This section outlines what treatment you can be given without your consent under the Mental Health Act 2007 (NSW). It provides information on:
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 recoveryIndividual or personal recovery is defined as being able to create and live a meaningful and contributing life within a community of choice, with or without the presence of mental health difficulties. ‘Recovery’ can mean different things to different people; but in general, it means: gaining and retaining hope; understanding of one’s abilities and difficulties; engagement in an active life; personal autonomy; social identity; meaning and purpose in life, and a positive sense of self. More. Your lawyer, Designated CarerA designated carer is someone who is entitled to certain information about a consumer’s care and treatment and to be notified of certain events. A designated carer may also be a principal care provider (see below). A designated carer is nominated by the consumer but in many instances identified by treating clinicians as the person or persons who should be consulted about the person’s care and treatment planning and be informed about any related matters such as hearings, medication, discharge and recovery progress. Consumers can now nominate up to two 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. More and/or Principal Care ProviderPrincipal care provider (who may also be a designated carer) is the person primarily responsible for providing support or care to a consumer (though not on a commercial basis).The principal care provider is entitled to the same information as a designated carer (unless excluded from being given information by the consumer).They are persons entitled to be informed of a range of matters about the person for whom they provide care, including about their admission, aspects of treatment and discharge. More also have the right to information about your medication, the dosages and potential side effects.
When prescribing medication, the mental health facility must:
In giving you medication as an involuntary patient, the hospital can:
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:
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.
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:
However, in practice, this principle is limited by another section of the Mental Health Act 2007 (NSW) which provides that an Authorised Medical OfficerAn Authorised Medical Officer is either the medical superintendent of a declared mental health facility, or a doctor who has been nominated by the medical superintendent to fulfil certain responsibilities and make certain decisions under the Mental Health Act 2007 (NSW). These responsibilities can include assessment of patients, care and treatment of people who are mentally ill or mentally disordered and decisions about discharge. More 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 RestraintAny restriction on a person’s freedom of movement, which may be actioned through the use of physical force, mechanical devices, the use of chemicals, or other means. More in NSW Health Settings’.
Click here to view this policy directive.
The principle of least restrictive practiceA restrictive practice refers to any conduct that has the purpose or effect of limiting a person’s liberty and freedom of movement. It includes but is not limited to all forms of restraint. Except in cases of emergency where a person’s liberty must be reasonably restricted to prevent them or someone else experiencing serious harm, restrictive practices are generally unlawful in the absence of the person’s consent. More 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 restraintAny restriction on a person’s freedom of movement, which may be actioned through the use of physical force, mechanical devices, the use of chemicals, or other means. More 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 restraintAny restriction on a person’s freedom of movement, which may be actioned through the use of physical force, mechanical devices, the use of chemicals, or other means. More episode.
If you think this policy has been breached, you can complain through the complaints and advocacy services available to involuntary patients.
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 consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More. For more information, see this link.
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’.
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 consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More.
If you:
The Mental Health Review TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. will decide:
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 TribunalThe Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the NSW Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness. The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings. hearings, you can have other people such as a guardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More, 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.
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):
Updated March 19, 2020
