scholarly journals Decision-making capacity and the Victorian Mental Health Tribunal

2018 ◽  
Vol 2017 (24) ◽  
pp. 87
Author(s):  
Christopher Maylea ◽  
Christopher James Ryan
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
Mentally Ill ◽  
Empirical Studies ◽  
Relevant Information ◽  
Involuntary Treatment ◽  
Persons With Disabilities ◽  
Decision Making Capacity ◽  
Mental Health Legislation ◽  
Health Legislation

<p>The United Nations Convention on the Rights of Persons with Disabilities (CRPD) has led to a re-thinking of traditional mental health law around the world. Since Australia’s ratification of the CRPD, all but one of its eight jurisdictions have introduced reforms to mental health legislation. These are aimed, in part, towards compliance with the Conventions articles. This paper examines the meaning and operation of the reforms introduced in Australia’s second most populous state – Victoria.</p><p><br />We first describe the criteria for involuntary treatment set out in the new <em>Mental Health Act 2014</em> (Vic) (Austl.) (the Act). We then argue that when making an order for Involuntary Treatment, the Victorian Mental Health Tribunal (the Tribunal) is obliged to carefully consider a person’s decision-making capacity as part of ensuring that treatment is provided in the least restrictive way, and to only authorise the involuntary treatment over a person’s competent objection in very limited circumstances.</p><p><br />Having established the way in which the Act <em>should</em> operate, we then present two empirical studies which analyse the decisions of the Statements of Reasons of the Tribunal to gain some appreciation of how the Act is working. These indicate that seldom does the Tribunal consider the decision-making capacity of people brought before it, and that, even when this is considered, the relevant information is not being used protectively so as to uphold a right to competently refuse treatment. Instead, the Tribunal uses the presence or absence of decision-making capacity, insight or poor judgement, to determine if a person is mentally ill or if treatment is required to prevent serious harm. We conclude that the Tribunal’s practice is inconsistent with the principles of the Act and consequently the intention of Parliament.</p>

scholarly journals Paramedics and ACT mental health legislation

2015 ◽  
Vol 12 (4) ◽  
Author(s):  
Ellen J Bradley ◽  
Ruth Townsend ◽  
Michael Eburn
Keyword(s):  
Mental Health ◽  
Police Officers ◽  
Mentally Ill ◽  
Mental Health Treatment ◽  
Ethical Issues ◽  
Best Interests ◽  
Decision Making Capacity ◽  
Mental Health Legislation ◽  
Health Legislation ◽  
Legal And Ethical Issues

IntroductionOn 15 May 2014, the Minister for Health, The Hon Katy Gallagher presented the Mental Health (Treatment and Care) Amendment Bill 2014 (‘the Bill’) to the Australian Capital Territory Legislative Assembly (1). The Bill was subsequently passed on 30 October 2014. One recommendation contained in the proposed Bill is to extend powers of apprehension, which are currently only held by police officers, to approved ACT paramedics. The power may be exercised without regard to the patient’s decision making capacity. This paper explores some of the legal and ethical issues associated with the proposed legislation.MethodsThis paper reviews the Bill in light of underlying legal and ethical principles that are relevant to the treatment of the mentally ill and paramedic practice.ResultsIt is demonstrated that there are arguments both in favour of, and against the proposal to grant paramedics powers of apprehension.ConclusionWhether allowing paramedics to detain a person who is mentally ill will work in the best interests of the patients remains to be seen but caution must be exercised to protect the paramedic/patient relationship.

scholarly journals Unethical Mental Health Law; History Repeats Itself

2014 ◽  
pp. 50 ◽  
Author(s):  
A. Zigmond ◽  
A. J. Holland
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
The Other ◽  
European Convention ◽  
Green Paper ◽  
Expert Committee ◽  
Mental Health Act ◽  
Decision Making Capacity ◽  
Mental Health Legislation ◽  
Health Legislation

