NSW Mental Health Act 2007) No. 8 Guide Book

0809101112131415APPENDICESAIMS AND OBJECTIVES OF THE MENTAL HEALTH ACT 2007Chapter 1AIMS AND OBJECTIVES OF THEMENTAL HEALTH ACT 2007The NSW Mental Health Act 2007 (the ‘Act’)contains a range of aims and objectives thatunderline the central place of community basedcare, the importance of involving consumerswherever possible in decisions about theircare and treatment, and acknowledge theimportant role played by carers. While theseprinciples do not create any legally enforceablerights or entitlements they are intended toprovide guidance in the daily administration ofthe Act (s195).1.1 to provide for the care and treatment andpromote the recovery of a person who ismentally ill or mentally disordered; andto facilitate the care and treatment of a personwho is mentally ill or mentally disorderedthrough community facilities; andto facilitate the provision of inpatient care ona voluntary basis where appropriate, and onan involuntary basis in a limited number ofsituations; andNSW MENTAL HEALTH ACT (2007) GUIDE BOOKto protect the civil rights of a person whois mentally ill or mentally disordered, whileproviding them with access to appropriatecare, and, where necessary, provide treatmentfor their own protection or the protection ofothers; andto facilitate the involvement of a person whois mentally ill or mentally disordered andtheir carer(s) in decisions about their careand treatment.treatment and any alternatives, and should besupported to pursue their recovery; any restriction of liberty and interference withthe rights, dignity and self-respect of a personis to be kept to the minimum necessary inthe circumstances; each person’s particular needs should beconsidered, including those related to age,gender, religion, culture, language, disabilityor sexuality;1. people under the age of 18 yearsshould receive developmentallyappropriate services;1.2 PRINCIPLES OF CARE ANDTREATMENT (S68)The Act sets out a list of key principles for thecare and treatment of people with a mental illnessor mental disorder. These can be summarisedas follows: OBJECTS (S3)The objects of the Act can be summarisedas follows: people should receive the best possiblecare and treatment in the least restrictiveenvironment enabling the care and treatmentto be effectively given; care and treatment should be timely, highquality and in line with professionallyaccepted standards; care and treatment should be designed toassist people, wherever possible, to live, work,and participate in the community; medication should meet the health needs ofthe person and be given for therapeutic ordiagnostic needs and not as a punishment orfor the convenience of others; 2. Aboriginal people and Torres Strait Islandersshould have their cultural and spiritualbeliefs and practices considered;people should be given information abouttheir treatment that includes the effects ofpeople should be involved in the developmentof treatment and recovery plans andshould have their views considered wherereasonably practicable;1. every reasonably practicable effort shouldbe made to gain the person’s consentwhen developing their treatment andrecovery plans, to monitor their capacityto consent and to support those who maylack the capacity to consent to understandthese plans; people should be informed of their rights andentitlements under the Act, in a language andmanner that they are most likely to understand; the role of carers and their rights to be keptinformed, be involved, and have the informationthey provide considered, should be given effect.5

