Mental health statutes in every Australian jurisdiction contain penalties for breaching certain provisions. The Australian Capital Territory's new Mental Health Act 2015 (ACT) is notable in using not only financial penalties, but also including specific offences and the possibility of imprisonment to regulate certain procedures related to the involuntary detention and treatment of those with mental illness. The penalties for committing the offences range from small fines to 12 months' imprisonment. There is a concern that the threat of criminal punishment may discourage practitioners from routinely using the Act's immediate detention procedure. Failure to adhere to extensive notification requirements can result in financial penalties. Private psychiatric facilities may also face particular penalties. The inclusion of separate provisions which are specifically labelled as offences in mental health legislation has received minimal attention. Criminalising aspects of mental health care creates stigma, may encourage defensive medical practice, and works against the recovery movement. There is a slow development of this trend in other health specialties.
Keywords: Convention on the Rights of Persons with Disabilities; Mental Health Act; criminalisation; defensive medical practice; human rights; mental health.