2. Mental Health Law
- the person has mental illness; and
- because the person has mental illness, the person needs immediate treatment to prevent—
- serious deterioration in the person’s mental or physical health; or
- serious harm to the person or to another person…
I thought the voices came from other worlds. I believed I was approaching an Enlightened State. The voices told me that in order to reach this Enlightened state I would have, at the appropriate moment, to jump from the seventh floor of a building and land on my head in a certain way. This would put me in a cosmic junction whereupon…I would be able to enlighten all mankind.(, p. 4)
2.1. The Challenge of the CRPD to Mental Health Law
legislation of several states party, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived disability, provided there are other reasons for their detention, including that they are dangerous to themselves or to others. This practice is incompatible with article 14 as interpreted by the jurisprudence of the CRPD committee.(, para. 1 (emphasis added))
2.2. UN Treaty Body Challenges to Mental Health Law
Legislation authorizing the institutionalization 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 institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as 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 apparent or diagnosed mental illness.
As has been stated by the Committee in several concluding observations, forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16). This practice denies the legal capacity of a person to choose medical treatment and, is therefore, a violation of article 12 of the Convention. States parties must, instead, respect the legal capacity of persons with disabilities to make decisions at all times, including in crisis situations; must ensure that accurate and accessible information is provided about service options and that non-medical approaches are made available; and must provide access to independent support. States parties have an obligation to provide access to support for decisions regarding psychiatric and other medical treatment. Forced treatment is a particular problem for persons with psychosocial, intellectual and other cognitive disabilities. States parties must abolish policies and legislative provisions that allow or perpetrate forced treatment, as it is an ongoing violation found in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness and the views of people using mental health systems who have experienced deep pain and trauma as a result of forced treatment. The Committee recommends that States parties ensure that decisions relating to a person’s physical or mental integrity can only be taken with the free and informed consent of the person concerned.(, para. 42)
3. Traditional Justifications for Mental Health Law
3.1. Psychiatric Diagnosis as a Justification for Intervention
impaired insight in mental disorder; to mental disorder removing autonomous control; to the association of mental illness with global irrationality; and to the idea that mental disorder undermines personal identity or diachronic agency. Whatever the underlying assumptions, law that bases interference on the presence of mental disorder—the so-called “status” approach—holds that a psychiatric diagnosis eliminates the need to assess the person’s decision-making ability. The diagnosis alone is taken to mean that the person is not in a position to decide for themselves, at least in relation to psychiatric treatment....
3.2. Mental Capacity as a Justification for Intervention
4. General Criticisms of Mental Capacity
Criticisms of Mental Capacity in the Mental Health Context
it is difficult to see that the incapacity can sensibly be separated from the mental disability, given that it is the mental disability that is the direct cause of the incapacity. Insofar as the use of the disability as a criterion is discriminatory, therefore, the use of incapacity as a detention criterion merely moves direct discrimination into indirect discrimination, and this is not really a significant advance.(, p. 29)
there was a dilemma about the difference between someone with capacity who made an ‘unwise decision’ and someone who lacked capacity, as also found by Willner et al. The two matters were often confusingly conflated within the notion of ‘lack of insight’ which was a commonly cited reason for assessing a lack of capacity.(, p. 159)
5. Sketching an Alternative Path of Reform
5.1. Codifying the Doctrine of Necessity
Personal autonomy is a value that informs much of the common law. It is a value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law…there is no general duty to rescue.
An adult is in a situation of serious adverse effects as a result of his/her actions or those of others, if the adult:
- Experiences loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants; or
- Experiences serious illness or injury, and deprivation of liberty or personal security; or
- Has threatened or attempted or is threatening or attempting to cause physical and/or psychological harm to himself or herself; or
- Has behaved or is behaving violently towards another person or has caused or is causing another person to fear physical and/or psychological harm from him or her.(, p. 47)
A situation of serious adverse effects occurs when a person’s life, health or safety is at imminent and grave risk, and failure to intervene would constitute criminal or civil negligence.
Justification for State Intervention in Private Life
5.2. Deliberative Law Reform Involving High-Level Participation of People with Disabilities
(c)losely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations, in the development and implementation of legislation, policies and other decision-making processes that give effect to article 12.
