Capacity as a determinant of non-consensual treatment of the mentally ill in Australia

Psychiatry, Psychology and Law

Volumn 18, Issue 2, 2011, Pages 248-262

  Ryan, Christopher James ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

Author keywords

Australian legislation; Capacity; Coercive treatment; Mental health legislation

Indexed keywords

EID: 79957828670     PISSN: 13218719     EISSN: None     Source Type: Journal    
DOI: 10.1080/13218719.2010.510128     Document Type: Article

References (162)

1. D Okai, G Owen, H McGuire, S Singh, R Churchill and M Hotopf, 'Mental Capacity in Psychiatric Patients. Systemic Review' (2007) 191 British Journal of Psychiatry 291;
2. T Grisso and PS Appelbaum, 'The MacArthur Treatment Competence Study. III' (1995) 19 Law and Human Behavior 149;
3. R Cairns, C Maddock, A Buchanan, AS David, P Hayward, G Richardson, G Szmukler and M Hotopf, 'Prevalence and Predictors of Mental Incapacity' (2005) 187 British Journal of Psychiatry 379;
4. GS Owen, G Richardson, AS David, G Szmukler, P Haywood and M Hotopf, 'Mental Capacity to Make Decisions on Treatment in People Admitted to Psychiatric Hospitals: Cross Sectional Study' (2008) 337 British Medical Journal 448.
5. JS Mill, On Liberty, 1859.
6. General Assembly of the United Nations, The Universal Declaration of Human Rights 1948, Article 29(2)
7. United Nations General Assembly, Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, Report No Resolution 46/119 (1991), Principle 11.6;
8. I Kerridge, M Lowe and C Stewart, Ethics and Law for the Health Professions, (3rd edn Federation Press, Sydney 2009).
9. M Large, CJ Ryan, O Nielssen and R. Hayes, 'The Danger of Dangerousness. An Argument Against the Dangerousness Criterion in Mental Health Acts' (2008) 34 Journal of Medical Ethics 877;
10. P Bartlett, 'The Test of Compulsion in Mental Health Law: Capacity, Therapeutic Benefit and Dangerousness As Possible Criteria' (2003) 11 Medical Law Review 326;
11. A Buchanan, 'Psychiatric Detention and Treatment: a Suggested Criterion' (2002) 11 Journal of Mental Health Law 35;
12. J Dawson and G Szmukler, 'Fusion of Mental Health and Incapacity Legislation' (2006) 188 British Journal of Psychiatry 504;
13. G Szmukler and F Holloway, 'Mental Health Legislation is Now a Harmful Anachronism' (1998) 22 Psychiatric Bulletin 662;
14. G Richardson, 'Autonomy, Guardianship and Mental Disorder: One Problem, Two Solutions' (2002) 65 Modern Law Review 702.
15. Australian Capital Territory Department of Health, Review of the Mental Health (Treatment & Care) Act 1994 (2009);
16. Victorian Government, Review of the Mental Health Act 1986. 'Government Response to the Community Consultation Report' (Victorian Government Department of Human Services, Melbourne 2009)
17. There is undeniably something more than a little irritating about terminology that replaces a crisp simple signifier, like "the mentally ill", with long and cumbersome one, like "people living with mental illness" and then compounds this sin by reducing the term to an acronym -PLWMI. Despite being cognisant of, and sharing much of this irritation, I have, nonetheless, adopted this terminology here. Following Perlin, I believe that much of this debate has its origin as an entrenched and largely invisible prejudice against people who suffer mental illness, what he has dubbed sanism. An intrinsic part of sanism is to see people who happen to suffer a mental illness as essentially different from the rest of us and effectively defined by the illnesses they suffer. Acceptance of this premise makes the term "the mentally ill" begin to look a lot like other terms that have been used to define people to their detriment such as "the mongoloid", "the Jew" or "the Negro". "People living with mental illness" is cumbersome, but like another group in society arguably discriminated against in law - people living with HIV/AIDS - it may be sensible to adopt such terminology to help protect their rights. I will continue to use the simpler terms when their use better reflects the terminology used in the various mental health acts.
