MHCC Mental Health Rights Manual

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Chapter 9 Section B: Supporting your family member or friend

This section of the Manual provides information about how carers, family members and friends of a person with a mental health condition can  be involved in supporting them in their interaction with the health care system.

In this section you will find information on:

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

In this section you will also find information about:

9B.1: Designated Carers under the Mental Health Act 2007 (NSW)

'Designated Carers' under the Mental Health Act 2007 (NSW) are given special rights to be informed of some legal proceedings that are held under the Act and to be given other specific patient information.

In this section you can find out more about:

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 “Principle Carer” with that of “Designated Carer.” It also introduces a new category of persons called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care Providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

9B.1.1: Appointment of a Designated Carer

The Mental Health Act 2007 (NSW) allows a patient (both voluntary and involuntary) to appoint a 'Designated Carer', who then automatically receives certain information about that patient.

One purpose of changes to the Mental Health Act 2007 (NSW) back in 2007 was to recognise the importance of carers and give them access to some information to help them to provide care and support to a relative or friend who has a mental illness, whilst at the same time giving the person with mental illness the right to control who will be accessing this information.

The main features of this part of the law are that:
  • a person with mental illness may nominate (in writing) a person as their Designated Carer
  • a person with mental illness can also put in writing that they don't want a particular person to be their Designated Carer
  • a person with mental illness can revoke (cancel) a nomination of a Designated Carer
  • nominations can be made at any time but stay in force for 12 months unless changed (revoked) by the person with mental illness
  • in very limited circumstances, the nomination or revocation by the person with mental illness can be overturned.

If a person with mental illness does not nominate a Designated Carer, one of the following will be regarded ('deemed') under the Mental Health Act 2007 (NSW) as the Designated Carer:

  • a guardian (either Tribunal-appointed or an enduring guardian)
  • a spouse (includes de facto spouse), 'if the relationship between the patient and the spouse is close and continuing'
  • a person who is primarily responsible for providing support or care to the patient ('other than wholly or substantially on a commercial basis')
  • a close friend or family member

In practical terms, a person who is deemed to be the Designated Carer (rather than nominated by the person with mental illness) continues as Designated Carer until the person with mental illness either excludes them from their care; revokes their nomination as Designated Carer, or nominates someone else as their Designated Carer. Under the Mental Health Act 2007 (NSW) two people may now be nominated as a Designated Carers, as well as the Principal Care Provider who is now recognised. The Act doesn’t say anything about what happens if a person with mental illness does not nominate a Designated  Carer and there are two or more people who are eligible under the Mental Health Act 2007 (NSW) to be the person’s Designated Carer.

The parents of a child under 14 who is a patient under the Mental Health Act 2007 (NSW) are the Designated Carers of that child. The Mental Health Act 2007 (NSW) says when a person with mental illness has reached 14 they can nominate their Designated Carer but also says if they are between 14 and 18, they can't exclude their parents from getting the information listed in 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 (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 permits a person with a mental health condition to appoint up to two Designated Carers. It also introduces a new category of persons called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

9B.1.2: Access to patient information

Just like other patients, patients with mental illness who are in hospital, can give permission for other people to have access to their private health information. Before 2007, public psychiatric hospitals had no standard procedures and rules to allow this to happen, and family members and spouses of adult competent patients participated in the care of patients in an ad hoc way. Often they were not given information about patients on the grounds of 'privacy', even where those patients had agreed (or would have if they were asked) to a carer having access to the information.

Some family members want information about discharge and leave approved for involuntary patients because, for example, they want to be able to make sure appropriate support is in place or because they have fears of unwanted contact with the person. Click here to read about helping your friend or family member to be discharged.

Under the Mental Health Act 2007 (NSW) Designated Carers have the right to be given certain information. For more about this, click here.

Designated Carers do not have access to all patient information. The following information remains confidential unless the patient consents to it being discussed with the Designated Carer:

  • Diagnoses
  • Treatment other than medication
  • Results and details of assessments and tests
  • Content of conversations between doctor and patient.

If the Designated Carer or any other family member or friend is given any of this information without the consent of the patient, the patient could complain to the Health Care Complaints Commission (HCCC) about a breach of confidentiality and to either the NSW or Federal Privacy Commissions about a breach of their rights under the privacy principles. (Such a complaint would be against the organisation or person that released the information not the person to whom it was given.)

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). 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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care Providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

9B.1.3: Information to be provided to Designated Carers

The Designated Carer is to be told:

  • if the person with mental illness is detained in hospital
  • if and when the person with mental illness is due to be part of a mental health inquiry by the Mental Health Review Tribunal
  • what medication the person with mental illness has been given in hospital
  • if the person with mental illness is away from the facility without permission or fails to return at the end of a period of leave
  • if it is proposed to transfer the person with mental illness to another mental health facility or other health facility
  • if the person with mental illness is discharged from the mental health facility
  • if the person with mental illness has been re-classified as a voluntary patient
  • if the Authorised Medical Officer is proposing to apply to the Mental Health Review Tribunal for an Electro Convulsive Therapy (ECT) Administration Inquiry or for a decision about whether the person with mental illness is capable of giving informed consent to ECT
  • if a surgical operation is performed on the person with mental illness and they do not give consent or do not have capacity to give consent
  • if the Authorised Medical Officer is proposing to apply to the Director-General of NSW Health or the Mental Health Review Tribunal for consent to perform a surgical operation or special medical treatment that requires special consent under the Mental Health Act 2007 (NSW)

The Mental Health Act 2007 (NSW) also requires the mental health facility to consult with the Designated Carer about a discharge plan prepared for the release of the person with mental illness from hospital.

