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:

the best available mental healthcare;

be treated with humanity and respect for the inherent dignity of the human person;

protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment;

be free of discrimination;

exercise all civic, political, economic, social and cultural rights.

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:

set a clear direction for the future development of mental health services in Australia;

promote the mental health of Australians and, where possible, prevent the development of mental health problems and mental disorders;

reduce the impact of mental disorders on individuals, families and the community; and

establish a framework to ensure the rights of people with mental illness are protected.

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:

(1) The objects of this Act in relation to the care, treatment and control of persons who are mentally ill or mentally disordered are:

(a) to provide for the care, treatment and control of those persons; and

(b) to facilitate the care, treatment and control of those persons through community care facilities and hospital facilities; and

(c) to facilitate the provision of hospital care for those persons on an informal and voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis; and

(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care.

(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act is, as far as practicable, to be performed or exercised so that:

(a) persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given; and

(b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.

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:

definition of what persons come within the legislation for the purposes of care, treatment and control;

the process which must be followed to admit, detain and treat persons under the legislation;

provision for the types of treatment which may be given under the legislation and the processes to be followed to do so;

the recognition of fundamental rights of persons admitted, detained and treated under the legislation; and

provision of appropriate review and appeal mechanisms to ensure that persons are not inappropriately detained in hospital and, that while they are in hospital, their civil rights are protected.

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.

The New South Wales Mental Health Act 2007

In 2006, a new Mental Health Bill was introduced into parliament. It was the result of considerable community consultation and debate and is intended to replace the 1990 Act.

The second reading speech formally introducing the new Bill was given on 22 November 2006. Before the Bill could be debated and passed by the parliament, the parliament was prorogued at the end of 2006 in preparation for a state election in March 2007. As a consequence, the Bill formally lapsed.

The Bill was subsequently reintroduced in May 2007 and passed through the parliament in June 2007. It was assented to on 15 June 2007. No proclamation date had been given at the time of going to press and it is unclear as yet when the Bill will commence operation as the Mental Health Act 2007.

While most of the fundamental aspects of the 1990 Act have been retained in the proposed new Mental Health Act 2007, there are changes in a number of areas — most notably patient and carer rights and in relation to the forensic mentally ill.

A summary of the proposed changes intended to be made by the Bill when it is proclaimed as the Mental Health Act 2007 are included at the conclusion of this section. Until the new Act is proclaimed the Mental Health Act 1990 will continue to operate as the relevant mental health legislation in New South Wales.

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.

Definitions

Most legislation will, as a matter of course, have a section of relevant definitions at the commencement of the legislation or as a dictionary at the end of it, in the form of a schedule. In the New South Wales Act relevant definitions are set out in Schedule 1 at the end of the Act, titled ‘Dictionary of Terms Used in the Act’. Section 3 of the Act simply lists the words to be defined and refers the reader to Schedule 1 for the relevant definition.

Probably the most important consideration in mental health legislation is knowing how mental illness is defined. This understanding is necessary to ensure that people are not wrongly detained and/or treated under the provisions of the Act and their civil liberties overruled. The New South Wales definitions relevant to this issue are:

mental illness

mentally ill person

mentally disordered person

conduct which may not indicate mental illness or disorder.

The New South Wales Act is somewhat unusual in that it distinguishes between mental illness and a person who is mentally ill. In other words, a person may have a mental illness but not necessarily be mentally ill — as the definition makes clear. Also, the Act makes provision for a person who is mentally disordered as distinct from mentally ill. Such a distinction is important to understand as the detention provisions are quite different. Details of the relevant definitions and comment follow.

Mental illness

This definition is to be found in Schedule 1 in the Act, Dictionary of Terms Used, and reads as follows:

mental illness means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a) delusions;

(b) hallucinations;

(c) serious disorder of thought form;

(d) a severe disturbance of mood;

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

It is important to note that the definition does not include any reference to dementia or developmental disability. The intention is that such conditions are not recognised as a mental illness for the purposes of the New South Wales Act unless they are accompanied by any of the above symptoms. If not, then such people are provided for under specific guardianship laws and in New South Wales the relevant legislation is the Guardianship Act 1987. The latter legislation and the Mental Health Act are intended to be complementary. For example, section 5(c) of the Mental Health Act states that one of the administrative objects of the Act is:

… to complement the operation of the Guardianship Act 1987, but not, except as provided by that Act, to affect the operation of that Act.

