NSW Mental Health Act (2007) Frequently Asked Questions

No, serious harm is not defined under the Act.  Generally the concept of harm has to be broad enough to allow the assessment of individuals in very varied circumstances. There will never be a tick box as to who can be scheduled.  Clinicians will always have to use their own judgement in assessing people as to what constitutes a risk of serious harm in a particular situation, and whether the person and others around them are at risk.

However, the following factors should be considered in assessing risk: physical harm; emotional/ psychological harm; financial harm; self-harm and suicide; violence and aggression including sexual assault or abuse; stalking or predatory intent; harm to reputation or relationships; neglect of self; neglect of others (including children) (Slide 13).

Neurotoxicity of medication could be viewed as physical harm and therefore a relevant consideration.

‘Progression of mental illness’ is not a term that appears in the Act.  However, the person’s ‘continuing condition’ is one of the factors to be considered when deciding whether the person is or remains a ‘mentally ill person’.  This means, e.g. that a person who has been in hospital for a couple of weeks, and whose active symptoms have responded to treatment, should possibly stay in hospital for longer because their medication is still being titrated, and a premature discharge would likely lead to an early relapse.

Many requests may be made. If the authorised medical officer refuses to discharge, the consumer can appeal to the Tribunal. If the Tribunal refuses to discharge, the consumer can appeal again.  In some cases the Tribunal can decide that the consumer has no further right of appeal until the next scheduled review (e.g. at the end of initial involuntary patient order).

An involuntary patient can ask an authorised medical officer to discharge them.  If the authorised medical officer refuses their request they can appeal to the Mental Health Review Tribunal.  This process is set out in the Statement of Rights which is given to a person once they have been admitted as an involuntary patient.

The principal care provider is the person who is primarily responsible for providing support and care for the consumer. You don't have to accept responsibility for the role as you are already providing the care. If you are not providing the care then you are not the principal care provider.

The Act is trying to balance giving agency to the consumer in terms of who can be included or excluded from receiving information, while also giving the authorised medical officer the authority to disregard the consumer’s wishes in certain circumstances. Where the authorised medical officer reasonably believes that the consumer lacks the capacity to exclude the carer, or if the exclusion may put the consumer, the carer or any other person at risk of serious harm then the exclusion can be disregarded (s72(7)and s72A(4)).

The exclusion of a principal care provider often seems to occur when a person is first admitted and may blame their principal care provider for the admission. In these circumstances the authorised medical officer should initially accept the exclusion (unless concerned about a risk of serious harm) but be willing to talk to the consumer about this once they are more settled. This is particularly important where the consumer will be living with their principal care provider once they are discharged. If the consumer is then willing to revoke the exclusion this should be noted on the appropriate form.

While this is not specified in the Act, it would be considered good practice and in accordance with the overall principles of care and treatment. It is also consistent with PD2014_004 (Incident Management Policy) which states that “as early as possible after the event, the provider should share with the patient and/or their family or carer what is known about the event and what actions have been taken to immediately mitigate or remediate the harm to the patient.”

This applies to a person who has been admitted as a voluntary patient.  The time starts when the patient tells a member of staff that they wish to be discharged.  This should be documented on the relevant form (Detention of a Voluntary Patient for Up to Two (2) Hours).

This provision does not apply to people who are awaiting assessment, e.g.in an emergency department. They have not yet been admitted and are therefore not ‘patients’.

The Ministry is developing a communication in relation to the 2 hour detention period which will be circulated to Local Health Districts and Specialty Networks during 2016.

Until then the recommended approach would be to give the greater weight to the concerns about the patient rather than to the clock ticking. In general, it would be inadvisable to discharge someone at 1am.  You would be doing your best to persuade them to stay until a doctor was able to see them the following morning and documenting your reasons for doing so in their file.

