This is an excerpt from my recent “Stage 2 Research Proposal”, a requirement after 3 months from commencement.

The power of the State to detain persons is a serious matter, and a whole range of checks and balances have been developed to limit this power.^[1] For instance, the writ of habeas corpus has a long history in English law, requiring a person to be brought before a court to determine the legality of detention.^[2] When the State asserts its power to detain persons in a preventive way, whether to protect the person from themselves, or to protect society from things a person might do, it raises even more serious political, legal and ethical dilemmas.^[3]

Decisions to authorise preventive confinement of persons with mental illness are informed, among other things, by psychiatric evidence of a person’s potential danger.^[4] In examining the operationalisation of the concept of dangerous in context with psychiatry and law in Queensland, there are three major instances where the law authorises detention on the basis of dangerousness: (1) decisions to involuntarily hospitalise persons with mental illness who lack capacity to decide for themselves (primarily for their own safety);^[5] (2) decisions to subject offenders with mental illnesses to similar involuntary hospitalisation for the purpose of protecting the community;^[6] and (3) decisions to continue to detain sex offenders after they have served their sentence, who are identified as a ‘serious danger to the community’.^[7] While these decisions capture different populations, this study seeks to focus on the particular element common to them all – considerations in relation to safety, risk, protection, and danger – whereby decisions to confine persons are significantly based on a determination of dangerousness.

Thousands of individuals in Queensland are subject to either involuntary treatment or preventive detention in some form. According to the most recent annual report of the Mental Health Review Tribunal,^[8] there were 17,334 Treatment Authority Reviews, 1,639 Forensic Order Reviews and 617 Treatment Support Reviews conducted between 1 July 2021 and 30 June 2022. Similarly, according to the Queensland Government’s Statistician’s Office, 54 adults were preventively detained in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).^[9]

This thesis is interested in the ways that dangerousness is understood in law. The concept of dangerousness hasn’t been defined in legislation, and this is of major scholarly concern.^[10] Relatedly, attempts at measurement, and prediction, of potential risk in relation to persons with mental illness has been problematic.^[11] This thesis will involve a closer examination of this key criterion in making a range of decisions, and the findings would offer a contribution to understanding how the concept of dangerousness currently operates in mental health law and the protection of the community.

The most recent incarnation of mental health legislation in Queensland is the Mental Health Act 2016 (Qld), in part, arguably, a response to the Convention on the Rights of Persons with Disabilities.^[12] The Mental Health Act 2016 (Qld) applies to both forensic and non-forensic patients deemed to require involuntary treatment. Phases of reform in Queensland’s mental health legislation parallel similar phases in other Australian jurisdictions. While dealt with in a separate piece of legislation, the preventive detention of sex offenders on the basis of dangerousness, currently is regulated by Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Prior to 2003, provision was made for indefinite imprisonment for serious offenders,^[13] with specific provision being made for sex offenders.^[14] However, this specific provision was critiqued in that it required proof of an incapability of controlling sexual instincts and that this incapacity was capable of being cured.^[15] In addressing these limitations, Queensland was the first state to adopt legislation empowering courts to make post-sentence detention or supervised release orders for those determined to be ‘a serious danger to the community’, in part on the basis of psychiatric evidence.^[16] Since 2003, several states have adopted similar post-sentence detention legislation.^[17] Involuntary hospitalisation, commitment to mental health facilities and detention have been an accepted part of both the mental health and criminal justice legal landscape historically.^[18]

Mental health law exhibits a unique interaction between legal and medico-psychiatric regimes of power, knowledge and regulation.^[19] The law provides a framework of rights, responsibilities and safeguards concerning people with mental illness, while psychiatry offers clinical insight, therapeutic approaches and standards of diagnosis derived from medical research and practice. This convergence has developed a complex interdiscourse between legal principle and professional expertise. In seeking to investigate this nexus, this thesis will draw from a range of interdisciplinary approaches.

Literature Review

The detention of individuals, and in particular, in the context of involuntary treatment without a person’s informed consent, has obvious implications for human rights and the concerns regarding the limits of state power.[20] Therefore, legal scholarship on involuntary hospitalisation and preventive detention has often focused on human rights, or constitutional limitations regarding the misuse of State power, or evidence regarding the (in)effectiveness of involuntary treatment and preventive detention in achieving rehabilitation and treatment for persons with mental illness.[21] In a similar vein to mental health legislation, preventive detention regimes have been subject to the analysis of constitutional and human rights challenges by legal scholarship.^[22]

While the protection of human rights may play a significant role in the protection of people with mental illness, critical scholarship seeks to shed light on the complexities and nuances inherent in the relationship between the mental health professions and institutions, the law and the exercise of authority. For instance, on one hand, the psychiatric profession mobilises power-knowledge in confinement and coercive practices, justified by State legislation, while on the other hand, the State’s will to confine persons with mental illness in its aim to protect society, it mobilises psychiatric knowledge and authority to justify itself. Historically, a profound power difference between doctors and patients within medicine has been extended in psychiatry as a developing medical speciality. Thus, broader investigations of power-knowledge relations have been critically mobilised in problematising psychiatric regimes of truth at work.^[23]

