{"status":"ok","message-type":"work","message-version":"1.0.0","message":{"indexed":{"date-parts":[[2026,10,15]],"date-time":"2026-10-15T18:08:15Z","timestamp":1792087695812,"version":"4.4.0"},"reference-count":0,"publisher":"Cambridge University Press (CUP)","issue":"2-3","license":[{"start":{"date-parts":[[2024,2,12]],"date-time":"2024-02-12T00:00:00Z","timestamp":1707696000000},"content-version":"unspecified","delay-in-days":226,"URL":"https:\/\/creativecommons.org\/licenses\/by-nc-nd\/4.0\/"}],"content-domain":{"domain":[],"crossmark-restriction":false},"short-container-title":["Am. J. Law. Med."],"published-print":{"date-parts":[[2023,7]]},"abstract":"Abstract<\/jats:title>Most 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.<\/jats:p>In this regard, an important principle that has developed is that decisions about treatment for mental illness must be the \u201cleast restrictive alternative\u201d 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 \u201csupported decision-making,\u201d so that their legal capacity is still recognized. If involuntary treatment is required, the \u201cleast restrictive\u201d approach demands that the liberty and integrity of the person be respected to the greatest extent possible.<\/jats:p>The Mental Health Act 2016 (Qld) (\u201cMHAQ\u201d) prescribes that decision-making on non-consensual treatment should preferably be done according to what it calls the \u201cless restrictive way.\u201d However, the \u201cless restrictive way\u201d 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. The MHAQ states that these arrangements are distinguished from and prioritized over what it calls \u201cinvoluntary treatment and care,\u201d where the decision for non-consensual treatment is made by the treating team.<\/jats:p>However, we argue that these arrangements are not in fact \u201cless restrictive\u201d of the person\u2019s autonomy, but are less accountable forms of decision-making. Decision-making by treating teams under involuntary treatment provisions is subject to higher levels of transparency and accountability. In Australian states these decisions are reviewed regularly by a specially constituted, independent mental health tribunal. By contrast, treatment decisions made under the \u201cless restrictive way\u201d are not even defined as constituting involuntary treatment, and are outside the scope of the tribunal\u2019s review.<\/jats:p>In the case of decision-making by advance directive, we acknowledge that this is widely considered to be \u201cless restrictive\u201d of a person\u2019s right to legal capacity and autonomy. However, in these cases, the patient may actually be refusing treatment at the time the advance directive is relied upon. This raises serious questions as to whether such \u201cvoluntary\u201d admissions and treatment should not be subject to the same oversight and accountability as involuntary ones. Patients have a right to less restrictive forms of decision-making, but when deprived of their liberty, they also have a right to adequate safeguards established by law.<\/jats:p>The term \u201cless restrictive\u201d in the MHAQ is largely misplaced and misleading. In the case of advance directives, it deflects attention from the potentially restrictive nature of the treatment and the lack of accountability. Even more problematically, the privileging of private substitute decision-making under the less restrictive way ignores the real risk of abuse and undue influence within the personal and family sphere. We argue that the \u201cless restrictive way\u201d under the MHAQ is a step backwards for the rights of patients, in that it shifts power to family on the risky assumption that decision-making by these less supervised individuals is more likely to uphold human rights. We believe that this reflects a pre-feminist assumption that the informal, family, private sphere is nearly always safe. This is a contentious assumption, which nevertheless underpins much unproblematized thinking and advocacy on supported decision-making. This issue also highlights the need for further elucidation and discussion on what least restrictive means in the context of involuntary treatment for mental illness.<\/jats:p>","DOI":"10.1017\/amj.2023.32","type":"journal-article","created":{"date-parts":[[2024,2,12]],"date-time":"2024-02-12T09:33:25Z","timestamp":1707730405000},"page":"286-300","source":"Crossref","is-referenced-by-count":4,"title":["What Does \u201cLeast Restrictive\u201d or \u201cLess Restrictive\u201d Mean in Mental Health Law? Contradictions and Confusion in the Case of Queensland, Australia"],"prefix":"10.1017","volume":"49","author":[{"given":"Julia","family":"Duffy","sequence":"first","affiliation":[],"role":[{"vocabulary":"crossref","role":"author"}]},{"given":"Sam","family":"Boyle","sequence":"additional","affiliation":[],"role":[{"vocabulary":"crossref","role":"author"}]},{"given":"Katrine","family":"Del Villar","sequence":"additional","affiliation":[],"role":[{"vocabulary":"crossref","role":"author"}]}],"member":"56","published-online":{"date-parts":[[2024,2,12]]},"container-title":["American Journal of Law & Medicine"],"original-title":[],"language":"en","link":[{"URL":"https:\/\/www.cambridge.org\/core\/services\/aop-cambridge-core\/content\/view\/S0098858823000321","content-type":"unspecified","content-version":"vor","intended-application":"similarity-checking"}],"deposited":{"date-parts":[[2024,10,19]],"date-time":"2024-10-19T10:17:55Z","timestamp":1729333075000},"score":1,"resource":{"primary":{"URL":"https:\/\/www.cambridge.org\/core\/product\/identifier\/S0098858823000321\/type\/journal_article"}},"subtitle":[],"short-title":[],"issued":{"date-parts":[[2023,7]]},"references-count":0,"journal-issue":{"issue":"2-3","published-print":{"date-parts":[[2023,7]]}},"alternative-id":["S0098858823000321"],"URL":"https:\/\/doi.org\/10.1017\/amj.2023.32","relation":{},"ISSN":["0098-8588","2375-835X"],"issn-type":[{"value":"0098-8588","type":"print"},{"value":"2375-835X","type":"electronic"}],"subject":[],"published":{"date-parts":[[2023,7]]}}}