Using the Victorian Charter of Rights and Responsibilities

Using the Victorian Charter of Rights and Responsibilities

While the framework of the Charter does not enable a person to bring a stand-alone cause of action for breach of Charter obligations, it can be a useful tool for lawyers to bolster arguments at the tribunal. For example, the interpretation of the treatment criteria and application of procedural fairness should be done in light of the fair hearing right at s. 24.

A person retains numerous rights notwithstanding being made a compulsory patient. The Charter can be an effective tool to advocate for any restrictions to be minimised.

Compulsory treatment necessarily entails various restrictions on a person’s human rights. This is permitted under s.7(2) of the Charter. However, a careful weighing exercise should be undertaken regarding these rights before the tribunal acts to limit them. These include: 

  • the nature of the right
  • the importance and purpose of the limitation
  • the nature and extent of the limitation
  • the relationships between the limitation and its purpose, and 
  • any less restrictive means reasonable available to achieve the purpose the limitation seeks to achieve.

In your advocacy, remind the tribunal of this weighing exercise and apply it to the individual fact of your client’s case: 

  • Which rights are impacted? 
  • How much will an order continue to limit those rights? 
  • What is the limitation that is being proposed? (inpatient treatment obviously impacts on a person’s right to liberty and freedom of movement, all orders impact on the right to be free of medical treatment without consent)
  • What would the purpose of the order be? 
  • Could it be achieved by less restrictive means? (which interacts directly with s. 5(d)).

Designated mental health services and the tribunal are public authorities and therefore must comply with the Charter at all times (s 38). The tribunal is obliged to interpret the Mental Health Act 2014 in a way that is compatible with human rights, as much as possible while retaining the purpose of the legislation. Part of this purpose is to allow for compulsory mental health treatment, but it is possible to argue using s. 7(2) that restrictions on your client’s rights is not justified or should be kept to a minimum.

In Antunovic v Dawson [2010] VSC 377 the Supreme Court considered the lawfulness of a limitation on the rights of compulsory mental health patient, Ms Antunovic, who was subject to a community treatment order. Ms Antunovic’s authorised psychiatrist had ordered her to live in a particular place. The Court held that this gave rise to a limitation on Ms Antunovic’s freedom of movement (s 12) and right to liberty (s 21). The Court found that there was no lawful authority for this limitation, and therefore the authorised psychiatrist had acted incompatibly with the Charter. In coming to this conclusion, the Court held: 

‘For a public authority under the Charter to impose restraints on the liberty of patients without lawful authority would ipso facto be unlawful under s 38(1) of the Charter: restraints of this nature would usually engage the human rights of the individual (especially freedom of movement in s 12), the limitation would not have statutory protection under s 38(2) and could never meet the legality requirement in s 7(2) that the restraint be ‘under law’.’ 

The Court therefore made an order for the release of Ms Antunovic.

For more case studies and examples see the VLA/Human Right Law Centre Advocacy Guide

Relevant Charter rights 

Section 8: Recognition and equality before the law and freedom from discrimination  

  • In PBU & NJE v Mental Health Tribunal Justice Bell held that people with mental illnesses should not be discriminated against on the basis of that illness, nor should they be held to a higher standard that people without mental illness who retain the freedom to make decisions about their medical treatment that medical practitioners may deem unwise. This engages the s. 8 right to equality before the law and freedom from discrimination. See PBU at [280].

Section 10: Protection from torture and cruel, inhuman or degrading treatment  

  • This right includes the right not to subjected to medical or scientific experimentation or treatment without a person’s full, free and informed consent (10(b)). Compulsory treatment including ECT treatment which is discussed in PBU restricts a person’s right to make decisions about their own medical treatment.
  • If a person is physically restrained or placed in seclusion this may also engage this right.

Section 12: Freedom of movement

  • Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.
  • Being detained in hospital or forced to attend a community mental health service for treatment and appointments can interfere with a person’s freedom of movement. 
  • This right can be used to advocated that a person be discharged in order to go or return interstate or be transferred to an interstate service. Some states have protocols in place to facilitate this.

Section 13: Right to privacy and reputation

  • Treatment against a person’s wishes, for example, fortnightly injections of antipsychotic medication or ECT can interfere with their right to privacy and bodily integrity. See PBU & NJE v Mental Health Tribunal for extensive useful discussion.
  • This right also encompasses the right to not have home or family arbitrarily interfered with. Where a person’s home life or family life is disrupted by treatment, this right may be engaged.

Section 14: Freedom of thought, conscience, religion and belief and section

  • Where a person has beliefs or thoughts that are considered by the mental health service to be delusional, and that person is subjected to compulsory treatment in order to eradicate those thoughts, the s 14 right to freedom of thought, conscience religion and belief may be engaged.
  • See EDY [2015] VMHT 37 (12 March 2015). In this case, while the tribunal was satisfied that EDY had a disturbance of thought in the form of ‘delusions’, it found that the existence of these delusions were not distressing to her, and did not constitute a ‘serious deterioration’ in her mental health and therefore revoked her treatment order. 

Section 15: Freedom of expression

  • This right may be engaged when a person is subjected to compulsory treatment or has their right to communications under the Act curtailed while in hospital due to their behaviour (such as writing copious letters to politicians or making multiple calls to government agencies). This scenario could potentially also engage the s. 18 right to participate in public life. 

Section 19: Cultural rights

  • Inpatient treatment that restricts cultural practice for example the freedom to be in a community with other persons of that background, to enjoy culture, practice religion or speak one's language may engage s 19. See AQH [2017] VMHT 24 (5 April 2017). 

Section 21: Right to liberty and security of person

  • A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law (s 21(3)). Being detained in a psychiatric unit will engage a person’s right to liberty and the lawfulness of that detention should be subject to scrutiny.

Section 22: Right to humane treatment when deprived of liberty

  • Section 22 states that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. If your client feels this has not been the case, it may be argued that their views and preferences regarding discharge or treatment in the community should be given greater weight.

Section 24: Right to a fair hearing

  • Section 24 of the Charter can be relied on to:
    • ensure that a patient is allowed to appear at their hearing (s 184)
    • ensure that a patient has the services of an interpreter, if required (s 185) and
    • argue against the Tribunal withholding documents from the patient (s 192). 

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