Mental Health and the Law

The use of digital technologies in mental health initiatives is expanding, leading to calls for clearer legal and regulatory frameworks. However, gaps in knowledge about the scale and nature of change impede efforts to develop responsible public governance in the early stages of what may be the mass uptake of ‘digital mental health technologies’. This article maps established and emerging technologies in the mental health context with an eye to locating major socio-legal issues. The paper discusses various types of technology, including those designed for information sharing, communication, clinical decision support, ‘digital therapies’, patient and/or population monitoring and control, bio-informatics and personalised medicine, and service user health informatics. The discussion is organised around domains of use based on the actors who use the technologies, and those on whom they are used. These actors go beyond mental health service users and practitioners/service providers, and include health and social system or resource managers, data management services, private companies that collect personal data (such as major technology corporations and data brokers), and multiple government agencies and private sector actors across diverse fields of criminal justice, education, and so on. The mapping exercise offers a starting point to better identify cross-cutting legal, ethical and social issues at the convergence of digital technology and contemporary mental health practice.

The material presented is based on a pilot European project (Daphne Project, 2000/EU funding, collaboration between Greece and England) regarding parental mental illness and the children's welfare and needs.1 The presentation focuses upon the responses of a group of teachers working in primary education in relation to the identification and assessment needs of children who live with a mentally ill parent. The results showed that, although the teachers are able to identify risks and protective factors in the cases of a parental mental illness, there is a lack of early identification mechanisms in schools and an absence of a shared understanding of relevant issues across services and agencies. The results are discussed in relation to school-based prevention initiatives that empower teachers to feel that they contribute to change in their schools as well as in their own classroom practice.

Background: Compulsory mental health hospital admissions are increasing in several European countries but are coercive and potentially distressing. It is important to identify which mental health service models and interventions are effective in reducing compulsory admissions. Methods: We conducted a rapid evidence synthesis to explore whether there is any evidence for an effect on compulsory admissions for 15 types of psychosocial intervention, identified by an expert group as potentially relevant to reducing compulsory admission. A search for randomised controlled trials (RCTs) reporting compulsory admission as a primary or secondary outcome or adverse event was carried out using clinical guidelines, recent systematic reviews, and database searches postdating these reviews. Findings: We found 949 RCTs reporting on the interventions of interest, of which 19 reported on compulsory admission. Our narrative synthesis found some evidence for the effectiveness of crisis planning and self-management, while evidence for early intervention services was mixed. We did not find evidence to support adherence therapy, care from crisis resolution teams and assertive community treatment, but numbers of relevant studies were very small. We found no trials which tested effects on compulsory admission of the nine other intervention types. Interpretation: Crisis planning and self-management interventions with a relapse prevention element are most promising for preventing compulsory admissions. Given our broad search strategy, the lack of evidence demonstrates that there is an urgent need for more research on interventions which may reduce compulsory admissions .

Background: Studies demonstrate ethnic variations in pathways to care during first episode psychosis (FEP). There are no extant studies, however, that have statistically examined the influence of culturally mediated illness attributions on these variations. Methods: We conducted an observational study of 123 (45 White; 35 Black; 43 Asian) patients recruited over a two-year period from an Early Intervention Service (EIS) in Birmingham, UK. Sociodemographic factors (age; sex; education; country of birth; religious practice; marital status; living alone), duration of untreated psychosis (DUP), service contacts (general practitioner; emergency services; faith-based; compulsory detention; criminal justice) and illness attributions ("individual;" "natural;" "social;" "supernatural;" "no attribution") were assessed. Results: Ethnic groups did not differ in DUP (p = 0.86). Asian patients were more likely to report supernatural illness attributions in comparison to White (Odds Ratio: 4.02; 95 % Confidence Intervals: 1.52, 10.62) and Black (OR: 3.48; 95 % CI: 1.25, 9.67) patients. In logistic regressions controlling for confounders and illness attributions, Black (OR: 14.00; 95 % CI: 1.30, 151.11) and Asian (OR: 13.29; 95 % CI: 1.26, 140.47) patients were more likely to consult faith-based institutions than White patients. Black patients were more likely to be compulsorily detained than White patients (OR: 4.56; 95 % CI: 1.40, 14.85). Conclusion: Illness attributions and sociodemographic confounders do not fully explain the ethnic tendency to seek out faith-based institutions. While Asian and Black patients are more likely to seek help from faith-based organisations, this does not appear to lead to a delay in contact with mental health services.

