Precedent (Australian Lawyers Alliance)
CHALLENGING THE FOUNDATIONS OF MENTAL HEALTH LAW
By Dr Anna Arstein-Kerslake
Mental health law is undergoing a transformation internationally. The 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD) illuminates the discriminatory nature of mental health law. Previously, much work had been done on ensuring that procedural safeguards within mental health law were sufficient to comply with human rights law. The CRPD now challenges the very foundations of mental health law. By comprehensively addressing the challenges issued by the CRPD, Australia has an opportunity to be a worldwide leader in human rights-compliant mental health law reform.
PREDOMINANCE OF INVOLUNTARY TREATMENT AND DETENTION
Throughout history, society has responded to mental health in varying ways. Western society has moved from the highly restrictive and often crude institutionalisation of ‘lunatics’ to modern psychotherapy, medication, and community treatment orders. While mental health practices have moved on from Victorian-era commitment in asylums, the predominance of involuntary treatment and detention remains a constant in most mental health law. The result is that individuals with a mental health diagnosis are discriminatorily subject to a greater risk of paternalistic state intervention and denial of autonomy and decision-making rights.
Those who have not experienced involuntary treatment or detention, or have not felt its repercussions second-hand from a loved-one or close friend, may not understand its impact. The following passages are the stories of leading activists, whose experiences led to their later involvement in the movement to abolish such treatment.
“I was leaving a seminar when it started, humming to myself, fumbling with my bag just as I'd done a hundred times before, when suddenly I heard a voice calmly observe, ‘She is leaving the room.’...
This was the beginning. The voice had arrived. And the voice persisted, days and then weeks of it, on and on, narrating everything I did in the third person....
I spent some time telling the college GP about what I perceived to be the real problem: anxiety, low self-worth, fears about the future, and was met with bored indifference until I mentioned the voice, upon which he dropped his pen, swung round and began to question me with a show of real interest. And to be fair, I was desperate for interest and help, and I began to tell him about my strange commentator. And I always wish, at this point, the voice had said, ‘She is digging her own grave.’
I was referred to a psychiatrist, who likewise took a grim view of the voice's presence, subsequently interpreting everything I said through a lens of latent insanity....
It was at this point that events began to rapidly overtake me. A hospital admission followed, the first of many, a diagnosis of schizophrenia came next, and then, worst of all, a toxic, tormenting sense of hopelessness, humiliation and despair about myself and my prospects.
But having been encouraged to see the voice not as an experience but as a symptom, my fear and resistance towards it intensified. Now essentially, this represented taking an aggressive stance towards my own mind, a kind of psychic civil war, and in turn this caused the number of voices to increase and grow progressively hostile and menacing.
Two years later, and the deterioration was dramatic. By now, I had the whole frenzied repertoire: terrifying voices, grotesque visions, bizarre, intractable delusions. My mental health status had been a catalyst for discrimination, verbal abuse, and physical and sexual assault, and I'd been told by my psychiatrist, ‘Eleanor, you'd be better off with cancer, because cancer is easier to cure than schizophrenia.’ I'd been diagnosed, drugged and discarded, and was by now so tormented by the voices that I attempted to drill a hole in my head in order to get them out.”
“I told them that, if they felt I was a voluntary patient, they should understand what their use of power really was. I wanted there to be no question of meaning, no sideways threat or verbal coercion. Such things, though often the essence of oppression, are rarely recognised as such; I wanted utter clarity.
‘You’ll have to drag me, if you want me in this place, because I will not go willingly.’ It seemed the only stronger way to say what the words ‘habeas corpus’ had failed to. I was loud, but I made no physical move, no threat...
...I was grabbed, handled by two men, and dragged back to the seclusion room along some fifty to a hundred feet of corridor from the front of the hospital’s locking doors to the adolescent acute unit. There, I told them that they had made their point, and they could let me go.
They had other ideas. I was thrown onto a bare mattress in the seclusion room and two became five. They had me by my hands and feet, one person to a limb, and one of them was on top of me with his knee on my back, the pressure of his weight constricting my chest.
I could barely breathe. I thought I might suffocate right then and there....
...Their position was superior and I was overpowered. To them it was just another takedown and restraint. To me, it was something all the darker.
I realised they owned me. Completely. I understood there was nothing I could do to resist them. I felt my very powerlessness as they prepared the shot. Any moment, they would be inserting a needle into my body...
...It took many years for me to overcome what happened that day and reclaim my voice. It took years for me to be able to speak of that day.”
Aubrey Ellen Shomo
These stories are not isolated incidents. There are forums developing around the world where people are speaking out about the harm that they have experienced from the mental health system.  This harm is often a result of mental health law that is not protecting the voice of individuals using mental health services.
