Mental Health Law Reform Research Articles

The CRPD and mental health law reform in Scotland

Scotland's mental health and capacity legislation and its implementation is underpinned by European Convention on Human Rights (ECHR) informed principles, and such legislation and its implementation has remained largely ECHR compliant. It is designed to protect individuals' autonomy from inappropriate and disproportionate nonconsensual intrusions but its scope is largely limited to this. However, since the legislation was enacted at the start of the twenty first century the UK subsequently ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) which requires the law and related practice to focus on giving effect to all the rights of persons with mental disabilities (people living with psychosocial, cognitive and intellectual disabilities) on an equal basis with others and to actively support such equality in rights enjoyment.The Terms of Reference of the independent Scottish Mental Health Law Review (2019–2022) included considering and making recommendations to align Scotland's mental health and capacity legislation with the CRPD. After engaging widely with stakeholders its recommendations sought to strengthen the voice of persons who use services and of those who care for them, reduce the need for non-consensual measures and secure rights to the help and support necessary to live a good life. In order to achieve this, it recommended, amongst other things, a refocusing on mental health and capacity law together with a Human Rights Enablement, Supported Decision Making and Autonomous Decision Making framework.

Whose experts? How federalism shaped psychiatry in the late Habsburg monarchy.

The late Habsburg period (1867-1918) created a constitutional dual monarchy of Austria-Hungary. This paper discusses the role of psychiatry in Cisleithania, both as a developing profession and as a distinct 'policy field'. Tension between psychiatry's academic professionalisation and the creation of public institutions as signature projects by individual crownlands created complex relationships between psychiatry and politics. In federalist Cisleithania, psychiatrists became very 'political': whether employed by the state or a crownland influenced their position on policy, despite claiming that their expert knowledge was 'scientific' and 'objective'. The conflicts between asylum-based and academic psychiatrists mirrored those between the central state and the crownlands. This led to intractable delays in mental health law reform, eventually resolved by Imperial decree in 1916.

Restrictive measure reduction in psychiatric wards: A snapshot of China's mental health law reform under the new era of disability rights convention

This article examines the reasons behind the limited impact of China's mental health law reform in 2013 on reducing the use of restrictive measures in mental health services, focusing on the analysis of case law from Chinese courts. The analysis of collected rulings from the official database indicates that Chinese courts have adopted a lenient approach in scrutinizing the application of restrictive measures. Furthermore, the interpretation and application of the provisions related to restrictive measures in the law have led to service providers being held liable in numerous cases for not implementing such measures. Based on these findings, the article offers policy recommendations.

The Abolition or Reform of Mental Health Law: How Should the Law Recognise and Respond to the Vulnerability of Persons with Mental Impairment?

Vulnerability theory challenges the assumption that human beings are abstract and invulnerable liberal subjects and insists that any decent and just society must create law that takes into account and tries to ameliorate human vulnerability. In this article, I explore how vulnerability might apply in the context of the debate about the future of mental health law that has arisen since the entry into force of the Convention on the Rights of Persons with Disabilities (CRPD) in 2008; namely, whether mental health law should be abolished or reformed. In doing so, this article addresses three key issues: (i) how to conceptualise vulnerability; (ii) whether persons with mental impairments really are vulnerable and in what ways; and (iii) how the law should respond to the vulnerability of persons with mental impairments post-CRPD. It describes and compares three different approaches with respect to how well they address vulnerability: the Abolition with Support, Mental Capacity with Support, and the Support Except Where There is Harm Models. It argues that the law should try to accurately capture and ameliorate the vulnerability of those who are subject to it as much as possible. It also argues that from a vulnerability perspective, the reform of mental health law may be better than its abolition and that decreasing the vulnerability of persons with mental impairment requires systemic reform, resources, and cultural change.

Querying the Call to Introduce Mental Capacity Testing to Mental Health Law: Does the Doctrine of Necessity Provide an Alternative?

Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. However, a key criterion for compulsory mental health treatment under typical mental health legislation is a psychiatric diagnosis (in conjunction with risk of harm and other criteria). Hence, for people with mental health disabilities, rights to liberty and consent in healthcare are held to a different standard compared to other citizens. A prominent law reform option being explored by some governments and commentators for achieving non-discrimination is to replace the diagnostic criterion for triggering involuntary intervention with an assessment of mental capacity. After all, every citizen is subject to restrictions on autonomy where they are deemed to lack mental capacity, such as where concussion necessitates emergency service. However, the use of mental capacity “testing” is seen by diverse commentators as wanting in key respects. A prominent criticism comes from the United Nations Committee on the Rights of Persons with Disabilities, which considers mental capacity assessments a form of disability-based discrimination. This article queries the call to replace the diagnostic criterion in mental health law with an assessment of mental capacity in the light of jurisprudence on equality and non-discrimination in international human rights law. Instead, we examine the doctrine of necessity as an area of law, which might help identify specific thresholds for overriding autonomy in emergency circumstances that can be codified in a non-discriminatory way. We also consider the need for deliberative law reform processes to identify such measures, and we suggest interim, short-term measures for creating a “supported decision-making regime” in the mental health context. The article focuses in particular on the Australian context of mental health law reform, though the analysis can be generalised to international trends in mental health law.

The concept of capacity in Australian mental health law reform: Going in the wrong direction?

The six Australian states and two territories each have legislation that enables the involuntary detention and treatment of individuals diagnosed with mental illness who are considered in need of treatment and where there is evidence of a risk of harm to self or others. A number of governments have undertaken or are currently undertaking reviews of mental health laws in light of the Australian Government's ratification of the Convention on the Rights of Persons with Disabilities. While United Nations bodies have made it clear that laws which enable the detention of and substituted decision-making for persons with disabilities should be abolished, debates in Australia about the reform of mental health legislation have largely focused on Article 12 of the CRPD and what is meant by the right of persons with disabilities to enjoy legal capacity on an equal basis with others. It is argued that a more holistic view of the CRPD rather than the current narrow focus on Article 12 would best serve the needs of persons with mental impairments.

The capacity to refuse psychiatric treatment: a guide to the law for clinicians and tribunal members.

In some Australian states clinicians and mental health tribunal members are already required to assess a person's decision-making capacity before involuntary treatment can be applied. Professionals in other jurisdictions will likely soon be required to do the same as mental health law reform in most Australian jurisdictions makes the assessment of decision-making capacity a central component of the process of providing unconsented psychiatric treatment. We provide a guide to the legal issues around the capacity to refuse psychiatric treatment to assist with this task. We review the legislation in the four Australian states most advanced in the mental health law reform process and use examples from clinical practice and the common law to describe how decision-making capacity should be assessed by these statutory standards. Clinicians and tribunal members will primarily be required to judge whether a person with mental illness can understand the information relevant to the treatment decision and whether he or she can use or weigh that information to come to a decision. A person with a mental illness is presumed to have capacity, but that presumption can be rebutted. Capacity is specific to the decision at hand and cannot be determined by the nature of the decision made. The information provided should assist clinicians and tribunal members to make determinations of decision-making capacity around treatment refusal in the context of mental illness.

Mental health disabilities and human rights protections.

Around the world, reports regularly expose persistent and systemic human rights violations of patients in mental health services and facilities, and of those who are unable to access needed supports. A number of factors contribute - political will; the range and quality of services available; public and professional attitudes to mental health; stigma; health professionals' training and expertise; and available resources. This paper examines one of the main determinants, the legal framework. This sets the parameters for mental health policies and services and for applicable human rights norms and standards that can be realized in practice. We provide an overview of international human rights instruments in relation to mental health disabilities, and of the major human rights violations in this area. Key implications for mental health law reform are drawn with a particular focus on discrimination and coercive interventions. The major challenges posed by the UN Convention on the Rights of Persons with Disabilities (2006) are examined. Current mental health laws, to greater or lesser degrees, fail to meet the newly required standards. We discuss reforms based on 'generic law' and 'legal capacity' principles that seek to meet those standards. We outline some emergent and promising examples of reform. The role of civil society and the importance of the standing of those with mental health disabilities in this process is noted.