Mentally ill person

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

(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious harm;

or

(b) for the protection of others from serious physical harm,

(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.

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:

(i) the person must be suffering from a mental illness as per the definition in Schedule 1 of the Act; and

(ii) there are reasonable grounds for believing that care, treatment and control of the person is necessary for the protection of the person or others from serious harm; and

(iii) the continuing condition of the person including any likely deterioration and the likely effects of such deterioration is to be taken into account as provided in subsection 9(2) of the definition of mentally ill person.¹

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:

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious physical harm; or

(b) for the protection of others from serious physical harm.

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:

(i) the person must be displaying irrational behaviour (not necessarily a mental illness); and

(ii) as a result of that behaviour there is a significant risk of serious physical harm to the person or others; and

(iii) temporary care, treatment and control is considered necessary.²

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.

(1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following:

(a) that the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief;

(b) that the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief;

(c) that the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy;

(d) that the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation;

(e) that the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity;

(f) that the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity;

(g) that the person engages in or has engaged in sexual promiscuity;

(h) that the person engages in or has engaged in immoral conduct;

(i) that the person engages in or has engaged in illegal conduct;

(j) that the person has developmental disability of mind;

(k) that the person takes or has taken alcohol or any other drug;

(l) that the person engages in or has engaged in antisocial behaviour.

(2) Nothing in this Chapter prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind.

[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:

authorised hospitals, and

hospitals other than authorised hospitals.

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.

Authorised hospitals

Reference to authorised hospitals is to be found in Part 1, Division 2 of the Act, specifically section 211 to section 225.

In essence, authorised hospitals are those hospitals which have applied for a licence to admit, care and treat patients who come under the provisions of the Mental Health Act. The sections referred to above deal with the procedure to be followed in granting a licence under the Act and the conditions applying to the granting of a licence. For example, section 219 sets out the medical services to be provided if a licence is granted to an authorised hospital as follows:

The holder of a licence must make such arrangements as may be approved by the Director-General for the provision of medical services to patients in the authorised hospital.

The conditions applying to the granting of a licence to an authorised hospital under the Act apply to both public and private hospitals.

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:

Establishment of hospitals other than authorised hospitals

Section 208.

(1) The Director-General, by order published in the Gazette:

(a) may declare any premises specified or described in the order, being premises to which this section applies, to be a hospital; and

(b) may, in the same or another order so published, assign a name to the premises so specified or described.

(2) The Director-General may, by order published in the Gazette, change the name assigned to any premises specified or described in such an order.

(3) Premises to which this section applies are:

(a) premises which belong to or are under the control of the Crown or a person acting on behalf of the Crown; and

(b) a hospital under the control of an area health service constituted under the Health Services Act 1986; and

(c) (Repealed)

(d) where the person to whom premises belong or who has control of premises, by an instrument in writing given to the Director-General, agrees to the premises being premises to which this section applies — those premises.

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:

Mental Health Act 1990

Order under section 208

I, Robert McGregor AM, Acting Director-General of the New South Wales Department of Health, acting pursuant to section 208 of the Mental Health Act 1990 DO HEREBY DECLARE the “Blue Mountains District Anzac Memorial Hospital”, composed of the premises known as the Blue Mountains Mental Health Unit, to be a hospital for the purposes of the Mental Health Act 1990.

Signed, this 19^th day of April 2006.

ROBERT McGREGOR, AM,

Acting Director-General

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:

Hospitals

Section 4.

(1) a place which was, immediately before the appointed day:

(a) an admission centre; or

(b) a mental hospital,

under the 1958 Act is to be taken to be a hospital for the purposes of this Act.

(2) A place which was, immediately before the appointed day, an authorised hospital under the 1958 Act is to be taken to be an authorised hospital for the purposes of this Act.

(3) A licence in force, immediately before the appointed day, under section 11(1) of the 1958 Act is to be taken to be a licence issued under section 212 of this Act.

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:

(a) any premises the subject of an order in force under section 208 by which the premises are declared to be a hospital; or

(b) an authorised hospital.

Admission to a hospital

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

1. voluntary

2. involuntary.

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.

