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Psychiatric Advance Directives andHuman RightsDr. Penny Weller aa Faculty of Law, Monash University , Clayton, Victoria, AustraliaPublished online: 14 May 2010.

To cite this article: Dr. Penny Weller (2010) Psychiatric Advance Directives and Human Rights,Psychiatry, Psychology and Law, 17:2, 218-229, DOI: 10.1080/13218710903496318

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Psychiatric Advance Directives and Human Rights*

Penny Weller

Faculty of Law, Monash University, Clayton, Victoria, Australia

Since the early 1990s many jurisdictions have recognised psychiatric advance directives.In Australia, reviews of mental health legislation have been completed in New SouthWales and the Northern Territory, and are on foot in Western Australia, SouthAustralia, Queensland, Tasmania, the ACT and Victoria. To date, only the ACT andVictorian reviews have seriously countenanced the legislative recognition of advancedirectives. In the current environment of review and debate about the proper balancebetween rights and risks in psychiatry, the structure of comparable internationalprovisions and international clinical experience with psychiatric advance directives canusefully inform Australian developments. This article outlines the relevant law inAustralia and the legislative approaches adopted in Scotland, England and Wales, NewZealand, Canada and the United States of America. It argues that effective law reformin Australia should attend to international precedent, but also be mindful of the deeperhuman rights principles represented by the psychiatric advance directive movement.

Key words: human rights; international precedent; law reform; psychiatric advancedirectives.

Introduction

A wave of reform has swept across mentalhealth law since the early 1990s. TheUnited States of America (United States),parts of Canada, New Zealand, Englandand Wales, and Scotland now formallyrecognise psychiatric advance directives.1

In Australia, serious debate about theinclusion of psychiatric advance directivesprovisions in mental health legislation isbeginning to emerge. Some considerationhas been given to the question of psychia-tric advance directives in recent state andterritory reviews of mental health legisla-tion, but no jurisdiction in Australia hasyet enacted legislative provisions for

advance directives.2 South Australia, theAustralian Capital Territory and Victoriahave indicated a willingness to consider theinclusion of psychiatric advance directiveprovisions in forthcoming legislation.

Australian law reform processes oftenlook to international trends for directionand inspiration. In health and mentalhealth, close consideration is given to theapproaches taken in jurisdictions whichhave health and service delivery systems, aswell as legal systems, similar to theAustralian models. In the context ofpsychiatric advance directives, the humanrights orientation of each jurisdiction isalso relevant.

*This article is a revised version of an unpublished paper presented at the ANZAPPL (Australianand New Zealand Association of Psychiatry, Psychology and Law) Annual Conference, ManlyPacific Hotel, Manly, NSW, October 2008.Corrrespondence: Dr Penny Weller, Monash University, Clayton Campus, Building 12, WellingtonRoad, ClaytonVictoria, 3800, Australia. Email: Penny.weller@law.monash.edu.au

Psychiatry, Psychology and LawVol. 17, No. 2, May 2010, 218–229

ISSN 1321-8719 print/ISSN 1934-1687 online

� 2010 The Australian and New Zealand Association of Psychiatry, Psychology and Law

DOI: 10.1080/13218710903496318

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The long-standing association of psy-chiatric advance directives with the aspira-tions of the consumer and anti-psychiatrymovements has injected psychiatric ad-vance directives with a strong human rightsflavour.3 These directives are regarded bymany as an appropriate vehicle for therecognition of consumer rights in mentalhealth law. Accordingly, their incorpora-tion into law has generally followed theadoption or recognition of internationalhuman rights instruments or human rightslegislation. Canada, New Zealand, Eng-land and Wales, and Scotland have intro-duced human rights legislation in relativelyrecent times.4 The adoption of humanrights legislation in these jurisdictionsrepresents an extension and consolidationof the international human rights move-ment at the domestic level. The recognitionof psychiatric advance directives reflects aneffort to give effect to a human rightsapproach in mental health law. The articu-lation of international human rights ob-ligations, the translation and adoption ofhuman standards in domestic laws, and thedevelopment of the psychiatric advancedirectives movement represent three inter-connecting aspects of the continuing evolu-tion of the human rights movement. Thisongoing development, which is clearlyevidenced in the content of the UnitedNations Convention on the Rights ofPersons with Disabilities,5 frames the psy-chiatric advance directives debate.

The Convention on the Rights of Personswith Disabilities has been hailed as usheringin a new era in human rights.6 In relationto psychiatric advance directives, the Con-vention implies that careful attention begiven to the principles and objectives thatunderpin the introduction of psychiatricadvance directives.7 The Convention in-vites consideration of what psychiatricadvance directives are intended to achievewithin a broad legislative context. In theAustralian Capital Territory and Victoria,where human rights legislation has been

adopted, understanding the human rightscontext of psychiatric advance directiveprovisions is crucial to the comparativeanalysis of international provisions.8 Theobject of this article is to inform currentefforts to recognise psychiatric advancedirectives in Australian law, by outliningthe general features of current interna-tional provisions and commenting on theireffect ‘‘on the ground’’.

