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A guide to the Mental Health Act 1990 What is the Mental Health Act? The Mental Health Act is the law which provides for the treatment of people with mental illness in hospitals and the community. It aims to protect the rights of people with mental illness or mental disorder whilst ensuring that they have access to appropriate care. This care is required to place as little restriction on the rights and liberty of the patient as the circumstances permit. To whom does the Act apply? The Act makes provision for the care of patients who:- 1. Are admitted to hospital voluntarily (called informal patients). 2. Are admitted to or detained in a hospital against their wishes (called temporary and continued treatment patients). 3. Are required to receive treatment in the community. 4. Have committed a criminal offence and are mentally ill (called forensic patients). Who can be detained in a psychiatric hospital without their consent? A person may be detained in a psychiatric hospital if they fall within the definition of a “mentally ill person” or “mentally disordered person” set out in the Act. A “Mentally Ill Person” must have one or a number of symptoms set out in the Act and as a consequence present a risk of serious harm to themselves or others. The symptoms listed in the Act are: hallucinations, delusions, serious thought disorder, serious mood disorder, or sustained irrational behaviour suggesting the presence of one of these symptoms. A “Mentally Disordered Person” is a person whose behaviour is so irrational that they place themselves or someone else at risk of serious physical harm. How does a person come to be detained in a psychiatric hospital without his or her consent? The most common way a person is detained in a psychiatric hospital is by a doctor completing a certificate that states that the person is mentally ill or mentally disordered. This certificate is called a Schedule 2. The doctor may only complete the certificate if she/he has seen the person and considers that no care other than hospital treatment is appropriate and available. As soon as possible after admission to hospital, the person will be examined by another doctor. If that doctor considers the person to be mentally ill or mentally disordered, a second examination will be arranged. If not, the person will be discharged. If after 2 (or in some circumstances 3) examinations, the medical superintendent considers the person to be mentally ill, then she/he will be brought before a magistrate. The magistrate will conduct a hearing to decide whether the person needs to remain in hospital. The person must be represented by a lawyer at the magistrate’s hearing unless she/he decides otherwise. Lawyers from Legal Aid attend each hospital to offer this representation. The magistrate may order that the person remain in hospital for up to three months although orders, when made, are usually for much shorter periods. The magistrate may also order treatment in the community. Persons found to be “Mentally Disordered Persons” may only be detained for 3 working days and do not come before a magistrate. People may also be admitted to a hospital following apprehension by the police if found committing a criminal offence or engaging in self harming behaviour. The procedure after admission is essentially the same. Do people in psychiatric hospitals have rights? The Mental Health Act sets out the rights of people detained in psychiatric hospitals. These include being given a notice of these rights on admission. Patients’ rights include:- How can a person obtain legal representation under the Act? Solicitors from the Mental Health Advocacy Service attend magistrate’s inquiries at all metropolitan hospitals and appear for patients free of charge. The service also coordinates free legal representation for patients throughout NSW. Patients can also organise a private lawyer at their own expense if they wish. What is the Mental Health Review Tribunal? The Mental Health Review Tribunal is a tribunal consisting of a lawyer, a psychiatrist and another suitably qualified member. It has many functions under the Mental Health Act including regularly reviewing all involuntary patients, hearing appeals and hearing applications for community treatment orders. What does the Act say about specific treatments? Medication A doctor is not allowed to administer any dosages of drugs which are excessive or inappropriate, but may authorise the giving of treatment to a detained patient. Electro-Convulsive Therapy (ECT) ECT is a treatment commonly used for severe depression. It may only be given to a voluntary patient with his/her informed consent. The Mental Health Review Tribunal must approve all plans to administer ECT to involuntary patients. Deep Sleep and Insulin Coma Therapies These procedures have been prohibited under the 1990 Mental Health Act. What are Community Orders? Two types of orders require patients to receive treatment in the community. They are called Community Treatment Orders (CTOs) and Community Counselling Orders (CCOs). They both require the person to be present at a specified time and place to receive treatment including medication and other therapy. The orders may only be made if it is the person’s first admission to hospital or they have in the past refused treatment leading to a deterioration in their mental condition. If a person fails to comply with a Community Treatment Order, they may be returned to a hospital for treatment. Further Information Mental Health Advocacy Service - Telephone (02) 9745 4277 Centre for Mental Health - (02) 9391 9000 Your local Community Health Centre (under “C” in the White Pages & at the front under “Where to find Mental Health Services”) Produced by the Mental Health Advocacy Service PO Box N1018 Burwood North, 2134 Telephone (02) 9745 4277 |
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