Mortgages, seniors and the common law contractual doctrine of mental incapacity in Australia

Seniors in Australia are being called upon to mortgage their most precious economic asset, the family home. They may be asked to guarantee the liabilities of other family members by providing a mortgage-based guarantee or they may decide to enter into a reverse mortgage to supplement financially their savings and pensions. As the family home is the single most valuable asset for most older Australians, the creation of any obligations in regard to it ought to be undertaken with care and vigilance. While seniors are free to create mortgages, they may lack the capacity to understand the legal ramifications of these complex transactions or be unable to protect their interests when entering into them. It is not suggested that older Australians necessarily suffer a lack of contractual capacity. Many seniors are more than able to take care of their interests and assets. However, some seniors do suffer cognitive impairment which adversely affects their capacity to act in their best interests and to navigate the complexities of contractual relations. In contract and mortgage law, this raises the issue of mental incapacity.For centuries, the common law has recognized not only that mentally incapacitated people exist, but that they may enter into contracts such as mortgages and may later wish to have the mortgage set aside. The present formulation of the contractual doctrine of mental incapacity is the product of 19th century jurisprudence in which the courts framed the doctrine to accommodate commercial dealing rather than the interests of persons who lacked the necessary mental capacity. Accordingly, the doctrine has been very difficult to rely on successfully when challenging mortgages made by persons lacking capacity. Therefore, Australian litigators and courts alike have sought to deal with mental incapacity issues in the contractual context by using and modifying other doctrines (such as non est factum, undue influence and unconscionable dealing) in which the issue of capacity may be incorporated, but where mental incapacity need not be the sole or primary focus. While this had led to greater success for mortgagors, this has been at the expense of the common law doctrine. The article concludes by offering some suggestions as to how the doctrine may be modernized and mental capacity dealt with in a way both to empower competent seniors and protect those vulnerable seniors suffering cognitive impairment.     

Psychological models of mental disorder, human rights, and compulsory mental health care in the community

Recent amendments to the 1983 Mental Health Act in the UK (Mental Health Act 2007) include the controversial provision for: “supervised treatment in the community for suitable patients following an initial period of detention and treatment in hospital”. This provision is widespread, and more formal, in other English-speaking jurisdictions. Reviews of the international literature, human rights considerations and the perspective of psychological approaches to mental health care suggest that proposed ‘supervised community treatment orders’ are valuable, lawful, and compatible with the European Convention on Human Rights if certain specific conditions are met. Provisions for ‘supervised community treatment orders’ in the UK should be supported, but with the provisos that: the powers of the Mental Health Act are limited as in Scotland, to persons whose “ability to make decisions about the provision of [care] is significantly impaired”, that each order is time-limited and subject to review by a properly constituted Tribunal, and that the use of such orders should represent a benefit to people in terms of more appropriate treatment, or be a least restrictive alternative, or better preserve the person's private and family life.     

Planning for incapacity by people with bipolar disorder under the Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a variety of legal mechanisms for people to plan for periods of incapacity for decisions relating to personal care, medical treatment, and financial matters. Little research has however been done to determine the degree to which these are actually implemented, and the approach to such advance planning by service users and professionals. This paper looks at the use of advance planning by people with bipolar disorder, using qualitative and quantitative surveys both of people with bipolar disorder and psychiatrists. The study finds that the mechanisms are under-used in this group, despite official policy in support of them, largely because of a lack of knowledge about them among service users, and there is considerable confusion among service users and professionals alike as to how the mechanisms operate. Recording is at best inconsistent, raising questions as to whether the mechanisms will be followed.     

Explanations for violent behaviour—An interview study among forensic in-patients

The alleged relation between mental disorder and violent criminal behaviour has been investigated mainly from an epidemiological perspective. Population-based registry studies have shown that violence occurs more frequently among people with mental disorders, like schizophrenia and bipolar disorder, compared with control subjects, but that the increased risk is largely mediated by drug abuse and socio-economic deprivation. The aim of this study was to explore how patients who have committed violent or sexual crimes and have been sentenced to forensic psychiatric care by a Swedish court of law construed their criminal actions in terms of causes. Forty-six participants from six different Swedish forensic psychiatric clinics were included in the study. A semi-structured interview study was conducted and the data was analysed using a thematic analysis. A large group of the participants did not believe that the mental disorder played any role in the criminal events. Contributing causes that were mentioned were drug abuse and social factors.     

