Increasing the Participation of Persons with Mental Health Disabilities in Involuntary Mental Health Treatment Decision-Making

DR SUSAN PEUKERT, BA(HONS) LLB (HONS) PHD, MENTAL HEALTH ADVOCATE

For too long the voices of persons with mental health disabilities1 have been unheard during the involuntary mental health treatment decision-making process.2 State legislative frameworks such as the SA Mental Health Act 2009 have relegated these persons to playing the role of observer in deeply personal processes in which they should be the key players. This framework prescribes when individuals can make decisions for themselves and when they cannot. The framework aims to minimise harm, but this is achieved at an unnecessary cost of too many instances of involuntary treatment where persons with mental illness are excluded from the process of making their own decisions. This is an issue that warrants careful consideration and reevaluation because involuntary treatment curtails the autonomy of the individual.

The marginalisation of those with mental health disabilities can only be addressed by giving them back their voices, and, as far as possible, inviting them into the decision-making process. Given the South Australian Law Reform Institute will be conducting a comprehensive review of the Mental Health Act 2009 (SA), now is the time to take action and promote advocacy for a new model for involuntarily treating persons with mental health disabilities. South Australia needs law reform that realises and champions the rights of persons with mental health disabilities in line with the UN Convention on the Rights of Persons with Disabilities3 (CRPD).

This article argues that a balance must be struck between empowerment and protection - the vulnerability of those with a mental health disability cannot be ignored but neither can it be used as a reason to silence them during involuntary decision-making processes. An appropriate balance can be found through the creation of a nuanced supported decision-making model which draws on international best practice, is rights-based and focuses on a person’s right to make autonomous decisions where practicable. A supported decision-making model is predominantly about increasing respect for the rights of persons with mental health disabilities.

This article sketches a supported decision-making model4 which is consistent with the spirit of the CRPD. This model represents a path forward whereby persons with mental health disabilities and their supporters can more greatly participate in the involuntary mental health treatment decision-making process. This means that some persons who might otherwise be treated involuntarily will be supported to the degree that they are able, to participate in decisions surrounding their treatment in collaboration with their treating psychiatrist and supporter(s). This will allow persons with mental illness to build their mental capacity to the point where they may be treated voluntarily.

The CRPD

Rights afforded to persons with mental health disabilities arise from the CRPD. The rights flowing from the CRPD as a whole are important for all persons with disabilities. The focus here is on Article 12 of the CRPD and its recognition of equality before the law5 and the legal standing and legal agency6 of persons with disabilities. Supported decision-making is promoted in the CRPD and involves the provision of support during the treatment decision-making process.7 Article 12(4) introduces a ‘will and preferences’ paradigm and refers to the requirement to take into consideration the values and views of the individual making treatment decisions, or, on whose behalf, treatment decisions are being made.

If adopted, a supported decisionmaking model will empower persons with mental health disabilities to make their own treatment decisions with legal effect through the provision of supported decision-making and recognition of their will and preferences.8 As detailed below, careful law reform is needed to realise the changes proposed.

Determining Whether a Person with Mental Health Disabilities Will be Involuntarily Treated

The existing state legal framework uses a test of mental capacity9 to determine whether or not a person with mental health disabilities will be treated involuntarily.10 This test is found in s 5A of the Mental Health Act 2009 (SA). For the purposes of the Act, a person is taken to have impaired decision-making capacity if they cannot understand information relevant to the decision to be made, retain that information, and weigh the information in reaching a decision. Those who fail to meet a limb of this mental

capacity test accordingly lose their ability to make treatment decisions.

A strong critic of tests of mental capacity is the UN Committee on the Rights of Persons with Disabilities (Committee) as expressed in General Comment No. 1. It is the view of the Committee that a person’s decision-making skills should not lead to his or her legal capacity to make a particular decision being removed and that the use of mental capacity tests is inconsistent with the rights of persons with disabilities.11

In my view, a more nuanced approach than that of the Committee is required: that the mental capacity test should be retained and used as an indicator of support needs. For example, if the treating psychiatrist determines that a person cannot understand the treatment information given, they fail this limb of the mental capacity test and are determined to have impaired decision-making capacity. This should not be the end point. Rather, a decision-making supporter could step in to provide supported decision-making to the individual to assist them to make their own decision if practicable.

The mental capacity test need not be jettisoned. This test may be used to identify areas in which the individual being considered for treatment under mental health legislation can be assisted to make their own decision. Where a person fails to understand treatment information, then it is incumbent on the treating psychiatrist to present the information simply, at a time and in an environment where the person is most likely to understand the information. If this fails, the person with disabilities can then resort to the aid of a supported decision-maker to be supported to understand the information related to their treatment, and they may go on to be able to make their own treatment decisions. Further, if a person is unable to weigh the treatment information, then the treating psychiatrist could explain the implications of deciding whether or not to proceed with treatment, along with any other relevant factors that are reasonably foreseeable as necessary to weigh the information given. Again, if this fails, a person can nominate to be supported to weigh the treatment information with the aid of a supported decision-maker and they may be able to proceed to make their own treatment decision. It is clear that this model does not diminish the role of the treating psychiatrist; it is only if they cannot aid the person in meeting the limbs of the mental capacity test that recourse is taken to using the assistance of a supported decision-maker.

