Is There a Future for Involuntary Treatment in Rights-based Mental Health Law?

Psychiatry, Psychology and Law

Volumn 21, Issue 5, 2014, Pages 747-766

  Callaghan, Sascha Mira ^a   Ryan, Christopher ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

Author keywords

Convention on the Rights of Persons with Disabilities; involuntary treatment; legal capacity; mental health law

Indexed keywords

EID: 84911966421     PISSN: 13218719     EISSN: 19341687     Source Type: Journal    
DOI: 10.1080/13218719.2014.949606     Document Type: Article

References (132)

1. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, (entered into force 3 May 2008).
2. Christopher James Ryan, ‘One Flu Over the Cuckoo’s Nest: Comparing Legislated Coercive Treatment for Mental Illness with that for Other Illness’ (2011) 8 Journal of Bioethical Inquiry 87.
3. Office of the United Nations High Commissioner for Human Rights, Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary- General: Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities, Human Rights Council, 10th Session, U.N. Doc. A/ HRC/10/48 (2009).
4. Committee on the Rights of Persons with Disabilities, 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 Disabilites, Concluding observations of the Committee on the Rights of Persons with Disabilities. Tunisia. (United Nations 2011); Tunisia; Committee on the Rights of Persons with Disabilities, Concluding observations of the Committee on the Rights of Persons with Disabilities. Spain. (2011).
5. Committee on the Rights of Persons With Disabilities, General Comment No 1, Article 12: Equal Recognition before the Law, Eleventh Session 31 March-11 April (2014), [7], [9] and [12]. This is a radical departure from the existing common law which permits treatment to be given without consent where a person lacks decision-making capacity. See Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15, 175 CLR 218; Hunter v A [2009] NSWSC 761, [31]-[32] (J McDougall). The doctrine of necessity will also justify a degree of coercion of an incompetent patient who is refusing treatment. As LJ Butler-Sloss noted in Re MB ‘[t]he extent of force or compulsion which may become necessary can only be judged in each individual case and by the health professionals. It may become for them a balance between continuing treatment which is forcibly opposed and deciding not to continue with it’. Re MB [1997] 2 FCR 514.
6. After an extensive review process, the new Tasmanian Mental Health Act (2013) commenced in February 2014, and the Victorian Mental Health Act (2014) was recently passed by the Victorian Parliament. A new Mental Health Bill was introduced in to the Western Australian Parliament in December 2013. In addition, reviews have been undertaken in the Australian Capital Territory and New South Wales, with an upcoming review announced for Queensland. See Mental Health Commission (Western Australia), ‘Mental Health Legislation’ accessed 25 August 2014
7. Queensland Health, ‘Review of Mental Health Act 2000’ accessed 25 August 2014
8. ACT Government Health Directorate, ‘Review of the Mental Health (Treatment and Care) Act, 1994’ accessed 25 August 2014
9. NSW Ministry of Health Mental Health and Drug & Alcohol Office (MHDAO), ‘Review of the NSW Mental Health Act 2007’ accessed 25 August 2014
10. Department of Health (Victoria), ‘Victoria’s New Mental Health Act’ accessed 25 August 2014.
11. In the NSW review for example, there were mixed views on supported decision-making. Twenty-six out of 95 submissions on the issue identified the need for review of a decision not to admit a person as an involuntary patient as a need for reform. These submissions came from medical peak bodies, Local Health Districts, government departments (including the police), carer and consumer groups, Legal Aid and the Mental Health Review Tribunal. NSW Ministry of Health, Review of the NSW Mental Health Act 2007. Report for NSW Parliament: May 2013. Summary of Consultation Feedback and Advice (2013), 16-17, 24.
12. Michael Bach and Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (Prepared for the Law Commission of Ontario) (2010), 18.
13. There is an argument also that some persons who have recently experienced a first episode of mental illness, and those who have experienced a single or short term infrequent episodes may either not be covered by the CRPD definition or may not identify with the language of disability. See George Szmukler, et al., ‘Mental Health Law and the Un Convention on the Rights of Persons with Disabilities’ (2014) 37 International Journal of Law and Psychiatry 245.