<p>The powers enshrined in mental health legislation go directly to fundamental principles central to any caring and democratic society. The tension and dilemma that exists is, on the one hand, the importance of respect for an individual’s right to make decision’s affecting his/her own life to, on the other, the recognition that there are people with mental disabilities that may be vulnerable to abuse and/or neglect and who throughout their lives or at particular times need care and/or treatment, which they may not seek or be able to consent to themselves. In any society it is through case law and statute that an attempt is made to resolve this tension and to ensure that individual rights are not infringed and that those who need care and treatment receive what is in their best interest. Thus a change in such legislation requires the most rigorous of examination and must be judged on the grounds that it a) does not infringe accepted principles such as those of the United Nations Declaration of Human Rights and the European Convention, b) is based on sound ethical principles and does not conflict with the established law of the country, and c) it is practicable and achieves the right balance with respect to the potential tension described above. As practising clinicians (one working in an acute psychiatric service the other in a district learning disability service) we are not in a position expertly to judge the first of these but we believe we can contribute to the second and the third. In this paper we consider specifically the reasons for, and the consequences that follow, the failure on the Government’s part to accept the central importance of decision-making capacity assessment in any new mental health legislation.</p><p>The Green Paper proposals for a new Mental Health Act for England and Wales have now been published. A broad definition of ‘mental disorder’ has been retained, a new system of tribunals is to be established and compulsory treatment in the community would become lawful. However, it rejects the recommendation of the expert committee chaired by Professor Richardson that the assessment of an individual’s decision-making capacity should be a determining factor in the use of compulsory detention. Given this, it does not address the relationship between this legislation and the proposed Mental Incapacity Act. The failure to recognise the central place of decision-making capacity in a modern Mental Health Act is, we believe, a serious omission as it is a reflection of a failure to acknowledge that the basic principle of autonomy is central to such legislation.</p>

scholarly journals Compulsory admission and involuntary treatment in Portugal

2016 ◽  
Vol 13 (1) ◽  
pp. 17-19 ◽  
Author(s):  
Telma Almeida ◽  
Andrew Molodynski
Keyword(s):  
Mental Health ◽  
Emergency Department ◽  
Patient Treatment ◽  
Compulsory Treatment ◽  
Compulsory Admission ◽  
Involuntary Treatment ◽  
Mental Health Legislation ◽  
Health Legislation

This paper details the grounds for compulsory treatment, compulsory admissions in an emergency department and compulsory out-patient treatment in Portugal. Portuguese mental health legislation has improved significantly over recent years, with enhanced safeguards, rapid and rigorous review and clear criteria for compulsory treatment, although much remains to be done, especially in relation to the ‘move into the community’.

scholarly journals Involuntary community treatment in New South Wales, Australia

1995 ◽  
Vol 19 (1) ◽  
pp. 45-47 ◽  
Author(s):  
John Hambridge ◽  
Nicola Watt
Keyword(s):  
Mental Health ◽  
Mentally Ill ◽  
New South ◽  
New South Wales ◽  
Community Treatment ◽  
Compulsory Treatment ◽  
Perceived Benefits ◽  
South Wales ◽  
Mental Health Legislation ◽  
Health Legislation

The New South Wales Mental Health Act (1990) heralded a number of important changes to mental health legislation in the state. One of these was the option to give compulsory treatment to mentally ill clients living in the community. This article briefly explains community treatment under the Act, and the perceived benefits and the limitations of such legislation. A case example is used to illustrate some of these points. Involuntary community treatment is seen as a less restrictive alternative to hospitalisation for a number of mentally ill clients, but the use of such provisions demands significant resources from the supervising agency.

scholarly journals Mental health legislation in Botswana

2018 ◽  
Vol 16 (03) ◽  
pp. 68-70
Author(s):  
J. Maphisa Maphisa
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Disorders ◽  
United Nations ◽  
Persons With Disabilities ◽  
Mental Health Legislation ◽  
United Nations Convention ◽  
The United Nations ◽  
Health Legislation

The Mental Disorders Act of 1969 is the primary legislation relating to mental health in Botswana. Despite the country not being a signatory to the United Nations Convention on the Rights of Persons with Disabilities, its Act has a self-rated score of four out of five on compliance to human rights covenants. However, it can be argued that the Act does not adequately espouse a human rights- and patient-centred approach to legislation. It is hoped that ongoing efforts to revise the Act will address the limitations discussed in this article.

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