Truth-claims refer to assertions or narratives that are presented as factual and authoritative.[24] In the context of involuntary detention, truth-claims involve authoritative opinions regarding an individual’s mental condition, their level of risk and the necessity of detention.[25] Through a critical lens, truth-claims can be problematised and the ways in which these truth-claims are mobilised to sustain normativity and morality can be made visible.^[26] For instance, Nikolas Rose, drawing on Foucault’s work, has problematised the role that psychiatry plays in social control and norm policing.^[27] While a wide range of criteria are involved in psychiatric and legal decision-making in relation to preventive detention,^[28] one significant criterion for justifying legal decisions involves the related concepts of safety, risk, protection of the community and danger.^[29] Similarly, the relationship between psychiatry and law in providing evidence in relation to dangerousness has been critiqued.^[30]

With the emergence of psychiatric expertise in the 18^th century, ‘unreason’ became subject to medical expertise, together with the establishment of various institutions for confinement and observation of the ‘mad’.^[31] In time, psychiatry as a medical speciality promoted a biomedical model in which ‘madness’ was transformed into ‘mental illness’, ascribed to diseases of the brain and chemical imbalance.^[32] Foucault’s work has ongoing relevance to mental health, particularly when developed in intersectional ways to investigate the material-discursive effects of power in relation to race,^[33] gender,^[34] and other oppressed groups.^[35]

Critical Theories of Psychiatric Power over Populations

Various critical lenses have examined the ways that psychiatric discourse have been (and continue to be) mobilised to oppress various segments of society by othering them. For instance, from a Marxist perspective, Cohen offers a critique of social control and of the relationship between neoliberalism, risk and psychiatric hegemony, framing his critique in terms of psychiatry being mobilised as an ideological tool of capitalism which normalises the oppression of the working-classes through a totalising psychiatric discourse.^[36] Within this context, social class and socioeconomic deprivation gives rise to the very vulnerabilities to homelessness and exploitation which are deemed as ‘dangerous’, and are mobilised as justification for so-called ‘protective custody’.^[37]

Similarly, feminist critiques of psychiatry have exposed the ways that psychiatric power has been wielded together with patriarchal discourse to characterise women as dangerous. Through quantitative analysis of medical statistics, this evidence suggests a disproportionate impact on women by psychiatric diagnosis, in particular with particular diagnoses framed in ways that normalise so-called masculine characteristics and pathologize so-called feminine characteristics.^[38] To illustrate, significant analysis has developed around the shifting discursive construct of hysteria. While more recently renamed as hysterical personality disorder (‘HPD’), another diagnosis was created with similar depressive and emotional characteristics as HPD, borderline personality disorder (‘BPD’).^[39] In essence, the difference is that BPD includes a more masculine characteristic of ‘inappropriate intense anger’, by which, according to Jimenez, that in contrast to the hysteric woman who is constructed as ‘damaged’, a woman diagnosed with BPD is constructed as ‘a dangerous one’.^[40] Another critique involves the attribution error apparently involved where men are viewed as ‘having a bad day’ while women are judged as ‘emotional’ in a clinically significant way.^[41] In essence, psychiatric power may be characterised as a discourse of patriarchal violence, by which women are oppressed by being characterized as dangerous.

Equally, another pool of diverse critiques of psychiatric power can be drawn from a range of critical perspectives, including disability studies, mad studies and neuroqueer studies.^[42] For instance, Aubrecht applies a critical disability lens in critiquing the use of language in regard to mental illness.[43] Similarly, the intersection between critical disability studies and critical criminology has assessed the impact of psychiatric practices on disabled and mentally ill prisoners.[44] With an emphasis on the lived experience with people with disability, critical mad studies emphasises the experience of power through examination of the lived experience of mental health service users/survivors.^[45]  Queer theory, and in particular neuroqueer studies,^[46]  critique broader societal discourses such as cis- and heteronormativity,^[47] able-bodiedness,^[48] sanism^[49] and neuronormativity.^[50] For instance, Oswald, Avory and Fine conducted a qualitative study of the lived experience of neurodivergent LGBTIQ+ youth in their lived experience of gender, sexuality, disability and mental health to demonstrate the intersectionality of oppression within health services.[51] Many of these concepts build on Foucauldian, feminist and queer critiques of social power, and can feed into the conversation in relation to the operation of psychiatric power and the concept of dangerousness.

Critical Theories of the Politics of Psychiatric Institutions and Texts

In a similar vein to Foucauldian critique, antipsychiatry scholarship has conceptualised the psychiatric profession as a ‘regime of ruling’.^[52] The concept of ‘regime of ruling’ has been drawn from institutional ethnography, which seeks to problematise social relations at the level of lived experience, while examining how texts coordinate consciousness, actions and governance.[53] Regimes of ruling are ruled by texts,^[54] which in the case of the psychiatric profession, involve the DSM, legislation and policy as well as the ‘approved forms’ produced by the medicolegal or psy-complex.^[55] The centrality of texts in institutional ethnography parallels the power-knowledge relationship between psychiatric discourse and psychiatric institutional practices such as confinement, seclusion, and collusion with psychopharmaceutical corporations.^[56] Various texts have been developed as technologies of government, such as the Diagnostic and Statistical Manual of Mental Disorders (DSM). While providing a semblance of scientific validity and authority, the DSM has continued to develop and change in response to ongoing political and social developments.^[57]

