Clive Unsworth noted in 1987 that ‘[l]aw actually constitutes the mental health system, in the sense that it authoritatively constructs, empowers, and regulates the relationship between the agents who perform mental health functions’. The main aim of this research program is to explore the role the law has and should have in improving access to optimal mental health care and promoting and maintaining good mental health. The program will bring together international and Australian mental health experts from a range of disciplines as well as consumer representatives to develop model frameworks for both civil commitment laws for those with serious mental illnesses and sentencing laws for mentally ill offenders. These model frameworks will integrate theoretical and clinical approaches for attaining the highest attainable standard of mental health care and will put Australia in the forefront of the developing international focus on reforming mental health laws. The project will: analyse civil and criminal laws relating to mental health and their conceptual frameworks in the common law countries of Canada, Ireland, England, Scotland, New Zealand and Australia; and develop model frameworks for civil commitment and sentencing laws.
Recent trends in mental health laws, Prof Bernadette McSherry
Centre for the Advancement of Law and MentalHealthProfessor Bernadette McSherryDirector, CALMHAustralian Research Council Federation Fellow Recent Trends inMental Health Laws
The CALMH TeamProf Bernadette McSherry Prof Ian Freckelton Dr Penny Weller Danielle Andrewartha Dr Laura Breedon Jacinta Efthim Piers Gooding Dr Annegret Kämpf Sarah Lenthall Sarah McHutchison Kathleen Patterson Liz Richardson Dr Ronli Sifris Jamie Walvisch Kay Wilson
The Rethinking Mental Health LawsProjectFive year projectdeveloping modelframeworks for both civilcommitment laws forthose with serious mentalillnesses and sentencinglaws for offenders withmental illnesses
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 – Art12 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 AttainableStandard 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 ReformCommission 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 MentalHealth 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”
Involvement in Decision-making 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 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 acceptinformation in confidenceConducting hearings in a less adversarialmannerExtending carers’ rights ofnotificationProviding carers access tofree legal representation
Access to Information Discretion to disclose –In SA and Victoria, disclosure is subject to an express refusal by the individual. Mandatory disclosure To –In Scotland, the named d is c lo person is required to s e or be notified in certain no t to circumstances d is c lo se
Access to Information: As a General Sec1(5)(b) Mental Health (Care andPrinciple 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)