0809101112131415APPENDICESDEFINITIONSChapter 2DEFINITIONSThere are two key definitions that anyone workingwith the Act should understand: a mentally ill person;a mentally disordered person.These definitions provide the framework formany of the decisions made by mental healthprofessionals and others who are authorised toexercise functions under this Act. In particular,it is these definitions that determine who canbe involuntarily admitted to a declared mentalhealth facility.2.1 WHO IS A MENTALLY ILL PERSONUNDER THE ACT?Definition (s14)A mentally ill person is someone who is sufferingfrom a mental illness and, owing to that illnessthere are reasonable grounds for believing thatthe care, treatment or control of the personis necessary: for the person’s own protection from seriousharm, or for the protection of others from serious harm.In considering whether someone is a mentally illperson, their continuing condition, including anyNSW MENTAL HEALTH ACT (2007) GUIDE BOOKlikely deterioration in their condition and the likelyeffects of any such deterioration, are to be takeninto account.What is a mental illness for the purposes of theAct? (s4)Mental illness for the purposes of the Act means acondition that seriously impairs, either temporarilyor permanently, the mental functioning of aperson and is characterised by the presence ofone or more of the following symptoms: delusions; hallucinations; serious disorder of thought form; severe disturbance of mood; sustained or repeated irrational behaviourindicating the presence of one of more of thesymptoms mentioned above.The symptoms included in this definition shouldbe given their ordinary accepted meanings inthe psychological sciences, without reference tooverly clinical complexities or distinctions. Forexample a ‘delusion’ may be considered to be afalse, fixed and irrational belief held in the faceof evidence normally sufficient to negate thatbelief; and a ‘hallucination’ is a subjective sensoryexperience for which there is no apparent externalsource or stimulus.The main characteristic of ‘serious disorder ofthought form’ is a loss of coherence: one ideadoes not follow or link logically to the next. A‘severe disturbance of mood’ refers to a sustainedand profound change in mood that substantiallyimpairs a person’s level of functioning.The term ‘irrational behaviour’ refers to behaviourwhich a member of the community to whichthe person belongs would consider concerningand not understandable. In deciding whethera person is ‘mentally ill’ the term ‘irrationalbehaviour’ includes the additional test that it canbe inferred from the behaviour that the person issuffering from delusions, hallucinations, seriousdisorder of thought, or severe mood disturbance.In determining whether a person is ‘mentallyill’ the irrational behaviour must be sustainedor repeated.What is serious harm?A Communique from the NSW Chief Psychiatristwas provided to Local Health Districts andSpecialty Networks in 2014. It provides guidanceto clinicians making involuntary treatmentdecisions, regarding the ‘serious harm’ criterionin the Act. The Communique states that, whilstserious harm is not defined in the Act, it isintended to be a broad concept that may include: physical harm stalking or predatory intentemotional/psychological harmfinancial harmself-harm and suicideviolence and aggression including sexualassault or abuseharm to reputation or relationshipsneglect of selfneglect of others (including children).6

0809101112131415APPENDICESDEFINITIONSWhen making decisions under the Act, cliniciansshould undertake a comprehensive assessmentof the person including a review of the person’shistory of mental and physical illness, familyhistory, psychosocial factors impacting onthe presentation, and evaluation of the risk ofself‑harm and of harm to others. The assessmentshould include consideration of the harm that mayarise should an illness not be treated.What is a continuing or deterioratingcondition? (s14(2))This Chapter of the Act requires clinicians to notonly consider a person’s symptoms at the time ofan assessment, but also: the person’s clinical history includingtheir degree of insight and their capacityor willingness to follow a voluntarytreatment plan; the likely impact on the person’s prospects forimprovement or recovery if there is a failure tocomply with a treatment plan; the possible serious harm that may occur tothe person or others, if the person is not ableto be engaged in assessment and treatment.Is there a less restrictive environment forthe safe and effective provision of care andtreatment? (s12(1))A person must not be involuntarily admitted to,or detained in, or continued to be detained in,a mental health facility unless the authorisedmedical officer is of the opinion that: the person is a mentally ill (or mentallydisordered) person, and no other care of a less restrictive kind, thatis consistent with safe and effective care, isappropriate and reasonably available.Thus even where an assessment leads to the viewthat a person is mentally ill, involuntary admissionmay not be necessary or appropriate. The clinicianalso needs to assess the person’s social resourcesand consider any realistic options, for examplewhat can be expected of friends and family?What can the community mental health teamprovide? Is a voluntary admission possible? Is aCTO appropriate?CONTINUING CONDITION“The phrase ‘continuing condition’ invites the clinician and the decision maker to use an involuntarytreatment order to assist a person in avoiding the ‘revolving door syndrome’. This can be done byensuring that the person is admitted when necessary, and receives involuntary treatment for longenough to lessen the risk of an early serious relapse.”Mental Health Review TribunalNSW MENTAL HEALTH ACT (2007) GUIDE BOOKIssues to be considered in deciding whethera person should be detained as a mentallyill person: is there a mental illness as defined in s4, and is there a risk of serious harm to the person orothers, and has the person’s continuing condition orlikelihood of deterioration and its effects beenconsidered, and; is there a less restrictive environment in whichappropriate care, control and treatment can besafely and effectively provided?2.2 WHO IS A MENTALLY DISORDEREDPERSON UNDER THE ACT?Definition (s15)A mentally disordered person is someone whosebehaviour is so irrational that there are reasonablegrounds for deciding that the temporary care,treatment or control of the person is necessaryto protect them or others from seriousphysical harm.What is irrational behaviour?The term ‘irrational behaviour’ refers to behaviourwhich a member of the community to which theperson belongs would consider concerning andnot understandable. In deciding whether a personis ‘mentally disordered’ the only additional testfor ‘irrational behaviour’ is that temporary care,treatment or control of the person is considerednecessary to prevent serious physical harm to theperson or others.7

