Mental health and human rights

3 Feb

In addition to the human rights principles underpinning the MHW Act, the Human Rights Charter (s 38) requires public authorities to give proper consideration to and act consistently with human rights. The Human Rights Charter also requires courts and tribunals to interpret and apply legislation in accordance with human rights. The Human Rights Charter rights that are relevant to people receiving psychiatric treatment include:
- recognition and equality before the law (s 8);
- the right to life (s 9);
- the right to protection from cruel, inhuman or degrading treatment or punishment (s 10(b));
- the right not to be subjected to medical or scientific experimentation or treatment without full, free and informed consent (s 10(c));
- freedom of movement (s 12);
- the right to privacy and protection of reputation (s 13);
- freedom of thought, conscience, religion and belief (s 14);
- the right to liberty and security of person (s 21);
- the right to humane treatment when deprived of liberty (s 22); and
- the right to a fair hearing (s 24).
The human rights in the Human Rights Charter are not absolute rights and may be limited in some circumstances including as determined by section 7.
All public mental health services, their staff, the MHT (in some circumstances) and arguably also the Victorian MHWC are public authorities. Private doctors acting under the MHW Act may also be public authorities.
In the PBU & NJE case, Justice Bell recognised that people:
- with mental illness are highly vulnerable to interference with the exercise of their human rights, especially their right to self-determination, to be free from non-consensual medical treatment and to personal inviolability [281].
He noted that the MH Act ‘represents a paradigm shift away from best-interests paternalism to recognition of people having mental illness as equal right-bearers, not dependent welfare cases’ [281].
For discussion of remedies available under the Human Rights Charter, see Chapter 11.1: Discrimination and human rights.
There are international human rights instruments that set out the rights of people with disabilities that are also helpful to determining a human rights-compliant interpretation of MHW Act. The most comprehensive is the Convention on the Rights of Persons with Disabilities (UNCRPD), which was adopted by the United Nations General Assembly in 2006 and signed by Australia in 2007.
Australia ratified the UNCRPD on 17 July 2008 and subsequently ratified its Optional Protocol (OPCRPD) on 21 August 2009, which enables individuals or groups of individuals to lodge a complaint of violations of the UNCRPD (called a ‘communication’), once all available domestic remedies have been exhausted. The United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) deals specifically with the rights of people with psychiatric disability, however some of these principles are now outdated in light of the stronger provisions of the UNCRPD. Although these international human rights instruments are not fully incorporated into Australian domestic law, they, together with comments published by the responsible committees (e.g. the Committee on the Rights of Persons with Disabilities) can provide guidance on the scope of specific human rights as they relate to people with psychiatric disability. Further advice can be obtained from the Human Rights Law Centre (see ‘Contacts’ at the end of this chapter).