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Chapter 4 Section H: Discharge and leave under the Mental Health Act 2007 (NSW)

If you are lawfully detained in a public mental health facility as an assessable person prior to a Mental Health Inquiry or as an involuntary patient following a Mental Health Inquiry, you cannot leave the Facility without permission (‘being granted leave’) or being discharged.

You can, however, be discharged and allowed to leave a hospital in several ways.

This section briefly outlines:

  • the various ways you can be legally discharged, with links to other parts of the Manual; and
  • how you can get temporary leave as an assessable person or as an involuntary patient.

4H.1: Discharge

Generally, patients in hospital, except in limited circumstances such as when patients have contagious diseases, can discharge themselves. Voluntary patients in public mental health facilities can discharge themselves at any time.

However, involuntary patients in public mental health facilities cannot discharge themselves from hospital. Nevertheless, you can make a request for discharge to the Authorised Medical Officer at any time and they must respond within three (3) working days.

The Mental Health Act 2007 (NSW) states that ‘every effort that is reasonably practicable’ should be made to involve a person with a mental illness or disorder in the development of their treatment and recovery plans and plans for their ongoing care. In relation to discharge, all reasonably practicable steps must be taken to make sure that the person and their Designated Carer and/or Principal Care Provider are consulted about planning the person’s discharge and subsequent treatment and provided with appropriate information about follow-up care.

In practice, the NSW Health Policy Directive Transfer of Care from Mental Health Inpatient Services has a detailed set of principles and procedures to guide an effective discharge process.

4H.1.1: Discharge by an Authorised Medical Officer

Assessable persons and involuntary patients can be discharged by an Authorised Medical Officer in several ways:

  • An Authorised Medical Officer must discharge an assessable person or an involuntary patient from hospital if they form the opinion that the person is not or is no longer a mentally ill person as that term is defined in the Mental Health Act 2007 (NSW), or that there is other less restrictive care, consistent with the person’s safe and effective care, reasonably available to them;
  • An Authorised Medical Officer must discharge an assessable person considered to be a mentally disordered person after three (3) days (not including weekends and public holidays); or
  • A Designated Carer of an assessable person or an involuntary patient may apply to the Authorised Medical Officer for that person’s discharge. The Authorised Medical Officer may discharge the person on such an application if the Designated Carer gives the Authorised Medical Officer a written undertaking that the person will be appropriately supported, and the
  • Authorised Medical Officer is satisfied that adequate measures will be taken to prevent the person from causing harm to themselves or others.

If the Authorised Medical Officer decides to discharge a person, they can delay discharge for up to fourteen (14) days if they believe it is in the person’s best interests.

4H.1.2: Discharge by the Mental Health Review Tribunal

Assessable persons and involuntary patients can be discharged by the Mental Health Review Tribunal in several ways:

  • If the Authorised Medical Officer refuses to discharge an assessable person or an involuntary patient, that person can appeal this decision to the Mental Health Review Tribunal. The Tribunal will then ‘stand in the shoes’ of the Authorised Medical Officer and must discharge the patient if satisfied he/she is not a mentally ill person or that there is less restrictive care available
  • The Mental Health Review Tribunal can discharge an assessable person from hospital at a Mental Health Inquiry or Review if it is satisfied that the person is not a mentally ill person as that term is defined in the Mental Health Act 2007 (NSW), or that there is other less restrictive care, consistent with the person’s safe and effective care, reasonably available to them
  • The Mental Health Review Tribunal can discharge the involuntary patient on a Community Treatment Order for a period of no more than twelve (12) months; or
  • The Mental Health Review Tribunal can discharge the involuntary patient into the care of their Designated Carer or Principal Care Provider.

If the Mental Health Review Tribunal decides to discharge a person, they can delay discharge for up to 14 days if they believe it is in the person’s best interests.

4H.2: Leave

Even if you are an assessable person or an involuntary patient, you still can be given leave by the Authorised Medical Officer to go outside the public mental health facility. Such leave may be granted on an unconditional or conditional basis. For example, it may be granted only for a short period of time or on the basis that you will be accompanied by a staff or family member at all times during the period of the leave (‘escorted leave’). You may also be granted ‘overnight’ leave allowing you to live at home, provided you return to the public mental health facility each day so that your mental state can be assessed. You may also be granted extended leave for longer periods provided you maintain contact and return as agreed to the public mental health facility so that your mental state can be assessed.

Leave can be granted for compassionate reasons, to receive medical treatment for physical health issues or on any other reasons the Authorised Medical Officer approves of. If you need leave for a particular reason, for example, to attend a funeral, you should make a formal request for ‘compassionate leave’, explaining the reason. It is best to do this as early as possible once you know you need to have leave. The conditions of which you are granted leave is a decision for your treating doctor, usually after discussion with you. For example, they may insist that you are escorted.

The Mental Health Review Tribunal cannot grant leave. If you are very concerned about leave, you may ask the Tribunal if you can discuss this with your treating doctor during a hearing. If you don’t comply with any conditions upon which leave is granted it is likely to be cancelled. If you fail to go back to the public mental health facility after your leave has lapsed, the Authorised Medical Officer may contact the police who can, using force if necessary, return you to the Facility.

As an involuntary patient, you don’t have a right to have leave from the public mental health facility, regardless of how long you have been a patient in the Facility.

If you have to go to court on a criminal charge, a social worker from the hospital will let the court know and your court date will be moved to a later date (‘adjourned’).

The Mental Health Act 2007 (NSW) requires an Authorised Medical Officer to be satisfied that adequate measures have been taken to prevent you from causing harm to yourself or anybody else before granting you leave.

Updated March 20, 2020