Psychiatric advance directives and human rights

Psychiatry, Psychology and Law

Volumn 17, Issue 2, 2010, Pages 218-229

  Weller, Penny ^a  

^a MONASH UNIVERSITY   (Australia)

Author keywords

Human rights; International precedent; Law reform; Psychiatric advance directives; References

Indexed keywords

EID: 77952360703     PISSN: 13218719     EISSN: None     Source Type: Journal    
DOI: 10.1080/13218710903496318     Document Type: Article

References (67)

1. This article uses the term "psychiatric advance directives" to refer generically to mechanisms that enable competent persons to dictate medical treatment choices in anticipation of future periods of incapacity. In the literature, the terms "psychiatric advance directives" (PADS) and "living wills" are often used interchangeably. Other terms include "advance agreements", "preference plans", "consent-in-advance instruments", "advance treatment authorisations" or "future treatment plans". Some commentators make a distinction between living wills as informal documents, and advance directives as legally binding instruments. The term "Ulysses Agreements" or "Ulysses contracts" generally refers to a specific type of binding advance directive and relates to debates about irrevocable advance directives.
2. Reviews of mental health legislation have been completed in New South Wales and the Northern Territory, and are on foot in Western Australia, South Australia, Queensland, Tasmania, the ACT and Victoria. ACT: There is a current evaluation of the Mental Health Strategy & Action Plan 2003-2008. Responses and submission closed in December 2007. New South Wales: the Mental Health Act 2007 commenced operation on 16 November 2007. NT: the Mental Health and Related Services Act Amendment Act 2007 commenced operation in 2007. Queensland: the Mental Health Act 2000 commenced operation on 28 February 2002. An independent review of forensic provisions was conducted by Mr Brendan Butler AM Sc in 2006: Promoting Balance in the Forensic Mental Health System accessed 16 April 2008. South Australia: an Issues paper was published in 2004, followed by a Final Report: I Bidmeade, Review Committee on Mental Health Legislation, Paving the Way: Review of Mental Health Legislation in South Australia (2005) 364 accessed 21 November 2008. Recommendation 12.1 advises that advance directives by consumers to cover the times when they are temporarily incapacitated should be given legal recognition by the planned Advanced Directives Act. The Mental Health Bill 2007 was revised in response to public comment. The Mental Health Act 2009 is not yet in force. It includes provision for treatment plans: accessed 15 December 2009. Tasmania: the final report of a review of mental health services recommends improved administration of the Mental Health Act: Department of Health and Human Services of Tasmania, Bridging the Gap Evaluation (Final Report, May2008) [Recommendation 5.7].Areview is currently underway. Victoria: A review of the Mental Health Act (1986) Vic was announced in May 2008. Terms of reference are available at accessed 20 November 2008. Western Australia: Reviews of the Mental Health Act (1996) and the Criminal Law (Mentally Impaired Defendants) Act (1996) commenced in 2003. Details are available at accessed 20 November 2008.
3. TS Szasz, 'The Myth of Mental Illness' (1960) 15(2) American Psychologist 113.
4. TS Szasz, The Myth of Mental Illness: Foundations of a Theory of Personal Conduct (Hoeber-Harper, New York 1961).
5. TS Szasz, 'The Psychiatric Will' (1982) 37(7) American Psychologist 762.
6. The Human Rights Act 1993 (NZ): Human Rights Act 1998 (UK).
7. Canadian Human Rights Act 1985.
8. Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, opened for signature 30 March 2007, entered into force 3May 2008). For an extended discussion of the Convention, see the special edition 'International Trends in Mental Health Law' (2008) 26(2) Law in Context.
9. A Lawson, 'The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?' (2007) 34(2) Syracuse Journal of International Law & Commerce 34 563, 618.
10. A Dhanda, 'Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?' (2007) 34(2) Syracuse Journal of International Law & Commerce 429.
11. Human Rights Acts 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic), which came into force on 1 January 2008.
12. J Dawson, 'Community Treatment Orders and Human Rights' (2008) 26(2) Law in Context 148.
13. M Swartz and J Swanson, 'Psychiatric Advance Directives and Recovery-Oriented Care' (2007) 58(9) Psychiatric Services 1164.
14. J Atkinson, Advance Directives in Mental Health: Theory, Practice and Ethics (Jessica Kingsley Publishers, London & Philadelphia 2007).
15. Re C (Adult Refusal of Treatment) [1994] 1 WLR 290, cited in A Maclean, 'Advance Directives and the Rocky Waters of Anticipatory Decision-making' (2008) 16(1) Medical Law Review 1, 5.
16. J Munby, 'Rhetoric and Reality: the Limitation of Patient Self-determination in Contemporary English Law' (1988) 14 Journal of Contemporary Health Law and Policy 315, 317.
17. Cf. Maclean (n 12). Maclean attributes some measure of assessment of "quality of life" in the English jurisprudence despite avowed deference to the principle of selfdetermination. A useful summary of the provisions found in United States jurisdictions is provided by Atkinson (n 11) 57.
