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Chapter 4 Section C: Admission to hospital under the Mental Health Act 2007 (NSW)

This section outlines the requirements for admission under the Mental Health Act 2007 (NSW).

The following questions are answered:

  • What is the legal definition of mental illness
  • What is the legal definition of mental disorder?
  • What is not regarded as mental illness or mental disorder?
  • What are the steps to being assessed as mentally ill or mentally disordered?
  • What happens after being detained as a mentally ill or mentally disordered person?

4C.1: What is the legal definition of mental illness?

The legal definition of mental illness under the Mental Health Act 2007 (NSW) is different from a medical diagnosis of mental illness such as schizophrenia or bipolar disorder, as described in the Diagnostic and Statistical Manual of Disorders (DSMV). A formal medical or clinical diagnosis is based on the symptoms of a particular mental illness.

The legal definition exists mainly for the purpose of deciding whether you have a mental illness or disorder that will require treatment under the Mental Health Act 2007 (NSW) without your consent.

To be found mentally ill under the Mental Health Act 2007 (NSW), you have to:

  • have a condition that seriously impairs, either temporarily or permanently, your mental function, which is shown by you exhibiting particular symptoms;
  • be at risk of harming yourself or other people; or
  • have a continuing condition.

You can have a clinical diagnosis and not be considered by the law to be a mentally ill person. You might, for example, be receiving treatment for schizophrenia and your symptoms may be resolved so that they no longer affect your mental functioning or behaviour. In this case, you have a mental illness but would not be considered a mentally ill person under the Mental Health Act 2007 (NSW).

However, if you have a continuing condition of schizophrenia and there is likelihood of deterioration in your mental state with harmful effects if not treated, you may be considered a mentally ill person under the Mental Health Act 2007, even if your condition is presently stabilised.

4C.1.1: A condition that seriously impairs, either temporarily or permanently, your mental function

  • For you to be considered mental ill under the Mental Health Act 2007 (NSW), you need to be showing one of the following symptoms: delusions (for example, false beliefs despite evidence to the contrary);
  • hallucinations (for example, hearing voices, or seeing things that no one else can hear or see);
  • serious disorder of thought (for example, your thoughts do not have a clear logic);
  • severe disturbance of mood (for example, an ongoing, extreme change in mood that impacts your functioning); or
  • sustained or repeated irrational behaviour, indicating the presence of delusions, hallucinations, serious disorder of thought or severe disturbance of mood (for example, you are behaving in a way that reasonably makes other people very concerned).

The definition in the Mental Health Act 2007 (NSW) is based on the symptoms you are experiencing rather than the diagnosis you have been given.

4C.1.2: Risk of harming yourself or someone else

The Mental Health Act 2007 (NSW) requires that any risk of harm to yourself or others that may be associated with your symptoms of mental illness must be ‘serious’ before you can be considered a mentally ill person. However, the concept of ‘serious harm’ is not defined in the Act.

A broad concept of ‘serious harm’ is applied by the Mental Health Review Tribunal.

The risk of ‘serious harm’ to yourself could include risk of:

  • self-harm or suicide;
  • harm to your reputation or relationships with people who are close to you, such as family;
  • harm to your financial position, including vulnerability to financial exploitation; or
  • the potential for misadventure (for example, not being able to care for yourself).

For example, a risk of serious harm to yourself may be found if you are experiencing a period of mania (a severe disturbance of mood) that is causing you to spend money excessively and/or inappropriately. A risk of serious harm to yourself may also include sexually disinhibited behaviour, that is out of character that puts your reputation at risk.

The risk of ‘serious harm’ to others might involve risk of:

  • physical harm;
  • emotional/psychological harm;
  • violence and aggression, including sexual assault or abuse;
  • stalking or predatory intent; or
  • neglect (including of children).

For example, a risk of serious harm might be found if you are hearing voices that other people cannot hear (auditory hallucinations) and these voices are telling you to harm another person. It might also be found to exist if you are experiencing a severe disturbance of mood and are driving a car dangerously in traffic as a result.

4C.1.3: Concept of a ‘continuing condition’

The definition of mental illness in Mental Health Act 2007 (NSW) not only looks at your symptoms at the time of an examination, but also:

  • your clinical history, including your ability to understand your mental health issues and ability or willingness to follow a voluntary treatment plan;
  • the likely impact on your prospects for improvement or recovery if you do not comply with a treatment plan; and
  • the possible serious harm that may occur to yourself or others, if you are not able to be engaged in examination and treatment.

4C.2: What is the legal definition of mental disorder?

