Treat with Care: The Right to Informed Consent for Medical Treatment of Persons with Mental Impairments in Australia

In: McSherry , B & Waddington , L 2017 , ' Treat with Care: The Right to Informed Consent for Medical Treatment of Persons with Mental Impairments in Australia ' , Australian Journal of Human Rights , vol. 23 , no. 1 , pp. 109-129 . https://doi.org/10.1080/1323238X.2017.1314808

Abstract

One of the most controversial questions that arose during negotiations on the United Nations Convention on the Rights of Persons (CRPD) concerned whether or not health interventions could ever be performed without the recipient's consent. This is particularly important in relation to persons with severe mental impairments whose consent to or refusal of treatment may be rendered irrelevant under mental health or guardianship legislation. In its General Comment No 1, the United Nations CRPD Committee has stated that States Parties have an obligation to require mental health practitioners to obtain the free and informed consent of persons with disabilities prior to any treatment. This article analyses recent case law in Australia that indicates that while there has been some attention paid to human rights breaches in relation to the detention of persons with mental impairments for treatment purposes, there is a large gap between what the CRPD Committee requires and the 'weak' protection that continues to be afforded in relation to informed consent to medical treatment.