Elizabeth Fistein

A comparison of mental health legislation from diverse Commonwealth jurisdictions

Introduction In the regulation of involuntary treatment, a balance must be found between duties of care and protection and the right to self-determination. Despite its shared common roots, the mental health legislation of Commonwealth countries approaches this balance in different ways. When reform is planned, lessons can be learned from the experiences of other countries. Method Criteria for involuntary treatment used in a sample of 32 Commonwealth Mental Health Acts were compared using a framework developed from standards derived from the Universal Declaration of Human Rights. Reasons for non-compliance were considered and examples of good practice were noted. Changes in the criteria used over time and across areas with differing levels of economic development were analysed. Results 1. Widespread deviation from standards was demonstrated, suggesting that some current legislation may be inadequate for the protection of the human rights of people with mental disorders. 2. Current trends in Commonwealth mental health law reform include a move towards broad diagnostic criteria, use of capacity and treatability tests, treatment in the interests of health rather than safety, and regular reviews of treatment orders. Nevertheless, there are some striking exceptions. Discussion Explanations for deviation from the standards include differing value perspectives underpinning approaches to balancing conflicting principles, failure to keep pace with changing attitudes to mental disorder, and variations in the resources available for providing treatment and undertaking law reform. Current good practice provides examples of ways of dealing with some of these difficulties.

Case-based seminars in medical ethics education: how medical students define and discuss moral problems

Discussion of real cases encountered by medical students has been advocated as a component of medical ethics education. Suggested benefits include: a focus on the actual problems that medical students confront; active learner involvement; and facilitation of an exploration of the meaning of their own values in relation to professional behaviour. However, the approach may also carry risks: students may focus too narrowly on particular clinical topics or show a preference for discussing legal problems that may appear to have clearer solutions. Teaching may therefore omit areas generally considered to be important components of the curriculum. In this paper, the authors present an analysis of the moral problems raised by medical students in response to a request to describe ethically problematic cases they had encountered during two clinical attachments, for the purpose of educational discussion at case-based seminars. We discuss the problems raised and compare the content of the cases to the UK Consensus Statement on core content of learning. The authors also describe the approaches that the students used to undertake an initial analysis of the problems raised, and consider possible implications for the development of medical ethics education.

In the lion's den? Experiences of interaction with research ethics committees

Research ethics review is an important process, designed to protect participants in medical research. However, it is increasingly criticised for failing to meet its aims. Here, two researchers reflect on their experiences of applying for ethical approval of observational research in clinical settings. They highlight some problems faced by reviewers and researchers and propose a two-stage ethical review process that would alert researchers to the committees concerns and allow them to give a more considered response.

Tensions between policy and practice: a qualitative analysis of decisions regarding compulsory admission to psychiatric hospital

The use of detention for psychiatric treatment is widespread and sometimes necessary. International human rights law requires a legal framework to safeguard the rights to liberty and personal integrity by preventing arbitrary detention. However, research suggests that extra-legal factors may influence decisions to detain. This article presents observational and interview data to describe how decisions to detain are made in practice in one jurisdiction (England and Wales) where a tension between policy and practice has been described. The analysis shows that practitioners mould the law into ‘practical criteria’ that appear to form a set of operational criteria for identifying cases to which the principle of soft paternalism may be applied. Most practitioners also appear willing, albeit often reluctantly, to depart from their usual reliance on the principle of soft paternalism and authorise detention of people with the capacity to refuse treatment, in order to prevent serious harm. We propose a potential resolution for the tension between policy and practice: two separate legal frameworks to authorise detention, one with a suitable test of capacity, used to enact soft paternalism, and the other to provide legal justification for detention for psychiatric treatment of the small number of people who retain decision-making capacity but nonetheless choose to place others at risk by refusing treatment. This separation of detention powers into two systems, according to the principle that justifies the use of detention would be intellectually coherent, consistent with human rights instruments and, being consistent with the apparent moral sentiments of practitioners, less prone to idiosyncratic interpretations in practice.

Le leadership en santé et la philosophie appliquée : une ressource essentielle

En qualité de professionnels de la santé, nous sommes déterminés à assurer l’exploitation efficiente et efficace de nos établissements. Les outils dont nous disposons sont les structures bureaucratiques, les règles, les règlements, les politiques et, bien sûr, les mesures. Il n’y a rien de foncièrement pernicieux à avoir des établissements efficients, efficaces et mesurés, mais nous soutenons que l’humanité et l’authenticité manquent cruellement dans cet environnement, au prix d’un travail significatif. Les solutions que nous proposons appartiennent au milieu de la philosophie, et particulièrement au secteur qui repose sur des principes fondamentaux : qu’est-ce qu’une infirmière, qu’est-ce qu’un patient, qu’est-ce qu’un hôpital?

Healthcare leadership and applied philosophy: An essential resource:

As healthcare professionals we are committed to the efficient and effective operation of our institutions. Bureaucratic structures, rules, regulations, policies, and of course, measurements, are the tools-at-hand. While there is nothing inherently pernicious about efficient, effective, and measured institutions, we argue what is critically missing in this environment is humanity and authenticity at the cost of meaningful work. The solutions we offer are found in the realm of philosophy and in particular that branch of philosophy that deals with first principles - what is a nurse; what is a patient; what is a hospital?

Patient First: Ethics and Ontology of Nursing Care

In this paper we argue that while attention to and acting upon ethical codes of conduct is paramount in professional nursing conduct, a critical antecedent to ethical behaviour is ontological perception, that is, and how we view the patient as a person. We argue that the nurse’s perspective of the essence of patients (e.g., are they a means to our ends or ends in themselves?) will form the groundwork for the quality of ethical care provided. As a foil for our discussion, we use the 2013 case at the Mid Staffordshire General Hospital in the United Kingdom in which unethical practice among staff place patient health, safety, and dignity at risk. We conclude by offering an ontological dimension to a truly ‘patient first’ strategy which places the very essence of the patient as primary.

Comparison of mental health legislation for involuntary treatments across the Commonwealth.

Methods World Health Organization (WHO) and Council of Europe (CoE) guidance on the desirable components of mental health legislation were used to develop standards for criteria for involuntary admission and treatment. The standards include the presence of appeal or review procedures, conditions included/excluded under the remit of the law, and thresholds for risk and incapacity that would legitimize involuntary treatment. Mental Health Acts from a range of high and low resource Commonwealth jurisdictions were rated against the criteria. Instances where current law falls short of the guidelines were noted, as were examples of good practice that could be used as models for law reform.