CHAPTER 11 Mental health
The principles stipulate that all persons have the right to:
All of the states and territories have enshrined similar objectives into their legislation.
Legislative approach
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
Current legislative provisions
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
Certain words or conduct may not indicate mental illness or disorder
[Reference to chapter in this subsection is a reference to Chapter 3of the Mental Health Act.]
Admission to and detention in a designated hospital under the New South Wales Act
The definition of hospital under the Act
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
Establishment of hospitals other than authorised hospitals
under the 1958 Act is to be taken to be a hospital for the purposes of this Act.
Admission to a hospital
Admission of voluntary patients
Informal patient under 16 years of age
Informal patient of 14 or 15 years of age
Admission etc. of person under 14 years of age
Admission of involuntary patients
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:
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
On order of the court (section 25)
A person may be taken to and detained in a hospital in accordance with an order made under section 33 of the Mental Health (Criminal Procedure) Act 1990, where the magistrate is of the opinion that the person appearing before him or her is a mentally ill person, and orders the person to be taken by the police to a psychiatric hospital for assessment.
Following order for medical examination (section 27)
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
Detention of a mentally disordered person
Detention of a mentally ill person
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 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.
What is the Mental Health Review Tribunal?
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
Composition of the tribunal
The composition of the tribunal is drawn from:
Procedure of the tribunal
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