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Abstract

Involuntary psychiatric treatment is currently permitted in all Australian jurisdictions. In almost all, Tasmania being a recent exception, this is the case regardless of the person’s ability to make his or her own decisions about treatment. In recent years mental health legislation has come under pressure from several quarters, most urgently, as a result of Australia’s ratification of the United Nations Convention of the Rights of Persons with Disabilities (CRPD). While interpretation of the Convention is not yet settled, the United Nations High Commissioner for Human Rights and the United Nations Disabilities Committee have both indicated that supported decision-making regimes must be instituted in place or substituted decision-making arrangements and that involuntary treatment is no longer permissible under the CPRD. This article argues that in order to give effect to the provisions of the CRPD, new supported decision-making regimes must be incorporated into mental health legislation but that these must admit a limited role for substituted decisions, including involuntary treatment, where a person lacks decision-making capacity. We argue that such a scheme can, and must, respect the rights, will and preferences of the person affected. Furthermore, we suggest that failing to account for it in law will jeopardise rights more than it protects them.
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Is There a Future for Involuntary
Treatment in Rights-based Mental
Health Law?
Sascha Mira Callaghana & Christopher Ryana
a Centre for Values, Ethics and the Law in Medicine, University of
Sydney, NSW, Australia
Published online: 08 Sep 2014.
To cite this article: Sascha Mira Callaghan & Christopher Ryan (2014) Is There a Future for
Involuntary Treatment in Rights-based Mental Health Law?, Psychiatry, Psychology and Law, 21:5,
747-766, DOI: 10.1080/13218719.2014.949606
To link to this article: http://dx.doi.org/10.1080/13218719.2014.949606
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Is There a Future for Involuntary Treatment in Rights-based Mental
Health Law?
Sascha Mira Callaghan and Christopher Ryan
Centre for Values, Ethics and the Law in Medicine, University of Sydney, NSW, Australia
Involuntary psychiatric treatment is currently permitted in all Australian jurisdictions. In
almost all, Tasmania being a recent exception, this is the case regardless of the person’s
ability to make his or her own decisions about treatment. In recent years mental health
legislation has come under pressure from several quarters, most urgently, as a result of
Australia’s ratification of the United Nations Convention of the Rights of Persons with
Disabilities (CRPD). While interpretation of the Convention is not yet settled, the United
Nations High Commissioner for Human Rights and the United Nations Disabilities
Committee have both indicated that supported decision-making regimes must be instituted in
place or substituted decision-making arrangements and that involuntary treatment is no
longer permissible under the CPRD. This article argues that in order to give effect to the
provisions of the CRPD, new supported decision-making regimes must be incorporated into
mental health legislation but that these must admit a limited role for substituted decisions,
including involuntary treatment, where a person lacks decision-making capacity. We argue
that such a scheme can, and must, respect the rights, will and preferences of the person
affected. Furthermore, we suggest that failing to account for it in law will jeopardise rights
more than it protects them.
Key words: mental health law; involuntary treatment; legal capacity; Convention on the
Rights of Persons with Disabilities..
1. Introduction
The United Nations Convention on the Rights
of Persons with Disabilities
1
(CRPD) has laid
down a radical challenge to current mental
health laws by requiring that all persons have
an equal right to enjoy legal capacity (art 12),
to liberty (art 14), and to physical and mental
integrity (art 17). Article 12 requires specifi-
cally that supported decision-making regimes
must be introduced, and that such schemes
must respect the ‘rights, will and preferences’
of persons with disabilities. Traditionally,
Australian mental health legislation has
permitted involuntary detention and psychiat-
ric treatment of persons with mental illness if
it is deemed necessary to prevent harm to the
person themselves or other people. In such
circumstances, ordinary common law rights
to refuse medical treatment are extinguished,
and treatment can be applied without refer-
ence to the preferences of the person con-
cerned.
2
Such laws are at odds with the terms
of the CRPD.
In addition, the Office of the United
Nations High Commissioner for Human
Rights
3
and the United Nations Committee
Correspondence: Sascha Mira Callaghan, Centre for Values, Ethics and the Law in Medicine, Level 1,
Medical Foundation Building (K25), University of Sydney, 2006, NSW, Australia. Email: sascha.
callaghan@sydney.edu.au
Ó2014 The Australian and New Zealand Association of Psychiatry, Psychology and Law
Psychiatry, Psychology and Law, 2014
Vol. 21, No. 5, 747766, http://dx.doi.org/10.1080/13218719.2014.949606
Downloaded by [144.76.82.197] at 20:28 26 August 2015
on the Rights of Persons with Disabilities
4
have indicated that there is no place for
non-consented treatment based on the pres-
ence of mental illness within the CRPD
schema. It has also been suggested that
non-consented treatment will contravene
the CRPD, even when a person lacks deci-
sion-making capacity.
5
According to these
respected United Nations bodies, involun-
tary treatment is out.
Even so, while several Australian juris-
dictions have reviewed their mental health
legislation since the CRPD was ratified,
6
none are considering a wholesale abandon-
ment of involuntary treatment. Submissions
made during the review processes demon-
strate an ongoing tension between calls for
rights-based reform and a countervailing
view that remains focused on the need for
harm-prevention, and treats traditional invol-
untary treatment as a key means of achieving
it.
7
This article addresses some of the ten-
sions which we see arising between the
strong recent interpretations of the CRPD
emanating from international human rights
bodies, and the reservations of some others
who remain committed to involuntary treat-
ment as a means of providing necessary
care. We suggest that these tensions arise
out of conflict between the right to refuse
treatment, and the right to access it, both of
which are affected by the CRPD. In our
view, current legislative regimes for invol-
untary treatment overemphasise the latter at
the expense of the former and place an
unjustified emphasis on avoiding harm over
the right to autonomy.
On the other hand we also suggest that
the very strong interpretations of the CRPD
currently favoured by the United Nations
Committee for Persons with Disabilities and
the Office of the High Commissioner for
Human Rights are lacking in two important
respects. First, we argue that strong interpre-
tations that advocate complete abandonment
of the concept of decision-making capacity
as a component of legal capacity fail to give
a coherent alternative account of the nature
of the right to autonomy, and its limits. In
this way, documents such as the Disability
Committee’s recent General Comment on
Article 12 fail to answer crucial questions
for implementation of the CRPD, in terms of
how we should respect ‘rights, will and pref-
erences’ in practice. In some cases, we sug-
gest, a strong reading will promote a refusal
of treatment over the right to access treat-
ment without clear justification, and may not
provide adequate means to give effect to a
person’s ‘will and preferences’ properly
conceived.
Second, we suggest that an interpretation
of Article 12 that prohibits substituted deci-
sions entirely, places a greater burden on the
concept of ‘support’ than it is able to bear,
and in so doing, obscures the true nature of
some types of decisions. In some cases a per-
son with severe mental illness will be so
heavily supported that special safeguards will
need to be in place to prevent abuse of pro-
cess, and to ensure that the person’s rights,
will and preferences are respected as the
CRPD demands. These safeguards will
exceed those that would be appropriate in
ordinary supported decision-making. We sug-
gest that maintaining a separate category for
such decisions which might be described
as ‘substituted’, or ‘facilitated’ or ‘fully
supported’ decisions is necessary to pro-
vide adequate and appropriately limited rights
protection.
We conclude that a properly calibrated
supported decision-making regime will
accommodate a limited power to treat
patients without consent where the person
lacks decision-making capacity, and where
support has failed. In addition, we suggest
that this mechanism will better protect
rights than alternatives that prohibit invol-
untary treatment in any circumstances,
because failing to acknowledge substituted
decision-making in some contexts will
obscure the reality of some forms of deci-
sion-making and limit scope for public
oversight.
748 S. M. Callaghan and C. Ryan
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2. The Right to Refuse Treatment ‘On an
Equal Basis with Others’
2.1 The CRPD and the Right to Refuse
Treatment
The purpose of the CRPD is to ‘to promote,
protect and ensure the full and equal enjoy-
ment of all human rights and fundamental
freedoms by all persons with disabilities, and
to promote respect for their inherent dignity’.
There is no definition of disability in the
CRPD but Article 1(2) provides that:
Persons with disabilities include those who
have long-term physical, mental, intellec-
tual or sensory impairments which in inter-
action with various barriers may hinder
their full and effective participation in soci-
ety on an equal basis with others.
This wording reflects a social model of
disability that ‘focuses not on the individu-
al’s attributes or relative limitations, but
rather on the social, economic and legal
barriers a person faces in participating in
society’.
8
As mental health legislation
clearly affects the rights of many people
whowouldfallwithinthisdenition
9
these
laws must now comply with the require-
ments of the CRPD.
The CRPD contains a number of provi-
sions with specific implications for mental
health law, and in particular, for involuntary
treatment of mental illness. In most Austra-
lian jurisdictions, detention and treatment of
a mentally ill person can be authorised with-
out consent, even if the person retains deci-
sion-making capacity,
10
where treatment is
thought to be necessary to avoid harm to the
person or others. Furthermore, treatment
decisions may be made without regard to the
person’s views.
11
In this, at least three provi-
sions of the CRPD are engaged. Article 14(1)
provides that States Parties shall ensure that
persons with disabilities ‘[e]njoy the right to
liberty and security of person’ on an equal
basis with others and that ‘the existence of a
disability shall in no case justify a deprivation
of liberty’.
This Article has been interpreted strongly
by the Office of the United Nations High
Commissioner for Human Rights, which has
stated that:
Article 14, paragraph 1 (b), of the Conven-
tion unambiguously states that ‘the exis-
tence of a disability shall in no case justify a
deprivation of liberty’. Proposals made dur-
ing the drafting of the Convention to limit
the prohibition of detention to cases ‘solely’
determined by disability were rejected. As a
result, unlawful detention encompasses sit-
uations where the deprivation of liberty is
grounded in the combination between a
mental or intellectual disability and other
elements such as dangerousness, or care and
treatment.
12
Article 17 provides simply, that ‘[e]very
person with disabilities has a right to respect
for his or her physical and mental integrity on
an equal basis with others.’ This is a novel
provision in international law, and although
its meaning is somewhat obscure it appears to
be aimed at the issue of forced medical treat-
ment. According to Bartlett, ‘the actual word-
ing of Article 17 can be viewed as the result
of failed negotiations; the drafting committee
debated detailed wordings but did not agree
upon any of them’ and it may be some time
before a settled interpretation is reached.
13
In
any case, lawmakers will need to have regard
to Article 17 when revising laws permitting
invasive treatments without the consent of
patients, and come to a view as to whether,
and if so how, such provisions could square
with the language of Article 17.
However it is Article 12 that most pro-
foundly impacts upon the approach to deci-
sion-making in mental health overall and is
described as representing the ‘paradigm shift’
heralded by the CRPD.
14
Article 12 states in
part (emphases added) that:
(2) States Parties shall recognize that
persons with disabilities enjoy legal
capacity on an equal basis with
others in all aspects of life.
Rights-Holder 749
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(3) States Parties shall take appropriate
measures to provide access by per-
sons with disabilities to the support
they may require in exercising their
legal capacity.
(4) States Parties shall ensure that all
measures that relate to the exercise of
legal capacity provide for appropriate
and effective safeguards to prevent
abuse in accordance with interna-
tional human rights law. Such safe-
guards shall ensure that measures
relating to the exercise of legal capac-
ity respect the rights, will and prefer-
ences of the person, are free of
conflict of interest and undue influ-
ence, are proportional and tailored to
the person’s circumstances, apply for
the shortest time possible and are
subject to regular review by a compe-
tent, independent and impartial
authority or judicial body. The safe-
guards shall be proportional to the
degree to which such measures affect
the person’s rights and interests.
