Mental Health Review Tribunal Decision-making: A Therapeutic Jurisprudence Lens

Abstract

This article examines a series of commonly identified indicia for when patients should be involuntarily detained on an inpatient or outpatient basis. It distinguishes between actual criteria and other, de facto and under-recognised indicia for such decision-making at a clinical and review level. It asks whether such reasoning is rigorous, fair and likely to have constructive therapeutic outcomes for patients. Adopting a therapeutic jurisprudence lens, the article addresses the use to be made of clinical files and descriptions of circumstances of patients' apprehension and prior treatment. It unpacks the notion of “insight”, examining its different facets and how it interacts with evidence of risks of non-compliance with medication and monitoring if legal controls over a patient's autonomy are relaxed. It addresses factors commonly taken into account by mental health review tribunals in evaluating patient credibility and capacity to make commitments to ongoing cooperation with pharmacotherapy and other forms of treatment. In doing so, it addresses dynamics at play both between clinicians and patients and within the confines of review hearings, exploring the extent to which indicia of reliability can be distilled and utilised for pro-therapeutic decision-making.