The Mental Health Act

All medical students and junior medical staff should have an awareness of the way the law impacts in relation to mental health.

For medical students at the Joint Medical Program I would recommend you are aware of the following issues:

• the definitions of mentally ill and mentally disordered and their differences under the Mental Health NSW (2007)
• what is the role of the medical officer in relation to people in the early stages of an involuntary admission (e.g. on presentation and on review)
• the rights of people with mental illness and the ethical principle of “least restrictive care”
• the role of the tribunal
• the purpose of Community Treatment Orders

In the majority of jurisdictions in developed nations the way care for persons with mental illness is to be provided (particularly in hospital) is generally codified in laws written by a parliament which are often referred to as Mental Health Acts or Mental Health Legislation.

Stemming back to 1991 when the UN published Principles for the Protection of Persons with Mental Illness Mental Health Acts have taken on a similar flavour around the world based on some of the principles espoused in this and later international documents, for e,g, the principle of least restrictive care*.

*This is a principle which is based upon the ethical pillars of autonomy along with justice and in some cases non-maleficence. Patients have the right to maintain their autonomy as much as possible and it is only when they have trouble exercising their autonomy or pose a risk to themselves or others that we limit their liberty. Even when patients have their autonomy restricted (for e.g. by being admitted to hospital) we attempt to provide least restrictive care by for e.g. assisting their family to visit, providing leave and giving choice around treatment options.

There are other areas of the law which doctors need to be familiar with, for example laws governing medical practice and laws governing the reporting of certain diseases and death certification but in my experience exposure to some of the aspects of the Mental Health Act in NSW can create significant feelings of discomfort or uncertainty in junior medical staff that they do not experience in other aspects of medicine.  This is probably because Mental Health law is applied on a daily basis in mental health facilities and often involves direct interactions with lawyers on (legal) grounds which lawyers are more comfortable with.

Useful resources for this module:

• HETI Higher Education has produced a small website explaining the MHA NSW (2007)
• HETI Higher Education has also produces a very useful Mental Health Act guidebook which all doctors working in acute inpatient psychiatry in NSW should make use of

Mentally Ill & Mentally Disordered

One of the more unique features of the NSW Mental Health Act are the dual options or definitions for detaining people involuntarily.

The use of mentally ill as a definition appears in the 1958 Act, whereas mentally disordered only appeared in the 1990 Act.  In both situations these definitions provide a reason or pathway to admission where a person’s behaviour is considered of a concern and where there is a risk to this person or other people and where no lesser restrictive option is available.

From here however the two terms depart somewhat in both there criteria as well as outcome.

Mentally Ill

When a person is defined as mentally ill under the MHA NSW.  4 Four criteria must be met:

Firstly, they must have a “mental illness”.  Welcome to the law where tautological statements are frequent!

A mental illness is quite specifically defined as a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence of one or more of the following symptoms:

• delusions
• hallucinations
• serious disorder of thought form
• severe disturbance of mood OR
• sustained or repeated irrational behaviour indicating the presence of one of more of the symptoms mentioned above.

Secondly, there must be a concern about “serious harm”.  Serious harm is a fairly broad term and is not defined under the Act.  The NSW Chief Psychiatrist circulated a communique in 2014 to give guidance on the definition of “serious harm”

Serious harm is intended to be a broad concept that may include:

• physical harm
• emotional/psychological harm
• financial harm
• self-harm and suicide
• violence and aggression including sexual assault or abuse
• stalking or predatory intent
• harm to reputation or relationships
• neglect of self neglect of others (including children).

Thirdly, clinicians are also required to consider the “continuous condition” of the patient.  This is an often overlooked but extremely useful aspect of the condition.  It can be used for e.g. to justify admitting a person involuntarily when there are early warning signs of a relapse of a chronic condition where in the past serious harm has occurred.

A Case highlighting continuous condition aspect:

Jim is a 32-year-old man with a diagnosis of Chronic Schizophrenia. When unwell in the past he has experienced auditory hallucinations and paranoia and required hospitalisation 3 times. He lost his job after his first episode age 23. He has been well now for 3 years on a depot medication and has recently managed to obtain some part-time employment. Jim’s family, however, reports that he has recently been declining to take medication and appears to be experiencing hallucinations. Whilst the family was unable to provide any evidence of current risk of serious harm Jim was admitted to hospital based on their having been evidence of such serious harm in the past and the fact that he has a continuing condition. Admission was brief as Jim agreed to recommence some medications and consented to the request for a Community Treatment Order from the Mental Health Review Tribunal.

