MHCC Mental Health Rights Manual

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Chapter 8 Section E : Children and young people with mental health conditions

Children and young people are just as susceptible to mental health conditions as adults, but because young people and children are often not as experienced and as mature as adults, there are specific safeguards in place to make sure the rights and interests of children and young people are respected.

This section gives an overview of the following aspects of the rights and safeguards for children and young people receiving mental health care in NSW:

Other information about children and young people with mental health conditions that is provided in this section:

8E.1: The rights of children and young people to consent to medical examination and treatment

The law that regulates the care and treatment of adults with a mental illness applies to children and young people as well. This is the Mental Health Act 2007 (NSW).

There are no parts of the law that deal specifically with the treatment of a young person with mental illness, but there are a number of sections of the Mental Health Act 2007 (NSW) that set out the process for admission of children and young people to hospital. Click here to find out more about whether or not you, as a young person, can admit yourself to a mental health facility.

The National Mental Health Statement of Rights and Responsibilities states that if you are a child and are admitted to a mental facility or a community program, you have the right to the following:

  • mental health services that respond appropriately to the needs of children and young people, including by recognising the potential vulnerability of children of mental health consumers.
  • services that conform with the United Nations Convention on the Rights of the Child, including by ensuring that in decisions involving children the best interests of the child are the primary concern.
  • acknowledgement that the families, carers and the support persons of children and young people play an important role in the health and mental health care of children and young people. The families, guardians, carers and support persons of children and young people have the right to:

(a) be confident that the child or young person will receive the most appropriate assessment, individualised care planning and treatment, taking into account the child or young person’s age, any special circumstances, and the presentation and nature of their health or mental health problems or mental illnesses

(b) be informed about the child or young person’s diagnosis, treatment options and management plans for ongoing care

(c) participate in decisions about the child or young person’s care in accordance with the age, maturity and needs of the child or young person

(d) receive the support they need to make health decisions and to participate appropriately in the decision-making process

(e) receive independent support and advice.

  • make decisions for yourself, if you are capable of doing so, subject to any relevant legislation.
  • A child or young person should never be denied assessment, individualised care planning, support, care, treatment, rehabilitation or recovery services on the grounds that a family member, guardian, carer or support person has refused to participate in a specific treatment approach.
  • children and young people who are admitted to a mental health facility have the right to:
(a) continue to benefit from the involvement and support of their families, guardians, carers and support persons

(b) access an independent advocate whose role is to protect the child or young person’s rights

(c) benefit from other special protections and safeguards as determined by legislation and policy

(d) be separated from adult patients and provided with accommodation and programs appropriate to their age and development.

  • to expect that their family, guardian, carer and support persons will obtain appropriate professional assistance if they have reason to believe that the child or young person has a mental health problem or mental illness.
  • Families, guardians, carers and support persons of children and young people have a right to be provided with information necessary for their support role. They should expect to be involved to an appropriate extent consistent with relevant privacy and guardianship legislation in decisions about assessment, individualised care planning, support, treatment, rehabilitation and recovery services.

You can find the Mental Health Statement of Rights and Responsibilities by following this link.

NSW Health has a Policy Directive governing the provision of mental health services to children and adolescents in public inpatient units. This policy defines the key principles and provides a framework for determining the most appropriate treatment facility for those children and adolescents with mental health problems who require inpatient treatment. This includes admission into the following inpatient units: Specialist Child and Adolescent Mental Health units; Paediatric hospitals and Paediatric wards in general hospitals; Adult Acute Mental Health wards; and Psychiatric Emergency Care Centres.

You can find a copy of this Policy Directive by following this link.

NSW Health has also developed NSW Child and Adolescent Mental Health (CAMHS) Competency Framework, which describes the key competencies for working with infants, children, adolescents, their families and carers.

You can find a copy of the CAMHS Competency Framework by following this link

Medical examinations and medical treatment of a young person must be legally authorised. This means that a valid consent must be given to the doctor or health care professional before an examination is conducted or treatment is provided. If a valid consent is not given, then the examination or treatment is an assault.

Click the following links to find out more about:

8E.1.1: Can a young person admit him or herself to a mental health facility?

If you are over 16 - you can admit yourself into a mental health facility as a voluntary patient and your parent does not have to be told if you do not want them to be.

