30-08-10
Catherine Henry Partners Lawyers Newcastle
In 2006 the Commonwealth Government released a report entitled A National Approach to Mental Health – From Crisis to Community. The report set out recommendations in relation to increasing funding for mental health services, guaranteeing a right to access services, strengthening consumer advocacy and increasing community health and treatment facilities. Following the report, some changes were made to legislation to reflect these aims.
What is the legislation?
The Mental Health Act 2007 (NSW) is the legislation which governs treatment of people with mental illness in NSW hospitals and community settings.
Its stated aim is to protect the rights of people with mental illness or mental disorder whilst ensuring they have access to appropriate care.
The legislation states that individuals with mental illness should receive the best possible care in the least restrictive environment. There is also an emphasis on carers being involved in care, treatment and control of the mentally ill as well as clear focus on rehabilitation of the mentally ill.
What are the criteria for involuntary admission?
Only patients who satisfy the definition of mental illness or mental disorder can be kept on an involuntary basis. Determining mental illness demands that:
- The person is mentally ill
- As a result of that mental illness there is risk of serious harm
- Risk of harm (to self or others) is a direct result of the illness.
If a patient ceases to be mentally ill they are entitled to leave the mental health facility?
A person is deemed to be mentally disordered if their behavious is so irrational as to justify the conclusion on reasonable grounds that temporary care, control or treatment of the person is necessary to prevent serious physical harm to themselves or others.
How is mental illness defined?
“Mental illness” is characterised by one or more of these symptoms:
- delusions
- hallucinations
- serious disorder of thought form
- severe disturbance of mood
- sustained or repeated irrational behaviour indicating presence of symptoms listed above.
The patient’s condition is assessed by:
- Their state at the moment of examination
- Manifestation of one or more of the required symptoms in the recent past.
Are there certain behaviours that are not considered indicative of mental illness or disorder?
The legislation specifically sets out a number of behaviours which, on their own, are not considered indicative of mental illness. These include where the person:
- expresses a particular political or religious belief or engages in a particular political or religious activity;
- expresses a particular sexual preference or orientation or engages in sexual promiscuity;
- engages in immoral or illegal conduct;
- engages in anti-social behaviour;
- has a developmental disability of mind;
- has taken alcohol or another drug;
- has a particular economic or social status or belongs to a particular cultural or racial group.
What happens after involuntary admission?
Within twelve hours of admission, the hospital must arrange a medical assessment.
A certificate must be completed by a doctor indicating the person is mentally ill and that no care other than hospital treatment is appropriate and available.
A second examination must then be completed by a psychiatrist as soon as possible to assess the decision.
Both an oral and a written explanation of the patient’s rights must be given to the patient as soon as practicable after admission.
Once each of these steps has been taken s/he must be brought before a single (legal) member of the Mental Health Review Tribunal for a ‘mental health inquiry’ as soon as practicable.
The primary carer of a person detained in a mental health facility must be notified within 24 hours of the person being detained.
If the patient is found to be mentally disordered (not mentally ill), then s/he may only be kept for a continuous period of three days, not including weekends and public holidays, and does not need to come before the Tribunal.
Mental Health Inquiry
At the hearing, the patient is:
- to wear street clothes
- to be given as little medication as possible
- entitled to legal representation.
Where it is concluded the patient is mentally ill and that no less restrictive care is appropriate, the Tribunal can make a temporary patient order for up to three months.
There is a right to appeal to the full panel of the Mental Health Review Tribunal.
Continuation of involuntary treatment
If the patient is likely to have his/her period of treatment extended, s/he must be brought before the full panel of the Mental Health Review Tribunal prior to expiration of the original order.
The Tribunal is a panel of three:
- the Chair, a lawyer
- a psychiatrist
- a community representative.
The primary carer of a person appearing before the Tribunal may, with the approval of the Tribunal, appear at the Tribunal.
What other decisions can be made by the Mental Health Review Tribunal?
The Tribunal may decide whether a course of electro-convulsive therapy is appropriate in the circumstances of a particular patient.
The Tribunal may also give consent for a patient to undergo surgery where the person themselves is incapable of giving consent and it is desirable and in the persons interests for them to have the surgery.
What are Community Treatment Orders?
A Community Treatment Order is a legal order requiring people in the community to receive treatment for up to 12 months.
A doctor, director of community treatment facility or the primary carer can apply for a CTO.
Fourteen days written notice of an application for a CTO must be given to the affected person if they are not in hospital.
The CTO may be made where:
- no other less restrictive care is appropriate
- a treatment plan is available which can be readily implemented
- the person was previously diagnosed with a mental illness
- the person has a history of refusing to accept treatment
- refusal of treatment lead to a relapse justifying involuntary admission
- care and treatment improved symptoms.
If a patient on a community treatment order (CTO) refuses or discontinues treatment, the patient may be readmitted to hospital.
Mental illness does not need to be proved to obtain a CTO.
Are there treatments that are not allowed?
The legislation prohibits the following types of treatment:
- deep sleep therapy
- insulin coma therapy
- psychosurgery.
In addition, a doctor must not administer drugs in a dosage that is inappropriate or excessive.
When can a person be discharged from a mental health facility?
A person may be discharged from a mental health facility when:
- a CTO order is made about the person;
- the person requests discharge and the doctor agrees;
- the primary carer requests discharge and provides the doctor with a written undertaking that the person will be properly taken care of and the doctor is satisfied that adequate measures will be taken to prevent the person causing harm to themselves or others.
Where a request for discharge is refused, the person may appeal to the Tribunal.
Can a person be admitted to a mental health facility voluntarily?
Yes. A person may be admitted to a mental health facility on their own request but they may also be refused admission where the doctor is not satisfied that the person is likely to benefit from care or treatment as a voluntary patient. A voluntary patient may discharge themselves or leave a mental health facility at any time.
What is the role of a ‘primary carer’?
The primary carer is:
- the guardian or parent of a child
- the person nominated by a patient over the age of fourteen
- any person providing support or care if no one has been nominated – usually a spouse, close friend, or relative.
The Primary Carer must be notified of or consulted on:
- details of medication and dose
- detention of person
- any mental health inquiry
- changes in status, that is the person:
- absconds
- is transferred
- is discharged
- becomes voluntary patient
- proposed electro-convulsive therapy or surgery.
The primary carer can apply for a CTO, discharge of patient, or detention of a person.
How can Catherine Henry Partners Help?
Our experienced team of health and medical lawyers at Catherine Henry Partners can assist you with expert advice and legal support on your options.
Catherine Henry Partners are well known and highly respected in the health law arena with specialist knowledge accumulated over many years.
Back