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Based on the above recommendations, the treatment plan – as with admission recommendations – may be sanctioned by an independent authority (this may be the review body). The independent authority may be required to verify that the patient does indeed lack the capacity to give consent to treatment, <strong>and</strong> (under some <strong>legislation</strong>s) that the proposed treatment is in the best interests of the patient. As with admissions, this independent authority may be quasi-judicial or judicial. The key point is that the independent authority is different from the individual(s) proposing the treatment, <strong>and</strong> is made up of people with the requisite skills <strong>and</strong> knowledge to judge the competence of the patient. Although in some situations this body will be different from the body that authorizes the admission, this may not be possible in all situations. Where only a single body is available, its members would need to bear in mind the differing admission <strong>and</strong> treatment criteria. The authority could then decide on a range of options, for example, that a person must be involuntarily admitted but cannot be medically treated without his/her consent, that the patient be both admitted <strong>and</strong> treated, or that neither involuntary admission nor treatment is permissible. Where the same authority assesses for both admission <strong>and</strong> treatment, an opportunity is created for recommending treatment in the community (i.e. compulsory treatment without admission) – if that is an option for the country (see subsection 8.3.7 below). Another variation on independent sanctioning of involuntary treatment is to specify certain treatment modalities that require a separate review process. For example, treatment using depot psychotropic medications may require a separate procedure for sanctioning its use, but not for administering oral medication. When involuntary treatment is recommended, whether as part of a “combined” or “separate” approach, it is essential that the patient be protected from any undue harm <strong>and</strong> that the proposed treatment should aim to benefit the patient. In general, treatment should always be applied in response to a recognized clinical symptom, have a therapeutic aim, <strong>and</strong> be likely to entail a real clinical benefit – <strong>and</strong> not only have an effect on the administrative, criminal, family or other situation of the patient. Involuntary treatment must meet national <strong>and</strong>/or international treatment guidelines for the particular mental health condition – whichever offers the most protection <strong>and</strong> safeguards against abuse. Involuntary treatment must not be given for longer than is necessary, <strong>and</strong> should be systematically reviewed by the treating health practitioner <strong>and</strong> periodically by an independent review body. In some statutes, a maximum time limit for treatment may be stipulated. One of the key aims of the proposed treatment must be to restore the patient’s capacity, <strong>and</strong> when this occurs involuntary treatment should be stopped. In many cases, voluntary treatment will then commence. Where a time limit is stipulated, involuntary treatment must not extend beyond the sanctioned limit or beyond the restoration of the patient’s capacity – whichever happens earlier. Legislation can encourage professionals to engage patients <strong>and</strong>/or their families (or others concerned) in the development of the proposed treatment plan, even if the treatment is being imposed involuntarily. Patients <strong>and</strong> those caring for them must be informed immediately of their <strong>rights</strong> when patients are being involuntarily treated. Patients <strong>and</strong> their families <strong>and</strong>/or personal representatives must have a right to appeal to a review body, tribunal <strong>and</strong>/or court against the imposition of involuntary treatment. Once again, it is useful to have st<strong>and</strong>ardized forms for the process of appeal to a review body (see Annex 8 for an example of such a form). 54
Example: Successful appeal of an admitted patient against involuntary treatment in Ontario, Canada In Ontario, Canada, Professor Starson was admitted to hospital after he was found not criminally responsible for making death threats, <strong>and</strong> the Review Board ordered his detention for 12 months. The attending physician proposed medical treatment for his bipolar condition. Starson refused to consent to the treatment on the basis that medication dulled his mind <strong>and</strong> diminished his creativity, but the attending physician found him not capable of deciding whether to accept or reject medical treatment. Starson applied to the Consent <strong>and</strong> Capacity Board to review the physician’s decision. The Board confirmed the physician’s decision. However, the decision of the Board was subsequently overturned on judicial review by the Superior Court. This decision was in turn referred to the Court of Appeal, which upheld the lower court’s decision. The case went to the Supreme Court of Canada, the country’s highest court. In June 2003, the Supreme Court upheld the decision of the Ontario Court of Appeal. In terms of the Ontario Health Care Consent Act (see Sec. 2.3) a person must be able to underst<strong>and</strong> the information that is relevant to making a treatment decision, <strong>and</strong> must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. The Court found that the Board had misapplied the statutory test for capacity as well as being incorrect in its finding that Professor Starson failed to appreciate the consequences of his decision. This case demonstrates the important principles that: • admission without a person’s consent does not necessarily imply that he/she is incapable of making treatment decisions; • tests determining capacity are open to interpretation; • by allowing appeals to higher authorities, initial decisions on treatment can be reversed; • the integrity <strong>and</strong> inviolability of a person is a critical <strong>human</strong> <strong>rights</strong> principle. (Starson v. Swayze, 2003, SCC 32) When periodically reviewing involuntary treatment, the independent authority must ensure that grounds for continuing involuntary treatment persist. Where a time for allowing involuntary treatment has been stipulated <strong>and</strong> treatment beyond this time is required, the process of sanctioning treatment must be repeated. The mere refusal of treatment by a patient should not be considered as adequate grounds for resanctioning involuntary treatment. Involuntary treatment: Key issues • The criteria for involuntary treatment must be met before treatment is administered. • Procedure to be followed for involuntary treatment: a) The treatment plan should be proposed by an accredited mental health practitioner having sufficient expertise <strong>and</strong> knowledge to undertake the proposed treatment. b) A second independent accredited mental health practitioner should be required to agree to the treatment plan. c) An independent authority (review body) should meet as soon as possible after involuntary treatment has been recommended to review the treatment plan. It should meet again at set intervals to assess the need for continued involuntary treatment. d) Where the sanction for involuntary treatment is for a limited period, continued treatment can only be administered if the sanctioning process is repeated. e) Involuntary treatment should be discontinued when patients are judged to have recovered their capacity to make treatment decisions, when there is no longer a need for treatment or when the sanctioned time has elapsed – whichever happens earliest. f) Patients <strong>and</strong> their families <strong>and</strong>/or personal representatives should be immediately informed of involuntary treatment decisions being made <strong>and</strong>, as far as is feasible, they should be involved in developing the treatment plan. g) Once involuntary treatment is sanctioned, patients, families <strong>and</strong> personal representatives must be informed of their <strong>rights</strong> to appeal to a review body, tribunal <strong>and</strong>/or court against the involuntary treatment decision. 55
