MHCC Mental Health Rights Manual

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Chapter 4 Section B: Initial detention and transport under the Mental Health Act 2007 (NSW)

There are various ways you can be taken against your will to a psychiatric unit or a public hospital for further assessment under the Mental Health Act 2007 (NSW).

This section deals with the various ways a person can be admitted as an involuntary patient:

The section also deals with your Designated Carer being notified of your involuntary admission.

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  has amended the term ‘Primary Carer’ to that of ‘Designated Carer.’ It has also introduced a new category of person, called ‘Principal Care Provider’ who is also required to be to be notified of your involuntary admission. It also requires an Authorised Medical Officer, other medical practitioner or accredited person to consider any information provided by a designated carer, principal care provider, relative or friend of the person, treating health professional or person who brought the person to the health facility, as part of their assessment of the person.

After you are taken to hospital there is an assessment process before you can be held as an involuntary patient. For more about this, click here .

4B.1: Involuntary admission to hospital on certification from a doctor

The most common way of being admitted to hospital under the Mental Health Act 2007 (NSW) is on the basis of a medical certificate or 'schedule', written by your GP or a doctor at a hospital (often an emergency department of a general hospital)  who has seen you and thinks you need to be in hospital.

The certificate can only be written if the doctor has observed or examined you, is not a near relative of yours (or your Designated Carer) is of the opinion you are  a mentally ill person or a mentally disordered person as defined in the Act, and is satisfied that no other appropriate means for dealing with you is reasonably available, and that involuntary admission and detention is necessary.

The amendments to the Mental Health Act 2007 (NSW) were assented on the 28 November 2014 by way of the 4.Mental Health Amendment (Statutory Review) Act 2014. These changes are now in force. The Mental Health Act 2007  has amended the term ‘Primary Carer’ to that of ‘Designated Carer.’ It also introduces a new category of person, called ‘Principal Care Provider’ who is also prohibited from issuing a mental health certificate. It also enables a medical practitioner or accredited person to examine or observe a person’s condition using an audio visual link for the purpose of determining whether to issue a mental health certificate (including a Schedule 1 medical certificate) if it is not reasonably practicable for the person to be examined in person.

If a doctor thinks you should go to hospital, you can agree to get there yourself or with help from friends or relatives. If you cannot organise this, an ambulance may be arranged or the police may be asked to take you to hospital against your will.

4B.2: Involuntary admission to hospital on certification by an accredited person

The Mental Health Act 2007 (NSW) allows the NSW Government to appoint 'accredited persons' who are not doctors. Accredited persons are authorised to write the first document (the 'initial schedule') that allows you to be taken, against your will if necessary, to a psychiatric unit or hospital. They can only do so if they have observed or examined you, they not a near relative of yours (or your Designated Carer), are of the opinion you are a mentally ill person or a mentally disordered person as defined in the Act, and are satisfied that no other appropriate means to treat and care for you is reasonably available, and that involuntary admission and detention is necessary.

These accredited persons have to undergo specific training before they can be appointed.They are usually members of staff of local Community Mental Health Teams.

Appointment of accredited persons is available so that in rural and remote areas, where there are often no doctors available at short notice, there is a way for a person to be initially detained under the Mental Health Act 2007 (NSW) in an emergency.

If an accredited person thinks you should go to hospital, you can agree to get there yourself or with help from friends or relatives. If you cannot organise this, an ambulance may be arranged or the police may be asked to take you to hospital.

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 has amended the term ‘Primary Carer’ to that of ‘Designated Carer.’ It introduces a new category of person, called ‘Principal Care Provider’ who is also prohibited from issuing a mental health certificate. It also enables a medical practitioner or accredited person to examine or observe a person’s condition using an audio visual link for the purpose of determining whether to issue a mental health certificate (including a Schedule 1 medical certificate if it is not reasonably practicable for the person to be examined in person. These changes are not yet in force. 

4B.3: Involuntary admission to hospital on request from a relative

A relative or friend can make a written request to the authorised medical officer of a declared mental health facility that you be taken to hospital. In country areas where it may be difficult to get a doctor to come and see you, it may be particularly important to know that a relative or friend can make such a request.

The authorised medical officer must not detain you on such a request unless he or she is satisfied that, because of the distance required in order for you to be examined and the urgency of the circumstances, it is not reasonably practicable to have you detained on the basis of a mental health certificate.

In country areas, it often is very difficult to get a doctor to come and see you. If a relative or friend brings you to a declared mental health facility first they can then make a written request to the Authorised Medical Officer that you be involuntarily admitted.

