Abstract
To the Editor
The Western Australian government recently released a draft mental health bill for public comment. Disappointingly, the proposed legislation fails to adequately protect the human rights of West Australians living with mental illness.
In this issue of the Journal we examined similar draft bills released in Tasmania and Victoria (Callaghan and Ryan, 2012). In both these jurisdictions, lawmakers are modernising mental health legislation in the light of a new recognition of the human rights of mentally ill people. In both jurisdictions the proposed legislation would only allow compulsory treatment of a psychiatric patient if the patient lacked decision-making capacity. Psychiatric patients who retained decision-making capacity would make their own treatment decisions just as patients with general medical illnesses do.
The Western Australian government released its draft bill after our paper went to print. If that bill becomes law, patients could be coercively treated if they did not have decision-making capacity or if treatment were ‘unreasonably refused’ in circumstances where there is a perceived ‘significant risk to the health, safety or welfare of the person or to the safety of another person’ (Mental Health Bill 2011 (WA), cl 25). This means that a lack of capacity would not be a threshold criterion for compulsory treatment, and that psychiatric patients could be compelled to have treatment despite a competent refusal. (Notably there are similar provisions in the existing Western Australian, Victorian, Queensland and Northern Territory mental health acts (Mental Health Act 1996 (WA) s.26(1)(c), Mental Health Act 1986 (Vic) s.8(1)(d), Mental Health Act 2000 (Qld) s.14(1)(f), Mental Health and Related Services Act 1998 (NT) 14(B)(iii))). In contrast, patients with general medical illnesses who retain decision-making capacity may refuse medical treatment no matter how unreasonable their doctors regard their decision to be.
The Western Australian bill has another discriminatory element that the Victorian and Tasmanian bills also share. All three contain ‘additional harm’ criteria that might unfairly prevent compulsory treatment for some incompetent patients. In Western Australia, psychiatric patients who lacked decision-making capacity and who would benefit from treatment, would not be able to access that treatment under a compulsory order unless it was thought there was a ‘significant risk to the health, safety or welfare of the person or to the safety of another person’. Such a ‘significant risk’ may represent a threshold for care considerably higher than the best interests criteria required for the treatment of incompetent patients with non-psychiatric illness. Incompetent patients who fail to meet that threshold will not gain access to beneficial coercive treatment.
We suggest that all Australasian jurisdictions adopt legislation where compulsory orders can only be made if patients lack the capacity to consent to treatment for themselves. When patients do lack capacity, and cannot validly consent to or refuse treatment, legislation should allow compulsory treatment where it would simply be in the person’s best interests.