You would be considered to be a mentally disordered person under the Mental Health Act 2007 (NSW) if you did not have a mental illness but behaved in such an irrational way that you were at risk of harming yourself or another person and this means your temporary care and treatment is necessary. For example, if a major crisis in your life has made you attempt suicide, then you may be considered a mentally disordered person. In this situation, even if you don’t have a mental illness, you may considered to be mentally disordered. As a mentally disordered person, you can only be kept in hospital for up to three (3) working days, and a doctor must reassess you every twenty four (24) hours. You cannot be admitted to hospital as a mentally disordered person more than three (3) times each month.

4C.3: What is not regarded as a mental illness or mental disorder?

The definition of ‘mental illness’ and ‘mental disorder’ may be broad, but the Mental Health Act 2007 (NSW) also recognises many characteristics or actions of a person that do not automatically mean that that person has a mental illness or disorder. Having any of the following characteristics or engaging in the following behaviour does not mean you are a mentally ill person or a mentally disordered person. They are not enough, on their own, to be the basis of you being admitted to hospital against your will:

  • having strong political opinion or beliefs or engaging in a particular political activity;
  • having particular religious opinions or beliefs or engaging in a particular religious activity;
  • having a particular philosophy of life;
  • having a particular sexual preference or orientation;
  • engaging in a particular sexual activity or sexual promiscuity;
  • engaging in immoral conduct;
  • engaging in illegal conduct;
  • having an intellectual disability or developmental disability;
  • consuming alcohol or any other drug/s;
  • engaging in anti-social behaviour; or
  • having a particular economic or social status or is a member of a particular cultural or racial group.

Note that the reference to taking alcohol or drugs does not prevent the consideration of the serious physiological, biochemical or psychological effects from the use of a substance or substances when considering the definition of a mentally disordered or mentally ill person.

The list above, however, does not mean that persons who have those characteristics or engage in these behaviours cannot also be mentally ill or mentally disordered. They are simply not mentally ill or mentally disordered because of the characteristic or this conduct alone.

4C.4: What are the steps to being assessed as mentally ill or mentally disordered?

After you are taken to a public mental health facility, there are several examinations (assessments) that need to be completed before you can be made an involuntary patient on the basis that you are mentally ill or mentally disordered under the Mental Health Act 2007 (NSW). These examinations all involve the completion of a ‘Form 1’ document.

Throughout the process explained below, you can become a voluntary patient at any time if the Authorised Medical Officer has the view that you are likely to benefit from care or treatment as a voluntary patient.

4C.4.1: Step 1: First examination by an Authorised Medical Officer

You must be examined by a doctor who is an Authorised Medical Officer as soon as practicable (it must be within twelve hours) after you arrive at the public mental health facility or after you are detained as a voluntary patient. If the Authorised Medical Officer forms the view that you are a mentally ill or mentally disordered person, then you will be detained for a second examination undertaken by another medical practitioner.

If the Authorised Medical Officer does not think that you are either mentally ill or mentally disordered, you must be allowed to leave the facility. In this situation, you could agree to stay in hospital as a voluntary patient if the hospital thinks this is appropriate.

If you are allowed to leave, there is no legal obligation for the police, ambulance or the hospital to take you home. However, the hospital does owe you are general duty of care not to put you in a situation of danger. For example, NSW Health has a policy not to discharge people from hospital into homelessness.

If you have been admitted on an order for examination by a Magistrate or Bail Officer, and are not assessed as mentally ill or mentally disordered, you are likely to be discharged back into police custody.

If it is not reasonably practicable for you to be examined in person, the examination can happen in one of the following ways:

  1. a medical practitioner person may examine or observe you through videoconferencing if they are sure they can still do this with sufficient care or skill to decide whether you are mentally ill or disordered; or
  2. you are examined in person by an accredited person authorised by the medical superintendent of the public mental health facility.

4C.4.2: Step 2: Second examination

As soon as practicable after you see the Authorised Medical Officer for the first examination and are found to be mentally ill or mentally disordered, you must have a second examination. One of the two examinations must be conducted by a psychiatrist. For example, if the first examination was conducted by a psychiatrist, the second examination may be conducted by a medical practitioner or accredited person. If the first examination was not conducted by a psychiatrist, the second examination must be conducted by a psychiatrist.

If either of the first two examinations find that you are mentally ill, this is enough to require you to stay in hospital on an involuntary basis as an ‘assessable person’ until a Mental Health Inquiry is held by the Mental Health Review Tribunal. However, the Authorised Medical Officer or delegate can decide to discharge you if you are no longer mentally ill, or if care of a less restrictive kind becomes available.

