Law
Centre for the Advancement of Law and Mental Health
Professor Bernadette McSherry
Director, CALMH
Australian Research Council Federation Fellow
Recent Trends in
Mental Health Laws
The CALMH Team
Prof 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
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”
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 Processes
Scotland 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
Access to Information
 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
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)