A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

Decriminalisation of abortion performed by qualified health practitioners under the Abortion Law Reform Act 2008 (Vic)

In 2008, the Victorian Parliament enacted the Abortion Law Reform Act 2008 (Vic) and amended the Crimes Act 1958 (Vic) to decriminalise terminations of pregnancy while making it a criminal offence for unqualified persons to carry out such procedures. The reform legislation has imposed a civil regulatory regime on the management of abortions, and has stipulated particular statutory duties of care for registered qualified health care practitioners who have conscientious objections to terminations of pregnancy. The background to, and the structure of, this novel statutory regime is examined, with a focus on conscientious objection clauses and liability in the tort of negligence and the tort of breach of statutory duty.     

Severe mental disorder as a basic commitment criterion for minors

Since 1991, commitment to involuntary psychiatric care has been allowed in Finland for minors in broader terms than for adults. While in adults mental illness has to be diagnosable before involuntary treatment can be imposed, minors can be committed to and detained in involuntary psychiatric treatment if they suffer from "severe mental disorders", and fulfil the further commitment criteria defined in the Mental Health Act. The first years of the new mental health legislation showed an increase in involuntary treatment of minors in Finland. Concerns were raised about the imprecise nature of the commitment criterion "severe mental illness". This study set out to find out whether Finnish child and adolescent psychiatrists are in agreement on how to define severe mental illness and whether their interpretations are sufficiently similar to ensure the equality of minors in commitment to psychiatric care as prescribed by the Mental Health Act. Semi-structured, reflexive dyadic interviews were carried out with 44 psychiatrists working with children and adolescents. The data was analysed using qualitative content analysis. There was general agreement about what constitutes a "severe mental disorder" justifying the involuntary psychiatric treatment of minors. The child and adolescent psychiatrists were of the opinion that involuntary treatment of minors should not be tied to specific diagnostic categories. Which disorders are severe enough to justify commitment should rather be considered through developmental and functional impairment and interactions between a minor and her/his environment.     

精神卫生法的理想与现实

《精神卫生法》的立法经历了一个极其漫长的过程,最终出台的法律文本仍然存在非常严重的问题,其立法所要解决的问题所要达到的目的非常高,而与中国的现实严重脱节。《精神卫生法》立法的三大理想中,保护精神病患者的合法权益是核心,并希望立法来解决包括被精神病等一系列的社会现实问题。但是,立法脱离现实,相关的内容甚至出现了错误,表现在精神病患者的收治、实施导致人体器官丧失功能的外科手术、急诊急救、基层医疗机构的精神卫生保障等方面。由于存在不切合中国实际国情的规定,《精神卫生法》在我国的实施将会大打折扣。建议《精神卫生法》重点关注严重精神疾病患者得不到治疗、肇事肇祸的严重精神疾病患者得不到强制医疗的现象,关注财政投入不足、强制收治不规范等方面的问题。     

Regulation of donor conception and the "time to tell" campaign

The first jurisdictions in the world to introduce legislation regulating donor conception were Victoria (Australia) and Sweden in the 1980s. Under the Infertility (Medical Procedures) Act 1984 (Vic), donor-conceived people (aged 18 years and over), their parents (if children were under 18 years) and donors gained the right to apply for identifying information about each other. Information can only be given with the consent of each party. To date, over 3,500 donor-conceived children have been born in Victoria since the 1984 Victorian legislation was introduced (and enacted in 1988). The first 106 donor-conceived children under this legislation turned 18 in 2006 and many of them may not know that they are donor-conceived. The Infertility Treatment Authority, Victoria, conducted a public education campaign to provide information and support to people affected by the legislation. The campaign and services associated with donor registers have had a significant initial impact.     

