LSB June 2022 LR

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MENTAL HEALTH LAWS Increasing the Participation of Persons with Mental Health Disabilities in Involuntary Mental Health Treatment Decision-Making DR SUSAN PEUKERT, BA(HONS) LLB (HONS) PHD, MENTAL HEALTH ADVOCATE For too long the voices of persons with mental health disabilities 1 have been unheard during the involuntary mental health treatment decision-making process. 2 State legislative frameworks such as the SA Mental Health Act 2009 have relegated these persons to playing the role of observer in deeply personal processes in which they should be the key players. This framework prescribes when individuals can make decisions for themselves and when they cannot. The framework aims to minimise harm, but this is achieved at an unnecessary cost of too many instances of involuntary treatment where persons with mental illness are excluded from the process of making their own decisions. This is an issue that warrants careful consideration and reevaluation because involuntary treatment curtails the autonomy of the individual. The marginalisation of those with mental health disabilities can only be addressed by giving them back their voices, and, as far as possible, inviting them into the decision-making process. Given the South Australian Law Reform Institute will be conducting a comprehensive review of the Mental Health Act 2009 (SA), now is the time to take action and promote advocacy for a new model for involuntarily treating persons with mental health disabilities. South Australia needs law reform that realises and champions the rights of persons with mental health disabilities in line with the UN Convention on the Rights of Persons with Disabilities 3 (CRPD). This article argues that a balance must be struck between empowerment and 20 THE BULLETIN <strong>June</strong> <strong>2022</strong> protection - the vulnerability of those with a mental health disability cannot be ignored but neither can it be used as a reason to silence them during involuntary decision-making processes. An appropriate balance can be found through the creation of a nuanced supported decision-making model which draws on international best practice, is rights-based and focuses on a person’s right to make autonomous decisions where practicable. A supported decision-making model is predominantly about increasing respect for the rights of persons with mental health disabilities. This article sketches a supported decision-making model 4 which is consistent with the spirit of the CRPD. This model represents a path forward whereby persons with mental health disabilities and their supporters can more greatly participate in the involuntary mental health treatment decision-making process. This means that some persons who might otherwise be treated involuntarily will be supported to the degree that they are able, to participate in decisions surrounding their treatment in collaboration with their treating psychiatrist and supporter(s). This will allow persons with mental illness to build their mental capacity to the point where they may be treated voluntarily. The CRPD Rights afforded to persons with mental health disabilities arise from the CRPD. The rights flowing from the CRPD as a whole are important for all persons with disabilities. The focus here is on Article 12 of the CRPD and its recognition of equality before the law 5 and the legal standing and legal agency 6 of persons with disabilities. Supported decision-making is promoted in the CRPD and involves the provision of support during the treatment decision-making process. 7 Article 12(4) introduces a ‘will and preferences’ paradigm and refers to the requirement to take into consideration the values and views of the individual making treatment decisions, or, on whose behalf, treatment decisions are being made. If adopted, a supported decisionmaking model will empower persons with mental health disabilities to make their own treatment decisions with legal effect through the provision of supported decision-making and recognition of their will and preferences. 8 As detailed below, careful law reform is needed to realise the changes proposed. Determining Whether a Person with Mental Health Disabilities Will be Involuntarily Treated The existing state legal framework uses a test of mental capacity 9 to determine whether or not a person with mental health disabilities will be treated involuntarily. 10 This test is found in s 5A of the Mental Health Act 2009 (SA). For the purposes of the Act, a person is taken to have impaired decision-making capacity if they cannot understand information relevant to the decision to be made, retain that information, and weigh the information in reaching a decision. Those who fail to meet a limb of this mental
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