5.3. Introduce Support Measures
The Committee recommends that Australia should repeal all legislation that authorises medical interventions without free and informed consent of the persons with disabilities concerned, and legal provisions that authorize commitment of individuals to detention in mental health services, or the imposition of compulsory treatment either in institutions or in the community via Community Treatment Orders (CTOs).(, para. 34)
Conflicts of Interest
United Nations Convention on the Rights of Persons with Disabilities
United Nations Committee on the Rights of Persons with Disabilities
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- 1The term “mental health law” can encompass a broad range of law including criminal law (the insanity defence/fitness to plead), contract law (invalidation due to incapacity), tort law (psychiatric injury), and civil commitment law (involuntary treatment and detention). “Mental health law” is used in this article to refer to civil commitment laws: statutes that make lawful the detention and involuntary treatment of people diagnosed with mental illness in certain circumstances.
- 3See for example, Mental Health Act 2014 (Vic) No 26; Mental Health Act 2014 (WA); Mental Health Act 2013 (Tas).
- 4Mental Health Act 2014 (Vic) No 26 s 5(d).
- 5ECT and psychosurgery treatments are administered relatively infrequently and typically require authorisation from a mental health tribunal given their invasive nature. Although there is little empirical research documenting numbers of recipients of ECT in Australia, or the number of times ECT is administered in various jurisdictions  there is some evidence indicates that the numbers are relatively low . The same conclusion may be drawn about psychosurgery. In Victoria, for example, the Victorian Psychosurgery Review Board—which grants permission to any psychosurgery measures—dealt with no operations between 2001 and 2006, and 12 applications between 2007 and 2012 (all of them for “Deep Brain Stimulation”) (, p. 30).
- 6Mental Health Act 2014 (Vic) No 26 ss. 3, 28(1) and 29.
- 7There is some controversy as to whether mental health courts or tribunals in fact have such decision-making power as they are ostensibly designed to be a regulatory safeguard. Nevertheless, in the case of MH2 v Mental Health Review Board, for example, the Victorian Mental Health Review Board was described as having “all the functions of the decision maker...that are relevant to the decision under review”. MH2 v Mental Health Review Board (Human Rights)  VCAT 734 (8 May 2013) para. 2(d).
- 8Mental Health Act 2014 (Vic) No 26 s153(a)(1) and Mental Health Act 2013 (Tas) No. 2 s168(1)(a).
- 9Mental Health Act 2013 (Tas) No. 2 s168(1)(a).
- 10Equal Opportunity Act 2010 (Vic) s 12(1).
- 11European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, Article 5 s1(e); ECHR Article 5(1)(e). For ECHR case law that elucidates the application of Article 5(1)(e), see Winterwerp v The Netherlands (1979) ECHR 4 (app. no. 6301/73). Winterwerp v Netherlands (1979) 2 EHRR 387. The judge indicated that detention of a person of unsound mind can only be lawful under article 5(1)e if the following minimum criteria is be satisfied in accordance with a procedure prescribed by law: “Except in emergency cases, no one can be deprived of liberty unless he or she can be reliably shown to be of unsound mind on the basis of objective medical expertise. The mental disorder must be of a kind or degree warranting compulsory confinement. The validity of continued confinement depends on the persistence of the disorder”.
- 12CRPD Articles 2 and 4.
- 13See Draft Mental Capacity Bill (Northern Ireland) s3(1)(c).
- 14The doctrine of necessity was confirmed in the tort law context in the case of Re F (1990), which will be discussed shortly. Re F (1990) referred to the sterilization of a young woman with psychosocial disability who was unable to consent. See also HL V UK (2004) in which the doctrine of necessity was used to justify the deprivation of liberty of a man who was compliant with treatment and deprivation of liberty but was unable to consent to the intervention as he lacked mental capacity (for a detailed discussion of the latter case see ).
- 15 2 All ER 545.
- 16 2 All ER 550.
- 17Mental Capacity Act 2005 (England and Wales) s5.
- 18 HCA 15.
- 19Mental Health Act 2007 (NSW) s81.
- 20Crimes Act 1958 (Vic) s436(b). Section 436(b) states, “(e)very person is justified in using such force as may reasonably be necessary to prevent the commission of suicide or of any act which he believes on reasonable grounds would, if permitted, amount to suicide”.
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