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This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based 'fusion' law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government's 2018 Independent Review of the Mental Health Act 1983. [ABSTRACT FROM AUTHOR]

Workplace injuries are a serious public health problem, potentially leading to loss of earnings, medical expenses, disability and even death for working people. Maritime transport workers - seafarers - are exposed to higher risks of workplace injuries than is the general land-based workforce. China has the world's largest population of international seafarers. Under Chinese law, as elsewhere, losses from workplace accidents are compensated in the form of financial entitlements. However, Chinese seafarers face tremendous challenges in the workers' compensation claim process. This paper investigates the experiences of Chinese seafarers in claiming this compensation, in order to assess the protective capacity of Chinese workers' compensation, known as the Work-Related Injury Insurance System. Drawing on therapeutic jurisprudence, it explores the anti-therapeutic effects that Chinese seafarers confront in the claims process. Based on an analysis of regulatory documents and interview data with the informants - including seafarers, their family members and managerial professionals in the shipping industry - the findings suggest that current work-related injury insurance is unable to provide sufficient assistance for Chinese seafarers. Instead of obtaining effective therapeutic remedies following accidental trauma, Chinese seafarers (and their families) are indeed likely to suffer additional harm in the process of claiming compensation. The paper suggests that further measures should be adopted to improve work-related injury insurance coverage among seafarers, and that efficient sanctions should be strengthened against infringements of seafarers' rights. [ABSTRACT FROM AUTHOR]

Most of the late 20th century wave of reforms in mental capacity or competence law were predicated upon the so-called 'functional' model of mental capacity, asking not merely whether a person had a mental disorder or disability but rather whether they were capable of making a specific decision (or decisions) at a specific point of time. This model is now under sustained challenge, most notably from the Committee on the Rights of Persons with Disabilities, and this challenge has focused a spotlight on the difficulty of applying the legally 'neat' concepts of the functional model of mental capacity across the full complex spectrum of human life. This paper presents a review, in two parts, of the first ten years of the Court of Protection, a specialist mental capacity court in England and Wales which applies a functional model of mental capacity. The first part outlines the history of the functional model in England and Wales, and the development of this specialist mental capacity court (Court of Protection), created by the Mental Capacity Act 2005. The second part presents an empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence. The authors found that in 70% of cases the subject of proceedings (or P) had either a learning disability or dementia, and the court ruled on P's capacity for a wide range of issues, most commonly residence, care and contact. The judge considered the support principle, or whether practical steps were taken to maximise P's capacity, in 23 of 40 (57.5%) cases. The subject P was determined to have capacity in 13 cases, to lack capacity in 22 cases, and in 5 cases P was found to have and lack capacity for different issues before the court. The functional inability to use or weigh relevant information was most commonly cited by the judge, being cited in all but 2 cases in which P was determined to lack capacity and inabilities were cited. The propensity for the system to learn was shown by an increase in the proportion of cases which considered the 'causative nexus' from 2013, when a Court of Appeal case emphasised that impairment must not merely be present alongside functional inability but must be the causal basis of inability. The authors conclude that whilst the Court of Protection is still on a learning curve, its work provides a powerful illustration of what taking capacity seriously looks like, both inside and outside the courtroom. The implications for judges, lawyers and psychiatrists that can be drawn from the study are generalisable to other comparable socio-legal frameworks in which mental capacity or competence plays a role and is likely to do so for the foreseeable future. [ABSTRACT FROM AUTHOR]

Article 12 of the UNCRPD on equal recognition before the law, places an obligation on member states to 'provide access by persons with disabilities to the support they may require in exercising their legal capacity'. This has resulted in an increased focus on the concept and practice of supported decision-making, as opposed to substitute decision-making, for those with cognitive disabilities. To date, translation of this concept into law has been limited. However, Law Reform Agencies, tasked with reviewing legal decision-making schemes are increasingly recommending incorporation of legally recognised supported decision-making measures. This paper identifies the contribution of Law Reform Agencies' reports and recommendations to the evolving body of knowledge in relation to supported decision-making. In particular, it analyses the rationales for recommendations favouring the introduction of forms of legally recognised supported decision-making and the types of legal models of supported decision-making being recommended by Law Reform Agencies. [ABSTRACT FROM AUTHOR]