Risk Assessment in a Risk Society

While the involvement of mental health professions in providing evidence regarding the mental state of persons has been common practice since the 19^th century, the requirement to provide opinions of individual risk of future offending is relatively new.^[58] It has been argued that the increasing reliance by the state on preventive confinement of sex offenders and others is connected to an emerging political discourse of a “risk society”.^[59] In seeking to explain this shift in political discourse and its impact on criminal justice discourse and practice, Andrew Ashworth identifies three key themes:^[60] the growth of actuarial justice, by which tools of governance, including psychiatric assessment tools, have developed to identify, classify and manage ‘dangerous groups’;^[61] the rise of a ‘risk society’ in which governments focus on identifying risks and seeking to minimise them;^[62] and a further shift from managing risk to developing practices to prevent harm even when the precise nature and scope of potential threats are unknown.^[63]

The use of risk assessment predictions in preventive detention raises numerous ethical dilemmas, for while such tools may be useful in clinical practice, their use in forensic and legal decision-making may be problematic.^[64] Michelle Edgely analyses a number of cases involving decisions to preventively detain sex offenders, and argues that the practice of post-sentence detention may be more an attempt to prevent crime by punishing alleged propensities to sexually offend, than genuinely seeking to achieve rehabilitative aims – all in the name of protecting the community.^[65] Similarly, Barnett and Hayes provides an in-depth analysis of judicial considerations of procedural fairness and rehabilitation issues, in arguing that, while rehabilitation issues are considered, the lack of adequate rehabilitation programs for dangerous sex offenders apparently defeats this purpose and brings into the whole system into question.^[66]

Considering the acknowledgement of challenges in predictive ability of instruments for different types of sex offenders,^[67] particular questions have been raised concerning the use of instruments primarily developed on the basis of white males for indigenous,^[68] women^[69] and queer offenders.^[70] Drawing on Foucauldian and queer theory, Kämpf investigates the way that preventive detention for sex offenders implicitly seeks to confine individuals not on the basis of what they have done, but on the basis of what they might do – which ultimately ends up amounting to who or what they are – and arguably is an erosion of legal, ethical and democratic principles.^[71] The construction of “dangerous” individuals or groups has a long history in criminal justice and mental health law,^[72] which both from the perspective of critical theories of power’s oppression of “othered” groups and critiques of psychiatric institutions and texts, is an ongoing problem.

Research Problem

My proposed research question is:  How does the concept of dangerousness inform medicolegal decisions related to involuntary hospitalisation and preventive detention? In answering this question, my analysis will focus on public reports of real-life decisions of the Mental Health Review Tribunal, the Mental Health Court and the Supreme Court of Queensland, together with an interrogation of relevant legislation and policy.

Program and Design of the Research Investigation

Objectives, Methodology and Research Plan

Objectives

The socially constructed and discursive nature of the criterion of ‘dangerousness’ has been recognized as problematic and investigated for a long time.^[73] In seeking to answer the proposed research question, this project will employ a qualitative design informed by Foucauldian discourse theory in investigating how the related concepts of dangerousness, risk, safety and protection of the community are discursively constructed in a variety of legal and quasi-legal texts.[74] The coding and analysis of data will be informed by Foucault’s investigations of regimes of power within psychiatric services,^[75] and other disciplinary institutions,^[76] as well as more broadly, his understanding of the relationship between law, regulation, discipline, power and knowledge.^[77] This investigation will involve the analysis of texts involving actual decisions which have resulted in thousands of people being detained in Queensland on the basis, in part, of psychiatric assessment:

1. Involuntary treatment, in particular where it is decided that inpatient treatment is required.
2. Making of forensic orders for offenders with mental illness, in particular where it is decided that inpatient treatment is required.
3. Making of post-sentence orders for sex offenders who are deemed to be a ‘serious danger to the community’, in particular where ‘continuing detention orders’ are made.

Data Collection

In addressing the proposed research question, the research investigation will involve collecting data in the form of:

• Legislation and Policy Documents: Mental Health Act 2016 (Qld), Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the Chief Psychiatrist policies, relevant policies of Queensland Health and Queensland Corrective Services, etc.
• Published Statements of Reasons of the Mental Health Review Tribunal (‘MHRT’): Around 80 published statements of reasons are available with [n] related to treatment authorities and [n] related to forensic and treatment support orders.
• Published Mental Health Court Reports: Around [n] published court reports, with [n] related to forensic orders and [n] related to appeals from the Mental Health Review Tribunal.
• Published Supreme Court of Queensland Reports: Around [n] published court reports related to decisions under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), involving finding a prisoner to be a ‘serious danger to the community’ and the making of continuing detention or supervised release orders.

I have chosen Queensland as the jurisdiction for analysis, both because Queensland’s mental health system is comparable to other Australian and international jurisdictions. 

