Detention and treatment down under: human rights and mental health laws in Australia and New Zealand

Mental health law reform in recent decades has drawn on the international human rights movement. The entering into force of the Convention on the Rights of Persons with Disabilities (CRPD) on May 3 2008 has been hailed by some as signalling a new era in relation to how domestic mental health laws should be reformed. Both Australia and New Zealand have ratified the CRPD and Australia has acceded to its Optional Protocol. New Zealand and the Australian Capital Territory and Victoria have statutory bills of rights which have an interpretive effect, but are unable to render other statutes invalid. Drawing on the results of interviews conducted with fifty-two representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries and outlines what changes, if any, may be brought to domestic legislation in light of the Convention.     

Assisted suicide and human rights

The case of R (Pretty) v. Director of Public Prosecutions, gave the House of Lords the opportunity to comment on the issues surrounding the application of the European Convention on Human Rights to the crime of assisted suicide in the case of the terminally ill. A conservative approach was taken in relation to both this issue and indeed in relation to the possibilities of judicial control of the Law Officers of the Crown.     

The case for regulating collaborative reproduction: a children's rights perspective

There is little regulation of collaborative reproduction--the use of the eggs, sperm, or embryos of a third party to create a child biologically unrelated to at least one intending parent. This Article argues that the dearth of regulation should be assessed from a children's rights perspective and accordingly adjusted. After examining the effects of the experimental reproductive technologies, it concludes that traditional family law preferences and policies are undercut by the deliberate creation of collaboratively reproduced children. The lack of regulation might stem from constitutional protection afforded parents in the right of privacy and substantive due process cases. The author, however, contends that collaborative reproduction implicates the rights of children and requires a separate balancing of rights not contemplated in other cases. Collaborative reproduction also requires regulation because of its spill over effects on the acceptability of cloning. The Article concludes by offering several possible regulatory responses to the problems posed by collaborative reproduction.     

Liberty: human rights and mental health

In this paper, Lord Phillips reflects on the present state of the law relating to mental health; he considers the place of the common law doctrine of necessity as the basis for the detention of patients; he reviews a number of issues arising from the jurisprudence of the European Court of Human Rights in Strasbourg and a number of recent decisions of the Court of Appeal. Finally, he considers the prospects for change in the law foreshadowed in the Government's White Paper on the Reform of Mental Health Law (2000).     

Community reintegration of prisoners with mental illness: a social investment perspective

Responding effectively and efficiently to the needs of persons with mental illness returning to the community from prison requires identifying their differences in need and placement difficulties upon return and targeting reintegration investments to reflect these differences. This paper has three parts. The first part profiles the male special needs population in New Jersey prisons. These profiles describe behavioral health and criminal justice characteristics of 2715 male inmates with mental health problems, and are used to identify the scope and nature of the public's investment opportunity. The next part describes the costs associated with possible "investments." The special needs population is classified by need and placement difficulty, and then matched to reentry and community-based treatment programs. Costs are estimated for reentry planning and community-based treatment for the first year post-release. The third part recommends an investment strategy and a set of operational changes that might minimize the loss and maximize the return on the public's investment dollar in mental health.     

Drug-free workplace programmes: New Zealand perspective

New Zealand (NZ) companies have been introducing Drug & Alcohol Free Workplace Policies and Programmes, which include testing, since 1992. Most "safety-critical" industry sectors are now embracing drug and alcohol testing as part of comprehensive programmes which also have a strong focus on education and rehabilitation. Prison Inmate testing was also introduced in 1998. Lawful drug testing in NZ should be conducted to the strict medico-legal requirements of the Australian/New Zealand Standard, AS/NZS 4308:2001 "Procedures for the collection, detection and quantitation of drugs of abuse in urine." This paper gives an overview of the NZ experience, highlighting the mix of testing options employed, the industry sector trends, the categories of drugs misused, the influence of significant Employment Court Judgements, proposed changes to the AS/NZS 4308(2006), and current oral fluid research projects.     

Dangerous patients and duties to warn: a European human rights perspective

The recent case of David Bradley, who shot and killed four members of his family after telling his doctor he 'wanted to kill someone', has raised the question of whether a healthcare professional could ever be held liable for failing to take steps to constrain a potentially dangerous patient. Until recently, it was considered that the United Kingdom courts would be reluctant to impose a duty to protect third parties. However, the European Court of Human Rights' decision in Osman v UK--while not directly concerning healthcare professionals--has opened the door for just such a duty. When this duty will arise, and how it can be discharged, remain challenging questions. Furthermore, healthcare professionals face the unenviable task of balancing competing duties, in which the rights--and safety--of their patients must also be borne in mind.     

Cloning for human reproduction: one American perspective

The author, an American law professor, believes that whole-body cloning of adult humans will be possible in the near future. He does not believe the procedure should be banned when used as a form of assisted reproduction, but that it should be regulated by the government to ensure proper testing and application. After raising a number of scientific, ethical, religious and legal issues, Professor Chester addresses parentage in light of both old and new concepts of the 'family.' Finally, he focuses on the problem of women as surrogate mothers of clones, arguing in the process that the surrogate, having no real genetic tie to the clone, would have less of a claim to parentage than at least some of the surrogates currently gestating foetuses.     

The New Zealand Health and Disability Commissioner: a comparative assessment of the commissioner's contribution to protecting the rights of mental health consumers

The Health and Disabliity Commissioner's contribution to the protection of mental health consumers' rights is examined. This assessment covers a number of aspects. It includes the scope of consumer rights jurisdiction, the breadth of legal entitlements, protective mechanisms used, and the effectiveness of that protection. The Commissioner's role is also assessed comparatively. It is contrasted domestically with District Inspectors of Mental Health and internationally with Scottish and United Kingdom reform proposals. While analysis reveals considerable similarities, the New Zealand Health and Disability Commissioner is favourably highlighted in contrast with Scotland and the United Kingdom, particularly in the area of enforceability of mental health consumer rights.     

Advance directives and the persistent vegetative state in Victoria: a human rights perspective

With advances in medical technology, it is now possible to sustain the life of a person in a persistent vegetative state (PVS) until a decision is made to withhold or withdraw life-sustaining treatment. Who makes that decision? Under the Medical Treatment Act 1988 (Vic) there is no legally enforceable right for a person to choose, in advance, what intervention that person will and will not accept if he or she ends up in a PVS. The best that can be achieved is that a person can appoint an agent who is empowered to refuse medical treatment on the person's behalf in the event of incompetence. It is suggested that this mechanism ignores two fundamental human rights: self-determination and the inherent right to dignity. This article proposes the development of an advance directive mechanism that provides for a person to refuse, in advance, specified intervention, thereby respecting fundamental human rights and alleviating the existing need for an agent to second-guess a person's desires and best interests.