MENTAL HEALTH LAW REFORM
AND HUMAN RIGHTS
Ian Freckelton QC
Crockett Chambers,
Professorial Fellow in Law & Psychiatry,
University of Melbourne
Art of Recovery
Inevitable complex relationship between
mental health law and human rights
 Recall those with mental illnesses were first group




singled out by Nazi hygiene laws in the 1930s
Have been subject to indefensible abuses of human
rights: eg experimentation: see Chelmsford deep sleep
therapy in NSW
Involves balancing between assessment of risk to
person and others and respect for autonomy
Dangers of unarticulated incorporation of nonlegislative factors by reference to “sanism”: Perlin
Easy to resort to fearfulness, paternalism & countertherapeutic stigmatisation
The Somewhat Exuberant Ethicist
Leslie Cannold
 “Victoria’s new Mental Health Act will
move it from the back of the human
rights bus to a leader in individuallyempowering patient care”
 6 March 2014
Psychopharmacology Origins




Established as a discipline in the 1950s
1952: first usage of antipsychotics, starting
with chlorpromazine (Largactil)
Followed by fluphenazine (Modecate), haloperidol
(Serenace), pericyazine (Neulactil) and trifluoperazine
(Stelazine): riskss: tardive dyskinesia, sedation, weight gain
etc
 Then the atypical antipsychotics: amisulpride (e.g. Solian),
aripiprazole (Abilify), clozapine (e.g. Clozaril), olanzapine
(Zyprexa), paliperidone (Invega), quetiapine (Seroquel),
risperidone (e.g. Risperdal): risks weight gain, sedation etc
 Reserve drug: clozapine (Clozaril): risk: agranulocytosis, a
serious blood disorder.
Other treatments:
ECT, Psychosurgery
• ECT: Cerletti & Bini: 1937
Scientific administration: Fink, 1950s
• Psychosurgery: commenced in 1930, became
relatively common in 1950/60s in US under Dr
Freeman (“The Lobotomist”)
• New phase in 2000s: deep brain stimulation
David Richmond Inquiry into Health Services for the
Psychiatrically Ill and Developmentally Disabled
 1983 report
 The precipitant to
deinstitutionalisation from
traditional, congregate care
 The start of the end of asylums
 The start of community based
treatment for persons with mental illnesses
United Nations Principles for the Protection of
Persons with Mental Illness and for the
Improvement of Mental Health Care, 1991
 It is not acceptable to have lower standards for mental health
care, in terms of either standards or resources, than in the rest of
the health system.
 Discrimination on the basis of mental illness is not permitted
 A person being treated for a mental illness must be accorded the
right to recognition as a person before the law.
 The principles reaffirm that individuals who have a mental
illness or who have experienced mental illness have the right to
protection from:
 exploitation -- whether economic, sexual or in other forms
 abuse -- whether physical or in other forms and degrading
treatment.
 the concept of the 'least restrictive alternative' in relation to
treatment and require an individualised plan for treatment
National Human Rights and Equal Opportunity inquiry
into the Human Rights of People with a Mental Illness
 Brian Burdekin: Federal Human
Rights Commissioner 1986-1994
 Landmark report identifying multiple
areas of discrimination and unsatisfactory
services provision in relation to
persons with mental illnesses
Burdekin Report, 1993
 People affected by mental illness are clearly among the
most vulnerable and disadvantaged in our community.
 They suffer from widespread, systematic discrimination
and are consistently denied the rights and services to which
they are entitled.
 The stigma and suspicion directed at people affected by
mental illness is a major barrier to their full and equal
enjoyment of life -- creating fear and isolation when people
are most in need of tolerance and understanding. The level
of ignorance and discrimination still associated with
mental illness and psychiatric disability in the 1990's is
completely unacceptable and must be addressed.
Mental Health Council, Out of
Sight, Out of Mind, 2003
 For over 10 years, our national policy & government-driven
reform processes have championed the appropriate move to noninstitutional forms of care. The overwhelming perception is
those who use of provide services is that we have now arrived at a
position of “OUT OF HOSPITAL; OUT OF MIND!” That is, one
of the most chronically disadvantaged groups in this country
continues to be ignored. After two 5-year National Mental
Health Plans this does not represent a failure of policy, but of
implementation. This includes poor government administration
& accountability, lack of ongoing government commitment to
genuine reform and failure to support the degree of community
development required to achieve high quality mental health care
outside institutions.
Mental Health Council “Not for
Service”, 2005
 After 12 years of mental health reform in Australia, any
person seeking mental health care runs the serious
risk that his or her basic needs will be ignored,
trivialised or neglected.
Senate Select Committee on
Mental Health 2006: Reports 1 & 2
 “There need to be more money, more effort and more
care given to this neglected part of our health system.
There is not enough emphasis on prevention & early
intervention. There are too many people ending up in
acute care and not enough is being done to manage
their illness in the community”
 Recommended harmonisation of mental health
legislation throughout Australia, at least in relation to
involuntary status.
Influences over the latest phase of
mental health law reform:
 Convention on Rights of Persons with Disabilities
Influences over the latest phase of mental
health law reform: (2) The Recovery Model
 Recovery seen as a personal journey rather than a set
outcome, and one that may involve developing hope, a
secure base and sense of self, supportive relationships,
empowerment, social
inclusion, coping skills, and meaning.
 Based on the 12-Step Program of
Alcoholics Anonymous
The cornerstone of the AHMAC National Framework
For Recovery-Oriented Mental Health Services, 2013
The Recovery Model
 Recovery oriented approaches recognise the value of lived
experience & bring it together with the expertise,
knowledge and skills of clinicians. They challenge
traditional notions of professional power & expertise by
helping to break down conventional demarcations between
consumers & staff.
 5 processes:
 From passive to active sense of self;
 Hopelessness to hope;
 From others’ control to self-control
 Alienation to discovery
 Disconnectedness to connectedness
Recovery Principles
 Uniqueness of the individual in having opportunities for choices





