Is Australia failing psychiatric patients by breaching the United Nations Convention?

Introduction:

In this essay I will be discussing the obligations that Australia has under the Convention of the Rights of Persons with Disabilities (Convention) which australia ratified in 2008. The major issue that has arisen is by detaining people with a mental illness for involuntary treatment we are holding them against their liberty and therefore we are depriving them of their freedom in regards to fulfilling their legal capacity and their right not to have their liberty deprived. Following from this, I will be looking at whether the least restrictive principle that Mental Health and Wellbeing Act 2022 (VIC) stipulates? reflects the obligation that state parties have under the Convention and whether these obligations are reflected in the Charter of Human Rights and Responsibilities Act 2006 (VIC). Finally I will be comparing this Australia's’ mental Health system with the Italian Mental Health system.?

Convention of the Rights of Persons with Disabilities:

There are numerous articles under this convention that protect people with a disability from being exploited and abused due to their condition. Australia has signed and ratified this Convention in 2008 which therefore means that Australia has an obligation to implement these articles into Australian law.?

Article 12 of the Convention deals with legal capacity and that a person with a mental or intellectual disability should be presumed and treated as they have legal capacity. This article states that “persons with disabilities have the right to recognition everywhere as persons before the law” (Convention on the Rights of Persons with Disabilities, GA Res 61/106 UN Doc: A/RES/61/106 (adopted 12 December 2006)) and that state parties are to implement “measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.”. (Convention on the Rights of Persons with Disabilities, GA Res 61/106 UN Doc: A/RES/61/106 (adopted 12 December 2006) Article 14 of the Convention states that a person with a disability should not be deprived of their freedom by detaining a person against their free liberty. This articles states that a “persons with disabilities, on an equal with other [e]njoy the right to liberty and security of person; ]A]re not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.” (Convention on the Rights of Persons with Disabilities, GA Res 61/106 UN Doc: A/RES/61/106 (adopted 12 December 2006) Article 17 of the Convention states that “[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others”(Convention on the Rights of Persons with Disabilities, GA Res 61/106 UN Doc: A/RES/61/106 (adopted 12 December 2006), this provision gives the power to a person with a disability to be uncharge of their physical and mental condition with the obligation that everyone around them needs to respect their prerogative.

There has been recent debates from the traditional approach that under certain circumstances a person lacks legal capacity however recently and especially since this Convention has come into force there has been acknowledgement that “the exercise of legal capacity reflects an individual’s right to make decisions for himself or herself” (Bernadette McSherry, ‘Legal Capacity under the Convention on the Rights of Persons with Disabilities’ (2012) Journal of Law and Medicine 23)and that “the exercise of legal capacity refers to the power of the individual to stop others from purporting to make decisions on his or her behalf.” (Bernadette McSherry, ‘Legal Capacity under the Convention on the Rights of Persons with Disabilities’ (2012) Journal of Law and Medicine 23)?However, this goes further in the regards that a person with a mental or intellectual disability needs to be provided with the support to be able to fulfil their legal capacity even if they need intensive support to fulfil there legal capacity because currently “[w]here there is a diagnosis, mental health professionals are often empowered to deny the legal capacity of the individual and make decisions on their behalf.” (Anna Arstein-Kerslake, ‘Challenging the foundations of mental health law’ (2015) 128 PrecedentAULA 37)

The debate about the issue of detaining a person against there free will has always debatable however the involuntary admission and detention of a person with a mental health is a clear breach of the convention. Even though it is for the protection of the persons’ safety and the community, this means there liberties are being deprived and therefore they may as well be in a prison as the “[l]aws that permit the involuntary detention of a person with a mental health diagnosis are contradictory to the text of this Article. According to Article 14, ‘unsoundness of mind’ is no longer a justification for the detention of an individual, which is evidenced by its absence in the text.”(Anna Arstein-Kerslake, ‘Challenging the foundations of mental health law’ (2015) 128 PrecedentAULA 37) This is a really important as it is a well established principle of habeas corpus that you cannot detain a person unlawfully but this is exactly what is happening in Australia however the question is this necessary when there is a serious risk that a person may go and harm or kill innocent members of the community.?

Article 17 is something that people who do not have a disability take for granted however it is something that is often violated far too commonly. A violation of this article could backfire the whole purpose of psychological treatment especially when someone becomes an involuntary patient. It is a very well known principle in regards to Human Rights that you cannot control a persons mental and physical health as everyone has the right to be respected however this is very questionable when it comes to a person with a disability. In Australia this is something that is not very well respected as the lives of people with disabilities are often controlled and their wishes and rights do not get respected.?

These articles in the Convention is very important when we look at the decision of involuntary treatment and the compliance of Australia’s legislation. Even though under legislation the medical team must exercise the least restrictive practice but this is not always the case as the practise of involuntary compulsory treatment occurs when the medical treating team deem that you are a risk to yourself or to the community. This means that Australia may be breaching articles 12, 14 and 17 as we are allowing hospitals to hold patients against their liberty. However, it is not just the issue of depriving someone to live their life freely it goes further to the issue that we are depriving the person the ability to fulfil their legal capacity and prohibiting them from to exercising the rights that they are entitled to under the convention.?

