Dr Kay Wilson1
1Victorian Collaborative Centre For Mental Health and Wellbeing and University Of Melbourne, Melbourne, Australia
Biography:
Kay Wilson is a Post-Doctoral Translational Research Fellow with the Victorian Collaborative Centre for Mental Health and Wellbeing, a sessional lecturer at La Trobe Law School and an Honorary Fellow with Melbourne Disability Institute at University of Melbourne. She is the author of Mental Health Law: Abolish or Reform? (Oxford University Press, 2021) and lead editor of The Future of Mental Health, Disability and Criminal Law: Essays in Honour of Emeritus Professor Bernadette McSherry (Routledge, 2023). She has also published numerous book chapters and has published widely in leading Australian and International Journals.
This paper evaluates the Abolitionist Perspectives Report, which advocates for abolishing mental health laws that authorize involuntary detention and psychiatric treatment. The abolitionist movement has gained momentum since the UN Convention on the Rights of Persons with Disabilities (CRPD), with three distinct approaches emerging: "purist" demands for complete abolition of coercion, "disability neutralist" support for non-discriminatory universal legislation, and "incrementalist" preferences for gradual reduction of coercion.
The Abolitionist Perspectives Report, commissioned for Victoria's mental health law reform process, proposes four existing legal mechanisms as alternatives to mental health legislation: family violence and personal safety intervention orders, Good Samaritan laws, the doctrine of medical necessity, and medical decision-making legislation. This paper analyzes each proposal's viability using Australian law, with particular focus on Victoria.
The evaluation reveals substantial limitations across all proposed alternatives. Intervention orders require prior knowledge of specific threats, may inappropriately criminalize mental health symptoms through breach penalties, and could disadvantage vulnerable individuals. Good Samaritan laws apply only to immediate emergencies with extremely narrow intervention scope and unclear boundaries. The doctrine of medical necessity lacks sufficient legal precision and risks granting excessive discretionary power to medical professionals. While medical decision-making legislation demonstrates the most promise among the four alternatives, none adequately addresses the complex realities of mental health crises, risk assessment, or comprehensive treatment frameworks.
The paper concludes that these proposed alternatives are insufficient replacements for established mental health law systems, highlighting fundamental tensions between human rights imperatives and practical public safety considerations in contemporary mental health policy reform debates.