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Int J Law Psychiatry. 2019 May - Jun;64:162-177. doi: 10.1016/j.ijlp.2019.02.002. Epub 2019 Apr 12.

Advance decision-making in mental health - Suggestions for legal reform in England and Wales.

Author information

1
Reader and lead, Mental Health, Ethics and Law Research Group, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF. Electronic address: gareth.1.owen@kcl.ac.uk.
2
Wellcome Senior Research Fellow, Mental Health, Ethics and Law Research Group, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF.
3
Clinical Research Associate, Mental Health, Ethics and Law Research Group, ST6 General Adult Psychiatry and Medical Psychotherapy., Institute of Psychiatry, Psychology and Neuroscience, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF.
4
ST4 in Forensic Psychiatry, South London and Maudsley NHS Foundation Trust, Denmark Hill, London SE5 8AZ.
5
Consultant Psychiatrist, Lambeth Home Treatment Team, South London and Maudsley NHS Foundation Trust, Denmark Hill, London SE5 8AZ, Visiting senior lecturer, Institute of Psychiatry, Psychology and Neuroscience, King's College London 16 De Crespigny Park, London SE5 8AF.
6
Barrister, Wellcome Research Fellow, Visiting Lecturer at the Dickson Poon School of Law, Kings College London, Somerset House, East Wing WC2R 2LS, Visiting senior lecturer, Institute of Psychiatry, Psychology and Neuroscience, King's College London 16 De Crespigny Park, London SE5 8AF.

Abstract

This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based 'fusion' law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government's 2018 Independent Review of the Mental Health Act 1983.

KEYWORDS:

Advance choice; Advance decision making; Advance directive; CRPD; Competence; Mental capacity; Mental capacity act; Mental health act

PMID:
31122626
PMCID:
PMC6544565
DOI:
10.1016/j.ijlp.2019.02.002
[Indexed for MEDLINE]
Free PMC Article

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