453 https://doi.org/10.1177/1039856218799922 Australasian Psychiatry 2018, Vol 26(5) 453–455 © The Royal Australian and New Zealand College of Psychiatrists 2018 Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/1039856218799922 journals.sagepub.com/home/apy AUSTRALASIAN PSYCHIATRY T hough it is rarely appreciated, society has endowed psychiatrists with a unique, great and terrible power. Unlike any other professional group, psychiatrists may order the ongoing lawful detention of people, with- out independent review, when there is no suspicion that they have, or will, commit a crime (technically, infectious- disease physicians have similar powers, but in practice they are almost never used). 1 Not only may we detain peo- ple, we may treat them despite their express refusal. Society has given us this power for the best of reasons – so that we may protect the most vulnerable in our com- munity. However, ‘with great power comes great responsibility’. a We must apply this power sparingly and only in prescribed circumstances. However, we must also ensure that we use it when its needed and not abandon those whom society has charged that we protect. The only way to achieve this delicate balance is to under- stand what the law says and to apply it judiciously and with moral courage. This would be challenging in any circumstances but is made all the more so by the fact that very few psychiatrists have any legal training or ethical expertise. This issue of the journal focuses on ethics and the law, and in this editorial, I draw attention to the crucial need to properly understand the provi- sions of mental health legislation. The first step in understanding what legislation means, is to read it. Despite almost all psychiatry registrars regu- larly detaining people under mental health legislation, in my experience, very few registrars (or psychiatrists) know the criteria that must be met to authorise involun- tary detention. Worse, most don’t seem to know that they don’t know and, when asked the criteria, will con- fidently reply with provisions of their own imagining. An example will make this issue clear. The mental health acts of all Australasian jurisdictions contain a criterion that predicates the application of involuntary treatment on concerns about some form of harm coming to the person who is to be subject to detention. The wording of these harm criteria vary across our two nations. In New South Wales (NSW) that harm criterion, as it applies to people with a mental illness, is expressed this way. That ‘owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary … for the person’s own pro- tection from serious harm’. The section also specifies that in making this judgement ‘the continuing condition of the person, including any likely deterioration’ ought to be taken into account. Despite this, many, perhaps most, NSW psychiatrists, when asked about this provision will report that it refers to ‘a risk of harm’ or ‘a serious risk of harm’ or ‘a risk of serious harm’, but none of these versions are correct. The criterion does not contain the word ‘risk’ at all. ‘Risk’ is a forward-looking concept and if the provision were to refer to ‘risk’, it would arguably require a psy- chiatrist to make some estimate of the probability that the person would come to the said harm in the future – a task beyond our ken. 2 Fortunately for NSW psychiatrists, estimation of future harms is rarely necessary. It is only required that there be ‘reasonable grounds for believing’ that the person requires ‘protection from serious harm’ and that ‘care, treatment or control’ is ‘necessary’ to pro- vide this. In most instances no soothsaying is required, as in almost all cases, the serious harm that the person requires protection from is evident at the time of review. As a general rule, legislation means what legislation says. So ‘serious harm’ in the above means ‘harm’ – that is injury, damage or hurt – that is ‘serious’. The universe of potentially relevant harms is very broad. It includes not only death and serious physical injury, but also serious financial harms, serious harms to one’s relationships and serious harms that flow directly from the experience of psychiatric symptoms, 3 such as serious distress that might be caused by derogatory auditory hallucinations. It might even include serious harm to one’s reputation, though doubt was expressed over that particular inter- pretation by a Court, 3 and judicial interpretation modi- fies the general rule expressed at the beginning of this paragraph. Our duty to know and understand the law Christopher James Ryan Clinical Associate Professor, Consultation-Liaison Psychiatrist, Department of Psychiatry, Westmead Hospital, Westmead, NSW, and; University of Sydney, Sydney, NSW, Australia Corresponding author: Christopher Ryan, Department of Psychiatry, Westmead Hospital, Darcy Road, Westmead, NSW 2145, Australia. Email: christopher.ryan@sydney.edu.au 799922APY Australasian PsychiatryRyan Guest Editorial