18. Article 5 "Every consumer may use an advance directive in accordance with the common law" accessed 16 April 2008.
19. accessed 16 April 2008.
20. Standard 16, National Health Sector Standards NZ S81434:2001.
21. Mental Health (Compulsory Treatment and Assessment) Act 1992 (NZ) ss 7A and5. See T Minkowitz, No Force Advocacy for Users and Survivors of Psychiatry (Mental Health Commission, Wellington 2006).
22. Minister of Health, Te Tähuhu: Improving Mental Health 2005-2015: The Second New Zealand Mental Health and Addiction Plan (Ministry of Health, Wellington, 2005).
23. The Mental Health (Care and Treatment)(Scotland) Act 2003 came into effect on 5 October 2005 accessed 24 February 2008.
24. New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 (SE/2001/56, 2001) (the Millan Report) accessed 21 November 2008.
25. Mental Health (Care and Treatment) (Scotland) Act 2003 s 275.
26. Ibid s 276.
27. Ibid s 276(3).
28. Ibid s 276(8).
29. Ibid s 260.
30. Ibid s 261.
31. Ibid s 250. Section 255 requires the mental health officer to ascertain who the relevant person is. Subsequent sections set out the responsibilities of the named person under the Act.
32. Ibid s 251. The meaning of "nearest relative" is set out in section 254.
33. Ibid s 259. The onus in on the service and Health Board to ensure the patient is assigned an independent advocate.
34. The person, or others on behalf of the patient (including anyone having an interest in the welfare of the patient), may apply to the Tribunal for an order requiring managers of the hospital in which the patient is being unlawfully detained to cease their detention. These provision reflect the decision of H.L. v the United Kingdom (App no 45508/99) [2004] ECHR 45508/99.
35. The Adults with Incapacity (Scotland) Act 2000 provides for decisions about the adult's property or financial affairs, or about their personal welfare, including some comment on medical treatment decisions to be made on behalf of adults who lack legal capacity to do so themselves because of mental disorder or inability to communicate. The Act does not contain advance directive provisions as does the equivalent Act in England and Wales.
36. Ibid s 52.
37. Ibid s 14.
38. The review coincided with the introduction of the Human Rights Act 1998 (UK).
39. Department of Health, Report of the Expert Committee: Review of the Mental Health Act 1983 (1999) (Richardson Report) 160-166.
40. J Bindman, S Maingay and G Szmukler, 'The Human Rights Act and Mental Health Legislation' (2003) 182 British Journal of Psychiatry 91.
41. Mental Capacity Act 2005 (England and Wales) s 2.
42. Provided they are executed in accordance with the provisions of the Mental Capacity Act 2005 (England and Wales).
43. Mental Health Act 2007 (England and Wales) s 8.
44. Ibid s 30.
45. J Swanson et al, 'Psychiatric Advance Directives Among Public Mental Health Consumers in Five US Cities: Prevalence, Demand and Correlates' (2006) 31 Journal of the American Academy of Psychiatry and the Law 43.
46. M Amering and M Schaffer, 'Advance Directives Empower Users and Need Professionals for Implementation' (2007) 7(Suppl 1) BMC Psychiatry S110.
47. M Amering, P Stastny and K Hopper, 'Psychiatric Advance Directives: Qualitative Study of Informed Deliberations by Mental Health Service Users' (2005) 186 British Journal of Psychiatry 247.
48. JW Swanson et al, 'Facilitated Psychiatric Advance Directives: A Randomized Trial of an Intervention to Foster Advance Treatment Planning among Persons with Severe Mental Illness' (2006) 163(11) American Journal of Psychiatry 1943.
49. Amering and Schaffer (n 41) 110.
50. Swanson et al (n 41).
51. G Szmukler, 'Advance Statements in Psychiatry' (2006) 6(2) Psychiatry 49.
52. K Sutherby and G Szmukler, 'Crisis Cards and Self-help Initiatives' (1998) 22 Psychiatric Bulletin 4.
53. Swartz and Swanson (n 10).
54. Szmukler (n 44) 49
55. Szmukler (n 44) 50.
56. Amering and Schaffer (n 41) 110.
57. M Swartz, J Swanson and E Elbogen, 'New Research on Psychiatric Advance Directives' (2007) 7(Suppl 1) BMC Psychiatry 111.
58. Szmukler (n 44) 30.
59. Ministry of Health, Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (April 2000) 228 P. Weller 19n20 accessed 16 April 2008.
60. M Epstein, 'Advance Directives', Community Forum on Advance Directives, 22 June 2006.
61. Epstein (n 53).
62. JM Atkinson et al, 'The Early Impact of the Administration of New Compulsory Powers Under the Mental Health (Care and Treatment) (Scotland) Act 2003' (2007) Health and Community Care: Research Findings No. 57/2007.
63. Ministry of Health (n 52).
64. See eg Scottish Executive, Rights, Relationships and Recovery: The Report of the National Review of Mental Health Nursing in Scotland (Scottish Executive, Edinburgh 2006).
65. Scottish Executive, Changing Lives: The Report of the 21st Century Social Work Review Group (Scottish Executive, Edinburgh 2006).
66. Department of Health, National Institute for Mental Health in England and the Royal College of Psychiatrists, New Ways of Working for Psychiatrists: Enhancing Effective Personcentred Services Through New Ways of Working in Multidisciplinary and Multiagency Contexts (October 2005).
67. Statement by the Scottish Ministry of Health (Personal communication 9th June 2008).