Regulating assisted reproductive technologies in Victoria: the impact of changing policy concerning the accessibility of in vitro fertilisation for preimplantation tissue-typing

On 1 January 2010, the Assisted Reproductive Treatment Act 2008 (Vic) came into force. The legislation was the outcome of a detailed review and consultation process undertaken by the Victorian Law Reform Commission. Arguably, the change to the regulatory framework represents a significant shift in policy compared to previous regulatory approaches on this topic in Victoria. This article considers the impact of the new legislation on eligibility for reproductive treatments, focusing on the accessibility of such services for the purpose of creating a "saviour sibling". It also highlights the impact of the Victorian regulatory body's decision to abolish its regulatory policies on preimplantation genetic diagnosis and preimplantation tissue-typing, concluding that the regulatory approach in relation to these latter issues is similar to other Australian jurisdictions where such practices are not addressed by a statutory framework.     

'The necessity must be convincingly shown to exist': standards for compulsory treatment for mental disorder under the Mental Health Act 1983

Current English law has few controls on the involuntary treatment of persons detained under the Mental Health Act 1983. In 2001, R (Wilkinson) v. Broadmoor Special Hospital Authority provided some hope that, in conjunction with the Human Rights Act and the European Convention on Human Rights (ECHR), meaningful substantive and procedural standards for compulsory psychiatric treatment might be developed, but that hope has not been fulfilled. Using Wilkinson and the ECHR jurisprudence as a starting point, this article considers when, if at all, compulsory psychiatric treatment might be justified. In particular, it considers the difference between the 'appropriateness' standard of the English legislation and the ECHR requirement of 'therapeutic necessity', the requirements for appropriate procedure and appropriate legislative clarity, how the courts should deal with disagreements among treating physicians, and the relevance of the capacity and best interests of the detained person.     

Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.     

Donor conception legislation in Victoria, Australia: the "Time to Tell" campaign, donor-linking and implications for clinical practice

The State of Victoria in Australia was one of the first jurisdictions in the world to introduce legislation regulating donor conception. Under the Infertility (Medical Procedures) Act 1984 (Vic), donor-conceived people, aged 18 years and over, parents of children under 18 years, and donors gained the right to apply for the release of identifying information about each other recorded in a Central Register. As a result, of this and subsequent legislation, services providing donor treatment were obliged to change clinical practice relating to recruitment of donors, counselling of donors and recipients and recordkeeping. Since this legislation was introduced in 1988, over 5,000 donor-conceived children have been born and in 2006 the first 100 of these children reached the age of 18. The Victorian Infertility Treatment Authority (ITA) conducted a public education campaign to provide information and support to people affected by the legislation. This article describes clinical practice changes prompted by legislation, the 'Time to Tell" campaign and the service model developed for linking parties on the donor registers. The Victorian experience demonstrates that laws allowing the parties involved in donor conception access to information about each other must be accompanied by changes to clinical practice, public education about the implications of the laws, and services to meet the needs of those seeking information relating to donor conception and those contacted as a result.     

Call 911: psychiatry and the new Emergency Medical Treatment and Active Labor Act (EMTALA) regulations

The Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, aims to prevent "patient dumping" by requiring hospitals to screen and stabilize patients who come to an emergency room seeking medical attention. For many reasons, recovery under EMTALA is rare, especially when psychiatric treatment is called for. New regulations of EMTALA went into effect on November 10, 2003. These new regulations helpfully clarify the applicability of EMTALA. However, the bias against recovery in cases involving psychiatric emergencies is likely to remain.     

The age of risk: risk perception and determination following the Mental Health Act 2007

Reforms to the mental health law framework for England and Wales, which were introduced by the Mental Health Act 2007, are now having a practical effect on day-to-day mental health decision-making. The 2007 Act amends the Mental Health Act 1983, which governs the compulsory hospitalisation and treatment of people with mental disorder; and represents the culmination of a protracted and controversial reform process which has spanned much of the last 15 years. One of the key foci in the 2007 Act is the question of the risk posed by the patient, primarily to others; a result of both the social and political impetus behind the reform process and mounting public anxiety at the management of the mentally disordered. The new Act seeks, as with past legislation, to find the elusive balance between protecting and facilitating the individual's autonomy while also providing an effective framework for the wider public right to protection. The 2007 Act solidifies the dominance of risk by providing a legitimating framework in which risk can be assessed, monitored, and managed. This attitudinal change is demonstrated by the gradual and almost insidious adoption of risk terminology within the practical decision-making setting and the increasing use of risk assessment and management tools. This article is informed by an empirical study which examined individual professional and institutional responses to the mental health legislation in relation to risk. It examines whether the amended legislative framework amplifies risk as an increasingly dominant concern within decision-making. The paper then goes on to consider how decision-makers use risk to assist with their daily roles. Extrapolated from data obtained through the study, several models of risk determination are then discussed. Finally, some thought is given to whether the extension of the risk concept has the potential to become more fundamental within the organisation and legitimisation of mental health care.     