Of particular interest is the difficultyeach jurisdiction has experienced in im-plementing their respective provisions.Evaluating this experience may shed lighton the apparent conundrum of psychiatricadvance directives – that is, that althoughthey are put forward as a clear solution tohuman rights deficits in mental health laws,psychiatric advance directives seem to havelimited impact in practice. This articleargues that Australian law reform musttake full account of international experi-ence and the new developments in humanrights law if it to succeed in realising therights of people living with mental illnessthrough the mechanism of psychiatricadvance directives. In particular, reformersmust pay close attention to the principlesexpressed in the Convention on the Rights ofPersons with Disabilities.

International Models for Advance Directives

International recognition of psychiatricadvance directives has been varied. At themost general level, the different provisionsrepresent the range of ways in whichlegislatures have chosen to recognise thewishes of persons living with mental illness.The variations in legislative provisionsreflect differences in the legal systems andin the service delivery systems of variousjurisdictions, different imperatives in thedevelopment of local law and policy, andthe incremental development of humanrights approaches in mental health law.The United States recognised advancedirectives, including psychiatric advance

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directives, in the early 1990s. New Zealandextended recognition of advance directives topsychiatric patients in 1999, and the Scottishprovisions were introduced in 2003. Theapproach to psychiatric advance directives inthe United States differs markedly from theapproaches adopted elsewhere. The ap-proaches adopted in Scotland, NewZealand, England and Wales range fromthe minimalist approach adopted in NewZealand to the detailed and embeddedhuman rights approach adopted in Scotland.The following section of the article outlinesthese differences in more detail.

United States of America: The Civil RightsInfluence

Strong support for psychiatric advancedirectives in the United States has beenattributed to the embedded civil rightsculture, the ‘‘user pays’’ health system,and the continued strength of the consumerrights lobby.9 The wide recognition ofpsychiatric advance directives in statelegislation followed the introduction ofthe federal Patient Self Determination Actin 1991. The Patient Self DeterminationAct 1991 (US) requires that patientsadmitted to federally funded hospitals areinformed about their right under state lawto prepare an advance directive. Thehospital is obliged to inquire and documentwhether the patient has executed an ad-vance directive, to respect the documenta-tion, and to educate health care providersregarding its use.10 Twenty-five states havepassed legislation enabling competent in-dividuals to consent to or refuse futuremental health treatment during decisionalincapacity, either by mental health advancedirectives or by proxy decision-making.11

All states permit competent adults to usehealth care law to make at least somepsychiatric choices in advance – typicallythrough a health care power of attorney.12

A key feature of the American ap-proach is the common use of advance

directives in conjunction with provisionsfor proxy decision-making. This strategy isaimed at strengthening the ‘‘voice’’ of thepatient. A full review of the provisions inforce across the United States is beyond thescope of this article. Nevertheless, thecomparatively lengthy experience with psy-chiatric advance directives in the UnitedStates has generated a depth of literatureand research that is unavailable elsewhere.Comment about the implementation ofpsychiatric advance directives in the UnitedStates is included below.

The significant differences between Aus-tralian and the North American legal andhealth services systems suggests that theapproach to psychiatric advance directivesadopted in the United States is not easilytransferable to the Australian context. Theabsence of a subsidised or public healthsystem and the very different arrangementsfor health insurance in the United States aresignificant. In addition, United States jur-isprudence that addresses the question of therelationship between the interests of the stateand the autonomy of individuals has devel-oped differently to that in the Anglo-Australian tradition. For example, meta-analyses of the relevant case law suggest thatAmerican courts have recognised four stateinterests. These are the interest in preservinglife, the interest in preventing suicide, theinterest in sustaining the integrity of themedical profession, and the interest in protect-ing third parties.13 Where courts in Englandand Wales have recognised the latter threeinterests, these have never prevailed over theright to self-determination.14 This suggests thatthe translation of insights found in jurispru-dence from the United States to the Anglo-Australian context must proceed with caution.

