Mental Health Review Tribunal Research Articles

Interface of Law and Psychiatric Problems in the Elderly.

Interface of Law and Psychiatric Problems in the Elderly.

Management of Psychiatric Disorders during the Perinatal Period.

Management of Psychiatric Disorders during the Perinatal Period.

Involuntary admission and treatment of mentally ill patients – the role and accountability of mental health review boards

No known cure exists for COVID-19, and medical practitioners are exhausted and at their wits’ end trying to find treatments that prevent patients from ending up in hospital or intensive care, or even dying. A variety of treatments tried by medical practitioners include standard registered medicine, investigational or so-called experimental, unapproved or preapproved medicines, emergency or compassionate-use authorised medicine and pre-market approved medicine. However, the medicines that can be accessed via each of these categories are at different stages of efficacy testing and knowledge about adverse effects, dosages and risks. To obtain ethical and legal informed consent, medical practitioners must deal with a lot of medical uncertainty, and care must be taken to ensure that the patient understands the difference in risks they may be willing to take depending on the medicine’s stage of development. Often additional information is required to obtain ethical consent as opposed to legal consent. A purely legal approach to informed consent, especially when dealing with the medical uncertainties of health emergencies and pandemics, may lead to patients’ consent lacking in enough substance to be truly considered legal and ethical. Informed consent as respect for autonomy in this sense requires more than the patient’s explicit agreement or compliance with a certain treatment proposal. This article explains the difference in consent content attached to each different stage of a medicine’s development, especially considering the additional difficulties posed by obtaining truly informed consent during a pandemic with uncertain characteristics, treatment and solutions.

Involuntary admission and treatment of mentally ill patients – the role and accountability of mental health review boards

The involuntary admission or treatment of a mentally ill individual is highly controversial, as it may be argued that such intervention infringes on individual autonomy and the right to choose a particular treatment. However, this argument must be balanced with the need to provide immediate healthcare services to a vulnerable person who cannot or will not make a choice in his or her own best interests at a particular time. A study carried out in Gauteng Province, South Africa (SA), highlighted the fact that the annual rate of involuntary admissions increased by almost double from 2007 to 2008. This could indicate that healthcare providers are not treating patients without their consent only when this is absolutely necessary. Alternatively, it could indicate that healthcare professionals are more aware of the provisions of the Mental Health Care Act and relevant national policy guidelines. Or it could suggest that more patients are presenting with mental illnesses or disorders that require their involuntary admission. It remains for strategies to be developed that change negative perceptions and inequities for individuals with mental illness. Above all, the strategies should be underpinned by inalienable respect for mentally ill individuals – a concept that was blatantly disregarded in the Life Esidimeni case. In this article, we highlight the functions of mental health review boards and their accountability where involuntary admissions are concerned, while emphasising the protections for mentally ill persons as a vulnerable population group, as set out in the SA Constitution.

Disentangling capacity and the First-tier Tribunal: bringing case law into clinical practice

SUMMARYIt has been common clinical practice for staff members to make an application to a mental health tribunal (the First-tier Tribunal (Mental Health) in England or the Mental Health Review Tribunal in Wales) on behalf of a patient detained in hospital for psychiatric treatment who may lack capacity to make that application, for example in dementia in-patient settings. Following a series of cases in the Upper Tribunal, such practice may not be appropriate and there is now a risk that the application will be struck out. It is important that clinicians are aware of developments in case law and therefore we provide guidance on how clinicians should approach applications to the tribunal and the assessments of capacity that may be required.

Rates of homicide and homicide associated with severe mental illness in NSW between 1993 and 2016.

To describe the characteristics of offenders found not guilty on the grounds of mental illness (NGMI) in New South Wales and rates of NGMI and other homicide verdicts. Demographic, legal and clinical data after referral to the NSW Mental Health Review Tribunal following an NGMI verdict for homicide matched with results from the National Homicide Monitoring Program. Between 1993 and 2016, a total of 2159 homicide offenders were dealt with by the NSW courts, including 169 (7.8%) who were found NGMI. Over this period, the rate of non-NGMI homicide convictions fell from 1.83 per 100,000 per annum to 0.65 per 100,000 per annum (Kendall's tau = -0.79, p ⩽ 0.001) while the rate of NGMI homicide fluctuated, with an average annual rate of about 0.1 per 100,000 per annum (Kendall's tau = 0.17, p = 0.23). There was no association between the annual rates of NGMI and non-NGMI homicides (Pearson r = -0.3, p = 0.16) but falling rate of non-NGMI homicide meant that the proportion of NGMI offences doubled from 5.5% in the first 12 years to 11% in the second 12 years. Nearly all (88.7%) of those found NGMI had a schizophrenia-related psychosis. However, there were high rates of psychiatric comorbidity including substance use disorder (60.7%) and a history of a prior head injury (41.1%). Most (83.4%) of the NGMI offenders had previous contact with mental health services, but only half of these had received treatment with antipsychotic medication. The fall in conviction for homicide offences in the last 24 years has not been matched by a reduction in NGMI homicide verdicts. More assertive treatment of emerging psychosis and comorbid substance use disorders, and improved continuity of care of chronic psychosis might prevent some homicides.

