OPINION: Dangerous changes threaten the unwell

COMPARATIVE: Anthony Waterlow's case is extreme and unusual.
COMPARATIVE: Anthony Waterlow's case is extreme and unusual.

HERE'S a test. Who has the paranoid delusion? The man who believes government agencies are spying on him; or the directors of a government operation conducting mass spying on ordinary citizens?

Answer: the stand-alone citizen, of course. Forget about Snowden's revelations. It's all about power in that scenario. Try it again. Who's delusional? The jealous wife who confronts her husband because she thinks he is having a secret affair, when he is; or the psychiatrist who diagnoses the wife with delusional disorder after the husband denies the affair and the wife agrees to put her case up for medical judgment?

Answer: the wife's delusional, of course. It's all about power again. What a psychiatrist says, goes. Which brings us to an interesting development in NSW mental health.

On January 10 this year, a deputy coroner released his findings in the Waterlow case and recommended changes to the Mental Health Act. If adopted, the changes will make it easier to force people into psychiatric treatment. Anthony Waterlow had stabbed his sister and father to death in 2009 and then won a plea of not guilty due to mental illness.

This led to a familiar pattern of consternation in this type of situation: if the killer wasn't to blame, then who or what was?

The deputy coroner decided the current wording of the Mental Health Act was to blame.

Apparently the victims had previously tried to have Anthony directed into psychiatric treatment but had failed because he wouldn't volunteer and his condition didn't meet the existing threshold for involuntary treatment. As a result he wasn't ever diagnosed before the killings.

Although this might raise questions about the validity of the retrospective diagnosis he eventually received some months after the killings, this matter has been closed by the outcome of the subsequent trial.

However, if this case is now to be used as a justification for changes to the law we have a problem.

As things stand, the law requires that a person be thought both mentally ill and dangerous before forced incarceration and treatment can be applied.

The mental illness part is defined in the legislation as one or more of the following symptoms: delusions, hallucinations, serious disorder for thought form, severe disturbance of mood, or sustained or repeated irrational behaviour indicating the presence of one or more of the other symptoms. The dangerousness part is defined as a perceived risk of "serious harm" to either the person in question or others.

Possible deterioration of the person's condition is to be taken into account when assessing the serious harm.

In years gone by, when civil liberties had a higher priority than they do now, the law had specified that the dangerousness be characterised by the perceived risk of serious "physical" harm. But "physical" was deleted following earlier complaints about difficulties getting people locked up.

The deputy coroner has recommended further expanding the concept of dangerousness by including a provision that a person can be locked up for "the protection of others from serious emotional harm".

Apparently he has concluded that if this provision had been in the legislation the Waterlow family would have been able to force Anthony into treatment before the killings by claiming he was already causing them emotional harm.

This may well have been the case, but is a provision that has been tailored to suit a very particular and unusual case appropriate for general application.

The reason the mental illness symptoms are tested against a perception of dangerousness is because the symptoms themselves aren't necessarily either serious or unusual.

A delusion is simply a false belief, and we all have those. Similarly, we all have thought and mood disorders from time to time. Usually they are just temporary and we pull ourselves together and get on with things.

If they aren't dangerous why not leave it to the person involved to decide for themselves whether or not to seek medical attention? Why force it on them if the symptoms don't look dangerous?

To replace dangerousness, as the cross-reference, with a perceived risk of emotional harm to another person would open up the risk of the mental health system becoming a first-strike tactic in family and neighbourhood disputes. "This person falsely believes such-and-such about me/has confused thinking about this, and it's causing me serious emotional harm. Lock him up."

One person is forced into psychiatric treatment because another person claims to be having emotional difficulties.

This first-strike approach, of course, is exactly what the deputy coroner wishes had been available to the Waterlow family. In that case it might have saved their lives.

But how many people might the proposed change to the law unnecessarily force into psychiatric treatment to atone for Anthony Waterlow? What he did is a very rare occurrence.

Richard Gosden, PhD, is author of Punishing the Patient: How Psychiatrists Misunderstand and Mistreat Schizophrenia.