مفهوم ظرفیت در اصلاح قانون بهداشت روانی استرالیا: رفتن در جهت اشتباه؟

The six Australian states and two territories each have legislation that enables the involuntary detention and treatment of individuals diagnosed with mental illness who are considered in need of treatment and where there is evidence of a risk of harm to self or others. A number of governments have undertaken or are currently undertaking reviews of mental health laws in light of the Australian Government's ratification of the Convention on the Rights of Persons with Disabilities. While United Nations bodies have made it clear that laws which enable the detention of and substituted decision-making for persons with disabilities should be abolished, debates in Australia about the reform of mental health legislation have largely focused on Article 12 of the CRPD and what is meant by the right of persons with disabilities to enjoy legal capacity on an equal basis with others. It is argued that a more holistic view of the CRPD rather than the current narrow focus on Article 12 would best serve the needs of persons with mental impairments.

Article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) recognises that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. Such a recognition of universal “legal capacity”, has raised the issue of whether a perceived lack of or impairment of “mental capacity”, which the United Nations CRPD Committee refers to as “the decision-making skills of a person” (United Nations Committee on the Rights of Persons with Disabilities, 2014: para. 12), should be used as the basis for restrictions in civil law areas relating to involuntary mental health treatment and guardianship. In Australia, a number of governments have recently undergone or are currently undertaking reviews of mental health legislation in the light of the principles set out in the CRPD. The six Australian states and two territories each have separate mental health acts that enable involuntary detention and treatment where there is evidence that a person is mentally ill, is in need of treatment and there is a risk of harm to self or others. This article provides an overview of the current debates concerning the concept of “capacity” in mental health law reform in the light of Australia's interpretive declaration (set out below) which states that the CRPD allows for the “compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability.” It is argued that the current law reform focus on Article 12 and matters of capacity – as exemplified by the Australian Law Reform Commission's focus on capacity in its 2014 Inquiry into disability and commonwealth laws – has served to keep attention on involuntary detention and treatment, rather than viewing the CRPD as an opportunity to find new ways of ensuring voluntary access to the highest attainable standard of mental health services and community care. It is further argued that Article 12 is only one article in a Convention that is designed to ensure persons with disabilities are able to exercise their human rights and fundamental freedoms on an equal basis with others. When viewed within the context of the CRPD as a whole, legal capacity is not only “indispensable” for the realisation of other rights (United Nations Committee on the Rights of Persons with Disabilities, 2014: para. 8), but other rights, such as the rights to health and to independent living, are critical for the realisation of legal capacity. The reform of service delivery by offering individually tailored formal and informal decision-making support and a greater range of care and treatment options should be viewed as essential to implementing the support model (Flynn & Arstein-Kerslake, 2014) envisaged by Article 12 and in realising other important rights. Rather than focusing purely on debates about legal capacity as is currently the trend in Australian mental health law reform, it is argued that it is necessary to take a more holistic view to “unleash the CRPD's potential” (Lewis, 2010, p. 105). The next section outlines how the CRPD relates to persons with mental impairments1 and how Australia has interpreted the scope of the CRPD. An overview of Australian mental health laws is then provided followed by an examination of the growing international human rights discourse surrounding legal capacity and whether or not it can be limited by assessments of mental capacity. Finally, it will be argued that the focus of scholarly attention and mental health law reform should be redirected to focus on the way in which a broader construction of the CRPD than the current concentration on the “negative” human rights to legal capacity and to liberty (Article 14) to such “positive” rights as the right to health (Article 25) and the right to independent living (Article 19) could support meaningful change and empowerment for persons with mental impairments.

Current debates concerning mental health laws and legal capacity are stuck on a binary choice between detaining and treating persons with mental impairments without consent or, in Darold Treffert's (1973, p. 1041) oft-quoted phrase, leaving them “dying with their rights on”. Similarly, the debates about the right to liberty centre on the extent to which disability can be used as a justification for detention. Instead of getting tangled up in capacity and “disability neutral” matters, the focus for policymakers should be on the positive rights set out in the CRPD. By shifting the focus away from involuntary detention and treatment to providing and funding high quality services and support systems adapted to individual needs, the CRPD highlights that there may be a midway point between involuntary treatment on the one hand and no treatment at all on the other. More importantly, the need for involuntary treatment may diminish or disappear altogether.