精神病司法鉴定若干法律问题研究

精神病鉴定因涉及精神病医学、心理学、法学以及社会学等诸多领域的专门知识而呈现出复杂性。与其他医学学科相比,精神病医学的发展相对缓慢,在一定程度上制约了精神病鉴定制度的发展,甚至影响了鉴定程序启动的正常展开。精神病鉴定制度的不完善及其程序启动的失当又导致实践中出现精神病鉴定的乱象。从司法鉴定实践中可以发现,精神病鉴定本身的可靠程度以及刑事责任能力的评定与鉴定启动、鉴定结果选择等具有内在的互动性。尽管精神病鉴定制度无力解决精神病医学不发达的根本性问题,但科学的精神病鉴定制度对精神病鉴定技术、鉴定能力与鉴定质量的提高有较大的助益。     

头部创伤后精神障碍的司法鉴定(附34例分析)

目的研究头部创伤和精神障碍的关系及其伤情评定等相关问题。方法34例头部创伤1年后出现精神障碍的鉴定案例，分为车祸组与殴伤组，对两组有关数据进行卡方检验。结果车祸组出现明显昏迷者及具有明确神经系统体征者显著多于殴伤组，殴伤者出现痴呆样表现者多于车祸组，两组出现精神病性症状、社会功能严重缺陷或丧失的例数没有显著差异。结论头部创伤严重程度和精神障碍的严重程度及后果不成比例，在伤情评定时对精神功能缺陷及丧失这一重要因素应充分加以考虑。     

Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

Sociodemographic,Clinical, and Therapeutic Aspects of Penitentiary Psychiatric Consultation: Toward Integration Into the General Mental Health Services

The characteristics of mental disorders, as well as deficiencies in their treatment, must be properly defined. This was a prospective, longitudinal, observational study, in which all men referred to a penitentiary psychiatric consultation of three penitentiary centers in Spain were invited to participate. Those who consented to participation (1328) were interviewed at the baseline timepoint and at intervals for up to 3 years. The presence of mental disorders was high: 68.2% had a cluster B personality disorder, 14% had an affective and/or anxiety disorders, 13% had schizophrenia, and over 80% had a dual disorder. Polypharmacy was the norm. Moreover, the health care received in prison did not match that provided in the community in terms of quantity and quality. These results should help to facilitate the design of mental healthcare provision for prisoners, focusing on both the most frequent patient profiles and equality of care.     

头部外伤后精神损伤的法医学鉴定(附204例分析)

目的　研究颅脑外伤所致精神障碍的损伤程度评定标准。方法　通过对２０４ 例由司法部门委托进行法医学精神损伤程度鉴定实践,重点对颅脑外伤所致神经症的损伤程度评定标准及其他相关问题进行了讨论。结果　２０４ 例中,男、女比例无差异。年龄组以２１ ～３０ 岁（６３ 例） 、３１～４０ 岁（５３ 例） 居多。表明上述年龄组的社会活动多,受到伤害的可能性大;职业以工人、农民为多,文化程度相对较低。损伤原因以伤害（１０７ 例） 、交通事故（４９ 例） 为多。损伤与精神障碍间隔时间,半年以内１５２ 例,半年至１ 年为２３ 例,表明鉴定时间选择在１ 年内为佳。精神障碍的种类与性质：器质性精神障碍１０８ 例,占５２－８％ ;功能性精神障碍８４ 例,占４１－４％ ,其中外伤后神经症（ 含癔症３５ 例）６６ 例,占３２－３ ％ 。社会功能评定：无社会功能受损７７ 例,轻度受损４１ 例,明显受损８６ 例。神经系统检查：２０４ 例中有一过性神经体征３８ 例,有明显阳性体征６２ 例。损伤与精神障碍的关系：直接因果关系１０４ 例、间接因果关系６１ 例;条件相关３４ 例、无相关５ 例。损伤程度评定结果：重伤８５ 例,轻伤６７ 例,伤病关系评定４７ 例。结论　通过对２０４ 例头部外伤     

Screening for mental disorder using the UK national offender assessment system

Probation officers have large caseloads with high levels of psychiatric morbidity but receive minimal training in recognising/managing mental health problems. In the UK, there is no national screening procedure for mental illness among offenders that is considered effective. This study’s aim was to develop a screening system for mental/personality disorders using the Offender Assessment System. Seven screens for mental disorder were developed using items from assessments on 574 prisoners: alcohol misuse, drug dependence, antisocial personality disorder, psychopathy, learning difficulties, psychosis and severe mood disturbance. Internal validation showed that the screens performed well across accuracy estimates. Prevalence of mental disorders identified with the screens in test and validation samples was similar. However, the psychopathy and severe mood disturbance screens may be more effective in screening for true negatives. The screens are an economical method for prioritising mental health needs of the UK prison and probation population using routinely collected data.     

The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) took effect in 2008. This paper discusses a number of flashpoints where the CRPD will require real and significant reconsideration of English mental health and mental capacity law. The CRPD introduces a new paradigm into international disability law, relying on the social model of disability. While that is no doubt a good thing, there is as yet no clear sense as to how that is to be implemented. After providing an introduction to the Convention, the paper considers four specific areas: mental capacity law (focussing on the provisions of the Mental Capacity Act 2005), psychiatric treatment without consent, civil detention of people with mental disabilities, and mental disability in the criminal system (fitness to plead, insanity and diminished responsibility).     

