New guidelines 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 first legal update on this issue, 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. Following the introduction of the COVID-19 Emergency Response (Schedule 1) Regulations 2020, we provided a further update about the finer details of detaining a person who has a mental incapacity under the emergency COVID-19 laws.

In this third article, we provide an overview of the guidelines which have since been published by the South Australian Government. The powers to detain arising from the emergency COVID-19 laws must be exercised in accordance with these guidelines. As with our previous two legal updates, this article will be of interest to guardians and to the operators of facilities where persons who have a mental incapacity reside.

The guidelines can be found on the South Australian Government's COVID-19 website at: https://www.covid-19.sa.gov.au/restrictions-and-responsibilities/at-risk-facility-residents.

The key requirements under these guidelines which are entitled "Special provisions relating to detention of certain protected persons during COVID-19 pandemic" are:

  • The nature and means of any detention must be as least restrictive of the protected person's rights and personal autonomy as is consistent with their proper care and protection.
  • A protected person must not be secluded except as a last resort. They cannot be confined to their own room unless there are no other options.
  • The nature and means of any detention must not be based upon the convenience of others (including the convenience of the person authorising the detention or the convenience of the facility where the protected person resides).
  • The nature and means of any detention must be determined on a case by case basis. What may be appropriate for one protected person at a facility may not be appropriate for another protected person at the same facility.

Such principles will not be of any surprise to anyone who has been involved in the detention of persons with a mental incapacity in circumstances outside of the COVID‑19 pandemic.

The person in charge of the premises must maintain a register that records the details of any detention at those premises arising under the emergency COVID-19 laws. Besides recording events such as when the detention occurred and the reasons for detention, it is also necessary to keep copies of decisions and orders. The full explanation of what must be recorded – and that can be substantial – is explained at clause 10 of the guidelines. The South Australian Government has prepared a template document for such a register, which can be found at the website referred to above. The register must be made available to community visitors or the Authorising Officer straightaway when requested, and so it should always be kept up to date.

If a guardian or an authorised officer (eg a police officer) detains, using the emergency COVID-19 laws, a protected person who is unlawfully at large then they must report to Authorising Officer details of that detention. If the protected person has a guardian, but does not live with that guardian, then the person in charge of the premises where the protected person lives must inform the guardian about the detention as soon as possible.

It is understandable that the expansion of the powers of detention arising from the emergency COVID-19 laws comes with an obligation for additional recording and reporting, although it may mean additional work for the operators of facilities where persons who have a mental incapacity reside.

Once again we 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.

...The nature and means of any detention must be determined on a case by case basis...

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Peter Myhill

Peter Myhill

Partner
Rebecca Barr

Rebecca Barr

Partner
Michael Spencer

Michael Spencer

Special Counsel