Involuntary treatment as traditionally
established, does not comply with the Article
12 schema. Under the common law, a person
with decision-making capacity can refuse
medical treatment for any reason.
15
Tradi-
tional mental health legislation removes this
right from persons with mental illness. Those
who are covered by the legislation may be
treated without consent, regardless of their
decision-making capacity, where they are
thought to be at risk of harm to themselves or
others. In failing to accord the same rights to
people with mental illness, as exist for those
governed by the common law, mental health
law clearly falls short of the requirements of
Article 12(2).
16
A consensus has emerged in the human
rights community, however, that the right to
enjoy legal capacity ‘on an equal basis with
others’ requires more than mere equivalence
with the existing common law.
17
The exercise
of ‘legal capacity’ represents a right to have
one’s decision upheld and the power to stop
others from purporting to make decisions on
one’s behalf.
18
In the common law, legal
capacity is presumed, but can be lost if it is
demonstrated that a person lacks certain req-
uisite decision-making abilities (which we
will call ‘decision-making capacity’). The
nature of the decision-making capacity
required has varied across cases, but in gen-
eral, if a person could be shown to be either
(1) unable to comprehend and retain informa-
tion that is material to a decision or (2) unable
to use and weigh that information (including
appreciating its consequences) to make the
decision, then a person will be found to lack
legal capacity and a substituted decision-
maker can provide legal consent on the per-
son’s behalf.
19
However, importing the com-
mon law model into mental health legislation
would not appear to be sufficient to meet the
requirements of Article 12. The language of
Article 12(3) suggests that a person can retain
legal capacity at least provisionally, even if
his/her decision-making capacity is signifi-
cantly impaired or absent, but that in that
case an obligation arises to provide the person
with support. This is a novel requirement for
the law of healthcare decision-making, and
its implications are still being worked out. In
the very least, Article 12 requires that rele-
vant question in respect of legal capacity
must change from ‘is this person able to
understand information, appreciate its conse-
quences and formulate a decision?’ to ‘is this
person, either alone or with support, able to
do these things?’
20
This notion of supported
legal capacity is consistent with the CRPD’s
social model of disability, and reflects a more
nuanced conceptualisation of autonomy than
is traditionally employed in the common law.
This has been linked to feminist ‘relational
autonomy’ theory that argues that the tradi-
tional legal approach to autonomy focuses
too much on the individual in isolation,
whereas all of us actually make decisions
with support from others. Relational
approaches argue that decision-making
capacity cannot, and should not, be evaluated
750 S. M. Callaghan and C. Ryan
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solely on the basis of our personal abilities.
Rather it should be gauged in a social context,
taking into account the presence of support.
21
On a stronger view Article 12 prohibits
any recourse to decision-making ability at all
in the context of according legal capacity,
and all those who are able to express a will
and preference are entitled to exercise legal
capacity without further restriction.
22
This
has legal implications well beyond the dis-
ability context, affecting the basis of contrac-
tual and tortuous liability, trial procedures,
and defences in criminal law. These implica-
tions have been acknowledged in the rights
community but have yet to be fully consid-
ered, and we will leave them aside for now.
23
2.2 ‘Risk of Harm’, Recovery and the
Right to Refuse Treatment
Much of the concern in CRPD scholarship
has been to ensure a right of persons with dis-
abilities to refuse treatment. An important
part of the CRPD’s remit is to dismantle dis-
criminatory approaches to treatment for per-
sons with disability. Laws that require people
with psychosocial disabilities, as an indenti-
fied class, to submit to forced treatment
where are they thought to be at risk of harm
to themselves or others, fall within this cate-
gory. This emphasis on autonomy and an
equal right to refuse treatment has also been
taken up by the broader recovery movement.
‘Recovery’ is a relatively new, rights-
based paradigm embraced in mental health
policy that emphasises the importance of
empowerment, autonomy, self-determination
and the importance of risk taking.
24
Recovery
writers point out that traditional mental health
systems address risk in a way that unreason-
ably restricts the choices and opportunities of
many people who have severe mental illness.
Risk-based approaches have been criticised
within the recovery paradigm, for failing to
acknowledge the ‘dignity of risk’ that human
beings experience in making personal deci-
sions, and that persons with disabilities
should not be excluded from this.
25
In addition to scepticism about the value
of protecting people from risks to themselves,
there is an emerging critique of using risk of
harm to others as basis for compulsory treat-
ment. Minkowitz has pointed out that compil-
ing risk factors for harm to others has never
been considered adequate justification for
preventative detention in any other societal
grouping.
26
These concerns have been taken up by the
Office of the UN High Commissioner for
Human Rights, who has also rejected the risk
that mentally ill people might pose to them-
selves or others as a valid basis for involun-
tary detention. The High Commissioner has
stated that:
Legislation authorizing the institutionaliza-
tion of persons with disabilities on the
grounds of their disability without their free
and informed consent must be abolished.
This must include the repeal of provisions
authorizing ... the preventive detention of
persons with disabilities on grounds such as
the likelihood of them posing a danger to
themselves or others, in all cases in which
such grounds of care, treatment and public
security are linked in legislation to an appar-
ent or diagnosed mental illness.
27
2.3 The Critique of Psychiatric Risk
Assessment and the Right to Refuse
Treatment
Normative arguments against a harm-preven-
tion basis for mental health law have been
bolstered by research demonstrating the limi-
tations of psychiatric risk assessment.
28
This
research has shown that any attempt to pre-
vent suicide or serious violence by basing
involuntary treatment on risk assessment will
be futile. This is a direct consequence of the
very low prevalence of suicide and serious
violence amongst people with mental illness.
Supporters of risk assessment have hoped
that it would allow involuntary treatment to
be targeted at those who benefit from it, while
sparing from coercion those who would not
benefit. However, the low prevalence of
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suicide and serious violence means that any
‘high-risk’ group will always consist over-
whelmingly of individuals who would never
have experienced these outcomes, while the
much larger ‘low-risk’ group will always
contain many, many individuals who will go
on to harm themselves or others. As a conse-
quence of these factors, no study has ever
shown that risk assessment is able to prevent
suicide or serious violence, and none is ever
likely to.
29
In addition, prevailing harm-prevention
models fail to adequately account for the
harms associated with hospitalisation itself.
Such harms include deprivation of liberty,
fear of the stigma associated with involuntary
treatment,
30
the experience of physical and
verbal aggression and even violent assault on
psychiatric wards,
31
and the possibility that
hospitalisation itself might precipitate some
suicides.
32
Taken together, this scholarship under-
mines traditional harm-prevention models for
mental health law in which forced inpatient
treatment is justified solely on the basis of
protecting mentally ill people and the com-
munity. As Bach and Kerzner write ‘It is time
to fully extend dignity of risk to people with
disabilities, and constrain their choices only
to the extent that we constrain the choices of
others’.
33
3. The CRPD and the Right to Access
Treatment
Rights-based mental health legislation must
ensure equal treatment of persons with dis-
abilities. This includes equal protection of all
rights, including both the right to refuse treat-
ment and to access treatment.
34
In this
respect, in addition to the general ‘right to
health articulated in the Universal Declara-
tion of Human Rights
35
and the International
Covenant on Economic, Social and Cultural
Rights,
36
the CRPD requires in Article 25(b)
that States Parties ’[p]rovide those health
services needed by persons with disabilities
specifically because of their disabilities,
including early identification and intervention
as appropriate, and services designed to mini-
mize and prevent further disabilities’.
The least controversial implication of this
provision is that States Parties must work to
provide mental health services as widely as
possible, to be accessed on a voluntary basis
in the community, and must bolster the social
conditions by which mental health is opti-
mised for all of us. This includes the provi-
sion of housing, training and opportunities
for employment.
37
In addition Article 25 is
linked with the CRPD’s requirements for
‘reasonable accommodation’
38
and support to
assist people to make decisions about treat-
ment that respect their rights, will and
preferences.
However, Article 25 also raises some
more difficult questions in terms of a ‘right’
to substituted decision-making, or even invol-
untary treatment, in cases where decision-
making capacity is lost and where, even with
maximal support, a person is unable to under-
stand or weigh information about treatment
decisions, or is unable to express preferences
with regard to treatment in an intentional
way. This concern becomes acute where seri-
ous adverse consequences are in the offing. In
circumstances where a person’s ability to live
at home is compromised by increasingly
threatening behaviour, or where a person is
experiencing violence, loss of property, seri-
ous illness or injury, it is difficult to know
what a right to dignity, or to Article 17’s right
to ‘physical and mental integrity’ actually
requires.
Outside the disability context, the com-
mon law makes provision for emergency
treatment where a person is unable to give
consent including giving a power to over-
ride resistance if treatment is deemed to be in
the person’s best interests.
39
In less urgent
circumstances, courts are able to make orders
for treatment under the parens patriae juris-
diction.
40
These laws are commonly used
when patients lose capacity due to illness or
injury and substituted consent is required to
give (or to withhold) treatment. In addition,
752 S. M. Callaghan and C. Ryan
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Australian guardianship schemes permit con-
sent to be given by substituted decision-mak-
ers where a person is unable to provide their
own consent.
We have previously argued that harm-
based mental health laws fail to provide an
equal right to access treatment for persons
who are incapacitated by mental illness (as
compared with other patients) where such
persons are not thought to be at sufficiently
high risk of harm to meet the relevant legisla-
tive test for involuntary admission.
41
How-
ever, it also true that existing models,
particularly guardianship models, dispropor-
tionately affect people with disabilities, are in
many respects are overly paternalistic, and
fail to offer patients a right to participation in
decisions, or to dignity of risk.
The tension law makers must grapple
with exists between two poles. On the one
hand, treatment without consent, particularly
in the face of a present objection to it, is
clearly invasive and restricts the person’s lib-
erty. On the other hand however, treatment
without consent can be facilitative, in that it
may provide access to urgent or beneficial
treatment in circumstances where it otherwise
could not be given because valid consent can-
not be obtained. This tension gives rise to the
following questions: is involuntary treatment
ever permissible in a rights-based mental
health system? Is it ever actually necessary
and if so under what circumstances? These
issues are explored in the next sections.
4. Is Involuntary Treatment Permissible
under the CRPD?
Involuntary treatment is a form of substituted
decision-making, because someone other
than the person being treated gives consent.
Substituted decisions in the general sense do
not necessarily involve ‘involuntary
treatment’. Treatment is involuntary (or
‘coercive’) where the person objects to treat-
ment and the substituted decision overrides
those objections. A substituted decision can
also occur where a person agrees to have
treatment but someone else supplies consent,
because the person being treated lacks
capacity.
While it is clear that the CRPD requires
States Parties to implement supported deci-
sion-making schemes for persons with dis-
abilities, whether or not there is a valid
continuing role for involuntary treatment or
any form of substituted decision-making
within such schemes is still being debated.
The CRPD itself is silent on the issue, but
there is a strong view among some in the
human rights community that Article 12(2)
prohibits all substitute decision-making for
people with mental illness, and that Articles
14 and 17 specifically prohibit involuntary
detention and psychiatric treatment. The
ongoing debate reflects extensive discussion
on the issue that occurred during the drafting
process.
42
Statements by the Office of the United
Nations High Commissioner for Human
Rights are examples of this strong reading.