18. ML Perlin, 'On "Sanism"' (1992) 46 Southern Methodist University Law Review 373;
19. ML Perlin, "'Half-Wracked Prejudice Leaped Forth": Sanism, Pretextuality, nd Why and How Mental Disability Law Developed as it Did' (1999) 10 Journal of Contemporary Legal Issues 3.
20. RA Friedman, 'Violence and Mental Illness - How Strong is the Link?' (2006) 355 New England Journal of Medicine 2064;
21. E Walsh and T Fahy, 'Violence in Society. Contribution of Mental Illness Is Low' (2002) 325 British Medical Journal 507.
22. MM Large, CJ Ryan, SP Singh, MB Paton, OB Nielssen, 'Risk Assessment is the Wrong Method for Harm Reduction in Schizophrenia' Harvard Review of Psychiatry (in press).
23. Large (n 3). For examples of published objections
24. A Adeshina and A Sule, Mental Health and Incapacity Legislation [Correspondence]' (2006) 189 British Journal of Psychiatry 564;
25. B O'Muirithe, 'Mental Health and Incapacity Legislation [Correspondence]' (2006) 189 British Journal of Psychiatry 564;
26. A Maden, 'Mental Health and Incapacity Legislation [Correspondence]' (2007) 190 British Journal of Psychiatry 176.
27. Mental Health Act 1986 (Vic) s 8(1)(a).
28. Mental Health Act 1996 (WA) s 26(1)(a).
29. Mental Health Act 1993 (SA) s 12(1)(a).
30. Mental Health Act 2009 (SA) s 21(1)(a).
31. Mental Health Act 2007 (NSW) s 14(1);
32. Mental Health (Treatment and Care) Act 1994 (ACT) s 28(a).
33. Mental Health Act 2000 (Qld) s 14(1)(a).
34. Mental Health and Related Services Act 1998 (NT) s 14(a).
35. Mental Health Act 1996 (Tas) s 24(a).
36. Mental Health Act 1986 (Vic) s 8(1A).
37. Mental Health Act 1996 (WA) s 4.
38. Mental Health Act 1993 (SA) s 3.
39. Mental Health Act 2009 (SA) s 3;
40. Mental Health Act 2007 (NSW) s 4.
41. Mental Health (Treatment and Care) Act 1994 (ACT) s 3.
42. Mental Health Act 2000 (Qld) s 12.
43. Mental Health and Related Services Act 1998 (NT) s 6.
44. Mental Health Act 1996 (Tas) s 4.
45. Mental Health Act 1986 (Vic) ss 8(1)(b) and 8(1)(e).
46. Mental Health Act 1996 (WA) s 26(1)(d).
47. Mental Health Act 1993 (SA) s 5(1)(b).
48. Mental Health Act 2009 (SA) s 21(1)(c).
49. Mental Health Act 2007 (NSW) s 68(a).
50. Mental Health (Treatment and Care) Act 1994 (ACT) s 28(d).
51. Mental Health Act 2000 (Qld) s 14(1)(e).
52. Mental Health and Related Services Act 1998 (NT) s 14(c).
53. Mental Health Act 1996 (Tas) s 7.
54. In South Australia, Queensland, Tasmania and the Northern Territory there is the additional requirement that treatment be available in the proposed treatment centre: Mental Health Act 1993 (SA) s 12(1)(b).
55. Mental Health Act 2000 (Qld) s 14(1)(c).
56. Mental Health and Related Services Act 1998 (NT) s 14(b)(i).
57. Mental Health Act 1996 (Tas) s 24(d).
58. In Queensland there is an additional requirement that the "person's illness requires immediate treatment" Mental Health Act 2000 (Qld) s 14(1)(b).
59. In the ACT the psychiatric treatment must be "likely to reduce the harm or deterioration (or the likelihood of harm or deterioration). and result in an improvement in the person's psychiatric condition": Mental Health (Treatment and Care) Act 1994 (ACT) s 28(c).
60. Mental Health Act 1986 (Vic) s 8(1)(d).
61. Mental Health Act 1996 (WA) s 26(1)(c).
62. Mental Health Act 2000 (Qld) s 14(1)(f).
63. Mental Health and Related Services Act 1998 (NT) s 14(b)(iii).
64. This distinctly odd state of affairs has not been directly challenged in the courts. When superior courts have considered the relevant provisions they have apparently endorsed the statutes as written.
65. EO v Mental Health Review Board [2000] WASC 203 [43] - [60] (Templeman J).
66. Mental Health (Treatment and Care) Act 1994 (ACT) s 26(a).
67. Mental Health Act 2007 (NSW) ss 93(1)(a), 99(1)(a), 100(3)(a), 100(4)(a), 101(3)(a), 101(4)(a);
68. Mental Health Act 1993 (SA) ss 22(1)(a)(ii), 22(1)(b)(ii).
69. Mental Health Act 1996 (Tas) ss 31(a), 72G(2).
70. The Mental Health Bill (SA) 2009 was passed by the South Australian State Parliament on 3 June 2009 and was assented to by the Governor in Executive Council on 11 June. A Mental Health Act Implementation Project has been established and it is anticipated that the Act will be proclaimed and enacted in 2010: SA Health, Mental Health Act 2009 http://www.health.sa.gov.au/mentalhealth/Default.aspx?tabid1/455 accessed 1 November 2009.
