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Salient. Victoria University Student Newspaper. Volume 39, Number 14, 5 July 1976.
Not from the Courts
Not from the Courts
M is a young Maori woman aged 22years. She assaults her mother.
"I decided to give her a cold bath - pulled her towards the bathroom, but she got away and ran next door. Next thing the police came - took me to Lower Hutt station".
Normally she would be dealt with by legal institutions. She would suffer all their class, sex and possibly race biases, but at least she'd benefit from the law's procedural safeguards. There would be an arrest, charge, and court appearance next morning, where she would be remanded and maybe obtain a duty solicitor.
At the hearing proper M could plead not guilty, thus require the police to call the mother as witness and prove the charge in open court. More likely she would plead guilty be asked if she had anything to say, then convicted and remanded for sentence pending a probation report. Eventually she would be fined and sentenced to some custodial treatment (e.g. a period of probation).
The law would have taken away her money and her freedom, but only after affording her certain procedural rights.
From Legal to Medical
Instead M was not charged, and made no court appearance. She was removed from the law world to the medical world - taken by police car from Lower Hutt to Porirua Hospital, where next morning she received shock treatment.
Shock was administered three more times over the next 3 weeks, despite her protests to Dr P. By chance, I happened then to see her - scared of the treatment, confused about what would happen next, and consequently planning to run away.
"I don't like that shock - it makes me forget things -I told the doctor but he just says its best for me - I don't think so - I'm getting out of here".
Those who have seen shock treatment in "One Flew Over the Cuckoo's Nest" could understand her fear, but she agreed to delay the escape while I found a lawyer to try to help her.
The police had decided to have M detained under $ 19 of the Mental Health Act 1969, rather than charge her. This means she never comes before a court. As a result of organising the legal representation, I found out how inadequate are the procedural legal safeguards against improper detention under the Mental Health Act - in fact, how difficult it is to apply any legal safeguards to a form of detention that has become Medical and ceased to be "legal".
Procedures and the Mental Health Act
| (1) | The original reception. The police contact the hospital superintendent, who has power under $ 19 to detain any person "alleged to be mentally disordered", for up to 3 weeks, "in the public interest before a reception order can be obtained". The allegation is in the form of a signed request, by "any person", to the superintendent, backed by two medical certificates. This allows the person picked up by the police to be received into Porirua Hospital and given "care and treatment" - including shock treatment and assorted tranquillizing drugs - without her consent and in this case despite her opposition. There is nothing s/he can legally do to terminate the detention and treatment during these 3 weeks. |
| (2) | Formal reception order under $ 20. Within 21 days, the superintendent must notify the local Magistrates Court of the patient's reception in the hospital. This is the first time the medical authorities have to front up to any legal institution. The magistrate will now come out to Porirua (usually the Thursday following notification) and conduct an inquiry into whether the "patient" really is "mentally disordered" according to the definition in the Act. The odds are loaded against "the person" (actually s/he's called a "person" only in $ 19 - by $ 20 s/he's become "the patient" - an indication of what chance s/he's got of leaving?). The magistrate talks to the superintendent and doctor, "examines" the patient, and can accept as medical certificates those given over 3 weeks earlier in the police station. If he makes the reception order, "the patient" can be kept indefinitely, until the doctors say s/he's "well" enough to leave. |
Legal Procedures done away with
| (1) | The original reception required no legal procedure. The 1969 Act removed the necessity for a magisterial inquiry at this early stage. |
| (2) | The point of the magisterial inquiry is to determine whether "the patient" is "mentally disordered". The shock treatment, which M was given during the 3 week period, scrambles the mind ("makes me forget things") thus can give any healthy person the appearance of mental disorder by the time s/he's "examined" by the magistrate It can also drive the person to run away, as M was planning to and eventually did do. Yet running away will be further evidence of "mental disorder". |
| (3) | Since the person has been channelled outside the law world, into the medical world, s/he never comes to think in terms of lawyers as a source of help. It is difficult to get a lawyer when you are on bail, more difficult when you are remanded in custody, but when M was in Porirua it simply never occurred to her to get legal representation. Out there is a world of masses, doctors, and patients, not lawyers, judges and accused. |
| (4) | Even if the case does come to a lawyer's attention, as M's case did, legal aid is not available. There is no criminal charge thus no criminal legal aid; and the Legal Aid Act applies to "court proceedings". Neither the original reception nor the magistrate's inquiry involve "court proceedings". So either the person pays to be represented (M couldn't) - or gets a lawyer who will act for nothing and cannot afford to spend much time travelling to and from Porirua to see his client. |
| (5) | Even if the lawyer is instructed to act for the detained person, the medical description of "alleged to be mentally disordered" has a powerful mystique. The lawyer wonders "what if she really is crazy - maybe she'd be better off in Porirua - after all she did try to commit suicide once, and has heard voices". He m must force himself to remember his duty as advocate, which is to follow the client's instruction to get her out. |
| (6) | Similarly the magistrate is under no obligation to hear the detained person's story from her mouth - presumably that is why there is no provision for legal representation at the inquiry. He only "examines" her. You wouldn't listen to someone who is "alleged to be mentally disordered", would you? But the person is not yet proved to be "mentally disordered". |
History of Mental Disorder
In fact M never stayed for the magistrate's inquiry. Perceiving that the law would be of little use, and fearing the next installment of shock treatment, she went A.W.O.L. Had she stayed, she probably would have been committed, because she had what would be called a "history of mental disorder".
Presumably this is what caused the Lower Hutt police to use S19 rather than charge her with assault. They don't send everyone to Porirua. But too many victims of our society come to acquire characteristics of so-called "mental disorder".
M tried to commit suicide six years ago: "My boyfriend had beaten me up real bad - almost killed me -so I decided to finish it off". The suicide attempt is evidence of "mental disorder" in M, wheras in fact it was caused by the grave abuse of M by another person. She pays now, for a wrong done to her in the past.
Secondly, she tried to take her clothes off at the police station - evidence of mental disorder or just a slightly rebellious character in a strange situation?
Thirdly, there was a history of mental disorder in the family" - yet the incidence of mental illness is far higher in lower class families like M's compared with the middle class families of most university students.
The police's decision to use S19 is based on evidence of what is called "mental disorder" but which is more like evidence of social deprivation and victimage. The immediate result of the decision is, the person is denied almost all procedural legal rights: M was channeled into a medical world where legal rights scarcely exist. The end result is detention for an unspecified period against the person's will.
A criminal offence - a criminal punishment - but no due process of law connecting the two. The Mental Health Act. 1969 is an enormous exception to the "rule of law".
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