Mental health

CHAPTER 11 Mental health


In the development of modern day healthcare systems overborne by advances in science and technology, the provision of care and treatment for people suffering from what is generally referred to as mental illness has had a chequered and somewhat shameful history. From the early beginnings of European settlement in Australia until comparatively recent times the provision of mental health services for those in need has been characterised by social stigma, community rejection and custodial institutional care. For example, until 1958 the relevant legislation concerning the legal status, care and control of persons deemed to be mentally ill in New South Wales was known as the Lunacy Act.


Fortunately the last 20 years or so has seen considerable progress in mental healthcare and treatment. The community at large is slowly recognising that mental health is as important as physical health in the development of better individual and community health strategies. In addition, a lot of the stigma attached to mental illness is slowly being eroded by public education and informed debate. There has also been a move in some states and territories to separate the care of the mentally ill from those deemed to be developmentally disabled (intellectually handicapped or intellectually disabled are also phrases used) where that is able to be done. More and more, where the patient’s condition permits, mental healthcare is moving away from long-term institutional care to community care and treatment. As a result, mental health legislation in some states and territories is now reflecting that trend, providing for a variety of community-oriented care and treatment orders.


The framework for the provision and regulation of mental health services is embodied in legislation. Over the past decade all of the states and territories have committed themselves to a review of their mental health legislation. This commitment was contingent on the states and territories enacting legislation consistent with the United Nation’s Principles for the Protection of Persons with Mental Health Care, the Australian Health Minister’s Mental Health Statement of Rights and Responsibilities, and the National Mental Health Plan.


The abovementioned United Nation’s Principles were adopted by resolution of the United Nation’s General Assembly in 1991. The Australian Government was a major contributor in drafting the principles.


The principles stipulate that all persons have the right to:







There are also more detailed specific provisions contained within the principles, asserting matters such as restrictions on involuntary detention, the right to judicial review of detention as well as the objection of the least restrictive environment for treatment purposes.


The National Mental Health Statement of Rights and Responsibilities was adopted by all states and territories in 1991. The statement essentially restates the rights and objectives encompassed within the United Nation’s Principles. To support the National Mental Health Statement the states and territories endorsed the National Mental Health Plan in 1992. The aims of that process are to:






It was as a result of all of the above activities and agreement that there has been significant changes in mental health legislation in each of the states and territories over the past 15 years.


As is common with most healthcare legislation in Australia, such legislation varies from state to state and territory — none more so than in relation to mental health. Most states and territories now have separate, but complementary, legislation in relation to people with intellectual or other disabilities as distinct from mental illness. South Australia deals with intellectual disability as well as traditional psychiatric illness in its mental health legislation. In the Australian Capital Territory the distinction is not specifically addressed and is presumably left to the treating psychiatrist or officially determined guidelines to determine who does or does not come under the provisions of the legislation for the purposes of determining treatment.


Whatever legislative mechanism is in place, each of the states and territories has sought to provide a framework for the care and treatment of the mentally ill. All of the states and territories are quite clear and specific in their legislative objectives, based predominantly on the principles identified in the documents above. For example, section 4 of the New South Wales Mental Health Act 1990 spells out the objectives of the Act in relation to the care, treatment and control of mentally ill and mentally disordered persons as follows:



All of the states and territories have enshrined similar objectives into their legislation.



Legislative approach


The legislation in each of the states and territories tends to follow a similar pattern by making provision, to a greater or lesser degree, under the following relevant subject areas:







A detailed summary of, and comments on, the New South Wales Mental Health Act follows, highlighting the most important areas for nursing staff, particularly in relation to the abovementioned subject areas. The major differences between the New South Wales legislation and each of the other states’ and territories’ legislation are then outlined. Accordingly, the summary of the New South Wales Act should be studied carefully and the major differences in the respective state and territory legislations noted.



New South Wales: Mental Health Act 1990


The current New South Wales legislation represents a number of years of tortuous community debate and legal confusion as to which particular piece of legislation or part of it was applicable for the purposes of the care and treatment of the mentally ill in New South Wales. The current Act was finally proclaimed to commence operation in June 1990. It has been amended on a number of occasions.




