MHCC Mental Health Rights Manual

Change font size: SmallerReset textLarger

Chapter 3 Section C: Rights in public hospitals

This section describes your rights in public hospitals. It has information about:

3C.1: Admission

There are two ways a person can be admitted to a public hospital. The first is as a result of a visit to a hospital emergency department if the hospital's medical team decides that a stay in hospital is needed. The second is by prior arrangement through a doctor, either in an emergency situation or through a pre-planned admission, usually for an operation, medical procedure or test, but sometimes just for observation.

Although it could be said that in NSW you have a right to emergency treatment in a hospital, you do not have an absolute right to be admitted to a public hospital. Usually these things are negotiated between the doctors concerned, but even if a private medical practitioner thinks you should be admitted, a public hospital can refuse to admit you. This could be because medical opinions differ or because of the lack of an available bed.

The Mental Health Act 2007 (NSW) makes specific reference to 'voluntary patients', and sets out specific rules about voluntary patients in public psychiatric hospitals and units. However, generally speaking a voluntary patient in this situation is in the same position to a patient in a general hospital, subject to both rights and obligations.

3C.2: Discharge

While you are a patient in hospital, you cannot be forced to stay if you want to leave.

Your treating doctor in the hospital usually makes the decision about when you will be discharged from hospital and this decision is generally made for medical reasons. Being discharged from hospital too early can be a breach of standards of care.

If you want to leave before the decision to discharge you is made, you should expect resistance from hospital staff. Although you cannot be physically stopped from leaving, you are likely to be asked to sign a discharge form that states that the hospital will not be held responsible for anything negative that happens because of your (early) discharge. You cannot be forced to sign any form, but if you leave in these circumstances you are likely to be limiting the hospital's responsibility. Discharging yourself is likely to stop you getting appropriate planned follow up and post-discharge care. However, if you are determined to leave, your time of discharge and post-discharge care can often be negotiated with your treating doctor and other hospital staff.

There is a possible exception to the rule that you cannot be forced to stay in a public hospital if you don't want to. If you temporally loose your capacity to make decisions, and you are considered to be endangering your own life if you leave, there are NSW Health policies that permit the use of restraint and sedation. This situation sometimes (infrequently) occurs when anaesthetics have a temporary effect on the brain, causing delusional behaviour. The policy sets out definite procedures that have to be implemented in these circumstances.

If you are a voluntary patient in a public psychiatric hospital or unit, and you want to be discharged before the hospital thinks you are ready to leave, the hospital can immediately make you an involuntary patient and force you to stay. To do this, the procedure to make you an involuntary patient must be followed and you would have to be assessed to be 'mentally ill' or 'mentally disordered' .

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. These changes are now in force. The Mental Health Act 2007, now gives an authorised medical officer of a public psychiatric unit the power to detain a voluntary patient in hospital for a period of up to two hours for the purpose of assessing if he or she is a mentally ill or mentally disordered person who ought to be detained as an involuntary patient.

You do not have any right to stay in hospital past the time decided by your treating doctor, although, negotiation may be possible. Sometimes hospitals charge fees for what they call 'overstays' rather than physically throwing you out.

Post-discharge care, with your participation in its planning, is an essential part of overall care and treatment. Failure to provide adequate discharge planning may be a breach of standards of care.

3C.3: Who makes the decisions about your health care in hospital

Ultimately, because of the principle of informed consent, it is you (as the patient) who makes the final decisions about your health care in hospital.

However, this does not mean, at least in public hospital setting, that you can demand whatever treatment or care you want.

The medical team of a public hospital make the decisions about what health care will be recommended and offered. If you are a public patient, even if a private doctor has admitted you for treatment, these decisions are still made by hospital staff. It may be good practice for the hospital to consult your GP or specialist, but ultimately these decisions are made by the hospital. This applies even if your usual doctor disagrees with what is proposed. In reality, it is only when you are discharged from hospital that you become their patient again.

If you have private hospital insurance or have the money to pay for a hospital stay, you can be a private patient in a public hospital. In this case, your private doctor is the treating doctor and makes the decisions. People with health insurance often choose to be treated as a private patient in a public hospital to avoid waiting lists for operations and procedures.

Decisions that doctors and other health care professionals make about your treatment and care have to be made to the appropriate standards. If sub-standard decisions are made (including decisions about diagnoses, which tests and scans to conduct and when to operate) these could be a breach of the health care professional's duty of care. If the decisions are very different from accepted standards, this could lead to disciplinary action against the health care professionals involved.

These principles about the standard of decision-making apply to psychiatric hospitals (private or public) whether you are a voluntary patient or an involuntary patient. The clear exception to this is that, even though an involuntary patient still must be informed of the consequences of particular treatment, their consent is not required to carry out the treatment.

