Mental Health and the Law

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.

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

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.

The question that needs to be asked is, how many of those being treated for mental illness are recovering? Does the current treatment regimen help people with recovery, or is it only a “treatment” option with an entry and no exit point? Psychiatric professionals need to focus on recovery

Le présent article analyse la constitutionnalité du régime fédéral encadrant l’accès à l’aide médicale à mourir tel que modifié par le projet de loi C-7 adopté dans la foulée du jugement Truchon c Procureur général du Canada ayant déclaré inconstitutionnel le critère de « mort raisonnablement prévisible ».

Les responsabilités constitutionnelles des législateurs fédéral et provinciaux sont examinées. Ceux-ci doivent assurer l’égale protection des droits précisément garantis par la Charte canadienne, dont (i) les droits à l’autonomie et à la sécurité ; (ii) le droit à la vie ou « droit de ne pas mourir » et la possibilité d’y renoncer depuis l’arrêt Carter ; (iii) l’égalité substantive protégeant l’égale valeur de toutes les vies, incluant celles des personnes victimes discriminées ou autrement vulnérables.

Certaines interrogations sont formulées quant à la constitutionnalité du nouveau régime fédéral. Le jugement Truchon ayant fondé le projet de loi C-7 contient des erreurs de droit déterminantes. De plus, il est incertain que ce régime protège au mieux les droits à l’autonomie et à l’égalité substantive. Est notamment considéré l’effet possiblement discriminatoire envers les femmes et les personnes combinant d’autres facteurs d’inégalités dont les troubles de santé mentale et le handicap. Enfin, est remise en question la constitutionnalité de l’inclusion dans le Code criminel d’une disposition prévoyant que la maladie mentale comme seule condition au soutien de la demande sera automatiquement légalisée dans deux ans, alors que les connaissances juridiques, éthiques et scientifiques actuelles ont justifié d’écarter cette ouverture.

INTRODUCTION

1. LES RESPONSABILITÉS CONSTITUTIONNELLES DES LÉGISLATEURS EN MATIÈRE D’AIDE MÉDICALE À MOURIR

1.1 Adopter un régime législatif assurant l’égale protection des droits précisément garantis par la Charte canadienne
a) Les droits à l’autonomie et à la sécurité de sa personne : une protection constitutionnelle distincte du seul consentement médical
b) Le droit à la vie ou « droit de ne pas mourir » et la possibilité d’y renoncer
c) La protection substantive du droit à l’égalité

1.2 Assurer la protection législative des droits constitutionnels en jeu conformément à la norme de l’article premier de la Charte canadienne

2. LA CONSTITUTIONNALITÉ DU RÉGIME LÉGISLATIF DÉCOULANT DE L’ADOPTION DU PROJET DE LOI FÉDÉRAL C-7

2.1 Le régime fédéral tel que modifié par le projet de loi C-7
a) L’abrogation du critère limitant l’accès à l’aide médicale à mourir aux personnes dont la mort naturelle est devenue raisonnablement prévisible
b) La « maladie mentale » comme seule condition médicale invoquée pour fonder la demande officielle d’aide médicale à mourir
c) La mise en place de mesures de sauvegarde distinctes selon que la mort naturelle du patient est devenue raisonnablement prévisible ou non
d) L’assouplissement des mesures de sauvegarde applicables à la fois lorsque la mort du patient est raisonnablement prévisible et lorsqu’elle ne l’est pas
e) La renonciation au consentement libre et éclairé au moment où l’aide médicale à mourir est fournie

2.2 La constitutionnalité du nouveau régime législatif : quelques interrogations
a) Le législateur devait-il modifier le régime en raison du jugement Truchon ayant
déclaré inconstitutionnel le critère de « mort naturelle devenue raisonnablement prévisible » ?
b) Le régime protège-t-il les droits à l’autonomie et à l’égalité substantive ? Le cas de la
discrimination systémique envers les femmes et les facteurs d’inégalités additionnels
incluant la maladie mentale et le handicap
c) L’inclusion dans le Code criminel d’une disposition prévoyant que la maladie mentale comme seule condition au soutien de la demande sera automatiquement
légalisée dans deux ans est-elle constitutionnelle ?

