Transcript Mental Health Act 2007 - Community Legal Centres NSW

MENTAL HEALTH REVIEW TRIBUNAL
Community Legal Centre’s Conference
23 May 2013
Maria Bisogni
Deputy President
Agenda
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The Tribunal
Key provisions of the Mental Health Act, 2007
Tribunal proceedings
The orders that the Tribunal can make
Forensic patients
What is the Tribunal?
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An independent body established by the NSW
Mental Health Act 2007 which enforces and
applies the provisions of:
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The Mental Health Act 2007
The Mental Health (Forensic Provisions) Act 1990
The NSW Trustee and Guardian Act 2009
Where are we?
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The Tribunal is based at Gladesville where hearings can be
conducted
The Tribunal panels are also mobile, and travel to mental
health inpatient units and community mental health centres
throughout Sydney, Illawarra, Newcastle, Central Coast,
Goulburn and Orange
Hearings can be done by video conference or telephone for
outside areas (2011/12 – 39.5% in person, 51.8% by video
and 8.7% by phone)
Mental health inquiries in person or by video
Tribunal orders
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Involuntary Patient Orders (s 35 & s 37)
Review of Voluntary Patients (s 9)
Community Treatment Orders (CTO) (s 51)
Electro-Convulsive Therapy (ECT) (s 96)
Surgery and Special Medical Treatment (s 100)
Financial Management Orders (s 46) NSW Trustee
and Guardian Act 2009
The Tribunal panel
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Three member panels made up of a lawyer,
psychiatrist and suitably qualified other
member
Mental Health Inquiries chaired by single legal
member with the option to refer to a full
Tribunal panel
 Forensic hearings must be presided over by a
presidential member of the Tribunal; 110 parttime members
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Caseload of the Tribunal
2011-2012
 Civil hearings
 Financial Management
 Forensic hearings
13501*
219
928
14648
8.5% (1144) more hearings than 2010/11
* includes 4910 mental health inquiries (463 more
mental health inquiries than in 2010/11)
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Legal representation
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Legal representation in hearings - having a mental
illness/condition or developmental disability is
presumed not to be an impediment to representation (s
152).
Some provisions require it - forensic patients and
persons presented for a mental health inquiry (s
154).
Tribunal may approve of ‘another person’ chosen by
the patient to appear.
Most patients are represented by the Mental Health
Advocacy Service (Legal Aid).
Objectives of the Act (s 3)
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Provide care, treatment and control
Facilitate such care in the community
Provide care on a voluntary basis where appropriate,
and in limited situations on an involuntary basis
Right of access to care while protecting the patient’s
civil rights
Facilitate the patient and carer’s involvement in
decisions for care, treatment and control and discharge
Principles of Care and Treatment
S 68 ‘mentally ill’ and ‘mentally disordered’ persons are to
receive:
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Best possible care and treatment in the least restrictive environment
Plans for care and treatment should assist them to ordered to live, work and
participate in the community
Medicine must only be for therapeutic purposes and not for punishment or for
the convenience of others
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Information about treatment, alternatives and the effects of treatment should be
provided
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The person’s religious, age and cultural needs should be recognised and care
should be in accordance with professionally accepted standards
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The role of carers and their rights to be kept informed should be given effect
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The person should be involved in decisions about their care.
The nature of Tribunal proceedings (s
151)
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Tribunal hearings are to be conducted with as little formality and
technicality and as much expedition, as required under the legislation
“and as the proper consideration of the matters before the Tribunal
permit”.
Not bound by the rules of evidence, but can inform itself of any matter
in such manner as it thinks appropriate.
The hearings are public but the Tribunal can make orders restricting
this, if it is desirable to do so for the patient’s welfare or for any other
reason.
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Non publication provisions protect the identity of patients.
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Presumption of access to medical records.
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Hearings should be patient focussed and conducted in such a way that
does not endanger the therapeutic alliance.
Mentally ill and mentally disordered
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A person may only be admitted to a psychiatric hospital
involuntarily if they are mentally ill or mentally disordered.
A person is mentally ill if they suffer from a mental illness
and, owing to that illness, there are reasonable grounds for
believing that care, treatment and control of them is necessary :
 for the person’s own protection from serious harm or the
protection of others from serious harm.