A Designated Carer can also get information about the medication a person with mental illness is obliged to take under a Community Treatment Order (CTO).

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

9B.1.4: Access for Designated Carers and others to patient information with consent

If a person with mental illness agrees to their Designated Carer, any other carer, family member or friend having access to the whole of their medical records, then no privacy or confidentiality obligations are breached. Arranging for this access to be provided will usually only occur after negotiation with the health care provider.

It is important to note that if a Designated Carer does not have automatic access to the whole of a patient’s medical records. This is so, whether they have been appointed Designated Carer by a patient or if they are ‘deemed’ under the Mental Health Act 2007 (NSW), to have a right to access the information specified in the Mental Health Act 2007 (NSW). To access other health information in the patient’s files, they need the patient’s active consent, which would ordinarily be required to be in writing. 

People who want to have maximum participation in their friend or family member's care and treatment, and have that person's support for this, should encourage the person to nominate them as their Designated Carer and to consent in writing to them being given access to all of the person's otherwise confidential files. It is best for the person with mental illness to do this when they are well, have an independent person (such as a lawyer) help them prepare the document saying this is what they want, and provide a copy of this document to all their usual health care providers.

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

9B.2: Right to be heard and participate in the treatment of friends and family members

Unless you are the Designated Carer of the person or have written consent from the person, you do not have an enforceable right to participate in the treatment decisions made in relation to friends or family members with mental illness.

This general statement is affected by the law in the following particular situations:

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

9B.2.1: Guardianship for person with mental illness with limited decision-making capacity

A guardian of a person with limited capacity has a right to be heard and participate in treatment decisions in relation to a person with mental illness who is an involuntary patient in hospital or subject to a Community Treatment Order. Under the Mental Health Act 2007 (NSW) a guardian is automatically recognised as the Designated Carer.

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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 a person does not have the mental and/or physical capacity to make important lifestyle and healthcare decisions, and there is no-one who is able to make these decisions for them as a person-responsible, or the decisions required are not those that a person responsible can make, then a guardian may be appointed to make these decisions. The extent of a guardian’s right to intervene in health care decisions about another person depends on the terms of the order that creates the guardianship.

For more about guardianship, click here.

A person with mental illness, at a time when they are considered at law to have the capacity to do so, can nominate an Enduring Guardian to make important lifestyle and healthcare decisions for them when they are incapable of doing so themselves. The extent of the Enduring Guardian’s right to intervene in health care decisions for a person with mental illness will depend upon the terms of their appointment.

For more about Enduring Guardianship, click here.  

A Guardian and an Enduring Guardian may in certain circumstances admit a person with mental illness to a Mental Health Facility for treatment as a voluntary patient. If an Authorised Medical Officer refuses to admit a person to Mental Health Facility as a voluntary patient, a Guardian or Enduring Guardian can apply to the Medical Superintendent of that Facility for a review of this decision. A Guardian or Enduring Guardian may also object to the person’s admission as a voluntary patient, and can insist that a voluntary patient be discharged from a Mental Health Facility.

A Guardian and an Enduring Guardian cannot require a person with mental illness to be admitted to Mental Health Facility as an involuntary patient, or prevent such an admission. Nor can they require an involuntary patient to be discharged.

A Guardian or Enduring Guardian, as Designated Carer, can apply to the Authorised Medical Officer or to the Mental Health Review Tribunal for an involuntary patient to be discharged into their care.

9B.2.2: Privacy law and confidentiality

Privacy and confidentiality is sometimes relied on to limit or prevent communication between carers, family members and friends and the health care provider. Privacy principles under privacy laws regulate access to the collection, use, disclosure and storage of personal information. These principles do not prevent a carer, family member or friend from passing on information that is not personal information about a person, to that person's health care provider, including to a treating GP, psychiatrist or psychologist.

The NSW Health Privacy Principles state that an organisation must only collect health information about a person from that person, unless it is unreasonable or impracticable to do so.

Observations about a person's behaviour and how they interact with other people may be vital to the assessment of their mental state. Without such information mental health assessments often could not be made. Even if some of this information is personal information, collecting it from family, friends or others (if the information is relevant to a person's mental health assessment or future care), is likely to be reasonable under the Health Privacy Principles.

However, information such as diagnoses, treatment and the contents of assessments and reports remain confidential, and this can create a problem for establishing an effective and appropriate continuing relationship between family members and friends and the treating teams where the person has not consented to those family members or friends having access to their confidential health information.

9B.2.3: Establishing a relationship with the health care provider

Health care providers often get lots of questions from people about their family members or friends who are in hospital or being treated in the community. Health care services and their staff can get frustrated if different members of the family ring to give or find out information. It is a good strategy for the carer, family members and friends to agree on one contact person and tell the health care provider's staff of this decision.

If you are frustrated by reluctance from a health care provider to receive information about your friend or family member, you could write to the Medical Superintendent/ General Manager/ Practice Manager of the health care provider, and ask in your letter that the information you are providing be passed on to the treating team and be placed on the person's medical file.

9B.3: Children and adolescents who are carers for a person with mental illness

Sometimes a person under 18 will find themselves being the carer for a person with a mental health condition. Even if they are not the person who is responsible for the day-to-day care of a parent, brother or sister or other family member, young people sometimes find themselves as the person who takes the family member to a GP or emergency department, often when the person is in acute phase of their mental illness.

Although there is nothing in the law to stop a young person being dealt with the same way as an adult carer, young people often find they are not listened to when they are advocating for the rights and wellbeing of their family member in this situation.