14. Persons with mental illness can and often do retain functional decision-making capacity independently of support. See eg, Paul Appelbaum and Thomas Grisso, ‘The MacArthur Treatment Competence Study. I: Mental Illness and Competence to Consent to Treatment’ (1995) 19 Law and Human Behavior 105
15. David Okai, et al., ‘Mental Capacity in Psychiatric Patients: Systematic Review’ (2007) 191 The British Journal of Psychiatry 291
16. Gareth S Owen, et al., ‘Mental Capacity to Make Decisions on Treatment in People Admitted to Psychiatric Hospitals: Cross Sectional Study’ (2008) 337 British Medical Journal 448
17. Jeremy J Skipworth, et al., ‘Capacity of Forensic Patients to Consent to Treatment’ (2013) 47 Australian and New Zealand Journal of Psychiatry 443.
18. This is the case under all current Australian mental health statutes with the notable exception of the Tasmanian Mental Health Act 2013. Commencement of this Act has been delayed, but is anticipated some time in 2014. See Mental Health Act 2007 (NSW) s 14; Mental Health Act 1986 (Vic) s 8; Mental Health Act 2009 (SA) ss 21, 25, 29; Mental Health Act 2000 (Qld) s 14. Mental Health Act 1996 (WA) s 26; Mental Health and Related Services Act 1998 (NT) s 14; Mental Health (Treatment and Care) Act 1994 (ACT), 28. For analysis see Sascha Mira Callaghan and Christopher James Ryan, ‘Rising to the Human Rights Challenge in Compulsory Treatment - New Approaches to Mental Health Law in Australia’ (2012) 46 Australian and New Zealand Journal of Psychiatry 611.
19. OHCHR ‘Thematic Study’ (n 3) [48].
20. Peter Bartlett, ‘Implementing a Paradigm Shift: Implementing the Convention on the Rights of Persons with Disabilities, in the Context of Mental Disability Law’ in Center for Human Rights & Humanitarian Law Anti-Torture Initiative Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report (2014).
21. Bach and Kerzner, A New Paradigm for Protecting Autonomy (n 8)
22. Gerard Quinn, ‘Personhood & Legal Capacity Perspectives on the Paradigm Shift of Article 12 CRPD’ (HPOD Conference, Harvard Law School) accessed 25 August 2014.
23. Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (‘Marion’s Case’), [8] (Mason CJ, Dawson, Toohey and Gaudron JJ); Re MB [1997] 2 FCR 514; Hunter and New England Area Health Service v A [2009], [9]-[15] (McDougall J).
24. Above (n 11).
25. Bernadette McSherry, ‘Legal Issues - Legal Capacity under the Convention on the Rights of Persons with Disabilities’ (2012) 20 Journal of Law and Medicine 2
26. European Commissioner for Human Rights, Who Gets to Decide? Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities (2012) accessed 25 August 2014
27. Genevra Richardson, ‘Mental Disabilities and the Law: From Substitute to Supported Decision-Making?’ (2012) 65 Current Legal Problems 333
28. Tina Minkowitz, ‘United Nations Convention on the Rights of Persons with Disabilities and the Right to Be Free from Nonconsensual Psychiatric Interventions’ (2006) 34 Syracuse J Int‘l L & Com 405
29. Eilion-oir Flynn and Anna Arstein- Kerslake, ’Equal Recognition Before the Law: Exploring a Support Model of Legal Capacity (10 March 2012)’ (2012)
30. Quinn, ‘Personhood & Legal Capacity Perspectives’ (n 14).
31. There is no single common law test for capacity, however these abilities are the features now most commonly described. Hunter v A [2009], [25] (McDougall J); Re MB [1997], 553-554 (Butler-Sloss LJ).
32. Bach and Kerzner, A New Paradigm for Protecting Autonomy (n 8, 84).
33. For an explanation of relational autonomy generally, see Catriona Mackenzie and Natalie Stoljar, Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (OUP on Demand 2000). For a description of its influence on the concept of legal capacity and supported decision-making for persons with disabilities, see Bach and Kerzner, A New Paradigm for Protecting Autonomy (n 8, 40+84)
34. Piers Gooding, ‘Supported Decision- Making: A Rights-Based Disability Concept and its Implications for Mental Health Law’ (2012) Psychiatry, Psychology and Law 435; Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws Issues Paper 44 (2013), [80].
35. This is the recently expressed view of the Disabilities Committee. See Draft General comment on Article 12 (n 5) [3].
