Last updated 1 May 2020
The Human Rights Act
The Human Rights Act 2019 (Qld) (Human Rights Act) commenced on 1 January 2020. A main object of the Act is to protect and promote human rights (s 3 Human Rights Act). The civil and political rights are listed and defined in pt 2 div 2 of the Human Rights Act, and the economic, social and cultural rights are listed and defined in pt 2 div 3 of the Act. Three of the ways the main objects are to be achieved primarily are by:
- requiring public entities to act and make decisions in a way compatible with human rights (ss4(b), 58)
- requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights (ss 4(f), 48)
- providing for how to resolve human rights complaints (s 4(i)).
A person, who alleges that the public entity has made a decision that is not compatible with human rights or has failed to give proper consideration to a human right, may make a complaint to the Human Rights Commissioner (appointed under the Anti-Discrimination Act 1991 (Qld)) (s 64 Human Rights Act). There are detailed provisions on how the commissioner is to deal with human rights complaints (ss 68–78 Human Rights Act), and for the conciliation of complaints (ss 79–87 Human Rights Act).
The Human Rights Act states that every person has the right to liberty and security, a person must not be subjected to arbitrary arrest or detention, and a person must not be deprived of their liberty except on grounds, and in accordance with procedures, established by law (s 29).
This legislation is new, and it is not yet known whether it will have any impact on the way the Mental Health Act is understood and applied. As described below, the Mental Health Act itself contains important provisions that are designed to protect human rights. For example, one of the principles underlying the Mental Health Act is that the same human rights apply to all people. Another is that the objects of the Mental Health Act are to be achieved in a way that safeguards people’s rights and is the least restrictive of the rights and liberties of people with a mental illness.
The Criminal Code
In criminal law, a mental illness may result in a person not being criminally responsible for an offence they are charged with, or it may make them unfit for trial. The Criminal Code Act 1899 (Qld) (Criminal Code) deals with these issues, but the Mental Health Act provides an avenue for people to be diverted from the criminal justice system so that these issues can be decided by the Mental Health Review Tribunal.
The Mental Health Act
The objects of the Mental Health Act and how they are to be achieved
The main objects of the Act are, in summary (s 3 Mental Health Act):
- to promote the health and wellbeing of people who have a mental illness but do not have the capacity to consent to treatment
- to divert people from the criminal justice system if they were of unsound mind at the time of an offence or if they are unfit for trial
- to protect the community if people diverted from the criminal justice system are at risk of harming others.
The objects are to be achieved in a way that (ss 4, 13 Mental Health Act):
- safeguards people’s rights
- is the least restrictive of the rights and liberties of people with a mental illness. In other words, their rights and liberties are to be restricted only to the extent required to protect their safety and welfare or the safety of others
- promotes the recovery and return to the community of people who are mentally ill.
Matters dealt with in the Mental Health Act
The Mental Health Act deals with:
- the involuntary assessment and treatment of mentally ill people if they are incapable of consenting or refuse to consent
- mentally ill people charged with a criminal offence
- powers of courts hearing criminal proceedings
- the Magistrates Court’s power to dismiss complaints in certain cases
- proceedings in the Mental Health Court
- proceedings in the Mental Health Review Tribunal
- protection of patients’ rights.
The criminal law relating to mentally ill people is used to determine questions of criminal responsibility and fitness for trial. Treatment and further assessment may be ordered for a person found not criminally responsible for an offence or unfit for trial because of mental illness.
Other laws provide for the rights of patients, the capacity of mentally ill people to enter into contracts, make a will, vote in elections or marry, and the responsible management of financial affairs of people who are mentally ill.
Wherever possible, the treatment of mental illness is done on a voluntary basis like the treatment of any other illness, and should be part of the mainstream health system. The Health Ombudsman Act 2013 (Qld) and the Hospital and Health Boards Act 2011 (Qld) protect the rights of patients in the health system generally.
The Mental Health Act provides for the unique features of mental illness, such as involuntary treatment, that cannot be catered for in other mainstream legislation. Before there can be involuntary treatment, specific procedures have to be followed for the involuntary assessment, if necessary, of people who are reasonably believed to be mentally ill and in need of assessment. The Mental Health Act also regulates some specific treatments such as electroconvulsive therapy and psychosurgery, and prohibits other treatments altogether.
Principles underlying the Mental Health Act
The Mental Health Act sets out the following specific principles that apply to people with a mental illness (s 5):
- The same human rights apply to all people:
- The right of all persons to the same basic human rights must be recognised and taken into account.
- A person’s right to respect for their human worth and dignity as an individual must be recognised and taken into account.
- Certain matters have to be considered in making decisions:
- To the greatest extent practicable, a person is to be encouraged to take part in making decisions affecting their life, especially decisions about treatment and care.
- To the greatest extent practicable, in making a decision about a person, the person’s views, wishes and preferences are to be taken into account.
- A person is presumed to have capacity to make decisions about their treatment and care.
- Family, carers and other support people are to be involved in decisions about treatment and care to the greatest extent practicable, subject to the person’s right to privacy.
- Support and information are to be provided. To the greatest extent practicable, a person is to be provided with necessary support and information to enable them to exercise rights under the Mental Health Act (e.g. facilitating access to independent help to represent the person’s point of view).
- To the greatest extent practicable, a person is to be helped to achieve maximum physical, social, psychological and emotional potential, quality of life and self-reliance.
- A person’s needs have to be acknowledged. A person’s age-related, gender-related, religious, communication and other special needs must be taken into account.
- The unique cultural, communication and other needs of Aboriginal people and Torres Strait Islanders are to be recognised and taken into account.
- The unique cultural, communication and other needs of people from culturally and linguistically diverse backgrounds must be recognised and taken into account.
- To the greatest extent practicable, minors receiving treatment and care must have their best interests recognised and promoted and their safety protected.
- To the greatest extent practicable, existing supportive relationships must be maintained and participation in community life must be continued (e.g. through treatment in the community where the person lives).
- The importance of recovery-oriented services and the reduction of stigma associated with mental illness must be recognised and taken into account.
- Treatment provided under the Mental Health Act must be administered to a person who has a mental illness only if it is appropriate to promote and maintain the person’s mental health and wellbeing.
- Confidentiality must be maintained. A person’s right to confidentiality of information about them must be recognised and taken into account.
The Mental Health Act also recognises that victims of an offence should be treated with compassion and provided with timely advice about the progress of proceedings against the offenders (s 6).