HUMAN RIGHTS TRENDS IN MENTAL HEALTH LAW
The CRPD as a whole provides a revolution in the way disability is treated in law. It is no longer acceptable to hide disability issues away in social policy and welfare debates. The CRPD has made it clear that the rights of persons with disabilities are a justice issue. They belong in every corner of the law, because disability is a part of the human condition and every human is potentially subject to every law. This can be seen in the comprehensive nature of the rights covered in the Convention, ranging from the right to health to the right to cultural materials to the right to be free from discrimination.
The articles that have been particularly challenging to mental health law are Article 12, Equal Recognition before the Law; and Article 14, Liberty and Security of the Person. Several of the other articles are also implicated as a repercussion of mental health laws that deny decision-making and autonomy to people with mental health diagnoses, such as: Article 19, Living Independently; Article 15, Freedom from Torture; Article 17, Personal Integrity; and Article 23, Respect for Home and the Family. However, Articles 12 and 14 have content that challenges mental health law at its core.
Article 12 guarantees equal recognition before the law of people with disabilities. This right has its roots in the International Covenant on Civil and Political Rights (ICCPR) which states, in Article 6, ‘Everyone shall have the right to recognition everywhere as a person before the law.’ Jurisprudence and scholarly work on this right have been relatively scarce, in comparison with other rights. Forty years after the ICCPR, the CRPD sets out the right as follows:
‘1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.’
This is a more comprehensive description of the right than has ever before been included in an international human rights instrument. By guaranteeing people with disabilities the right to legal capacity on an equal basis with others in all areas of life, Article 12 effectively questions all laws that deny individual decision-making and legal capacity on the basis of disability. This has immediate implications for mental health law, such as the Mental Health Act 2007 (NSW) and the Mental Health Act 2014 (VIC). Mental health laws vary by jurisdiction, but generally regulate the process around involuntary treatment, detention, and other issues related to the interaction between individuals with mental health diagnosis and legal and medical systems. For the most part, they depend upon a diagnosis of disability – a mental health diagnosis – for the application of the law. Where there is a diagnosis, mental health professionals are often empowered to deny the legal capacity of the individual and make decisions on their behalf. Mental health professionals often have good intentions; nonetheless, they are frequently denying the voice and legal capacity rights of the individual. Every individual has a right to legal capacity on an equal basis, regardless of mental capability. Article 12 is the first international human rights article that has put this issue sharply into perspective and forces the re-examination of mental health law, its purpose, effectiveness, and compliance with human rights obligations.
Article 14 of the CRPD guarantees liberty and security of people with disabilities on an equal basis. It states:
‘1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.’
Laws that permit the involuntary detention of a person with a mental health diagnosis are contradictory to the text of this Article. According to Article 14, ‘unsoundness of mind’ is no longer a justification for the detention of an individual, which is evidenced by its absence in the text. This is also reflected in the UN Human Rights Council’s Working Group on Arbitrary Detention’s Draft Principles and Guidelines on remedies and procedures, which states:
‘The courts, while reviewing the legality of the deprivation of liberty of persons with disabilities, shall comply with the State’s obligation to prohibit involuntary committal or internment on the grounds of disability or perceived disability, particularly on the basis of psychosocial or intellectual disability or perceived psychosocial or intellectual disability, as well as their obligation to design and implement de-institutionalisation strategies.’
This is an indication that the wider human rights community is in concurrence: disability – including intellectual and psychosocial disability – is no longer a justification for the denial of rights, including the deprivation of liberty and the denial of legal capacity.
The implementation of Articles 12 and 14 CRPD is underway in many countries, including Australia. Many questions are raised in this implementation process. Article 12 requires that legal capacity not be denied on the basis of disability. Therefore, where the law denies legal capacity it will have to be on a basis other than disability. This may mean focusing on the conduct of individuals as opposed to disability. There is not room in this article to fully explore this issue, however, one of the key points of Article 12 is that people with disabilities are entitled to the same rights and responsibilities as people without disabilities. This may mean not only recognising legal agency, but also re-examining existing law to ensure that it is disability neutral, inclusively designed and appropriately tailored to all needs, including the needs of people with and without disability.
Another contentious issue that is important to take note of is whether a mental health diagnosis is a ‘disability’. Under the CRPD, a person with a disability includes ‘those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others’. This has been widely accepted to include people with mental health diagnosis. However, it is important to recognise that not all people with mental health diagnoses choose to identify as people with disabilities. For the purposes of this article, however, and the application of human rights law, it is assumed that the CPRD covers the rights of people with mental health diagnoses.