71. Mental Health Act 1993 (SA) s 3.
72. Mental Health Act 2009 (SA) s 3.
73. Mental Health Act 1986 (Vic) s 8(1A).
74. Mental Health Act 2000 (Qld) s 12.
75. In Western Australia and the Northern Territory, the list of signs and symptoms is "disturbance of thought, mood, volition, perception, orientation or memory". In NSW and the ACT, the list is delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behaviour indicating the presence of these; and in Tasmania, serious distortion of perception or thought, serious mood disorder, involuntary behaviour or serious impairment of the capacity to control behaviour: Mental Health Act 1996 (WA) s 4;
76. Mental Health and Related Services Act 1998 (NT) s 6.
77. Mental Health Act 2007 (NSW) s 4.
78. Mental Health (Treatment and Care) Act 1994(ACT) s 3.
79. Mental Health Act 1996 (Tas) s 4.
80. Mental Health Act 1996 (WA) s 4.
81. "MM" v Mental Health Review Board [1999] WASC 1005 ("MM").
82. Mental Health Act 2007 (NSW) s 4.
83. Mental Health (Treatmentand Care) Act 1994 (ACT) s 3.
84. Mental Health (Treatment and Care) Act 1994 (ACT) s 3.
85. Mental Health Act 2007 (NSW) s 15.
86. Mental Health Act 1996 (Tas) s 4(1)(b).
87. The other signs and symptoms are "serious distortion of perception or thought", "serious mood disorder" and "involuntary behaviour or serious impairment of the capacity to control behaviour": Mental Health Act 1996 (Tas) s 4(1).
88. Richardson (n 3).
89. "[I]t is established that the principle of selfdetermination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so" [emphasis added]. Airedale Hospital Trustees v Bland [1992] UKHL 5 ("Bland") 9 (Lord Keith of Kinkel).
90. MM [1999] WASC 1005.
91. MM [1999] WASC 1005 (Scott J).
92. Re Robert Alexander Donaldson v Ian Collings Broomby [1982] FCA 58 ("Donaldson"). In Donaldson, Deane J held that "[w]here the Parliament has legislated so as to define [circumstances for arrest by police], neither legal principle nor considerations of public interest commend or support a search among the shadows of earlier subordinate legislation for the means of evading the constraints upon the interference with the liberty of the subject which the Parliament has imposed": 59 (Deane J).
93. Mental Health (Treatment and Care) Act 1994 (ACT) s 28.
94. Mental Health Act 2000 (Qld) s 14(1)(d).
95. Mental Health and Related Services Act 1998 (NT) s 14(b)(ii).
96. Mental Health Act 1996 (Tas) s 24(b),(c).
97. Mental Health Act 2007 (NSW) s 14(1).
98. Note that in NSW, "in considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account": Mental Health Act 2007 (NSW) s 14(2).
99. Mental Health Act 1990 (NSW) s 9. The latter two types of harm were only to be considered in people with a serious disturbance of mood.
100. RD Dyer, 'Second Reading Speech for the Mental Health Legislation Amendment Bill 1997 (NSW)' (1997) Hansard of the New South Wales Legislative Council 8772, 8773.
101. T Kelly, 'Second Reading Speech for the Mental Health Bill 2007 (NSW)' (2007) NSW Legislative Council Hansard, Tuesday 5 June 2007 Hansard of the New South Wales Legislative Council.
102. Presland [2003] NSWSC 754 (Adams J).
103. Presland [2003] NSWSC 754 [110] (Adams J).
104. Consideration of the original provision also occurred in DAW v Medical Superintendent of Rozelle Hospital [1996] NSWSC 319 [10] (Hodgson J).
105. The new wording was considered in detail in Wade v North Coast Area Health Service. Interestingly, and pertinent to this discussion, Staff J appeared to find some reference to a capacity element in the legislation, saying that the "Act was amended in 1997 because there was public concern 'that the Mental Health Act was not making appropriate provision for the care of people with mental illness when they were not well enough to make safe decisions for themselves"' [emphasis added] and that "[m]ental health staff should be assured that if they act in good faith with that principle in mind, their decisions will be respected": Inspector Wade v North Coast Area Health Service [2005] NSWIRComm 349 ("Wade") [181] - [182] (Staff J). Unfortunately, although Staff J apparently quotes when outlining the content of public concern, he did not include a citation to allow this quote to be referenced. Importantly, the words do not appear anywhere in the second reading speech for the Mental Health Legislation Amendment Bill 1997 or in the parliamentary debate that followed the Bill's introduction: Dyer (n 41).