43
These statements indicate that if mental ill-
ness is even part of the criteria for involun-
tary detention, it is not permitted by the
CRPD. In addition, in its reviews of the com-
pliance of ratifying countries the United
Nations Committee on the Rights of Persons
with Disabilities has indicated an expectation
that states should develop laws and policies
to ‘replace regimes of substitute decision-
making by supported-decision-making’
44
and
has repeatedly expressed concern about
involuntary treatment. These statements have
been steadily increasing in strength. Most
recently, in its report on Australian compli-
ance, the Committee recommended that:
Australia should repeal all legislation that
authorises medical interventions without
free and informed consent of the persons
with disabilities concerned, and legal provi-
sions that authorize commitment of individ-
uals to detention in mental health services,
or the imposition of compulsory treatment
either in institutions or in the community
via Community Treatment Orders
(CTOs).
45
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The Committee also recommended that
Australia ‘review the interpretative declara-
tions on art. 12, 17 and 18 in order to with-
draw them’.
46
This refers to the Australian
government’s declared view that the Conven-
tion permits substituted decision-making
arrangements ‘where such arrangements are
necessary, as a last resort and subject to safe-
guards’, and that the Convention ‘allows for
compulsory assistance or treatment of per-
sons, including measures taken for the treat-
ment of mental disability’ where such
treatment is necessary as a last resort.
47
While these statements of the United
Nations High Commissioner and the Disabil-
ities Committee are highly significant, inter-
pretation of the CRPD is still in its early
stages, and there cannot be said to be a settled
view on the meaning of its provisions.
Increasingly, as governments begin the pro-
cess of translating their CRPD obligations
into law, the field of interpretation is being
opened up and law makers, carers, psychia-
trists, service providers, governments, users
of psychiatric services and the community at
large are developing their own interpreta-
tions.
48
Some of these new interpretations
include degrees of provision for substituted
decision-making and involuntary treatment,
49
and it is not clear that all versions of substi-
tuted decision-making or involuntary treat-
ment will fall foul the provisions of the
CRPD.
The remainder of this paper examines
what CRPD-compliant substituted decision-
making and involuntary treatment schemes
might look like.
5. Does Decision-making Capacity Still
Have a Role in Rights-based Models of
Care?
A central feature of the CRPD is its focus on
non-discrimination. The law has traditionally
given the right to autonomy paramount status,
and the common law is clear that all things
being equal, an autonomous decision must be
allowed to stand regardless of any likelihood
of harm to self. The CRPD rightly takes aim
at provisions in mental health law that deny
this right to persons with mental illness. How-
ever, the law has not accorded the right to
autonomy without exception and where a
less-than-autonomous decision presents itself,
other ethical considerations must be weighed
in the balance. The test for ‘autonomy’ in
legal terms is the test for legal capacity
which traditionally has focussed on the ability
to make a decision. CRPD scholarship has
made good arguments that this is overly
restrictive and that an individual’s ‘will and
preferences’ must be respected more broadly.
Whether or not there is a residual role for the
concept of decision-making capacity is still
being worked out.
We argue that decision-making capacity
is still relevant as a tool for sorting refusals of
treatment. Decision-making capacity might
also be useful for creating different levels of
legal capacity, in which different levels of
support and external oversight are required.
50
First though, we must address the view that
any reference to decision-making capacity in
mental health law is contrary to the require-
ments of the CRPD. Dhanda has argued in
this respect that predicating legal capacity on
decision-making ability ‘privileges certain
types of people’ and is discriminatory stan-
dard for granting legal autonomy.
51
She and
others contend that decision-making ability
should be abandoned as a requirement for
legal capacity, and that true non-discrimina-
tion requires legal recognition of the
‘universal capacity’ of all persons. Under a
universal capacity model, all persons who are
able to express a will are entitled to have their
will enforced in law.
52
This view has been echoed in recent com-
ments by the Disabilities Committee. The
Committee has noted its ‘concerns’ that
‘under Australian law, a person can be sub-
jected to medical interventions against his or
her will, if the person is deemed to be incapa-
ble of making or communicating a decision
about treatment’.
53
In addition, having clearly
been frustrated by what it sees as a ‘a general
754 S. M. Callaghan and C. Ryan
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misunderstanding of the exact scope of the
obligations of States Parties under Article
12’, the Committee released a draft General
Comment on Article 12
54
and equal recogni-
tion before the law, which has since been fol-
lowed by a final General Comment. The
Committee stated in that document that
‘Under article 12 of the Convention, per-
ceived or actual deficits in mental capacity
must not be used as justification for denying
legal capacity’
55
and that ‘Legal capacity
means that all people, including persons with
disabilities, have legal standing and legal
agency simply by virtue of being human.’
56
All this leaves us in rather a difficult posi-
tion in respect of at least some refusals of
treatment. While universal capacity has the
advantage of broad inclusivity, as a theory of
autonomy it is still comparatively new and in
many respects remains underdeveloped.
Equating autonomy with a bare expression of
will gives rise to serious practical and ethical
concerns, that currently at least, the theory
has no response to. For example, what if an
expression of will is based on a complete mis-
interpretation of the relevant facts, brought on
by psychosis? What if, for the same reason, a
person clearly fails to grasp important conse-
quences? What if a person clearly intended a
statement of will made before (say, in the
form of an advance care plan) to apply now
even though it conflicts with a current expres-
sion of will? These are not unusual situations.
Rather, they are the every-day dilemmas of
doctors charged with deciding whether or not
to admit people to hospital. And the urgency
of these questions is compounded when the
risks of non-treatment are high.
57
The crux of the problem appears to be that
while autonomy theory in general is concerned
with the concept of ‘agency’,
58
theories of uni-
versal capacity do not yet agree on the extent
to which expressions of ‘will’ and ‘preference’
must also involve this characteristic and how it
could be discerned. Without further attention
being given to the requirement of ‘agency’ in
the expression of will and preference, it is not
clear that ‘respecting my will and preference’
can mean anything more that ‘do what I say I
want right now’. Such an impoverished
account of autonomy is presumably not what is
intended by those advocates of universal
capacity, but without at least some qualifiers,
the notion of universal capacity gives us very
little to work with to nuance this rather blunt
result. This is particularly troublesome in the
context of some forms of mental disorder.
Compulsions, phobias and addiction have
known volitional effects (literally, affects on
the will), while others such as anorexia and
depression affect values and ‘choices’, and still
others, including psychotic illness, impact the
understanding and processing of information
upon which a ‘will’ is formed.
59
Whether all
statements about ‘what I want’ are meaningful
acts of ‘will’ is a difficult question in this con-
text, and too strong an interpretation may yield
a rather hollow rendering of the principle of
‘respect for autonomy’.
60
In fact remarkably little attention has been
paid to the meaning of ‘will’ and ‘preferences’
or for that matter how we ‘respect’ them, as
the terms appear in the CRPD. The Committee
for the Rights of Persons with Disabilities draft
general statement on Article 12 contains almost
nothing on this. It is not clear, for example,
whether the Committee believes that all expres-
sions of resistance to treatment should to be
taken to be expressions of ‘will’, and whether,
if we are bound to respect will and preferences,
resistance to treatment in any context can ever
be overridden. It would be surprising if the
Committee’s intention were to prohibit all
resisted treatment regardless of the circumstan-
ces. Does anyone actually want to prohibit giv-
ing first aid to a person with a delirium, to take
just one example? On the other hand if that is
the Committee’s view, it would represent a rad-
ical change in the state of the current law with
significant ethical implications beyond the right
to respect for autonomy.
61
This has been
explored, though not justified, in the
Committee’s public statements to date.
Bach and Kerner, by contrast, give a
detailed account of their view of ‘will’. On
their account, a person with severe mental
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disorder may lack the ability to indicate a
clear intention, but may still show evidence
of ‘will’ such as the ‘will’ to live, to avoid
pain, to seek pleasure, safety, or security.
62
A
supporter may use evidence of will to guide
individual decisions about treatment. This
suggests that giving effect to a person’s will,
say ‘to live’ may involve some overriding of
immediate resistance, such as to the insertion
of a catheter to deliver needed medication.
But once again we are faced with sorting
expressions of ‘will’ (that must be respected)
from expressions of something less (which
can be overridden), and the means offered for
doing this are somewhat vague.
At this point it is worth looking again at
how lawmakers have resolved these questions
in the past, because the fact is, they are not
new. After several decades of judicial and gov-
ernmental attention, a settled view had
emerged that, of the options for identifying
autonomous decisions, a capacity threshold
which is based on the ability of a person to do
the basic tasks of decision-making (a
‘functional test’), is preferable to alternatives
that focus on the outcome of the decision
(whether the decision itself is a good or bad) or
the status of a decision maker (such as whether
or not the person has a disability per se,orif
they should be considered ‘vulnerable’
63
).
64
If
those interpreting the CRPD are going to claim
that it allows a person’s resistance to treatment
to be overridden ever they must define a
point for doing so that improves on this.
Of the current options, the best approach
may yet be to utilise the existing common
law model, with some significant modifica-
tions that take into account the strongest
criticisms from disability rights. These will
include allowing for the achievement of
autonomy with support. This is undoubtedly
important for persons with a disability who
might otherwise unfairly be denied legal
capacity, and is a crucial element of achiev-
ing the requirements of the CRPD.
In addition, all persons should be entitled
to a presumption of decision-making capacity,
and it should only be possible to displace that
presumption in the presence of appropriate
triggers. Reasonable triggers in the context of
mental illness might include evidence of seri-
ous adverse effects, such as significant suffer-
ing, loss of property, failure to provide for the
necessities of life, serious illness or injury,
violent or self-harming behaviour,
65
or choices
that seem inconsistent with the person’s usual
values, wishes and preferences.
Where a person is found to lack capacity
even with support, any form of substituted
decision-making must respect the person’s
rights, will and preferences. How this can be
done is considered next.
6. Provision for Substituted Decisions,
Including Involuntary Treatment,
Subject to Safeguards
Nothing we have said so far necessarily indi-
cates that provision for substituted decision-
making will be necessary where a person is
found to lack capacity. We have argued that it
remains useful to conceptualise legal capacity
with regard to a person’s ability to make a
decision. Using this conceptualisation, legal
capacity can be viewed as existing on a contin-
uum from completely autonomous decision-
making ability, through degrees of interdepen-
dence and need for supported decision-making.
Eventually though, as the need for support con-
tinues to grow, a point may be reached where,
even with a support, a person is unable to
understand information that is material to a
decision or unable to use and weigh that infor-
mation or appreciate its consequences.
One approach to tackling this far end of
the continuum is to suggest that, even in veg-
etative states or coma,
66
we can persist with
supported decision-making rather than substi-
tuted decision making it is just that the
amount of support needed might amount to
say, 99% or even 100%.
67
The chief difficulty
with this approach is that these words are not
merely symbolic. Rather, they are the basis of
legal concepts that will describe the rights
and duties attaching to real-life situations,
and experience suggests that if one is
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interested in preserving rights and ensuring
accountability, then it is better to describe the
situation as accurately as possible. Certainly
the notion of say, a 100% support, strains
ordinary understandings of what ‘support’
means, and in so doing seems to enter the
dangerous territory of legal fiction.
68
If at
some stage a decision is, in reality, made for
a person rather than with them, it is better to
acknowledge that. The former involves a far
greater exercise of power than the latter, and
safeguards should be in place to ensure that it
is done appropriately.
We believe the provisions of Article 12(4)
open a degree of scope for acknowledging the
reality of substituted decisions in order that
‘measures that relate to the exercise of deci-
sion-making capacity’ include ‘appropriate
and effective safeguards to prevent abuse’.
Specifically, Article 12(4) requires that such
safeguards:
respect the rights, will and preferences
of the person;
are free of conflict of interest and
undue influence;
are proportional and tailored to the per-
son’s circumstances; and
apply for the shortest time possible.