In considering whether a person is a mentally ill person, the
continuing condition of the person, including any likely
deterioration in that condition is to be taken into account .
Mental illness - definition (s 4)
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A condition which seriously impairs, (temporarily or
permanently), the mental functioning of a person and is
characterised by the presence of any one or more of the
following symptoms or signs.
Delusions
Hallucinations
Serious disorder of thought form
Severe disturbance of mood
Sustained or repeated irrational behaviour indicating one or
more of the above symptoms
Mentally disordered persons (s 15)
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A person is mentally disordered (whether or not they suffer form
mental illness) if their behaviour is so irrational as to justify a
conclusion on reasonable grounds that temporary care, treatment
and control is necessary:
 for the person’s own protection from serious physical harm:
or to protect others from serious physical harm
The Tribunal must not determine that a person is mentally ill or
mentally disordered unless satisfied on the balance of
probabilities.
Must have due regard to cultural factors and expert evidence
about same and its relevance to mental illness.
Behaviours that do not indicate
mental illness or disorder (s 16)
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The Act makes it clear that the fact that a person
has a particular economic or social status or is a
member of particular racial or cultural group
cannot of itself be used to deem a person to be
“mentally ill” or “mentally disordered”.
Exclusion criteria (s 16)
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A person is not mentally ill or mentally disordered merely because of
any one or more of the following:
 religious beliefs, political beliefs or philosophy
 sexual preference/orientation
 sexual promiscuity
 immoral or illegal conduct
 developmental disability
 taking alcohol or drugs
 antisocial behaviour
 has a particular economic or social status or is a member of a
particular cultural/racial group
However, the serious psychological effects of alcohol or drug taking may
be regarded as a symptom of mental illness or disorder.
Pathways to detention
By police (s 22)
Mental Health
Certificate
Schedule 1 (s 19)
Transfer from
mental health
facility (s 25)
Detained
patient
Order of the Court
(s 33MH(CP)A)
(s 24)
AMO
s 27 - Examinations
‘assessable person’
Mental Health Inquiry
By ambulance
(s 20)
After order by Magistrate
for personal
examination (s 23)
Schedule 1 (s 19)
Written request by
primary carer,
relative or friend (s 26)
Patient’s rights
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Oral and written statement of rights to be
given after admission.
Nomination of a primary carer
Minimum medication consistent with proper
care to ensure they can communicate with their
representative
Right to communicate with a lawyer
Right to request discharge
S 27 medical examinations
Step 1 – mentally ill
Step 2 – mentally disordered
Step 1 – mentally ill
Step 2 – mentally ill
Third assessment
required if in Step 2 no
finding that the person
is mentally ill or
disordered
Step 1 – mentally disordered
Step 2 – mentally ill
Assessable
Person (s 17)
for whom a mental
health inquiry must
be held
Purpose of a Mental Health Inquiry
The purpose of the inquiry is to determine on the balance of probabilities
whether or not the Assessable Person (AP) is a mentally ill person and
should remain detained
The Act sets out what the Authorised Medical Officer must attend to:
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Able to wear street clothes
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An interpreter if appropriate
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Access to medical records unless refused by the Tribunal - representative
has access
Minimum medication consistent with proper care which does not interfere
with their ability to communicate
Legal representation or representation by another, with Tribunal leave.
Undertaking a Mental Health Inquiry (s
34)
During the inquiry the Tribunal is required to inquire whether:
 The patient has been given an oral and written explanation of their
statement of rights (s 74 Schedule 3) - If it could not be understood was
it given again 24 hours before the Inquiry?
 The patient was given written notice of the Inquiry
 All reasonably practicable steps been taken to notify the primary carer
The Tribunal must consider:
 The reports and recommendations of the doctors
 The effects of medication
 Cultural factors relating to the patient
 And other material placed before it.
Mental Health Inquiry outcomes
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If not mentally ill - discharge - can be deferred for up to 14 days.
If mentally ill:
 Discharge into the care of a primary carer
 A CTO for up to 12 months (subject to certain conditions)
 An involuntary patient order for up to three months provided there is no
other care of a less restrictive kind is appropriate and reasonable
available.
