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

Abstract

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.

Introduction

Over the past forty years, the doctrine of the “least restrictive alternative” has underpinned and driven deinstitutionalization of people with mental illness in both the United States and Australia, although involuntary treatment through commitment continues. There is a common understanding that the doctrine allows for restrictions to a person’s civil rights only to the extent that such restrictions further the legitimate aim of providing appropriate and effective treatment and care. ¹ The critical civil rights at stake are rights to liberty and security of the person, so that less restrictive treatment is commonly understood to be that which minimizes inpatient care and avoids or minimizes physical coercion and restraint. ²

Since the adoption by the United Nations in 2006 of the Convention on the Rights of Persons with Disabilities (“CRPD”), ³ the least restrictive alternative doctrine has also been applied to the right to have legal capacity recognized on an equal basis with others in article 12(2). Article 12(3) provides that people with disability should be provided with supports to exercise legal capacity and have their decisions recognized under what has become known as the law and practice of supported decision-making. ⁴ The use of supported decision-making together with advance health directives is frequently described as “less restrictive” of the right to legal capacity than substitute decision-making including in the form of involuntary treatment and adult guardianship (“guardianship”). ⁵

However, the above apparent consensus on understandings of the least restrictive doctrine belies confusion in its application. ⁶ This article examines the use of the terminology of “the less restrictive way” in the Mental Health Act 2016 (“MHAQ”) in the Australian state of Queensland (“Qld”), concluding that it exemplifies just such confusion.

The first part briefly explains the origins of the least restrictive alternative doctrine in U.S. civil rights law and its subsequent application to civil commitment for mental health treatment. It describes the doctrine’s adoption in Australia’s mental health laws, and its application to the right to legal capacity. The second part describes the civil commitment process in Queensland and how the MHAQ prescribes two alternative pathways for decision-making on treatment against the patient’s will (as expressed at the time the treatment is provided). We call these the “statutory pathway” and the “preferred pathway” - the latter described in the MHAQ as the “less restrictive way.” Part three analyses and compares the two pathways to conclude that the preferred pathway or “less restrictive way” is not’ less restrictive’ in any of the commonly held understandings of that expression. It is, however, less transparent and accountable, compromising patients’ rights to adequate legal safeguards when deprived of liberty. We question why this misnomer has occurred, and its implications. Part four concludes by admonishing against uncritical acceptance of the legitimacy of references to the “least (or less) restrictive alternative” in mental health law and policy.

I. Involuntary treatment for mental illness

Most Western nations allow for involuntary treatment of mental illness authorized under processes of civil commitment. ⁷ Involuntary mental health treatment commonly includes coercive detention, medical treatment by pharmacological, psychological and sometimes physical methods, and (less commonly) segregation or physical restraint. ⁸ It is not disputed that these treatments are restrictive to a range of individual rights, chief among them the right to liberty and security of the person, ⁹ the right to freedom of movement, and the right to bodily integrity. ¹⁰ With the adoption by the United Nations in 2006 of the CRPD, involuntary treatment has also been recognized as restricting a person’s article 12 right to legal capacity and autonomy in decision-making. ¹¹

The CRPD was ratified by Australia in 2008, ¹² and while the U.S. Senate has failed to ratify it, ¹³ the convention has nevertheless been and continues to be extremely influential in the ongoing critique and reform of mental health and guardianship laws in the United States, ¹⁴ Australia ¹⁵ and internationally. ¹⁶ While article 12 has been interpreted by the United Nations and others as requiring abolition of involuntary treatment and all forms of substitute decision-making including guardianship, ¹⁷ there has also been widespread opposition to that radical interpretation, especially in the mental health sector. ¹⁸ For now, at least, (if not for the foreseeable future) Western nations including the United States and Australia continue to impose involuntary treatment for mental illness under civil commitment processes.

