A month of detention without review

About your Guest Hoyden: Jo Tamar is a human rights lawyer who blogs about things that catch her eye relating to feminism and equality generally.

[TRIGGER WARNING for forced detention following diagnosis of mental illness.]

Imagine a world in which you could be held by a government agency, against your will, for up to a month.

If you have a mental illness, that is now a real possibility.

Deborah Snow has reported on changes for the SMH – that’s actually how I heard about this – and has some interviews with various people. In summary: the doctors who are quoted are universally opposed to the changes. There’s only one person in the article who supports the changes:

The head of the tribunal, Greg James, a former judge, rejects the criticisms. He said patients retain a right under the Mental Health Act to call in the tribunal at any time to examine their case.He argues the changes will avoid the many adjournments which occur now, where doctors tell magistrates they are not ready to seek a formal ruling.

Courts and tribunals don’t like adjournments. Where you have two (or more) adversarial parties duking it out with equal representation, it’s a reasonable position to not like adjournments. They are often an indication that one or more parties are dragging their feet. However, where you have vulnerable people* whose liberty is at stake, it’s not good enough to say “we will give these people fewer opportunities to come before us because if they do come before us, it’s probably only going to be adjourned anyway”.

James points to the right that a person who is detained has to “call in the tribunal at any time”. Sure, that right will remain. However, in order to exercise that right, a person who is detained needs to: (1) know about the right; (2) know how to exercise the right; (3) have the energy/spoons/capacity/ability/etc to exercise the right.

The problems with (3) should be obvious, but briefly: someone who is being forcibly detained and forcibly medicated (and given the known effects that many psychoactive medications have, possibly not with it, or possibly physically affected, etc etc), who may be having some sort of episode related to their mental illness, quite possibly won’t have the energy/spoons/capacity/ability/etc to fill out the required forms, make sure they get to the relevant person, etc etc etc – or even (or especially?) to arrange for legal representation so someone can do all those things for them.

And that’s assuming that the knowledge barriers in (1) and (2) are overcome. Yeah, about that. If you’ve been forcibly detained before (or if you’ve done some research because you’re (1) a lawyer, (2) generally interested, or (3) been afraid the laws might apply to you), you might be aware of the right to call the Tribunal in. Might be.

A medical officer at the facility is currently under an obligation to give the detained person a statement of their rights, both orally and in writing. That statement is in a prescribed form (until the laws change, at least, you can find it here). The amendments to the legislation (which you can find here for the time being) don’t appear to change this, but I assume it will be changed in due course to reflect the procedural amendments.

The obligations to give information are contained in sections 74 and 76 of the legislation. In summary, section 74 says that the medical officer must give the patient a general statement of their rights, and if they don’t seem to understand, try again “not later than 24 hours before a mental health inquiry is held about that person”.

That means that, potentially, you could be detained, given a statement of your rights at a time when you don’t understand, and then not be given that statement again until about a day before your mental health inquiry. Which could be three or four weeks after you are detained.**

Plus the information doesn’t really tell you how you can apply to get the Tribunal to come in. It tells you how you might get help to do that, but there’s nothing really specific. That concerns me.

Section 76 is the requirement to give you information about specifically your mental health inquiry. Interestingly, the new section 36 (in the amendments, currently here) allows the Mental Health Review Tribunal to adjourn the inquiry on the basis that the detained person has not been properly given the information under section 76. So potentially, you could be detained, not given the information you are supposed to be given under section 76, wait 3 or 4 weeks for your inquiry, and then have your inquiry adjourned (probably for another 2 weeks) because you haven’t properly been given the information you were meant to be given. Sounds like a situation ripe for mistakes and abuse!

What all of this means is that there are probably very many people detained under this legislation who do not know that they can “call in the Tribunal at any time”. Which brings me to the next point: is there really a right to call in the Tribunal at any time?

That supposed right is referred to in the following terms in the written statement that must be given to detained people:

What are my rights of appeal if I have been made an involuntary patient?You (or a carer or friend or relative) may at any time ask the medical superintendent or another authorised medical officer to discharge you. If the medical superintendent or authorised medical officer refuses or does not respond to your request within 3 working days you (or a carer or friend or relative) may lodge an appeal with the Mental Health Review Tribunal.

You will be given a notice setting out your appeal rights.

I take that to refer to this section.

In other words, before you can call in the Tribunal, you have to (1) ask to be discharged; (2) wait for a decision or for up to 3 working days (ie potentially 5 or 6 or 7 actual days, if you get hit by a weekend or public holiday(s); (3) when the decision is “no” (or the days of waiting are up), lodge an appeal to the Tribunal. It would probably take a few days to lodge the appeal, and at least a few days for the Tribunal to respond. And to really bring on the cynicism: what if they then say “oh, we’ll be calling in there for our regular fortnightly hearings in a couple of days, we’ll deal with your case then”?

The legislation isn’t perfect now, but at least there is an automatic review within a week. Even that is a pretty long time to be forcibly detained.

Under the changes, realistically, most people will be waiting 3 or 4 weeks for a review. That’s horrendous.

I just hope that anyone who is wrongfully detained, and anyone who is kept waiting for a review for an unreasonable amount of time, makes a very, very loud noise about it. And I hope we listen.

* The vulnerability of the people affected here is more because they have been caught up in a system, forcibly detained and potentially forcibly medicated than simply because they have a mental illness. Although, of course, a person is much more likely to be affected by this legislation if they actually do have a mental illness, and if it is an illness which for whatever reason makes it more difficult for them to deal with the system, then they will be even more vulnerable.

** Also, if you can’t communicate in English, you have no right to a written statement in a language you can communicate in (although you do have a right to an oral statement in a language you can communicate in). WTF? Surely it can’t be that hard to get a bunch of the written statements printed out in various common languages? Maybe they do this – but why isn’t it in the legislation?

Cross-posted at Wallaby

Categories: health, law & order

Tags: , ,

3 replies

  1. I’m completely terrified 😦

  2. hexy, I’m sorry to have written a terrifying post 😦
    No, fuck that. I’m sorry that this terrifying situation exists. And really, really angry.
    I’m also curious about why legislative changes made in 2008 are only coming into effect now. If I get a chance over the next week or two, I’m going to do some digging to see if I can figure out why.

  3. (((((hexy))))) But for an accident of geography, I’d be terrified too.
    If I get a chance over the next week or two, I’m going to do some digging to see if I can figure out why.
    If you do find anything, please post it. (Though don’t take that as pressure to dig if you don’t get a chance).

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