Is There a Future for Involuntary Treatment in Rights-based Mental Health Law?

Involuntary psychiatric treatment is currently permitted in all Australian jurisdictions. In almost all, Tasmania being a recent exception, this is the case regardless of the person's ability to make his or her own decisions about treatment. In recent years mental health legislation has come under pressure from several quarters, most urgently, as a result of Australia's ratification of the United Nations Convention of the Rights of Persons with Disabilities (CRPD). While interpretation of the Convention is not yet settled, the United Nations High Commissioner for Human Rights and the United Nations Disabilities Committee have both indicated that supported decision-making regimes must be instituted in place or substituted decision-making arrangements and that involuntary treatment is no longer permissible under the CPRD. This article argues that in order to give effect to the provisions of the CRPD, new supported decision-making regimes must be incorporated into mental health legislation but that these must admit a limited role for substituted decisions, including involuntary treatment, where a person lacks decision-making capacity. We argue that such a scheme can, and must, respect the rights, will and preferences of the person affected. Furthermore, we suggest that failing to account for it in law will jeopardise rights more than it protects them.