MHCC Mental Health Rights Manual

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Chapter 4 Section D: Compulsory treatment in hospital under the Mental Health Act 2007 (NSW)

This section outlines what treatment you can be given without your consent under the Mental Health Act 2007 (NSW). It provides information on:

4D.1: Medication

An involuntary patient is defined to mean a person detained in hospital prior to a Mental Health Inquiry and a person subject to an Involuntary Patient Order made at a Mental Health Inquiry. The hospital treating team decides what type of medication, including the dosage level, you will be given in hospital.

In giving you medication as an involuntary patient, the hospital can:

  • give you medication by way of intramuscular or intravenous injection, or in a tablet, capsule, wafer, or syrup form;
  • give you different medication from what has been prescribed for you in the community;
  • insist that you receive medication, and may use reasonable force to administer such medication, if you refuse to accept it.

The hospital can take away medicine prescribed in the community for other health conditions Upon admission, a voluntary or involuntary patient is usually required to hand over any prescribed or non-prescribed medication in their possession. This medication will then be dispensed as required by the inpatient treating team. The primary justification for this is the duty of care owed by the inpatient treating treat to the patient and other patients, to ensure that the medication is not lost, stolen or misused, resulting in harm.

However, the hospital cannot:
  • give you medication in excessive doses or that are inappropriate for your condition or diagnosis;
  • give you medication that is a 'prohibited treatment' under the Mental Health Act 2007 (NSW);
  • give you medication that will prevent you from communicating adequately with your representative at a Mental Health Inquiry unless to so is inconsistent with your proper care.

4D.2: Use of seclusion, sedation and restraint

 The Mental Health Act 2007 (NSW) does not specifically regulate seclusion, sedation and restraint of patients. However, it does state that:

… any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances.

However, in practice, this principle is limited by another section of the Mental Health Act 2007 (NSW) which provides that this principle, and any other part of the Act, does not prevent an authorised medical officer from taking an action the officer thinks fit to protect a patient or person detained in a mental health facility, or any other person in a mental health facility (such as a staff member or visitor) from serious physical harm.

In reality, seclusion, sedation and restraint are used regularly in NSW mental health facilities to manage the risks associated with patients who exhibit very challenging behaviour. The legal basis on which these interventions are justified is the common law duty of care owed to the patient himself or herself, to other patients and visitors, and to staff, to prevent serious imminent physical harm. This duty of care must be exercised reasonably and proportionately in terms of the actual risk involved.

NSW Health has a policy on the use of both seclusion and restraint in psychiatric hospitals which is called ‘Aggression, seclusion and restraint in Mental Health Facilities in NSW’. Click here to view this policy directive.

This policy includes in an appendix seven ‘key principles that are to inform the use of restraint and seclusion. These principles include: protection of fundamental human rights; protection against inhumane or degrading treatment; the right to highest attainable standards of care; and, the right to medical examination.

The policy places major emphasis on the reduction, and where possible, the elimination, of the use of seclusion and restraint in public mental health services and the use instead of non-violent and non-coercive de-escalation strategies. The policy seeks to avoid the risk of trauma and retraumatisation, injury and death to patients and others that may be associated with the use of seclusion and restraint. It also seeks to ensure that these interventions, when they are used, are guided by the following principles:

  1. The safety and wellbeing of the person is vital
  2.  The safety and wellbeing of staff is vital
  3.  Seclusion and restraint is used for the minimum period of time
  4. All actions undertaken by staff are justifiable and proportional to the consumers behaviour
  5.  Any restraint used must be the least restrictive to ensure safely
  6.  The consumer is closely reviewed and monitored so that any deterioration in the physical condition is noted and managed promptly and appropriately.
  7.  A patient’s Primary Carer must be informed of any incident involving the use of restraint or seclusion as soon as is reasonably possible after the event. They must be told the reason why this intervention was used, the period of time it was applied and any consequences of the intervention.

 If you think this policy has been breached, you can complain through the complaints and advocacy services available to involuntary patients.

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 changed 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.

The following sections have more information about the use of:

4D.2.1: Seclusion

NSW Health has a policy, ‘Aggression, seclusion and restraint in Mental Health Facilities in NSW’, that says that seclusion can be used to manage the risk of serious imminent harm only after appropriate, safe alternative options have been considered and trialled. The policy also states that seclusion can only be used for the briefest period required to allow the consumer to safely regain control of their behaviour.

The policy requires that seclusion not be used in the following circumstances:

  •  When the consumer is actively self-harming
  • As a routine procedure when a consumer is abusive, threatening or destructive of property
  • As a routine procedure following physical restraint
  • As a low stimulus environment – other options must be trialled first
  • To prevent a consumer absconding from a mental health unit
  • As a punishment or threat

4D.2.2: Sedation

Sedation is sometimes used in Mental Health Facilities as a form of chemical restraint to control the behaviour of a person who presents an imminent risk of harm to himself or herself or to other patients, staff and visitors. NSW Health policy prohibits the use of chemical restraint through the overuse of sedation in mental health facilities.

