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Mental health

22 Feb 2017 - 16:53 | Version 12 |
 

Contributed by AlisonHanley, AlexCluniesRoss and ToriMarshall and current to 1 May 2016

Unlike other users of the health system, those suffering or thought to be suffering from a mental illness or mental disturbance can be brought to a hospital to receive treatment and made to stay there, if necessary, against their express wishes. The Mental Health and Related Services Act 1998 (MHRSA) provides a legislative framework that attempts to ensure that those thought to be suffering from mental illness or mental disturbance are clinically assessed and there is an independent review of the proposed treatment and detention.

The NT Department of Health and Families provides a comprehensive service for members of the public with mental illness. Occasionally, someone may have a mental illness that is so severe that they need involuntary treatment for a period. The MHRSA is set up to protect the civil rights of a person in this situation.

The MHRSA aims to establish provisions for the care, treatment and protection of people with mental illness that are consistent with the United Nations' Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, the Australian Health Ministers' Mental Health Statement of Rights and Responsibilities and the National Mental Health Plan [MHRSA s. 3].

The MHRSA contains rules that govern the care, treatment and protection of people with mental illness in many different situations. For example, the MHRSA:
  • requires a person's involuntary admission and treatment to be subject to review
  • makes sure that a person can't be detained against their will unless efforts have been made to get their informed consent to treatment
  • requires people receiving or seeking psychiatric treatment or care to have their legal rights and entitlements explained to them
  • puts in place procedures to allow people to complain about treatment they are receiving.

Significant changes were made to the MHRSA in 2007, and further minor amendments were made in 2012 and again in 2014. At the time of the review of the mental health law in the NT, it appears that these changes may come into operation later in 2007. However, the current status of the MHRSA should be checked by the reader. Other legislation that refers to mental illness includes the Adult Guardianship Act, the Sentencing Act, the Aged and Infirmed Persons' Property Act and the Community Welfare Act.

What is not a mental illness

A person can't be considered to have a mental illness just because they [MHRSA s. 6(3)]:
  • express or refuse or fail to express a particular political, religious opinion or belief, a particular philosophy or a particular preference or sexual orientation
  • engage or refuse or fail to engage in a particular political, religious or cultural activity
  • are or have been sexually promiscuous, or acted immorally, illegally or in an anti-social way
  • have a sexual disorder
  • are intellectually disabled
  • use alcohol or other drugs
  • have a personality disorder or a habit or impulse disorder
  • have or do not have a particular political, economic or social status
  • communicate or don't communicate, or behave or don't behave, in a manner consistent with a set of cultural beliefs, practices or morals
  • are or are not a member of a particular cultural, racial or religious group
  • are involved or have been involved in a family or professional conflict
  • have been treated for mental illness or have been detained in a hospital that provides treatment for mental illness
  • have been admitted as a involuntary patient on the basis of mental disturbance
  • have acquired brain damage.

That is not to say that these cannot co-exist with mental illness or mental disturbance but they will not determine the matter one way or the other.

What is mental illness?

Mental illness is defined in s. 6(1) of the MHRSA to mean a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person in one or more of the following areas:
  • thought
  • mood
  • volition (meaning a person's will or ability to form intent)
  • perception
  • orientation (meaning a person's ability to understand time and place)
  • memory.

A serious impairment must be characterised by the presence of at least one of the following symptoms:
  • delusions
  • hallucinations
  • serious disorders of the stream of thought
  • serious disorders of thought form
  • serious disturbances of mood
  • sustained or repeated irrational behaviour that may be taken to indicate the presence of at least one of the above symptoms.

A determination that a person has a mental illness can only be made if it conforms with internationally accepted clinical standards [MHRSA s. 6(2)].

Voluntary patients

A person can seek to admit themselves to a hospital for treatment of a mental illness as they can for any other illness. It is not usually possible, however, for a person to take themselves directly to the mental health ward of a hospital and ask to be admitted. Instead, they should go to the accident and emergency section of a hospital, to a community mental health facility, such as the Tamarind Centre in Darwin (see Contact points ), or to their general practitioner, and ask to be referred to the mental health ward.