Objectives: This study compared medical treatment costs of adults with schizophrenia to adults with both substance use disorders and schizophrenia. Methods: This cross-sectional observational study used a paid claims data base to identify 6884 adults treated for schizophrenia. Twenty percent of these also had substance use disorder. We report the costs and likelihood of hospitalization for eight common medical diseases, and the categories of injuries and poisoning, and ill defined conditions. Multivariate analyses were used to adjust rates of treatment for age and sex differences in the comparison groups. Results: There were higher rates of treatment for five of the eight medical disorders, higher treatment costs for two of the medical disorders and much higher costs for psychiatric treatment among those with comorbid substance use disorders. Both groups had high rates of treatment in the categories of injury and poisoning and ill defined conditions. Conclusions: Closer working relationships among mental health and medical professionals are needed to care for those with schizophrenia and substance use disorders: first, greater attention to the treatment of substance use disorders may improve the health status of those with schizophrenia, reduce their costly medical and psychiatric care and stabilize their psychiatric condition, and second, continuity of care among professionals may promote willingness to seek medical attention or alleviate misunderstandings when adults with schizophrenia present with medical problems.

Recent events have revived questions about the circumstances that ought to trigger therapists’ duty to warn or protect. There is extensive interstate variation in duty to warn or protect statutes enacted and rulings made in the wake of the California Tarasoff ruling. These duties may be codified in legislative statutes, established in common law through court rulings, or remain unspecified. Furthermore, the duty to warn or protect is not only variable between states but also has been dynamic across time. In this article, we review the implications of this variability and dynamism, focusing on three sets of questions: first, what legal and ethics-related challenges do therapists in each of the three broad categories of states (states that mandate therapists to warn or protect, states that permit
therapists to breach confidentiality for warnings but have no mandate, and states that give no guidance) face in handling threats of violence? Second, what training do therapists and other professionals involved in handling violent threats receive, and is this training adequate for the task that these professionals are charged with? Third, how have recent court cases changed the scope of the duty? We conclude by pointing to gaps in the empirical and conceptual scholarship surrounding the duty to warn or protect.

The UN Convention on the Rights of Persons with Disabilities (CRPD) may require the abolition of the insanity defence and similar 'special defences' in criminal law. Proponents argue that abolishing the defence would advance efforts to fully recognise the legal capacity of persons with disabilities on an equal basis with others; detractors suggest it would compound substantive discrimination and disadvantage facing an already marginalised population. This paper seeks to accelerate debates about the insanity defence and international human rights law with reference to Swedish criminal law, which saw the abolition of the insanity defence in 1965. Neither side of the debate appear to have considered the anomaly of Swedish criminal law. Equally, Swedish legislators concerned with this area of law have overlooked human rights-based considerations and instead, appear likely to reintroduce the insanity defence following longstanding domestic criticism of the scheme. This paper brings together developments in Sweden and international human rights law, and draws out conceptual and practical lessons in ongoing efforts to secure due process rights and substantive equality for people with disabilities in criminal law.