A Study into the Operation of the Queensland Mental Health Review Tribunal.

The Queensland Mental Health Review Tribunal makes difficult decisions regarding involuntary treatment of people with mental illness, applying strict legislative criteria against a backdrop of fundamental human rights considerations. This article reports on focus group research with lawyers and advocates for people with mental illness who appear before the Queensland Mental Health Review Tribunal. Participants expressed concerns regarding the manner in which decisions are made. For example, participants said that their clients' views on the side effects of treatment do not receive adequate consideration when involuntary treatment is authorised. We review these concerns in the light of applicable legal obligations, including those arising from human rights law. We conclude that if these concerns are accurate, some adjustments to the Queensland Mental Health Review Tribunal's decision-making processes are required.

Characteristics and re-offending outcomes of ‘limiting-term’ forensic patients found unfit to stand trial in New South Wales, Australia

There are little published data on the characteristics or outcomes of offenders found unfit to stand trial who receive a ‘qualified finding of guilt’ in a Special Hearing in New South Wales (NSW) and are detained for a ‘limiting term’ (LT) under the supervision of the NSW Mental Health Review Tribunal (MHRT). We examined NSW MHRT records linked to re-offending data, to report on the characteristics and outcomes of 69 LT patients in a cohort spanning two decades. The most common diagnoses were schizophrenia (54%) and intellectual disability (33%). Patients were detained on average for 4.2 years, which is slightly shorter than the average maximum term imposed. Of the 55 people for whom criminal record data were available, 9.1% were charged with an offence during the first year post-release and 60% overall were charged for at least one post-release offence during a follow-up period ranging from 4.7 to 11.1 years.

“Epistemic injustice” in the administration of mental health legislation

ABSTRACT The concept of “Epistemic Injustice” was used as a tool to interpret practices applied during the administration of Mental Health legislation by the Mental Health Tribunal Scotland. This highlighted instances of being wronged on several occasions in my capacity as a knower. Example contributory factors included the Tribunal structure and sub-optimal application of heuristics by panel members. Factors associated with an appeal process involving a “Designated Medical Practitioner” may offer some potential for improvement of routine application of administrative aspects of Mental Health legislation. Testimonial and hermeneutical issues should be considered.

Litigating in the Time of Coronavirus: Mental Health Tribunals’ Response to COVID-19

People with mental health and addiction issues are disproportionately affected by COVID-19 given the elevated risk of contracting COVID-19 within psychiatric facilities. The impact of the pandemic on this extraordinarily vulnerable population includes the potential for large outbreaks and multiple deaths. There is also the increased risk of serious psychological harm, exacerbating pre-existing mental health and substance use issues and in turn elevating their risk to themselves and/or others. In Part I of this paper, we analyze the procedural barriers to access to justice that arose as a result of the initial responses to COVID-19 by the Consent and Capacity Board [CCB] and the Ontario Review Board [ORB]. In Part V, we include a brief report on how appeals taken from both tribunals have been handled throughout COVID-19 to date. In Part VI, we analyze the discretionary and systemic barriers experienced by people with mental health and addiction issues appearing before the CCB and ORB during COVID-19. We critique recent mental health law cases during COVID-19 where deprivations of liberty interests and substantive equality have occurred, and access to justice for people with mental health and addictions issues has been denied, suspended or impaired. Through a legal analysis of how the pandemic has impacted this vulnerable community of litigants, we hope this research will result in further advocacy and education to prevent outbreaks and death, improve health care practices, and increase access to justice.