Current legislative provisions


A summary of and comment on the most important areas of the New South Wales Mental Health Act 1990 (as amended) follows. As always, nurses working in the area of mental health should take the time to read the legislation and become familiar with it.





Mentally ill person


Section 9 of the Act, as amended in 1997, defines such a person as follows:



Remember the important thing to note here is that the New South Wales Act distinguishes between a person who has a mental illness and a person who is mentally ill. What that means is that a person who has a mental illness cannot be automatically classified as being mentally ill. In other words, the definition of mental illness has to be read in conjunction with the definition of mentally ill persons. Accordingly, for a person to be deemed to be a mentally ill person in New South Wales the following criteria have to be satisfied:




Mentally disordered person


In addition to defining mental illness and mentally ill persons the New South Wales Act also provides for a category of person described as mentally disordered persons. Section 10 of the Act defines this category:



Note the emphasis that is given in this definition to irrational behaviour ‘for the time being’ such that ‘temporary’ care, treatment and control is necessary.


This category is intended to deal with those persons who are not mentally ill as defined in the Act (they may have a mental illness) but whose behaviour is temporarily irrational and a danger to themselves or others. The best example of a mentally disordered person would be a person suffering a severe personal traumatic crisis in a social or domestic situation where they are unable to control their emotions and may become suicidal. To qualify as a mentally disordered person under the Act the following criteria have to be satisfied:



It is important to note that the Act does not attempt to define ‘irrational behaviour’ — so it would be a matter of determining whether a person’s behaviour was irrational or otherwise having regard to the ordinary use and understanding of the word and the context of the person’s behaviour on any particular occasion.


The New South Wales Act also goes to some lengths to define behaviour which does not of itself constitute mental illness. Such provision is to be found in section 11 of the Act:



Certain words or conduct may not indicate mental illness or disorder


Section 11.




[Reference to chapter in this subsection is a reference to Chapter 3of the Mental Health Act.]


The intention of section 11 is to ensure that a person whose beliefs or behaviour might be considered socially unacceptable or generally not tolerated is not a mentally ill person and therefore cannot be involuntarily detained in a hospital. It should be noted, however, that subsection (2) of section 11 does provide that a person who suffers a psychiatric illness as a result of long-term drug or alcohol intake can be deemed to have a mental illness within the meaning of the Act.



Admission to and detention in a designated hospital under the New South Wales Act



The definition of hospital under the Act


The New South Wales Act does not refer to the term ‘psychiatric hospital’ as such but prefers the terminology of:




Given that the Act chooses to refer simply to the generic word hospital rather than qualifying it by reference to a ‘mental health’ or ‘psychiatric’ hospital, confusion can arise for the uninitiated on a first glance reading of the Act. Many health professionals tend to refer to hospitals by a qualifying reference — for example, a children’s hospital or an obstetric hospital. A reading of the Act without understanding the meaning of the word ‘hospital’ under the Act could give the impression that a mentally ill or mentally disordered person can be admitted to and detained in any hospital. That is not so. Confusion is compounded when regard is had to a person in a rural or remote area who may require admission to a ‘psychiatric’ hospital for care, treatment and control. In many cases the person has to be admitted to the local hospital for care, treatment and control in the first instance while arrangements are made to transport the person to a hospital designated under the Act. By not clarifying ‘hospital’ more specifically under the Act as being a mental health or psychiatric hospital, misunderstanding and confusion has arisen. This is particularly so amongst health professionals not involved on a daily basis with the Mental Health Act but who are required to deal with patients under the Act from time to time.




Hospitals other than authorised hospitals


These are premises which are deemed to be a hospital for the purposes of the Act by order of the Director-General of Health. Provision for the establishment of these hospitals is provided in section 208 of the Act as follows:



Sections 209 and 210 allow for the appointment of a medical superintendent and deputy medical superintendent by the Director-General. Such power of appointment is discretionary.