If you are younger than 16 - your parent can admit you as a voluntary patient. You can also admit yourself to a mental health facility, but a medical officer at the facility must do their best to let your parent know of your admission.

If your parent objects to you being in a mental health facility and you are 14 or 15 years old - you can still stay at the facility if you choose to do so.

If your parent objects to you being in a mental health facility and you are under 14 years old - the hospital cannot admit you. You must be discharged if and when your parent or guardian asks that you be discharged.

8E.1.2: What is a valid consent?

Valid consent is when you ‘consent’ to treatment and voluntarily agree to have that treatment. A provider of health care must take reasonable steps to make sure that you, as a patient, understand key aspects of any treatment they suggest before asking you to agree to the treatment. Key aspects include, for example, any risks and side-effects of the treatment. If you agree to the treatment once you have been given the information and understand, it is called ‘informed consent’ to treatment. Informed consent by a person who has capacity is a valid consent. 

To find out more about consent, click here.

8E.1.3: Consent in an emergency

In an emergency, health care professionals can treat you without any consent from you or your parent or guardian.

8E.1.4: How old do you have to be before you can consent to treatment?

Whether your permission to have treatment can be accepted as informed consent by the health care professional depends on a number of factors, in particular whether or not you can understand the decision that you need to make and the effects of that decision.

The following principles are largely accepted by health care professionals in NSW about who can give consent to your medical treatment:

  • If you are 16 or older, you can consent to medical examination and treatment.
  • If you are under 16, the consent generally needs to be from your parent or guardian. Sometimes, depending on the treatment, if you are older than 13, the health care professional may consider you able to consent (have the 'capacity' to consent). This means they think you are well enough and mature enough to understand the information you have been given and therefore able to consent.

Sometimes, even when you are older than 16, if the medical professional believes strongly that you don't have the capacity to give informed consent, the medical professional may ask your parent to consent on your behalf. If you don't have a parent to consent on your behalf, then the health care professional may need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to get substitute consent for anything more than minor treatment.

The Guardianship Division of NCAT can give consent to medical treatment on behalf of a person who is over 16 and unable to make an informed decision, usually because of illness or disability. Click here for more information on the Guardianship Division and what it does .

There are different rules if you are an involuntary patient under the Mental Health Act 2007 (NSW) and you have nominated a Designated Carer under that Act.

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 replaced the term Primary Carer with that of “Designated Carer.” It also introduces a new category of persons who are called “Principle Care Providers” who are defined as the person(s) who is primarily responsible for providing care and support to a person with mental illness. The Principle Care Provider is entitled to be provided with similar information to that which must be provided to the 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.

If you are not under Guardianship and are under 15, your parent is your Designated Carer.

If you are 15 or older, but younger than 18, you can name a person other than your parent as your Designated Carer, but you can't stop your parent from being told or given information about your situation.

If you are under Guardianship, your Guardian is your Designated Carer. A Guardian is a legally appointed person who can make decisions on your behalf. If you have a Guardian, only your Guardian can consent to medical treatment on your behalf.

Click here to find more information about Designated Carers and the Mental Health Act 2007 (NSW).

For more about the Guardianship hearing 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 (NSW). These changes are now in force. The Mental Health Act 2007 (NSW), has replaced the term Primary Carer with that of “Designated Carer.” It also introduces a new category of persons who are called “Principle Care Providers” who are defined as the person(s) who is primarily responsible for providing care and support to a person with mental illness. The Principle Care Provider is entitled to be provided with similar information to that which must be provided to the Designated Carer. These changes are not yet in force.

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.

8E.2: Options for treatment and accommodation for children and young people with mental health conditions

There are a few places you can go if you are a young person and are worried you might have a mental health condition, and want to get information and/or help:

Your local GP: the best place to start is usually your local General Practitioner, who can make an assessment and refer you to an appropriate specialist.

Community health services and hospital clinics: many community health services and public hospital clinics also have health care professionals who specialise in the mental health of children and young people.

Child and adolescent psychiatrist: these are psychiatrists who specialise in children, adolescents and families. They can assess you and also prescribe and monitor medication.

If your mental health condition becomes worse, there are a number of mental health facilities that admit children and adolescents. Some of these facilities provide accommodation and access to education during the admission. Admission to these facilities is often based on referral by health practitioners or other qualified professionals.