A More Nuanced Supported DecisionMaking Model

Three levels of decision-making arrangement are suggested for persons who are at risk of being treated involuntarily because of a determination of mental incapacity. These are assisted decision-making, co-decision-making, and fully supported decision-making. Each level of these arrangements may be entered into at a time when the individual’s capacity is in question because they fail the mental capacity test of s 5A of the Mental Health Act 2009 (SA).

The level of support chosen by the person with mental health disabilities is determined by two factors. Firstly, it may depend on the degree of impairment experienced by the individual as determined by the outcome of the mental capacity test. For example, the application of the mental capacity test may indicate a profound lack of understanding of treatment information that requires a high level of support. Secondly, the individual may themselves choose a high level of support even if they have minor support needs. For example, a person with low support needs may request the support of a fully supported decisionmaker to make decisions on their behalf. A person with mental health disabilities may choose to relinquish the responsibility of making a decision to a fully supported decision-maker just as we may choose to have a family member make a decision on our behalf.

Assisted decision-making arrangements allow the person with mental health disabilities to be supported by another person who helps them obtain information relevant to the decision to be made and explains it to them. The decision reached remains that of the person with mental health disabilities. Under co-decision-making arrangements, the person with mental health disabilities and their supporter make the decision jointly, reflecting the greater support needs. It is the role of the co-decisionmaking supporter to ascertain the will and

preferences of the person with mental health disabilities and to discuss the known alternatives and likely outcomes of the decision. Under fully supported decisionmaking arrangements, the decision is that of the supporter. The supporter must ascertain the person with disabilities’ treatment preferences along with their will and preferences before making a decision on their behalf. A fully supported decisionmaker’s role differs to that of a substitute decision-maker. They are nominated by the individual and take into account the will and preferences of the individual.

The results of the supported decisionmaking process are reported to the treating psychiatrist who may take them into consideration when deciding a course of treatment. At a minimum, this means that persons with mental health disabilities are able to participate in the treatment decision-making process in a meaningful way and learn to develop their decisionmaking skills. At best, a person who was previously determined to lack capacity may be reassessed using the mental capacity test and be found to have the capacity to make their own decisions. For example, a person who had previously been found to lack the ability to weigh treatment information may be considered able to do so after receiving decision-making support.

Supported decision-making arrangements do not diminish the role of the treating psychiatrist. They still have the primary function of directly explaining proposed treatment information to their mentally ill patient and assessing their mental capacity. The role of the supported decision-maker is then to discuss and provide access to information relevant to the decision to be made with the person with mental health disabilities if they fail a limb of the mental capacity test. Decisionmaking arrangements are desirable as these arrangements are envisaged to be appointer-driven, individualised, and a form of supported decision-making. Entering into these arrangements is a type of self-referral, with the appointer deciding the level and type of support that they want, and the person(s) they wish to be supported by.

Conclusion

The model proposed is characterised by the provision of support in decisionmaking, as opposed to substitute and ‘best interests’ decision-making models found in the traditional mental health legislation. Under the proposed model, persons with mental health disabilities being treated involuntarily are empowered to make their own decisions through the provision of support where practicable. In reviewing its mental health legislation, South Australia has an opportunity to ensure those persons with mental health disabilities can realise their right to make autonomous decisions where practicable.

I would strongly encourage lawyers who have persons with mental health disabilities as clients and see the need for mental health law reform to participate in the Review process. You can participate in the Review by visiting https://yoursay. sa.gov.au/mental-health-act-review. B

Endnotes 1 The term ‘person with mental health disabilities’ reflects the language of the UN Convention on the

Rights of Persons with Disabilities. It refers to those persons who experience long-term chronic mental illness of such a nature to be considered a disability. 2 Mental Health Act 2009 (SA) ss 21, 25, 29. 3 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515

UNTS 3 (entered into force 3 May 2008). 4 This model is developed in full in my PhD thesis:

Susan Peukert, Increasing the Participation of Persons with Mental Illness in Mental Health Decision-Making, 2021. A snapshot is given due to the length and complexity of the supported decision-making model developed in the thesis. 5 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515

UNTS 3 (entered into force 3 May 2008) art 12(1). 6 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515

UNTS 3 (entered into force 3 May 2008) art 12(2). Art 12(2) covers the recognition of the legal capacity of persons with disabilities. Legal capacity comprises of both legal standing and legal agency. The notion of universal legal capacity requires that both legal standing and legal agency are present for the right to legal capacity to be realised. Legal agency is commonly thwarted for persons with mental health disabilities as it is diminished by involuntary treatment under mental health legislation with the result that the person cannot make decisions on their own behalf. 7 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515

UNTS 3 (entered into force 3 May 2008) art 12(3). 8 See: Convention on the Rights of Persons with

Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) art 12(3), (4). 9 A test of decision-making ability. 10 In concert with impaired capacity, a person must also have a mental illness and pose a risk of harm to themselves or others to be treated involuntarily under an Inpatient Treatment Order. 11 General Comment No. 1: Article 12: Equal Recognition before the Law, 11th sess, UN Doc CRPD/C/

GC/1 (19 May 2014) [15].