Justice and equality in mental health law: the European experience

This is the text of a lecture delivered at the World Conference of the International Academy of Law and Mental Health in Sydney in September 2003 on the occasion of the award to the author of the Prix Philippe Pinel. Its theme is the potential of the European Convention on Human Rights to secure the human rights of people with mental disorders and disabilities, viewed in the context of the legislation on mental health and mental incapacity in England and Wales. Its conclusion is that the Convention is better at protecting them from unwanted or unnecessary treatment and care than it is at securing for them equal access to the treatment and care they want or need. The lecture has been updated to reflect developments in the United Kingdom since 2003.     

Family involvement, independence, and patient autonomy in practice

The legal debate about patient autonomy focuses mainly on mental capacity and provision of information. The influence of the family on the decisions of the competent adult patient has scarcely been discussed in English medical law. Dominated by the bioethical principle of individual autonomy, the law concentrates on the patient and takes an exclusionary stand regarding relatives. Hence, the aim of this article is to examine the attitude of English law towards the involvement of relatives when patients make decisions, and to investigate the views and experiences of patients and their relatives in reality. To fulfil this aim, a qualitative study was carried out in six NHS trusts in England. The study was based on in-depth interviews conducted with patients who suffer from long-term illnesses, and their relatives. In the interviews, patients stated that the relatives assisted them in making informed decisions about treatment. Patients said that relatives had an influence on the decision-making process and on the decision itself, but also reported that ultimately relatives left the final decision to the patient. The findings reflect a relational approach to patient autonomy. When making decisions about treatment, patients needed to know that their relatives would support them no matter what they decided. However, exceptional cases which demonstrated substantial familial influence suggest that the law should secure the patient's interest in making their own decisions. In light of these findings, it is argued that the current exclusionary attitude expressed in English medical law towards the role of relatives should be changed.     

City of Revere v. Massachusetts General Hospital: government responsibility for an arrestee's medical care

City of Revere v. Massachusetts General Hospital presented the United States Supreme Court with its first opportunity to consider whether a state or municipality has a constitutional duty to pay for medical treatment received by an individual in police custody. The Supreme Judicial Court of Massachusetts had held that the city had an eighth amendment duty to pay for an arrestee's treatment. The U.S. Supreme Court reversed, observing that eighth amendment rights and duties are not implicated prior to conviction and that fourteenth amendment due process concerns were met once the arrestee received adequate medical care. No obligation to pay arises, the Court held, absent a specific state law provision requiring such payment. Because arrestees are subject to physical restraints similar to those imposed on convicted prisoners, this Case Comment argues that courts undertaking to determine the scope of a state's duty to provide treatment to arrestees should apply a due process standard which draws upon eighth amendment analysis. The Comment concludes that under such an eighth amendment equivalence approach, no duty to pay arises because the state's failure to pay the health care provider does not reflect "deliberate indifference" towards the recipient of the treatment.     

Psychiatric care or social defense?: The origins of a controversy over the responsibility of the mentally ill in French forensic psychiatry

While some countries like Belgium chose a penal system clearly inspired by social-defense theories for mentally disturbed criminals, the French law hasn't been consistent and varies from the enlightened classical law and social-defense law. Indeed paragraph 1 of article 122-1 states that people whose discernment or control is abolished by a psychiatric disorder are non-responsible respecting the classical logic of law. On the other hand, Paragraph 2 of Article 122-1 allows the mentally ill to be judged responsible whereas no institution exists to take care about them. Then the system of psychiatric care in prisons present as a solution for professionals wishing to promote a system where people are punished and socially rehabilitated. Thus these forensic psychiatrists don't refer to paragraph 1 of article 122-1 and even people presenting serious mental disorders are considered responsible. Moreover, if a controversy has always existed between psychiatrists who argue a large conception of mental irresponsibility and professionals who defend the right to punish and to conclude that responsibility even for mentally disturbed criminals, the controversy becomes more important in French forensic psychiatry after the Second World War. If until the 1970s the practice of imposing responsibility for mentally ill individuals shows itself as a humanism, it occurs more within a security perspective today.     

