The law places considerable weight on the question of whether a person has, or lacks, mental capacity. But approaches differ over whether and how capacity assessments should be sensitive to risk. Should a more stringent test be applied where risk is high? The question has generated considerable debate among bioethicists and jurists. In this paper, we review the literature and consider the standard of capacity defined in the Mental Capacity Act 2005 in England/Wales (MCA). While the MCA has been extensively discussed, the question of whether it adopts a ‘sliding scale’ for assessments of capacity has not been squarely addressed. We review the knotty legal history of the statute regarding this issue, and argue that the MCA is best understood as adopting neither a risk-ability nor a risk-evidence sliding scale. We show that the MCA nonetheless accommodates risk-sensitivity in capacity assessment in at least three different ways. The first derives the MCA’s approach to decision-specificity, the second from a risk-investment sliding scale, the third from what Law Commission once described as a ‘general authority’ for carers to act. We argue that the resulting approach steers around two objections that critics have levied against sliding scales for capacity assessment.
There is an urgent need in the delivery of mental health services to incorporate a more human-rights oriented approach, and promote supported decision-making, whereby individuals are supported their own mental health decisions based on their will and preferences. Aotearoa/New Zealand’s current Mental Health Act enables the use of compulsory treatment, which breaches both international obligations under the Convention of the Rights of Persons with Disabilities and the principles of Te Tiriti o Waitangi (the Treaty of Waitangi), the covenant between Māori and the Crown which demands partnership and equity and the principle of self-determination for Māori. Mental Health Advance Preference Statements (MAPS) have been identified as a tool to promote supported decision-making and allow people a voice in their own care. This paper examines the foundations of a new project which is Māori-centred and co-produced with stakeholders, including tāngata whaiora who experience mental distress and those who work and research mental health services. The aim of this project is to create and implement culturally appropriate and locally relevant MAPS-type tools and then evaluate the impact of implementation. It is posited this will lead to improvements in health and equity, particularly for Māori.
This is a transcript of a talk by Graham Morgan MBE – Mental Welfare Commission for Scotland – to the Third UK and Ireland Mental Health and Diversity Law Conference, July 2023. Nottingham (England.) Graham drew on the Report of the Scottish Review into Mental Health Legislation for this talk and for a better understanding of how he thinks coercion could be further reduced would especially recommend reading the chapters on Human Rights Enablement, Autonomous Decision Making Tests, Supported Decision Making and Economic Cultural and Social Rights.
In 2018, following a significant increase in violence against NHS staff and others serving the public, the UK Parliament passed a piece of legislation which included the creation of a new offence category, ‘Assault against an Emergency Worker’. The intention was to codify the aggravating nature of assaults against emergency workers as a reflection of the moral outrage such behaviour should attract. However, the actual implementation of this law has been criticised as adding very little to the lofty promises of promoting a “zero tolerance” culture. In this paper we review the new legal framework and attempt to highlight potential effects arising from its implementation.
On 27 April 2022, Singapore executed Nagaenthran K. Dharmalingam, a 33-year-old Malaysian who was convicted of trafficking 42.72 grams of heroin. His execution was carried out despite calls from United Nations (UN) human rights experts, including the Special Rapporteur on the Rights of Persons with Disabilities, for the government to commute his death sentence inter alia on the basis that Nagaenthran did not have access to procedural accommodations for his disability during his interrogation and death sentences should not be carried out on persons with serious psychosocial and intellectual disabilities. Nagaenthran’s execution has put Singapore’s criminal legal system, particularly in respect of its treatment of offenders with intellectual and psychosocial disabilities, under international scrutiny.
The Mental Capacity Act (Northern Ireland) 2016 was enacted by the Northern Ireland Assembly in May 2016. The first phase of the Act came into operation during 2019 and includes provisions for Deprivation of Liberty Safeguards (DoLS). When fully implemented this legislation will integrate mental capacity and mental health legislation into a single piece of legislation, for people aged 16 years and over. Given the recent introduction of Trust Panels as a new mechanism for DoLS, this study is the first of its kind. This small-scale exploratory study is a survey of 33 social workers who have made DoLS applications to Trust Panels. The findings illustrate social workers’ experiences of applying for Trust Panel authorisation for interventions amounting to deprivation for liberty with adults who lack the capacity to make the relevant decisions. The findings report on the social workers’ level of experience in undertaking applications, their views about training for Mental Capacity Act work, and their perceived confidence levels for this work. The factors that have helped or hindered practitioners are also highlighted. The data collection was undertaken during the COVID-19 pandemic, and the impact of changes to work practices during this time are acknowledged. The study makes recommendations for further developing training, practice, and research.
