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.

Download full-text


Available from: Christopher James Ryan, Jul 07, 2015
  • 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
  • Source
    International journal of mental health nursing 06/2014; 23(3). DOI:10.1111/inm.12071 · 2.01 Impact Factor
  • Source
    [Show abstract] [Hide abstract]
    ABSTRACT: The Mental Health Act 2007 (NSW) permits detention and treatment of mentally ill persons without consent, in circumstances where the treatment is considered “necessary for the person’s own protection from seri- ous harm” (s 14) and where there is no less restrictive alternative (s 12). All of Australia’s mental health acts are couched in similar terms, though the exact wording varies from jurisdiction to jurisdiction (Callaghan and Ryan 2012).The “serious harm” of the NSW Act is not defined and medical practitioners have been unsure about its scope for the purposes of permitting invol- untary treatment. The recent Supreme Court case of Re J (no. 2) [2011] NSWSC 1224 has provided some clarification of the issue.
    Journal of Bioethical Inquiry 09/2012; 9(3):235-42. DOI:10.1007/s11673-012-9373-z · 0.71 Impact Factor