Capacity, consent, and mental health legislation: Time for a new standard?
Anthony J O'Brien
Centre for Mental Health Research, Policy and Service Development, University of Auckland; Liaison Psychiatry, Auckland Healthcare Services Ltd, New Zealand
PP: 237 - 247
Abstract
Recent international reforms in mental health legislation have introduced a capacity test as a criterion for civil commitment. There are proposals that a common test of incapacity should apply in both mental and physical health under a single legislative framework for all cases in which the normally accepted standard of informed consent for treatment is not met. Capacity is a complex concept, but can be reliably assessed in clinical practice. Nurses need to be involved in the policy debate about capacity and consent in mental health care.
Keywords
Capacity, competence, consent, mental health legislation, assessment, mental health nursing.
Article Text
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; Rosenman 1994; Dawson & Szmukler 2006; Wand & Chiarella 2007). 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.
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