Today’s correspondent ‘… ask[s] about avenues for advocating for law reform’. They:

… have difficulty reconciling EEA criteria in the Public Health Act with the Mental Health Act’s focus on the importance of using the least restrictive means when treating mental health patients.

Anecdotally it is very apparent that EEAs are often used for low-risk patients for the purposes of protecting paramedics in case of patients’ future actions rather than the actual ‘immediate’ risk as defined in the Act. It was certainly acknowledged during my … induction that there is a need for law reform but day to day interpretation and implementation seems to vary significantly.

Given the Public Health Act is 11 years older than the Mental Health Act, I do wonder whether there is merit in review of the Public Health Act.

As individuals are there any actions that can be taken to advocate for law reform? I’ve been considering things like a phone call go the Mental Health Commissioner but I’m not sure who best to speak to.

Your readers may be interested in this research done in 2023 which found that of the sample studied only 22% of people brought in under EEAs were actually admitted to hospitals.

https://onlinelibrary.wiley.com/doi/full/10.1111/1742-6723.14201

Law reform is not easy.  For a government to change legislation they need to persuade the majority of the parliament that there is a problem and that their policy response will fix it.  Queensland, the ACT and the NT have parliaments with only one house, so the government only needs a majority there; but in every other jurisdiction they need to persuade a majority in both houses to pass their legislation.  And there are infinite demands on government with many interest groups identifying issues that, in their mind, are or should be the immediate concern of government.

What follows is that it is the ‘squeaky wheel that gets the oil’.   If you want to persuade the government that there is a need for law reform you need to persuade them there is a problem.  You need to start with your local MP, or a relevant champion or Minister, who has to be persuaded, and who then has to persuade their parliamentary colleagues, and then persuade a majority of MPs that the proposed reform is good policy. And if no-one is complaining then there is not much of a problem that needs their attention.

In my discussion of the Mental Health Act 2007 (NSW) s 20 I have argued that it does not, in my view, allow ambulance officers to treat and detain a competent patient who has refused consent.  I confess to being a lone voice on that interpretation, and no-one is going to change the Act because ‘Michael Eburn says so’.   In my post ‘Accepting that involuntary treatment is an option under s 20 of the Mental Health Act 2007 (NSW)’ (November 25, 2020) I reported that I had asked practitioners with expertise in mental health law of their interpretation of s 20 and their consensus was ‘a court would probably interpret the section as allowing ambulance officers to detain and treat, without consent, patients who are mentally ill or mentally disordered.’

A court may be tempted by the facts. If there was an egregious abuse of s 20 they may be tempted to rule against its use but if a case came up where it was thought everything was done in the reasonable and best interests of the patient then a court may be willing to find that s 20 did authorise that action.

More importantly, where a person is detained under s 20 they may not complain. They may, after treatment be grateful for the actions of ambulance officers, or their detentions may be made lawful by decisions of health care practitioners or the Mental Health Review Tribunal so that even if the initial detention was strictly unlawful it was overtaken by events.  In effect even if the law is ambiguous (or even wrongly applied) but practitioners (in this case paramedic, medical and legal practitioners) have come up with a ‘work around’ that no-one is complaining about, there is really no problem to fix and the matter never gets before a court. And people who are detained under mental health legislation (or in Queensland, public health legislation) but who are subsequently not further detained probably have limited resources to complain and would also find them facing the argument that if the initial detention decision was reasonable the subsequent decision not to continue detention is evidence that the system works, not that it needs reform.

Conclusion

To advocate for a law reform an individual needs to collect evidence to show that there is a problem that is causing widespread harm, confusion or cost (and ideally cost to government) and that law reform is the appropriate policy response.  Often that would be beyond the capacity of an individual but, in the case of mental health law reform, would need ‘buy in’ from interested advocacy and support groups.  The Mental Health Commissioner is no doubt aware of the issues (if any) and would have direct access to government if they thought reform was required.  Raising the issue with them may cause them to inquire to see if there is a problem or they may, through an application under the Right to Information Act 2009 (Qld) be a source of data to support the argument that there is a problem.   But like the MPs they will have more pressing day-to-day concerns than dealing with an issue of law reform if the application of the law is not causing them headaches.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.