If you are a young person and are responsible for the care of a family member with mental illness, you could ask your family member or their GP, psychiatrist or caseworker to give you a letter explaining this situation. A copy of the letter could then be provided if a health care provider does not take you seriously in discussions about an admission, treatment plans or discharge plans, etc.

There is nothing in the Mental Health Act 2007 (NSW) that stops a person with mental illness from nominating someone under 18 as their Designated Carer.

Young people needing support in this situation could contact:

Click here to read the NSW Mental Health Association’s fact sheet, ‘When your parent has a mental illness’.

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers. 

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.

9B.4: Getting your family member or friend to seek treatment

If your family member or friend with mental illness is over 16 years old then, even if you think they are in an acute phase of mental illness, it may be hard to get them to seek treatment if they don't want to.

If the person sees a GP for their general health care, that GP should not talk to you about that person's current health or treatment unless you have their express consent. The obligations of confidentiality between a health care provider and their patient and the privacy principles don't, however, stop you telling a health care provider what you have observed about a family member or friend's behaviour.

If you approach a health care provider with such information, it is important that you clearly state that you don't want to breach privacy or confidentiality, but you want to give them information that may be important to the treatment and care of your family member or friend.

In this situation, the health care provider may talk to your family member or friend, but cannot tell you of the outcome of this without their patient's consent.

Be aware that the information you provide may directly or indirectly lead to your family member or friend being 'scheduled' as an involuntary patient.

If you are really worried that your family member or friend may, because of their mental illness, be at risk of harming themselves or others, you could alert the local Acute Care Team or, if a crime may be committed, the police. However, involving the Acute Care Team will make compulsory detention of them in a hospital as an involuntary patient more likely. This also means police are likely to become involved.

Involving the police may result in your family member or friend being charged with a criminal offence, with no guarantee that they will get treatment in a hospital and no guarantee that they will get bail. These are possible outcomes only.

In all these situations, it is very unlikely that your family member or friend will remain unaware that you spoken about their behaviour to the health care provider, Acute Care Team or police. This may have a serious effect on their relationship with you.

Other than doing nothing, a concerned carer may need to contact the person's health care provider, the Acute Care Team or police as the only options if an adult does not voluntarily seek help.

9B.4.1: What if my family member or friend is sent to prison?

People with mental illness in prison (including people who haven’t yet been to court for the hearing of criminal charges), should receive treatment for their mental illness. NSW prisons have an intake process that looks for signs of mental illness. Sometimes this is the first time that some people have received treatment for their mental illness.

There is very restricted access to psychological services and counselling in NSW prisons. Treatment for mental illness, as with other public psychiatric services in NSW prisons, is generally medication-based treatment. Sometimes treatment includes psycho-education and skill enhancement.

9B.5: Having a family member or friend with a mental illness admitted to hospital

There are different admission procedures for private and public psychiatric hospitals and units.

The admission procedure for a private psychiatric hospital is the same as admission to a private general hospital or clinic, that is, a private doctor must initiate the admission. A person can only be admitted to a private hospital as a voluntary patient. For more about admission to private hospitals, click here.

If a private doctor is approached, they may decide to write a certificate (called a Schedule 1 Medical Certificate) to admit your family member or friend as an involuntary patient to a public Mental Health Facility if they meet the definition of mental illness under the Mental Health Act 2007 (NSW). If you don’t want this to happen, you and your family member or friend should make it clear that you want to be admitted as a voluntary patient. If the doctor ignores this and starts the involuntary admission process, there is nothing to legally stop them as long as your family member or friend fits the definition of mental illness under the Mental Health Act 2007 (NSW). However, once the admission is complete, a person detained in hospital as an involuntary patient can apply to the authorised medical officer or to the Mental Health Review Tribunal to be discharged as an involuntary patient (and be readmitted or reclassified as a voluntary patient).

For more about admission to a public hospital or mental health facility, click here.

9B.5.1: Admission to private hospitals

If you want a person to be admitted to a private psychiatric hospital or clinic, this has to be arranged through a private doctor, who will almost always be a private psychiatrist who treats patients at that hospital or clinic.

If the person does not want to be admitted to hospital and won't consent to be a patient, then admission to a private hospital is effectively not an option. This is because, such an admission would have to be involuntary and no private hospitals have yet been listed ('gazetted') under the Mental Health Act 2007 (NSW) as being permitted to schedule and treat involuntary patients.

Private hospitals are also unlikely to admit or retain as a patient a person who is seen as disruptive to other patients' peace and quiet. This effectively means this option is not available for many carers whose family member or friend is in acute phase of their mental illness, even if the person has private hospital insurance.

9B.5.2: Admission to public psychiatric hospitals and units

If you want someone admitted to a public psychiatric hospital or unit, you could speak to their treating GP and/or psychiatrist. Depending on bed availability, they may be able to arrange (if the person with mental illness agrees), a voluntary admission. If an Authorised Medical Officer refuses to admit a person to a Mental Health Facility as a voluntary patient, they or someone who is directly affected by this decision, can apply to the Medical Superintendent of that Facility for a review of this decision.

It is never possible for a carer to ensure that a person admitted as a voluntary patient is not made an involuntary patient. Even if a person is a voluntary patient, the Mental Health Act 2007 (NSW) allows that status to change quickly and without notice to the patient or carers. (Change of status has to be notified to Designated Carers but only after the change has happened). A carer cannot insist that a patient be made an involuntary patient.

