The South Australian Government's amendments to the Mental Health Act 1993 go beyond clarifying cross-border recognition of orders, and contain dangerous coercive provisions that put individuals' basic human rights in jeopardy, writes Jennifer Corkhill.
There is currently a bill before the SA parliament to amend the Mental Health Act 1993. This article draws attention to Part 10 of the bill which provides new arrangements for the recognition of interstate orders and the involuntary transfer of people between South Australia and other jurisdictions.
The consultation process for the bill addressed the issue of cross-border recognition of orders made in respect of mental health consumers and noted that South Australia had yet to legislate in this regard.
However, the proposed laws go much further than cross-border recognition of orders and much further than is indicated in the Second Reading Speech or the press release of Premier Mike Rann about the bill.
Put simply, the bill allows the director of a treatment centre to authorise the involuntary and forced interstate transfer of any person who has moved to live in SA who becomes mentally ill and is detained. Reciprocal provisions apply for people to be transferred back to SA.
The bill also provides an extensive scheme for authorising the involuntary and forced removal from SA of people who may have come to live in SA from another state even if they have not been diagnosed with a mental illness, been assessed or treated - and regardless of whether orders exist in the other state. There are also reciprocal provisions allowing transfer from interstate back to SA.
The fact that coercive provisions may be used to breach a person's basic rights before they have even been assessed as having a mental illness is totally objectionable and was not anticipated in the consultation process. The coercive provisions of the Mental Health Act have always been predicated upon the actual existence of a mental illness as determined by a medical practitioner and confirmed by a consultant psychiatrist.
The only justification for these sweeping powers is that there is a need for people who become mentally ill in one of the remote parts of SA to be able to access mental health facilities in another state which are closer than the SA facilities. This is not objectionable and it must surely be possible to craft laws which will allow for this.
It goes without saying that such involuntary transfer will almost always involve enforced medication (usually an injection against the person's will of a strong sedative), and /or physical restraint.
These laws breach a number of basic and well known international and national human rights principles about the right of all persons, including the disabled, to live where they choose. And what about section 117 of the Constitution?
Of significant concern is that, despite the potential for breaches of such basic rights, the bill provides few checks and balances. At the extreme, what, for instance is to stop these laws being used to circumvent criminal extradition laws for forensic mental health patients?
Decisions to transfer persons who are already detained in SA or who are on interstate orders are made by the director of the relevant treatment centre.
Decisions to transfer people who have not yet been assessed or treated can be made by a variety of personnel - including police officers, ambulance officers and mental health clinicians. Decisions can be made at these various levels without any formal or informal review process or oversight.
Following representations from the SA Law Society and other interest groups, the bill has been amended to provide appeal provisions for persons already detained in SA. However, inexplicably and despite strong representations, the appeal provisions do not apply to those who have not yet been assessed or treated and there is no provision for the person to get legal advice. In addition, the bill neglects to provide for interstate orders recognised in SA to be subject to SA review and appeal laws.
The Victorian Mental Health Act provides for a review of all such orders without delay and the tribunal must be satisfied that the transfer will benefit the patient or be necessary for the patient's treatment.
The bill also provides no guidance as to what will occur in the event that the mental illness is subsequently found not to exist. There is, for instance, no provision for the person's repatriation back to South Australia or accommodation and transport pending repatriation.
The minister has agreed to an amendment to the bill to require that all such transfers be in the person's "best interests". How will the person's "best interests" be determined? Will the person's views about where they wish to live be seriously taken into account? Will their connection or lack thereof in the other state be considered? The case study below suggests not.
How will "best interests" be properly determined in cases where transfer is set to take place before assessment, and the person has no medical history readily available to the decision-maker or where they are unable to communicate their wishes due to illness or medication? What is the point of requiring consideration of "best interests" if there is no review at all of the decision?
And, surely, if a person is so unwell that they need immediate detention, and enforced inpatient treatment, this treatment should be provided immediately and the person's condition allowed to settle before consideration is even given to an interstate transfer.
In December 2007, I represented a man from Perth who was about to be transferred from SA back to Perth against his will. He had been travelling through SA on his way to NSW - where he planned to live - when he became mentally unwell. He had no family connections in WA and wanted to return to his childhood home in NSW.
His wishes about where he lived and his lack of connection with WA which he had repeatedly expressed and which were clearly recorded in his clinical case notes were totally disregarded by those who were making decisions about his transfer.
Although he had been on an order when he left WA, he was not on any orders in WA at the time of the proposed transfer and had been held in an acute psychiatric ward in SA for many months pending transfer arrangements, although he was well enough to move to community care and should not have remained detained.
The transfer was due to take place the next morning by a Qantas commercial flight. The clinical case notes showed that arrangements had been made to medically sedate the man in advance of the transfer. Surely without legal basis for the transfer, the medication would have been an assault - not to mention a breach of medical ethics?
No-one making the decisions about this man in SA seemed concerned about my representations regarding the fact that there were no orders in place in WA permitting his detention when he arrived on the tarmac in Perth and was no longer subject to the SA detention order. He would have been sedated, so an examination on the plane and immediate detention would have not been possible (let alone desirable). His planned restraint and transfer to a Perth hospital would surely have been unlawful and thus amount to false imprisonment and probably assault.
Fortunately, following urgent representations to the minister's office, the transfer did not take place and he was quickly released into community accommodation in SA.
It was only by chance that I came to hear of this man's predicament and I was made aware at the time that the case was not an isolated one.
Some of these new laws will make it lawful to force a man such as my client to live other than where he chooses to live just because he has a mental illness. Others will make this lawful for people who have not even been assessed as being mentally ill.
This article was first published in the Law Society of South Australia Bulletin Volume 31 - Issue 2, and has since been updated by the author to incorporate changes in the proposed legislation.
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