Informed consent and mental health, mainly in Spain, EU

Introduction: Lawfully given, informed or valid consent is considered by Spanish jurisprudence a fundamental right and entails important repercussions. Method: Critical and theoretical examination of the matter, with special emphasis on the case of the most vulnerable people and those who require involuntary outpatient psychiatric treatment (IOT). Results: Valid informed consent must fulfil the requirements of capacitation, willingness, information and understanding. Timely knowledge and agreement regarding by whom and how this consent must be granted are important in biomedicine and psychology in general, as well as in the specialities of psychiatry and clinical psychology in particular. It is also important to ensure valid consent for any psychotherapy, as it generally also occurs in the case of psychopharmacological treatments. This article will revise the so-named “sliding scale” to determine mental degree of competence. This concept is especially important in order to consider whether a supposed valid consent is appropriate in vulnerable people. We will talk about living will and severe mental illness concerning valid consent. The current state of psychiatric involuntary outpatient treatment in Spain will be mentioned as well as the wills of legally incapacitated individuals, elderly people or when the carer, either an individual or institution, is the main beneficiary. Conclusions: Valid consent is necessary in every biomedical or sanitary action in general. The matter is potentially controversial if wrongful influences bear upon elderly people, incapacitated individuals and others. Keywords: Informed consent; Valid consent; Spain; Will; Severe mental illness

Men in White Coats

The book examines medical treatment under coercion and its justifications. Psychiatry springs to mind as most associated with coercion. Here, the fundamental criteria governing detention and involuntary treatment have remained fundamentally unchanged for over two centuries—first, the person has a ‘mental disorder’, largely undefined; and second, there is a risk of significant harm to the person or to others. Major problems attach to these criteria allowing a large degree of arbitrariness in the use of compulsion. Furthermore, when set against the huge shift over the past 50 years from ‘paternalism’ to patient ‘autonomy’ in general medicine, it becomes clear that conventional mental health law discriminates against people with ‘mental disorders’. Involuntary treatment is governed by entirely different principles. Patient ‘autonomy’ is not accorded the same respect in mental health care, while the ‘protection of others’ justification, based on ‘risk’ not offences, constitutes a discriminatory form of preventive detention reserved for people with ‘mental disorders’. A solution is proposed—a generic law, applicable across all medical specialties and settings. This ‘Fusion Law’ draws on the strengths of both ‘capacity-based’ and civil commitment models. The relationships of ‘capacity’ and ‘best interests’ to a person’s ‘beliefs and values’ (or ‘will and preferences’) are elucidated in order to examine the ‘Fusion Law’ against the standards set by the United Nations Convention on the Rights of Persons with Disabilities. ‘Coercion’ short of compulsion is then considered, as are the implications of the ‘Fusion Law’ for the forensic domain, general hospital practice, involuntary outpatient treatment, and ‘advance directives’.