What might Victoria’s Charter of Rights and Responsibilities

Act 2006 offer people with psychiatric disability?

Sophie Delaney

– Co-ordinator /Principal Solicitor Mental Health Legal Centre

Thanks to lawyers Allens Arthur Robinson for providing extensive legal advice on the Charter and Convention

and to the Human Rights Law Resource Centre for invaluable support and

resources.

F R E D• Freedom

• Respect

• Equality

• Dignity(Equal Opportunity and Human Rights Commission)

What does Charter say?

• All Victorians have right to:

– Recognition and equality before the law – includes freedom from discrimination because of psychiatric disability and freedom to make your own decisions.

– Right to life.

Right not to be tortured or treated in a cruel,

inhuman or degrading way

Includes freedom from:

“medical or scientific treatment without full, free and informed consent”.

So if might seem that people can’t be forced to have mental health treatment, unless they agree after being given enough information to make a properly informed decision.

Charter also states have right to:

• Freedom of movement;

• Privacy and reputation;

• Freedom of thought, conscience, religion and belief;

• Freedom of expression;

• Liberty and security of person;

• Humane treatment when deprived of liberty.

Charter also states have right to:

• A fair hearing; and

• A number of protections if you are charged with a criminal offence eg

–Information;

–Preparation

–Legal representation and help to communicate.

But . . Rights can be limited ...

Charter also says rights can be limited by other Acts/pieces of legislation, by

“reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom , and taking into account all relevant factors.”

Is it reasonable to limit right? – factors to look at:

• What the right is

• How important it is to limit it

• What the limitation is and how far it goes

• Whether the limitation is achieving its purpose

• Any less restrictive way of achieving the purpose.

Examples of rights limitations

Barbara, David and Mark will talk about how the Mental Health Act limits the right to refuse treatment for people with a diagnosis of mental illness.

Examples of rights limitations

Administration orders take away people’s freedom to make decisions about their finances, so they seem to limit right to equality before the law.

The purpose of administration orders is said to be to protect people with decision making disabilities from making bad financial decisions.

Eg - Administration cont. . .

• Ask:

–Is protecting a person/people important enough,

–whether order/orders go too far,

–whether it actually works,

–Is there a less restrictive way of preventing financial harm?

Eg - Administration cont. . .

• Also must consider how order impacts on people’s dignity, equality and freedom.

• Charter argument for moving to a supported, not substituted decision making model. If people get right help to manage finances themselves they may not need administrators.

How rights can be limited . . . .

International human rights cases and principles say that limitations on rights:

• Must not contradict essence of Charter rights

• Must not be arbitrary or unreasonable

• Must be able to be challenged and reviewed

• Must respond to a pressing need.

Balancing exercise

Is it a justifiable restriction or is there a less restrictive approach which better respects people’s dignity, equality and freedom?

What will Charter change if laws already require balance?

• Eg involuntary treatment under Mental Health Act and Administration Orders.

• Legal advice to MHLC is that the Charter “fortifies "or strengthens the obligation to respect rights wherever possible.

Charter doesn’t cover:

Economic, social and cultural rights

• Eg Right to best quality health services

• Right to safe and affordable housing, employment and financial security.

BUT charter rights may support arguments for right to treatment and support -

Supports right to services

• Eg in England right to life meant hospital had to provide whatever reasonable treatment it could to prevent suicide of an inpatient .

• Right to humane treatment in detention - right to particular treatments and supports when in prison or hospital.

Charter may create some limited rights to receive services cont.

• European Court of Human Rights has held that failure to provide adequate treatment to a prisoner violated right to freedom from cruel, inhuman or degrading treatment.

Service/housing/economic and related rights might be added . .

• Charter says after the end of 2010 the Attorney-General must review Charter and consider, amongst other things, whether these rights should be included.

LOBBY FOR CHANGES TO CHARTER ESPECIALLY AROUND

2010.

The Victorian Government must make legislation consistent with

Charter

• All new Acts of Parliament or amendments to Acts must include a statement of compatibility about whether and how the act is inconsistent with Charter rights.

• Scrutiny of Acts and Regulations Committee must examine new laws against Charter.

• Parliament can, in exceptional circumstances, declare that an Act or part of it is valid even though inconsistent with Charter.

Acts of Parliament and the Charter

• A declaration by Parliament that part of an Act is valid even though incompatible with Charter (Override Declaration) can only last five years but can be renewed by Parliament.

Public Authorities must also comply:

Including:

– Public psychiatric services – hospitals, clinics, CCUs, CAT teams, MST Teams, and many programs of PDRSS’s like Prahran Mission.

In all their dealings with all Consumers - voluntary and involuntary.

Individual mental health workers must also comply . . .

– Psychiatrists, doctors and casemanagers at public mental health services.

– Private doctors acting under the Mental Health Act eg signing a recommendation for involuntary treatment or providing treatment under a community treatment order.

