Capacity, Consent, and Mental Health Legislation: Time for a New Standard?
O'Brien, Anthony J., Contemporary Nurse : a Journal for the Australian Nursing Profession
The 2007 Report of the New Zealand Director of Mental Health (Ministry of Health, 2008) signalled, in its concluding section, the intention of the Ministry to revise current mental health legislation, taking into account considerations of consent and capacity. Such a change is in line with calls from nurses and others for an end to legislation specific to mental health (Campbell, 1994; Dawson & Szmukler, 2006; Rosenman, 1994; Wand & Chiarella, 2006). The focus on capacity in mental health also comes at a time when changes to guardianship legislation allow nurses to carry out formal assessments of capacity. In this paper, I discuss these issues from a New Zealand perspective, but invite international readers to consider implications for their own jurisdictions. I outline issues arising from the 'dangerousness standard' of current mental health legislation, and its effects in contributing to stigma and discrimination. I then explore the concept of capacity, and its assessment in mental health and other clinical populations. Capacity-based mental health legislation would present particular issues for people on community treatment orders and I discuss these issues before considering international moves towards a capacity standard. Finally, I explore some of the implications of such a standard for mental health nursing. Any revision of mental health legislation needs to be mindful that it is primarily a social innovation, and will not easily yield to medical or legal tinkering. Mental health nurses will be impacted by any changes towards a capacity-based standard, and need to be involved in this debate. In this paper I have followed the example of Appelbaum (2007) in using terms 'capacity' and 'competence' interchangeably to refer to either legal or decision-making capacity.
CURRENT MENTAL HEALTH LEGISLATION
Mental health law is a taken for granted aspect of most western countries' legal systems, to the point where little thought is given to its necessity. Rosenman (1994, p. 560) argued that 'Mental health laws which allow for the compulsory detention and treatment of patients with mental illness have been so long part of the psychiatric landscape that we do not question their existence or necessity'. In western countries, the current form of mental health legislation developed in the early 19th century, and so is a relatively modern response to emerging problems with the social order (Castel, 1988). Despite changes over the past 200 years the fundamental features of mental health legislation remain the same: imposed medical authority supported by a legal framework which gives priority to medical expertise. In the 1980s and 1990s, in line with international trends, mental health legislation in Australia and New Zealand was revised away from the existing 'need for treatment' standard towards the current dangerousness standard. Internationally, there was concern that the medically determined need for treatment standard resulted in high numbers of involuntary admissions (Hiday, 2003). The intention of the dangerousness standard was that legislation should be invoked only in cases of serious danger to self or others, thus limiting the numbers of people subject to compulsion, especially because at that time committal was synonymous with admission to hospital. The exclusionary function of narrower criteria has been argued to have caused harm to some consumers by raising the threshold for compulsory treatment (Fistein, Holland, Clare, & Gunn, 2009; Large, Nielssen, Ryan, & Hayes, 2008), although the current legislation appears to have supported the policy objective of deinstitutionalization. Most people subject to mental health legislation in New Zealand are on community treatment orders rather than under involuntary care in a hospital (Ministry of Health, 2006). Recently, however, even this less restrictive model of civil commitment has been criticized as excessively coercive (Minkowitz, 2006). …