Mental health advocacy around the world: the importance of ​‘opt-out’

The question of whether independent mental health advocacy should be proactively offered, on an opt-out basis rather than opt-in, is a very live issue in Canada. A fascinating recent court judgement in one Canadian province concluded that not providing advocacy on an opt-out basis was a violation of Canadians’ human rights. A study of clinicians' views concluded:

“In Alberta, Canada, involuntary patients can request independent rights advice from the Mental Health Patient Advocate. In 2019, a court ruled that this provision of the Mental Health Act was unconstitutional, a violation of the right to life, liberty, and security of the person in the Canadian Charter of Rights and Freedoms. Justice Kristine Eidsvik wrote that rights advice should be given to patients proactively, without their having to request it. The province appealed this ruling, but the Alberta Court of Appeal upheld it, a decision that may have implications for Canadian jurisdictions that don’t currently offer proactive rights advice.”

In Australia, two substantial policy reviews into the mental health system have recently made positive recommendations on promoting access to independent mental health advocacy. Australia’s federal Productivity Commission recommended that ​“supported decision making by and for people with mental illness should be promoted through improved access to individual non-legal advocacy services and mental health advance directives.” Furthermore, one of the key recommendations of a royal commission established by the Victorian state government was to ​“include a legislative provision in the new Mental Health and Wellbeing Act, enabling an opt-out model of access to non-legal advocacy services for consumers who are subject to or at risk of compulsory treatment.”

Questions about access to advocacy and opt-out are also featuring in the review of mental health law currently taking place in Scotland. Whilst the outcome of the Scottish review is not expected until 2022, there has been an independent review of learning disability and autism in the Mental Health Act (the Rome review) which has already reported.

Across multiple countries, despite the differences in legal status and form of provision, it is clear that providing advocacy on a proactive, opt-out basis is seen as vital to realising people’s human rights and a necessary response to the disparities in access to advocacy which are apparent in every mental health system. We are calling on the government to adopt this approach for England.

Find out more in our response to the consultation on the Mental Health Act and follow @VoiceAbility on Twitter to keep up to date.