The amendments to the Mental Health Act 2007 (NSW) were assented to 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 introduced a requirement that assessing doctors consider the views of carers and family members (and others) when making a determination about a person’s need for involuntary treatment under the Mental Health Act 2007 (NSW). It has also replaced the term “Primary Carer” with that of “Designated Carer.” and has introduced a new category of persons called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care Providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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. 

There are several ways you as a carer could try to have a person admitted to a public hospital or mental health care facility, either as a voluntary patient or an involuntary patient:

If you are worried that a person you care about may be violent if they are discharged or given leave, you may need to take action. To find out more, click here.

9B.5.3: Admission through a GP or other medical practitioner

The first step in the process of admitting someone as an involuntary patient does not have to involve a psychiatrist. Any medical practitioner, such as GP, is able to begin the process. However the assessment document (or a ‘Schedule 1 Medical Certificate’) requires whoever is writing it to actually examine the person and report on their mental condition, including risk of harm to self or others at the time of the assessment.

If a person is reluctant to go to a GP, or the GP does not have the time to conduct the required observation or examination then this option may not be available.

Even if the person gets to a doctor, and the doctor completes a Schedule 1 Medical Certificate saying the person is mentally ill under the Mental Health Act 2007 (NSW), there may still be a need to call the police or the ambulance service if the person will not agree to go to hospital.

9B.5.4: Admission through the Acute Care Team

Members of Acute Care Teams can visit a person in their home and make an assessment of that person's mental health and care needs. If you think a person you care for is of risk of self-harm or a risk to others, this includes particularly a physical risk to you or other persons, then you should consider contacting the Acute Care Team and giving them as much detail as possible about the potential risk(s) involved. Without this information the Acute Care Team might not think involuntary hospitalisation is either possible or appropriate.

The Acute Care Team can, if necessary, initiate the process of involuntary treatment. However, if the person is reluctant and unwilling to go to hospital, the Acute Care Team is likely to contact the police to get the person to hospital.

If you ring the emergency numbers below you will be put in touch with someone from your local Acute Care Team from Community Mental Health.

There is ONLY one 24-hour emergency mental health number in NSW:
1800 011 511*

You will need to tell them where you are so that they can contact the service closest to where you are.

* 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.

The non- emergency telephone numbers for the Local Health Districts are as follows: 

Local Health District Contact Number
Central Coast 02 4320 2111
Illawarra Shoalhaven 02 4222 5000
Nepean Blue Mountains 02 4734 2000
Northern Sydney 02 9462 9955
South Eastern Sydney 02 9540 7756
South Western Sydney 02 9828 6000
Sydney 02 9515 9600
Western Sydney 02 9845 5555
Far West 08 8080 1333
Hunter New England 02 4921 3000
Mid North Coast 1800 726 997
Murrumbidgee 02 6933 9100
Northern NSW 02 6620 2100
Southern NSW 02 6213 8336
Western Sydney 02 6841 2222
Sydney Children's Hospitals Network 02 9382 1111
Justice & Forensic Mental Health 02 9700 3000

* 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.

9B.5.5: Admission through the police

If your family member with mental illness is in serious danger of self- harm, or you or another person are in serious danger because of their mental illness and behaviour, calling the police may be the only option available. If the person is committing an offence (assault or damaging property are criminal offences) then the police may also charge the person with a criminal offence.

If you call the police they may refer you to the Acute Care team if they don’t think there is sufficient need for police involvement. If you or another person are in immediate risk of harm or the person is expressing suicidal thoughts, then it is important to give the police every possible detail of these circumstances. Failing to provide vital information might lead to the police deciding that there is no immediate serious risk of harm to either you or the person about who you are concerned.

9B.5.6: Admission through the Ambulance Service

Ambulance Officers have powers to take a person to a psychiatric hospital or unit against their will if it appears to the Ambulance Officer that the person is mentally ill or mentally disordered and that it would be beneficial for the person to be assessed.

If urgent physical treatment is required (for example, after an attempted suicide), then you should immediately call 000 and asking for an ambulance. The ambulance officers can then exercise their powers if required.

If no physical treatment is required and there is no immediate risk of harm, you should contact the Acute Care Team. If there is any risk of harm to you or the person about who you are concerned, the police are likely to have more experience in dealing with such a situation.

9B.5.7: If violence is feared on discharge or leave from hospital

Reasons that you as a carer might want your family member or friend made an involuntary patient might include that you want the person to get the best treatment and care and you are in fear of physical violence from that person if they stay at your home or near you.

If you fear violence or even emotional harm, it is important to give the hospital and/or the treating doctors this information. Risk of harm to others is an important element in the definitions of mental illness and mental disorder in the Mental Health Act 2007 (NSW) and this information could make the difference to whether a person is made an involuntary patient or not.

If you are not the Designated Carer or the Principal Care Provider under the Mental Health Act 2007 (NSW), you do not have a right to know when a patient is on leave or discharged. In this situation you are advised to contact the hospital or unit concerned, and tell them your fears. It is a good idea to do this by writing to the Medical Superintendent and the treating team.

If you are the Designated Carer for a patient under the Mental Health Act 2007 (NSW), you must be told when that patient is discharged, given leave, fails to return from leave or changes status from involuntary to voluntary. This doesn't have to happen before the change, you can be told after the event. However, the Mental Health Act 2007 (NSW) also provides for Designated Carers to be involved in treatment and discharge plans. The reality is the more contact you have with the hospital, whether you are a Designated Carer or not, the more chance you have of knowing about pending discharge, leave or change of status.

Other possible protections are through the police and by obtaining an apprehended violence order (AVO) through your nearest Local Court. Click here for the Legal Aid NSW information page on Apprehended Violence Orders. 

