wishes, for a physical problem. Can he carry out a capacity assessment on his own, or does he need a second opinion? I am an intelligent woman, and I am fully aware of the situation, and the consequences of refusing to accept treatment.
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.May I ask when the s3 detention began please?Have you made any appeal against your detention?
Customer: replied 2 years ago.

The s3 started in October 2014.

I appealed, had a tribunal in January 2015, after which I remain on s3.

Expert:  Joshua replied 2 years ago.
Thank you. A s3 detention does not mean that you do not have legal capacity. Legal capacity is dealt with under the Mental Capacity Act which applies a two stage test for mental capacity:1) Does the individual concerned have an impairment of, or a disturbance in the functioning of, their mind or brain, whether as a result of a condition, illness, or external factors such as alcohol or drug use?2) Does the impairment or disturbance mean the individual is unable to make a specific decision when they need to either because they are unable to understand the information relevant to the decision, retain that information or use it or weigh up that information as part of the process of making the decision.A person detained under s3 of the MHA may lack mental capacity if they cannot satisify they above test but it does not follow that being detained under s3 means that a detainee lacks mental capacity. The two are distinct. In order for a s3 order to be made, it is necessary to show that a patient is suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital and that he is suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and appropriate medical treatment is available for him. As you will be aware you have the right to appeal to the hospital managers at any time during your detention. Because your detention must be about to come up for renewal or may have recently been renewed; you will also be aware that the order must be renewed after 6 months following an assessment by your physician responsible for your care - he can carry out that assessment on his own but if the detention is or has been renewed you have another right to appeal to tribunal and can be represented for free by a mental health solicitor and ask for an advocate to represent you if you wish during the second six month period. You may therefore wish to give consideration to a second appeal if your detention is or has been renewed. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me.
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