Time to rethink mental health laws for treatment without consent

By Bernadette McSherry, Monash University

Each Australian state and territory has a Mental Health Act that enables those with severe mental health problems to be detained and treated without their consent. While the criteria differ, generally it must be shown that the person has a mental illness, is in need of treatment and is likely to either self-harm or harm others.

Psychiatrists make the decision about to who should be “committed” and treated, with tribunals reviewing such decisions after a certain period of time. These laws thus set up a structure whereby psychiatrists are required to act as substitute decision-makers, rather than as advisers and service providers.

The criteria and processes for involuntary detention and treatment are currently being reviewed in the Australian Capital Territory, Tasmania, Victoria and Western Australia, with differing views about how these criteria should be framed. And we also need to consider whether separate mental health laws are needed at all.

Risk of harm test

It is difficult to predict when a person is likely to harm him or herself. Back in 1983, Alex Pokorny conducted a large study of the prediction of suicide of 4,800 individuals who were being admitted for psychiatric services in a United States hospital. He was unable to find any combination of clinical or other factors that could be used in practice, concluding that there were no methods to predict particular suicides “before the fact”.

There have been few subsequent studies of predictors of suicide and there is some evidence to suggest that suicides often occur during periods when the risk of self-harm appears to be low.

It is also difficult to predict who will be at risk of harming others because of the low rate of violence among those with severe mental health problems, compared with other groups.

In 2002, the US MacArthur Violence Risk Assessment research suggested that a diagnosis of severe mental illness, in particular a diagnosis of schizophrenia, was associated with a lower rate of violence than a diagnosis of a personality or “adjustment” disorder. Personality disorders are generally distinguished from mental illnesses because they are based on patterns of behaviour rather than on impairments in thought or mood.

More recent research suggests that substance abuse has a stronger correlation with violence than mental health problems alone.


The risk-of-harm criterion may be criticised for being discriminatory because it singles out those with mental impairments for preventive detention, when other groups who may be at high-risk of harming others are not. The focus on risk of harm in mental health laws has contributed to significant prejudice and discrimination towards people with mental health problems.

While there have been recent calls to abandon the risk of harm criteria in mental health legislation, none of the governments in the process of reforming current laws have signalled this approach will be taken. Rather, the risk of harm criteria will still exist in conjunction with other criteria.

Decision-making capacity test

Another option for law reform is based on the presumption that those with severe mental impairments cannot make decisions concerning their health because they lack a complete understanding of the nature of their mental impairment.

Sometimes, psychiatrists refer to such a lack of understanding as a lack of “insight”. While this is a rather vague term, insight is generally taken to refer to a person’s self-awareness that there is a problem or an illness and an understanding of its cause or meaning.

From a psychiatric perspective, if a person is unaware, or only partially aware, that he or she has a mental illness, it is in that person’s best interests to go ahead with treatment with the aim of improving “insight”. Many psychiatrists would argue that the ends of involuntary treatment justify the means and therefore they’re justified in substituting their decision to go ahead with treatment for whatever the individual concerned might want to occur.

But since Australia ratified the Convention of the Rights of Persons with Disabilities (CRPD), mental health law reform is moving away from substituted decision-making by clinicians towards putting supports in place to help people make their own treatment decisions. It is also emphasising voluntary treatment wherever possible and recognising a person’s legal capacity on an equal basis with others.

The problem with mental capacity legislation is that it may become too broad in scope in that too many people may be subject to treatment against their will. However, it seems that there may be a move towards including a capacity criterion in mental health laws in some Australian jurisdictions in conjunction with risk of harm criterion.

The focus on risk of harm in mental health laws has contributed to discrimination towards people with mental health problems. Kalexanderson

Best interests test

Psychiatrists sometimes argue that it would be better to have mental health laws that do away with the risk of harm criteria and instead concentrate on treatment in the “best interests” of the person concerned. A recent article by Christopher Large and colleagues in Australasian Psychiatry raised this option.

But countries that have had a “best interests” test in their mental health law, such as Ireland, have found that rather than being an objective standard, such tests open the way for subjective interpretations of what the clinician believes is best for the individual, without regard for the person’s will and preferences. For these reasons, Ireland plans to abandon the best interests test in its proposed new Mental Health Act.

Many mental health consumer advocates also see a best interests test as overly paternalistic.

Time to abandon mental health laws?

The Convention of the Rights of Persons with Disabilities is providing the impetus for challenging the justifications for why we have mental health laws at all.

Last year, the United Nations Committee on the Rights of Persons with Disabilities called for the repeal of legislative provisions that allow for the deprivation of liberty on the basis of disability, “including a psychosocial or intellectual disability”. After all, we don’t have diabetes or epilepsy laws compelling people to take medication, so why do we have mental health laws?

The idea that mental health laws should be abolished is not new. Back in 1994, Tom Campbell wrote that mental health legislation “institutionalises the idea that there is something about ‘mental illness’ itself, which invites a system of control and coercion”. He said the very existence of mental health legislation enabling involuntary treatment meant the mental health system became an emergency-driven one with a lack of resources available for access to voluntary treatment.

Burwash Calligrapher

Northern Ireland has signalled it will abolish its mental health legislation and instead enact one capacity law for all those with severe mental and intellectual impairments. A draft bill is in the process of development and, if enacted, will provide an interesting test case for how such law could work in practice.

It seems unlikely, however, that any Australian government will abandon mental health laws, or indeed the risk to self or others criterion, any time soon.

While some individuals clearly benefit from involuntary treatment, others may be left with a sense of trauma and grievance as a result of a process which may involve the police, the use of seclusion and restraint and injections of drugs that can have serious side effects.

It is therefore essential that we keep questioning the justifications for depriving those with severe mental health problems of their liberty and treating them without their consent.

Bernadette McSherry receives funding from the Australian Research Council as a Federation Fellow.

The Conversation

This article was originally published at The Conversation.
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