New laws regarding the detention of persons with a mental incapacity

The additional powers for detaining persons with a mental incapacity during the COVID-19 pandemic

In our recent legal update, we provided an overview of the measures in Schedule 1 of the COVID-19 Emergency Response Act 2020 that expand the scope for detaining persons who have a mental incapacity. This will be of interest to guardians and to the operators of facilities where persons who have a mental incapacity reside.

The Act provides a basic framework for these measures, as well as for other emergency measures such as the laws relating to arrangements between landlords and tenants. The South Australian Parliament empowered the South Australian Government to set out the finer details of such measures.

In this article, we provide an overview of the finer details relating to the detaining of persons who have a mental incapacity, which are found in the COVID-19 Emergency Response (Schedule 1) Regulations 2020. This article expands upon our previous article.

The definition of a protected person has been expanded to include a mentally incapacitated person who is:

  • Subject to a guardianship order or administration order (or both) made by SACAT
  • A resident in a supported residential facility
  • A resident in a residential aged care facility
  • A resident in specialist disability accommodation under the NDIS scheme
  • A resident in supported accommodation provided as part of mental health inpatient rehabilitation services
  • A resident in any other supported accommodation (including community housing) where there is both 24 hour supervision and personal care services provided to at least one mentally incapacitated resident. (Personal care services are defined in the Supported Residential Facilities Act 1992 and include nursing care, assistance or supervision with hygiene, dressing and eating, providing physical assistance to someone with mobility problems, management of medication and management of personal finances.)

The powers of the Authorising Officer have been expanded to including advising and assisting with the development or modification of treatment and other plans for protected persons, and to assist SACAT. The Authorising Officer can also require a person or an organisation to provide information or documents or to answer questions by a deadline set by the Authorising Officer, and a failure to do so without reasonable excuse is an offence with a $5,000 maximum fine.

The definition of a person in charge of premises has been extended to include whoever is physically present at the premises and in charge of the operation of the premises, which might, for example, include a night manager. Where a protected person does not have a guardian, only the person in charge of the premises can apply to the Authorising Officer for permission to detain that protected person at the premises. Interestingly, in the context of disability services, the provider of accommodation only is regarded as the person in charge of the premises rather than the provider of supported independent living who, on a practical level, may be more aware of whether the protected person needs to be detained.

The Regulations introduce the role of community visitors, who are appointed by the Minister. Community visitors can conduct visits to, and inspections of, places where protected persons are detained under the emergency COVID-19 laws. They can refer matters of concern to the Minister or to other appropriate persons or bodies (which would include other government regulators). A community visitor is empowered, as far as reasonably practicable, to inspect any part of the premises where a protected person is detained and to make any enquiries about the care, treatment and control of a detained protected person. A community visitor can conduct a visit at any time of the day, and for a duration that they think is appropriate, although they are required to give the person in charge of the premises reasonable notice of an impending visit and to not compromise health, safety or security with a visit. In exceptional circumstances, a community visitor can conduct a visit without giving reasonable notice to the person in charge of the facility.

It is an offence (with a $5,000 maximum fine) to hinder a community visitor. If a person in charge of a facility blocks a visit by the community visitor on health, safety or security grounds then they need to write to the Principal Community Visitor explaining why.

The community visitors can also act as advocates for protected persons in resolving detention-related issues raised by the protected person or their family, friends or carers. If the protected person (or their family, friends or carers) makes a request to the person in charge of the facility that they want to see a community visitor, the person in charge must advise a community visitor of that request within 48 hours.

It is not surprising that new powers to detain mentally incapacitated persons come with a new regime for the oversight of those powers. The Regulations also provide further details on how decisions made under these new measures can be reviewed by SACAT.

We again note that these new measures are, of course, more complex than what we can explain in an overview article. If you require any legal advice in relation to the effect of this legislation upon you or your organisation, we would be happy to assist you.

...Community visitors can conduct visits … and inspections … at any time of the day...

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Peter Myhill

Peter Myhill

Rebecca Barr

Rebecca Barr

Michael Spencer

Michael Spencer

Special Counsel