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Mental Health and the Law

Catherine Henry Lawyers
Catherine Henry Lawyers

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Mental Health and the Law
Mental Health and the Law – Key provisions of the Mental Health Act 2007 (NSW)

The Mental Health Act 2007 (NSW) (“the Act”) is the legislation that governs the treatment of people with mental illness in NSW hospitals and in the community.

The legislation aims to protect the rights of people with mental illness or mental disorder while ensuring that they have access to appropriate care.

The “rights clause” says that individuals with mental illness should receive the best possible care in the least restrictive environment. The phrase “least restrictive environment” is of central importance to all decisions made in the mental health context.

How can a person be held involuntarily at a mental health facility?

A person can only be held as an involuntary patient if they meet the diagnostic criteria for mental illness and there is a corresponding risk of harm. “Mental illness” is characterised by the presence of any one or more of the following symptoms: delusions (false beliefs), hallucinations (visions or voices which others cannot see), serious disorder of thought (incoherent thoughts), severe disturbance of mood or sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to above.


A person with symptoms as above must show a corresponding risk of harm to self, to others or to reputation. For example, risk will not be able to be proved in the case of a person with symptoms of mental illness who is receiving medication or other treatment that is effectively managing their symptoms of mental illness. That person cannot be the subject of an involuntary order.

Can a “mentally disordered” person be held as an involuntary patient?

A “mentally disordered” person is someone whose 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 mentally disordered person can only be kept in hospital for up to three working days and a doctor must reassess them every 24 hours.

How does a patient get admitted to hospital as an involuntary patient?

The following are authorised by the Mental Health Act 2007 to take a patient to a mental health facility:

  • A police officer who has the power to bring a person to a hospital (under section 22 of the Act).
  • An ambulance officer (under section 20 of the Act).
  • The nominated Primary Carer (usually a parent or guardian but can be a person nominated by a patient who is 14 years yo.

A doctor can admit a patient upon completion of a Schedule I Certificate (it is this which gives rise to the phrase “to schedule a patient”).

What happens immediately after a patient is made an involuntary patient?

Within 12 hours of admission, the hospital has to arrange for a medical assessment of the patient: section 27(a). A certificate must be completed by an “authorised medical officer” (AMO) indicating that the person is mentally ill or mentally disordered and that hospital treatment is the only appropriate and available form of care – ie no other less restrictive option is considered appropriate.

A second examination needs to be undertaken as soon as possible by another AMO to assess the decision of the first doctor. One of the AMOs must be a psychiatrist.

An oral and a written explanation of the patient’s rights must be given to the patient as soon as practicable after the admission: section 74.

In certain circumstances, a third examination needs to take place.

What happens after the “scheduling” of a patient?

Once the decision has been made that a patient is mentally ill, that patient must be brought before the Mental Health Review Tribunal (“the Tribunal”) for a hearing as soon as practicable: section 27(d). The patient is to wear street clothes – not pyjamas – and be given as little medication as possible. The patient is entitled to legal representation. This hearing is before a single member of the Tribunal.

If the patient is found to be mentally disordered (rather than mentally ill), that patient can only be kept for three days and is not required to participate in a Tribunal hearing.

If the Tribunal finds that the patient is mentally ill and that no other care of a less restrictive kind is appropriate, he or she can make a temporary patient order for up to three months (section 35).

There is a right of appeal from the Tribunal decision to a full 3 person Tribunal. The initial hearing is recorded and made available to the full Tribunal when hearing the appeal.

Continuation of Involuntary Treatment

If the patient is likely to have his or her period of treatment extended at the end of the period ordered by the one member Tribunal, the patient must be brought before the full Tribunal before the order expires.

Mental Health Review Tribunal

The Tribunal comprises a panel of three people:

  • The Chair (a lawyer)
  • A psychiatrist
  • A community representative

If the Tribunal finds the patient is still a mentally ill person, it can classify the patient either as:

  • continued treatment patient (with a decision to review every 6 months unless the Tribunal is of the opinion that 12 monthly reviews are appropriate.
  • temporary patient (maximum three 3 months).
When can a patient be discharged?  
  • If a patient ceases to be mentally ill or mentally disordered, that patient is entitled to leave the mental health facility.
  • See also section on Voluntary Patients – below
What is a Community Treatment Order?

A Community Treatment Order (CTO) can be made either for an inpatient or for a person not in a mental health facility. These are legal orders requiring treatment for up to 12 months.

A finding of “mental illness” is not a prerequisite for the making of a CTO.

A patient on a CTO who refuses or discontinues treatment can be readmitted to hospital involuntarily.

Who can apply for a CTO?

A doctor, director of a community treatment facility or the primary carer can apply to have a CTO made. 14 days written notice of an application for a CTO must be given to the affected person if they are not in hospital.

When deciding whether to grant a CTO, the Tribunal will consider the treatment plan, any report as to the efficacy of any current or earlier CTO and any other relevant information.

A CTO may be made where:

  1. No other less restrictive care is appropriate; and
  2. A treatment plan capable of being implemented is available; and
  3. The person has been previously diagnosed as suffering from a mental illness; and
  4. The person has a history of refusing to accept treatment; and
  5. That refusal led to a relapse justifying involuntary admission; and
  6. Care and treatment has improved symptoms
Who can be a primary carer?  

If there is no primary carer nominated, primary care may default to the parent, spouse, any person providing support or care or a close friend or relative.

The patient- if over 14 years of age – may nominate, exclude or revoke a person as their primary carer. This must be in writing to the authorised medical officer and remains in force for 12 months or earlier if revoked. A patient aged between 14 and 18 cannot exclude parents as their primary carer/s.

The role of primary carers

The Primary Carer must be notified or consulted in regard to the following:

  • Details of medication and dose.
  • Detention of person.
  • Mental health inquiry.
  • If a patient absconds, is transferred, discharged, or becomes voluntary patient.
  • If ECT or surgery is proposed.

The Primary Carer can apply for a CTO, the discharge of a patient or for a person to be detained.

Discharge of a voluntary patient?

A person held as a voluntary patient requesting to be discharged must be immediately discharged. The hospital can only keep the person at the hospital as an involuntary patient if an AMO has assessed the patient within 2 hours of the request for discharge and that doctor is of the view that the person is mentally ill and requires treatment- see above.

How can we help?

If you are looking for information or help involving mental health issues, we can help you navigate the process.

Our medical negligence team is highly respected in the health and medical litigation arena, with specialist knowledge accumulated over 30 years. We can assist you by providing expert advice and legal support in the mental health arena. Contact us today on (02) 4929 3995.

*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional health lawyers for advice tailored to your individual circumstances.

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