Law and Psychiatry (LAWS448) exam targeted full lecture notes

Exam targeted Law and Psychiatry full lecture notes covering LAWS448 from the University of Otago. They are 64 pages long. These LAWS448 notes are very neat and useful. Following topics are covered:

• Introduction Concepts
  • Community Treatment Powers
  • Human Rights infringed & Positive and Negative liberties
  • Legal authority for intervention (/ justification): Legislation & Common law
• Defining Mental Disorder
  • NZ’s Civil Commitment Process under the MHA
  • Mental Health (Compulsory Assessment and Treatment) Act 1992
    • s2 Defines ‘Mental Disorder’/ gives criteria for commitment under the Act
    • MHA civil commitment test (Abnormal State of Mind + ‘Danger’ OR diminished Capacity)
  • MHA s4 Exclusionary Rules (procedures under MHA cannot be initiated by reason only of)
  • Abnormal State of Mind & Classifying ‘mental disorders’
    • Psychiatrist’s role – E.g. KMD’s case
    • Characterisation of ‘Abnormal State of Mind’& International approaches to define
    • Re FAH example – Abnormal state of mind? Court found a volition disorder.= abnormal
    • RCH example – no ‘mental disorder’ but has an abnormal state of mind?
  • MHRT Aims and Approaches to the question of Abnormal State of Mind
• Assessing ‘Dangerousness’
  • ‘Risk Assessment’ and dangerousness prediction (Dispositional, Historical, Illness & Context factors)
  • Re Mental health (Serious Danger): Found to present a ‘serious danger to others’
  • MHRT principles for determining danger – factors, balancing exercise & relapse risk (MHA & NZBORA)
  • Applying the test of ‘serious danger to others’ & Analysis of the MHRT’s conclusions in
    • Re Applicant 14/008 [2014] NZMHRT 8
    • In the matter of MMG (1998) SRT 568/98
  • Summary of the MHRT’s approach to the s2 ‘mental disorder’ criteria
• Diminished Capacity for Self-Care
  • Subjective/ Objective debate (and relapse profile)
    • MHRT discussion in Re Y – case-specific determination…
    • Re DC – minimum floor exists but decisions can be case-specific
  • Suggested test = minimum floor, prior functioning both taken into account.
  • MHRT’s Preventative Application in Re Applicant 14/101
• Powers to Treat without Consent
  • Legal Principles of Consent and Exceptions (HDC Rights, NZBORA etc.)
  • Example: Re C – Determining capacity in cases of requests to treat without consent
  • Necessity: The Principle and Law (Right 7(4) of the Code of Health and Disability Consumers’ Rights)
    • Bournewood – actions justified under common law necessity (Bournewood is als at p30)
  • Example: MJO – Treatment without Consent is justified under the MHA
  • The Second Opinion Process
  • JE v Capital Coast DHB – Decisions made under the MHA can be subject to judicial review
  • Should the MHA include a capacity test?
    • Can capacity be read into s59(1)? Unlikely.
    • The role of a capacity test in the MHA (advantages and consequences)
    • Skipworth commentary + Queensland legislation.
  • SCOPE OF COMMUNITY TREATMENT POWERS
    • Example: Re PT Kept under a Cto to ensure compliance with medication
  • Powers to Detain and Treat
  • Scope of Compulsory Treatment Orders
    • ‘Cluster of Powers’ conferred, but no explicitly power for detention
    • s28 Compulsory Treatment Orders
    • s29 Community Treatment Orders (+ Power to Recall)
    • s30 Inpatient Orders
    • s31 Leave for inpatients
    • s59 Treatment while Subject to a Compulsory Treatment Order
    • s113 Inpatient Order Sufficent Authority to Detain in Hospital
    • s122B Use of Reasonable Force
  • Any power of ‘forced medication’ in the community?
    • no power to administer medication in the community (unless no restraint or force needed)
    • BUT, recall power exists to allow giving medication (s29) i.e. acts as an ‘implicit threat’
• Powers of Entry, Detainment, Confinement
  • When is a person detained? Bournewood example: 3 situations of detainment, lawful?
