Rising to the human rights challenge in compulsory treatment – new approaches to mental health law in Australia

‘Additional harm’ and compulsory orders

The mental health acts of all Australasian jurisdictions currently demand that, before a person with a mental illness can be coercively detained and treated, an examining doctor must consider the possibility of a certain type of harm befalling the mentally ill person or another person. The types of harm to be assessed include current or potential harm to the patient themselves, and the potential harm that the patient poses to others.

With respect to harm to the person themselves, the requirements of the legislation differ in every jurisdiction (see Table 1).

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Table 1.

Harm requirements for the making of inpatient orders in Australasian mental health legislation.

South Australia	New South Wales	Tasmania	Victoria	Western Australia	Queensland	Northern Territory	Australian Capital Territory	New Zealand
Mental Health Act 2009	Mental Health Act 2007	Mental Health Act 1996	Mental Health Act 1986	Mental Health Act 1996	Mental Health Act 2000	Mental Health and Related Services Act 1998	Mental Health (Treatment and Care) Act 1994	Mental Health (Compulsory Assessment and Treatment) Act 1992
Detention and treatment orders - s21/s25/s29	s14	Detention - s24 / Treatment - s32	s8	s26	s14	s14	s28	s2
For coercive treatment of a mentally ill person, it must be shown that: ‘because of the mental illness, the person requires treatment for the person’s own protection from harm (including harm involved in the continuation or deterioration of the person’s condition) or for the protection of others from harm.	For coercive treatment of a mentally ill person, it must be shown that: ‘owing to [the mental] illness, 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, or for the protection of others from serious harm’. Consideration should include ‘the continuing condition of the person, including any likely deterioration in [their] condition and [its] likely effects . . .’.	For detention of a mentally ill person, it must be shown that: ‘(b) there is, in consequence [of the person’s mental illness], a significant risk of harm to the person or others; and (c) the detention of the person as an involuntary patient is necessary to protect the person or others’. For coercive treatment of a mentally ill person it must be shown that: ‘(c) the person should be given the treatment in his or her own interests or for the protection of others’.	For coercive treatment of a mentally ill person, it must be shown that: ‘because of the person’s mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person’s physical or mental condition or otherwise) or for the protection of members of the public’.	For coercive treatment of a mentally ill person, it must be shown that treatment is required in order: ‘(i) to protect the health or safety of that person or any other person; (ii) to protect the person from self-inflicted harm of a kind described in subsection (2); or (iii) to prevent the person doing serious damage to any property;’	For coercive treatment of a mentally ill person, it must be shown that: ‘because of the person’s illness – (i) there is an imminent risk that the person may cause harm to himself or herself or someone else; or (ii) the person is likely to suffer serious mental or physical deterioration;’	For coercive treatment of a mentally ill person, it must be shown that: ‘without the treatment, the person is likely to: (A) cause serious harm to himself or herself or to someone else; or (B) suffer serious mental or physical deterioration;’	For coercive treatment of a mentally ill person beyond a 3 day Emergency Treatment Order, it must be shown that: ‘because of the illness, the person is likely to – (i) do serious harm to himself, herself or someone else; or (ii) suffer serious mental or physical deterioration; unless subject to involuntary psychiatric treatment;’	For coercive treatment of a person with a mental disorder, it must be shown that the person: ‘poses a serious danger to the health or safety of that person or of others’.

In New South Wales an examining doctor must believe that intervention is ‘necessary for the person’s own protection from serious harm’ (Mental Health Act 2007 (NSW) s. 14). Up until recently, it has not been clear what would constitute ‘serious harm’, and many NSW psychiatrists had taken the view that the Act required serious harm that was more than any harm caused merely by the symptoms of the mental illness. Applying this narrow interpretation, it would not have been sufficient for the person to be suffering serious harm as a result of abusive hallucinations, or distressing delusions, or severely depressed mood; something more would have been required, such as the possibility the patient might commit suicide, or physically deteriorate. However in the recent case of Re J the New South Wales Supreme Court noted that ‘section 14 would permit the continued involuntary detention of a person suffering from mental illness if that were necessary to protect the person from serious harm, being the harm associated with the illness itself’, though White J added that ‘it would be necessary to consider the extent to which the illness was a harm for the person and to assess its seriousness’ (Re J (no. 2) [2011] NSWSC 1224 (‘Re J’) at [101]).

