What might Victoria’s Charter
of Rights and Responsibilities
Act 2006 offer people with
psychiatric disability?
Sophie Delaney
– Co-ordinator /Principal Solicitor
Mental Health Legal Centre
Thanks to lawyers Allens Arthur
Robinson for providing extensive legal
advice on the Charter and Convention
and to the Human Rights Law Resource
Centre for invaluable support and
resources.
FRED
• Freedom
• Respect
• Equality
• Dignity
(Equal Opportunity and Human Rights
Commission)
What does Charter say?
• All Victorians have right to:
– Recognition and equality before the
law – includes freedom from
discrimination because of psychiatric
disability and freedom to make your
own decisions.
– Right to life.
Right not to be tortured
or treated in a cruel,
inhuman or degrading
way
Includes freedom from:
“medical or scientific treatment without full,
free and informed consent”.
So if might seem that people can’t be forced
to have mental health treatment, unless they
agree after being given enough information
to make a properly informed decision.
Charter also states have right to:
• Freedom of movement;
• Privacy and reputation;
• Freedom of thought, conscience, religion
and belief;
• Freedom of expression;
• Liberty and security of person;
• Humane treatment when deprived of liberty.
Charter also states have right to:
• A fair hearing; and
• A number of protections if you are
charged with a criminal offence eg
–Information;
–Preparation
–Legal representation and help to
communicate.
But . . Rights can be limited ...
Charter also says rights can be limited by
other Acts/pieces of legislation, by
“reasonable limits that can be demonstrably
justified in a free and democratic society
based on human dignity, equality and
freedom , and taking into account all
relevant factors.”
Is it reasonable to limit right? –
factors to look at:
•
•
•
•
What the right is
How important it is to limit it
What the limitation is and how far it goes
Whether the limitation is achieving its
purpose
• Any less restrictive way of achieving the
purpose.
Examples of rights limitations
Barbara, David and Mark will talk
about how the Mental Health Act
limits the right to refuse treatment
for people with a diagnosis of
mental illness.
Examples of rights limitations
Administration orders take away
people’s freedom to make decisions
about their finances, so they seem to
limit right to equality before the law.
The purpose of administration orders is
said to be to protect people with decision
making disabilities from making bad
financial decisions.
Eg - Administration cont. . .
• Ask:
–Is protecting a person/people
important enough,
–whether order/orders go too far,
–whether it actually works,
–Is there a less restrictive way of
preventing financial harm?
Eg - Administration cont. . .
• Also must consider how order impacts on
people’s dignity, equality and freedom.
• Charter argument for moving to a
supported, not substituted decision making
model. If people get right help to manage
finances themselves they may not need
administrators.
How rights can be limited . . . .
International human rights cases and
principles say that limitations on rights:
• Must not contradict essence of Charter
rights
• Must not be arbitrary or unreasonable
• Must be able to be challenged and reviewed
• Must respond to a pressing need.
Balancing exercise
Is it a justifiable restriction or is
there a less restrictive approach
which better respects people’s
dignity, equality and freedom?
What will Charter change if laws
already require balance?
• Eg involuntary treatment under Mental
Health Act and Administration Orders.
• Legal advice to MHLC is that the
Charter “fortifies "or strengthens
the obligation to respect rights
wherever possible.
Charter doesn’t cover:
Economic, social and cultural rights
• Eg Right to best quality health services
• Right to safe and affordable housing,
employment and financial security.
BUT charter rights may support
arguments for right to treatment
and support -
Supports right to services
• Eg in England right to life meant hospital
had to provide whatever reasonable
treatment it could to prevent suicide of an
inpatient .
• Right to humane treatment in detention right to particular treatments and supports
when in prison or hospital.
Charter may create some limited
rights to receive services cont.
• European Court of Human Rights
has held that failure to provide
adequate treatment to a prisoner
violated right to freedom from
cruel, inhuman or degrading
treatment.
