Mental illness

In addition to the human rights principles under-pinning the Mental Health Act 2014 (Vic) (‘MHA 2014’), the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) (s 38) requires public authorities to give proper consideration to and act consistently with human rights. The Charter also requires courts and tribunals to interpret and apply legislation in accordance with human rights.

The 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 Charter are not absolute rights and may be limited in some circumstances including as determined by section 7 of the Charter.

All public mental health services, their staff, the MHT (in some circumstances) and arguably also the Victorian Mental Health Complaints Commissioner 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 about the interpretation and application of the Charter to people receiving involuntary/compulsory psychiatric treatment.

Although the cases dealt with the provisions under the MHA 1986 – including in the Kracke case the powers and functions of the then Mental Health Review Board – the cases may nevertheless be relevant to the questions of interpretation and the responsibilities of 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).

In the PBU and NJE case (see ‘Capacity and informed consent’ in ‘Mental health treatment, capacity and consent‘), Justice Bell provided further commentary on the application of the Charter to specifically:

1. the assessment of a person’s capacity to consent to compulsory mental health treatment; and
2. the assessment of whether there is a less restrictive treatment option.

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 invioability’ [281]. 

He also noted that the MHA 2014 ‘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 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 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.