& loving a meaningful, satisfying & purposeful life & being
valued
Supporting and empowering the making of choices
Learning from & communicating with individual & carers &
supporting maintenance & development of social, recreational,
occupational & vocational opportunities
Sensitivity & respect for the dignity of the person & challenging
discrimination and stigma toward those with mental illnesses
Working in partnership with person and carers to provide
support, share information & communicate effectively
Evaluate progress to individuals & systemically to assess
outcomes
Mental Health Law Reform
 Mental Health Bill 2013(WA)
 Mental Health Act 2013 (Tas)
 Mental Health Act 2014 (Vic)
 Mental Health Amendment Act 2014 (Qld)??
Role of Mental Health Legislation
 To enunciate policy approach of the state
 To set the tone and aspirations for the provision of care and





treatment to patients, involuntary and voluntary, inpatient
and outpatient
To identify rights and obligations for patients and others
affected – eg carers, family members, police, treaters
To incorporate cultural and other relevant sensitivities
To provide guidance to clinicians, oversighting bodies such
as MHRTs and courts
To provide definitional and conceptual clarity
To proscribe (by criminal and disciplinary law) certain
forms of conduct
Topics of Recent Australian Mental
Health Legislation Reform










Legislative purposes
Mental illness definition
Involuntariness criteria
Treatment planning
Mental Health Tribunal oversight
ECT
Psychosurgery/Neurosurgery
Advance directives
Seclusion & restraint
Forensic issues
Purposes and objectives
 Section 4 is framed by reference to involuntary
assessment and treatment and protection of purposes
who have a mental illness.
 It is very limited in conception.
 The section 8 general principles provision is
important but could enunciate recovery principles
further
Assessment of Need for
Involuntary Status
 Content of assessment criteria:
 Risk that the person


May cause himself or herself or someone else harm
Suffer serious mental or physical deterioration
QUERY NEED FOR MAGISTRATE OR JUSTICE OF THE PEACE
ORDER AS AN OPTION
Definition of mental illness
 Significant disruption of thought, mood, memory or
perception
 Volition?
 Exclusions: personality disorders under DSM-5?
 Cp s4 of the Mental Health Act 2013 (Tas) which
requires experience of a serious impairment of thought
or of mood, volition, perception or cognition
Objects and Purposes
 Adequate for enunciating recovery and return to wellness







