The CRPD and human rights frameworks in Australia

In this section, it is argued that there are certain legal barriers restricting the influence the CRPD and human rights discourse more generally may have on guiding statutory interpretation in Australia as well as in relation to guiding legislative reform. This is because, first, the CRPD has not been incorporated into domestic law via legislation and, secondly, because Australia’s declarative interpretation of the CRPD indicates that governments will and are taking a conservative approach to law reform in relation to the rights of persons with mental impairments.

Under Article 26 of the Vienna Convention on the Law of Treaties, a convention is ‘binding upon the parties to it and must be performed by them in good faith’. Article 27 of the Vienna Convention provides that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty . . . ’. However, while the Disability and Other Human Rights Legislation Amendment Act 2009 (Cth) amended certain statutes to reflect some of the Articles of the CRPD, Australia has not incorporated the CRPD fully into domestic law and appears unlikely to do so.

The Asia-Pacific region does not have a human rights treaty or a regional mechanism for the protection of human rights (McBeth, Nolan, and Rice 2011). While the Australian Capital Territory and Victoria have enacted the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic), respectively, these are statutes that can be amended by Parliament. The absence of a national Bill of Rights means that the interaction between international human rights law and Australian domestic law is often uncertain. While Australia has ratified many international human rights treaties, including the CRPD, as affirmed by its High Court in Kioa v West (1985)these do not form part of Australian law unless they are specifically incorporated by the country’s national Parliament into domestic law.

Many international treaty obligations remain unincorporated into domestic law, including the rights set out in the International Covenant on Economic, Social and Cultural Rights and some of the rights in the International Covenant on Civil and Political Rights. While international law can contribute to the interpretation of domestic law where there are gaps or uncertainty and guide the development of legislation, different interpretations of international principles at the domestic level remain a ‘persistent feature of the complex interface between international and domestic law’ (Weller 2008, 87). In addition, courts cannot rely on provisions of ratified conventions unless they are dealing with a statute that has incorporated those provisions into Australian law. Thus, in relation to the CRPD, which has not been fully incorporated into domestic law, courts can develop the common law to reflect CRPD provisions, but are not obliged to draw on the CRPD in interpreting statute law.

In the Australian context, consideration must also be given to the Declaration that Australia made when ratifying the CRPD. The Declaration is to the effect that Australia understands the CRPD as allowing for ‘fully supported or substituted decision-making arrangements’ and ‘allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability’.³

The Australian Law Reform Commission (2014a, 9), as part of its Inquiry into equality, capacity, and disability in Commonwealth laws, initially recommended in its Discussion paper that the Australian Government review this Declaration ‘in order to withdraw’ its interpretations of the relevant Articles. However, in its final report, the Commission did not repeat this recommendation, but reframed the issue in terms of ‘how to advance, to the . . . [maximum] . . . extent possible, supported decision-making in a federal system’ (Australian Law Reform Commission 2014b, 58). It recommended that there be domestic law reform ‘regardless of whether the Declaration itself remains’ (Australian Law Reform Commission 2014b, 57).

The Commission (Australian Law Reform Commission 2014b, 11) has recommended the adoption of ‘National Decision-Making Principles’ as a framework for amending laws relating to persons with disabilities including mental health and guardianship laws. The Principles emphasise that persons with disabilities should be given support to make their own decisions, but there is also provision for the appointment of a ‘representative decision-maker’ as a ‘last resort’ (Australian Law Reform Commission 2014b, 11). There is a proviso that ‘a representative may override a person’s will and preferences’ where necessary to prevent harm (Australian Law Reform Commission 2014b, 13).

This signals that the purist interpretation of the CRPD discussed in the Relevant international law in this article is unlikely to hold sway in Australia in that the Australian Law Reform Commission still envisages room for legally appointed or recognised representatives to make decisions against a person’s will and preferences in certain circumstances. The next section turns to what the approaches to interpreting legal capacity under the CRPD mean in relation to informed consent.

Informed consent: common law and statute

In Australia, the law relating to informed consent to treatment may be found in common law as well as legislation. The common law follows the English approach whereby an adult ‘is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted’ (Butler-Sloss LJ in Re MB 1997, at 553). In Marion’s case (1992), which concerned an application for the sterilisation of a child with an intellectual disability, the High Court referred to the circumstances of ‘incapacity’ as differing greatly (at 234) and cautioned against ‘misconceptions often involving an underestimation of a person’s ability’ (at 239).

