The right to refuse treatment and the movement for mental health reform

The right to refuse treatment is the most controversial of the rights of mental patients, and usually polarizes the movement for mental health reform between providers of care and external activist reformers. A broad alliance supported earlier struggles for recognition of patients' rights, but most professionals oppose recognizing this most extreme right of treatment refusal. Professional opposition to treatment refusal is not based on a wide extent of actual refusal; rather it derives from a defense against challenges to professional and institutional autonomy, an opposition to legal interference, and a belief that the community as well as the patient must be protected. These three reasons for opposition are examined by reviewing studies of attitudes toward patients' rights, knowledge about patients' rights, and implementation of patients' rights. Finally, the implications of these studies for future directions in the movement for patients' rights are examined.     

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.     

Barriers to the operation of mental health legislation in Australian emergency departments: a qualitative analysis

This study aimed to describe the perceived barriers faced by emergency clinicians in utilising mental health legislation in Australian hospital emergency departments. A semi-structured interview methodology was used to assess what barriers emergency department doctors and nurses perceive in the operation of mental health legislation. Key findings from the interview data were drawn in accordance with the most commonly represented themes. A total of 36 interviews were conducted with 20 members of the Australasian College for Emergency Medicine and 16 members of the College for Emergency Nursing Australasia representing the various Australian jurisdictions. Most concerning to clinicians were the effects of access block and overcrowding on the appropriate use of mental health legislation, and the substandard medical care that mental health patients received as a result of long periods in the emergency department. Many respondents were concerned about the lack of applicability of mental health legislation to the emergency department environment, variation in legislation between States and Territories causing problems for clinicians working interstate, and a lack of knowledge and training in mental health legislation. Many felt that clarification of legislative issues around duty of care and intoxicated or violent patients was required. The authors conclude that access block has detrimental effects on emergency mental health care as it does in other areas of emergency medicine. Consideration should be given to uniform national mental health legislation to better serve the needs of people with mental health emergencies.     

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.     

The right of caregivers to access health information of relatives with mental illness

This article reviews the legal, ethical and practical challenges of complying with the Ontario Personal Health Information Protection Act (PHIPA) within the context of a Canadian mental health system that is overburdened and under resourced. The advent of deinstitutionalization has placed significantly increased responsibilities on the families of mentally ill individuals. While research evidences that involving family members in the care of their mentally ill relatives improves treatment outcomes, mental health practitioners constantly face the challenge of engaging family caregivers while also complying with privacy laws. The authors propose an Ontario Caregiver Recognition Act (OCRA) to formally recognize family caregivers as informal health information custodians based on the practice of other jurisdictions which incorporate the rights of family members actively engaged in providing care to their mentally ill relatives.