A family member or friend can also ask a magistrate in the Local Court to order this to 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  now enables a medical practitioner or accredited person to examine or observe a person’s condition using an audio visual link for the purpose of determining whether to issue a mental health certificate (including a Schedule 1 medical certificate) if it is not reasonably practicable for the person to be examined in person.  

 4B.4: Involuntary admission to hospital by the police

The police can take you to a psychiatric hospital or unit against your will if they come in contact with you and believe that you:

  • (on reasonable grounds) are mentally ill or mentally disordered as defined under the Mental Health Act 2007 (NSW); and
  • have recently attempted to kill yourself or cause serious physical harm to yourself or it is probable that you will attempt to;
  • will attempt to kill or cause serious physical harm to another person;
  • are committing or have recently committed an offence; and
  • that it would be beneficial for your welfare to be dealt with under the Mental Health Act 2007, rather than, for example, under the criminal law. 

Police can enter your home without a warrant to do this.

Police can also be ordered by a magistrate to take you to hospital .

4B.5: Involuntary admission to hospital by an ambulance officer

If an ambulance officer believes on reasonable grounds that you are mentally ill or mentally disordered as defined under the Mental Health Act 2007 (NSW), and that it would be beneficial for your welfare to be dealt with under that Act, they can take you to a psychiatric hospital or unit.

The ambulance officer(s) can ask the police for help to do this. They are only likely to do this if you resist when they try to get you to hospital.

4B.6: Involuntary admission to hospital by order of the Local Court

If you have to go to the Local Court because you have been charged with a criminal offence and the magistrate believes that you could be a mentally ill person as defined under the Mental Health Act 2007 (NSW), the magistrate can order the police to take you to hospital for assessment.

An authorised officer under the Bail Act 2013, known as a ‘Bail Officer’ may also order that Police take you to a mental health facility for assessment if it appears to the Bail Officer that you are a mentally ill person.

If you are not assessed as being a mentally ill, or a mentally disordered person at the mental health facility, you are likely to be taken back into custody and brought before the Magistrate or Bail Officer in relation to the offences with which you are charged.

4B.7: Involuntary admission to hospital on a magistrate's order

Any person, including a family member or friend, can apply to a magistrate for an order authorising a medical practitioner or accredited person and any other person (including police) to come and visit and examine you if the magistrate considers on the basis of the evidence before them that you are a mentally ill or mentally disordered person who needs to go to hospital, and it has been difficult for a doctor to come and see you by other means, due to your physical inaccessibility.

The police can, in these circumstances, enter your home without a warrant.

The amendments to the Mental Health Act 2007 (NSW) were assented on the 28 November 2014 by way of the Mental Health (Statutory Review) Act 2014. These changes are now in force. The Mental Health Act 2007 now enables a medical practitioner or accredited person to examine or observe a person’s condition using an audio visual link for the purpose of determining whether to issue a mental health certificate (including a Schedule 1 medical certificate) if it is not reasonably practicable for the person to be examined in person.

4B.8: Involuntary admission to hospital while you are a voluntary patient

At any time while you are a voluntary patient in any hospital, a medical practitioner can decide that you should be made an involuntary patient under the Mental Health Act 2007 (NSW). This might be because the authorised medical officer believes that you are a mentally ill or mentally disordered person who requires a period of in-patient care, but is concerned that you may not continue treatment and leave the hospital, or it may be because the authorised medical officer is concerned that your mental illness or mental disorder makes it impossible for you to consent to treatment as a voluntary patient.

The same process is used to assess and admit you as an involuntary patient in this situation as is used after you are taken to hospital by the police, ambulance, etc. For more about this process, 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. These changes are now in force. The Mental Health Act 2007 has amended 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. It also introduces a new category of person, called ‘Principal Care Provider’ who is also required to be to be notified of your involuntary admission.

Your behaviour as a voluntary patient and your willingness to accept the hospital's suggested treatment can be used by the medical practitioners when considering whether or not to make you an involuntary patient. The hospital's account of your behaviour as a voluntary patient can be questioned and challenged by you or your legal representative if your status is considered in a mental health inquiry by the Mental Health Review Tribunal .

4B.9: Notification of involuntary admission

If you are admitted as an involuntary patient or your admission is changed from voluntary to involuntary, your Designated Carer must be notified.

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 has amended 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. It also introduces a new category of person, called ‘Principal Care Provider’ who is also required to be to be notified of your involuntary admission.

 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.