Psychiatric correlates of medical care costs among veterans receiving mental health care

Research on increased medical care costs associated with posttraumatic sequelae has focused on posttraumatic stress disorder (PTSD). However, the provisional diagnosis of Disorders of Extreme Stress Not Otherwise Specified (DESNOS) encompasses broader trauma-related difficulties and may be uniquely related to medical costs. We investigated whether DESNOS severity was associated with greater nonmental health medical care costs in veterans receiving mental health care. Participants were 106 men and 105 women receiving VA outpatient mental health treatment. A standardized interview assessed DESNOS severity. The dependent variables consisted of primary and specialty medical treatment costs. Sequential zero-inflated negative binomial regression was used to evaluate the variance in medical costs accounted for by DESNOS severity, controlling for PTSD severity and established predisposing, enabling, and need-based health care factors. Contrary to our hypothesis, in fully adjusted models, DESNOS severity independently added a significant amount of variance to lower specialty medical care costs, whereas PTSD did not consistently account for significant variance in medical care costs. Greater DESNOS severity appears to be associated with lower specialty medical care costs but not primary care costs. These findings may indicate that patients with DESNOS symptoms are at risk for being underreferred for specialty care.     

A Review of Evidence-Based Biopsychosocial Laws Governing the Treatment of Pain and Injury

The impact of scientific findings on medical, psychological, and legal concepts has led to the adoption of laws and regulations that do not easily fit into the established legal categories of medical law or mental health law. Instead, this convergence of forces has resulted in laws and regulations mandating biopsychosocial treatment guidelines, where both medical and psychological cares are integrated within the framework of a single paradigm. Laws and regulations of this type have been adopted by a number of US states and Canadian provinces, and could be considered to represent a new category, for which we offer the term “biopsychosocial law.” Biopsychosocial laws currently pertain to medical treatment guidelines for workers’ compensation, a medical treatment system noted for high costs, high levels of litigation, and psychological involvement. There are a number of examples of biopsychosocial laws, but the most noteworthy are based on guidelines developed by the Colorado Division of Workers’ Compensation, the American College of Occupational and Environmental Medicine, the Work Loss Data Institute, and The Reed Group. These guidelines differ significantly with regard to features, conditions covered, and strength of evidence basis. However, all of these guideline systems were developed with the intent of providing good care while controlling costs, are evidence based, integrate the practice of medicine and psychology, and are legally mandated in certain jurisdictions. Taken together, these guidelines represent a growing convergence of scientific evidence, professional society positions, payor policies, and legal regulations. These forces are propelling a broad societal shift away from Cartesian assumptions that the body and mind are separate, and toward a biopsychosocial paradigm for the treatment of injury and illness.     

Limitation of medical research in German law.

In Germany, pharmaceutical trials and the testing of medical devices is regulated by statute. Any other kind of medical experimentation is handled according to the Declaration of Helsinki. Medical experimentation has to be reviewed by an ethics committee before the start and there has to be an elaborate research protocol, which provides for the protection of the experimental subject. In case of an accident, there is compulsory accident insurance as far as pharmaceutical trials and the testing of medical devices are concerned. The third party accident insurance just covers material loss, there is no provision paying and suffering. The sum paid by the insurance company is set off against damages for negligence. There is no strict liability for medical experimentation, but the German courts are expected to set very high standards for medical care in experimentation. The data protection and medical confidentiality have been lessened because of the European law that requires the experimental subject to give his consent to the inspection of the data or the file and if he takes part in the experimentation, that his data and some of his cells might be with the pharmaceutical company forever. In general, the German law seems to be adequate to the protection of experimental subjects.     

论精神病人的民法监护——以民事强制住院司法实践为视角

目前．世界多数国家关于精神病人强制住院的立法都直接与广义上的监护法律相联系。监护制度在保护民事行为能力欠缺的精神障碍患者的身心安全和提供必要的住院及医疗措施方面发挥了重要作用。然而,由于我国关于精神病人监护制度的法律规定较为简陋和滞后,导致了实践中,特别是在涉及民事强制住院措施适用时,很多精神病人的人身自由和健康权益并没有得到有效照管,甚至受到严重侵害,由此引起的医疗纠纷和诉讼也日益增多。在此试图对我国精神病人民法监护制度进行解构分析,以期为进一步完善适合我国国情的精神病人监护制度和维护精神病人健康权益提供一些立法建议。     

Therapeutic jurisprudence and mental health tribunals: changing patterns of demand and its impact

For decades the mental health system has been ‘in crisis,’ with too little funding, too much demand and fragmented services. In England and Wales, decisions made concerning the care and treatment of those suffering from a mental disorder is governed by the Mental Health Act 1983 (as amended) (MHA 1983). Detention under the legislation is fraught with conflict; patient and clinical views are often at odds. Mental health tribunals enable patients to seek a review of their case and the legality of their detention. This paper argues that with the increased use of formal detention under the MHA 1983, the caseloads of mental health tribunals have similarly risen. Whether it is possible to advance therapeutic benefit to psychiatric patients attending tribunals is open to question. While mental health tribunals have a role to play in generating a positive psychological impact on an applicant, there is a risk that time and resource pressures may inhibit the adoption of a therapeutic approach. This paper considers the key drivers that are currently pushing detention rates up, the impact this is having on mental health tribunal caseloads and whether it is possible to bring therapeutic jurisprudence to the patient.