Rising to the human rights challenge in compulsory treatment – new approaches to mental health law in Australia

The proposed changes under the Tasmanian and Victorian draft mental health bills will ensure that, in line with local and international human rights obligations, only patients who lack decision-making capacity may be coercively treated for mental illness. However the continuing 'additional harm' criteria may breach human rights obligations by imposing a discriminatory threshold for care on patients who are unable to consent to treatment for themselves. This could be avoided by replacing the 'additional harm' test with a 'best interests' test.