3C.4: Maintaining partner, family and community relationships and fulfilling sexual needs

If you are in hospital, you have the right to have your mail delivered to you and sent for you. There would have to be a strong reason related to your medical condition or potential for serious risk of harm to justify mail being opened before you are given it.

You have the right to have visitors and phone calls. You have the right to have an advocate of your choice (separate to legal advocates) who can help with things like asking questions about your medication and treatment.

Hospitals do have the right to temporarily or permanently exclude visitors because there is a security concern and/or there is a risk of harm related to such visits. If this happens, the only way to challenge the decision would be through complaints processes.

You have a right to privacy and to be treated with dignity and respect. Sexual rights are identified as privacy rights. According to the World Health Organisation, in order for sexual health to be achieved and maintained, the sexual rights of everyone must be respected, protected and fulfilled.

Your rights to sexual contact with your spouse or partner can be very difficult to have fulfilled in a hospital. Hospitals, by their very nature, do not offer you, as a patient, the privacy you enjoy in your own home.

It is not impossible for hospitals to create environments where patients can enjoy sexual intimacy in private. However, there is a relative lack of privacy in public psychiatric hospitals and units because observation is seen as part of care, treatment and control of involuntary patients.

NSW Health has developed a set out Guidelines for staff working with mental health consumers in mental health services (in particular in Mental Health Facilities) in relation to sexual safety. The primary focus of the Guidelines in on the prevention of unwanted sexual contact and risky sexual behaviour.

Click here to read NSW Health's Guidelines for Sexual Safety of Mental Health Consumers

There is nothing in the Mental Health Act 2007 (NSW) that says your right to engage in consensual sexual activity is taken away if you are an involuntary patient.

3C.5: Unwanted sexual contact in public hospitals

Sexual assault, including unwanted or unwelcome sexual contact, is illegal in hospitals as it is everywhere in Australia.

You should report any unwanted sexual advances by other patients or staff to senior hospital staff.

Most importantly, any sexual advance, sexual touching or even sexually weighted language (whether with your consent or not) by hospital staff is considered a violation of professional boundaries. If you report such behaviour, you should not be blamed or get into any sort of trouble. A report should lead to an investigation and, if proved, to internal and external disciplinary action against the staff member. Such behaviour is considered an even more serious violation if it happens to you when you have mental health problems.

If your complaints of unwelcome sexual behaviour are ignored, you should ask the hospital to contact the police as soon as possible, or contact them yourself if you can. Otherwise, contact the Health Care Complaints Commission on 9219 7444 or 1800 043 159*, which will treat such a complaint as very serious.

Rape & Domestic Violence Services Australia provides a rape crisis 24-hour telephone helpline in NSW: 1800 424 017* and a sexual assault counselling service: 1800 211 028* as well as an an online counselling service. For more information or to use the online counselling service, click here.

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

3C.6: Obligations: occupational health and safety issues

When patient rights are discussed, some people want to emphasise patient obligations. These are often commonsense obligations focusing on the need for everybody in a health care setting to treat everybody else in that setting with respect.

Because hospitals, aged-care facilities, clinics and community mental health centres are also workplaces and public places, they are also subject to occupational health and safety considerations and general safety considerations applying to any public place.

Occupational health and safety laws protect employees from being exposed to unsafe work conditions and unsafe work practices.

The reality is that one of the possible threats to health care worker safety is violence from other people (patients, fellow workers or visitors). This has lead NSW to introduce a 'zero tolerance' policy towards violence in the health care workplace. Significantly, this policy includes 'verbal abuse' in the definition of violence.

Click here to read Preventing and Managing Violence in the NSW Health Workplace - A Zero Tolerance Approach policy document.

If you are considered to be violent or verbally abusive you can be refused treatment, and if necessary, removed from the premises by security staff.

If you are violent and/or disruptive over a period of time, and/or:

  • attend a health care service for treatment while you are affected by alcohol or other drugs;
  • attend with groups of friends or relatives who significantly disrupt the treating environment;
  • attend with a person or people who have a history of violent behaviour towards staff or others;
  • attend in a violent manner late at night or at change of shift times disrupting the treating environment; and/or
  • regularly threaten, attempt or commit violence against staff or others;

then, according to the policy, you can be asked to sign a conditional treatment agreement.

These agreements can include the following:

  • clearly set out requirements for your behaviour;
  • who must be with you, for example, a friend or relative, when you attend for treatment;
  • who must not be with you when you are being treated or visit you when you are an inpatient; your condition and the condition of those accompanying you, for example, that you must not be affected by alcohol;
  • where you will receive treatment.

If you don't follow that agreement, treatment can be refused altogether.

Sometimes, particularly when someone is upset (or unwell), what he or she sees as putting his or her legitimate complaints forcefully may seem to others as verbal abuse.

You should be very careful to not cross the line between legitimate complaints and abusing staff or others.

