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Mental Health

Mental Health and the Law

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

There is a “rights clause” (section 68) which states that individuals with mental illness should receive the best possible care in the least restrictive environment. There is a provision that emphasises the rights of carers to information and involvement in the care, treatment and control of the mentally ill (section 3) as well as a provision that focuses on the rehabilitation of the mentally ill (section105).

Set out below are some of the primary features of the mental health legislation in NSW.

How is mental illness defined?

The legal definition under the Act is different to a medical diagnosis such as schizophrenia or bi-polar disorder. At law, there is a linked two-stage process:

  1. A person is mentally ill; and
  2. As a result of that mental illness there is a risk of serious harm.

This process therefore requires the illness to cause the risk of harm (to self or others).

Mental illness

“Mental illness” is characterised by the presence of any one or more of the following symptoms:

(a)        Delusions (false beliefs)

(b)        Hallucinations (visions or voices which others cannot see)

(c)        Serious disorder of thought (incoherent thoughts)

(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)


If a person is receiving medication or other treatment which is effectively managing their symptoms then they will not satisfy the second limb of the test – that of posing a risk to themselves/others and they cannot therefore be admitted to hospital involuntarily under the Act.

Mental disorder

Individuals considered to be mentally disordered are those 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. Mental disorder may arise without prior mental illness for example after a major life crisis which temporarily results in behaviour carrying a risk of harm (such as suicide).

What are the criteria for involuntary admission?

Only patients who satisfy the definition of mental illness under the Act can be kept in hospital on an involuntary basis.

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. A person cannot be admitted to hospital as a mentally disordered person more than three times a month.

If a patient ceases to be mentally ill or mentally disordered, that patient is entitled to leave the mental health facility.

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

The following people may ask a hospital to admit a patient involuntarily:

  • A doctor who is required to complete a Schedule I Certificate (it is this which gives rise to the phrase “to schedule a patient”).
  • 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.
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.

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).

What happens next – Magistrates Hearings

Once the decision has been made that a patient is mentally ill, that patient must be brought before a Magistrate for a hearing as soon as practicable (section 27(d)). The patient is to wear street clothes and be given as little medication as possible. The patient is entitled to legal representation.

If the patient is found to be mentally disordered (rather than mentally ill), that patient can only be kept for three days and does not need to come before a Magistrate.

If the Magistrate 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 decision of a Magistrate to the Mental Health Review Tribunal (see below). The Magistrate’s hearing is recorded and this is made available to the Mental Health Review 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 Magistrate, the patient must be brought before the Mental Health Review 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:

  • A continued treatment patient (with a decision to review every 6 months unless the Tribunal is of the opinion that 12 monthly reviews are appropriate.
  • A temporary patient (maximum three 3 months).
Involuntary Treatment

Electro Convulsive Therapy

The Tribunal is the body that decides whether a course of electro-convulsive therapy (ECT) is necessary or desirable for a patient’s safety or welfare. Such orders cannot be made by Magistrates.

Medical Treatment

Individuals admitted to hospital under the Act, may be given appropriate medical treatment against their will either to treat their mental condition or in an emergency to save their life or prevent serious damage to health.

What are Community Treatment Orders?

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.

The finding of mental illness is not a prerequisite for the making of a CTO.

A patient on a community treatment order 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 for a CTO. 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, a Magistrate or 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 is the “primary carer”?

The primary carer can be:

  • The guardian or parent of a child.
  • The person nominated by a patient over 14.

The authorised medical officer (AMO) does not have to give effect to the nomination if there is a reasonable belief that:

  • Any person is at risk of serious harm, or
  • The person making the nomination was incapable of doing so at the time.

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

The patient 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 child 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, discharge of patient or detention of a person.

Cases involving mental health issues

A couple of high profile cases locally have considered whether doctors or hospitals owe a common law duty of care to protect members of the public from harm caused by mentally ill patients who have been discharged. These are considered below.