Like other forms of restraint, chemical restraint is unlawful in the absence of consent, unless it is necessary to prevent an imminent serious risk of harm and can be justified on the basis of a duty of care owed to the person or to others. In order to be justified, its use must be reasonable and proportionate having regard to the risk of harm.

NSW Health policy states that sedative medications that are used as part of a treatment plan to manage a mental disorder or mental illness are not to be considered chemical restraint. This policy also states that emergency sedation or rapid tranquilisation that is used to manage disturbed behaviour resulting from a mental disorder or mental illness is not considered chemical restraint.

To read more about this policy ‘Aggression, seclusion and restraint in Mental Health Facilities in NSW’, follow this link.

4D.2.3: Restraint

Being an involuntary patient means that the doors of your living environment in hospital can be locked and your freedom to move outside the hospital can be limited. This does not mean that involuntary patients can be restrained in ways that are not lawful.

Restraint is defined as any restriction on a person’s freedom of movement. The use of restraint is unlawful in the absence of consent unless it is justifiable on the basis of a duty of care to prevent imminent serious physical harm to the person himself or herself or to other persons. To be justified on the basis of a duty of care to prevent imminent serious physical harm, the restraint must be reasonable and proportionate to the risk of harm.

Physical restraint refers to the manual forced immobilisation of a person by others (for example, by apprehending a person, forcing them from a standing to a prone position and holding them down until they regain control of their behaviour and emotions. Physical restraint is often a dangerous and traumatic intervention for both patients subject to the intervention and for staff performing the intervention. NSW Health policy states that, for this reason, it should be used as an option of last resort to manage the risk of serious, imminent harm to the person or to others.

Mechanical restraint refers to the use of devices to immobilise a person or parts of their body. These devices include belts, harnesses, manacles, sheets, straps, and mittens. NSW Health policy does not encourage the use of mechanical restraints and explicitly prohibits the use of handcuffs as a mechanical restraint.

4D.3: Electro-convulsive therapy (ECT)

Electro-convulsive therapy (ECT) is a series of treatments involving a small electric current being passed through one or both sides of the brain in order to cause a seizure. The treatment is most often used to treat very serious depression but it may also be used to treat acute episodes of other conditions. It is particularly used for people who cannot take medication because of serious side effects, or in circumstances where it would take too long for medication to result in a remission of symptoms. For example, if a person’s life is at risk because they are refusing to eat and drink in circumstances of a catatonic depression, ECT may be the preferred treatment option because of the likelihood of a quicker remission of symptoms, even if the person’s condition may ultimately respond to medication.

There are different requirements to be satisfied before ECT can be given to voluntary patients and involuntary patients. However, in either case at least two medical practitioners, at least one of whom must be a psychiatrist, must issue a certificate of opinion to the effect that, having regard to the patient’s clinical condition, history of treatment, and any alternative treatments, ECT is a reasonable and proper treatment that is necessary or desirable for the safety and welfare of the patient.

It is an offence for a person who is not a medical practitioner to administer ECT to another person. It is also an offence for a medical practitioner to administer ECT otherwise than in accordance with the requirements of the Mental Health Act 2007 (NSW). There are heavy civil penalties, including potentially disciplinary penalties, and criminal penalties related to the unlawful administration of ECT.

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 requires that if a person is under the age of 16 years, at least one of the certificates of opinion recommending ECT must be given by a psychiatrist with expertise in the treatment of children and adolescents.

4D.3.1: Voluntary patients and electro-convulsive therapy

If you are a voluntary patient you cannot be given ECT if you don’t want it. If you do decide to have ECT you must also give ‘informed consent’ to the treatment. For the conditions of ‘informed consent’ to be satisfied under the Mental Health Act 2007 (NSW), your consent to ECT must be ‘free and voluntary’ and it must be given in writing. Prior to obtaining your consent to ECT the treating team must also take certain steps, which are also set out in the Mental Health Act 2007 (NSW), to ensure that you are able to understand the nature of the treatment and its’ potential benefits and any risks associated with it.

 This includes what the treatment is and how it will be given;

  • how many treatments are proposed;
  • the potential benefits of the treatment;
  • the potential discomforts, risks and side effects of the treatment;
  • what other types of treatment are available;
  • whether the doctor has any financial relationship with the hospital where treatment is to be given;
  • that you can get advice from another doctor and a lawyer; and
  • that you can choose to stop the course of treatment at any time. 

You must also be given a chance to ask any questions about the treatment and you must be given answers that you understand. Under the Mental Health Act 2007 (NSW) a person is to be presumed to be incapable of giving informed consent to ECT if, at the time consent is sought, the person is affected by medication that impairs their ability to give consent.

If you have given consent but the medical superintendent is not sure that you are able to give informed consent, they may ask the Mental Health Review Tribunal to decide whether your consent is valid.

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) now does not permit a person under the age of 16 years to consent to ECT (as under the Act prior to amendment, nor can a person with parental responsibility for them consent on their behalf). The administration of ECT to a person under the age of 16 years can only occur with the approval of the Mental Health Review Tribunal. The Act will also require the Mental Health Review Tribunal to consider the views of the young person’s Designated Carer, Principal Care Provider or parent (if the parent is not a Designated Carer or Principal Care Provider) if these are known.