CONCLUSION

Le consentement libre et éclairé est le fondement juridique de toute décision de soins et la base de l’alliance
thérapeutique. Les réformes civiles et criminelles des années 1990 visaient notamment la mise en œuvre du droit au consentement aux soins dans le cadre des mécanismes de droit psychiatrique afin de protéger les patients contre des décisions arbitraires. L’observation d’audiences d’autorisation de soins, de garde en établissement et de Commission d’examen démontre cependant que le traitement y fait l’objet de discussions récurrentes, de même que le style de vie et l’adhésion au paradigme psychiatrique. Ces constats empiriques permettent de remettre en question la possibilité de refuser des soins en psychiatrie, du moins pour les personnes faisant l’objet de procédures judiciaires. Il convient dès lors de s’intéresser à la médication psychiatrique en tant que modalité incontournable des rapports de pouvoir et des processus de domination.

La Declaración Universal de los Derechos Humanos, junto con otros tratados y pactos relacionados, fueron incluidos en la legislación argentina tras la reforma de la Constitución Nacional en el año 1994, pasando a ser parte del bloque de constitucionalidad. El mencionado reconocimiento constitucional marcó un hito histórico en la temática. Sin embargo se destacan ciertas cuestiones a tener en cuenta en relación al área de la Salud Mental que plantean un discordancia con este reconocimiento como: la desactualización del Código de Vélez Sarsfield en cuanto a la temática de la capacidad-incapacidad, la falta de leyes nacionales específicas, y los prejuicios culturales y sociales sobre la " enfermedad mental ". En la actualidad, esta situación está siendo modificada dado que se han comenzado a sancionar una serie de leyes donde el énfasis está puesto en el respeto por la dignidad y derechos de la persona. Si bien la reforma legislativa es un paso fundamental y demuestra la impronta de los Derechos Humanos en la legislación argentina, es importante que esté acompañada de cambios en aspectos ideológicos, culturales y sociales que permitan que el marco legal, vaya siendo legitimado y se instale como nuevo paradigma en la práctica. Palabras Claves: Psicólogos-Ley-Derechos Humanos-Argentina

The Universal Declaration of Human Rights, together with other related treaties and agreements, were included in the Argentine legislation as a result of the constitutional reform of the year 1994 and have so become part of constitutionality. This acknowledgement represented a historical landmark in the subject. Nevertheless, certain issues in reference to the area of Mental Health are worth considering since they pose a discrepancy within this acknowledgement: the outdated treatment of the issue of ability – disability in the Vélez Sarsfield Code, the lack of specific national laws, and cultural and social prejudices about " mental illness ". At present, this situation is being modified since a series of laws have been sanctioned in which emphasis is given to the respect for human rights and dignity. Although the legislative reform is a fundamental step and represents a footprint in the Argentine legislation on Human Rights, it is important that it be accompanied by changes in ideological aspects, both cultural and social, that allow for the legal framework to acquire legitimacy and establish a new paradigm in practice.

This paper presents an overview of the statutory schemes for the termination of parental rights ("TPR") due to mental illness in California and New York, looking at the case law and the effects of the approaches in each states. Based on this, the paper provides a recommendation for the approach that best meets children's needs.

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.

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 promulgation of the constitution of Kenya on 27th August, 2010 was a major milestone towards the improvement of health standards. Citizen’s high expectations are grounded on the fact that the new Constitution states that every citizen has right to life, right to the highest attainable standard of health including reproductive health and emergency treatment, right to be free from hunger and to have food of acceptable quality, right to clean, safe and adequate water and reasonable standards of sanitation and the right to a clean healthy environment. The Health Sector, therefore, needs to consolidate gains made in respect to provision of service delivery; leverage existing decentralized structures in health; and re-position itself to fulfil these expectations. The two levels of government are under obligation to ensure that the right measures are put in place for successful implementation of Constitution. This paper therefore looks at the emerging issues and their implications in the Kenya's health sector that continues to experience different challenges

