LESS than half of forms authorising the detention of involuntary patients addressed requirements under law, according to a South Australian study in the MJA. Under the 1993 Mental Health Act clinicians must record the three criteria for admission; the presence of a mental illness; the existence of risk to the patient themselves or to others; […]
LESS than half of forms authorising the detention of involuntary patients addressed requirements under law, according to a South Australian study in the MJA.
Under the 1993 Mental Health Act clinicians must record the three criteria for admission; the presence of a mental illness; the existence of risk to the patient themselves or to others; and a need for immediate treatment. These requirements are the same in all other jurisdictions except for the ACT.
Researchers from Flinders University trawled 2491 records submitted between July 2008 and June 2009 and found that only 40 per cent met these three criteria.
“Most health professionals are aware of their competence but they are not properly educated in legal requirements,” said one of the study’s authors, Andrew Alston. He is a lawyer and Associate Professor with the Faculty of Medicine, Nursing and Health Sciences at Flinders University.
He thinks that the figures represent ignorance of correct practice among health staff rather than knowing misuse of powers. When ‘need for immediate detention’ was left out of the analysis, compliance increased to 68 per cent, which was “reassuring.”
But twenty two per cent of forms did not record the presence of mental illness, and 14 per cent did not record the risk to self or others. To neglect these formal procedures could open the admitting psychiatrist to legal challenge, said Professor Alston.
Professor Alston has previously written that, “most jurisdictions have legislation that protects persons responsible for a committal if they acted in good faith”. These protections have been implemented following historical court cases in recognition that mental health practitioners are performing difficult duties for the public good.
But while the criminal law might not apply in a health setting, Professor Alston said “there is also the tort of false imprisonment where you detain someone involuntarily without legal justification. There may well have been a lot of such cases that have been settled [out of court]”.
He added that people with mental health problems would often be deterred from challenging official powers because they may not know their rights, they may have difficulty soliciting legal help, and may not have able to handle the stress of the legal process.
“There’s always a problem with mental health patients because they extremely vulnerable,” said Professor Alston. “If a mistake is made it may well be rectified in time, but any improper detention should not occur and this is well recognised within the United Nations principles.”
Since 2009, the Mental Health Act of South Australia no longer requires written documentation of admissions at all. Dr Aaron Groves, Chief Psychiatrist SA Health said that the 2009 Act was implemented after extensive consultation with consumers, their carers and mental health services, and was reviewed again in 2014
“The majority were of the opinion that a ‘reason for admission’ field on forms for the making of an order was not required and instead that the health practitioner making the order … must explain to the consumer and their carers what is happening and the reasons why, in a way they can understand,” Dr Groves told the Medical Republic.
In the MJA paper the authors wrote that, “stating the grounds for involuntary admission should provide protection for the rights of patients, and the requirement to do this reflects the gravity that the loss of liberty entails for the patient.” Australian jurisdictions are inconsistent as to how a patient be notified of the reasons for their admission.
In some cases a patient must be notified in writing while in other states verbal notification is sufficient. This, of course, presents a problem of ensuring that patients are in a fit state to understand and remember what has been told to them, said Professor Alston.
“We’d be far better off uniform legislation of Australia,” he said. In the absence of strict adherence to such protections there is the risk that health practitioners are “substituting their own moral judgement for what the law requires. And there is the great tradition of paternalism in mental health though we are moving away from that”.