HUMAN RIGHTS AND MENTAL HEALTH LAW IN AUSTRALIA
The CRPD Committee, the monitoring body in the United Nations, has specifically commented on the international need for reform of mental health law. Its first general comment, which focused on the right to equal recognition before the law, stated that mental health laws that permit forced treatment must be abolished to ensure that full legal capacity is restored to people with disabilities on an equal basis.
It is important to note that Australia has made an interpretative declaration on Article 12 stating that it understands the denial of legal capacity and substituted decision-making to be permitted under certain circumstances. This is counter to the interpretation of Article 12 that the CRPD Committee makes clear in its general comment. The State Party Report, which Australia submitted to the CRPD Committee as part of its obligations after ratifying the CRPD, included a statement from Australia that it is committed to the rights of ‘all persons with mental health concerns’. It further stated that people with mental illness will be detained only where they are a danger to themselves or others. It also highlighted the safeguards in place regarding the involuntary treatment of people with mental illness. It does not, however, address the issue that these practices themselves run counter to Article 12, which guarantees equal respect for the legal capacity – decision-making – of people with disabilities.
A coalition of Australian civil-society organisations, Disability Rights Now, produced a shadow report that gave a different perspective on the realisation of the rights in the CRPD in Australia. The Shadow Report makes it clear that mental health law in Australia continues to allow for involuntary treatment and detention, in contradiction with the CRPD. In particular, it states that people with cognitive impairment or psychosocial disability are subjected to ‘unregulated and under-regulated behaviour modification or restrictive practices such as chemical, mechanical and physical restraint and seclusion’. Among other things, it recommends that, ‘In consultation with people with disability through their representative, advocacy and legal organisations, Australia conduct a comprehensive audit of laws, policies and administrative arrangements underpinning compulsory treatment with a view to:
• introducing reforms to eliminate laws and practices that relate to compulsory treatment that inherently breach human rights;
• work with people with disability and their representative and advocacy organisations to develop appropriate mechanisms and supports for any person, regardless of disability, who is at risk of causing harm to themselves or others; and
• implement administrative arrangements that focus on supported decision-making.’
In response to Australia’s State Report, the CRPD Committee made a similar recommendation. It asked that Australia ‘repeal all legislation that authorises medical intervention without the free and informed consent of the persons with disabilities concerned, committal of individuals to detention in mental health facilities, or imposition of compulsory treatment, either in institutions or in the community, by means of community treatment orders.’
CONCLUSION: THE FUTURE OF MENTAL HEALTH LAW
Based on the developments discussed in this article, it is reasonable to question whether mental health law is headed for deconstruction and ultimately abolition. What is clear is that there is an ever-present need to protect the rights of people with disabilities on an equal basis with others. This, of course, includes the rights of people with mental and psychosocial disabilities and those who come into contact with the mental health system in Australia and elsewhere. Human rights trends are moving towards the elimination of mental health law that protects mental health practitioners by outlining when and how they can override or ignore the wishes and decisions of individuals with mental health diagnoses. Instead, it is calling for a legal system to protect those wishes and decisions.
Australian law has not yet met the challenge that human rights law has presented to the mental health legal structure. There is a strong message coming from the international human rights community and from civil society in Australia: involuntary treatment and detention violates human rights. Australia is not alone in maintaining mental health law that violates human rights. In fact, many jurisdictions have similar laws. However, Australia is uniquely positioned with a strong advocacy sector, an understanding of and engagement with human rights law, and the knowledge and capacity to be a leader in this field. Australia has the opportunity to be at the forefront of creating law that fully respects the rights of individuals using mental health services. This is not only an opportunity for creating human rights compliant laws; this is an opportunity for creating a more inclusive society.
Dr Anna Arstein-Kerslake is the Academic Coordinator of the Hallmark Disability Research Initiative at the University of Melbourne and the Director of the Disability Human Rights Clinic at Melbourne Law School. PHONE (03) 83443806 EMAIL email@example.com.
This article has been peer reviewed in line with standard academic practice.
 For a discussion of discrimination and mental health law, see Weller, Penny, ‘Supported Decision-Making and the Achievement of Non-Discrimination: The Promise and Paradox of the Disabilities Convention’ (2008) 26(2) Law in Context 26, 85-110.
 For a discussion, see McSherry, Bernadette, ‘International Trends in Mental Health Laws: Introduction’ (2008) 26(2) Law in Context.
 Wise, Sarah, Inconvenient People: Lunacy, Liberty and the Mad-Doctors in Victorian England (London: Bodley Head, 2012).