Immigration Act medical inadmissibility provision survives constitutional challenge

In a decision issued on 27 June 2002, the Federal Court of Canada ruled that the medical inadmissibility provision of the Immigration Act did not infringe sections 7 or 15 of the Canadian Charter of Rights and Freedoms. Although the Immigration Act was repealed effective 28 June 2002 with the coming into force of the Immigration and Refugee Protection Act (IRPA), the court's reasons are relevant to some HIV-positive people seeking admission to Canada under the new legislation.     

Implementing the Mental Health Act 2007 in British general practice: Lessons from Ireland

Changes in mental health legislation (e.g. Mental Health Act 2007 in England and Wales, Mental Health Act 2001 in Ireland) have generally improved adherence to international human rights standards, but also present challenges to primary care providers. When mental health legislation was substantially reformed in Ireland, 62.9% of general practitioners (GPs) felt the new legislation was not user-friendly. Majorities of GPs who felt the legislation affected their practice reported increased workloads (85%) and various other difficulties (53%). GPs who had received training about the legislation were more likely to find it user-friendly (43% versus 30.9%), and informal training (e.g. from colleagues) was just as likely as formal training to be associated with a GP finding it user-friendly. With similar changes to mental health legislation being introduced in England and Wales, it is significant that informal training is just as good as formal training in helping GPs work with new mental health legislation.     

Supreme Court of Canada's “Beautiful Mind” case

The Supreme Court of Canada's (SCC) first case involving capacity and the refusal of involuntary psychiatric treatment involved a self described “professor” who had been referred to as “Canada's Beautiful Mind”. He had been found not criminally responsible on account of mental disorder for uttering death threats. While considered incapable of making a treatment decision by psychiatrists and a review board, three levels of court, including the SCC, found him to be capable. “Professor” Starson therefore continued to refuse treatment for his psychosis and spent over seven years detained because he refused the treatment required to become well enough to be released. This refusal of treatment is permitted under Ontario law, although it is not permitted in some other Canadian provinces, and in many other countries.This article describes Starson's situation, Ontario's law with respect to consent to treatment and relevant Canadian constitutional and criminal law. It provides an analysis of the Consent and Capacity Board decision and the court appeals. Implications from Starson's case are analyzed in relation to what happened to Starson, human rights and comparative law pertaining to involuntary patients' refusal of treatment, especially their relevance to the Canadian Charter of Rights and Freedoms, and laws in some other countries. Many Canadian and foreign jurisdictions where laws apparently accord with human rights codes do not allow a person to refuse the treatment required to restore their liberty. We conclude that a law that allows a person with a mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by law, be provided is not justifiable in a caring democratic jurisdiction.     

Origins of the "Third psychiatric revolution": the Community Mental Health Centers Act of 1963

In recent decades the community mental health movement has achieved a dramatic reduction in the census of state and county mental hospitals in the United States, and hundreds of federally-funded community mental health centers have been established nationwide. At the same time, national controversy has arisen in response to what in places has seemed the haphazard process of implementing "deinstitutionalization" and the fate of many chronically mentally ill persons who are without needed social services and psychological care. Despite the widespread attention that this contemporary program has received, theoretical analysis of the complex social, scientific, intellectual, and political origins of America's community mental health policy remains deficient. This article examines the background and development of the Community Mental Health Centers Act of 1963, tracing how an important shift in national policy toward the mentally ill grew out of changing perceptions--among policymakers, professional groups, and the general citizenry in the post-World War II era--of the nature of the problem of mental illness.     