Police sexual misconduct (PSM) is a serious problem that hinders Idaho police officers’ ability to serve their communities through a vision of integrity. PSM refers to a wide range of unsafe, corrupt, and oftentimes illegal behaviors that not only challenge values held by individual and
professional standards, but also adversely impact the policing profession and the communities it serves. Though PSM has been extensively discussed in the literature, a significant gap in the current knowledge base remains as to how to effectively resolve PSM.  Specific and measurable research questions and sub questions are identified along with details related to the proposed qualitative research design, sampling methods, sample characteristics, data collection methods, and data analysis methods.  Issues of validity, potential ethical problems, and limitations of the study are also addressed and comprehensively analyzed with detailed and specific examples.

Keywords: Rural police organization and culture, police sexual misconduct, Idaho

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.

This essay aims at analysing how the Methodology of Gineste Marescotti (MGM) supported by the Humanitude philosophy could help both regulate and humanize the health care system. It is crucial to set up boundaries to the subject and relate it to a certain population and a concrete organizational model of social and health services. The rise in life expectancy tied with the increase of the aging index and the failing birth rate has introduced considerable demographic changes. These
developments prompt the elderly to be a particularly important social group.
Regardless, amongst the multitude of diseases that may occur, the most common are neurodegenerative ones, which lead to dependency. The State must therefore manage the scarce resources to best meet the needs of the elderly, who are entitled to humanized and dignified care. Their right to autonomy and self-determination has to be granted, even in severe situations, in order to avoid infantilized treatment and social ostracization. In that sense, the State plays a vital role in the safeguard
of their rights, which allows them to have future well-being and a satisfactory quality of life. This means that other actors, who also help perform the public duty of taking good and safe care of the elderly, must therefore abide by the complex yet necessary State regulation, whose fundamental role has shifted from being a caregiver to become a regulator. Thus, taking into account that the MGM has developed several techniques in the improvement of care standards of dependent elderly, and also that the national network of Long Term Care (LTC) constitutes a
viable answer for all problems related to dependency, a connection between the MGM, LTC and the elderly is put forward. Our approach has considered the main political and legal outcomes, seeing that they enhance the role of the Civil Society as an important stakeholder in the identification of the needs of the elderly, as well as in lobbying public policy and raising awareness; the legal interpretation of the principles and rights of the LTC evidences the value of the MGM for a more
humanized humanizing care.

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.

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.

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.

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 .

Multidisciplinary teams (MDTs) are conventionally recommended in mental health
care literature as an important way to offer holistic treatment provision to patients. This
study aims to explore multidisciplinary teamwork in contemporary mental health
settings, particularly what aids and hinders the process of multidisciplinary teamworking,
and the social work contribution in such teams. In order to attain an in-depth
exploration of these phenomena, a single case study design was employed. Within this
design, data were generated through semi-structured interviews and structured
observation of a mental health MDT in Ireland. These data were analysed using
interpretative phenomenological analysis. The research highlights how the concept of
mental illness is contested within this MDT, with the medical model dominant within
an environment of fluid working arrangements. Professional role blurring and
stereotyping were found to impact the division of labour on this team, with role
negotiation found to be an integral part of retaining a professional’s practice identity.
This research raises concerns for social work’s capacity to function within mental
health MDTs in Ireland, and highlights ways in which social work educators might
respond in order to empower Irish social workers to meet the challenges of mental
health multidisciplinary teamworking.

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.

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 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.

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.

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.

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.

Au cours des vingt dernières années, plusieurs changements sociaux et politiques ont contribué à la transformation des pratiques d’intervention en psychiatrie. Ces changements sont notamment expliqués par le rapprochement continuel des espaces hospitaliers et de justice. L’objectif de cet article est de discuter de la contribution du concept d’hétérotopie pour l’étude de ce phénomène et s’appuie sur les résultats d’une recherche ethnographique réalisée dans l’un de ces espaces, la Commission d’examen. Les considérations théoriques et méthodologiques de ce projet, de même que le rôle de la Commission d’examen, seront d’abord discutées. La première partie de cet article portera sur la juxtaposition des espaces hospitaliers et de justice et ses conséquences sur les relations existantes entre les acteurs intra- et extra-juridiques. La dernière partie de cet article s’intéressera à la signification clinique de la judiciarisation et plus particulièrement des espaces de justice en santé mentale pour le travail infirmier.