(1) A person may be admitted to a hospital as an informal patient on an oral or a written application made by the person to the medical superintendent.

(2) A person under guardianship within the meaning of the Guardianship Act 1987 may be admitted to a hospital as an informal patient on an oral or a written application made by the person’s guardian to the medical superintendent that is approved in writing by the Guardianship Tribunal constituted under that Act either before the application is made or as soon as practicable after it is made.

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.

(1) A person under the age of 14 years must not be admitted to a hospital as an informal patient if, at or before the time at which the person seeks to be so admitted, a parent of the person has notified the medical superintendent that he or she objects to the persons being so admitted.

(2) If a parent of a person under the age of 14 years 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.

Persons under guardianship

Section 16.

(1) A person under guardianship within the meaning of the Guardianship Act 1987 must not be admitted to a hospital as an informal patient if, at or before the time at which the person seeks to be so admitted, the guardian of the person has notified the medical superintendent that he or she objects to the person being so admitted.

(2) If the guardian of a person under guardianship within the meaning of the Guardianship Act 1987 who has been admitted to a hospital as an informal patient notifies the medical superintendent that he or she objects to the person receiving care or treatment at the hospital, the medical superintendent must discharge the person.

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.

Review of care and discharge of informal patients

If an informal patient should remain in hospital for a continuous period in excess of 12 months, their case must be brought to the attention of the Mental Health Review Tribunal by the medical superintendent and the tribunal must review the case (for an explanation of the tribunal see the section below titled ‘What is the Mental Health Review Tribunal?’). In undertaking that review and if considered appropriate, the tribunal may order the discharge of the patient and may defer the discharge of the patient for a period not exceeding 14 days (section 63).

An informal patient may, at any time, discharge himself or herself from a hospital or leave a hospital (section 65).

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:

Detention of persons generally

A person must not be admitted to, or detained in or continue to be detained in, a hospital under this Part unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person.

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

On the certificate of a medical practitioner (section 21)

A person may be taken to and detained in hospital (other than an authorised hospital) on the certificate of a medical practitioner or an accredited person. The certificate is to be in the form as set out in Schedule 2 of the Act. The schedule is valid for 5 days for a mentally ill person and 1 day for a mentally disordered person.

An accredited person is defined in the dictionary of the Act as any person appointed under section 287A of the Act. That section permits the Director-General of Health to appoint a person as an accredited person for the purposes of sections 21 or 27 of the Act.

On request of relative or friend (section 23)

A person may be detained in a hospital (other than an authorised hospital) on a written request made by a relative or friend of the person to the medical superintendent on the basis that the medical superintendent is satisfied that, because of the distances required to be travelled in order to have the person examined by a medical practitioner and the urgency of the circumstances, it is not reasonably practicable to have the person scheduled by a medical practitioner.

After apprehension by police (section 24)

The police may apprehend a person and take the person to hospital if they have found the person in a public place and are of the opinion that the person is mentally disturbed and the police believe the person has recently attempted to kill himself or herself or will try to kill himself or herself or will attempt to cause serious bodily harm to himself or herself or is committing an offence or has recently committed an offence and the police believe it would benefit the welfare of the person to be dealt with under mental health law.

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.

On information of welfare officer (section 26)

A person may be detained in a hospital if the person is accompanied to the hospital by a welfare officer who, in writing, informs the medical superintendent that he or she believes the person to be a mentally ill person or a mentally disordered person.

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:

The medical superintendent must refuse to detain a person under this Division if the medical superintendent is of the opinion that the person is not a mentally ill person or a mentally disordered person.

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

1. The first examination must occur as soon as practicable but not more than 12 hours after the person’s arrival at the hospital. If the person is not found to be a mentally ill person or a mentally disordered person, he or she must not be further detained.

2. Minimum medication is to be prescribed consistent with proper care to ensure that the person can communicate adequately at any subsequent inquiry.

3. Before certifying a person as a mentally ill person or a mentally disordered person, the medical superintendent is to inform the person of their legal rights and entitlements, both orally and in a written statement in the prescribed form as set out in the Mental Health Regulations.

4. A second examination must occur as soon as practicable and must be done by a psychiatrist, if the person who did the first examination was not a psychiatrist.

5. In the case of a disagreement between the two examinations, a third examination must be done by a psychiatrist.

6. A medical practitioner on whose certificate or request a person has been admitted to a hospital may not conduct any of these examinations.