While this statement from Re J is not strictly binding on future cases, it is likely that in New South Wales, if a patient is suffering a mental illness; that illness is causing serious harm; and there is no less restrictive way of protecting the person from that harm, involuntary detention will be permitted under the Mental Health Act 2007 in circumstances where the serious harm is the symptoms of the illness itself. For example crushing, unremitting depression is a serious harm in itself, even without additional concern about the possibility of future suicide, other self-harm or deterioration. The harm to be considered in New South Wales can include harm being experienced at the time of admission, or harm that may occur in the future if treatment is not given.

The South Australian Mental Health Act 2009 also clearly states that the harm to be considered includes ‘the harm involved in the continuation or deterioration of the person’s condition’ – so current harm-causing symptoms of mental illness will provide sufficient warrant for involuntary treatment in South Australia (ss. 10, 16, 21, 25, 29).

In the other jurisdictions however, it may not be possible to treat patients who are ‘only’ suffering harm experienced as the symptoms of the mental illness – even though those symptoms might be severe and debilitating. In these jurisdictions, the Mental Health Acts may require evidence of some ‘additional harm’ occurring, either at the time the patient is assessed or at some time in the future. This might include some additional impact on health and safety beyond that caused by the illness directly.

The Tasmanian Mental Health Act 1996 has a similar requirement to the New South Wales legislation, in that there must be ‘a significant risk of harm to the person’ for a person to be detained in hospital (s. 24). While the statement of the New South Wales Supreme Court in Re J suggests that this requirement might also be interpreted broadly, it would still be open to the Tasmanian courts to give a more narrow reading to the legislation, with the effect that additional harm to the harm caused by the symptoms of mental illness may be required. Also, and unlike New South Wales, the use of the word ‘risk’ suggests that the relevant harm is future harm, not harm being experienced at the time the patient is assessed.

The Victorian and Western Australian acts do not refer to ‘harm’ to the person, but rather, that treatment must be necessary to protect the person’s ‘health or safety’ (Mental Health Act 1986 (Vic) s. 8; Mental Health Act 1996 (WA) s. 26). Again, it is not clear what protection of ‘health or safety’ would include, though in Victoria at least, the second reading speeches for the legislation referred to protection from further deterioration or physical harm, suggesting that the intention of the legislators was that the current symptoms of the illness alone should not be sufficient warrant for involuntary detention (Roper, 1985). However as this has yet to be considered by the Victorian court a wider reading of the requirements is still possible (Ryan, 2011a). The law in New Zealand similarly requires the abnormal state of mind pose ‘a serious danger to the health or safety’ of the person (Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) s. 2).

The situation is perhaps most concerning in the two Australian Territories and in Queensland. The law in the Australian Capital Territory and the Northern Territory requires that the examining doctor must believe that the person is likely to cause serious harm to themselves or suffer serious deterioration (Mental Health (Treatment and Care) Act 1994 (ACT) s. 28; Mental Health and Related Services Act 1998 (NT) s. 14). The Queensland Mental Health Act is the same, except that the envisaged harm-to-self need not be ‘serious’, though the risk must be ‘imminent’ (s. 14). In requiring that the harm must be caused by the patient, all three jurisdictions may require an estimation of risk of an act of self-harm by the patient, or evidence of risk of deterioration – and all require an assessment of likelihood of future harm.

With respect to harm-to-self then, the legislation in all Australasian jurisdictions (except South Australia and New South Wales) make it possible for clinicians to interpret provisions so as not to allow coercive treatment unless the affected person is deemed to be either currently suffering some harm or likely to come to some harm in the future, additional to the harm that is inherent in suffering from serious mental illness. If doctors do interpret the provisions this way and do not believe that the person is suffering some ‘additional harm’ or likely to come to some ‘additional harm’, then coercive treatment may only be given if they believe that the person is likely to harm another person.

The statutory requirements in terms of harm-to-others differ again in each jurisdiction (Table 1), but in all, clinicians are required to make some estimate of the likelihood of future harm to others. In New South Wales there must be ‘reasonable grounds for believing that care, treatment or control of the person is necessary . . . for the protection of others from serious harm’ (Mental Health Act 2007 (NSW) s. 14). The law in the Australian Capital Territory and the Northern Territory is similar (Mental Health (Treatment and Care) Act 1994 (ACT) s. 29; Mental Health and Related Services Act 1998 (NT) s. 14). In Tasmania and Queensland the ‘harm’ envisaged is not qualified by the word ‘serious’, however: in Tasmania, there must be a ‘significant risk’ of harm for a person to be detained; and in Queensland the risk must be ‘imminent’ (Mental Health Act 2000 (Qld) s. 14; Mental Health Act 1996 (Tas) s. 24). In Victoria, involuntary treatment must be necessary ‘for the protection of members of the public’, while in Western Australia it must be required to ‘protect the health or safety’ of any other person (Mental Health Act 1986 (Vic) s. 8; Mental Health Act 1996 (WA) s. 26). In New Zealand the abnormal state of mind must pose a ‘serious danger to the health or safety . . . of others’ (Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) s. 2).