Queensland’s mental health system is regulated through legislation, primarily the Mental Health Act and, in the case of dangerous sexual offenders, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). As a statutorily-required and politically-appointed office, the Chief Psychiatrist plays a key role in the relation between legislation and mental health services,[78] including through policy which it is mandatory for Queensland’s mental health services in providing services.[79] Thus, legislation and policy are key sources of data for understanding both legal and psychiatric discourse, as well as providing an avenue to explore the interactions between law, psychiatry and political and societal discourses more broadly.

According to the Mental Health Act, the Mental Health Review Tribunal (MHRT) may publish decisioned-identified decisions, if the tribunal is satisfied the decision may be used as a precedent.[80] These documents will provide texts for analysis in understanding both legal and psychiatric discourse within the context of the review of treatment authorities and forensic orders. Similarly, the Mental Health Court and Supreme Court case reports are publicly available sources for gathering data about decisions made and the reasons for them under the forensic provisions of the Mental Health Act 2016 (Qld) and the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

Foucauldian Discourse Analysis (‘FDA’)

Foucauldian discourse analysis has been applied in legal and psychological contexts, though it appears to be more utilised within education and nursing research.[81] For instance, Buckland utilised Foucauldian discourse analysis to analyse data collected in semi-structured interviews with 10 clinicians, finding that categories of mental disorder and risk were explicitly problematised but normative discourses in relation to mental illness and its treatment in hospitals were then reproduced.^[82] While focused on mental health professional decision-making, Gumley et al investigated the approach taken by mental health professionals in making decisions in relation to treatment decisions where the equivalent of advance health directives (‘AHDs’) were in place.^[83] By applying Foucauldian discourse analysis and drawing on Stryker’s symbolic interactionism, they analysed 13 interviews with mental health professionals in relation to the impact that “role” played in relation to decisions to follow or not follow AHDs. Analysis of discursive practices within decision-making found that decision-making reinforced power relations between patients, clinicians and the wider mental health system. Attempts at progressive reform to support patient autonomy were failing to be realised in practice due to psychiatric discourse.

There are some useful examples of Foucauldian discourse analysis being applied in a legal context. For example, Arrigo and Williams sought to analyse the phenomenon of ‘civil commitment practices’ by teasing out insights contained in Foucault’s work and strategically seeking to connect the insights in critiquing mental health law.^[84] More recently, Kent et al utilised Foucauldian discourse analysis in analysing political discourse in parliamentary debates related to UK mental health legislation,[85] while Kolar et al utilised FDA in the analysis of legislation as discursive text.[86]

This project will utilise Foucauldian discourse analysis in analysing the various ‘texts’ – legislation, policy, published statements of reasons and case reports.^[87] Drawing inspiration from the Siegfried Jäger and Florentine Maier,[88] the analysis will follow Willig’s six-step approach:[89] (1) discursive constructions: a close reading of texts to identify statements in which the concept of dangerousness is constructed through language; (2) discourses: identifying which discourses are drawn upon, and what their relationship is to one another; (3) action orientation: determining what these constructions achieve, what is gained from deploying them, their functions, and what their author is doing; (4) subject positions: identifying what  subject positions are made available by these constructions; (5) practice: identifying what possibilities for action are mapped out by these constructions, and what can be said and done from within these subject positions; and (6) subjectivity: identifying what can be felt, thought and experienced from these available subject positions.[90] This kind of analysis will bring to light the various ways that dangerousness is constructed in these texts, and the discourses that inform each of these constructions.

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[1] Thomas Ugelvik, ‘Techniques of legitimation: The narrative construction of legitimation among immigration detention officers’ (2016) 12(2) Crime, Media, Culture: An International Journal 215; Jerg Gutmann and Stefan Voigt, ‘The rule of law: Measurement and deep roots’ (2018) 54 European Journal of Political Economy 68.

[2] Chuks Okpaluba and Anthony Nwafor, ‘The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct’ (2021) 14 Erasmus Law Review 55.

[3] For example, Michele Pifferi, Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries (Oxford University Press, 2016); Chelsea Barabas et al, ‘Interventions over Predictions: Reframing the Ethical Debate for Actuarial Risk Assessment’ (2018) 81 Proceedings of Machine Learning Research 62.

[4] Bruce J Winick, ‘Ambiguities in the Legal Meaning and Significance of Mental Illness’ (1995) 1(3) Psychology, Public Policy and Law 354; Bohdan Solomka, ‘The role of psychiatric evidence in passing “longer than normal” sentences’ (1996) 7(2) Journal of Forensic Psychiatry 239.

[5] Mental Health Act 2016 (Qld) 12(1)(c)(i); 51(3).

[6] Ibid ss 3(1)(c); 101(1); 175; 442, 450.

[7] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 11-13.

[8] Queensland Government, Mental Health Review Tribunal: Annual Report 2021-2022 (Queensland Government, 2022) 19.

[9] Queensland Government Statistician’s Office, Queensland Treasury Justice Report, Queensland, 2020-2021: Criminal justice statistics (Queensland Government, 2021) 104.

[10] Bruce J Ennis and Thomas R Litwack, ‘Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom’ (1974) 62 California Law Review 693.