36. OHCHR Thematic Study (n 3);
37. Bartlett, Implementing a Paradigm Shift (n 13).
38. M Slade, et al., ‘International Differences in Understanding Recovery: Systematic Review’ (2012) 21 Epidemiology and Psychiatric Sciences 35
39. Shulamit Ramon, et al., ‘Recovery from Mental Illness as an Emergent Concept and Practice in Australia and the UK’ (2007) 53 International Journal of Social Psychiatry 10
40. Debra Rickwood, 4As Framework for Preventing Further Episodes of Mental Illness (2005)
41. Retta Andresen, et al., ‘The Experience of Recovery from Schizophrenia: Towards an Empirically Validated Stage Model’ (2003) 37 Australian and New Zealand Journal of Psychiatry 58
42. Kim T Mueser, et al., ‘Illness Management and Recovery: A Review of the Research’ (2002) 53 Psychiatric Services 127
43. Daniel B Fisher, ‘Health Care Reform Based on an Empowerment Model of Recovery by People with Psychiatric Disabilities’ (1994) 45 Hospital and Community Psychiatry 91
44. Steven J Onken, et al., ‘An Analysis of the Definitions and Elements of Recovery: A Review of the Literature’ (2007) 31 Psychiatric Rehabilitation Journal 9.
45. Craig Parsons, ‘The Dignity of Risk: Challenges in Moving On’ (2008) 15 Australian Nursing Journal 2
46. Patricia Deegan, ‘Recovery as a Journey of the Heart’ (1996) 19 Psychiatric Rehabilitation Journal 9
47. Quinn, ‘Personhood & Legal Capacity Perspectives’ (n 14)
48. Mental Health and Drug & Alcohol Office, Discussion Paper: Issues Arising Under the NSW Mental Health Act 2007 (2012).
49. Tina Minkowitz and Daniel Hazen, A Discussion Paper on Policy Issues at the Intersection of the Mental Health System and the Prison System (undated) accessed 25 August 2014.
50. OHCHR ‘Thematic Study’ (n 3) [49].
51. Matthew Large, et al., ‘Risk Factors for Suicide Within a Year of Discharge from Psychiatric Hospitals: A Systematic Meta-analysis’ (2011) 45 Australian and New Zealand Journal of Psychiatry 61
52. Matthew Large, et al., ‘Systematic Review and Meta-analysis of the Clinical Factors Associated with the Suicide of Psychiatric Inpatients’ (2011) 124 Acta Psychiatrica Scandinavica 1
53. Douglas Mossman, ‘The Imperfection of Protection through Detection and Intervention: Lessons from Three Decades of Research on the Psychiatric Assessment of Violence Risk’ (2009) 30 Journal of Legal Medicine 10
54. Jay P Singh, et al., ‘Structured Assessment of Violence Risk in Schizophrenia and other Psychiatric Disorders: A Systematic Review of the Validity, Reliability, and Item Content of 10 Available Instruments’ (2011) 37 Schizophrenia Bulletin 899.
55. Christopher Ryan, et al., ‘Clinical Decisions in Psychiatry Should not be Based on Risk Assessment’ (2010) 18 Australasian Psychiatry 39
56. Matthew M Large and Olav B Nielssen, ‘Risk Factors for Inpatient Suicide do Not Translate into Meaningful Risk Categories - All Psychiatric Inpatients are Highrisk’ (2012) 73 Journal of Clinical Psychiatry 103
57. Matthew Large and Christopher James Ryan, ‘Screening for Suicide: A Comment on Steeg et al. [Letter]’ (2012) 42 Psychological Medicine 201
58. Matthew Large, et al., ‘The Validity and Utility of Risk Assessment for Inpatient Suicide’ (2011) 19 Australasian Psychiatry 50
59. Matthew M Large, et al., ‘The Predictive Value of Risk Categorization in Schizophrenia’ (2011) 19 Harvard Review of Psychiatry 25.
60. Tally Moses, ‘Stigma Apprehension among Adolescents Discharged from Brief Psychiatric Hospitalization’ (2011) 199 Journal of Nervous and Mental Disease 778.
61. Cesare Maria Cornaggia, et al., ‘Aggression in Psychiatry Wards: A Systematic Review’ (2011) 189 Psychiatry Research 1
62. Alaa El- Din Soliman and Hashim Reza, ‘Risk Factors and Correlates of Violence Among Acutely Ill Adult Psychiatric Inpatients’ (2001) 52 Psychiatric Research 75.
63. Matthew Large, et al., ‘Nosocomial Suicide’ (2014) 22 Australasian Psychiatry 118.
64. Bach and Kerzner, A New Paradigm for Protecting Autonomy (n 8, 184).
65. Bernadette McSherry, ‘The Right of Access to Mental Health Care: Voluntary Treatment and the Role of the Law’ in Bernadette McSherry and Penelope Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart 2010)
66. Gooding (n 21).
67. The Universal Declaration of Human Rights, GA Res 217 A (III) art 12(1), (1948).
68. International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 art 25(2), (entered into force 23 March 1976).
69. These requirements have been identified by the National Mental Health Commission as central to optimising mental health services in Australia. National Mental Health Commission, A Contributing Life: The 2012 National Report Card on Mental Health and Suicide Prevention (2012).
