NSW mental illness laws

The explanatory notes below from the published Act (the full text is available on the web at www.austlii.edu.au) provide a quick way of understanding what the Act makes possible.

The scope of the legislation has been massively broadened by including possible harm to reputation or financial position if a person's 'mental condition' is likely to deteriorate into the future.The role of 'medical opinion' is thus very critical.

For example a medical opinion may be obtained that someone was at risk when expressing a radical political opinion because they indicated that they were about to spend some money in furthering their political viewpoint by arranging a street demonstration. If say the medical professional felt that this had the potential of causing a disruption of some kind - if it got out of control - and so could damage both reputation and bank account of the person. Under this amended Act such a person can be taken involuntarily by police from their home, before they were able to carry out their risky plan. Then to a place registered under the Act and there subjected to ECT and drugs to so protect them and to make them see the error of their thinking.

Note how the authorities can act when the matter is still at the 'thought crime' stage and before any actual 'damage to reputation' takes place.

Note also that no violence or physical harm need be involved now. Publication by speech or otherwise of views that indicate behaviour by the person that medical opinion may connect with a 'mental condition', and that could deteriorate, become sufficient grounds for entry to the person's home and their removal, by police if needed, to a place of 'treatment'. This 'treatment' can now last for 6 months, in the first instance.

In respect to the use of ECT and powerful drugs it is instructive to note how some medical practitioners have viewed the successful application of just the ECT element of such powers now available in law under this legislation:

In 1997 the nature and scope of this legislation caused one community group to issue a leaflet to passers by in Sydney and another (WBA) to express concern.

However the amendment passed quietly into law without any fuss by the mass media

In practice in NSW increased scope of mental health law powers seem to be most active in an employment context. Supposing a teacher expresses a view that does not accord with the wishes of a senior teacher or director of education and is at odds with education policy in NSW. Such a person could be at risk of damaging their reputation. Medical examination may thus be indicated. Should such request be refused the 1997 Act now stands ready to 'assist'. In practice it seems that such an examination may mark the end of a teaching career.

Explanatory note (Schedule 1.1 [1])
A person may not be involuntarily detained under the Act unless the person is a mentally ill person or a mentally disordered person. The amendment inserts a new definition of mentally ill person that removes the existing requirement that a person suffering from a mental illness is such a person if the person requires care, treatment or control for the protection of the person or others from serious physical harm and replaces it with a requirement that such a person requires care, treatment or control for protection of the person or others from serious harm. The effect of this is to enable other kinds of harm, such as financial harm or harm to reputation, to be considered when determining whether a person can be detained as a mentally ill person. The new definition omits the existing provisions classifying persons suffering from certain mental illnesses characterised by severe disturbance of mood or sustained or repeated irrational behaviour as mentally ill if they require care, treatment or control for protection from serious financial harm or serious damage to reputation. The new definition also makes it clear that, in assessing whether a person is a mentally ill person, any likely deterioration in the person's condition and its effects is to be taken into account.

Explanatory note (Schedule 1.1 [2])
Currently, police may apprehend persons for the purpose of detention in a hospital if the persons appear to be mentally disturbed and have, or appear to have, committed an offence and are in a public place. The amendment extends this power of apprehension under the Act to such persons in any place.

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