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Detained with a mental illness

By Sascha Callaghan - posted Tuesday, 13 April 2010

If changes proposed to the operation of the NSW Mental Health Act are allowed to proceed, people with mental illnesses will lose a substantial degree of their human rights protection.

Every year, 14,000 people are admitted to hospital involuntarily under the New South Wales Mental Health Act. Under the current NSW rules, a magistrate will come to the hospital within about a week of a patient’s admission to make sure that the detention is justified. This is particularly important for those who do not think they should be in hospital, or who, for whatever reason, would rather not be. But all this is about to change.

Following amendments to the Act which come into effect later this year, people who are detained in hospital and subject to involuntary treatment will have to wait for up to a month for their right to an independent review of their detention. A month is a long time to be detained without getting a hearing. The new changes will also see this review conducted via video link by a lawyer member of the Mental Health Review Tribunal instead of face-to-face with a magistrate.


The Mental Health Act stipulates that people who are admitted involuntarily, must be taken before a magistrate “as soon as practicable” in order to protect their civil rights. Yet the definition of “as soon as practicable” which has stood as “about one week” since 1958, is now to be recast as “within about a month” by the Mental Health Review Tribunal.

Making patients wait several weeks for a review of their detention is a significant erosion of patients' current rights, and compares very badly to even criminal procedure where a person who has been arrested for committing a crime is brought before a magistrate within 24 hours, 365 days of the year to make sure due process has been followed. In the weeks in which the detained person waits for a hearing, they may be receiving medical treatment which they would rather not have - and which, if they had their legal rights made clear, they could have avoided.

The reasons suggested for this change in procedure include the fact that there are more than 6,000 adjournments of these early hearings a year, all of which cost taxpayer dollars. However, to suggest that these adjourned hearings are a waste, as some proponents of the changes do, is to completely miss the point of independent review. The magistrate’s role is to ensure that proper process is being followed, that the patient’s rights are protected and that the system is not being abused. This can be achieved as readily in an adjourned hearing as it can in a hearing where the magistrate makes a decision. Either way, the money spent is not a waste. It is a crucial part of protecting patients’ rights.

Involuntary treatment allows for many people who are very ill, to receive much needed treatment. But a person who is being kept in hospital against their will also has a right to an independent review of their detention.

If these changes go ahead, the safeguards that are in place to protect an individual’s liberty will be lost.

Many people who are treated involuntarily will be sent home within a few weeks and will never have the opportunity to plead their case. It is difficult to see why an early opportunity for review of patient rights should not also be afforded for many Australians who have done nothing illegal, but who live with mental illness. People who are arrested are routinely brought before a court within 24 hours - and the many adjournments at this stage are not generally seen as a reason to get rid of the process.

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About the Author

Sascha Callaghan is a lawyer and research scholar with the Centre for Values Ethics and the Law in Medicine at the University of Sydney.

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