Rethinking Rights-Based Mental Health Laws (original) (raw)

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