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Pushing the Boundaries: Realising Rights Through Mental Health Tribunal Processes?

Sydney Law Review, Vol. 30, No. 2, pp. 329-356, 2008

Sydney Law School Research Paper No. 08/104

42 Pages Posted: 16 Sep 2008  

Terry Carney

The University of Sydney Law School

David Tait

University of Canberra

Fleur Aileen Beaupert

La Trobe University - School of Law

Date Written: September 14, 2008

Abstract

Mental health jurisprudence traditionally was more concerned to protect negative or 'liberty' rights than to advance positive rights of access to needed mental health care and treatment. North American test case litigation contributed to advances in the quality of mental health and other services in some instances, but the record is patchy. Socio-legal studies of mental health tribunal operations in England and Wales suggest that health paradigms are dominant, and that legal norms and standards may be weak reeds in this setting. This article reviews the diverse legislative models in three main Australian jurisdictions before examining fieldwork data on the extent to which Australian mental health tribunal 'push the boundaries' of the law in order to obtain favourable treatment outcomes. It argues that, contrary to overseas experience, Australian tribunals merely 'nudge', rather than disturb, the legal boundaries.

Keywords: mental health, treatment access, legal leverage, law in action, reform

JEL Classification: I10, I18, K10, K30, K40

Suggested Citation

Carney, Terry and Tait, David and Beaupert, Fleur Aileen, Pushing the Boundaries: Realising Rights Through Mental Health Tribunal Processes? (September 14, 2008). Sydney Law Review, Vol. 30, No. 2, pp. 329-356, 2008; Sydney Law School Research Paper No. 08/104. Available at SSRN: https://ssrn.com/abstract=1268104

Terry Carney (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

David Tait

University of Canberra ( email )

Law Faculty
Canberra, ACT 2601
Australia

Fleur Aileen Beaupert

La Trobe University - School of Law ( email )

Melbourne
Victoria, 3086
Australia

HOME PAGE: http://www.latrobe.edu.au/law

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