A . ‘Least Restrictive Alternative’ - Common Understandings in Mental Health Law

The least restrictive alternative doctrine was originally a general one, invoked in interpreting and applying various U.S. constitutional civil rights and freedoms, proposing “…that governmental action must not intrude upon constitutionally protected interests to a degree greater than necessary to achieve a legitimate purpose.” ¹⁹ From the 1970s in the United States, the doctrine began to be applied specifically to civil commitment law to mitigate the impact of civil rights violations inflicted by involuntary treatment. ²⁰ In 1991, mandates for “least restrictive” treatment were included in the United Nations’ Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) ²¹ (“U.N. Principles”) and at around the same time, the least restrictive alternative first appeared in mental health laws of the Australian states and territories. ²²

When first introduced into U.S. and Australian mental health law and policy, the least restrictive alternative doctrine drove the move to deinstitutionalization, with treatment in the community widely considered as less restrictive of individual liberty rights than inpatient treatment. ²³ The U.N. Principles provide that a person with severe mental illness may be admitted to a mental health facility “in accordance with the principle of the least restrictive alternative [emphasis added]” in only two situations: first, where failure to admit a person to a facility “is likely to lead to a serious deterioration in his or her condition;” and second, where “appropriate treatment … can only be given by admission to a mental health facility [emphasis added].” ²⁴

Following de-institutionalization, the doctrine started to be used in the context of civil commitment itself. ²⁵ This meant that for inpatients, coercion, detention and physical restraint were required to be minimized and used only as a last resort or when they were the “least restrictive alternative” available. ²⁶ For involuntary treatment of outpatients, the least restrictive alternative would be “outright release,” as opposed to still being subject to a range of conditions relating to medication, follow up appointments, activities or movements. Outpatient or community treatment as regulated by mental health laws is still involuntary to the extent that failure to adhere to its conditions (including by refusing medication) may lead to treating practitioners or others seeking the patient’s readmission into hospital. ²⁷

References to the least restrictive alternative are threaded throughout the mental health laws of Australia’s states and territories, including Queensland. ²⁸ The Mental Health and Wellbeing Act 2022 (Vic) provides that mental health services must be provided to people “…with the least possible restriction of their rights, dignity and autonomy…” ²⁹ and other states’ and territories’ mental health laws similarly provide that people be treated in the “least restrictive environment” ³⁰ or “least restrictive setting.” ³¹ The MHAQ provides that its objects

“….are to be achieved in a way that— (a) safeguards the rights of persons; and (b) is the least restrictive of the rights and liberties of a person who has a mental illness” and that:

…a way is the least restrictive of the rights and liberties of a person who has a mental anrequired to protect the person’s safety and welfare or the safety of others [emphasis added]. ³²

All Australian mental health laws explicitly include options for involuntary treatment both in hospital and in the community. ³³ In Queensland, as in most other states, the legislation expressly provides that involuntary treatment as an inpatient is justified only where there is no “less restrictive alternative,” ³⁴ and seclusion and physical restraint of inpatients can only be used as a last resort. ³⁵ Treatment considered to be particularly intrusive on bodily integrity such as electroconvulsive therapy and psychosurgery are much more strictly regulated, and permitted only when other available methods of treatment have been unsuccessful. ³⁶

B. The Right to Legal Capacity and “Less Restrictive” Alternatives

Underlying all of the above calibrations of “least” and “less” restrictive is the understanding that involuntary treatment is always more restrictive than voluntary treatment because involuntary treatment impinges on the fundamental right to make decisions about our own lives. As described above, the CRPD articulates, for the first time, a right for people with disability (including those experiencing mental illness) to have their legal capacity or decision-making rights recognized on an equal basis with others. It further states that people with disability must be provided with supports to exercise legal capacity and make their own decisions. ³⁷

Supported decision-making is still in development, but it is agreed that supports may be in the form of mentoring, communication assistance or advocacy that assist people in making decisions and having their legal capacity recognized. ³⁸ Supported decision-making is underpinned by the value of autonomy and the practice of ensuring that a person’s will and preferences are respected and acted upon to the greatest extent possible. The MHAQ only allows for involuntary treatment when a patient lacks capacity; ³⁹ so supported decision-making can enable a person to have their legal capacity recognized and thus avoid civil commitment. ⁴⁰

