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Chapter 9 Section B: Supporting your family member or friend in the mental health system

This section of the Manual provides information about how carers, family members and friends of a person living with a mental health condition can be involved in supporting them when they are interacting with the health care system.

Carers play an important role in supporting people living with a mental health condition and their involvement can lead to more effective care and treatment. Carers often have important information that could help medical practitioners, for example, the person’s medical history, past medication regime or current situation. Involving carers in treatment, care and support can result in fewer hospital admissions and better wellbeing for carers.

Achieving the best possible mental health for a person and their carers requires a balance between respecting the rights of the person living with a mental health condition and the rights of carers supporting them.

The National Standards for Mental Services recognises the importance of carers to the wellbeing, treatment and recovery of people with a mental illness. For more information about how mental health services should support and include carers, click here. These principles are not legally binding, but they are good practice.

In this section you will find information on:

  • Designated Carers and Principal Care Providers under the Mental Health Act 2007 (NSW), including their appointment and access to information;
  • Being involved in the treatment of a friend or family member with a mental health condition;
  • Young carers of a person with a mental health condition;
  • Getting your family member or friend to seek mental health treatment;
  • Having a family member or friend admitted to hospital;
  • Helping your friend or family member to challenge medication or treatment decisions;
  • Helping a friend or family member to be discharged; and
  • Helping your family member or friend to challenge a Community Treatment Order.

9B.1: Designated Carers and Principal Care Providers under the Mental Health Act 2007 (NSW)

The Mental Health Act 2007 (NSW) recognises the important role of carers for people with a mental illness or mental disorder. The Act provides ‘Designated Carers’ with rights to be kept informed, to be involved and to have information provided by them considered by the public mental health facility.

In this section you can find out more about:

  • Appointment of a Designated Carer or Principal Care Provider
  • Principal Care Providers
  • Exclusion of a person as a Designated Carer or Principal Care Provider
  • Patient information provided to a Designated Carer or Principal Care Provider
  • Patient information only provided with consent
  • Complaints of privacy breach

9B.1.1: Appointment of a Designated Carer

The Mental Health Act 2007 (NSW) allows a patient to appoint a ‘Designated Carer’, who then automatically receives certain information about that patient. This applies to both voluntary and involuntary patients.

The Mental Health Act 2007 (NSW) recognises the importance of carers and gives them access to some information to help them to provide care and support to a relative or friend who has a mental illness, whilst at the same time giving the person with mental illness the right to control who will be accessing this information.

If the consumer is a client of a community mental health team, it may be better to nominate a Designated Carer while they are at home, by discussing it with their family and friends and the consumer’s community mental health medical practitioner. In a public mental health facility, a person with mental illness may nominate their Designated Carer by completing a ‘Nomination of Designated Carer form’. Sometimes on entry into hospital people are too unwell to fill in forms or think about nominating. It is always useful to revisit this question when things settle down, if someone has refused to nominate on entry to hospital.

A person with mental illness can also put in writing that they don’t want a particular person to be their Designated Carer. For more information about this situation, click here.

A person with mental illness can revoke (cancel) a nomination of a Designated Carer.

Nominations can be made at any time. Nominations stay in force for twelve (12) months unless revoked by the person with mental illness. Many carers and staff are unaware of this limit, and assume that their status remains.

In very limited circumstances, the nomination or revocation by the mentally ill person can be overturned. For example, the consumer’s nomination will not be accepted if the person is considered not to have capacity when they made the nomination, or if it is thought that the nomination would put anyone at risk of serious harm. If the nominated person does not want to be the person’s Designated Carer, another person should be identified as soon as possible.

If a person with mental illness does not nominate a Designated Carer, one of the following will be regarded (‘deemed’) under the Mental Health Act 2007 (NSW) as the Designated Carer:

  • a Guardian (either Tribunal-appointed or an Enduring Guardian);
  • a spouse (includes de facto partners and same sex partners) ‘if the relationship between the patient and the spouse is close and continuing’;
  • a person who is primarily responsible for providing support or care to the patient (other than a professional carer); or
  • a close friend or family member who maintains frequent personal contact and interest in the consumer’s welfare.

In practical terms, a person who is deemed to be the Designated Carer (rather than nominated by the person with mental illness) continues as Designated Carer until the person with mental illness either excludes them from their care; revokes their nomination as Designated Carer, or nominates someone else as their Designated Carer.

Under the Mental Health Act 2007 (NSW) two (2) people may be nominated as a Designated Carers.

The parents of a child under fourteen (14) who is a patient under the Mental Health Act 2007 (NSW) are the Designated Carers of that child. The Mental Health Act 2007 (NSW) says when a person with mental illness has reached fourteen (14) they can nominate their Designated Carer.

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.

9B.1.2: Principal Care Providers

A Principal Care Provider is the person who is primarily responsible for providing support and care to the person with a mental illness, other than professional carers. This person will often also be a Designated Carer.

An Authorised Medical Officer or Director of Community Treatment can decide someone is a Principal Care Provider even if they are not nominated. This is to make sure that if the Designated Carers do not have the main responsibility for providing the involuntary patient with support and care, the Principal Care Provider can still receive or provide relevant information about involuntary patient care and treatment. In practice, sometimes three (3) people will be given information about the mentally ill person under the Act; the two Designated Carers and the Principal Care Provider.

Designated Carers and the Principal Care Provider have the same rights to information under the Mental Health Act 2007 (NSW). All references in this chapter to Designated Carers also apply to the Principal Care Provider.

9B.1.3: Exclusion of a person as Designated Carer or Principal Care Provider

Some consumers will tell the hospital to exclude particular people, including family members, from being a Designated Carer or the Principal Care Provider. A consumer may also want to exclude their Designated Carer or the Principal Care Provider from receiving certain information. This decision may be based on relationship conflict, different views in the best treatment for the consumer, the consumer’s belief that the carer is the cause of their symptoms and their problems or it may be part of the consumer’s mental health symptoms.

A consumer who is aged fourteen (14) and under eighteen (18) may not exclude their parent from being given notice or information under the Mental Health Act 2007 (NSW).

