The Gravely Inadequate Definition of a “Mentally Ill Person” in the Mental Health Act (New South Wales) 1983

Abstract

The definition, given in Section 5 of the new Act, of a “mentally ill person” is examined. It is argued that this “definition” is cumbersome, logically incoherent, and impractical. It is predicted that if given effect it will have very unwelcome consequences. Various sources of inherent misunderstanding and uncertainty are noted. Arguments are presented for allowing severe mental illness itself rather than its consequences to be the ground for involuntary hospitalization in certain circumstances. Various suggestions are proposed for the Section's amendment. These fall into two categories, depending upon alternative assumptions: (1) minor improvements, upon the pessimistic assumption that the main structure and content of the definition will be retained; (2) more radical amendment, involving the abandonment of the entire present structure of the section, and the adoption of a working definition of “mental illness” with clear safeguards against error and abuse. The nature and requirements of such a definition are discussed.