The Mental Health Act 2007 (NSW) (the ‘Act’) deals with involuntary admissions.
What is an involuntary admission?
Involuntary admission involves a person going into to a mental health unit against their will. The Act sets out strict criteria that must be met before someone can be involuntarily admitted. These are:
- The person must have a mental illness or mental disorder; and
- There must be no other care of a less restrictive kind (such as at-home support from family, support from a community mental health team, or voluntary admission), that is appropriate or reasonably available (s 12(1)).
Mentally ill vs Mentally disordered
While these terms are similar, there are some differences between classification as mentally ill and mentally disordered.
Under the Act, a ‘mentally ill person’ is someone 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—
- for the person’s own protection from serious harm, or
- for the protection of others from serious harm (s 14)
A person 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—
- for the person’s own protection from serious physical harm, or
- for the protection of others from serious physical harm (s 15).
What is the process for involuntary admission?
Only certain people can begin the process of involuntary admission.
These are:
- Medical practitioners (s 19)
- Ambulance officers or paramedics (s 20)
- Police (s 22)
- A Magistrate (s 23)
- A designated carer, principal care provider, relative, or friend, where they make a written request to an authorised medical officer of a declared mental health facility (s 26)
In most cases, the first step towards involuntary admission involves a doctor or qualified mental health worker examining or observing the person and completing a ‘Schedule 1’.
Once a Schedule 1 is complete, family, friends, or mental health workers can take the person to the hospital to be admitted. Sometimes police or ambulance officers are asked to help. Police and ambulance officers can also request that someone be assessed at a declared mental health facility.
What happens once you arrive at a declared mental health facility?
Once someone goes to a declared mental health facility for admission, they can only go into detention if two doctors agree that their detainment is necessary and lawful under the Act. One of these doctors must be a psychiatrist. If the second doctor does not find the person to be mentally ill or mentally disordered, a third doctor may examine the person. If a majority of these doctors believe that the person is mentally ill or disordered, the admission of the person occurs.
How long will you stay at a declared mental health facility?
If you are considered a ‘mentally disordered person’, authorities can keep you in a hospital for up to three continuous working days, or in other words, three days not including weekends or public holidays.
If you are considered to be a ‘mentally ill person’, you may be kept in a hospital until the Mental Health Review Tribunal (‘The Tribunal’) holds a mental health inquiry. Your admission goes for review by the Tribunal after you have been in hospital for at least one week.
If you remain in hospital for more than two weeks, the Mental Health Review Tribunal (MHRT) must see you.
What rights do you have while detained?
While detained, you may be given treatment against your wishes. The Mental Health Act has some safeguards in place to protect your interests during this time:
- You must be examined by an authorised medical officer at least every 24 hours.
- If an authorised medical officer decide you are no longer a mentally disordered person, or that less restrictive care is appropriate or reasonably available, you must be released.
- You cannot be detained for being a mentally disordered person more than three times in one calendar month.
- You have the right to see an official visitor, request to be discharged, and appeal to the Tribunal against any refusal to be discharged.
The Act also states that ‘every effort that is reasonably practicable’ should be made to involve you in the development of your treatment and recovery plans, and your plans for ongoing care.
When can I leave?
Involuntary patients cannot discharge themselves from hospital. However, you can make a request for discharge to the Authorised Medical Officer at any time. They must respond within three working days.
If they refuse your request, you can appeal the decision to the Tribunal. The Tribunal will ‘stand in the shoes’ of the decision-maker and must discharge you if they satisfy themselves that you are not a mentally ill person or there is less restrictive care available. You may be discharged:
- into your own care,
- into the care of a Designated Carer or Principal Care Provider,
- or on a Community Treatment Order for no more than 12 months.
At any time during a detainment, a person’s Primary Carer can also apply to the Authorised Medical Officer for the discharge of the person. A doctor must assess the person, and a decision is due within three working days. This decision is also subject to appeal to the Tribunal.
