Mental health Act Flashcards
Key international documents relevant for MHA
- UN Principles for the treatment of persons with mental illness 1991 and UN convention on the rights of persons with disabilities (CRPD)
the UN principles
UN principle 9.1 “Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others.”
UN CRPD
binding upon states but under Aus law won’t come in to domestic law until specifically incorporated into acts of parliament
CRPD committee favoured abolition of “medical intervention without the free and informed consent of the persons with disabilities concerned, committal of individuals to detention in mental health facilities, or imposition of compulsory treatment, either in institutions or in the community, by means of community treatment orders.
rejection of defense of legal incapacity
replace substituted DM with supported DM
abolish laws [permitting insanity defense and declarations of unfitness to stand trial
UN CRPD critics
radical
unrealistic
consistent elevation of patient autonomy over competing values and insistence that legal capacity is never lost
Professor Freeman et al argued that other human rights will be endangered if recommendations adopted eg Rights to Life and health will be compromised if impossible to administer involuntary treatment for life threatening medical conditions and suicidal ideation
alternatives/compromises in CRPD
Szmukler and Dawson favour a fusion model that eliminatesMHAs and gives power for involuntary detention and psychiatric treatment from psychiatrists to guardians. reduce stigma and promote earlier intervention
other persons with mental impairment (dementia and ID) have treatment decisions made by guardiansm but those with mental illness have a form of clinical guardianship on the part of the psychiatrist
critics- MHA can allow for emergency treatments, changes the relationship between guardian and the patient, many provisions for review.monitoring/support and appeal use of MHA.
impairment can be temporary and treatable, short term involuntary treatment may alleviate their condition and give greater autonomy in the long run,
recovery-oriented practice
recovery-oriented practice involves treating people with mental illness as ‘experts on their lives and experiences while mental health professionals considered experts on available treatment services.
even with involuntary treatment, the purpose is to support the person to regain their capacity to make informed decisions
in Victoria their is a tension between allowing a degree of risk with patient decision making and also the duty of care
common law duty of care
A duty of care is breached when:
a person is injured because of the action (or inaction) of another person; and
it was reasonably foreseeable that such action (or inaction) would result in a risk of injury to the injured person; and
the action (or inaction) causing the injury was unreasonable. This means that a reasonable person in the same position would not have acted in that way; and
the risk of injury occurring was not an insignificant risk.
A duty of care does not arise in all circumstances. It can only arise where it is reasonable to expect that a particular person or class of persons might be injured or harmed if you act or behave with a lack of care. This is called foreseeability
critics of community treatment order
lack of convincing evidence base
lead to hgiher levels of compuslion
distract from the need to ensure adequate services are made available on a voluntary basis
encourage suboptimal care as less thought needs to go into how to provide good-quality support on the therapeutic basis of trust and willingness, rather than coercion
supporting CTO
evidence base is difficult due to coersive nature
many will not undergo voluntary treatment even if services made available
capacity assessment
macarthur competence assessment tool for treatment
presser criteria
understand the charge
plead to the charge and exercise the right to challenge jurors
understand generally, the nature of proceedings (that it is an inquiry) as to whether the accused person did what they are charged with
follow the course of proceedigs
understand the substantial effect of any evidence that might be used against them
make their defence or answer the charge ; or
give any necessary instructions to their legal cousel
criticisms for common law fitness to stand trial
The common law test of unfitness to stand trial may place undue emphasis on a person’s intellectual ability to understand specific aspects of the legal proceedings and trial process, and too little emphasis on a person’s decision making ability.
fail to take in to consideration the ability to give evidence, “fitness” in context may fluctuate by the time of trial, widespread inconsistencies in assessments by psychiatrists applying the criteria