Publicly funded mental health systems are increasingly implementing managed care systems, such as capitation, to control costs. Capitated contracts may increase the risk for disenrollment or adverse outcomes among high cost clients with severe mental illness. Risk-adjusted payments to providers are likely to reduce providers' incentives to avoid or under-treat these people. However, most research has focused on Medicare and private populations, and risk adjustment for individuals who are publicly funded and severely mentally ill has received far less attention. Aims of the Study: Risk adjustment models for this population can be used to improve contracting for mental health care. Our objective is to develop risk adjustment models for individuals with severe mental illness and assess their performance in predicting future costs. We apply the risk adjustment model to predict costs for the first year of a pilot capitation program for the severely mentally ill that was not risk adjusted. We assess whether risk adjustment could have reduced disenrollment from this program. Methods: This analysis uses longitudinal administrative data from the County of Los Angeles Department of Mental Health for the fiscal years 1991 to 1994. The sample consists of 1956 clients who have high costs and are severely mentally ill. We estimate several modified two part models of 1993 cost that use 1992 client-based variables such as demographics, living conditions, diagnoses and mental health costs (for 1992 and 1991) to explain the variation in mental health and substance abuse costs. Results: We find that the model that incorporates demographic characteristics, diagnostic information and cost data from two previous years explains about 16 percent of the in-sample variation and 10 percent of the out-of-sample variation in costs. A model that excludes prior cost covariates explains only 5 percent of the variation in costs. Despite the relatively low predictive power, we find some evidence that the disenrollment from the pilot capitation initiative input have been reduced if risk adjustment had been used to set capitation rates. Discussion: The evidence suggests that even though risk adjustment techniques have room to improve, they are still likely to be useful for reducing risk selection in capitation programs. Blended payment schemes that combine risk adjustment with risk corridors or partial fee-for-service payments should be explored. Implications for Health Care Provision, Use, and Policy: Our results suggest that risk adjustment methods, as developed to data, do not have the requisite predictive power to be used as the sole approach to adjusting capitation rates. Risk adjustment is informative and useful; however, payments to providers should not be fully capitated, and may need to involve some degree of risk sharing between providers and public mental health agencies. A blended contract design may further reduce incentives for risk selection by incorporating a partly risk-adjusted capitation payment, without relying completely on the accuracy of risk adjustment models. Implications for Further Research: Risk adjustment models estimated using data sets containing better predictors of rehospitalization and more precise clinical information are likely to have higher predictive power. Further research should also focus on the effect of combination contract designs.

As discussions around the Mental Health Care Bill 2013 gain pace, one aspect of the bill, which is the Advance Directive, has perhaps not been discussed enough. The present essay is an attempt to explore different aspects of the advance directive in psychiatry, to understand the implications better. The article attempts to look at the conceptualization of the advance directive, questions regarding implementation, and possible unintended consequences. In doing so, it interrogates the larger question of ideology that drives the concept of the advance directive in psychiatry.

In the legal context, psychiatric evaluations are subject to controversy, considered as either indispensable or flawed, and yet rarely studied in their own right. This article puts forward a political anthropology of mental healthcare that is attentive to social context (the problem of recidivism), professional logic (the evaluation of dangerousness) and liminal practices (at the limits of the correctional and the medical). It thus intends to delimit the methodological and theoretical stakes of a study of (i) the psychiatric creation of the expert witness report (ii) its legal use (iii) its consequences on psychiatric care in prison and beyond. What makes reports authoritative or, on the contrary, how are they contested? What are the political issues at stake? Thus, the complexity of the politics of psychiatric evaluations can be drawn out from delineated ethnographic fields; a complexity linked to the situation of these evaluations between, on the one hand, legal and psychiatric theories of personality and, on the other, how they are received and effectively applied by the legal system.

At present, if people with mental disorders appear before the criminal courts in Ireland, unless they are unfit for trial or not guilty by reason of insanity, the system governing their case will be the general one which applies to all criminal cases. In recent decades, a number of other common law jurisdictions have begun to set up mental health courts as a means of diverting some people with mental disorders from the criminal justice system and into more appropriate treatment. This article begins with a review of the background to mental health courts, focusing on the concept of diversion from the criminal justice system and the role of Therapeutic Jurisprudence theory as an inspiration for the establishment of mental health courts. The main features of mental health courts are identified and the features of those in existence in the United States are contrasted with those in Canada and England and Wales. Some of the main arguments against the use of these courts will be discussed, including the contentions that defendants' participation may not be truly voluntary and that their due process rights are not adequately protected. The question of whether a mental health court should be established in Ireland is considered.

