The Mental Health Act, 1983, and its associated legislation, effects an extensive reorganisation of the law relating to mental health in New South Wales. This paper seeks to explain the operation of the Act from the point of view of medical practitioners, for the most part medical officers and psychiatrists employed in psychiatric hospitals. Reference is also made to the rights of patients, medical and surgical treatment of patients, the property of patients and the operation of the Mental Health Review Tribunal.
References
1.
W. v. L. (1974) 1 QB 711; (1973) 3 All ER 884 at 888, Denning M. R
2.
W. v. L. op. cit., Lawson L. J. at 890
3.
In the Matter of an Alleged Incapable Person (1959) 76 WN (NSW) 477. Re N. (1982) 43 ACTR 20, R.A.P. v. A.E.P. (1982) 2 NSWLR 508, P. Y. v. R.J.S. & Ors (1982) 2 NSWLR 700, D. W. v. J.M.W. (1983) 1 NSWLR 61, G.P.G. v. A.C.F. (1983) 1 NSWLR 54, G.N.M. v. E.R. (1983) 1 NSWLR 144, C.F. v. T.C.M.L. (1983) 1 NSWLR 138, McD v. McD (1983) 3 NSWLR 81, C.V.S. v. B.S. (unreported), Supreme Court of New South Wales, Powell J. 6 April 1983, I.A. v. S.S. (unreported), Supreme Court of New South Wales, Powell J. 14 April 1983, Attorney General (NSW) v. S. (unreported), Supreme Court of New South Wales, Powell J. 15 November 1984
4.
R.A.P. v. A.E.P. supra
5.
G.N.M. v. E.R. supra, D.W. v. J.M.W. supra, G.P.G. v. A.C.F. supra
6.
P.Y. v. R.J.S. & Ors supra, but cf In the Matter of an Alleged Incapable Person supra, McD v. McD supra
7.
D.W. v. J.M.W. supra
8.
G.P.G. v. A.C.F. supra
9.
For a general discussion of the issue, seeBriscoe, ‘The Meaning of “Mentally Ill Person”’ in the Mental Health Act 1958–1965 of New South Wales' (1968) 42 ALJ 207
10.
See the comment of Powell J. in R.A.P. v. A.E.P. [1982] 2 NSWLR 509–10. And also see Briscoe, ‘The Meaning of “Mentally Ill Person” in the Mental Health Act 1958–1965’ (1968) 42 ALJ 207
11.
Hall v. Semple (1862) F & F 337; Shackleton v. Swift [1913] 2 KB 304; Everett v. Griffiths [1921] 1 AC 631; Smith v. Iffla (1881) 7 VLR (L(435; Roberts v. Hadden (1873) 4 AJR 167; Nolan v. Ward [1920] VLR 604
12.
Shackleton v. Swift supra
13.
Ex parte Fitzgerald; Re the NSW Medical Board and Another (1946) 46 SR (NSW) 111
14.
For a consideration of a magistrate's power under this part see Williamson v. Brown (1914) 18 CLR 433, a case concerning the equivalent provisions of the Lunacy Act 1898 (NSW)
15.
As to the meaning of the term ‘incapable of managing his or her affairs’ see the comments of Powell J. in D.W. v. J.M.W. [1983] 3 NSWLR 81, establishing that the court is, in considering this question, not restricted to matters at the date of hearing but is entitled and required to consider what the position would be in the reasonably foreseeable future
16.
G.P.G. v. A.C.F. [1983] 1 NSWLR 54; M.S. v. E.S. [1983] 3 NSWLR 199
17.
Although under section 118 of the Post and Telegraph Act 1901 (Commonwealth) it is an offence to obstruct or retard the conveyance or delivery of mail, the term ‘mail’ is defined in that Act to include every package, receptacle or covering in which postal articles in the course of transmission by post are conveyed. It would seem, therefore, that it is not prohibited by the Commonwealth legislation for a person to impede correspondence getting into the postal system, although it would be an offence to impede the delivery of mail once it is within the postal system. This, no doubt, is the reason why there is no provision within the New South Wales Mental Health Act, 1983 regarding the delivery of mail to a patient, other than the affirmation contained in section 187 (3), which in view of section 118 of the Commonwealth legislation would seem to be either invalid or, at least, unnecessary
