Achieving Social Justice for Psychiatric Survivors: Capabilities and Advance Consent in Mental Health Law

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) requires contracting states to create mechanisms that support and involve psychiatric survivors in health-related decisions. Advance consent to mental health treatment is a special type of supported decision-making by which a person binds themselves for the future treatment. Advance consent could apply in instances where a person is thought not to have mental capacity to make their own decisions or at the point of mental health relapse. Proposals to introduce advance consent in the mental health context have become a contemporary and timely challenge for law makers in England & Wales. In March 2017, the Law Commission (England & Wales) issued the Mental Capacity and Deprivation of Liberty report, where it recommended the introduction of an advance consent provision that would have allowed a person to consent to future treatment arrangements that would have otherwise amounted to a deprivation of liberty. No provision of this nature has been included in the Mental Capacity (Amendment) Bill. In the Wessely review of the Mental Health Act (December 2018), the introduction of an Advance Choice Document has been recommended, which would allow psychiatric survivors to voice their views about any future inpatient care and treatment. The question of advance consent to be admitted to hospital was also considered by the Wessely review, but the report stopped short of making firm recommendations on this issue. Significant changes to advance decisions in mental health and mental capacity law may, therefore, be forthcoming. A lack of empirical evidence thus far has prevented advance consent from being given statutory footing.

As advance consent is gaining its momentum on the global scale more countries like India, Netherlands, Germany and Austria have developed their laws on advance consent to mental health treatment. Jurisdictions turn to the example of British Columbia, Canada where we find that advance consent to mental health treatment has been available since 1996. In addition, Canada is the most CRPD compliant country making it an interesting example for other jurisdiction to turn to in order to develop advance consent provisions compatible with international law. In 2018, the Council of Canadian Academies published a report on the State of Knowledge on Advance Requests for Medical Assistance in Dying. The report looks at the workings of advance consent in mental health and it is suggested that the mechanism is working well and is not causing any issues. However, it is admitted that the evidence is lacking and qualitative research is needed to create a more comprehensive picture of how advance consent is working in practice.

This thesis addresses complex socio-legal questions pertinent to advance consent by conceptually drawing on the capabilities approach to social justice and by conducting crucial empirical research. To assess the desirability, functionality and legal effectiveness of advance consent in English law, this thesis aims to draw on narrative and photo-elicitation interviews conducted throughout England and Wales with psychiatric survivors like people with schizophrenia, bipolar disorder or clinical depression. However, only empirical research into the system available in British Columbia is capable of shedding light into how advance consent is working in practice and to address and mitigate gaps/issues that might emerge from empirical research in England & Wales. Thus, as part of my PhD, I intend to conduct overseas fieldwork in Canada with psychiatric survivors who made or used advance consent provisions. In turn, this thesis with its much needed and novel approach to the study of advance consent, will have a potential to be of global relevance.