Important Concepts

Contributed by Stephen Tang and current to March 2022.

The Act contains a number of concepts and phrases which have a specific and sometimes unusual definition. To understand how the Act works, it is therefore important to understand the particular meaning of these concepts, which may be quite different from how the words and phrases are ordinarily understood, even by mental health professionals.

This section provides a brief overview of key concepts in the Act, which are discussed throughout the rest of this chapter. Other key concepts, such as Advance Agreements, Advance Consent Directions, Nominated Persons and Decision Making Capacity is discussed in Making Decisions about Mental Health Treatment, Care and Support.

Mental Illness

The definition of ‘mental illness’ used throughout the Act is found in section 10. This definition is then applied as one of the criteria for determining whether certain actions can be taken under the Act, including providing involuntary treatment, care and support to a person. However, the presence of mental illness alone is never sufficient for action to be taken under the Act.

The Act defines mental illness as ‘a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person in one or more areas of thought, mood, volition, perception, orientation or memory’. There must also be clinical evidence of the condition by way of either of the following:

• The presence of one or more of the following symptoms:
  ○ Delusions (a false belief about reality that is firmly held despite what almost everyone else believes and despite all the evidence to the contrary);
  ○ Hallucinations (seeing or hearing things, or sometimes feeling or smelling things, which are not actually there);
  ○ Serious disorders of streams of thought (severe problems with how the person’s thoughts are processed and expressed, including the speed and volume of thinking);
  ○ Serious disorders of thought form (severe problems with organising and linking thoughts, often observed through the person’s speech);
  ○ Serious disturbance of mood (such as a severe depressive episode or manic episode); or
• Sustained or repeated irrational behaviour that indicate the presence of one or more of the symptoms mentioned above.

The symptoms listed above mean that clinical diagnoses of disorders such as schizophrenia or other psychotic disorders, bipolar disorder or severe depression are likely to meet the definition of mental illness. However, the legal definition requires more than just a clinical diagnosis. There must be clear evidence of the symptoms, behaviours and impairment as listed in section 10. These things must be present at the time not only when the person is assessed, but when the decision under the Act is to be made (e.g. when ACAT is considering whether or not to make a Psychiatric Treatment Order (PTO)).

Section 11 states that a person cannot be regarded as having a mental illness only because they:

• Hold, or refuse to hold, a particular political opinion, religious belief or philosophy;
• Have a particular sexual orientation or preference;
• Engage, or do not engage in, a particular political, religious or sexual activity;
• Engage in illegal, immoral conduct or anti-social behaviour; or
• Use or are affected by alcohol or any other drug.

Mental Disorder

Along with mental illness, ‘mental disorder’ is the other core concept in the Act which is a threshold requirement for many decisions to be made. The definition of mental disorder is found in section 9, as ‘a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion’.

Section 9 goes on to exclude a condition which is a mental illness (as defined in section 10) as being a mental disorder. That is, the same condition cannot be simultaneously a mental disorder and a mental illness. However, a person may have a mental illness and a mental disorder which are separate conditions. In practice, mental disorders includes disorders such as developmental disorders, intellectual disabilities, dementia, and some personality disorders and eating disorders. The presence of a mental disorder by itself is never sufficient for action to be taken under the Act.

Section 11 states that a person cannot be regarded as having a mental disorder only because they:

• Hold, or refuse to hold, a particular political opinion, religious belief or philosophy;
• Have a particular sexual orientation or preference;
• Engage, or do not engage in, a particular political, religious or sexual activity;
• Engage in illegal, immoral conduct or anti-social behaviour; or
• Use or are affected by alcohol or any other drug.

Treatment, care and support

Many parts of the Act (and this chapter) talk about the provision of mental health ‘treatment, care and support’. This phrase is defined in the Dictionary section at the end of the Act as: ‘things done in the course of the exercise of professional skills to remedy the [mental] disorder or [mental] illness or lessen its ill effects or the pain or suffering it causes’.

The definition goes on to mention the giving of medication, counselling, training, therapeutic and rehabilitation programs, care or support as specific examples of ‘treatment, care and support’. The definition of ‘treatment, care and support’ is therefore wide, and reflects the Principles of Treatment, Care and Support in the Act that mental health care involves more than medical or psychological treatment, but also involves other important things to promote recovery, reduce impairment and improve the person’s overall health and wellbeing. However, things which are not done by a mental health professional or in accordance with a mental health professional’s qualifications and expertise are not considered to be ‘treatment, care and support’.

Chief Psychiatrist

The Chief Psychiatrist is a position which is created under the Act (known as a statutory appointment). The Chief Psychiatrist is a senior psychiatrist employed by ACT Health who is appointed by the Minister for Mental Health (s 196 Mental Health Act).

