Mental health, the Charter Act and human rights

Public authorities must give proper consideration to human rights principles as they relate to people with psychiatric disability, including the rights to privacy, equality and freedom of movement.

Charter of Human Rights and Responsibilities Act

In addition to the human rights principles under-pinning MHA 2014, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”), at section 38, requires public authorities to give proper consideration to and act consistently with human rights. Section 32 of the Charter Act also requires courts and tribunals to interpret and apply legislation in accordance with human rights.

The Charter Act 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 set out in the Charter Act are not absolute rights, but may be limited in some circumstances including as determined by section 7 of the Charter Act.

All public mental health services, their staff, and arguably also the Victorian Mental Health Complaints Commissioner and the MHT, in some circumstances, are public authorities. Private doctors acting under the MHA 2014 may also be public authorities.

The test cases of Kracke v Mental Health Review Board [2009] VCAT 646 (“Kracke case”) and Antunovic v Dawson [2010] VSC 377 (25 August 2010) (“Antunovic case”) discussed important principles regarding interpretation and application of the Charter Act to people receiving involuntary/compulsory psychiatric treatment. Although they dealt with the provisions under the MHA 1986 – including in the case of Kracke the powers and functions of the then Mental Health Review Board – they may nevertheless be relevant to the questions of interpretation and the responsibilities on public authorities under the MHA 2014. Regarding interpretation under section 32 of the Charter however, these decisions – in particular the Kracke case – should be read in light of subsequent decisions including Momcilovic v The Queen [2011] HCA 34 (8 September 2011).

The Charter Act will no doubt impact on the way that public authorities exercise their powers under the MHA 2014 and the way the new law is interpreted by courts and tribunals.

For discussion of remedies available under the Charter Act, see Discrimination and human rights.

Other international human rights instruments

There are other 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 MHA 2014. The most comprehensive is the United Nations Convention on the Rights of Persons with Disabilities (2006) (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 (seeContacts”).