You should be particularly careful of loose talk that can be misinterpreted as a threat of violence. Comments like 'I will kill the nurse who mixed up my medication' or 'I will get the person who scheduled me' are very likely to be interpreted and dealt with as a threat of violence, not just a turn of phrase.

The golden rule should always be: think before you speak!

This Manual has a section on how to make an effective complaint. One of the tips there is to, if possible, put your complaints in writing rather than making them verbally. If you don't think you can make a complaint verbally without getting very angry or upset, this is a very good reason to put it in writing or get an advocate to help you to make the complaint. Of course, you also should not write anything that can be interpreted as a threat or could be interpreted as abusive.This may put you in an even worse position to just saying abusive or threatening things, because it provides documentary evidence of this abuse and threats.

If you have a legitimate complaint but you are verbally abusive or threatening, this often has the effect of letting the person or body you are complaining about 'off the hook', giving them something to complain about you. On the other hand, if you are as calm and as polite as you can be, it is much more difficult to dismiss or not deal with your complaint, concern or question.

3C.7: Smoking

There is a complete ban on smoking in all NSW Health facilities, including psychiatric facilities where both voluntary and involuntary patients are getting treatment and care. This occupational health issue affects all patients in psychiatric hospital and units.

Compliance with the NSW Health Smoke-free Health Care Policy means that all NSW Health buildings, grounds and vehicles are smoke-free with the exception of designated outdoor smoking areas determined by Local Health Districts (LHDs) and speciality network governed statutory health corporations that choose to provide such areas using a smoke-free by-law.

The Forensic Hospital complies with this policy.

NSW Health policy is to provide patients with nicotine replacement therapy (NRT) and/or information on how to quit.

The ban on smoking in enclosed areas and near other patients, staff and visitors can be justified, both legally and ethically, as protection of others from harm, particularly given the increasingly understanding of the extent of harm potentially caused by 'passive smoking'.

The total ban on smoking in all parts of NSW Health facilities, including open areas, is justified on the ground that preventing people smoking has long-term health benefits to the whole population.

For individuals, even people who are forced to be located in facilities with total smoking bans, such as involuntary patients, there is no way to ask for an exemption from the ban. There is no recognised 'right to smoke' in any Australian law or current international standard or treaty that applies to public hospitals.

A reverse of the ban or the introduction of exceptions to the ban could only come about through a change in NSW Health policy.

3C.8: Food in hospitals

One thing that causes a lot of concern to people getting hospital-based health care is the quality (including nutritional quality) of food served in public hospitals.

Complaints about hospital food should firstly be made to the hospital or unit. The Health Care Complaints Commission will not normally deal with complaints about food because such complaints are not considered as complaints about health care.

The NSW Food Authority sets standards for food, including hospital food, in NSW. Under the Vulnerable Persons Food Safety Scheme, the Authority conducts regular reviews of hospital food preparation systems and has strict requirements about how different types of food can be handled, prepared, transported and stored to minimise the risk of food poisoning. Click here to find out more about the Scheme

The NSW Food Authority only looks at food safety issues such as hygiene in the hospital kitchens and possible contamination of hospital food. They do not deal with complaints about the quality of the food or its nutritional value. Click here to go to NSW Food Authority's website

The Authority can be contacted at:

Telephone: 1300 552 406
Fax: (02) 9647 0026
E-mail: contact@foodauthority.nsw.gov.au
Postal address: Consumer & Industry Contact Centre,
c/- NSW Food Authority,
PO Box 6682, SILVERWATER NSW 1811

3C.9: Use of mobile phones in mental health facilities

Patients of public mental health facilities are sometimes required not to have or use mobile telephones while they are in hospital. Some Local Health Districts may have a policy to this effect, while in others it is more a matter of common practice. Various reasons may be given to justify the policy. These include the protection of the privacy of other patients, the prevention of theft, as well as the protection of the patient her/or himself from harm that may be associated with access to the telephone and internet during their period of mental illness.

The legal basis upon which patients are required to surrender their mobile telephones is not always clear. In particular cases, it may be justifiable on the basis that telephone use may be a risk of harm to a person or others, because of the specific symptoms of mental illness the person is experiencing: for example, if a person has a delusion that results in them making incorrect telephone reports of risks to public safety to emergency services; or, if a person is in a manic phase of a mood disorder and is at serious financial risk due to an uncontrollable urge to gamble. However, in the absence of a justifying factors such as these, the confiscation of a patient’s mobile telephone is unlikely to be supported by mental health law.

If you are concerned that your mobile phone has been confiscated during your admission to hospital, you should discuss the matter with an Official Visitor or a representative of the Mental Health Advocacy Service.

 

 DISCLAIMER

  • The legal and other information contained in this Section is up to date to 31 August 2015
  • 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.