Tony
Nguyen vinh Thuong
This essay was written in April,1986.The focus was on the discussion about the right of patients in Mental/Psychiatric Hospitals to refuse treatment in accordance with Human-Rights-Oriented Laws, Ontario Mental Hospitals Act-August,1979 and Ontario Mental Health Act-June, 1984
Recently, there is a strong trend toward guaranteeing the patients certain basic rights, especially the right to consent to treatment and the right to refuse certain types of treatment. In fact, in most medical situations, a patient seeks treatment voluntarily and he/she is free to consent to or to refuse any treatment prescribed by his/her physician. But in regards to a mentally ill patient, two problems may arise such as: a patient has not sought treatment and does not intend to be treated in the case a patient is detained; and another problem is that a patient's legal capacity to consent to treatment or to refuse treatment is questionable. The right of psychiatric patient to refuse treatment, together with the right to consent to treatment is subject of enormous complexity, involving legal, psychological, ethical and socio-economic considerations. Especially, when a patient is in the mental health institution or in the psychiatric hospital, does he/she have the right to refuse treatment? In order to answer this question, we will refer to the existing Ontario mental health Act, Ontario mental hospital Act, Human-Rights-Oriented Law and Human-Rights-Oriented Laws.
II. The right to refuse treatment of the patients in the mental health institutions.
As the matter of fact, the right to refuse treatment of the patients in mental health institutions is really the complexities and problems involving the inter-actions of the legal and mental health systems.
1. Some definitions:
1.a.- A voluntary patient (also called informal): is a patient who is in the mental heath institution because he/she wishes to be there.
2. The right to refuse treatment:
The fact that a person is suffering from a mental illness is in the psychiatric hospital does not necessarily mean that he/she can not consent to his/her own treatment. If he/she is capable of understanding, he/she can consent to treatment or can refuse treatment. But the right to refuse treatment of a patient in the mental health institution is an extremely difficulty question.
1. In the case of a voluntary patient: Whenever a voluntary patient refuses any treatment, doctor in the psychiatric hospital should stop that kind of treatment.
IV. The legal problems surrounding the refusal-treatment issue.
The right to refuse treatment poses legal problems such as the patient's competency to decide whether or not to undergo treatment, rights and constraints arising from the various legal statuses of confinement, religious objections and other exercises of constitutional rights, the difficulty of defining and acquiring the informed consent of a disturbed if legally competent patient, and possible malpractice implications of administering or with holding involuntary treatment of various kinds.
V. Conclusion:
Generally, mental illness is one of Canada's most urgent health problems. It is also one of the most confusing areas of Medicine, because symptoms and behaviour are often open to different interpretations.
Psychology is the science that
studies usual patterns of behavior, feeling and thought.
Abnormal psychology is the branch of
psychology that studies unusual patterns of behaviour, feeling and thought.
Psychopathology is a similar term to abnormal psychology, but it is a term more
commonly used in the medical specialty known as psychiatry.
Psychologists,
Psychiatrists, Social Workers . . . who study abnormal psychology usually work
to treat people who have some type of mental illness.
A mental illness/ mental
disorder/ psychiatric disorder is
a behavioral pattern that causes either suffering or an impaired ability to
function in ordinary life, and which is not developmental or social norm.
Treatment and support for
mental illnesses/ mental disorders are provided in psychiatric hospital/ mental
health institutions, clinics or any of a diverse range of community health
services. Many professions specialize in the treatment of mental disorders/
illness such as: Psychologists, Psychiatrists, Psychotherapists, Social Workers,
Counsellors, Public Health Professionals, and Peer Supporters.
This essay was written in April,1986.The focus was on the discussion about the right of patients in Mental/Psychiatric Hospitals to refuse treatment in accordance with Human-Rights-Oriented Laws, Ontario Mental Hospitals Act-August,1979 and Ontario Mental Health Act-June, 1984
The content has 5 parts as
follows:
I. Introduction
II. The right to refuse treatment of the patients
in the Mental Health Institutions.
III. The consequence of
refusal for treatment in the Mental Health Institution.
IV. The legal problems
surrounding the refusal treatment issue.