106. Mental Health Act 1996 (WA) s 26(1)(b)(i). Note that the legislation also allows it for prevention of "self-inflicted harms" to finances, relationships or reputation and damage to property:
107. Mental Health Act 1996 (WA) ss 26(1)(b)(ii), 26(1)(b)(iii), 26(2).
108. Mental Health Act 1993 (SA) s 12(1)(c).
109. Mental Health Act 1986 (Vic) s 8(1)(c).
110. Tom Roper, "Second Reading Speech for the Mental Health Bill 1985 (Vic)" (1985) Hansard of the Victorian House of Assembly 925;
111. Mental Health Act 1986 (Vic).
112. Victorian Department of Health, Amendments to the Mental Health Act 1986 http://www.health.vic.gov.au/mentalhealth/pmc/mental-health-act.htm accessed 29 October 2009.
113. Hobbins v Goulburn Valley Area Mental Health Service [2000] VSC 67.
114. JB v Mental Health Review Board (General) [2006] VCAT 2191 at [11] (Davis, Senior Member).
115. Kracke v Mental Health Review Board & Anor (No 2) (General) [2009] VCAT 1548 at [9] (Bell J; Davis, Session Member);
116. MH10 v Mental Health Review Board & Anor (General) [2009] VCAT 1919 at [18] (Proctor, Member);
117. Dorci v Mental Health Rev Board [1998] VCAT 310.
118. Mr B v Mental Health Review Board & Anor (General) [2009] VCAT 1808 at [46] (Tilley, Member).
119. MH10 v Mental Health Review Board & Anor (General) [2009] VCAT 1919 at [18] (Proctor, Member).
120. Dorci v Mental Health Rev Board [1998] VCAT 310.
121. Mental Health Act 2009 (SA) s 21(1)(a).
122. Ibid s 21(1)(c).
123. Ibid s 21(1)(b).
124. JD Lomax-Smith, "Second Reading speech for the Mental Health Bill 2008 (SA)", (2008) Hansard of the South Australian House of Assembly 884 (12 November 2008).
125. Large (n 3);
126. O Nielssen, M Large, CJ Ryan and R Hayes, 'Legal Implications of the Increased Risk of Homicide and Serious Violence in the First Episode of Psychotic Illness' (2007) 31 Criminal Law Journal 287.
127. M McCubbin and DN Weisstub, 'Toward a Pure Best Interests Model of Proxy Decision Making for Incompetent Psychiatric Patients' (1998) 21 International Journal of Law and Psychiatry 1.
128. Mental Health Act 2007 (NSW) ss4, 5(3), 10(1), 12(1)(a), 13, 15, 16, 19(2)(b), 19(4)(b), 23(2)(a), 25(1), 27, 28(1), 31, 61(2), (4), (5)(b), 62(1)(a), 64(3), 147(2)(b), 153, 166(1)(a), (b), 166(2)(a), (b), 179(c), schedules 1, 3, and long title.
129. Note that almost all people currently classified as "mentally disordered" could be classified as "mentally ill" under the current provisions, as almost all are subject to a "severe isturbance of mood" at the time they are seen. In day-to-day practice the decision to detain a person under mentally disordered provisions, rather than mentally ill provisions, is largely a matter of clinician preference with an eye to the intention of the Act: Mental Health Act 2007 (NSW) s 4.
130. One of the troubling distinctions between the two in the current Act is that although a decision to detain someone as a mentally ill person is subject to tribunal review, a decision to detain a person as a mentally disordered person is not. This lack of review is despite the fact that a person may be detained for up to three periods of three working days (and a corresponding number of weekends and holidays) every month: Mental Health Act 2007 (NSW) s 31. The proposed revision would remove this distinction without imposing a greatly increased burden upon the tribunal hearings, as it would anticipate that those persons affected by mental illness or distress who would previously have been mentally disordered persons would rarely stay as non-voluntary patients long enough to trigger a tribunal review.
