The meaning and clinical impact of the protection from harm criterion in Australia's mental health legislation.

Ryan, CJ; Callaghan, S

The meaning and clinical impact of the protection from harm criterion in Australia's mental health legislation.

Ryan, CJ Callaghan, S

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Publisher:: SAGE PUBLICATIONS LTD
Publication Type:: Journal Article
Citation:: Aust N Z J Psychiatry, 2026, 60, (1), pp. 17-25
Issue Date:: 2026-01

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Field	Value	Language
dc.contributor.author	Ryan, CJ
dc.contributor.author	Callaghan, S https://orcid.org/0000-0002-6904-4402
dc.date.accessioned	2026-01-30T01:40:23Z
dc.date.available	2026-01-30T01:40:23Z
dc.date.issued	2026-01
dc.identifier.citation	Aust N Z J Psychiatry, 2026, 60, (1), pp. 17-25
dc.identifier.issn	0004-8674
dc.identifier.issn	1440-1614
dc.identifier.uri	http://hdl.handle.net/10453/192589
dc.description.abstract	This paper examines the legal meaning and clinical impact of the different harm to self and others criteria as they appear in the provisions permitting involuntary inpatient treatment in each of Australia's mental health acts. The wording of each criterion is reviewed along with relevant Court decisions, explanatory memoranda, second reading speeches and advice published by governments. Each jurisdiction's harm criterion is set out along with: the breadth of scope of the harms envisaged; how severe any harm must be to trigger the criterion; and how likely it must be that the envisaged harm will arise. The paper is designed so that readers from each jurisdiction may focus on advice relevant to their jurisdiction. In most clinical encounters where involuntary hospitalisation is proposed, the most salient harms for consideration are serious psychological harms and harms to relationships, alongside physical harm to self or others where relevant. The harm criterion sets the minimum level of harm that must be anticipated before clinicians have legal authority to provide involuntary treatment. Where a patient refuses treatment without decision-making capacity, anticipated harms must be 'serious', but only so serious as to justify overriding the patient's refusal, taking into account the harms involuntary treatment itself may cause. In such cases, whether a person can be detained and treated will hinge largely on each jurisdiction's least restrictive criterion.
dc.format	Print-Electronic
dc.language	eng
dc.publisher	SAGE PUBLICATIONS LTD
dc.relation.ispartof	Aust N Z J Psychiatry
dc.relation.isbasedon	10.1177/00048674251384063
dc.rights	info:eu-repo/semantics/openAccess
dc.subject	11 Medical and Health Sciences, 17 Psychology and Cognitive Sciences
dc.subject.classification	Psychiatry
dc.subject.classification	3202 Clinical sciences
dc.subject.mesh	Humans
dc.subject.mesh	Australia
dc.subject.mesh	Commitment of Persons with Psychiatric Disorders
dc.subject.mesh	Mental Disorders
dc.subject.mesh	Mental Competency
dc.subject.mesh	Humans
dc.subject.mesh	Australia
dc.subject.mesh	Commitment of Persons with Psychiatric Disorders
dc.subject.mesh	Mental Disorders
dc.subject.mesh	Mental Competency
dc.title	The meaning and clinical impact of the protection from harm criterion in Australia's mental health legislation.
dc.type	Journal Article
utslib.citation.volume	60
utslib.location.activity	England
utslib.for	11 Medical and Health Sciences
utslib.for	17 Psychology and Cognitive Sciences
pubs.organisational-group	University of Technology Sydney
pubs.organisational-group	University of Technology Sydney/Faculty of Law
pubs.organisational-group	University of Technology Sydney/UTS Groups
pubs.organisational-group	University of Technology Sydney/UTS Groups/UTS Ageing Research Collaborative (UARC)
utslib.copyright.status	open_access	*
dc.rights.license	This work is licensed under a Creative Commons Attribution 4.0 International License (CC BY 4.0). To view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/
dc.date.updated	2026-01-30T01:40:22Z
pubs.issue	1
pubs.publication-status	Published
pubs.volume	60
utslib.citation.issue	1

Abstract:

This paper examines the legal meaning and clinical impact of the different harm to self and others criteria as they appear in the provisions permitting involuntary inpatient treatment in each of Australia's mental health acts. The wording of each criterion is reviewed along with relevant Court decisions, explanatory memoranda, second reading speeches and advice published by governments. Each jurisdiction's harm criterion is set out along with: the breadth of scope of the harms envisaged; how severe any harm must be to trigger the criterion; and how likely it must be that the envisaged harm will arise. The paper is designed so that readers from each jurisdiction may focus on advice relevant to their jurisdiction. In most clinical encounters where involuntary hospitalisation is proposed, the most salient harms for consideration are serious psychological harms and harms to relationships, alongside physical harm to self or others where relevant. The harm criterion sets the minimum level of harm that must be anticipated before clinicians have legal authority to provide involuntary treatment. Where a patient refuses treatment without decision-making capacity, anticipated harms must be 'serious', but only so serious as to justify overriding the patient's refusal, taking into account the harms involuntary treatment itself may cause. In such cases, whether a person can be detained and treated will hinge largely on each jurisdiction's least restrictive criterion.

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http://hdl.handle.net/10453/192589