While the role of the law is to maintain order and achieve justice, often times, such as in cases involving mental illness, the operation of justice can involve ethical, legal, social, and medical issues which creates arguments about the balance of rights relating to effective treatment and lack of insight. Many of these issues arise when the subject of involuntary detention and treatment of mentally ill persons is discussed.
Mentally ill people suffer from some of the greatest challenges of any socially disadvantaged groups, which is partially due to overlap with other groups, but largely due to problems specific to the mentally ill. This includes prejudice from the public resulting in stigmatisation. Stigmatisation of mental illness leads to the propagation of myths and falsehoods, such as the widely held view that mentally ill persons are violent, when in-fact mentally ill persons are more likely to be the victims of serious assault or self-harm. Combined with lack of education of the public and the inability of many mentally ill persons to communicate their feelings effectively, this leads to greater risk of breaches of individual rights compared to the general population. Many of the issues addressed by mental health acts in state legislature revolve around removal of liberty of potentially incapable individuals where there exists the possibility of threat to either the public, or themselves. The United Nations Convention on the Rights of Persons with Disabilities (2007) (UNCRPD) requires that signatory states treat disabled detention persons with dignity and ensure that their rights are upheld. The Convention also states that preservation of liberty should be upheld for all persons, despite disability by illness or accident. However, mental health acts enacted by all states and territories in Australia do allow for the suspension of liberty when a patient presents a risk to either themselves or the public. While Australia has ratified this Convention, it has not proceeded to implement laws to enforce the convention. The Mental Health Act 2007 (NSW) enables the involuntary and treatment of persons on assessment of legal definitions of mental illness and mental disorder. In addition to this there must be risk for serious harm and no realistic plan for available care in the community. The Act also outlines certain rights of persons with mental illness, and also limits the power of medical professionals to deprive of liberty of, and treat involuntarily, persons with mental disorders. These rights include: the right to care in the least restrictive environment with restriction on liberty kept to the minimum necessary in the circumstances, procedural fairness, access to information, and legal representation at the Mental Health Review Tribunal. Other rights include to have a designated carer notified, access to an interpreter, to medical records, to apply to be discharged, to be involved in discharge treatment plans, privacy and confidentiality, protection from ill treatment, to request to see an official visitor, and to dignity. When compared to the UNCRPD General Principles, the Mental Health Act 2007 (NSW) rights lack the universality of the UNCRPD, essentially saying that there has to be exceptions and rights have to be about the practicality of situations. The Mental Health Review Tribunal (MHRT), established under the same Act, operates as a quasi-judicial body that both limits and legitimises the power of health professionals to involuntarily detain and treat. Persons detained in inpatient units and on Community Treatment …show more content…
Some cases have been brought against state health services for their failure to deprive persons of their liberty before they went on to commit a crime, such as McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, where to Hunter & New England Local Health District was found to be liable to the family of a man who was murdered by a patient. The case of Presland v Hunter & New England Local Health District [2003] NSWSC 754; BC200304853, the finding was similar to the above cases, finding that Hunter & New England Local Health District was responsible for failing to detain Mr Presland, however the decision was overturned by appeal in the NSW Court of Appeal in 2005, finding that there was no common law duty of care and that there were problems to the issue of
Mentally ill people suffer from some of the greatest challenges of any socially disadvantaged groups, which is partially due to overlap with other groups, but largely due to problems specific to the mentally ill. This includes prejudice from the public resulting in stigmatisation. Stigmatisation of mental illness leads to the propagation of myths and falsehoods, such as the widely held view that mentally ill persons are violent, when in-fact mentally ill persons are more likely to be the victims of serious assault or self-harm. Combined with lack of education of the public and the inability of many mentally ill persons to communicate their feelings effectively, this leads to greater risk of breaches of individual rights compared to the general population. Many of the issues addressed by mental health acts in state legislature revolve around removal of liberty of potentially incapable individuals where there exists the possibility of threat to either the public, or themselves. The United Nations Convention on the Rights of Persons with Disabilities (2007) (UNCRPD) requires that signatory states treat disabled detention persons with dignity and ensure that their rights are upheld. The Convention also states that preservation of liberty should be upheld for all persons, despite disability by illness or accident. However, mental health acts enacted by all states and territories in Australia do allow for the suspension of liberty when a patient presents a risk to either themselves or the public. While Australia has ratified this Convention, it has not proceeded to implement laws to enforce the convention. The Mental Health Act 2007 (NSW) enables the involuntary and treatment of persons on assessment of legal definitions of mental illness and mental disorder. In addition to this there must be risk for serious harm and no realistic plan for available care in the community. The Act also outlines certain rights of persons with mental illness, and also limits the power of medical professionals to deprive of liberty of, and treat involuntarily, persons with mental disorders. These rights include: the right to care in the least restrictive environment with restriction on liberty kept to the minimum necessary in the circumstances, procedural fairness, access to information, and legal representation at the Mental Health Review Tribunal. Other rights include to have a designated carer notified, access to an interpreter, to medical records, to apply to be discharged, to be involved in discharge treatment plans, privacy and confidentiality, protection from ill treatment, to request to see an official visitor, and to dignity. When compared to the UNCRPD General Principles, the Mental Health Act 2007 (NSW) rights lack the universality of the UNCRPD, essentially saying that there has to be exceptions and rights have to be about the practicality of situations. The Mental Health Review Tribunal (MHRT), established under the same Act, operates as a quasi-judicial body that both limits and legitimises the power of health professionals to involuntarily detain and treat. Persons detained in inpatient units and on Community Treatment …show more content…
Some cases have been brought against state health services for their failure to deprive persons of their liberty before they went on to commit a crime, such as McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, where to Hunter & New England Local Health District was found to be liable to the family of a man who was murdered by a patient. The case of Presland v Hunter & New England Local Health District [2003] NSWSC 754; BC200304853, the finding was similar to the above cases, finding that Hunter & New England Local Health District was responsible for failing to detain Mr Presland, however the decision was overturned by appeal in the NSW Court of Appeal in 2005, finding that there was no common law duty of care and that there were problems to the issue of