Page 2816 - Week 11 - Wednesday, 21 October 1992
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The Balancing Rights report was most concerned with the law relating to involuntary detention and treatment. In fact, ACT Legal Aid has claimed:
The emergency detention powers are, from the perspective of the detained person, quite frightening. [Legal Aid] has seen cases where the evidence on which the initial diagnosis of mental dysfunction is made is very tenuous indeed. The person may then be detained and treated, including the administration of some very powerful drugs, against their will for at least 72 hours.
ACT Legal Aid goes on to say:
We have often seen cases where the person had been detained for up to a month before an application for treatment had been made. During this period, two or three emergency detention orders had been made. The usual explanation from the health authorities was that the person had agreed to be a voluntary patient for periods between these orders ... This is despite the fact that the person was never told they were at liberty to leave, their day clothes had been taken away from them and locked away, and despite the fact that the present ward has secured doors which must be opened from both directions by a security key.
These reports are obviously very distressing. The court process surrounding mandatory detention and treatment orders remains one of the most important areas needing to be reformed. The Mental Health Tribunal will be a very important step in this direction.
As well, we must make sure that the mentally ill are not necessarily forced into court when treatment orders are being processed. This can often be very alienating and traumatising for anyone, let alone somebody in a position of being mentally ill and in a system that they do not understand. Instead, Balancing Rights recommended that qualified doctors be able to order involuntary detention and treatment within the first 24 days, and a mandatory hearing of the Magistrates Court or a mental health tribunal is required after this initial period. In other words, the Government must look for ways to resolve mental health cases without having access to time consuming and often traumatising court processes. For example, the patient must always have a right of access to court at any stage of the voluntary detention or treatment process, but only have a right to that.
In fact, one case that springs to mind - one with which I have some personal involvement - shows the very difficult problem that comes in the mental health area and balancing rights. It is a case where a mother and father and a daughter, who is now 19, live together. Mother has been agoraphobic for many years. Father has recently retired on a carer's pension to look after her. The daughter seems to now be diagnosed as being agoraphobic and also schizophrenic. Because she is agoraphobic she will not submit to voluntary treatment; yet the home situation is totally unacceptable for her to be treated in an appropriate way. To balance her rights as a 19-year-old who is on an invalid pension already and really is heading nowhere in her life without appropriate treatment, in a family with a mother who is already agoraphobic and, to my knowledge, has not been outside the door for 20 years, and to balance the rights of the doctor attempting to
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