“Is this to be their fate for the indefinite future?” Judicial interest in systemic issues in Queensland

Miss Niamh Fields1

1Queensland Advocacy Incorporated, South Brisbane, Australia

Niamh practiced as a criminal lawyer in the private sector for two and half years prior to her appointment at QAI. Niamh completed a Bachelor of Laws with First Class Honours in 2014.

Queensland’s mental health system has undergone changes since the commencement of the Mental Health Act 2016 (Qld) on 5 March 2017. The Act saw an emphasis on patient rights, rehabilitation and the introduction of treatment and care being administered in the ‘least restrictive way’. Two cases in Queensland’s Supreme Court since the commencement of the Act have illuminated the legislation’s failure to uphold these principles and the systemic shortcomings in applying these principles to patients with complex needs, a reality that we see in our practice too often.

I will discuss the case of Attorney-General for the State of Queensland v McCann [2018] QSC 115. This case was a review of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) where the respondent remained in prison in adverse circumstances and had not been moved to a medium secure mental health facility despite multiple expert opinions that suggested this was the appropriate course. I will discuss the case of Office of the Public Guardian v Department of Queensland Health, Office of the Chief Psychiatrist & Anor [2017] QSC 193, where Justice Dalton acted in her inherent parens patriae jurisdiction to make enquiries into the detention and service provision for a young man with a dual disability.

These cases highlight the systemic issues that are amplified in the cases of patients with complex needs and demonstrate that these patients need both legal advocates and clinical champions, working together to progress their interests.  I will discuss our experience with responding to these situations in practice, which can be implemented by other lawyers, psychiatrists and clinicians.


Niamh Fields is a solicitor of QAI’S Mental Health Legal Service. Niamh represents clients at the Mental Health Review Tribunal at Forensic Order Reviews, Electroconvulsive Therapy Applications and Treatment Authority Reviews and provides advice to clients who are being involuntarily treated under the Mental Health Act.

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