Abstract
The mental health legislation of every state and territory in Australia allows psychiatrists to coercively detain and treat people with mental illnesses. This power is carefully regulated and every mental health act contains a provision demanding independent quasi-judicial review of the circumstances of the detention. The timing of this independent review is currently the subject of controversy in New South Wales.
The NSW Mental Health Act requires that anyone who is admitted as an involuntary patient must undergo an automatic independent review ‘as soon as practicable’ [1]. Since the phrase ‘as soon as practicable’ first appeared in NSW mental legislation in 1958, it has been interpreted as ‘generally within 7–10 days’. However, when the Mental Health Review Tribunal began conducting these reviews in June last year, its president said that from then on reviews would be held ‘in the third or fourth week of detention’ [2]. Suddenly ‘as soon as practicable’ would mean ‘within about a month’.
In November, over 150 psychiatrists from across NSW banded together to sign an open letter to all New South Wales parliamentarians demanding a return to the previous system of timely review. The psychiatrists were concerned not only with the diminution of human rights caused by the delay, but also with an erosion of patient care. With the right to timely independent automatic review dissolved, patients could only achieve a rapid review by lodging their own appeal against their doctors’ refusal to discharge them. Not only do relatively few people take up a right to lodge an appeal [3], but those who do must take on an adversarial role, pitted against their treating team. This situation is qualitatively different to a routine, automatic review of the team's decision.
Prior to the procedural changes introduced in June, NSW had led Australia in the timeliness of the provision of its automatic reviews. Only the ACT and Northern Territory had faster reviews. All other states lag woefully behind. In Tasmania, patients wait four weeks, in South Australia and Queensland, six weeks, and in Victoria and Western Australia, up to eight weeks, without independent review.
Notably a draft exposure of a new Victorian mental health bill goes to some lengths to improve the Victorian situation [4].
Our society places enormous importance on liberty. In any other circumstance where a person's liberty is curtailed by the state, legislated mechanisms ensure a rapid, automatic, independent process to ensure that all the necessary procedures have been followed and criteria met [5]. The letter signed by so many NSW psychiatrists has had a powerful impact [6], and we are optimistic that the rights of people with mental illness in our state will shortly be restored. An important part of the psychiatrists’ role is to protect the rights of their patients. Perhaps it is time that psychiatrists in other states called for similar protections in their legislation.