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Chapter 4 Section F: Compulsory treatment in hospital under the Mental Health Act 2007 (NSW)

This section outlines what treatment you can be given without your consent under the Mental Health Act 2007 (NSW). It provides information on:

4F.1: Medication

If you are an involuntary patient, the hospital treating team decides the type, frequency and dosage of medication you will be given in hospital. You should be given information about your treatment that includes the effects of treatment and any alternatives and should be supported to develop your goals for recovery. Your lawyer, Designated Carer and/or Principal Care Provider also have the right to information about your medication, the dosages and potential side effects.

When prescribing medication, the mental health facility must:

  • administer drugs according to relevant professional standards;
  • prescribe medication to meet your health, therapeutic or diagnostic needs, and not as a punishment or for the convenience of others; and
  • monitor and review the prescription and use of medication prescribed in the mental health facility.

In giving you medication as an involuntary patient, the hospital can:

  • give you medication by way of intramuscular or intravenous injection (commonly referred to as a ‘depot’), or in a tablet, capsule, wafer, or syrup form
  • give you different medication from what has been prescribed for you in the community
  • insist that you receive medication, and may use reasonable force to administer such medication if you refuse to accept it.

The hospital can take away medicine prescribed in the community for other health conditions. Upon admission, a voluntary or involuntary patient is usually required to hand over any prescribed or non-prescribed medication in their possession. This medication will then be dispensed as required by the inpatient treating team. The primary justification for this is the duty of care owed by the inpatient treating treat to the patient and other patients, to ensure that the medication is not lost, stolen or misused, resulting in harm.

However, the hospital cannot:

  • give you medication in excessive doses or that are inappropriate for your condition or diagnosis;
  • give you medication that is a ‘prohibited treatment’ under the Mental Health Act 2007 (NSW); or
  • give you medication that will prevent you from communicating adequately with your representative at a Mental Health Inquiry unless it is consistent with your proper care and treatment.

The Tribunal cannot make decisions about what medication you can be given. However, they must ask about the medication that had been prescribed to the person before them; and take into account the effect of the medication on the person’s ability to communicate at the hearing.

4F.2: Use of seclusion, sedation and restraint

The Mental Health Act 2007 (NSW) does not specifically regulate seclusion, sedation or restraint of patients. However, use it is based on the following relevant principles:

  • people should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given;
  • care and treatment should be timely, high quality and in line with professionally accepted standards; and
  • any restriction of liberty and interference with the rights, dignity and self-respect of a person is to be kept to the minimum necessary in the circumstances.

However, in practice, this principle is limited by another section of the Mental Health Act 2007 (NSW) which provides that an Authorised Medical Officer can take an action the officer thinks fit to protect a person detained in a mental health facility, or any other person in a mental health facility (such as a staff member or visitor) from serious physical harm.

In reality, seclusion, sedation and restraint are used regularly in NSW mental health facilities to manage the risks associated with patients who exhibit very challenging behaviour. The legal basis on which these interventions are justified is the common law duty of care owed to the patient, other patients and visitors, and staff, to prevent serious imminent physical harm. This duty of care must be exercised reasonably and proportionately in terms of the actual risk involved.

NSW Health has developed a policy on the use of both seclusion and restraint in psychiatric hospitals. ‘Seclusion and Restraint in NSW Health Settings’.

Click here to view this policy directive.

The principle of least restrictive practice is common across all settings. This means that NSW Health staff must maximise a person’s choices, rights and freedom as much as possible while balancing healthcare needs and safety for all.

Principles also include that NSW Health services work in partnership with people and their carers and families and that collaboration and co-design happen at an individual and a service level; and that services promote hope and build trust. They also require that services understand the human rights implications of restrictive practices and continually consider the principles of fairness, respect, equality, dignity and autonomy, as well the safety of people accessing services, staff and others.

Trauma-informed care is applied in all NSW Health Settings, with principles that require that services are trauma-informed and respond to the prevalence and impacts of trauma, supporting care that does not traumatise or re-traumatise the person; as well as provide care that is person-centred and recovery-oriented and which recognises that seclusion and restraint can be very traumatic,  may increase distress, and re-traumatise and trigger memories from past trauma.

The policy also recognises that many Aboriginal people have experienced and continue to experience significant intergenerational and other trauma and must take this into account when designing and providing care; as well as considering cultural obligations (e.g. Aboriginal family and community roles) and personal backgrounds of staff when allocating roles during a seclusion or restraint episode.

If you think this policy has been breached, you can complain through the complaints and advocacy services available to involuntary patients.

4F.3: Electro-convulsive therapy (ECT)

Electro-convulsive therapy (ECT) is a course of treatments involving a small electric current being passed through one or both sides of the brain in order to cause a seizure. The treatment requires prior medical assessment and physical preparation. ECT is always administered under a general anaesthesia.

