• EAN: 9780975110317
  • 92 pages; 6" x 8⅝"
Filed Under: Legal History

The Origins and Development of the Protective Jurisdiction of The Supreme Court of New South Wales

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This paper is a detailed examination of the historical development of New South Wales’ mental health laws and of the Supreme Court’s Protective Jurisdiction, written by a former Justice of the Supreme Court of NSW. Philip Powell AM QC covers the laws applicable in the young colony leading up to the consolidated and revised version of The Lunacy Act 1898 (NSW), which remained in force, with some amendments, until 1958. He argues that its replacement, The Mental Health Act 1958 (NSW) made only cosmetic changes until 1970 when the Office of the Protective Commissioner was created. Powell then covers changes in the law relating to mental health from 1982, when he began his term in the Protective Division of the Supreme Court of New South Wales, and his own activities in this respect. He examines the impact of the Guardianship Act 1987 (NSW) and the Mental Health Act 1990 (NSW) in detail. The concludes with a list of reported and unreported judgments of the Protective Division.

Foreword by The Honourable R S McColl AO

Introduction

The Royal Prerogative

Its nature / How invoked and exercised

Those the subject of the Prerogative

Idiots / Lunatics – Subsequent developments

Involuntary detention and treatment

The first lunatic ayslum / Subsequent developments to 1788

The founding of the colony

The inherited law / Governor Phillip’s commission / The first courts

Early examples of the exercise, in the colony, of the Prerogative

The Second Charter of Justice – a Supreme Court – No jurisdiction in lunacy

The Third Charter of Justice – The Supreme Court – Jurisdiction in lunacy

The Australian Courts Acts 1828

Involuntary detention and treatment

Statutory changes, meantime, in England / The law in the colony until 1843 / The Dangerous Lunatics Act 1843

The Lunacy Regulation Act 1853 (UK) and its effects

Involuntary detention and treatment – Further statutory developments in New South Wales

The Lunacy Act 1878 (NSW)

The Lunacy Act 1890 (IMP) – The distinction between unsoundness of mind and mental infirmity established

The Lunacy Convention Act 1894 (NSW) – The distinction between unsoundness of mind and mental infirmity adopted

The Lunacy Act 1898 (NSW)

Legislative amendments in New South Wales 1898-1953

Early anti-schizophrenic (major tranquillizing) drugs

The Mental Health Act 1958 (NSW)

The Mental Health Act 1958 (NSW) – 1970 amendments – the Office of the Protective Commissioner created

The position, in law and in fact, in NSW as at 1970 and after

The position, in law and in fact, in NSW in 1982

My representations to the government – only partly successful

The government’s 1983 ‘Mental health package’

The Mental Health Act 1983 (NSW) – Only partly proclaimed – the consequences

The Protected Estates Act 1983 (NSW)

The effect of a management order / Enduring powers of attorney / Improvements in procedure

The Guardianship Act 1987 (NSW)

The Tribunal / Guardianship orders / Power to make management orders

The Deveson Committee – Appointment, report and recommendations

The Mental Health Act 1990 (NSW)

Definitions – ‘Mental illness’, ‘mentally disorderd person’, ‘mentally ill person’ / Involuntary detention for treatment – when permitted / Community counseling orders / Community treatment orders / Medical treatment / Provisions as to powers of Supreme Court

Summary – powers of Supreme Court in its inherent jurisdiction and/or under various statutes

Appendix – Judgments of the Protective Division 1982-2000

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