Must also comply . . .

• Police

• Office of Police Integrity

• Ambulance officers

• Office of the Chief Psychiatrist

• Health Services Commissioner

These “public authorities”

• Don’t breach Charter if acting under another law - eg Mental Health Act - and it would not have been reasonable for them to act or decide differently.

• “Reasonableness” leaves room for argument and especially in early days boundaries should be tested.

Courts and tribunals must also comply and must:

• Interpret and apply laws consistently with Charter – includes Mental Health Review Board, VCAT re eg Administration Orders, Freedom of Information appeals and Discrimination actions.

• Give people “fair hearings” as set out in the Charter.

What can you do about Charter breaches?

• Can’t bring a Charter only Court action – though Government might change in 2010 review.

• Eg – can’t sue for Charter damages only if secluded in an inhuman or degrading way but Charter may strengthen civil action, complaint to Health Services Commissioner or Mental Health Review Board case.

What can you do about Charter breaches?

• Can’t get money compensation just because Charter breached – but – eg; Charter may make it easier to prove that especially undignified or rough treatment by police means you should get common law damages.

Use Charter to strengthen actions at, eg:

• Mental Health Review Board.

• VCAT re adminisitration orders, freedom of information complaints, discrimination cases.

• Courts re medical negligence, breach of statutory duty, assault, false imprisonment etc

• Courts and tribunals - Use the Charter if, for example, you don’t have a lawyer and need more help with procedures.

You can use Charter arguments to strengthen any complaints to, eg:

• Public hospitals or clinics, the Health Services Commissioner, Chief Psychiatrist, or the Ombudsman about how you are treated by mental health services.

• To police stations, Ethical Standards Department or the Office of Police Integrity about the way you are treated by police.

You can use Charter arguments to strengthen any complaints to, eg:

• Any Victorian (not Commonwealth) Government department about the way you are treated.

• Victoria Legal Aid re refusal to provide legal assistance or funding.

We can all use Charter to try to achieve systemic change

• Organisations like MHLC and VMIAC can use people’s experiences of Charter breaches to argue for changes to the law, legal system and mental health system.

• Vivienne will talk re one example MHLC is working on – Advance Directives.

We can all use Charter to try to achieve systemic change

Another way - through the Equal Opportunity and Human Rights

Commission - they have to report each year to the Attorney General on how the Charter is operating and how it is interacting with

other laws.

We can all use Charter to try to achieve systemic change

• Raise Charter rights for a better deal at an individual or systemic level.

• Advocates, the Equal Opportunity and Human Rights Commission, mental health and support workers and others will be keen to use the Charter to achieve change – so seek advice and assistance.

What other issues of concern to Consumers might the Charter

impact on?

Sophie Delaney

Co-ordinator /Principal Solicitor Mental Health Legal Centre

Not Complete List of Issues

• Charter won’t directly address all the rights related problems that MHLC clients and consumers more generally face.

• Early days and unclear what power Charter will have in terms of the issues which are covered.

Not Complete List of Issues

• Not all MHLC policy and law reform issues will be covered in presentations and not all already on survey.

• Important when we get to more formal consultation that you add your own priority rights issues if not already on list.

Test Charter Boundaries in Early Days

• We are committed to supporting consumers to use Charter as effectively as possible .

• Always ask the question – are my FRED rights being violated:

FREEDOM RESPECT

EQUALITY DIGNITY

Test Charter Boundaries . . . . .

• Always get advice – MHLC now has evening telephone legal advice as well as day time sessions.

• Understanding and applying Charter a long term process for everyone.

• MHLC and others will continue to explore implications, test Charter in its work and report through Annual Report and Website.

MHLC will:

• Send attendees a copy of report on this forum to Victorian Equal Opportunity and Human Rights Commission.

• Include a report on people’s priority issues.

• We are keen to know the views of consumers and non-consumers here today but please indicate capacity in which here.

Examples of Likely Impact -

• If police are unreasonable or excessive in the way they exercise their power under the Mental Health Act to apprehend people they feel are at risk, it might amount to “cruel, inhuman or degrading treatment”:– Capsicum spray and Taser stun guns?– Transport in police vehicles degrading?– Semi-automatic guns?

Examples of Likely Impact

• Provision in Mental Health Act allowing use of mechanical restraint on patients to prevent “persistent destruction of property” likely to be invalid

Eg: Restraint and Seclusion

• Charter breaches likely if not done as per Act, excessively, or causes unnecessary suffering or pain; and

• Charter supports lobby to eliminate such practices completely, as has happened in some United States jurisdictions with seclusion, for example.

Example of Likely Impact:

• Mental Health Services will have to be more careful about providing people with enough information to make properly informed decisions about treatment.

Example of Likely Impact:

• Right to humane treatment in detention means people in hospital should be guaranteed the same conditions as free persons as far as possible – eg:

• Phones that work and family friendliness;

• Fresh air/exercise/meaningful activities;

• Freedom to smoke;

• General wards not being locked.

