MHCC Mental Health Rights Manual

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Chapter 4 Section C: Admission to hospital under the Mental Health Act 2007 (NSW)

This section outlines the requirements for admission under the Mental Health Act 2007 (NSW).

The following questions are answered:

4C.1: What is the legal definition of mental illness?

The legal definition of mental illness under the Mental Health Act 2007 (NSW) is quite different from a formal medical diagnosis of mental illness such as schizophrenia or bi-polar disorder, as described in the DSM (the Diagnostic & Statistical Manual of Disorders). A formal medical diagnosis is based on the symptoms of particular mental illness and is also called a 'clinical diagnosis'.

The legal definition exists mainly for the purpose of deciding whether you have a mental illness or disorder that will require you to be treated under the Mental Health Act 2007 (NSW) without your consent.

There are two parts to the legal definition. To be found mentally ill under the Mental Health Act 2007 (NSW), you have to:

You can have a mental illness and not be considered by the law to be a mentally ill person. You might, for example, be receiving treatment for schizophrenia. As a result of the treatment, your symptoms may be reduced and are therefore no longer affecting your mental function or behaviour. In this case, you have a mental illness but would not be considered a mentally ill person under the Mental Health Act 2007 (NSW).

There is a possible exception to this principle. If you have a continuing condition of schizophrenia and there is likelihood of deterioration in your mental state with harmful effects, you may be considered a mentally ill person under the Mental Health Act 2007, even if your condition is presently stabilised.

4C.1.1: A condition that seriously impairs, either temporarily or permanently, your mental function

This is shown by you having:

  • delusions (for example, false beliefs);
  • hallucinations (for example, hearing voices, or seeing things that no-one else can see);
  • serious disorder of thought form (for example, your thoughts are not coherent);
  • severe disturbance of mood;
  • sustained or repeated irrational behaviour, indicating the presence of delusions, hallucinations, serious disorder of thought or severe disturbance of mood.
  • This definition is based on the symptoms you are experiencing rather than the diagnosis you have been given.

4C.1.2: Risk of harming yourself or someone else

The Mental Health Act 2007 requires that any risk of harm that may be associated with your symptoms of mental illness must be ‘serious’ before you can be considered a mentally ill person. However, the concept of ‘serious harm’ is not defined in the Act.

A broad concept of ‘serious harm’ is applied by the Mental Health Review Tribunal.

In relation to the risk of ‘serious harm’ to oneself, this might involve a risk of harm to your reputation, your relationships with important others (including family members), your financial position, or property, including in relation to potential financial exploitation, your self-care ability, the potential for misadventure, or the likelihood that your acute mental illness would continue or further relapse due to your disengagement with, or refusal of treatment. A risk of serious self-harm also obviously includes any risk that you would cause yourself physical injury, such as by cutting or burning yourself, ingesting poisons, or attempting to end your own life.

For example, a risk of serious harm to yourself may be found to exist if you are experiencing a period of mania (severe disturbance of mood) that is causing you to spend money excessively and/or inappropriately, or to behave in a way that puts your reputation at risk (for example, because of out of character sexual disinhibition.

In relation to risk of ‘serious harm’ to others, this might involve a risk that you could cause death or injury to others, exploit others, and threaten and frighten others (such as family members with whom you live).

For example, a risk of serious harm might be found to exist if you are hearing voices (auditory hallucinations) and these voices are telling you to harm another person. It might also be found to exist if you are experiencing a severe disturbance of mood, and are driving a car dangerously in traffic as a result.

4C.2: What is the legal definition of mental disorder?

You would be considered to be a mentally disordered person under the Mental Health Act 2007 (NSW) if you did not have a mental illness but behaved in such an irrational way that you were at risk of harming yourself or another person which necessitates your temporary care and treatment. For example, if a major crisis in your life has made you feel suicidal, then you may be considered a mentally disordered person. In this situation, even if you didn’t have a mental illness, you may be mentally disordered.

As a mentally disordered person, you can only be kept in hospital for up to three working days, and a doctor must reassess you every 24 hours. You cannot be admitted to hospital as a mentally disordered person more than three times each month.

4C.3: What is not regarded as a mental illness or mental disorder?

Having any one of the following does not mean you are a mentally ill person or a mentally disordered person. They are not enough, on their own, to be the basis of you being admitted to hospital against your will:

  • having strong political beliefs or engaging in political activity;
  • holding particular religious opinions or beliefs;
  • having an intellectual disability or developmental disability;

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 (NSW) has added intellectual disability to this category. The category now refers to persons with ‘an intellectual disability or developmental disability.’

  •  having a particular economic status;
  • having a particular cultural or racial background.

Note, however, that this does not mean that persons who have these personal characteristics cannot also be mentally ill or mentally disordered. They are simply not mentally ill or mentally disordered because of these personal characteristics.