Foreword

In the third week of June, the Law Society and the Royal College of Psychiatrists jointly hosted a very well attended two-day conference on reform of mental health law (day one) and the law relating to mental incapacity (day two), entitled ‘Make up your mind’. What emerged both from the presentations and from questions and comments ‘from the floor’, was widespread and strong opposition to many of the mental health legislative reform proposals set out in the White Paper of December 2000, and equally widespread and strong support for long-awaited legislation in the field of mental incapacity. The following week the Draft Mental Health Bill was published.<br />However a Mental Incapacity Bill would still appear to be some way off.

A new legislative framework for mental capacity and mental health legislation in Northern Ireland: an analysis of the current proposals

<p>When the Bamford Review of Mental Health and Learning Disability completed its work in the autumn of 2007, it drew to a close an extensive consultation and analysis of mental health and learning disability services and the law in Northern Ireland. Its last report on A Comprehensive Legislative Framework made<br />a compelling case for a major overhaul of the law that the Review team itself described as ‘quite radical’. The Review identified the case for reform in the need to ensure that mental health law conforms to the requirements of human rights law, reflects changes to professional practice, reflects the needs of service<br />users and their carers, and keeps pace with reform elsewhere in the UK. Alone of all the jurisdictions in the UK, Northern Ireland has been operating largely in a legislative vacuum in relation to mental capacity law. The Review’s proposals for reform therefore extended to reform of mental health law and the introduction of mental capacity law.</p><p>In the autumn of 2008 the NI Executive published its response to the Bamford Review indicating that it intended to develop the law sequentially: reform of the Mental Health (NI) Order 1986 by 2011 followed by the introduction of mental capacity law in 2014. Responses to the Executive’s consultation resulted in<br />the Department of Health Social Services and Public Safety (DHSSPS) revising its approach and it signalled its intention to bring forward mental capacity and mental health legislation together. This reated a unique opportunity in Northern Ireland for fusion of incapacity and mental health legislation. A further consultation paper was issued in January 2009, setting out the key approaches to the content<br />of two bills. However as a result of the consultation, the Health Minister Michael McGimpsey announced in September 2009 that there would be a single bill with an overall principle of autonomy. His press statement noted: “ A strong body of opinion, particularly from professional groups and lead voluntary organisations, which considered that separate mental health legislation continues to be stigmatising and recommended that mental capacity and mental health provisions should instead be encompassed into a single piece of legislation”</p><p>This short paper provides an overview of the current direction of travel on law reform in Northern Ireland. It comments on the policy climate and arguments for a fusion of mental capacity and mental health legislation. It also highlights some of the key policy issues that will need to be further explored as the Department develops its law reform proposals and concludes with some hopes and fears for the new legislation.</p>

Some thoughts on the proposed Mental Health Act

<p>Our thoughts on the proposed Mental Health Act are a product of us working together for a considerable period of time and feeling that we have something to offer jointly by bringing together our legal and psychiatric perspectives.</p><p>The main thrust of our thoughts is that we have a fundamental problem with the reform of mental health law as proposed. We are beginning to question whether there is any need for a mental health act at all. In any case, legislation which interferes with the freedoms of others should, we believe, be predicated on the libertarian model as espoused by John Stuart Mill.</p>

Scottish Parliament acts on Mental Health Law Reform

The Mental Health (Care and Treatment) (Scotland) Act was passed by the Scottish Parliament on 20 March 2003 and received Royal Assent on 25 April 2003. The largest piece of legislation to pass through the Scottish Parliament, the Act represents a major reform of mental health legislation in Scotland. This article offers a short introduction and will serve as yet another example of how devolution is leading to major divergences in welfare law and practice north and south of the border.

