Bernadette McSherry

Diversion Down Under - Programs for Offenders with Mental Illnesses in Australia

This article provides an overview of mental health courts and diversion programs operating for offenders with mental illnesses in Australia. Methods of diversion that have been established in Australia include Magistrates courts diversion programs, psychiatric court liaison services and legislative powers of diversion. Some of the problems associated with diversionary options are discussed and recommendations for reform made. It is argued that no matter what form diversionary programs take, detailed consideration must be given to how the court or program will be evaluated and that sufficient funding be allocated for ongoing evaluation.

Australian and Canadian mental health Acts compared.

Objective: The main objective of this paper is to compare the mental health Acts of the eight Australian jurisdictions and the 13 Canadian jurisdictions on three major issues: involuntary admission criteria, treatment authorization/consent and compulsory treatment in the community, in the light of international trends towards patients’ rights. Method: The legislation was examined against the background of rights instruments such as the Canadian Charter of Rights and Freedoms and the United Nations Convention on the Rights of Persons with Disabilities. Results: It was found that some Canadian involuntary admission criteria require the likelihood of bodily harm whereas all Australian Acts have broad harm and deterioration criteria. Unlike all Australian jurisdictions, some Canadian jurisdictions allow for the refusal of treatment that may be required for discharge. In addition, Canadian community treatment orders are much more restrictive than in Australia because they require a person to have considerable previous hospitalization despite meeting the committal criteria. Australian jurisdictions can use community treatment orders as a least restrictive alternative to inpatient status without prior hospitalization. Conclusions: The paper concludes that there are significant philosophical differences regarding the purpose of involuntary admission between Australian and some Canadian jurisdictions where treatment refusal is possible. Australian mental health Acts have a relatively stronger ‘treatment’ focus than some Canadian Acts. The apparently stronger ‘rights’ focus of some Canadian laws (such as the permission of treatment refusal) can paradoxically result in a denial of liberty rights. The way in which the relevant legislation is shaped in both countries will increasingly be affected by international trends towards the rights of individuals with disabilities.

Trafficking in Women and Forced Migration: Moving Victims Across the Border of Crime into the Domain of Human Rights

Abstract The response to the trafficking of women is primarily dominated by the discourse of criminal law both internationally and nationally. By contrast, in the refugee law context, women are constructed as victims in a ‘culturally relative’, patriarchal society. This paper explores the tensions between these constructs and the practical responses to protecting trafficked women. Taking Australias policy response to the trafficking of women in the Asia-Pacific region as an example, the paper describes how the trafficking/smuggling distinction is blurred by constructing trafficked women both as victims/witnesses and as free agents rather than as rights bearing individuals. This profoundly affects the way that government agencies and decision-makers respond to the issues.

The concept of capacity in Australian mental health law reform: Going in the wrong direction?

The six Australian states and two territories each have legislation that enables the involuntary detention and treatment of individuals diagnosed with mental illness who are considered in need of treatment and where there is evidence of a risk of harm to self or others. A number of governments have undertaken or are currently undertaking reviews of mental health laws in light of the Australian Governments ratification of the Convention on the Rights of Persons with Disabilities. While United Nations bodies have made it clear that laws which enable the detention of and substituted decision-making for persons with disabilities should be abolished, debates in Australia about the reform of mental health legislation have largely focused on Article 12 of the CRPD and what is meant by the right of persons with disabilities to enjoy legal capacity on an equal basis with others. It is argued that a more holistic view of the CRPD rather than the current narrow focus on Article 12 would best serve the needs of persons with mental impairments.

Attitudes towards seclusion and restraint in mental health settings: findings from a large, community-based survey of consumers, carers and mental health professionals

Aims. There are growing calls to reduce, and where possible eliminate, the use of seclusion and restraint in mental health settings, but the attitudes and beliefs of consumers, carers and mental health professionals towards these practices are not well understood. The aim of this study was to compare the attitudes of mental health service consumers, carers and mental health professionals towards seclusion and restraint in mental health settings. In particular, it aimed to explore beliefs regarding whether elimination of seclusion and restraint was desirable and possible. Methods. In 2014, an online survey was developed and widely advertised in Australia via the National Mental Health Commission and through mental health networks. The survey adopted a mixed-methods design, including both quantitative and qualitative questions concerning participants’ demographic details, the use of seclusion and restraint in practice and their views on strategies for reducing and eliminating these practices. Results. In total 1150 survey responses were analysed. A large majority of participants believed that seclusion and restraint practices were likely to cause harm, breach human rights, compromise trust and potentially cause or trigger past trauma. Consumers were more likely than professionals to view these practices as harmful. The vast majority of participants believed that it was both desirable and feasible to eliminate mechanical restraint. Many participants, particularly professionals, believed that seclusion and some forms of restraint were likely to produce some benefits, including increasing consumer safety, increasing the safety of staff and others and setting behavioural boundaries. Conclusions. There was strong agreement across participant groups that the use of seclusion and restraint is harmful, breaches human rights and compromises the therapeutic relationship and trust between mental health service providers and those who experience these restrictive practices. However, some benefits were also identified, particularly by professionals. Participants had mixed views regarding the feasibility and desirability of eliminating these practices.