Being excluded as a Designated Carer or the Principal Care Provider may be frustrating for the carer, especially if they are concerned for the consumer. However, the public mental health facility must respect the client’s confidentiality and privacy.

In these circumstances, if the consumer is still on speaking terms with their carer, the carer may request the consumer nominated them as the Designated Carer or the Principal Care Provider.

In cases where the consumer lacked capacity at the time of making the decision to exclude the person, and/or such an exclusion would increase the risks to the consumer or carer, the exclusion may not be accepted. This means that the Designated Carer or the Principal Care Provider will still receive information about the person.

9B.1.4: Information given to Designated Carers and Principal Care Providers

Under the Mental Health Act 2007 (NSW) Designated Carers have the right to be given certain information.

An Authorised Medical Officer or director of community treatment must take all reasonably practicable steps to notify Designated Carers and the Principal Care Provider of events the following events affecting the mentally ill person under the Act. This includes:

  • if the person is detained in hospital, within the first 24 hours after being detained, unless they are discharged or classified as a voluntary patient within that period;
  • if and when the person with a mental health condition will have a hearing before the Mental Health Review Tribunal;
  • if the person with mental illness is away from the facility without permission or fails to return at the end of a period of leave;
  • if it is proposed to transfer the person with mental illness to another mental health or health facility;
  • if the person with mental illness is discharged from the mental health facility;
  • if the person with mental illness has been re-classified as a voluntary patient;
  • if the Authorised Medical Officer is proposing to apply to the Mental Health Review Tribunal for an Electro Convulsive Therapy (ECT) Administration Inquiry or for a decision about whether the person with mental illness is capable of giving informed consent to ECT;
  • if a surgical operation is performed on the person with mental illness and they do not give consent or do not have capacity to give consent; and
  • if the Authorised Medical Officer is proposing to apply to the Director-General of NSW Health or the Mental Health Review Tribunal for consent to perform a surgical operation or special medical treatment that requires special consent under the Mental Health Act 2007 (NSW).

The Mental Health Act 2007 (NSW) also requires the mental health facility to consult with the Designated Carer about a discharge plan prepared for release from hospital of the mentally ill person under the Act. For example, the hospital may organise a family meeting to discuss when the person will be discharged, how their ongoing care needs can be met, local support groups and/or the public mental health facility’s out-patient services.

The Designated Carer can make the following requests:

  • have the person they are caring for admitted to a public mental health facility;
  • be provided with information about the types and dosages of medication being administered to the mentally ill person under the Act;
  • have an Official Visitor visit;
  • have the mentally ill person under the Act discharged from a mental health facility, and appeal to the Tribunal against a refusal to discharge the person who is mentally ill under the Act; and/or
  • a Community Treatment Order (CTO).

9B.1.5: Patient information only given with consent

It is important to note that if a Designated Carer does not have automatic access to all of a mentally ill person’s medical records. This is true whether they have been appointed Designated Carer and Principal Care Provider by a mentally ill person or if they are ‘deemed’ under the Mental Health Act 2007 (NSW) to have a right to access the information specified in the Mental Health Act 2007 (NSW).

For example, the following information remains confidential unless the person with the mental health condition consents to it being discussed with the Designated Carer:

  • diagnoses;
  • treatment other than medication;
  • results and details of assessments and tests; and
  • content of conversations between doctor and the mentally ill person.

To access other health information in the patient’s files, the carer will need the consent of the mentally ill person, which would ordinarily be required to be in writing. If a person with mental illness agrees to their Designated Carer, any other carer, family member or friend having access to the whole of their medical records, then no privacy or confidentiality obligations are breached. Arranging for access to this information to be provided will need to be arranged with the health care provider.

If a person is happy for their carer to have access to their entire medical record, it is best for the person with mental illness to do this when they are well, have an independent person (such as a lawyer) help them prepare the document saying this is what they want, and provide a copy of this document to all their usual health care providers.

9B.1.6: Complaints about privacy breaches

If the Designated Carer or any other family member or friend is given information they are not entitled to under the Mental Health Act 2007 (NSW) without the required consent of the mentally ill person, the person could complain to the Health Care Complaints Commission about a breach of confidentiality.

The mentally ill person can also make a complain about the NSW or Federal Privacy Commissions about a breach of their rights under the privacy principles. This kind of complaint would be against the organisation or person that released the information not the person to whom it was given.

For more information about privacy law and health information, click here.

9B.2: Involvement in the treatment of friends and family members

Unless you are the Designated Carer of the person or have written consent from the person, you do not have an enforceable right to participate in the treatment decisions made in relation to friends or family members with mental illness.

This general statement is affected by the law in the following particular circumstances:

  • Guardianship Order
  • Privacy law and confidentiality
  • Establishing a relationship with health care providers

9B.2.1: Guardianship for a person with mental illness with limited decision-making capacity

A Guardian of a person with limited capacity has a right to be heard and participate in care and treatment decisions in relation to a person with mental illness who is an involuntary patient in hospital or subject to a Community Treatment Order. Under the Mental Health Act 2007 (NSW), a Guardian is automatically recognised as the Designated Carer.

If a person does not have the capacity to make important lifestyle and healthcare decisions, a Guardian may be appointed to make these decisions on their behalf. A Guardian appointed under the Guardianship Act 1987 (NSW) may be appointed with total decision-making responsibility or with specific decision-making responsibilities. Specific responsibilities can include decisions about accommodation, health care, services, medical and dental treatment, for example.

A person who does have capacity at the time can nominate an Enduring Guardian to make important lifestyle and healthcare decisions for them at a time when they are incapable of doing so themselves. The extent of the Enduring Guardian’s right to intervene in health care decisions for a person with mental illness will depend upon the terms of their appointment.

For more information about Guardianship, click here

For more information about Enduring Guardianship, click here

A Guardian and an Enduring Guardian may in certain circumstances admit a person with mental illness to a public mental health facility for treatment as a voluntary patient. If an Authorised Medical Officer refuses to admit a person to a public mental health facility as a voluntary patient, a Guardian or Enduring Guardian can apply to the Medical Superintendent of that Facility for a review of this decision. A Guardian or Enduring Guardian may also object to the person’s admission as a voluntary patient, and can insist that a voluntary patient be discharged from a public mental health facility.

