Removing Compliance: Interpersonal and Social Factors Affecting Insight Assessments.

This paper probes the format and underlying assumptions of insight conceptualizations and assessment procedures in psychiatry. It does so with reference to the often-neglected perspective of the assessed person. It delineates what the mental steps involved in an insight assessment are for the assessed person, and how they become affected by the context and dynamics of the clinical setting. The paper examines how expectations of compliance in insight assessment tools and procedures extend far beyond treatment adherence, to compliance with diagnostic language and the assessment relationship. Such compliance can be ethically problematic and not in line with human rights standards, notably the Convention on the Rights of Persons with Disabilities. Most importantly, it can be counterproductive in supporting an individual to gain better insight in the sense of self-knowledge. The paper concludes with guidelines for a new approach to insight. This new approach requires taking into account currently neglected components of insight, in particular its relational and social dimensions, through which a person's insight operates and develops, and through which it could be supported. Concretely, this would mean removing the condition of compliance and reflecting on the influence of the clinician-patient relationship and assessment situation on insight.

Insight Under Scrutiny in the Court of Protection: A Case Law Survey.

The concept of patient insight, of a patient's self-awareness of illness or impairment (and related issues), plays a significant role in clinical discourse and clinical practice. But what role does it play in the legal process, particularly when a patient's decision-making capacity (or "mental capacity") is in question? We report on a survey of 412 published judgments from the Court of Protection of England and Wales, published between 2007 and 2018. We found that the notion of patient insight played a role in 53 cases (13% of the total). We use a variety of techniques to provide a systematic profile of these "insight cases." We provide a demographic profile of the patients whose insight is discussed (focusing on gender, age and diagnosis) and a professional profile of the expert witnesses who raise the issue of insight. We then deploy the technique of "logical geography" to map the meaning of the term insight and the inferential patterns in which reports of patient insight are embedded. We point out that the published insight cases never explicitly define "insight," and that they include no reference to structured instruments or scales for the assessment of insight. We show that the concept of insight, as used in the Court of Protection, is not synonymous with the concept of agreement with a diagnosis of illness; this is at most one of a range of meanings that the concept carries. We show that, despite the fact that the presence or absence of insight is not itself a legal criterion for mental capacity, insightlessness does play a role, and sometimes a decisive role, in shaping findings as regards the presence or absence of mental capacity. Finally, we assess the extent to which expert testimony in the insight cases conforms to the insight-related recommendation of the recent NICE Guideline on Decision-Making and Mental Capacity.

Beyond the Pragmatic Definition? The Right to Non-discrimination of Persons with Disabilities in the Context of Coercive Interventions.

According to a longstanding definition of non-discrimination, differential treatment does not constitute discrimination if the purpose or effect of the differential treatment is to achieve a legitimate aim and if the differential treatment can be objectively and reasonably justified. This characterization reflects what Wouter Vandenhole has described as the "widely-used pragmatic definition of discrimination." In mental health policy, one important application of this definition pertains to the disputed question of whether coercive psychiatric interventions constitute discrimination on the basis of disability. In this paper, I consider whether the well-established pragmatic definition of discrimination remains valid in light of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). I review evidence from the convention, from the general comment on equality and non-discrimination published by the Committee on the Rights of Persons with Disabilities, and from the committee's adjudication of individual allegations of discrimination. I conclude that the CRPD and its treaty body send mixed signals in relation to the pragmatic definition: The convention itself is silent as regards the pragmatic definition, and while the committee has in some instances invoked it, it also seems to be pointing toward a new approach that goes beyond the pragmatic definition. I survey three possible alternatives to the pragmatic definition, tracing each to suggestions in the jurisprudence of the Committee on the Rights of Persons with Disabilities, and illustrating how each can be applied in determining whether coercive psychiatry is discriminatory.

Surveying the Geneva impasse: Coercive care and human rights.

The United Nations human rights system has in recent years been divided on the question as to whether coercive care interventions, including coercive psychiatric care, can ever be justified under UN human rights standards. Some within the UN human rights community hold that coercive care can comply with human rights standards, provided that the coercive intervention is a necessary and proportionate means to achieve certain approved aims, and that appropriate legal safeguards are in place. Others have held that coercive care is never justified. Disagreement over this issue has produced an impasse in the UN human rights system. We survey the impasse with particular attention to the legal arguments that inform the divergent positions. In doing so we introduce a distinction among a variety of different 'abolitionist' positions regarding coercive care, and draw a distinction between 'non-consensual' and 'coercive' treatment. We conclude with three proposals for moving beyond the current impasse.

Legal capacity, mental capacity and supported decision-making: Report from a panel event.

Against a backdrop of the UN Convention on the Rights of Persons with Disabilities having been in place for over a decade, discussions about legal capacity, the relevance of mental capacity and the shift to supported decision-making, continue to develop. A panel event was held at the King's Transnational Law Summit in 2018 with the aim of understanding the contours of the dialogue around these issues. This paper presents the contributions of the panel members, a summary of the discussion that took place and a synthesis of the views expressed. It suggests that divergent conclusions in this area turn on disagreements about: the consequences of sometimes limiting legal capacity for people with mental disabilities; the emphasis placed on particular values; the basis for mental capacity assessments; and the scope for supported decision-making. It also highlights the connection between resources, recognition and freedoms for people with mental disabilities, and therefore the issues that arise when discussion in this area is limited to legal capacity in the context of decision-making.