In Australia, people with disability are subjected to a range of practices that significantly interfere with their physical and mental integrity and breach their rights under Article 17, including chemical, physical and mechanical restraint, seclusion and other restrictive practices (see also Article 15); non-therapeutic sterilisation (see also Article 23); and psychosurgery and forced electro-convulsive treatment (ECT).
Australia’s Interpretative Declaration on Article 17
Australia made an Interpretative Declaration in respect of Article 17 upon ratifying the CRPD:
Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of psychosocial disability, where such treatment is necessary, as a last resort and subject to safeguards.282
Australia’s Interpretative Declaration to Article 17 means that Australia will continue with existing legislative, policy and practice frameworks governing compulsory assistance or treatment. This declaration is largely directed to State and Territory frameworks that underpin the mental health system in Australia, and clarifies that Australia believes the existing mental health framework is in line with Article 17 and will be maintained.
Laws, policy and practice for involuntary treatment of people with psychosocial disability purport to ‘protect’ people who may be of harm to themselves or others by providing compulsory treatment in the community or in mental health facilities. Despite the significant limitations placed on a person’s rights to liberty and security (see also Articles 14 and 15) and equal recognition before the law (see also Article 12), there is no consistency across State and Territory mental health laws in:
assessing, or determining ‘risk of harm to self or others’; or
assessing a person’s ability or support needs to provide full and informed consent. (See also Article 12)
As a result, many people with psychosocial disability and cognitive impairment experience serious breaches of their human rights and widespread abuse, neglect and exploitation within the current legislative, policy and practice framework that purports to ‘protect’ them. (See discussion below and Articles 12, 14, 15, 16 and 25)
Since ratification of CRPD, a number of people with disability, their representative organisations, disability advocacy and legal groups in Australia have questioned the validity of separate mental health legislation, given this legislation prescribes limitations to human rights on the basis of disability,283 and is not legislation that limits human rights for everyone in the community in relation to risk of harm to self and others and the need for compulsory treatment and detention.
In his report to the UN General Assembly, the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment (UN Rapporteur on Torture) noted with respect to involuntary commitment to “psychiatric institutions” that “article 14 of CRPD prohibits … the existence of a disability as a justification for deprivation of liberty”.284
Instead of addressing mental health laws as an inherent breach of human rights, States and Territories have focused on reviewing and amending mental health legislation in an effort to increase compliance with human rights. Australia’s Interpretative Declaration supports this status quo, and therefore cannot be supported.
Case Studies
An investigation into the deaths of three men who died in state-run psychiatric wards across Melbourne between 2007 and 2009 highlighted allegations that serious failings by senior mental health staff may have contributed towards their unexpected deaths. Evidence also suggests that the health services involved allegedly covered up or failed to collect important information about the deaths, possibly preventing a proper examination of their cause. These cases are currently the focus of coronial inquests.
Anthony, who died in September 2008 in a psychiatric hospital in Melbourne, was killed by a combination of powerful anti-psychotic medications given to him by staff, according to a Victorian Government pathologist. Staff and patients aware of the circumstances of his death say the 40-year-old was pleading not to be given more drugs on the night he died. Staff and patients also allege there was an attempt to conceal information about the circumstances of his death from his family.
Jeffrey died at a Melbourne hospital in December 2009 after he went into a coma following a suspected overdose of illicit drugs supplied by unknown visitors. His family says the hospital’s psychiatric ward kept no visitor log nor did it supervise visits to patients. Police sources say the hospital’s legal department interfered with their investigation and ordered staff not to speak about the circumstances of his death.
Adam’s 2007 death at a hospital’s psychiatric ward during a struggle with security guards was the subject of a recent inquest. A finding has yet to be made, but evidence to the inquest suggests he was asphyxiated while being held face down by security staff. A witness told the inquest that the victim apparently yelled “I give up”, but security did not ease off. He died soon after.285