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WHO RESOURCE BOOK ON MENTAL HEALTH,
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All rights reserve
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Technical contribution and<
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Nacanieli Goneyali Maria Grazia Gia
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Leen Meulenbergs Harry I. Minas Alb
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Harvey Whiteford Ray G. Xerri XIE B
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5. Rights of users of mental health
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4.1.3 Sanction, promulgation <stron
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For whom is this R
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This chapter covers five main areas
Page 22 and 23: 3.2 Violations of human</st
Page 24 and 25: 3.5 Promoting access to mental heal
Page 26 and 27: health legislation
Page 28 and 29: The right to health, as embodied in
Page 30 and 31: trade, torture and
Page 32 and 33: The MI Principles have also served
Page 34 and 35: 8.4 The Salamanca Statement <strong
Page 37 and 38: Chapter 2 Content of mental health
Page 39 and 40: persons with mental disorders. The
Page 41 and 42: Mental disability is not synonymous
Page 43 and 44: Mental Disability Mental Incapacity
Page 45 and 46: Definition of “mental ill health
Page 47 and 48: Example: Mental health in primary c
Page 49 and 50: Another means of promoting communit
Page 51 and 52: MI Principles: Access to informatio
Page 53 and 54: Legislation (or accompanying regula
Page 55 and 56: Rights of users of mental health se
Page 57 and 58: mentally ill offender. Countries ma
Page 59 and 60: 7.3 Determining incapacity
Page 61 and 62: • The presence of a major mental
Page 63 and 64: The concept of “voluntary” prec
Page 65 and 66: The key issue for mental health <st
Page 67 and 68: “separate” process from admissi
Page 69 and 70: In some cases, certain families bel
Page 71: as an inpatient or outpatient. This
Page 75 and 76: 8.3.7 Involuntary treatment in comm
Page 77 and 78: Figure 1. Procedure for combined in
Page 79 and 80: Emergency situations: Key issues
Page 81 and 82: 10.1 Major medical and</str
Page 83 and 84: MI Principles: Seclusion an
Page 85 and 86: The MI Principles and</stro
Page 87 and 88: Authorize or prohibit intrusive <st
Page 89 and 90: • confidentiality • independent
Page 91 and 92: 14.2 Responding to calls for assist
Page 93 and 94: 15. Legislative provisions relating
Page 95 and 96: For minor offences, the court could
Page 97 and 98: 15.4 The post-sentencing (serving s
Page 99 and 100: 16. Additional substantive provisio
Page 101 and 102: • Right to work and</stro
Page 103 and 104: In countries where women are detain
Page 105: Kenya The Mental Health Act (Act No
Page 108 and 109: Figure 2. Process of mental health
Page 110 and 111: ) Qualitative information from focu
Page 112 and 113: When examining another country’s
Page 114 and 115: • The process of building a conse
Page 116 and 117: Consultation should be undertaken w
Page 118 and 119: Written submissions have the advant
Page 120 and 121: The group, body or individual(s) m<
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4.1.2 Debate of draft legis
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mental health facts and</st
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Example: The National Commission ta
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5.2.4 Developing information <stron
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Human resource iss
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Rosenthal E, Sundram C (2002). Inte
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Declaration of Hawaii (1983). Appro
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Bibliography Araya R et al. (2001).
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Introduction and h
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2) Does the legislation</st
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C. Access to mental health care 1)
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3) Does the legislation</st
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E. Rights of families or other care
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G. Voluntary admission and<
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) there is serious likelihood of ha
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• Patient lacks the capacity to m
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2) Are all the criteria and
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O. Special treatments 1) Does the l
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3) Does the law specify a restricte
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R. Oversight and r
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3) (iv) Maintain registers of accre
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• the right of patients a
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3) Does the law allow for people <s
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2) Does the law provide for “reas
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3) Does the law ensure that all min
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AZ. Offences and p
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• Inter-American Convention on th
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Civil and Politica
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5. A patient shall never be invited
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Principle 15 Admission principles 1
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Principle 20 Criminal offenders 1.
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Annex 5. Extract from the Declarati
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5. Organ Transplantation: The role
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Restraint & Seclusion: If condition
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Rights of Recipients Summary in Eng
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PART C TAKING PERSON TO APPROVED ME
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I base my opinion on the following
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Annex 9. Example: New Zeala
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Who can make an advance directive?
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