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Involuntary admissions under The Mental Health Act 2000 (NSW): Your rights and what you can expect – Healthcare

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The Mental Health Act 2007 (NSW) (the ‘Act’) deals with
involuntary admissions.

What is an involuntary admission?

Involuntary admission involves a person going into to a mental
health unit against their will. The Act sets out strict criteria
that must be met before someone can be involuntarily admitted.
These are:

  1. The person must have a mental illness or mental disorder;

  2. There must be no other care of a less restrictive kind (such as
    at-home support from family, support from a community mental health
    team, or voluntary admission), that is appropriate or reasonably
    available (s 12(1)).

Mentally ill vs Mentally disordered

While these terms are similar, there are some differences
between classification as mentally ill and
mentally disordered.

Under the Act, a ‘mentally ill person’ is someone
suffering from mental illness and, owing to that illness, there are
reasonable grounds for believing that care, treatment or control of
the person is necessary-

  1. for the person’s own protection from serious harm, or

  2. for the protection of others from serious harm (s 14)

A person is a ‘mentally disordered person’ if the
person’s behaviour for the time being is so irrational as to
justify a conclusion on reasonable grounds that temporary care,
treatment or control of the person is necessary-

  1. for the person’s own protection from serious physical harm,

  2. for the protection of others from serious physical harm (s

What is the process for involuntary admission?

Only certain people can begin the process of involuntary

These are:

  • Medical practitioners (s 19)

  • Ambulance officers or paramedics (s 20)

  • Police (s 22)

  • A Magistrate (s 23)

  • A designated carer, principal care provider, relative, or
    friend, where they make a written request to an authorised medical
    officer of a declared mental health facility (s 26)

In most cases, the first step towards involuntary admission
involves a doctor or qualified mental health worker examining or
observing the person and completing a ‘Schedule 1’.

Once a Schedule 1 is complete, family, friends, or mental health
workers can take the person to the hospital to be admitted.
Sometimes police or ambulance officers are asked to help. Police
and ambulance officers can also request that someone be assessed at
a declared mental health facility.

What happens once you arrive at a declared mental health

Once someone goes to a declared mental health facility for
admission, they can only go into detention if two doctors agree
that their detainment is necessary and lawful under the Act. One of
these doctors must be a psychiatrist. If the second doctor does not
find the person to be mentally ill or mentally disordered, a third
doctor may examine the person. If a majority of these doctors
believe that the person is mentally ill or disordered, the
admission of the person occurs.

How long will you stay at a declared mental health

If you are considered a ‘mentally disordered person’,
authorities can keep you in a hospital for up to three continuous
working days, or in other words, three days not including weekends
or public holidays.

If you are considered to be a ‘mentally ill person’, you
may be kept in a hospital until the Mental Health Review
(‘The Tribunal’) holds a mental health
inquiry. Your admission goes for review by the Tribunal after you
have been in hospital for at least one week.

If you remain in hospital for more than two weeks, the Mental
Health Review Tribunal (MHRT) must see you.

What rights do you have while detained?

While detained, you may be given treatment against your wishes.
The Mental Health Act has some safeguards in place to protect your
interests during this time:

  • You must be examined by an authorised medical officer at least
    every 24 hours.

  • If an authorised medical officer decide you are no longer a
    mentally disordered person, or that less restrictive care is
    appropriate or reasonably available, you must be released.

  • You cannot be detained for being a mentally disordered person
    more than three times in one calendar month.

  • You have the right to see an official visitor, request to be
    discharged, and appeal to the Tribunal against any refusal to be

The Act also states that ‘every effort that is reasonably
practicable’ should be made to involve you in the development
of your treatment and recovery plans, and your plans for ongoing

When can I leave?

Involuntary patients cannot discharge themselves from hospital.
However, you can make a request for discharge to the
Authorised Medical Officer at any time. They must
respond within three working days.

If they refuse your request, you can appeal the decision to the
Tribunal. The Tribunal will ‘stand in the shoes’ of the
decision-maker and must discharge you if they satisfy themselves
that you are not a mentally ill person or there is less restrictive
care available. You may be discharged:

  1. into your own care,

  2. into the care of a Designated Carer or Principal Care

  3. or on a Community Treatment Order for no more than 12

At any time during a detainment, a person’s Primary Carer
can also apply to the Authorised Medical Officer for the discharge
of the person. A doctor must assess the person, and a decision is
due within three working days. This decision is also subject to
appeal to the Tribunal.

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