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

Am J Law Med. 2023 Jul;49(2-3):286-300. doi: 10.1017/amj.2023.32. Epub 2024 Feb 12.ABSTRACTMost 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. T...
Source: American Journal of Law and Medicine - Category: Medical Law Authors: Source Type: research