Fourthly and finally the principle of least restrictive care must be considered in relation to the person.  Or as the MHA indicates:

no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available.

Mentally Disordered

The definition and criteria for declaring a person mentally disordered are simpler than for Mentally Ill.

Firstly, the person must be displaying “irrational behaviour“*.

*The term ‘irrational behaviour’ refers to behaviour which a member of the community to which the person belongs would consider concerning and not understandable.

Secondly, in deciding whether a person is ‘mentally disordered’ the only additional test for ‘irrational behaviour’ is that temporary care, treatment or control of the person is considered necessary to prevent serious physical harm to the person or others.

Note here the same principle of least restrictive care applies and the harm is now restricted to only physical harm, i.e. self-harm or suicide or violence towards others.  Harm to reputation or finances for e.g. cannot be considered.

So what’s the difference?

Most psychiatrists would likely indicate that the first difference is that persons should be declared mentally ill where the evidence supports such a definition, i.e., mentally disordered is a secondary option to mentally ill.

Most patients admitted involuntarily to a hospital in NSW will be admitted as mentally ill or in a few cases have their diagnosis changed to “mentally ill”.  There are areas of greyness, however.

The definition of mentally disordered is generally therefore limited to cases where the condition is self-limiting, for e.g. where a person is actively suicidal or acting out following a personal crisis (e.g. relationship break up) or often where the cause of the behaviour is suspected to be due to intoxication with substances.

A case highlighting differences between mentally disordered and mentally ill:

Jenny is a 24 year old woman with a history of substance abuse (mainly THC and amphetamine). Jenny was admitted to hospital briefly last year for paranoia. The discharge diagnosis was “drug-induced psychosis”. Jenny has represented to hospital again with paranoid delusions and feeling suicidal in the context of a recent binge on amphetamines. Jenny is initially admitted mentally disordered. However on day four Jenny remains psychotic and her family reports a significant decline in her function between admission. Jenny’s psychiatrist reviews her and determines that she more clearly now fits the definition of a mentally ill person under the Act.

The above case highlights the fact that for persons requiring longer involuntary admissions to hopsitals mentally ill is the more appropriate category.

There are other important differences between being made mentally ill or mentally disordered.

1. Persons who are made mentally disordered need to have their status reviewed by a medical officer every day
2. Persons who are made mentally disordered must be discharged within 3 working days
3. Persons who are made mentally disordered are generally not reviewed by the Mental Health Review Tribunal

The least restrictive alternative is an ethical concept that has a clinical application. Specifically, it refers to restricting a person’s autonomy as minimally as possible in the course of providing care.

Patient Rights

In our society these days, persons with mental illness do not stop having rights just because they have a mental illness (although sadly it was not long ago that this was the case for some people).

Patients in fact have many rights, even when admitted to hospital amongst these are the right to dignity*, the right to procedural fairness** and the principle of least restrictive care or the least restrictive alternative.

*Examples of this in the MHA include the right for patients to have visitors, access their money and to wear their own clothes.

**Based on the ethical pillar of justice. The right to procedural fairness includes: being given an explanation of your rights, having multiple reviews, access to legal representations & access to appeals.

Least Restrictive Alternative

In intervening in cases where someone has harmed or threatened to harm him or herself, one relies on the concept of the “least restrictive alternative” (LRA). The LRA is an ethical concept that has a clinical application. Specifically, the LRA refers to restricting a person’s autonomy* as minimally as possible in the course of providing care.

*Refers to the capacity of individuals to make informed and uncoerced decisions for themselves.

Patients may be resistant to, or at least ambivalent about, psychiatric interventions. The LRA attempts to strike a balance between the doctor’s duty to intervene in order to prevent his or her patient from coming to harm, that is to promote beneficence*, and the duty to respect an individual’s choices, (even if some choices may lack full autonomy because they are influenced by psychiatric symptoms). At the least intrusive end of the spectrum, the LRA may include discharging a patient home with clinical follow-up, if there are suitable supports in place and/or the patient has appropriate supervision, and if the patient has a relatively low risk of engaging in self-harming behaviour.

*Doctor’s should have the welfare of the person or patient as a goal of treatment. The antonym of this concept is non-maleficence.