We suggest that a distinction should be
maintained between supported decisions
(which should be the primary mode) and
substituted decisions (which will sometimes
be unavoidable) because the latter will
require a higher degree of oversight to ensure
that rights, will and preferences are respected
and that support is free of conflict of interest
and undue influence.
Separating the categories of supported
decision-making and substituted decision-
making will also help to ensure that safe-
guards are ‘proportional and tailored’ to the
person’s situation. Compulsory independent
oversight would, we suggest, be necessary
and appropriate in the context of substituted
decisions, but is likely to be overly intrusive
in the case of ordinary supported decision-
making. And substituted decision-making
should be reviewed to ensure that it lasts ‘for
the shortest time possible’.
Returning now to the requirement that
substituted-decision must respect rights, will
and preferences it is clear that current
guardianship models that base substituted
decisions on objective ‘best interests’ assess-
ments will be an inappropriate model for
rights-based decision making in mental
health. The Victorian Law Reform Commis-
sion has suggested that the requirements of
the CRPD would be best achieved by imple-
menting a qualified ‘substituted judgement’
test for adults who had lost capacity and for
whom a substituted decision needed to be
made. The rationale involved in substituted
judgement is different to traditional ‘best
interests’ tests that have been used in com-
mon law substituted decision-making and
guardianship schemes. The ‘best interests’
formulation has been criticised for being
overly paternalistic in that it utilises objective
opinions usually those of doctors and/or
care givers about what is good for a person
when opinions might differ, and moreover,
may not reflect the views that the person held
before he or she lost decision-making capac-
ity.
69
By contrast, substituted judgement is
supposed to implement the decision ‘the per-
son would make themselves’ if they were
able to do so. According to the Commission:
Making the decision the person would make
themselves requires substitute decision
makers to consider the expressed wishes of
the person both past and present and to
place these wishes in the context of the per-
son’s current circumstances and the deci-
sion that needs to be made.
70
The Commission stated that in its view
‘substituted judgment should be the starting
point and the paramount consideration for sub-
stitute decisions’.
71
However, substituted
judgement is not without its own problems.
Certainly it is not a new concept, having,
alongside ‘best interests’, at least two centu-
ries of patchy history in the parens patriae
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jurisdiction in England.
72
This history, in com-
bination with its more modern incarnation in
United States health law,
73
gives some pause
for reticence about the limits of this prescrip-
tion in respecting ‘will and preferences’.
74
Perhaps the most important requirement
in exercising substituted judgement is that
evidence of a person’s will and preference
must be available. Evidentiary problems can
arise where a person is experiencing an epi-
sode of mental illness for the first time, and
has never expressed an opinion on the issue
being considered, or where circumstances
have changed and the person’s preferences
relevant to the new situation are not clear. In
these cases, decision-makers may resort to
attempting to intuit what the person would
have wanted if they had capacity a process
fraught with difficulty. In a review of the
operation of the substituted judgement test in
the English common law, Louise Harmon
argues that when judges employed this intui-
tive ‘divining’ technique in the parens pat-
riae jurisdiction, they tended to find that the
person would have wanted what a ‘generic,
reasonable lunatic [sic]’ would have wanted.
Using this standard, substituted judgements
then seemed to reflect the judges‘ own incli-
nations about what a sensible, or ’reasonable’
decision might be.
75
This concern about the malleability of the
substituted judgement test, even when exer-
cised by decision-makers who are in a closer
relationship to the person than a judge might
be, and who are doing their best to determine
what a person might have wanted, was also
acknowledged by the Victorian Law Reform
Commission. The Commission noted that:
‘Best interests’ decision-making is often
criticised for inviting a decision maker to do
what they think would be best, thereby
imposing their own values on the person. It
is also possible for substituted judgment to
be applied in this way because a decision
maker could justify imposing their own val-
ues on a person on the basis that ‘this is
really what the person would have
wanted’.
76
While most of the people with mental ill-
ness who experience fluctuating capacity will
be able to express wishes and preferences
most of the time, there remains a risk that in
the act of interpreting preferences, the more
interpretation is required, the more the per-
sonality of the interpreter is involved in the
decision. Where this is the case the decision-
making process should be subject to external
review to ensure that the preferences of the
person are protected as far as possible, as
required by the CRPD.
Even taking these concerns into account
however, substituted judgement has an
advantage over other bases for making substi-
tuted decisions, in that the perspective of the
person is the focus of deliberations. It is per-
haps best to view substituted judgement as an
imperfect, but nonetheless preferable, means
of translating the requirements of Article 12
into practice. However, to acknowledge that,
it requires some adjustments to bolster pro-
tection of the ‘rights, will and preferences’ of
the person on whose behalf a decision is
being made.
First, in the absence of clear evidence of a
person’s wishes, substituted judgement is
likely to be no more than another worrying
legal fiction. We are better off recognising
and describing reality and dealing with the
consequences, than calling something what
we hope it is and in the process putting its
problems out of reach. In rare circumstances
where we simply do not know what a person
‘would have wanted if they had capacity’
then we will need to have recourse to an
objective standard for a substituted decision
that will produce an acceptable outcome in
the circumstances. Such a standard must aim
to give effect to the wishes of the person to
the extent that they are known, including a
consideration of all currently stated
preferences.
Secondly, substituted judgement may
sometimes point to a course of action that
would be manifestly damaging to the person
involved. Substituted decision-makers may
be understandably reluctant to implement
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substituted judgements of this sort. Damaging
another person especially a person in our
care is not of the same experiential or
moral quality as damaging ourselves. Even if
I am well known to prefer spending money
without regard to the consequences, or I am
notoriously unconcerned about my physical
wellbeing, my substitute decision-maker will
most likely still be anxious about implement-
ing what he or she suspects I would have
done, if the decision had been mine alone.
This anxiety must be increased if there should
be any doubt about what I would have done.
Just such ambivalence is evident in this
passage from Victorian Law Reform
Commission’s Report:
There may be circumstances where a strict
application of the substituted judgment prin-
ciple leads to unacceptable harm to the per-
son. An example might be a situation where
a person has always been adamant that, no
matter what the circumstances, they wish to
remain in their own home for the rest of
their life. Even in circumstances of
advanced dementia, it might be clear that
the person would have wanted to remain at
home despite the risks to their safety and
wellbeing, but a substitute decision maker
might determine that this would involve
unacceptable risk of harm to the person.
The Commission believes that there must be
a point often difficult to determine in
practice at which it is permissible for a
substituted decision maker to move away
from a substituted judgment approach in
order to protect a represented person from
harm.
77
With these concerns in mind, the Com-
mission recommended an approach in which
substituted judgment is ultimately subordi-
nate to an objective standard of care. The
Commission’s formulation was that ‘the per-
son’s known will and preferences must be the
paramount consideration’, however:
[T]he overarching goal of substituted deci-
sion makers should be to ‘promote the
personal and social wellbeing’ of the repre-
sented person.
78
The function of this objective element
would appear to be to determine whether a
decision reached by substituted judgement is
acceptable, or should be overridden by a deci-
sion that is better suited to the goal of promot-
ing the person’s wellbeing. This form of
words was carefully crafted to avoid the term
‘best interests’, although a decision which
moves away from a known personal prefer-
ence in order to promote a person’s ‘well
being’ seems remarkably close to the rejected
formulation, in substance if not in form.
We would be extremely cautious about
any suggestion that substituted decisions
must be subject to the need to ‘protect a rep-
resented person from harm’ for the reasons
we have outlined. It would be troubling if a
person’s clearly expressed will and prefer-
ence, such as might be laid out in a valid
advance directive, could be set aside merely
because it was not, in the view of others, in
the person’s interests. To do so seems uncom-
fortably close to the old-style paternalism
eschewed by the drafters of the CRPD.
Nevertheless, in practice, there may need
to be provision made for an objective stan-
dard in some circumstances where a person’s
apparent preferences will lead to harm. We
suggest that this will arise, not to prevent
harms per se, but where despite the person
having expressed a preference for a particular
course of action, there is no indication that he
or she has understood and consented to the
harms which will occur as a consequence. It
will also occur where the person’s preferen-
ces are not ascertainable by any means, or
when previously expressed wishes are not
clearly applicable in the circumstances. The
general principle must be that a person in a
substituted decision-making arrangement is
still entitled to dignity of risk and where
harms are understood, a preference should be
given effect to.
Finally, and again consistent with the pro-
visions of the CRPD, a substituted decision
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making regime would be needed to ensure
that any substituted decisions made ‘apply
for the shortest time possible and are subject
to regular review by a competent, indepen-
dent and impartial authority or judicial
body’.
79
This would require regular and
timely review by the administering tribunal,
of all substituted decisions taken under men-
tal health laws.
80
7. Conclusion
Compliance with the CRPD requires, first and
foremost, a shift from substituted decision-
making schemes to supported decision-mak-
ing schemes in mental health. This will
involve fundamental changes in the tradi-
tional structure of mental health acts. How-
ever we have argued that the CRPD also
permits a role for substituted decisions and
involuntary treatment in certain limited cir-
cumstances. Substituted decision-making in
the form of involuntary treatment will, we
suggest, be permissible where people have
been found to lack decision-making capacity
in the presence of certain critical triggering
circumstances, and this remains so despite
the provision of optimal support. In addition,
the decision-making process must require
that the rights, will and preferences of the
person are respected. In addition, safeguards
must be in place to ensure that substituted
decisions are free of conflict of interest and
undue influence; are proportional and tailored
to the person’s circumstances; and apply for
the shortest time possible.
Furthermore, we argue that failure to
acknowledge the reality of substituted deci-
sion-making in some circumstances places
the rights of mentally ill people at risk. Fail-
ure to fully account for the spectrum of deci-
sion-making processes that may occur in the
mental health context restricts the ability of
lawmakers to ensure that appropriate safe-
guards are in place. Safeguards such as tribu-
nal oversight of substituted decisions would
be overly intrusive in the case of ordinary
supported decision-making but would be an
indispensable protection for the rights of per-
sons who are the subject of substituted deci-
sion-making, and a separate category of
oversight for substituted decisions will be
necessary to ensure that such interventions
are ‘appropriate and tailored’ to an individu-
al’s circumstances as required by the CRPD.
Notes
1. Convention on the Rights of Persons with
Disabilities, opened for signature 30 March
2007, (entered into force 3 May 2008).
2. Christopher James Ryan, ‘One Flu Over the
Cuckoo’s Nest: Comparing Legislated Coer-
cive Treatment for Mental Illness with that
for Other Illness’ (2011) 8 Journal of Bioeth-
ical Inquiry 87.
3. Office of the United Nations High Commis-
sioner for Human Rights, Annual Report of
the United Nations High Commissioner for
Human Rights and Reports of the Office of
the High Commissioner and the Secretary-
General: Thematic Study by the Office of the
United Nations High Commissioner for
Human Rights on enhancing awareness and
understanding of the Convention on the
Rights of Persons with Disabilities, Human
Rights Council, 10th Session, U.N. Doc. A/
HRC/10/48 (2009).
4. See Committee on the Rights of Persons with
Disabilities, Concluding observations on the
initial report of Australia, adopted by the Com-
mittee at its tenth session (213 September
2013); Committee on the Rights of Persons
with Disabilites, Concluding observations of
the Committee on the Rights of Persons with
Disabilities. Tunisia. (United Nations 2011);
Tunisia; Committee on the Rights of Persons
with Disabilities, Concluding observations of
the Committee on the Rights of Persons with
Disabilities. Spain. (2011).