The examining doctor must refuse to admit a person as a voluntary patient if they are not satisfied that the person will benefit from being admitted [MHRSA s.25(8)]. When they refuse to admit a person, the doctor must tell them why they have made that decision and that they have a right to apply to the Mental Health Tribunal (the Tribunal) for a review of the refusal to admit the person as a voluntary patient. They also have to explain the review procedure to the person.

If the examining doctor thinks a person will benefit from voluntary admission, then the person is given a form to fill out which states that they give informed consent to admission and treatment as a voluntary patient. A person can only be admitted if the doctor is satisfied that person has given informed consent to being admitted.

Confirming the admission

Within 72 hours, the person must be examined by an authorised psychiatric practitioner (APP) who will confirm or refuse admission. The required qualifications of an APP are set out in MHRSA s. 22. If it was an APP who conducted the initial assessment, then another APP must confirm the admission [MHRSA s.25].

The APP can confirm the admission of a person as a voluntary patient if, following an examination, they are satisfied that the person has properly consented (see Giving informed consent ) [MHRSA s. 25].

If the APP can't decide whether a person is capable of giving informed consent, they can either confirm or not confirm the admission. If they decide to confirm the admission they must apply as soon as practicable to the Tribunal for a determination of the person's capacity to give informed consent [MHRSA s. 25].

An APP has to refuse to confirm an admission if they are not satisfied that the person is likely to benefit. When they refuse to confirm an admission, they must tell the person why they have made that decision and inform the person of their right to appeal to the Tribunal (see below). They also must have to explain the appeal procedure [MHRSA s. 25].

When a person is aged under 18 years

If a person is under 18 years of age, their parent or guardian can apply on their behalf to have them admitted as a voluntary patient [MHRSA s. 25]. A person who is 14 years or over but under 18 can admit themselves as a voluntary patient, but the doctor involved must inform the parents or guardian as soon as practicable after the admission. If the doctor reasonably believes that it wouldn't be in the person's best interests to inform their parents or guardian, the doctor must provide reasons for this decision to the Tribunal. If the doctor believes, on reasonable grounds, that the person is or has suffered maltreatment the doctor must notify an authorised officer, but not later than 48 hours after the admission [MHRSA s.26].

A person who is under 18 years of age is not to be admitted as a voluntary patient unless they can be cared for and treated in a way that can ensure their age, culture, gender and maturity are taken into account. Where appropriate and possible, they are to be cared for separately from adults, for example, by being put in separate quarters [MHRSA s.26].

Admission of person under guardianship

A guardian who has power under the Adult Guardianship Act to consent to any health care that is in the best interests of the person under guardianship can apply to have that person admitted to an approved treatment facility as a voluntary patient. An APP must examine the person not later than 24 hours after an application is made. An APP can't admit the person unless satisfied the person is willing to be admitted, doesn't fulfil the criteria for admission as an involuntary patient, and is likely to benefit from being admitted. If the APP decides to refuse admission, they must provide the guardian with the reasons for that decision and inform the guardian of the person's right to seek a review of that decision by the Mental Health Review Tribunal (see Reviews and appeals, below), and explain the appeal process [MHRSA s. 27].

Before a person can be voluntarily admitted under the MHRSA, they must give informed consent to their admission. A person can only be found to have given informed consent when they give consent freely and voluntarily without any inducement being offered, are capable of understanding the effects of giving consent, and communicate their consent on the approved form [MHRSA s.7].

In addition, a person can only give informed consent when they have been [MHRSA s. 7]:
  • given a clear explanation of the APP's assessment and possible diagnosis, the nature of the proposed treatment, including sufficient information about the type of treatment, such as its purpose and likely duration, so the person can make an informed decision about whether to undertake it
  • given an adequate description, without concealment, exaggeration or distortion, of the benefits, discomforts and risks associated with the treatment, and any appropriate, alternative forms of treatment reasonably available
  • provided with clear answers to all relevant questions they have asked, and understood those answers
  • advised of their right to refuse treatment or withdraw consent at any time during it
  • advised of their right to obtain independent legal or medical advice about the proposed treatment, and where they want to pursue this option, that reasonable assistance is provided to obtain that advice
  • advised of all rights of review and appeal under the MHRSA
  • provided with information about any financial advantage the doctor, treatment facility or treatment agency might gain by using treatment
  • advised about any relevant research relationship between the doctor proposing the treatment and the treatment facility or agency where the treatment is to be undertaken.

