Disability Rights and Compulsory Psychiatric Treatment: The Case for a Balanced Approach under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (original) (raw)
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Objective: To analyse, and explain to Australasian psychiatrists, recent proposed changes to the terms of coercive treatment for mental illness in Tasmania and Victoria and to place the proposals in the context of a broader human rights framework that is likely to impact the future shape of mental health legislation more generally. Methods: The Australian law reform proposals are reviewed against the requirements of numerous human rights instruments, including the recently ratified United Nations Convention on the Rights of Persons with Disabilities. Ethical and legal arguments are made to support the proposed changes and to introduce others, taking into account academic commentary on mental health law and recent empirical work on the ability to usefully categorise patients by their likelihood of harm to self and others. Results: The Victorian and Tasmanian draft mental health bills propose a new basis for compulsory psychiatric treatment in Australasia. If they become law, coercive psychiatric treatment could only be applied to patients who lack decision-making capacity. The Tasmanian draft bill also sets a new benchmark for timely independent review of compulsory treatment. However both jurisdictions propose to retain an ‘additional harm’ test which must be satisfied before patients may be treated without consent. This differs from non-psychiatric cases, where if patients are unable to consent to medical treatment for themselves, they will be entitled to receive coercive treatment if it is in their best interests. Conclusions: The proposed changes under the Tasmanian and Victorian draft mental health bills will ensure that, in line with local and international human rights obligations, only patients who lack decision-making capacity may be coercively treated for mental illness. However the continuing ‘additional harm’ criteria may breach human rights obligations by imposing a discriminatory threshold for care on patients who are unable to consent to treatment for themselves. This could be avoided by replacing the ‘additional harm’ test with a ‘best interests’ test.
2012
This article is based on research which examined the current and potential impact of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on Australian and South Australian legislation and policy. A particular focus was on the ‘right to health’ for people with a psychiatric disability. Ten interviews were conducted with professionals from law, psychiatry, government and service user advocacy, working at state, national (Australian) and international levels. It addresses three key themes: the rights of people with psychiatric and other disabilities; perceptions of the rollout of the United Nations Convention on the Rights of Persons with Disabilities (CRPD); and the impact on current policy and practice of the ‘right to health’.
Alternative Law Journal, 2017
This article considers how the Victorian Mental Health Act 2014 extinguishes the right of people with a mental illness to refuse treatment in light of the Convention on the Rights of Persons with Disabilities, which prohibits detention or compulsory treatment on the basis of a person's disability. Three possible resolutions of this inconsistency are proposed and considered: repealing the Mental Health Act 2014, delinking disability from compulsory treatment, and maintaining legal capacity by supporting mental capacity.
Mental health law in New Zealand
BJPsych. International, 2016
New Zealand has an established history of mental health legislation that sits within a framework of human rights, disability and constitutional protections. We outline a brief history of mental health legislation in New Zealand since its inception as a modern state in 1840. The current legislation, the Mental Health (Compulsory Assessment and Treatment) Act 1992, defines mental disorder and the threshold for compulsory treatment. We describe its use in clinical practice and the wider legal and constitutional context which psychiatrists need to be aware of in their relationships with patients.
Is There a Future for Involuntary Treatment in Rights-based Mental Health Law?
Involuntary psychiatric treatment is currently permitted in all Australian jurisdictions. In almost all, Tasmania being a recent exception, this is so regardless of the person’s ability to make his or her own decisions about treatment. In recent years mental health legislation has come under pressure from several quarters, most urgently, as a result of Australia’s ratification of the United Nations Convention of the Rights of Persons with Disabilities. While interpretation of the Convention is not yet settled, the UN High Commissioner for Human Rights and the UN Disabilities Committee have both indicated that supported decision-making regimes must be instituted in place or substituted decision-making arrangements and that involuntary treatment is no longer permissible under the CPRD. This article argues that in order to give effect to the provisions of the CRPD, new supported decision-making regimes must be incorporated into mental health legislation but that these must admit a limited role for substituted decisions, including involuntary treatment, where a person lacks decision-making capacity. We argue that such a scheme can, and must, respect the rights, will and preferences of the person affected. Furthermore, we suggest that failing to account for it in law will jeopardise rights more than it protects them.