This article considers the role of traditional conceptions of human rights in relation to the challenges posed by community treatment orders (CTOs). It explores how traditional rights discourse in mental health, which has focused on the rights of liberty and autonomy, is to be located within the landscape of community-based mental health law. Using jurisprudence arising under the European Convention on Human Rights, it identifies the limitations of traditional rights in this context. However, it argues that traditional concepts such as liberty and privacy still have a role to play.

Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects
(Dublin: Thomson Round Hall, 2009)
ISBN: 9781858005102
ISBN-10: 1858005102 /  1858005108

Can be ordered on Round Hall Site - www.roundhall.ie

May also be ordered from Law Books Ireland, Kenny's Bookshop or  Wildy & Sons (UK)

Table of Contents and Index of Book

Extracts from publisher's brochure:

This book is a comprehensive examination of the civil and criminal aspects of mental health law. It guides the practitioner and mental health professional through the legal process of dealing with people with mental disorders from voluntary and involuntary admission to hospital to the role of doctors and psychiatrists.

Includes full analysis of the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006. 

Far-reaching changes have been introduced by the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006. This new title makes sure that you get to grips with these changes. The scheme of the Mental Capacity Bill 2008 is also discussed.

Deals with all Regulations, Rules, Codes of Practice and Guides, e.g. Mental Health Act 2001 (Approved Centres) Regulations, Rules Governing the Use of Electro-Convulsive Therapy, Rules Governing the Use of Seclusion and Mechanical Means of Bodily Restraint, Code of Practice Relating to Admission of Children under the Mental Health Act 2001.

MENTAL HEALTH LAW AND PRACTICE

Walks you step by step through civil commitment - ensuring that you have a complete grasp of both the legal criteria and the procedure.
Includes a full examination of the jurisdiction of Mental Health Tribunals.
Ensures that you fully understand the scope and limitations of the role of the Mental Health (Criminal Law) Review Board along with answering vital questions such as who can request a review, who is entitled to attend a review board hearing and who is responsible for providing legal representation for the patient.
Helps you get to grips with the extent of powers under section 13 of the Criminal Law (Insanity) Act 2006 in relation to conditional discharge.
Includes extensive references to ECHR case-law to help you understand the complex relationship between constitutional and human rights and mental heath law.
Includes comparisons with legislation and case-law in other jurisdictions, e.g. England and Wales.
Makes effective use of case law to illustrate points of law.
Includes S.M. v Mental Health Commission (2008), J.B. v Mental Health (Criminal Law) Review Board (2008) and E.H. v Clinical Director of St Vincent's Hospital (2009).

AUTHOR: Dr Darius Whelan B.L. is a lecturer at the Faculty of Law, University College Cork. He is currently President of the Mental Health Lawyers Association, the members of which represent patients admitted to approved centres under the Mental Health Act 2001

Foreword by Mr Justice Brian McCracken, Chairperson, Mental Health (Criminal Law) Review Board.

CONTENTS
Part One: General Matters
Principles of Mental Health Law
Remedies and Institutions
Part Two: Civil Aspects
Legal Criteria for Involuntary Civil Admission
Admission under the Mental Health Act 2001
Voluntary Patients
Renewal Orders
Mental Health Tribunals
Mental Health Tribunal Hearings
Scope of Mental Health Tribunal Reviews
Treatment for a Mental Disorder
Common Law Duties: Negligence and Confidentiality
Requirements Concerning Institutional Care
Mental Capacity
Mental Health and other aspects of civil law
Part Three: Criminal Aspects
The Insanity Defence
Diminished Responsibility and Infanticide
Fitness for Trial
Reviews by the Mental Health (Criminal law) Review Board
Mental Health and other aspects of Criminal Law"

This article will provide a brief historical background to mental health law in order to gain a greater sense of the significance of international human rights law to civil commitment legislation today. Historical context will help to identify the purpose and objectives of mental health law, which in turn assist in weighing into the major debates currently underway. The United Nations Convention on the Rights of Persons with Disability (CRPD), in particular, has brought major changes to the way mental health law is understood, including strengthening longstanding critiques, and adding novel critical perspectives. Three 'eras' of mental health law are examined: the pre-modern origins of mental health law and 19th century regulation; the 'medicalising' shift of the 20th century; and deinstitutionalisation and 'rights-based legalism'. These distinct periods of thought will help to critically assess what appears to be a new reform era in which international human rights law will set a new agenda for transforming or even abolishing mental health law as it currently stands.

