A number of mental health acts specify behaviour or beliefs which are expressly excluded as amounting to a mental illness. For example, people who hold particular religious beliefs, political views or philosophies, or express particular sexual preferences, or engage in immoral or anti-social conduct, are not considered as necessarily suffering a mental illness according to the legislation. For example, sexual preferences, certain beliefs and opinions are excluded in the Australian Capital Territory, New South Wales, Western Australia, Queensland, Northern Territory and Victoria. ¹⁷

The Victorian Act is detailed with regard to the exclusion criteria of what does not constitute a mental illness. Section 8(2) states:

The difficulty of defining and excluding behaviour not considered to amount to a mental illness became evident in the Gary David case in Victoria. ¹⁸ Mr David was a convicted murderer and during his prison sentence he began to self mutilate, threaten prison staff and make threats against the broader public. He was certified as an involuntary patient under the Mental Health Act 1986 to detain and treat him, but he appealed to the Mental Health Review Tribunal, who ruled that he suffered a personality disorder, not a mental illness, and could therefore not be committed. In response, the government enacted the Community Protection Act 1990 ‘to provide for the safety of members of the public and for the care or treatment of Gary David’. ¹⁹ This legislation allowed the government to detain Mr David for 12 month periods, after an application was made to the Supreme Court and the court was satisfied that he was a serious risk to the safety of a member of the public and was likely to commit an act of violence against someone. Regular reports were required to be made to the government and in 1993 Mr David died as a result of his self-inflicted wounds.

The preference to de-institutionalise mentally ill patients has resulted in a less restrictive treatment option which is in keeping with both modern psychiatric treatment trends and the national strategy. As discussed above, involuntary admission and detention usually occur in situations of acute psychiatric illness when patients may inflict harm on themselves or others, or where they may undergo a serious deterioration in their condition. There are also patients who require supervision but are not considered to be a risk to others or to themselves. This group of mentally ill patients are now encouraged to live in the community under ongoing supervision. Usually ‘supervision’ entails continued administration of medication. Tasmania, Western Australia, Queensland, the Australian Capital Territory, New South Wales and Victoria have legislative provisions which permit patients, who are classified as ‘involuntary’, to live in community care programs. Other jurisdictions rely on leave of absence provisions.

In the Australian Capital Territory, the legislation specifies that as far as possible patients should be encouraged to care for themselves in the community. The Mental Health Tribunal makes community care orders and may specify the type of care and at which agency this will occur. ³⁰ Likewise in Queensland, Tasmania, Victoria, New South Wales and Western Australia, authorised personnel can make community treatment orders. The specifications of the orders vary but may include the type of treatment and care to be given, the treating medical practitioner, where the treatment will take place, the duration of the order and how the medical practitioner will make progress reports.

In New South Wales, the Act establishes community care agencies which have psychiatric case managers who monitor the patients under community treatment orders (CTOs). The CTO, made by a magistrate or the Mental Health Tribunal, can be issued while a person is either in a mental health facility or living in the community. The order may require a patient to attend a specified healthcare facility for treatment, which is usually counselling and medication. A CTO remains in force for up to 12 months. Should the patient refuse to comply with the order, he or she is given a warning that any further refusal will result in a return to hospital.

The mental health legislation in most jurisdictions establishes boards or tribunals to carry out a number of functions. ³⁵ The functions of each are set out in the legislation.

There is some variation, however, the general review process in relation to detained patients is consistent. The boards or tribunals have the responsibility of hearing and determining appeals from a magistrate and periodically review all patients who have been detained; for example, informal patients who have been detained for a period of 12 months or longer. They also make determinations in relation to detained patients, when there is disagreement between the patient and the treating doctor as to treatment or category of admission or detention. Moreover, appeals against CTOs and counselling orders made by a magistrate can be heard and determined by the boards and tribunals. They may hear reports relating to restraint and seclusion and the non-psychiatric treatment of a patient.

In South Australia, there is a close relationship between the mental health legislation and the Guardianship Board, which has the power to review consent issues and detention orders. ³⁶ The only appeal and review mechanism in the Northern Territory against a decision of a magistrate is an application to the Supreme Court to review the order. ³⁷

The standard of care expected by certain classes of individuals raises questions as to the duty, and the scope of that duty, owed to people who may be suffering from a mental illness or in circumstances where a mentally ill person commits a serious crime. The following two cases involve examination of mental health legislation in two distinct cases.