[11] Robert J Menzies, Christopher D Webster and Diana S Sepejak, ‘The Dimensions of Dangerousness: Evaluating the Accuracy of Psychometric Predictions of Violence Among Forensic Patients’ (1985) 9(1) Law and Human Behavior 49.

[12] Convention on the Rights of Persons with Disabilities (‘CRPD’), opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

[13] Penalties and Sentences Act 1992 (Qld) Pt 10 (‘Indefinite sentences’).

[14] Criminal Law Amendment Act 1945 (Qld) s 18.

[15] Ibid s 18(4).

[16] Dangerous Prisoners (Sex Offenders) Act 2003 (Qld) s 13.

[17] Serious Sex Offenders Monitoring Act 2005 (Vic); Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic); Serious Offenders Act 2018 (Vic); Crimes (High Risk Offenders) Act 2006 (NSW); Dangerous Sexual Offenders Act 2006 (WA); High Risk Serious Offenders Act 2020 (WA).

[18] Lisa Brophy and Fiona McDermott, ‘What’s driving involuntary treatment in the community? The social, policy, legal and ethical context’ (2003) 11 Australasian Psychiatry 584.

[19] Marianne Wyder, Robert Bland, Ann Herriot and David Crompton, ‘The experiences of the legal processes of involuntary treatment orders: Tension between the legal and medical frameworks’ (2015) 38 International Journal of Law and Psychiatry 44.

[20] For instance, Human Rights Act 2019 (Qld) ss 17(1)(c); 19; 25; 29 and 31. See also Timothy W Harding, ‘Human rights law in the field of mental health: a critical review’ (2000) 101(399) Acta Psychiatrica Scandinavica 24; David Kingdon, Roland Jones and Jouko Lonnqvist, ‘Protecting the human rights of people with mental disorder: new recommendations emerging from the Council of Europe’ (2004) 185(4) British Journal of Psychiatry 277; Brendan D Kelly, ‘Mental health legislation and human rights in England, Wales and the Republic of Ireland’ (2011) 34(6) International Journal of Law and Psychiatry 439; Eli Feiring and Kristian N Ugstad, ‘Interpretations of legal criteria for involuntary psychiatric admission: a qualitative analysis’ (2014) 14 BMC Health Services Research 500:1-10.

[21] While focusing on the relationship between human rights and mental health law, Gill et al identified similar concerns regarding the ineffectiveness of law reform in support of patient autonomy in enacting the Mental Health Act 2016 (Qld): Neeraj S Gill, Andrew Amos, Hassan Muhsen, Joshua Hatton, Charuka Ekanayake and Steve Kisely, ‘Measuring the impact of revised mental health legislation on human rights in Queensland, Australia’ (2020) 73 International Journal of Law and Psychiatry 1; Neeraj S Gill, John A Allan, Belinda Clark and Alan Rosen, ‘Human rights implications of introducing a new mental health act – principles, challenges, and opportunities’ (2020) 28(2) Australasian Psychiatry 167; Neeraj S Gill and Kathryn Turner, ‘How the statutory health attorney provision in Mental Health Act 2016 (Qld) is incompatible with human rights’ (2021) 29(1) Australasian Psychiatry 72; Neeraj S Gill, Stephen Parker, Andrew Amos, Richard Lakeman, Mary Emeleus, Lisa Brophy and Steve Kisely, ‘Opening the doors: Critically examining the locked wards policy for public mental health inpatient units in Queensland Australia’ (2021) 55(9) Australian & New Zealand Journal of Psychiatry 844; Andrew Amos, Michael Evans, Neeraj Gill, Kathleen Nitschinsk, Adithya Sharanya and Steve Kisely, ‘Transparency and accountability are needed to clarify large differences in the use of forensic orders across Australia’ (2022) 82 International Journal of Law and Psychiatry.

[22] Bernadette McSherry, ‘Sex Drugs and “Evil” Souls: The Growing Reliance on Preventive Detention Regimes’ (2006) 32(2) Monash University Law Review 237; Patrick Keyzer and Sam Blay, ‘Double Punishment? Preventive Detention Schemes under Australian Legislation and Their Consistency with International Law: The Fardon Communication’ (2006) 7(2) Melbourne Journal of International Law 407.

[23] Michel Foucault, History of Madness, tr Jonathan Murphy and Jean Khalfa(Routledge, 2013).

[24] F C Biley, ‘All this happened, more or less: thoughts on “truth”, the role of fiction and its potential application in mental health and psychiatric nursing research’ (2009) 16(10) Journal of Psychiatric and Mental Health Nursing 919.

[25] Melanie Williams, ‘“A Normal Man … Hardly Exists”: Law, Narrative, the Psyche, and the Normal Man’ (2009) 62(1) Current Legal Problems 202. See also Mary E Hawkesworth, ‘Knowers, Knowing, Known: Feminist Theory and Claims of Truth’ (1989) 14(3) Signs 533.

[26] For example, Michel Foucault, The History of Sexuality, Vol 1: An Introduction, tr Robert Hurley(Random House, 1978).

[27] Nikolas Rose, ‘Governing risky individuals: The role of psychiatry in new regimes of control’ (1998) 5(2) Psychiatry, Psychology and Law 177.

