Most people are probably aware that it is possible to be admitted, against your wishes, to a mental health facility. What people probably haven't thought about is what they should do if it happens to them, or somebody they love.
In Australia we still have a common law presumption of habeus corpus, which is Latin for the right to the body, but in law means that a person is entitled to control over their own body. That is, they are entitled to move about, not to be detained, and if they are detained then demanding the right of habeus corpus means I want my body back (and out of detention). The process for applying for release from a mental health facility if you are an involuntary admission is similar to the process of applying for Bail.
Even the relevant legislation starts with the requirement that the person be a 'mentally ill person' and that there is no other less restrictive treatment option available before a person can be involuntarily admitted.
What does Mentally Ill mean?
The facility must decide that you are a mentally ill person to detain you involuntarily. The definition of a mentally ill person is:
- There are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm
- There are reasonable grounds for believing that care, treatment or control of the person is necessary for the protection of others from serious harm
In short, it is a question of whether there is a serious risk of harm
Once you are admitted there are certain steps that the facility must take. They must:
- Be examined by a doctor within 12 hours of admission
- If that doctor is not a psychiatrist and they make an order for ongoing detention, then they must organise for a psychiatrist to later examine the patient
- Arrange for the person who is being detained to be brought before the Mental Health Tribunal 'as soon as practicable' after admission and review by the doctors as stated above
- If the person is continuing to be detained after the initial Tribunal hearing, then they will be brought before the Tribunal again to review whether they still need to be there
What do I do?
If you have been detained in a hospital under the Mental Health Act you may be brought before the Mental Health Review Tribunal (‘the Tribunal’). You should arrange for a lawyer to assist you with the process. As you might imagine the process is a little different to the process in a criminal Court, and you should find a lawyer who specialises in this area of law (detention under the Mental Health Act) not just a criminal lawyer.
Bruce Coode is experienced in appearing at Tribunals at what used to be called Piala at Nepean Hospital. He understands the process as well as the law in the area, and in his initial free appointment he will be able to indicate whether he can help you and how much that will cost. Make an appointment to speak with him today.
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