Laws to detain individuals with substance dependency: breaching human rights or restoring health?

At the turn of the 20th century in the United Kingdom and Australia, legislation was introduced to detain and treat "inebriates". Since that time, variations of such laws have continued to exist. This column examines current laws in Australia and New Zealand with a particular focus on recent law reform efforts in New South Wales and Victoria. The column raises some of the issues with these laws in relation to breaching human rights for the purpose of treatment.     

The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) took effect in 2008. This paper discusses a number of flashpoints where the CRPD will require real and significant reconsideration of English mental health and mental capacity law. The CRPD introduces a new paradigm into international disability law, relying on the social model of disability. While that is no doubt a good thing, there is as yet no clear sense as to how that is to be implemented. After providing an introduction to the Convention, the paper considers four specific areas: mental capacity law (focussing on the provisions of the Mental Capacity Act 2005), psychiatric treatment without consent, civil detention of people with mental disabilities, and mental disability in the criminal system (fitness to plead, insanity and diminished responsibility).     

Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities

On 13 December 2006, the General Assembly of the United Nationsadopted the Convention on the Rights of Persons with Disabilities(CRPD) and an associated Optional Protocol. The formulationof the CRPD has been hailed as a great landmark in the struggleto reframe the needs and concerns of persons with disabilityin terms of human rights. The CRPD is regarded as having finallyempowered the world's largest minority to claim their rights,and to participate in international and national affairs onan equal basis with others who have achieved specific treatyrecognition and protection. This essay interrogates the intellectualantecedents of the CRPD and its continuity and discontinuitywith 25 years of international law and its struggles with disabilityand human rights. It then explores the text of the CRPD, criticallyexamining its potential contribution to the realisation of therights of persons with disability.     

Human Rights Law: Australia and Slovenia

The human rights legal framework of Australia and Slovenia are vastly different. This article explores the evolution of human rights laws of Slovenia and Australia. While the study and comparison of Australia and Slovenia is uncommon, and not often used as an example to highlight aspects of human rights, both states have a long history of cooperation. The first Slovenian reportedly arrived in Australian in 1855. Since then, and particularly following World War Two, there has been a steady stream of Slovenian’s migrating to Australia. Slovenia upon independence prepared a new constitution that reflected the democratic human rights of the European Union, in 1991, and ratified the European Convention on Human rights in 1994. This article highlights how the opportunity Slovenia had to develop a new constitution, they were able to include many human rights that are often found in legislation. Australia’s constitution came into effect in 1901. Being more than 100 years old, there has been no attempts to revise the Australian constitution and expand the current express human rights. This article will determine whether the European Union’s human rights laws have not only influenced Slovenia’s human rights laws, but also Australia’s. This article suggests that Australia has much to learn from the Slovene experience, but is constrained by its constitution and region. This article highlights how a state formed in recent times, has had the opportunity to develop a constitution that reflects modern day human rights while an older state with longer established democracy has fallen behind in its protection of human rights.     

Taking Metaregulation to the United Nations Human Rights Treaty Regime: The Case of the Convention on the Rights of Persons with Disabilities

This article argues that regulatory scholarship can be harnessed to promote human rights, in this case the rights of persons with disabilities. It argues that the regulatory regime of the Convention on the Rights of Persons with Disabilities (the Convention) establishes a human rights metaregulatory regime. It shows that the Convention delegates all of the regulatory functions to four different actors, to the effect that no single actor has the full range of regulatory competencies. The implication of this high degree of delegation is that the Convention establishes a three‐party framework whereby the interaction between the regulatee and the two regulators is mediated by an oversight body. While organically independent, each actor is functionally interdependent so that an equilibrium is established. At a time where the effectiveness of the UN human rights treaty system is under assault, this article argues that the metaregulatory regime of the CRPD provides an optimistic vision for the future of human rights treaties.     

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND THE NEED FOR ITS INCORPORATION INTO A BILL OF RIGHTS

In this article I discuss the failure of most democratic countries to accept or properly implement the UN Convention on the Rights of the Child, despite, except in the case of the United States, having ratified it. I consider the domestic implementation of treaties. I discuss, from an Australian perspective, that country's failure to enact a Bill of Rights and argue that children in Australia have suffered as a result. I also discuss judicial approaches to international law and compare the situation in countries such as the United States, the United Kingdom, Canada, and New Zealand and suggest that even in those countries that do have a Bill of Rights, it is not oriented toward children and therefore does not properly recognize their rights.     