All the above explanations, descriptions and advice are to be explained by the APP during the consent process. Signing the form provides an acknowledgment that a person understands all the above points and has been provided with all necessary information. The information provided by the psychiatrist has to be given to the person in the manner in which they are used to communicating, with regard to age, culture, disability, impairment and any other factors that may influence understanding. For example, a person who has difficulties with speaking English may request an interpreter or a person may invite a person from their own cultural background to assist.

A person must be given adequate time to consider the information provided before being asked to give their informed consent. If they can't communicate adequately, they are to be assisted, as far as is practicable, by a competent interpreter (see Interpreters, chapter ? (previously chapter 2). They can also request that another person be with them while informed consent is obtained.

Discharge

In most circumstances a person admitted as a voluntary patient can leave the hospital at any time they choose. The only exception to this is if the doctor or senior registered nurse on duty believes the person is deteriorating and they may meet the criteria for admission as an involuntary patient. If this is the case, the person can be detained involuntarily for up to six hours.

If so detained, an APP has to be notified as soon as practicable so that the person can be examined and assessed [MHRSA s. 30].

A person can continue to stay in the hospital as a voluntary patient unless an APP believes that it is no longer in their best interests to stay in hospital or that they won't benefit from remaining. In those circumstances, the APP must discharge the person and the person must leave the hospital as soon as practicable after being informed of their discharge [MHRSA s. 29].

Where a person is a voluntary patient in a treatment facility for six months continuously, the person in charge of the facility has to notify the Tribunal about the length of time the person has been admitted [MHRSA s 28]. The Tribunal must review the admission of a voluntary patient where they have been in a treatment facility longer than six months and must continue to do so at six-month intervals while the person remains a voluntary patient [MHRSA s. 122].

Involuntary patients

In certain situations a mentally ill person can be admitted to a treatment facility as an involuntary patient. The MHRSA emphasises that a person should only be admitted involuntarily after every effort has been made to avoid the involuntary admission [s.10(a)]. Family members, case workers, carers or another appropriate person may bring a person to a treatment facility for assessment and/or admission. In some instances ambulance officers or police officers may deliver a mentally ill person to a treatment facility. However, the MHRSA specifically states that the assistance of a member of the police force should only be sought as a last resort where there is no other means of taking the person to the approved treatment facility or into custody [s.10(b)].

Grounds for admission

Mental illness

The MHRSA sets out the criteria for the involuntary admission of a person on the grounds of mental illness [s.14]. To be admitted involuntarily the person must:
  • have a mental illness
  • as a result of the mental illness:
    • need the treatment available at a treatment facility and without that treatment:
      • be likely to cause serious harm to themselves or to someone else; or
      • be likely to suffer serious mental or physical deterioration
  • are not be capable of giving informed consent to treatment or have unreasonably refused to consent or treatment.

Also, there must also be no less restrictive means of ensuring that the person receives the treatment.

Mental disturbance

The MHRSA sets out the criteria for the involuntary admission on the grounds of mental disturbance [s.15]. Involuntary admission on the ground of mental disturbance does not require a diagnosis of mental illness at the time of admission.

Involuntary admission on the ground of mental disturbance requires that:
  • the person does not meet the criteria for involuntary admission on the grounds of mental illness or complex cognitive impairment
  • the person's behaviour is, or within the immediately preceding 48 hours has been, so irrational as to lead to the conclusion that:
    • they are experiencing or exhibiting a severe impairment of or deviation from their customary or everyday ability to reason and function in a socially acceptable and culturally appropriate manner: and
    • they are behaving in an abnormally aggressive manner or engaging in seriously irresponsible conduct that justifies a belief that they require a psychiatric assessment, treatment or therapeutic care at an approved facility: and
  • unless the person receives treatment at an approved treatment facility they are:
    • likely to cause serious harm to themselves or someone else; or
    • are likely to suffer a severe mental or physical deterioration; and
  • the person is not capable of giving informed consent to the treatment or care or has unreasonably refused to consent to the treatment or care: and
  • there is no less restrictive means of ensuring that the person receives the treatment or care.

