MHCC Mental Health Rights Manual

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Chapter 4 Section A: Overview and objectives of the Mental Health Act 2007 (NSW) and the Mental Health (Forensic Provisions) Act 1990 (NSW)

The main purpose of the Mental Health Act 2007 (NSW) is to ensure the 'care and treatment' of people in NSW who are 'mentally ill' or 'mentally disordered' (these terms are defined in the Act and do not necessarily have the same meanings as when used elsewhere).

The Objects of the Act set out its fundamental policy and purpose and are an important guide to its interpretation.

Objects of Act
The objects of this Act are:

(a) to provide for the care and treatment of persons who are mentally ill or mentally disordered, and to promote the recovery of persons who are mentally ill or mentally disordered, and
(b) to facilitate the care and treatment of those persons through community care facilities, and
(c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and
(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care, and
(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.

The Objects of the Act also refer to voluntary and involuntary hospital treatment and to the involvement of people dealt with under the Act and their carers in decisions about 'care and treatment'. For more information for carers, click here.

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. The Mental Health Act 2007 (NSW) proclaimed on 31 August 2015 now states the primary objective of the Act to be ‘to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered.’ The Act has removed the word ‘control’ from, and introduces the concept of ‘recovery’ to, the Objects of the Act, and refers only to ‘care and treatment.’ This change may reflect a legislative intention to give greater weight to the views of consumers when decisions are being made about care and treatment under the Act.

The Mental Health Act 2007 (NSW) also includes, in s68 a series of Principles for care and treatment to be applied in the administration of the Act. These Principles are also of fundamental importance to an understanding of the policy and purpose of the Act and are also an important guide to its interpretation.

The read the Principles follow this link

The Mental Health (Forensic Provisions) Act 1990 (NSW) sets out how criminal proceedings are dealt with in the Supreme, District and Local Courts when the defendant has a mental disorder. It also deals with mental illness as a legal defence in criminal cases, as well as with forensic and correctional patients, including setting out the role and powers of the Mental Health Review Tribunal in reviewing forensic and correctional patients. 

This section provides a brief overview of key aspects of the Mental Health Act 2007 (NSW) providing information on:

The rest of this part gives more detailed information about mental health law in NSW, covering the following topics:

 

 

 

 

For specific information about appealing the Authorised Medical Officer's refusal of discharge follow this link.

 

 

 

 

 

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. The Act was proclaimed on 31 August 2015 and the amendments are now in force. The Mental Health Act 2007 now changes the term ‘Primary Carer’ to that of ‘Designated Carer.’ A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The 'relative' of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person's culture.

        4A.1: The meaning of the word 'control' in the Mental Health Act 2007 (NSW) prior to 31 August 2015

        The word 'control' in the objectives section of the Mental Health Act 2007 (NSW) was deleted (in force, 31 August 2015). Nevertheless the Act is  mainly about when and how a person with a mental illness can be compulsorily cared for and treated in NSW; that is, when authorities can suspend some, but not all, of the rights that people have in relation to their health care (discussed in Chapter 3 ).

        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 restates the primary objective of the Act to be ‘to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered.’ The word ‘control’ has been removed from the Act, and the concept of recovery  has been introduced to the Objects of the Act, which refers only to care and treatment. This change may reflect a legislative intention to give greater weight to the views of consumers when decisions are being made about care and treatment under the Act.

         

        This means that, if it is decided that you have a 'mental illness' or are 'mentally disordered' as defined in the Act, you can be:

          • taken to a hospital or psychiatric unit against your will for further assessment;
          • treated in hospital without you agreeing to this;
          • stopped from leaving a hospital that you've been taken to, including being kept behind locked doors and forcibly taken back to hospital if you leave;
          • placed on a Community Treatment Order when you are not in hospital care, and made to have regular treatment, usually medication.

          This does not mean:

            • you can be treated with sub-standard care or treated in a way by health care professionals or other hospital staff that does not meet ethical, professional and competency standards as well as NSW Health's published standards;
            • you lose all your rights when you are in hospital; you may lose certain rights relating to your care and treatment for a mental illness so that the health care provider can assert the control needed to give you care and treatment if you don't consent;
            • your needs because of your age, gender, religion, culture, language or other disability can be ignored.

            4A.2: Main rights under the Mental Health Act 2007 (NSW)

            If you are being dealt with under the Mental Health Act 2007 (NSW), you have a right to be:

            • be given a Statement of Rights
            • given information about treatment, treatment alternatives and the possible effects of treatment;
            • be involved in the development of your treatment plan and any plans for your ongoing care;
            • told your legal rights under the Act in a language that you can understand.

            The Mental Health Act 2007 (NSW) does not give you a right to be admitted to a mental health facility or to extend your stay (either as a voluntary or involuntary patient) if the treating doctors don't think it is clinically appropriate or necessary.

