Professor Bernadette McSherry Director, CALMH Australian Research Council Federation Fellow
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Transcript of Professor Bernadette McSherry Director, CALMH Australian Research Council Federation Fellow
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)