Community-based care and compulsion: what role for human rights?

This article considers the role of traditional conceptions of human rights in relation to the challenges posed by community treatment orders (CTOs). It explores how traditional rights discourse in mental health, which has focused on the rights of liberty and autonomy, is to be located within the landscape of community-based mental health law. Using jurisprudence arising under the European Convention on Human Rights, it identifies the limitations of traditional rights in this context. However, it argues that traditional concepts such as liberty and privacy still have a role to play.     

International human rights for mentally ill persons: the Ontario experience

This article is part of a working project which assesses Ontario's mental health legislation and practice vis-à-vis international human rights standards. The paper focuses on procedural safeguards provided by the major international human rights instruments in the field of mental health law such as the UN Principles for the Protection of Persons with Mental Illness (MI Principles) and the European Convention on Human Rights as interpreted by the European Human Rights Court. In analysing Ontario's compliance with international standards, the paper will explore some problems arising from the implementation of the legislation with which the author is familiar with from his experience as counsel for the Consent and Capacity Board. The paper aims to generate discussion for potential reforms in domestic legal systems and to provide a methodology to be used as a tool to assess similar mental health legislation in other local contexts.     

Innovative Governance in a Federal Europe: Implementing the Convention on the Rights of Persons with Disabilities

A recent development in European law, less heralded, but no less path‐breaking than the Treaty of Lisbon, was the ratification by the EU of its first human rights treaty—the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Concluded as a mixed agreement, the CRPD's pioneering monitoring mechanisms demand a high level of cooperation from both the Union and its Member States. It, thus, provides an opportunity for the Union to further develop a distinctly European notion of federalism by the use of new, innovative governance mechanisms. This article looks at the Union as a federalist project through the prism of the mixed agreement, and specifically the ways that federalism may be balanced within it, using the CRPD as an example. Although the Union has an existing Code of Conduct under the Convention, it lacks true engagement with these issues, and this article proposes changes to that end.     

CHOOSE TO HUG,NOT HIT*

This article discusses reasonable chastisement of children as a defense by parents to assault charges. It suggests that its continued retention contravenes the rights of children and the United Nations Convention on the Rights of the Child. It compares developments in various countries, such as the Scandinavian countries and New Zealand, where the defense has been abolished, as compared with the United States, United Kingdom, Canada, and Australia, where it has been retained. It suggests that its continued retention encourages bullying and violence in schools and in later adult life.     

Sex offender risk assessment: Consideration of human rights in community protection legislation

Objectives. Risk assessments provided to judicial decision makers as a part of the current generation of legislation for protecting the public from sexual offenders can have a profound impact on the rights of individual offenders. This article will identify some of the human rights issues inherent in using the current assessment procedures to formulate and communicate risk as a forensic expert in cases involving civil commitment, preventive detention, extended supervision, or special conditions of parole. Method. Based on the current professional literature and applied experience in legal proceedings under community protection laws in the United States and New Zealand, potential threats to the rights of offenders are identified. Central to these considerations are issues of the accuracy of current risk assessment measures, communicating the findings of risk assessment appropriately to the court, and the availability of competent forensic mental health professionals in carrying out these functions. The role of the forensic expert is discussed in light of the competing demands of protecting individual human rights and community protection. Conclusion. Actuarial risk assessment represents the best practice for informing judicial decision makers in cases involving sex offenders, yet these measures currently demonstrate substantial limitations in predictive accuracy when applied to individual offenders. These limitations must be clearly articulated when reporting risk assessment findings. Sufficient risk assessment expertise should be available to provide a balanced application of community protection laws.     

Mental health law and the UN Convention on the rights of persons with disabilities

People with a mental illness may be subject to the UN Convention on the Rights of Persons with Disabilities (CRPD), depending on definitions of terms such as ‘impairment’, ‘long-term’ and the capaciousness of the word ‘includes’ in the Convention's characterisation of persons with disabilities. Particularly challenging under the CRPD is the scope, if any, for involuntary treatment.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions

This article offers the first systematic analysis of the effects of domestic atrocity laws on human rights prosecutions. Scholars have identified various political and sociological factors to explain the striking rise in human rights prosecutions over the past 30 years, yet the role of domestic criminal law in enabling such prosecutions has largely been unexamined. That is surprising given that international legal prohibitions against human rights atrocities are designed to be enforced by domestic courts applying domestic criminal law. We argue that domestic criminal laws against genocide and crimes against humanity facilitate human rights prosecutions in post‐authoritarian states by helping to overcome formal legal roadblocks to prosecution, such as retroactivity, amnesties, immunities, and statutes of limitations. Using original data on domestic atrocity laws and human rights prosecutions in new democracies, we find that atrocity laws increase the speed with which new democracies pursue prosecutions, as well as the overall numbers of trials they initiate and complete.     

