Abstract
Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. However, a key criterion for compulsory mental health treatment under typical mental health legislation is a psychiatric diagnosis (in conjunction with risk of harm and other criteria). Hence, for people with mental health disabilities, rights to liberty and consent in healthcare are held to a different standard compared to other citizens. A prominent law reform option being explored by some governments and commentators for achieving non-discrimination is to replace the diagnostic criterion for triggering involuntary intervention with an assessment of mental capacity. After all, every citizen is subject to restrictions on autonomy where they are deemed to lack mental capacity, such as where concussion necessitates emergency service. However, the use of mental capacity “testing” is seen by diverse commentators as wanting in key respects. A prominent criticism comes from the United Nations Committee on the Rights of Persons with Disabilities, which considers mental capacity assessments a form of disability-based discrimination. This article queries the call to replace the diagnostic criterion in mental health law with an assessment of mental capacity in the light of jurisprudence on equality and non-discrimination in international human rights law. Instead, we examine the doctrine of necessity as an area of law, which might help identify specific thresholds for overriding autonomy in emergency circumstances that can be codified in a non-discriminatory way. We also consider the need for deliberative law reform processes to identify such measures, and we suggest interim, short-term measures for creating a “supported decision-making regime” in the mental health context. The article focuses in particular on the Australian context of mental health law reform, though the analysis can be generalised to international trends in mental health law.
Highlights
Involuntary psychiatric intervention under mental health legislation faces an uncertain future
Under international human rights law the CRPD explicitly prohibits laws that discriminate on the basis of disability and recent statements by UN bodies, such as the United Nations
We offer an alternative avenue for rethinking mental health law and do so as one possible way to address the concern that prohibition of all forms of emergency intervention in which decisions are made “for” a person “places a greater burden on the concept of ‘support’ than it is able to bear, and in so doing, obscures the true nature of some types of decisions” ([9], p. 748)
Summary
Involuntary psychiatric intervention under mental health legislation faces an uncertain future. This article will assess and critique the proposal to introduce mental capacity assessments as grounds for involuntary intervention within mental health law It will use the analytical lens of international human rights law, with specific consideration of the underlying aim of such reform proposals to achieve equality and non-discrimination. The first section of this article will contextualise our argument by outlining two debates in the disability rights field that underpin calls for the reform of mental health law, namely: (1) the status of involuntary psychiatric intervention under international human rights law and (2) the meaning and application of the right to legal capacity. From there the article will discuss two steps toward developing such a codification: (1) creating procedures for active participation of persons with disabilities in law reform processes and (2) as a short and mid-term measure, rather than focusing on adding mental capacity assessments to mental health legislation, introduce measures of supported decision-making. See for example, Mental Health Act 2014 (Vic) No 26; Mental Health Act 2014 (WA); Mental Health Act 2013 (Tas)
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