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Abstract
This article examines the views of psychiatrists concerning ‘supported decision-making’ in the operation of mental health law. Supported decision-making is advanced in international human rights law, particularly with regards to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and is being developed at the domestic level in mental health law and policy by governments throughout the world, including in Victoria, Australia. The article draws on qualitative research conducted in the form of interviews with 11 psychiatrists currently working in Victoria. Interviewees tended to endorse supported decision-making, though each participant evidently differed in his or her specific understanding of the term – indicating both the conceptual ambiguity of the term and its relatively little known status among mental health professionals. Nonetheless, the interviews help refine an understanding of the issues likely to arise in efforts to apply the support approach of the CRPD in mental health law, policy and practice.
Acknowledgements
I would like to thank Professor Bernadette McSherry and Dr Penelope Weller for their support in designing and authoring this article. I would also like to thank Kate Lahiff for her assistance proofing the article.
Notes
1. J Peay (ed), Seminal Issues in Mental Health Law (Ashgate 2005) xv.
2. See generally P Weller, ‘Supported Decision-making and the Achievement of Non-discrimination: The Promise and Paradox of the Disabilities Convention’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press 2008); B McSherry and K Wilson, ‘Detention and Treatment Down Under: Human Rights and Mental Health Laws in Australia and New Zealand’ (2011) 19 (4) Medical Law Review 548; A Kämpf, ‘The Disabilities Convention and its Consequences for Mental Health Laws in Australia’ (2008) 26 (2) Law in Context 10; P Gooding, ‘Supported Decision-making: A Rights-based Disability Concept and its Implications for Mental Health Law’ (2013) 20 (3) Psychiatry, Psychology and Law 431.
3. M Browning, C Bigby and J Douglas, ‘Supported Decision Making: Understanding How its Conceptual Link to Legal Capacity is Influencing the Development of Practice’ (2014) 1 (1) Research and Practice in Intellectual and Developmental Disabilities.
4. R Gordon, ‘The Emergence of Assisted (Supported) Decision-making in the Canadian Law of Adult Guardianship and Substitute Decision-making’ (2000) 23 (1) International Journal of Law and Psychiatry 61.
5. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, Doc.A/61/611 (entered into force 3 May 2008).
6. CRPD, Article 12 (3). See eg E Flynn and A Arstein-Kerslake, ‘Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity’ (2014) 10 (1) International Journal of Law in Context 81.
7. Committee on the Rights of Persons with Disabilities, General Comment No. 1 – Article 12: Equal Recognition Before the Law, UN Doc. No. CRPD/C/GC/1, adopted at the 11th Session (April 2014), para 23.
8. See Gordon (n 4).
9. See Gooding (n 2).
10. Weller (n 2).
11. These interviews required ethics clearance from the Monash University Human Research Ethics Committee, which was obtained prior to the commencement of interviews.
12. T Carney and F Beaupert, ‘Public and Private Bricolage: Challenges Balancing Law, Services and Civil Society in Advancing CRPD Supported Decision Making’ (2013) 36 (1) UNSW Law Journal 175, 178; T Carney, ‘Clarifying, Operationalising, and Evaluating Supported Decision Making Models’ (2014) 1 (1) Research and Practice in Intellectual and Developmental Disabilities 46.
13. See eg Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Australia Adopted by the Committee at its Tenth Session (2–13 September 2013) CRPD/C/AUS/CO/1, 4 October 2013 <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2fAUS%2fCO%2f1andLang=en> accessed 3 December 2013.
14. See eg S Pathare and LS Shields, ‘Supported Decision-making for Persons with Mental Illness: A Review’ (2012) 34 (2) Public Health Reviews 1; FJ Bariffi and MS Smith, ‘Same Old Game but with Some New Players – Assessing Argentina's National Mental Health Law in Light of the Rights to Liberty and Legal Capacity under the United Nations Convention on the Rights of the Persons with Disabilities’ 2013 31 (3) Nordic Journal of Human Rights 325; G Davidson, B Kelly, G Macdonald, M Rizzo, L Lombard, O Abogunrin, V Clift-Matthews and A Martin, M Evidence, ‘Good Practice in Supported Decisionmaking under Modern Mental Capacity Legislation, A National Disability Authority Working Paper’ (National Disability Authority 2012); E Flynn, ‘Mental (In)Capacity or Legal Capacity? A Human Rights Analysis of the Proposed Fusion of Mental Health and Mental Capacity in Northern Ireland’ (2013) 64 (4) Northern Ireland Legal Quarterly 485.
15. Gordon (n 4) 64.
16. See eg Department of Health, Exposure Draft Mental Health Bill 2010, Explanatory Guide (2010) Victorian Government, Australia, vi (bracketed content in original); M Wolstenholme, ‘Current Trends in Mental Health Legislation’ Department of Health, Mental Health Commission, Government of Western Australia (June, 2008).
17. Typically, interviewees would qualify responses to questions with a statement about their experience; for example, ‘Can I qualify what I’m saying by the fact that I work in a child and adolescent setting, and a youth justice setting, so I haven't dealt with adults with a psychotic illness for quite a while’.
