Issue 1 / 20 January 2014

A LEADING psychiatrist has called for decision-making capacity to be included in criteria to involuntarily detain people with serious mental illness for treatment.

Dr Christopher Ryan, a clinical senior lecturer in psychiatry at the University of Sydney, told MJA InSight the Mental Health Act in NSW makes no reference to a patient’s decision-making capacity in relation to involuntary detention. (1)

In an editorial published in the latest MJA, Dr Ryan and his coauthors discussed communication, confidentiality and consent in mental health care, saying that doctors can disclose confidential information about mentally ill patients if the patient does not have the capacity to consent to disclosure. (2)

“If a patient lacks the capacity to make the refusal [to disclose information], and disclosure is necessary in the best interests of the patient, then the disclosure can be made if it is necessary to discharge the clinician’s duty of care to the patient”, the authors wrote.

However, the patient’s capacity is not included when considering involuntary detention.

This anomaly was highlighted in a recent coroner’s report into the tragic deaths of a Sydney artist and his daughter. Antony Waterlow fatally stabbed his father Nick and sister Chloe in Sydney in November 2009, after refusing treatment for his paranoid schizophrenia for nearly a decade.

The Mental Health Act says a mentally ill person cannot be involuntarily detained for treatment unless “owing to the illness, there are reasonable grounds for believing that care, treatment and control is necessary for the person’s own protection from serious harm, or for the protection of others from serious harm”.

The coroner in the Waterlow case recommended that the term “for the person’s own protection from serious harm” should be understood to include the harm caused by the illness itself; that the term “for the protection of others from serious harm” should be understood to include emotional harm. He also recommended that ambiguity about criteria to be met before a patient is scheduled be removed.

Dr Ryan, who was an expert witness at the Waterlow inquest, said that while the coroner's recommendations were reasonable, far more extensive law reform was needed.

“Ideally, we should get rid of the whole ‘harm’ clause”, Dr Ryan told MJA InSight.

“That would bring us in to line with our international law obligations [the United Nations Convention on the Rights of Persons with Disabilities, which Australia ratified in 2007].” (3)

In his evidence to the Waterlow inquest Dr Ryan said: “If instead of suffering schizophrenia, Mr Waterlow had suffered a medical illness, say hypothyroidism, it is likely that the approach to his refusal of treatment would have been quite different.”

Dr Ryan told MJA InSight: “Nobody ever checked if Antony Waterlow had decision-making capacity, and that’s fine, because they are not required to under the Act.”

Dr Murray Patton, president of the Royal Australian and New Zealand College of Psychiatrists, said there were no simple solutions to the questions of confidentiality and consent in mental health.

“There is quite a lot of debate about the risk element and the threshold of risk and how that should be set”, Dr Patton told MJA InSight.

“Even within the various groups dealing with these issues there are differing views, but psychiatrists work within the framework of the legislation.

“We respect the right of patients to as much autonomy as possible, and we would be very cautious about limiting that autonomy, but we also recognise the need of people to get the appropriate treatment.

“Ultimately it’s something the politicians will deal with. It’s not something we would take a position on.”

NSW Minister for Mental Health, Kevin Humphries, told MJA InSight the coroner’s recommendations in the Waterlow case will be “taken into account” as part of a major review of the Mental Health Act.

“The issues raised in the Waterlow case have been part of the discussion papers and consultation forums arising out of the review. The coroner’s recommendations are being taken into account as part of the review”, Mr Humphries said.

1. NSW Consolidated Acts: Mental Health Act 2007
2. MJA 2014; 200: 9
3. UN Convention on the Rights of Persons with Disabilities 2006
The Coroner’s report on the Waterlow case was not available online at the time of going to press.

6 thoughts on “Capacity concerns in mental illness

  1. Genevieve Freer says:

    Decision-making capacity or lack thereof is subjective and therefore not grounds for involuntary detention. If it was, every person who invested or spent  their money unwisely could be viewed as insane.