The MHRSA also sets out the criteria for involuntary admission on the grounds of complex cognitive impairment. Refer to MHRSA s.15 for more information.

People who are admitted involuntarily due to mental illness, mental disturbance or complex cognitive impairment are detained at an approved treatment facility, which is a place or premises the Minister for Health and Community Services declares to be an appropriate place to treat and care for involuntary patients. In the NT treatment facilities are located in:
  • Darwin: at the Royal Darwin Hospital (Cowdy Ward and Joan Ridley Unit)
  • Alice Springs: at the Alice Springs Hospital (Ward One).

Treatment, in relation to mental illness, mental disturbance or complex cognitive impairment, is defined by s. 5 of the MHRSA to mean things done in the course of the exercise of professional skills to: remedy the illness, disturbance or impairment; or to lessen the effects or the pain and suffering caused by the illness, disturbance or impairment.

Assessment, transportation and detention

A person may request that they be assessed to determine whether they are in need of treatment under the MHRSA. A person with a genuine interest or immediate concern for the welfare of another person may also request that person be assessed to determine if they are in need of treatment [MHRSA s.32].

The request for an assessment can be made to a medical practitioner, APP or a designated mental health practitioner. The assessment must take place as soon as practicable after a request is made [MHRSA s.32(5)], unless the practitioner declines to assess the person on the basis that they are satisfied the person is not in need of treatment [MHRSA s.33].

A police officer may also apprehend a person and bring them to a medical practitioner, APP or designated mental health practitioner for assessment if they believe on reasonable grounds that:
  • a person may require treatment or care under the MHRSA, having regard to the appearance and behaviour of the person; and
  • the person is likely to cause serious harm to himself or herself or to someone else unless apprehended immediately; and
  • it is not practicable in the circumstances to seek the assistance of an APP, a medical practitioner or designated mental health practitioner [MHRSA s. 32A].

The person must be informed by the police officer that they are being apprehended for the purpose of an assessment under the MHRSA. The police officer must take the person to an a AAP, medical practitioner, or designated mental health practitioner, and an assessment must take place as soon as practicable after this.

If, on assessment, the person is found to meet the criteria for involuntary admission on the grounds of mental illness or mental disturbance, the practitioner must make a recommendation for a psychiatric assessment. This recommendation authorises the practitioner, an ambulance officer or other person specified to do any of the following [MHRSA s.34]:
  • take reasonable measures to control the person or take them to a treatment facility (a member of the police force may be authorised to do this where no less restrictive alternative is available)
  • hold the person at a hospital or other place where the person can be safely held until it becomes practicable to take them to an approved treatment facility
  • administer treatment immediately necessary
  • detain the person at an approved treatment facility for up to 12 hours.

The practitioner must revoke the recommendation if, after a further assessment of the person, the practitioner is no longer satisfied the person fulfils the criteria for involuntary admission. Otherwise, the recommendation remains in force from 14 days from the date it is made [MHRSA s. 34]. Treatment during this time is not to be administered unless:
  • delaying treatment would cause a deleterious effect on the person's health
  • the treatment is approved by a medical practitioner and
  • the treatment is administered by a medical practitioner, registered nurse, ambulance officer or Aboriginal or Torres Strait Islander health practitioner.

A person who administers this treatment must make a report containing details of the treatment and the reasons why approval of the Tribunal was not obtained [MHRSA s. 35].

A practitioner or police officer may apply to the Tribunal for a warrant to apprehend a person for assessment. The Tribunal may issue a warrant if satisfied that the person may be unable to care for themselves, the person may meet the criteria for involuntary admission and all other reasonable avenues to assess the person have been exhausted. The warrant remains in place for 14 days from its date of issue unless it is revoked by the Tribunal or an assessment of the person is carried out. The warrant authorises a practitioner or police officer to apprehend and control the person and bring them to a practitioner for assessment [MHRSA s. 37].

If the APP is satisfied that the person fulfils the criteria for involuntary admission on the grounds of mental illness or mental disturbance, the practitioner must admit the person as an involuntary patient. If they are satisfied that the person fulfils the criteria for treatment in the community, they must make an interim community management order (see below on interim community management orders). Otherwise, if the person does not fulfil the criteria for involuntary treatment, the person must be released [MHRSA s. 38]

Not later than one day after a person is detained at an approved facility, the APP has to notify the person's adult guardian, any substitute decision maker, a lawyer prepared to act for the person and their primary care provider, such as a partner or parent that the person has been detained, the section they are being detained under and their right to apply to the Tribunal for review of their detention [MHRSA s. 41].