70. Art 5(3).
71. Kerri Eagle and Christopher James Ryan, ‘Mind the Gap: The Potentially Incapable Patient Who Objects to Assessment’ (2012) 86 Australian Law Journal 685.
72. Hunter v A [2009] [31]-[33] (McDougall J).
73. Sascha Callaghan and Christopher James Ryan, ‘Rising to the Human Rights Challenge in Compulsory Treatment - New Approaches to Mental Health Law in Australia’ (2012) 46 Australian and New Zealand Journal of Psychiatry 61;
74. Christopher James Ryan, et al., ‘Better Laws for Coercive Psychiatric Treatment: Lessons from the Waterlow Case’ (2012) 20 Australasian Psychiatry 283.
75. Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2006) 34 Syracuse Journal of International Law and Commerce 563
76. Annegret Kampf, ‘Involuntary Treatment Decisions: Using Negotiated Silence to Facilitate Change’ in Bernadette McSherry and Penelope Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing 2010), 129+144.
77. OHCHR ‘Thematic Study’ (n 12), and accompanying text.
78. Consideration of Reports Submitted by States Parties under Article 35 of the Convention. Concluding Observations of the Committee on the Rights of Persons with Disabilities. Tunisia, Committee on the Rights of Persons with Disabilities. Fifth session 11-15 April 2011, CRPD/C/TUN/CO/1 (2011) [23]; Committee on the Rights of Persons with Disabilities. Consideration of Reports Submitted by States Parties under Article 35 of the Convention. Concluding Observations of the Committee on the Rights of Persons with Disabilities. Spain, CRPD/C/ESP/CO/1 (2011) [34]; Consideration of Reports Submitted by States Parties under Article 35 of the Convention. Concluding Observations of the Committee on the Rights of Persons with Disabilities. Peru (2012) [25]. The suggestions are deliberately left broad however, and it is not clear whether ‘supported decision making’ might include some forms of carefully designed substituted decision-making.
79. UN Disabilities Committee, Concluding Observations on Australia (n 4) [34].
80. UN Disabilities Committee, Concluding Observations on Australia (n 4) [8].
81. Commonwealth of Australia United Nations Convention on the Rights of Persons with Disabilities: Ratification and Declarations United Nations accessed 25 August 2014.
82. For discussion of the current phase of implementation, see Bartlett, Implementing a Paradigm Shift (n 13).
83. Victorian Law Reform Commission, Guardianship: Final Report 24 (2012). See also Szmukler, et al., ‘Mental Health Law and the UN Convention’ (n 9)
84. Bach and Kerzner, A New Paradigm for Protecting Autonomy (n 8).
85. Models involving graded decision-making status were suggested by Bach and Kerzner, A New Paradigm for Protecting Autonomy (n 8), and the Victorian Law Reform Commission, Guardianship: Final Report (n 49). Both models involve consideration of a person’s decision-making capacity with support, and both accommodate a measure of substituted decision-making for the ‘fully supported’ or ‘facilitated’ group.
86. Amita Dhanda, ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?’ (2006) 34 Syracuse J Int’l L & Com 429+460.
87. Tina Minkowitz, ‘Legal Capacity as Right, Principle and Paradigm: Submission to the Committee on the Rights of Persons with Disabilities in Response to its Call for Papers on Theoretical and Practical Applications of Article 12, Prepared for the World Network of Users and Survivors of Psychiatry’ (2011)
88. Dhanda, ‘Legal Capacity in the Disability Rights Convention’, 460.
89. Emphasis added. The meaning of the phrase ‘deemed to be’ is not clear and it may refer to persons whose capacity is extinguished arbitrarily, without consideration of actual decision-making ability. A stronger reading is also possible however: that Committee was concerned about involuntary treatment of those who are found to lack the ability to make and communicate a decision, and on that basis are denied capacity. UN Disabilities Committee, Concluding Observations on Australia (n 4) [33].
90. Committee on the Rights of Persons with Disabilities, Draft General comment on Article 12 of the Convention - Equal Recognition before the Law (2013).