Courts and lawmakers trust psychiatric expertise when making judicial and public policy decisions concerning mental health, but is this trust well placed? This paper adopts a philosophy of science approach informed by medical research to evaluating the validity of psychiatric classification. This provides the basis for an interdisciplinary critical analysis of civil commitment law and use of psychiatric expert witnesses in light of legal evidence standards. This analysis demonstrates that involuntary civil commitment as it now stands is incompatible with broader due process and civil rights concerns and affords an unjustifiable evidentiary status to psychiatric diagnosis.

for their assistance. 2 A 1985 Harris poll found that 70% of working age people with disabilities were unemployed, two-thirds of whom wanted to work. Joseph P. Shapiro, Liberation Day for the Disabled, U. S. NEws & WORLD REP., Sept. 18,1989, at 20, 22. 3 1n 1988, women with disabilities earned 38% less than women without disabilities, and men with disabilities earned 36% less than men without disabilities. H.R Rep. No. 485(2), 101st Cong., 2nd Sess., at 32 (1990). 4 The United States spends nearly $60 billion each year on disability benefits and welfare costs for people with disabilities. Shapiro, supra note 2, at 22.

In August, 2006, American moviegoers watched as passengers on an airplane were terrified by poisonous snakes in the movie "Snakes on a Plane." In May, 2007, news watchers across the globe were riveted by the true story of an Atlanta lawyer who flew from the United States to several destinations in Europe for his wedding and honeymoon although he was carrying a drug-resistant strain of tuberculosis. The latter event was met with public outcry; the former was a box office hit which played on the fears of viewers. However, the implications of the tuberculosis incident have reverberated throughout the aviation, legal, and medical communities in a way in which fictional killer snakes cannot. The tuberculosis traveler incident illustrated that there are several areas in which travelers are protected by neither law nor medicine. This article will examine two issues which were highlighted by the tuberculosis traveler incident and its aftermath: 1) the effectiveness of the current ...

The abduction of the Chibok girls has attracted global criticism by the international community who has denounced the terrorist act and advocated for the release of the girls. The kidnapping is an act to instil fear and wage war against access to education in Northern Nigeria. The larger issue when addressing the educational disadvantage of the North is the problem of religious fundamentalism which has deprived the North of progress in education and economic development. The lack of political will by the leaders of the northern Nigeria to elevate the educational level of the girl-child as enunciated in the Child’s Right Act, is an issue we discussed. We look beyond the abduction of the girls to the underlying issues of denial of their fundamental human rights to basic education and dignity of the human person which is the entitlement of all children in the world. The paper finds that apart from the core issue of terrorism situating the saga in its proper legal context is a failure of law to protect the most vulnerable of the society-the girl-child by the global north and global south as an infringement of the internationally accepted basic human needs. These includes, failure of their rights to freedom of movement; from discrimination; dignity of the child and right to free, compulsory and universal primary education, among others. In addition the heinous crimes being committed against them include rape, forced marriages, forced labour, false imprisonment, child trafficking, kidnapping, and perhaps murders, to name a few. All these are against the Nigerian Child Rights Act which makes copious provisions on these violations and gives stiff penalties for their infringement. We conclude by advocating for compulsory basic education as enshrined in the Nigerian Constitution strongly supported by the Universal Basic Education policy. No meaningful development can take place if the issue of girl-child education is not factored into political and national development process.
Primary Keyword: Crime and Victims
Secondary Keyword: Human Rights

Authorization of treatment is an exception to the general principles of the law of per- sons in the civil law, according to which the free and enlightened consent of patients is required before any therapeutic interven- tion. To obtain judicial authorization to treat a person against his will, his incapacity to give consent to the care required by his state of health must be demonstrated. Although authorization of treatment has been provided for in Québec’s civil code since 1989, it has only recently become the object of research. These studies have highlighted significant difficulties with implementation that seem important to document systematically. This article presents the results of a statistical analysis of the judicial decisions on authorization of treatment from 1989 to 2012 that are available in databases. They reveal that defendants are often not present or represented in court, and that procedural mechanisms which aim to ensure that their voices are heard are rarely applied. This invisibility is transposed into judicial decisions, which are most frequently short and generic, and it results in an interpreta- tion and application of substantive law that is increasingly broad and liberal, to the detriment of defendants’ rights.