New Zealand: A Minimalist Approach

In New Zealand, the recognition of generaladvance directives was extended to mentalhealth patients in 1999. The right to makean advance directive appears in the Code of

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Health and Disability Services ConsumersRights.15 The Code of Health and DisabilityServices Consumers’ Rights was incorpo-rated into New Zealand law on 1 July 1996as a regulation under the Health andDisability Commissioner Act 1994 (NZ).16

Advance directives are also recognised inthe National Mental Health Sector Stan-dards,17 and in the provision of enduringpowers of attorney under the Protection ofPersonal and Property Rights Act 1988(NZ). The Mental Health (CompulsoryAssessment and Treatment) AmendmentAct 1999 (NZ) amended the Mental Health(Compulsory Assessment and Treatment)Act 1992 (NZ). The 1999 amendmentsrequire persons authorised under the Actto take consumers’ wishes into account, toconsult with patients and their families,and to make treatment decisions withproper recognition of the patient’s be-liefs.18 The brief provisions in the MentalHealth (Compulsory Assessment andTreatment) Act 1992 (NZ) are augmentedby departmental guidelines published in2000. The uptake of psychiatric advancedirectives in New Zealand has been dis-appointing and is currently the subject ofreview by the New Zealand Mental HealthCommission.

Scotland: Embedded Provisions

The Scottish commitment to respect forthe rights of persons living with mentalillness is reflected in the detailed provi-sions of the Mental Health (Care andTreatment) (Scotland) Act 2003.19 Thelegislation closely follows the recommen-dations of the Millan Committee report.20

The Mental Health (Care and Treatment)(Scotland) Act 2003 (Scottish Act) en-ables all persons who are subject to a‘‘mental health order’’ under the Act tomake psychiatric advance directives. TheScottish Act gives patients the right tomake and withdraw written statementsthat may include information about how

they would wish to be treated and howthey would not wish to be treated in theevent that they become unable (due totheir mental disorder) to make their viewsknown about care and treatment at afuture date.21 The Scottish Act requiresthe Tribunal,22 persons authorised to givemedical treatment under the Act, anddesignated medical practitioners to haveregard to the wishes expressed in advancedirectives.23 If authorised persons, tribu-nals or treating medical practitionersmake decisions that conflict with theadvance statement, they are required toprovide a statement in writing that setsout the reasons why a conflicting decisionhas been made. The decision to overridethe wishes of a person must be commu-nicated to guardians and advocates and acopy placed on the patient’s medicalrecord.24

Psychiatric advance directives in Scot-land form part of an integrated approachto securing new rights and safeguards forpeople detained under the legislation.They are supported within the overallstructure of the legislation by processesthat are intended to enhance the abilityof people with mental illness to partici-pate fully in their treatment decisions.The guiding principles of the Scottish Actare set out in Part 1. Significantly, theyrequire persons discharging functionsunder the Act to have regard to thepast and present wishes and feelings ofthe patient. The Scottish Act also requiresthe consideration of:

. the views of the patient’s ‘‘named’’person, carers, guardians, and ‘‘wel-fare attorneys’’;

. the importance of the patient parti-cipating as fully as possible in alldecisions;

. the importance of providing suchinformation and support to the pa-tient as is necessary to enable thepatient to participate;

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. the importance of providing themaximum benefit to the patient;

. the need to ensure that, unless it canbe shown that it is justified in thecircumstances, the patient is nottreated in a way that is less favour-able than the way in which a personwho is not a patient might be treatedin a comparable situation; and

. the patient’s abilities, background,and characteristics, including thepatient’s age, sex, sexual orientation,religious persuasion, racial origin,cultural and linguistic background,and membership of any ethnic group.

The detail of Scottish Act brings addi-tional substance to the principles. Itrequires that written information be pro-vided to all patients regarding:

. the reasons why the patient is beingdetained;

. the effect and consequences of rele-vant orders;

. the powers that the patient’s respon-sible Medical Officer and the Tribu-nal have in relation to revoking theorder of detention;

. the patient’s right to make an appli-cation, or appeal, to the Tribunal;

. the powers that are exercisable by theTribunal;

. how the patient may exercise anysuch right; and

. how the patient may obtain legalassistance as respects any suchright.25

Assistance is to be provided if the patienthas difficulty in communicating or gener-ally communicates in a language other thanEnglish.26

The Scottish Act gives special recogni-tion and status to a person who is formallynominated by the person with mentalillness.27 Where a person is not nominated,cannot be nominated, or declines to be

nominated, the Act recognises the primarycarer as the named person or, in the eventthat the carer declines, the nearestrelative.28

The nominated person initiative isunique. It acknowledges the difficultiesthat may be associated with cliniciansassuming a relationship with a familymember that may not be supported bythe patient, and the advantages of estab-lishing effective and positive communica-tions with a family member who isaccepted and trusted by the person with amental illness.

