recent trends in mental health laws, prof bernadette mcsherry
DESCRIPTION
Prof Bernadette McSherry, Recent trends in mental health laws, NUI Galway 23 June 2012, Mental health law reform: new perspectives and challengesTRANSCRIPT
Recent Trends in Recent Trends in Mental Health LawsMental Health Laws
Professor Bernadette McSherryDirector, CALMHAustralian Research Council Federation Fellow
Centre for the Advancement of Law and Mental Health
The CALMH TeamThe CALMH Team
Prof Bernadette McSherry Prof Ian Freckelton
Dr Ronli Sifris Jamie WalvischLiz Richardson
Sarah McHutchison
Kay Wilson
Dr Penny Weller
Dr Annegret Kämpf
Danielle Andrewartha Dr Laura Breedon
Piers Gooding
Kathleen Patterson
Sarah LenthallJacinta Efthim
ThemesThemes
The Rethinking Mental Health Laws The Rethinking Mental Health Laws ProjectProject
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
International Trends
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”.
Recognition of Legal Capacity – Art 12Recognition 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
Right to the Highest Attainable Right to the Highest Attainable Standard of Mental Health – Art 25Standard 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
International Trends
Supported decision-making Voluntary access to health care Involvement of carers
Supported Decision-making
Abolition of substituted decision-making?
Victorian Law Reform Commission
A substituted judgment approach
Hierarchy of decision-making
–Supporters
–Co-decision makers
Access to ServicesAccess 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
Incorporating Carers’ Rights in Mental Health Legislation
Involvement in decision-making processes
Involvement in review processes
Access to information and confidentiality
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”
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
Involvement in Decision-making
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
Involvement in Review Processes
Scotland law reforms included:Allowing tribunal members to accept information in confidenceConducting hearings in a less adversarial mannerExtending carers’ rights of notificationProviding carers access to free legal representation
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
Access to Information
To disclose or not
to disclose
?
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
ConclusionConclusion
Emphasis on voluntary treatment wherever possible
Inclusion of positive rights
More pressure on governments to provide adequate mental health services
Further InformationFurther 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)