Abstract
The aim of this chapter is to describe a type of law governing involuntary treatment that is based on decision-making capability and not on risk of harm to self or others. It is consistent with the legal and ethical principles followed in general medicine, and non-discriminatory against people with a mental illness. The rationale behind the proposal is outlined, as well as its principles and main features. It is argued that this type of law could be adapted to the needs of low and middle-income countries without sacrificing its underlying principles, and that it lends itself to such adaptation much better than traditional mental health legislation.
To appear in: ‘Mental Health in South Asia; Ethical, Legal and Allied Issues’ (Ed JK Trivedi & A Tripathi) Springer series in International Library of Ethics, Law and the New Medicine
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Notes
- 1.
In fact, even the best available risk assessment instrument, under the best research conditions, will be wrong more than 9 times out of 10 in predicting whether a person with a mental disorder will commit a serious act of violence, those acts occurring in about 1 % of patients with a psychosis in any year (Large et al. 2011).
- 2.
The assessment of decision-making capability may involve, especially in difficult cases, a need to also consider beliefs, values and emotional factors. For further discussion see Tan, A. Stewart, R. Fitzpatrick & T. Hope. Competence to make treatment decisions in anorexia nervosa: thinking processes and values. Philosophy, Psychiatry, Psychology, 13,4 (2006): 267; Banner and Szmukler (2014) Radical Intepretation and decision-making capacity, Journal of Applied Philosophy. (in press).
- 3.
The role of the ‘substitute decision maker’ in the sense we are using the term here refers to a person who acts according to the patient’s ‘best interests’, from the patient’s point of view; that is, makes, in association with others who know the patient well, the best interpretation of what the person would have decided were they to have retained capacity and found themselves in their current circumstances. As the term ‘substitute decision maker’ entails some ambiguity, a case can be made for using the term ‘facilitator’ as suggested by Bach and Kerzner (2010) which would make it clear that role of this person is to give expression to the ill person’s will and preferences—when supported decision making has proved inadequate—and to do so until the person has recovered the capability to make decisions, with or without supports.
- 4.
It would be in keeping with the UN CRPD to add clauses that clarify the nature of supported decision-making and how it could be implemented and supported.
- 5.
It is arguable whether the specification of an ‘impairment or disturbance in the functioning of mind’ is necessary. It might be claimed that this identifies a category of persons with a ‘disability’ and that by introducing such a ‘status’ the proposed model law may contravene what some authorities’ view as a requirement under the UN CRPD that criteria for non-consensual treatment must be based on ‘disability-neutral’ criteria. (See Szmukler et al. (2014) for further discussion of this subject). It is hard to imagine an impairment of decision-making capability that is not associated with some kind of disturbance of mind.
- 6.
See footnote 4 above as to what is meant by ‘best interests’.
- 7.
See footnote 4 above concerning the meaning of the term ‘substitute decision-maker’. It could be replaced by ‘facilitator’.
- 8.
For example, when P is admitted to hospital for treatment in his or her best interests, but is violent to others while there.
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Szmukler, G., Tripathi, A., Daw, R., Dawson, J. (2015). A Mental Health Law for Low and Middle Income Countries. In: Trivedi, J., Tripathi, A. (eds) Mental Health in South Asia: Ethics, Resources, Programs and Legislation. International Library of Ethics, Law, and the New Medicine, vol 58. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9017-8_17
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