The legislation also establishes the rightof every person with a mental disorder tohave access to an independent advocate.29

In addition, Part 7 of the Scottish Act setsout the requirements for a treatment planthat are distinguished from, and separateto, psychiatric advance directives. Part 7requires that patients participate in theformulation of treatment plans. Part 8provides for the timely review for personswho are detained informally.30

Considered in full, the legislativescheme suggests a concern to address thecommunicative barriers that limit theopportunity of people living with mentalillness to receive appropriate mental healthcare. In doing so the Scottish Act aims tomaximise the participation of persons inthe medical decisions that affect them. Inthis regard it conforms closely with thespirit of the Convention on the Rights ofPersons with Disabilities by recognising themost fundamental elements necessary forthe realisation of self-determination forpeople in health care settings, particularlymental health care settings.

The Mental Health (Care and Treat-ment) (Scotland) Act 2003 complementsthe Adults with Incapacity (Scotland) Act2000 and the common law. Persons notsubject to the Mental Health (Care andTreatment) (Scotland) Act 2003 maymake advance directives relating to psy-chiatric or mental health treatment under

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the common law.31 These are given statusin the substituted decision-making frame-work of the Adults with Incapacity(Scotland) Act 2000 by the requirementin sub-section 1(4)(a[L1]) that guardian-ship interventions may only be made forthe benefit of the person, and must takeaccount of:

the present and past wishes andfeelings of the adult so far as theycan be ascertained by any means ofcommunication, whether human or bymechanical aid (whether of an interpreta-tive nature or otherwise) appropriate tothe adult.

Sub-section 47(2) of the Adults withIncapacity (Scotland) Act 2000 givesauthority to the treating medical practi-tioner to provide medical treatment that isreasonable in the circumstances in order tosafeguard or promote the physical ormental health of the adult. Pursuant tosub-section 47(7), the Act does notauthorise:

(a) the use of force or detention, unlessit is immediately necessary and onlyfor so long as is necessary in thecircumstances;

(b) action which would be inconsistentwith any decision by a competentcourt;

(c) placing an adult in a hospital forthe treatment of mental disorderagainst his will.

The Adults with Incapacity (Scotland) Actalso enables any person with an interest toappeal against a medical treatment deci-sion,32 and to appeal against a decision asto incapacity.33

England and Wales: DistinguishingCommunity Treatment Orders

In England and Wales, a review of theMental Health Act 1983 commenced withan expert inquiry conducted by the

Richardson Committee in the mid1990s.34 The Richardson Report wasreleased in July 1998 and included arecommendation for the provision ofadvance directives for people living withmental illness.35 After a lengthy andcontested period of debate in which twoproposed Bills were withdrawn by thegovernment in the face of concertedopposition from an alliance of consumersand practitioners, the Mental Health Act2007 was finally adopted.36 The MentalHealth Act 2007 amends the MentalCapacity Act 2005 and the Mental HealthAct 1983.

The Mental Capacity Act 2005 enablesall people with capacity to make directivesabout their future care. Persons are re-garded as lacking capacity if they areunable to make decisions because ofimpairment, or a disturbance in the func-tioning, of their mind or brain at a materialtime. The Act stipulates that a lack ofcapacity cannot be established merely byreference to the person’s age or appear-ance, or to a condition or aspect ofbehaviour, which might lead others tomake unjustified assumptions aboutcapacity.37

The Mental Health Act 1983 enablesinvoluntary patients who are subject tocompulsory community treatment ordersto make a psychiatric advance directive inaccordance with the Mental Capacity Act2005.38 Psychiatric advance directives arenot recognised for involuntary detainedpatients. However, ‘‘authorised persons’’must respect the past and present wishesand feelings of patients39 and provide foraccess to an independent mental healthadvocate.40 At first glance, the provisionsof the English and Welsh scheme appearto mirror at least the essential elements ofthe Scottish model. Unlike the Englishand Welsh provisions, the deep orienta-tion of the Scottish Act toward commu-nication, inclusion, and timely review,embed Scottish psychiatric advance

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directives within a clearer framework ofsupported decision making.

Implementation and Barriers to Access

A common experience of the four jurisdic-tions is the disappointing engagementof both consumers and mental healthprofessionals with psychiatric advance di-rectives. Research in the United States hasconsistently indicated strong, positive sup-port for the concept of psychiatric advancedirectives, but limited utilisation.41 Theliterature suggests that comprehensionand ability to complete the documents arenot significant factors.42 Instead, com-monly encountered barriers are the lackof ready access to the documents in a crisis,a lack of clinician familiarity,43 and legaluncertainty about their application.44 Stra-tegies that have been identified as assistingin crisis access are the use of crisis cards,which may state preferences or specifypersons to be contacted in a crisis,45 and,more recently, the development of electro-nic registers. For example, a nationalelectronic directory, the United StatesLiving Wills Registry, is currently beingdeveloped. The registry will provide onlinestorage and secure access to care planningdocuments.46