approach of contemporary mental health care and treatment?
Avoidant of stigma and discrimination?
Sufficiently patient-centred, inclusive?
Proper involvement of carers, family members etc through
advance directives?
Incorporating issues of cultural relevance – eg indigeneity?
Suitably pro-therapeutic in terms of minimisation of coercion,
enabling of second opinions?
Enabling of provision of effective care and treatment without
undue bureaucracy or legalistic processes?
Protective of community safety and facilitative of community
confidence, including by external oversight?
Involuntary Treatment Order
Criteria (s14)
 (d) criterion: imminent risk the person may cause
harm to himself or herself or someone else or suffer
serious mental or physical deterioration
 (f) lacks the capacity to consent to be treated for the
illness or has unreasonably refused proposed
treatment for the illness
Timing of Tribunal
Review
 Section 187: within 6 weeks and then
 not more than six monthly
 Compares favourably with Mental Health Act 1986
(Vic): 8 weeks for initial review and then 12 monthly
 Under Mental Health Act 2014 (Vic)(: review will take
place within 4 weeks
Treatment Plans
 Obligations exist for the generation of treatment plans
when person is subject to an involuntary treatment order
(s110), is a classified patient (ss72-73), has been determined
fit by the MHC (ss278-279) or is a forensic patient (ss307309)
 S124 requirements are very limited – outline of proposed
treatment or care, frequency, place, persons to administer
and duration of treatment or care, intervals for regular
assessment
 In Vic role for the MHRB under s19A and s35A removed by
2014 legislation: an unfortunate downgrading of the status
of treatment plans
Treatment Plans
 Need for them to be collaborative
 Signed by patient, psychiatrist,
case manager, involving perspectives of relevant others
 Need to deal with psychosocial, rehabilitation, cultural
and recovery issues
Advance Directives
 Principal may give directions about health matters for their
future care, provide information about the directions and
appoint a person to exercise powers if directions prove
inadequate: Powers of Attorney Act 1998 (Qld), s35
 Cp Vic 2014: s19: An advance statement is a document that
sets out a person's preferences in relation to treatment in
the event that the person becomes a patient.
 Room for a greater role in relation to consent to treatment,
other decisions or hearing before the MHC or the MHRT?
Other rights?
 Rights to second opinion
 Rights to legal representation
before MHRT
 Rights for voluntary
patients?
 What might the
right to health (eg in Art 12
the ICESCR) mean in
relation to mental health: a right to
services/care?
Psychosurgery
 Definition under dictionary: neurological procedure to
diagnose or treat mental illness. Not including epilepsy,
Parkinson’s disease or another neurological disorder
(chronic tic disorder, tremor & dystonia)
 MHRT must not approve under s233 unless satisfied:
 Person has the capacity to give and has given informed
consent; and
 Psychosurgery has clinical merit and is appropriate to the
circumstances;
 Every available alternative has been given w/o a sufficient &
lasting benefit and
 It is to be performed by a suitable person at an authorised
service
Psychosurgery definition (Vic)
 neurosurgery for mental illness means—

(a)
any surgical technique or procedure by which
one or more lesions are created in a person's brain on the
same or on separate occasions for the purpose of treatment;
or


(b)
the use of intracerebral electrodes to create one
or more lesions in a person's brain on the same or on
separate occasions for the purpose of treatment; or

(c)
the use of intracerebral electrodes to cause
stimulation through the electrodes on the same or on
separate occasions without creating a lesion in the person's
brain for the purpose of treatment;
Neurosurgery: Vic 2014 Act, s110
 The Tribunal must not grant an application unless it is satisfied that—
(a) the person in respect of whom the application was made has given informed
consent in writing to the performance of neurosurgery for mental illness on
himself or herself; and
(b) the performance of neurosurgery for mental illness will benefit the person.
(c) In determining whether the performance of neurosurgery for mental illness
will benefit the person, the Tribunal must have regard to the following—

(a)
whether the neurosurgery for mental illness is likely to remedy
the mental illness or alleviate the symptoms and reduce the ill effects of the
mental illness;

(b)
the likely consequences for the person if neurosurgery for
mental illness is not performed;

(c)
any beneficial alternative treatments that are reasonably
available and the person's views and preferences about those treatments;