Meaningful participation or tokenism for individuals on community based compulsory treatment orders? Views and experiences of the mental health tribunal in Scotland

Background The Mental Health (Care and Treatment) (Scotland) Act 2003 was considered as world leading when it was enacted due to its rights-based approach. Changes were made to encourage participation and enhance autonomy, including the Mental Health Tribunal for Scotland (the tribunal) replacing the Sheriff Court in making decisions about compulsory treatment. Aims To explore the views of individuals on community based compulsory treatment orders (CCTOs) and independent advocates to assess whether participation in the tribunal is perceived as meaningful in practice. Method A qualitative research design was adopted and semi-structured interviews were undertaken with 19 people with experience of being on a CCTO and eight mental health advocates in Scotland. The data were thematically analysed and explored using ethics of care principles. Results Individuals faced barriers to participation, including mental distress, medication, and inaccessible communication, and both the tribunal process and outcome were important in shaping perceptions of fairness. A perceived unsuccessful outcome was found to undermine an ostensibly participatory process, and unequal power dynamics resulted in feelings of powerlessness. Conclusions The findings suggest that participation is often experienced as tokenistic in practice and that cultural change is required if people are to be meaningfully involved in tribunal proceedings.

The COVID-19 pandemic and the human rights of persons with mental and cognitive impairments subject to coercive powers in Australia

The purpose of this paper is to explore the effect of the COVID-19 pandemic on the human rights of persons with mental and cognitive impairments subject to coercive powers in Australia. It sets out the relevant human rights in the Convention on the Rights of Persons with Disabilities which have been engaged by the COVID-19 pandemic and the government's response to it. It examines the effect of emergency legislation on the relaxation of human rights safeguards in mental health laws, with a focus on mental health tribunals (although it is limited by a lack of published decisions and gaps in publicly available information). However, some of the issues created for persons with disabilities during the COVID-19 pandemic are evident in some decisions published by the New South Wales Guardianship Tribunal. The paper critically analyses two guardianship decisions UZX [2020] NSWCATGD 3 (3 April, 2020) and GZK [2020] NSWCATGD 5 (23 April, 2020) and some emergency South Australian legislation COVID-19 Emergency Response Act, 2020 (SA) Schedule 1 to demonstrate the ways in which the human rights of persons with mental and cognitive impairments can be more at risk than those of the general population, even when the general population is itself in “lockdown.”

The role of the Mental Health Tribunal in setting duration of compulsory treatment in Victoria

This article explores the role of the Mental Health Tribunal (the Tribunal) in setting duration of compulsory treatment orders under the Mental Health Act 2014 (Vic) (the MH Act) using qualitative analysis of data obtained by a Tribunal working group. It explores the extent to which there is a difference between the duration of treatment orders requested by treating teams and those made by the Tribunal, as well as the factors the Tribunal takes into account in setting a different duration. Results reveal the Tribunal made a treatment order of different (mostly shorter) duration in one out of five hearings. In these cases, two out of four factors identified by the working group were dominant influences: (1) ensuring congruence with the principles of the MH Act; and (2) information presented by one or more participants at the hearing. There were also high levels of attendance from either the patient, their support person or their legal representative when the Tribunal made a treatment order of different duration. This suggests participation by patients and support people at hearings provides the Tribunal with the information it needs to consider the principles under the MH Act meaningfully when exercising its discretion to determine the duration of compulsory treatment orders.

Procedural fairness in mental health review tribunals: the views of patient advocates

Mental health review tribunals face the difficult task of balancing an obligation to be efficient and accessible against the obligation to provide procedural fairness. We conducted focus groups with lawyers and advocates who support people with matters before the Queensland Mental Health Review Tribunal to ascertain their views on issues relating to procedural fairness in this particular forum. Consistent with similar studies in other jurisdictions, our participants expressed concerns about how well informed their clients were about the proceedings, the probative value of the evidence relied upon and the extent to which medical evidence is effectively challenged. We analyse the concerns raised by our participants in light of the limited Australian case law on procedural fairness in mental health review tribunals.

The frequency of references to decision-making capacity in reports to the NSW Mental Health Review Tribunal did not change after legislative reforms that promoted them

To assess the impact of a 2015 reform to the Mental Health Act 2007 (NSW) (MHA) that was interpreted as requiring a reference to decision-making capacity (DMC) in reports to the NSW Mental Health Review Tribunal (MHRT). A sample of reports to the MHRT were audited for references to the MHA's treatment criteria and DMC in periods before and after the reforms, and the frequency of references between the two periods was compared. The frequency of references to DMC did not change significantly after the reforms. (However, references to the 'least restriction' criterion increased markedly between the two periods). Despite legislative reforms and a supporting education campaign promoting the importance of consideration of DMC, references to DMC did not increase after the reforms.