For more information about Guardianship and voluntary patients, click here.

A Guardian and an Enduring Guardian cannot require a person with mental illness to be admitted to public mental health facility as an involuntary patient or prevent such an admission.

A Guardian or Enduring Guardian, as Designated Carer, can apply to the Authorised Medical Officer or to the Mental Health Review Tribunal for an involuntary patient to be discharged into their care.

9B.2.2: Privacy law and confidentiality

Privacy and confidentiality is sometimes relied on to limit or prevent communication between carers, family members and friends and the health care provider. Privacy principles under privacy laws regulate access to the collection, use, disclosure and storage of personal information. These principles do not prevent a carer, family member or friend from passing on information that is not personal information about a person, to that person’s health care provider, including to a treating general practitioner, psychiatrist or psychologist.

The NSW Health Privacy Principles state that an organisation must only collect health information about a person from that person, unless it is unreasonable or impracticable to do so.

Observations about a person’s behaviour and how they interact with other people may be vital to an assessment of their mental state. Without such information mental health assessments often could not be made. Even if some of this information is personal information, collecting it from family, friends or others (if the information is relevant to a person’s mental health assessment or future care), is likely to be reasonable under the Health Privacy Principles.

However, information such as diagnoses, treatment and the contents of assessments and reports remain confidential, and this can create a problem for establishing an effective and appropriate continuing relationship between family members and friends and the treating teams where the person has not consented to those family members or friends having access to their confidential health information.

9B.2.3: Establishing a relationship with the health care service

Health care providers often get lots of questions from people about their family members or friends who are in hospital or being treated in the community. Health care services and their staff can get frustrated if different members of the family ring to give or find out information. It is a good strategy for the carer, family members and friends to agree on one contact person and tell the health care service staff of this decision.

If you are frustrated by reluctance from a health care service to receive information about your friend or family member, you could write to the Medical Superintendent of the mental health facility or General/Practice Manager of the health care service and ask in your letter that the information you are providing be passed on to the treating team and be placed on the person’s medical file.

9B.3: Children and adolescents who are carers for a person with mental illness

Sometimes a person under eighteen (18) will find themselves being the carer for a person with a mental health condition. Even if they are not the person who is responsible for the day-to-day care of a parent, brother or sister or other family member, young people sometimes find themselves as the person who takes the family member to a General Practitioner or emergency department, often when the person is in acute phase of their mental illness.

Although there is nothing in the law to stop a young person being consulted with the same way as an adult carer, young people often find they are not listened to when they are advocating for the rights and wellbeing of their family member in this situation.

If you are a young person and are responsible for the care of a family member with a mental health condition, you could ask your family member or their General Practitioner, psychiatrist or caseworker to give you a letter explaining this situation. A copy of the letter could then be provided if a health care provider does not take you seriously in discussions about an admission, treatment plans or discharge plans, etc.

There is nothing in the Mental Health Act 2007 (NSW) that stops a person with mental illness from nominating someone under 18 as their Designated Carer.

Young people needing support in this situation could contact:

Further information & support services for young carers can be found here.

9B.4: Getting your family member or friend to seek treatment

If your family member or friend living with a mental health condition is over sixteen (16) years old then, even if you think they are in an acute phase of mental illness, it may be hard to get them to seek treatment if they don’t want to.

If the person sees a General Practitioner for their general health care, that General Practitioner should not talk to you about that person’s current health or treatment unless you have their express consent. The obligations of confidentiality between a health care professional and their patient and the privacy principles don’t, however, stop you telling a health care professional what you have observed about a family member or friend’s behaviour.

If you approach a health care service with such information, it is important that you clearly state that you don’t want to breach privacy or confidentiality, but you want to give them information that may be important to the treatment and care of your family member or friend.

In this situation, the health care professional may talk to your family member or friend, but cannot tell you of the outcome of this without their patient’s consent.

Be aware that the information you provide may directly or indirectly lead to your family member or friend being admitted to a public mental health hospital (‘scheduled’) as an involuntary patient.

If you are very worried that your family member or friend may, because of their mental illness, be at risk of harming themselves or others, you could alert the ambulance, local Acute Care Team or, if a crime may be committed, the police. However, involving any of these services may result in your family member or friend becoming an involuntary patient in a public mental health facility. Police may be called to bring the person hospital if they do not wish to go.

In all these situations, your family member or friend will likely know that you have spoken about their behaviour to the health care provider, ambulance, Acute Care Team or the police. This may have an impact on your relationship with them.

9B.4.1: What if my family member or friend is sent to prison?

If people with mental health conditions are in prison (including people who haven’t yet been to court for the hearing of criminal charges), should receive treatment for their mental illness. NSW prisons have an intake process that looks for signs of mental illness. Sometimes this is the first time that some people have received treatment for their mental illness.

To read more about people with mental health conditions and the criminal justice system, click here

To read more about mental health services in prisons and forensic facilities, click here

There is very restricted access to psychological services and counselling in NSW prisons. Treatment for mental illness, as with other public mental health services in NSW, in prisons the treatment is generally medication-based. Sometimes treatment includes psycho-education and/or skills training, which aims to assist people better understand their illness or behaviours and helps them manage the daily stresses and strains of life and function better in relation to their day-to day needs.

9B.5: Having a family member or friend with a mental illness admitted to hospital

There are different admission procedures for private and public mental health facilities.

The admission procedure for a private mental health hospital is the same as admission to a private general hospital or clinic, that is, a private doctor must start the admission process. A person can only be admitted to a private hospital as a voluntary patient.

For more about admission to private hospitals, click here.

If a private doctor is approached, they may decide to complete a certificate (called a Schedule 1 Medical Certificate) to admit your family member or friend as an involuntary patient to a public Mental Health Facility if they meet the definition of mental illness under the Mental Health Act 2007 (NSW). If you don’t want this to happen, you and your family member or friend should make it clear that you want to be admitted as a voluntary patient. If the doctor ignores this and starts the involuntary admission process, there is nothing to legally stop them if your family member or friend fits the definition of mental illness under the Mental Health Act 2007 (NSW). However, once the admission is complete, a person detained in hospital as an involuntary patient can apply to the authorised medical officer or to the Mental Health Review Tribunal to be discharged as an involuntary patient (and be readmitted or reclassified as a voluntary patient).