In Hunter and New England Area Health Service v A, Justice McDougall of the New South Wales Supreme Court summarised the law relating to consent to treatment and cited with approval Butler-Sloss LJ’s statement in the English case Adult Refusal of Medical Treatment (Re T) (1993, at 116) that

Justice McDougall subsequently went on to say that

Australian law on disclosure of information about treatment predominantly stems from the High Court decision in Rogers v Whitaker. In that case, the Court stated that the term ‘informed consent’ ‘is apt to mislead as it suggests a test of the validity of a patient’s consent’ (Mason CJ, Brennan, Dawson, Toohey, and McHugh JJ in Rogers v Whitaker 1992, at 490). Rather, it imposed a duty of care on medical practitioners to ‘warn a patient of a material risk inherent in the proposed treatment’ (at 490). Chief Justice Martin in Brightwater Care Group (Inc) v Rossiter (2009, para [30]) perhaps best summarised this Australian notion of ‘informed consent’ as ‘a legal duty to inform patients of all aspects and risks associated with any medical procedure before seeking their consent to that procedure’. Chief Justice Martin stated that there was a similar obligation to provide patients with ‘full information as to the consequences of any decision to discontinue treatment’ (Brightwater Care Group (Inc) v Rossiter 2009, para [30]).

The High Court in Rogers v Whitaker (1992) cited with approval Chief Justice King’s statement in F v R (1983, at 193) that ‘the paramount consideration [is] that a person is entitled to make his [or her] own decisions about his [or her] life’ (Mason CJ, Brennan, Dawson, Toohey, and McHugh JJ in Rogers v Whitaker 1992, at 487). However, the Court went on to state in relation to the duty to disclose relevant information ‘[t]hat this duty is subject to the therapeutic privilege’ (at 487), a term used to allow clinicians to withhold information on the basis that disclosure may be harmful to the patient.

Justice Gaudron agreed with the reasons set out in the joint judgment of the rest of the High Court, but added that the ‘duty to provide information and advice . . . takes its precise content . . . from the needs, concerns and circumstances of the patient’ (Rogers v Whitaker 1992, at 493). Her one point of disagreement with the joint judgment was that she could

Justice Gaudron here indicates that a ‘patient’s ability to receive, understand or properly evaluate the significance of the information’ may provide an exception to the need for informed consent. While not explicitly stated as an exception, Mason CJ, Brennan, Dawson, Toohey, and McHugh JJ also refer to the skill of medical practitioners ‘in communicating the relevant information to the patient in terms that are reasonably adequate for that purpose having regard to the patient’s apprehended capacity to understand that information’ (Rogers v Whitaker 1992, at 487, emphasis added). These statements reflect the notion of ‘mental capacity’ that the CRPD Committee is at pains to separate from legal capacity. Medical practitioners, thus, at common law, need not provide information about treatment options and associated risks to those they consider unable to understand such information. The rights, will, and preferences of persons with mental impairments may not be respected on this basis.

In relation to legislation, the six Australian states and two territories each have specific mental health laws that override the common law of informed consent and enable involuntary detention and treatment of those with mental impairments as well as substituted decision-making laws in the form of guardianship statutes. In general, the provisions in Australian mental health acts enabling involuntary treatment require there to be some form of ‘mental illness’, which is largely based on the existence of certain symptoms (for details see McSherry and Wilson 2015). There is also a ‘need for treatment’ criterion such that the treatment must be linked to the mental illness in addition to a criterion relating to risk, dangerousness, or harm to self or others [Mental Health Act 2015 (ACT) s 58; Mental Health Act 2007 (NSW) ss 13–15; Mental Health and Related Services Act (NT) s 14; Mental Health Act 2016 (Qld) ss 10–12; Mental Health Act 2009 (SA) ss 21, 25, 29; Mental Health Act 2013 (Tas) s 40; Mental Health Act 2014 (Vic) s 5; Mental Health Act 2014 (WA) s 25]. The risk of harm criterion has been criticised on a number of grounds including on the basis that it is discriminatory to allow the detention of persons with mental impairments for treatment when others, for example those with a history of violence under the influence of alcohol and other drugs, cannot be so detained (Callaghan and Ryan 2012, 2014; Hewitt 2008; Large et al. 2008; McSherry 2014, 54–56; Ryan, Callaghan, and Large 2012; Szmukler and Rose 2013).

