Do compulsory mental health patients have a right to receive a second opinion on their treatment under Australian mental health legislation?

We reviewed Australian mental health legislation to determine what obligations it places on psychiatrists to facilitate second opinions for compulsory patients who request them. Only four jurisdictions-Australian Capital Territory, Queensland, Victoria, and Western Australia-have legislated for 'patient-initiated' second opinions. Within these four regimes, there is variation in important aspects of the second opinion process, and there is a general absence of direction given to the second opinion providers. Based on research showing the variability of second opinion provision under New Zealand mental health legislation, we argue that this absence is likely to result in significant variation in the quality and depth of second opinions provided in Australia. We argue that New South Wales, the Northern Territory, South Australia, and Tasmania should consider formal provision for patient-initiated second opinions in their mental health legislation. We believe that such legislation ought to be aware of the barriers patients may face in accessing second opinions, and avoid exacerbating these barriers as Queensland's legislation appears to. Also, we argue that research on current practice in Australia should be conducted to better understand the effects of legislation on second opinions, and to help determine what amounts to best practice.

Professional Values and Mental Health Tribunals: How Healthcare Professionals' and Lawyers' Views Are Shaped by Values, and How This Might Impede Reform.

Most countries that provide for compulsory treatment for mental illness have a system by which this treatment is subject to independent legal oversight. Many countries use a special type of legal body for this purpose, called a mental health tribunal. Mental health tribunals have been subject to criticism from the points of view of both legal professionals and mental healthcare practitioners. Similar themes have manifested in these criticisms and have been consistent across several decades; legal professionals tend to focus on the tribunals being biased toward the medical opinion, and acting as a 'rubber stamp', whereas healthcare practitioners tend to focus on the adversarial nature of the trial, and the adverse effect that this can have on clients. However, empirical studies of the tribunals have not separated and directly compared these perspectives. This study aimed to explore this dynamic between lawyers' views and healthcare practitioners' views of mental health tribunals. We used thematic analysis to re-analyse data from two previous research studies, one which looked at lawyers' views of the tribunals, and one which looked at healthcare practitioners' views. Our results are divided into three themes: views of the problems with tribunals, professional roles in relationship to the tribunals and professional values demonstrated through these views and roles. We then consider if the 'clash of values' represented by these findings, and found in the literature, may pose an impediment to tribunal reform. Identifying and exploring this barrier is an important step to moving beyond critique to reform.

What can coronial cases tell us about the quality of emergency healthcare for prisoners in Australia?

OBJECTIVE: This research aimed to examine the legal and regulatory obligations of authorities and healthcare professionals in the provision of prison emergency health services and to identify problems in the provision of emergency care to prisoners by using case examples from coronial findings. METHODS: Review of legal and regulatory obligations and a search of coronial cases for deaths related to the provision of emergency healthcare in prisons in the past 10 years in Victoria, New South Wales and Queensland. RESULTS: The case review identified several themes - issues with prison authority policies and procedures that delay access to timely healthcare or compromise the quality of care, operational and logistical factors, clinical issues and stigmatic issues including prison staff attitudes to prisoners requesting urgent healthcare assistance. CONCLUSION: Coronial findings and royal commissions have repeatedly identified deficiencies in the emergency healthcare provided to prisoners in Australia. These deficiencies are operational, clinical and stigmatic and not limited to a single prison or jurisdiction. Applying a health quality of care framework focussed on prevention and chronic health management, appropriate assessment and escalation when urgent medical assistance is requested, and a structured audit framework could avoid future preventable deaths in prisons.

What Does "Least Restrictive" or "Less Restrictive" Mean in Mental Health Law? Contradictions and Confusion in the Case of Queensland, Australia.