An initial assessment can be conducted in the person’s home.  If the person has already been scheduled however, and they abscond before the first Form 1 assessment takes place, then an accredited person or medical practitioner could visit them at home to decide whether to proceed with the Schedule or not.

If the decision is made that the person remains a mentally ill or mentally disordered person then arrangements must be made to return the person to hospital. Form 1 assessments need to be conducted in a declared mental health facility.  If the decision is made that the person is not mentally ill or disordered, then the Schedule can be allowed to lapse.

An accredited person conducting the first examination may find that the person is neither mentally ill nor mentally disordered. In this case the person is released. They are not revoking the Schedule. They are reaching a decision about the person's mental state based on their personal examination or observation. While taking into account the reasons that the person was scheduled they are making their own independent assessment.

At this stage such an assessment needs to be documented on a s27A –Report as to the Mental State of a Detained Person. However, it is hoped that the Form 1 can be modified so that all examinations under s27 and s27A can be documented on the Form 1. It is hoped this change will have occurred by the end of 2016.

An initial assessment for the purpose of scheduling can be conducted by video link in the person’s home.  A Form 1 assessment can be conducted via video link but the person needs to be in a declared mental health facility.  An accredited person conducting a Form 1 assessment needs to do so in person.

The CTO is suspended while the person is in hospital, and resumes when they are discharged.

If the CTO was made by a 3-person panel of the Tribunal they can appeal to the Supreme Court. If the CTO was made by a single member of the Tribunal at a mental health inquiry, they can appeal to a 3-person Tribunal panel.  In both cases the consumer should be advised to speak to the Mental Health Advocacy Service.

Anyone can bring a person to a MH facility for an assessment where they are concerned about the person’s mental condition.  This includes friends and family.  If the friend or family member is unable to persuade the person to come with them, or it would be unsafe for them to do so, they should contact their local mental health team who can send someone to do an assessment.

Where the team has a staff member who is an accredited person they will be able to schedule the person if appropriate and organise safe transport.  They can call on either the ambulance or police if they have serious concerns about the safety of the person and/or others.

A friend or family member could also call an ambulance or the police. Ambulance or police officers can in certain circumstances make use of their authority under the Mental Health Act (s20 and s22).  In most cases, however, ambulance officers prefer a person to accompany them voluntarily, while police prefer to involve mental health services rather than taking the person to a mental health facility unless other options are not available.

An involuntary patient can consent to surgery if they are able to give informed consent.  Their designated carer should be informed of the proposed operation.

Where the person is an involuntary patient and incapable of giving informed consent, and their designated carer agrees in writing to the operation, the Secretary of NSW Health can give consent (s100).

An application for consent can be made to the Tribunal where the person is an involuntary patient and incapable of giving informed consent, and the designated carer does not agree in writing to the operation (s101).

Whether a person is in the community or an aged care facility has no impact on the application of the MH Act.  There may be times when a person with dementia comes within the definitions of a ‘mentally ill’ or ‘mentally disordered’ person.  In these circumstances they come under the Mental Health Act and can be scheduled, transported to, admitted and treated as an involuntary patient (like any other person of any age) in a declared mental health facility.  (Aged care facilities in NSW are not declared mental health facilities.)

There is no need to wait for a guardianship application to be made. However, a guardianship application (e.g. with consent functions for treatment and accommodation) may be necessary to facilitate the person’s ongoing care in the aged care facility.

The ward would need to be part of a declared mental health facility.

ECT in patients under the age of 16 years is rare. However, the psychiatrist would need to be a Fellow of the Royal Australian and New Zealand College of Psychiatry (RANZCP) who has completed advanced training in Child and Adolescent Psychiatry. They would then be recognised as a Fellow of the Faculty of Child and Adolescent Psychiatry.

Ideally they should also have experience and current credentials in the practice of ECT (determined by the LHD).

Further information can be obtained at: https://www.ranzcp.org/Membership/Faculties-sections/Child-Adolescent-Psychiatry.aspx