For more about admission to a public hospital or mental health facility, click here.

9B.5.1: Admission to private hospitals

If you want a person to be admitted to a private mental health hospital, this has to be arranged by a private doctor, who will almost always be a private psychiatrist who treats patients at that hospital or clinic.

If the person does not want to be admitted to hospital and won’t consent to be a patient, then admission to a private hospital is effectively not an option. This is because, such an admission would have to be involuntary and no private hospitals have yet been listed (‘gazetted’) under the Mental Health Act 2007 (NSW) as being permitted to schedule and treat involuntary patients.

Private hospitals are also unlikely to admit or keep treating a person who is seen as disruptive to other patients’ effective treatment. This generally means that this option is not available for many carers whose family member or friend is in acute phase of their mental illness, even if the person has private hospital insurance.

9B.5.2: Admission to public mental health facilities

Ideally, you should speak to the person that you care for about the circumstances in which they would want to be admitted to a public mental health facility. For example, perhaps they wish to be admitted once they start showing certain mental health symptoms, or if you start to feel unsafe because of their behaviour. If you can both agree on this together, admission to a mental health facility may not damage your relationship.

If you want someone admitted to a public mental health facility, you could speak to their treating general practitioner and/or psychiatrist. Depending on bed availability, they may be able to arrange (if the person with mental illness agrees), a voluntary admission. If an Authorised Medical Officer refuses to admit a person to a public mental health facility as a voluntary patient, they or someone who is directly affected by this decision, can apply to the Medical Superintendent of that facility for a review of this decision.

A carer cannot control whether a person admitted to a public mental health facility will be treated as a voluntary patient or an involuntary patient. Even if a person is a voluntary patient, the Mental Health Act 2007 (NSW) allows that status to change quickly and without notice to the patient or carers. (Change of status should be notified to Designated Carers but only after the change has happened). A carer cannot insist that a patient be made an involuntary patient.

There are several ways you as a carer could try to have a person admitted to a public mental health facility through:

  • making a request to the Authorised Medical Officer;
  • a general practitioner or other medical practitioner; and
  • an Acute Care Team;
  • an ambulance officer; and/or
  • a police officer.
  • A person can also be admitted involuntarily by order of a Local Court, by a magistrate or they could be transferred from another mental health facility.
  • For more information about these options, click here.

If you are worried that a person you care about may be violent if they are discharged or given leave, you may need to take action. To find out more, click here.

9B.5.3: Involuntary admission on request from a family member or friend

A Designated Carer, Principal Care Provider, relative or friend can make a written request to the Authorised Medical Officer of a public mental health facility that a person with a mental health condition be taken to hospital. In regional areas where it may be difficult to get a doctor to come and see the person, it is important to know that these people in your life can make such a request.

In regional areas, it often is very difficult to get a doctor to come and see a person with a mental health condition. If a relative or friend brings the person to a public mental health facility, they can then make a written request to the authorised medical officer that they are involuntarily admitted.

The Authorised Medical Officer must not detain a person with a mental health condition on such a request unless they are satisfied that, because of the distance required in order for the person to be examined and the urgency of the circumstances, it is not reasonably practicable to have the person detained based on a mental health certificate.

9B.5.4: Involuntary admission through a General Practitioner or other medical practitioner

The first step in the process of admitting someone as an involuntary patient does not have to involve a psychiatrist. Any medical practitioner can begin the process, including a general practitioner (GP). However, the assessment document (or a ‘Schedule 1 medical certificate’) requires whoever is writing it to examine the person and report on their mental condition, including risk of harm to self or others at the time of the assessment. The medical practitioner will complete a Schedule 1 if they are satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention is necessary.

If a person is reluctant to go to a GP, or the GP does not have the time to conduct the required observation or examination then this option may not be available.

Even if the person gets to see a doctor, and the doctor completes a Schedule 1 Medical Certificate saying the person is mentally ill under the Mental Health Act 2007 (NSW), there may still be a need to call the police or the ambulance service if the person will not agree to go to hospital.

9B.5.5: Involuntary admission through the Acute Care Team

Members of Acute Care Teams can visit a person in their home and make an assessment about that person’s mental health, care, treatment and support needs. If you think a person you care for is of risk of self-harm or a risk to others, this includes particularly a physical risk to you or other persons, then you should consider contacting the Acute Care Team and giving them as much detail as possible about the potential risk(s) involved. Without this information, the Acute Care Team might not think involuntary hospitalisation is either possible or appropriate.

The Acute Care Team can, if necessary, start the process of involuntary treatment. However, if the person is reluctant and unwilling to go to hospital, the Acute Care Team is likely to contact the police to get the person to hospital.

If you ring the emergency numbers below you will be put in touch with someone from your local Acute Care Team from Community Mental Health.

  • Mental Health Line, the 24-hour emergency mental health number in NSW, is 1800 011 511*.
  • If you are in a life-threatening situation, call Triple Zero 000*. You will need to tell them where you are so that they can contact the service closest to where you are.

In NSW, public health services are organised into areas called Local Health Districts. Each Local Health District can make decisions and provide services suited to the people in their area.

Follow this link to find information for each Local Health District.

*Mobile phone calls to freecall numbers (numbers starting with 1800) and to local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

9B.5.6: Involuntary admission through an ambulance officer

Ambulance officers have powers to take a person to a public mental health facility against their will if it appears to the ambulance officer that the person is mentally ill or mentally disordered defined under the Mental Health Act 2007 (NSW), and that it would be beneficial for the person to be assessed.

If urgent physical treatment is required (for example, after an attempted suicide), then you should immediately call 000 and ask for an ambulance.

If no physical treatment is required and there is no immediate risk of harm, but you are concerned that the person requires mental health assistance, you should contact the Acute Care Team (also known as the Mental Health Line), the 24-hour emergency mental health number in NSW, is 1800 011 511*.

If there is any risk of harm to you or the person about who you are concerned, the police are likely to have more experience in dealing with such a situation.

