Court ordered release from mental health facility: Mental health and Guardianship legislation

Sarah White v The Local Health Authority & Anor [2015] NSWSC 417 is a judgment on a habeas corpus application addressing mental health and guardianship legislation.

Ms White (not her real name) had been voluntarily admitted to a mental health unit in late 2013 but, at least at the time of the hearing, was neither a “mentally ill person” nor a “mentally disordered person” within the Mental Health Act 2007 (NSW): [1].

She had however been admitted to various hospitals frequently since 2006 and the court at [5] noted that she:

…has been diagnosed with alcohol related damage, borderline personality disorder, depression, anxiety and has previously been homeless for extended periods of time. She has a history of self-harm and suicidal behaviour. The origins at least in part of her present condition are a long history of chronic alcoholism, including the consumption of methylated spirits and many incidents of binge drinking, which have led her to multiple hospital admissions and times where she has placed herself at significant personal harm.

In early 2015 the treating psychiatrist said that Ms White did not currently have a mental illness requiring her admission, but there was discussion between the treating team and the Public Guardian about ongoing admission as a general patient pending a longer term community placement.

Ms White contended at [59] that by force of Mental Health Act, s 12 her continued detention under that Act was unlawful. The court agreed. However the defendant submitted that the Public Guardian, which had the powers available under an earlier guardianship order, had the statutory authority to make the decision of Ms White for her to be admitted as a voluntary patient to the facility.

After a detailed consideration of the legislative schemes, the court took the view that conduct of guardians inconsistent with determinations under the Mental Health Act is constrained by Guardianship Act, s 3C(3) and that Ms White should therefore be released from the facility.