What Does "Least Restrictive" or "Less Restrictive" Mean in Mental Health Law? Contradictions and Confusion in the Case of Queensland, Australia.

Most legal systems in the West allow for involuntary treatment of mental illness, usually on the basis that without such treatment the person would be a danger to themselves or others. While historically the mental health law jurisdiction has been a protective one, it has become increasingly influenced by civil rights and international human rights law, which privilege the value of autonomy and the right to personal liberty.In this regard, an important principle that has developed is that decisions about treatment for mental illness must be the "least restrictive alternative" available. This may mean, for example, that a person is supported to make a decision on treatment for their mental illness, according to evolving practices of "supported decision-making," so that their legal capacity is still recognized. If involuntary treatment is required, the "least restrictive" approach demands that the liberty and integrity of the person be respected to the greatest extent possible.The Mental Health Act 2016 (Qld) ("MHAQ") prescribes that decision-making on non-consensual treatment should preferably be done according to what it calls the "less restrictive way." However, the "less restrictive way" is defined as decision-making by patients under advance directives, and also by substitute decision-makers, including by attorneys or guardians not appointed by the patient, usually a family member. The MHAQ states that these arrangements are distinguished from and prioritized over what it calls "involuntary treatment and care," where the decision for non-consensual treatment is made by the treating team.However, we argue that these arrangements are not in fact "less restrictive" of the person's autonomy, but are less accountable forms of decision-making. Decision-making by treating teams under involuntary treatment provisions is subject to higher levels of transparency and accountability. In Australian states these decisions are reviewed regularly by a specially constituted, independent mental health tribunal. By contrast, treatment decisions made under the "less restrictive way" are not even defined as constituting involuntary treatment, and are outside the scope of the tribunal's review.In the case of decision-making by advance directive, we acknowledge that this is widely considered to be "less restrictive" of a person's right to legal capacity and autonomy. However, in these cases, the patient may actually be refusing treatment at the time the advance directive is relied upon. This raises serious questions as to whether such "voluntary" admissions and treatment should not be subject to the same oversight and accountability as involuntary ones. Patients have a right to less restrictive forms of decision-making, but when deprived of their liberty, they also have a right to adequate safeguards established by law.The term "less restrictive" in the MHAQ is largely misplaced and misleading. In the case of advance directives, it deflects attention from the potentially restrictive nature of the treatment and the lack of accountability. Even more problematically, the privileging of private substitute decision-making under the less restrictive way ignores the real risk of abuse and undue influence within the personal and family sphere. We argue that the "less restrictive way" under the MHAQ is a step backwards for the rights of patients, in that it shifts power to family on the risky assumption that decision-making by these less supervised individuals is more likely to uphold human rights. We believe that this reflects a pre-feminist assumption that the informal, family, private sphere is nearly always safe. This is a contentious assumption, which nevertheless underpins much unproblematized thinking and advocacy on supported decision-making. This issue also highlights the need for further elucidation and discussion on what least restrictive means in the context of involuntary treatment for mental illness.

Assisted Deaths Prior to the Voluntary Assisted Dying Act 2017 (Vic): Would Patients Have Met the Eligibility Criteria to Request Voluntary Assisted Dying?

Unlawful assisted dying practices have been reported in Australia for decades. Voluntary assisted dying (VAD) is now lawful in Victoria and Western Australia in limited circumstances and will soon be lawful in a further four Australian States. This article examines nine cases involving unlawful assisted dying practices in Victoria in the 12 months prior to the commencement of the Voluntary Assisted Dying Act 2017 (Vic) in 2019. It explores whether, if that Act had been in operation at the relevant time, these patients would have been eligible to request VAD, having regard to their decision-making capacity and their disease, illness or medical condition. Many of these patients would not have been eligible to request VAD had the legislation been operational, primarily because they lacked decision-making capacity. As VAD is lawful only in a narrow set of circumstances, unlawful assisted deaths may continue to occur in those States where voluntary assisted dying is legal.

Mapping the Legal Regulation of Voluntary Assisted Dying in Victoria: The Coherence of a New Practice within the Wider Legal System.

This article undertakes the first comprehensive mapping exercise of the legal regulation of voluntary assisted dying (VAD) in Victoria. Despite the detailed nature of the Voluntary Assisted Dying Act 2017 (Vic), this analysis reveals that VAD is also regulated by a diverse array of other law: a further 20 pieces of legislation and 27 broad areas of law. In some instances, this legal regulation beyond the principal VAD legislation is significant for how the VAD system operates in practice. The article then identifies the implications of this mapping exercise for the coherence of the law, focusing in particular on the domains of consistency, comprehensiveness, and completeness. Findings include identifying areas of significant incoherence and the implications of this for law reformers, policymakers, and users of the law, including patients, families, health practitioners, and health service providers.

Voluntary Assisted Dying by Practitioner Administration Is Not Suicide: A Way Past the Commonwealth Criminal Code?

Five Australian States - Victoria, Western Australia, Tasmania, South Australia and Queensland - have now legalised voluntary assisted dying (VAD). These State legislative schemes intersect with provisions in the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) which prohibit using electronic communication to counsel, promote, or provide instruction on "suicide". These provisions may prevent some conversations and assessments relating to self-administration of VAD occurring via telehealth, thereby restricting access for prospective VAD patients in regional and remote areas. However, as practitioner administration of VAD is not "suicide", the Commonwealth Criminal Code does not apply. The Commonwealth law creates the absurd result that the same conversation conducted via telehealth is illegal when contemplating VAD by self-administration, but legal when discussing practitioner-administered VAD. To avoid this, we advocate amending the Code to remove the inconsistency with state VAD laws. We also recommend State legislatures consider permitting greater access to VAD by practitioner-administered VAD.