Book Chapter:  • Darius Whelan, ‘Protecting Rights in Mental Health Law: The Relationship Between the Courts and Mental Health Tribunals’ in: Mary Donnelly and Claire Murray (eds.), Ethical and Legal Debates in Irish Healthcare: Confronting Complexities (Manchester University Press, 2016), pp.208-221.

Mental health law, and in particular the law concerning involuntary detention, has been a subject of protracted debate in Irish society. Ireland’s Mental Health Act 2001 requires that all involuntary admissions for mental disorder be reviewed within twenty-one days by a three-person Mental Health Tribunal (MHT). The tribunals review both procedural and substantive aspects of the person’s detention. Under section 18 of the 2001 Act, they also have the power to waive or ‘cure’ a procedural defect which may have occurred, provided the defect does not affect the substance of the order and does not cause an injustice.
The tribunal system became operational in 2006, and there are hundreds of hearings each year. Inevitably, there has been a significant amount of litigation about the exact parameters of the tribunals’ powers and the relationship between the tribunals and the courts. This litigation has been an important opportunity for the courts to establish principles and standards for the tribunals. As a person’s liberty is at stake, it would be expected as a matter of policy that courts would subject the tribunal process to very strict scrutiny. However, there is strong evidence that the Irish courts are, in general, extremely deferential to the decisions of Mental Health Tribunals. The courts’ approach raises serious questions about their commitment to the rights of persons detained under mental health legislation.
In this chapter, the focus is on key written judgments of the High Court and Supreme Court where the courts have in some way reviewed a decision of a Mental Health Tribunal. The issues are considered under five headings: an examination of the remedies of applications under Article 40 and judicial reviews; the MHTs’ power to review procedural matters; the power to waive procedural irregularities; statements from the courts concerning the importance of MHTs following procedures correctly and the relevance of the ECHR and the Convention on the Rights of Persons with Disabilities (CRPD).
Despite some statements to the contrary, the general picture which emerges is that the courts have not engaged in robust supervision of mental health tribunals. Instead, the general tenor of the case-law has been to endorse decisions of tribunals to affirm detentions, and to limit access to the courts to the most extreme violations of procedural rights. This is a disappointing outcome, in light of the supposed rights-based focus of the Mental Health Act 2001.

Full text: https://cora.ucc.ie/handle/10468/2533

The inquiry into Ashley Smith’s in-custody death is playing a crucial role in opening up the typically inscrutable prison system and forcing the Correctional Service of Canada (CSC) to defend its policies and practices under intense public scrutiny. Yet there is a risk that Smith will be understood as an extreme outlier, rather than an indicator of a deeper problem. There remains a broader need for concrete and systemic reform of the prison system as it treats Federally-Sentenced Women (FSW) with mental health issues. In this analysis I will consider how civil litigation might be used in creative ways to seek remedies for this segment of the prison populations. Specifically, I will explore the viability of a class action lawsuit against CSC on behalf of FSW with mental health issues, with a sub-class of Aboriginal female prisoners. While there are admittedly a number of practical obstacles to bringing this type of lawsuit, a class action against the Crown offers an interesting combination of private and public law advantages as well as the potential for both individual recourse and systemic change.

This paper concentrates on fitness for trial in the District Court and deals with the topic under two main headings: firstly, how does the District Court determine fitness for trial and secondly, the consequences of a finding of unfitness for trial. Ireland's Criminal Law (Insanity) Act 2006 introduced significant reforms to this area of law, and the implications for the District Court are reviewed.