Prof Bernadette McSherry, Recent trends in mental health laws, NUI Galway 23 June 2012, Mental health law reform: new perspectives and challenges

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 Annegret Kämpf Sarah Lenthall Sarah McHutchison
Kathleen Patterson Liz Richardson Dr Ronli Sifris 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 To
–In Scotland, the named d is c lo
person is required to s e or
be notified in certain no t to
circumstances d is c lo
se

19. Access to Information: As a General
 Sec1(5)(b) Mental Health (Care and
Principle
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)