When statutory powers distract: Involuntary detention and treatment laws, and liability for harm

Wendy Elizabeth Bonython, Bruce Baer Arnold

Research output: Contribution to journalArticleResearchpeer-review

Abstract

Appellate courts have rejected claims of misfeasance by statutory authorities vested with involuntary detention and treatment powers under mental health legislation, treating them as statutory liability matters. We argue that requirements for exercise of involuntary detention powers were factually absent in each of the key cases (McKenna, Presland, Kirkland-Veenstra, and Crowley) and consequently the relevant statutory powers were unavailable. Reliance on statutory liability is misguided and these ratios should be avoided. Instead, negligence claims based on breach of the medical practitioner's duty to patients, which survives activation of the involuntary powers, may provide a more appropriate basis for considering future claims of this class.
Original languageEnglish
Pages (from-to)552-582
Number of pages31
JournalMonash University Law Review
Volume41
Issue number3
Publication statusPublished - 2015
Externally publishedYes

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Cite this

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abstract = "Appellate courts have rejected claims of misfeasance by statutory authorities vested with involuntary detention and treatment powers under mental health legislation, treating them as statutory liability matters. We argue that requirements for exercise of involuntary detention powers were factually absent in each of the key cases (McKenna, Presland, Kirkland-Veenstra, and Crowley) and consequently the relevant statutory powers were unavailable. Reliance on statutory liability is misguided and these ratios should be avoided. Instead, negligence claims based on breach of the medical practitioner's duty to patients, which survives activation of the involuntary powers, may provide a more appropriate basis for considering future claims of this class.",
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When statutory powers distract: Involuntary detention and treatment laws, and liability for harm. / Bonython, Wendy Elizabeth; Arnold, Bruce Baer.

In: Monash University Law Review, Vol. 41, No. 3, 2015, p. 552-582.

Research output: Contribution to journalArticleResearchpeer-review

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