7. If persons brought in by the police are found not to be mentally ill or mentally disordered persons they are to be returned to their custody within one hour after examination. If the police do not take custody of the person within one hour, the person must be released.

8. Where a person is brought by police to an authorised hospital to be assessed pursuant to an order under section 33(1)(b) of the Mental Health Criminal Procedure Act 1990 and is found not to be mentally ill or mentally disordered, the person is to be released into the custody of a police officer as soon as practicable.

Detention of a mentally disordered person

Once the initial examination provisions have been undertaken as prescribed in the Act and the medical superintendent is satisfied that the person is mentally ill or mentally disordered, the following actions in relation to continued detention and care are to be taken depending on whether the person is believed to be a mentally ill person or a mentally disordered person. If the person is certified to be a mentally disordered person the Act distinguishes the type and duration of detention which may apply to such persons as distinct from a mentally ill person.

The relevant detention provisions applying to a mentally disordered person are to be found in section 35 of the Act, summarised as follows:

a mentally disordered person must not be detained for a continuous period in excess of 3 days (not including weekends and public holidays);

the person must be examined at least once every 24 hours by the medical superintendent or a nominated medical officer;

a person must not be admitted or detained as a mentally disordered person on more than three occasions in any one month.

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

1. The medical superintendent must give notice to the following persons with respect to the magistrate’s hearings:

a. the nearest relative, if there is one, of the person or a relative nominated by the person

b. the person’s guardian

c. any personal friend or friends of the person up to two in number.

2. Notice need not be given to the nearest relative or any personal friend of the person (if the person objects to it being given).

3. The medical superintendent is to ensure that, so far as is reasonably practicable, a person brought before the magistrate is to be dressed in street clothes.

4. The medical superintendent is to make all such arrangements as may be necessary to ensure that all appropriate medical witnesses appear before the magistrate and that any other relevant medical records be made available.

5. Steps should be taken to obtain a competent interpreter if the person is unable to communicate adequately in English but is able to communicate adequately in another language.

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

1. An inquiry is open to the public, unless objected to by the person or the person’s representative and the objection is upheld by the magistrate.

2. The patient is to be represented by a legal practitioner or person of his or her choice (with leave of the magistrate) unless the person decides that he or she does not want to be represented.

3. Any other person appearing before the magistrate may be represented by a legal practitioner with the magistrate’s approval.

4. A person who is the nearest nominated relative, guardian or personal friend of the person brought before the magistrate may appear at the inquiry, if the magistrate rules it is in the best interests of the patient.

5. The name of a person who is involved in any inquiry before a magistrate may not, except with the approval of the magistrate and the consent of the person or any representative of the person, be published or broadcast.

6. A patient, unless the magistrate otherwise determines, is entitled to inspect or otherwise have access to any medical records relating to himself or herself.

7. A representative at an inquiry of a person brought before a magistrate is entitled, at any time before or during the inquiry, to inspect or otherwise have access to any relevant medical records on that person. However, the representative is not obliged to reveal any information in those records to the patient, and is to have full and proper regard to any warning made by a medical practitioner as to the harmful effects of disclosing that information to the patient.

8. The magistrate may administer an oath to any person giving evidence in an inquiry.

9. Proceedings before a magistrate in an inquiry are to be recorded but any such record is not to be transcribed, unless the magistrate directs it or it is required by law. The person brought before the magistrate may apply to have a transcription made.

10. As soon as practicable after the beginning of an inquiry, the magistrate is required to ask the patient whether they have been given a written statement, in the prescribed form, of their legal rights and other entitlements.

11. In the course of the inquiry, the magistrate must inquire as to the administration of any medication to the person in respect of whom the inquiry is held and is to take account of the effect of the administration of the medication on the patient’s ability to communicate.

12. The magistrate must also take into consideration any cultural factors and their relevance to any question of mental illness.

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):

discharge the patient to the care of a relative or friend who will take proper care of the patient, or

order such course of action including a community treatment order as is thought appropriate, or

direct that the patient be detained in hospital for a period not exceeding 3 months. Such a direction is known as a temporary patient order.

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):

discharge the patient, or

discharge the patient but defer the discharge for a period not exceeding 14 days, or

make a community counselling order in respect of the person.

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.

