Article by Mary Quinn | Published May 30, 2011
Mental illness is increasingly recognised as one of the most prevalent health issues in the Australian community. The human rights of people with a mental illness in Australia has received greater attention in recent years, prompted in part by new obligations under the United Nations Convention on the Rights of Persons with Disabilities (‘Disabilities Convention’), ratified in 2008. State human rights legislation, including the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT), are also important instruments.
The human rights enshrined in these instruments — including the right not to be subject to medical treatment without full, free and informed consent — are particularly relevant when considering mental health legislation in Australia. These laws provide for the involuntary treatment of persons with a serious mental illness who meet certain legislative criteria, regardless of whether or not they consent to that treatment. Cases, such as the VCAT Kracke decision, which looked at the review of mental health orders by the Mental Health Review Board in the context of the Charter, brought further attention to the human rights implications.
The compulsory treatment of mentally ill persons in Australia is regulated by laws in each state and territory. A number of states have recently reviewed, or are currently reviewing, their mental health legislation. New South Wales introduced new mental health legislation in 2007, while South Australia followed suit in 2009. The Australian Capital Territory’s Mental Health (Treatment and Care) Act 1994 (ACT) is currently under review.
A review of Victoria’s Mental Health Act 1986 (Vic) has been underway since 8 May 2008. In October 2010 the Victorian Government released the Exposure Draft Mental Health Bill, the culmination of over two years work. The Victorian Government is currently reviewing submissions to the Exposure Draft and plans to introduce the Bill in Parliament in 2012. If passed, it is anticipated that the new Act will begin operation in 2013.
The current legislative scheme in Victoria, which the Bill seeks to replace, is over twenty years old and outdated in its ‘substituted decision-making’ approach to the treatment and care of persons with a serious mental illness. As the Human Rights Law Centre notes, “the ‘best interests’ or “involuntariness model” is at odds with contemporary international human rights law and standards, which emphasise autonomy and non-discrimination” in mental health care. The emphasis should be on a “supported decision-making” model that recognises that capacity may fluctuate and the importance of promoting individual agency.
Overall, the Exposure Draft Bill is to be commended for improving compliance with Australia’s international human rights obligations. In particular, the new staged-order scheme, the introduction of the presumption of capacity principle and new safeguards for restrictive interventions (restraint and seclusion) and electroconvulsive therapy are welcome. Other positive initiatives include a new Mental Health Commissioner and an increased emphasis on supported decision-making through the introduction of ‘nominated persons’ and advance statements (whereby a person can write down their treatment preferences to be referred to in the event of mental illness).
However, despite such changes, organisations including the Human Rights Law Resource Centre and the Mental Health Legal Centre have expressed concern that the Bill requires further amendment to ensure full compliance with Australia’s international and domestic human rights obligations. It should also be noted that the State Government has not addressed the threshold question of whether or not stand-alone mental health legislation is appropriate in a substantive way. One option that should be considered is the amalgamation of mental health laws with guardianship and administration legislation in a consolidated “capacity” law.
Beyond the threshold issue of whether stand-alone mental health legislation and involuntary treatment is justified, the Bill should be amended to include all of the Disability Convention principles, shorten the timeframe for automatic external review of treatment orders, and prohibit compulsory treatment where a patient has capacity and refuses consent. The State Government must ensure that the mental health legislation in Victoria is fully compliant with the human rights obligations enshrined in the Disabilities Convention and Charter.
For more information on the Review of the Mental Health Act, visit <http://www.health.vic.gov.au/mentalhealth/mhactreview/>.
Mary Quinn is a sixth year student at the University of Melbourne studying a combined Bachelor of Laws/Bachelor of Arts (Political Science) degree. She was the Secretary of Right Now in 2009–10. Mary is a former Editor of the Melbourne Journal of International Law and a current editorial member of the Melbourne University Law Review and an editorial assistant at the Australian Journal of Labour Law. She is undertaking an internship at Victoria Legal Aid and works as a Research Assistant at Melbourne Law School.