Fact Sheet

WHAT YOU SHOULD KNOW ABOUT MENTAL HEALTH AND THE LAW

New legislation: what is different?

The Mental Health Act 2007(NSW) is new legislation that governs the treatment of people with mental illness in NSW hospitals and in the community. It replaces the previous mental health legislation: the Mental Health Act 1990(NSW). The stated aims of the new legislation remain the same: to protect the rights of people with mental illness or mental disorder whilst ensuring that they have access to appropriate care. There is a new “rights clause”(s.68) which states that individuals with mental illness should receive the best possible care in the least restrictive environment. Another key change is a provision which emphasises the rights of carers to information and involvement in the care, treatment and control of the mentally ill (s.3). There is also a new provision which focuses on the rehabilitation of the mentally ill (s.105).

Set out below are some of the primary features of the mental health legislation in NSW.

What is the criteria for involuntary admission?

Only patients who satisfy the definition of mental illness can be kept in hospital on an involuntary basis. Being found to be a mentally ill person involves the application of a 2 stage process: a. that the person is mentally ill and b. that as a result of that mental illness there is a risk of serious harm. The Act requires a link between the 2: the risk of harm (to self or others) must be owing to the illness.

The definition of mentally ill person can be roughly broken down into

• symptoms;
• risk; and
• no less restrictive option

If a patient ceases to be mentally ill or mentally disordered, that patient is entitled to leave the mental health facility.

How is mental illness defined?

“Mental illness” is characterised by the presence of any one or more of the following symptoms:

(a) delusions
(b) hallucinations
(c) serious disorder of thought form
(d) a severe disturbance of mood
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a) –(d)

It is not just the patient’s condition at the moment of any examination that is to be taken into account in deciding if that patient is, or remains, mentally ill. If the patient has manifested one or more of the required symptoms of mental illness in the recent past, that patient may meet the requirements of the definition.

How does a patient get admitted to hospital as an involuntary patient?

Someone has to ask the Hospital to admit the patient. This can be a doctor: who is required to complete a Schedule I Certificate (hence the use of the term: to schedule a patient) or a police officer who has the power to bring a person to a Hospital under section 22 of the Act or an ambulance officer under section 20 or the nominated Primary Carer.

What happens after a patient is made an involuntary patient?

Within 12 hours of admission the Hospital has to arrange for a medical assessment of the patient: section 27(a). A certificate must be completed by a doctor indicating that the person is mentally ill or mentally disordered and that no care other than hospital treatment is appropriate and available. A second examination needs to be undertaken as soon as possible by a psychiatrist to assess the decision of the first doctor. An oral and a written explanation of the patient’s rights must be given to the patient as soon as practicable after the admission: section 74.

Magistrates’ Hearings

Once the decision has been made that the patient is mentally ill or mentally disordered, that patient must be brought before a Magistrate for a hearing as soon as practicable: section 27(d). If the patient is found to be mentally disordered (and not mentally ill), that patient can only be kept for three days and does not need to come before a Magistrate. The patient is to wear street clothes and be given as little medication as possible. The patient is entitled to legal representation.

If the Magistrate finds that the patient is mentally ill and that no other care of a less restrictive kind is appropriate, he or she can make a temporary patient order for up to 3 months: section 35. There is a right of appeal from the decision of a Magistrate to the Mental Health Review Tribunal (see also below). The Magistrates hearing is recorded and this would be made available to the Mental Health Review Tribunal when hearing the appeal.

Continuation of Involuntary Treatment

If the patient is likely to have his or her period of treatment extended at the end of the period ordered by the Magistrate, the patient must be brought before the Mental Health Review Tribunal (‘MHRT’) before the order expires. The Tribunal is a panel of 3: the Chair (a lawyer), a psychiatrist and a community representative. The MHRT has 2 choices if the patient is found still to be a mentally ill person: classify the patient as a continued treatment patient for a period not longer than 6 months or classify the patient as a temporary patient for a period not longer than 3 months. Continued treatment patients must be reviewed every 6 months unless the Tribunal is of the opinion that 12 monthly reviews are appropriate.

What other decisions can be made by the MHRT?

In addition to the above, the MHRT is the body which decides whether a course of electro-convulsive therapy is appropriate in the circumstances of a particular patient. Such orders can not be made by Magistrates.

What are Community Treatment Orders?

These are legal orders requiring people in the community to receive treatment for up to 12 months. A Community Treatment Order (CTO) can be made for an inpatient or a person not in a mental health facility. A doctor, director of a community treatment facility or the primary carer can apply for a CTO. 14 days written notice of an application for a CTO must be given to the affected person if they are not in hospital.

The Magistrate or Mental Health Tribunal will consider the treatment plan, any report as to the efficacy of any current or earlier CTO and any other relevant information.

The CTO may be made where:
no other less restrictive care is appropriate and
a treatment plan capable of being implemented is available and
the person has been previously diagnosed as suffering from a mental illness and
has a history of refusing to accept treatment and
that refusal lead to a relapse justifying involuntary admission and
care and treatment improved symptoms.

If a patient placed on a community treatment order (CTO) refuses or discontinues treatment, the patient can be readmitted to hospital. The finding of mental illness is not a prerequisite for the making of a community treatment order.

Primary Carers

The new legislation has introduced the concept of primary carer (s.71). The primary carer can be the guardian or parent of a child or the person nominated by a patient over 14. Where there is no nominated primary carer in place the primary carer may default to the spouse, any person providing support or care or a close friend or relative.

The patient may nominate, exclude or revoke a person as their primary carer. This must be in writing to the authorised medical officer (AMO) and remains in force until revoked or 12 months. A child between 14 and 18 cannot exclude parents. AMO does not have to give effect to the nomination if there is a reasonable belief that any person is at risk of serious harm or the person making the nomination was incapable at the time.

The Primary Carer must be notified or consulted in regard to the following:
Details of medication and dose,
Detention of person
Mental health inquiry
Person absconds, is transferred, discharged, becomes voluntary patient,
ECT or surgery is proposed.

The Primary Carer can apply for a CTO, discharge of patient or detention of a person.

For any enquiry regarding a legal issue arising from mental health, please contact us at enquiries@kingstreetlawyers.com.au.

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