Detention and Treatment Down Under: Human Rights and Mental Health Laws in Australia and New Zealand

Abstract

Mental health law reform in recent decades has drawn on the international human rights movement. The entering into force of the Convention on the Rights of Persons with Disabilities (CRPD) on May 3 2008 has been hailed by some as signalling a new era in relation to how domestic mental health laws should be reformed. Both Australia and New Zealand have ratified the CRPD and Australia has acceded to its Optional Protocol. New Zealand and the Australian Capital Territory and Victoria have statutory bills of rights which have an interpretive effect, but are unable to render other statutes invalid. Drawing on the results of interviews conducted with fifty-two representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries and outlines what changes, if any, may be brought to domestic legislation in light of the Convention.

Should Supported Decision-Making Replace Substituted Decision-Making? The Convention on the Rights of Persons with Disabilities and Coercive Treatment under Queensland’s Mental Health Act 2000

“…18 Mental Health Act 2000 (Qld) ss 4(a) and 8(1)(a). decisions concerning treatment "to the greatest extent practicable"; and the right to confidentiality of information 19 . Specifically in relation to coercive treatment and detention, the guiding principle is that a person's liberty and rights should be "adversely affected only if there is no less restrictive way to protect the person's health and safety or to protect others"; and to the minimum extent "necessary in the circumstances" 20 .…”

“…The Mental Health Act 2000 (Qld) also recognises that the protection of autonomy is not the only ethical principle of value. Rather, it must be balanced with a more paternalistic protection of the patient and the community from harm 22 , and the beneficent purpose of ensuring people with mental illness receive the care and treatment required to prevent "serious mental or physical deterioration" 23 ([17], p. 36; [19], p. 563; [20], p. 776). Clearly, such laws involve "a restriction upon the liberty of a person and an interference with their rights, privacy, dignity and self-respect" [21,22] 24 , but a restriction which is arguably necessary in the circumstances to protect the mental health of a person suffering from mental illness, or to prevent danger to others.…”

Coercion and trust in psychiatry: the ultimate contradiction

“…The literature on coercion, as well as inspection reports, clearly acknowledge that far from being a tool of last resort, and contrary to the requirements of most national mental health legislation, the use of coercion has become a routine (McSherry and Wilson, 2011), even banal event (Clarke, 2008). Forcibly admitting and treating people against their will is now often the first option, especially at times of crisis, when a person is at their most vulnerable.…”

“…The so-called lack of capacity is itself used to deny legal capacity, specifically when a person refuses treatment or there is a perception of danger to self or to others (Bartlett, 2003;Glover-Thomas, 2011;McSherry and Wilson, 2011). It is also worth noting that mental and legal capacity are notions often muddled in many professionals' minds.…”

“…While it is highly questionable whether the use of coercion serves the best interest of the individual, negative outcomes are usually justified in the literature as a the result of a balancing act between competing interests (McSherry and Wilson, 2011), with the interests of society usually weighing more in that balance, while issues of power imbalances, and the negation of people's human rights or of freedom of choice are often glossed over or ignored (Bartlett, 2011). These questions involving competing rights come down to power and who wins the struggle.…”