0809101112131415APPENDICESDEFINITIONSWhat is serious physical harm?It has no special legal meaning and is to beunderstood in its everyday usage that includes: This category is most commonly used where a person is actively suicidal or out of control following apersonal crisis, e.g. a relationship breakup. Intoxication with drugs and alcohol and impulsivity oftenfeature in these situations.risk of self-harm or suiciderisk of violence to others.Is there a less restrictive environment for theprovision of care and treatment? (s12(1))A person must not be involuntarily admitted to,or detained in a mental health facility unless theauthorised medical officer is of the opinion that: MENTALLY DISORDEREDthe person is a mentally disordered person, andno other care of a less restrictive kind, thatis consistent with safe and effective care,is appropriate and reasonably available tothe person.Issues to be considered in deciding whethera person should be detained as a mentallydisordered person: is the behaviour so irrational that temporarycare, treatment or control is necessary? is there a risk of serious physical harm to theperson or others? is there a less restrictive environment in whichappropriate care, control and treatment can besafely and effectively provided?these criteria are neither determinative nor evenindicative of either mental illness or mentaldisorder within the meaning of the Act.A person is therefore not to be defined as‘mentally ill’ or ‘mentally disordered’ merelybecause of any one or more of the following: the person expresses or refuses or fails toexpress a particular religious opinion or belief; the person expresses or refuses or fails toexpress or has expressed or refused or failed toexpress a particular philosophy; the person expresses or refuses or fails toexpress or has expressed or refused or failedto express a particular sexual preferenceor orientation; the person engages in or refuses orfails to engage in, or has engaged in orrefused or failed to engage in, a particularpolitical activity; the person engages in or refuses orfails to engage in, or has engaged in orrefused or failed to engage in, a particularreligious activity;2.3 EXCLUSION CRITERIA (S16)These have been included to prevent the Act’spotentially broad compulsory detention powersbeing used to control behaviour that is not relatedto mental illness or mental disorder. In themselves,NSW MENTAL HEALTH ACT (2007) GUIDE BOOKthe person expresses or refuses or fails toexpress or has expressed or refused or failed toexpress a particular political opinion or belief; the person engages in or has engaged in aparticular sexual activity or sexual promiscuity; the person engages in or has engaged inimmoral conduct; the person engages in or has engaged inillegal conduct; the person has an intellectual disability ordevelopmental disability; the person takes or has taken alcohol or anyother drug; the person engages in or has engaged inanti‑social behaviour; the person has a particular economic or socialstatus or is a member of a particular cultural orracial group.However, the exclusion criterion that refers tothe taking of alcohol or drugs does not preventthe consideration of the serious physiological,biochemical or psychological effects resultingfrom the use of a substance in order to meet thedefinition of a mentally disordered or mentallyill person (s16(2)).8