Service/housing/economic and
related rights might be added . .
• Charter says after the end of 2010 the
Attorney-General must review Charter and
consider, amongst other things, whether
these rights should be included.
LOBBY FOR CHANGES TO
CHARTER ESPECIALLY AROUND
2010.
The Victorian Government must
make legislation consistent with
Charter
• All new Acts of Parliament or amendments to
Acts must include a statement of compatibility
about whether and how the act is inconsistent
with Charter rights.
• Scrutiny of Acts and Regulations Committee
must examine new laws against Charter.
• Parliament can, in exceptional circumstances,
declare that an Act or part of it is valid even
though inconsistent with Charter.
Acts of Parliament and the
Charter
• A declaration by Parliament that
part of an Act is valid even
though incompatible with
Charter (Override Declaration)
can only last five years but can
be renewed by Parliament.
Public Authorities must also
comply:
Including:
– Public psychiatric services – hospitals,
clinics, CCUs, CAT teams, MST Teams,
and many programs of PDRSS’s like
Prahran Mission.
In all their dealings with all Consumers
- voluntary and involuntary.
Individual mental health workers
must also comply . . .
– Psychiatrists, doctors and casemanagers
at public mental health services.
– Private doctors acting under the Mental
Health Act eg signing a recommendation
for involuntary treatment or providing
treatment under a community treatment
order.
Must also comply . . .
• Police
• Office of Police Integrity
• Ambulance officers
• Office of the Chief Psychiatrist
• Health Services Commissioner
These “public authorities”
• Don’t breach Charter if acting under
another law - eg Mental Health Act - and it
would not have been reasonable for them to
act or decide differently.
• “Reasonableness” leaves room for argument
and especially in early days boundaries
should be tested.
Courts and tribunals must also
comply and must:
• Interpret and apply laws consistently with
Charter – includes Mental Health Review
Board, VCAT re eg Administration Orders,
Freedom of Information appeals and
Discrimination actions.
• Give people “fair hearings” as set out in the
Charter.
What can you do about Charter
breaches?
• Can’t bring a Charter only Court action –
though Government might change in 2010
review.
• Eg – can’t sue for Charter damages only if
secluded in an inhuman or degrading way
but Charter may strengthen civil action,
complaint to Health Services Commissioner
or Mental Health Review Board case.
What can you do about Charter
breaches?
• Can’t get money compensation just
because Charter breached – but –
eg; Charter may make it easier to
prove that especially undignified or
rough treatment by police means
you should get common law
damages.
Use Charter to strengthen
actions at, eg:
• Mental Health Review Board.
• VCAT re adminisitration orders, freedom of
information complaints, discrimination cases.
• Courts re medical negligence, breach of
statutory duty, assault, false imprisonment etc
• Courts and tribunals - Use the Charter if, for
example, you don’t have a lawyer and need
more help with procedures.
You can use Charter arguments to
strengthen any complaints to, eg:
• Public hospitals or clinics, the Health
Services Commissioner, Chief Psychiatrist,
or the Ombudsman about how you are
treated by mental health services.
• To police stations, Ethical Standards
Department or the Office of Police Integrity
about the way you are treated by police.
You can use Charter arguments to
strengthen any complaints to, eg:
• Any Victorian (not Commonwealth)
Government department about the
way you are treated.
• Victoria Legal Aid re refusal to
provide legal assistance or funding.
We can all use Charter to try to
achieve systemic change
• Organisations like MHLC and VMIAC can
use people’s experiences of Charter
breaches to argue for changes to the law,
legal system and mental health system.
• Vivienne will talk re one example MHLC is
working on – Advance Directives.
We can all use Charter to try to
achieve systemic change
Another way - through the Equal
Opportunity and Human Rights
Commission - they have to report each year
to the Attorney General on how the Charter
is operating and how it is interacting with
other laws.
We can all use Charter to try to
achieve systemic change
• Raise Charter rights for a better deal at an
individual or systemic level.