Some of the newly reformed Acts include a criterion that ‘the person does not have decision-making capacity’, thus creating a ‘hybrid’ risk and capacity civil commitment model [Mental Health Act 2015 (ACT) s 58(2)(b); Mental Health Act 2013 (Tas) s 40(2)(b); Mental Health Act 2016 (Qld) s 12(1)(b) Mental Health Act 2014 (WA) ss 25(1)(c) and 25(2)(c); see also Ryan, Callaghan, and Peisah 2015a]. Despite law reform endeavours in Australia being strongly influenced by the rights set out in the CRPD, as discussed in the 'Relevant international law' section of this paper, the CRPD Committee has signalled that such laws that enable involuntary treatment on the basis of a loss of decision-making capacity are discriminatory. Nevertheless, some Australian scholars (Callaghan and Ryan 2012, 2014; Ryan, Callaghan, and Peisah 2015a, 2015b) have argued that such capacity-based legislation is going in the right direction in terms of human rights compliance.

Only some of these mental health statutes refer to informed consent [Mental Health Act 2016 (Qld) Part 10, Div 2; Mental Health Act 2014 (Vic), ss 69–71; Mental Health Act 2014 (WA) Part 5, Div 2], and, when they do, they generally enable a substitute decision-maker to override an informed refusal of consent by the person being treated. For example, Section 70 of the Mental Health Act 2014 (Vic) requires informed consent to treatment to be sought prior to treatment being given. Section 71 then deals with the situation where a person ‘has the capacity to give informed consent, but does not give informed consent to the treatment proposed by the authorised psychiatrist’ [Mental Health Act 2014 (Vic), s 71(1)(a)(ii)]. It requires the authorised psychiatrist to consult with a range of stakeholders and make enquiries to try to understand why the person does not wish to consent to treatment (defined under Section 6 as ‘things . . . done to the person in the course of the exercise of professional skills . . . to remedy the mental illness; or . . . to alleviate the symptoms and reduce the ill effects of the mental illness’) and to consider a range of less restrictive treatment options, before deciding whether to give involuntary treatment or not. Section 71(3) enables the psychiatrist to override a person’s refusal to give informed consent by stating that

This indicates that s 71 sets up a ‘process right’ or a right to participate in decision-making rather than a substantive right to refuse treatment.

In general, while the common law in Australia has set up a presumption of capacity to consent to or refuse treatment and imposes on practitioners a duty to warn individuals of any significant risks involved in their treatment, both the common law and mental health (and guardianship) legislation provide an exception to the requirements of informed consent to treatment for persons with severe mental impairments.

The human rights framework

Australia does not have a federal bill of rights, and there is no regional human rights convention to guide courts. In Minister for Immigration and Ethnic Affairs v Teoh (1995), Chief Justice Mason and Justice Deane of the High Court of Australia stated that:

As is discussed below, the CRPD was used by Justice Vickery in this way to develop the common law relating to undue influence in Nicholson v Knaggs (2009). However, in Teoh (1995) Chief Justice Mason and Justice Deane went on to warn:

Some Australian statutes do attempt to legitimise the role of international human rights law in shaping domestic law and policy. For example, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires at s 8(3) that all federal legislation be scrutinised for compatibility with international human rights standards.

In the state of Victoria, the Charter of Rights and Responsibilities (the Charter), which was enacted by the Charter of Rights and Responsibilities Act 2006 (2006), requires state and local government authorities to respect and promote the 20 human rights set out in it when they serve the community, but it does not provide any avenue for individual complaints. John Tobin has pointed out in this regard that ‘the absence of a right to take an action before the courts . . . undermine[s] the capacity to provide effective protection for human rights in Victoria’ (Tobin 2005, 40). An independent review of the Charter has recently been completed with a report tabled before the Victorian Parliament in September 2015 making 52 recommendations for consideration (Young 2015). At the time of writing, the government has yet to respond to any of these recommendations.

