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Rethinking our mental health laws

Australia needs to reassess where it stands on mental health. Flickr/knicolai

Even a cursory glance at Australia’s mental health system indicates shortcomings in the provision of a range of services to people with mental impairments.

Since 1993, when the Human Rights and Equal Opportunity Commission conducted its National Inquiry into the Human Rights of People with Mental Illness, there have been a number of inquiries pointing to existing deficiencies in Australia’s mental health system.

We are legally and morally obligated to do better.

The United Nations Convention on the Rights of Persons with Disabilities, which Australia has ratified, requires the Australian government to provide “those health services needed by persons with disabilities specifically because of their disabilities”.

“Individuals with disabilities” includes those with long-term mental or intellectual impairments.

The recent boost of over $2 billion in federal government funding for mental health services over a five-year period is a welcome step towards achieving real progress in providing necessary services.

But the role of legislation in delivering these services is not always made explicit. Consider the state and territory laws which regulate the delivery of mental health services and which enable the involuntary detention and treatment of individuals with severe mental illnesses.

The medical treatment of many individuals with mental illnesses generally corresponds with the medical treatment of other patients in the sense that they can (at least in theory) refuse treatment and if hospitalised, leave hospital at any time and use the same complaints procedures as any other patient.

However, for those considered incapable of consenting to treatment or a danger to themselves or others because of mental illness, legislation enables them to be detained as involuntary patients.

The main “physical treatments” are drug therapy and electroconvulsive therapy, with the most invasive treatment, psychosurgery, still available in a few jurisdictions, but subject to legal safeguards.

Procedures that are sometimes used by way of emergency responses include restraint (which may be through the use of physical force or through the use of devices such as straps or harnesses), sedation and seclusion (confinement usually in a purpose-built room).

There is an obvious need for constant review of such laws that affect the rights to liberty and integrity of those with severe mental illnesses.

A number of state-based reviews of mental health legislation are currently afoot and the Fourth National Mental Health Plan calls for the regular review of mental health legislation to ensure compliance with national and international obligations.

However, ensuring that mental health laws protect rights in both theory and practice is an ongoing challenge.

As well as legal safeguards for the treatment of involuntary patients, further research is needed into laws which support access to appropriate medical treatment and which provide effective and workable alternatives to imprisonment for offenders with mental illnesses.

While it remains the case that legal provisions alone do not lead to the development of new services, any endeavour to support the rights of individuals with mental illnesses will only work if there are appropriate laws in existence shaping the way in which they can gain access to the highest attainable standard of mental health care. This applies across both civil and criminal justice systems.

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