In recent years there has been a major shift in the approach to making law and policy concerning people with mental illness or intellectual disabilities, particularly as Australia became a party to the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2008. The newly updated The Laws of Australia Subtitle 20.8 “Mental Health and the Intellectually Disabled” looks at the law in Australia concerning the care and treatment of people with mental illness and intellectual disability. There has been a move away from substituted decision-making, where decisions are made on behalf of persons, towards a supported decision-making approach. Underlying this is the philosophy enshrined in the CRPD that people with mental illness or intellectual disability have the same human rights as all people. The CRPD also requires governments to take practical steps towards ensuring that people with mental illness or intellectual disability are able to exercise their rights, including through proper resource allocation. The author, Dr Annegret Kämpf of the Faculty of Law at Monash University, examines the implementation of this approach in Australia through the prism of policy and law.

The updated Subtitle examines the range of national plans, strategies, and policies to give effect to the rights of people with mental illness or intellectual disability (eg least restrictive or intrusive treatment), set directions for the development of mental health service delivery, and identify strategies to implement service reform. The general law in a range of areas is discussed, including in relation to the capacity of mentally ill or intellectually disabled persons to make wills, enter contracts, and consent to sexual relationships. The mental health legislation in all Australian States and Territories regulating the control, protection, treatment, and care of people with mental illness is examined, including in relation to: 

• voluntary and involuntary admission;
• community treatment orders;
• inpatient treatment and detention orders;
• review of orders; and
• regulation of special kinds of treatment such as psychosurgery, electroconvulsive treatment, and physical restraint.

The importance of this discussion may be gauged from the fact that an estimated 1 million plus Australians were subject to involuntary community treatment orders in 2012. The legislative protection of the rights of people with mental illness (eg to private communications) is also discussed.

Dr Kämpf critically considers the effectiveness of the new strategies, policies, and legislative reforms. There is recognition of the tensions involved in balancing the rights of persons with mental illness or intellectual disability and protecting them against abuse and exploitation; and that the shift from institutionalisation to a community-treatment approach has not been accompanied by the provision of adequately funded and staffed community services.

Past inquiries which revealed the inadequate and tragic care and treatment of people with mental illness and intellectual disability are explored. There is special consideration of the Disability Act 2006 (Vic) regulating the care and treatment of persons with intellectual disabilities in residential facilities, and the new Mental Health Act 2013 (Tas) (anticipated to come into effect in 2014) is foreshadowed.