An interpretive obligation is placed on public authorities in Victoria under s 32(1) of the Charter, which provides: ‘[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. There is, however, a ‘reasonable limits’ provision, s 7(2), which provides that ‘[a] human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’. One of the key recommendations for change to the Charter in the 2015 report is for s 32 to set out the steps for interpreting statutory provisions compatibly with human rights in order to ‘ensure clarity and accessibility’ (Young 2015, 148).

In the Australian Capital Territory (the ACT), the Human Rights Act 2004 is, like the Victorian Charter, based on the ‘dialogue’ or ‘weak-form’ model of human rights protection. This means that the ACT Supreme Court cannot rely on the Human Rights Act to ‘strike down’ or invalidate any statutory provision, nor can the Court rule that any government actions made under the statutory provision in question are unlawful. In both Victoria and the ACT, their respective Supreme Courts may only make a declaration of incompatibility and notify the relevant Attorney-General of this under the Charter or Act. The Attorney-General must provide a written response to such a declaration, and then it is up to the relevant Parliament to decide what action (if any) to take. A review of the Human Rights Act 2004 carried out in 2006 indicated that this statute had led to a greater oversight of the development of legislation, but that it had not led to a flood of litigation as was originally feared (Charlesworth and McKinnon 2006).

Finally, David Kinley and Christine Ernst have pointed out that both the Human Rights Act 2004 (ACT) and the Victorian Charter

Cases referring to the CRPD, the Victorian charter, and the Human Rights Act 2004 and persons with mental impairments

Because case law has not as yet directly addressed the law relating to informed consent to treatment for persons with severe mental impairments, this section provides an overview of the handful of cases that have discussed the Human Rights Act 2004 (ACT) and the Victorian Charter of Rights and Responsibilities where persons with mental impairments have been involved. The analysis indicates that while courts are willing to apply a human rights framework to protect the rights, will, and preferences of persons with mental impairments in certain circumstances, it appears unlikely that courts will impose a duty on medical practitioners to warn those subject to involuntary treatment of ‘a material risk inherent in the proposed treatment’ (Rogers v Whitaker 1992, at 490) on an equal basis with others.

In a case concerning the testamentary capacity of a woman who had been diagnosed with dementia prior to her death, Justice Vickery of the Supreme Court of Victoria interpreted Article 12 of the CRPD as placing an obligation on states to ‘ensure that appropriate and effective safeguards are in place which respect the rights, will and preferences of the person with disabilities’ (Vickery J in Nicholson v Knaggs 2009, at [69]). He only briefly mentioned the Victorian Charter (which does not refer to a right to freedom of testamentary disposition) as not detracting from ‘rights and freedoms under international law or the common law’ (at [22]).

Perhaps because this case was heard prior to the CRPD Committee’s interpretation of the meaning of legal capacity set out above, Justice Vickery assumed that proof of mental (testamentary) capacity was a pre-requisite to the exercise of legal capacity. He interpreted Article 12 as serving a protective function in supporting the common law concept of ‘undue influence’ in protecting persons with disabilities, ‘including the elderly who suffer from disabilities, [who] are uniquely vulnerable to the exercise of undue influence on the part of others’ (at [75]). Medical evidence concerning dementia was thus relied upon to assess the testator’s capacity when she made three different wills in 1985, 1999, and 2001. Justice Vickery went on to rely on the CRPD to develop the common law of ‘undue influence’ and held that it was more likely than not that the testator had been subject to undue influence from some of the beneficiaries of one of the contested wills when making that will.

In both Victoria and the ACT, involuntary treatment of those with mental impairments has been viewed as either not a breach or a permissible breach of the rights set out in the Charter and the Human Rights Act 2004 (ACT).

In ACT v JT (2009) Chief Justice Higgins of the ACT Supreme Court stated that ‘enforced medication of a mentally ill patient is not a breach of the Human Rights Act’ (at [39]), but did not elaborate on the reasons for this. In that case, he refused an application seeking a declaration that it was lawful for ‘JT’ to decline naso-gastric intubation because JT was engaging in dangerous fasting practices as a result of religious delusions.

Two years later in C v Chief Psychiatrist (2011), Chief Justice Higgins heard an appeal against a decision by the ACT Civil and Administrative Tribunal making a ‘psychiatric treatment order’ under the Mental Health (Treatment and Care) Act 1994 (ACT). The appellant argued that the order breached C’s right to protection from torture and cruel, inhuman, or degrading treatment (s 10), right to liberty (s 18), and right to a fair trial (s 21). In refusing the appeal, the Chief Justice stated:

Again, Chief Justice Higgins did not elaborate on this point.