Managing fear : the law and ethics of preventive detention and risk assessment

Part I: Introduction and Theories of Risk and Precaution. Introduction. Theories of Risk and Precaution. Risk Assessment Instruments and Techniques. Part II: The Laws of Preventive Detention and Supervision Laws of Preventive Detention. Supervision, Control, and Community Treatment Orders. Proving Risk in Preventive Detention and Supervision Proceedings. Part III: Human Rights and Ethical Issues Human Rights Issues. The Ethics of Forensic Risk Assessment. Part IV: Conclusion Conclusion. Appendix A: Table of Cases. Appendix B: Table of Statutes.

Consumers’ and their supporters’ perspectives on barriers and strategies to reducing seclusion and restraint in mental health settings

Objective This paper examines the perspectives of consumers and their supporters regarding the use of seclusion and restraint in mental health settings. Methods Five focus groups for consumers and five focus groups for supporters were conducted in four Australian cities and in one rural location. The 66 participants were asked about strategies to reduce or eliminate the use of seclusion and restraint in mental health settings. Results All participants supported the reduction of the use of seclusion and restraint. Barriers to reducing these practices related to the environment, the effects of drug and alcohol issues, lack of a human rights focus and poor recognition of trauma, stigma and discrimination. Strategies for reducing or eliminating seclusion and restraint included workforce development, environmental and cultural changes. Conclusions Participants clearly identified that the status quo needs to change and conveyed urgency for action. Participants suggested that the involvement of supporters and a range of consumer roles are integral to reducing the use of seclusion and restraint. The findings support the current policy emphasis of working towards the elimination of these practices. What is known about the topic? Mental health policies across many jurisdictions support the reduction and elimination of restraint and seclusion. Evidence suggests those subjected to restraint and seclusion largely experience a range of harmful consequences. No studies focus on the views of supporters of consumers regarding the reduction and elimination of seclusion and restraint, whereas the views of consumers appear in a minority of international studies. What does this paper add? The research enabled an opportunity to hear from people who have been personally affected by and/or have lived experience of these coercive practices. Participants identified local reforms that can uphold the human rights of consumers. They suggested practices to increase accountability, peer support and family involvement, areas that have not been analysed in depth in any of the seclusion and restraint literature. What are the implications for practitioners? This paper will give healthcare services a deeper insight into how to reduce or eliminate restraint or seclusion from the perspective of those with lived experience.

Without Sex: Slavery, Trafficking in Persons and the Exploitation of Labour in Australia

The differing approaches to the investigation of the cases of Aprint and Wei Tang set out in the introduction raise concerns that the focus in relation to offences of slavery and trafficking in persons has been too much on sexual exploitation. The UN Protocol and the offences set out in the Criminal Code (Cth) encompass forced labour and debt bondage that go beyond sexual servitude.While Chief Justice Gleeson in Wei Tang pointed out that there may be a distinction between slavery and harsh and exploitative conditions, the majority decision opens the way for the prosecution of employers who control the movement of their workers and provide inadequate payment for their services. Those who are victims of labour-trafficking and slavery are largely invisible, tend to work in isolation, often have limited proficiency in English and limited interaction with the general populace and are thus usually voiceless and vulnerable. If the purpose of the criminal law is taken to be not only to punish moral wrongs; but also to preserve and encourage social welfare, then forced labour, slavery and debt bondage for both sexual as well as other services should be subject to investigation and prosecution.

Detention and Treatment Down Under: Human Rights and Mental Health Laws in Australia and New Zealand

Mental health law reform in recent decades has drawn on the international human rights movement. The entering into force of the Convention on the Rights of Persons with Disabilities (CRPD) on May 3 2008 has been hailed by some as signalling a new era in relation to how domestic mental health laws should be reformed. Both Australia and New Zealand have ratified the CRPD and Australia has acceded to its Optional Protocol. New Zealand and the Australian Capital Territory and Victoria have statutory bills of rights which have an interpretive effect, but are unable to render other statutes invalid. Drawing on the results of interviews conducted with fifty-two representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries and outlines what changes, if any, may be brought to domestic legislation in light of the Convention.

Drug-associated psychoses and criminal responsibility.

At present, the law draws a distinction when assigning criminal responsibility to those who commit offences while experiencing psychotic symptoms: if the symptoms are believed to arise because of ingesting drugs (an external cause), the offender is generally convicted of the offence; if the symptoms arise from a mental illness (an internal cause), the offender may be afforded a defence of insanity. In practice, drawing such a distinction can be problematic. There are difficulties for example in determining criminal responsibility when the use of drugs is followed by the emergence of a psychotic illness process that then continues to have an independent existence even in the absence of the ongoing substance use. This article analyses legal, policy, and expert witness perspectives relating to liberal, conservative, and intermediate approaches to this problematic area of jurisprudence.