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10 Psychiatry Psychol. & L. 12 (2003)
Mental Health Law in Postmodern Society: Time for New Paradigms

handle is hein.journals/psylaw10 and id is 22 raw text is: Mental Health Law
in Postmodern Society:
Time for New Paradigms?
Terry Carney
University of Sydney, Australia

his article reviews the ''rights versus access to treatment' debate in mental health law and policy, It asks,
among other things, whether contcmporaiy policy is compatible with civil rights standards, whether commu-
nity-based care is adequate and fair', and whether it is well placed to cope with present and future challenges
(such as priv  ation of services, reduced visibility of need and neglect, populist campaigns against public  risk
alleedly posed by cerain personality disorders, and a  and equity needs within cultural diversity) It is con-
cluded that legislatioin and policy passes interonal human rights scrutiny, but it is argued that debate urgently
needs to move on to craft the content (and monitor the performance) of new instruments; instruments better
attined to the community-based care needs of contemporary postmodem society. The paper challenges the air
of complacency in this area, as evidenced by neglect of attention to the use and monitoring of community trea
ment orders, the lack of techniques for protection of citizens interests within a privatised state, and the absence of
answers to the steady erosio n  state resouding and services.

If men could learn from history, what lessons it
might teach us! But passion and party blind our
eves, and the light which experience gives is a
lantern on the stern, which shines only on the
waves behind us! (Samuel Coleridge, 1831).
Millean Origins
Mental health law concerns citizenship' in its
wider sense - of respect for civil rights and social
participation (see Rowe & Baranoski, 2000;
Green, 2001, 7ff).
Historically, mental health law has balanced
clinical beneficence and enthusiasm of treatment

agencies against the risk of abuse of state powers of
involuntary detention of the mentally ill. Abuses
such as detaining people who are not really ill,
people for whom an illness is only a minor incon-
venience to themselves or to society, people for
whom therapeutic benefits of intervention cannot
be sufficiently realised,' or people suffering from
difficult-to-conceptualise conditions such as per-
soiality disorders.'
The settlement between respect for individual
autonomy and involtitary interventions, predi-
cated on beneficent protection from harm, was
famously captured in John Stuart Mill's edict that

A revised version of a paper deliered at the Mental Heaith Review Board of Victoria's th Annersa  Conference 
'Detention, Decisions and Dilemmas: invomntary Detention, Treatment and Review in the 21 st Ccntury  17 and 18
Ocber 2002, Melbourei Australia.
Correspondence to: Ten7 Carne/, University of Sydney, 173-175 Phillip St, Sydney, NSW 2000, Australia
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