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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.
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– 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.
(Equal Opportunity and Human Rights Commission)
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.
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 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.”
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.
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.
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.
International human rights cases and principles say that limitations on rights:
Is it a justifiable restriction or is there a less restrictive approach which better respects people’s dignity, equality and freedom?
Economic, social and cultural rights
BUT charter rights may support arguments for right to treatment and support -
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.
LOBBY FOR CHANGES TO CHARTER ESPECIALLY AROUND 2010.
In all their dealings with all Consumers - voluntary and involuntary.
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.
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.
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.
Co-ordinator /Principal Solicitor Mental Health Legal Centre
Provision in Mental Health Act allowing use of mechanical restraint on patients to prevent “persistent destruction of property” likely to be invalid
Mental Health Services will have to be more careful about providing people with enough information to make properly informed decisions about treatment.
Sedating a person when they are transported by police or the CAT team may be a breach of Charter depending on the circumstances.
opportunities for MHLC, VMIAC and others to use charter for systemic change
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
Sophie Delaney – Co-ordinator /Principal Solicitor Mental Health Legal Centre
Need to lobby Australian Government to sign optional protocol
“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”
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.
Supported not substitute decision making model?
“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 . . .”
suggest that person’s wishes should still prevail?
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.
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.
More support for, eg, separate services for women