Obligatory dangerousness criteria in the involuntary commitment and treatment provisions of Australian mental health legislation

King, Robert & Robinson, Jacqueline (2011) Obligatory dangerousness criteria in the involuntary commitment and treatment provisions of Australian mental health legislation. International Journal of Law and Psychiatry, 34(1), pp. 64-70.

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Abstract

Abstract Objective

Involuntary commitment and treatment (IC&T) of people affected by mental illness may have reference to considerations of dangerousness and/or need for care. While attempts have been made to classify mental health legislation according to whether IC&T has obligatory dangerousness criteria, there is no standardised procedure for making classification decisions. The aim of this study was to develop and trial a classification procedure and apply it to Australia's mental health legislation. Method

We developed benchmarks for ‘need for care’ and ‘dangerousness’ and applied these benchmarks to classify the mental health legislation of Australia's 8 states and territories. Our focus was on civil commitment legislation rather than criminal commitment legislation. Results

One state changed its legislation during the course of the study resulting in two classificatory exercises. In our initial classification, we were able to classify IC&T provisions in legislation from 6 of the 8 jurisdictions as being based on either ‘need for care’ or ‘dangerousness’. Two jurisdictions used a terminology that was outside the established benchmarks. In our second classification, we were also able to successfully classify IC&T provisions in 6 of the 8 jurisdictions. Of the 6 Acts that could be classified, all based IC&T on ‘need for care’ and none contained mandatory ‘dangerousness’ criteria. Conclusions

The classification system developed for this study provided a transparent and probably reliable means of classifying 75% of Australia's mental health legislation. The inherent ambiguity of the terminology used in two jurisdictions means that further development of classification may not be possible until the meaning of the terms used has been addressed in case law. With respect to the 6 jurisdictions for which classification was possible, the findings suggest that Australia's mental health legislation relies on ‘need for care’ and not on ‘dangerousness’ as the guiding principle for IC&T.

Keywords: Involuntary commitment; Mental health legislation; Dangerousness; Australia

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ID Code: 46386
Item Type: Journal Article
Refereed: Yes
Keywords: Involuntary commitment; , Mental health legislation; , Dangerousness; , Australia
DOI: 10.1016/j.ijlp.2010.11.010
ISSN: 01602527
Divisions: Current > QUT Faculties and Divisions > Faculty of Health
Current > Schools > School of Psychology & Counselling
Copyright Owner: Pergamon
Deposited On: 11 Oct 2011 04:36
Last Modified: 29 Feb 2012 17:36

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