Risk, capacity and making decisions about CTOs

Abstract

1. The two customary justifications for 'involuntary' or 'coercive' treatment of mental illness are either: that without treatment the mentally ill person might be likely to seriously harm themselves or others; or, that the person lacks capacity to refuse treatment but that treatment would be in the person's bests interests and consented to by a substitute decision-maker. 2. These concepts are more complex in the setting of community mental health care as levels of acuity and clarity of risk and capacity are often viewed through different prisms by different stakeholders. 3. The lack of any valid consensus on models of 'risk' and 'capacity' often complicates clinical and legal decisions relating to the use of community treatment orders (CTOs). 4. Between 2009 and 2012, the Centre for Values Ethics and the Law in Medicine (VELiM) at the University of Sydney conducted a research program on behalf of the Mental Health, Drug and Alcohol Office (MHDAO) of NSW Health. 5. Thirty-eight participants - including clinicians, consumers, carers and members of the Mental Health Review Tribunal (MHRT) - participated in the research project by taking part in in-depth interviews. This interview data set was analysed using qualitative methodologies. 6. The researchers noted that while there were significant overlaps in how groups of participants conceptualised 'risk' and 'capacity', each participant group emphasised different aspects of these constructs : a. In the domain of risk, clinicians and MHRT participants predominately saw risk in terms of risk of harm and risk of poorer clinical outcome, whereas consumers and carers were more likely to conceptualise it in terms of social and interpersonal adversity. b. In the case of capacity, clinicians and MHRT members based their views on legal and medical constructions relating to the ability to make reasonable choices about health, whereas consumers and carers emphasised that severe mental illness brought about incapacity to partake a social role. In the light of the existing medico-legal constructs of capacity, it may be prudent to categorise this phenomenon as 'capability'. 7. From these data the study proposed a model of risk incorporating the domains of : a. Risk of harm to self or others b. Risk of social adversity c. Risk of excess distress d. Risk of compromised treatment 8. The proposed model of capacity incorporates the domains of : a. Capacity to manage the illness b. Capacity for self-care c. Capacity to maintain a social role 9. Future research is required instrumentalising these concepts and assessing their application in medico-legal settings.