Chapter 4 Section G: Rights and discharge under the Mental Health Act 2007 (NSW)
If you are lawfully detained in a Mental Health Facility as an assessable person prior to a Mental Health Inquiry or as an involuntary patient following a Mental Health Inquiry, you cannot leave the Facility without permission (‘being granted leave’) or being discharged.
You can, however, be discharged and allowed to leave a hospital in several ways.
This section briefly outlines:
- the various ways you can be legally discharged , with links to other parts of the Manual; and
- how you can get temporary leave as an assessable person or as an involuntary patient.
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 now introduced requirements related to notice to, and involuntary discharge planning to designated carers and principal care providers.
Unlike voluntary patients and almost all patients in general hospitals, except for example in limited circumstances patients with communicable diseases, as an involuntary patient, you cannot discharge yourself from hospital.
Assessable persons and involuntary patients can be discharged in several ways:
- An Authorised Medical Officer must discharge an assessable person or an involuntary patient from hospital if they form the opinion that the person is not or is no longer a mentally ill person as that term is defined in the Mental Health Act 2007 (NSW), or that there is other less restrictive care, consistent with the person’s safe and effective care, reasonably available to them;
- An Authorised Medical Officer must discharge from hospital an assessable person considered to be a mentally disordered person prior to the elapse of three days (not including weekends and public holidays);
- If the Authorised Medical Officer refuses to discharge an assessable person or an involuntary patient, that person can appeal to the Mental Health Review Tribunal against that refusal.In hearing such an appeal, the Tribunal stands in the shoes of the Authorised Medical Officer and must discharge the patient if satisfied he/she is not a mentally ill person, or that there is less restrictive care available.
- The Mental Health Review Tribunal can discharge an assessable person from hospital at a Mental Health Inquiry if it is satisfied that the person is not a mentally ill person as that term is defined in the Mental Health Act 2007 (NSW), or that there is other less restrictive care, consistent with the person’s safe and effective care, reasonably available to them;
- An Authorised Medical Officer of a hospital Mental Health Facility may discharge an involuntary patient under the Mental Health Act 2007 (NSW) after considering a request from the patient;
- A Designated Carer of an assessable person or an involuntary patient may apply to the Authorised Medical Officer of the Mental Health Facility in which that person is detained for their discharge. The Authorised Medical Officer may discharge the person on such an application if the Designated Carer gives the Authorised Medical Officer a written undertaking that the person will be properly taken care of, and the Authorised Medical Officer is satisfied that adequate measures will be taken to prevent the person from causing harm to themselves or others;
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 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 Mental Health Review Tribunal can discharge an involuntary patient at a Mental Health Review if it is satisfied that the patient is no longer mentally ill as that term is defined in the Mental Health Act 2007 (NSW), or that there is other less restrictive care, consistent with the person’s safe and effective care, reasonably available to them;
- The Mental Health Review Tribunal can make a Community Treatment Order for an assessable person or an involuntary patient which has the effect, when made, of discharging that person from a Mental Health Facility.
Even if you are an assessable person or an involuntary patient, you still can be given leave by the Authorised Medical Officer to go outside the hospital Mental Health Facility. Such leave may be granted on an unconditional or conditional basis. For example, it may be granted only for a short period of time or on the basis that you will be accompanied by a staff or family member at all times during the period of the leave (“escorted leave”). You may also be granted ‘overnight’ or ‘trial’ leave allowing you to live at home provided you return to the Mental Health Facility each day so that your mental state can be assessed. You may also be granted extended leave for longer periods provided you maintain contact and return as agreed to the Mental Health Facility so that your mental state can be assessed.
If you need leave for a particular reason, for example, to attend a funeral, you should make a formal request for ”compassionate leave”, explaining the reason. It is best to do this as early as possible once you know you need to have leave.
The conditions of which you are granted leave will be decided by your treating doctor usually after discussion with you.
If you don’t comply with any conditions upon which leave is granted it is likely to be revoked. If you fail to go back to the Mental Health Facility after your leave has lapsed, the Authorised Medical Officer may contact the police who can, using force if necessary, return you to the Facility.
As an involuntary patient, you don’t have a right to have leave from the Mental Health Facility, regardless of how long you have been a patient in the Facility.
If you have to go to court on a criminal charge, the Mental Health Facility will usually arrange escorted transport. The Mental Health Facility may also insist on escorted leave in other situations, for example, so that you can attend to important personal events such as the funeral of a close friend, relative or spouse.
The Mental Health Act 2007 (NSW) requires an Authorised Medical Officer to be satisfied that adequate measures have been taken to prevent you from causing harm to yourself or anybody else before granting you leave.
- 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.