Interpretive flexibility: why doesn't insight incite controversy in mental health law?

Abstract

This research investigates how the term "insight" was employed in 25 decisions from mental health review proceedings in Victoria, Australia. The application of insight appears problematic in these decisions. First, there is little clarification of its meaning. Second, the logic applied when insight is related to compliance is often unclear. Third, there are frequent allusions to an implicit and undefined scale of insight, offering the appearance of objectivity. We have analysed insight as an 'interpretive resource', focusing on its various functions in the complex social context of commitment hearings and with a view to its therapeutic jurisprudence implications. The variable application of insight-its interpretive flexibility-appears useful in addressing complex problems faced by review boards. Hence, a key function of insight is to bridge between legal and clinical discourses. Insight is also a convenient means to avoid complicated debates regarding the person's credibility. By analysing insight in Victoria, we hope to contribute to better theoretical understanding of decision-making patterns in mental health law in general.

Current legislation on admission of mentally ill patients in China

“…Using “insight” as a proxy in mental health review proceedings can also be found in western developed countries. Although the application of insight appears problematic in these decisions, it is used as a bridge between legal and clinical discourses (Diesfeld, 2007). Since 2003, some researchers (Pan, Xie & Bian, 2005) have developed more objective instruments for evaluating the competence of informed consent in daily practice, based on nationally and internationally accepted standards.…”

The Therapeutic Intent of the New Zealand Mental Health Review Tribunal

“…The Tribunal also attempts to efficiently investigate the service user's circumstances while making a decision within boundaries imposed by organisational, cultural and resource constraints (Diesfeld & Sjostrom, 2006). If the written decision is conceptualised as an abbreviated rendering of a complicated process, its creation is a practical accomplishment (Dingwall, 2000;Garfinkel, 1967).…”

The concept of capacity in Australian mental health law reform: Going in the wrong direction?

“…While the major focus of Australian mental health legislation is on risk of harm, in practice, the concept of "insight" plays an important role in tribunal hearings (Diesfeld, 2003;Diesfeld & Sjöström, 2007;Freckelton, 2010). That is, people brought within the civil commitment system are often presumed to have no insight into their illness on the basis that any "rational" person would voluntarily consent to hospital admission and mental health treatment.…”