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Chapter 4 Section D: Voluntary patients under the Mental Health Act 2007 (NSW)

The Mental Health Act 2007 (NSW) is mainly about involuntary treatment and admission, but it also deals with ‘voluntary patients’. A voluntary patient is a person who has chosen to be admitted to a mental health facility or is under guardianship and has been admitted at the request of, or with the consent of their guardian.

An Authorised Medical Officer needs to be satisfied that the person is likely to benefit from inpatient care and treatment before admitting them to a mental health facility. If the Authorised Medical Officer refuses, the person can seek to have this decision reviewed by the Medical Superintendent.

In this section, you will find information about:

  • Rights of voluntary patients
  • Discharge
  • Voluntary patients becoming involuntary patients
  • Voluntary patients with guardians
  • Voluntary patients and electro-convulsive therapy
  • Voluntary patients and Mental Health Review Tribunal reviews

4D.1: Rights of voluntary patients

The rights and obligations of competent adult ‘voluntary patients’ under the Mental Health Act 2007 (NSW) are fundamentally the same as other adult patients in general hospitals.

Voluntary patients should be provided with a written Statement of Rights (Schedule 3A) and an oral explanation of their rights as soon as possible after admission. The Statement can be found here, and it explains:

  • What a voluntary patient must be told about their treatment;
  • A voluntary patient’s right to refuse treatment at any time;
  • A voluntary patient’s right to leave a mental staff facility once they have told a staff member
  • A voluntary patient’s right to nominate up to two Designated Carers;
  • A voluntary patient’s right to see an official visitor;
  • The mental health facility’s right to discharge a voluntary patient; and
  • The mental health facility’s ability to reclassify a person as a voluntary patient.

4D.2: Voluntary patients and discharge

A voluntary patient may discharge themselves at any time by informing hospital staff. An Authorised Medical Officer may discharge a voluntary patient if they decide that the person is unlikely to benefit from continued inpatient care and treatment.

The Designated Carer and/or Principal Care Provider should also be notified of the discharge.

A voluntary patient who has been discharged by an Authorised Medical Officer may apply to have that decision reviewed by the Medical Superintendent, and this review must take place as soon as possible.

4D.3: Voluntary patients becoming involuntary patients

At any time while you are a voluntary patient in any hospital, a doctor can decide that you should be made an involuntary patient under the Mental Health Act 2007 (NSW). This might be because the Authorised Medical Officer believes that you are a mentally ill or mentally disordered person who requires inpatient care, but is concerned that you may not continue treatment and leave the hospital, or it may be because the Authorised Medical Officer is concerned that your mental illness or mental disorder makes it impossible for you to consent to treatment as a voluntary patient.

The Mental Health Act 2007 (NSW), gives an Authorised Medical Officer of a public mental health facility the power to detain a voluntary patient in hospital for a period of up to two (2) hours for the purpose of assessing if he or she is a mentally ill or mentally disordered person who ought to be detained as an involuntary patient.

Your behaviour as a voluntary patient and your willingness to accept the hospital’s suggested treatment can be used by the medical practitioners when considering whether or not to make you an involuntary patient. The hospital’s account of your behaviour as a voluntary patient can be questioned and challenged by you or your legal representative if your status is considered in a mental health inquiry by the Mental Health Review Tribunal.

The Authorised Medical Officer should document their reasons for detaining the person. Form 1 examinations should then continue as outlined here.

4D.4: Voluntary patients with guardians

The Mental Health Act 2007 (NSW) also has sections for voluntary patients who have guardians:

An Enduring Guardian and a Guardian appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal can request an authorised medical officer to admit a person as a voluntary patient. A Guardian can only ask for a person to be admitted as a voluntary patient if they have authority to make decisions related to medical care and treatment. A person cannot be admitted as a voluntary patient by their Guardian if they object to being admitted to hospital, unless the Guardian has been provided with a power to do so under the order that appoints them. In any other situation they can only be admitted as an involuntary patient.

A person cannot be admitted to hospital as a voluntary patient if their Enduring Guardian or Guardian objects to their admission (provided they have power with respect to medical care and treatment in the order of their appointment).

A voluntary patient must also be discharged from hospital if their Enduring Guardian or Guardian requests discharge (provided they have power with respect to medical care and treatment in the order of their appointment).

An Enduring Guardian and a Guardian can also ask for an involuntary patient to be re-classified as a voluntary patient.

The Mental Health Act 2007 (NSW) allows children under sixteen (16) to be admitted as voluntary patients by their parents. Where a person has a legally appointed Guardian, the Guardian may be involved in decisions about admission and discharge.

To read more about this, click here. In this respect, a Guardian is automatically recognised as a person’s Designated Carer under the Mental Health Act 2007 (NSW).

4D.4: Voluntary patients and electro-convulsive therapy

If you are a voluntary patient, you will only be given ECT if you agree to it. If you decide to have ECT, you must give ‘informed consent’ to the treatment. Under the Mental Health Act 2007 (NSW), this means that your consent to ECT must be ‘free and voluntary’ and it must be given in writing. Prior to obtaining your consent to ECT, the treating team must also take certain steps set out in the Mental Health Act 2007 (NSW), to ensure that you are able to understand:

  • the nature of the treatment and how it will be given;
  • how many treatments are proposed;
  • the potential benefits of the treatment;
  • the potential discomforts, risks and side effects of the treatment, including possible loss of memory;
  • what other types of treatment are available;
  • whether the doctor has any financial relationship with the hospital where treatment is to be given;
  • that you can get advice from another doctor and a lawyer before you consent; and
  • that you can choose to stop the course of treatment at any time.

You must also be given a chance to ask any questions about the treatment and you must be given answers that you understand. Under the Mental Health Act 2007 (NSW) a person is to be presumed to be incapable of giving informed consent to ECT if, at the time consent is sought, the person is affected by medication that impairs their ability to give consent.

If you have given consent but the medical superintendent is not sure that you are able to give informed consent, they may ask the Mental Health Review Tribunal to decide whether your consent is valid. Reasonably practicable steps should be taken to inform your Designated Carer and Principal Care Provider that a hearing will take place.

If the Tribunal finds you do not have capacity to consent, you will not be given ECT will you are a voluntary patient. No other person can consent on your behalf to ECT if you are a voluntary patient (including your Guardian).

The Mental Health Act 2007 (NSW) does not permit a person under the age of sixteen (16) years to consent to ECT (nor can a person with parental responsibility for them consent on their behalf). The administration of ECT to a person under the age of 16 years can only occur with the approval of the Mental Health Review Tribunal. The Act will also require the Mental Health Review Tribunal to consider the views of the young person’s Designated Carer, Principal Care Provider or parent (if the parent is not a Designated Carer or Principal Care Provider) if these are known.

4D.5: Voluntary patients and Mental Health Review Tribunal reviews

The Mental Health Review Tribunal must review voluntary patients every twelve (12) months if they stay as a patient of a hospital mental health facility. This also occurs if they were an involuntary patient for part of that period.

At the review, the Tribunal will consider:

  • the care and treatment the person is receiving;
  • whether the person is likely to benefit from continued care and treatment as a voluntary patient;
  • whether appropriate care is available other than the mental health facility; and
  • whether the person consents to remaining a voluntary patient.

The Tribunal may order the patient’s discharge, order the patients discharge but delay for up to fourteen (14) days if it is in their best interest, and decide to make no order. If the Tribunal makes no order, the person continues as a voluntary patient.

Updated March 16, 2020