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Seminar 3 files (slides) can be found below

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[case studies - MH Tribunal]

Note: please refer back to Seminar 1 materials (MH26 v Mental Health Review Board) for assistance with interpreting your assigned Tribunal cases

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5b. Extension reading: Compulsory treatment in the international context

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5b. Extension reading: Compulsory treatment in the international context

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Compulsory/involuntary treatment of persons with mental illness is a global concern. The World Health Organization is strongly advocating for greater inclusion of human rights principles in mental health laws throughout the world. Their website includes publications about international standards in mental health law that students may be interested in.

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A global human rights emergency in mental health

We are facing a global human rights emergency in mental health. All over the world people with mental disabilities experience a wide range of human rights violations.

In many countries people do not have access to basic mental health care and treatment they require. In others, the absence of community based mental health care means the only care available is in psychiatric institutions which are associated with gross human rights violations including inhuman and degrading treatment and living conditions.

Even outside the health care context, they are excluded from community life and denied basic rights such as shelter, food and clothing, and are discriminated against in the fields of employment, education and housing due to their mental disability. Many are denied the right to vote, marry and have children. As a consequence, many people with mental disabilities are living in extreme poverty which in turn, affects their ability to gain access to appropriate care, integrate into society and recover from their illness.

The UN convention on the rights of persons with disabilities - new hope for rights protection

The work of the WHO is informed by the Convention of the Rights of Persons with Disabilities.

In 2008 the UN Convention on the Rights of Persons with Disabilities (CRPD) came into force. The Convention sets out a wide range of rights including, among others, civil and political rights, the right to live in the community, participation and inclusion, education, health, employment and social protection. Its coming into force marks a major milestone in efforts to promote, protect and ensure the full and equal enjoyment of all human rights of persons with disabilities.

Harrie Timmermans /Global Initiative on Psychiatry

What can be done?

Raise awareness and advocate for change

Violations often occur behind closed doors and go unreported - unless people know that they are going on, action cannot be taken to stop them. WHO works to raise awareness and advocate for the rights of people with mental disabilities and collaborates with international organizations to disseminate international human rights standards.

Develop mental health policies and laws that promote human rights

Mental health policies and laws are absent or inadequate in most countries of the world and yet they are critical to improving conditions for people with mental disabilities.

Create mechanisms to assess and improve human rights conditions

Many people with mental disabilities are assumed to have no capacity to make decisions for themselves and are therefore being detained and treated in psychiatric institutions unjustifiably and against their will, where they are being treated appallingly and inhumanely. The WHO QualityRights Project works to unite and empower people to improve the quality of care and promote human rights in mental health facilities and social care homes.

Train key stakeholders on the rights of people with mental disabilities

All people and professionals who have an impact on the lives of people with mental disabilities should receive training on human rights issues. Training needs to be provided to:

people with mental disabilities themselves as well as their families - so that they can claim their rights;

health and mental health professionals - so that they understand the rights of their patients and apply these in practice;

the police force who are in daily contact with people with mental disabilities;

lawyers, magistrates and judges who make important decisions concerning the lives of people with mental disabilities.

Contact details

Mental health policy and service development

Department of Mental Health and Substance Abuse, WHO Geneva.

Training opportunities

Latest publications

This joint WHO/Gulbenkian publication provides guidance on services and supports required to end institutionalization of children and ensure that they can live and thrive in the community.

This document presents an integrated strategy for mental health system development.

WHO mental health policy and service guidance package, and WHO mental health policy and plan checklists.

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Department of Mental Health and Substance Abuse

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Mental health, human rights & legislation

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We are facing a global human rights emergency in mental health. All over the world people with mental disabilities experience a wide range of human rights violations. In many countries people do not have access to basic mental health care and treatment they require.

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As background to the issues discussed in Seminar 3, students should listen to this podcast.  In 2010, ABC Radio National's All in the Mind aired "When Your Mind is Not Your Own: Community Treatment Orders".  The program discusses the balance between human rights, social inclusion and risk for people with severe mental illness, and issues arising from compulsory treatment.

ABC Radio National, "When Your Mind is Not Your Own: Community Treatment Orders" All in the Mind, 27 February 2010

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2010-02-27 When Your Mind is Not Your Own: Community Treatment Orders

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2010-02-27 When Your Mind is Not Your Own: Community Treatment Orders

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Prior to Seminar 3, students must read through the material on the Victorian Legal Aid website Mental Health and Your Rights, which is designed to inform people with mental illness (and their family/carers) about their rights and about CTOs in general.

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There are laws about:

what mental illness is

the treatment of people with a mental illness, particularly if they are being treated against their will

the rights of people with a mental illness, including how they receive treatment.

Most people with a mental illness are treated voluntarily. But some people may need to be treated, even though they do not agree to it. This is called compulsory treatment.

People have different rights depending on whether they are treated voluntarily or under a compulsory order. It is important that people understand their rights.

Mental illness

Mental illness is defined under the Mental Health Act 2014 as a medical condition where a person's thought, mood, perception or memory is significantly disturbed. Some examples are:

You are not mentally ill just because:

you express or don't express your political, religious, philosophical or sexual beliefs, preferences, gender identity or sexual orientation

you are involved in or don't get involved in a particular political or religious activity

you are involved in sexual, immoral or illegal conduct

you have an intellectual disability

you behave in an anti-social way

you have a particular economic or social status

you belong to a particular cultural or racial group

you are or have previously been involved in family conflict

you have previously been treated for mental illness

you use drugs or alcohol (however, if your mind or body is seriously affected by you taking drugs or alcohol this could be taken as a sign that you are mentally ill, whether the effect is permanent or temporary).