Patients being taken involuntarily to a public mental health facility do not need to pay the fee for the ambulance service. For more information, click here.

9B.5.7: Involuntary admission through the police

It can be a difficult decision to call the police to a situation involving your family member or friend with a mental health condition, but sometimes this may be the best or only option if you are worried about your safety or their safety.

The police can take your family member or friend to a public mental health facility against their will if they appear to be mentally ill or mentally disordered as defined under the Mental Health Act 2007 (NSW) and they reasonably believe that the person:

  • have recently attempted to kill themselves, cause serious physical harm to themselves or it is probable that they will attempt to; or
  • will attempt to kill or cause serious physical harm to another person; or
  • are committing or have recently committed an offence; and
  • that it would be beneficial for the person’s welfare to be dealt with under the Mental Health Act 2007, rather than, for example, under the criminal law.
  • Police can enter the person’s home without a warrant to do this.

If the person is committing an offence (assault or damaging property are criminal offences), then the police may also charge the person with a criminal offence. The fact that they may have a mental illness will be considered at a later time by the relevant court. For more information about what happens in this situation, click here.

9B.6: If violence is feared on discharge or leave from hospital

Reasons that you as a carer might want your family member or friend made an involuntary patient might include that you want the person to get the best treatment and care and you are in fear of physical violence from that person if they stay at your home or near you.

If you fear for your safety in any way, it is important to give the hospital and/or the treating doctors this information. Risk of harm to others is an important element in the definitions of mental illness and mental disorder in the Mental Health Act 2007 (NSW) and this information could make the difference to whether a person is made an involuntary patient or not. You can ask the hospital not to tell the involuntary patient that you are afraid of them, for example, and they should respect this.

If you are not the Designated Carer or the Principal Care Provider under the Mental Health Act 2007 (NSW), you do not have a right to know when a patient is on leave or discharged. In this situation, you are advised to contact the relevant public mental health facility and tell them your fears. It is a good idea to do this by writing to the Medical Superintendent and the treating team.

If you are the Designated Carer for a patient under the Mental Health Act 2007 (NSW), you must be told when that patient is discharged, given leave, fails to return from leave or has their status changed from involuntary to voluntary. This doesn’t have to happen before the change and you can be told after the event. However, the Mental Health Act 2007 (NSW) also provides for Designated Carers to be involved in treatment and discharge plans. The reality is the more contact you have with the hospital, whether you are a Designated Carer or not, the more chance you have of knowing about a pending discharge, leave or change of status.

Other possible protections are through the police and by obtaining an apprehended violence order (AVO) through your nearest Local Court. For information about applying for an Apprehended Violence Order through the Local Court, click here.

9B.7: Helping your friend or family member to challenge medication or treatment decisions

Ideally, the person with a mental health condition, carers and their treating team can all work together in the treatment of the person with a mental health condition. However, carers may feel they need to question, or sometimes even challenge, the health care or treatment being given to their friend or family member.

If you have concerns are about past care or treatment, then using one of the more formal complaint options may be appropriate.

If your concerns are about a person’s current care or treatment, formal complaint processes are less likely to be effective because the health care provider has a right to respond to any such complaint, which can take time. Carers sometimes fear that formal complaints will have a negative impact on the treatment of their friend or family member. Although such retribution may not be as common as people believe, the relationship between the consumer and the treating team could be damaged.

In some regional and remote communities, and particularly in the public mental health system, taking your family member or friend away from one particular health care practitioner or provider may leave few or no real treatment options available to you. You may feel your only choice is to negotiate a change of treatment with the existing health care practitioner.

Chapter 3 of the Manual discusses second opinions. If you decide to and can get a second opinion, this can help to identify alternative treatment options to the current health care practitioner or provider. This might be the case even if the second opinion is from a health care practitioner whom your friend or family member cannot regularly or easily access for day-to-day treatment. It may be expensive to seek a second opinion for a private psychiatrist.

For more about negotiating a change of treatment with your friend or family member’s general practitioner, click here.

For more about negotiating a change of treatment with your friend or family member’s private psychiatrist, click here.

9B.7.1: Negotiating change of treatment with General Practitioners

As a carer you may be asked by your family member or friend to help them challenge their current treatment or medication plan.

General Practitioners (GPs) often have input to the treatment of patients under the care of Community Mental Health services if they are the main practitioner prescribing medications to those patients. GPs may be reluctant to change medication that was originally prescribed by a psychiatrist. In this situation, it is probably better to approach the psychiatrist and ask them to review the medication of the person with a mental health condition.

General Practitioners providing treatment for people on Community Treatment Orders are not able to change prescribed medication unless agreed to by the treating psychiatrist, If you need to talk directly to a GP about a family member or friend, unless a strong relationship has already been built with the GP, the GP may be reluctant and should not talk to you without that person being present or having given their consent. If your family member or friend agrees to you attending a consultation, it is advisable to make a longer appointment with the GP.

With their patient attending, the GP is able to discuss otherwise confidential matters with you, particularly if the patient clearly indicates they consent to this.

It is best to prepare, before the appointment, a list of things you and your family member or friend want to discuss about their care and treatment.

You can discuss with the GP the possibility of a second opinion or referral to a psychiatrist. Unless you specifically tell the GP about any financial constraints or difficulties with transport, they may make a referral to a specialist that your family member or friend can’t afford to get to because of location. There are sometimes closer or less expensive alternatives (perhaps through Medicare) that the GP is aware of but might not necessarily refer to, unless you make your family member’s situation clear.

If, after these discussions, your family member or friend is still unhappy with the treatment or medication, the only real alternative will be seeing another GP or a psychiatrist. You and your family member or friend should think carefully about this before making such a decision. A new GP or psychiatrist may be strongly influenced by previous decision-making and diagnoses, and you may not achieve any change to the treatment or medication being given to your family member or friend.

The Health Care Complaints Commission has an information page called Resolving Concerns About Your Health Care, which provides some useful tips about dealing with and negotiating with healthcare professionals.

