MHCC Mental Health Rights Manual

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Chapter 12 Appendix A: Key Terms

Note: Key terms pop up as explanatory text on bolded words. To read this text and a more detailed definition please go to Chapter 12D. 

Advance Directive

An Advance Directive is something in writing that says what someone wants to happen to them if they become incapable of making decisions for themselves. It usually refers to medical treatment and care and any information about where they do or do not wish to be cared for and by whom, or what treatment they want or do not want. An Advance Directive can express wishes about any aspect of their life or affairs.

Anorexia Nervosa

Anorexia Nervosa is a serious psychological illness involving dangerously low body weight characterised by a person depriving themselves of food and/or engaging in excessive exercise in order to continually reduce body weight based on a false body image. To read more see Chap 8.

Apprehended Violence Order

An Apprehended Violence Order (AVO) is an Order made by a court against a person (defendant) who makes another person (the protected person) fear for their safety, to protect that person from further violence, intimidation or harassment. All AVOs made by the court prohibit the defendant from assaulting, harassing, threatening, stalking, or intimidating a protected person. Other conditions can also be included.

Assessable Person

An assessable person is a person detained on an involuntary basis in a Mental Health Facility who is not (yet) subject to an Involuntary Patient Order made by the Mental Health Review Tribunal (MHRT) at a Mental Health Inquiry. The Authorised Mental Officer of a Mental Health Facility must present an assessable person to the MHRT for a Mental Health Inquiry as soon as practicable after their detention in hospital.

Associate

In discrimination law, an ‘associate’ of a person with disability is a person with whom the person with disability associates, such as a close family member, a person with whom they live; a carer or another person with whom they are in a business, sporting or recreational relationship. Associates may sometimes be unlawfully discriminated against because of their relationship with a person with disability and is therefore entitled to complain of disability discrimination.

Bulimia Nervosa

Bulimia Nervosa is a serious psychological illness characterised by recurrent binge eating episodes followed by purging and/or over exercising. To read more see Chap 8.

CALD

CALD is a term that refers to people from culturally and linguistically diverse backgrounds.

Capacity

Capacity refers to a person’s ability to make his/her own decisions. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have an operation. A person may lack capacity in some areas, but still be able to make other decisions.

Cognitive Disability

The term cognitive disability or impairment generally refers to when a person experiences difficulty performing mental tasks that the average person would be able to do. The term cognitive disability can be used to refer to various disabilities such as developmental disability, dyslexia, autism, ADHD and other learning disabilities. The severity of a cognitive disability can affect how independently the person can function.

Community Managed Organisations

The preferred language in the community managed mental health sector is CMOs rather than non-government organisations (NGOs), because it more closely articulates the type of organisation, rather than just defining it as not a government organisation.

Community Treatment Order

A Community Treatment Order is a legal order made by a Local Court Magistrate or the Mental Health Review Tribunal. It authorises the compulsory care and treatment, usually including the regular administration of medication, of a person with mental illness living in the community.

Conciliation

Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences.

Consent

Agreeing to medical treatment is called 'consent'. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, risks. You agreeing to the treatment once you have been given the information and understand it is called 'informed consent' to treatment. Informed consent by a person who has capacity is a valid consent. To read more see Chap 3 & 8.

Consumer

In this Manual, ‘consumer’ refers to someone who receives or received in the past, mental health or psychosocial support services, such as a patient in a mental health facility or unit, or is a client of a community mental health service whether public or community managed.

Correctional Patient

A ‘correctional patient’ is a person who has been transferred from a correctional centre to a mental health facility while serving a sentence of imprisonment, or on remand. A correctional patient is not a forensic patient or a prisoner who has been reclassified by the Mental Health Review Tribunal as an involuntary patient. To read more see Chap 4K.

Cultural Safety

Cultural safety has been described as providing an environment that is safe for people: where there is no assault, challenge or denial of their identity, of who they are and what they need. It is about shared respect, shared meaning, shared knowledge and experience, of learning, living and working together with dignity and truly listening. It reminds us that people who do not belong to the dominant culture may have been subject to oppression, abuse, and discrimination.

Designated Carer

The amendments to the Mental Health Act 2007 (NSW) were assented on the 28 November 2014 by way of the Mental Health Amendment (Statutory Review) Act 2014 (NSW). These changes are now in force. The Mental Health Act 2007 (NSW) has replaced the term 'Primary Carer' with the term Designated Carer.To read more see Chap 9 and 12D.

Disability

Disability is defined (Disability Discrimination Act 1992 (Cth)) as: total or partial loss of the person's bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person's body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

Electroconvulsive therapy

Electroconvulsive therapy is a form of treatment for some severe forms of mental illness. It involves the administration of an electrical current to one or both sides of a patient’s brain under general anaesthetic in order to produce a seizure. It may be recommended when other forms of treatment including medication and psychotherapy are ineffective. Often this produces an improvement in depressive and psychotic symptoms. Sometimes, ECT is prescribed for people who for other medical reasons cannot tolerate medications.