5. Committee on the Rights of Persons With
Disabilities, General Comment No 1, Article
12: Equal Recognition before the Law, Elev-
enth Session 31 March11 April (2014), [7],
[9] and [12]. This is a radical departure from
the existing common law which permits treat-
ment to be given without consent where a per-
son lacks decision-making capacity. See
Secretary, Department of Health and Commu-
nity Services v JWB and SMB [1992] HCA
15, 175 CLR 218; Hunter v A [2009] NSWSC
761, [31][32] (J McDougall). The doctrine
of necessity will also justify a degree of
760 S. M. Callaghan and C. Ryan
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coercion of an incompetent patient who is
refusing treatment. As LJ Butler-Sloss noted
in Re MB ‘[t]he extent of force or compulsion
which may become necessary can only be
judged in each individual case and by the
health professionals. It may become for them
a balance between continuing treatment which
is forcibly opposed and deciding not to con-
tinue with it’. Re MB [1997] 2 FCR 514.
6. After an extensive review process, the new Tas-
manian Mental Health Act (2013) commenced
in February 2014, and the Victorian Mental
Health Act (2014) was recently passed by the
Victorian Parliament. A new Mental Health
Bill was introduced in to the Western Austra-
lian Parliament in December 2013. In addition,
reviews have been undertaken in the Australian
Capital Territory and New South Wales, with
an upcoming review announced for Queens-
land. See Mental Health Commission (Western
Australia), ‘Mental Health Legislation’
<www.mentalhealth.wa.gov.au/mentalhealth
_changes/mh_legislation.aspx>accessed 25
August 2014; Queensland Health, ‘Review of
Mental Health Act 2000’ <www.health.qld.
gov.au/mentalhealth/news/MHA2000-review.
asp>accessed 25 August 2014; ACT Govern-
ment Health Directorate, ‘Review of the Men-
tal Health (Treatment and Care) Act, 1994’
<www.health.act.gov.au/consumer-
information/community-consultation/review-
of-the-mental-health-treatment-and-care-act-
1994/>accessed 25 August 2014; NSW Min-
istry of Health Mental Health and Drug &
Alcohol Office (MHDAO), ‘Review of the
NSW Mental Health Act 2007’ <www.health.
nsw.gov.au/mhdao/pages/review-of-mh-act-
2007.aspx>accessed 25 August 2014; Depart-
ment of Health (Victoria), ‘Victoria’s New
Mental Health Act’ <www.health.vic.gov.au/
mentalhealth/mhactreform/>accessed 25
August 2014.
7. In the NSW review for example, there were
mixed views on supported decision-making.
Twenty-six out of 95 submissions on the
issue identified the need for review of a deci-
sion not to admit a person as an involuntary
patient as a need for reform. These submis-
sions came from medical peak bodies, Local
Health Districts, government departments
(including the police), carer and consumer
groups, Legal Aid and the Mental Health
Review Tribunal. NSW Ministry of Health,
Review of the NSW Mental Health Act 2007.
Report for NSW Parliament: May 2013.
Summary of Consultation Feedback and
Advice (2013), 1617, 24.
8. Michael Bach and Lana Kerzner, A New Par-
adigm for Protecting Autonomy and the
Right to Legal Capacity (Prepared for the
Law Commission of Ontario) (2010), 18.
9. There is an argument also that some persons
who have recently experienced a first episode
of mental illness, and those who have experi-
enced a single or short term infrequent epi-
sodes may either not be covered by the
CRPD definition or may not identify with the
language of disability. See George Szmukler,
et al., ‘Mental Health Law and the Un Con-
vention on the Rights of Persons with Dis-
abilities’ (2014) 37 International Journal of
Law and Psychiatry 245.
10. Persons with mental illness can and often do
retain functional decision-making capacity
independently of support. See eg, Paul Appel-
baum and Thomas Grisso, ‘The MacArthur
Treatment Competence Study. I: Mental Ill-
ness and Competence to Consent to
Treatment’ (1995) 19 Law and Human
Behavior 105; David Okai, et al., ‘Mental
Capacity in Psychiatric Patients: Systematic
Review’ (2007) 191 The British Journal of
Psychiatry 291; Gareth S Owen, et al.,
‘Mental Capacity to Make Decisions on
Treatment in People Admitted to Psychiatric
Hospitals: Cross Sectional Study’ (2008) 337
British Medical Journal 448; Jeremy J Skip-
worth, et al., ‘Capacity of Forensic Patients to
Consent to Treatment’ (2013) 47 Australian
and New Zealand Journal of Psychiatry 443.
11. This is the case under all current Australian
mental health statutes with the notable
exception of the Tasmanian Mental Health
Act 2013. Commencement of this Act has
been delayed, but is anticipated some time in
2014. See Mental Health Act 2007 (NSW) s
14; Mental Health Act 1986 (Vic) s 8; Mental
Health Act 2009 (SA) ss 21, 25, 29; Mental
Health Act 2000 (Qld) s 14. Mental Health
Act 1996 (WA) s 26; Mental Health and
Related Services Act 1998 (NT) s 14; Mental
Health (Treatment and Care) Act 1994
(ACT), 28. For analysis see Sascha Mira
Callaghan and Christopher James Ryan,
‘Rising to the Human Rights Challenge in
Compulsory Treatment New Approaches
to Mental Health Law in Australia’ (2012)
46 Australian and New Zealand Journal of
Psychiatry 611.
12. OHCHR ‘Thematic Study’ (n 3) [48].
13. Peter Bartlett, ‘Implementing a Paradigm
Shift: Implementing the Convention on the
Rights of Persons with Disabilities, in the Con-
text of Mental Disability Law’ in Center for
Rights-Holder 761
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Human Rights & Humanitarian Law Anti-Tor-
ture Initiative Torture in Healthcare Settings:
Reflections on the Special Rapporteur on
Torture’s 2013 Thematic Report (2014).
14. See eg, Bach and Kerzner, ANewParadigm
for Protecting Autonomy (n 8); Gerard Quinn,
‘Personhood & Legal Capacity Perspectives
on the Paradigm Shift of Article 12 CRPD’
(HPOD Conference, Harvard Law School)
<www.nuigalway.ie/cdlp/staff/gerard_quinn.
html>accessed 25 August 2014.
15. Secretary of the Department of Health and
Community Services v JWB and SMB (1992)
175 CLR 218 (‘Marion’s Case’), [8] (Mason
CJ, Dawson, Toohey and Gaudron JJ); Re
MB [1997] 2 FCR 514; Hunter and New
England Area Health Service v A [2009],
[9][15] (McDougall J).
16. Above (n 11).
17. Bernadette McSherry, ‘Legal Issues Legal
Capacity under the Convention on the Rights
of Persons with Disabilities’ (2012) 20 Jour-
nal of Law and Medicine 2; European Com-
missioner for Human Rights, Who Gets to
Decide? Right to Legal Capacity for Persons
with Intellectual and Psychosocial Disabil-
ities (2012) <https://wcd.coe.int/ViewDoc.
jsp?idD1908555>accessed 25 August 2014;
Genevra Richardson, ‘Mental Disabilities
and the Law: From Substitute to Supported
Decision-Making?’ (2012) 65 Current Legal
Problems 333; Tina Minkowitz, ‘United
Nations Convention on the Rights of Persons
with Disabilities and the Right to Be Free
from Nonconsensual Psychiatric Inter-
ventions’ (2006) 34 Syracuse J Int‘l L &
Com 405; Eilion
oir Flynn and Anna Arstein-
Kerslake, ’Equal Recognition Before the
Law: Exploring a Support Model of Legal
Capacity (10 March 2012)’ (2012) <www.
nuigalway.ie/disability-rights/downloads/
kent_presentation.docx>
18. Quinn, ‘Personhood & Legal Capacity
Perspectives’ (n 14).
19. There is no single common law test for
capacity, however these abilities are the fea-
tures now most commonly described. Hunter
vA[2009], [25] (McDougall J); Re MB
[1997], 553554 (Butler-Sloss LJ).
20. Bach and Kerzner, A New Paradigm for Pro-
tecting Autonomy (n 8, 84).
21. For an explanation of relational autonomy gen-
erally, see Catriona Mackenzie and Natalie
Stoljar, Relational Autonomy: Feminist Per-
spectives on Autonomy, Agency, and the Social
Self (OUP on Demand 2000). For a description
of its influence on the concept of legal capacity
and supported decision-making for persons
with disabilities, see Bach and Kerzner, ANew
Paradigm for Protecting Autonomy (n 8, 40
and 84); Piers Gooding, ‘Supported Decision-
Making: A Rights-Based Disability Concept
and its Implications for Mental Health Law’
(2012) Psychiatry, Psychology and Law 435;
Australian Law Reform Commission, Equal-
ity, Capacity and Disability in Commonwealth
Laws Issues Paper 44 (2013), [80].
22. This is the recently expressed view of the
Disabilities Committee. See Draft General
comment on Article 12 (n 5) [3].
23. See OHCHR Thematic Study (n 3); Bartlett,
Implementing a Paradigm Shift (n 13).
24. M Slade, et al., ‘International Differences in
Understanding Recovery: Systematic Review’
(2012) 21 Epidemiology and Psychiatric Sci-
ences 35; Shulamit Ramon, et al., ‘Recovery
from Mental Illness as an Emergent Concept
and Practice in Australia and the UK’ (2007)
53 International Journal of Social Psychiatry
10; Debra Rickwood, 4As Framework for Pre-
venting Further Episodes of Mental Illness
(2005); Retta Andresen, et al., ‘The Experi-
ence of Recovery from Schizophrenia:
Towards an Empirically Validated Stage Mod-
el’ (2003) 37 Australian and New Zealand
Journal of Psychiatry 58; Kim T Mueser,
et al., ‘Illness Management and Recovery: A
Review of the Research’ (2002) 53 Psychiatric
Services 127; Daniel B Fisher, ‘Health Care
Reform Based on an Empowerment Model of
Recovery by People with Psychiatric Dis-
abilities’ (1994) 45 Hospital and Community
Psychiatry 91; Steven J Onken, et al., ‘An
Analysis of the Definitions and Elements of
Recovery: A Review of the Literature’ (2007)
31 Psychiatric Rehabilitation Journal 9.
25. See Craig Parsons, ‘The Dignity of Risk: Chal-
lenges in Moving On’ (2008) 15 Australian
Nursing Journal 2; Patricia Deegan, ‘Recovery
as a Journey of the Heart’ (1996) 19 Psychiatric
Rehabilitation Journal 9; Quinn, ‘Personhood
& Legal Capacity Perspectives’ (n 14); Mental
Health and Drug & Alcohol Office, Discussion
Paper: Issues Arising Under the NSW Mental
Health Act 2007 (2012).
26. Tina Minkowitz and Daniel Hazen, ADiscus-
sion Paper on Policy Issues at the Intersection
of the Mental Health System and the Prison
System (undated) <http://www.wnusp.net/
documents/2012/WNUSP_Discussion_P>
accessed 25 August 2014.