91. General Comment on Article 12, above n 5, [12].
92. In Australia, doctors may be called to account for negligent failure to treat patients under involuntary treatment provisions, where patients (or others) go on to experience harm as a result of non-treatment. Hunter Area Health Service & Anor v Presland 2005 (63 NSWLR 22); Simon & Anor v Hunter & New England Local Health District. McKenna v Hunter & New England Local Health District [2012] NSWDC 19. For discussion see I Freckelton, ‘Liability for Failure by Police to Detain Potentially Suicidal and Dangerous Persons’ (2008) 15 Psychiatry, Psychology and Law 17
93. S Rangarajan and B McSherry, ‘To Detain or Not to Detain: A Question of Public Duty?’ (2009) 16 Psychiatry, Psychology and Law 288. This has also been the subject of coronial inquests where the death of patient (and others) are attributed to a failure to admit patients to hospital. See eg. Inquest Into the Death of William Alexander MacKenzie [2011] Local Court of NSW (Coronial Jurisdiction); R v Waterlow [2011] NSWSC 326.
94. There is a vast literature on autonomy theory in which the normative content of the requirement of agency is a foundational theme. The notion of agency refers to the idea that an autonomous decision issues in some meaningful sense, from the ‘self’. Key texts include Gerald Dworkin, The Theory and Practice of Autonomy (CUP 1988)
95. Ronald Dworkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (Vintage 2011)
96. Ronald Dworkin, ‘Autonomy and the Demented Self’ (1986) The Milbank Quarterly 4
97. Derek Parfit, Reasons and Persons (OUP 1984). Relational theorists are also concerned with questions of agency in autonomy theory, and some argue that decision-making capacity is too low a standard for determining genuine agency. See n 59.
98. Abraham Rudnick, ‘Depression and Competence to Refuse Psychiatric Treatment’ (2002) 28 Journal of Medical Ethics 151
99. AM Ruissen, et al., ‘A Systematic Review of the Literature About Competence and Poor Insight’ (2012) 125 Acta Psychiatrica Scandinavica 103
100. Peter W Kalivas and Nora D Volkow, ‘The Neural Basis of Addiction: A Pathology of Motivation and Choice’ (2005) 162 American Journal of Psychiatry 1403
101. Tony Hope, et al., ‘Agency, Ambivalence and Authenticity: The Many Ways in Which Anorexia Nervosa can Affect Autonomy’ (2013) 9 International Journal of Law in Context 20.
102. These problems have been explored from a medical perspective see for example Louis C Charland, ‘Anorexia and the MacCat-T Test for Mental Competence: Validity, Value, and Emotion’ (2006) 13 Philosophy, Psychiatry, & Psychology 283
103. Sumit Anand and Paul A Pennington-Smith, ‘Compulsory Treatment: Rights, Reforms and the Role of Realism’ (2013) 47 Australian and New Zealand Journal of Psychiatry 895+896 and from a relational autonomy perspective.
104. Catriona Mackenzie and Wendy Rogers, ‘Autonomy, Vulnerability and Capacity: A Philosophical Appraisal of the Mental Capacity Act’ (2013) 9 International Journal of Law in Context 37. Considerable work on agency and authenticity in Anorexia Nervosa has also been done.
105. Hope, et al., ‘Agency, Ambivalence and Authenticity’; Jacinta Tan, ‘The Anorexia Talking?’ (2003) 362 The Lancet 1246.
106. Failure to admit patients to hospital raises ethical and human rights questions including but not limited to the right to respect for autonomy. For example in Europe, the right to autonomy has been balanced against the ‘right to life’ in Article 2 of the European the Convention for the Protection of Human Rights and Fundamental Freedoms. It has been found that there is a duty to order involuntary treatment for some ‘vulnerable’ adults where it is necessary to preserve life. See Rabone and another (Appellants) v Pennine Care NHS Foundation Trust (Respondent) [2012] UKSC 2. For discussion see MS Rahman and N Wolferstan, ‘A Human Right to be Detained? Mental Healthcare After “Savage” and “Rabone”’ (2013) 37 The Psychiatrist 29
107. George Szmukler, et al., ‘“Rabone” and Four Unresolved Problems in Mental Health Law’ (2013) 37 The Psychiatrist 297
108. Neil Allen, ‘First Do No Harm. Second Save Life?’ (2009) Journal of Mental Health Law 17
109. Neil Allen, ‘The Right to Life in a Suicidal State’ (2013) International Journal of Law and Psychiatry.
110. Bach and Kerzner, A New Paradigm for Protecting Autonomy (n 8, 61).
111. The concept of ‘vulnerability’ as an alternative to ‘capacity’ has been canvassed in relational theory. See for example, Wendy Rogers, et al., ‘Why Bioethics Needs a Concept of Vulnerability’ (2012) 5 International Journal of Feminist Approaches to Bioethics: Special Issue on Vulnerability 11, and accompanying articles. Others have argued that a vulnerability standard is problematic in that it risks re-instating a discriminatory ‘status’ approach to legal decision making.
