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Chapter 5 Section G: Powers of a Guardian and voluntary patients under the Mental Health Act 2007 (NSW)

A voluntary patient is generally someone who has chosen to be admitted to a public mental health facility. However, they can also be a person under guardianship who has been admitted at the request of, or with the consent of their Guardian.

5G.1: Admission of voluntary patients under guardianship

If your Guardian has the responsibility to make decisions in relation to your health care, this means they can make decisions on issues such as whether you should attend medical appointments, health care monitoring and admission to hospital for the purpose of investigation or treatment.

As part of the health care function, your Guardian may request the Authorised Medical Officer to admit you to a public mental health facility as a voluntary patient. However, your Guardian cannot require the Authorised Medical Officer to detain you against your will. You are able to leave the Mental Health Facility at any time. However, if the treating team assess that you need to stay in hospital for further treatment, they make move to change your status to involuntary.

If the Authorised Medical Officer seeks to detain you in a mental health facility against your will, you must be made an involuntary patient by the processes required in the Mental Health Act 2007 (NSW). However, if you are admitted to a Mental Health Facility as an involuntary patient, your Guardian has no power to prevent your admission and continuing detention in that facility.

If you are admitted to a public mental health facility as a voluntary patient, and you have a Guardian who has the responsibility for healthcare decision-making for you, your Guardian can object to your admission and discharge you from the facility.

5G.2: Consent to treatment for voluntary patients under guardianship

Voluntary patients in mental health facilities under the Mental Health Act 2007 (NSW) generally have the right to refuse treatment at any time. If you are a voluntary patient in a public mental health facility, your Guardian, if they are responsible for health care decisions, can also consent to, or refuse consent to, medication and most other treatment proposed by the treating team.

However, your Guardian cannot consent to the administration of Electro-Convulsive Therapy (ECT). Voluntary patients who are unable to consent to the administration of ECT personally cannot be administered ECT.

Generally, your Guardian can consent to minor and major medical or dental treatment if they have been given this responsibility by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) when they were appointed.

However, if you are a voluntary patient in a mental health facility, and you are incapable of giving consent to a surgical procedure, the Authorised Medical Officer must apply to the Mental Health Review Tribunal for authorisation if they want you to undergo a surgical procedure. If your designated carer (who might also be your Guardian) objects to the proposed surgical procedure, the Authorised Medical Officer must seek authorisation of the Mental Health Review Tribunal.

The Mental Health Review Tribunal cannot authorise the performance of a ‘special medical treatment’ on a voluntary patient. A ‘special medical treatment’ is a procedure that is intended or likely to have the effect of rendering a person permanently infertile. If such a procedure is thought to be required, the approval of the Guardianship Division of NCAT to the performance of the procedure would be required.

Depending on the terms of the guardianship, your Guardian may have the power to overturn your rights to refuse medication or other treatment (other than ECT).

The public mental health facility should obtain a copy of the Guardianship Order or appointment of Enduring Guardianship, so they have a clear idea of the scope of guardianship. They can ask the Guardianship Division of NCAT or the Guardian themselves for a copy.

Updated April 6, 2020