Special Issue "Concerns, Contradictions and Reality of Mental Health Law"

A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: closed (30 November 2018)

Special Issue Editor

Guest Editor
Professor Penelope June Weller

RMIT University, GPO Box 2476, Melbourne VIC 3001 Australia
E-Mail
Interests: Convention on the Rights of Person with Disabilities; Mental health law; Mental health advance directives; Coercion and recovery; Therapeutic jurisprudence; Mental health tribunals; Comparative law; Regulatory governance.

Special Issue Information

Dear Colleagues,

Mental Health Law is one of the most contested areas of health related law. Since the first ‘lunatic’ statutes of the 19th century, this specialised area of law has defined the relationship between the state and individuals with mental health problems. Mental health law encompasses civil commitment legislation, deprivation of liberty standards, sentencing practices, the law relating to unfitness to plead and the insanity defence. It invariably operates in the context of unwieldy mental health and criminal justice systems. It is frequently subject to cycles of aspirational reform, often in response to changing social attitudes toward people with mental health problems. Whether and to what extent mental health law is able to shape mental health or criminal justice systems, transform the practice of mental health and other professionals or impact on the lives of individual with mental health problems is uncertain.

Against an already turbulent background, the Convention on the Rights of Persons with Disabilities is posing a fresh challenge to the scope and content of mental health law. On one hand, the argument that the CRPD forbids the discriminatory treatment of people with disabilities in all areas of the law has been met with a strident defense of existing legal mechanisms that are said to protect the rights and interests of people with disabilities. On the other, the current debates about the efficacy of compulsory community treatment orders are seriously challenging the legitimacy of civil commitment laws. While these debates continue, the degradation of mental health services is resulting in a shift toward the incarceration of people with mental health problems. These issues point to the need for a fresh consideration of mental health law.

This Special Issue focuses on the concerns, contradictions and reality of mental health law, including the relationship between the CRPD and mental health law. What are the key concerns facing mental health law? How do these relate to mental health and criminal justice systems? Are there irresolvable contradictions? Are there basic issues that have been overlooked in past debates? How does mental health law and mental health law reform play in the practical context?  How does mental health law relate to human rights? What is the way forward?

Prof. Dr. Penelope June Weller
Guest Editor

Manuscript Submission Information

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Keywords

  • civil commitment
  • deprivation of liberty
  • sentencing
  • unfitness to plead
  • insanity defence
  • compulsory community treatment
  • Convention on the Rights of Person with Disabilities

Published Papers (6 papers)

