Rethinking Rights-Based Mental Health Laws (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.
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.
The right to refuse treatment: a broad view
The Bulletin of the American Academy of Psychiatry and the Law
Psychiatry shares with other professions certain common characteristics. Sociologically, a profession is defined as an occupation based on a unique theoretical and scientific body of knowledge, whose practitioners have a service orientation, and autonomy in the performance of their work (Hughes, 1965). In addition to these three core characteristics, psychiatry is beginning to experience a trend which has been occurring in other professions. This trend has been referred to as "the revolt of client" (Haug and Sussman, 1969) and is surfacing in psychiatry under the label of the patient's right to refuse treatment. In this presentation, we wish to sketch out some of the major issues surrounding this complex question of the right of mental patients to refuse treatment.
Victoria University of Wellington Law Review
This article argues the New Zealand Government's current approach to compulsory psychiatric treatment is unjustifiable in a human rights context. Under s 59 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, clinicians are empowered to administer compulsory psychiatric treatment to individuals without, or contrary to, their consent. This article analyses s 59, and its underlying justifications, in light of the New Zealand Government's commitments under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Further, it analyses the approach for compulsory psychiatric treatment advocated by the UNCRPD in light of Aotearoa New Zealand's mental health context to evaluate whether this approach would be more desirable than the current approach under s 59. The article then advocates for a more balanced approach to compulsory psychatric treatment which puts the rights of disabled individuals at the forefront and also ensures there ar...
IS COMPULSORY DETENTION AND TREATMENT OF MENTAL HEALTH PATIENTS ALWAYS A BREACH OF HUMAN RIGHTS?
We all have Human Rights. These are the basic rights and freedoms that belong to everyone and which are based on shared values like dignity, fairness, justice, and equality. The law sets out a min-imum standard for how we should all be treated by international and national, including the NHS. These rights are not just abstract principles. The advent of the Human Rights Act 1998 has brought this to the forefront and demonstrated that there is a danger of compromising the fundamental hu-man rights of mentally vulnerable individuals. Human rights apply to everyone, and cannot be tak-en away except in specific, pre-determined situations and according to law. Within this essay, I ex-plore a number of situations in which key human rights need to be restricted, usually to protect an individual with mental health issues or to protect others who may be affected by that individual’s actions or behaviour. When thinking about restricting rights, any such action should be proportion-ate. This means that mental health care practitioners must be able to show that they have taken the individual’s rights into account, and that any restriction is kept to the minimum possible and is nev-er excessive. In a hospital setting, any restrictive policies should not adopt a blanket approach that affects all patients but should be assessed and applied on an individual and proportionate basis.
Capacity, Treatment and Human Rights
International Journal of Mental Health and Capacity Law, 2014
R (on the application of PS) v. G (RMO) and W (SOAD) [2003] EWHC 2335 (Admin). Administrative Court (10th October 2003) Mr. Justice Silber. This is the most recent in a series of cases regarding the scope of the Human Rights Act and compulsory treatment under the Mental Health Act 1983. In particular, this case concerns the right of a competent patient detained under section 37 of the Mental Health Act 1983 (MHA) to refuse anti-psychotic medication, and the scope of articles 3, 8 and 14 of the ECHR.