Mental Health Legal Cases

– Unconscious patient in an emergency. Duty of Care provisions of Medical Practice Act

– The mentally ill patient; Mental Health Act 1990 (NSW) sections 152 – 207

– The intellectually disabled patient: Consider the level of competence. Guardianship Act (NSW) 1987 sections 33; 40; 44; 45A; 45AA; 45AB

– The unconscious patient (e.g. Persistent vegetative state) requiring non-emergency treatment Guardianship Act (NSW) 1987 sections 33; 40; 44; 45A; 45AA; 45AB

– Temporary impairment (e.g. D&A). Guardianship Act 1987 (NSW) sections 33; 40; 44; 45A; 45AA; 45AB

– Guardianship Act 1987 (NSW) section 33A: Appointed guardian THEN spouse (unless they are separated) THEN carers THEN close friends/relatives.

– Children and Young Persons (Care and Protection) Act (NSW) 1998): Parents OR the Minister or the Director-General if the child is in the care of the Director-General.

– Consent for Procedures: Mental Health Act (NSW) 1990 sections 152 – 207

– Procedures for involuntary admission: ‘Mental illness’ or ‘Being Mentally Disordered’

– Provisions for compulsory detention / examination

– Review mechanisms:

(1) Initial – within 12 hours of admission by 1^st dr, as soon as practical by 2^nd , as soon as practical by the Magistrate

(2) Mental Health Tribunal – Scheduled [6mthly] or Voluntary [12 mthly]

(3) Early reviews (at Tribunal’s discretion)

(4) Appeals – at any time at the patient’s request

– Patient’s statutory rights; and

– Regulation of voluntary admissions.

– Forensic patients

STEP 1

(1) A medical practitioner (Section 21)

(2) A policeman (Section 24)

(3) A magistrate (on application from family OR in dealing with an offender under sections of the Criminal Procedures Act 1986)

(4) A welfare officer or accredited person (gazetted under the Act)

Completes a Schedule 2 [in the case of a Doctor] or Section 24 [in the case of a policeman] or an order [in the case of a magistrate] to authorize a person to be taken to an admission centre (gazetted) for a psychiatric examination. A Doctor might also request the police to convey them.

STEP 2

On arrival at the Admission Centre - Seen ASAP by a medical officer – decides whether to uphold the Schedule/Section 24 [as either mentally ill or mentally disordered].

If the examining doctor does not find the person to be mentally ill or mentally disordered the person must be discharged unless the police wish to charge them with an offence in which case the police are notified of the person’s pending discharge and the person is held for no longer than further 1 hour to give the police time to attend.

STEP 3

Detained in hospital and treatment is commenced. A second doctor must then make an independent examination of the person to determine whether the person is mentally ill or mentally disordered. The second doctor must be a psychiatrist if the first doctor was not. Neither of the examining doctors can be the doctor who wrote the initial schedule.

The person admitted to hospital under the MH Act must receive verbal and documented advice about the procedures under the MH Act and their rights [the right to a legal representative at the magistrate’s inquiry and to have their family or nominated carer notified in time for them to attend the hearing]. Legal representation is provided by the Mental Health Advocacy Service, a branch of Legal Aid.

STEP 4

The magistrate’s inquiry is held at each hospital usually weekly. The magistrate’s role is on hearing the case for a temporary treatment order (up to 3 months). The magistrate may record the following findings:

– That the patient is a mentally ill person and make a temporary treatment order up to 3 months. The patient becomes a temporary patient.

– That the person is not a mentally ill person and discharge the person,

– Determine that a less restrictive management is a community treatment order.

– That the matter should be adjourned and re-heard in 1 or 2 weeks.

If the treating psychiatrist believes a temporary patient requires a further period in hospital (beyond 3 months a temporary patient becomes a continued treatment patient for up to 6 months) or following a period as a temporary patient requires a community treatment order the case is heard before the Mental Health Review Tribunal.

Mentally disordered: A person who is considered so irrational that their temporary care, control or treatment is considered necessary to prevent serious physical harm to them or other persons.

Mentally ill: A person suffering a condition that seriously impairs, temporarily or permanently the mental functioning of the person AND is characterized by (one or more) of Delusions, Hallucinations, Serious disorder of thought form AND/OR Serious mood disturbance.

Mentally Disordered: Held in hospital up to 3 working days – must be reviewed daily.

Community Treatment Order (CTO): Granted by a magistrate or the MHRT and can last for up to 6 months. The CTO may include conditions that the patient takes medication, attends for urine or blood testing, sees the GP or mental health worker at certain frequencies etc. If a patient does not comply with a CTO – notify verbally and then by letter before the Director of the Health Care Agency for involuntary attendance at the Health Care Agency to accept the treatment or have an assessment regarding the need for involuntary hospitalization [“breaching” the CTO]

The Mental Health Review Tribunal:

· Determines applications for continued treatment beyond 3 months in hospital

· Determines applications for CTOs, including rollover of CTOs,

· Determines consent in the case of applications to treat involuntary patients with ECT.

· Determines applications for Protected Estates Orders

· Determines a number of matters in relation to forensic patients

The Guardianship Tribunal [may also cover some mental health]

· Appoint a financial guardian or manager [inc. mentally ill].

· Approves or makes application for voluntary admission to a psychiatric hospital [e.g. in the case of a person with a developmental or acquired brain disability who is unable to consent, and for whom there is no other less restrictive setting for care, treatment or control].

· Consent to medical treatment.

· Make a Protected Estate Order (The MHRT, a magistrate and the Supreme Court also have this power).

Official Visitors

– Submit their reports to the Minister.

• Administered by 2 Dr's, one experienced in administering ECT, the other experienced in anaesthesia.

· Voluntary Patients: (1) written consent (2) an independent psychiatrist to certify that ECT is appropriate.

· Involuntary Patients: Application to the MHRT by 2 psychiatrists.

• Unfit to be tried

• Not guilty by reason of mental illness

• Become mentally ill while in prison for what ever reason

The MHRT must review every forensic patient every 6 months and determine whether:

• Continued detention, care and treatment is appropriate,

• “Fit to plea”

• Can be appropriately released [“out on license”]

The pathway out of hospital and detention for most forensic patients requires careful multidisciplinary review -> recommendation to the MHRT for a variation to their order, [e.g.] -> transfer to a closed ward in a psychiatric hospital in the community, then subject to good progress -> application to MHRT for transfer to an open ward, - -> application for accompanied ground leave, -> application for unaccompanied ground leave, -> application for escorted leave in the community, -> application for overnight leave with family etc, etc, Each step requires application to the MHRT, the MHRT making recommendation to the Director General of Health, Minister for Health, and then the Governor of NSW.