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Research

Open AccessArticle
Judging Values and Participation in Mental Capacity Law
Received: 19 November 2018 / Revised: 23 January 2019 / Accepted: 24 January 2019 / Published: 1 February 2019
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Abstract
Judges face a challenging task in determining the weight that ought to be accorded to the person (P)’s values and testimony in judicial deliberation about her capacity and best interests under the Mental Capacity Act 2005 (MCA). With little consensus emerging in judicial [...] Read more.
Judges face a challenging task in determining the weight that ought to be accorded to the person (P)’s values and testimony in judicial deliberation about her capacity and best interests under the Mental Capacity Act 2005 (MCA). With little consensus emerging in judicial practice, incommensurable values drawn from divergent sources often collide in such cases. This paper outlines strict and flexible interpretations of the MCA’s values-based approach to making decisions about capacity and best interests, highlighting the problematic implications for the normative status of P’s values and the participatory role of P in judicial deliberations. The strict interpretation draws a false separation between ascertaining P’s values and the intrinsic value of enabling P’s participation in court proceedings; meanwhile, the flexible interpretation permits judicial discretion to draw on values which may legitimately override the expressed values of P. Whether in the ambiguous form of internal and/or extra-legal judicial values, these value sources demand further scrutiny, particularly regarding their intersection with the values held by P. We offer provisional normative guidelines, which set constraints on the appeal to extra-legal values in judicial deliberation and outline further research pathways to improve the justification around judicial decisions regarding P’s participation. Full article
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
Open AccessArticle
Who’s Talking About Us Without Us? A Survivor Research Interjection into an Academic Psychiatry Debate on Compulsory Community Treatment Orders in Ireland
Received: 7 August 2018 / Revised: 14 September 2018 / Accepted: 18 September 2018 / Published: 25 September 2018
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Abstract
This paper presents a user/survivor researcher perspective to the debate among psychiatrists on the suggested introduction of Community Treatment Orders in Ireland. Critical questions are raised about evidence and the construction of psychiatric knowledge. Important questions include: How is this evidence created? What [...] Read more.
This paper presents a user/survivor researcher perspective to the debate among psychiatrists on the suggested introduction of Community Treatment Orders in Ireland. Critical questions are raised about evidence and the construction of psychiatric knowledge. Important questions include: How is this evidence created? What and whose knowledge have not been considered? Some critical issues around coercion, ‘insight’, and attributions of ‘lack of capacity’ are briefly considered. Further legal considerations are then introduced based on the United Nations Convention on the Rights of Persons with Disability. The paper concludes with a human rights-based appeal to reject the introduction of coercive community treatment in Ireland. Full article
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
Open AccessArticle
Towards Changing Compulsory Community Mental Health Treatment in New Zealand: Shining Light on How Community Treatment Orders Are Produced
Received: 5 March 2018 / Revised: 3 August 2018 / Accepted: 6 August 2018 / Published: 14 August 2018
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Abstract
In this paper, we use a constructed scenario to illustrate making a compulsory community treatment order in the New Zealand context. Drawing on publicly available documentation, we outline the existing mental health law framework that produces community treatment orders and emerging complex problems [...] Read more.
In this paper, we use a constructed scenario to illustrate making a compulsory community treatment order in the New Zealand context. Drawing on publicly available documentation, we outline the existing mental health law framework that produces community treatment orders and emerging complex problems of their high, increasing and disproportionate use. We provide examples of human rights, indigenous and clinical effectiveness research that appear to be destabilising the existing mental health law framework. We argue assemblage theory (Deleuze & Guattari) is a useful theoretical tool to unpack the making and continued use of compulsory community treatment orders in the context of complex destabilising and stabilising influences. This is followed by an outline of the concept of assemblage with reference to the constructed scenario, focusing on processes, practices, places, types of knowledge, roles, documents and how they connect to produce certain effects that both enable and constrain participants’ actions. In the New Zealand context, we examine the potential for assemblage theory to generate new ways of thinking about compulsory mental health treatment in community settings by challenging perceived limitations and revealing opportunities for participants to act otherwise. We conclude with a proposal for further research shaped by this theory that explores the making of actual community treatment orders to reveal where there is potential to change existing relations towards more positive effects for participants. Full article
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
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Open AccessArticle
Paradigm Shift or Paradigm Paralysis? National Mental Health and Capacity Law and Implementing the CRPD in Scotland
Received: 4 April 2018 / Revised: 15 June 2018 / Accepted: 18 June 2018 / Published: 29 June 2018
Cited by 1 | PDF Full-text (233 KB) | HTML Full-text | XML Full-text
Abstract
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) highlights the need to actively remove obstacles to, and promote, the full and equal enjoyment of human rights by persons with disabilities. This is challenging us to revisit existing conceptions about [...] Read more.
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) highlights the need to actively remove obstacles to, and promote, the full and equal enjoyment of human rights by persons with disabilities. This is challenging us to revisit existing conceptions about what is genuine equal and non-discriminatory enjoyment of human rights by persons with cognitive, intellectual and psychosocial disabilities and to accept that a real and fundamental culture change is required in order to achieve this. Whilst many states are seeking to address CRPD requirements in law and policy, including those identified in its Article 12, it is arguable that these do not go far enough in order to secure this culture change. This article considers three issues that need to be resolved as part of the process of achieving this paradigm shift, namely capacity assessments as thresholds for involuntary interventions, authorising involuntary interventions and support for the exercise of legal capacity, both generally and in the particular context of Scotland’s mental health and capacity laws. In doing so, it argues that it is debatable whether the CRPD paradigm shift can be realistically achieved by simply adapted or supplementing current legal and policy models. Full article
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
Open AccessArticle
Consumers’ Experiences of Mental Health Advance Statements
Received: 21 March 2018 / Revised: 18 May 2018 / Accepted: 25 May 2018 / Published: 28 May 2018
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Abstract
Mental health psychiatric advance directives, advance statements, and similar documents are designed to convey a person’s treatment preferences to their treating clinicians at times when, due to their mental health, their ability to communicate or make decisions might be impaired. This paper explores [...] Read more.
Mental health psychiatric advance directives, advance statements, and similar documents are designed to convey a person’s treatment preferences to their treating clinicians at times when, due to their mental health, their ability to communicate or make decisions might be impaired. This paper explores the current debates in the literature and presents the findings of a small qualitative study that explored the experiences of people who had completed advance statements in Victoria, Australia. Data was collected through interviews with participants and analysis of their advance statement. Participants completed their advance statements for two main reasons; to authorise future treatment or to limit the power of their treating team. Participants also included non-treatment preferences that were linked to their recovery and pragmatic considerations, such as contact details and dietary requirements. Participants who had used their advance statement reported a lack of acceptance or inclusion from clinicians. Further consideration of the legal enforceability of advance statements is necessary, and if they are to continue to lack legal force, much work remains to be done to support acceptance by clinicians. Full article
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
Open AccessArticle
Decision-Making Behaviour under the Mental Health Act 1983 and Its Impact on Mental Health Tribunals: An English Perspective
Received: 21 February 2018 / Revised: 19 March 2018 / Accepted: 20 March 2018 / Published: 24 March 2018
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Abstract
In England and Wales, the Mental Health Act 1983 (MHA 1983) provides the legal framework which governs decisions made concerning the care and treatment of those suffering from mental disorders, where they may pose a risk to themselves or others. The perspective of [...] Read more.
In England and Wales, the Mental Health Act 1983 (MHA 1983) provides the legal framework which governs decisions made concerning the care and treatment of those suffering from mental disorders, where they may pose a risk to themselves or others. The perspective of the patient and the care provider may conflict and can be a source of tension and challenge within mental health law. Through access to a mental health tribunal, patients are offered the apparatus to review and challenge their detention. With detention rates under the mental health legislation rising exponentially, this is having a knock-on effect upon tribunal application numbers. As there is a legal requirement to review all cases of individuals detained under the MHA 1983, understanding the key drivers for this increase in detention is essential in order to understand how to better manage both detention rates and the upsurge in tribunal caseloads. With the increase in overall activity, mental health tribunal workloads present significant practical challenges and has downstream cost implications. Full article
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
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