The test of compulsion in mental health law: capacity, therapeutic benefit and dangerousness as possible criteria

A realistic approach to assessing mental health laws' compliance with the UNCRPD

This article argues that a more realistic view should be taken of the implications of the Convention on the Rights of Persons with Disabilities for mental health law than the view taken by the UN monitoring committee, in its General Comment on Equal Recognition Before the Law, in 2014. This more realistic interpretation would not forbid reliance on the concept of mental capacity in the law. Nor would it forbid legislation that authorises substitute decision-making or involuntary treatment. Less radical reforms, it is suggested, could promote Convention compliance. These reforms would shift mental health law away from reliance on over-broad concepts like "mental disorder" or "mental disability", but would still permit use of legal standards that rely on specific impairments in mental function that are relevant to a person's capacity to make particular decisions or perform specific tasks. Strong efforts would be required to promote supported decision-making, and respect advance directives, but substitute decision-making and treatment without consent would be permitted in exceptional circumstances, subject to appropriate safeguards and independent review. Under this interpretation, those measures would not constitute discrimination in the law on the ground of disability, or denial of equal recognition before the law. This approach, it is argued, is more likely to generate positive responses from state parties in terms of law reform.

How personality became treatable: The mutual constitution of clinical knowledge and mental health law

In recent years, personality disorders – psychiatric constructs understood as enduring dysfunctions of personality – have come into ever-greater focus for British policymakers, mental health professionals and service-users. Disputes have focussed largely on highly controversial attempts by the UK Department of Health to introduce mental health law and policy (now enshrined within the 2007 Mental Health Act of England and Wales). At the same time, clinical framings of personality disorder have dramatically shifted: once regarded as untreatable conditions, severe personality disorders are today thought of by many clinicians to be responsive to psychiatric and psychological intervention. In this article, I chart this transformation by means of a diachronic analysis of debates and institutional shifts pertaining to both attempts to change the law, and understandings of personality disorder. In so doing, I show how mental health policy and practice have mutually constituted one another, such that the aims of clinicians and policymakers have come to be closely aligned. I argue that it is precisely through these reciprocally constitutive processes that the profound reconfiguration of personality disorder from being an obdurate to a plastic condition has occurred; this demonstrates the significance of interactions between law and the health professions in shaping not only the State’s management of pathology, but also perceptions of its very nature.

Better laws for coercive psychiatric treatment: lessons from the Waterlow case

OBJECTIVE

The purpose of this paper is to use the circumstances surrounding the trial of Antony Waterlow to consider the statutory mechanisms for coercive treatment of people with mental illness in Australasia.

METHOD

The facts in R v Waterlow are examined in the light of a review of Australasia's mental health legislation and recent empirical work on the ability to usefully categorise patients by their likelihood to harm others.

RESULTS

Arguably a major reason for Mr Waterlow's not receiving effective psychiatric treatment prior to the killings was that the doctors who examined him did not think they had reasonable grounds for believing that detention was necessary for the protection of others from serious harm.

CONCLUSIONS

The tragedy of the Waterlow matter provides further impetus to a much wider call for the move to capacity-based mental health legislation.

Rising to the human rights challenge in compulsory treatment--new approaches to mental health law in Australia

OBJECTIVE

To analyse, and explain to Australasian psychiatrists, recent proposed changes to the terms of coercive treatment for mental illness in Tasmania and Victoria and to place the proposals in the context of a broader human rights framework that is likely to impact the future shape of mental health legislation more generally.

METHODS

The Australian law reform proposals are reviewed against the requirements of numerous human rights instruments, including the recently ratified United Nations Convention on the Rights of Persons with Disabilities. Ethical and legal arguments are made to support the proposed changes and to introduce others, taking into account academic commentary on mental health law and recent empirical work on the ability to usefully categorise patients by their likelihood of harm to self and others.

RESULTS

The Victorian and Tasmanian draft mental health bills propose a new basis for compulsory psychiatric treatment in Australasia. If they become law, coercive psychiatric treatment could only be applied to patients who lack decision-making capacity. The Tasmanian draft bill also sets a new benchmark for timely independent review of compulsory treatment. However both jurisdictions propose to retain an 'additional harm' test which must be satisfied before patients may be treated without consent. This differs from non-psychiatric cases, where if patients are unable to consent to medical treatment for themselves, they will be entitled to receive coercive treatment if it is in their best interests.

CONCLUSIONS

The proposed changes under the Tasmanian and Victorian draft mental health bills will ensure that, in line with local and international human rights obligations, only patients who lack decision-making capacity may be coercively treated for mental illness. However the continuing 'additional harm' criteria may breach human rights obligations by imposing a discriminatory threshold for care on patients who are unable to consent to treatment for themselves. This could be avoided by replacing the 'additional harm' test with a 'best interests' test.

Obligatory dangerousness criteria in the involuntary commitment and treatment provisions of Australian mental health legislation

OBJECTIVE

Involuntary commitment and treatment (IC&T) of people affected by mental illness may have reference to considerations of dangerousness and/or need for care. While attempts have been made to classify mental health legislation according to whether IC&T has obligatory dangerousness criteria, there is no standardised procedure for making classification decisions. The aim of this study was to develop and trial a classification procedure and apply it to Australia's mental health legislation.

METHOD

We developed benchmarks for 'need for care' and 'dangerousness' and applied these benchmarks to classify the mental health legislation of Australia's 8 states and territories. Our focus was on civil commitment legislation rather than criminal commitment legislation.

RESULTS

One state changed its legislation during the course of the study resulting in two classificatory exercises. In our initial classification, we were able to classify IC&T provisions in legislation from 6 of the 8 jurisdictions as being based on either 'need for care' or 'dangerousness'. Two jurisdictions used a terminology that was outside the established benchmarks. In our second classification, we were also able to successfully classify IC&T provisions in 6 of the 8 jurisdictions. Of the 6 Acts that could be classified, all based IC&T on 'need for care' and none contained mandatory 'dangerousness' criteria.

CONCLUSIONS

The classification system developed for this study provided a transparent and probably reliable means of classifying 75% of Australia's mental health legislation. The inherent ambiguity of the terminology used in two jurisdictions means that further development of classification may not be possible until the meaning of the terms used has been addressed in case law. With respect to the 6 jurisdictions for which classification was possible, the findings suggest that Australia's mental health legislation relies on 'need for care' and not on 'dangerousness' as the guiding principle for IC&T.

Community treatment orders and competence to consent

OBJECTIVE

The aim of this paper is to explore the relationship between civil commitment under a Community Treatment Order (CTO) and competence to consent to treatment.

METHOD

A purposive convenience sample of 10 service users under CTOs were interviewed using the MacArthur Competence Assessment Tool for Treatment (MacCAT-T). Ratings were compared with the ratings of 10 matched voluntary service users.

RESULTS

Seventy percent of the CTO sample were found to be incompetent according to the MacCAT-T, compared to 20% of the comparison group (p = 0.004). The proportion of the CTO sample found to be incompetent reduces to 50% if the subscale of appreciation is excluded (p = 0.004). Most people in each group would elect to continue their current treatment if given the choice.

CONCLUSION

Findings of this study suggest that mental health law reform introducing considerations of competence could lead to a substantially different group of people being subject to CTOs. If the CTO is carefully targeted and not used excessively, it is likely to be accorded qualified acceptance for most service users for whom it is used.

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.