[28] Judith S Thompson and Joel W Ager, ‘An Experimental Analysis of the Civil Commitment Recommendations of Psychologists and Psychiatrists’ (1988) 6(1) Behavioral Sciences and the Law 119; Bruce A Arrigo, ‘Paternalism, Civil Commitment and Illness Politics: Assessing the Current Debate and Outlining a Future Direction’ (1992) 7 Journal of Law and Health 131; Anna Saya et al, ‘Criteria, Procedures, and Future Prospects of Involuntary Treatment in Psychiatry Around the World: A Narrative Review’ (2019) 10 Frontiers in Psychiatry 271.

[29] For example, Mental Health Act 2016 (Qld) ss 3(1)(c); 12(1)(c)(i); 51(3); 101(1); 175; 442, 450. See also Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 11-13.

[30] Bernadette Dallaire, Michael McCubbin, Paul Morin and David Cohen, ‘Civil commitment due to mental illness and dangerousness: the union of law and psychiatry within a treatment-control system’ (2000) 22(5) Sociology of Health and Illness 679; Bruce J Ennis and Thomas R Litwack, ‘Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom’ (1974) 62 California Law Review 693.

[31] Foucault, History of Madness (n 32).

[32] Alain Ehrenberg, Weariness of the Self: Diagnosing the History of Depression in the Contemporary Age (McGill-Queen’s Press, 2009); Joanna Moncrieff, ‘Psychiatric Diagnosis as a Political Device’ (2010) 8(4) Social Theory and Health 370.

[33] Jonathan M Metzl, The Protest Psychosis: How Schizophrenia Became a Black Disease (Beacon Press, 2010); Katie Rose Hejtmanek, Friendship, Love, and Hip Hop: An Ethnography of African American Men in Psychiatry Custody (Springer, 2015).

[34] Simone Fullagar and Wendy O’Brien, ‘Problematizing the Neurochemical Subject of Anti-Depressant Treatment: The Limits of Biomedical Responses to Women’s Emotional Distress’ (2013) 17(1) Health: An Interdisciplinary Journal for the Social Study of Health, Illness and Medicine 57; Jonathan Metzl, Prozac on the Couch: Prescribing Gender in the Era of Wonder Drugs (Duke University Press, 2003); Janet Stoppard, Understanding Depression: Feminist Social Constructionist Approaches (2000).

[35] Elise Rondelez, Sarah Bracke, Griet Roets and Piet Bracke, ‘Racism, migration, and mental health: Theoretical reflections from Belgium’ (2016) 9 Subjectivity 313.

[36] Bruce M Z Cohen, Psychiatric Hegemony: A Marxist Theory of Mental Illness (Palgrave Macmillan, 2016).

[37] Lawrence O Gostin, ‘“Old” and “new” institutions for persons with mental illness: Treatment, punishment or preventive confinement?’ (2008) 122(9) Public Health 906; Joanne Warner, ‘Community care, risk and the shifting locus of danger and vulnerability in mental health’ in Alan R Petersen and Iain Wilkinson (eds), Health, Risk and Vulnerability (Routledge, 2007) 40.

[38] Jane M Ussher, The Madness of Women: Myth and Experience (Routledge, 2011).

[39] Mary Ann Jimenez, ‘Gender and Psychiatry: Psychiatric Conceptions of Mental Disorders in Women, 1960-1994’ (1997) 12(2) Affilia 154, 158.

[40] Ibid 163.

[41] Lisa Feldman Barrett and Eliza Bliss-Moreau, ‘She’s emotional. He’s having a bad day: Attributional explanations for emotion stereotypes’ (2009) 9(5) Emotion 649.

[42] Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability (New York University Press, 2006).

[43] Katie Aubrecht, ‘Disability Studies and the Language of Mental Illness’ (2012) 8(2) Review of Disability Studies: An International Journal 1.

[44] Leanne Dowse, Eileen Baldry and Phillip Snoyman, ‘Disabling criminology: conceptualising the intersections of critical disability studies and critical criminology for people with mental health and cognitive disabilities in the criminal justice system’ (2009) 15(1) Australian Journal of Human Rights 29.

[45] Richard Ingram, ‘Doing Mad Studies: Making (Non)Sense Together’ (2016) 5(3) Intersectionalities: A Global Journal of Social Work Analysis, Research, Polity, and Practice 11; Bonnie Burstow, Brenda A LeFrançois and Shaindl Diamond (eds), Psychiatry Disrupted: Theorizing Resistance and Crafting the (R)evolution (McGill-Queen’s Press, 2014).

[46] Nick Walker, ‘Neuroqueer Heresies: Notes on the Neurodiversity Paradigm, Autistic Empowerment, and Postnormal Possibilities’ (Autonomous Press, 2021).