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care Providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

 9B.6: Helping your friend or family member to challenge medication or treatment decisions

Carers often feel they need to question or perhaps even challenge the health care or treatment being given to their friend or family member.

If you have concerns are about past care or treatment, then using one of the more formal complaint options may be appropriate.

If your concerns are about current care or treatment, formal complaint processes are less likely to be effective because the health care provider has a right to respond to any such complaint, which can take time. Carers sometimes fear that formal complaints will lead to retribution against their friend or family member. Although such retribution may not be as common as people believe, there can be no guarantee that it won't happen.

In some regional and remote communities, and particularly in the public mental health system, taking your family member or friend away from one particular health care practitioner or provider may leave few or no real treatment options. You may feel your only choice is to negotiate a change of treatment with the existing health care practitioner or provider.

Chapter 3 of the Manual discusses second opinions . If you can get a second opinion, this can help to identify alternative treatment options to the current health care practitioner or provider. This can be the case even if the second opinion is from a health care practitioner whom your friend or family member cannot regularly or easily access for day-to-day treatment.

No one can force a doctor to change a diagnosis or a treatment/medication decision. However, unless a person is an involuntary patient in hospital or on a Community Treatment Order under the Mental Health Act 2007 (NSW), no-one, including a medical practitioner can force a person to take medication or have treatment he or she does not want. Because of this, conflict between doctors and their patients, or between doctors and carers are most likely to be resolved by negotiation and compromise.

For more about negotiating a change of treatment with your friend or family member's GP, click here .

For more about negotiating a change of treatment with your friend or family member's private psychiatrist, click here.

9B.6.1: Negotiating change of treatment with GPs

As a carer, you may be asked by your family member or friend to help them challenge a current treatment or medication plan.

General Practitioners (GPs) often have input to the treatment of patients under the care of Community Mental Health services if they are the main practitioner prescribing medications to those patients. GPs may be reluctant to change medication that was originally prescribed by a psychiatrist.In this situation it is probably better to approach the psychiatrist for a review of medication.

If you need to talk directly to a GP about a family member or friend, unless a strong relationship has already been built with the GP, the GP may be reluctant and should not talk to you without that person being present or having given their consent. If your family member or friend agrees to you attending a consultation, it is advisable to make a longer appointment with the GP.

With their patient present, the GP is likely to feel freer to discuss otherwise confidential matters with you, particularly if the patient clearly indicates they consent to this.

It is best to prepare, before the appointment, a list of things you and your family member or friend want to discuss about their care and treatment.

You can discuss with the GP the possibility of a second opinion or referral to a psychiatrist. Unless you specifically tell the GP about any financial constraints or difficulties with travel, he or she may make a referral to a specialist that your family member or friend can't afford to get to because of location. There are sometimes closer or less expensive alternatives (perhaps through Medicare) that the GP is aware of but might not necessarily refer to, unless you make the situation clear.

If, after these discussions, your family member or friend is still not happy with the treatment or medication, the only real alternative will be seeing another GP or a psychiatrist. You and your family member or friend should think carefully about this before making such a decision. A new GP or psychiatrist may be strongly influenced by previous decision-making and diagnoses, and you may not achieve any change to the treatment or medication being given to your family member or friend.

The Health Care Complaints Commission has an information page called Resolving Concerns About Your Health Care, which provides some useful tips about dealing with and negotiating with healthcare professionals.

9B.6.2: Negotiating a change of treatment with private psychiatrists

The suggestions about negotiating with GPs generally apply to private psychiatrists except that you are probably going to find it more difficult and more expensive for a private psychiatrist to set aside the time to talk to you if you are their patient's carer. They may also be more reluctant to devote time they have set aside for their patient to a discussion with you.

You could try writing to the psychiatrist in this situation, if possible with something in writing from your family member or friend saying that they agree to the psychiatrist discussing their confidential treatment information with you. In that letter you could set out your concerns as briefly as possible (no more than two pages typed) and contact numbers asking that the psychiatrist contact you.

If this does not work, you could:

  • use the formal complaints mechanisms, such as the Health Care Complaints Commission (HCCC) (this can result in local resolution or conciliation); or
  • find an alternative healthcare practitioner (which may be another psychiatrist, a psychologist or a GP).

The Health Care Complaints Commission has an information page called Resolving Concerns About Your Health Care, which provides some useful tips about dealing with and negotiating with healthcare professionals.

9B.7: Helping a friend or family member to be discharged

Carers sometimes want their friend or family member to be admitted to hospital. Sometimes, however, carers don't think a psychiatric hospital is the best option and want to get them discharged from the hospital.

The options for seeking discharge of a person detained in hospital as an assessable person or as an involuntary patient are:

  • At a mental health inquiry by a single member of the Mental Health Review Tribunal or at an Involuntary Patient Review by a three member panel of the Mental Health Review Tribunal
  • Applying to an Authorised Medical Officer for discharge and if they refuse discharge, appealing to the Mental Health Review Tribunal against the refusal
  • Requesting the Authorised Medical Officer or Mental Health Review Tribunal to discharge the patient into the care of the Primary Carer

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care Providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

9B.7.1: The Mental Health Inquiry and Reviews of Involuntary Patients

Whenever a person is detained in a Mental Health Facility on the basis of mental illness under the Mental Health Act 2007 (NSW), the Mental Health Review Tribunal must conduct a Mental Health Inquiry’ as soon as practicable after their detention. Usually a Mental Health Inquiry is conducted within three weeks of the person’s detention in hospital. A Mental Health Inquiry is usually conducted by a single legal member of the Tribunal, although in complex cases it might involve a three member panel of the Tribunal. . (This does not apply to a person who is ‘mentally disordered’, who can only be kept in hospital for three days against his or her will).