Mental health and human rights: the role of the law in developing a right to enjoy the highest attainable standard of mental health in Australia

Article 12(1) of the International Covenant on Economic, Social and Cultural Rights requires governments to recognise "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". However, the traditional focus of mental health laws on the treatment and detention of those with low-prevalence serious mental illnesses may have skewed resources such that the development of a right to mental health for all individuals with mental illnesses has been stymied. In Australia, a number of inquiries and reports have found that while legislation has been changed to comply with human rights principles, access to mental health care and follow-up post-hospitalisation need critical attention. This article outlines a five-year project aimed at exploring how mental health laws can help develop and support a right to enjoy the highest attainable standard of mental health.     

Competition policy: consequences of restrictive trade practices and price-fixing provisions for medical practitioners in Australia and New Zealand

Competition laws have only applied to many participants in the health care industry in Australia and New Zealand since the mid 1990s. Since then, the Australian Competition and Consumer Commission has considered a number of applications by medical practitioner associations and private hospitals to authorise potentially anti-competitive conduct, while the New Zealand Commerce Commission has successfully prosecuted a group of ophthalmologists. Amongst medical practitioners, however, there is still confusion and misunderstanding concerning the type of conduct caught by the Australian Trade Practices Act 1974 (Cth) and the New Zealand Commerce Act 1986 (NZ). This is of serious concern given the substantial penalties associated with price-fixing and restrictive trade practices. This article examines the provisions of these Acts most relevant to medical practitioners as well as a number of determinations and judicial decisions. To provide practical assistance to medical practitioners, the key lessons are extracted.     

心智障碍者监护理论争议与发展方向——以《残疾人权利公约》第12条为视角

心智障碍者即是成年人监护制度的主要适用对像,也是《联合国残疾人权利公约》第12条的调整对象。《公约》第12条倡导的尊重心智障碍者人权和自由的观点受到国际社会的普遍认可与尊重,但《公约》第1号《一般性意见》对《公约》第12条的解释确属脱离实际,导致我国国内对成年人监护的争论此起彼伏,无行为能力制度是否有存在的必要、监护是否应与行为能力相脱离、是否应以支持决策全面取代监护是各方争议的核心问题。在厘清争议的前提下,未来应通过司法解释对《民法总则》的相关内容做出细化规定。     

Protecting mental health clients' dignity — The importance of legal control

Protecting human beings' dignity is a fundamental value underlying the UN's Universal Declaration of Human Rights as well as several recommendations and conventions derived from this, among them the European Convention of Human Rights (ECHR), a declaration that also takes precedence over Norwegian legislation. Still, clients' stories inform us that their dignity is not always protected in the mental health service systems.The aim of the study has been to investigate violations of dignity considered from the clients' points of view, and to suggest actions that may ensure that practice is brought in line with human rights values.The method used has been a qualitative content analysis of 335 client narratives.The conclusion is that mental health clients experience infringements that cannot be explained without reference to their status as clients in a system which, based on judgments from medical experts, has a legitimate right to ignore clients' voices as well as their fundamental human rights. The main focus of this discussion is the role of the ECHR and the European Court of Human Rights as instruments for protecting mental health clients' human rights. To bring about changes, recommendations and practices should be harmonized with the new UN Convention on the Rights of Persons with Disabilities (2006). Under this convention, the European Court of Human Rights has support for the application of the ECHR without exemptions for special groups of people.     

从《残疾人权利公约》反思国际人权机制

2007年3月起开放签字的《残疾人权利公约》是联合国体系在保护人权领域的最新努力。与以往的多数人权条约一样,《残疾人权利公约》列举了具体权利、构划了报告体制,同时通过任择议定书设计建立一套来文制度。这意味着在国际人权法上又添加了一套体制。虽然从权利保护发展本身看,这一公约的出现丰富了联合国体系的人权保护内容,但是从国际法治的理念上看,它是国际法不成体系的特征的继续与延伸,本质上不仅无益于国际法治的完善,而且有可能进一步提高国际法维护人权各个环节的成本。现阶段有必要考虑将包括人权、环境等领域的规范进行编纂,将相应机构进行整合,以推进国际法治的目标。     

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.