Most legal systems in the West allow for involuntary treatment of mental illness, usually on the basis that without such treatment the person would be a danger to themselves or others. While historically the mental health law jurisdiction has been a protective one, it has become increasingly influenced by civil rights and international human rights law, which privilege the value of autonomy and the right to personal liberty.In this regard, an important principle that has developed is that decisions about treatment for mental illness must be the "least restrictive alternative" available. This may mean, for example, that a person is supported to make a decision on treatment for their mental illness, according to evolving practices of "supported decision-making," so that their legal capacity is still recognized. If involuntary treatment is required, the "least restrictive" approach demands that the liberty and integrity of the person be respected to the greatest extent possible.The Mental Health Act 2016 (Qld) ("MHAQ") prescribes that decision-making on non-consensual treatment should preferably be done according to what it calls the "less restrictive way." However, the "less restrictive way" is defined as decision-making by patients under advance directives, and also by substitute decision-makers, including by attorneys or guardians not appointed by the patient, usually a family member. The MHAQ states that these arrangements are distinguished from and prioritized over what it calls "involuntary treatment and care," where the decision for non-consensual treatment is made by the treating team.However, we argue that these arrangements are not in fact "less restrictive" of the person's autonomy, but are less accountable forms of decision-making. Decision-making by treating teams under involuntary treatment provisions is subject to higher levels of transparency and accountability. In Australian states these decisions are reviewed regularly by a specially constituted, independent mental health tribunal. By contrast, treatment decisions made under the "less restrictive way" are not even defined as constituting involuntary treatment, and are outside the scope of the tribunal's review.In the case of decision-making by advance directive, we acknowledge that this is widely considered to be "less restrictive" of a person's right to legal capacity and autonomy. However, in these cases, the patient may actually be refusing treatment at the time the advance directive is relied upon. This raises serious questions as to whether such "voluntary" admissions and treatment should not be subject to the same oversight and accountability as involuntary ones. Patients have a right to less restrictive forms of decision-making, but when deprived of their liberty, they also have a right to adequate safeguards established by law.The term "less restrictive" in the MHAQ is largely misplaced and misleading. In the case of advance directives, it deflects attention from the potentially restrictive nature of the treatment and the lack of accountability. Even more problematically, the privileging of private substitute decision-making under the less restrictive way ignores the real risk of abuse and undue influence within the personal and family sphere. We argue that the "less restrictive way" under the MHAQ is a step backwards for the rights of patients, in that it shifts power to family on the risky assumption that decision-making by these less supervised individuals is more likely to uphold human rights. We believe that this reflects a pre-feminist assumption that the informal, family, private sphere is nearly always safe. This is a contentious assumption, which nevertheless underpins much unproblematized thinking and advocacy on supported decision-making. This issue also highlights the need for further elucidation and discussion on what least restrictive means in the context of involuntary treatment for mental illness.

Procedural fairness in mental health review tribunals: the views of patient advocates.

Mental health review tribunals face the difficult task of balancing an obligation to be efficient and accessible against the obligation to provide procedural fairness. We conducted focus groups with lawyers and advocates who support people with matters before the Queensland Mental Health Review Tribunal to ascertain their views on issues relating to procedural fairness in this particular forum. Consistent with similar studies in other jurisdictions, our participants expressed concerns about how well informed their clients were about the proceedings, the probative value of the evidence relied upon and the extent to which medical evidence is effectively challenged. We analyse the concerns raised by our participants in light of the limited Australian case law on procedural fairness in mental health review tribunals.

Providing emergency medical care without consent: How the 'emergency principle' in Australian law protects against claims of trespass.

In a medical emergency, the usual requirement to obtain consent before giving treatment does not apply. This exception to the general rule on consent to medical treatment is known as the 'emergency principle'. By considering a case scenario, and by adjusting the facts to this scenario, we explain the circumstances in which the emergency principle will protect practitioners from an action in trespass. Although the fundamentals of this principle are uncontroversial, there are a number of uncertainties and inconsistencies in this law in relation to certain parameters. For example, whether a practitioner would ever be obliged to seek consent from a substitute decision-maker before providing emergency treatment is not clearly or consistently explained. We suggest the law should be clarified.