If both examiners agree that you are mentally disordered, you can be detained for up to three (3) days (not including weekends or public holidays).

If the second doctor does not find that you are mentally ill or mentally disordered, you are likely to be kept in hospital for a third examination.

4C.4.3 Step 3: Third examination

If a third examination is needed, the third doctor who does the examination must be a psychiatrist. If that third doctor does not think you are mentally ill or mentally disordered, then you must be allowed to leave.

If the third doctor forms the view that you are mentally ill or mentally disordered and therefore disagrees with the second doctor, then you may be required to remain in hospital on an involuntary basis as an assessable person until a Mental Health Inquiry is held by the Mental Health Review Tribunal. This situation does not happen very often.

While you are waiting for a third examination, the Authorised Medical Officer or delegate can decide to discharge you if you are no longer mentally ill, or if care of a less restrictive kind becomes available.

4C.4.4: Physical health conditions during examination

The Mental Health Act 2007 (NSW) permits the Authorised Medical Officer to delay any of the steps above if you have another serious condition or illness, other than a mental illness or mental condition, that must be treated first. For example, if you have attempted suicide resulting in serious physical injury, the Act permits you to be admitted to a general hospital for treatment of these injuries prior a mental health examination.

Once you have recovered enough to communicated and to be assessed, you can be examined. This can also take place while you are in the general hospital.

4C.5: What happens after being detained as a mentally ill or mentally disordered person

4C.5.1: Detention as a mentally disordered person

If you are detained as a mentally disordered person, you can be detained for up to three (3) days, not including weekends and public holidays. You can be given treatment without your consent.
If you are in this situation:

  • you must be examined at least every twenty-four (24) hours by an Authorised Medical Officer;
  • you must be released if an Authorised Medical Officer decides you are no longer mentally disordered, or that care of a less restrictive kind of appropriate and reasonably available;
  • you have the right to see an official visitor; and
  • you can request discharge at any time, and to appeal to the Mental Health Review Tribunal against any refusal to be discharged.

4C.5.2: Detention as a mentally ill person

If you are detained as a mentally ill person:

  • you must be reviewed by the Mental Health Review Tribunal as soon as practicable;
  • you can be administered medication against your wishes;
  • you can ask to see an official visitor;
  • you can request discharge at any time and appeal to the Tribunal if this discharge is refused;
  • you must be discharged if you are no longer considered to be mentally ill or if less restrictive care is available;
  • your Designated Carer and Principal Care Provider should be notified no later than twenty-four (24) hours after detention; and
  • you may be made a voluntary patient.

4C.5.3 The information you must be given on admission under the Mental Health Act 2007 (NSW)

As soon as possible after you have been detained in hospital under the Mental Health Act 2007 (NSW), you must be given an oral explanation and written Statement of your rights (found in Schedule 3 of the Act). The statement of rights explains the procedures that must be followed after you are detained, and your rights throughout the process of involuntary detention.

You have a right to have the rights explained to you in a language that you can understand.

If the Authorised Medical Officer thinks that you cannot understand the explanation or Statement of Rights when it is given to you, they should provide this information again twenty-four (24) hours before a Mental Health Inquiry is held about you.

Please see below a copy of the Statement of rights for mentally ill and mentally disordered persons below

Your rights

You should read the questions and answers below to find out your rights and what may happen to you after you are brought to a mental health facility.

What happens after I arrive at a mental health facility?
You must be seen by a facility doctor not later than 12 hours after you arrive at the mental health facility.

If you are a person who is already in a mental health facility as a voluntary patient, and you have been told you are now to be kept in the facility against your will, you must be seen by a facility doctor not later than 12 hours after it is decided to keep you in the facility.

When can I be kept in a mental health facility against my will?
You can be kept in a mental health facility against your will if you are certified by the facility doctor as a mentally ill person or a mentally disordered person. The doctor will decide whether or not you are a mentally ill person or a mentally disordered person.

A mentally ill person is someone who has a mental illness and who needs to be kept in a mental health facility for his or her own protection or to protect other people. A mentally disordered person is someone whose behaviour shows that he or she needs to be kept in a mental health facility for a short time for his or her own protection or to protect other people.

The facility cannot continue to keep you against your will unless at least one other doctor also finds that you are a mentally ill person or a mentally disordered person. At least one of the doctors who sees you must be a psychiatrist.

How long can I be kept in a mental health facility against my will?
If you are found to be a mentally disordered person, you can only be kept in a mental health facility for up to 3 days (weekends and public holidays are not counted in this time). During this time you must be seen by a doctor at least once every 24 hours. You cannot be detained as a mentally disordered person more than 3 times in any month.