Strategies to address legal uncertainlyand improve clinical compliance withadvance directives have included the useof trained facilitators to assist consumersin the development of effective instru-ments, collaborative formulation of direc-tives with the clinical team, and formaljoint crisis planning that involves theconsumer, treating clinicians, the healthservice, independent clinicians, and inde-pendent advocates in the formulation of acrisis plan.47 Strategies to improve clin-ician familiarity with advance directivesfocus on professional education andinclude the MacArthur Foundation sup-porting a new National Resource Centrefor Psychiatric Advance Directives.48 The

effectiveness of these strategies remainsthe subject of ongoing research.49 Swartzet al argue that facilitated psychiatricadvance directives may be a necessaryservice to achieve the promise of provid-ing greater self-determination and better-informed treatment decisions for personswith severe mental illness.50 The newestresearch from the United States points tothe importance of accompanying theintroduction of psychiatric advancedirectives with appropriate resourcing,training, community education, and pro-fessional development.51

As noted above, the impact of theadvance directives in New Zealand hasbeen disappointing. Psychiatric advancedirectives in New Zealand are regarded asthe primary mechanism by which patientwishes can be expressed and made avail-able to clinicians. In response to concernsthat clinicians were not giving full recogni-tion to psychiatric advance directives, theGuidelines to the Mental Health (Compul-sory Assessment and Treatment) Act 1992(NZ), issued by the Ministry of Health inApril 2000,52 sought to reinforce clinicalrecognition of the psychiatric advancedirectives by noting that the concept of‘‘best interests’’, which is recognised as theprinciple underpinning clinical responsibil-ity in the Act, encompasses the requirementthat advance directives must be consideredin the determination of best interests.

In practice, advance directives in NewZealand are generally drafted in collabora-tion with a treating practitioner, althoughthis is not a legislative requirement.53

Collaborative drafting tends to encouragethe support of clinicians by ensuring thatthe treating practitioner has knowledge of,and commitment to, the treatment deci-sions expressed in the advance directives.Criticism of the collaborative model ques-tions whether the practice of therapeuticsupervision or practitioner oversight fun-damentally undermines the independenceof advance directives, because the process

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ensures that practitioner preferred, ratherthan consumer preferred, treatmentdecisions are expressed in the document.54

The comprehensive and detailed pro-visions of the Scottish legislation recog-nise and respond to the difficultiesexperienced elsewhere by adopting asupported decision-making approach.They embed psychiatric advance direc-tives within an overarching obligation formental health professionals to communi-cate with the person to the maximumextent possible. Despite these measures,early anecdotal reports suggest there is adisappointing uptake of advance direc-tives in Scotland. The Mental Health(Care and Treatment) (Scotland) Act2003 was introduced in conjunction witha dedicated programme of research tosupport its implementation and evaluateits impact. These include evaluation of‘‘named persons’’ strategy, new tribunalprocesses, and a 12-month cohort studyof the experiences of service users, theircarers, and service professionals livingand working with the new Act.55 Theresult of the Scottish evaluation will becrucial to informing future internationaltrends about how best to give effect tothe aspiration of people living withmental illness for effective participationin the medical treatment decisions thataffect them.

Discussion

The strongest link between all of thejurisdictions referred to above has beenthe common experience of difficult imple-mentation. Each of the jurisdictions hasattempted to promote the human rights ofpeople living with mental illness by extend-ing general advance directive provisions topeople living with mental illness. In NewZealand, Scotland, and England and Walesthis has been achieved by including inlegislation an express duty to take thewishes of the patient into account.

One aspect of particular interest is thecontrasting approaches of New Zealandand Scotland. New Zealand has relied onthe general provisions for advance direc-tives, linking it into the psychiatric contextby the brief reference to the patient’swishes in section 5 of the New ZealandAct. The 2000 Guidelines56 explicitly retain‘‘best interests’’ as the guiding principle ofthe Act. The recognition that the clinicalobligation to act in the ‘‘best interests’’ ofthe patient is a barrier to the effectiveimplementation of psychiatric advancedirectives is reflected in the explicit exhor-tation in the 2000 Guidelines to include thecontent of advance directives in the con-sideration of the patient’s best interests.The New Zealand experience suggests theimportance of clinical engagement withpsychiatric advance directives if they areto provide a measure of self-determinationfor people living with mental illness.

In Scotland, the legislation has shiftedaway from the concept of ‘‘best interests’’entirely. The Scottish Act acknowledgesthe wishes of the patient, but uses thelanguage of participation, benefit, and non-discrimination (rather than ‘‘best inter-ests’’) to guide the conduct of personsunder the Act. These principles embed theadvance directive provisions in a detailedand comprehensive framework of sup-ported decision-making. The shift awayfrom the traditional ‘‘best interests’’ prin-ciple in the legislation is accompanied by astrong engagement with recovery principlesamongst mental health professionals.57

Preliminary reports from Scotland havesuggested a disappointing uptake of psy-chiatric advance directives.58 Evaluationsfrom Scotland about the implementationof psychiatric advance directives provisionsare likely to be highly instructive.

