Autonomy in Jeopardy

Contrasting Participatory Health Models With Patient Decision Making Under Mental Health Law

Cath E. Roper; Vrinda Edan


J Participat Med. 2011;3 

In This Article


Mental Health Legislation

Most developed countries have provisions for involuntary psychiatric treatment through the enactment of MHL designed to govern both inpatients in hospitals and people living in the community. The broad purpose of MHL is twofold: to protect the community from harm, and to protect the person from harm or deterioration of their condition. However, there aresignificant differences in the philosophical underpinnings of mental health laws between countries, and the existence of separate legislation governing people with psychiatric diagnoses continues to be the subject of considerable legal and ethical debate internationally.One point of contention is the question of whether it is ethically justifiable to allow refusal of medical treatment but not be able to refuse psychiatric treatment,[7] leading to the following arguments: (1) that there should be a single capacity test for all;[8] (2) that existing guardianship laws are sufficient; and, (3) that separate MHL is discriminatory.[9] The second point of contention is the question of whether MHL should be invoked on the grounds that the patient is a danger to the community, or solely on the grounds of deterioration of a person's condition, as a basis of the patient's access to treatment.[10 11] Differences in legislation in various countries reflect different views on these questions. For example, in most US jurisdictions, MHL can be used to detain a person in hospital, but is not necessarily used to ensure treatment because the right to refuse treatment is upheld. Similarly, in a study comparing mental health law in Australian and Canadian jurisdictions it was found that Canadian law tends to be more rights focused, allowing for treatment refusal where Australian law is more treatment focused and does not.[12]

Case Study: What is the Situation of People Governed by Mental Health Law in Victoria, Australia?

New mental health laws have been proposed in Victoria. However, because they will not likely be in force until 2013, the current Mental Health Act Victoria, 1986 (MHAV) is used as the basis for this case study. Under the MHAV, a medical practitioner is required to formally recommend a person for involuntary treatment under the MHAV. The authorized psychiatrist then examines the person within 24 hours and determines if the order should be confirmed using five criteria which include that the involuntary treatment is necessary for the person's safety, or the protection of the public, or to prevent deterioration of the person's condition; and that the person has refused or is unable to consent to treatment. The MHAV states that:

If an involuntary patient refuses to consent to necessary treatment or is not capable of consenting to treatment for his or her mental illness consent in writing may be given by the authorised psychiatrist.[13]

This provision is the mechanism for the psychiatrist becoming the substitute decision maker and highlights the displacement of the role of consent under the MHAV. Because the MHAV specifies treatment refusal as grounds for substitute decision making, in practice, a person could be determined as having capacity, could disagree with the proposed treatment, could give reasons but still become subject to mental health law for the purposes of administration of treatment deemed necessary. If an inpatient does not comply with treatment they may be compelled through other means such as a different mode of delivery, for example, injection rather than oral medication.

In Victoria, involuntary treatment in the community occurs through the operation of Community Treatment Orders (CTOs). Victoria is the district with the highest rates of CTOs in the world.[14] According to the "Lacking Insight" report by the Mental Health Legal Centre Victoria, figures obtained from the Mental Health and Drugs Division, Department of Health Victoria, put the number of people on CTOs in Victoria during the period 2007–2008 at 5,473[15] in an estimated population of 5.31 million people.[16] CTOs operate for either twelve or six months. Therefore, infringements of patient autonomy are not limited to single encounters between provider and patient. Because there is no limit to the number of times a CTO may be extended[13] it is possible for a person to be subject to MHL over the course of their life. If the person is in the community on a CTO, and is refusing treatment deemed necessary, the CTO can be used to arrange that the person be admitted to hospital so that the necessary treatment can be administered.[13] If a patient subject to a CTO was initially determined not to have capacity to consent but then regained capacity, this would not automatically result in that person regaining a right to refuse treatment.[17]