Mental Health Legal Centre Inc.

Human Rights Policy Work

Australia's human rights record

Australia has ratified numerous international human rights treaties, meaning that Australia agrees to promote and protect the human rights enshrined in these treaties.  One of these treaties, is the International Covenant on Civil and Political Rights (ICCPR) which covers rights like the right to life; equality before the law; freedom of expression; and freedom from torture, other cruel treatment and arbitrary detention.  Many of the rights in Victoria's Charter of Human Rights and Responsibilities (see below) are based on those in the ICCPR.  All states (or countries) have to report periodically to the UN Human Rights Committee (the Committee) to say how they are meeting their human rights obligations.  Australia is no different. 

In 2013 the Committee will review whether Australia has complied with the ICCPR.

MHLC has been involved in shaping how and on what issues Australia justifies its human rights record under the ICCPR.  In August 2012 a Joint NGO submission was made to the Committee.  It was collated by the National Association of Community Legal Centres and endorsed by over 96 organisations.  MHLC drafted the chapter outlining the state of human rights of people with psychiatric disability, with Inside Access contributing to the chapter on the rights of prisoners.

Key human rights issues for people with psychosocial disability (highlighted in chapter 9.5 of the Joint NGO submission) include:

  • the extent of use of involuntary psychiatric treatment, including through community treatment orders
  • continued use of seclusion and restraint in psychiatric facilities, despite efforts to reduce their use
  • safety and sexual harassment or assault in psychiatric wards, particularly for women and girls, and the lack of choice of female-only wards
  • timely external review of involuntary treatment and lack of legal representation, and
  • lack of genuinely independent monitoring and oversight bodies with broad investigative and enforcement powers.

Read the full Joint Australian NGO Submission to the UN Human Rights Committee here (pdf, August 2012)

In November 2012, the Committee released a 'List of Issues Prior to Reporting' setting out specific issues and questions it wants the Australian Government to address in its report.  Read the full list of issues here.

We anticipate that Australian NGOs will have an opportunity to prepare a joint, more comprehensive report on the state of civil and political rights' protection in Australia later in the review.

Victorian Charter of Human Rights

The Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) is designed to protect the human rights of all Victorians, including people who experience mental health issues (‘consumers’), and has been operating effectively in Victoria since 2008.  The Charter promotes the values Fairness, Respect, Equality and Dignity in one clear easily accessible document.  It promotes fairer outcomes by encouraging the Government to consider human rights when it develops laws and policies, and ensuring that public authorities like public mental health services act consistently with consumers’ human rights.

  • Link to the Victorian Charter of Human Rights and Responsibilities Act 2006, click here (pdf)

Review of the Victorian Charter of Human Rights

On 14 September 2011 the Scrutiny of Acts and Regulations Committee (SARC) tabled in Parliament its four-year review of the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter).  SARC recommendations included winding back the role of courts and tribunals in enforcing human rights and providing remedies when they are breached, and winding back other mechanisms to ensure public authorities, like public mental health services, act compatibly with human rights.  On 14 March 2012 the Victorian Government responded to the SARC's recommendations.  The Government stated it would retain the Charter and considered that legislative protection of human rights provides a tangible benefit to Victorians.  It has not made a final decision about some of the SARC's significant recommendations and is currently seeking legal advice on the operation of the Charter in the courts and tribunals and the legal obligations on public authorities.

The MHLC believes the Charter is an important tool for consumers and that winding back the Charter will have an adverse impact on their rights.

  • Link to the Victorian Government's response to the SARC review (html) (tabled 14 March 2012)

  • Link to the SARC's full report (html) (tabled 14 September 2011)

  • MHLC's submission to the Review of the Charter  (1 July 2011) (pdf 205kb)

    MHLC stressed the importance of the Charter as a tool to further the rights of people with psychiatric disability in Victoria, and called for the Charter to be strengthened, not rolled back. For example, we recommended full implementation of the rights and principles in the UN Convention on the Rights of Persons with Disabilities, introducing provisions to allow a person to bring a claim for breach of a Charter right of its own accord, and giving Courts and Tribunals the power to order compensation in certain cases where a Charter right has been breached by a public authority.

  • Terms of reference for the Review of the Charter (2 May 2011) (doc 54kb)

Consumers petition the Government not to 'wind back' the Victorian Charter of Human Rights

Following the report of the SARC's review of the Charter, MHLC put together a petition to the Victorian Governmebnt on behalf of Victorian mental health consumers, calling for the Charter to be retained and strengthened, including retaining the duties of public authorities, maintaining a role for courts and tribunals in reviewing any potential breaches of human rights and ensuring appropriate remedies available.  Nearly 100 signatures (94) were collected from our client base before the petition was tabled in parliament by Mr Nick Wakeling, Parliamentary Secretary for Health on 8 December 2011.