Conclusion

The challenge for law reform in relation toadvance directives is not to abandon the

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concept, but to understand the processesthat will be necessary to support theireffective introduction. There is little em-pirical evidence available that might help toflesh out an accurate analysis of the reasonsthat underpin success or failure of differentpsychiatric advance directive strategies. Onits face, the adoption of psychiatric ad-vance directive provisions goes towardsatisfying the requirement that legislativeregimes are non-discriminatory and upholdthe principle of equality before the law.International experience suggests, however,that the recognition of advance directivesalone is insufficient to meet internationalhuman rights obligations or to give effectto a human rights approach in mentalhealth law.

The Convention on the Rights ofPersons with Disabilities strongly empha-sises the importance of autonomy, self-determination, social participation, andsupported decision-making. Its deferenceto the underlying principles of non-discrimination and equality before thelaw indicates that psychiatric advancedirectives represent only one componentof an integrated human rights approach.The Convention challenges paternalisticassumptions about the ability of peopleliving with mental illness to make deci-sions for themselves and challenges theapplication of the ‘‘best interests’’ princi-ple. It also challenges the commonassumption that people living with mentalillness automatically lack capacity. To theextent that these assumptions underpinthe formulation of modern Western men-tal health laws, the Convention calls for anew approach. Internationally, the Scot-tish laws come closest to acknowledgingthese issues and addressing them inlegislation. Nevertheless, the gap betweenlegislative intent and ‘‘practice on theground’’, which is observed in all jurisdic-tions, points to the importance of sup-porting the introduction of psychiatricadvance directives, in whatever form,

with programs to encourage acceptanceand facilitate their effective use.

Australian law currently lags wellbehind international practice regardingadvance directives. In considering inter-national experience for the purpose of lawreform in Australia, the intersecting dimen-sions of law, service context, and humanrights must be taken into account. Thechallenge ahead is not merely to copyinternational examples, but to attend todeeper human rights principles that under-pin the Convention on the Rights of Personwith Disabilities.

Notes

1. This article uses the term ‘‘psychiatricadvance directives’’ to refer generically tomechanisms that enable competent personsto dictate medical treatment choices inanticipation of future periods of incapacity.In the literature, the terms ‘‘psychiatricadvance directives’’ (PADS) and ‘‘livingwills’’ are often used interchangeably. Otherterms include ‘‘advance agreements’’, ‘‘pre-ference plans’’, ‘‘consent-in-advance instru-ments’’, ‘‘advance treatment authorisations’’or ‘‘future treatment plans’’. Some commen-tatorsmake a distinction between living willsas informal documents, and advance direc-tives as legally binding instruments. The term‘‘Ulysses Agreements’’ or ‘‘Ulysses con-tracts’’ generally refers to a specific type ofbinding advance directive and relates todebates about irrevocable advancedirectives.

2. Reviews of mental health legislation havebeen completed in New South Wales andthe Northern Territory, and are on foot inWestern Australia, South Australia,Queensland, Tasmania, the ACT and Vic-toria. ACT: There is a current evaluation ofthe Mental Health Strategy & Action Plan2003–2008. Responses and submissionclosed in December 2007. New SouthWales: the Mental Health Act 2007 com-menced operation on 16 November 2007.NT: the Mental Health and Related Ser-vices Act Amendment Act 2007 commencedoperation in 2007. Queensland: the MentalHealth Act 2000 commenced operation on28 February 2002. An independent reviewof forensic provisions was conducted byMr Brendan Butler AM Sc in 2006:

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Promoting Balance in the Forensic MentalHealth System 5http://www.reviewmha.com.au/4 accessed 16 April 2008. SouthAustralia: an Issues paper was published in2004, followed by a Final Report: IBidmeade, Review Committee on MentalHealth Legislation, Paving the Way: Re-view of Mental Health Legislation in SouthAustralia (2005) 5http://www.health.sa.gov.au/mentalhealth/Default.aspx?tabid¼364 accessed 21 November 2008. Recom-mendation 12.1 advises that advancedirectives by consumers to cover the timeswhen they are temporarily incapacitatedshould be given legal recognition by theplanned Advanced Directives Act. TheMental Health Bill 2007 was revised inresponse to public comment. The MentalHealth Act 2009 is not yet in force. Itincludes provision for treatment plans:5http://www.health.sa.gov.au4 accessed15 December 2009. Tasmania: the finalreport of a review of mental health servicesrecommends improved administration ofthe Mental Health Act: Department ofHealth and Human Services of Tasmania,Bridging the Gap Evaluation (Final Report,May 2008) [Recommendation 5.7]. A reviewis currently underway. Victoria: A review ofthe Mental Health Act (1986) Vic wasannounced inMay 2008. Terms of referenceare available at 5http://www.health.vic.gov.au/mentalhealth/mhactreview/index.htm4 accessed 20 November 2008. Wes-tern Australia: Reviews of the MentalHealth Act (1996) and the Criminal Law(Mentally Impaired Defendants) Act (1996)commenced in 2003. Details are available at5http://www.health.wa.gov.au/mhareview/index.html4 accessed 20 November 2008.