The patient must be advised of their right of appeal against the magistrate’s finding to the Mental Health Review Tribunal (section 55).

If, in the opinion of the medical superintendent, the patient will continue to be detained as a temporary patient beyond the period initially directed by the magistrate the patient must be brought before the Mental Health Review Tribunal, before the period ends, to further determine whether he or she is or is not mentally ill and what further treatment is appropriate.

If no application is made to further detain the person as a temporary patient the person must be discharged either before or at the expiration of the period directed by the magistrate. In addition, a medical superintendent must discharge a temporary patient at any time if, in the superintendent’s opinion, the patient has ceased to be a mentally ill person or less restrictive care is appropriate and available (section 66(1)).

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

The tribunal hears and determines appeals from a finding by a magistrate that a person is a mentally ill person.

The tribunal reviews all temporary patients who are to be detained beyond the period ordered by the magistrate to determine whether the person is a mentally ill person. If the tribunal determines that the person is mentally ill and no other care is appropriate or available it must then determine as follows:

– classify the person as a continued treatment patient and detain for further observation and treatment; or

– classify the person as a temporary patient and detain for a further period not exceeding 3 months.

The tribunal is required to review all continued treatment and temporary patients to be detained not later than 3 months after the person was detained and thereafter once every 6 months.

The tribunal is required to review all informal patients who have been in hospital for a period of 12 months or more.

The tribunal hears and determines appeals from a failure or refusal by a medical superintendent to deal with an application for release from detention by or on behalf of a temporary or continued treatment patient.

The tribunal hears and determines appeals by a person against a community treatment order or community counselling order made by a magistrate.

The tribunal is required to determine or review the validity of the consent given by an involuntary patient in relation to electroconvulsive therapy (ECT) or, where the patient is considered incapable of giving informed consent, determine whether ECT is necessary or desirable for the welfare of the patient.

The tribunal hears and determines matters referred to it under the provisions of the Mental Health (Criminal Procedure) Act 1990 in respect of forensic patients. These matters are where a person has been charged with a criminal offence and the issue arises as to the accused’s ‘fitness to be tried’ on the grounds of mental illness. It is the role of the tribunal to determine whether the person will be fit to be tried within a given period and whether or not the person is suffering from a mental illness for which treatment is available in a hospital. If the tribunal indicates to the court that the person is suffering from a mental illness the court is able, unless there is an objection, to order the person’s detention in hospital as a forensic patient. Such orders are subject to review by the tribunal.

Under section 80 of the Mental Health Act the tribunal reviews court orders as to the continued detention of forensic patients.

Under section 82 of the Mental Health Act the tribunal must review all forensic patients every 6 months. In doing so the tribunal can make recommendations:

– as to the continued care and detention of the person

– as to the person’s fitness to be tried

– as to the person’s release on conditions or otherwise.

The tribunal cannot recommend the release of any forensic patient unless it is satisfied that no person will be seriously endangered by the release. Also, no recommendation for release can be made in relation to any person who is awaiting an inquiry to determine his or her fitness to be tried for a criminal offence.

Under sections 97 and 98 of the Mental Health Act where a prisoner under or awaiting sentence is certified to be mentally ill and transferred to a hospital the tribunal must review the matter and make recommendations as to the continued detention, care or treatment of the prisoner in hospital.

Composition of the tribunal

The composition of the tribunal is drawn from:

Australian lawyers;

psychiatrists;

persons having, in the opinion of the Governor, other suitable qualifications or experience, including at least one person selected from a group of persons who are nominated by consumer organisations.

The section also provides that the members of the tribunal must include one woman (or more) and one or more persons of ethnic background (section 253).

Procedure of the tribunal

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

no person shall be judge of their own cause; and

each person or party affected is entitled to be heard.

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

In general, the proceedings of the tribunal shall be open to the public.

Patients whose cases are being reviewed should appear before the tribunal unless it otherwise orders.

Patients may be represented before the tribunal by a legal practitioner or by another person, with the approval of the tribunal. In the case of forensic patients, this representation may be granted legal aid at the discretion of the Legal Aid Commission, within which has been set up a special group of lawyers and others, the Mental Health Advocacy Service, specifically to act for persons who are forensic patients and mentally ill persons, before the magistrates and the tribunal.

Interpreters must be provided where appropriate.

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