The treatment is most often used to treat very serious depression, but it may also be used to treat acute episodes of other conditions. It is particularly used for people who cannot take medication because of serious side effects, or in circumstances where it would take too long for medication to result in a remission of symptoms. For example, if a person’s life is at risk because they are refusing to eat and drink in circumstances of ‘catatonic depression’, ECT may be the preferred treatment option because of the likelihood of a quicker remission of symptoms, even if the person’s condition may ultimately respond to medication.

There are different requirements to be satisfied before ECT can be given to voluntary patients and involuntary patients. However, in either case at least two medical practitioners, at least one of whom must be a psychiatrist, must issue a certificate of opinion that, having considered the patient’s clinical condition, history of treatment, and any alternative treatments, ECT is a reasonable and proper treatment that is necessary or desirable for the safety and welfare of the patient.

It is an offence for a person who is not a medical practitioner to administer ECT to another person. It is also an offence for a medical practitioner to administer ECT not in accordance with the requirements of the Mental Health Act 2007 (NSW). There are heavy civil penalties, including potentially disciplinary penalties, and criminal penalties related to the unlawful administration of ECT.

The Mental Health Act 2007 (NSW) requires that if a person is under the age of 16 years, at least one of the certificates of opinion recommending ECT must be given by a psychiatrist with expertise in the treatment of children and adolescents.

Voluntary patients cannot be given ECT without their consent. For more information, see this link.

4F.3.1: Involuntary patients and electro-convulsive therapy

As with other mental health treatments, an involuntary patient is defined to mean a person detained in hospital prior to a Mental Health Inquiry and a person subject to an Involuntary Patient Order made at a Mental Health Inquiry.

If you are an involuntary patient you can still consent to being administered ECT provided you have the capacity to give ‘informed consent’.

  • For the conditions of ‘informed consent’ to be satisfied under the Mental Health Act 2007 (NSW), 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, which are also 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;
  • what the treatment is 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.

To read an ECT fact sheet, click here.

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:

  • are not capable of consenting to treatment; or
  • if you are capable of consenting to treatment, but have refused that consent; or
  • if you have failed to either refuse or provide that consent; and the treating team want to proceed with the administration of ECT, the Mental Health Review Tribunal must approve the treatment.

The Mental Health Review Tribunal will decide:

  • whether ECT should be given to you if you can’t give informed consent;
  • whether ECT should be given to you if you can give informed consent, but have refused such consent;
  • whether ECT should be given to you if you can give informed consent, but have neither consented nor refused consent to this treatment;
  • whether your consent is valid in the situation where you have given consent (therefore, making sure that your decision is based on your understanding of all the facts);
  • whether ECT is a reasonable and proper treatment that is necessary or desirable for your safety and welfare having regard to the medical opinions and evidence before it;
  • how many treatments of ECT you can be given; and
  • the period of time within which treatment may be given

The Tribunal’s decision following an ECT Administration Inquiry is called an ECT determination. An ECT determination remains legally valid for a period of six (6) months unless a lesser period is specified in the determination, after which it lapses. The Tribunal has the power to authorise up to twelve (12) episodes of ECT treatment during the period of the determination, and in exceptional circumstances it can authorise more than twelve treatments if it is satisfied that there are special circumstances that justify such a decision (including the effectiveness of any previous courses of ECT treatment). For example, ECT may be the only, or most effective mental health treatment for some individuals and they may require regular ECT (sometimes called ‘maintenance’ ECT). These individuals may require ECT administered on a fortnightly basis to maintain their mental stability. In such a case, the Tribunal might be persuaded that it should authorise more than twelve (12) episodes of treatment within a six (6) month period.

Apart from the Tribunal, no one, not even your relatives (including persons with parental responsibility for a young person) can consent to ECT on your behalf.

You are entitled to legal representation at the Tribunal when it conducts an ECT Administration Inquiry, however the Mental Health Advocacy Service does not always represent patients at these hearings.

The Mental Health Act 2007 (NSW) now requires that a young person under the age of 16 years must be legally represented at an ECT Administration Inquiry.

Like all Mental Health Review Tribunal hearings, you can have other people such as a guardian, relatives, friends, peer support workers or lay advocates at the hearing. The Tribunal listens to you or your lawyer about your views about ECT and the views of the other participants, including the hospital treating team, before making a decision.

The Tribunal hearings about ECT can be called at short notice due to their urgency. The hearings are usually conducted by video conference.

4F.4: Prohibited treatments under the Mental Health Act 2007 (NSW)

Under the Mental Health Act 2007 (NSW) certain treatments are not allowed to be given to any patient in NSW.

There are heavy civil penalties, including potential disciplinary penalties, and criminal penalties related to the use of prohibited mental health treatments.

The following procedures are prohibited under the Mental Health Act 2007 (NSW):

  • deep sleep therapy;
  • insulin coma therapy; and
  • psychosurgery.

Updated March 19, 2020