3. TS Szasz, ‘The Myth of Mental Illness’(1960) 15(2) American Psychologist 113;TS Szasz, The Myth of Mental Illness:Foundations of a Theory of PersonalConduct (Hoeber-Harper, New York1961); TS Szasz, ‘The Psychiatric Will’(1982) 37(7) American Psychologist 762.

4. The Human Rights Act 1993 (NZ): Hu-man Rights Act 1998 (UK); CanadianHuman Rights Act 1985.

5. Convention on the Rights of Persons withDisabilities (adopted 13 December 2006,opened for signature 30 March 2007, ente-red into force 3 May 2008). For an extendeddiscussion of the Convention, see the specialedition ‘International Trends in MentalHealth Law’ (2008) 26(2) Law in Context.

6. A Lawson, ‘The United Nations Conven-tion on the Rights of Persons withDisabilities: New Era or False Dawn?’(2007) 34(2) Syracuse Journal of Interna-tional Law & Commerce 34 563, 618.

7. A Dhanda, ‘Legal Capacity in the Dis-ability Rights Convention: Stranglehold ofthe Past or Lodestar for the Future?’(2007) 34(2) Syracuse Journal of Interna-tional Law & Commerce 429.

8. Human Rights Acts 2004 (ACT); Charterof Human Rights and Responsibilities Act2006 (Vic), which came into force on 1January 2008.

9. J Dawson, ‘Community Treatment Ordersand Human Rights’ (2008) 26(2) Law inContext 148.

10. M Swartz and J Swanson, ‘PsychiatricAdvance Directives and Recovery-Or-iented Care’ (2007) 58(9) Psychiatric Ser-vices 1164.

11. J Atkinson, Advance Directives in MentalHealth: Theory, Practice and Ethics (Jessi-ca Kingsley Publishers, London & Phila-delphia 2007).

12. Re C (Adult Refusal of Treatment) [1994] 1WLR 290, cited in A Maclean, ‘AdvanceDirectives and the Rocky Waters ofAnticipatory Decision-making’ (2008)16(1) Medical Law Review 1, 5.

13. J Munby, ‘Rhetoric and Reality: theLimitation of Patient Self-determinationin Contemporary English Law’ (1988) 14Journal of Contemporary Health Law andPolicy 315, 317.

14. Cf. Maclean (n 12). Maclean attributessome measure of assessment of ‘‘quality oflife’’ in the English jurisprudence despiteavowed deference to the principle of self-determination. A useful summary of theprovisions found in United States jurisdic-tions is provided by Atkinson (n 11) 57.

15. Article 5 ‘‘Every consumer may use anadvance directive in accordance with thecommon law’’ 5http://www.hdc.org.nz/theact/theact-thecodedetail4 accessed 16April 2008.

16. 5http://www.legislation.govt.nz/act/public/1994/0088/latest/DLM333584.html4 acces-sed 16 April 2008.

17. Standard 16, National Health Sector Stan-dards NZ S81434:2001.

18. Mental Health (Compulsory Treatmentand Assessment) Act 1992 (NZ) ss 7Aand5. See T Minkowitz, No Force Advo-cacy for Users and Survivors of Psychiatry(Mental Health Commission, Wellington

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2006); Minister of Health, Te Tahuhu:Improving Mental Health 2005–2015: TheSecond New Zealand Mental Health andAddiction Plan (Ministry of Health, Well-ington, 2005).

19. The Mental Health (Care and Treat-ment)(Scotland) Act 2003 came into effecton 5 October 2005 5http://www.opsi.gov.uk/legislation/scotland/acts2003/asp_20030013_en_2#pt1-l1g14 accessed 24 February 2008.

20. New Directions: Report on the Review ofthe Mental Health (Scotland) Act 1984(SE/2001/56, 2001) (the Millan Report)5http://www.scotland.gov.uk/health/mentalhealthlaw/millan/Report/rnhs.pdf4 acc-essed 21 November 2008.