Rethinking Rights-Based Mental Health Laws
Medical Law Review, 2012
This edited collection stems from a research project of the same name, which was funded by the Australian Research Council. The editors invited a number of prominent mental health law experts from different common law jurisdictions to explore the meaning and scope of rights-based mental health laws and to consider whether an international human rights framework, such as the United Nations Convention on the Rights of Persons with Disabilities (CRPD), 1 should guide mental health laws. The list of contributors is impressive and the result is a stimulating and insightful collection of essays which seek to address what rights-based legalism means and how it could work in practice. The 17 chapters are diverse and have approached these questions from very different perspectives; some focusing on historical approaches and others adopting a more contemporary analysis. Two contributors (Peay in the UK and Petrila in the USA) explore these issues in the context of criminal provisions such as unfitness to plead and sexually violent predator legislation. 2 As the editors point out in the introductory chapter, there have been cycles in the compulsory hospitalisation of people with mental illness. Kathleen Jones' influential work in this field has described the detention and treatment of mentally ill people as swinging between two pendulums: legalism and professional discretion. 3 In the former, mental health laws are heavily dominated by legal rules and procedures, whereas the latter approach focuses on medical discretion and ensuring prompt and timely clinical intervention. Since the Mental Health Act (MHA) 1983, we have experienced a period of legalism in the UK whereby mental health legislation sets out detailed processes for compulsory detention with several in-built legal safeguards. Many would argue, including several contributors to this volume, that this approach is not entirely satisfactory. While it seeks to provide legal safeguards and protection, it does not offer patients any positive rights and entitlements. This legalistic approach thus focuses on rights in a traditional sense by ensuring that there are complex procedural processes in place to prevent patients from
A human rights-based approach to compulsory treatment of young people experiencing mental disorder
Australian Journal of Human Rights, 2018
The prevalence and complexity of mental disorder amongst children and young people is increasing, with a younger age of onset. Additionally, in recent decades there has been an international shift in approach to the issue of mental disorder, from that based on a medical model towards a human-rights-based approach. This shift is embodied in the Convention on the Rights of Persons with Disabilities and is purportedly adopted in Australian government legislation and policy. Using Victoria as a case study, this article explores the meaning of a human-rights-based approach to children and young people experiencing mental disorder. It considers relevant legislation, statistical data and Victorian Mental Health Tribunal cases to identify deficiencies in the Victorian legislation and its implementation. It concludes that, while a human-rightsbased approach is preferable to one based on a medical model, the Victorian Mental Health Act and related legislation in other States and Territories must be amended to better realise the human rights of children and young people experiencing mental disorder.
International Journal of Science and Healthcare Research, 2024
Mental health legislation has evolved significantly, shifting from a medical framework to a more legal-centric approach. Initially, laws were grounded in medical models, treating individuals with mental disorders as patients requiring involuntary care. This often led to the marginalization of legal rights, with patients subjected to confinement and treatment based solely on medical authority. Over time, however, the need for legal safeguards to protect individual autonomy and dignity became more evident. The shift from medicalism to legalism reflects broader societal changes, including a growing emphasis on human rights, the de-stigmatization of mental illness, and the importance of personal autonomy. Modern mental health laws now aim to balance medical care with legal protections, ensuring individuals' rights to informed consent, non-discrimination, and due process. This paper examines the milestones in the development of mental health legislation, focusing on how legal frameworks have evolved to safeguard the rights of those with mental health conditions. It also explores the role of international conventions, national reforms, and judicial interventions in promoting a rights-based approach. Ultimately, this paper underscores the importance of legal protections in ensuring the dignity and equality of individuals with mental health issues in contemporary society.