[47] Alexandre Baril and Kathryn Trevenen, ‘Exploring ableism and cisnormativity in the conceptualisation of identity and sexuality disorders’ (2014) 11(1) Annual Review of Critical Psychology 389; Alexandre Baril and Catriona Leblanc, ‘Needing to acquire a physical impairment/disability: (re)thinking the connections between trans and disability studies through transability’ (2015) 30(1) Hypatia 30; Paul Chappell, ‘Queering the social emergence of disabled sexual identities: Linking queer theory with disability studies in the South African context’ (2015) 29(1) Agenda 54; Jen Slater, Charlotte Jones and Lisa Procter, ‘Troubling school toilets: Resisting discourses of development through a critical disability studies and critical psychology lens’ (2019) 40(3) Discourse: Studies in the Cultural Politics of Education 412.

[48] Claire Spivakovsky, ‘The impossibilities of “bearing witness” to the violence of coercive interventions in the disability sector’ in Claire Spivakovsky, Kate Seear and Adrian Carter (eds), Critical Perspectives on Coercive Interventions (Routledge, 2018) 97.

[49] Matthew Large and Christopher J Ryan, ‘Sanism, stigma and the belief in dangerousness’ (2012) 46(11) Australian & New Zealand Journal of Psychiatry 1099.

[50] Dieuwertje Dyi Huijg, ‘Neuronormativity in theorising agency: An argument for a critical neurodiversity approach’ in Hanna Bertilisdotter Rosqvist, Nick Chown and Anna Stenning (eds), Neurodiversity Studies (Routledge, 2020) 213.

[51] Austin Gerhard Oswald, Shear Avory and Michelle Fine, ‘Intersectional expansiveness borne at the neuroqueer nexus’ (2022) 13 Psychology & Sexuality 1122.

[52] Dorothy E Smith, Institutional Ethnography: A Sociology for People (Rowman Altamira, 2005).

[53] Kevin T Walby, ‘Institutional Ethnology and surveillance studies: An outline for inquiry’ (2005) 3(2/3) Surveillance & Society 1.

[54] Bonnie Burstow, ‘Introduction to the project: IE researchers take on psychiatry’ in Bonnie Burstow (ed), Psychiatry Interrogated: An Institutional Ethnology Anthology (Palgrave Macmillan, 2016) 1.

[55] D’Arcy Hiltz and Anita Szigeti, A Guide to Consent and Capacity Law in Ontario (LexisNexis, 2011).

[56] Bonnie Burstow, Psychiatry and the Business of Madness (Palgrave Macmillan, 2015); Robert Whitaker and Lisa Cosgrove, Psychiatry under the Influence: Institutional Corruption, Social Injury, and Prescriptions for Reform (Palgrave Macmillan, 2015).

[57] Eva Vakirtzi and Phil Bayliss, ‘Towards a Foucauldian methodology in the study of autism: Issues of archaeology, genealogy, and subjectification’ (2013) 47(3) Journal of Philosophy of Education 364.

[58] Thomas G Gutheil, ‘The history of forensic psychiatry’ (2005) 33(2) Journal of the American Academy of Psychiatry and the Law 259.

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[60] Andrew Ashworth, ‘Criminal Law, Human Rights and Preventative Justice’ in Bernadette McSherry, Alan Norrie and Simon Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (Hart Publishing, 2009) 185.

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[62] Richard V Ericson and Kevin D Haggerty, Policing the Risk Society (University of Toronto Press, 1997); Bernard E Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (University of Chicago Press, 2019).

[63] Francois Ewald, ‘The return of Descartes’s malicious demon: An outline of a philosophy of precaution’ in Tom Baker and Jonathan Simon (eds), Embracing Risk: The Changing Culture of Insurance and Responsibility (University of Chicago Press, 2002) 273; Pat O’Malley, ‘Globalizing risk? Distinguishing styles of “neo-liberal” criminal justice in Australia and the USA’ (2002) 2(2) Criminal Justice 205; Richard V Ericson, Crime in an Insecure World (Polity, 2007); Bill Hebenton and Toby Seddon, ‘From dangerousness to precaution: Managing sexual and violent offenders in an insecure and uncertain age’ (2009) 49(3) British Journal of Criminology 343.

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[65] Michelle Edgely, ‘Preventing Crime or Punishing Propensities? A Purposive Examination of the Preventive Detention of Sex Offenders in Queensland and Western Australia’ (2007) 33(2) University of Western Australia Law Review 351.

[66] Michael Barnett and Robert Hayes, ‘Evaluating the Judicial Interpretation of Civil Commitment Schemes for Serious Sex Offenders’ (2008) 12(1) University of Western Sydney Law Review 39.

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[69] James Vess, ‘Risk assessment with female sex offenders: Can women meet the criteria of community protection laws?’ (2011) 17(1) Journal of Sexual Aggression 77.

[70] Kirpal Kaur Sahota, ‘Transgender sex offenders: gender dysphoria and sexual offending’ (2020) 6(3) Journal of Criminological Research, Policy and Practice 255.

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[72] Michel Foucault, ‘About the concept of the “dangerous individual” in 19^th-century legal psychiatry’, tr Alain Baudot and Jane Couchman (1978) 1(1) International Journal of Law and Psychiatry 1.

[73] Dale A Albers, Richard A Pasewark and Ted C Smith, ‘Involuntary Hospitalization: The Social Construction of Danger’ (1976) 4(2) American Journal of Community Psychology 129; Eric S Janus and Paul E Meehl, ‘Assessing the Legal Standard for Predictions of Dangerousness in Sex Offender Commitment Proceedings’ (1997) 3(1) Psychology, Public Policy and Law 33.