            You can, in this situation, ask for a review by the 'Authorised Medical Officer' or the Medical Superintendent of the hospital where you want to be admitted. The official form for asking for this is called the 'Application to medical superintendent for review of decision of authorised medical officer'. Click here to download the form. The Mental Health Act 2007 (NSW) does not say you have to put your request in writing, but it is better, if you can, to do so.

            Also the decision to refuse to admit you can be reviewed by the Health Care Complaints Commission as it may raise a question of whether or not the hospital or a doctor has treated you with the appropriate standard of care. This could also be considered by a court as a result of you taking legal action.

            A person detained in a Mental Health Facility must be provided with a Statement of Rights as soon as practicable following their admission. This Statement of Rights sets out in question and answer form the rights and responsibilities of detained persons and medical personnel involved in their treatment under the Mental Health Act 2007. This Statement of Rights is set out in Schedule 3 of the Mental Health Act You can access a copy of this Statement of Rights by following this link.

            4A.2.1: The principle of least-restrictive care

            There is a principle under the Mental Health Act 2007 (NSW) that mentally ill and mentally disordered people should receive the care and treatment they require in the ‘least restrictive environment consistent with their safe and effective care.’ An Authorised Medical Officer of an inpatient unit or Director or delegate of a Community Mental Health Facility is required to provide care and treatment in accordance with this principle.

            Both aspects of the principle (‘least restrictive environment’ and ‘consistent with safe and effective care’) are important and must be balanced. For example, if a person can recover from the onset or a relapse of a mental health condition with care and treatment at home, and with family support, they ought not to be admitted to hospital. Conversely, if it would be unsafe or ineffective for a person to recover from the onset or relapse of a mental illness at home (perhaps because the person refuses treatment), and they are a risk of harm to themselves or others, an involuntary admission to hospital may well be the least restrictive alternative.

            The principle of the least restrictive option is an important test for the type of mental health interventions authorised under the Mental Health Act 2007, but it is applied practically rather than theoretically. Consequently, any form of less restrictive care proposed must also be ‘reasonably available.’

            4A.3: Voluntary patients under the Mental Health Act 2007 (NSW)

            Although the Mental Health Act 2007 (NSW) is mainly about involuntary treatment and admission, it also deals with 'voluntary patients'.

            The rights and obligations of competent adult 'voluntary patients' under the Mental Health Act 2007 (NSW) are fundamentally the same as other adult patients in general hospitals.

            There are, however, some differences:

             

            • The Mental Health Review Tribunal must review voluntary patients every 12 months if they stay as a patient of a psychiatric hospital or unit.
            • A voluntary patient can be made an involuntary patient at any time without notice if they are assessed as being mentally ill or mentally disordered under the definition of these terms in the Mental Health Act 2007 (NSW). Although many voluntary patients see this as unfair when it happens, the Mental Health Act 2007 (NSW) says this can happen. 

              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, 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. It also requires an Authorised Medical Officer of a mental health facility to give a person who becomes a voluntary patient a written Statement of Rights and to provide them with an oral explanation of those rights. These changes are now in effect.

               

                • An ‘enduring guardian’ and a guardian appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) can request an authorised medical officer to admit a person as a voluntary patient. A guardian can only ask for a person to be admitted as a voluntary patient if they have authority under the instrument that appoints them to make decisions related to medical care and treatment. A person cannot be admitted as a voluntary patient by their guardian if they object to being admitted to hospital, unless the Guardian has been provided with a coercive power to do so under the instrument that appoints them. In any other situation they can only be admitted as an involuntary patient.
                • A person cannot be admitted to hospital as a voluntary patient if their enduring guardian or guardian objects to their admission (provided they have power with respect to medical care and treatment in the instrument of their appointment).
                • A voluntary patient must also be discharged from hospital if their enduring guardian or guardian requests discharge (provided they have power with respect to medical care and treatment in the instrument of their appointment).
                • An ‘enduring guardian’ and a guardian can also ask for an involuntary patient to be re-classified as a voluntary patient.

                  The Mental Health Act 2007 (NSW) allows children under 16 to be admitted as voluntary patients by their parents. Where a person has a legally appointed guardian, the guardian may be involved in decisions about admission and discharge.

                  To read more about this, click here. In this respect, a guardian is automatically recognised as a person’s Designated Carer under the Mental Health Act 2007 (NSW).

                  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 changes the term ‘Primary Carer’ to that of ‘Designated Carer.’ A designated carer can also be a person who is a close relative or friend who has frequent contact and interest in the care of a person with a mental health condition. The 'relative' of a person who is an Aboriginal or Torres Islander includes a person who is part of the extended family or kin of a person according to the indigenous kinship system of the person's culture.


                   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.