27. OHCHR ‘Thematic Study’ (n 3) [49].
28. Matthew Large, et al., ‘Risk Factors for Sui-
cide Within a Year of Discharge from
762 S. M. Callaghan and C. Ryan
Downloaded by [144.76.82.197] at 20:28 26 August 2015
Psychiatric Hospitals: A Systematic Meta-ana-
lysis’ (2011) 45 Australian and New Zealand
Journal of Psychiatry 61; Matthew Large,
et al., ‘Systematic Review and Meta-analysis
of the Clinical Factors Associated with the
Suicide of Psychiatric Inpatients’ (2011) 124
Acta Psychiatrica Scandinavica 1; Douglas
Mossman, ‘The Imperfection of Protection
through Detection and Intervention: Lessons
from Three Decades of Research on the Psy-
chiatric Assessment of Violence Risk’ (2009)
30 Journal of Legal Medicine 10; Jay P Singh,
et al., ‘Structured Assessment of Violence
Risk in Schizophrenia and other Psychiatric
Disorders: A Systematic Review of the Valid-
ity, Reliability, and Item Content of 10 Avail-
able Instruments’ (2011) 37 Schizophrenia
Bulletin 899.
29. Christopher Ryan, et al., ‘Clinical Decisions
in Psychiatry Should not be Based on Risk
Assessment’ (2010) 18 Australasian Psychia-
try 39; Matthew M Large and Olav B Niels-
sen, ‘Risk Factors for Inpatient Suicide do
Not Translate into Meaningful Risk Catego-
ries All Psychiatric Inpatients are High-
risk’ (2012) 73 Journal of Clinical Psychiatry
103; Matthew Large and Christopher James
Ryan, ‘Screening for Suicide: A Comment
on Steeg et al. [Letter]’ (2012) 42 Psycholog-
ical Medicine 201; Matthew Large, et al.,
‘The Validity and Utility of Risk Assessment
for Inpatient Suicide’ (2011) 19 Australasian
Psychiatry 50; Matthew M Large, et al., ‘The
Predictive Value of Risk Categorization in
Schizophrenia’ (2011) 19 Harvard Review of
Psychiatry 25.
30. Tally Moses, ‘Stigma Apprehension among
Adolescents Discharged from Brief Psychiat-
ric Hospitalization’ (2011) 199 Journal of
Nervous and Mental Disease 778.
31. Cesare Maria Cornaggia, et al., ‘Aggression
in Psychiatry Wards: A Systematic Review’
(2011) 189 Psychiatry Research 1; Alaa El-
Din Soliman and Hashim Reza, ‘Risk Factors
and Correlates of Violence Among Acutely
Ill Adult Psychiatric Inpatients’ (2001) 52
Psychiatric Research 75.
32. Matthew Large, et al., ‘Nosocomial Suicide’
(2014) 22 Australasian Psychiatry 118.
33. Bach and Kerzner, A New Paradigm for Pro-
tecting Autonomy (n 8, 184).
34. Bernadette McSherry, ‘The Right of Access
to Mental Health Care: Voluntary Treatment
and the Role of the Law’ in Bernadette
McSherry and Penelope Weller (eds),
Rethinking Rights-Based Mental Health
Laws (Hart 2010); Gooding (n 21).
35. The Universal Declaration of Human Rights,
GA Res 217 A (III) art 12(1), (1948).
36. International Covenant on Civil and Politi-
cal Rights, opened for signature 19 Decem-
ber 1966, 999 UNTS 171 art 25(2), (entered
into force 23 March 1976).
37. These requirements have been identified by
the National Mental Health Commission as
central to optimising mental health services
in Australia. National Mental Health Com-
mission, A Contributing Life: The 2012
National Report Card on Mental Health and
Suicide Prevention (2012).
38. Art 5(3).
39. Kerri Eagle and Christopher James Ryan,
‘Mind the Gap: The Potentially Incapable
Patient Who Objects to Assessment’ (2012)
86 Australian Law Journal 685.
40. Hunter v A [2009] [31][33] (McDougall J).
41. Sascha Callaghan and Christopher James
Ryan, ‘Rising to the Human Rights Chal-
lenge in Compulsory Treatment New
Approaches to Mental Health Law in
Australia’ (2012) 46 Australian and New
Zealand Journal of Psychiatry 61; Christo-
pher James Ryan, et al., ‘Better Laws for
Coercive Psychiatric Treatment: Lessons
from the Waterlow Case’ (2012) 20 Austral-
asian Psychiatry 283.
42. For discussion of the drafting process, see
Anna Lawson, ‘The United Nations Conven-
tion on the Rights of Persons with Disabil-
ities: New Era or False Dawn?’ (2006) 34
Syracuse Journal of International Law and
Commerce 563; Annegret Kampf,
‘Involuntary Treatment Decisions: Using
Negotiated Silence to Facilitate Change’ in
Bernadette McSherry and Penelope Weller
(eds), Rethinking Rights-Based Mental Health
Laws (Hart Publishing 2010), 129, 144.
43. OHCHR ‘Thematic Study’ (n 12), and
accompanying text.
44. Consideration of Reports Submitted by States
Parties under Article 35 of the Convention.
Concluding Observations of the Committee
on the Rights of Persons with Disabilities.
Tunisia, Committee on the Rights of Persons
with Disabilities. Fifth session 1115 April
2011, CRPD/C/TUN/CO/1 (2011) [23];
Committee on the Rights of Persons with
Disabilities. Consideration of Reports Sub-
mitted by States Parties under Article 35 of
the Convention. Concluding Observations of
the Committee on the Rights of Persons with
Disabilities. Spain, CRPD/C/ESP/CO/1
(2011) [34]; Consideration of Reports Sub-
mitted by States Parties under Article 35 of
Rights-Holder 763
Downloaded by [144.76.82.197] at 20:28 26 August 2015
the Convention. Concluding Observations of
the Committee on the Rights of Persons with
Disabilities. Peru (2012) [25]. The sugges-
tions are deliberately left broad however, and
it is not clear whether ‘supported decision
making’ might include some forms of care-
fully designed substituted decision-making.
45. UN Disabilities Committee, Concluding
Observations on Australia (n 4) [34].
46. UN Disabilities Committee, Concluding
Observations on Australia (n 4) [8].
47. Commonwealth of Australia United Nations
Convention on the Rights of Persons with Dis-
abilities: Ratification and Declarations United
Nations <http://treaties.un.org/Pages/ViewDe-
tails.aspx?srcDTREATY&mtdsg_noDIV-
15&chapterD4&langDen#EndDec>accessed
25 August 2014.
48. For discussion of the current phase of imple-
mentation, see Bartlett, Implementing a Par-
adigm Shift (n 13).
49. See for example, Victorian Law Reform
Commission, Guardianship: Final Report 24
(2012). See also Szmukler, et al., ‘Mental
Health Law and the UN Convention’ (n 9);
Bach and Kerzner, A New Paradigm for Pro-
tecting Autonomy (n 8).
50. Models involving graded decision-making
status were suggested by Bach and Kerzner,
A New Paradigm for Protecting Autonomy (n
8), and the Victorian Law Reform Commis-
sion, Guardianship: Final Report (n 49).
Both models involve consideration of a per-
son’s decision-making capacity with support,
and both accommodate a measure of substi-
tuted decision-making for the ‘fully
supported’ or ‘facilitated’ group.
51. Amita Dhanda, ‘Legal Capacity in the Dis-
ability Rights Convention: Stranglehold of
the Past or Lodestar for the Future?’ (2006)
34 Syracuse J Int’l L & Com 429, 460.
52. Tina Minkowitz, ‘Legal Capacity as Right,
Principle and Paradigm: Submission to the
Committee on the Rights of Persons with
Disabilities in Response to its Call for Papers
on Theoretical and Practical Applications of
Article 12, Prepared for the World Network
of Users and Survivors of Psychiatry’
(2011); Dhanda, ‘Legal Capacity in the Dis-
ability Rights Convention’, 460.
53. Emphasis added. The meaning of the phrase
‘deemed to be’ is not clear and it may refer
to persons whose capacity is extinguished
arbitrarily, without consideration of actual
decision-making ability. A stronger reading
is also possible however: that Committee
was concerned about involuntary treatment
of those who are found to lack the ability to
make and communicate a decision, and on
that basis are denied capacity. UN Disabil-
ities Committee, Concluding Observations
on Australia (n 4) [33].
54. Committee on the Rights of Persons with
Disabilities, Draft General comment on Arti-
cle 12 of the Convention - Equal Recognition
before the Law (2013).
55. General Comment on Article 12, above n 5,
[12].
56. Ibid [12].
57. In Australia, doctors may be called to
account for negligent failure to treat patients
under involuntary treatment provisions,
where patients (or others) go on to experi-
ence harm as a result of non-treatment.
Hunter Area Health Service & Anor v Pres-
land 2005 (63 NSWLR 22); Simon & Anor v
Hunter & New England Local Health Dis-
trict. McKenna v Hunter & New England
Local Health District [2012] NSWDC 19.
For discussion see I Freckelton, ‘Liability for
Failure by Police to Detain Potentially Sui-
cidal and Dangerous Persons’ (2008) 15 Psy-
chiatry, Psychology and Law 17; S
Rangarajan and B McSherry, ‘To Detain or
Not to Detain: A Question of Public Duty?’
(2009) 16 Psychiatry, Psychology and Law
288. This has also been the subject of coro-
nial inquests where the death of patient (and
others) are attributed to a failure to admit
patients to hospital. See eg. Inquest Into the
Death of William Alexander MacKenzie
[2011] Local Court of NSW (Coronial Juris-
diction); R v Waterlow [2011] NSWSC 326.
58. There is a vast literature on autonomy theory
in which the normative content of the
requirement of agency is a foundational
theme. The notion of agency refers to the
idea that an autonomous decision issues in
some meaningful sense, from the ‘self’. Key
texts include Gerald Dworkin, The Theory
and Practice of Autonomy (CUP 1988);
Ronald Dworkin, Life’s Dominion: An Argu-
ment About Abortion, Euthanasia, and Indi-
vidual Freedom (Vintage 2011); Ronald
Dworkin, ‘Autonomy and the Demented
Self’ (1986) The Milbank Quarterly 4; Derek
Parfit, Reasons and Persons (OUP 1984).
Relational theorists are also concerned with
questions of agency in autonomy theory, and
some argue that decision-making capacity is
too low a standard for determining genuine
agency. See n 59.
59. Abraham Rudnick, ‘Depression and Compe-
tence to Refuse Psychiatric Treatment’
764 S. M. Callaghan and C. Ryan
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(2002) 28 Journal of Medical Ethics 151;
AM Ruissen, et al., ‘A Systematic Review of
the Literature About Competence and Poor
Insight’ (2012) 125 Acta Psychiatrica Scan-
dinavica 103; Peter W Kalivas and Nora D
Volkow, ‘The Neural Basis of Addiction: A
Pathology of Motivation and Choice’ (2005)
162 American Journal of Psychiatry 1403;
Tony Hope, et al., ‘Agency, Ambivalence
and Authenticity: The Many Ways in Which
Anorexia Nervosa can Affect Autonomy’
(2013) 9 International Journal of Law in
Context 20.
60. These problems have been explored from a
medical perspective (see for example Louis
C Charland, ‘Anorexia and the MacCat-T
Test for Mental Competence: Validity,
Value, and Emotion’ (2006) 13 Philosophy,
Psychiatry, & Psychology 283; Sumit Anand
and Paul A Pennington-Smith, ‘Compulsory
Treatment: Rights, Reforms and the Role of
Realism’ (2013) 47 Australian and New Zea-
land Journal of Psychiatry 895, 896) and
from a relational autonomy perspective. See
Catriona Mackenzie and Wendy Rogers,
‘Autonomy, Vulnerability and Capacity: A
Philosophical Appraisal of the Mental
Capacity Act’ (2013) 9 International Journal
of Law in Context 37. Considerable work on
agency and authenticity in Anorexia Nervosa
has also been done. See Hope, et al.,
‘Agency, Ambivalence and Authenticity’;
Jacinta Tan, ‘The Anorexia Talking?’ (2003)
362 The Lancet 1246.
61. Failure to admit patients to hospital raises
ethical and human rights questions including
but not limited to the right to respect for
autonomy. For example in Europe, the right
to autonomy has been balanced against the
‘right to life’ in Article 2 of the European the
Convention for the Protection of Human
Rights and Fundamental Freedoms. It has
been found that there is a duty to order invol-
untary treatment for some ‘vulnerable’ adults
where it is necessary to preserve life. See
Rabone and another (Appellants) v Pennine
Care NHS Foundation Trust (Respondent)
[2012] UKSC 2. For discussion see MS
Rahman and N Wolferstan, ‘A Human Right
to be Detained? Mental Healthcare After
“Savage” and “Rabone”’ (2013) 37 The Psy-
chiatrist 29; George Szmukler, et al.,
‘“Rabone” and Four Unresolved Problems in
Mental Health Law’ (2013) 37 The Psychia-
trist 297; Neil Allen, ‘First Do No Harm.
