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

Abstract

The Supreme Court decisions on civil commitment legislation in Western Australia in EO v Mental Health Review Board [2000] WASC 203 and in Victoria in RW v Mental Health Review Board [2000] VSC 404 enunciate an insistence that fairness and due process be adhered to in determining whether mental health patients should be involuntarily detained — in particular, that patients ordinarily should have access to their clinical files before review board decisions, and that involuntary detention within the community concludes on the date that a community treatment order expires, unless it has previously been revoked, discharged or extended. To this extent, they consolidate a tradition of construing the provisions of mental health legislation strictly and in favour of patients' rights to freedom of decision‐making. However, the decisions also highlight a range of contemporary difficulties in relation to psychiatrists' initial decision‐making about civil commitment The courts' views that psychiatrists should be properly familiar with their patients' histories, should have regard to patients' backgrounds of treatment in evaluating the reality of patients' ability to consent to treatment, and should refrain from mechanical decision‐making and backdating of orders are not surprising but have the potential for important practical consequences. The decisions of the courts do not constitute a triumph of civil libertarianism over patients' entitlements to treatment but they are a warning sign that the courts will intervene in decision‐making about involuntary detention where they consider that fairness, due process and informedness of decision‐making have been deficient