Compulsory treatment in New Zealand: No worries. MENTAL HEALTH AND HUMAN RIGHTS IN VICTORIA CREATIVE WAYS TO PROMOTE THE RIGHTS OF PEOPLE WITH MENTAL DISTRESS Mary O’Hagan

In memory of Judi Chamberlin

TODAY’S TALK Human rights for people with mental distress a huge topic: Civil and political rights – compulsory treatment Social and economic rights – participation in society Victorian Charter of Human Rights and Responsibilities focuses mainly on civil rights

WHAT IS COMPULSION? Mental health legislation establishes the circumstances in which a person with ‘mental disorder’, who hasn’t committed a crime, can be detained or treated without their consent. The criteria include: Mental disorder Danger to self or others Incapacity to refuse treatment

IMPACT OF SECTIONS IN CHARTER? Recognition and equality before the law Lack of natural justice in Mental Health Act processes? Protection from torture, cruel, inhuman degrading behaviour Seclusion, restraints, forced injections... Freedom of movement Locked wards & choice of residence under Mental Health Act? Freedom of thought and freedom of expression Treatment without consent alters thoughts and expression

IMPACT OF CHARTER ON RATES? Inpatient and Community Treatment Orders New Zealand numbers per 100,000 population per month: 1954 – – – further decline 2008 – c. 90 Recent rise in spite of: Definitions of mental disorder getting narrower. More concern for human rights & less tolerance for paternalism. Similar for Victoria?

IMPACT OF CHARTER ON RATES? Community Treatment Orders ‘The introduction of compulsory treatment in the community may have increased the rate of compulsory treatment.’ NZ Director Mental Health NZ and Australia have higher rate of community treatment orders than USA and Canada. Victoria has the highest rate. Simon Lawton-Smith, ‘A Question of Numbers’, 2005

WHY IS IT A HUMAN RIGHTS ISSUE? Compulsory treatment is: Discriminatory Based on contested views on diagnosis & treatment Questionable to harmful outcomes Undermines recovery policy Contravenes emerging international law

CRITERIA ARE DISCRIMINATORY Danger to others Preventive detention can happen despite no crime (only with mad) Danger to self Compulsion can happen despite competence (only with mad) Competence ‘Most patients hospitalized with serious mental illness have abilities similar to persons without mental illness for making treatment decisions.’ McArthur Study ‘The criteria for non-voluntary treatment should focus on the mentally ill person’s capacity to understand that he or she is ill and the benefits that might result from treatment.’ Ryan et al

DIAGNOSES & TREATMENTS CONTESTED Compulsion supported by belief in biological pathology that destroys autonomy and needs correction with treatment. All these beliefs are considered highly questionable by many diagnosed people and serious thinkers. The science is uncertain at best.

THE OUTCOMES CAN BE HARMFUL Medications can be life-depleting and life-shortening Compulsion re-traumatises and corrupts therapeutic trust Compulsion gets conflated with ‘premier’ service There are perverse incentives to use it for clinicians & consumers ‘Compulsory community treatment results in no significant difference in service user, social functioning or quality of life compared with standard care.’ Kisely et al. Cochrane Review

UNDERMINES RECOVERY POLICY National policies in all English speaking countries founded on recovery, but no reduction in compulsory treatment. Compulsory treatment not compatible with recovery: Self-determination and personal resourcefulness Collaborative relationships Choice of services Equal participation in society

CONTRAVENES INTERNATIONAL LAW UN Disability Rights Convention 2006 ‘The acceptance of involuntary treatment and involuntary confinement...runs counter to the provisions of the Convention’ Special Rapporteur on Torture ‘Prior to...the Convention, the existence of a mental disability represented a lawful ground for deprivation of liberty and detention under international human rights law. The Convention radically departs from this approach by forbidding deprivation of liberty based on the existence of any disability.’ UN Office of the High Commissioner on Human Rights

JUSTIFICATIONS FOR DENYING FREEDOM Western culture justifies removing freedom when citizens: Transgress eg people who commit crimes Judged not fully human (not rational) eg slaves, women, mad Arguments for denying freedom (slaves, women, mad people) They are better off without their freedom Some of them prefer their loss of freedom Depriving their freedom necessary for social order If the freedoms are granted the people will misuse them These justifications now laughable with slaves and women and will become so for mad people.

WHEN FREEDOMS GRANTED Slaves and women Raised status and opportunities Resulted in a more just and open society Social order changed but not destroyed Similar outcomes if mad people with the same right to refuse consent as others

ALTERNATIVES TO COMPULSION Stop colluding with discriminatory community consensus Recovery focus - crisis prevention focus & ‘the life I want’ Advance directives More and better crisis options Robust systemic and individual advocacy ‘Compulsory responsiveness orders’ Separate healing function from control function

AN END TO MENTAL HEALTH LAWS Treatment and detention without consent rare and brief Emergency interventions have comparable threshold to physical medicine Rethink assumptions about human responsibility for crimes Humane recovery oriented criminal justice system

GETTING THERE...SLOWLY Strengthen mad people’s advocacy Find community support (opinion leaders, politicians) Build coalitions Get media interest with stories Use legal and policy levers (international, national, state) Develop a vision and impetus for ‘liberatory’ services Advocate for rights based anti-discrimination campaign Advocate for tight, accountable monitoring of MH Act Start with eliminating seclusion

THE ROAD TO HELL...GOOD INTENTIONS ‘Of all the tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive...for those who torment us for our own good will torment us without end for they do so with the approval of their own conscience...’ CS Lewis