Piers Gooding

Supported Decision-Making: A Rights-Based Disability Concept and its Implications for Mental Health Law

This article seeks to clarify the concept of supported decision-making and to consider its major implications for mental health law. It draws on the United Nations Convention on the Rights of Persons with Disability as well as the broader literature on supported decision-making in order to distinguish some of its conceptual features and to provide an overview of relevant debate. Emerging examples of supported decision-making in legislation, policy and programming are drawn upon to demonstrate the variety of measures that might constitute practical supported decision-making in the mental health context.

An international comparison of legal frameworks for supported and substitute decision-making in mental health services

There have been important recent developments in law, research, policy and practice relating to supporting people with decision-making impairments, in particular when a persons wishes and preferences are unclear or inaccessible. A driver in this respect is the United Nations Convention on the Rights of Persons with Disabilities (CRPD); the implications of the CRPD for policy and professional practices are currently debated. This article reviews and compares four legal frameworks for supported and substitute decision-making for people whose decision-making ability is impaired. In particular, it explores how these frameworks may apply to people with mental health problems. The four jurisdictions are: Ontario, Canada; Victoria, Australia; England and Wales, United Kingdom (UK); and Northern Ireland, UK. Comparisons and contrasts are made in the key areas of: the legal framework for supported and substitute decision-making; the criteria for intervention; the assessment process; the safeguards; and issues in practice. Thus Ontario has developed a relatively comprehensive, progressive and influential legal framework over the past 30 years but there remain concerns about the standardisation of decision-making ability assessments and how the laws work together. In Australia, the Victorian Law Reform Commission (2012) has recommended that the six different types of substitute decision-making under the three laws in that jurisdiction, need to be simplified, and integrated into a spectrum that includes supported decision-making. In England and Wales the Mental Capacity Act 2005 has a complex interface with mental health law. In Northern Ireland it is proposed to introduce a new Mental Capacity (Health, Welfare and Finance) Bill that will provide a unified structure for all substitute decision-making. The discussion will consider the key strengths and limitations of the approaches in each jurisdiction and identify possible ways that further progress can be made in law, policy and practice.

From deinstitutionalisation to consumer empowerment: mental health policy, neoliberal restructuring and the closure of the ‘Big bins’ in Victoria

ABSTRACT The paper presents an historical critical policy analysis of deinstitutionalisation and the introduction of neoliberal forms of governance in mental health policy. It focuses particularly on a major period of policy reform in the 1980s and 1990s in Victoria, Australia. Many of the particularities of the Victorian experience can be generally observed with deinstitutionalisation throughout the world. In particular, the policy discourse of rights and entitlements, consumer choice and empowerment, at times stood in tension with the service void created by the transition from large, stand-alone psychiatric institutions, to dispersed forms of service provision outside the hospital. Further, certain policy features could be seen to perpetuate patterns of coercion, abuse and neglect. This article offers a number of potential lessons for mental health law, policy and practice today, which is poised for further advances of neoliberal governance, including through the policy of personalised services, individualised disability funding and human rights-based reform.

Psychiatrists’ Perceptions of Supported Decision-Making: A Victorian Empirical Study

This article examines the views of psychiatrists concerning ‘supported decision-making’ in the operation of mental health law. Supported decision-making is advanced in international human rights law, particularly with regards to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and is being developed at the domestic level in mental health law and policy by governments throughout the world, including in Victoria, Australia. The article draws on qualitative research conducted in the form of interviews with 11 psychiatrists currently working in Victoria. Interviewees tended to endorse supported decision-making, though each participant evidently differed in his or her specific understanding of the term – indicating both the conceptual ambiguity of the term and its relatively little known status among mental health professionals. Nonetheless, the interviews help refine an understanding of the issues likely to arise in efforts to apply the support approach of the CRPD in mental health law, policy and practice.

Assistive technology as support for the exercise of legal capacity

Exercising legal capacity refers to engaging in legal transactions and relationships and is essential for the full inclusion of people with disabilities in society. The United Nations Convention on the Rights of Persons with Disabilities has enumerated the right to legal capacity on an equal basis and has created a state obligation to provide access to support for the exercise of legal capacity. This article examines the use of assistive devices as support for decision-making in exercising legal capacity for individuals with physical and cognitive impairments; for example, the use of voice recognition programmes, screen readers, and screen enlargement applications to support people with mobility and sensory impairments to use online portals essential for legal actions such as banking. It also discusses the experimental use of cognitive assistance, including computer or electrical assistive devices, to facilitate communication for people with cognitive impairments including those with no external signs of consciousness. It highlights the diversity of options for ‘support for the exercise of legal capacity’ showing how they can assist people with various disabilities. Finally, the article examines the boundaries of the state obligation to provide such support, including issues of practical implementation and resource allocation.

Community treatment orders: towards a new research agenda:

Objectives: The aim of this study was to report on a half-day multi-stakeholder symposium on community treatment orders (CTOs) hosted by the Melbourne Social Equity Institute (MSEI), which identified research gaps and opportunities, and produced an agreed agenda for future CTO research. Methods: The MSEI convened a symposium for 22 experts in CTO research to discuss research priorities in this field in Australasia. An independent moderator elicited views and recommendations and produced a report detailing possible research projects. Results: Research on CTOs is contentious and there is a need to gather and examine information regarding both their use and utility. Due to the complexities involved, it was agreed that research should be undertaken in partnership with persons with had lived experience of mental health problems, clinicians, policymakers and other interdisciplinary stakeholders. Five key areas for future investigation were identified. Conclusions: The issues and recommendations arising from the symposium should shape the scope, nature and conduct of future research directions in the field.

A disability aware approach to torture prevention? Australian OPCAT ratification and improved protections for people with disability

ABSTRACT In 2017, Australia ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Ratification of OPCAT presents as a unique opportunity to highlight the institutional treatment of people with disability in a range of sites of detention within Australia and build on advancing international protections for people with disability, including those articulated in the Convention on the Rights of Persons with Disabilities (CRPD). This article considers the opportunity presented by OPCAT for improving protections for people with disability against torture and ill-treatment. The article argues for an expansive definition of ‘sites of detention’ that is able to encapsulate both disability-specific and mainstream settings in which people with disability may be deprived of their liberty, as well as to address specific practices such as the use of mechanical restraint, chemical restraint and seclusion. Based on an analysis of international National Preventive Mechanism (NPM) models, it is further argued that people with disability, their representative bodies and other civil society actors must be meaningfully involved in NPM processes, including in the monitoring of sites of detention, and the identification of systemic issues affecting people with disability with lived experience of detention.

‘The government is the cause of the disease and we are stuck with the symptoms’: deinstitutionalisation, mental health advocacy and police shootings in 1990s Victoria

Abstract The deinstitutionalization of mental health services in Australia happened first and most rapidly in the state of Victoria. In the final decades of the 20th Century, a period of immense economic and social policy reform accelerated this shift. Policy change appeared to be guided, at least in part, by ideals of human rights and citizenship. However, these same principles could be undermined in the vacuum of services created by deinstitutionalization and the broader restructuring of the welfare state. One expression of this paradox was a reported increase in violent encounters between police and those in states of distress and mental crises. Another example of paradox was rights-based mental health law, which both increased procedural safeguards for involuntary psychiatric intervention but also perpetuated differential treatment of persons with psychosocial disability on the basis of unfounded beliefs. This article will examine the intersections of policing and mental health policy in order to examine how boundaries of normality and disablement were contested during a transitional period of mental health law and policy.