Enduring Guardian

The Guardianship Act 1987 (NSW) makes it possible for a person with legal capacity to appoint an Enduring Guardian. An Enduring Guardian can make decisions for you in areas such as accommodation, health and services, if you lose the capacity to make your own decisions at some time in the future. An Enduring Guardian cannot make decisions about your money or assets. See ‘Guardian, Guardianship & Enduring Guardianship’, Chap 5A.5.

Enduring Power of Attorney

An Enduring PoA is made by a person who has legal capacity to do so at the time, which comes into effect if that person has loses capacity to make financial and legal decisions in the future. The person appointed to make these decisions is called the ‘Attorney’. To read more see Chap 5.

Financial Manager

A ‘financial manager’ is a person, officer (e.g. NSW Trustee and Guardian), or organisation (e.g. a trustee company) appointed by a Tribunal (e.g. the Guardianship Division of NCAT, or the MHRT) or Court (e.g. Supreme Court of NSW) to make decisions about the ‘estate’ of a person who does not have legal capacity to make these decisions for themselves. The ‘estate’ of a person includes their financial, property and legal affairs. To read more see Chap 5.

Forensic Patient

A forensic patient is a person who has been arrested for committing a crime, but there is some question as to whether the person is fit to be tried in court; or is found unfit to be tried in court; or is found to be not guilty of a crime on the grounds of mental illness. Forensic patients are generally detained in a prison or a hospital, but may be released under an order of the Mental Health Review Tribunal.

Guardian

In NSW, guardians are appointed by the Guardianship Division of NCAT to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. To read more see Chap 5 & 12D.

Guardianship

Guardianship describes the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because it has been determined that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person A Guardian does not have authority to make financial decisions on a person’s behalf.

Habilitate

Habilitate or habilitation are terms that refer to the assistance provided to a person to develop daily living and other skills that they have not previously had due to a lifelong disability. It is used in contrast to and in association with the term rehabilitation which refers to the assistance provided to someone who has lost daily living skills as a result of an acquired disability to regain those skills.

Impairment

The loss or limitation of physical, mental or sensory function on a long-term or permanent basis. For people with mental health conditions this would also include a loss of function on an episodic basis, which in many cases leads to long term or permanent impairment and subsequent disablement.

Involuntary Patient

An Involuntary patient is someone who is admitted and detained in a hospital or psychiatric unit for care and treatment under the Mental Health Act 2007. In most cases it refers to a person who is detained under an Involuntary Patient Order made by the Mental Health Review Tribunal. In some circumstances the term includes an ‘assessable person’ detained in a mental health facility prior to a Mental Health Inquiry. To read more see Chap 4 & 12D.

Licensee

A licensee is person who resides at premises but who does not have exclusive possession of those premises. The premises may be a boarding house or group home. The licensee has a contractual right to occupy the premises which can generally can be revoked at will. A licensee is not a tenant and does not have rights under the Residential Tenancies Act 2010 (NSW). To read more see Chap7E.3.

Medical Model

The medical model of psychiatry is a process whereby treatment is informed by the best available research and scientific evidence and based on that evidence, doctors advise on, coordinate or deliver interventions for health improvement.

Mental Health Condition

The term mental health condition is a broad term that refers to symptoms that may be caused by life events, genetic factors or birth defects. They can be temporary or lifelong and include mood, anxiety, personality, psychotic and compulsive disorders. It includes, but is not limited to those conditions and symptoms recognised as constituting mental illness under the Mental Health Act 2007 (NSW).

Mentally Disorderd Person

In the Mental Health Act 2007 (NSW) a mentally disordered person is defined as such if: their behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care and, treatment or control of the person is necessary for the person’s own protection from serious physical harm or for the protection of others from serious physical harm. To read more see Chap 12D.

Mentally Ill Person

A mentally ill person is defined in the Mental Health Act 2007 (NSW) as a person suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care and treatment of the person is necessary for the person’s own protection from serious harm, or for the protection of others from serious harm. To read more see Chap 12D.

Not fit to be tried/unfit to plead

In the criminal law, a person is fit to be tried, if they are able to (amongst other criteria): understand the offence charged, and plead to the charge; and understand the nature of the proceedings; and follow the course of proceedings; and make a defence or answer the charge.

Official Visitor

An ‘official visitor’ is a person appointed to visit, inspect and raise any matter of concern about the conditions of persons who are detained or accommodated in certain restrictive environments or under certain restrictive conditions. Official visitors are appointed by the NSW Minister for Health under the Mental Health Act 2007 (NSW) to visit NSW Mental Health Facilities. There are also official visitors to correctional facilities and official community visitors to a range of residential facilities accommodating people with disability in NSW.

People with lived experience

Lived experience is the knowledge and understanding acquired from living through something. When this manual refers to people with lived experience of mental illness, it means people living with mental health conditions (sometimes called consumers) and family or friends supporting someone living with mental illness (sometimes called carers).