Although not designed to be read together, these two works complement each other interesting ways in addressing
The Mental Capacity Act 2005 (‘the Act’) (UK) and associated rules and guidance aim to support the person with impaired decision-making to participate in decisions about their life. More than a decade after the Act came into force, there is uncertainty about what it means for the person (‘P’) who is the subject of proceedings in the Court of Protection (‘CoP’) to participate in court hearings. This paper reviews the law and guidance on participation of P as well as the limited published research on P’s participation. The authors identify gaps in the current legal framework and conclude that research which captures the views of judges, practitioners, and not least, P and their families and carers, is a necessary step towards improved CoP guidance and practice promoting the participation of P.
Malingering – the feigning of mental or physical health symptoms for external gain – is a significant problem for clinicians, the courts, and society. For clinicians working in mental health settings, it is a complex task to differentiate malingered presentations from genuine ones, with a range of potential legal and ethical questions facing the clinician who conducts this task. Yet, the malingering of mental health problems has a range of potential impacts. For the courts, malingering presents a significant threat to their basic function by acting as a significant impediment to truth. For society, malingering wastes clinical time, leaves the potential for injustice to occur in response to criminal acts, and has a significant financial burden in unwarranted civil payments. The focus of the present review is therefore to review the issue of malingering from a legal perspective, leading to a consideration of recommendations for a clinician faced with assessing a client suspected of malingering behaviour.
Using Hong Kong’s mental health legislation as a case study, this article asks whether provisions in domestic mental health legal frameworks which seek to restrict the institution of legal proceedings against those working under such legislation may be justified, given the implications they have on the fundamental right to access to justice. Under section 69 of the Hong Kong Mental Health Ordinance, legal proceedings cannot be brought against anyone acting in pursuance of the Ordinance unless leave has been given by a court, and such leave shall not be given unless the court is satisfied there is a ‘reasonably arguable’ case of bad faith or negligence. Limited case law on section 69 and Hong Kong mental health jurisprudence in general indicate that this test is likely to be applied by judges stringently, with the result that mental health patients face a virtually insurmountable hurdle should they wish to bring actions against professionals for wrongful or negligent treatment under the Ordinance. The author argues that provisions such as section 69 are rooted in discriminatory stereotypes of persons with mental illness as particularly ‘vexatious’ litigants and constitute unjustified barriers to their right to equal access to the courts. In Hong Kong’s case, in particular, section 69 operates within and reinforces a broader legislative framework that is systemically discriminatory against those who fall under the compulsory mental health regime. As such, such provisions must be seriously reconsidered and reformed.
In every Australian jurisdiction, legislation permits mental health service providers and/or mental health tribunals to force people with mental illness to engage in treatment, under Community Treatment Orders (CTOs). Despite considerable efforts made by every Australian state and territory to meet human rights obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) (2008; Maylea & Hirsch, 2017), Australia has rates of CTO usage that are very high by world standards (Light, 2019). Even within Australia, rates of CTO usage vary considerably between and within jurisdictions in spite of the legislation being very similar (Light, 2019; Adult mental health quarterly KPI report, 2019). This occurs in the context of mixed evidence about the efficacy of CTOs and a lack of clear understanding of their purpose (Segal et al., 2017; Kisely et al., 2017). The use of CTOs remains one of the most contentious issues in mental health service delivery. Not only is their efficacy unresolved, they also raise serious ethical and human rights concerns. The current debates, and attempts at reform, must be informed by valid and reliable data. This brief commentary will make the case for a research agenda that addresses the minimal research that has been undertaken to address the variations of CTO use across Australian jurisdictions.
After its ratification of the 2006 United Nations Convention on the Rights of People with Disabilities (UNCRPD), the Indian government proceeded to work through a list of laws from various fields – employment, housing, healthcare, personal status – that would need to be amended to guarantee the rights in the UNCRPD. Regarding the healthcare of persons with mental illness, the law-drafters deemed it insufficient to merely amend the existing law and proceeded to draft a new, innovative mental healthcare law. When the Mental Healthcare Act (MHA) was passed in 2017, responses were strongly polarised: On the one hand, it was lauded for staying true to the vision of the UNCRPD (Duffy & Kelly, 2019), while on the other hand, especially psychiatrists heavily criticised that they anticipated the law would adversely affect their ability to treat patients
The Chilean legal regulation of disability has advanced towards an adequate legal framework for the progressive development of state practices respectful of the rights of people with disabilities. The ratification of the CRPD (2008) has been followed by an increasing amount of legislation directed to the inclusion of people with disabilities. The most important of this new disability regulation is the Law 20422 [on equal opportunities and social inclusion of people with disability]. Chile, in this way, can be regarded as a slow but persistent student of the teachings of the CRPD. Despite these positive developments, certain obligations under the CRPD are still pending, especially clear in the legal regulation affecting mental disability. The controversies surrounding legal capacity and mental health law are probably the most important issues surrounding the hesitation to carry out a reform.
