Whose Legal Responsibility?

As we have noted previously most mental health legislation attempts to delineate between issues around the care and treatment of the mentally ill and other situations where their may be concern over behaviour or capacity to look after one self.

Consider this section from the NSW Mental Health Act 2007

16 Certain words or conduct may not indicate mental illness or disorder

(1)  A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following:

(a)  the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief,

(b)  the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief,

(c)  the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy,

(d)  the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation,

(e)  the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity,

(f)  the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity,

(g)  the person engages in or has engaged in a particular sexual activity or sexual promiscuity,

(h)  the person engages in or has engaged in immoral conduct,

(i)  the person engages in or has engaged in illegal conduct,

(j)  the person has an intellectual disability or developmental disability,

(k)  the person takes or has taken alcohol or any other drug,

(l)  the person engages in or has engaged in anti-social behaviour,(m)  the person has a particular economic or social status or is a member of a particular cultural or racial group.(2)  Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind.

Other Laws

It is important to consider other laws that might influence our approach as doctors in situation where behaviour is being questioned. These laws would include:

  • Criminal Laws for antisocial behaviours
  • The Common Law Duty of Care for emergency situations
  • Guardianship Legislation, typically relating to other medical conditions where capacity may be impaired either temporarily or permanently (for e.g. dementia and developmental delay)