Similarly, in a series of cases heard in Victoria, involuntary treatment under the Mental Health Act 1986 (Vic) – now replaced by the Mental Health Act 2014 (Vic) – was viewed as being a reasonable breach of the rights set out in the Victorian Charter of Rights and Responsibilities. In Re Appeal of 09-08 (2009) the Mental Health Review Board held that ‘AA’, a 28-year-old man who had been diagnosed with paranoid schizophrenia, could be treated involuntarily not only with antipsychotic medication, but also with Depo Provera, a female sex hormone used to reduce sexual urges. There was evidence that Depo Provera could affect bone density and that AA’s lumbar spine was abnormally low in calcium, consistent with a diagnosis of osteoporosis. AA’s counsel argued that the use of this drug amounted to cruel, inhuman, or degrading treatment in breach of s 10(b) of the Victorian Charter. The Board found that AA suffered from sexual disinhibition, which was a symptom of his mental illness, and that it was therapeutically necessary for him to be treated with Depo Provera. Further such treatment was reasonably justified under s 7(2) of the Charter, which sets out the factors to be considered in limiting rights (Bradfield 2010). This decision was subsequently criticised as ‘giving precedence to involuntary treatment over the autonomy of the individual’ (Leoncio et al. 2010, 46).

In Re Kracke and Mental Health Review Board (2009), Justice Bell gave a lengthy decision concerning the interpretation of the Charter in relation to Gary Kracke, a 37-year-old man who was being treated as an involuntary patient under the Mental Health Act 1986 (Vic). The Mental Health Review Board should have conducted a number of reviews of Mr Kracke’s involuntary status over a period of time, but this had not been done. When the Board eventually confirmed the Involuntary Treatment Order, Mr Kracke appealed to the Victorian Civil and Administrative Tribunal arguing that the treatment order had become immediately invalid once the time for conducting the review had expired. Justice Bell rejected this submission. He stated:

Justice Bell (Re Kracke 2009) was of the opinion that involuntary treatment engaged the Charter rights of liberty (s 21), privacy (s 13a), and freedom of movement (s 12), as well as the right to freedom from medical treatment without full, free, and informed consent [s 10(c)]. He also noted that international human rights treaties were ‘material considerations in the interpretation of legislation under the standard principles of interpretation’ (at [681]) and that ‘[v]ery important human rights . . . are recognised in respect of mentally ill people in the Convention on the Rights of Persons with Disabilities’ (at [681]). Nevertheless Justice Bell held that ‘the limitations on Mr Kracke’s human rights imposed by giving him involuntary treatment were demonstrably justified because the treatment was only given on grounds of medical necessity and was subject to various safeguards’ (at [847]).

Justice Bell (Re Kracke 2009), however, did find that the failure to conduct the reviews within the specified time period breached the right to a fair hearing under s 24(1) of the Charter and made a declaration to that effect. He pointed out that in terms of remedies, ‘the Charter is not a toothless tiger’ (at 801) and that ‘Mr Kracke is entitled to the tribunal’s clear expression of disapproval of the breach, and to vindication of his rights, by the remedy of a formal declaration’ (at 826).

In Antunovic v Dawson and Norfolk Terrace Community Care Unit (2010) Zeljka Antunovic, a 33-year-old woman who was under a community treatment order pursuant to the Mental Health Act 1986 (Vic) exercised the common law’s habeus corpus jurisdiction to apply for an order that she be released from a community care unit where her treating psychiatrist had placed her. Under the then s 14(3)(b) of the Mental Health Act, a community treatment order may specify where a person must live ‘if it is necessary for the treatment of the person’s mental illness’. No such condition was placed on the community treatment order, nor was there any mention of where she was to live in her treatment plan.

At the community care unit, Ms Antunovic was able to go out during the day but was obliged to return at night. She asked repeatedly to be allowed to go home to live with her mother, but this was denied. It was submitted on Ms Antunovic’s behalf that the habeus corpus jurisdiction was legitimate because it was consistent with protection of her rights under the Charter (Freckelton 2011).