• Advocates, the Equal Opportunity and
Human Rights Commission, mental health
and support workers and others will be keen
to use the Charter to achieve change – so
seek advice and assistance.
What other issues of concern to
Consumers might the Charter
impact on?
Sophie Delaney
Co-ordinator /Principal Solicitor Mental
Health Legal Centre
Not Complete List of Issues
• Charter won’t directly address all the rights
related problems that MHLC clients and
consumers more generally face.
• Early days and unclear what power Charter
will have in terms of the issues which are
covered.
Not Complete List of Issues
• Not all MHLC policy and law reform issues
will be covered in presentations and not all
already on survey.
• Important when we get to more formal
consultation that you add your own priority
rights issues if not already on list.
Test Charter Boundaries in
Early Days
• We are committed to supporting consumers
to use Charter as effectively as possible .
• Always ask the question – are my FRED
rights being violated:
FREEDOM
RESPECT
EQUALITY
DIGNITY
Test Charter Boundaries . . . . .
• Always get advice – MHLC now has evening
telephone legal advice as well as day time
sessions.
• Understanding and applying Charter a long
term process for everyone.
• MHLC and others will continue to explore
implications, test Charter in its work and report
through Annual Report and Website.
MHLC will:
• Send attendees a copy of report on this
forum to Victorian Equal Opportunity and
Human Rights Commission.
• Include a report on people’s priority issues.
• We are keen to know the views of
consumers and non-consumers here today
but please indicate capacity in which here.
Examples of Likely Impact • If police are unreasonable or excessive in
the way they exercise their power under the
Mental Health Act to apprehend people they
feel are at risk, it might amount to “cruel,
inhuman or degrading treatment”:
– Capsicum spray and Taser stun guns?
– Transport in police vehicles degrading?
– Semi-automatic guns?
Examples of Likely Impact
• Provision in Mental Health Act
allowing use of mechanical restraint on
patients to prevent “persistent
destruction of property” likely to be
invalid
Eg: Restraint and Seclusion
• Charter breaches likely if not done as per
Act, excessively, or causes unnecessary
suffering or pain; and
• Charter supports lobby to eliminate such
practices completely, as has happened in
some United States jurisdictions with
seclusion, for example.
Example of Likely Impact:
• Mental Health Services will have to be
more careful about providing people with
enough information to make properly
informed decisions about treatment.
Example of Likely Impact:
• Right to humane treatment in detention means
people in hospital should be guaranteed the
same conditions as free persons as far as
possible – eg:
•
•
•
•
Phones that work and family friendliness;
Fresh air/exercise/meaningful activities;
Freedom to smoke;
General wards not being locked.
Example of Likely Impact:
• Right to humane treatment in hospital – as
well as right to privacy and right to freedom
from inhuman or degrading treatment - create
strong argument for separate services for
women.
– Use for systemic change or to strengthen a
discrimination claim – not providing separate
services is arguably discriminatory and Charter
may strengthen case.
Example of Likely Impact
Sedating a person when they
are transported by police or
the CAT team may be a
breach of Charter depending
on the circumstances.
Charter provides additional
rights for
• Children – right to protection
needed by children, and specific
rights in criminal proceedings.
• Indigenous Australians – right to
enjoy identity and culture and
maintain language and kinship ties.
Charter can also Steer
Law Reform eg:
• Review of Mental Health Act; and
• Monash University/ARC Project “Rethinking Mental Health Laws” are
opportunities for MHLC, VMIAC and
others to use charter for systemic
change
Charter supported law reform
examples:
• MHLC’s longstanding campaign for natural
justice re ECT.
• MHLC/VMIAC concerns re inadequacy of
complaints processes - European Court of
Human Rights said there are minimum
standards of independence and competence for
complaint that restraint of detainee with mental
illness was a breach of human rights.
