Supreme Court Considers Right to Liberty and Security of Person Subject to Involuntary Mental Health Treatment

Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010)

On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) for the imposition of a residence condition in a community treatment order (‘CTO’) is the only lawful means of controlling the residence of a person subject to a CTO.  If this power is not exercised, there is no lawful basis for restraining the person's liberty, which includes freedom of movement.  As the applicant's place of residence was being controlled without the existence of a residence condition in her CTO, Bell J ordered her immediate release.


A CTO, under s 14 of the MHA, is the means by which involuntary treatment for mental illness is provided to patients living in the community.  Section 14(3)(b) of the MHA provides that a CTO 'may specify where the person must live, if this is necessary for the treatment of the person's mental illness'.

Zeljka Antunovic was subject to a CTO and was a resident at a community care unit (‘CCU’).  However, whilst she was free to leave the CCU during the day, she was required to return there each night to sleep.  When Ms Antunovic requested that she be allowed to live at home with her mother, the authorised psychiatrist responsible for her treatment, together with other staff members at the CCU, told her that she could not go home and that her CTO requires her to stay at the CCU.  Ms Antunovic's CTO did not contain a residence condition.

Ms Antunovic applied to the Court for a writ of habeas corpus pursuant to Order 57 of the Supreme Court (General Civil Procedure) Rules 2005.  Order 57(3) provides that on application for the writ of habeas corpus, the Court may issue the writ or order that the person restrained be released.


The decision contains a detailed discussion as to the history and origins of the writ of habeas corpus (in effect a writ to ‘produce the body’ to the court and justify the restraint imposed).  His Honour confirmed that the purpose of the writ is to ‘protect personal liberty, which is the birthright of every individual under the common law’.  His Honour also considered the value of personal liberty to be traceable to the Magna Carta 1297, in force in Victoria and recognised in a number of human rights protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic).

In determining whether to issue the writ of habeas corpus, Bell J relied upon the common law rules pertaining to the issue of this writ.  However, His Honour also considered the Charter rights of freedom of movement and liberty and security of person to be engaged.  In considering the engagement of these rights, His Honour, citing his judgement in Kracke v Mental Health Review Board, noted that the right to freedom of movement protects an individual's liberty of movement and residence, whereas the right to liberty and security of person is intended to apply to restraints greater than mere restraints on movement.  Justice Bell considered Ms Antunovic's freedom of movement to be clearly breached but did not consider it necessary to determine the infringement upon her Charter right to liberty.  Further, the content of these Charter rights, as well as, the nature of the rights protected by the International Covenant on Civil and Political Rights, were ‘an important source of understanding of the interests protected by common law habeas corpus’.

Justice Bell determined that the ‘liberty’ protected by the writ of habeas corpus was broader than the right to ‘liberty and security’ protected by the Charter.  It can issue in relation to anyone who has custody, power or control over another person and imposes restraints on that person's liberty which are not shared with the general public.  ‘Liberty’ in this context includes the right to freedom of movement and freedom to choose where to live.  The person need not be under house arrest or imprisoned.

His Honour held that the requirement to reside at the CCU was a partial though ‘substantial restraint’ on Ms Antunovic's freedom of movement and that being prevented from living with her mother added another dimension to the restraint.  The freedom of movement and residence enjoyed by the general public at common law ‘is an important aspect of the private and social life and the development of the individual, including that which occurs within their own family’.  Justice Bell also inferred that Ms Antunovic felt compelled to follow the psychiatrist's orders given the authority provided to the psychiatrist by the MHA.  This authority includes the power to revoke a CTO for non-compliance with treatment and to detain the person in a psychiatric hospital.  His Honour found that the psychiatrist was using her position under the MHA to direct the imposition of the restraints by the CCU.

The onus therefore moved to the psychiatrist and the CCU to demonstrate the lawfulness of the restraint.  It was submitted on behalf of the psychiatrist and the CCU that Ms Antunovic's involuntary status under the MHA permitted the psychiatrist to require her to reside at the CCU as it was ‘treatment’ in her best interests.  Justice Bell rejected this submission.  He referred to the fundamental principle of the common law that the personal liberty of persons can only be restrained pursuant to some express authority provided by law.  Here, this authority was provided by s 14(3) of MHA, but such power had not been exercised.

As the psychiatrist and the CCU had custody, power or control over Ms Antunovic and were subjecting her to a special restraint for which there was no lawful basis without a residence condition in the CTO, Bell J ordered her immediate release.  His Honour did not issue the writ of habeas corpus as this would have only required the respondents to produce Ms Antunovic to the Court and to justify the restraint, in circumstances where nothing could be submitted or presented to justify the lawfulness of the restraint.

The decision is at

Monique Carroll is a Senior Associate with Allens Arthur Robinson and acted on a pro bono basis as a secondee lawyer for the Mental Health Legal Centre in this case