Being diagnosed with a mental illness

Only a doctor can decide whether you have a mental illness and only after a proper assessment.

Voluntary or compulsory treatment

You can receive treatment as a voluntary patient or compulsory patient.

A voluntary patient can be admitted to hospital, but is free to leave whenever they want.

A compulsory patient is a person who has been assessed by a psychiatrist and put on a compulsory treatment order. They can receive treatment against their wishes while they are in the community or as an inpatient in hospital.

Read about the rules that must be followed before someone can be placed on a compulsory treatment order.

Rights of people receiving treatment for mental illness

There are a number of laws that protect the rights of people being treated for mental illness, including rights to privacy, confidentiality and other human rights.

The Mental Health Act is 'recovery orientated', so the aim is to support people to recover, including giving them clear rights to make decisions about their own treatment. Read about laws that protect the rights of people receiving compulsory treatment.

There are also ways that you can have some control over your treatment.

Capacity and informed consent to treatment

The Mental Health Act assumes that people are capable of making informed decisions about their treatment, unless the treating professionals decide that do not have capacity. This includes people on compulsory orders. Read about the guidelines for determining capacity and informed consent to treatment.

Mental Health Tribunal

The Mental Health Tribunal is an independent tribunal that makes decisions about compulsory treatment orders and orders about electroconvulsive treatment. Read more about going to the Mental Health Tribunal.

When the police get involved

Sometimes police may get involved with a person with mental illness, if there is a risk of them hurting themselves or someone else. They can take you into custody urgently and you will have a mental health assessment.

If the police believe there is no immediate risk of harm but you still need an urgent mental health treatment, they can request an assessment from a mental health service.

Making a complaint

If you are not happy with the services you have received (or not received) from a mental health service provider, you can make a complaint to the Mental Health Complaints Commissioner.

Other people can make a complaint on your behalf, such as someone you ask to complain for you, or someone who can show that they have a genuine interest in your wellbeing.

Get help

Find out how you can get help with mental health and your rights.

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Mental Health Tribunal The Mental Health Tribunal

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There are laws about: what mental illness is the treatment of people with a mental illness, particularly if they are being treated against their will the rights of people with a mental illness, including how they receive treatment. Most people with a mental illness are treated voluntarily.

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VMHT Form MHT 003: Report on Compulsory Treatment
[need completed scenario file]

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VMHT Form MHA 114: Application to Mental Health Tribunal
[need completed scenario file]

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Victorian Mental Health Tribunal (2014), A Guide to Solution-Focused Hearings in the Mental Health Tribunal (pp. 13-23)

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For the mock Tribunal hearing, the VMHT Practice Note (below) provides relevant background to the hearing process and the roles of involved parties. Relevant documentation is also provided below; this includes the originating application and subsequent report on compulsory treatment. These documents are typically made available prior to a hearing to allow all parties (and the Tribunal) to prepare.

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5a. Extension reading: CTOs in the community

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5a. Extension reading: CTOs in the community

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Use of CTOs is by no means limited to inpatient environments; they are also used for compulsory treatment in community settings.  For students interested in community-based CTOs, this paper from the Medical Journal of Australia discusses the broader issues with compulsory treatment in community settings:

EM Light et al (2012), “Out of sight, out of mind: making involuntary community treatment visible in the mental health system," Medical Journal of Australia, 196: 591-593.

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Purpose
To examine the requirements for compulsory treatment orders (CTOs) for people with severe mental illness, and evaluate the applicability of CTOs in particular circumstances.

Background
Use of CTOs in mental health is a critical and contentious area of public health law.  CTOs are legal instruments that authorize use of a range of therapeutic interventions on a person with (severe) mental illness without consent.  CTOs may also impose other conditions on the person, from requirements to participate in services provided by mental health practitioners in the community through to involuntary admission to secure inpatient facilities.

Modern mental health legislation attempts to balance compulsory treatment with human rights-based approaches that promote equality and non-discrimination, privacy, dignity, respect, individual autonomy and participation for people with (severe) mental illness.  Victoria's new legislation serves as an example of such modernised laws now in place in Australia, with a rights-based approach reflected in the Mental Health Principles: Mental Health Act 2014 (Vic) s 11.

This seminar will extend upon the theme of powers and obligations in public health law by examining the legal process  behind CTOs, and critically evaluating the application of CTO treatment criteria: Mental Health Act 2014 (Vic) s 5.  For Activity 1, students will select a case study and consider its balance between preservation of personal autonomy, dignity and freedom of movement and decision (especially decisions about matters involving risk), and societal obligations to protect, care and treat persons with severe mental illness.  At law, this balance is embodied by the concept of the least restrictive alternative: the preferred option under the legislation must always be that which is least restrictive of the person's rights.

Following on from discussions of CTO process and application, in Activity 2 students will participate in a mock hearing of the Victorian Mental Health Tribunal.  Students will be assigned to represent either the applicant (the person with mental illness or their family member/s), the respondent/s (the psychiatrist and/or mental health service) or to serve as Tribunal members.  The mock hearing will concern a CTO order and its validity under the legislation.