Advance decision-making in mental health - suggestions for legal reform in England and Wales

TY - JOUR

T1 - Advance decision-making in mental health - suggestions for legal reform in England and Wales

AU - Owen, Gareth

AU - Davies, Tania Louise

AU - Stephenson-Coles, Lucy Anne

AU - Hussain, Osman

AU - Rifkin, Larry

AU - Ruck Keene, Alexander Charles Edward

PY - 2019/5/1

Y1 - 2019/5/1

N2 - This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based ‘fusion’ law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government’s 2018 Independent Review of the Mental Health Act 1983.

AB - This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based ‘fusion’ law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government’s 2018 Independent Review of the Mental Health Act 1983.

KW - Advance choice

KW - Advance decision making

KW - Advance directive

KW - CRPD

KW - Competence

KW - Mental capacity

KW - Mental capacity act

KW - Mental health act

UR - http://www.scopus.com/inward/record.url?scp=85064197541&partnerID=8YFLogxK

U2 - 10.1016/j.ijlp.2019.02.002

DO - 10.1016/j.ijlp.2019.02.002

M3 - Article

SN - 0160-2527

VL - 64

SP - 162

EP - 177

JO - International Journal of Law and Psychiatry

JF - International Journal of Law and Psychiatry

ER -