AN expert in psychiatric ethics says doctors’ low compliance rates with legal requirements for involuntary mental health admissions reflects long-term underfunding of mental health services and an erosion of judicial oversight.
Associate Professor Michael Robertson, clinical associate professor of mental health ethics at the University of Sydney’s Centre for Values, Ethics and Law in Medicine, was commenting on research published in the MJA
, which found that medical practitioners addressed all necessary criteria in only 40% of admission forms providing written grounds for the detention and involuntary treatment of their patients with mental illness. (1)
Professor Robertson said the findings, based on forms authorising the initial detention of involuntary patients in South Australia between 2008 and 2009, were “alarming, but not surprising”.
“It certainly is disturbing that there is a very minimal burden of proof to detain someone with a mental illness”, Dr Robertson said.
The SA study found that of the 2491 consecutive forms authorising detention of involuntary patients only 985 addressed all the legal requirements for detention, with 59% (1471 forms) failing to include a comment on the need for immediate treatment, 22% (540 forms) not stating the presence of a mental illness, and 14% (359 forms) not discussing risk to self or others.
“We view this very low completion rate as a significant problem in documenting evidence of compliance with the law and protecting the rights of the affected patient”, the researchers wrote.
Dr Robertson told MJA InSight there had to be evidentiary justification for detaining someone and enforcing treatment, and yet the burden of proof was “pretty flimsy”.
These failings reflected “generations of underfunding” of health services for the mentally ill and the consequent erosion of judicial oversight, he said.
“There needs to be the same level of judicial oversight to coercive treatment and involuntary detention that there is in a criminal matter”, said Dr Robertson, calling for a more rigorous system for involuntary detention.
Dr Christopher Ryan, psychiatrist with the Centre for Values, Ethics and the Law in Medicine at the University of Sydney, agreed that the findings were cause for concern, but emphasised that the documentation failures did not necessarily mean that patients were being detained unlawfully.
“The most important thing is that the person is detained lawfully and that they understand — or have the opportunity to understand — why they have been detained”, Dr Ryan told MJA InSight.
“We have to find some way of making sure both of those things happen.”
However, Dr Ryan said the findings did highlight the problem of “how do we know that people are being detained lawfully”.
The MJA authors said that in 2014 a review of the operation of the SA Mental Health Act recommended that reasons for detention not be included in written forms. The review is currently with the SA Government.
They wrote that requirements to complete forms and notify involuntary patients of the reasons for detention varied across jurisdictions.
“We suggest not only that the recording of reasons be required, but also, given the concerns discussed in this article, that the reasoning on the forms be regularly monitored for quality assurance and that clinicians be supported to improve their performance”, the authors wrote. They also suggested that mental health tribunals regularly review forms.
Christopher Povey, manager of mental health and disability at Victoria Legal Aid (VLA), said complying with the information requirements under the Mental Health Act was fundamental to a system in which human rights were being curtailed.
However, Mr Povey said variable compliance with these requirements was a feature in many of the 1100 cases the VLA represented before the state’s Mental Health Tribunal (formerly the Mental Health Review Board) last financial year.
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