Person responsible

A ‘person responsible’ refers to someone recognised under the Guardianship Act 1987 (NSW) as having the authority to make most medical and dental care decisions for a person who does not have legal capacity to make these decisions for themselves and who does not refuse this treatment. To read more see Chap 12D.

Power of Attorney

A Power of Attorney (PoA) is a legal document in which a person appoints someone or a trustee organisation to make financial or legal decisions on his/her behalf. A PoA can only be made by a person who has legal capacity to do so.

Primary Carer

The term Primary Carer has been replaced in the Mental Health Act 2007 (NSW) by the term Designated Carer.To read more see Chap 12D.

Principle care Provider

The amendments to the Mental Health Act 2007 (NSW) were assented to on the 28 November 2014 by way of the Mental Health Amendment (Statutory Review) Act 2014 (NSW). These changes are now in force. The Mental Health Act 2007 (NSW), now recognises a new category of persons, who are referred to as a 'principal care providers'. A principal care provider is the individual who is primarily responsible for providing support and care to a person with mental illness. The principal care provider generally has the same rights to notice, to be consulted and to make requests as the 'designated carer' (formerly the 'primary carer'). To read more see Chap 12D.

Prohibited treatments

‘Prohibited treatments’ refer to treatments that are not allowed for any patient in NSW under the Mental Health Act 2007 (NSW). Performing prohibited treatments on a patient is against the law and can lead to a criminal prosecution. Prohibited treatments are deep sleep therapy, insulin coma therapy, and psychosurgery.

Psychosocial disability

‘Psychosocial disability’ is an internationally recognised term under the United Nations Convention on the Rights of Persons with Disabilities used to describe what is often the outcome for a person with a mental health condition attempting to interact with a social environment that presents barriers to their equality with others. Psychosocial disability may also describe the experience of people with impairments and participation restrictions related to mental health conditions as the loss of or reduced abilities to function, think clearly, experience full physical health and manage the social and emotional aspects of their lives. To read more see Chap 12D.

Psychosurgery

Psychosurgery involves performing surgical operations or procedures to the brain to change the thoughts, emotions, or behaviours of the person. Psychosurgery is a prohibited mental health treatment in NSW.

Reasonable force

The force necessary to prevent someone causing harm to themselves or others. The degree of force used must be proportionate to the degree of threat of harm.

Restraint

Any restriction on a person’s freedom of movement. This may be through the use of physical force, mechanical devices, the use of chemicals, or other means.

Restrictive practice

A ‘restrictive practice’ refers to any conduct that has the purpose or effect of limiting a person’s liberty and freedom of movement. It includes, but is not limited to all forms of restraint. Except in cases of emergency where a person’s liberty must be reasonably restricted to prevent them or someone else experiencing serious harm, restrictive practices are generally unlawful in the absence of the person’s consent. To read more see Chap 12D.

Self-harm

Self-harm refers to any behaviour which involves the deliberate causing of pain or injury to oneself. This behaviour is generally used by people as an extreme coping strategy to manage distressing or painful emotions and feelings. Whilst the behaviour may be deliberate it is nevertheless driven by a strong impulse that is uncontrollable.

Substitute decision-making

‘Substitute decision-making’ refers to a situation where an adult who has legal capacity to make decisions makes decisions for another adult who does not have legal capacity to make these decisions for themselves. The substituted decision has legal effect as if it were a decision made by the person themselves. A substitute decision-maker may be entitled to make some decisions on behalf of another person without being given specific authority to do so under a Guardianship or Financial Management Order, or under an instrument of Enduring Guardianship or Power of Attorney (see 'person responsible' Chap 5 & 12D).

Supported decision-making

Supported decision- making is a model or approach designed to support for supporting people with disabilities, often cognitive disabilities, to make significant decisions and exercise their legal capacity as well as make day-to-day decisions. Specific decisions are addressed, weighed and concluded by the person with disability, while drawing on the support of a network of people or an individual. To read more see Chap 1C & 12D.

Tenant

A tenant (residential setting) is a person who has a right of exclusive possession of premises based upon some form of contract or agreement under which they pay rent. In NSW, a tenant has certain tenancy rights under Residential Tenancies Act 2010 (NSW).

Unfit to plead

See ‘Not fit to be tried/unfit to plead’ in this Chapter, Key Terms, Chapter 12D. To read more go to Chapter 6D.

Voluntary patient

A voluntary patient is someone who admits himself or herself to a Mental Health Facility, or agrees to remain in a Mental Health Facility to which they were involuntarily admitted, of their own free will in circumstances where they have the capacity to give informed consent to mental health care and treatment to be provided to them. A Guardian may also admit a person who does not have capacity to consent to treatment to a Mental Health Facility as a voluntary patient, provided that person does not refuse or object to the mental health care and treatment being provided to them.

Work and development order

A work and development order is an order made by the NSW State Debt Recovery Office which enables certain eligible persons to reduce their fines through unpaid work with an approved organisation and by undertaking certain course of treatment.

 DISCLAIMER

  • The legal and other information contained in this Section is up to date to [updatedate]
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
  • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.

 

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