معیار خطرناک الزامی در تعهد و درمان اجباری مفاد قانون سلامت روان استرالیا

Involuntary commitment and treatment (IC&T) of people affected by mental illness may have reference to considerations of dangerousness and/or need for care. While attempts have been made to classify mental health legislation according to whether IC&T has obligatory dangerousness criteria, there is no standardised procedure for making classification decisions. The aim of this study was to develop and trial a classification procedure and apply it to Australia's mental health legislation. Method We developed benchmarks for ‘need for care’ and ‘dangerousness’ and applied these benchmarks to classify the mental health legislation of Australia's 8 states and territories. Our focus was on civil commitment legislation rather than criminal commitment legislation. Results One state changed its legislation during the course of the study resulting in two classificatory exercises. In our initial classification, we were able to classify IC&T provisions in legislation from 6 of the 8 jurisdictions as being based on either ‘need for care’ or ‘dangerousness’. Two jurisdictions used a terminology that was outside the established benchmarks. In our second classification, we were also able to successfully classify IC&T provisions in 6 of the 8 jurisdictions. Of the 6 Acts that could be classified, all based IC&T on ‘need for care’ and none contained mandatory ‘dangerousness’ criteria.

nvoluntary commitment and treatment (IC&T) has a well-established but problematic history in medicine. It is problematic because it violates core ethical principles such as patient autonomy and self-determination and because it grants power to one section of the community over another section, which is potentially open to abuse. However, it is also recognised that there are circumstances in which a person is unable to give consent and the benefits of treatment outweigh the violation of autonomy and self-determination. These benefits may be to the patient alone or to the patient and third parties. In the field of mental health, the use of IC&T has been widely criticised as historically leading to abuse, most notably in relation to political dissidents in the former Soviet Union (Fulford, Smirnov, & Snow, 1993) but also in relation to lengthy, sometimes lifelong, incarceration of people affected by mental illness in institutions in many western countries (Grob, 1980 and Burti, 2001). As a result most countries have specific laws that set out specific criteria for the use of IC&T in relation to people with a diagnosis of mental illness and establish processes that protect them from abuses. These laws recognise the need for IC&T but specify the conditions under which IC&T can be lawful and impose requirements for review that limit duration and protect the rights of people in receipt of IC&T. The legal basis for IC&T derives from two recognised principles, police powers (the government authority to prevent harm to the community and individuals) and parens patriae (the state demonstrating beneficence by acting in place of the parent taking responsibility for those unable to care for themselves) ( Johnson, 2003 and Wyatt, 1971) 2. While the principles that inform IC&T are well understood and widely accepted, the greater challenge is establishing in legislation and practice the proper balance between protection of the autonomy of a person affected by mental illness and ensuring that such a person or third parties are not exposed to unacceptable risk if treatment is not provided. Varying views about the proper balance are reflected in differences in mental health legislation between countries and, in the case of federations such as Australia, between states. Of particular importance is the specified set of requirements that must be met for a person affected by a mental illness to be subject to IC&T. Johnson points out that: “components in deciding civil commitment include mental illness, dangerousness, and treatability” (Johnson, 2003). These requirements may be relatively more or less stringent, with more stringent requirements making IC&T more difficult thereby protecting the rights of the individual but reducing likelihood of treatment. It has been noted that jurisdictions in the US tend towards more stringent requirements favouring the autonomy of the individual whereas the UK has less stringent requirements, favouring protection of the individual and the community (Appelbaum, 1997). Hatfield (2008) found that during the period of 1996–2004 the risk to a person's own health and the risk to a person's own safety were approximately equal as causes of involuntary mental health detention although most commonly both were identified as being present and only in a small proportion of cases was risk to health the sole cause of detention. While most debates concerning IC&T of people affected by mental illness have been dominated by ethical issues, there have been recent attempts to introduce empirical considerations by investigating the consequences of variation in legislative provisions that set the balance between the protection of autonomy and ensuring provision of treatment when required. The concept of ‘dangerousness’ has provided a basis for this more empirical approach.