Abstract
Mental health legislation is often criticised for being fundamentally inconsistent with a rights-based approach to healthcare. One problem is that it often permits the treatment choices of detained patients with capacity to be overridden. In many jurisdictions this concern has led to legislative reform which gives greater respect for individual autonomy concerning treatment. However, unusual healthcare issues exist for mentally disordered forensic patients who are detained in part to protect third party interests, particularly if the patient is detained following criminal behaviour. Balancing the competing interests in these cases is arguably one of the most difficult ethical and clinical issues in psychiatric practice. To what extent should patient autonomy be respected in the compulsory treatment of forensic patients, and what is at stake if greater respect for a forensic patient’s capacitous treatment wishes is prescribed in law?
Very little is known about the epidemiology of capacity to consent to treatment among forensic patients, or even the extent to which it can be reliably and validly assessed in this population.
The first main aim of this thesis was to consider how ethical and legal issues relate to mental capacity, with particular reference to their applicability to capacity to consent to treatment in forensic patients. The second aim was to conduct an empirical study to examine the reliability and validity of mental capacity evaluations in forensic patients, followed by an assessment of the demographic and clinical factors which were associated with incapacity in this group. This included an analysis of capacitous treatment-refusing forensic patients. The last aim was to apply this empirical data to the question of legislative reform, and in particular, the consequences were considered of giving greater respect to treatment related decision-making capacity in this population.
In a cross-sectional study, 109 forensic patients in diverse clinical settings were interviewed using a comprehensive range of assessment measures.
Despite the challenges created by the coercive nature of the treatment setting, the assessment of capacity to consent to treatment was found to be highly reliable, although some concerns regarding validity were identified. A taxonomy of capacity, coercion and consent was developed to assist in the classification of patients. Overall, the majority of participants (66%) had decision-making capacity regarding their treatment. Severity of psychopathology, in particular insight, was highly correlated with capacity, whereas demographic variables were, in general, unrelated to capacity. A small minority of participants (2.8%) were classified as competent treatment refusers . The real impact of permitting capacitous treatment refusal was difficult to determine, but there would appear to be a small number of patients who would challenge the ability of forensic services to provide safe and effective care if their wishes were enacted. Notwithstanding these concerns, it is concluded that there are a variety of ways in which legislators could further promote the autonomy of capacitous and incapacitous forensic patients without significantly compromising the safety of institutional staff, other patients, or the community.