This paper provides an examination of the process used by ordinary courts in Chile when making legal capacity determinations. It provides an up-to-date account of various aspects of law and procedure related to legal capacity in this jurisdiction. Also, by drawing on semi-structured interviews with judges, this paper examines judicial understandings of legal capacity decision-making focusing on problems related to the medicalisation of mental disability and the participation of persons with disabilities in legal capacity procedures. [ABSTRACT FROM AUTHOR]

Many countries embarked on reforms of mental health law in the wake of the Convention on the Rights of Persons with Disabilities. These reforms have had varying levels of success. This paper considers the experience of consumers in the Victorian mental health system, drawing on an evaluation that asked consumers and clinicians about their knowledge and experience of rights under the Victorian Mental Health Act, 2014. The data show that consumers were not informed of their rights, were not involved in decisions about treatment, were not able to access safeguards, and could not exercise their rights. The explanations for this include limited staff time, unclear delegations of responsibility, a lack of knowledge, training, and support for rights, and a preference for 'best interests' approaches. The paper identifies tangible reforms that would maintain rights for consumers, including competent refusal of treatment, legislative and regulatory reforms, and training and resourcing. Consumers in this study found that the rights-based framework in the Mental Health Act, 2014 had such an insignificant effect on clinical mental health practice in Victoria that their rights appeared to be illusory. [ABSTRACT FROM AUTHOR]

In this paper we aim to offer a balanced argument to motivate (re)thinking about the mental illness clause within the insanity defence. This is the clause that states that mental illness should have a relevant causal or explanatory role for the presence of the incapacities or limited capacities that are covered by this defence. We offer three main considerations showing the important legal and epistemological roles that the mental illness clause plays in the evaluation of legal responsibility. Although we acknowledge that these advantages could be preserved without having this clause explicitly stated in the law, we resist proposals that deny the importance of mental illness in exculpation. We argue, thus, that any attempt at removing the mental illness clause from legal formulations of the insanity defence should offer alternative ways of keeping in place these advantages. [ABSTRACT FROM AUTHOR]

For advocates of the rights of persons with disabilities, particularly persons with mental disabilities, the human right to live in the community as an equal member is seen to be central and, often, even as the basis for all other human rights. Yet, despite its articulation in human rights law in the Convention on the Rights of People with Disabilities (CRPD), foundational issues about the right remain undertheorized and unclear. This paper brings to bear the capabilities approach, a normative framework about human well-being, social development and social justice, to this central concern in disability rights, mental health ethics, and international human rights law: protecting and respecting a person's right to live in a community as an equal. We argue that this human and moral right is best conceptualized as a capability to live in the community as an equal member. The capabilities approach provides this capability with a strong ethical framework and conceptual resources to guide reasoning and its practical realization. [ABSTRACT FROM AUTHOR]

Neurological disorders can be mis-diagnosed as psychiatric ones. This might happen to pedophilia emerging as a symptom of brain insult (i.e. acquired pedophilic behavior). This paper aims to delineate a behavioral profile that might help to identify defendants whose pedophilic behavior is likely to be the consequence of a neurological disorder. Through a systematic review of the literature, seventeen clinical and behavioral variables of the modus operandi and victimology that can distinguish between acquired and developmental pedophilic behavior have been collected. Seven of these were found to be consistent behavioral indicators (i.e. red flags) for acquired pedophilia. Cluster hierarchical analysis on the seventeen variables collected through the systematic review of the literature on cases of acquired pedophilic behavior was applied to a new dataset including 66 Italian closed cases of pedophilia. Stepwise regression and correlation analyses were carried out to further examine the differences between the clusters identified in the cluster analysis. Results revealed that the new sample was partitioned into two clusters. Individuals with ascertained acquired pedophilia were grouped together. The clusters widely differed for the prevalence of red flags (mean number of red flags in each cluster: 2.14 ± 0.79 vs 4.96 ± 0.93, p < 0.001), while no between cluster difference emerged for the other clinical and behavioral variables. Regression analysis provided a robust model that included the three most significant red flags that explain over 64.5% of the variance (absence of masking, spontaneous confession and offenders older age). An organic origin of pedophilic behavior should be suspected if red flags are present in a defendant charged with pedophilia. In those cases, an in depth trans-disciplinary neuroscientific investigation is advocated. The behavioral profile identified might help to provide a proper assessment of defendants. [ABSTRACT FROM AUTHOR]