In summary, the position in NSW following the High Court decision in McKenna, is that that hospital and medical staff do not owe a common law duty of care to protect other persons from harm caused by a mentally ill person on discharge.

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 lawyers for expert advice.

Relevant Case Studies

Hunter Area Health Service & v Presland [2005] NSWCA 33 (21 April 2005)

Mr Presland was discharged from hospital and soon afterwards he killed his brother’s fiancée. He brought a claim against the psychiatrist and the hospital for negligently failing to detain him. The damages he sought included a claim for loss of liberty when he was subsequently detained as a forensic patient.

The NSW Court of Appeal unanimously agreed that the psychiatrist and hospital owed Mr Presland a general duty of care to exercise reasonable care and skill in the provision of professional advice and treatment. They further held that this duty extended to the exercise of statutory powers under the Mental Health Act essentially meaning that that the psychiatrist and the hospital both owed a duty of care at common law to discharge their statutory duties. The Court also accepted that the duty of care had been breached.

All three judges took a different approach to damages but the majority held that Mr Presland’s unlawful acts disentitled him to recover damages for non-physical injury. Mr Presland was seeking damages for forensic detention which was a lawful statutory response to his being acquitted from criminal charges due to mental illness and was not compensable under civil law.

Amendments to Civil Liability Act 2002 (NSW)

At the time of the Presland case, the limitation under section 54 of the Civil Liability Act 2002 (NSW) which prevents recovery of damages for a criminal act didn’t apply to Mr Presland, who was found not guilty on the grounds of mental illness.

The case prompted a change to section 54 of the Civil Liability Act 2002 (NSW) which now limits recovery of damages if loss results from a serious offence committed by a mentally ill person.

Adams by her next friend O’Grady v January 2009 State of New South Wales [2008] NSWSC 1257

Similar to Presland, Adams claimed damages for loss of liberty when she was subject to forensic detention for having stabbed a cooking teacher whilst in juvenile detention. She claimed breach of duty by the State for allowing her access to a knife during a cooking class.

The court followed the decision in Presland finding that the damage claimed by Adams was a result of a lawful order (forensic detention) under the Mental Health Act and as such was not compensable at common law.

Even if damages were payable in theory, on the facts, the courts did not consider that access to the knife caused Adams’ loss of liberty but rather that Adams herself intervened and caused the loss. The Court suggested that the Civil Liberties Act NSW (as amended) would not apply to exclude compensation in this case because the claim for damages was remote from the criminal conduct.

Hunter & New England Local Health District v Merry Elizabeth McKenna, and Hunter & New England Local Health District v Sheila Mary Simon & Anor (2014) HCA 44, (12 November 2014)

Debate around whether there can be concurrent a common law and statutory duty owed by doctors and hospitals to the public when dealing with involuntary patients under the Mental Health Act was decided by the High Court in this case.

Mr Pettigrove, a man with a long history of mental illness, was involuntarily detained overnight at a Taree hospital after his friend Mr Rose became concerned about his mental state. The following day after a psychiatric assessment Mr Pettigrove was released into Mr Rose’s care so that he could be driven home to his mother in Victoria for further ongoing treatment. En route, Mr Pettigrove impulsively strangled Mr Rose believing Mr Rose had killed him in a past life. Sometime later Mr Pettigrove committed suicide.

Mr Rose’s family sued the hospital for damages for psychiatric injury alleging that the hospital had a duty of care to Mr Rose, that the hospital was negligent in releasing Mr Pettigrove, and that the action was not prevented by provisions in the NSW Civil Liability Act.

On appeal, the High Court ruled that hospital and medical staff do not owe a common law duty of care to protect other persons from harm caused by a mentally ill person on discharge. The Court noted the statutory obligation under the Mental Health Act NSW to take the least restrictive action to restrict a person’s liberty was inconsistent with imposing a duty of care to take reasonable steps to protect others from the risk of harm.

The position in NSW has therefore changed since Presland – there is no common law duty of care owed by the hospital or medical staff to protect others from harm by a mentally ill person post-discharge.

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