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Human rights and their impact on one aspect of mental health legislation

Australia is a signatory to a number of international agreements on human rights. The most important in relation to mental health patients is the International Covenant on Civil and Political Rights. Article 14.1 says:

State parties (including Australia) shall ensure that persons with disabilities (including mental health), are treated and respected on an equal basis with others:

(a) [to] enjoy the right to liberty and security of person, and;

(b) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

This international obligation is reflected in Australia’s numerous state and territory mental health acts (MHAs).

This article canvasses one section reflected in each of the MHAs designed to protect patients from arbitrary involuntary detention and safeguard their liberty, particularly from police intervention.

The sections in question relate to the requirement that, on reasonable grounds, a patient who is suffering from a mental illness (no matter the various definitions of the same) and are a danger to themselves or others, can be detained so as to be conveyed to ensure that a mental state examination can be undertaken.

Parliament’s insertion of the word ‘reasonable’ is deliberate. It means that a police officer’s belief must be more than a suspicion, ‘gut feeling’ or ‘unconsidered and/or unmeasured’ belief. It must be objectively reasonable in the circumstances.

Consequently, the belief must be objectively assessed against a ‘like’ reasonably prudent officer in the same circumstances. Note, it is not a subjective assessment (it is objective). It does not require an isolated and sole assessment of the reasonableness/prudence of the officer’s actual belief. This necessarily requires a higher evidentiary standard or inquiry to substantiate the formation of a reasonable belief before a MHA ‘triggers’ or invokes the involuntarily detention (for assessment purposes) of a person. However, two cases illustrate that, in such circumstances, people have taken their own lives.

A recent Coroner’s Court hearing is illustrative. The deceased (BC) had a long history of drug-induced schizophrenia and was 39 years old when he hanged himself. On the night of BC’s death, he visited a neighbour (for money and a cigarette) and got into an altercation, which resulted in BC throwing an object through the neighbour’s window and wielding a knife in a threatening manner. The neighbour called the police.

The attending officer understood that, under the MHA, for him to take a person to hospital involuntarily (for a mental health assessment and/or treatment), he had to reasonably suspect the person had a mental illness and was a danger to themselves, others or property. Accordingly, the officer did not detain BC but took him with consent back to the station for questioning.

BC was calm and did not display any abnormal behaviour (to the required level under the MHA) at the neighbour’s house, in the police car, or during questioning at the station. During questioning, BC disclosed his diagnosis and that he was under a CTO. He also said his family owned Toyota Australia and that there was a conspiracy against him.

BC was charged with criminal damage and driven home. During that trip, he was polite, attentive but slightly withdrawn. The officer waited in front of BC’s house to make sure the inside light was turned on. While BC’s behaviour was not ‘normal’, but odd and withdrawn at times, it was not at a level to involuntarily detain him under the MHA. Later that night, BC hanged himself.

A High Court of Australia case (David Stuart & Anor v Tania Kirkland-Veenstra & Anor) is a further illustration. At about 5.40am, two police officers observed Mr V in his car at a secluded beachside carpark. There was a hose leading from the exhaust into the car, but the engine was not running.

The officers spoke with Mr V, who said he had thought about doing something stupid but had changed his mind. The officers offered to contact various people, including his wife and a doctor, but Mr V said he would go home and talk to his wife. The officers considered Mr V was rational, cooperative and showed no sign of mental illness. They allowed him to leave.

Later that day, Mr V took his own life at home by securing a hose to the exhaust of his car and starting the engine.

Mr V’s wife sued the police, arguing that her husband should have been detained pursuant to the relevant MHA.

Her claim was dismissed. The judgment stated the MHA was not designed to prevent suicide but to address the protection of mentally ill persons. It would be wrong to assume that all persons who attempted suicide were mentally ill; the MHA contained no such assumption.

The justices considered the fact that the police officers had not formed the view that Mr V was mentally ill to be critical. Unless they had formed that opinion, they were not permitted to apprehend him pursuant to the MHA. They did not have that power. As there were no reasonable grounds to form a relevant belief (of a mental illness), the control of the risk of the harm to himself remained with Mr V.

This article is not advocating that there should be a lower threshold in relation to the detention of people under the MHA. The cases illustrate that the legislation is abundantly clear, that a person should always be cared for in the least restrictive manner; this is an over-riding consideration for the courts. Secondly, the non-detention of a person does not ipso facto prove (to the requisite legal proof), that such a decision (not to detain) materially resulted (and by itself) in the person successfully taking their life. After all, the police could detain the person and they could suicide after their subsequent discharge.

Scott Trueman is a senior lecturer in the School of Health at the University of New England.

This article was first published in the spring edition of ACMHN’s news magazine.

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