18. See P Oliver, ‘Purposive Sampling’ in V Jupp (ed), The SAGE Dictionary of Social Research Methods (SAGE 2006) 245, 282.
19. B Somekh and C Lewin, Research Methods in the Social Sciences (SAGE 2005).
20. Somekh and Lewin (n 19).
21. The interviews were conducted by Piers Gooding.
22. An example of supplementary questions is: (i) in the context of a discussion about providing mental health service provision in a particular rural area as opposed to city-based services: ‘Does the country context sort of put up any problems and issues that you think aren't happening in the city, or does supported decision-making have a place in the country that might be different?’
23. NVivo, QSR NVivo 10 research software for analysis and insight, (2012) <www.qsrinternational.com/products_nvivo.aspx> accessed 2 December 12.
24. NL Leech and AJ Onwuegbuzie, ‘Beyond Constant Comparison Qualitative Data Analysis: Using Nvivo’ (2011) 25 (1) School Psychology Quarterly 70.
25. R Boyatzis, Transforming Qualitative Information (SAGE 1998).
26. RK Yin, Case Study Research: Design and Methods (SAGE 1994) 90.
27. D Silverman, Doing Qualitative Research (SAGE 2010) 238.
28. R Tesch, Qualitative Research: Analysis Types and Software Tools (Routledge 1990).
29. A Coffey, B Holbrook and P Atkinson, ‘Qualitative Data Analysis: Technologies and Representations’ (1996) 1 (1) Sociological Research Online 7.2 <http://www.socresonline.org.uk/1/1/4.html> accessed 2 January 2011. See also MQ Patton, ‘Two Decades of Developments in Qualitative Inquiry: A Personal, Experiential Perspective’ (2002) 1 (3) Qualitative Social Work 261.
30. H Hsieh and SE Shannon, ‘Three Approaches to Qualitative Content Analysis’ (2005) 15 (9) Qualitative Health Research 1277, 1279.
31. Hsieh and Shannon (n 30).
32. Leech and Onwuegbuzie (n 24) 77.
33. R Boyatzis (n 25) vii; see also A Strauss and J Corbin, Basics of Qualitative Research: Grounded Theory Procedures and Techniques (Sage 1990); B Flyvbjerg, ‘Five Misunderstandings About Case-study Research’ (2006) 12 (2) Qualitative Inquiry 219.
34. See Gooding (n 2).
35. M Hammersley, ‘Recent Radical Criticism of Interview Studies: Any Implications for the Sociology of Education?’ 2003 24 (1) British Journal of Sociology of Education 119, 120.
36. Hammersley (n 35).
37. K Hunter, S Hari, C Egbu and J Kelly, ‘Grounded Theory: Its Diversification and Application Through Two Examples From Research Studies on Knowledge and Value Management’ (2005) 3 (1) Electronic Journal of Business Research Methods 57, 60ff.
38. Hunter et al (n 37).
39. K Charmaz, Constructing Grounded Theory: A Practical Guide Through Qualitative Analysis (SAGE 2006).
40. Charmaz (n 39) 114.
41. G Guest, A Bunce and L Johnson, ‘How Many Interviews Are Enough? An Experiment with Data Saturation and Variability’ (2006) 18 (1) Field Methods 59, 78ff.
42. See eg Department of Health (n 16) vi.
43. United Nations Enable, ‘Convention and Optional Protocol Signatures and Ratifications’ (Australia) <http://www.un.org/disabilities/countries.asp?navid=12&pid=166> accessed 20 December 2013.
44. United Nations Convention on the Rights of Persons with Disabilities: Reservations and Declarations (Australia), UNHCR 2008.
45. See eg Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Australia Adopted by the Committee at its Tenth Session (2–13 September 2013) CRPD/C/AUS/CO/1, 4 October 2013 <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno = CRPD%2fC%2fAUS%2fCO%2f1andLang = en> accessed 3 December 2013; Disability Representative, Advocacy, Legal and Human Rights Organisations Australia, ‘Disability Rights Now: Civil Society Report to the United Nations Committee on the Rights of Persons with Disability’ August 2012 <http://www.disabilityrightsnow.org.au/node/15> accessed 12 December 2013.
46. Australian Law Reform Commission, ‘Equality, Capacity and Disability in Commonwealth Laws, Issues Paper’ Commonwealth of Australia, November 2013.
47. Department of Health (n 16) vi (bracketed content in original).
48. Department of Health (n 16).
49. Department of Health (n 16).
50. Mental Health Act 2014 (Vic) 26/2014.
51. Responses: ‘Um, no, to be honest’; ‘No’; ‘Not in detail. I must confess that I just had a quick look on the internet now so it's not something I’m one hundred per cent familiar with’.
52. ‘Well I’d read the draft new mental health act and it talks quite a lot about supported decision-making, in the new draft act’; ‘Yes I was’. The same participant stated, ‘I’ve read about it as the framework for the model of the exposure draft mental health Bill’.
53. One other general understandings of the term was expressed in the following terms: ‘I’m not sure how supported decision-making stands in relation to advance directives. I assume that advance directives are essentially the formalised process of supported decision-making’.