Preface

<p align="left">The possibility of a single statue to replace our current dual approach must now be the most fundamental issue confronting mental health and mental capacity law reform. I was therefore delighted to be offered the opportunity to co-edit this Special Issue.</p>

Reflections from Scotland: Difficult Decisions Ahead

<p align="LEFT">This article looks at recent developments in Scottish mental health and incapacity law. Whilst Scotland clearly leads the way in mental health and social care law reform in the UK, its incapacity legislation is under strain. Scotland is struggling with the implications of <em>HL v UK</em> which, because of problems with the Adults with Incapacity (Scotland) Act 2000, appear even more complex than in England and Wales. Scotland is consulting on new laws to protect vulnerable adults, but lags behind England and Wales in its use of appropriate adults when people with mental disorders are interviewed by the police.</p>

Mental health law reform without the risk

Mental health law reform without the risk

Short, Temporary Detentions Make Commitment More Likely

Back to table of contents Previous article Next article Legal NewsFull AccessShort, Temporary Detentions Make Commitment More LikelyChristopher WhiteChristopher WhiteSearch for more papers by this authorPublished Online:17 Aug 2012https://doi.org/10.1176/pn.47.16.psychnews_47_16_8-aAbstractResearch has shown that temporary detention orders (TDOs) that are 48 hours or shorter are sometimes inadequate to evaluate patients fully after they have suffered a mental health crisis. This can lead to involuntary hospital commitments that can increase stigma and trauma. Tanya Wanchek, Ph.D., J.D., with the Weldon Cooper Center for Public Service, and Richard Bonnie, LL.B., an attorney with the School of Law, both professors at the University of Virginia, looked at the length of TDOs and correlated that information with the percentage of mental health commitments and dismissals.The researchers expected a correlation between longer TDO length and an increase in dismissals. Because states have different TDO periods, they used Virginia as an example of states with shorter TDO periods: while most states require a commitment hearing within four to eight days, and three states allow up to 30, Virginia is one of the few states that has a 48 hour detention period. However, this period can be extended to up to five days because of weekends and holidays.Researchers gathered data on Medicaid hospitalization claims and compared those data with the Virginia Supreme Court’s Court Management Systems to track commitment hearing outcomes in 2008. The data set (n=500) included 356 white individuals (71 percent), 130 black individuals (26 percent), and 14 individuals (3 percent) of other ethnicities. Sixty-two percent of the subjects were female; 31 percent were diagnosed with a schizophrenia disorder, and 46 percent were diagnosed with affective psychosis.The study results showed that shorter TDO periods (less than 48 hours) had a direct relationship to higher numbers of involuntary commitments, while longer TDO periods had a direct relationship related to higher numbers of dismissals and voluntary commitments.“The benefits of longer TDO length are that it allows evaluators more time to conduct a thorough evaluation, provides an opportunity to individuals in crisis to stabilize, and increases the likelihood that the subsequent hospitalizations will be voluntary,” Wanchek told Psychiatric News. “These benefits have prompted the Virginia Tech Review Committee, the Office of Inspector General, and the Commission on Mental Health Law Reform to recommend longer TDO periods [in Virginia legislation].”Researchers cited the investigation of the Virginia Tech shooter in 2007 as a reason to extend the detention period. The inspector general for mental health, mental retardation, and substance abuse services said the short period from detention to the commitment hearing “makes it very difficult, if not impossible, to collect and consider additional collateral information about the individual. This also makes it difficult to complete the physical exam and psychiatric evaluation, assessment, and treatment plan before the commitment hearing is held.”Wanchek and her colleagues also noted some limitations of the report. Bias about the individual’s health can influence the length of the TDO and hospitalization; for example, researchers mentioned that clinicians sometimes fast-track patients into involuntary commitment because they are familiar with the patient.However, clinicians may not have control over TDO hearings either. For example, an informal study performed by Virginia’s Commission on the Mental Health Law Reform found that some jurisdictions schedule TDO hearings every other day; therefore, when an individual is detained, his or her hearing will take place on the next scheduled hearing day rather than being scheduled by the clinician. This could mean that the patient’s health is not the primary factor in determining TDO length.The researchers noted that even though this study identifies the relationship between TDO periods and results of commitment hearings and hospitalizations, more research is needed to determine the costs of increased TDO periods. An abstract of “Use of Longer Periods of Temporary Detention to Reduce Mental Health Civil Commitments” is posted at http://ps.psychiatryonline.org/article.aspx?articleid=1151384. ISSUES NewArchived