Taking a reflexive turn: Non-adversarial justice and mental health review tribunals

Mental health law and practice has been instrumental in the development of non-adversarial justice, particularly through the development of therapeutic jurisprudence which emerged from insights gathered in the mental health context. The expanding articulation of non-adversarial perspectives beyond mental health is, in turn, reshaping critical debate about current mental health tribunal practice. Tribunals are also being encouraged to consider human rights perspectives. Human rights concerns and non-adversarial perspectives intersect with the long-standing debates in mental health tribunal practice about participation, representation and the role of the tribunal in the management of a dispute. They also raise new questions about the scope of the tribunal powers with respect to the oversight of medical treatment decisions and the provision of medical services. This article considers the intersection of human rights and non-adversarial justice perspectives in mental health review tribunals. It examines the common conceptual ground occupied by human rights and non-adversarial justice and considers four 'psycho-legal soft spots' in tribunal practice. These are the timing of tribunal review, the participation of the person in tribunal hearings, legal representation before tribunals and the scope of tribunal powers. This article argues for an integration of non-adversarial justice and human rights perspectives.

Contested Emotions: Adversarial Rituals in Non-Adversarial Justice Procedures

Non-adversarial justice theories and practices have developed in response to perceived failures of traditional western-style justice processes. However, we argue that while the operations of contemporary court processes might justly be criticised, the philosophical foundations of the common law can provide a framework for understanding nonadversarial justice procedures. Several key features of the adversarial system - lay participation in decision-making, confrontation and representation- are also at the core of many non-adversarial justice processes. This paper explores the ways that non-adversarial approaches, such as restorative justice conferences, indigenous courts and mental health tribunals, embody features of adversarialism in imaginative ways to create effective contemporary justice rituals.

The Mental Healthcare Act 2017 of India: A challenge and an opportunity.

The Mental Healthcare Act 2017 replaced the Mental Health Act 1987, subsequent to India's ratification of the United Nations Convention on the Rights of Persons with Disabilities in 2007. The Mental Healthcare Act (MHCA) 2017 upholds patient autonomy, dignity, rights and choices during mental healthcare and thus marks a bold step in India's mental health legislation. This new Law marks a major shift in the way mental healthcare is delivered, as it aims to protect and promote the rights of people during the delivery of mental healthcare. Within this Act, a capacitous individual cannot be coerced into receiving treatment for mental illness and inpatient admissions can be 'independent' or 'supported'. 'Supported admission' replaces involuntary admission from the previous legislation. State mental health authorities and mental health review boards will play a major role in the implementation of the new Act. The Mental Healthcare Act 2017 is aimed at bringing about radical transformation to mental healthcare in India.

Insight and capacity to consent to electroconvulsive therapy.

To critically examine a recent decision of the Victorian Supreme Court that found that the Mental Health Tribunal and the Victorian Civil and Administrative Tribunal erred in the application of the capacity test in the Mental Health Act 2014 (Vic) and that compulsory electroconvulsive therapy would infringe upon the human rights of two patients who had no insight into their chronic schizophrenia. After considering the concepts of insight and capacity to consent to treatment, the paper concludes that the decision in NJE and PBU v Mental Health Tribunal [2018] VSC 564 is problematic clinically.

Forensic patients, treating psychiatrist and the Mental Health Review Tribunal - An ethical question?

In inpatient forensic settings, a psychiatrist is expected to wear 'Two Hats', as a treating physician and as an expert to provide risk assessments and expert advice to the judicial authorities for leave and release decisions. Although dual roles have long been accepted as an inevitable part of independent forensic practice, there are additional ethical challenges for the treating psychiatrist to provide an expert opinion. This paper examines the specific ethical ambiguities for a treating psychiatrist at the interface of legal process related to leave and release decisions in the treatment of forensic patients. While respect for justice is the prevailing ethical paradigm for court-related forensic work, the medical paradigm should remain the key ethical framework for psychiatrists in treatment settings. Thus, psychiatrist should be aware of possible adverse consequences in acting as forensic experts for their patients. A conscientious adherence to clinical facts and awareness of the 'Two Hats' ethical pitfall can serve as important reference points in framing the psychiatric evidence in the decision-making process and safeguard treating psychiatrist's role.