When mental health laws impose coercive treatment regardless of whether a person has capacity to refuse it, an ‘additional harm’ criterion might be seen to provide some justification for overriding that person’s autonomy. However when coercive treatment can only be imposed if a patient lacks capacity to refuse, as is required under the Victorian and Tasmanian draft bills, there is no need to justify a breach of autonomy, because the person’s refusal is not truly autonomous. In these circumstances, a substituted decision should be made on the patient’s best interests alone. Whether or not the patient is experiencing some ‘additional harm’ or causing harm to others is of no relevance beyond its consideration in a best interests calculation.

In any case, and perhaps more importantly, the increasing evidence that assessments of risk of future harm are of no practical utility and may even cause unnecessary harm by preventing access to treatment for patients who are unable to consent to treatment but for whom treatment would be in their best interests (Large et al., 2008a), only adds to an argument for the removal of criteria that ask clinicians to consider a likelihood of future harm.

In other words, despite the widespread use of ‘additional harm’ criteria in mental health legislation, if patient capacity is the threshold criterion for compulsory treatment, there is no benefit, and quite possibly discriminatory detriment in imposing these extra requirements for access to treatment.

The Victorian Exposure Draft Mental Health Bill clearly includes an ‘additional harm’ criterion for compulsory treatment, requiring clinicians to make estimates of future harm. Mirroring the troublesome provisions of the current Queensland and territory acts, the draft Victorian bill demands that compulsory orders can only be made in circumstances where, if the person is not detained for assessment (cl. 64(c)) or treated (cls. 70(d), 71(d)) there is either ‘an imminent and significant risk that the person may cause serious harm to himself or herself or to another person’ or ‘a significant risk that the person will suffer serious physical or mental deterioration’. This requirement means that patients who lack the capacity to consent to treatment that would return their physical and mental health may not be able to gain access to that treatment if they are not deemed to be at risk of serious self-harm, or serious deterioration. Under the common law, or the Victorian Guardianship and Administration Act 1986 (ss. 42E, 42H), if these patients were medically ill, they would be able to be given treatment which was in their best interests, regardless of whether or not they were thought at risk of ‘self-harm’, ‘harm to others’ or ‘serious deterioration’.

The Tasmanian Exposure Draft Mental Health Bill also requires consideration of the possibility of ‘additional harm’ to the patient, but in far broader terms than the Victorian proposal. When making an involuntary treatment order, the Tasmanian tribunal must be satisfied that (cl. 59):

without treatment, the mental illness will, or is likely to, seriously harm –

It seems likely that the serious harm referred to here could include harm already being suffered at the time the judgement is made, though clinicians will still be trying to make some estimate of future risk to others. Moreover, and although the New South Wales Supreme Court decision in Re J would encourage a wider interpretation, it would remain unclear what serious harm to the patient’s health and safety actually means. It is not clear, for example, that this requirement would permit treatment to be provided to patients who lacked capacity to consent and who would simply be better off if their illness were treated.

It seems that the requirement that treatment must be necessary to prevent ‘serious harm to health’ may constitute a higher threshold for treatment than a ‘best interests’ test – which is currently the basis for treating non mentally-ill patients in Tasmania where they lack capacity and actively object to treatment (Guardianship and Administration Act 1995 (Tas) s. 43).

At the very least, a test focused on harm prevention precludes a more positive focus on the potential benefits of treatment – a balancing of the benefits and disbenefits of treatment. This balancing of all the relevant considerations is just the sort of exercise required in a ‘best interests’ test and would be a fairer and more straightforward approach to treatment decisions for mental illness. Continued reliance on ‘harm prevention’ tests, as opposed to a broader ‘best interests’ test, may have the effect of giving patients with mental illness who lack decision-making capacity more limited access to legitimately required treatment than those with physical illnesses. A differential approach to treatment based only on the type of illness a person has, which would operate to the detriment of patients with psychiatric illness, would seem unfairly discriminatory.