Navigating the “Unchartered” Waters of Victorian Mental Health Law Reform

With the Charter of Human Rights and Responsibilities Act 2006 (Vic) due for Parliamentary review by 1 October 2011, it is timely to reflect on its impact on Victorian mental health law between 2008 and 2011. From controversial origins, the Charter has been both praised and criticised. Based on the International Covenant for Civil and Political Rights, it protects 20 basic rights. Critics argue that the Charter is politically driven and is largely impotent because it creates no new remedies. Proponents see it as an important and symbolic first step in the eventual enactment of a Constitutional Bill of Rights. Nevertheless, in its current form, it has been used in a number of cases to promote the human rights of patients receiving involuntary treatment under the Mental Health Act 1986 (Vic) and has therefore created important jurisprudential commentary on the interplay between mental health and human rights law in Victoria. The Charter has also provided a much needed impetus to comprehensively review Victoria's out-dated Mental Health Act 1986 (Vic), with the aim of making it compatible with the rights enunciated in the Charter. In November 2010, Victorians elected a new Coalition Government which is less supportive of the Charter. As this article will demonstrate, while the future of the Charter may be uncertain, its legacy to date is not.

DETENTION AND TREATMENT DOWN UNDER: HUMAN RIGHTS AND MENTAL HEALTH LAWS IN AUSTRALIA AND NEW ZEALAND

Mental health law reform in recent decades has drawn on the international human rights movement. The entering into force of the Convention on the Rights of Persons with Disabilities (CRPD) on May 3 2008 has been hailed by some as signalling a new era in relation to how domestic mental health laws should be reformed. Both Australia and New Zealand have ratified the CRPD and Australia has acceded to its Optional Protocol. New Zealand and the Australian Capital Territory and Victoria have statutory bills of rights which have an interpretive effect, but are unable to render other statutes invalid. Drawing on the results of interviews conducted with fifty-two representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries and outlines what changes, if any, may be brought to domestic legislation in light of the Convention.

