Melbourne Law School - Theses
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ItemThe Mental Health Act 1986: the end of informal detention of young persons within the Victorian psychiatric system?( 1997)This paper reviews the level of legal protection provided to young persons who require psychiatric treatment in Victoria, and considers the treatment, admission and detention options currently available to young persons and their families - voluntary, informal and involuntary - through use of a fictitious patient, Dale, and explores the ethical and legal dilemmas each option presents. The absence of statutory provisions relating to the capacity of young persons to consent to, or refuse medical treatment in Victoria, necessitates a review of the common law and an appraisal of statutory modification of the common law in other Australian jurisdictions, and suggests that there remains some uncertainty as to a young person's ability to refuse treatment, despite a general acceptance that in many situations young persons have capacity to make informed decisions. The paper concludes that the failure of the Mental Health Act 1986 (Vic) to acknowledge that some young persons have the capacity to make informed decisions regarding their mental health needs, has relegated young persons, admitted informally on the consent of a parent, to a position of considerable disadvantage in that they are denied the safeguards of the Mental Health Act, being unentitled to independent review of their detention. Amendment of the Mental Health Act is proposed, the purpose of which is the avoidance of informal status for young persons, ensuring that the only consent which is relevant, when considering involuntary status, is that of the person, and not that of a parent or guardian.