COVID-19, patients’ mental capacity and prisoners

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The coronavirus pandemic has raised an abundance of issues at the intersection of law and medicine. In recent co-authored articles, Cameron Stewart, Professor of Health, Law and Ethics at the University of Sydney Law School considers some of these issues.

Mental capacity assessments for COVID-19 patients: Emergency admissions and the CARD approach

In this Journal of Bioethical Inquiry articleProfessor Cameron Stewart and colleagues examine the principles of mental capacity and make recommendations on how to assess the capacity of COVID-19 patients to consent to emergency medical treatment.

“The combination of very sick patients, knowledge deficits, and high pressure environments is likely to make capacity assessment very difficult during the COVID-19 pandemic.”

The article provides examples of mental capacity disputes in a number of common law jurisdictions before recommending that in emergency admissions for COVID-19, health practitioners use what Professor Stewart and his co-authors term the “CARD” approach (Comprehend, Appreciate, Reason, and Decide).

“CARD gives clinicians a legally defensible means of rapidly determining the mental capacity of COVID-19 patients, essential to guide urgent treatment and ensure that patients’ best interests are ultimately served in the process.”

COVID-19, Australian prisons: Human rights, risks and responses

Australian prisons have, so far, avoided the levels of COVID-19 infection experienced in the United States and elsewhere, but the potential for high infection rates remains.

In a November 2020 article in the Journal of Bioethical InquiryProfessor Cameron Stewart and colleagues consider what steps the state should take to protect prisoners. The article looks at Australian prisons’ regulatory responses to COVID-19 and considers calls for the release (decarceration) of some prisoners, including the Victorian case of Rowson v Department of Justice and Community Safety [2020] VSC 236. In that case, a prisoner unsuccessfully sought release pending departmental consideration of his application for release into home detention on health grounds — namely, risk of serious injury or death from COVID-19.

Professor Stewart and his co-authors conclude:

“Ultimately, COVID-19 presents an opportunity to reconsider the deeper issues regarding use of incarceration as a punishment and the human rights of prisoners more generally.”

Cameron Stewart teaches in Sydney Law School’s Master of Health Law program, including subjects on Death Law, Health Care and Professional Liability, and Government Regulation, Health Policy and Ethics.

Related posts on COVID-19 from the Sydney Health Law team:

https://sydneyhealthlaw.com/2020/11/04/covid-19-medical-research-governance-and-public-health-orders/

https://sydneyhealthlaw.com/2020/03/18/whos-in-control-of-australias-response-to-coronavirus-part-1-legal-frameworks/

https://sydneyhealthlaw.com/2020/03/19/whos-in-control-of-australias-response-to-coronavirus-part-2-operational-responses/

https://sydneyhealthlaw.com/2020/08/26/rule-of-law-in-the-covid-19-response/

https://link.springer.com/article/10.1007/s11673-020-10055-2