0809101112131415APPENDICESDEFINITIONS2.4 DIFFERENCES BETWEEN A MENTALLYILL AND MENTALLY DISORDEREDPERSON UNDER THE ACTThe Act specifies a different set of procedures andconsequences for each category. These are dealtwith under Involuntary Admissions (Guide Book,Chapter 6).2.5 SOME OTHER IMPORTANT DEFINITIONSAND ROLESAccredited personAn accredited person is a suitably qualified andexperienced senior mental health clinician whois not a doctor, such as a nurse, psychologistor social worker, who is authorised to write theSchedule 1 certificates and Form 1s (in certaincircumstances) (Guide Book, Chapter 6.2) thatunderpin the process of involuntary admission.Accredited persons are appointed by theSecretary of the Ministry of Health or delegateunder s136 of the Act.Ambulance officerMeans a member of staff of the NSW HealthService who is authorised by the Secretaryto exercise functions of an ambulance officer(paramedic) under the Act.NSW MENTAL HEALTH ACT (2007) GUIDE BOOKAssessable personAn assessable person is someone who has beendetained in a declared mental health facility as amentally ill person but has not yet been reviewedby the Mental Health Review Tribunal (theTribunal) at a mental health inquiry (s17).Authorised medical officerAn authorised medical officer is either the medicalsuperintendent of a declared mental healthfacility, or a doctor who has been nominatedby the medical superintendent to fulfil certainresponsibilities and make various decisions underthe Act mainly relating to: Initial assessment of patients Ongoing assessment of patients to determine ifthey need to continue to be detained Care and treatment of people who are mentallyill or mentally disordered, including consent tosurgical operations Decisions about whether a patient shouldbe discharged.In nominating a medical officer as an authorisedmedical officer, the medical superintendent isresponsible for ensuring that the medical officerhas an understanding of their responsibilitiesunder the Act and that they have the relevant levelof knowledge, skill and experience to undertakethis role. The medical superintendent should alsoensure that authorised medical officers have 24/7access to appropriate consultation and support,as well as supervision and resources to help themmeet their responsibilities.The medical superintendent is required tonominate the authorised medical officer in writing,specifying the name of the medical officer, andsigning and dating the written nomination.The medical superintendent is required tomaintain an up-to-date register of authorisedmedical officers who work in the declared mentalhealth facility. The register is to include thefollowing information: Name of the authorised medical officer Date of nomination as an authorisedmedical officer A copy of the written nomination Date the medical officer ceased to be anauthorised medical officer at the declaredmental health facilityThe authorised medical officer should be on theregister for each declared mental health facility inwhich they work.ConsumerA consumer is a person who has the experienceof using mental health services, or the livedexperience of a mental illness or mentalhealth disorder.9

0809101112131415APPENDICESDEFINITIONSDeclared mental health facilitiesDeclared mental health facilities are premisessubject to an order in force under s109. Thesepremises are declared by the Secretary of theMinistry of Health to fulfill certain functions underthe Act.There are three classes of facility:1 A mental health emergency assessmentclass that deals with short term detention forinitial assessment and treatment (all declaredEmergency Departments fall in this class)2 A mental health assessment and inpatienttreatment class that allows for the full rangeof inpatient functions under the Act (this classincludes Psychiatric Emergency Care Centres)3 A community or health care agency class toadminister community treatment orders.It is important all staff working with the Act,in particular those with the authority to takea person to a declared mental health facilityagainst their will for the purpose of assessment(i.e. accredited persons, NSW Police, and NSWAmbulance officers (paramedics)) be familiar withtheir local declared mental health facilities.A list of declared mental health facilities can beobtained by emailing the Mental Health Branch atMOH-mentalhealthbranch@health.nsw.gov.au. Theemail should indicate which of the three classesof listings is required – Emergency, Inpatientor Community.NSW MENTAL HEALTH ACT (2007) GUIDE BOOKDesignated carerA designated carer (who may also be a principalcare provider) is someone who is entitled tocertain information about a consumer’s careand treatment, and is entitled to be notified ofcertain events (unless excluded from being giveninformation by the consumer) (Guide Book,Chapter 4).Involuntary patientAn involuntary patient is someone who is detainedfollowing a mental health inquiry.Medical superintendentThe me

mental health services. This Guide Book aims to support mental health staff in applying the NSW Mental Health Act 2007 which makes no reference to 'consumers' and instead uses the terms 'patient' and 'person' when referring to people who have a mental illness or disorder and are assessed for a mental health illness or disorder.