Individuals suffering a mental illness have traditionally received treatment and care which have raised questions regarding the appropriateness and suitability of the therapy. In part, this has been related to the stigma and lack of understanding of psychiatric disorders and because a diagnosis of mental illness can have a dramatic effect on patient’s lives. Kerridge, Lowe and Stewart¹ highlight that a diagnostic label has a social function — the diagnosis of psychiatric illness validates patient’s symptoms and has allowed people to avoid the military draft and escape punishment for certain crimes. A psychiatric diagnosis can also have a negative effect where it may be used to suppress political dissent. ² People suffering from mental illness have been routinely institutionalised despite the fact that one in five Australian adults has, or will develop, some form of mental disorder. ³ This is an area which is now regulated by detailed legislative provisions about the type of care provided and how patients are to be treated. This is partly because patients who have psychiatric disorders are sometimes treated against their will, allowing a considerable relationship imbalance between patient and professional which is accentuated more than that evident for patients suffering other illnesses.

Significant change in Australia can be traced to the federal government’s participation and contribution in the development of the United Nations’ Principles for the Protection of Persons with Mental Health Care (1991). These principles were adopted in the National Mental Health Plan (1992). The principles highlight, among other things, the importance of mentally ill individuals being free from discrimination, determination of mental illness to be made in accordance with internationally accepted principles, treatment to be individualised and discussed with the individual, detention should involve the least restrictive measures for the least necessary time, and include clearly established legislative procedures. The initial strategy provided a 5-year plan to reform mental health services, so that all Australian jurisdictions enacted legislation creating review mechanisms. There have been further reports culminating in 2006, when the federal government released A National Approach to Mental Health — From Crisis to Community.⁴. The recommendations relate to funding for mental health services, consistency of mental health legislation across the jurisdictions and increasing the number of community health and treatment facilities.

Mental health legislation exists in all states and territories (see Table 10.1).

The aim of the legislation in every jurisdiction is to ensure that patient rights are balanced with the need to provide care. This ensures that mentally ill individuals are not detained without reasonable justification. The strategy also advocates a change in modalities of treatment from a single psychiatric institution, to the use of a combination of treatment settings, including general hospitals, residential settings and community support services.

There has always been some difficulty in providing a clear legislative definition of what constitutes a mental illness. The most recent legislation uses symptoms displayed by the patient as a method of defining mental illness. The mental health legislation varies in relation to the distinction made between those individuals with a mental illness and those who are intellectually or developmentally disabled. In New South Wales and Victoria, there is separate legislation, ⁵ whereas in South Australia, Western Australia and Tasmania, intellectual disability and psychiatric illness are dealt with under the mental health legislation. For example, the Tasmanian legislation deals with intellectual disability, anti-social personality disorders, patients with mental symptoms caused by organic disease, including senility, and psychiatric illness. In the Australian Capital Territory, Queensland and the Northern Territory, there is no clear distinction made between intellectual disability and psychiatric conditions.

In the New South Wales legislation s 14 of the Act defines ‘mental illness’ as:

A ‘mentally ill person’ is also defined as:

The New South Wales legislation introduced a new category to address situations in which individuals are not necessarily mentally ill but are temporarily irrational and a danger to themselves or others. An example would include a person who suffered from acute suicidal tendencies. The category of ‘mentally disordered persons’ allows for the individual to be detained if the person’s behaviour is so irrational to justify a conclusion, on reasonable grounds, that temporary care, treatment, or control of the person, is necessary. ⁷

While there is some degree of consistency in the terms used in the remaining jurisdictions, each definition does vary as every word must be considered when the sections are actually interpreted. The Australian Capital Territory and the Northern Territory legislative definitions have similar wording to that expressed in the New South Wales legislation. In the Australian Capital Territory, s 4 of the relevant Act defines mental illness as:

The definitions appear to be relatively straight forward however, when interpreted by a court the importance of highlighting the actual symptoms or frequency of symptoms, as per the definition, become apparent. In Burnett v Mental Health Tribunal [1997] ⁹ Ms Burnett retired from the public service for ‘psychiatric reasons’ in the early 1990s and since that time had been involved in a series of disputes with her neighbours. The police had been involved on occasion and she had been taken into custody and admitted at least 5 times to the psychiatric unit. In 1997 she assaulted a neighbour and caused some property damage, for which she was admitted to hospital again. The Mental Health Review Tribunal found Ms Burnett to be suffering from a psychiatric illness and she was ordered to be detained for 28 days, during which psychiatric treatment was to be given. Ms Burnett appealed the tribunal’s decision to the ACT Supreme Court. The court acknowledged that there was much to suggest that Ms Burnett’s behaviour was irrational on a number of occasions. The paucity of evidence, however, made it difficult to determine whether her behaviour could be viewed as ‘sustained or repeated’ as stated in the definition. To fulfil the definition of ‘sustained or repeated’ the court wanted evidence of the behaviour occurring more than once — ‘it should refer to a pattern of irrational behaviour which occurs with a degree of frequency’ — however, the court found this was not sufficiently made out. The judge went on to express concern that it was even more difficult to determine whether Ms Burnett’s behaviour was indicative of the presence of delusions or other symptoms referred to in the definition. The court overturned the tribunal’s decision.

The Northern Territory legislation considers mental illness is a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person in one or more of the areas of thought, mood, volition, perception or orientation of memory, demonstrated by a list of symptoms including delusions, disorders of thought or mood. ¹⁰ The legislation also specifies that any determination must be:

In Victoria, mental illness is defined as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. ¹² Moreover, ‘serious temporary or permanent physiological, biochemical or psychological effects of drug or alcohol taking can be regarded as an indication that a person is mentally ill’. ¹³ The Queensland legislation is similar to Victoria, where mental illness is defined as ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory’. ¹⁴ In Western Australia, the Act states that a person has a mental illness if ‘the person suffers from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent’. ¹⁵ The Tasmanian Act uses similar language. Mental illness is described as ‘a mental condition resulting in a serious distortion of perception or thought, or serious impairment, or disturbance of the capacity for rational thought, or a serious mood disorder, or involuntary behaviour or serious impairment to control behaviour’. ¹⁶ South Australia is distinctive as the definition is very broad. Section 3 of the Mental Health Act 1993 states that a mental illness merely includes ‘any illness or disorder of the mind’.