A Study into the Operation of the Queensland Mental Health Review Tribunal.

The Queensland Mental Health Review Tribunal makes difficult decisions regarding involuntary treatment of people with mental illness, applying strict legislative criteria against a backdrop of fundamental human rights considerations. This article reports on focus group research with lawyers and advocates for people with mental illness who appear before the Queensland Mental Health Review Tribunal. Participants expressed concerns regarding the manner in which decisions are made. For example, participants said that their clients' views on the side effects of treatment do not receive adequate consideration when involuntary treatment is authorised. We review these concerns in the light of applicable legal obligations, including those arising from human rights law. We conclude that if these concerns are accurate, some adjustments to the Queensland Mental Health Review Tribunal's decision-making processes are required.

Taxi drivers' exposure to black carbon and nitrogen dioxide in electric and diesel vehicles: A case study in London.

Nitrogen dioxide (NO2) and black carbon (BC) concentrations were measured inside London taxicabs across 40 work shifts in a real-world occupational study. The shifts were measured across five plug-in hybrid range-extender electric taxicabs (TXe City) and five diesel taxicabs (TX4 Diesel). The aim of this study was to characterise the impact of fuel and cabin design on professional drivers' air pollution exposures. Personal exposure was monitored using portable BC, NO2 and GPS devices. A controlled study replicating a typical taxi drivers' route in central London was conducted. Simultaneous inside and outside BC concentrations were measured to assess infiltration rates. The drivers were instructed to keep the BC devices with them at all times, providing a comparison of exposures at work and outside of work. The driver's average BC and NO2 exposure while working was nearly twice as high for diesel taxicab drivers (6.8 ± 7.0 µg/m³, 101.9 ± 87.8 µg/m³) compared with electric drivers (3.6 ± 4.9 µg/m³, 55.3 ± 53.0 µg/m³, respectively). The exposure to BC while not working was 1.6 µg/m³ for diesel drivers and 1.1 µg/m³ for electric drivers, highlighting the very high exposures experienced by this occupational sector. The analysis of vehicle type on BC concentrations showed that the airtight cabin design and presence of an in-built filter in the electric TXe City reduced the exposure to BC substantially; indoor to outdoor ratios being 0.63 on the electric taxi compared to 0.99 on the diesel taxi with recirculate ventilation mode off and 0.07 to 0.44 with recirculate on. These findings provide important evidence for occupational health of professional drivers through exposure reduction measures in vehicle design.

How should the law determine capacity to refuse treatment for anorexia?

This article critically assesses the way a certain court has determined the capacity of a person diagnosed with anorexia to refuse medical treatment. It is shown that when making this determination, the court has adopted a process of circular reasoning, meaning anyone with the diagnosis will be found to lack capacity to refuse its treatment. This circular reasoning means that indicia of capacity that ought to be considered by the court is ignored. The result is a procedure in which the anorexic patient has no voice, and an outcome against which he or she has no effective legal recourse. This problem, it is argued, can be overcome in two ways. Firstly, courts must make sure that the 'functional' test of capacity is properly applied, meaning any finding of incapacity must rest on evidenced deficits in decision-making ability. Secondly, courts must properly engage with the subjective reasoning of the person making the treatment refusal.

Medical Evidence of Capacity in a Legal Setting: To What Extent Do Courts and Tribunals Make Their Own Decisions?

The extent to which legal determinations of capacity are genuinely separate from medical opinion on capacity presented to the court as evidence, is an open and important question. In order to explore this question, an empirical study was done on the use of medical and non-medical evidence to establish capacity in three different capacity contexts: personal/financial capacity, testamentary capacity and legal matters capacity. The study showed that the use of medical evidence to establish capacity was by far the heaviest in personal/financial capacity matters, often to the point of effective exclusion of other forms of evidence. Concerns with the weight given to medical evidence in personal/financial capacity matters were identified. The concerns have implications for the specific jurisdiction considered, and for the wider question of how capacity is and should be determined in a legal setting.