Jeopardy faces those in a fragile mental state
7 December 2010
You, or anyone in NSW, could be picked up by the police and held in detention for up to one month without any form of judicial review. This could happen at any time, even though you have committed no crime.
These are not the latest draconian anti-terror laws nor are they laws targeting asylum seekers. This is a legal framework that is directed at you and me, or it will be if we are unlucky enough to occasionally suffer a severe mental illness.
Every year in NSW more than 14,000 people suffer a psychiatric illness so severe that their doctors order them to be detained in hospital and treated against their will. This is very difficult for the patients (and the doctors) involved but it is necessary because severe mental illness can rob people of their ability to make rational decisions. A man who is extremely depressed, for example, may try to kill himself, because he feels he is evil and deserves to die. An emaciated young woman with anorexia nervosa may refuse all food because she sees herself as obese.
The Mental Health Act gives psychiatrists, like me, enormous power over ordinary people who have done nothing wrong. This is a good thing. It saves people's lives but the exercise of power must be transparent and it must be monitored.
The act places restrictions on psychiatrists' power. It says that "as soon as practicable" after someone is admitted involuntarily to hospital, their case must be heard by an independent umpire. Until June, the umpire was a magistrate who came to the hospital every week. The magistrate saw every patient who had been detained and psychiatrists had to justify that deprivation of liberty to the magistrate.
In June though, the umpire became a lawyer from the Mental Health Review Tribunal and, instead of visiting the hospital, he or she started appearing by audiovisual link. Whereas patients detained in hospital would previously have an automatic review within a week or so, now that would not happen until they had been locked up three or four weeks. The words "as soon as practicable" were suddenly interpreted to mean "within about a month" and many patients would now be involuntarily admitted and eventually released without ever having their detention independently checked.
These reviews are not a rubber stamp. Psychiatrists' findings are usually upheld but in 2008-09 magistrates discharged 87 patients at the independent review. Presumably this was because the magistrates felt that those 87 people, whom the doctors were already treating against their will, did not meet the legal test for involuntary detention. I am sure those doctors genuinely believed the patients should be treated. I am sure they felt they were doing the right thing but doctors are not judges and holding someone against their will is a legal decision as much as it is a medical one.
Until June, I used to use the rapid review to build a therapeutic relationship with my patients. If they were angry, I'd ask them to try to bear with me. They wanted to go home. I wanted them to stay. If we could agree to disagree for a just a few days, the magistrate would come around and would make the final decision.
That therapeutic manoeuvre is now all but gone. Now, without a rapid review, patients see psychiatrists as the people responsible for their detention and half the time no one is checking anything.
Psychiatrists are so upset about the three- or four-week delay that nearly 150 of them from around the state have signed an open letter to all members of the NSW Parliament, expressing our support for any action designed to restore the timely occurrence of the mental health inquiry.
It is not that these psychiatrists doubt themselves or feel that the system is being abused. It is just that they know the importance of protecting their patients' rights and they feel that the long delay is hindering their patients' recovery.
It is said that a government may be judged on how it treats its most vulnerable citizens. The state government must better protect the rights of people who might one day suffer a severe psychiatric illness. Those people are all of us.
Media enquiries: Rachel Gleeson, 9114 0748, 0403 067 342, email@example.com