Example of Likely Impact:

• Right to humane treatment in hospital – as well as right to privacy and right to freedom from inhuman or degrading treatment - create strong argument for separate services for women.

– Use for systemic change or to strengthen a discrimination claim – not providing separate services is arguably discriminatory and Charter may strengthen case.

Example of Likely Impact

Sedating a person when they are transported by police or

the CAT team may be a breach of Charter depending

on the circumstances.

Charter provides additional rights for

• Children – right to protection needed by children, and specific rights in criminal proceedings.

• Indigenous Australians – right to enjoy identity and culture and maintain language and kinship ties.

Charter can also Steer Law Reform eg:

• Review of Mental Health Act; and

• Monash University/ARC Project “Re-thinking Mental Health Laws” are

opportunities for MHLC, VMIAC and others to use charter for systemic

change

Charter supported law reform examples:

• MHLC’s longstanding campaign for natural justice re ECT.

• MHLC/VMIAC concerns re inadequacy of complaints processes - European Court of Human Rights said there are minimum standards of independence and competence for complaint that restraint of detainee with mental illness was a breach of human rights.

Real accounts from those with experience crucial to achieve

change

• Tell us and tell:

– Mental Health Minister (Mental Health Act being reviewed during 2008 and 2009).

– Office of Chief Psychiatrist, Ombudsman, Equal Opportunity and Human Rights Commission, Mental Health Review Board.

– Monash Uni Project: www.law.monash.edu.au/rmhl

To change attitude, policies, practice or day to day treatment of people with psychiatric disability –

cite Charter.

IF IT’S ABOUT FREEDOM, RESPECT, EQUALITY AND

DIGNITY

United Nations Convention on the Rights of People with Disabilities and

the Charter

Sophie Delaney – Co-ordinator /Principal Solicitor Mental Health

Legal Centre

What is Convention?

• Statement by the United Nations on the rights of people with disabilities including psychiatric or psychosocial disability.

• Australia is likely to ratify it later this year.

What is Convention?

• Not clear that Australia will sign the optional protocol - that would allow Australian groups and individuals to complain to UN Committee re breaches.

Need to lobby Australian Government to sign optional protocol

What is its relevance in Victoria?

• Charter says the Convention can be used in interpreting legislation like the Mental Health Act.

– Eg if the UN Committee on the Rights of Persons with Disabilities made a decision that involuntary treatment was only lawful where a person was actively suicidal that might influence how the involuntary criteria under the Mental Health Act are interpreted.

What does Convention say?

• Recognises the “importance for persons with disabilities of their individual autonomy . . . including the freedom to make their own choices”.

• Recognises right to the enjoyment of the highest attainable standard of health without discrimination .

First general principle of Convention:

“Respect for the inherent dignity, individual autonomy including freedom to make one’s own choices, and independence of persons”.

Once ratified, Australia must:

“adopt all appropriate legislative, administrative and other measures for the implementation of Convention rights”

Appropriate legislative measure:

Eg:

• Advance directives with legislative force – allow people to make decisions about treatment in advance when not deprived of capacity by symptoms.

Australian Government must report to UN

• On progress towards implementing Convention – including economic, cultural and social rights - and

• Must make reports public;

• UN Committee can make suggestions and general recommendations and reports to UN General Assembly and Economic and Social Council.

Article 12 – Equal Recognition before the Law

• “. . .persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”

• “ . . .access by persons with disabilities to the support they may require in exercising their legal capacity”

Supported not substitute decision making model?

Equal Recognition before the Law – supported not substitute

decision making?

• “all measures that relate to the exercise of legal capacity (must) provide for appropriate and effective safeguards to prevent abuse . . . . safeguards shall ensure measures respect the person’s rights, will and preferences . . . . are proportional and tailored to the person’s circumstances, apply for the shortest time possible . . .”

Supported or Substitute Decision Making?

• Do fact that:– Measures Article 12 refers to are to give people

the support they need to exercise their capacity; and

– measures must respect “rights, will and preferences”

suggest that person’s wishes should still prevail?

On other hand . . .

• Australian Human Rights and Equal Opportunity Commission and others have expressed the view that the provisions about safeguards would be meaningless if involuntary treatment not allowed.

What is clear . . . .

• The debate as to the impact of Convention on involuntary treatment will continue for some time; and

• The Convention does tilt the Mental Health Act and similar legislation further towards freedom of decision and personal autonomy.

What is also clear:

• Convention strengthens argument for governments to introduce legally enforceable advance directives.

• Mental health services and other public authorities should consider whether their policies and procedures are in line with Convention as well as Charter.

Another example of how Convention might influence

change:

• Article 16 requires governments to prevent exploitation, violence and abuse by ensuring appropriate forms of gender and age sensitive assistance and support:

More support for, eg, separate services for women