    Threatening harm to others is objective, as are repeated threats of harm, and actual harm, such as repeated demands for money, material goods, repeated telephone calls , visits,  at unsociable hours, suffered by the family , sometimes elderley, and friends of people with mental illness. The mentally-ill  person has often engaged in these behaviours for years, and been rewarded with gratification of their demands. Perhaps they have delusions of entitlement, and unreasonable beliefs .  They have learned to threaten and extort,  and learned that their behaviour is excused due to  their mental illness.  Their decision-making however appears sound-they have decided what they want, decided how to get what they want , and act on their decisions, in the reasonable belief that their behaviour will continue to be excused .


  2. Sue Ieraci says:

    I suspect we are still seeing the legacy of the “Cuckoo’s Nest” view of psychiatric hospitals, where the community is so scared of ”being put away” by their families that there is still a suspicion of involuntary admission. If the Coroner’s recommendations result in more frequent use of involuntary admission, we are likely to see strong opposition from the civil liberty perspective – with mental health clinicians stuck in the middle. The risk of psychotic patients doing unpredictable violent things – either to themselves or others, will never be zero – just as the road toll will never be zero. The challenge is to set the conditions for involuntary psych admission at the right level – which probably means that neither family lobby groups or civil libertarians will be happy. 

  3. dr cherry evans says:

    I am a GP in queensland.The current Mental Health Act  is more concerned with the patient’s rights to refuse treatment rather than their need to receive it. It is incredably difficult toget metal health teams to visit mentally sick people who “refuse” treatment except by a court order, even when they are “case managed”clients well known to the service.

    Families completing a “Justice Examination Order” are questioned as to their motive for appling for treatment for the sick person,and often made to feel  like a criminal who is “trying to pull a swifty”.The mentally sick person also often threatens what they will do if the family completes a JEO.

    Admission beds for some are at a premium. I was told yesterday by my local Community Mental Health Team that patients are only admitted if they are psychotic, and that patients with drug induced psychosis should take themselves off to a drug and alcohol unit- as if this would happen!!!!!

    Meanwhile patients in the local forensic unit are there  long term patients,  still banking their full disability pension, and beig taken on outings – all of this at the cost of the taxpayer.They should at least have to pay a percentage of their pension, like people in nursing homes have to.

     I often see mentally sick patients who are deteriorating and where a short hospital admission would get them on track again, This is not happening. They have to wait till they are floridly psychotic to get admission.

    No wonder so many murders take place.

  4. bruni brewin says:

    The Act – seems to me to be quite adequate.  I fail to see that we need to introduce tougher legislation that may decrease a mental health patients right for discharge.

    There have been sad stories from recipients of mental health treatment and their carers, to warrant an oversight and not leave the power in the hands of those who might abuse that power.  There has to be some accountability of the law and the ability to obtain defence against that law.

  5. Genevieve Freer says:

    Perhaps when the Coroner’s report is available the article can be posted again.

    There are two issues raised-harm to the patient and harm to others.

    Harm to the patient affects only the patient.

    Harm to others affects others.

    Regardless of whether any person suffers from a “mental illness ” , threat of harm to others should be addressed through the criminal justice system.

    Thomas Szasz has written that criminal behaviour should not be excused on the grounds of mental illness, and that to actually kill another person, let alone two people, requires a certain degree of capacity.

     Regardless of Antony Waterlow’s illness, he murdered two people, and should be convicted of those murders.His right to refuse treatment gives him the right to be convicted of murdering two people.

    Let us not blame the mental health act, rather the criminal jusitce system, for excusing murder on the grounds of mental illness.

  6. Graham Jacobs says:

    Need to ask the expert psychiatrist why the present act in NSW where the involuntary statis criteria includes “owing to the illness reasonable grounds … that treatment and control is necessary  for person’s own protection from serious harm or protection of others from serious harm”. If enacted why could this not have protected Mr Waterlow’s father and sister? The lack of decision-making capacity was in relation presumably to his refusal to ever take medication for his condition but this is common in attempting to treat a mental illness minor or major. This should not qualify a person for involuntary status alone but would capture all appropriate persons would be their risk to themselves or others because they are not/ will not taking medication to control their condition. I believe the legislative means are there already and decision-making capacity is almost always compromised in serious mental illness and the decision say  to not take medication is not the important legal issue but the consequences of not are, ie, harm to oneself or others   Regards Graham. Rural GP 

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