Second Save Life?’ (2009) Journal of Mental
Health Law 17; Neil Allen, ‘The Right to
Life in a Suicidal State’ (2013) International
Journal of Law and Psychiatry.
62. Bach and Kerzner, A New Paradigm for Pro-
tecting Autonomy (n 8, 61).
63. The concept of ‘vulnerability’ as an alterna-
tive to ‘capacity’ has been canvassed in rela-
tional theory. See for example, Wendy
Rogers, et al., ‘Why Bioethics Needs a Con-
cept of Vulnerability’ (2012) 5 International
Journal of Feminist Approaches to Bioethics:
Special Issue on Vulnerability 11, and
accompanying articles. Others have argued
that a vulnerability standard is problematic
in that it risks re-instating a discriminatory
‘status’ approach to legal decision making.
See Michael C Dunn, et al., ‘To Empower or
to Protect? Constructing the “Vulnerable
Adult” in English Law and Public Policy’
(2008) 28 Legal Studies 234; Kate Brown,
‘“Vulnerability”: Handle with Care’ (2011) 5
Ethics and Social Welfare 313; Mary Don-
nelly, Healthcare Decision-Making and the
Law: Autonomy, Capacity and the Limits of
Liberalism, vol 12 (CUP 2010) 125130.
64. For example, over an extensive five-year
consultation period, the Law Commission of
England and Wales considered various
options for determining ‘authenticity’ and
‘agency’ in decision making, particularly in
the context of mental illness. All were
rejected on the basis that they were too com-
plicated and restrictive on autonomy, and
that if a person was able to meet the func-
tional test for capacity, that would be evi-
dence enough of agency. See Law
Commission (UK), Report No 231: Report
on Mental Incapacity (1995), [3.17].
65. These are the ‘serious adverse effects’ iden-
tiedbyBachandKerznerasatriggerfora
rights based framework for adult protection.
This could involve ‘facilitated decision-
making’ a form of substituted decision-
making in certain circumstances: Bach
and Kerzner, A New Paradigm for Protect-
ing Autonomy (n 8, 91, 133). See also trig-
gers suggested in Peteris Darzins, William
Molloy and David Strang, ‘What Is Capaci-
ty?’ in Peteris Darzins, William Molloy and
David Strang (eds), WhoCanDecide?The
Six Step Capacity Assessment Process
(Memory Australia Press 2000), 1218.
Darzins et al’s approach was endorsed by
the Victorian Law Reform Commission (n
49) [7.104][7.106].
66. Tina Minkowitz, ‘Abolishing Mental Health
Laws to Comply with the Convention on the
Rights of Persons with Disabilities’ in
Rights-Holder 765
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Bernadette McSherry and Penelope Weller
(eds), Rethinking Rights-Based Mental
Health Laws (Hart 2010).
67. Quinn, ‘Personhood & Legal Capacity
Perspectives’ (n 14, 16).
68. Jeremy Bentham was one of the first to criti-
cise legal fictions in the common law as the
means by which power was wrested from
citizens by the monarch. A detailed discus-
sion of Bentham and other’s critiques of
legal fiction is given in Louise Harmon,
‘Falling Off the Vine: Legal Fictions and the
Doctrine of Substituted Judgment’ (1990)
100 The Yale Law Journal 1.
69. See eg, Department of Health (Ireland),
Interim Report of the Steering Group on the
Review of the Mental Health Act 2001 (2012)
<http://health.gov.ie/blog/publications/interim
-report-of-the-steering-group-on-the-review-
of-the-mental-health-act-2001/>accessed 25
August 2014, 911, and Victorian Law
Reform Commission (n 49) [17.120]
[17.121]. It is worth noting that many legis-
lated best interests tests in Australian guard-
ianship legislation, like the Mental Capacity
Act 2005 (UK), do include a requirement that
a person’s known wishes be taken into
account. While this was acknowledged by the
Commission, it took the view that the change
in emphasis required by the CRPD to more
firmly centre adult substituted decision-mak-
ingonthe‘willandpreferences’oftheper-
sons themselves, would be best achieved
through a change in language. Victorian Law
Reform Commission, [6.19][6.21], [6.94].
70. Victorian Law Reform Commission (n 49)
[17.105].
71. Victorian Law Reform Commission (n 49)
[17.126].
72. It was through the exercise of the King’s
parens patriae jurisdiction dating back to the
1200s, that the doctrine of substituted judge-
ment was developed. Its first expressed use
was in Ex parte Whitbread, 2 Meriv. 99, 35
Eng. Rep. 878 (Ch. 1816). For a concise his-
tory of the jurisdiction, see Philip Powell,
The Origins and Development of the Protec-
tive Jurisdiction of the Supreme Court of
New South Wales (Francis Forbes Society for
Australian Legal History 2003).
73. The substituted judgement test in health care
decision-making was first employed by a
superior United States court in Re Quinlan
(1976) 70 NJ 10. For discussion see Mary
Donnelly, Healthcare Decision-Making and
the Law (n 62) 176192.
74. For discussion see Thomas G Gutheil and
Paul S Appelbaum, ‘Substituted Judgment:
Best Interests in Disguise’ (1983) 13 Hast-
ings Center Report 8.
75. Harmon, ‘Falling Off the Vine’ (n 67) 23.
76. Victorian Law Reform Commission (n 49)
[17.112].
77. Victorian Law Reform Commission (n 49)
[17.118].
78. Victorian Law Reform Commission (n 49)
[17.122].
79. CRPD, art 12.4.
80. Christopher James Ryan, et al., ‘Long Time,
No See: Australians with Mental Illness
Wait Too Long Before Independent Review
of Detention’ (2010) 35 Alternative Law
Journal 147.
766 S. M. Callaghan and C. Ryan
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... This interpretation of the CRPD has been termed radical, absolutist or too strong by some experts, who have called for a more realistic interpretation 3 (96,99). It has been argued that while individual autonomy needs to be respected and new supported decision-making mechanisms need to be implemented, there are times when substitute decision-making is required, where an individual lacks decision-making capacity (95). ...
... The right to autonomy is central to the contemporary human rights discourse (1,13), and choice and control are key tenets of the recovery paradigm in psychiatry (231). This research, therefore, discerningly picked out the theme of autonomy from the service- the literature review, this interpretation of the CRPD has been described as radical or excessive by some experts, who have called for a more realistic interpretation (95,96). ...
... It has been argued that while individual autonomy, will and preferences need to be respected, and new supported decision-making mechanisms need to be implemented, there are times when substitute decision-making in the form of involuntary psychiatric treatment is required, where an individual lacks decision-making capacity (95). These authors point to situations where the right to refuse treatment is in direct conflict with the right to health and argue that failing to account for decision-making capacity in these cases may jeopardise the right to the highest attainable standards of physical and mental health, social inclusion and adequate standard of living. ...
Thesis
This thesis explores the human rights of people with mental disabilities in regional Queensland, Australia, within the context of contemporary human rights frameworks adopted by the United Nations and the World Health Organization. The study was informed by a scoping literature review to synthesise the current knowledge in this field and identify gaps. It is a qualitative study using a ‘stellar approach’ characterised by superimposed triangulation of data sources and data-gathering methods. This involved semi-structured interviews with persons with mental disabilities and carers, a focus group with stakeholders and consultations with legal and psychiatric experts. The data were analysed iteratively, informed by post-modernist and critical realist frameworks. Abductive analysis – a combination of deductive and inductive analyses – was conducted. In the interest of reflexivity, a chapter on the positioning of the candidate as a situated researcher was included. This study found widespread violations of the human rights of people with mental disabilities. Involuntary/coercive psychiatric treatment; inadequate access to healthcare; and stigma and discrimination were found to be the most common violations of rights. While most participants, including service-users, agreed with the need to retain involuntary treatment provisions as the last resort, many participants highlighted the excessively restrictive ways in which involuntary treatment was enforced, violating their dignity. Poor access to healthcare, especially in rural and remote areas, was highlighted. Social exclusion through stigma, ‘the lonely road’, was the most distressing violation of rights. The study concluded that citizenship approaches, coupled with the capabilities approach to social justice may provide a philosophical basis for promotion of human rights of people with mental disabilities, which can then be practically implemented by addressing the social determinants of health and adopting the recovery paradigm in mental health. Specific strategies include: mental health promotion and prevention and access to early intervention; policy/legislative mechanisms to minimise coercion; the provision of voluntary, community-based, recovery-oriented services; and the social movement approach to promote the right to social inclusion and freedom from stigma/discrimination. Promotion of economic, social and cultural rights of people with mental disabilities would pave the way for protection of their civil and political rights.
... The extent to which Queensland legislation complies with international standards is significantly influenced by how the CRPD is interpreted. Of central importance are article 12 -'persons with disabilities have the right to equal recognition before the law'; article 14 -'the existence of a disability shall in no case justify a deprivation of liberty'; and article 17 -'every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others' (Callaghan & Ryan, 2014;United Nations, 2006). General comment 1 (GC 1) on article 12 issued by the CRPD Committee interprets article 12 as proscribing compulsory treatment in all circumstances (United Nations Committee on CRPD, 2014). ...
... Others have argued that for people with varying degrees of mental capacity, full access to the right to refuse treatment may sometimes disrupt the right to access optimal health care. As a result, failing to account for decision-making capacity in some cases may jeopardize the right to the highest attainable standards of physical and mental health, social inclusion and adequate standard of living (Callaghan & Ryan, 2014;Freeman et al., 2015;Gill, 2019). While there appears to be general agreement that supported decision-making should be the standard in almost all circumstances, this debate remains unresolved in situations where an individual completely lacks decisionmaking capacity. ...
... They must also respect the person's rights, will and preferences, and apply for the shortest possible time. This is consistent with the compromise suggested by Dawson (2015) and others, that while supported decision-making should be the default approach, substitute decision-making, including compulsory treatment, must be available as a last resort, under exceptional circumstances, with strong safeguards (Callaghan & Ryan, 2014;Dawson, 2015;Freeman et al., 2015;Gill, 2019). This empirical analysis of MHA 2016 is based on this interpretation of the CRPD. ...
Article
The Convention on the Rights of Persons with Disabilities (2006) (CRPD) has been instrumental for initiating and shaping the reform of mental health legislation in many countries, including the eight Australian jurisdictions. Multiple approaches have been proposed to assess and monitor the compliance of States Parties' mental health legislation with the CRPD, and to evaluate its success in protecting and promoting the human rights of people with disabilities. This article reports an effort to index the impact of legislation on human rights by measuring changes in the prevalence of compulsory treatment orders applied to people with mental illness after the introduction of CRPD influenced mental health legislation in the Australian state of Queensland. We found that despite reforms intended to enhance patient autonomy, the prevalence of compulsory treatment orders increased after implementation of the new legislation. Possible reasons behind this unintended consequence of the legislative reform may include a lack of systematized voluntary alternatives to compulsory treatment, a paternalistic and restrictive culture in mental health services and risk aversion in clinicians and society. We recommend that the reforms in mental health policy as well as legislation need to go further in order to achieve the goals embodied in the human rights framework of the CRPD.