Guardianship legislation in Queensland also only allows for the appointment of a guardian if an adult lacks capacity, ⁴¹ and the Guardianship and Administration Act 2000 (Qld) (“GAA”) provides that alternatives to guardianship that are “least restrictive” of legal capacity are preferred. The context makes it clear that “least restrictive” alternatives include supported decision-making and the use of advance health directives, both of which are more respectful of an adult’s autonomy. ⁴²

II. The Legislative Framework in Queensland for Involuntary Treatment

The short survey above is intended to reflect common understandings of how the least restrictive alternative doctrine is understood to apply in mental health and guardianship law, and yet we acknowledge that its meaning and application are contested. ⁴³ Miller observes that: “….LRA is a concept which has as many meanings as the number of people who use it. It serves to advance and legitimize several very different, and often conflicting, viewpoints…” ⁴⁴ Our aim is not to interrogate all these interpretations, but to investigate one particularly contradictory and confusing application in the MHAQ.

The MHAQ now provides two alternative pathways for decision-making on behalf of a person with mental illness. The first we refer to as the “statutory pathway” and is the traditional way in which decisions are made by a psychiatrist to authorize involuntary mental health treatment. The second, called in the MHAQ the “less restrictive way” and also referred to in this article as the “preferred pathway,” is described and analyzed further below. Our analysis concludes that treatment provided under the preferred pathway does not fit squarely within any of the commonly recognized understandings of “less restrictive” alternatives.

A . The “Statutory Pathway” – Treatment Authorities

Under the statutory pathway, a decision (called a “treatment authority”) is made for involuntary treatment by a clinician, usually a psychiatrist. A treatment authority is a heavily regulated decision that is also subject to review by the independent Mental Health Review Tribunal (“Tribunal”). ⁴⁵ A clinician can only make a treatment authority if the “treatment criteria” apply and there is no “less restrictive way” of providing treatment and care. ⁴⁶ The treatment criteria require that the person has a mental illness; ⁴⁷ lacks capacity to consent to be treated; ⁴⁸ and if not treated, will likely cause “..imminent serious harm to the person or others…,” or suffer “serious mental or physical deterioration.” ⁴⁹

A treatment authority must be documented in an approved form incorporating prescribed information, including whether the person is an inpatient or in the community and “the nature and extent of the treatment and care to be provided.” ⁵⁰ The clinician making the decision must discuss the proposed treatment and care with the patient. ⁵¹ After making the treatment authority, the clinician must advise the patient of the decision, explain its effect and give a copy to the patient’s “nominated support person” and any guardian or attorney if requested. ⁵² When a patient subject to a treatment authority is an outpatient in the community, the clinician must also explain the patient’s obligations (e.g. to attend appointments and take medication) and provide a statutory notice summarizing that information. ⁵³

A patient subject to a treatment authority, whether inpatient or community, has several statutory protections. First, they can nominate someone to be their support person. ⁵⁴ A nominated support person can request a psychiatrist’s report and must be given prescribed notices and access to confidential information. ⁵⁵ They can also act as the patient’s support person or representative in Tribunal reviews (see further infra). ⁵⁶ Second, and critically, the treatment authority is subject to legislatively mandated, ongoing clinical reviews under prescribed schedules. When a treatment authority is made by a doctor who is not a psychiatrist, then a psychiatrist must review it within three days (or seven for a remote service) and either confirm or revoke it. ⁵⁷ The MHAQ prescribes regular clinical assessments for patients subject to treatment authorities, at a minimum every three months, ⁵⁸ as well as at any time the clinician considers the treatment criteria may no longer apply. ⁵⁹ Each assessment must be discussed with the patient, and the decision recorded in their medical records. ⁶⁰

Third, treatment authorities are subject to formal and regular external review by the Tribunal. Reviews must occur within twenty-eight days of a treatment authority being made; within six months of the first review; within six months of the second review, and then at least every twelve months. ⁶¹ Additional reviews can also be requested by: the patient; their nominated support person; any other person with “…a sufficient interest in the person;” ⁶² the Chief Psychiatrist, ⁶³ or by the Tribunal itself. ⁶⁴ The “Chief Psychiatrist” is an independent statutory officer ⁶⁵ responsible for the “proper and efficient administration” of the Act. ⁶⁶ A Tribunal review of a treatment authority is a review on the merits, which means that all relevant information is reviewed and a determination made on whether the decision should continue in effect or should be varied or revoked. The Tribunal must consider all the person’s circumstances, their mental state and their response to treatment, ⁶⁷ and must provide written reasons for its decision on request. ⁶⁸

In summary, treatment authorities are subject to extensive statutory criteria for treatment, are regularly reviewed by the clinical decision-maker and are subject to reassessment and external review by the Tribunal.

