Something in the Way? Approaching the Elephant in the Room When All Else Fails

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March 19, 2015

Over the past few years, we have dealt with a number of cases in which a central or key party was suffering from mental illnesses or mental disorders that resulted in adverse yet avoidable consequences for themselves or others. 

When we use these terms here, we are not talking about some of the natural (but terrible) consequences of ageing, such as dementia or Alzheimer’s disease, or situations where people otherwise generally become of unsound mind. Those types of cases are a different story altogether, for another post on another day. What we are talking about here ranges from the more extreme and violent kind of disorders, such as drug-induced psychosis, to the more tragic, such as severe depression.

From what we have seen in practice, the consequences of leaving such disorders unattended vary significantly. Obviously sometimes suicide is a tragic risk, that absolutely must be prevented. Other consequences range from the complete breakdown of commercial, business and personal relationships, the removal of children from the family unit and so on. Then there is crime, from the more commercially-motivated, such as larceny or theft, through to the more violent again, including domestic violence or even murder. 

In a great number of cases, the person suffering from the disorder usually otherwise was, until more recently in time, a respectable, loved, kind and outwardly normal person. However, for example, through prolonged and secretive drug abuse, psychosis is induced, or by bottling emotions up, depression onsets. Often, where warning signs are visible, including erratic or irrational behaviour, or even a darkened mood, the family members, friends and / or colleagues of the person have tried to help. The help has ranged from talking to the person directly through to tough love and even interventions. However, sometimes there just is nothing that can be done, and the elephant sits in the room until something drastic happens. In some cases, this means someone watches someone they love do something terrible to themselves or another person, who could also be someone they love or care for. More recently, we were involved in a matter where a person’s life was seriously threatened by another family member suffering from severe drug-induced psychosis, so we thought we would share some information to help anyone in need if all else fails.

In NSW, the Mental Health Act 2007 (“the Act”) can operate to assist people to help others in similar situations. The Act distinguishes between “mentally ill persons” and “mentally disordered persons”, with the former actually suffering from a mental illness. A mental illness is defined as a condition that seriously impairs, either permanently or temporarily, the mental functioning of the person, and is characterised by symptoms including delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behaviour indicating the presence of any one or more of those symptoms. For the purposes of the Act, a mentally disordered person need only exhibit behaviour so irrational as to justify the measures that can be taken under the Act. 

In the case of both mentally ill persons and mentally disordered persons, where it appears that the person may seriously harm themselves or others, they can be admitted involuntarily (although there is also a voluntary process) to a “mental health facility” for such care, treatment or control as is necessary to help them. A mental health facility is by no means anything like you may have seen in the form of Arkham Asylum or American Horror Story on TV. In fact, the Act established a system which has now resulted in numerous facilities within public and private hospitals, in addition to purely private facilities. Often these are peaceful and tranquil places with high levels of expert care. 

In the case of a mentally disordered person, who obviously exhibits more temporary and less severe symptoms, the admission will usually only be very temporary. In either case, people cannot legally continue to be detained after they cease to fit the definition of a mentally ill person or mentally disordered person, and there are checks and balances in place, including regular visits from professional doctors, to ensure that does not occur. However, in the case of a mentally ill person with severe and longer term issues, or in cases where the erratic behaviour is likely to continue, the situation may be different, as extended detainment and treatment can be ordered where required, and there is a more difficult and lengthy regulatory process, so you should obtain proper legal advice about the implications before proceeding. If you feel there is no other option, and particularly for a mentally disordered person, there are a few relatively quick and easy ways you can go about receiving help in this regard:

1. On the granting of a certificate allowing for detainment and care by a medical practitioner. For example, by taking that person to a doctor and obtaining the certificate there and then, and providing it to the mental health facility when taking the person there.

2. With Police assistance. Police can assist where they have been provided with the same medical certificate, for example if the person refuses to travel for detainment and / or care voluntarily. Police can also assist where they actually observe a person to be mentally ill or mentally disturbed themselves, for example by taking that person to a mental health facility themselves, in circumstances where it appears that the person has or is or will commit an offence or will attempt to kill or cause serious harm to themselves or others, or where it seems to the Police that it would be otherwise beneficial to the person to do so. This means, in practice, that you can call Police as and when an incident is occurring and request that they take this course of action.

3. The primary carer, a relative or a friend of the person may make a written request to the authorised medical officer at any given mental health facility requesting detainment and / or care where, because of distance or urgency, an examination and medical certificate are not practicable.

Obviously there is a lot more to the Act and the regime that must be considered to varying degrees in different cases, but in an extreme case that fits the descriptions given here, these tips might just save one or more people from something tragic. 

If you are experiencing any similar issue or are concerned about the other implications of the Act, feel free to contact us.

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