Under the Act, the Chief Psychiatrist is responsible for providing treatment, care or support, rehabilitation and protection for persons who have a mental illness (s 197 Mental Health Act). More specifically, the Chief Psychiatrist is directly responsible for the treatment, care and support of people who are subject to Psychiatric Treatment Orders (PTOs) made by ACAT (s 62(1) Mental Health Act). This role is delegated to consultant psychiatrists, who are senior psychiatrists working with ACT Health (s 200 Mental Health Act). The consultant psychiatrist who is part of the treating team therefore makes decisions and provides treatment, care and support on behalf of the Chief Psychiatrist.

The Chief Psychiatrist also has an oversight role over the public mental health system, and may provide reports and recommendations to the Minister for Mental Health in relation to the provision of mental health services in the ACT (s 197 Mental Health Act). The Chief Psychiatrist also has a number of other roles in the Act, including the appointment and direction of Mental Health Officers and Private Psychiatric Facility Inspectors.

Care Coordinator

The Care Coordinator is the other statutory appointment under the Act. The Care Coordinator is a senior and experienced official in ACT Health who is appointed by the Minister for Mental Health (s 205).

As its name suggests, the Care Coordinator is responsible for coordinating the provision of treatment, care or support to people with a mental disorder in accordance with Community Care Orders (CCOs) made by the ACAT (s 70(1)). This includes coordinating a care team to provide treatment, care or support, arranging the accommodation or detention for the person, and coordinating the provision of medication or other treatments. The Care Coordinator typically appoints a delegate for each person subject to a CCO. The delegate must be an appropriately qualified and experienced person. The is usually, but does not necessarily need to be, an ACT Government employee.

The Care Coordinator also has an oversight role over people with mental disorder in the ACT community, and may provide reports and recommendations to the Minister for Mental Health in relation to the provision of services for people with mental disorder (s 205).

Mental Health Officer

Mental Health Officers are senior clinicians (a nurse, authorised nurse practitioner, psychologist, occupational therapist or social worker) employed by ACT Health who are authorised to apprehend people and take them to an approved mental health facility under the Act. This happens most commonly when conducting an Emergency Apprehension or following a contravention of a Mental Health Order (s 80).

A Mental Health Officer is appointed by the Chief Psychiatrist after demonstrating that they have the experience and knowledge to use these powers in a way which is consistent with the requirements and principles of the Act (under s 201(1), Mental Health Officers are appointed by the Minister for Mental Health, but this function has been delegated to the Chief Psychiatrist (see Legislation (Mental Health Officers) Delegation 2016 (No 1)). Before using their powers under the Act, a Mental Health Officer must show their ACT Health identity card which states that they are a Mental Health Officer.

Carer

The Act makes it clear that carers and others who support a person with mental illness or mental disorder should be involved in the person’s treatment, care and support, if this is what the person wants (ss 6(j)(ix), (x), (xi) and (xii)). The Act therefore defines ‘carer’ narrowly in section 12, to ensure that only those who have a close personal connection to the person can participate in these important decisions.

For the Act, a carer is someone who provides personal care, support or assistance to a person who has a mental disorder or mental illness. However, they are not a carer if they are paid in their caring role, or provide care as a volunteer for a charitable, welfare or community organisation. Also, someone is not a carer just because they are a family member or domestic partner: they must show that they actually provide care, support or assistance to the person. People who do not fall into the definition of ‘carer’ but are trusted by the person to be part of their care planning and decision-making can be appointed as Nominated Persons.

Approved Mental Health Facility

An Approved Mental Health Facility is the term used in the Act to refer to a hospital or health service where a person can be be detained under a PTO to receive treatment, care and support. Approved Mental Health Facilities are approved by the Minister for Mental Health (s 261). There are currently five Approved Mental Health Facilities: all of the Canberra Hospital, all of Calvary Public Hospital Bruce (except for the Emergency Department), the Dhulwa Mental Health Unit, the Brian Hennessy Rehabilitation Centre and the University of Canberra Hospital.

Under ACT Health policy, the Canberra Hospital Emergency Department is the only approved mental health facility where a person can be brought following an Emergency Apprehension.

Approved Community Care Facility

An Approved Community Care Facility a hospital or health service place where a person can be detained to receive treatment, care and support under a CCO, if there is an Restriction Orders in place or if the person is in contravention of the CCO. Approved Community Care Facilities must also be approved as such by the Minister for Mental Health (s 262). At the moment, all Approved Mental Health Facilities are also Approved Community Care Facilities.

ACT Civil and Administrative Tribunal (ACAT)

The ACT Civil and Administrative Tribunal (ACAT) is an independent legal body which has the authority to hear and resolve a wide range of legal matters in the ACT. In relation to mental health law, the ACAT is the main decision-maker under the Act. For instance, it decides whether or not to make Mental Health Orders, and can hear applications by people who wish to appeal or challenge their detention or treatment under the Act. The role of the ACAT is to ensure that decisions made under the Act are fair, transparent and lawful. ACAT will often hold hearings before making a decision under the Act. This gives the person who is the subject of the decision, the treating team, and other relevant people, to make their views known so that ACAT can make a decision based on all the evidence.