112. Michael C Dunn, et al., ‘To Empower or to Protect? Constructing the “Vulnerable Adult” in English Law and Public Policy’ (2008) 28 Legal Studies 234
113. Kate Brown, ‘“Vulnerability”: Handle with Care’ (2011) 5 Ethics and Social Welfare 313
114. Mary Donnelly, Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism, vol 12 (CUP 2010) 125-130.
115. For example, over an extensive five-year consultation period, the Law Commission of England and Wales considered various options for determining ‘authenticity’ and ‘agency’ in decision making, particularly in the context of mental illness. All were rejected on the basis that they were too complicated and restrictive on autonomy, and that if a person was able to meet the functional test for capacity, that would be evidence enough of agency. See Law Commission (UK), Report No 231: Report on Mental Incapacity (1995), [3.17].
116. These are the ‘serious adverse effects’ identified by Bach and Kerzner as a trigger for a rights based framework for adult protection. This could involve ‘facilitated decisionmaking’ - a form of substituted decisionmaking - in certain circumstances: Bach and Kerzner, A New Paradigm for Protecting Autonomy (n 8, 91, 133).
117. Peteris Darzins, William Molloy and David Strang, ‘What Is Capacity?’ in Peteris Darzins, William Molloy and David Strang (eds), Who Can Decide? The Six Step Capacity Assessment Process (Memory Australia Press 2000), 12-18. Darzins et al’s approach was endorsed by the Victorian Law Reform Commission (n 49) [7.104]-[7.106].
118. Tina Minkowitz, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’ in Bernadette McSherry and Penelope Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart 2010).
119. Quinn, ‘Personhood & Legal Capacity Perspectives’ (n 14, 16).
120. Jeremy Bentham was one of the first to criticise legal fictions in the common law as the means by which power was wrested from citizens by the monarch. A detailed discussion of Bentham and other’s critiques of legal fiction is given in Louise Harmon, ‘Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment’ (1990) 100 The Yale Law Journal 1.
121. Department of Health (Ireland), Interim Report of the Steering Group on the Review of the Mental Health Act 2001 (2012) accessed 25 August 2014, 9-11, and Victorian Law Reform Commission (n 49) [17.120]- [17.121]. It is worth noting that many legislated best interests tests in Australian guardianship legislation, like the Mental Capacity Act 2005 (UK), do include a requirement that a person’s known wishes be taken into account. While this was acknowledged by the Commission, it took the view that the change in emphasis required by the CRPD to more firmly centre adult substituted decision-making on the ‘will and preferences’ of the persons themselves, would be best achieved through a change in language. Victorian Law Reform Commission, [6.19]-[6.21], [6.94].
122. Victorian Law Reform Commission (n 49) [17.105].
123. Victorian Law Reform Commission (n 49) [17.126].
124. It was through the exercise of the King’s parens patriae jurisdiction dating back to the 1200s, that the doctrine of substituted judgement was developed. Its first expressed use was in Ex parte Whitbread, 2 Meriv. 99, 35 Eng. Rep. 878 (Ch. 1816). For a concise history of the jurisdiction, see Philip Powell, The Origins and Development of the Protective Jurisdiction of the Supreme Court of New South Wales (Francis Forbes Society for Australian Legal History 2003).
125. The substituted judgement test in health care decision-making was first employed by a superior United States court in Re Quinlan (1976) 70 NJ 10. For discussion see Mary Donnelly, Healthcare Decision-Making and the Law (n 62) 176-192.
126. Thomas G Gutheil and Paul S Appelbaum, ‘Substituted Judgment: Best Interests in Disguise’ (1983) 13 Hastings Center Report 8.
127. Harmon, ‘Falling Off the Vine’ (n 67) 23.
128. Victorian Law Reform Commission (n 49) [17.112].
129. Victorian Law Reform Commission (n 49) [17.118].
130. Victorian Law Reform Commission (n 49) [17.122].
131. CRPD, art 12.4.
132. Christopher James Ryan, et al., ‘Long Time, No See: Australians with Mental Illness Wait Too Long Before Independent Review of Detention’ (2010) 35 Alternative Law Journal 147.