A Mental Health Inquiry can only be conducted if a person has been detained in hospital in accordance with the Mental Health Act 2007 (NSW). The purpose of the Inquiry is to determine if the person is or remains mentally ill, and if there is any care of a less restrictive kind to involuntary hospital admission that would be consistent with the person’s safe and effective care. If the person is not found to be mentally ill or a less restrictive form of care to hospital admission is identified, the Mental Health Tribunal must discharge the person from hospital. If the person is found to be mentally ill and no less restrictive form of care to involuntary hospital admission is identified, the Mental Health Review Tribunal makes an Involuntary Patient Order which requires the person to remain an involuntary patient and to receive observation and treatment until a specified ‘review date’ unless they are discharged by an Authorised Medical Officer before that date.

Mental Health Inquiries are conducted at each Mental Health Facility at least once every two weeks. Most Mental Health Inquiries are held by video conference. 

Once an Involuntary Patient Order is made, a full panel of the Mental Health Review Tribunal regularly reviews the patient to ensure that the circumstances of their detention in hospital remain appropriate. This involves determining if the person remains mentally ill and if involuntary detention in hospital remains the least restrictive form of care that is consistent with safe and effective care.

The first Involuntary Patient Review occurs on the review date set at the Mental Health Inquiry. After that involuntary patients are reviewed at least once every three months in the first year of their admission, and six monthly after that. However, after the first year of admission the Tribunal can conduct yearly reviews rather than six month reviews if there are special reasons for doing so.

Legal Aid is usually available for a lawyer to represent an involuntary patient at the initial review, but may not be available for later reviews. If a person seeks legal representation at a later review they may need to make an application for Legal Aid and have that application considered on its merit.

If a family member or friend nominates you, or you are deemed to be their Designated Carer, under the Mental Health Act 2007 (NSW), then the Authorised Medical Officer must tell you the time and place at which the Mental Health Inquiry will be conducted. Patients also must be told in advance. The Authorised Medical Officer should also tell you when the Mental Health Review Tribunal will be conducting a Review of your family member or friend who is an involuntary patient.

Mental Health Inquiries and Involuntary Patient Reviews are usually open to the public. Usually, family members or carers who want to have their say about whether a patient should be made or remain an involuntary patient are able to attend.

However the Tribunal may, in very limited circumstances, hold the entire or part of the hearing in private. In these circumstances, you should request the opportunity to address the Tribunal on your concerns about admission (or possible discharge) before the Tribunal goes into private session, or to hear from you in a private session that others may not participate in. If you are nominated Designated Carer the Tribunal would normally allow you to remain and be part of the otherwise closed inquiry unless there is a specific serious reason why you should not. The person that the inquiry is about (the patient/consumer) will not usually be excluded from the Inquiry, although the Tribunal may take evidence in their absence. In the latter situation, the lawyer representing the patient would usually be present.

At a Mental Health Inquiry, the Tribunal can discharge a person to the care of a Primary Carer it determines that the person is mentally ill under the Mental Health Act 2007 (NSW) and that this is a less restrictive form of care to involuntary detention in hospital that is consistent with safe and effective care This means that if you want your family member or friend to be discharged into your care as Designated Carer, you will need to explain to the Tribunal your plan for their care and treatment at home. After an Involuntary Patient Order is made, a Designated Carer can at any time apply to the Authorised Medical Officer for a patient to be discharged into their care.

For more about preparing for the mental health inquiry, 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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers. 

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.

9B.7.2: Preparing for the Mental Health Inquiry or an Involuntary Patient Review or the mental health inquiry

If your family member or friend is legally represented and you want them discharged, it is essential that you make contact with their lawyer early and make your views known before the Mental Health Inquiry or Involuntary Patient Review takes place. Click here to find out more about how to get legal representation for your family member or friend.

The following are the relevant issues at the Mental Health Inquiry or Involuntary Patient Review:

Arguments about a less restrictive alternative form of treatment or about a lack of risk of harm to self or others are much more likely to succeed in having a patient discharged, than trying to convince the NSW Mental Health Review Tribunal that the hospital's diagnosis is wrong.

If you don’t think you can provide this information at short notice you could ask the Tribunal to adjourn (delay) the Inquiry or Review or ask that an Involuntary Patient Order be made and that an early review date is set, so that you can present more information to the Authorised Medical Officer or the Mental Health Review Tribunal at a later date.

If you can’t get to the hearing, you can still provide your views to the Inquiry or Review. For more about this, click here.

9B.7.3: Alternative care and treatment

Your willingness to help with your family member or friend’s immediate care and treatment is vital information for their lawyer to have in preparing for the Mental Health Inquiry or Involuntary Patient Review by the Mental Health Review Tribunal.

It is essential to give the lawyer detailed proposals for immediate treatment outside hospital. This is because before the Tribunal can make an Involuntary Patient Order she or he must be satisfied that there is no other form of reasonably available care and treatment that is consistent with safe and effective care that is less restrictive.

It is probably not enough to have a first appointment with a private psychiatrist lined up for some time in the future. What the Tribunal will want to know is what care and treatment is available if the patient is immediately discharged from the hospital. This plan should be as specific as possible.

At the beginning of the Inquiry or Review you should make it clear to the Tribunal that you want to provide information and your views about the patient’s care and treatment. You should also let the hospital know before-hand that you want to actively take part in the Inquiry or Review.