Principles,patient welfare and the Adults with Incapacity (Scotland) Act 2000

The law surrounding decision-making for adults who lose their capacity varies considerably internationally. In many cases legislation has taken a protective and consequently restrictive role for adults with incapacity and often the issue of capacity assessment within the appropriate legal framework is circumvented. In Scotland, the introduction of the Adults with Incapacity (Scotland) Act 2000 modernised that nation's approach to incapable adults. This article describes briefly the pre-2000 Act situation in Scotland, discusses the main provisions of the Act, reviews the use of principles in incapacity legislation in Britain, and discusses issues relating to patient welfare. The use of principles to extend patient autonomy into incapacity is demonstrated and compared with the English and Welsh Mental Capacity Act 2005 (the 2005 Act) through a discussion of how the principles in each of those Acts promotes particular ideologies of decision making. Finally, the article examines recent Scottish case law relating to the 2000 Act and discusses how the courts are currently interpreting the principles of the Act.     

Plessy as "Passing": Judicial Responses to Ambiguously Raced Bodies in Plessy v. Ferguson

The Supreme Court's decision in Plessy v. Ferguson (1896) is infamous for its doctrine of "separate but equal," which gave constitutional legitimacy to Jim Crow segregation laws. What is less-known about the case is that the appellant Homer Plessy was, by all appearances, a white man. In the language of the Court, his "one-eighth African blood" was "not discernible in him." This article analyzes Plessy as a story of racial "passing." The existence of growing interracial populations in the nineteenth century created difficulties for legislation designed to enforce the separation of the races. Courts were increasingly called upon to determine the racial identity of particular individuals. Seen as a judicial response to racial ambiguity, Plessy demonstrates the law's role not only in the treatment of racial groups, but also in the construction and maintenance of racial categories.     

Rights-based mental health legislation and the right to be treated

Following the United Nations Declaration on the Rights of Persons with Mental Illness (1991), the Australian Government released the National Mental Health Policy in 1992. Pointedly, the Report of the National Inquiry into the Rights of People with a Mental Illness in 1993 was critical of the failure of a number of Australian jurisdictions to adequately protect the rights of people with mental illness. A subsequent critique of the capacity of mental health law and policy to respond to current and future challenges of community-based care suggested that while Australian legislation and policies may pass human rights scrutiny in principle, there was insufficient focus on the monitoring processes to ensure implementation and adherence to those measures. The new Commonwealth Attorney-General has foreshadowed the development of a Charter of Rights to create a framework for legislators and regulators when drafting legislation to cover "aspirations" such as the recognition of fundamental human rights. However, it is argued that the dilemma of how best to care for and protect those afflicted with mental illness as well as the public who may be affected by violence or offending by those persons with untreated mental illness, will not be resolved by resort to a didactic Charter of Rights, however idealistic or well intentioned.     

Attitudes among medical and law students toward decision-making in regard to involuntary psychiatric hospitalization

Background

The management of individuals with mental illnesses sometimes requires involuntary hospitalization. The Israel Mental Health Act requires that cases of involuntary psychiatric hospitalization (IPH) be periodically reviewed by the district psychiatric committee. The discussion in the committee often leads to debate regarding the need for an IPH potentially depriving the patient of his freedom. Little is known about the way in which the psychiatrists and attorneys on these committees arrive at their decisions. The present study was designed to examine the views of future doctors and attorneys concerning cases of possible IPH to determine whether their decisions would be influenced by their respective professional educational backgrounds.

Methods

After compiling demographic data, we asked 170 students from each of the two disciplines what their decision would be in two hypothetical cases that dealt with the question of a prolongation of a psychiatric hospitalization. Questionnaires examining social distance and possible stigmatizing views concerning psychiatric patients were also distributed and collected.

Results

The response rates for the medical and law students were, respectively, 90% and 85%. We found no differences between the medical and law students regarding their views on prolongation of a psychiatric hospitalization. This was consistent regardless of whether the hospitalization was against the patient's will or according to his wish and against the treating physicians' advice. We also found that the medical and law students had similar general views regarding psychiatric patients, but that the latter evidenced greater social distance than the former.

Conclusions

Academic background and socialization were not found to influence the decisions of students regarding IPH. Educational programs and exposure to psychiatric patients during law studies are proposed to lessen psychiatric stigma and promote better understanding between members of the two disciplines.