Presentation Transcript

1. 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
2. The CALMH Team Prof Bernadette McSherry Prof Ian Freckelton Dr Penny Weller Danielle Andrewartha Dr Laura Breedon Jacinta Efthim Piers Gooding Dr AnnegretKämpf Sarah Lenthall Sarah McHutchison Kathleen Patterson Liz Richardson Dr RonliSifris Jamie Walvisch Kay Wilson
3. Themes
4. 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
5. International Trends
6. 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”.
7. 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
8. 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
9. International Trends Supported decision-making Voluntary access to health care Involvement of carers
10. Supported Decision-making Abolition of substituted decision-making?
11. Victorian Law Reform Commission A substituted judgment approach Hierarchy of decision-making Supporters Co-decision makers
12. 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
13. Incorporating Carers’ Rights in Mental Health Legislation Involvement in decision-making processes Involvement in review processes Access to information and confidentiality
14. 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”
15. 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
16. 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
17. 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
18. 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 ?
19. 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
20. Conclusion Emphasis on voluntary treatment wherever possible Inclusion of positive rights More pressure on governments to provide adequate mental health services
21. 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)