The mental health legislation in some jurisdictions allows for certain classes of individuals to intervene and detain a person who is suicidal. A recent High Court case, Stuart v Kirkland-Veenstra [2009] ³⁸ examined the extent of that responsibility. The Victorian mental health legislation provides police officers with the statutory power to apprehend a mentally ill person ‘if they reasonably believe that person has recently attempted suicide … or is likely to attempt suicide’. ³⁹ The case involved two police officers who found a man, Mr Veenstra, in his car at a beachside car park with a hose leading from the exhaust pipe to the interior of his vehicle. The car engine was turned off and Mr Veenstra was sitting in the car with the window down. The officers spoke with him for some 15 minutes and offered him assistance, which he declined. Mr Veenstra stated that he had been contemplating ‘doing something stupid’, but had changed his mind and informed the officers that he would return home and talk to his wife. Later that same day at his home, Mr Veenstra committed suicide.

The court was required to consider whether the police officers were in breach of their duty and should have apprehended Mr Veenstra at the car park. The High Court observed that the mental health legislation required two conditions to be satisfied. Firstly, the person must ‘appear to be mentally ill’ — the definition of mental illness is characterised as a ‘significant disturbance of thought, mood, perception or memory’.⁴⁰ The statutory power required the police officers to make an assessment in the circumstances, but they were not required to exercise clinical judgment. The court found that the officers’ observation and interactions were sufficient for them to determine that Mr Veenstra was not mentally ill. The court also highlighted that there is no proposition at common law that attempted suicide or suicide gives rise to a presumption of mental illness. The second condition necessary before the power to apprehend would be satisfied focuses on the officers’ belief that Mr Veenstra was likely to attempt suicide. The court noted Mr Veenstra’s responses to the officers, that he was rational and cooperative, and this supported the officers’ belief that he was not likely to attempt suicide in the near future. The court held that neither of the two conditions were satisfied and the officers were not obliged to exercise the statutory power provided. The situation for health professionals in providing care to a person who is suicidal might be distinguished from the actions of the police in this case.

The second case, Presland v Hunter Area Health Service & Anor [2003]⁴¹ involved a decision by the New South Wales Supreme Court where a mentally ill person committed a crime. Mr Presland suffered from delusional behaviour and, following a delusional episode, he was engaged in a violent incident with a work mate and his family. He was subsequently transported to hospital. It was noted that Mr Presland suffered head injuries and yet he appeared to understand that he required psychiatric assessment and treatment. He agreed to be transported to a psychiatric hospital. The following morning his brother arrived with some clothes for him and after a brief interview with the on-duty registrar, Mr Presland was discharged. There was some considerable confusion and debate as to the circumstances surrounding his departure from the hospital, the registrar stating that the patient wanted to leave, and Mr Presland’s brother denied that this was the case. Nevertheless, the registrar formed the view that Mr Presland was not mentally ill and discharged him into his brother’s care. A short time after his release Mr Presland, in a psychotic state, killed his brother’s fiancé. He was tried for murder and acquitted, but detained in a psychiatric unit in Long Bay gaol.

When Mr Presland was released some 2 years later he sued the health service on the grounds that the service had breached its duty of care to him, in failing to recognise his mental illness and for failing to detain him as an involuntary patient. He argued that had he been detained he would have been treated and would not have subsequently committed the murder. The judge was critical of the fact that the registrar did not have a complete record of circumstances involving the admission and failed to adequately assess him.⁴² The court discussed the role of the mental health legislation and reasoned that there were responsibilities owed by the medical profession to provide the best possible care. The court awarded him damages, however, this decision was overturned by the Court of Appeal in Hunter Area Health Service & Anor v Presland [2005].⁴³ The critical issue for the Court of Appeal was the scope of the duty of care, particularly whether it extended to encompass the effects of unlawful conduct. The court found that a duty was owed to Mr Presland yet his acts were unlawful, and public policy was against awarding damages in these circumstances. Moreover, to impose a duty could bias decisions made under the mental health legislation towards favouring detention. It is noteworthy that one judge, Spigelman J held:

After this case the New South Wales government amended the Civil Liability Act 2002 to prevent the recovery of damages for loss resulting from a serious offence (resulting in death, damage or serious injury to a person), committed by a mentally ill person.⁴⁵ The Mental Health Act was also amended to exclude personal civil liability of police officers, paramedics and other health professionals for functions exercised under the Act. The effect of this section does not exempt medical practitioners from liability in the provision of medical treatment within the meaning of the mental health act.⁴⁶ In other words, medical practitioners still have a responsibility to exercise a reasonable standard of care when treating under the Mental Health Act, because treatment is distinguished from those functions imposed on the police and health professionals generally.