The APP has to also inform the principal community visitor (who is appointed by the Minister of Health see Community Visitor Program) and the Tribunal of the grounds for the involuntary admission and the section of the MHRSA used.

In the case of involuntary admission for mental illness, the APP may detain the person at an approved facility for up to 14 days after the examination [MHRSA s. 39]. Ongoing examinations of the person must occur not less than once every 72 hours. In the case of involuntary admission on the grounds of mental disturbance, a person may be detained for a period of 72 hours [MHRSA s. 42]. The person may be detained for a further period of up to seven days if two APPs are satisfied that if the person is released and does not receive treatment and care under the MHRSA, they are likely to cause serious harm to themselves or another person; or they will represent a substantial danger to the general community; or they are likely to suffer serious mental of physical deterioration. The person must also not be capable of giving informed consent or have unreasonably refused treatment and there must be no less restrictive way of ensuring the person receives the treatment and care.

An APP must conduct regular reviews of a person's involuntary admission [MHRSA s. 44]
Community Management Orders (CMO)

The MHRSA requires an APP to examine a person who is subject to a CMO not less than once each six weeks and regularly review the order while it remains in force [MHRSA s.50]. A psychiatric case worker must be allocated to each person who is to be treated, cared for or rehabilitated under a CMO [MHRSA s.51(1)]. This case worker could be a medical practitioner, social worker, psychologist, registered nurse, occupational therapist or Aboriginal health worker. The case worker is responsible for monitoring the progress, treatment, care and rehabilitation of the person under the order.

When a CMO expires or is revoked, the APP must notify the Tribunal. The person-in-charge of the approved treatment agency must also make a report to the Tribunal as to the efficacy, appropriateness and effectiveness of the community management order [MHRSA s.52]. The Tribunal must consider the report when considering any future applications for a community management order for that person.

Reviews and appeals

Reviews

Reviews of involuntary admissions are carried out by the Mental Health Review Tribunal. The Tribunal is a body established under Part 15 of the MHRSA to conduct reviews and hear appeals about the admission and treatment of mentally ill and mentally disturbed people. It is made up of three members: a lawyer with at least five years experience; a medical practitioner, and a community member who is a person with a special interest or expertise in mental illness and mental disturbance [MHRSA s. 118]. The Tribunal is set up to be a neutral and independent body.

The Tribunal must review a person's admission as an involuntary patient within 14 days of the date of the admission. The Tribunal must review an interim community management order not later that 14 days after it was made [MHRSA s. 123].

Once the Tribunal has reviewed a person's involuntary admission, it can:
  • order the person be detained as an involuntary patient on the grounds of mental illness for a period of up to three months.
  • order the person be detained as an involuntary patient on the grounds of mental disturbance for a period of up to 14 days.
  • make a community management order for a period of up to six months. The Tribunal can extend a community management order for up to six additional months if an application is made by an APP before it expires. It can also vary a community management order if it is satisfied that there is a significant change in the condition of the person it concerns [MHRSA s. 123].

When the Tribunal makes an order, it also has to authorise the treatment that may be administered under the order, and fix the date on which the order is to be reviewed again.

If the Tribunal is not satisfied that the person meets the criteria for an order to be made, it must revoke the admission or interim community management order. Where the Tribunal revokes the admission of the person it must also order that the person be immediately discharged from the approved treatment facility or that they be discharged when arrangements are made for the case of the person on discharge, not longer than seven days [MHRSA s.123(8)].
Applications for review

A person who is the subject of a decision or order can apply for review of that decision or order. So can their representative or lawyer, or someone with a genuine interest or real and immediate concern for their welfare.

The following decisions and orders can be reviewed [MHRSA s. 127]:
  • an APP's decision to confirm or refuse an admission as a voluntary patient
  • an APP's decision to refuse a person access to information contained in their medical record
  • an APP's decision to restrict or deny a person's entitlement to letters and postal articles, telephone access or visitors
  • an order authorising a person be detained for seven or 14 days as an involuntary patient on the grounds of mental illness or mental disturbance
  • a decision to transfer a person from one approved treatment facility to another.

