Querying the Call to Introduce Mental Capacity Testing to Mental Health Law: Does the Doctrine of Necessity Provide an Alternative?

Abstract

Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. However, a key criterion for compulsory mental health treatment under typical mental health legislation is a psychiatric diagnosis (in conjunction with risk of harm and other criteria). Hence, for people with mental health disabilities, rights to liberty and consent in healthcare are held to a different standard compared to other citizens. A prominent law reform option being explored by some governments and commentators for achieving non-discrimination is to replace the diagnostic criterion for triggering involuntary intervention with an assessment of mental capacity. After all, every citizen is subject to restrictions on autonomy where they are deemed to lack mental capacity, such as where concussion necessitates emergency service. However, the use of mental capacity "testing" is seen by diverse commentators as wanting in key respects. A prominent criticism comes from the United Nations Committee on the Rights of Persons with Disabilities, which considers mental capacity assessments a form of disability-based discrimination. This article queries the call to replace the diagnostic criterion in mental health law with an assessment of mental capacity in the light of jurisprudence on equality and non-discrimination in international human rights law. Instead, we examine the doctrine of necessity as an area of law, which might help identify specific thresholds for overriding autonomy in emergency circumstances that can be codified in a non-discriminatory

The Flag of Imagination: Peru's New Reform on Legal Capacity for Persons with Intellectual and Psychosocial Disabilities and the Need for New Understandings in Private Law

“…That is something we need to come up with. Academics are trying to deliver disability-neutral understandings for consent (Brosnan and Flynn, 2017), State intervention (Flynn & Arstein-Kerslake, 2017;Gooding & Flynn, 2015)) and care and autonomy (Feder Kittay, 2005, p. 8). Lawyers and academics from the Civil Law (Continental) tradition need to think about how the recognition of the legal capacity of persons with disability and the provision of support alter our view on the juridical act.…”

Protecting Patients from their Bad Decisions: Rebalancing Rights, Relationships, and Risk

“…One possibility would be to restrict the defence of necessity to those situations where there is a duty to act to prevent neglect of the patient. 147 The new laws on wilful neglect by doctors and neglect by providers could be utilised to carve out a limited sphere in which doctors might be expected to intervene to prevent potential harm to a patient making an involuntary treatment refusal. Only in these rare cases would a doctor be justified in acting without the consent of the patient or the court.…”

State intervention in the lives of people with disabilities: the case for a disability-neutral framework

“…In the context of support to exercise legal capacity, we have previously argued that supporters must respect will and preferences 'unless to do so would constitute criminal or civil negligence' (Flynn & Arstein-Kerslake 2014). Gooding and Flynn (2015) build upon this approach in the context of the abolition of discriminatory mental capacity assessments for involuntary mental health treatment, and suggest that intervention by third parties is permissible here where the individual is at risk of 'imminent and grave risk of harm, and failure to intervene would constitute criminal or civil negligence.' The purpose of this proposal was to attempt to place legislative boundaries on the common law doctrine of necessity and to suggest how negligence law could be reshaped to further restrict powers of intervention for third parties.…”