  • Read the MHLC's Fact sheet and petition (November 2011) (pdf)
  • Read where the petition was tabled in Victoria's Legislative Assembly in Hansard on page 6241 (pdf) (8 December 2011)

MHLC significant cases & articles on the Charter of Human Rights

The MHLC regularly uses the Victorian Charter of Human Rights (the Charter) in its advice and representation for individual clients and in its systemic advocacy.  Some of MHLC's significant cases and articles on the Victorian Charter are listed below.  You can also click on 'recent cases' under the 'Advocacy & Casework' link to the left for some detailed examples of how we have used the Charter to enforce the rights of people with psychiatric disability.

  • Kracke decision (February 2009)- Our client obtained the inaugural declaration under the Charter of breach of his right to a fair hearing before the Mental Health Review Board because of the Board's failure to conduct a timely review of his involuntary treatment.
  • Re review of 09-085 (23 February 2009)- The Mental Health Review Board made an order for better scrutiny of side effects of our client's psychiatric treatment that could potentially be cruel, inhuman or degrading.
  • Antunovic decision (25 August 2010) - The Supreme Court of Victoria ordered release of our client from accommodation where she was unlawfully detained by her psychiatrist’s control.
  • Patrick's case (19 July 2011) - Supreme Court of Victoria decision dismissing an Administration Order and confirming our client, Patrick's right to control his own money and choose where to live.  The case also highlighted our client's right to privacy and his ability to enjoy these rights equally with other people.  See link to the relevant section of our website.
  • XFJ case (11 October 2011)- Our client won the right to be accredited as a taxi driver, reinforcing his right to work and participate in the community on an equal basis with others without prejudicial assumptions on the basis of his decades-old forensic psychiatric history.  For more information, click here to go to the relevant part of our website.
  • 'Fractures in the Charter' - Article by Korina Leoncio, Catherine Leslie, Barbara Shalit and Vivienne Topp in the Law Institute Journal, March 2010 - argues for greater human rights protection under the Victorian Charter of Human Rights for people subject to involuntary psychiatric treatment.

 

Right to Health for people with psychiatric disability

Article 25 of the UN Convention on the Rights of Persons with Disabilities confirms that people with disabilities - including people with psychiatric disability - have the right to the enjoyment of the highest attainable standard of physical and mental health on an equal basis with other members of society.

The United Nations Special Rapporteur on the Right to Health, Mr Anand Grover, visited Australia in November and December 2009.

The MHLC, together with other non-governmental organisations, met with the UN Special Rapporteur. This was an opportunity to raise our concerns regarding the right to health of people with a mental illness, particularly those subject to involuntary psychiatric treatment, and the right to health of people with mental illness in the criminal justice system.

We put together two facts sheets:

1. The right to health & mental health service provision in Victoria   (doc 101kb) November 2009

  • Involuntary psychiatric treatment & lengthy 8-week MHRB review period;
  • The extent of involuntary ECT and seclusion;
  • Adverse side effects of psychiatric treatment and medication – cruel, inhuman and degrading treatment;
  • The lack of single-sex psychiatric wards;
  • Advance directives for mental health

 

2. Mental health issues in Victorian Prisons – Inside Access fact sheet (.doc 99kb) November 2009

  • Why are so many people in prison mentally ill?
  • How is mental illness dealt with in prison?
  • Women in prison
  • What are the costs of imprisoning people with a mental illness?
  • How can we keep people with mental illness out of prisons?
  • Issues raised by people in prison regarding mental illness

The UN Special Rapporteur highlighted in his report on Australia (at para 70-71), the significant overrepresentation of people with mental illness in prison and the “insufficient provision of replacement community-based treatment options” post de-institutionalisation.

Download the UN Special Rapporteur’s full report:

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover    Mission to Australia – full report, 3 June 2010   (.pdf 156kb)

 

Victorian Charter of Human Rights and Responsibilities and Mental Health Rights Forum 20th May 2008

This Community Legal Education session explored how the Charter could assist people who have been diagnosed with a mental illness:-

 

 

 

About the Charter of Rights, Issues of Concern to Consumers and Charter, Relationship between Charter and Convention on Rights of Persons with a Disability - Sophie Delaney Coordinator MHLC (Coordinator / Principal Lawyer MHLC)

How might the Charter impact on involuntary treatment and access to treatment choices - Barbara Shalit MHLC (Senior Lawyer MHLC)

Advance directives and the Charter of Rights - Vivienne Topp MHLC (Policy Coordinator and Lawyer MHLC)

Charter and the right to a fair hearing at MHRB: what it means and how to ensure it - Catherine Leslie MHLC (Lawyer and Pro-Bono Coordinator MHLC)

Involuntary treatment – an argument for its continuation and an analysis of what the Human Rights and Responsibilities Charter might deliver to consumers without the need to abolish involuntary detention or treatment - Mark Lacey (Consumer Consultant)

Is Involuntary Psychiatric Treatment “Reasonable, Necessary, Justified and Proportionate”? - David Webb 

Full-text article on Involuntary Treatment by Dr David Webb (PhD Doctorate and Psychiatric Survivor)

Report on the outcomes of the day

 

 



Federation of Community Legal Centres Victoria



Federation of Community Legal Centres Victoria



Federation of Community Legal Centres Victoria
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