V. Conclusion
I. INTRODUCTION
Recently, there is a strong trend toward guaranteeing the patients certain basic rights, especially the right to consent to treatment and the right to refuse certain types of treatment. In fact, in most medical situations, a patient seeks treatment voluntarily and he/she is free to consent to or to refuse any treatment prescribed by his/her physician. But in regards to a mentally ill patient, two problems may arise such as: a patient has not sought treatment and does not intend to be treated in the case a patient is detained; and another problem is that a patient's legal capacity to consent to treatment or to refuse treatment is questionable. The right of psychiatric patient to refuse treatment, together with the right to consent to treatment is subject of enormous complexity, involving legal, psychological, ethical and socio-economic considerations. Especially, when a patient is in the mental health institution or in the psychiatric hospital, does he/she have the right to refuse treatment? In order to answer this question, we will refer to the existing Ontario mental health Act, Ontario mental hospital Act, Human-Rights-Oriented Law and Human-Rights-Oriented Laws.
II. The right to refuse treatment of the patients in the mental health institutions.
As the matter of fact, the right to refuse treatment of the patients in mental health institutions is really the complexities and problems involving the inter-actions of the legal and mental health systems.
The patients in the
mental health institutions have different
legal status: a voluntary patient, an involuntary patient, a
5-day-assessment, a patient is sent to the psychiatric hospital by a court
order.
1. Some definitions:
1.a.- A voluntary patient (also called informal): is a patient who is in the mental heath institution because he/she wishes to be there.
1.b- 5-day-assessment (also called a Form 1 ) means up to 120 hours, a patient who
can be detained in the mental health institution can have the right to say yes or no to drugs or any other treatment
during this period (120 hours-assessment). When the assessment is done,
the doctor will decide whether to:
- discharge a
patient, or
- admit a patient as a
voluntary patient if a patient wishes to stay, or
- admit a patient as an
involuntary patient.
1.c- An involuntary patient (also called Form 3 and Form
4 ) means a patient who is
detained in a mental health institution under a certificate of involuntary
admission or a certificate of renewal. It states that a patient has a mental
disorder; a mental disorder means any disease or disability of the mind. An
involuntary patient is held and treated under the authority of certificate that
lasts for only a specified period. When that time is over, a patient has the
right to be released or at least to remain in the hospital voluntarily.
1.d- A patient is sent
to the psychiatric hospital by a court order: the Judge may issue an order
which require the person to attend a psychiatric hospital for examination.
2. The right to refuse treatment:
The fact that a person is suffering from a mental illness is in the psychiatric hospital does not necessarily mean that he/she can not consent to his/her own treatment. If he/she is capable of understanding, he/she can consent to treatment or can refuse treatment. But the right to refuse treatment of a patient in the mental health institution is an extremely difficulty question.
A voluntary versus an
involuntary patient does not overcome the significant questions of personal
rights. Generally, the amount of control that a patient has over treatment
depends to some degree on whether that a patient is a voluntary patient or an
involuntary patient. It means that the patient’s consent-to-treatment and
refusal-treatment depends on his/her legal capacity.
In the point of view of
legislation, the right to refuse treatment in the mental health institutions
involves one of the most fundamental and basic rights in a civilized and free
society. It is the right to be free from having other individuals or the
state interfering with one's body. Because this right is intrinsic to a free
society, an exception to it must be very clearly and specifically spelled out
in law. We will describe the right to refuse treatment of the in-patient (the
patient in the mental health institution) according to the current legislation.
2.a- The kinds of treatment in
psychiatric hospital: The mental health institution may offer the mental
patients many different kinds of treatment :
- Drugs
- Group therapy
- Individual therapy
- Electro-shock therapy
- Behaviour
modification ...etc...
2.b- In the case, a patient is a person under 16 years
old. He/she is not of legal age. So, his/her parent or guardian should have
the right to refuse treatment on behalf of him/her in the mental health
institution.
2.c-
In the case, a person is
detained in the mental health institution by a court order: The Judge has
the reason to believe a person who appears before him charged with or convicted
of an offence is suffering from mental disorder. The Judge may issue an order
which will require the person to attend a psychiatric hospital for examination.
Under the criminal code, a person may be detained in the mental health
institution in accordance with the law. In this case, a patient can not have the right to refuse treatment because he is.
2d. In the case of a voluntary patient, or a patient under a 5-day-assessment:
- A voluntary patient has
the right to consent to treatment or to refuse treatment after he/she get to
know about the treatment. By law, a voluntary patient has the right to
information about the treatment before he/she decides if he/she wants it.