B . The Preferred Pathway – The “Less Restrictive Way”

A treatment authority can only be made if there is “no less restrictive way” for the person to receive treatment and care for their mental illness. ⁶⁹ In comparison with a treatment authority, decision-making under the preferred pathway – the “less restrictive way” – is subject to scant regulation or external oversight.

Section 13(1) of the MHAQ provides that under the less restrictive way, treatment can be authorized in order of priority, by:

1. a) an adult parent (for a minor);

2. b) an advance health directive;

3. c) a personal guardian;

4. d) an attorney appointed by the person under an advance health directive or enduring power of attorney; or

5. e) a statutory health attorney. ⁷⁰

Two of these methods – an advance health directive and an attorney appointed by the person – involve the person’s own choices. But crucially, three of them – a parent, a personal guardian and a statutory health attorney – allow substitute decision-makers not appointed by the person to make decisions authorizing treatment. These substitute decision makers can authorize treatment against a person’s current wishes (what would typically be described as “involuntary” treatment), in preference to a clinician making a treatment authority.

Despite the naming of the preferred pathway as the “less restrictive way,” in our view at least three of the allowed decision-making methods are not less restrictive of rights, in any of the commonly understood meanings of the doctrine. Two of the decision-making methods under the preferred pathway – advance health directive and durable power of attorney – are commonly considered “less restrictive” of the article 12 right to legal capacity. However, even these methods do not necessarily lead to treatment that is less restrictive of rights to liberty and security of the person. Understanding this conclusion requires further explanation of the decision-making methods included under the preferred pathway.

1. Decision-Makers under the Preferred Pathway

The first decision-maker under the preferred pathway is a parent of a child under eighteen years old. For general health care, Queensland law provides that, except for mature minors who are “Gillick competent,” parents can make decisions for their children in their “best interests.” ⁷¹ Prior to passage of the MHAQ, an exception to this rule had been for mental health treatment, where minors could only be treated involuntarily under the then equivalent of the statutory pathway. The inclusion of this “less restrictive way” in the MHAQ extends parental authority, allowing them to consent to mental health treatment in their child’s best interests, potentially in the face of the young person’s objection.

The second option under the preferred pathway is where an advance health directive executed by the patient under the Powers of Attorney Act 1998 (Qld) (“POAA”) authorizes treatment. ⁷² The POAA provides that a doctor “can restrain, move or manage a person” to administer treatment if the advance health directive specifically authorizes this.’ ⁷³ Providing treatment according to a patient’s wishes set out in an advance health directive is generally considered less restrictive of the person’s article 12 decision-making rights. ⁷⁴

The third option under the preferred pathway is for a decision to be made by a personal guardian. Under the GAA the Queensland Civil and Administrative Tribunal (“QCAT”) can appoint a person as guardian to make decisions on personal matters (including health care) for an adult with impaired capacity. ⁷⁵ QCAT has wide discretion whom to appoint as guardian, but usually it is a family member or unpaid carer, or where no one else is available or suitable, the Public Guardian may be appointed as a “last resort.” ⁷⁶ Prior to the passage of the MHAQ, guardians had no power to consent to mental health treatment and care. ⁷⁷

The fourth avenue for authorization under the “less restrictive way” is by an attorney chosen and appointed by the person themselves, either under an advance health directive, or an “enduring power of attorney for personal matters.” ⁷⁸ These are formal legal documents executed by an adult with capacity, to take effect at a future time when they have impaired capacity. Usually, the attorney would be someone close to the person, either a trusted family member or friend, but a person may also appoint the Public Guardian. Having decisions for mental health treatment made by a person’s chosen attorney is commonly considered less restrictive of the person’s autonomy and freedom of choice than having decisions made by a clinician (see further infra). However, once again, before the passage of the MHAQ, attorneys had no power to make decisions on mental health treatment. ⁷⁹

