The Contest between Psychiatrists and Lawyers over Involuntary Detention: The Effects of Recent Changes in Mental Health Legislation in New South Wales

Abstract

New mental health legislation was enacted in New South Wales in 1983 and, although the reformed Act remains unproclaimed, some of the new procedures have already been introduced into psychiatric hospitals. The spirit of the Act is clearly aimed at protecting the rights of the mentally ill, who are often unable to act as their own advocates. To ensure this protection, it is now routine for solicitors to represent detained patients in their pleas for release. In this report we describe three recent cases that illustrate the difficulties that arise when solicitors and psychiatrists contest the legitimacy of detention orders. The atmosphere of judicial hearings is becoming increasingly adversarial and the public disclosure of sensitive information can provoke unnecessary distress in patients and their families. In the zeal to preserve civil rights, the special needs of psychiatric patients can be obscured, sacrificing the patients' rights to confidentiality, privacy and appropriate treatment. While the involuntary detention of patients is a matter of the utmost seriousness, current procedures, which seem to be modelled on those of the criminal legal system, are proving to be inappropriate to the needs of psychiatric patients.