Doing any one of the following does not mean you are a mentally ill person or a mentally disordered person. They are not enough, on their own, to be the basis of you being admitted to hospital against your will:

  • engaging in different sexual practices or sexual promiscuity;
  • engaging in immoral behaviour;
  • engaging in illegal behaviour;
  • taking drugs;
  • engaging in anti-social behaviour.

Note, however, that this does not mean that persons who engage in these behaviours cannot also be mentally ill or mentally disordered. They are simply not mentally ill or mentally disordered because of this conduct alone.

4C.4: What are the steps to being assessed as mentally ill or mentally disordered?

There are several steps that need to be taken before you can be made an involuntary patient on the basis that you are mentally ill or mentally disordered 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 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.

4C.4.1: Step 1: examination by an 'authorised medical officer'

 Up to 12 hours after you are brought to hospital or after being detained if you were already a voluntary patient, but ‘as soon as practicable’, you must be examined by a doctor who is an ‘authorised medical officer’. An authorised medical officer is either the medical superintendent of the mental health facility or a medical practitioner working at that facility who has been nominated by the medical superintendent to perform functions under the Mental Health Act 2007 (NSW).

If the authorised medical officer forms the view that you are a mentally ill or mentally disordered person, then you will be detained for the second step, which is a second assessment undertaken by a second medical practitioner.

If the authorised medical officer does not think you are either mentally ill or mentally disordered, you have to be allowed to leave.

In this situation you could agree to stay in hospital as a voluntary patient if the hospital thinks this appropriate.

If you are allowed to leave, there is no legal obligation for the police, ambulance or the hospital to take you home. However, the hospital does owe you are general duty of care to not put you in a situation of dangerousness and NSW does have a policy not to discharge people from hospital into homelessness.

If you have been admitted on an order for assessment by a Magistrate or Bail officer, you, and are not assessed as mentally ill or mentally disordered, you are likely to be discharged back into Police custody.

The Mental Health Act 2007 (NSW) permits the authorised medical officer to delay the initial assessment for a period longer than twelve (12) hours in circumstances where the person has another serious condition or illness, other than a mental illness or mental condition that must be treated first. For example, if the person has a severe disturbance of mood and has attempted suicide resulting in serious physical injury, the Act permits them to be admitted to a general hospital for treatment of these injuries prior to the first mental health examination occurring.

4C.4.2: Step 2: second assessment

As soon as practicable after you see the authorised medical officer for initial examination and are found by that officer to be mentally ill or mentally disordered, you must see a second doctor who is another medical practitioner. If the first ‘authorised medical officer’ is not a psychiatrist, then this second doctor must be one.

If both doctors find that you mentally ill or mentally disordered, this is enough to require you to stay in hospital on an involuntary basis as an “assessable person” at least until a Mental Health Inquiry is held by the Mental Health Review Tribunal, unless the Authorised Medical Officer or delegate decides to discharge you beforehand.

If the second doctor does not find that you are mentally ill or mentally disordered, you are likely to be kept in hospital to be assessed by a third doctor (this is the third step).

4C.4.3: Step 3: third assessment

If a third assessment is needed, the third doctor who does the assessment must be a psychiatrist. If that third doctor does not think you are mentally ill or mentally disordered, then you must be allowed to leave.

If the third doctor forms the view that you are mentally ill or mentally disordered and therefore disagrees with the second doctor, then you may be required to remain in hospital on an involuntary basis as an “assessable person” until a Mental Health Inquiry is held by the Mental Health Review Tribunal.

4C.5: The information you must be given on admission under the Mental Health Act 2007 (NSW)

Once you have been detained in hospital under the Mental Health Act 2007 (NSW), you must be given a statement of your rights (Schedule 3).

Statement of rights:

Your rights
You should read the questions and answers below to find out your rights and what may happen to you after you become a patient in a mental health facility.

What happens about my treatment at a mental health facility?
The medical staff must tell you about your treatment, treatment alternatives and the effects of treatment if you ask. They must also tell you about treatment plans and recovery plans for your ongoing care and get your agreement to them, if you are able to agree.

You can accept or refuse any treatment and you can stop agreeing to a treatment at any time. You must not be given excessive or inappropriate medication.

Who else may be at a mental health facility?
Other patients in the mental health facility may be very ill and being kept and treated in the mental health facility without their agreement.

How can I get out of a mental health facility?
You can leave the mental health facility at any time but you need to tell a staff member that you wish to leave. You may also be discharged by the medical superintendent or another authorised medical officer if they think you are not likely to get a benefit from more care or treatment as a patient.

When can I be kept in a mental health facility against my will?
You can be kept in a mental health facility against your will if you are certified by the facility doctor as a mentally ill person or a mentally disordered person. You may be kept for up to 2 hours against your will so that the facility doctor may see you to decide whether to certify you.

