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Guidelines and Policies

A Guide to the Mental Health Act 2007
Legal Aid NSW

Aggression, Seclusion & Restraint in Mental Health Facilities in NSW
NSW Health
Includes information about seclusion and restraint practices.

Overview of Psychiatric Ethics [PDF]
NSW Clinical Education and Training Institute

Principles and Guidelines for Aboriginal and Torres Strait Islander Mental Health [PDF]   Australia
Royal Australian and New Zealand College of Psychiatrists

Royal Australian & New Zealand College of Psychiatrists
§ ‘Code of Ethics’,
§Principles on the provision of mental health services for asylum seekers’ ,
§ Variety of guidelines for psychiatrists re legal reports

‘Guide to ethical principles on medico-legal reports’
‘Conducting independent medical examinations and preparing reports’
‘Ethical guidelines for independent medical examination and report preparation by psychiatrists’
‘Guidelines for psychiatrists in relation to family court proceedings’
‘Certification of opinion according to non-clinical criteria’

Legislation

Mental Health Act 2007 NSW
Outlines requirements for involuntary treatment and detention orders.

Toolkits and Reports

Mental Health Services in Australia
Australian Institute of Health and Welfare
Provides a picture of the national response of the health and welfare service system to the mental health care needs of Australians.

Mental health services – in brief 2011
Australian Institute of Health and Welfare

Cases

Antunovic v Dawson [2010] VSC 377 VIC
A patient under a community treatment order wanted to leave her residential care facility and go and live at home with her mother. The community treatment order did not specify that she had to live in the facility, but her psychiatrist refused to let her go home. The judge, following Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1, found that public officials or private persons cannot lawfully detain mental health patients except under and in accordance with some positive authority conferred by law. There was no such thing in Australia as executive deten-tion, or detention under executive warrant or special command. After reviewing the Mental Health Act 1986 (Vic), the judge could not find a lawful basis for the deprivation of the patient’s liberty. Bell J ordered a writ of habeas corpus to release the patient from her detention.

Australian Capital Territory v Crowley [2012] ACTCA 52 ACT
Crowley, sued the police and the Australian Capital Territory Mental Health Services (ACTMH) for negligence after being shot in the neck and becoming paralysed as a result. Crowley argued, amongst other things, that ACTMH were negligent in not involuntarily treating him on the day before the shooting and for not reassessing him in the morning of the shooting. Crowley did not allege negligence in relation to the actual shooting, but instead argued that the police had also been negligent in how they approached him. He argued that had they approached him in a more calm and relaxed manner, he would not have reacted poorly and then been shot. The ACT Court of Appeal found that both claims should fail. The claim against the police failed because there was no duty owed to Crowley.

McWhinney v Melbourne Health [2012] VCC 660 VIC
Once a patient has been taken into care, duties of care are then imposed for diagnosis and treatment. The plaintiff claimed that he had been negligently diagnosed and involuntarily treated, but the claim failed for lack of evidence.

Hunter Area Health Service v Presland [2005] NSWCA 33 NSW
Mr Presland had been mistakenly released from a psychiatric hospital following an inadequate assessment for the purpose of the Mental Health Act 1990 (NSW) and then killed his brother’s fiancé. Preston was charged with murder but found not guilty on the grounds of mental illness. He successfully sued the health service alleging there was a breach of the duty of care when the psychiatric registrar did not recognise that he was a mentally ill or mentally disordered person who should have been detained as an involuntary patient. Preston was awarded $300,000 damages which was overturned on appeal. The scope of the duty to the patient does not extend to injuries caused by the patient’s own unlawful behaviour.

Adams by her next friend O’Grady v New South Wales [2008] NSWSC 1257 NSW
The mentally ill plaintiff unsuccessfully tried to sue the state for negligently allowing her access to a knife which she used to kill a teacher.

Simon v Hunter and New England Area Health Service [2012] NSWDC 19 NSW
Duties can also be owed to third parties who have been injured by mentally ill patients but only where the injury was reasonably foreseeable. A mentally-ill patient was released to the custody of his friend who said he would drive him home. During the trip the patient killed the friend. Family members of the victim sued the health service for negligently releasing the patient. The judge found there was no duty of care to the family members as the risk of the patient killing the victim was not significant, probable or reasonable foreseeable, as required by the Civil Liability Act 2002 (NSW), s 5B.
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Papers, Reports and Books

Enforcing medical treatment under the Involuntary Treatment Order: An ethical dilemma?
Seth Delpachitra
Australian Medical Student Journal
2(1) [Qld]

Is Involuntary Psychiatric Treatment “Reasonable, Necessary, Justified and Proportionate”?
David Webb for Mental Health Legal Centre Victoria
A paper on involuntary treatment in light of the Victorian Charter of Human Rights and Responsibilities

Mental Disorders and genetics: the ethical context
Report from Nuffield Council on Bioethics

Mental illness and the law
Australian Family Physician 35(3)

When is compulsory treatment ethically justified?
NSW Legislative Council Social Issues Committee

Rising to the Human Rights Challenge in Compulsory Treatment – New Approaches to Mental Health Law in Australia
Sascha Callaghan & Christopher James Ryan (2012) 46 Australian and New Zealand Journal of Psychiatry 611

The validity and utility of risk assessment for inpatient suicide
Large, M, C Ryan, et al (2011) 19(6) Australas Psychiatry 507-12

Community treatment orders in Australia: rates and patterns of use
Light E, Kerridge I, Ryan C, Robertson M. 2012 20 (6) Australas Psychiatry 478-482

Seeking asylum in Australia: immigration detention, human rights and mental health care
Newman L, Proctor N, Dudley M, (2013) 21 Australas Psychiatry 315-320

Multimedia

Dementia: Ethical Issues
Report from Nuffield Council on Bioethics
§  Video presentation of findings

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