Is There a Future for Involuntary Treatment in Rights-Based Mental Health Law?

Psychiatry, Psychology and Law, Vol. 21, No. 5, pp. 747-766, 2014

Sydney Law School Research Paper No. 15/08

30 Pages Posted: 25 Feb 2015

See all articles by Sascha M. Callaghan

Sascha M. Callaghan

The University of Sydney Law School

Christopher Ryan

University of Sydney - Sydney Medical School

Date Written: February 19, 2015

Abstract

Involuntary psychiatric treatment is currently permitted in all Australian jurisdictions. In almost all, Tasmania being a recent exception, this is so regardless of the person’s ability to make his or her own decisions about treatment. In recent years mental health legislation has come under pressure from several quarters, most urgently, as a result of Australia’s ratification of the United Nations Convention of the Rights of Persons with Disabilities. While interpretation of the Convention is not yet settled, the UN High Commissioner for Human Rights and the UN Disabilities Committee have both indicated that supported decision-making regimes must be instituted in place or substituted decision-making arrangements and that involuntary treatment is no longer permissible under the CPRD.

This article argues that in order to give effect to the provisions of the CRPD, new supported decision-making regimes must be incorporated into mental health legislation but that these must admit a limited role for substituted decisions, including involuntary treatment, where a person lacks decision-making capacity. We argue that such a scheme can, and must, respect the rights, will and preferences of the person affected. Furthermore, we suggest that failing to account for it in law will jeopardise rights more than it protects them.

Keywords: mental health law, involuntary treatment, legal capacity, Convention on the Rights of Persons with Disabilities

JEL Classification: K10, K30, K32

Suggested Citation

Callaghan, Sascha M. and Ryan, Christopher, Is There a Future for Involuntary Treatment in Rights-Based Mental Health Law? (February 19, 2015). Psychiatry, Psychology and Law, Vol. 21, No. 5, pp. 747-766, 2014; Sydney Law School Research Paper No. 15/08. Available at SSRN: https://ssrn.com/abstract=2567511

Sascha M. Callaghan (Contact Author)

The University of Sydney Law School ( email )

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

Christopher Ryan

University of Sydney - Sydney Medical School ( email )

C24 - Westmead Hospital
The University of Sydney
Sydney, New South Wales 2006
Australia

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