This paper argues that Australia should develop national civil commitment laws (1) for the mentally ill, or, as a second preference, develop a model Australian legal approach that could be adopted by individual Australian jurisdictions. The main reasons for that view are as follows: the fundamental importance of such laws to the Australian community both from a human rights perspective and the perspective of community protection; the interrelatedness of the Australian mental health system including its legal, policy and service areas; the importance of international principles and treaties; greater accessibility of the legislation; improved data collection and monitoring; a more cost effective option on a systemic level; reducing cross border issues where two sets of State and/or Territory laws interrelate; and the significant problems with the present State and Territory approaches.
Currently there are no national mental health laws or national standards for such laws. Instead, the states and territories have their own laws, processes and institutions that deal with civil commitment. State and territory jurisdictions provide broadly similar legal approaches to civil commitment. (2) Each has a form of civil commitment on the basis of a mental illness that involves risks to the community and/or to the individual. Each jurisdiction has broadly similar legislation and decision-making systems for mental health and civil commitment including the use of specialist mental health review tribunals. Each contains objectives that attempt to identify and balance the protection of the individual consumer's rights and autonomy with the need for appropriate care and treatment, if necessary on an involuntary basis, and the right to protect the community from risk.
However, as discussed below, there are also significant differences between jurisdictions in the content and process of these laws, significant gaps in service provision, and there is a lack of a coordinated and consistent approach to the civil commitment of the mentally ill across Australia. A properly planned and resourced national set of laws with accompanying policy support would significantly reduce these problems.
The paper then argues that the best way to develop national laws would be through the establishment of a national, public inquiry into Australia's civil commitment laws for the mentally ill. The paper discusses the reasons for the need for such a national, public inquiry which include: the importance of the topic; the controversies that surround it; the number of complex issues and possible reforms involved; the need for broad consultation for major law reform; and the specific defects and concerns with current approaches by state and territory jurisdictions. Thus far, such an inquiry has not occurred and there has never been in Australia a national, State or Territory inquiry that has focused on civil commitment.
The paper then assesses the institution which would best carry out this inquiry. Finally, the paper explores the feasibility of achieving national laws.
II WHY THERE IS A NEED FOR NATIONAL LAWS
A Civil Commitment is of Significant National Importance
This part of the paper refutes perhaps a general argument against national laws that they are not justified because civil commitment is not important enough to warrant the effort of introducing such laws. Instead this part demonstrates the national importance of the issue.
The mental health of all Australians should be of paramount importance. Large numbers of Australians, apparently at an increasing rate, are directly affected by mental illness. For example, about one in five Australians experience a mental illness episode during their lives while about one in ten report a long-term mental illness or behavioural issues at any point in time. (3) Estimates from the second National Survey of Psychosis conducted in March 2010 suggest almost 64,000 people have a psychotic illness and are in contact with public specialised mental health services each year. (4) Thus, civil commitment has a direct and dramatic impact on thousands of Australians each year together with their families, carers and friends, and an indirect impact on us all.
In 2006, the Senate Select Committee on Mental Health classified mental illness as the number one health problem in Australia causing years lost to disability and referred to mental illness as the 'disease burden' and 'the significant unmet need' for treatment and action. (5) The National Action Plan on Mental Health 2006-2011 estimated that the annual cost of mental illness in Australia is approximately $20 billion, including the costs from loss of productivity and participation in the workforce. (6) In addition, mental illness as a political and community issue is gaining greater prominence. Political parties are spending more time and more money on mental health as an issue. The Government introduced a $2.2 billion mental health reform package in the 2011-12 Budget. (7)
It follows that policy and laws relating to mental health issues should apply fairly and consistently to all Australians regardless of their origins, ethnicity, social class, education or place of residence. It is clearly a national issue involving the fundamental rights of individuals and the protection of the community.
Laws relating to mental illness occupy a very important position. As Unsworth argues, the legal system is a major force in the provision and effectiveness of mental health system: '[l]aw actually constitutes the mental health system, in the sense that it authoritatively constructs, empowers, and regulates the relationship between the agents who perform mental health functions.' (8)
Civil commitment laws can playa vital if not determinative role in addressing the rights of the mentally ill and ensuring that people who need treatment and care may receive it.
Civil commitment is the sharp end of the mental health system. It involves serious and of ten drastic consequences for individual consumers, their families, carers, friends and the community. It may abrogate, or at least significantly curtail, fundamental human rights such as freedom of movement, control of one's mind and body, freedom of choice of treatment or no treatment, and rights to dignity and respect. In broad terms of consequences it equates to penal powers with respect to criminal offences and it stands at odds with other types of illness which are categorised as bodily or non-psychiatric, where compulsory detention or treatment is rarely permitted, even if such treatment may be clearly in the interests of the patient from a medical viewpoint. There has perhaps been a tendency to gloss over the exceptional nature of civil commitment for mental illness because it has been used for so long and because it is widespread around the world. In addition, discrimination, stigmatisation and ignorance have led communities to undervalue the human rights of those with a mental illness. Therefore, it is important in any review of civil commitment laws to bear in mind that the powers of the state and its organs in this area are extraordinary and therefore need to be considered with the greatest of care.
Moreover, the mentally ill tend be one of the most marginalised groups in the community whose rights as to liberty, employment, education and decent housing can be ignored or minimised. A national set of laws would help to ensure that proper attention is paid Australia-wide to issues of their liberty. There are significant general barriers to access to justice for mentally ill people including those who wish to dispute or review civil commitment decisions and processes. (9) There are individual barriers such as lack of awareness of legal rights, being disorganised and exhibiting difficult behaviour and there are also systemic barriers such as insufficient availability of affordable legal services, time constraints, being in remote or regional areas, lack of credibility from the perspective of practitioners, stigmatisation and discrimination. It is suggested that these factors also indicate that civil commitment is worthy of national legislation.
There has been a growing realisation that civil commitment involves serious human rights issues. Over the past 30 years an international trend has developed for an increasing interest in protecting the rights of the mentally ill. This trend is clearly observable in many Western countries, (10) For example, human rights jurisprudence particularly concerning involuntary detention, conditions of confinement, civil rights and access to mental health services has been growing in Europe and the Americas. (11) One aspect of that increased interest has been the development of international standards for patients' rights. While overall the jurisprudence of human rights in health care has developed slowly and in piecemeal fashion it is in the area of mental illness that jurisprudential growth has been more marked. (12)
The main objectives of civil commitment laws are clearly of fundamental national importance as they involve the rights of individuals and of the Australian community. These objectives must be carefully considered and balanced. (13) The two basic objectives are usually described as follows. First, commitment may be necessary to protect the community by stopping mentally ill people from harming others. A major concern with this rationale is the problematic nature of predictions of risk or dangerousness. (14)
The second major rationale is that mentally ill people may themselves need protection in their own best interests through civil commitment, particularly because of severe mental illness. This justification is often regarded as a parens patriae protection. The rationale is controversial because it involves making decisions that infringe upon the autonomy and free choice of the individual and it is difficult to draw a clear line between when paternalism is...