Justice Bell accepted this submission and found that Ms Antunovic’s involuntary status engaged the right to freedom of movement under s 12 of the Charter and the right to liberty and security of the person under s 21. He found that there was a ‘substantial’ restraint (Bell J in Antunovic v Dawson and Norfolk Terrace Community Care Unit 2010, at [173]) on Ms Antunovic’s freedom of movement and that her personal liberty was ‘being restrained by the doctor and the unit’ (at [175]). These restraints were not lawfully authorised under the Act, and ‘[t]he unit and the doctor are asserting a power which in law they do not have’ (at [184]). Accordingly, Justice Bell ordered Ms Antunovic’s immediate release from the unit.

In Patrick’s case (2011) the facts were that ‘Patrick’ was a 58-year-old man who was living in a hospital under an involuntary treatment order. The hospital wanted to move him to supported accommodation in a hostel but he wanted to return to his own home. The hospital applied to the Victorian Civil and Administrative Tribunal for an administrator to be appointed, believing that an administrator would probably sell Patrick’s house and thereby prevent him from living there. The Tribunal did appoint an administrator, and Patrick appealed, seeking orders setting aside the appointment.

Justice Bell upheld Patrick’s appeal. He stated that

His Honour went on to find that ‘[t]he interpretation which least infringes human rights must be adopted’ (at 287). He furthermore held that the Tribunal had erred in law in interpreting the relevant provisions of the Guardianship and Administration Act 1986 (Vic) and in exercising its discretion under the Act because the decision to appoint an administrator was an extreme one, which interfered with, amongst other rights, the right to equality before the law under s 8(3) of the Charter and the ‘right to move freely within Victoria and to enter and leave it and . . . the freedom to choose where to live’ under Section 12. In his judgment Justice Bell referred to the CRPD extensively, and Article 12 CRPD on legal capacity in particular, noting that ‘[t]his convention, to which Australia is a party, states general principles which may be of importance to the application of the Guardianship and Administration Act in the contemporary setting . . . ’ (at [131]).

Justice Bell found (at [47]) that Patrick was not able to move freely within Victoria or to choose where to live because he was detained in hospital pursuant to an involuntary treatment order under the Mental Health Act 1986 (Vic). While this was presumably a legitimate breach of s 12, Justice Bell found that the appointment of an administrator would be even more restrictive of Patrick’s s 12 right because the administrator would probably sell Patrick’s home.

In his conclusion, his Honour stated:

A significant feature of Patrick’s case was that under s 39(1) of the Charter, which deals with legal proceedings, the Supreme Court was able to conduct judicial supervisory review of the proportionality of the decision of the Tribunal to appoint an administrator. Thus, while the Charter generally limits the right for individuals to claim relief and damages are specifically not to be awarded under s 39(3) of the Charter, Patrick was nevertheless able to get the Tribunal’s decision set aside.

A further case concerning Charter rights and those with mental impairments is that of XX v WW and Middle South Area Mental Health Service (2014) of the Victorian Supreme Court. In that case, the Victorian Mental Health Review Board had discharged ‘XX’ from an involuntary treatment order on the basis that she could receive adequate treatment as a voluntary patient from her private psychiatrist. Just under four hours later, a recommendation was made by the psychiatrist ‘WW’ for a fresh involuntary treatment order, and this was later made. It was submitted on behalf of XX that the psychiatrist’s and mental health service’s actions were unlawful under s 38(1) of the Charter, which states that

It was argued that an involuntary treatment order could only be made after a Board’s decision to discharge a patient if there was extra information that would put a significantly different complexion on the case.

Justice McDonald rejected this submission, finding as a matter of fact that the psychiatrist did have regard to the Board’s decision and that he believed the circumstances had changed since the Board discharged the involuntary treatment order. He found that the psychiatrist had

Again, it was accepted that providing the legislative criteria for involuntary treatment were followed, an involuntary treatment order was a reasonable limitation on XX’s human rights under s 7(2) of the Charter.

The ACT Civil and Administrative Tribunal held In the Matter of ER (Mental Health and Guardianship and Management of Property, 2015) that a person who had been appointed a guardian because of ‘impaired decision-making’ could nevertheless give lawful consent to psychiatric treatment. In that case, the Public Advocate had been appointed as guardian to ‘ER’, a 55-year-old woman, who was considered to have a ‘mild to moderate intellectual disability’ (para 8) and who had also been diagnosed with bipolar disorder. Under the Guardianship and Property Act 1991 (ACT) a guardian can give consent on behalf of the person to certain medical treatment, but not to psychiatric treatment. The question of law for the Civil and Administrative Tribunal was whether ER, who was considered to lack decision-making capacity under guardianship legislation, could nevertheless consent to (or refuse) psychiatric treatment. It held that she could make her own decisions about such treatment ‘from time to time’ (para 1).

