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.
– 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.
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.
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?
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.
Economic, social and cultural rights
BUT charter rights may support arguments for right to treatment and support -
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.
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.
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.
In all their dealings with all Consumers - voluntary and involuntary.
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.
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.
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.
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.
Any Victorian (not Commonwealth) Government department about the way you are treated.
Victoria Legal Aid re refusal to provide legal assistance or funding.
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.
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.
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.
Co-ordinator /Principal Solicitor Mental Health Legal Centre
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 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.
We are committed to supporting consumers to use Charter as effectively as possible .
Always ask the question – are my FRED rights being violated:
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.
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.
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.
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.
Review of Mental Health Act; and
Monash University/ARC Project “Re-thinking Mental Health Laws” are
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
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.
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
“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?
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