Amendments to the Mental Health Act 2007
The Mental Health Act 2007 recently underwent a review and the Mental Health Amendment (Statutory Review) Act 2014 was passed by Parliament in November 2014. These changes come into effect from 31 August 2015.
The Ministry of Health has issued an Information Bulletin setting out the key changes. The Bulletin can be accessed from the NSW Health Website or by clinking on the following link: Mental Health Act Changes: Information Bulletin.
Relevant information and Forms have been updated on the Documents page of the Tribunal's website. Additional forms can be accessed from the Legistation page of the Minsitry of Health website: MHA Legislation and Forms.
Education & Training
• The NSW Institute of Psychiatry (10P) has been contracted by the Ministry to provide an Education and Training project on the Act amendments. Current activities include:
o Development and provision of 1-2 hour information sessions to relevant NSW Health staff on the legislative changes over the next three months. Each LHD and Specialty Network is being offered up to two sessions. These sessions are currently being organised by the 10P.
o Development and provision of Fact Sheets for particular stakeholder groups. The Fact Sheets are currently subject to final review and it is planned that these will be provided to relevant stakeholders in the near future.
Primary carers, designated carers and principal care providers
• From 31 August, primary carers will be known as designated carers. Any primary carer nominations that are current as at 31 August will remain in force, although they will be known from that date as designated carer nominations.
• Schedule 6 of the Mental Health Amendment (Statutory Review) Act 2014 addresses this issue:
"A person who was the nominated primary carer for a person immediately before the amendment of section 71 by the Mental Health Amendment (Statutory Review) Act 2014 is taken to be the designated carer of that person for the purposes of this Act [the Mental Health Act 2007] until the nomination is revoked or otherwise ceases to be in force under this Act."
• From 31 August, consumers will be able to nominate up to two designated carers, subject to certain restrictions (a consumer under Guardianship or who is under the age of 15 cannot nominate their designated carers — see s71(1)). The Ministry has requested that authorised medical officers and directors of community treatment should take all reasonably practicable steps to ensure that consumers who are eligible and who already have a designated carer, are offered the opportunity to nominate an additional designated carer under s72.
• The Ministry of Health has also requested that authorised medical officers and directors of community treatment should make reasonable attempts to identify the principal care provider of a consumer from 31 August. Section 72A provides a definition of the principal care provider and identifies the relevant duties and functions of authorised medical officers and directors of community treatment.
The Mental Health Review Tribunal is a specialist quasi-judicial body constituted under the Mental Health Act 2007. It has a wide range of powers that enable it to conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness.
The Tribunal has a president, two full time and eight part time deputy presidents, a registrar and approximately one hundred part time members. Other than for mental health inquiries which are generally conducted by a single legal member of the Tribunal, each Tribunal panel consists of three members: a lawyer who chairs the hearing, a psychiatrist, and another suitably qualified member. All Tribunal members have extensive experience in mental health, and some have personal experience with a mental illness or caring for a person with mental illness. A number of the part time Deputy Presidents are former judges.
The Tribunal conducts hearings in hospitals and community health centres throughout the Sydney, Wollongong, and Newcastle metropolitan regions, and also in Goulburn and Orange. The Tribunal conducts hearings for people living outside these areas either by video conference or by telephone.
The Tribunal has a wide jurisdiction, and conducts both civil and forensic hearings.
In its civil hearings, the Tribunal may:
- conduct mental health inquiries and make Involuntary Patient Orders authorising the continued involuntary detention of a person in a mental health facility;
- review involuntary patients in mental health facilities, usually every three or six months, and in appropriate cases every twelve months;
- review voluntary patients in mental health facilities, usually every twelve months;
- hear appeals against an authorised medical officer’s refusal to discharge an involuntary patient;
- make, vary and revoke Community Treatment Orders;
- hear appeals against a Magistrate’s decision to make a community treatment order;
- approve the use of ECT for involuntary patients;
- determine if voluntary patients have consented to ECT;
- approve surgery on a patient detained in a mental health facility;
- approve special medical treatment (sterilisation); and
- make and revoke orders under the NSW Trustee and Guardian Act 2009 for a person’s financial affairs to be managed by the NSW Trustee.
The Tribunal also reviews the cases of all forensic patients:
- who have been found not guilty by reason of mental illness;
- who have been found unfit to be tried; or
- who have been transferred from prison to hospital because of a mental illness.
The Tribunal’s decisions can involve the consideration of quite complex issues, and can impact directly on people’s lives, health and liberty. In making its decisions, the Tribunal seeks to balance several sets of often competing rights - the individual’s right to liberty and safety and to freedom from unnecessary intervention, the individual’s right to treatment, protection and care, and the right of the community to safety and protection. Given the importance of these decisions, it is essential that the Tribunal receives the very best evidence available when hearing applications and making its decisions.
The Tribunal actively seeks to pursue the objects of the Mental Health Act (s3). These are:
- to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and
- to facilitate the care and treatment of those persons through community care facilities, and
- to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and
- while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and
- to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.
The Mental Health Act establishes principles for care and treatment (s68) as follows:
- people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given,
- people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards,
- the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,
- the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others,
- people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment and be supported to pursue their own recovery,
- any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,
- any special needs of people with a mental illness or mental disorder should be recognised, including needs related to age, gender, religion, culture, language, disability or sexuality,
- people under the age of 18 years with a mental illness or mental disorder should receive developmentally appropriate services,
- the cultural and spiritual beliefs and practices of people with a mental illness or mental disorder who are Aboriginal persons or Torres Strait Islanders should be recognised,
- every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and recovery plans and to consider their views and expressed wishes in that development,
- every effort that is reasonably practicable should be made to obtain the consent of people with a mental illness or mental disorder when developing treatment plans and recovery plans for their care, to monitor their capacity to consent and to support people who lack that capacity to understand treatment plans and recovery plans,
- people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand,
- the role of carers for people with a mental illness or mental disorder and their rights under this Act to be kept informed, to be involved and to have information provided by them considered, should be given effect.
The Tribunal is also cognisant of the requirements of the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, as well as the National Mental Health Service Standards.