Law

Recent Trends in Mental Health Laws

Professor Bernadette McSherryDirector, CALMHAustralian Research Council Federation Fellow

Centre for the Advancement of Law and Mental Health

The CALMH Team

Prof Bernadette McSherry Prof Ian Freckelton

Dr Ronli Sifris Jamie WalvischLiz Richardson

Sarah McHutchison

Kay Wilson

Dr Penny Weller

Dr Annegret Kämpf

Danielle Andrewartha Dr Laura Breedon

Piers Gooding

Kathleen Patterson

Sarah LenthallJacinta Efthim

Themes

The Rethinking Mental Health Laws Project

Five year project developing model frameworks for both civil commitment laws for those with serious mental illnesses and sentencing laws for offenders with mental illnesses

International Trends

UN Convention on the Rights of Persons with Disabilities

(in force 3rd May 2008)

The Right to Liberty

Recognition of Legal Capacity

Right to the Highest

Attainable Standard of

Mental Health

The Right to Liberty – Art 14 UN Committee on the Rights of

Persons with Disabilities (13 May 2011):– Recommended Tunisia “repeal legislative

provisions which allow for the deprivation of liberty on the basis of disability, including a psychosocial or intellectual disability”.

Recognition of Legal Capacity – Art 12 Presumption of legal

capacity (legal standing and legal agency)

Any limitation must be proportional and tailored to individual circumstances

Move towards supported rather than substitute decision-making

Right to the Highest Attainable Standard of Mental Health – Art 25 Positive Right Requires provision of (mental) health services

needed by those with disabilities because of their disabilities, including early identification and intervention

International Trends

Supported decision-making Voluntary access to health care Involvement of carers

Supported Decision-making

Abolition of substituted decision-making?

Victorian Law Reform Commission

A substituted judgment approach

Hierarchy of decision-making

– Supporters

– Co-decision makers

Access to Services

May be a role for legislative provisions re voluntary admissions

Under the Northern Territory Mental Health Act, a person can appeal a decision to the Mental Health Review Tribunal not to admit him or her for treatment

Incorporating Carers’ Rights in Mental Health Legislation

Involvement in decision-making processes

Involvement in review processes

Access to information and confidentiality

Involvement in Decision-making Carers Recognition Act 2005 (SA): “views of…carers must be taken into

account along with the views, needs and best interests of people receiving care, when decisions impact on carers”

Section 1(3)(b) of the Mental Health (Care and Treatment) (Scotland) Act 2003 requires the views of carers to be taken into account when discharging functions under the Act, unless it is unreasonable and impractical to do so

Carers also have specific rights to be consulted before an involuntary treatment order is made and when determining a care plan

Involvement in Decision-making

Involvement in Decision-making Scotland’s “Named Person” provisions

empower carers by:– The primary carer being appointed in the

absence of a patient’s nomination– Providing rights to attend and participate

in hearings as well as appeal decisions Review has found the promotion

of disclosure between carers and treating team

Involvement in Review ProcessesScotland law reforms included: Allowing tribunal members to accept

information in confidence Conducting hearings in a less adversarial

manner Extending carers’ rights of

notification Providing carers access to

free legal representation

Discretion to disclose– In SA and Victoria, disclosure is subject

to an express refusal by the individual.

Mandatory disclosure– In Scotland, the named

person is required to be notified in certain circumstances

Access to Information

To disclose or not

to disclose

?

Access to Information: As a General Principle Sec1(5)(b) Mental Health (Care and

Treatment) (Scotland) Act 2003 : treatment team should provide information to carers that might assist the carer to care for the patient

Sec 7(j) Mental Health Act 2009 (SA): patients and their carers should be provided with comprehensive information about the patient’s illness, legal rights, treatment orders, etc

Conclusion

Emphasis on voluntary treatment wherever possible

Inclusion of positive rights

More pressure on governments to provide adequate mental health services

Further Information www.law.monash.edu/centres/calmh/

Bernadette McSherry (ed) International Trends in Mental Health Laws (Sydney: Federation Press, 2008)

Bernadette McSherry and Penny Weller (eds) Rethinking Rights-Based Mental Health Laws (Oxford: Hart Publishing, 2010)