Pushing the boundaries : realising rights through mental health tribunal processes?

Mental health jurisprudence traditionally was more concerned to protect negative or 'liberty' rights than to advance positive rights ofaccess to needed mental health care and treatment. North American test case litigation has contributed to advances in the quality of mental health and other services in some instances, but the record is patchy. Socio-Iegal studies of mental health tribunal operations in England and Wales suggest that health paradigms are dominant, and that legal norms and standards may be weak reeds in this setting. This article reviews the diverse legislative models in three main Australian jurisdictions before examining fieldwork data on the extent to which Australian mental health tribunals 'push the boundaries' of the law in order to obtain favourable treatment outcomes. It argues that, contrary to overseas experience, Australian tribunals merely' nudge', rather than disturb, the legal boundaries.