9B.7.2: Negotiating a change of treatment with private psychiatrists

The suggestions mentioned above about negotiating with general practitioners generally apply to private psychiatrists. However, you are probably going to find it more difficult and more expensive for a private psychiatrist to set aside the time to talk to you if you are their patient’s carer. They may also be more reluctant to devote time they have set aside for their patient to have a discussion with you.

You could try writing to the psychiatrist in this situation. If possible, include a letter from your family member or friend saying that they agree to the psychiatrist discussing their confidential treatment information with you. In that letter, you could set out your concerns as briefly as possible (no more than two pages typed) and contact numbers asking that the psychiatrist contact you.

If this does not work, you could:

  • use the formal complaints mechanisms, such as the Health Care Complaints Commission (HCCC) (this can result in local resolution or conciliation); or
  • find an alternative healthcare practitioner (which may be another psychiatrist, a psychologist or a general practitioner).

The Health Care Complaints Commission has an information page called Resolving Concerns About Your Health Care, which provides some useful tips about dealing with and negotiating with healthcare professionals.

9B.8: Carer involvement in Mental Health Inquiry and Reviews of Involuntary Patients

Carers sometimes want their friend or family member to be admitted to hospital. Sometimes, carers don’t think a public mental health hospital is the best option and want to have them discharged from the hospital.

The options for seeking discharge of a person detained in hospital are:

  • requesting the Authorised Medical Officer or Mental Health Review Tribunal to discharge the patient into the care of the Designated Carer;
  • at a mental health inquiry by a single member of the Mental Health Review Tribunal or at an Involuntary Patient Review by a three member panel of the Mental Health Review Tribunal; and
  • applying to an Authorised Medical Officer for discharge and if they refuse discharge, appealing to the Mental Health Review Tribunal against the refusal.

The Authorised Medical Officer may discharge the person on such an application if the Designated Carer gives the Authorised Medical Officer a written undertaking (promise) that the person will be properly taken care of, and the Authorised Medical Officer is satisfied that adequate measures will be taken to prevent the person from causing harm to themselves or others.

9B.8.1: Mental Health Review Tribunal hearings

The Mental Health Review Tribunal is a specialist, quasi-judicial body established by the Mental Health Act 2007 (NSW). It has a wide range of powers that allow 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.

Hearings are held in the hospital for people detained in public mental health facilities. If the person with a mental health condition is living in the community, inquiries are held at the local community mental health centre or some other convenient place. If the person is a patient in a regional area, the hearing may be conducted by videoconference.

If a family member or friend in a public mental health facility nominates you, or you are considered to be their Designated Carer, under the Mental Health Act 2007 (NSW), then the Authorised Medical Officer must tell you the time and place when a hearing will be conducted by the Mental Health Review Tribunal. For information about hearings at the Mental Health Review Tribunal, click here.

Usually, family members or carers who want to have their say about whether a patient should be made or remain an involuntary patient are able to attend a Mental Health Inquiries and Involuntary Patient Reviews. If you are nominated Designated Carer, the Tribunal would normally allow you to remain and be part of the otherwise closed inquiry unless there is a specific serious reason why you should not. The person that the inquiry is about (the patient/consumer) will not usually be excluded from the Inquiry, although the Tribunal may take evidence in their absence. In the latter situation, the lawyer representing the patient would usually be present.

At a Mental Health Inquiry, the Tribunal can discharge a person to the care of a Designated Carer if it determines that the person is mentally ill under the Mental Health Act 2007 (NSW) and that this is a safe, effective and less restrictive form of care to involuntary detention in hospital. This means that if you want your family member or friend to be discharged into your care as Designated Carer, you will need to explain to the Tribunal your plan for their care and treatment at home.

After an Involuntary Patient Order is made, a Designated Carer can at any time apply to the Authorised Medical Officer for a patient to be discharged into your care.

9B.8.2: Preparing for a Mental Health Review Tribunal hearing

Both the patient and their Designated Carer should be given notice that a hearing before the Mental Health Review Tribunal is happening. In practice, this may take place a few days, or even the day before, the hearing. The notice may not include the exact time of the hearing, and the patient and Designated Carer may have to be prepared to make themselves available all day. This could be challenging for some Designated Carers with work commitments.

If your family member or friend is legally represented and you want them discharged, it is essential that you speak with their lawyer as early as possible and make your views known before the Mental Health Inquiry or Involuntary Patient Review takes place. However, a lawyer is generally only assigned the day beforehand.

To find out more about how to get legal representation for your family member or friend, click here

The following are the relevant issues at the Mental Health Inquiry or Involuntary Patient Review:

  • whether or not your family member or friend has a mental illness within the meaning of the Mental Health Act 2007 (NSW).
  • whether or not your friend or family member poses a risk of serious harm because of mental illness as defined in the Mental Health Act 2007 (NSW)
  • whether or not there is a safe, effective and less restrictive alternative form of care and treatment for your family or friend.

For more information about the factors considered at a hearing with the Mental Health Review Tribunal, click here.

Arguments about a less restrictive alternative form of treatment or about a lack of risk of harm to self or others are matters to be discussed with the Mental Health Review Tribunal at a hearing.

It may be difficult to convince the Mental Health Review Tribunal that the hospital’s assessment of symptoms or diagnosis is wrong unless you have a very recent alternative diagnosis and evidence in writing from another health care professional (preferably a psychiatrist or a psychologist). However, you can provide important information about your family member or friend’s ‘baseline’ (how they normally act or think) based on what you know of them.

This can help the Tribunal to understand if your family member or friend is close to their baseline.

If you don’t think you can provide this information at short notice, you could ask the Tribunal to adjourn (delay) the hearing or ask that an Involuntary Patient Order be made and that an early review date is set, so that you can present more information to the Authorised Medical Officer or the Mental Health Review Tribunal at a later date. However, an adjournment may extend the period of time that your family member or friend will be in the public mental health facility. You should discuss this with them first before you ask for an adjournment (delay).

If you can’t get to the hearing, you can still provide your views to the hearing. For more about this, click here.

9B.8.3: Alternative care and treatment

Your willingness to help with your family member or friend’s immediate care and treatment is vital information for their lawyer to have in preparing for the Mental Health Inquiry or Involuntary Patient Review by the Mental Health Review Tribunal.