4D.3.2: Involuntary patients and electro-convulsive therapy

As with other mental health treatments, an involuntary patient is defined to mean a person detained in hospital prior to a Mental Health Inquiry and a person subject to an Involuntary Patient Order made at a Mental Health Inquiry.

If you are an involuntary patient you can still consent to being administered ECT provided you have the capacity to give ‘informed consent.’

For the conditions of ‘informed consent’ to be satisfied under the Mental Health Act 2007 (NSW), your consent to ECT must be ‘free and voluntary’ and it must be given in writing. Prior to obtaining your consent to ECT the treating team must also take certain steps, which are also set out in the Mental Health Act 2007 (NSW), to ensure that you are able to understand the nature of the treatment and its’ potential benefits and any risks associated with it.

This includes:

    • what the treatment is and how it will be given;
    • how many treatments are proposed;
    • the potential benefits of the treatment;
    • the potential discomforts, risks and side effects of the treatment;
    • what other types of treatment are available;
    • whether the doctor has any financial relationship with the hospital where treatment is to be given;
    • that you can get advice from another doctor and a lawyer; and
    • that you can choose to stop the course of treatment at any time.

You must also be given a chance to ask any questions about the treatment and you must be given answers that you understand.

Under the Mental Health Act 2007 (NSW) a person is to be presumed to be incapable of giving informed consent to ECT if, at the time consent is sought, the person is affected by medication that impairs their ability to give consent.

If you:

  • are not capable of consenting to treatment; or
  • if you are capable of consenting to treatment, but have refused that consent, or;
  • if you have failed to either refuse or provide that consent;

and the treating team want to proceed with the administration of ECT the Mental Health Review Tribunal must approve the treatment. The Mental Health Review Tribunal will decide:

  • whether ECT should be given to you if you can’t give informed consent;
  • whether ECT should be given to you if you can give informed consent, but have refused such consent;
  • whether ECT should be given to you if you can give informed consent, but have neither consented nor refused consent to this treatment;
  • whether your consent is valid in the situation where you have given consent (therefore, making sure that your decision is based on your understanding of all the facts);
  • whether ECT is a reasonable and proper treatment that is necessary or desirable for your safety and welfare having regard to the medical opinions and evidence before it;
  • how many treatments of ECT you can be given; and
  • the period of time with in which treatment may be given

The Tribunal’s decision following an ECT Administration Inquiry is called an ECT determination. An ECT determination remains legally valid for a period of six months unless a lesser period is specified in the determination, after which it lapses. The Tribunal has the power to authorise up to 12 episodes of ECT treatment during the period of the determination, and in exceptional circumstances it can authorise more than twelve treatments if it is satisfied that there are special circumstances that justify such a decision (including the success of any previous courses of ECT treatment). For example, ECT may be the only, or most effective mental health treatment for some individuals and they may require regular (sometimes called ‘maintenance’) ECT, perhaps administered on a fortnightly basis, to maintain their mental stability. In such a case, the Tribunal might be persuaded that it should authorise more than 12 episodes of treatment within a six month period.

Apart from the Tribunal, no-one, not even your relatives (including persons with parental responsibility for a young person) can consent to ECT on your behalf.

You are entitled to legal representation at the Tribunal when it conducts an ECT Administration Inquiry, however the Mental Health Advocacy Service does not usually represent patients at these hearings.

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) now requires that a young person under the age of 16 years must be legally represented at an ECT Administration Inquiry.

Like all Mental Health Review Tribunal hearings, you can have other people such as a guardian, relatives, friends or lay advocates at the hearing. The Tribunal listens to you or your lawyer about your views about ECT and the views of the other participants, including the hospital treating team, before making a decision.

The Tribunal hearings about ECT are often called at short notice due to their urgency. The hearings are usually conducted by video conference.

4D.4: Prohibited treatments under the Mental Health Act 2007 (NSW)

Under the Mental Health Act 2007 (NSW) certain treatments are not allowed to be given to any patient in NSW.

There are heavy civil penalties, including potentially disciplinary penalties, and criminal penalties related to the use of prohibited mental health treatments.

The following procedures are prohibited under the Mental Health Act 2007 (NSW):
  • deep sleep therapy;
  • insulin coma therapy;
  • psychosurgery.

Psychosurgery is defined as:

(a) the creation of 1 or more lesions, whether made on the same or separate occasions, in the brain of a person by any surgical technique or procedure, when it is done primarily for the purpose of altering the thoughts, emotions or behaviour of the person, or

(b) the use for such a purpose of intracerebral electrodes to produce such a lesion or lesions, whether on the same or separate occasions, or

(c) the use on 1 or more occasions of intracerebral electrodes primarily for the purpose of influencing or altering the thoughts, emotions or behaviour of a person by stimulation through the electrodes without the production of a lesion in the brain of the person, but does not include a technique or procedure carried out for the treatment of a condition or an illness prescribed by the regulations for the purposes of this definition.

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 deleted the term ‘intracerebral electrode’ from the definition of psychosurgery and replaces it with the phrase ‘electrodes within the brain.’ 

 

 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.