The ACT Disability, Aged, and Carer Advocacy Service (ADACAS) and the Human Rights Commission (HRC) were given leave to participate in the hearing. The Tribunal found that there was a ‘spectrum of capacity’ and quoted the ADACAS submission in this regard:

The Tribunal concluded that ‘[t]he common law presumes that a person has capacity to make a decision and this presumption is reinforced by the obligation under Section 30 of the Human Rights Act to interpret law in a way that is compatible with relevant human rights and the operation of those rights, including the rights to protection from torture and cruel, inhuman or degrading treatment, the right to privacy and reputation and the right to liberty and security of person as well as the UNCRPD’ (para 44). It then went on to state (In Matter of ER 2015, para 44) that ‘[c]apacity may fluctuate’ and that ‘[c]apacity must be assessed in relation to the decision to be made’.

The Tribunal did not refer to the CRPD Committee’s General Comment No 1 on Article 12, perhaps because the majority of submissions to it were made prior to the Comment being adopted. Thus, the Tribunal retained the traditional conflation of mental capacity with legal capacity. The rest of the decision focused on the assessment of ER’s mental capacity, rather than on any obligation on mental health practitioners to provide treatment options and the risks associated with them. What is important, however, is the Tribunal’s agreement with the ADACAS that it was ‘appropriate to give ER as much support as necessary to enable her to retain the right to make decisions about her own life’ (In Matter of ER 2015, para 41).

Most recently, in ZEH (Guardianship) (2015), the Victorian Civil and Administrative Tribunal had to consider whether to give permission for a ‘special procedure’ (sterilisation) of a young woman under the Guardianship and Administration Act 1986 (Vic). ZEH had an intellectual disability rather than a mental impairment, and the Court found that she did not have the capacity to consent to this medical intervention. However, Deputy President Nihill did discuss the procedure with her to establish her views, and ZEH was given support to give her a better understanding of human reproduction. In her judgment, Deputy President Nihill referred to both the Charter of Human Rights and Responsibilities and the CRPD. She noted that the Guardianship and Administration Act 1986 (Vic) can ‘give rise to a culture of paternalism’ while the Charter promotes a ‘culture of justification’, and that the ‘difference between the two may be understood in terms of the ‘“paradigm shift” in approach towards people with disabilities’ reflected by the CRPD at [51]. She found the Guardianship and Administration Act 1986 (Vic) must be administered in a manner compatible with human rights, and the enactment of the Charter meant that ‘stronger regard must be had to the human rights implications of guardianship and administration order than was previously the case’ at [51], and that the public body that was called upon to authorise medical treatment for people who were not able to give voluntary and fully informed consent must ask ‘can the decision [to provide treatment] . . . be justified in terms of the Charter?’ (para 54). Deputy President Nihill took both the Charter and the CRPD into account and stressed the human dignity that had to be accorded to ZEH. She referred to ZEH’s right to be treated equally before the law and her right to be protected from treatment without her consent (at para 57) and found that the proposed procedure was not justified. This case demonstrates the Tribunal’s willingness to take human rights considerations, including the CRPD, into account in cases involved (potential) involuntary medical interventions, and the role that such considerations can play. Ultimately it led the Tribunal to deny permission for an intervention that it did not regard ZEH was capable of consenting to, but not to explore the issue of supported decision-making.

Overall then, the Human Rights Act 2004 and the Victorian Charter have not altered the substituted decision-making regimes involved in the involuntary treatment of those with mental impairments. This is also true of the CRPD, although it has occasionally been referred to by Australian courts. Justice Bell’s decisions have gone some way towards curtailing attempts to further restrict the rights of those subject to involuntary treatment orders, but the regimes themselves have been viewed as reasonable limitations on the human rights of those with mental impairments. The cases of ER and ZEH also indicate that it may be at the Tribunal level that human rights frameworks will be the most influential in determining the scope of involuntary treatment.