Civil commitment: Due process, procedural fairness and the quality of decision‐making

Psychiatry, Psychology and Law

Volumn 8, Issue 1, 2001, Pages 105-117

  Freckelton, Ian ^a,b  

^a MONASH UNIVERSITY   (Australia)

^b LA TROBE UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

AUSTRALIA; COURT; DECISION MAKING; DETENTION; HUMAN; INVOLUNTARY COMMITMENT; LAW; MENTAL PATIENT; PATIENT RIGHT; PSYCHIATRIST; REVIEW;

EID: 0035714452     PISSN: 13218719     EISSN: 19341687     Source Type: Journal    
DOI: 10.1080/13218710109525009     Document Type: Article

References (31)

1. Burnett V; The Mental Health Tribunal, unreported; S Ct of ACT; Library No SCA 84 of 1997
2. Crispen J; Graham v State of New South Wales, unreported, NSW Court of Appeal, 13 October 1989
3. Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139; David by Her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417
4. Harry v Mental Health Review Tribunal ‖ Anor (1994) 33 NSWLR 315 at 322–323 per Kirby P
5. MM v Mental Health Review Board [1999] WASC 1005 per
6. Scott J; MM v Mental Health Review Board [1998] WASC 392 per
7. White J: “[T]here must be a reconciliation of personal freedom and the need for treatment and that, as a matter of general principle, a person should not be forced to accept medidne or treatment, even though it be for her own good. It is a serious step to deprive a person of her liberty, especially if it is intended that detention be used to facilitate involuntary psychiatric treatment such as enforced medication.” See also Re B v Mental Health Review Board and Dr W (1988) 2 VAR 598.
8. Compare though Eames J in Re Murray, unreported, Supreme Court of Victoria, 23 June 1995, commenting at p 5
9. “A too-ready assumption that the exercise under s8 is analogous to an arrest and detention by police officers may well prove disadvantageous to the broader interests of the client”, applying Mahoney JA in Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 335.
10. WASC 203.
11. See N Barber, “Mental Health – Problems and Issues with Access to Information in Western Australia” (2000) 7(2) Psychiatry, Psychology and Law 198.
12. MM v Mental Health Review Board [1999] WASC 1005.
13. MM v Mental Health Review Board [1998] WASC 392.
14. Scott J specifically referred to and adopted the comments of Deane J in Donaldson v Broomby (1982) 40 ALR 525
15. VSC 404.
16. In Victoria a community treatment order is defined under s3 of the Mental Health Act 1986 (Vic) as “an order requiring treatment for mental illness of a person who is at large in the community but does not apply to a person who is in prison or a patient in an approved mental health service.” For extensive annotations of the Act, see I Freckelton (ed), Victorian Criminal Law, Investigation and Procedure, vol 2, Law Book Co, Sydney, 2000.
17. Re Review of CW, unreported, Victorian Mental Health Review Board, 3 February 1997
18. Re Review of McD, unreported, Victorian Mental Health Review Board,1 October 1997
19. Re Review and Appeal of PM, unreported, Victorian Mental Health Review Board, 31 March 2000 (deciding the Board did not have jurisdiction to review the status of persons on expired CTOs)
20. Re Appeal and Review of JM, unreported, Victorian Mental Health Review Board, 4 September 1995; Re Review of JA, unreported, Victorian Mental Health Review Board, 7 August 1998
21. Re Appeal of MC, unreported, Victorian Mental Health Review Board, 20 August 1999 (deciding the Board did have jurisdiction to review the status of persons on expired CTOs).
22. In particular, In the Matter ofXY, unreported, Full Court of Victorian Supreme Court, 6 March 1992; (1992) 2 MHRBD (Vic) 501
23. Re Murray, unreported, Supreme Court ofVictoria, 23 June 1995.
24. Referencing In the Matter of XY, unreported, Full Court of Victorian Supreme Court, 6 March 1992; (1992) 2 MHRBD (Vic) 501
25. Re the Review ofAWY (1995) 2 MHRBD (Vic) 250 at 254
26. Re the Review of RD (1997) 2 MHRBD (Vic) 425 at 432; Re the Appeal ofEOB (1995) 2 MHRBD (Vic) 245.
27. In the Review of NI [2000] 3 MHRBD (Vic) (forthcoming).
28. Unreported, Full Court of Victorian Supreme Court, 6 March 1992; (1992) 2 MHRBD (Vic) 501.
29. Unreported, Supreme Court ofVictoria, 23 June 1995.
30. (1994) 33 NSWLR315.
31. PS Appelbaum, Almost a Revolution: Mental Health Law and the Limits of Change, Oxford University Press, New York, 1994