Proposed changes to the function of the Mental Health Act will erode patient rights

Abstract

Imagine for a moment you ind yourself arrested in some foreign clime – Queensland, for example. You are told you have transgressed some northern law and are looking at several weeks inside. You are anxious, to be sure, but not dismayed. You know you are innocent and you’re sure you’ll be able to persuade a judge that there has been a miscarriage of justice. You also know that under Queensland law the police must present you to court “as soon as reasonably practicable” and you know that, like all Australian jurisdictions, this time frame is normally interpreted as being within 24 hours, 365 days of the year. All Australians enjoy a basic right to freedom of movement. Australians who ind themselves detained against their will have a right to be brought before a court to ensure that the terms of the detention are lawful. This ancient right is protected in the civil law through habeas corpus and is also relected in the prompt review of criminal procedure. Timely independent review of restrictions on liberty is also applied in the medico-legal context. For example, while the NSW Guardianship Act allows a person responsible or guardian to consent for a patient who lacks capacity, if that patient objects to the treatment, the Act stipulates that, a quasijudicial body - the Guardianship Tribunal – must authorise this consent to check that this deprivation of freedom is justiied. The Tribunal is available to hear urgent matters around the clock and urgent orders are usually made within a week.