Region: Oceania
Year: 1997
Court: Supreme Court of Australian Capital Territory
Health Topics: Mental health
Human Rights: Right to due process/fair trial, Right to liberty and security of person
Tags: Compulsory commitment, Compulsory confinement, Compulsory treatment, Forced treatment, Incapacity, Incompetence, Involuntary commitment, Involuntary confinement, Involuntary treatment, Mandatory confinement, Mandatory treatment, Mental competence, Mental disability, Mental disorder, Mental illness, Mental institution, Non-consensual testing and treatment, Non-evidence based treatment, Paranoia, Psychiatry, Psychology
This case involved a challenge to a decision of the Australian Capital Territory (ACT) Mental Health Tribunal. The ACT Supreme Court set aside an order to detain and administer psychiatric treatment to Geraldine Patricia Burnett, a 38 year old woman who suffered from a mild psychotic disorder.
Burnett had at various times been taken into custody after aggressive behaviour towards her neighbours. She had been admitted five times to the psychiatric unit at Canberra Hospital prior to her admission on 11 October 1997, when she allegedly physically abused her neighbour.
The Mental Health Tribunal ordered Burnett to attend a mental health facility for 28 days to receive medical treatment, and authorized the Director of Mental Health Services to detain and administer treatment to her. Burnett challenged this decision before the A.C.T. Supreme Court, alleging that the Tribunal had not met the requirements of natural justice and seeking judicial review.
In making a decision, s 9 of the Mental Health (Treatment and Care) Act 1994 (the Act) required that:
“A person performing a function or exercising a power under this Act, or pursuant to an order of the Tribunal, in relation to a mentally dysfunctional person shall endeavour to ensure that any restrictions on that person’s personal freedom and any derogation of that person’s dignity and self-respect are kept to the minimum necessary for the proper care and protection of the person and the protection of the public.”
Sections 23 to 29 of the Act further laid out a set of conditions that needed to be met before a person could be detained or involuntarily treated. These included, among other criteria, that a person must be shown to suffer from a ‘psychiatric illness’ before the Tribunal could make an order for psychiatric treatment, and that an involuntary commitment order could only be made if it was necessary for the person’s own protection or the protection of others.
The Court held that it was unlawful to detain and administer treatment involuntarily to Burnett. The Court was unsatisfied that Burnett’s mental illness was severe enough to meet the definition of psychiatric illness under the Act. It found that the evidence of her condition was insufficient to justify the involuntary treatment.
Additionally, it was not necessary to detain Burnett for her own protection. The Court held that it would be necessary to detain someone in order to protect them from suicide, self mutilation or some other physical harm and harm to the community. However, it found that the Tribunal had not established satisfactory evidence that this was the case.
Finally, the detention was unlawful because natural justice had not been granted to Burnett. The Court held that “[n]atural justice required that the appellant be made aware of any intention to act on the basis of the allegations and be given the opportunity to be heard in relation to their truth or falsity.” In this case, the Court stated that the requirements of natural justice had not been met because Burnett was not given the opportunity to respond to the claims about her mental health to the Mental Health Tribunal.
The Court noted that as a matter of public policy, depriving a person of their liberty based on unsubstantiated allegations contravened s 9 of the Act and was “contrary to the fundamental principles of freedom and justice which undergird a democratic society.” As such, the Court held that there was no integrity in subsequent predictions about her likelihood of suicide, self mutilation or other physical harm and harm to the community. The Court therefore ruled that there was insufficient reason to detain Burnett.
“It cannot be said too emphatically that to deprive a person of his or her liberty on the basis of unsubstantiated allegations flies in the fact of the policy reflected in s 9 of the Act and is contrary to the fundamental principles of freedom and justice which undergird a democratic society.”
“It is a serious step to deprive a person of his or her liberty, especially if it is intended that the detention be used to facilitate involuntary psychiatric treatment such as enforced medication. In my view, such a step should be taken only when facts demonstrating the necessity for it have been established by clear and persuasive evidence and the person concerned has been given the opportunity to be heard.”