The Mental Health Association NSW has a fact-sheet on when and where to seek help for a child with mental illness. Click here to go to the web link to view the fact-sheet.

You can call the Mental Health Line on 1800 011 511* or the Mental Health Information Service on 1300 224 636 * for more information about accessing mental health services in your area.

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

8E.3: Young people at risk of self-harm

Self-harm is a problem for many young people and it is often linked to the young person’s mental health. While there are many different reasons why a person may self-harm, and different people may give it a different name, self-harm is basically an action that someone takes to deliberately hurt his or herself without necessarily wanting to kill him or herself.

Despite usual confidentiality rules, if, for example, a GP or a social worker or another person in authority thinks you are a young person at risk of serious harm, they must report this to the NSW Department of Family and Community Services (FaCS). You may be considered at risk of harm if you are harming yourself.

This reporting requirement applies to any person working in children’s services, health care, welfare services, education, residential services and law enforcement.

If you are under 16: You are considered a child under the Children and Young Persons (Care and Protection) Act 1998 (NSW). A worker from any of the services as listed above must report concerns about your safety and wellbeing if they have reasonable grounds to believe that you are at risk of harm. If you are injecting drugs, you are also considered to be at serious risk of serious harm.

You are 16 or 17: You are considered a young person under the Children and Young Persons (Care and Protection) Act 1998 (NSW). A worker with reasonable concerns that you are at risk of serious harm may decide to report it to FaCS, but they should involve you in making that decision, unless if there are good reasons for excluding you. If you do not want the report to be made, the worker may still report it, but they must tell FaCS of your wishes. FaCS must also consider your wishes when deciding how to respond to the report.

To find out what happens when a report has been made about a young person, click here.

If you are harming yourself or you know another young person who might be, there are many resources for you to find out how to prevent or stop self-harm, and how to support someone to stop harming themselves. Information and/or resources are available from:

* Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

8E.3.1: What happens if a report is made about me as a child or young person?

The NSW Department of Family and Community Services (FaCS) must respond if someone reports that they think you are at risk of serious harm.

If FaCS gets a report that you may be at risk of harm, it will investigate the matter to work out if you really are at risk of serious harm. It may contact your parent or carer, your teacher, your doctor, and other people who you may be close to in order to find out more about the situation you are in. FaCS must involve you in its decision-making process as much as possible.

If FaCS decides that you are not at risk of serious harm, it may close its investigation.

If FaCS decides you are at risk of serious harm, it will take action to protect you from further harm. The actions that FaCS take will depend on its assessment of your risk of serious harm. For example, FaCS may provide practical help to your family such as organising childcare, counselling or referral to health or other services; and may work with your family to develop a care plan. In some cases, it may apply to the Children’s Court for orders about your care and protection.

For more information about how FaCS may respond to a report of suspected risk of serious harm, click here

8E.4:Right to legal representation

Children and young people may need legal representation. Legal representation means having your interests represented by a lawyer.

If you have a legal problem that is to do with mental health care or treatment or hospitalisation, you can contact the Mental Health Advocacy Service (MHAS) for legal advice. The MHAS may also be able to represent you at a Mental Health Review Tribunal hearing.

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. Note: The Mental Health Act 2007 (NSW), now requires that persons under 16 years of age are provided with legal representation for all Mental Health Review Tribunal hearings unless the young person refuses such representation or the MHRT decides that it would be in the young person’s best interests to proceed with a hearing without legal representation.

To contact the Mental Health Advocacy Service call (02) 9745 4277 or click here.

For more information also click here.

There are other specialised legal services for children and young people in NSW:

Marrickville Legal Centre is a Community Legal Centre that has a Children's Legal Service that provides free legal information, advice and assistance to people under 18.

Phone: (02) 9559 2899.

The Shopfront Youth Legal Centre is a free legal service for homeless and disadvantaged young people aged 25 and under.

Phone: (02) 9322 4808.

Legal Aid NSW’s Children’s Legal Service can provide representation in the Children's Courts for welfare or criminal matters. For immediate advice, you can call the Legal Aid Youth Hotline:

Freecall: 1800 101 810*.

Lawstuff is an online legal help service for young people under 18. It allows you to e-mail your legal questions to the National Children's and Youth Law Centre.

Website: http://www.lawstuff.org.au/

* Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

 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.