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

Davidson, Gavin; Brophy, Lisa; Campbell, J. E.; Farrell, Susan; Gooding, Piers; O'Brien, Ann-Marie

doi:10.1016/j.ijlp.2015.08.029

Cited by 51 publications

(36 citation statements)

References 30 publications

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“…It is becoming clear from international scholarship, and from legislative changes in other jurisdictions, that supported decision-making under the CRPD requires something more substantive than the version set out in the MCA [16][17][18][19][20][21][22]. At present, the chapter on supporting decision-making in the MCA Code of Practice [23] (pp.…”

Section: Social Context: Disabled People's Decision-making Rightsmentioning

confidence: 99%

Supported Decision-Making from Theory to Practice: Implementing the Right to Enjoy Legal Capacity

Harding

Taşcıoğlu

2018

Societies

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The right to equal recognition before the law, protected by Article 12 of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD), mandates the use of supported decision-making practices to enable disabled people, particularly those with intellectual and/or psychosocial disabilities, to enjoy their legal capacity. Finding ways to translate this theoretical mandate into practice poses a number of particularly challenging socio-legal issues, which this research seeks to address. The English Mental Capacity Act 2005 (MCA) sets out a right to support with decision-making (s.1(3)), underpinned by a presumption of capacity (s.1 (2)). Qualitative interviews with intellectually disabled people, their supporters, and care and support professionals were undertaken to explore how disabled people make decisions in their everyday lives, the kinds of support they need, and the strategies for supported decision-making used in practice. Analysis of these interviews suggests that a range of supported decision-making techniques have been developed in practice and are effective in supporting everyday preferences and some life choices. Paradoxically, it appears that as decisions become more complex, the support available to disabled people reduces. Specifically, much less support is available for more difficult decisions around finances, healthcare and legal matters. We argue that the reasons for this are due to a web of regulatory, social and policy issues. We conclude that implementing the right to enjoy legal capacity through supported decision-making will require a combination of regulatory reform, social change and policy amendment.

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Section: Social Context: Disabled People's Decision-making Rightsmentioning

confidence: 99%

Supported Decision-Making from Theory to Practice: Implementing the Right to Enjoy Legal Capacity

Harding

Taşcıoğlu

2018

Societies

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“…In this regard, current mental health legislation could potentially be deemed discriminatory as mental illness is considered a disability under the CRPD (Szmukler et al 2014). Current mental health legislation relies largely on a criterion (disability) and risk, to detain a patient without any requirement to consider a patient's functional ability to make a decision and as a result, is potentially incompatible with the CRPD (Davidson et al 2016). Amongst the legislative processes examined in this review, the HCCA currently employed in Ontario appears to best address this dilemma; however, negative consequences including extended periods of involuntary detention may occur.…”

Section: Discussionmentioning

confidence: 99%

A comparison of mental health legislation in five developed countries: a narrative review

Cronin

Gouda

McDonald

et al. 2017

Ir. j. psychol. Med.

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ObjectivesTo describe similarities and differences in mental health legislation between five jurisdictions: the Republic of Ireland, England and Wales, Scotland, Ontario (Canada), and Victoria (Australia).MethodsAn in-depth examination was undertaken focussing on the process of involuntary admission, review of Admission Orders and the legal processes in relation to treatment in the absence of patient consent in each of the five jurisdictions of interest.ResultsAll jurisdictions permit the detention of a patient if they have a mental disorder although the definition of mental disorder varies between jurisdictions. Several additional differences exist between the five jurisdictions, including the duration of admission prior to independent review of involuntary detention and the role of supported decision making.ConclusionsAcross the five jurisdictions examined, largely similar procedures for admission, detention and treatment of involuntary patients are employed, reflecting adherence with international standards and incorporation of human rights-based principles. Differences exist in relation to the criteria to define mental disorder, the occurrence of automatic review hearings in a timely fashion after a patient is involuntarily admitted and the role for supported decision making under mental health legislation.

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“…Partly because of the ambiguities in decision making created by these new laws, a continuum of views have emerged about how mental health social workers and other professionals can, or should, make assessments in such circumstances. As was mentioned earlier in the paper, governments have tended to interpret the tenets of the UNCRPD quite broadly to meet local legal, organisational and professional demands, as we have described elsewhere (Davidson et al, 2016b). (2007) when professionals make decisions about the capacity of people with mental health problems.…”

Section: International Variations In Capacity Lawsmentioning

confidence: 98%

“…More recently the introduction of laws on capacity has created more complex decision-making processes, in particular at the interface with mental health laws. The authors will draw upon their experiences of comparing the mental health social work role in these contexts, and across jurisdictions (Davidson et al, 2016a;Davidson et al 2016b;Campbell et al, 2006). This paper will examine how mental health social workers may provide support for legal capacity in the context of compulsory powers in the UK, Ireland, Victoria, Australia and Ontario Canada.…”

Section: Introductionmentioning

confidence: 99%

Legal capacity and the mental health social worker role: an international comparison

Campbell

Brophy

Davidson³

et al. 2018

Journal of Social Work Practice

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

Cited by 51 publications

References 30 publications

Supported Decision-Making from Theory to Practice: Implementing the Right to Enjoy Legal Capacity

Supported Decision-Making from Theory to Practice: Implementing the Right to Enjoy Legal Capacity

A comparison of mental health legislation in five developed countries: a narrative review

Legal capacity and the mental health social worker role: an international comparison

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