If you are found to be a mentally ill person, you will be kept in the mental health facility until you see the Mental Health Review Tribunal who will hold a mental health inquiry to decide what will happen to you.

How can I get out of a mental health facility?
You, or a friend or relative, may at any time ask the medical superintendent or another authorised medical officer to let you out. You must be let out if you are not a mentally ill person or a mentally disordered person or if the medical superintendent or another authorised medical officer thinks that there is other appropriate care reasonably available to you.

You or a person who asks for you to be let out may appeal to the Mental Health Review Tribunal against a refusal by the medical superintendent or another authorised medical officer to let you out.

Can I be treated against my will?
The facility staff may give you appropriate medical treatment, even if you do not want it, for your mental condition or in an emergency to save your life or prevent serious damage to your health. The facility staff must tell you what your medical treatment is if you ask. You must not be given excessive or inappropriate medication.

You may be operated on if a person who is your designated carer and the Secretary of the Ministry of Health agree if you do not consent to the operation, but only if it is in your interests to have the operation.

Can I be given electro convulsive therapy (ECT) against my will?
Yes, but only if the Mental Health Review Tribunal determines at a hearing that it is necessary or desirable for your safety or welfare. You have a right to attend that hearing.

More information

You should read the questions and answers below to find out about mental health inquiries and when you may be kept in a mental health facility against your will after an inquiry.

When is a mental health inquiry held?
A mental health inquiry must be held as soon as practicable after it is decided to keep you in a mental health facility against your will because you are a mentally ill person.

What happens at a mental health inquiry?
Mental Health Review Tribunal will decide whether or not you are a mentally ill person.

If Mental Health Review Tribunal decides that you are not a mentally ill person, you must be let out of the mental health facility.

If Mental Health Review Tribunal decides that you are a mentally ill person, Mental Health Review Tribunal will then decide what will happen to you. Consideration must be given to the least restrictive environment in which care and treatment can be effectively given. Mental Health Review Tribunal may order that you be kept in a mental health facility as an Involuntary Patient for a set time (not more than 3 months) or Mental Health Review Tribunal may order that you be let out of the mental health facility. If you are let out, Mental Health Review Tribunal may make a community treatment order requiring you to have certain treatment after you are let out.

Mental Health Review Tribunal may adjourn the inquiry for up to 14 days where it considers that it is in your best interests.

If Mental Health Review Tribunal makes an order that you are to remain in a mental health facility as an involuntary patient, Mental Health Review Tribunal must also consider whether you are capable of managing your financial affairs. If Mental Health Review Tribunal is not satisfied that you are capable, an order must be made for the management of your affairs under the NSW Trustee and Guardian Act 2009.

What rights do I have at a mental health inquiry?
You can tell Mental Health Review Tribunal what you want or have your lawyer tell Mental Health Review Tribunal what you want. You can wear street clothes, be helped by an interpreter and have a designated carer or any other person who is your principal care provider, relatives and friends told about the inquiry. You can apply to see your medical records.

What are my rights of appeal if I have been made an involuntary patient?
You (or a carer or friend or relative) may at any time ask the medical superintendent or another authorised medical officer to discharge you. If the medical superintendent or authorised medical officer refuses or does not respond to your request within 3 working days you (or a carer or friend or relative) may lodge an appeal with the Mental Health Review Tribunal.

You will be given a notice setting out your appeal rights.

What happens when the time set by an order making me an involuntary patient has nearly ended?
The facility medical staff will review your condition before the end of the order and the mental health facility may either discharge you or apply to the Mental Health Review Tribunal for a further order.

The Tribunal must let you out of the mental health facility if it decides that you are not a mentally ill person or if it feels that other care is more appropriate and reasonably available.

Who can I ask for help?
You may ask any facility staff member, social worker, doctor, official visitor, chaplain, your own lawyer or the Mental Health Advocacy Service for help. The Mental Health Advocacy Service telephone number is 9745 4277.

Can I see an official visitor?
You may ask any facility staff member if you can see an official visitor. Staff will arrange for a visit by an official visitor.

Can I ask a friend or relative to act for me?
You may nominate up to 2 people to be your designated carers, including a person who is also your principal care provider, while you are in a mental health facility. A designated carer or any other person who is your principal care provider may ask for information on your behalf and will be informed if you are kept in a mental health facility, subject to a mental health inquiry, transferred or discharged and of proposed special mental health treatments or surgical operations. You and a designated carer or any other person who is your principal care provider also have the right to be given information about follow-up care if you are discharged.

Updated March 13, 2020