21. Mental Health (Care and Treatment)(Scotland) Act 2003 s 275.

22. Ibid s 276.23. Ibid s 276(3).24. Ibid s 276(8).25. Ibid s 260.26. Ibid s 261.27. Ibid s 250. Section 255 requires the mental

health officer to ascertain who the relevantperson is. Subsequent sections set out theresponsibilities of the named person underthe Act.

28. Ibid s 251. The meaning of ‘‘nearestrelative’’ is set out in section 254.

29. Ibid s 259. The onus in on the service andHealth Board to ensure the patient isassigned an independent advocate.

30. The person, or others on behalf of thepatient (including anyone having an inter-est in the welfare of the patient), mayapply to the Tribunal for an order requir-ing managers of the hospital in which thepatient is being unlawfully detained tocease their detention. These provisionreflect the decision of H.L. v the UnitedKingdom (App no 45508/99) [2004] ECHR45508/99.

31. The Adults with Incapacity (Scotland) Act2000 provides for decisions about theadult’s property or financial affairs, orabout their personal welfare, includingsome comment on medical treatmentdecisions to be made on behalf of adultswho lack legal capacity to do so themselvesbecause of mental disorder or inability tocommunicate. The Act does not containadvance directive provisions as does theequivalent Act in England and Wales.

32. Ibid s 52.33. Ibid s 14.

34. The review coincided with the introductionof the Human Rights Act 1998 (UK).

35. Department of Health, Report of the ExpertCommittee: Review of the Mental HealthAct 1983 (1999) (Richardson Report) 160–166.

36. J Bindman, S Maingay and G Szmukler,‘The Human Rights Act and MentalHealth Legislation’ (2003) 182 BritishJournal of Psychiatry 91.

37. Mental Capacity Act 2005 (England andWales) s 2.

38. Provided they are executed in accordancewith the provisions of the Mental CapacityAct 2005 (England and Wales).

39. Mental Health Act 2007 (England andWales) s 8.

40. Ibid s 30.41. J Swanson et al, ‘Psychiatric Advance

Directives Among Public Mental HealthConsumers in Five US Cities: Prevalence,Demand and Correlates’ (2006) 31 Journalof the American Academy of Psychiatryand the Law 43; M Amering and MSchaffer, ‘Advance Directives EmpowerUsers and Need Professionals for Imple-mentation’ (2007) 7(Suppl 1) BMC Psychia-try S110; M Amering, P Stastny and KHopper, ‘Psychiatric Advance Directives:Qualitative Study of Informed Delibera-tions by Mental Health Service Users’(2005) 186 British Journal of Psychiatry247; JW Swanson et al, ‘Facilitated Psy-chiatric Advance Directives: A RandomizedTrial of an Intervention to Foster AdvanceTreatment Planning among Persons withSevere Mental Illness’ (2006) 163(11) Amer-ican Journal of Psychiatry 1943.

42. Amering and Schaffer (n 41) 110.43. Swanson et al (n 41).44. G Szmukler, ‘Advance Statements in

Psychiatry’ (2006) 6(2) Psychiatry 49.45. K Sutherby and G Szmukler, ‘Crisis Cards

and Self-help Initiatives’ (1998) 22 Psy-chiatric Bulletin 4.

46. Swartz and Swanson (n 10).47. Szmukler (n 44) 4948. Szmukler (n 44) 50.49. Amering and Schaffer (n 41) 110.50. M Swartz, J Swanson and E Elbogen,

‘New Research on Psychiatric AdvanceDirectives’ (2007) 7(Suppl 1) BMC Psy-chiatry 111.

51. Szmukler (n 44) 30.52. Ministry of Health, Guidelines to the

Mental Health (Compulsory Assessmentand Treatment) Act 1992 (April 2000)

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19n20 5http://www.moh.govt.nz4 acces-sed 16 April 2008.

53. M Epstein, ‘Advance Directives’, Commu-nity Forum on Advance Directives, 22 June2006.

54. Epstein (n 53).55. JM Atkinson et al, ‘The Early Impact of

the Administration of New CompulsoryPowers Under the Mental Health (Careand Treatment) (Scotland) Act 2003’(2007) Health and Community Care: Re-search Findings No. 57/2007.

56. Ministry of Health (n 52).57. See eg Scottish Executive, Rights, Relation-

ships and Recovery: The Report of the

National Review of Mental Health Nursingin Scotland (Scottish Executive, Edinburgh2006); Scottish Executive, Changing Lives:The Report of the 21st Century SocialWork Review Group (Scottish Executive,Edinburgh 2006); Department of Health,National Institute for Mental Health inEngland and the Royal College of Psy-chiatrists, New Ways of Working forPsychiatrists: Enhancing Effective Person-centred Services Through New Ways ofWorking in Multidisciplinary and Multi-agency Contexts (October 2005).

58. Statement by the ScottishMinistry of Health(Personal communication 9th June 2008).

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