It is essential to give the lawyer detailed proposals for immediate treatment outside hospital. This is because before the Tribunal can make an Involuntary Patient Order, she or he must be satisfied that there is no other form of reasonably available care and treatment that is consistent with safe and effective care that is less restrictive than proposed by the treating team.

It is probably not enough to have a first appointment with a private psychiatrist and support workers lined up for some time in the future. What the Tribunal will want to know is what care and treatment is available if the patient is immediately discharged from the hospital. This plan should be as specific as possible. For example, you could tell the Tribunal about how you will assist the person in your care to remember to take medication or attend medical appointments, the strength of your relationship, whether you have any health training/experience and other supports available to the person.

At the beginning of the hearing, you should make it clear to the Tribunal that you want to provide information and your views about the patient’s care and treatment. You should also let the hospital know beforehand that you want to actively take part in the hearing.

If you don’t have independent written evidence of your plans for care and treatment of your family member or friend in the community, you should give the hospital advance notice of what you are going to propose. There is much more chance of early discharge if the hospital is able to discuss possible care and treatment with the proposed community healthcare provider(s) of your family member or friend. Partly because of a shortage of available beds, hospital staff are less likely to want to keep a person in hospital if the person does not want to be a patient in their hospital, you as the carer support this, and there is appropriate alternative care.

However, if the alternatives presented at the hearing are vague and the hospital argues they are not safe and/or effective, it is unlikely the Tribunal member will discharge your family member or friend on this basis.

Social workers employed by the hospital are often active in providing information about alternative care and accommodation to a Mental Health Inquiry or Involuntary Patient Review and can be a useful point of contact about these issues.

All information about the supports available to a person if discharged will assist the Tribunal make a decision about less restrictive care. Some patients in hospital already have been assessed for a NDIS package or have workers employed to support them in the community.

For more information about NDIS, click here.

9B.8.4: Adverse reactions to treatment

Relevant to the question of possible alternative care is the question of side effects of medications. Most of the psychotropic medications prescribed for mental illnesses have side-effects. However, medications affect different people in different ways. A person may also have a number of co-existing physical health conditions that affect decisions on what medication represents safe and effective treatment.

Independent written evidence about your friend or family member’s specific reaction to certain medication may be presented as relevant information supporting your argument that a less restrictive alternative to hospitalisation and the medication regime is more appropriate.

Questions about proposed medication can be asked at the Mental Health Inquiry or Involuntary Patient Review.

However, the Mental Health Review Tribunal does not have the power to order that any particular type of medication be prescribed or not prescribed to an involuntary patient. This is a clinical decision that rests with the treating team. Nevertheless, the Tribunal may ask about the treatment plan in the light of the evidence they have before them, the patient’s history available, or request further information.

A Designated Carer has a right of know the details of the medication being given to a patient under the Mental Health Act 2007 (NSW).

9B.8.5: Risk of harm and a mental illness

The Mental Health Act 2007 (NSW) requires that any risk of harm to your family member or friend or others that may be associated with your symptoms of mental illness must be ‘serious’ before they can be considered a mentally ill person. The concept of ‘serious harm’ is not defined in the Act and it is applied broadly by the Mental Health Review Tribunal.

The risk of ‘serious harm’ to your family member or friend could include risk of:

  • self-harm or suicide;
  • harm to your reputation or relationships with people who are close to them, such as family;
  • harm to their financial position, including vulnerability to financial exploitation; or
  • the potential for misadventure (for example, not being able to care for themselves, or that their behaviour may result in risk from others reacting to such behaviours).

Based on what you know of your family member or friend, you could provide information to the Tribunal about the likelihood of specific risks occurring, the circumstances in which they would occur and how they can be managed.

For example, if your family friend or member recently had mental health symptoms because of grief or a stressful event, you could explain to the Tribunal that it was an unusual event that triggered the mental health episode that is unlikely to happen again.

For more information about the concept of a risk of serious harm, click here.

9B.8.6: If you can’t be at the hearing in person

If you cannot get to a Mental Health Inquiry or Involuntary Patient Review, you can put your views and any other information in writing to the Mental Health Review Tribunal (MHRT). You can ask to be contacted by telephone during the hearing.

The NSW Mental Health Review Tribunal (MHRT) is happy to get your written views and information.

The MHRT can be contacted at:

Street address: Building 40, Digby Road
Gladesville Hospital
GLADESVILLE NSW

Postal address: PO Box 2019
BORONIA PARK NSW 2111

Phone: (02) 9816 5955
Freecall: 1800 815 511*
Fax: (02) 9817 4543
E-mail: mhrt@doh.health.nsw.gov.au

If you can’t be at the hearing, information you want to present can be presented on your behalf by a member of the hospital treating team, the patient themselves or their legal representative. If you give your written information to the hospital treating team before the hearing takes place, it should be included with the other written material (reports, medical records, assessments, etc) presented to the Tribunal by the Treating Team. Make sure, if you write something, that you make it clear, including on the document itself, that you want it to be made available to the Tribunal at the hearing.

If your family member or friend is legally represented you should contact that legal representative, either by speaking to them or by writing to them. You may also give this information to the hospital Treating Team, preferably in writing.

It is strongly recommended that if you can’t attend the Inquiry of Review in person or by phone that you put your views and other information in writing to ensure the Tribunal has that information and those views from you directly.

9B.8.7: Discharge by an Authorised Medical Officer

Under the Mental Health Act 2007 (NSW), an Authorised Medical Officer (AMO) has power to discharge an involuntary patient even if the person has not been to a Mental Health Inquiry, or after the Mental Health Review Tribunal (MHRT) has made an order to make the person an involuntary patient. If the Authorised Medical Officer is asked to discharge a person and this request is refused, that person can appeal to the Mental Health Review Tribunal against this decision.

An involuntary patient can ask the Authorised Medical Officer to discharge them, as can their carer, and a legal or other representative. The information that could be provided to the Authorised Medical Officer (or the MHRT at the Appeal) is the same as for Mental Health Inquiries and Involuntary Patient Reviews:

  • whether the person is a mental ill person within the meaning of the Mental Health Act 2007 (NSW);
  • whether the patient’s present condition presents a risk of harm to his or herself or others; and
  • whether there is a safe, effective and less restrictive alternative plan for care and treatment immediately available.
  • A person who appeals to the Mental Health Tribunal against the Authorised Medical Officer’s refusal to discharge them may be entitled to a legal aid solicitor to represent them.