An application for a review is made on the appropriate form obtained from the tribunal and lodged with it. After conducting a review, the Tribunal can:
  • affirm, vary or set aside a decision or order
  • make any decision or order that an APP may have made
  • refer the matter back to the APP for further reconsideration or
  • make any other order it thinks fit.

The Tribunal can also order that an application for another review or an appeal in relation to the same matter not be made before a specified date [MHRSA s. 129].

Hearings

When the Tribunal undertakes a review, it does so by conducting a hearing. Hearings usually take place on the hospital grounds.

When reviewing or hearing an appeal, the Tribunal must have regard to the person's current mental state, their medical and psychiatric history, and current social circumstances [MHRSA s.129]. These details are generally provided in the psychiatric reports and from the case workers assigned to the patient. Cultural factors must also be taken into account and expert evidence concerning a person's cultural practice must be given due regard. The Tribunal may, for example, call on a community member from an Aboriginal community to assist with the review.

Hearings are not open to the public, unless the Tribunal directs otherwise. A person who is or has been a member of the Tribunal is required to keep any information they have obtained while serving confidential and criminal penalties apply if this information is recorded or disclosed [MHRSA s.139].
Rights of appearance and representation

A person can represent themselves before the Tribunal or be represented by a lawyer or another person. The Northern Territory Legal Aid Commission provides a duty lawyer service free of charge to anyone who is the subject of a review or appeal before the Tribunal (see Legal aid) and in Alice Springs the Central Australian Aboriginal Legal Aid Service also provide a free duty lawyer service. In certain circumstances, the Tribunal can appoint a lawyer to represent a person.

The Tribunal may conduct a hearing in the absence of a person or the person's representative if the person or their representative was given notice of the hearing, the person or representative had a reasonable opportunity to attend the hearing and the person or representative refuses to attend the hearing. The Tribunal may also conduct a hearing in the absence of the person if the Tribunal is of the opinion that there are exceptional circumstances that make attendance of the person inappropriate and the person's representative is given notice of the hearing and has a reasonable opportunity to attend [MHRSA s.131].
Accessing information

A person or their representative may need to get access to medical records to assist with a review. A person or their representative must be provided with access to the person's medical records and reports that are before the Tribunal. However, the Tribunal can order that a person not be given access to a medical record or report if it believes that it may cause serious harm to the person's health and put the safety of other people at risk. The Tribunal can also require the person's adult guardian, decision maker or representative to give an undertaking that he or she will not disclose specified information in the medical record or report [MHRSA s132].

Otherwise, a person has a right under Freedom of Information to access information on their medical file. This can commonly involve extended processing times and documents may not be available at short notice.

A person or their representative can also access transcripts of Tribunal proceedings. All Tribunal proceedings are digitally recorded.

Evidence

The Tribunal is not required to comply with the formal rules of evidence and may inform itself on any relevant matter in any way it considers appropriate [MHRSA s.133]. However, the principle of procedural fairness still applies and requires the Tribunal to use a fair and proper procedure when making decisions.

At the hearing a person or their representative may call and produce evidence, including reports from doctors, psychologists and any other person the Tribunal considers to have relevant expertise. They can also ask the Tribunal to order a person to attend a hearing to give evidence. The Tribunal can refuse this request if it is satisfied that the attendance may cause serious harm to the health of the person who is the subject of the review or appeal or if the safety of other people may be at risk [MHRSA s.133].
Right to an interpreter

Where a person doesn't speak English to a level that would enable them to understand proceedings, the tribunal must allow them, so far as it is reasonably practicable, to have access to an interpreter to help them prepare for and understand the hearing and to help at it. An interpreter is provided at no cost to the person [MHRSA s. 134] (see Interpreters ).

Appeals to the Supreme Court

A person who is unhappy with a Tribunal decision, or with its refusal to make a decision within a reasonable time, may appeal to the Supreme Court within 28 days of the decision [Supreme Court Rules 83.04]. This appeal will be a rehearing of the original tribunal review. The Supreme Court can refuse to hear an appeal if it believes it to be frivolous, vexatious or not made in good faith [MHRSA s. 142].