131. Ideally references to "involuntary" should also be replaced by "non-consensual". The term "involuntary" is usually used to denote something done against a person's will or decided preference. The term is not out place in the Act as written, but the suggested revision would see treatment offered only to those incapable of electing to undergo treatment or to refuse it. In these circumstances, non-consensual is to be preferred.
132. Mental Health Act 2007 (NSW) s 12.
133. Ibid s 27.
134. Ibid ss27(d), 35.
135. McCubbin (n 59).
136. Guardianship Act 1987 (NSW) s 33A.
137. Guardianship Act 1987 (NSW) s 40(3).
138. T Bogdanoski, 'Psychiatric Advanced Directives: The New Frontier in Mental Health Law Reform in Australia?' (2009) 16 Journal of Law and Medicine 891;
139. P Hobbs, 'The Limitations of Advance Directives and Statements in Mental Health' (2007) 15 Australasian Psychiatry 22;
140. Australian Capital Territory, Department of Health, Review of the ACT Mental Health (Treatment and Care) Act 1994: Options Paper (2007) 20.
141. DL Ambrosini and AG Crocker, 'Psychiatric Advance Directives and the Right to Refuse Treatment in Canada' (2007) 52 Canadian Journal of Psychiatry 397;
142. JW Swanson, MS Swartz, EB Elbogen, RA van Dorn, R Wagner, LA Moser, C Wilder and AR Gilbert, 'Psychiatric Advance Directives and Reduction of Coercive Crisis Interventions' (2008) 17 Journal of Mental Health 255;
143. JM Atkinson, 'Ulysses' Crew or Circe? - The Implications of Advance Directives in Mental Health for Psychiatrists' (2004) 28 Psychiatric Bulletin 3.
144. Whilst there is good reason to believe that a competently made out advanced directive affords a SDM a good window into a person's desires, there is a strong argument that advanced directives should not be nai{dotless}̈vely applied as it is well known that people's preferences change with time and circumstance, and individuals are unable to accurately forecast their own future preferences:
145. CJ Ryan, 'Betting Your Life: an Argument Against Certain Advance Directives' (1996) 22 Journal of Medical Ethics 95; Hobbs (n 70).
146. Guardianship Act 1987 (NSW) s 40(3)(a).
147. GS Owen, AS David, P Hayward, G Richardson, G Szmukler and M Hotopf, 'Retrospective Views of Psychiatric In-Patients Regaining Mental Capacity' (2009) 195 British Journal of Psychiatry 403.
148. This is in fact somewhat broader than the provisions in the NSW Guardianship Act that apply to medical treatment and which require that decisions must be "for the purpose of promoting and maintaining. health and well-being": Guardianship Act 1987 (NSW) ss 4(a), 32(b).
149. Hunter and New England Area Health Service v A [2009] NSWSC 761 ("Hunter v A");
150. Brightwater Care Group (Inc) v Rossiter [2009] WASC 229.
151. FI v Public Guardian [2008] NSWADT 263.
152. Bland [1992] UKHL 5.
153. The best interests provision would also make it very unlikely that NSW physicians would feel compelled to obey an advanced directive forbidding treatment made by a person who had made a suicide attempt, as occurred recently in the case of Kerrie Wooltorton in the UK: "Inquest into the death of Kerrie Wooltorton' The Guardian (London 29 September 2009).
154. A Gabbatt, 'Doctors acted legally in "living will" suicide case' The Guardian (London 1 October 2009).
155. V Storm, 'Despair is not the end of the road but the beginning' Sydney Morning Herald (Sydney 5 October 2009) 8;
156. CJ Ryan and S Callaghan, 'Legal and Ethical Aspects of Refusing Medical Treatment after a Suicide Attempt: The Wooltorton Case in the Australian Context' (2010) 193 Medical Journal of Australia 239. Nor, though, would it prohibit them from withholding treatment if they believed that to do so would be in the patient's best interests.
157. Richardson (n 3).
158. M Patfield, 'The "Mentally Disordered" Provisions of the New South Wales Mental Health Act 1990: Their Ethical Standing and Effect on Services' (2006) 14 Australasian Psychiatry 263.
159. Mental Health Act 2007 (NSW) s 15.
160. Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18 ("Re T") [28] (Lord Donaldson).
161. Hunter v A [2009] NSWSC 761 [24] (McDougall J).
162. Richardson (n 3).