If you don’t have independent written verification of your plans for care and treatment of your family member or friend in the community, you should give the hospital advance notice of what you are going to propose. Far from being disadvantaged by ‘showing your hand too early’, there is much more chance of early discharge if the hospital is able to discuss possible care and treatment with the community healthcare provider(s) you propose to have involved in the community treatment and care of your family member or friend. Partly because of the pressure on available beds, hospital staff are less likely to want to keep a person in hospital if the person does not want to be a patient in their hospital, you as the carer support this, and there is workable alternative care.

However, if the alternatives presented at the inquiry are vague and the hospital argues they are not workable, then it is unlikely the Tribunal member will discharge your family member or friend on this basis. Social workers employed by the hospital are often active in providing information about alternative care and accommodation to a Mental Health Inquiry or Involuntary Patient Review and can be a useful point of contact about these issues.

9B.7.4: Adverse reactions to particular treatments

Relevant to the question of possible alternative care is the question of side effects to medications. Most of the psychotropic medications prescribed for mental illnesses have side-effects. However, medications affect different people in different ways.

Independent written evidence about your friend or family member’s particular reaction to certain medication may be presented as relevant information supporting your argument that a less restrictive alternative to hospitalisation is more appropriate.

Questions about proposed medication can be asked at the Mental Health Inquiry or Involuntary Patient Review.

However, the Mental Health Review Tribunal does not have the power to order that any particular type of medication be prescribed or not prescribed to an involuntary patient. This is a clinical decision that rests with the Treating Team.

A Designated Carer has a right of know the details of the medication being given to a patient 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 (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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care Providers have a similar right to information about the treatment of the person for whom they care to Designated Carers. 

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.

9B.7.5: Risk of harm and a mental illness

Even if you and your friend or family member don't think that he or she is 'mentally ill' as defined in the Mental Health Act 2007 (NSW), you are likely to find it very difficult to challenge the hospital's diagnosis unless you have a very recent alternative diagnosis in writing from another health care professional (preferably a psychiatrist or a psychologist).

Because part of definition of mental illness under the Mental Health Act 2007 (NSW) is about risk of harm to the patient themselves or to others, you could present information to the Tribunal about why your friend or family member does not present such a risk. Again the question of risk may be linked to who will be with the person if and when he or she is discharged and what treatment will be available, as well as the likelihood of the person complying with this treatment, so that any possible risks are minimised.

9B.7.6: If you can't be at the Inquiry or Review in person

If you cannot get to a Mental Health Inquiry or Involuntary Patient Review, you can put your views and any other information in writing to the Mental Health Review Tribunal (MHRT).

The NSW Mental Health Review Tribunal is happy to get your written views and information. The MHRT can be contacted at:

Street address: Building 40, Digby Road
Gladesville Hospital
GLADESVILLE NSW

Postal address: PO Box 2019
BORONIA PARK NSW 2111

Phone: (02) 9816 5955
Freecall: 1800 815 511*
Fax: (02) 9817 4543
E-mail: mhrt@doh.health.nsw.gov.au

If you can’t be at the Inquiry or Review, information you want to present to the can be presented on your behalf by a member of the hospital treating team, the patient themselves or their legal representative. If you give your written information to the hospital treating team before the Inquiry or Review takes place, it should be included with the other written material (reports, medical records, assessments, etc) presented to the Tribunal by the Treating Team . Make sure, if you write something, that you make it clear, including on the document itself, that you want it to be made available to the Tribunal at the Inquiry or Review.

If your family member or friend is legally represented you should contact that legal representative, either by speaking to them or by writing to them. You may also give this information to the hospital Treating Team, preferably in writing.

It is strongly recommended that if you can’t attend the Inquiry of Review in person or by phone that you put your views and other information in writing to ensure the Tribunal has that information and those views from you directly.

9B.7.7: Discharge by an Authorised Medical Officer

Under the Mental Health Act 2007 (NSW), an Authorised Medical Officer (AMO) has power to discharge an involuntary patient even if the person has not been to a Mental Health Inquiry, or after the Mental Health Review Tribunal (MHRT) has made an order to make the person an involuntary patient. If the Authorised Medical Officer is asked to discharge a person and this request is refused, that person can appeal to the Mental Health Review Tribunal against this decision.

An involuntary patient can ask the Authorised Medical Officer to discharge them, as can their carer, and a legal or other representative. The information that could be provided to the Authorised Medical Officer (or the MHRT at the Appeal) is the same as for Mental Health Inquiries and Involuntary Patient Reviews:

A person who appeals to the Mental Health Tribunal against the Authorised Medical Officer’s refusal to discharge them may be entitled to a legal aid solicitor to represent them. 

Click here to find out more about how to get legal representation for your family member or friend.

9B.7.8: Request for discharge by Designated Carer

The Mental Health Act 2007 (NSW) specifically says that the Designated Carer of an involuntary patient has the right to make an application to have that patient discharged into the care of the Designated Carer.

The Mental Health Act 2007 (NSW) allows the Authorised Medical Officer to discharge a patient after:

  • the Designated Carer gives the Authorised Medical Officer a written undertaking (promise) that the person will be properly taken care of; and/ or
  • the Authorised Medical Officer is satisfied that adequate measures will, 'so far as is reasonably practicable', be taken to prevent the patient or person from causing harm to himself or herself or others.

If such a request is refused, the Designated Carer can appeal to the Mental Health Review Tribunal, see below for further information. 

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

9B.7.9: Other options for trying to get your family member or friend discharged

There are legal avenues for appealing decisions of the NSW Mental Health Review Tribunal.

