Article

Rising to the human rights challenge in compulsory treatment - new approaches to mental health law in Australia

Centre for Values, Ethics and the Law in Medicine, University of Sydney, Sydney, NSW 2006, Australia.
Australian and New Zealand Journal of Psychiatry (Impact Factor: 3.77). 02/2012; 46(7):611-20. DOI: 10.1177/0004867412438872
Source: PubMed

ABSTRACT 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.
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.
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.
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.

0 Followers
 · 
306 Views
  • [Show abstract] [Hide abstract]
    ABSTRACT: In Crowley v Commonwealth of Australia, ACT and Pitkethy [2011] ACTSC 89, a mental health service was found negligent for failing to pursue a recommendation to re-assess and arrange hospital admission of an acutely mentally ill man who was later injured after he was shot by police. The trial judge held that the mental health service was negligent for failing to exercise the statutory power of apprehension as provided for in the Mental Health (Treatment and Care) Act 1994 (ACT). The decision was overturned on appeal. In ACT v Crowley, Commonwealth of Australia and Pitkethy [2012] ACTCA 52, the ACT Court of Appeal held that the duty of care owed to the plaintiff was limited only to following up on the matters discussed with the person's family during a home visit on the previous evening. The Court of Appeal held that the scope of the duty of care owed by the mental health service did not include a duty to exercise the apprehension power. The High Court declined to grant special leave to appeal. All mental health legislation in Australia and New Zealand has provisions enabling mentally ill persons to be assessed and treated, even if the person is insightless and uncooperative. The appellate decision from the ACT is very relevant to the day-to-day operation of acute community mental health services.
    Psychiatry Psychology and Law 10/2013; 20(5):660-685. DOI:10.1080/13218719.2013.829386 · 0.35 Impact Factor
  • [Show abstract] [Hide abstract]
    ABSTRACT: Despite the efforts of the World Health Organization to internationally standardize strategies for mental-health care delivery, the rules and regulations for involuntary admission and treatment of patients with mental disorder still differ markedly across countries. This review was undertaken to describe the regulations and mental-health laws from diverse countries and districts of Europe (UK, Austria, Denmark, France, Germany, Italy, Ireland, and Norway), the Americas (Canada, USA, and Brazil), Australasia (Australia and New Zealand), and Asia (Japan and China). We outline the criteria and procedures for involuntary admission to psychiatric hospitals and to community services, illustrate the key features of laws related to these issues, and discuss their implications for contemporary psychiatric practice. This review may help to standardize the introduction of legislation that allows involuntary admission and treatment of patients with mental disorders in the mainland of China, and contribute to improved mental-health care. In this review, involuntary admission or treatment does not include the placement of mentally-ill offenders, or any other aspect of forensic psychiatry.
    Neuroscience Bulletin 01/2015; 31(1). DOI:10.1007/s12264-014-1493-5 · 1.83 Impact Factor
  • Source
    [Show abstract] [Hide abstract]
    ABSTRACT: In some Australian states clinicians and mental health tribunal members are already required to assess a person's decision-making capacity before involuntary treatment can be applied. Professionals in other jurisdictions will likely soon be required to do the same as mental health law reform in most Australian jurisdictions makes the assessment of decision-making capacity a central component of the process of providing unconsented psychiatric treatment. We provide a guide to the legal issues around the capacity to refuse psychiatric treatment to assist with this task. We review the legislation in the four Australian states most advanced in the mental health law reform process and use examples from clinical practice and the common law to describe how decision-making capacity should be assessed by these statutory standards. Clinicians and tribunal members will primarily be required to judge whether a person with mental illness can understand the information relevant to the treatment decision and whether he or she can use or weigh that information to come to a decision. A person with a mental illness is presumed to have capacity, but that presumption can be rebutted. Capacity is specific to the decision at hand and cannot be determined by the nature of the decision made. The information provided should assist clinicians and tribunal members to make determinations of decision-making capacity around treatment refusal in the context of mental illness. © The Royal Australian and New Zealand College of Psychiatrists 2015.
    Australian and New Zealand Journal of Psychiatry 02/2015; 49(4):324-333. DOI:10.1177/0004867415572007 · 3.77 Impact Factor

Full-text

Download
428 Downloads
Available from
May 17, 2014