(d)
the nature and degree of any discomfort, risks and common or
expected side effects associated with the proposed neurosurgery for mental
illness, including the person's views and preferences about any such
discomfort, risks or common or expected side effects.
Electroconvulsive therapy
 ECT is “the application of electric current to specific
areas of the head to produce a generalised seizure that
is modified by general anaesthesia and the
administration of a muscle relaxing agent. (Qld,
dictionary)
 Vic: electroconvulsive treatment means the
application of electric current to specific areas of a
person's head to produce a generalised seizure
Electroconvulsive therapy
administration: the Vic regime
 s92: ECT can be performed if the patient has given
informed consent in writing or the MHT has granted
approval
 S93:A psychiatrist can apply for an MHT ECT order if
the patient does not have capacity to consent and the
psychiatrist is satisfied in the circumstances there is
no less restrictive way for the patient to be treated.
ECT: No less restrictive treatment
S93 In determining whether there is no less restrictive way for the patient to be treated the
psychiatrist must, to the extent that is reasonable in the circumstances, have regard to all
of the following—
 (a)
the views and preferences of the patient in relation to electroconvulsive treatment
and any beneficial alternative treatments that are reasonably available and the reasons for
those views or preferences, including any recovery outcomes the patient would like to
achieve;
 (b)
the views and preferences of the patient expressed in his or her advance
statement;
 (c)
the views of the patient's nominated person;
 (d)
the views of a guardian of the patient;
 (e)
the views of a carer of the patient, if authorised psychiatrist is satisfied that the
decision to perform a course of electroconvulsive treatment will directly affect the carer
and the care relationship;
 (f)
the likely consequences for the patient if the electroconvulsive treatment is not
performed;
 (g)
any second psychiatric opinion that has been obtained by the patient and given to
the psychiatrist.
 Hearing must be within 5 days (s95) or less if psychiatrist so requestsas a matter of
urgency
Restraint & seclusion
 Strong lobby against these measures
 Use of force frequently counter-therapeutic:
detracts from dignity, demeaning, stigmatising,
Disempowering …
National Mental Health Commission: 2012 Report
Card on Mental Health & Suicide Prevention
 Recommended that action must be taken to reduce the
use of involuntary practices and work to eliminate
seclusion and restraint.
 To help drive change, the Commission has established
a national Seclusion and Restraint Project in
partnership with the Mental Health Commission of
Canada and key Australian partners, including the
Safety and Quality Partnerships Subcommittee, the
Australian Human Rights Commission, and interested
state mental health commissions.
National Mental
Health Commission
 Social Equity Institute at the University of Melbourne
engaged to look at best practice in reducing and eliminating the
use of seclusion and restraint in relation to mental health issues.
With the participation of people with lived experience, their
families, friends and supporters as well as practitioners and other
service providers working in a range of mental health, general
health, custodial and community settings, the project team aims
to:(1) identify and assess the drivers behind current practice in
Australia; (2) provide examples of how seclusion and restraint
practices have been reduced or eliminated; and (3) discuss
options for reducing and eliminating the use of seclusion and
restraint in relation to mental health issues in Australia.
Restraint & Seclusion
 Framed in terms of “mechanical restraint” s162A.
 No specific reference to “bodily restraint” or “chemical
restraint” (cp Tas)
 Doctor can authorise mechanical restraint for up to 3 hours
if satisfied it is the most clinically appropriate way of
preventing injury to the patient or someone else (s162D)
 Doctor (or in urgent circs the senior reg’ed nurse) can
authorise seclusion if reasonably satisfied it is necessary to
protect the patient or other persons from imminent
physical harm and there is no less restrictive way of
ensuring safety of patient or others (s162O)
Restrictive interventions: the
Victorian approach
 Defined as seclusion (defined as the sole confinement
of a person to a room or any other enclosed space from
which it is not within the control of the person
confined to leave) or bodily restraint (defined as a
form of physical or mechanical restraint that prevents
a person having free movement of his or her limbs, but
does not include the use of furniture (including beds
with cot sides and chairs with tables fitted on their
arms) that restricts the person's ability to get off the
furniture)
Restrictive interventions: the
Victorian approach
 A restrictive intervention may only be used on a
person receiving mental health services in a
designated mental health service after all reasonable
and less restrictive options have been tried or
considered and have been found unsuitable (s105)
 A person receiving mental health services in a
designated mental health service may be kept in
seclusion if seclusion is necessary to prevent imminent
and serious harm to the person or to another person
(s110)
Bodily restraint:
 A bodily restraint may be used on a person receiving
mental health services in a designated mental health
service if the bodily restraint is necessary—

(a)
to prevent imminent and serious harm to
the person or to another person; or

(b) to administer treatment or medical
treatment to the person (s113)
“Fitness for Trial”
 “fit for trial, for a person, means fit to plead at the
person's trial and to instruct counsel and endure the
person's trial, with serious adverse consequences to
the person's mental condition unlikely”
 Old fashioned
 Fails to deal with capacity to understand, make
choices, instruct counsel”
 No qualifying by reference to rationality: cp the Nahak
decision of Judge Rapoza in East Timor: see (2014)
21(4) PPL.
Forensic Orders
 Detain a person to a particular service
 Can be made by Mental Health Court and can be
revoked by the MHRT
 Criteria: Ct must have regard to the seriousness of the
offence, the person’s treatment or care needs & the
protection of the community
 Should have mechanism for guarding against
indefinite detention
 Advantages for victims & public record in having
“special verdicts” (as in NSW & Vic) where persons are
unfit to stand trial
Forensic Disability Orders
 What sort of differentiation should there be between
orders made by the Mental Health Court when a
person is permanently unfit for trial or unsound of
mind?
 What about when there is co-morbidity? Should a
forensic disability order authorise administration of
psychotropic treatment?
 What role is there, if any, for authorised mental health
services as places of detention?
Fitness for Trial or Unsoundness of
Mind in the Magistrates Court
 See Vic Law Reform Commission, asking (2013) about
extension of fitness issues into the Magistrates Court
and the Children’s Court
 What orders should it be able to make?
Pro-recovery Legislation
 What would be its
attributes?
 Clear recovery-focused
purposes & objectives
 Less facility for resort to
coercion
 More treatment planning
 More collaborative
 More empowering
 Better culturally attuned
 High level of respect for dignity and autonomy
Pro-recovery Legislation
 More effective in facilitating needed treatment
 Enabling of addressing co-morbidities and
impediments to recovery
 Less stigmatising
 More involvement of patient, carers, family members
 Emphasis on reintegration,
community participation