The way in which particular premises of a large health service are designated to be a hospital under section 208 is by an order published in the Government Gazette signed by the Director-General of Health. For example, the New South Wales Government Gazette of 5 May 2006 contained, amongst others, the following notice:



Similar such notices have been and are inserted from time to time for the purposes of designating a particular premises, or part of a larger health service, as a hospital under the Mental Health Act.


The Act also makes provision for the designation of mental hospitals and admission centres which were in existence at the time the 1990 Act was proclaimed. Reference to this is to be found in Schedule 7, Savings, Transitional and Other Provisions, in particular section 4 as follows:



Finally, the definition of hospital to be found in Schedule 1, Dictionary of Terms Used in the Act, encompasses both authorised hospitals and hospitals designated under section 208. The definition says that, under the Act, hospital means:





Admission to a hospital


Persons admitted to a designated hospital in New South Wales fall under one of two categories, namely:





Admission of voluntary patients


Voluntary patients are those patients who are admitted to a hospital at their own request and may leave when they want to or when they are well enough to be discharged. In the New South Wales Act voluntary patients are referred to as informal patients. The Act makes provision for the process to be followed for admission and discharge of a person as an informal patient. The particular provision for a person over 16 years to admit himself or herself as an informal patient is relatively straightforward (see section 12). Care has to be taken, however, in the admission of persons under 16 years of age and those persons who are under guardianship within the Guardianship Act 1987. The relevant sections are 12–16 inclusive.


Admission on own request



Section 12.




Informal patient under 16 years of age


Section 13.


If a person under the age of 16 years is admitted to a hospital as an informal patient, the medical superintendent must, as soon as practicable after admission, do all such things as are reasonably practicable to notify the person’s parents or guardian of the person’s admission.


Informal patient of 14 or 15 years of age


Section 14.


If a parent or the guardian of a person of 14 or 15 years of age who has been admitted to a hospital as an informal patient notifies the medical superintendent that he or she objects to the persons receiving care or treatment at the hospital, the medical superintendent must discharge the person unless the person elects to continue as an informal patient.


Admission etc. of person under 14 years of age


Section 15.




Persons under guardianship


Section 16.




It is important to note that in sections 14, 15 and 16 the objection of a parent or guardian to the detention of a person as an informal patient in hospital is sufficient to compel the medical officer to discharge the person or not admit them in the first instance — unless the person is 14 or 15 years of age and elects to continue as an informal patient (see section 14).


It is possible that a medical officer may refuse to admit a person as an informal patient if the medical officer is not satisfied that the person is likely to benefit from the care or treatment (section 17).


A person who requests and is refused admission as an informal patient or who believes they have been inappropriately discharged may seek a review of that decision in accordance with the provisions of section 19. This is not a formal appeal mechanism but simply a provision requiring the medical superintendent to review the decision of another medical officer.




Admission of involuntary patients


An involuntary patient is a person who is admitted and detained in a hospital for the purposes of receiving care, treatment and control either against the person’s wishes or on the request of a specified other person or a court order. A person may be admitted and detained as an involuntary patient either on the grounds that the person is a mentally ill person or a mentally disordered person as defined in the Act.


An overriding consideration in determining the need of ‘care, treatment or control’ for a mentally ill person or a mentally disordered person is whether such a person, as part of that ‘care, treatment or control’, requires admission and detention in a hospital. The emphasis in the Act is to use admission and detention only as a last resort rather than the first principle of care. Section 20 under Part 2 of the Act, which deals with the issue of involuntary admission to hospitals, reads as follows:



It follows, therefore, that a mentally ill person or a mentally disordered person will only be involuntarily detained in a hospital if it is considered that ‘no other care of a less restrictive kind is appropriate and reasonably available to the person’.


Regardless of whether the person is a mentally ill person or a mentally disordered person, admission of an involuntary patient to a hospital for care and treatment can be done in one of the following six ways.3








Following order for medical examination (section 27)


If a magistrate is satisfied, by evidence on oath, that a person may be a mentally ill person or a mentally disordered person, and that because of physical inaccessibility the person could not be personally examined, the magistrate may, by order, authorise a medical practitioner and any other persons (including a member of the police force) who may be required to assist the medical practitioner to visit and to personally examine or observe the person. A person so authorised may enter the premises, if need be by force, in order to enable the examination or observation to be carried out.