Least Restrictive Practice:

Section 18 of the Mental Health and Wellbeing Act 2022 (VIC) requires for mental health treatment team to provide the least restrictive treatment to the patient to protect their rights and freedom of liberty. However under the Victorian Act, medical practitioners still have the ability to over rule the patients’ will and wishes and to order a compulsory treatment order. Therefore t is arguable that the victorian act is not compliant with the Convention.?

Section 80 of the Mental Health and Wellbeing Act 2022 (VIC) states that “[t]he use of compulsory assessment and treatment or restrictive interventions significantly limits a person’s human rights and may cause possible harm including—a. serious distress experienced by the person; and b. the disruption of the relationships, living arrangements, education or employment of the person.” In Victoria, this human right limitation is supported unfortunately in section 7 (2) Charter of Human Rights and Responsibilities Act 2006 (VIC) where it states that “[a] human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—(b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.” This provision of the charter is in clear violation of the convention as it gives the right to detaining a person against their liberty which the Convention provides no justification for detaining a person against their liberty.?

However some people would argue that if a person is so unwell that they are a danger to society then the law should allow for involuntary treatment. The question is can we detain someone against their liberty because of their disability when the person does not want treatment? By the law allowing this to happen we are discriminating people based on their disability. Yes, it may be a safety issue but perhaps we need to look at other more humane ways so we are not violating the basic principle of detaining someone against their liberty due to their disability. We need to be asking ourselves by the practice of involuntary treatment are we preventing people from seeking the help they need due to the fear and the consequences that may occur? Perhaps this is the case and therefore that is why people become more vulnerable. If we changed our position and view as to how we can provide a more holistic approach while protecting people from harming themselves and others, perhaps this will be better for society and will help with the stigma that exists around mental health.?

International comparison:

Italy has been regarded as a prime example of Human Right reform as Italy has one of the lowest numbers of involuntary patients in world as the main emphasis for treatment is a more wrap around and holistic approach. For someone to be admitted as an involuntary patient it needs to be established that a person needs urgent psychological support, the treatment cannot be appropriately provided out side of the hospital and all attempts of getting the person to engage with mental health services have been exhausted (Mental health law: a comparison of compulsory hospital admission in Italy and the UK’ , (Web Page, 06 October 2023)). However as a mechanism to ensure that that person is not being detained against their liberty, there must be two medical practitioners and the mayor of the municipality of where the person lives have to be in agreement that the only option left is involuntary treatment. The mayor has 48 hrs to complete this admission however involuntary hospital treatment can only be for seven days unless authorised by mayor or judge(Mental health law: a comparison of compulsory hospital admission in Italy and the UK’ , (Web Page, 06 October 2023)). This is a really important safety mechanism as it gives people a sense of security and hope about their rights as currently in Australia even though we have a Mental Health Tribunal, the primary decision maker is the person in charge of that patients treatment. Therefore it is arguable that in the tribunal sense the medical treating practitioner is wearing two hats, one the tribunal decision maker and the doctor. This is something that Australia could look at, as having that second compulsory opinion would help to protect peoples rights but also give patients a sense of comfort and power as there is more than one person deciding their treatment.?

Italy has identified rightly so that involuntary treatment can be counter-productive as even though it may prevent the person from immediate harm to themselves or others but it is an immediate? violation of their freedom and that they are being detained against their liberty. This involuntary treatment may have a positive intention however it arguable that it actually has a negative affect as it is more likely that the person’s behaviour will become more heightened and volatile which means they will become treatment resistant(‘Involuntary Hospitalizations in an Italian Acute Psychiatric Ward: A 6 Year Retrospective Analysis’ , (Web Page , 14 December 2023)). This is really important when we look at the Convention as when we are putting someone into involuntary treatment we are not just breaching article 14 but we also are breaching article 5 because we are discriminating against a person due to their disability, and we are also breaching article 17 which is essential to respecting people’s physical and mental health prerogatives.?

Conclusion:

From my analysis, it is clear that the Mental Health and Wellbeing Act 2022 (VIC) has breached the Convention. While the intention of the breach is arguably justified however from my analysis this justification under the Charter of Human Rights and Responsibilities Act 2006 (VIC) is in breach of article 12, 14 and 17 of the Convention which Australia has ratified. Therefore, Australia needs to look at other ways to treat patients who are at risk of harming themselves or other people as the Convention does not give any leeway for any justification for detaining a person against their liberty. By Australia allowing this practice to continue we are failing people with disabilities, in particular those with mental health issues, who are entitled to have their rights protected given that Australia has ratified this Convention and therefore Australia could look at other countries like Italy to create a system that is more supportive of people with psychological issues.?

Bibliography

A Articles

Arstein-Kerslake, Anna, ‘Challenging the foundations of mental health law’ (2015) 128 PrecedentAULA 37.

McSherry. Bernadette, ‘Legal Capacity under the Convention on the Rights of Persons with Disabilities’ (2012) Journal of Law and Medicine 23

C Legislation

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Mental Health and Wellbeing Act 2022 (Vic)

D Treaties

Convention on the Rights of Persons with Disabilities, GA Res 61/106 UN Doc: A/RES/61/106 (adopted 12 December 2006)

E Other

‘Involuntary Hospitalizations in an Italian Acute Psychiatric Ward: A 6 Year Retrospective Analysis’ , (Web Page , 14 December 2023)?

‘Mental health law: a comparison of compulsory hospital admission in Italy and the UK’ , (Web Page, 06 October 2023)?