  • Emergency Psychiatric Detention
    • MHA s111 ‘Powers of Nurse where Urgent Assessment Required’ (6 hour hold)
  • Main Questions to ask to determine detainment… (I.e. Detained? Consent? Authority? Etc.)
  • Crisis Intervention (Can involve, entry, detention, use of force, treatment)
    • E.g. Entry onto private property without occupiers consent – ‘Ruth’ example
• Community Treatment Orders
  • Can a person under a Cto be detained in hospital for treatment?
    • s29(3) ‘Power to recall’
    • Can a person under a Commto be detained in hospital without the use of s29(3)? No…
  • Can a person under a Cto be detained in a community residence?
    • Example: Re D – Commto doesn’t empower detention at a residence (purposive approach)
    • NZ Guidelines to the MHA = no power to detain at a residence
• Unfitness to Stand Trial (Insanity & Involvement Hearing)
  • Decisions to be made by the court in the fitness to stand trial process
  • Times at which the accused’s mental condition is assessed during the forensic process
  • ‘Unfitness to Stand Trial’ CP(MIP) Act 2003, section 4
  • ‘Mental Disorder’ is defined the same as under the MHA (s2)
  • Insanity Defence: s23 Crimes Act 1961
  • Special vs Compulsory patient status (s24, 25 CP(MIP) relevant for Court determination)
    • E.g. 1: M – Arson, raised insanity defence, COA placed special status (extra layer of oversight)
    • E.g. 2: Re Applicant 13/173 – MHRT disagreed with clinicians = moved P from special to compulsory status (risk factors were not sufficiently imminent to justify special status)
  • Fitness to stand trial
    • Aims of determining fitness to stand trial: Fairness in the Criminal Process
    • NZBROA s25 Minimum standards of Criminal Procedure (unfit defendants are incapable of exercising these rights)
    • ‘mental Impairment’ for fitness purposes (unexhaustive list)
    • R v Pritchard – Does P have the capacity to understand the proceedings? No, unfit to stand (same outcome would likely have occurred under NZ s4 CP(MIP) Act)
    • NZ examples: R v RTPH (condition must affect cognition of trial) & R v Carrel (fitness can change over time, can have capacity for some things but not for trial)
  • The ‘Presser criteria’ (R v Presser) abilities accused may need to be able to stand trial fairly…
  • *Insanity vs Fitness to stand trial (insanity is at time of offence vs fitness is ongoing through trial)
  • Involvement hearing
    • Process established in s10 CP(MIP) Act
    • Te Moni – Which defences can be raised in an involve. hearing i.e. mens rea fitting narrative
    • R v Antonie (HOL) – Purpose of involv. Hearing is to strike a fair balance…
    • R v Tongia – Recent appeal decision held self-defence could be raised and rebutted by pros.
    • Conflicting court outcomes on what can be raised in an involvement hearing.
• Protection of Personal and Property Rights Act
  • Adult Guardianship Law (PPPR Act)
    • The concept of capacity “the ability to do something”
    • Different capacity tests for different tasks ‘capacity is referred to as a task-related concept’
    • Some features of the current context in which capacity law is being applied
    • A difficult case: Re W (1993) 11 FRNZ 108
  • Features and Principles of the PPPR Act
    • The main features of the PPPR Act
    • Intersect between MHA and PPPR
    • Personal orders, under section 10
    • Two examples:
      • 1. Application of the capacity test: CMC
      • 2. Can the court order a person’s detention: Loli
  • Summary of PPPR features – functions, criteria, and restrictions.
  • Whānau involvement
    • Some key themes in the ‘Clinical assessment of capacity’ chapter (Hinemoa Elder)
    • Matters to consider within a capacity assessment relating to Whānau
    • Roles of family in cases, positions and examples of cases
    • MHA sections relating to Whānau involvement
• The Future of Mental Health Law
  • 1. Should there be a fusion of the MHA and PPPR?
  • 2. The Government’s review of the MHA
  • 3. Ways the current provisions can be extended to improve autonomy (‘supported decision making)