If the Supreme Court decides to hear an appeal, it can [MHRSA s. 142]:
  • affirm, vary or set aside the decision or order of the Tribunal
  • make any decision or order that the Tribunal may have made
  • send the matter back to the Tribunal for further consideration
  • make any other order it thinks fit.

A person who is the subject of an appeal to the Supreme Court can represent themselves or be legally represented. Legal advice should be obtained before an appeal is lodged [MHRSA s. 144].

Rights of patients and carers

A person who is admitted to a treatment facility or is subject to a Community Management Order has certain rights that must be respected. Under Part 12 of the MHRSA, an APP is required to provide information to a patient about:
  • their rights and entitlements under the MHRSA, including how those rights can be exercised and entitlements accessed
  • advocacy and legal services available to them
  • their admission and treatment
  • medication and treatment, including details of the type, dosage, expected benefits and side effects [MHRSA s.87, 88 and 89].

The person in charge of an approved treatment facility must ensure a discharge plan is prepared by an APP before the person is discharged from the facility [MHRSA s.89].

A person also has rights to correspond with persons outside of the facility without interference or restriction, to send and receive postal items, to make and receive telephone calls and to receive visitors in reasonable privacy at times that are determined. These rights can only be denied by the APP in certain circumstances which a person can seek review of by the Tribunal [MHRSA s95-98].

There is also an opportunity for the person to apply in writing to an APP employed at the treatment facility or agency for access to information in records maintained at the facility or by the agency. The APP can grant access to information with or without conditions or refuse access in certain circumstances [MHRSA s.92].

A person can also have written comments included in their personal records. If the person or their representative puts comments in writing and gives them to the nurse or appropriate treatment facility staff member, the person in charge of the facility or agency has to make sure they are added to the records [MHRSA s. 94].

Community Visitor Program

The Community Visitor Program was established under Part 14 of the MHRSA to promote the rights and independence of people receiving treatment at mental health facilities and agencies. Under section 110 of the MHRSA a community visitor panel is established for each approved treatment facility.

The role of the community visitor is to act as a patient advocate. A community visitor is empowered by the MHRSA [s.104] to inquire into and make recommendations about a number of things including:
  • the adequacy and standard of the services for the assessment and treatment of patients in treatment facilities
  • the standard of the facilities
  • the adequacy of information relating to rights of patients.

Community visitors regularly visit treatment facilities and agencies and talk to patients, their families and carers about the treatment, services and adequacy of information received.

Under section 107 of the MHRSA community visitors have the power to:
  • enter and inspect treatment facilities or agencies at any time without notice
  • inspect documents or medical records relating to a patient's treatment or care
  • inspect any records or registers required to be kept by or under the MHRSA
  • visit patients at a treatment facility or agency.

Under section 110 of the MHRSA a community visitor panel is established for each approved treatment facility, and is made up of a legal practitioner admitted to practice for longer than five years, a medical practitioner and community person who represents the interests of consumers of mental health services and had a special interest or expertise in mental illness or disturbance. Under s111 of the MHRSA the community visitor panel visit the approved treatment facility every six months and enquires into the;
  • adequacy of opportunities and facilities for the recreation, communication with other persons, occupation, education, training and rehabilitation of people receiving treatment or care at the facility; and
  • extent to which persons receive treatment and care at the facility in conditions that provide the least restrictive and intrusive environment enabling the treatment and care to be effectively given; and
  • adequacy of services for assessing, treating and caring for person at the facility; and
  • appropriateness and standards of facilities for the accommodation, physical wellbeing and welfare of people receiving treatment and care that the facility; and
  • adequacy of information provided by the facility about the complaints procedures and other rights under the MHRSA; and
  • accessibility and effectiveness of internal complaints procedures of the facility; and
  • any other matter the panel considers appropriate having regard to the principles and objectives of the Act; and
  • any other matter referred to it by the Minister of Health or the principal community visitor.

The chairperson of the community visitor panel provides a report after each visit to the inpatient unit to the principal community visitor, who then must provide it to the person in charge of the approved treatment facility [MHARS s112].