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

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 Quebec, the state of emergency due to COVID-19 has substantially changed practices in mental health. Formally, several measures must help contain the spread: hospitalizations are limited and replaced by telephone or video follow-up; visits and outings are prohibited; judicial activities are suspended with the exception of urgent applications like psychiatric assessment, psychiatric commitment and coercive care; and hearings take place over video. However, the idea that people with mental illness would have difficulty accepting and respecting sanitary measures justifies putting in place special precautions based on the possibility of a contamination risk. Observation of practices shows that, in order to manage risk, particularly punitive measures have been put in place, going beyond official directives and for a longer period than measures have lasted in the general population. Study of case law and newspaper articles highlights an abusive use of seclusion and prohibition of visits and outings, a diversion of psychiatric procedures to enforce confinement and distancing measures and significant procedural adjustments impacting people's ability to assert their rights. These risk-based practices not only break with previous law’s interpretations, but turns out to be discriminatory, establishing a noticeable difference between the general population, patients hospitalized for physical problems, even COVID-19, and people with mental illness. Quebec’s regulation of the COVID-19 pandemic in mental health highlights the limits of law and courts as safeguards of rights as well as the necessity of valuation and consideration of experiential knowledges, recognition of structural discrimination and massive investment in social services to enforce equality and justice.

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.

Purpose:
(1) To provide an in-depth analysis of Parliament’s constitutional responsibilities under the Canadian Charter and the Supreme Court decision in Carter;
(2) To present a critical analysis of the proposed policy under which “persons whose sole underlying medical condition is a mental illness” would not be eligible to medical assistance in dying, but persons whose death is not reasonably foreseeable, and who are suffering from a mental illness and an additional underlying “grievous and irremediable medical condition” under section 241.2 of the Criminal Code would be eligible;
(3) To analyze whether the proposed bill could be unconstitutional and challenged on the basis that it affects the rights to life, liberty, security, and substantive equality of the more vulnerable, in particular women victims of sexual abuse and domestic violence.

I. INTRODUCTION .................................................................... 200 II. THE SEA CHANGE BEGINS IN MEDICINE .............................. 205 A. The Wave of Change Begins with Telecommunications ....................................................205 B. Modern Medicine Catches the Wave into the ...

I. INTRODUCTION AND PURPOSE OF STUDY II. THE NURSING HOME REGULATORY REGIME III. THENURSING HOME INSPECTION SYSTEM IV. THE ROLE OF PUBLIC ADMINISTRATORS IN THE POLICYMAKING PROCESS V. POTENTIALLY INFLUENTIAL FACTORS A. Political Factors 1. Survey of Previous Scholarship 2. Definition and Operationalization of Key Terms 3. Theses and Underlying Assumptions, and Results B. Oversight C. Affiliation or Ownership Status of Nursing Homes 1. Survey of Previous Scholarship 2. Definition and Operationalization of Key Terms 3. Theses and Underlying Assumptions, and Results VI. CONCLUSION I. INTRODUCTION AND PURPOSE OF STUDY Nursing homes are special facilities that provide round-the-clock medical care to persons who, due to old age or disability, have difficulties in navigating activities of daily living ("ADL"), such as bathing, dressing, eating, and using the toilet. (1) For these and related ADL tasks, nursing home residents receive help that is provided by a phalanx of caregiver...

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) advocates for women with disabilities to realize their full reproductive rights, and that includes giving women with psychosocial disabilities the right to both bear children and to terminate a pregnancy. Though the CRPD and other human rights instruments do not specifically authorize abortion, they support a woman’s reproductive health, which infers that they uphold a woman’s right to her reproductive autonomy. Using Case Law from India and the United States (U.S.) to assess if the two countries uphold the CRPD’s commitment to the reproductive rights of women with psychosocial disabilities or not, will reveal if abortion is a woman with a psychosocial disability’s human right.