Mental Health Care In America: Not Yet Good Enough

From the Editor-In-Chief Health AffairsVol. 28, No. 3: Mental Health Care: Better, Not Best Mental Health Care In America: Not Yet Good EnoughSusan DentzerPUBLISHED:May/June 2009Free Accesshttps://doi.org/10.1377/hlthaff.28.3.635AboutSectionsView PDFPermissions ShareShare onFacebookTwitterLinked InRedditEmail ToolsAdd to favoritesDownload CitationsTrack CitationsPermissionsDownload Exhibits TOPICSMental healthPharmaceuticalsSocial Security Disability Insurance R ichard frank and Sherry Glied chose the title Better But Not Well for their seminal 2006 work on U.S. mental health care since 1950. Better But Not Good Enough would be an apt title for this thematic issue of Health Affairs, published with the support of the MacArthur Foundation. The United States has clearly crossed a watershed in the past year, with passage of federal parity legislation finally burying the nonscientific distinction between “mental” and “physical” illness. But to say there’s been progress in understanding these brain disorders—not to mention in the care provided those suffering from them—doesn’t negate the fact that there’s still much farther to go. Consider how the science of mental illness has evolved since Health Affairs ’ first MacArthur-funded section on the subject in 1990. Among myriad discoveries made since then is that roughly 80 percent of the genes expressed elsewhere in the human body are also expressed in the brain. That helps explain the fact that the chemical compound serotonin has wildly different bodily functions—serving, for example, as a brain neurotransmitter as well as a key substance in the blood, liver, and gastrointestinal tract. Yet while we know that conditions like depression and anxiety are linked to disruptions in the brain’s serotonin pathways, we still have no firm understanding of how selective serotonin reuptake inhibitors (SSRIs) like Prozac really work. Needless to say, any interaction between brain serotonin and serotonin in the stomach remains beyond our comprehension. So in the meantime, our scientific understanding lacking, we medicate the depressed with SSRIs and other drugs and give antipsychotics to those with schizophrenia. We’re gratified when the drugs work for many patients, as well they do. But as the papers in this volume make clear, we are also flummoxed in sorting out science from pseudoscience, or even putting to use the evidence we have before we get even better data. This is true throughout health care, but the anomalies seem truly devastating in mental health care.Take the mounting evidence of the useful role of prevention and early intervention—probably employed even less in mental health care than elsewhere. In this issue’s Report from the Field, writer Steve Bogira quotes Chicago mental health clinic head Dr. Carl Bell as saying he feels as if he’s in the “iron lung business,” providing care that is increasingly out of step with science. This lag is compounded by the fact that mental health treatment, especially for lower-income populations, is still a low-priority societal activity—often brought into focus only amid terrible tragedy. We now know that the April 2007 shootings at Virginia Tech were preceded two years earlier by an episode in which the shooter, Seung-Hui Cho, was ordered by a Virginia special justice to seek outpatient mental health treatment that he never got. It’s therefore dismaying to read of one subsequent finding by the state’s mental health law reform commission—that about half of those who were evaluated for emergency services by the state’s community service agencies were people much like Cho, who weren’t currently in treatment.Clearly, well beyond implementation of parity laws, much remains to be done to improve both treatment and quality of life for the mentally ill. Robert Drake and colleagues focus on Social Security Disability Insurance, since more than a quarter of adults on SSDI have a primary psychiatric impairment. Most want to work but are limited to no more than twenty hours a week—when the evidence suggests that “supported employment” would both save money and help them do better.What’s more, many proposals now popping up as health reform initiatives could improve mental health treatment immeasurably. Comparative effectiveness research has already established that the older generic antipsychotics work as well as a class as the newer, branded, more expensive atypical ones. And stepped-up quality improvement efforts, write Audrey Burnam and colleagues, could increase the effectiveness of mental health treatments provided to veterans. Come to think of it, how about aiming for this title for Health Affairs’ next theme issue on mental health care: Why Not the Best? Loading Comments... Please enable JavaScript to view the comments powered by Disqus. DetailsExhibitsReferencesRelated Article MetricsCitations: Crossref 2 History Published online 1 May 2009 InformationCopyright 2009 by Project HOPE - The People-to-People Health Foundation, Inc.PDF downloadCited ByEmployee Assistance Programs: Evidence and Current Trends19 November 2012Theory in practice: Helping providers address depression in diabetes care*Journal of Continuing Education in the Health Professions, Vol. 30, No. 3

A comparison of mental health legislation from diverse Commonwealth jurisdictions

IntroductionIn the regulation of involuntary treatment, a balance must be found between duties of care and protection and the right to self-determination. Despite its shared common roots, the mental health legislation of Commonwealth countries approaches this balance in different ways. When reform is planned, lessons can be learned from the experiences of other countries. MethodCriteria for involuntary treatment used in a sample of 32 Commonwealth Mental Health Acts were compared using a framework developed from standards derived from the Universal Declaration of Human Rights. Reasons for non-compliance were considered and examples of good practice were noted. Changes in the criteria used over time and across areas with differing levels of economic development were analysed. Results1. Widespread deviation from standards was demonstrated, suggesting that some current legislation may be inadequate for the protection of the human rights of people with mental disorders. 2. Current trends in Commonwealth mental health law reform include a move towards broad diagnostic criteria, use of capacity and treatability tests, treatment in the interests of health rather than safety, and regular reviews of treatment orders. Nevertheless, there are some striking exceptions. DiscussionExplanations for deviation from the standards include differing value perspectives underpinning approaches to balancing conflicting principles, failure to keep pace with changing attitudes to mental disorder, and variations in the resources available for providing treatment and undertaking law reform. Current good practice provides examples of ways of dealing with some of these difficulties.