Under section 113 of the MHRSA every person employed by a treatment facility or agency must cooperate with and assist a community visitor or panel member. The person-in-charge of an approved facility or agency must forward any requests for contact with a community visitor no later than 24 hours after it is made. For details about how to contact a community visitor see Contact points .

Complaints

A person who believes their rights have not been, or are not being respected at a treatment facility or agency can make a complaint. A complaint can be made by the person's representative or someone who is genuinely interested in that person. A complaint can also be made about the way the MHRSA is being administered if it relates to the health interests and needs of a patient. For example a person may complain about not being informed of the Community Visitor Program when they are required to be told under the MHRSA.

Complaints are made:
  • internally, by filling out a complaint form available from the administration office of the treatment facility or agency. The person-in-charge must ensure that the complaint is investigated and, wherever possible, resolved
  • externally, to a community visitor (see Community visitor program).

Complaints can also be made to the Health and Community Services Complaints Commission (see Health consumer rights).

Interstate Orders

Part 18 establishes a framework for recognition of interstate orders. A person or another person with a genuine interest in or real concern about the welfare of a person may apply to the Tribunal for an order to detain a person in an approved treatment facility or for a community management order. The Tribunal must not make the order unless it is satisfied that an interstate mental health order is in force and the CEO, and in some cases the person in charge of the approved treatment facility, consents to the order being made.

The procedures set out below [MHRSA Part 10] are used only in the Magistrates Court, as the Supreme Court has the provisions of Part IIA of the Criminal Code available to it.

If a court believes that a person appearing before it is mentally ill or mentally disturbed, it can adjourn proceedings to enable the person to be psychiatrically assessed. The court orders the person to be assessed by an APP and a report prepared for the court. A court can also order the person be detained in a place for up to 72 hours for assessment if it thinks that they may benefit from treatment, and it receives a written confirmation from the Chief Health Officer (CHO) that a psychiatrist, mental health practitioner or treatment facility is available to provide the assessment. The assessment report is tendered to the court when the case reconvenes. The court can then:
  • discharge the person; that is, order that the charges be dismissed
  • proceed to hearing and determine the charge, where the person is considered not to have been mentally ill at the time of the offence
  • make an order to admit the person to a treatment facility under section 75 of the MHRSA.

Dismissing the charges

If a person is charged with an offence and the court is of the opinion that they appear to be mentally ill or mentally disturbed, it can dismiss the charge if:
  • the person is likely to be found not guilty because they lacked capacity when they committed the offence
  • the circumstances are such that, if the person is found guilty, the court would, in accordance with the Sentencing Act, dismiss the charge without recording a conviction.

A court can't dismiss a charge unless it has received a certificate from the CHO stating that they are satisfied, after receiving reports from two psychiatrists, that the person is mentally ill or mentally disturbed. A court can't dismiss a charge if the offence is a regulatory offence, such as a parking fine [MHRSA s. 77].

Detention under section 75

Where the report from the CHO states that the person meets the criteria for involuntary admission on the grounds of mental illness or mental disturbance and that resources are available at the specified approved treatment facility to diagnose and treat the person, the court may adjourn the proceedings for a period specified by the court. The court can also order that the person be detained in the approved treatment facility for examination and assessment and, if the person is admitted to the facility, diagnosis and treatment under the MHRSA.

The court may then adjourn the proceedings a period as recommended in the report or for 15 days, whichever is the shorter.

The court may also impose a condition on an order to ensure the security and good order of the person. This could see, for example, a security guard posted to guard a person involuntarily admitted to a hospital or detained in the most secure area of a hospital or a person who is a prisoner subject to the same restrictions as would apply if they were in prison.

The Supreme Court

Part IIA of the Criminal Code provides the procedure to be used by the Supreme Court when a person is found either mentally impaired or unfit to be tried for a criminal offence. A person found not guilty of an offence because of mental impairment or found unfit to stand trial can then become subject to a supervision order. The court must receive a report on the supervised person annually and can conduct a review annually.

Supervision orders are indefinite; however, a major review of a supervision order must be conducted by the court three to six months before the expiry of a time period set by the court similar to what the sentence for the equivalent offending would have been.

Supervision orders can provide for treatment regimes residential requirements, and for the provision of specific services.

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