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Note that the above procedure does not apply to emergency situations, special treatments or research, which are discussed below. 8.3.6 Proxy consent for treatment Certain jurisdictions provide for the appointment of a personal representative, a family member or a legally appointed guardian <strong>who</strong> has the right to give consent to treatment on the patient’s behalf. Clearly, proxy consent can only be considered in situations where a person’s lack of capacity to consent to treatment has been established. “Proxy” consent in many circumstances is a form of involuntary treatment. Any proxy or surrogate should be bound by a “substituted judgement” st<strong>and</strong>ard in making decisions for a person without capacity. That is, surrogates should make the decision they believe the incapacitated person would have made if that person had the capacity to make the decision. Where the person never had capacity – such as certain people with mental retardation – the st<strong>and</strong>ard merges with a “best interest” st<strong>and</strong>ard. Even then, however, surrogates should strive to learn about the person’s particular situation so that they can make the decision that is closest to their perception of the known wants <strong>and</strong> needs of the incapacitated person. There are advantages to proxy decisions by family members; they are the most likely to have the patients’ best interests at heart <strong>and</strong> to be familiar with the patient’s own values. Simultaneously, it should be acknowledged that “proxy” decisions – particularly when they happen to be made by family members – might not be truly independent. Conflicts of interest can occur in families, <strong>and</strong> family members may equate their best interests with the patient’s best interests. Safeguards incorporated in rules governing involuntary treatment should therefore also apply to proxy consent; e.g. patients should have the right to appeal even in circumstances of proxy consent. In some countries’ <strong>legislation</strong>, provision is made for an “advance directive”, whereby persons with a mental disorder may, during periods when they are “well”, determine what they find acceptable or unacceptable for periods when they are unable to make informed decisions. They may also determine <strong>who</strong> should make decisions on their behalf at times when they cannot make informed decisions (see Annex 9 for an example of New Zeal<strong>and</strong>’s advance directives for mental health patients). A recent study has shown that the negotiation of a joint crisis plan among patients <strong>and</strong> mental health teams, including the preparation of advance directives specifying treatment preferences, can result in reduced involuntary admissions in patients with severe mental disorders (Henderson, 2004). More problematic is when a person with a mental disorder specifies advance refusal of treatment. Some mental health professionals are reluctant to accept that such an advance refusal should apply in a later situation when a patient meets the criteria for involuntary treatment, <strong>and</strong> where honouring the advance refusal of treatment would deprive a seriously ill patient of needed treatment, or where patients could do harm to themselves or others. Proxy consent to treatment: Key issues • Proxy consent may be given to a personal representative, a family member or a legally appointed guardian <strong>who</strong> has the right to give consent to treatment on the patient’s behalf. • Rules governing involuntary treatment “by proxy” should incorporate safeguards. For example, patients should have the right to appeal. • “Advance directives” give patients an opportunity to make decisions for themselves during periods when they are able to give informed consent for periods when they are not so capable. If a law provides for the use of advance directives or other forms of substitute decision-making, it should define such terms clearly <strong>and</strong> consistently. 56
8.3.7 Involuntary treatment in community settings MI Principles: Treatment in the least restrictive environment Every patient shall have the right to be treated in the least restrictive environment <strong>and</strong> with the least restrictive or intrusive treatment appropriate to the patient’s health needs <strong>and</strong> the need to protect the physical safety of others. (Principle 9(1), MI Principles) Based on the principle of least restrictive alternative, some countries have enacted <strong>legislation</strong> that permits involuntary treatment of patients residing in community settings. The community setting is regarded as usually less restrictive than a hospital (although highly restrictive living conditions <strong>and</strong> intrusive medical interventions that can be part of community orders are sometimes more restrictive than, for example, a short stay in hospital). Examples of less restrictive settings would generally include outpatient treatment, day hospital treatment, partial hospitalization programmes <strong>and</strong> home-based treatment. There are other reasons why some countries have made provision for involuntary treatment in the community. First, professionals <strong>and</strong> others are concerned about the occurrence of a “revolving door” situation, whereby persons with mental disorders undergo involuntary admission <strong>and</strong> treatment, stop medication on discharge <strong>and</strong> relapse, leading to an ongoing cycle of involuntary admission <strong>and</strong> treatment. Secondly, there is a fairly common public – as well as professional – perception that deinstitutionalization has failed in many countries, <strong>and</strong> that the number of persons with mental disorders in the community poses a public risk (Harrison, 1995; Thomas, 1995). Some countries have community supervision orders that require individuals to reside at a specified place <strong>and</strong> attend specified treatment programmes (such as counselling, education <strong>and</strong> training). They also grant the individuals access to mental health professionals at their homes, but do not include having to submit to medication without consent. Other countries have enacted community treatment orders that include a provision for involuntary medical treatment. New Zeal<strong>and</strong> has revised its mental health <strong>legislation</strong> to accord with the least restrictive principle. Under the Mental Health (Compulsory Assessment <strong>and</strong> Treatment) Act, Sec. 28(2), when a court has ruled that the certification criteria (for involuntary treatment) have been met “the court shall make a community treatment order unless the court considers that the patient cannot be treated adequately as an outpatient, in which case the court shall make an inpatient order.” Such legislative provisions aim to promote community-based treatment rather than an outmoded institutional admissions framework. Certain other countries have introduced the concept of conditional leave, based on the principle of the least restrictive alternative, in order to aid community reintegration of patients <strong>who</strong> have received involuntary treatment in hospital settings. At this juncture, the evidence base for the effectiveness of compulsory community supervision <strong>and</strong>/or treatment orders is still rather new. Such orders appear to decrease rehospitalization <strong>and</strong> total hospital days when they are accompanied by intensive community-based treatment, which requires a substantial commitment of manpower <strong>and</strong> financial <strong>resource</strong>s (Swartz et al., 1999). Community supervision <strong>and</strong> treatment <strong>legislation</strong> should be introduced only in the context of accessible, quality community-based mental health services that emphasize voluntary care <strong>and</strong> treatment as the preferred option. There is a significant risk that compulsory community supervision could cause mental health services to rely on compulsion for providing communitybased care, rather than focusing on making such services acceptable to users <strong>and</strong> investing efforts <strong>and</strong> <strong>resource</strong>s in engaging users in such services voluntarily. Critics – particularly those from groups representing users – have argued that compulsory supervision <strong>and</strong> treatment orders amount to “institutionalization” within the community, <strong>and</strong> they are strongly opposed to such measures being taken. 57
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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
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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
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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 and 72: as an inpatient or outpatient. This
Page 73: Example: Successful appeal of an ad
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
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Page 97 and 98: 15.4 The post-sentencing (serving s
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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
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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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