... Modern mental health laws should ensure the right of competent patients to refuse mental health treatment (Callaghan & Ryan, 2014). Except for provisions relating to electroconvulsive therapy, the Mental Health Act, 2014 does not respect the right to those with mental capacity to refuse mental health treatment. ...
Article
Many countries embarked on reforms of mental health law in the wake of the Convention on the Rights of Persons with Disabilities. These reforms have had varying levels of success. This paper considers the experience of consumers in the Victorian mental health system, drawing on an evaluation that asked consumers and clinicians about their knowledge and experience of rights under the Victorian Mental Health Act, 2014. The data show that consumers were not informed of their rights, were not involved in decisions about treatment, were not able to access safeguards, and could not exercise their rights. The explanations for this include limited staff time, unclear delegations of responsibility, a lack of knowledge, training, and support for rights, and a preference for ‘best interests’ approaches. The paper identifies tangible reforms that would maintain rights for consumers, including competent refusal of treatment, legislative and regulatory reforms, and training and resourcing. Consumers in this study found that the rights-based framework in the Mental Health Act, 2014 had such an insignificant effect on clinical mental health practice in Victoria that their rights appeared to be illusory.
... Calling this interpretation of the CRPD 'absolutist' or 'radical', some experts have argued that while individual autonomy, will and preferences need to be respected, there are times when substitute decisionmaking is required, where an individual lacks decisionmaking capacity. 5,6 Attention has been drawn to article 12(4) of the CRPD, which seems to allow involuntary treatment as the last resort, with strong safeguards. 7 ...
Article
Objective: Mental Health Act 2016 (Qld) (MHA 2016) includes many ‘less restrictive ways’ to minimise involuntary/compulsory treatment. One such measure, the statutory health attorney, has been adopted from the Powers of Attorney Act 1998 (Qld). This paper analyses the statutory health attorney provision against the human rights framework adopted by the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Method: The statutory health attorney provision was analysed against the CRPD article 12 (equal recognition before the law). Results: The statutory health attorney provision is not based on the will and preferences of the individual, is not free from conflict of interest and is not subject to the required safeguards. Conclusion: The use of a statutory health attorney brings mental health and physical health under the same provision (the fusion law/proposal). However, the statutory health attorney provision is not compatible with the contemporary human rights framework adopted by the CRPD.
... 1,2 As a result, various countries have amended or are in the process of re-fashioning their mental health legislations. 3 Most new mental health acts in Australia are incorporating a heavier reliance on the 'capacity assessment' criteria for involuntary treatment 4 and are strengthening the supported decision-making mechanisms in legislation. 5 This aligns with human rights framework by ensuring that support is provided to help a person with mental illness in decision-making and involuntary treatment is only used as the last resort, if the person lacks capacity to consent to treatment and supported decision-making provisions have been exhausted. ...
Article
Objective The United Nations Convention on the Rights of Persons with Disabilities (CRPD), 2006 has influenced the evolution of mental health legislation to protect and promote human rights of individuals with mental illness. This review introduces how the human rights agenda can be systematised into mental health services. Exploration is made of how some principles of CRPD have been incorporated into Queensland’s Mental Health Act 2016. Conclusion Although progress has been made in some areas, e.g. heavier reliance on capacity assessment and new supported decision-making mechanisms, MHA 2016 has continued to focus on involuntary treatment. A Human Rights Act 2019 has been passed by the Queensland parliament, which may fill in the gap by strengthening positive rights.
... 19 Failure to uphold this presumption merely exacerbates the stigmatization and marginalization of people with psychosocial disabilities and can, as a result, present a considerable barrier to accessing services. 20 The right to be protected from cruel, inhumane and degrading treatment has also been invoked by people concerned about the harm that can be caused by involuntary mental health treatment. In 2013, the United Nations' Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment called on states to "impose an absolute ban on all forced and nonconsensual medical interventions… including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs [and] the use of restraint. ...
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The United Nations Convention on the Rights of Persons with Disabilities requires a paradigm shift from a medical model of disability to a social model that emphasizes overcoming the barriers to equality created by attitudes, laws, government policies and the social, economic and political environment. The approach adopted by the social model recognizes that people with psychosocial disabilities have the same right to take decisions and make choices as other people, particularly regarding treatment, and have the right to equal recognition before the law. Consequently, direct or supported decision-making should be the norm and there should be no substitute decision-making. Although recent mental health laws in some countries have attempted to realize a rights-based approach to decision-making by reducing coercion, implementing the Convention on the Rights of Persons with Disabilities can be challenging because it requires continuous refinement and the development of alternatives to coercion. This article reviews the impact historical trends and current mental health frameworks have had on the rights affected by the practice of involuntary treatment and describes some legal and organizational initiatives that have been undertaken to promote noncoercive services and supported decision-making. The evidence and examples presented could provide the foundation for developing a context-appropriate approach to implementing supported decision-making in mental health care. (c) 2020 The authors; licensee World Health Organization.
Article
Objective To evaluate the medical assessments of involuntary community patients in a regional mental health service, determine the compliance with requirements under Queensland’s Mental Health Act 2016 (the Act) to regularly review orders and assess patients’ mental capacity. Method We audited 183 patient records on community treatment authorities (CTAs) to determine whether medical assessments undertaken under the Act included consideration of the person’s capacity, and regular reviews by an authorised doctor as required 1s205 . Results The audit revealed that 51% of the CTA patients did not comply with legal requirements either to complete a capacity assessment and/or be medically assessed within three months of the last review. Conclusions Over 50% of medical assessments did not comply with the legislative requirements to record capacity assessments and review involuntary treatment on at least a three-month basis. However, when the treatment criteria were met, it did not appear to be a basis for CTA revocation. Further research may help determine whether the Mental Health Review Tribunal (Tribunal) could play a greater role in overseeing compliance with the new legislative requirements or if other clinical oversight mechanisms would be appropriate to improve the assessment process.
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Much has been written about whether end-of-life law should change and what that law should be. However, the barriers and facilitators of such changes – law reform perspectives – have been virtually ignored. Why do so many attempts to change the law fail but others are successful? International Perspectives on End-of-Life Law Reform aims to address this question by drawing on ten case studies of end-of-life law reform from the United Kingdom, the United States, Canada, the Netherlands, Belgium and Australia. Written by leading end-of-life scholars, the book's chapters blend perspectives from law, medicine, bioethics and sociology to examine sustained reform efforts to permit assisted dying and change the law about withholding and withdrawing life-sustaining treatment. Findings from this book shed light not only on changing end-of-life law, but provide insight more generally into how and why law reform succeeds in complex and controversial social policy areas.
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The paper is divided into two parts to facilitate a clearer understanding of all aspects of the change in the position of people with psychosocial disabilities, regarding the right to liberty and security, through the historical development of national and international legal frameworks. The first part briefly presents an overview of national legislation on the protection of persons with psychosocial disabilities and the circumstances in which states adopted the Convention on the Rights of Persons with Disabilities earlier this century. The second part of the paper underscores the challenges the States Parties face in the implementation of Article 14 of the Convention. The State Parties’ reports show that the processes of changing the perceptions of persons with psychosocial disabilities, when it comes to their involuntary detention, have been changing quite slowly and partially and that the realisation of their human rights is one of the Convention’s greatest challenges.
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The paper analyses Art. 12 of the Convention on the Rights of Persons with Disabilities and its implications for the position of persons with mental disabilities. The new concept of legal capacity contained in Art. 12 should ensure that fundamental human rights of these persons are no longer “a dead letter on paper”. However, once the Convention came into force, the implementation of this provision has proved to be problematic for States Parties. Diane Kingston, former Vice-Chairperson of the Committee on the Rights of Persons with Disabilities, best expressed the scale of the problem in October 2015 when she emphasized that no country had until that point fully met the requirements contained in Art. 12. Given that the Convention is a document that prescribes the fundamental human rights, the statement that no national legislation is consistent with its key provision is confusing and worrying. Therefore, a special attention should be paid to Art. 12 and its implementation in practice.
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The passage of the CRPD in 2006 promises a paradigm shift in the rights of people with disabilities. Implementing this paradigm shift is a major undertaking requiring the involvement of a wide range of stakeholders. The required reforms extend across the legal landscape, and attainment of any consensus on many reforms may take many years in some areas. In the interim, people with disabilities remain subject to situations that are indefensible in human rights terms, whether that is understood in the pre- or post-CRPD paradigm. This creates a set of dilemmas: how do human rights advocates argue for the amelioration of manifest abuses in the short to mid-term without undermining the underlying transformative promise of the CRPD’s new paradigm; and how is the pressure on states parties to be maintained in the long process of finding ways fully to implement the CRPD? These difficulties are discussed in the context of laws relating to mental disability, both in general and with particular reference to the revisions to the Standard Minimum Rules for the Treatment of Prisoners (SMR) now under consideration.
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There are two statutes in England and Wales dealing with the closely related concepts of mental disorder and mental capacity, and the relationship between them has proved difficult and controversial. In response, various measures have been suggested with a view to easing some of the tensions and this article starts by examining the two most familiar proposals. This article concludes that while both may reduce the discriminatory aspects of the current law, they are both constrained by their reliance on substitute decision-making and best interests. An alternative and more radical model based on universal capacity and supported decision-making is provided by the UN Convention on the Rights of Persons with Disabilities. The remainder of the article considers the implications that might flow from the wholesale adoption of such a model in England and Wales.
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This analysis of the law's approach to healthcare decision-making critiques its liberal foundations in respect of three categories of people: adults with capacity, adults without capacity and adults who are subject to mental health legislation. Focussing primarily on the law in England and Wales, the analysis also draws on the law in the United States, legal positions in Australia, Canada, Ireland, New Zealand and Scotland and on the human rights protections provided by the ECHR and the Convention on the Rights of Persons with Disabilities. Having identified the limitations of a legal view of autonomy as primarily a principle of non-interference, Mary Donnelly questions the effectiveness of capacity as a gatekeeper for the right of autonomy and advocates both an increased role for human rights in developing the conceptual basis for the law and the grounding of future legal developments in a close empirical interrogation of the law in practice.
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Concern for human vulnerability seems to be at the heart of bioethical inquiry, but the concept of vulnerability is under-theorized in the bioethical literature. The aim of this article is to show why bioethics needs an adequately theorized and nuanced conception of vulnerability. We first review approaches to vulnerability in research ethics and public health ethics, and show that the bioethical literature associates vulnerability with risk of harm and exploitation, and limited capacity for autonomy. We identify some of the challenges emerging from this literature: in particular, how to reconcile universal human vulnerability with a context-sensitive analysis of specific kinds and sources of vulnerability; and how to reconcile obligations to protect vulnerable persons with obligations to respect autonomy. We then briefly survey some of the theoretical resources available within the philosophical literature to address these challenges, and to assist in understanding the conceptual connections between vulnerability and related concepts such as harm, exploitation, needs, and autonomy. We also sketch out a taxonomy of sources and kinds of vulnerability. Finally, we consider the implications for policy evaluation of making vulnerability an explicit and central focus of bioethics. Our investigation is in the form of a broad survey motivating a research agenda rather than a detailed analysis.