Real accounts from those with
experience crucial to achieve
change
• Tell us and tell:
– Mental Health Minister (Mental Health Act
being reviewed during 2008 and 2009).
– Office of Chief Psychiatrist, Ombudsman,
Equal Opportunity and Human Rights
Commission, Mental Health Review Board.
– Monash Uni Project:
www.law.monash.edu.au/rmhl
To change attitude, policies,
practice or day to day treatment of
people with psychiatric disability –
cite Charter.
IF IT’S ABOUT FREEDOM,
RESPECT, EQUALITY AND
DIGNITY
United Nations Convention on the
Rights of People with Disabilities and
the Charter
Sophie Delaney – Co-ordinator
/Principal Solicitor Mental Health
Legal Centre
What is Convention?
• Statement by the United Nations on the
rights of people with disabilities including
psychiatric or psychosocial disability.
• Australia is likely to ratify it later this year.
What is Convention?
• Not clear that Australia will sign the
optional protocol - that would allow
Australian groups and individuals to
complain to UN Committee re breaches.
Need to lobby Australian Government to
sign optional protocol
What is its relevance in Victoria?
• Charter says the Convention can be used in
interpreting legislation like the Mental Health
Act.
– Eg if the UN Committee on the Rights of Persons
with Disabilities made a decision that involuntary
treatment was only lawful where a person was
actively suicidal that might influence how the
involuntary criteria under the Mental Health Act
are interpreted.
What does Convention say?
• Recognises the “importance for persons
with disabilities of their individual
autonomy . . . including the freedom to
make their own choices”.
• Recognises right to the enjoyment of the
highest attainable standard of health without
discrimination .
First general principle of
Convention:
“Respect for the inherent dignity,
individual autonomy including freedom
to make one’s own choices, and
independence of persons”.
Once ratified, Australia must:
“adopt all appropriate legislative,
administrative and other measures for the
implementation of Convention rights”
Appropriate legislative measure:
Eg:
• Advance directives with legislative
force – allow people to make
decisions about treatment in advance
when not deprived of capacity by
symptoms.
Australian Government must
report to UN
• On progress towards implementing
Convention – including economic, cultural
and social rights - and
• Must make reports public;
• UN Committee can make suggestions and
general recommendations and reports to UN
General Assembly and Economic and
Social Council.
Article 12 – Equal Recognition
before the Law
• “. . .persons with disabilities enjoy legal
capacity on an equal basis with others in all
aspects of life.”
• “ . . .access by persons with disabilities to
the support they may require in exercising
their legal capacity”
Supported not substitute decision making
model?
Equal Recognition before the
Law – supported not substitute
decision making?
• “all measures that relate to the exercise of
legal capacity (must) provide for
appropriate and effective safeguards to
prevent abuse . . . . safeguards shall ensure
measures respect the person’s rights, will
and preferences . . . . are proportional and
tailored to the person’s circumstances,
apply for the shortest time possible . . .”
Supported or Substitute Decision
Making?
• Do fact that:
– Measures Article 12 refers to are to give people
the support they need to exercise their capacity;
and
– measures must respect “rights, will and
preferences”
suggest that person’s wishes should still prevail?
On other hand . . .
• Australian Human Rights and Equal
Opportunity Commission and others
have expressed the view that the
provisions about safeguards would
be meaningless if involuntary
treatment not allowed.
What is clear . . . .
• The debate as to the impact of
Convention on involuntary treatment
will continue for some time; and
• The Convention does tilt the Mental
Health Act and similar legislation
further towards freedom of decision
and personal autonomy.
What is also clear:
• Convention strengthens argument for
governments to introduce legally
enforceable advance directives.
• Mental health services and other public
authorities should consider whether their
policies and procedures are in line with
Convention as well as Charter.
Another example of how
Convention might influence
change:
• Article 16 requires governments to
prevent exploitation, violence and
abuse by ensuring appropriate forms of
gender and age sensitive assistance and
support:
More support for, eg, separate
services for women