 Some of these modern practices are also being challenged. For example: Lawton-Smith, S, Dawson, J and Burns T, ‘Community Treatment Orders Are Not A Good Thing’, (2008) 193(2) The British Journal of Psychiatry, 96-100. doi:10.1192/bjp.bp.107.049072; Davies, James, Cracked: Why Psychiatry Is Doing More Harm Than Good (London: Icon Books Ltd, 2013); and Greenberg, Gary, The Book of Woe: The DSM and the Unmaking of Psychiatry, Reprint edition (place of publication not identified: Plume Books), 2014.
 Eleanor Longden, ‘The Voices in My Head.’ TED2013, filmed February 2013 https://www.ted.com/talks/eleanor_longden_the_voices_in_my_head.
 Aubrey Ellen Shomo, ‘Remembering A Restraint.’ 26 June 2013. Blog – Mad in America: Science, Psychiatry, and Community. Accessed March 19, 2015. http://www.madinamerica.com/2013/06/remembering-a-restraint/.
 For example, Center for the Human Rights of Users and Survivors of Psychiatry (CHRUSP), http://www.chrusp.org/; World Network of the Users and Survivors of Psychiatry (WNUSP), http://www.wunsp.net/; and ‘Mad In America: Science, Psychiatry & Community’ Mad In America, http://www.madinamerica.com.
 Quinn, Gerard with Arstein-Kerslake, Anna, ‘Restoring the “human” in “human rights”: personhood and doctrinal innovation in the UN disability convention’, Gearty, Conor and Costas, Douzinas (eds), The Cambridge Companion to Human Rights Law (Cambridge University Press, 2012).
 Kayess, Rosemary and French, Phillip, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’, (2008) Human Rights Law Review, ngm044. doi:10.1093/hrlr/ngm044.
 CRPD, Article 25.
 CRPD, Article 30.
 CRPD, Article 5.
 Minkowitz, Tina, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to Be Free from Non-consensual Psychiatric Interventions’ (2007) 34(2) Syracuse Journal of International Law and Commerce.
 Australian Civil Society Parallel Report Group Response to the List of Issues, Disability Rights Now, CRPD Committee 10th Session, Dialogue with Australia, 3-4 September 2013, Geneva.
 Arstein-Kerslake, Anna, ‘A Call to Action: The Realisation of Equal Recognition Under the Law for People with Disabilities in the EU,’ in Waddington, Quinn, Flynn (eds), European Yearbook of Disability Law, Vol. 5 (Intersentia 2015).
 Dhanda, Amita, ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future’ (2006) 34 Syracuse Journal International Law & Commerce: 429.
 See the CRPD Committee General Comment No. 1. 2014. Article 12: Equal Recognition before the Law. Paras 7, 31, and 40-42. UN Doc. No. CRPD/C/GC/1.
 Office of the High Commissioner for Human Rights, Human Rights Council, Working Group on Arbitrary Detention, ‘Draft Principles and Guidelines on remedies and procedures on: The right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before a court without delay, in order that the court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is not lawful.’ February 2015.
 See also Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E Méndez, Human Rights Council, 23rd Session, 1 February 2013, UN Doc. No. A/HRC/22/53.
 For example, Ireland has a bill coming before parliament this year called, the Assisted Decision-Making (Capacity) Bill 2014; and the House of Lords in the United Kingdom has recently undergone a review of its Mental Capacity Act, including consideration of the CRPD.
 Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124). 24 November 2014.
 CRPD Article 1.
 CRPD Committee General Comment No. 1, 2014, Article 12: Equal Recognition before the Law, para 7. UN Doc. No. CRPD/C/GC/1.
 Australia Initial Report on the Convention on the Rights of Persons with Disabilities, Australian Government, para 55.
 Implementation of the CRPD, Initial reports submitted by states parties under Article 35 of the Convention, Australia, 3 December 2010, para 76. UN Doc. No. CRPD/C/AUS/1.
 Ibid, para 100.
 For a comprehensive description of mental health law in Australia and the CRPD, see McSherry, Bernadette, ‘Mental Health Laws: Where to From Here?’  MonashULawRw 10; (2014) 40(1) Monash University Law Review 175-97.
 ‘Australian Shadow Report.’ Disability Rights Now. August 2012. http://www.disabilityrightsnow.org.au/node/65
 Australian Civil Society Parallel Report Group Response to the List of Issues, above note 14.
 Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session (2-13 September 2013). Committee on the Rights of Persons with Disabilities. UN Doc. No. CRPD/C/AUS/CO/1. 21 October 2013.
 Minkowitz, Tina, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’, McSherry, B and Weller, P, Rethinking Rights-Based Mental Health Laws (Hart Publishing, Portland, Oregon, 2010), 151-77.