By Professor Hazel Biggs
Read Online or Download Medical Law Review - vol 19, No. 4, 2011 Autumn pages 507-675 PDF
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Extra info for Medical Law Review - vol 19, No. 4, 2011 Autumn pages 507-675
Wilkinson at para 1. R (B) v SS  EWHC 86, para 8. R (PS) v G  EWHC 2335 (Admin), para26. E Goffman, Asylums (1961). Med. L. Rev. Compulsory Treatment for Mental Disorder 541 from the free and informed consent of liberal theory, and refusals of treatment must be understood accordingly. The unreality of voluntariness in the context of consent to psychiatric hospital admissions has long been noted;90 it seems likely that there is a similar haziness surrounding consent to treatment while in psychiatric hospitals, with capacity not really being questioned as long as the individual is taking his or her meds, in circumstances where the patient would not meet any meaningful test of capacity.
The articulation of incapacity in s 58 requires that the patient ‘is not capable of understanding the nature, purpose and likely effects of that treatment’: s 58(3)(b). The absence of a requirement of appreciation in this test suggests that it is arguably lower than the common law threshold, and that contained in the Mental Capacity Act 2005. This view is supported by the case of R (X) v Mental Health Act Commission which further emphasises the patient’s ability to understand, rather than his or her actual understanding: (1988) 9 BMLR 77 (DivCt), eg, at 85.
In December 2008, the 6 7 with appropriately at the domestic level or to challenge domestic policies and practices that violate human rights norms’: L Gostin and L Gamble, ‘The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health’ (2004) 63 Med L Rev 20, 47–8. Unfortunately, individuals with mental illnesses, their carers, and families in Australia and New Zealand do not have recourse to any ‘additional forum’ to enforce their rights.
Medical Law Review - vol 19, No. 4, 2011 Autumn pages 507-675 by Professor Hazel Biggs