For example 1:
A voluntary patient (or a patient under a 5-day-assessment) has a right to get
answers to questions such as:
- What is this
treatment called?
- What kind of problem is
this treatment supposed to help?
- What help is this
treatment supposed to give me?
- How much do you want to
give me?
- Can this treatment ever
hurt me?
- What other treatments
can I choose instead?
- What may happen if
I don't take this treatment?
For example 2:
A voluntary patient is being offered one or more drugs as treatment, he/she has
the right to know:
- The name of the
drugs.
- What problem it is
supposed to treat.
- What help the drug is
supposed to give.
- What is the dosage?
- The harmful effects from
taking the drug: do the harmful effects show up right away, or over a long time?
- If I feel harmful
effects, will they go away when I stop taking the drug, or can they cause
permanent problem?
- Any other drugs I can
take, instead, or any treatments besides drugs.
- What may happen if I do
not take this drug?
In other words, a
voluntary patient or a patient under a 5-day-assessment in the mental health
institution has the right to consent to or to refuse any treatment
that is offered to him/her at any time. But, we have two exceptions: this
patient has a right to make his/her decision without pressure or threat from
anyone; this patient can change his/her mind later if he/she agrees to a
treatment at one time.
2.e-
In the case of an involuntary
patient: He/she can be treated without his/her consent under carefully
controlled. He/she can lose the right to liberty, so he/she can
lose the right to refuse treatment. Again by rule, an involuntary patient can
be treated without his/her consent if his/her doctor feels he/she is not
competent to decide whether or not to undergo treatment. Doctor must get
permission from patient's family or the Review Board in the mental health
institution. But, there are two exceptions: 1. An involuntary patient is under
a 5-day-assessment: he/she has the right to refuse treatment. 2. An
involuntary patient can appeal the decision of the Review Board for permission
to treat this patient without his/her consent in the court. During the appeal
process, the mental health institution cannot treat the involuntary patient against
his/her will.
III. The consequence of
refusal for treatment in the mental health institution:
1. In the case of a voluntary patient: Whenever a voluntary patient refuses any treatment, doctor in the psychiatric hospital should stop that kind of treatment.
2. In the case of an involuntary patient: by
rule, an involuntary patient does not have the right to refuse treatment. But
he/she can appeal the decision of the Review Board for permission to treat
him/her in the court. Subsequently, the treatment should be stopped during the
appeal process until the decision of the Judge will be made.
IV. The legal problems surrounding the refusal-treatment issue.
The right to refuse treatment poses legal problems such as the patient's competency to decide whether or not to undergo treatment, rights and constraints arising from the various legal statuses of confinement, religious objections and other exercises of constitutional rights, the difficulty of defining and acquiring the informed consent of a disturbed if legally competent patient, and possible malpractice implications of administering or with holding involuntary treatment of various kinds.
The most important
legal problem surrounding the refusal-treatment issue is the patient's
competency to decide whether or not undergo treatment. We suggested the
possible solution according to the current legislation in the above section II.
V. Conclusion:
Generally, mental illness is one of Canada's most urgent health problems. It is also one of the most confusing areas of Medicine, because symptoms and behaviour are often open to different interpretations.
The right to refuse treatment
of patients in Mental Health Institutions consists of the complexities and
problems involving the interactions of the legal and mental health systems.
This subject requires a continually open dialogue between medical professional,
legal council, patients and their families to help patients receive appropriate
treatment.
Toronto,
April 21, 1986.
Tony Nguyen vinh Thuong
Bibliography
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transition, Washington: U.S Department of Health, Education and Welfare,
1975.
- A guide to psychiatric patients'
rights, A publication of the psychiatric patient advocate office Queen
Street Mental Health Centre, Toronto, March 1985.
- Barry B. Swadron
& Donald R. Sullivan, The
law and mental disorder, Toronto: The Canadian Mental Health Association,
1973.
- Blotzin and
Acocella, Abnormal Psychology
: Current Perspectives, USA: Random House, 1980.
- Lorne Elkin
Rozovsky, The Canadian
patient's Book of Rights, Toronto: Doubleday Canada Limited, 1980.
- Ontario Mental Health Act, June
1984.
- Ontario Mental Hospitals Act,
August 1979.
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guide to the Mental Health Act, Toronto: Ontario Ministry of Health, 1984.
