An international comparison of legal frameworks for supported and substitute decision-making in mental health services

There have been important recent developments in law, research, policy and practice relating to supporting people with decision-making impairments, in particular when a person’s wishes and preferences are unclear or inaccessible. A driver in this respect is the United Nations Convention on the Rights of Persons with Disabilities (CRPD); the implications of the CRPD for policy and professional practices are currently debated. This article reviews and compares four legal frameworks for supported and substitute decision-making for people whose decision-making ability is impaired. In particular, it explores how these frameworks may apply to people with mental health problems. The four jurisdictions are: Ontario, Canada; Victoria, Australia; England and Wales, United Kingdom (UK); and Northern Ireland, UK. Comparisons and contrasts are made in the key areas of: the legal framework for supported and substitute decision-making; the criteria for intervention; the assessment process; the safeguards; and issues in practice. Thus Ontario has developed a relatively comprehensive, progressive and influential legal framework over the past thirty years but there remain concerns about the standardisation of decision-making ability assessments and how the laws work together. In Australia, the Victorian Law Reform Commission (2012) has recommended that the six different types of substitute decision-making under the three laws in that jurisdiction, need to be simplified, and integrated into a spectrum that includes supported decision-making. In England and Wales the Mental Capacity Act 2005 has a complex interface with mental health law. In Northern Ireland it is proposed to introduce a new Mental Capacity (Health, Welfare and Finance) Bill that will provide a unified structure for all substitute decision-making. The discussion will consider the key strengths and limitations of the approaches in each jurisdiction and identify possible ways that further progress can be made in law, policy and practice.

The mental capacity of the American negro,

"Reprinted from the Archives of psychology, no. 28."

A guide to the Mental deficiency act, 1913 : containing a legal and general exposition of the act, with suggestions to local authorities, managers and others for the organization and administration of the work dealing with the mental defective /

Mode of access: Internet.

Community mental health act (HB 708 - as amended) 1969.

Mode of access: Internet.

Is providing elective ventilation in the best interests of potential donors?

In this paper, we examine the lawfulness of a proposal to provide elective ventilation to incompetent patients who are potential organ donors. Under the current legal framework, this depends on whether the best interests test could be satisfied. It might be argued that, because the Mental Capacity Act 2005 (UK) (and the common law) makes it clear that the best interests test is not confined to the patient's clinical interests, but extends to include the individual's own values, wishes and beliefs, the proposal will be in the patient's best interests. We reject this claim. We argue that, as things currently stand, the proposal could not lawfully be justified as a blanket proposition by reference to the best interests test. Accordingly, a modification of the law would be necessary to render the proposal lawful. We conclude with a suggestion about how that could be achieved.

Reinforcing guardianship regimes through assisted decision-making : a Scottish perspective

Guardianship laws which provide legal mechanisms for decision-making on behalf of adults with limited or impaired capacity to make decisions have become a feature of most Western jurisdictions. In the UK, the Adults with Incapacity (Scotland) Act 2000 and the English and Welsh Mental Capacity Act 2005 have established a comprehensive framework for authorising medical, financial and welfare decisions to be taken on behalf of adults who are unable to take any or all such decisions themselves. One feature of guardianship regimes has been their tendency to evolve over time. Legal reforms have been instigated by the changes in philosophical views about how society should engage with adults with a decision-making impairment and also modern views about the role human rights play in guardianships regimes. The latest ideas in guardianship regimes around the Western world centre on the possibility of legal recognition of the concept of assisted decision-making...

Improving the management of behaviour that challenges associated with dementia in care homes:protocol for pharmacy-health psychology intervention feasibility study

INTRODUCTION: The inappropriate use of antipsychotics in people with dementia for behaviour that challenges is associated with an estimated 1800 deaths annually. However, solely focusing on antipsychotics may transfer prescribing to other equally dangerous psychotropics. Little is known about the role of pharmacists in the management of psychotropics used to treat behaviours that challenge. This research aims to determine whether it is feasible to implement and measure the effectiveness of a combined pharmacy-health psychology intervention incorporating a medication review and staff training package to limit the prescription of psychotropics to manage behaviour that challenges in care home residents with dementia. METHODS/ANALYSIS: 6 care homes within the West Midlands will be recruited. People with dementia receiving medication for behaviour that challenges, or their personal consultee, will be approached regarding participation. Medication used to treat behaviour that challenges will be reviewed by the pharmacist, in collaboration with the general practitioner (GP), person with dementia and carer. The behavioural intervention consists of a training package for care home staff and GPs promoting person-centred care and treating behaviours that challenge as an expression of unmet need. The primary outcome measure is the Neuropsychiatric Inventory-Nursing Home version (NPI-NH). Other outcomes include quality of life (EQ-5D and DEMQoL), cognition (sMMSE), health economic (CSRI) and prescribed medication including whether recommendations were implemented. Outcome data will be collected at 6 weeks, and 3 and 6 months. Pretraining and post-training interviews will explore stakeholders' expectations and experiences of the intervention. Data will be used to estimate the sample size for a definitive study. ETHICS/DISSEMINATION: The project has received a favourable opinion from the East Midlands REC (15/EM/3014). If potential participants lack capacity, a personal consultee will be consulted regarding participation in line with the Mental Capacity Act. Results will be published in peer-reviewed journals and presented at conferences.

Risk, Recovery and Capacity: Competing or Complementary Approaches to Mental Health Social Work

Mental health social workers have a central role in providing support to people with mental health problems and in the use of coercion aimed at dealing with risk. Mental health services have traditionally focused on monitoring symptoms and ascertaining the risks people may present to themselves and/or others. This well-intentioned but negative focus on deficits has contributed to stigma, discrimination and exclusion experienced by service users. Emerging understandings of risk also suggest that our inability to accurately predict the future makes risk a problematic foundation for compulsory intervention. It is therefore argued that alternative approaches are needed to make issues of power and inequality transparent. This article focuses on two areas of practice: the use of recovery based approaches, which promote supported decision making and inclusion; and the assessment of a person’s ability to make decisions, their mental capacity, as a less discriminatory gateway criterion than risk for compulsory intervention.