Compulsory treatment in New Zealand:

No worries.

MENTAL HEALTH AND HUMAN RIGHTS IN VICTORIA

CREATIVE WAYS TO PROMOTE THE RIGHTS OF PEOPLE WITH MENTAL DISTRESS

Mary O’Hagan

In memory of Judi Chamberlin

TODAY’S TALK

Human rights for people with mental distress a huge topic:• Civil and political rights – compulsory treatment• Social and economic rights – participation in society

Victorian Charter of Human Rights and Responsibilities focuses mainly on civil rights

WHAT IS COMPULSION?

Mental health legislation establishes the circumstances in which a person with ‘mental disorder’, who hasn’t committed a crime, can be detained or treated without their consent.

The criteria include:•Mental disorder•Danger to self or others•Incapacity to refuse treatment

IMPACT OF SECTIONS IN CHARTER?

Recognition and equality before the lawLack of natural justice in Mental Health Act processes?

Protection from torture, cruel, inhuman degrading behaviourSeclusion, restraints, forced injections...

Freedom of movementLocked wards & choice of residence under Mental Health Act?

Freedom of thought and freedom of expressionTreatment without consent alters thoughts and expression

IMPACT OF CHARTER ON RATES?

Inpatient and Community Treatment Orders

New Zealand numbers per 100,000 population per month:• 1954 – 87.9• 1969 – 70.1• 1992 – further decline• 2008 – c. 90

Recent rise in spite of:• Definitions of mental disorder getting narrower.• More concern for human rights & less tolerance for paternalism.

Similar for Victoria?

IMPACT OF CHARTER ON RATES?

Community Treatment Orders

‘The introduction of compulsory treatment in the community may have increased the rate of compulsory treatment.’ NZ Director Mental Health

NZ and Australia have higher rate of community treatment orders than USA and Canada. Victoria has the highest rate.

Simon Lawton-Smith, ‘A Question of Numbers’, 2005

WHY IS IT A HUMAN RIGHTS ISSUE?

Compulsory treatment is:• Discriminatory• Based on contested views on diagnosis & treatment• Questionable to harmful outcomes• Undermines recovery policy• Contravenes emerging international law

CRITERIA ARE DISCRIMINATORY

Danger to othersPreventive detention can happen despite no crime (only with mad)

Danger to self Compulsion can happen despite competence (only with mad)

Competence ‘Most patients hospitalized with serious mental illness have

abilities similar to persons without mental illness for making treatment decisions.’ McArthur Study

‘The criteria for non-voluntary treatment should focus on the mentally ill person’s capacity to understand that he or she is ill and the benefits that might result from treatment.’ Ryan et al

DIAGNOSES & TREATMENTS CONTESTED

Compulsion supported by belief in biological pathology that destroys autonomy and needs correction with treatment.

All these beliefs are considered highly questionable by many diagnosed people and serious thinkers.

The science is uncertain at best.

THE OUTCOMES CAN BE HARMFUL

Medications can be life-depleting and life-shortening

Compulsion re-traumatises and corrupts therapeutic trust

Compulsion gets conflated with ‘premier’ service

There are perverse incentives to use it for clinicians & consumers

‘Compulsory community treatment results in no significant difference in service user, social functioning or quality of life compared with standard care.’ Kisely et al. Cochrane Review

UNDERMINES RECOVERY POLICY

National policies in all English speaking countries founded on recovery, but no reduction in compulsory treatment.

Compulsory treatment not compatible with recovery:•Self-determination and personal resourcefulness•Collaborative relationships•Choice of services•Equal participation in society

CONTRAVENES INTERNATIONAL LAW

UN Disability Rights Convention 2006

‘The acceptance of involuntary treatment and involuntary confinement...runs counter to the provisions of the Convention’

Special Rapporteur on Torture

‘Prior to...the Convention, the existence of a mental disability represented a lawful ground for deprivation of liberty and detention under international human rights law. The Convention radically departs from this approach by forbidding deprivation of liberty based on the existence of any disability.’

UN Office of the High Commissioner on Human Rights

JUSTIFICATIONS FOR DENYING FREEDOM

Western culture justifies removing freedom when citizens:• Transgress eg people who commit crimes• Judged not fully human (not rational) eg slaves, women, mad

Arguments for denying freedom (slaves, women, mad people)• They are better off without their freedom• Some of them prefer their loss of freedom• Depriving their freedom necessary for social order• If the freedoms are granted the people will misuse them

These justifications now laughable with slaves and women and will become so for mad people.

WHEN FREEDOMS GRANTED

Slaves and women• Raised status and opportunities• Resulted in a more just and open society• Social order changed but not destroyed

Similar outcomes if mad people with the same right to refuse consent as others

ALTERNATIVES TO COMPULSION

Stop colluding with discriminatory community consensus

Recovery focus - crisis prevention focus & ‘the life I want’

Advance directives

More and better crisis options

Robust systemic and individual advocacy

‘Compulsory responsiveness orders’

Separate healing function from control function

AN END TO MENTAL HEALTH LAWS

Treatment and detention without consent rare and brief

Emergency interventions have comparable threshold to physical medicine

Rethink assumptions about human responsibility for crimes

Humane recovery oriented criminal justice system

GETTING THERE...SLOWLY

• Strengthen mad people’s advocacy• Find community support (opinion leaders, politicians)• Build coalitions• Get media interest with stories• Use legal and policy levers (international, national, state)• Develop a vision and impetus for ‘liberatory’ services• Advocate for rights based anti-discrimination campaign• Advocate for tight, accountable monitoring of MH Act• Start with eliminating seclusion

THE ROAD TO HELL...GOOD INTENTIONS

‘Of all the tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive...for those who torment us for our own good will torment us without end for they do so with the approval of their own conscience...’ CS Lewis