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Untangling the Surrogacy Web and Exploring Legal Duties Following the Discharge of Mental Health Patients

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  1. See, for example, Parentage Act 2004 (ACT), Surrogacy Act 2010 (NSW), Surrogacy Act 2010 (Qld), Family Relationships Act 1975 (SA), Surrogacy Act 2012 (Tas), Assisted Reproductive Treatment Act 2008 (Vic), and Surrogacy Act 2008 (WA).

  2. Consideration of the wording of applicable legislation will be necessary in each case. In this matter, the legislation considered was the Mental Health Act 1990 (NSW), since replaced by the Mental Health Act 2007 (NSW). Section 68 of the current Act also refers to care and treatment in the least restrictive environment enabling the care and treatment to be effectively given.

  3. McKenna & Simon v Hunter & New England Local Health District [2013] NSWCA 476 at [1], [165]–[166]. The majority also held that the Health Service was not entitled to the protection of s 43 or s 43A of the Civil Liability Act 2002 (NSW), as the claims were not for breach of statutory duty or based on the Hospital’s exercise of, or failure to exercise, a special statutory power conferred by s 35(3) of the Mental Health Act 1990: at [1], [167], [174]–[176], [178]; Garling J contra at [286].

  4. See also s 4(2)(b): “[E]very function, discretion and jurisdiction conferred or imposed” by the Act be, as far as practicable, performed or exercised, so that (among other things) “any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.”

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Correspondence to Bernadette Richards.

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Richards, B., Madden, B. & Cockburn, T. Untangling the Surrogacy Web and Exploring Legal Duties Following the Discharge of Mental Health Patients. Bioethical Inquiry 12, 25–29 (2015). https://doi.org/10.1007/s11673-014-9592-6

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  • DOI: https://doi.org/10.1007/s11673-014-9592-6

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