The fifth possible avenue for authorization under the preferred pathway is by a “statutory health attorney.” This term refers to an individual or entity who has decision-making power for a person with impaired capacity on health matters, but is not formally appointed either by the person, or by a tribunal or a court (unlike a personal guardian). The role is created by section 63 POAA, which states that if there is no advance health directive in place, no appointed guardian and no attorney, decision-making power is conferred on individuals in certain roles in order of priority. The first is the person’s spouse in cases where they have a “close and continuing relationship;” followed by an unpaid carer, then a close friend or relative, and then the Public Guardian in cases of last resort. The “statutory health attorney” is the first person on the list who is available and willing to act.

2. Oversight of Preferred Pathway

There is significantly less oversight of decisions made under the preferred pathway than under the statutory pathway. Clinicians are not statutorily required to discuss treatment decisions with the patient, nor to explain the nature and effect of the treatment being provided. ⁸⁰ The statutory requirement for three monthly clinical reviews does not apply to patients under the preferred pathway, nor are record keeping requirements as prescriptive. We note that some practices considered more restrictive of civil rights, i.e., emergency electroconvulsive therapy and mechanical restraint, cannot be practiced under the preferred pathway. ⁸¹ However, decisions can still be made for either community or inpatient treatment and for pharmacotherapy, against the patient’s current wishes.

The Chief Psychiatrist has issued a policy (“the Policy”) which mandates an initial clinical review after fourteen days, if an attorney, guardian, or statutory health attorney has consented to a person being treated as an inpatient. ⁸² At that review, a clinician must consider whether the person should remain an inpatient, or whether community treatment is more appropriate. If the decision is being made by a statutory health attorney, the clinician must consider whether a treatment authority is preferable, the Policy acknowledging the greater protections and oversight under the statutory pathway. ⁸³ While the Policy mandates ongoing clinical reviews, no time frames are prescribed. ⁸⁴ Further, the initial fourteen day review period only applies to the decision for inpatient treatment, not to decisions for community treatment, for which no reviews are mandated. Similarly, there is no prescribed schedule for reviews to assess whether a patient has regained capacity to make their own decisions. Most notably, the Tribunal has no role in reviewing decisions for treatment and care made under the preferred pathway.

The POAA and the GAA provide scant oversight of decision-makers under the preferred pathway. Appointment of attorneys is not reviewed under the POAA unless the appointor or other “interested person,” applies to QCAT for revocation. ⁸⁵ The appointment of a guardian must be reviewed only every five years, ⁸⁶ unless a shorter period is specified by QCAT. ⁸⁷ For more frequent reviews, or to seek a declaration of capacity, ⁸⁸ or for an order for directions to a guardian or attorney, the onus is on the person subject to treatment (or other interested person) to apply to QCAT. ⁸⁹ In short, the oversight mechanisms under the GAA and POAA for guardians, attorneys and statutory health attorneys are considerably more limited than those governing clinicians under the statutory pathway, and the MHAQ itself offers very little oversight of the preferred pathway.

III. Analysis and Comparison of the Two Pathways

As explained above, the purpose of the “least restrictive alternative” principle is to prohibit intrusion by the state into personal life to any greater extent than necessary to pursue a legitimate aim. Given this, prescribing the “less restrictive way” as the preferred pathway for decision-making under the MHAQ appears to be a legislative misnomer. Apart from provision of emergency electroconvulsive therapy and application of mechanical restraints and seclusion, treatment under the preferred pathway may be just as restrictive as under the statutory pathway. Under both pathways, treatment can still involve detention, physical restraint and pharmacotherapy, and can occur either in a facility or in the community, thereby restricting rights to liberty and security of the person. Queensland Health, the government department responsible for administering the MHAQ, has issued Guidelines on the “Less Restrictive Way.” These Guidelines acknowledge that the term “less restrictive” in this context does not refer to fewer physical restrictions but only to methods of decision-making for treatment:

These guidelines are not focused on the reduction and elimination of restrictive practices that are used under the MHA2016, such as physical restraint, acute sedation and seclusion. Whilst reduction of restrictive practices is wholly supported, these practices are only mentioned as they pertain to issues of consent and providing care under substitute decision makers. ⁹⁰

The preferred pathway is clearly intended to be “less restrictive” of the right to legal capacity.