To find out more about how to get legal representation for your family member or friend, click here

9B.8.8: Request for discharge by Designated Carer

The Mental Health Act 2007 (NSW) specifically states that the Designated Carer of an involuntary patient has the right to make an application to have that patient discharged into the care of the Designated Carer. Click here for the form.

The Mental Health Act 2007 (NSW) allows the Authorised Medical Officer to discharge a patient after:

  • the Designated Carer gives the Authorised Medical Officer a written undertaking (promise) that the person will be properly taken care of; and/ or
  • the Authorised Medical Officer is satisfied that adequate measures will, ‘so far as is reasonably practicable’, be taken to prevent the patient or person from causing harm to himself or herself or others.

If such a request is refused, the Designated Carer can appeal to the Mental Health Review Tribunal, see below for further information.

9B.8.9: Other options for discharge for your family member or friend

There are legal avenues for appealing decisions of the Mental Health Review Tribunal.

If you or your family member or friend are unhappy with the outcome of the Mental Health Inquiry or Review, you can appeal the decision to the Supreme Court.

Such options can cost a lot of money, as it is important to have a lawyer to represent your friend or family member in an appeal to the Supreme Court. Your family member or friend may be able to get legal aid for an appeal, and this will cover their own legal costs of the process. However, the Supreme Court can order that you or your family member or friend must pay the legal costs of the other party if you are unsuccessful.

Neither the Health Care Complaints Commission nor the Official Visitor has the power to overturn or review decisions of or the Mental Health Review Tribunal.

Involuntary patients can and often are either discharged or agree to be voluntary patients after a short time in hospital. Discharged patients are sometimes put on Community Treatment Orders (CTOs). A CTO can be made at a Mental Health Inquiry as a less restrictive form of care to an Involuntary Patient Order. After that if a CTO is sought for an involuntary patient or for a person who is not in hospital, a separate application must be made to the Mental Health Review Tribunal which will be heard by a three member panel of the Tribunal following a hearing.

Also, usually, the longer a person is an involuntary patient in hospital the more their condition is likely to be stabilised and their risk of harm to self or others reduced. This means that arguments you put forward at an earlier review by the Mental Health Review Tribunal may be more persuasive at a later review when your family member or friend’s recovery is more advanced. Therefore, it may be better to allow some time to pass, and then ask the Authorised Medical Officer or Mental Health Review Tribunal to reconsider discharge in light of your family member or friend’s recovery rather than look to appeal a decision you are unhappy about to the Supreme Court. This will depend on the specific facts of your case, and it would be a good idea to get legal advice before you make any decision about what to do.

9B.8.10: Challenging the quality of care of an involuntary or voluntary patient

You can complain to the Health Care Complaints Commission about the quality and nature of treatment and standard of care received by a person who is a voluntary or involuntary patient in a hospital.

The Official Visitor is another body that you can contact to question the standard and quality of care given to a patient in a public mental health facility. However, the Official Visitor cannot review or overturn decisions made under the Mental Health Act 2007 (NSW).

Both the Health Care Complaints Commission and the Official Visitor make a distinction between the quality of the care received in a public mental health facility and the power to detain someone against their will under the Mental Health Act 2007 (NSW). These decisions are reviewable only by the Authorised Medical Officer or the Mental Health Review Tribunal.

9B.9: Helping your family member or friend to challenge a Community Treatment Order

If you are the Designated Carer under the Mental Health Act 2007 (NSW), you should be given the opportunity to give your views about the proposed treatment plan before the Mental Health Review Tribunal decides whether or not to put your friend or family member on a Community Treatment Order (CTO). A family member or friend, who is closely involved in a person’s care and support, can also participate.

The director of a community mental health facility has to take all reasonably practicable steps should to inform the Designated Carer and the Principal Care Provider about decisions relating to a CTO. This includes decisions to apply for a CTO, vary (change) or revoke (cancel) a CTO, apply for another CTO when the existing CTO ends or to not apply for a further CTO.

The Tribunal considers the following issues in reaching its decision:

  • Has the community mental health facility put forward an appropriate treatment plan?
  • Will the consumer benefit from a CTO as the least restrictive alternative that is consistent with safe and effective care?
  • Does the community mental health facility have the capacity to implement the plan?

If your family member or friend has never been on a CTO before or have not been on a CTO in the twelve (12) months before the Inquiry, the Tribunal will also consider whether they have been previously diagnosed with a mental illness and they have a previous history of refusing to accept appropriate treatment for their symptoms.

You should try to present information to the Tribunal that is related to the points that the Tribunal will consider. For example, you may present information how about the frequency of appointments may not be the least restrictive way of treating your family member or friend because of their work commitments. You could provide information about a General Practitioner or other community supports that would be an effective alternative to what is proposed in the treatment plan. You could provide information about your knowledge of whether your family member or friend has a history of refusing to accept treatment or the reasons why they refused.

You can present your views and relevant information to the Tribunal either in person at a hearing, via telephone or by writing to the Tribunal in advance of the hearing and asking that your letter be included in the papers for the hearing.

Under the Mental Health Act 2007 (NSW), a person has a right to a have a lawyer represent them in any matter before the Mental Health Review Tribunal. However, Legal Aid is not available for all types of matters dealt with by the Tribunal. If a person cannot afford private legal representation for a matter in relation to which legal aid is not available, they will not be legally represented.

Legal representation is available through the Mental Health Advocacy Service at Mental Health Inquiries. Legal representation is not usually available in relation to other applications for a CTO after the first Community Treatment Order is made. If a person wants a Legal Aid Lawyer to assist them to oppose an application for a CTO, they need to make an application for Legal Aid and have the matter considered on its merits (strength of the legal argument). The Mental Health Advocacy Service can still provide advice about what the person can say at the Tribunal hearing.

For more information about CTOs in general, click here.

Updated August 28, 2020