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 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. 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 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. 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 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. 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. 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 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. in several ways:
- 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. must discharge an assessable personAn assessable person is a person detained on an involuntary basis under the Mental Health Act 2007 (NSW) in a public mental health facility who has not been reviewed by the Mental Health Review Tribunal (MHRT). The Authorised Mental Officer of a public mental health facility must present an assessable person to the MHRT for a Mental Health Inquiry as soon as practicable after the person’s detention in hospital. or an involuntary patient from hospital if they form the opinion that the person is not or is no longer a mentally ill personA mentally ill person is defined in the Mental Health Act 2007 (NSW) as a “person suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care and treatment of the person is necessary for the person’s own protection from serious harm, or for the protection of others from serious harm”. Under the Act, mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person. They may experience delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms already listed. 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 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. must discharge an assessable personAn assessable person is a person detained on an involuntary basis under the Mental Health Act 2007 (NSW) in a public mental health facility who has not been reviewed by the Mental Health Review Tribunal (MHRT). The Authorised Mental Officer of a public mental health facility must present an assessable person to the MHRT for a Mental Health Inquiry as soon as practicable after the person’s detention in hospital. considered to be a mentally disordered personIn the Mental Health Act 2007 (NSW), a mentally disordered person is someone whose behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care and, treatment or control of the person is necessary for the person’s own protection from serious physical harm or for the protection of others from serious physical harm. after three (3) days (not including weekends and public holidays); or
- A 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. of an assessable personAn assessable person is a person detained on an involuntary basis under the Mental Health Act 2007 (NSW) in a public mental health facility who has not been reviewed by the Mental Health Review Tribunal (MHRT). The Authorised Mental Officer of a public mental health facility must present an assessable person to the MHRT for a Mental Health Inquiry as soon as practicable after the person’s detention in hospital. or an involuntary patient may apply to the 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. for that person’s discharge. The 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. may discharge the person on such an application if the 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. gives the 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. a written undertaking that the person will be appropriately supported, and the
- 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. is satisfied that adequate measures will be taken to prevent the person from causing harm to themselves or others.
If the 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. 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 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. refuses to discharge an assessable personAn assessable person is a person detained on an involuntary basis under the Mental Health Act 2007 (NSW) in a public mental health facility who has not been reviewed by the Mental Health Review Tribunal (MHRT). The Authorised Mental Officer of a public mental health facility must present an assessable person to the MHRT for a Mental Health Inquiry as soon as practicable after the person’s detention in hospital. 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 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. and must discharge the patient if satisfied he/she is not a mentally ill personA mentally ill person is defined in the Mental Health Act 2007 (NSW) as a “person suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care and treatment of the person is necessary for the person’s own protection from serious harm, or for the protection of others from serious harm”. Under the Act, mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person. They may experience delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms already listed. or that there is less restrictive care available
- The Mental Health Review Tribunal can discharge an assessable personAn assessable person is a person detained on an involuntary basis under the Mental Health Act 2007 (NSW) in a public mental health facility who has not been reviewed by the Mental Health Review Tribunal (MHRT). The Authorised Mental Officer of a public mental health facility must present an assessable person to the MHRT for a Mental Health Inquiry as soon as practicable after the person’s detention in hospital. from hospital at a Mental Health Inquiry or Review if it is satisfied that the person is not a mentally ill personA mentally ill person is defined in the Mental Health Act 2007 (NSW) as a “person suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care and treatment of the person is necessary for the person’s own protection from serious harm, or for the protection of others from serious harm”. Under the Act, mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person. They may experience delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms already listed. 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 OrderA Community Treatment Order is a legal order made by the Mental Health Review Tribunal, or in some circumstances, a Magistrate. It authorises the compulsory care and treatment, usually including the regular administration of medication, of a person with mental illness living in the community. The order is implemented by a public community mental health service, often in collaboration with a range of community managed organisations providing psychosocial care and support services. 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 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. 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..
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 personAn assessable person is a person detained on an involuntary basis under the Mental Health Act 2007 (NSW) in a public mental health facility who has not been reviewed by the Mental Health Review Tribunal (MHRT). The Authorised Mental Officer of a public mental health facility must present an assessable person to the MHRT for a Mental Health Inquiry as soon as practicable after the person’s detention in hospital. or an involuntary patient, you still can be given leave by the 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. 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 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. 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 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. 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 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. 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