It is commonly agreed that allowing treatment decisions to be made under an advance health directive or by a self-appointed attorney is less restrictive of a person’s legal capacity. The CRPD Committee refers to advance health directives as a type of supported decision-making because their use respects a patient’s autonomy in allowing their will and preferences to be followed. ⁹¹ Callaghan and Ryan write that in mental health “..advance directives are likely to become one of the central features of supported decision-making models as envisaged by the CRPD…” ⁹² In the case of an attorney, the patient’s autonomy is respected to the extent that they have chosen who will act in that role. Callaghan and Ryan write of attorneys that:

Allowing patients control over who their proxy decision-maker is, and the conditions under which decisions can be made by that person (through the terms of a grant of power of attorney, for example), is an important development in mental health law and a more concrete step towards the supported decision-making model envisaged in the CRPD. ⁹³

However, the three remaining decision-making methods under the preferred “less restrictive way” –i.e., by a parent, a guardian, or a statutory health attorney – clearly constitute substitute decision-making, with its accompanying denial of legal capacity. In our view, these three methods are not “less restrictive” of the right to legal capacity than decisions made by clinicians under treatment authorities, because they still require substitute decisions to be imposed upon a person, potentially against their will. In that sense, the language of “less restrictive” is therefore inaccurate and misleading. ⁹⁴

Further, of concern for all five decision-making methods under the preferred pathway is a relative lack of transparency, accountability, and oversight of decision-making. Even in the case of advance health directives, the patient may be refusing treatment at the time it is given, suggesting that some statutory oversight is needed. The Tribunal process may not be without fault, ⁹⁵ but it provides an opportunity for the appropriateness of involuntary treatment to be challenged, and for the patient to present their case to an independent third party. These issues of lack of transparency, and especially the lack of Tribunal oversight, were raised prior to passing of the MHAQ by both the Office of the Public Guardian ⁹⁶ and Queensland’s Office of the Public Advocate. ⁹⁷ Criticism was also levelled by health law academics, that the new “less restrictive way” was a step “backwards” in allowing for coercive mental health treatment without appropriate safeguards. ⁹⁸ The Government responded to criticisms by asserting that there were “extensive safeguards” for patients subject to the “less restrictive way,” including the Community Visitors Program, and advised that it would review the provisions’ “effectiveness” within two years. ⁹⁹

The Community Visitors Program is run by the Office of the Public Guardian, and its officers visit mental health facilities on a regular basis to advocate for patients. ¹⁰⁰ In this way, it operates as a safeguard (for inpatients only), but the independence of this function has been compromised now that the Public Guardian also acts as a decision-maker under the less restrictive way. ¹⁰¹ The Government did initiate a review of the “less restrictive way” one year after implementation, ¹⁰² followed by a review of the whole Act, to assess how well the MHAQ was meeting its objectives “..with particular regard to the use of less restrictive ways (including the use of advance health directives and substitute decision-making processes)…”. ¹⁰³ The evaluation report published in 2019 was mainly inconclusive, because “[i]nformation about how and whether treating teams were relying upon less restrictive ways was not readily available.” ¹⁰⁴

A further concern is that the MHAQ misleadingly excludes treatment provided under the less restrictive way from the definition of “involuntary” treatment, even though consent (except in the case of advance health directives) has not been given by the patient. ¹⁰⁵ The implication that treatment under this pathway is “voluntary” shrouds the very real need for oversight of decisions made under this preferred pathway, where treatment is in fact provided involuntarily.

