1.1 Defining 'mental disorder' and related expressions (Article 3 (1))
The Group agreed that the term ‘mental handicap’ was outdated and should not be used in any new legislation. Before a decision was made about this, consideration should be made about usage in the European Union and elsewhere in the world. In addition the Group agreed that any new concept of mental disorder should be clearly and narrowly defined to be compliant with Article 5 of the ECHR, where compulsion is used.
1.2 Exclusions (personality disorder, promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs) (Article 3 (2))
There was a relatively long debate amongst Group members about these issues. It was agreed that some of the terminology was rather dated and in need of change (promiscuity or other immoral conduct; sexual deviancy) in any new legislation. The major debating point was whether patients with a personality disorder should continue to be excluded. A general consensus emerged that, on principle someone should not be compulsorily admitted to hospital on grounds of personality disorder alone. However, we agreed that the process should be open enough to allow for an admission if someone with a personality disorder had a co-morbid mental disorder, or if the applicant was unsure about the nature of the mental distress. It should be left to the multi-disciplinary team members in the hospital to make a more detailed assessment and, if a personality disorder alone was diagnosed, then the person could be discharged. The proposed Legal Framework paper is less concerned with how the law defines mental disorder, and more concerned about the patient’s capacity to make a judgement about well-being and risk. It suggests that a broad definition be used (impairment of mind or brain); the important point is that safeguards are built into the admission process which protects patients’ rights (these are discussed later in the paper below). It may be that someone with a personality disorder could be compulsorily admitted to hospital if the conditions are met, however, there should be a transparent ‘treatability’ condition to this process. There was unanimous concern in the Group that many of the problems around the law in this area were created by a lack of adequate community based resources for people with a personality disorder. The Group wished to emphasise the urgency in providing such resources in order that this important, yet often neglected group are cared for (O’Kane, 2003).
1.3 Grounds for Application for Assessment (Article 4 (2))
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