Chapter 5 Section G: Powers of a Guardian to admit a person as a voluntary patient and consent to treatment
If you are a person under guardianship, and your Guardian has the responsibility to make decisions in relation to your healthcare, your Guardian may request the Authorised Medical Officer to admit you to a Mental Health Facility as a voluntary patient. However, your Guardian cannot require the Authorised Medical Officer to detain you against your will. You are able to leave the Mental Health Facility at any time. If the Authorised Medical Officer seeks to detain you in a mental health facility against your will, you must be made an involuntary patient in accordance with the applicable law.
If you are admitted to a Mental Health Facility as a voluntary patient, and you have a Guardian who has the responsibility for healthcare decision-making for you, your Guardian can object to your admission and can discharge you from the mental health facility. However, if you are admitted to a Mental Health Facility as an involuntary patient, your Guardian has no power to prevent your admission and continuing detention in that facility.
If you are a voluntary patient in a Mental Health Facility, your Guardian, if they are responsible for healthcare decision-making, can also consent to, or refuse consent to, medication and most other treatment proposed by the treating team. However, your Guardian cannot consent to the administration of Electro-Convulsive Therapy (ECT). Voluntary patients who are unable to consent to the administration of ECT personally cannot be administered ECT.
If you are not in a Mental Health Facility, your Guardian can consent to minor and major medical or dental treatment, if they have been given this responsibility by the Guardianship Division of the NSW Civil and Administrative Tribunal in the Order appointing them your Guardian. However, if you are a voluntary patient in a mental health facility, and you are incapable of giving consent to a surgical procedure, the authorised medical officer must apply to the Director-General of Health NSW for authorisation if they want you to undergo a surgical procedure. If your designated carer (who might also be your Guardian) objects to the proposed surgical procedure the authorised medical officer must seek authorisation of the Mental Health Review Tribunal.
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 (NSW). These changes are now in force.The Mental Health Act 2007 (NSW), has removed the power of the Authorised Medical Officer and Director General of NSW, and the Mental Health Review Tribunal to consent to surgical procedures for voluntary patients. In future such treatment is to be provided according to the provisions of the Guardianship Act 1987 (NSW).
Neither the Director-General nor the Mental Health Review Tribunal can authorise the performance of a ‘special medical treatment’ on a voluntary patient. A ‘special medical treatment’ is a procedure that is intended, or is likely to have the effect of rendering you permanently infertile. If such a procedure is thought to be required, the approval of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to the performance of the procedure would be required.
If you are a person under guardianship, your guardian seek your admission to a psychiatric hospital or unit as a voluntary patient by making a request to an authorised medical officer.
As a voluntary patient, your guardian can also request that you be discharged. The hospital must discharge if requested by your guardian. However, the hospital could begin the process to make you an involuntary patient at the same time as your guardian asks for you to be discharged if they think that you need to remain in hospital.
Depending on the terms of the guardianship, your guardian may have the power to overturn your rights to refuse medication or other treatment (other than electro-convulsive therapy (ECT) and the prohibited treatments under the Mental Health Act 2007 (NSW) if you are an involuntary patient).
However, as a voluntary patient you cannot be kept behind locked doors and cannot be stopped from leaving the hospital.
If you do decide to leave in these circumstances, there is nothing to prevent the hospital starting the process to make you an involuntary patient if it can show that you are mentally ill under the definition in the Mental Health Act 2007 (NSW).
- 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.