A final concern is that some of the most significant safeguards for a person receiving treatment under the preferred pathway are contained in policy, not mandated in legislation. It is concerning that for what is in fact involuntary and potentially coercive treatment, this protection is not contained in legislation. Under human rights principles “…any deprivation of liberty must be necessary and proportionate….[and] must be accompanied by adequate procedural and substantive safeguards established by law.” ¹⁰⁶ The Office of the Public Guardian submitted that the criteria for choosing the less restrictive way should be stated in the legislation, rather than depend on administrative policy. ¹⁰⁷

Overall, we conclude that decision-making under the preferred pathway – the “less restrictive” way – lacks transparency and sufficient oversight, despite it being introduced in the context of a putative furthering of the rights of people with mental illness. This leads us to question what unspoken premises may lie behind the framing of decision-making by a parent, guardian or statutory health attorney in particular, as “less restrictive.” On the one hand, there is a statutory pathway under which decisions are made by clinicians according to specified criteria, documented in approved forms and reviewed regularly by a government tribunal. On the other hand, under the preferred pathway most decision-makers (with the exception of the Public Guardian) are in close personal relationships with the patient – parents, relatives, carers and close friends. It may be that there is an assumption that decisions made by people in close relationships very much in the private, personal sphere, are somehow safer and therefore require less supervision than those in the public sphere of health services and government. Indeed, we recall that the philosophy behind the “least restrictive alternative” is to limit state intrusion into the personal sphere to the least extent necessary to achieve a legitimate purpose. ¹⁰⁸

Yet the consequences of these private decisions are significant, and potentially dire, for the patient. In our view, external oversight by government should not be misconstrued as illegitimate state intrusion. Where significant power to authorize non-consensual and potentially coercive treatment is conferred on a person, transparent criteria and strong systems of oversight are essential. Although this is not always (or indeed, often) the case, historically, there have been numerous instances where relatives have sought involuntary treatment that has led to abuse of people with mental illness and other disabilities. ¹⁰⁹ It is also well-known and reported that currently, people with disability are disproportionately subject to abuse and violence, often in the domestic, private sphere of family and friends. ¹¹⁰

The question of when oversight becomes too intrusive and interventionist, so as to become an actual infringement of rights, is one which has been frequently raised in the literature on supported decision-making, but remains unresolved in both law and policy. ¹¹¹ In view of the significance of the impact of these decisions on fundamental rights, assumptions that decisions made by family and friends will always serve the best interests of a person with mental illness are insufficient justification for the different and less rigorous oversight framework provided for the preferred pathway.

IV. Conclusion

Browning, Hoffmann and Foust wrote in 1977 that:

The shortcomings of the doctrine of the least restrictive alternative as it is now applied to treatment of the mentally ill lie not in its well-intentioned purposes but rather in its naïve optimism that its goals can be attained by mere rhetoric without critical analysis. ¹¹²

The above quote is more than forty years old, but it resonates today, as illustrated in our analysis of the MHAQ. In 1980, Morris also criticized the potential use of guardianship to achieve a so-called “least restrictive alternative” for people with mental illness – that is, as an alternative to institutionalization. He wrote of the increased pressure at that time to use guardianship as “voluntary” civil commitment that it “is indeed unfortunate that the propriety of this civil commitment safety valve has not been adequately scrutinized.” ¹¹³ The same can be said of the less restrictive way under the MHAQ.

The overall goal of achieving the least restrictions on civil rights possible while ensuring adequate and appropriate treatment for those with mental illness is one with which few of us would disagree. In its initial application in the context of de-institutionalization, the aim of the “least restrictive alternative” doctrine may have been relatively clear: that is, to end abuses inflicted behind closed doors, and enable people with cognitive disabilities to live as independent and autonomous a life as possible. But Miller writes of the “least restrictive alternative” that “[s]uch a surface consensus of opinion often serves to obscure hidden motives and agendas upon which little consensus exists …” ¹¹⁴ A recent report reviewing the operation of the Mental Health Act 2014 (Vic) states that: “core concepts in the legislative objectives and mental health principles—such as […] least restrictive treatment—are yet to be routinely embedded in treatment, care and support.” ¹¹⁵ Statements like this, which endorse the application of the least restrictive alternative as a goal of our mental health systems, incorrectly assume that we have a clear, logical, workable consensus on what it actually means; in reality, achieving this in itself needs to be recognized as an ongoing challenge.