If you or your family member or friend are not happy with the outcome of the Mental Health Inquiry or Review, you can appeal the decision to the Supreme Court.

Such options can cost a lot of money, as it is important to have a lawyer to represent your friend or family member in an appeal to the Supreme Court. Your family member or friend may be able to get legal aid for an appeal, and this will cover their own legal costs of the process. However, the Supreme Court can order that you or your family member or friend have to pay the legal costs of the other party if you are unsuccessful. (No legal costs orders are made in Mental Health Inquiries or in Reviews of Involuntary Patients conducted by the Mental Health Review Tribunal.)

Neither the Health Care Complaints Commission nor the Official Visitor has the power to overturn or review decisions of or the Mental Health Review Tribunal.

It is good to keep in mind that involuntary patients can and often are either discharged or agree to be voluntary patients after a short time in hospital. Discharged patients are sometimes put on Community Treatment Orders. A Community Treatment Order can be made at a Mental Health Inquiry as a less restrictive form of care to an Involuntary Patient Order. After that if a Community Treatment Order is sought for an involuntary patient or for a person who is not in hospital, a separate application must be made to the Mental Health Review Tribunal which will be heard by a three member panel of the Tribunal following a hearing.

Also, usually, the longer a person is an involuntary patient in hospital the more their condition is likely to be stabilised and their risk of harm to self or others reduced. This means that arguments you put forward at an earlier review by the Mental Health Review Tribunal may be more persuasive at a later review when your family member or friend’s recovery is more advanced. Consequently, it may be better to allow some time to elapse and then ask the Authorised Medical Officer or Mental Health Review Tribunal to reconsider discharge in light of your family member or friend’s recovery than to appeal a decision you are unhappy about to the Supreme Court. This will depend on the specific facts of your case, and it would be a good idea to get legal advice before you make any decision about what to do.

9B.7.10: Challenging the quality of care of an involuntary or voluntary patient

You can complain to the Health Care Complaints Commission (HCCC) about the quality and nature of treatment and standard of care received by a person who is a voluntary or involuntary patient in a hospital .

The Official Visitor is another body that you can contact to question the standard and quality of care given to a patient in a public psychiatric facility. The Official Visitor cannot review or overturn decisions made under the Mental Health Act 2007 (NSW).

Both the Health Care Complaints Commission and the Official Visitor make a distinction between the quality of the care received in a psychiatric hospital or unit and the process that gives those facilities power to exercise 'care, treatment and control' over individuals under the Mental Health Act 2007 (NSW). These decisions are reviewable only by the Authorised Medical Officer or the Mental Health Review Tribunal.

9B.8: Helping your family member or friend to challenge a Community Treatment Order

If you are the Designated Carer under the Mental Health Act 2007 (NSW), or another family member or friend, who is closely involved in a person’s care and support, you should be given the opportunity to give your views about the contents of a Community Treatment Plan proposed to the Mental Health Review Tribunal before the Tribunal decides whether or not to put your friend or family member on a Community Treatment Order (CTO). You present your views and relevant information to the Tribunal either in person (including via telephone) at a hearing or by writing to the Tribunal in advance of the hearing and asking that your letter be included in the papers for the hearing.

Under the Mental Health Act 2007 (NSW) a person has a right to a have a lawyer represent them in any matter before the Mental Health Review Tribunal.). However, Legal Aid is not available for all types of matters dealt with by the Tribunal. Consequently, if a person cannot afford private legal representation for a matter in relation to which legal aid is not available, they will not be legally represented.

Legal representation is available through the Mental Health Advocacy Service at Mental Health Inquiries but is not usually available in relation to other applications for a Community Treatment Order. If a person wants a Legal Aid Lawyer to assist them to resist an application for a CTO they need to make an application for Legal Aid and have the matter considered on its merits.

If the Authorised Medical Officer applies to the Mental Health Review Tribunal to make a Community Treatment Order at a Mental Health Inquiry, the Tribunal must determine whether or not the person is mentally ill under the Mental Health Act 2007 (NSW) prior to making any such order. However, if an application for a Community Treatment Order is made by the Authorised Medical Officer after the Inquiry has been conducted, or if it is made by the Director or Deputy Director of Community Treatment or a medical practitioner for a person who is not an involuntary patient, the Mental Health Review Tribunal does not have to be satisfied that a patient is mentally ill under the Mental Health Act 2007 (NSW) before making the Order. However, the Tribunal will have to be satisfied that the treatment plan is consistent with safe and effective care and this will inevitably involve consideration of whether the treatment proposed is necessary to manage the person’s mental illness, and to protect that person or other person’s from potential harm. 

The Director of Community Treatment of a Mental Health Facility that is responsible for implementing a Community Treatment Order has the power to revoke that Order of they are of the opinion that the person subject to the Order is not likely to benefit from its continuation. If you object to the Community Treatment Order, or think it is unnecessary, it is therefore a good idea to discuss your concerns with the Case Manager and Director of Community Treatment and ask that them to revoke the Order prior to doing anything else.

A person who is subject to a Community Treatment Order has the right to apply to the Mental Health Review Tribunal to vary or revoke that Order. Such an application can only be made if there has been an important change in circumstances since the Order was made, or if new information that was not available when the Order was made has come to light. 

A person who is subject to a Community Treatment Order also has the right to appeal to the Supreme Court against the Order if the term of the Order is longer than six months or no duration is specified, or on any question or law or fact related to the Order.

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 called “Principle Care Providers” who are persons primarily responsible for providing care and support to a person with mental illness. Principle Care Providers have a similar right to information about the treatment of the person for whom they care to Designated Carers.

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.

 

 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.