The meaning and clinical impact of the protection from harm criterion in Australia’s mental health legislation

This paper examines the legal meaning and clinical impact of the different harm to self and others criteria as they appear in the provisions permitting involuntary inpatient treatment in each of Australia's mental health acts. The wording of each criterion is reviewed along with relevant Court decisions, explanatory memoranda, second reading speeches and advice published by governments. Each jurisdiction's harm criterion is set out along with: the breadth of scope of the harms envisaged; how severe any harm must be to trigger the criterion; and how likely it must be that the envisaged harm will arise. The paper is designed so that readers from each jurisdiction may focus on advice relevant to their jurisdiction. In most clinical encounters where involuntary hospitalisation is proposed, the most salient harms for consideration are serious psychological harms and harms to relationships, alongside physical harm to self or others where relevant. The harm criterion sets the minimum level of harm that must be anticipated before clinicians have legal authority to provide involuntary treatment. Where a patient refuses treatment without decision-making capacity, anticipated harms must be 'serious', but only so serious as to justify overriding the patient's refusal, taking into account the harms involuntary treatment itself may cause. In such cases, whether a person can be detained and treated will hinge largely on each jurisdiction's least restrictive criterion.