A mentally ill person is someone who has a mental illness and who needs to be kept in a mental health facility for their own protection or to protect other people. A mentally disordered person is someone whose behaviour shows that they need to be kept in a mental health facility for a short time for their own protection or to protect other people.

The facility cannot continue to keep you against your will unless at least one other doctor also finds that you are a mentally ill person or a mentally disordered person. At least one of the doctors who sees you must be a psychiatrist.

Is there any review of decisions about me or of my case?
If a mental health facility doctor who is not the medical superintendent refuses to admit you as a voluntary patient or decides to discharge you from the facility, you can ask the medical superintendent of the facility to review that decision.

If you are a patient in a mental health facility for more than 12 months, the Mental Health Review Tribunal will review your case and also find out whether you have agreed to stay as a patient. The Tribunal may order you to be discharged after reviewing your case.

Can I be given electro convulsive therapy (ECT) against my will?
No.

Who can I ask for help?
You may ask any facility staff member, social worker, doctor, official visitor, chaplain, your own lawyer or the Mental Health Advocacy Service for help. The Mental Health Advocacy Service
telephone number is: ............................................................................................................................
(Note. Appropriate telephone numbers should be included.)


Can I see an official visitor?
You may ask any facility staff member if you can see an official visitor. Staff will arrange for a visit by an official visitor.

Can I ask a friend or relative to act for me?

You may nominate up to 2 people to be your designated carers, including a person who is also your principal care provider, while you are in a mental health facility. A designated carer or your principal care provider may ask for information on your behalf and will be informed if you are kept in a mental health facility, transferred or discharged and of proposed special mental health treatments. You and a designated carer or any other person who is your principal care provider also have the right to be given information about follow-up care if you are discharged.

More information:

You should read the questions and answers below to find out about mental health inquiries and when you may be kept in a mental health facility against your will after an inquiry.

When is a mental health inquiry held?

A mental health inquiry must be held as soon as possible after it is decided to keep you in a mental health facility against your will because you are a mentally ill person.

What happens at a mental health inquiry?

The Mental Health Review Tribunal will decide whether or not you are a mentally ill person.

If the Mental Health Review Tribunal decides that you are not a mentally ill person, you must be let out of the mental health facility.

If the Mental Health Review Tribunal decides that you are a mentally ill person, the Mental Health Review Tribunal will then decide what will happen to you. Consideration must be given to the least restrictive environment in which care and treatment can be effectively given. The Mental Health Review Tribunal may order that you be kept in a mental health facility as an INVOLUNTARY PATIENT for a set time (not more than 3 months) or the member may order that you be let out of the mental health facility. If you are let out, the Mental Health Review Tribunal may make a community treatment order requiring you to have certain treatment after you are let out.

The Mental Health Review Tribunal may adjourn the inquiry for up to 14 days where he or she considers that it is in your best interests.

If the Mental Health Review Tribunal makes an order that you are to remain in a mental health facility as an involuntary patient, the Mental Health Review Tribunal must also consider whether you are capable of managing your financial affairs. If the Mental Health Review Tribunal is not satisfied that you are capable, an order must be made for the management of your affairs under the NSW Trustee and Guardian Act 2009.

What rights do I have at a mental health inquiry?

You can tell the Mental Health Review Tribunal what you want or have your lawyer tell the Mental Health Review Tribunal what you want. You can wear street clothes, be helped by an interpreter and have your designated carer, relatives and friends told about the inquiry. You can apply to see your medical records.

What are my rights of appeal if I have been made an involuntary patient?

You (or a carer or friend or relative) may at any time ask the medical superintendent or another authorised medical officer to discharge you. If the medical superintendent or authorised medical officer refuses or does not respond to your request within 3 working days you (or a carer or friend or relative) may lodge an appeal with the Mental Health Review Tribunal.

You will be given a notice setting out your appeal rights.

What happens when the time set by an order making me an involuntary patient has nearly ended?

The facility medical staff will review your condition before the end of the order and the mental health facility may either discharge you or apply to the Mental Health Review Tribunal for a further order.

The Tribunal must let you out of the mental health facility if it decides that you are not a mentally ill person or if it feels that other care is more appropriate and reasonably available.

Who can I ask for help?

You may ask any facility staff member, social worker, doctor, official visitor, chaplain, your own lawyer or the Mental Health Advocacy Service for help. The Mental Health Advocacy Service telephone number is: (02) 9745 4277

Can I ask a friend or relative to act for me?

You may nominate a person to be your designated carer while you are in a mental health facility. Your designated carer may ask for information on your behalf and will be informed if you are kept in a mental health facility, subject to a mental health inquiry, transferred or discharged and of proposed special mental health treatments or surgical operations. You and your designated carer also have the right to be given information about follow-up care if you are discharged.

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 revised the Statement of Rights, which are provided earlier in this section. If you need a copy of the amended Statement of Rights follow this link.

 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.