[74] Teresa Macias, ‘“On the Footsteps of Foucault”: Doing Foucauldian Discourse Analysis in Social Justice Research’ in Susan Strega and Leslie Brown, Research as Resistance: Revisiting Critical, Indigenous and Anti-Oppressive Approaches (Canadian Scholars’ Press Inc, 2^nd edition, 2015) 221.

[75] Michel Foucault, History of Madness, ed Jean Khalfa, tr Jonathan Murphy and Jean Khalfa (Routledge, 2006); Michel Foucault, Psychiatric Power: Lectures at the College de France, 1973-74, ed Jacques Lagrange, tr Graham Burchell (Palgrave Macmillan, 2003); Michel Foucault, Abnormal: Lectures at the College de France, 1974-1975, ed Valerio Marchetti and Antonella Salomoni, tr Graham Burchell (Verso, 2003).

[76] Michel Foucault, Penal Theories and Institutions: Lectures at the College de France, 1971-1972, ed Bernard E Harcourt, tr Graham Burchell (Palgrave Macmillan, 2019); Michel Foucault, The Punitive Society: Lectures at College de France, 1972-1973, ed Bernard E Harcourt, tr Graham Burchell (Palgrave Macmillan, 2015); Michel Foucault, Discipline and Punish: The Birth of the Prison, tr Alan Sheridan (Vintage Books, 1995).

[77] Michel Foucault, Lectures on the Will to Know: Lectures at the College de France, 1970-1971 with Oedipal Knowledge, ed Daniel Defert, tr Graham Burchell (Palgrave Macmillan, 2011); Michel Foucault, Wrong-Doing, Truth-Telling: The Function of Avowal in Justice, ed Fabienne Brion and Bernard E Harcourt, tr Stephen W Sawyer (University of Chicago Press, 2014).

[78] Mental Health Act 2016 (Qld) s 298.

[79] Ibid s 305.

[80] Ibid s 758(1).

[81] Cecile H Sam, ‘Shaping discourse through social media: Using Foucauldian discourse analysis to explore the narratives that influence educational policy’ (2019) 63(3) American Behavioural Scientist 333; Jesse Bazzul, ‘Critical discourse analysis and science education texts: Employing Foucauldian notions of discourse and subjectivity’ (2014) 36(5) Review of Education, Pedagogy and Cultural Studies 422; Jean-Laurent Domingue, Jean-Daniel Jacob, Amelie Perron, Thomas Froth and Pierre Pariseau-Legault, ‘The forensic psychiatric network of observation and documentation: At the intersection of review board hearings and nursing practice’ (2023) 19(1) Journal of Forensic Nursing 21.

[82] Rosie Buckland, ‘The Decision by Approved Mental Health Professionals to Use Compulsory Powers under the Mental Health Act 1983: A Foucauldian Discourse Analysis’ (2016) 46(1) British Journal of Social Work 46.

[83] Andrew Gumley et al, ‘Mental Health Professionals’ Positions in Relation to Advance Statements: A Foucauldian Discourse Analysis’ (2021) 31(13) Qualitative Health Research 2378.

[84] Bruce A Arrigo and Christopher R Williams, ‘Chaos Theory and the Social Control Thesis: A Post-Foucauldian Analysis of Mental Illness and Involuntary Civil Confinement’ (1999) 26(1) Social Justice 177.

[85] Tom Kent, Anne Cooke and Ian Marsh, ‘“The expert and the patient”: a discourse analysis of the house of commons’ debates regarding the 2007 Mental Health Act’ (2022) 31(2) Journal of Mental Health 152.

[86] Maja Kolar, Colleen Varcoe, Helen Brown and Rochelle Einboden, ‘Involuntary psychiatric treatment and the erosion of consent: A critical discourse analysis of mental health legislation in British Columbia, Canada’ (2022) Health (advance publication).

[87] Bruce A Arrigo and Christopher R Williams, ‘Chaos Theory and the Social Control Thesis: A Post-Foucauldian Analysis of Mental Illness and Involuntary Civil Confinement’ (1999) 26(1) Social Justice 177; Andrew Gumley et al, ‘Mental Health Professionals’ Positions in Relation to Advance Statements: A Foucauldian Discourse Analysis’ (2021) 31(13) Qualitative Health Research 2378; Rosie Buckland, ‘The Decision by Approved Mental Health Professionals to Use Compulsory Powers under the Mental Health Act 1983: A Foucauldian Discourse Analysis’ (2016) 46(1) British Journal of Social Work 46.

[88] Siegfried Jäger and Florentine Maier, ‘Analysing discourses and dispositives: a Foucauldian approach to theory and methodology’ in Ruth Wodak and Michael Meyer (ed), Methods of Critical Discourse Studies (Sage, 3^rd edition, 2016) 109.

[89] Carla Willig, ‘Foucauldian Discourse Analysis’ in Introducing Qualitative Research in Psychology (Open University Press, 3^rd edition, 2013) 378.

[90] Ibid 413-415.