A case highlighting the principle of least restrictive care:

Michael is a 45-year-old man with a history of Bipolar Illness. Michael’s relapse prevention plan indicates that when unwell he often forgets his medication and that Michael recognises that at this point he may need to be hospitalised and if this occurs requests that medication be made a minimum and that he be restabilized on Lithium, as this works best for him. Unfortunately, Michael undergoes a relapse and requires admitting to the hospital as he is manic, aggressive and spending all his money. As per his autonomous wishes described on his plan he is recommenced on Lithium. 3 weeks later he is able to be discharged from the hospital again as his autonomy has been restored to the point that he can recognize the benefits of maintaining his Lithium dose.

Your Role

The role of a junior medical officer in relation to the MHA can vary considerably depending on the setting.  Working in the Emergency Department, for example, you may be required at times to complete an initial assessment to detain a person for possible admission under the Mental Health Act. Otherwise known as Schedule 1 or Section 19 in NSW.

As part of an acute inpatient team, you may be required to complete one of the initial review assessments that occur when a person initially presents for possible admission.

You are very likely to be requested to conduct what is known as the daily review of a person who has been made mentally disordered.  In such circumstances, you should review the patient as well as their recent progress, document a current mental status and indicate in the notes if they do indeed remain mentally disordered.  Remember to seek help from seniors.

As part of an inpatient experience, there is also generally the opportunity to participate in a Tribunal hearing for one or more patients.

Inquiries & Tribunals

There is much that could be discussed about the Mental Health Review Tribunal process.  However, from a practical perspective of an intern or resident here are the things I think it’s important for you to be aware of:

1. As part of your regular process of reviewing your patient list be aware of who on your list is coming up for a tribunal hearing.  Your Nurse Unit Manager will probably remind you but there is usually a cut off period (normally a couple of days prior) for applying for an order from the Tribunal.  You should check with the rest of your team to ensure that there is a plan for what is requested and why.
2. You should always be given an opportunity to sit in on inquiries and tribunals before being required to present patients.
3. In preparing your application you are required to present a written report.  You should make sure that this is checked by a Registrar or Consultant Psychiatrist.  Sometimes there are templates available.  A good report canƒ minimise the need for distressing background details to be raised (or emphasised) during the hearing, ƒprovide a basis for understanding and/or negotiation between the treating team, the patient and the patient’s legal representative, focus the scope of the inquiry and therefore reduce confusion and/or distress.
4. The Mental Health Act describes the inquiry and tribunal process as not being meant to be an adversarial process.  Sadly, however, because of the fact that there are two sides sometimes presenting opposite views (the definition of an adversarial process), it remains adversarial.  It is important in these circumstances to understand the two types of witnesses in a legal context.

This is the most common form of witness in a court. In such cases, the person testifying has no special status and should restrict their comments to the facts observed.

The court refers additional evidentiary responsibilities to those with additional training. In these cases, expert witnesses can also provide an opinion on the facts. Doctors are treated as expert witnesses at Mental Health Inquiries and Tribunals. Therefore if a legal representative attempts to for e.g. challenge whether a patient has delusions or not it is perfectly valid for you to simply disagree based upon your “expert opinion”.

Community Treatment Orders

Community treatment orders (CTOs) provide an alternative to involuntary treatment. They are intended to allow consumers, who might otherwise be detained in a mental health facility, to live in the community while receiving care and treatment.

Initial CTO applications are normally (but not always) made during the course of an involuntary hospital admission.  They are considered by the Mental Health Review Tribunal and adequate notification is required for both the tribunal, the patient, as well as the prospective community mental health team.

A written application is required for the Tribunal (this is written by the doctor on the inpatient team) as well as a treatment plan outlining proposed treatments, as well as frequency and places of contact (this is written by the prospective community case manager.

As a junior member of the treating team, you can do yourself a favour by remembering to consult the community team well in advance if your team is considering a CTO for a patient. CTOs normally last for 12 months. Repeated failure to adhere with the conditions of a CTO may lead to a process called “breaching CTO” and ultimately may result in a return to the hospital as an involuntary patient.

Compulsory community treatment is now a major tool for the treatment of mental illness, and the making and review of these orders provide the Mental Health Review Tribunal in NSW with a significant proportion of its workload.

Research suggests that these orders have reduced readmission rates and increased compliance with medication. However, less is known about the impact of compulsory community treatment on the consumer’s psychosocial functioning, quality of life, perceived distress and rehabilitation outcomes.

Sadly many CTO renewals occur without the consumer’s participation, representation or advocacy. Wherever possible, the consumer’s participation at these hearings should be encouraged.  In addition, some patients will opt for the CTO option as a means of leaving the hospital early.  This could be ethically seen as a form of duress.  It may be difficult for a patient to weigh up the difference between a few more weeks and hospital versus 12 months of compulsory treatment in the community.