July 6 juillet 13:45 – 17:45
(extended session)
Room NCDH–101
Chair: Allan
Young
, McGill University
In November 1990, the Latin American countries signed the Caracas Declaration, aimed–among other objectives–at promoting the respect for the human and civil rights of the mentally ill and the organization of community mental health services that guarantee the fulfillment of those rights. Since then, many developments have taken place in the countries of the region from the economic and political to the social standpoints (health sector reform, stabilization of democratic forms of government, political and social participation, and economic downfalls) with impact on the formulation of health policies and legislation, in general, and mental health, in particular. The objective of this presentation is to review the status of mental health policies and legislation in Latin America and the English-speaking Caribbean, in order to determine the degree of accomplishment of health legislation reform on the terms of the Caracas Declaration. Considerations will be made to the special circumstances characterizing the last decade.
The author will give an outline of the legal provisions
regarding mental incompetence and describe the reform that is now in progress.
Japanese Civil Law provided legal protection for individuals who have a
diminished mental capacity, including financial matters, such as managing
properties or making will. The family court declares a person incompetent, if he
or she was constantly incapable of decision-making. However, the problem of
incompetence was rarely discussed, probably due to a scarcity of cases. The
circumstances have drastically changed since around 1985. The number of persons
declared incompetent by the family courts has tripled over the past 15 years.
The main reason for this
change is the aging of Japanese population, which resulted in an increase
in the number of elderly people suffering from dementia. In addition, during the
period of the ‘bubble economy’ in the mid-1980’s, it became a priority to
protect the elderly with dementia from losing their properties through careless
transactions. Under these circumstances, various flaws in the old system became
evident. After discussion by jurists and others concerned with the legal rights
of the elderly, the new Guardianship Law for Adults came into effect in April
2000. The principle of the Law is to protect a person with impaired capacity
while respecting his or her autonomy, aiming at the ‘normalization’ of
mentally disabled people, and helping them to maximize intact abilities. The
provisions of the Law will be presented.
At the current time, mental health law in the UK is undergoing a process of reform. The government’s legislative program is expected to include three policy initiatives regarding the Mental Health Act 1983, a new Incapacity Act for the mentally impaired and vulnerable and reform to the law relating to dangerous severely personality disordered individuals. The question of treatment inevitably arises in relation to each of these reform issues and provides an interface between the above initiatives. This paper will focus on treatment and will consider the scope of the concept and how it is perceived in medical, legal and social terms. Should treatment be viewed as a means to cure and/or prevent deterioration of the mental condition or can treatment be a justifiable method of control? The mentally ill, mentally impaired and severely personality disordered all have different treatment needs. These needs will be examined and the current methods of satisfying them will be evaluated. The mentally ill have, in recent years, had to face a gradually changing approach to mental health care provision. The days of protracted periods of institutional care are long gone and have been replaced by short inpatient hospital stays and community care. Difficulties, which have hampered community, care in England and Wales have highlighted the question of how treatment in this care environment should be regarded. Suggestions of Community Treatment Orders and the use of drug depots have further led to the emergence of a conflict between the provision of care and coercion in a less restrictive environment. Likewise, incapacity whether through mental impairment or some other form of vulnerability raise a number of legal and ethical dilemmas associated with treatment provision. As the population ages, the vulnerable, as a group, are growing and the question of how the provision of treatment for those who are incapable of consenting to treatment becomes increasingly important. Furthermore, consideration must be given to some forms of treatment that, in the past, have been considered necessary and desirable especially to those who are not considered capable. The most notable example of which is the use of sterilization as a therapeutic technique. Treatment associated with those who are personality disordered raises further dilemmas. The most obvious being whether personality disorders can actually be treated. If such treatment methods are available what role does the patient play–is it necessary for him to co-operate in the treatment process, and if he will not, what impact does this have on the operation and applicability of the legislation? Finally, consideration will be given to the impact of the Human Rights Act 1998. Under the European Convention of Human Rights and Fundamental Freedoms, Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Now that the Human Rights Act is in force in England and Wales it seems inevitable that the question of treatment for mental disorder; treatment for those who are not capable of consenting; and, treatment for personality disorders will provide plenty of scope for possible litigation in the future.
While Ireland’s Parliament is currently in the final stages of debating a Bill which will reform civil mental health law, its law on criminal insanity is still based on the Trial of Lunatics Act 1883. A general consensus, confirmed by Government statements, that there is a need for reform of the insanity defence, has not yet led to the production of a Bill. This paper will examine the deficiencies in Ireland’s criminal insanity law, particularly in the light of the Irish constitution and the European Convention on Human Rights. Consideration of court decisions will show that the judiciary have dealt with this area in an incoherent and unconvincing manner, and have failed to develop the rights of mental patients detained under criminal statutes, in spite of numerous opportunities which have been presented to them. Possible reasons for the lack of legislative response will also be examined. The paper will finally consider whether the imminent enactment of new legislation on civil mental health law will serve to further highlight the shortcomings of the Irish criminal mental health system.
Handicapped people
are in Austria protected by laws that are effective on paper, but neglect to
provide adequate access to the legal institutions for these people to sue for
and realize this necessary form of support. An organisation has been set up to
integrate lawyers, physicians and social workers in an active team to run law
suits and further legal action to realize and protect the basic laws and needs
of the handicapped. The structure of legal institutions and laws is contrasted with the specific need so different handicapped, especially
those with mental handicap.
The elderly
population is growing rapidly. The session will present demographics of the
elderly from 1800 to 2050, their familial attitudes and their.mental and
physical status. Sometimes
the elderly’s needs necessitate the appointment of a guardian and/or
conservator. The presentation will explain how the guardian is appointed, the
guardian’s role as required by Law and how the guardian can act as an innovative explorer and utilize the available
community resources to enhance the elderly individual’s quality of life.
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