In many cases, particularly in country areas, a person may be admitted to the local hospital in the first instance for immediate assessment, care and control. The local medical practitioner will then complete a certificate in accordance with Schedule 2 of the Act that, in his or her opinion, the person is a mentally ill or mentally disordered person and should be detained in a hospital (otherwise referred to in the Act as an authorised hospital). It is then necessary for the person to be transferred to an authorised hospital for assessment and, if considered necessary in accordance with the Act, care and detention for a specified period of time.


Once the person has been brought to the hospital for admission in accordance with one or other of the above procedures, specific provisions exist in the Act which set out the steps which must then be followed. In the first instance, section 28 provides that:



Remember also the overriding provisions of section 20 already referred to — that is, that a person must not be admitted and detained in hospital unless the medical superintendent is of the opinion that the person is mentally ill or mentally disordered and no other care of a less restrictive kind is appropriate and reasonably available to the person. Bearing in mind that proviso, the following is a summary of the eight preliminary steps that must be taken to involuntarily detain a person in a hospital (see sections 29 to 37A of the Act inclusive).4


Examination at the hospital












Detention of a mentally ill person


If the person is certified as a mentally ill person, steps must be taken to bring the person before a magistrate ‘as soon as practicable’ (section 38(1)). The purpose of the magistrate’s hearing is to inquire into and confirm or overrule the initial decision that the person is mentally ill and the subsequent period of detention and care to be given.


There are specific legislative provisions which must be followed preparatory to bringing a person before a magistrate. Again, a summary of these legislative provisions follows (see sections 38–40 of the Act).5







The inquiry before a magistrate is required to be conducted in such a way so as to ensure that the person is afforded every possible assistance as well as independent and proper legal representation. If the magistrate is not satisfied that due notice and all that could reasonably and practicably be done in that regard has been done the magistrate can adjourn the inquiry for a period not exceeding 14 days (section 42).


The legislative provisions relating to the proper conduct of a magistrate’s inquiry are summarised below (sections 41–50).6














Following the inquiry the magistrate is required to determine, on the balance of probabilities, whether or not the person is mentally ill. Reference to the phrase ‘on the balance of probabilities’ is simply reference to the standard of proof in civil law matters as explained in Chapter 1of this text.


If the magistrate is satisfied, after hearing the evidence, that the person is a mentally ill person, the following care and detention provisions are available for the magistrate to consider (section 51):





Conversely, if after hearing the evidence the magistrate is not satisfied that the patient is a mentally ill person, the following options are available for the magistrate to consider (section 52):





It is perfectly possible of course that the person under review may elect to remain in hospital for care and treatment. If so, he or she would be admitted as an informal (that is, voluntary) patient, and the relevant provisions would apply.


If the magistrate decides to order that the person be detained as a temporary patient for a specified period of time not exceeding 3 months, a number of things must occur.






What is the Mental Health Review Tribunal?


It would not be surprising if, at this point, readers were asking themselves the above question. Given that reference to the tribunal intrudes into the Act flowing from a magistrate’s decision that a person is mentally ill, it is timely to set out the role, functions and composition of the Mental Health Review Tribunal under the New South Wales Act.


The tribunal is a quasi-judicial body set up under the provisions of the Mental Health Act 1990. Its major role is to be an independent review and appeal body in relation to the determination and treatment of mentally ill persons both at civil and criminal law, explained in the following point form.7
















Procedure of the tribunal


In undertaking its role the tribunal is obliged to observe the basic rules of natural justice; that is:




The Act quite specifically provides that the proceedings of the tribunal are to be conducted ‘with as little formality and technicality, and with as much expedition’ as can be achieved (section 267(1)). The tribunal is not bound by the rules of evidence (section 267(2)) and may call upon any person it considers relevant to assist in any matter to be determined (section 267(3)).


The Act goes to considerable lengths to ensure that the proceedings of the tribunal are fair, open and proper in every respect. Accordingly the Act provides:8





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Dec 3, 2016 | Posted by in NURSING | Comments Off on Mental health

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