54. One interviewee noted that her ‘superficial understanding’ was support ‘through my supervisor to have their support with the decision-making and of course with, you know – you usually try to be careful about all the documentation, and document all the discussion that was made before the decision and all that’. Another participant also seemingly understood the term to refer to a procedural mechanism for assisting clinicians to make decisions, stating that ‘I’d be using that [term] as a process of decision-making that involve guidelines or a committee or something like that’.
55. Committee on the Rights of Persons with Disabilities (n 7).
56. For example, one interviewee commented that in her normal practice ‘you would try and engage [service-users and supporters] in a discussion and ensure that they have all the appropriate information about the treatment options and that they understand it sufficiently’.
57. T Minkowitz, ‘No-force Advocacy by Users and Survivors of Psychiatry’ (Mental Health Commission New Zealand 2005) 19 <http://www.mhc.govt.nz/publications/no-force-advocacyusers-and-survivors-psychiatry> accessed 17 January 2012.
58. This definition was drawn from a slightly modified version of the definition used in Manitoba's The Vulnerable Persons Living with a Disability Act 1993 (Manitoba), and also drew from the definition of supported decision-making used in the United Nations Office of the High Commission for Human Rights Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities. These appeared to be the most oft-cited definitions of supported decision-making in use at the time of crafting the interview questions. See The Vulnerable Persons Living with a Disability Act 1993 (Manitoba) C.C.S.M. c V90. However, the Act can be criticised as providing for a narrow conceptualisation of supported decision-making, given that it contains its definition to ‘support networks’, which are but one of a suite of supported decision-making measures available. Nonetheless, the interview questions had their intended effect and raised the key issues surrounding supported decision-making in the mental health context.
59. See eg SJ Morse, ‘Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law’, (1977–78) 51 Southern California Law Review 653; T Campbell, ‘Mental Health Law: Institutionalised Discrimination’ (1994) 28 Australian and New Zealand Journal of Psychiatry 554.
60. J Brayley, ‘Supported Decision Making in Australia: Presentation Notes’ (presentation) Victorian Offices of the Public Advocate and the Law Reform Commission 2009 <http://www.opa.sa.gov.au/documents/08_News_%26_Articles/Supported%20Decision%20Making.pdf> accessed 18 October 2010.
61. See eg SN Then, ‘Evolution and Innovation in Guardianship Laws: Assisted Decision-making’ (2013) 35 (1) Sydney Law Review 133.
62. I asked the question as follows: ‘And just to clarify, you said that interacting with other systems can be very frustrating, and it's very difficult for you to access those systems. Were you suggesting that you would then resort to a more classic substituted decision-making in order to get things done?’
63. A Dhanda, ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?’ (2007) 34 Syracuse Journal of International Law and Commerce 429, 448.
64. Brayley (n 60) 9.
65. VLRC, Guardianship: Final Report (Melbourne, Victorian Law Reform Commission 2012) 456.
66. See M Bach and L Kerzner, ‘A New Paradigm for Protecting Autonomy and the Right to Legal Capacity’ Report to the Law Commission of Ontario 2010, 82 ff <http://www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner> accessed 12 January 2011.
67. See eg A Ward, ‘Adults with Incapacity: Freedom and Liberty, Rights and Status: Part 1’ (2011) 5 Scots Law Times 21.
68. See B McSherry and P Weller (eds), Rethinking Rights-based Mental Health Law (Hart 2010) 4.
69. For more information see <http://www.victorialawfoundation.org.au/component/content/article/27-grants/general-grants/191-office-of-the-public-advocate> accessed 20 August 2013.
70. See eg Weller (n 2); G Richardson, ‘Mental Capacity in the Shadow of Suicide’ (2013) 9 (1) International Journal of Law in Context 87.
71. Brayley (n 60).
72. See eg T Minkowitz, ‘The United Nations Convention on The Rights of Persons with Disabilities and the Right to be Free from Non-consensual Psychiatric Interventions’ (2007) 34 (2) Syracuse Journal of International Law and Commerce 405.
73. Committee on the Rights of Persons with Disabilities, (n 7) para 15.
74. JM Mann, ‘Health and Human Rights: If not Now, When?’ (1997) 2 (3) Health Human Rights 113.
75. See generally McSherry and Wilson (n 2) 564.
76. See Section 4.2.
77. Bach and Kerzner (n 66) 14–15.
78. P Fennell, ‘Institutionalising the Community: The Codification of Clinical Authority and the Limits of Rights-based Approaches’ in McSherry and Weller (eds), Rethinking Rights-based Mental Health Law (n 68) 13, 49.
79. Fennell (n 78).
80. McSherry and Wilson (n 2) 580.
81. P Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Future of Mental Health Law’ (2009) 8 (12) Psychiatry 496.
82. Department of Health (n 16).
83. I Kennedy, Treat Me Right… (Clarendon Press 1991) 386.
84. B McSherry and L Darvall, ‘Public Health and Human Rights’ (2008) 15 (5) Journal of Law and Medicine 665, 666.
85. McSherry and Wilson (n 2) 562.