Assessment for detention for psychiatric treatment or for treatment in the community against the person's wishes is, as already indicated, carried out in many countries not on the basis of an incapacity criterion but on some status criterion,(1.) usually amounting to something similar to the test of having 'a mental disorder of a nature or degree which makes it appropriate that the person be admitted to hospital for medical treatment...and they need to be detained'. This clearly involves, at least in theory, an entirely different type of clinico-legal assessment process. In practice, of course, it may be that, because the use of such law by clinicians is discretionary, they may import into the (so-called) 'appropriateness' test their own ethical requirement that the patient lacks capacity. Hence, ethics influences the operation of law. Indeed, if that is widespread practice then the formal legal substitution of an incapacity test for a status test would be likely to have relatively little effect on who is compulsory detained and treated and who is not. To the extent that the law is used by clinicians as it is written, the appropriateness test is clearly, both at face value and even in its wording, highly paternalistic. Also, as already described, the English courts have pursued welfare even further by interpreting both 'treatment' and 'treatment for mental disorder' so widely(1 2,9 that each has been broadened beyond what even most doctors would understand the term to mean. Indeed, the courts have taken the notion of 'treatment for mental disorder', in terms of Section 63 of the Act, far away from anything contemplated by Parliament when the Act was passed.(50)
It seems likely that clinicians operating a status test which at least appears to come close to medical notions of appropriate admission to hospital for treatment will look mainly to the gravity of the consequences of not detaining the patient when deciding whether or not to exercise their legal power over the patient. (21.) That is, they will balance the consequences of non-detention against infringement of the patient's civil rights (if not against the patient's capacity per se, as described in the 'balance model' described earlier). Indeed, there is both anecdotal and research evidence to suggest that this is done by psychiatrists, including by 'conflating' the 'appropriateness' criterion with the tertiary criterion of harm to others and self in deciding whether to recommend detention, or continued detention. (!,2) As regards how an act such as the English Mental Health Act is operated in other respects, there is (as, indeed, there is with the appropriateness test) a profound lack of empirical data or research.(!9 Perhaps it suffices to say that the lack of such research, or even of audit data and an evidence-based approach, (51) also reflects a dearth of professional (especially psychiatric) interest in the field of psycho-legal studies. Indeed, one aim of this chapter is to highlight the need for psycho-legal studies to be as interwoven into the fabric of everyday clinical practice and research as is psychopharmacology. Even if the reason for achieving this is only a welfare one of better patient outcome, it is still justified (after all, there is no good being a wonderful psychopharmacologist if you do not know how to use the law to admit the unwilling patient in order for them to receive the drugs about which you are so knowledgeable). Recognizing the duty of doctors to be guardians of their patients' civil rights further reinforces the imperative of psycho-legal interest, training, and research (into both the law's welfare and justice effects). Also, lack of psycho-legal knowledge and research may serve to obscure the relative potential contribution of law to national mental health by comparison with services per se (and vice versa), even though that contribution may well be highly focused and limited in the aggregate.
Finally, if an incapacity test were generally to replace the much more common status tests seen in mental health care legislation, the effect upon who would (and would not) be detained and/or treated is unresearched. However, it is likely to depend upon whether a 'broad' or 'narrow' interpretation of capacity was commonly adopted.
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