A financial management order must be considered if an involuntary patient
order (IPO) is made.
* note the patient must be given their appeal rights if an IPO is made as
soon as practicable.
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Adjournment power for up to 14 days - if notices not given and if in the
patient’s best interests.
Involuntary Patient Orders
Brought before Mental Health Inquiry
(maximum time = 3 months)
Status =
Involuntary
Patient
Mental Health Facility applies to MHRT to
extend order prior to expiry
s 37(a)
Status =
Involuntary
Patient
Review every 3 months in the first 12 months
s 37(b)
Status =
Involuntary
Patient
After 12 months review every
6 months or intervals up to 12 months
s 37(c)
Appeals against refusal to discharge
A patient or primary carer may apply to the AMO to be discharged from
the facility - verbally or in writing.
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The AMO must consider the application for discharge within three
working days
If the request is declined, the AMO must explain to the patient the
reasons for this, and note the decision on the patient’s file.
The patient or primary carer can then appeal this decision to the
Tribunal, or any failure to deal with the request in three working days (s
44).
At the appeal, the Tribunal must decide of the patient is a ‘mentally ill
person’ and whether being in hospital is the least restrictive alternative
consistent with safe and effective care.
What may the Tribunal decide at the
appeal?
At the hearing the Tribunal may:
 discharge the patient;
 dismiss the appeal (this means that the order detaining the patient remains in
force);
 reclassify the patient as a voluntary patient; or
 adjourn the hearing (s 155).
There is no limit on the number of times an Involuntary Patient may request
discharge. However, at an appeal hearing, the Tribunal may decide that no further
right of appeal may be exercised before the next scheduled review by the Tribunal
(s 44(5). The Tribunal can have regard to :
 The interval between the last decision and the appeal;
 The frequency of appeals;
 The last report by the authorised medical officer;
 Any other matter the Tribunal considers relevant.
Voluntary patients (s 5)
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Persons who admit themselves or who agree to remain as voluntary (s 5).
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A person under guardianship if the guardian makes a request to the AMO (s 7).
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The criterion for admission is the opinion of the Authorised Medical Officer that the
person is likely to benefit from further treatment and care (s 8).
A person under 14 cannot be admitted or remain voluntary over the objection of the
parents.
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Parents to be notified if a child under 16 is admitted.
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The Tribunal reviews a voluntary patient if admitted for continuous period of 12 months.
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Power to discharge and defer operation of that order for up to 14 days if in the
patient’s best interests.
An voluntary patient mat be detained by the AMO if the person is mentally ill or
mentally disordered (s 10).
An Involuntary Patient can be made voluntary by the AMO or Tribunal.
Community Treatment Orders
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A CTO requires a person to accept medication and
other treatment, whilst residing in the community or in
the case of forensic patients whilst in a correctional
centre. Orders can for up to 12 months but generally
are for maximum of six months.
Who can apply for a CTO?
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A medical practitioner or director of community treatment who is
familiar with the person’s clinical history
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The primary carer
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An authorised medical officer of the mental health facility
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The treatment plan and Notice must be given in writing to the
affected person
Application can be for someone who is in hospital or in the community,
or subject to any current CTO
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14 days notice if the person is not detained in a mental health facility
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In all other cases ‘reasonable notice’ is required.
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A CTO can be made in person’s absence (except at a mental health
inquiry)
Criteria for CTOs ( s 53)
The Tribunal must:
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Determine if the person should be subject to the order
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Consider the treatment plan and current or present/past efficacy reports.
A CTO may be made if:
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The person has a previous diagnosis of mental illness, and has previously refused
treatment and this has led to relapse, justifying involuntary admission, which did or
could have resulted in recovery or preventing further deterioration
The previous diagnosis criteria does not apply if the person was on a CTO in the last
12 months. The Tribunal must be satisfied that the person is likely to continue in or to
relapse into an active phase of mental illness.
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The CTO is the less restrictive option, consistent with safe and effective care
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The facility has a treatment plan it can implement and the patient is likely to benefit .
Requirements for treatment plans
The length of the CTO is based on the estimated time to:
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Stabilise the person’s condition or
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Establish a therapeutic relationship with a case manager
* no longer than 12 months
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The CTO requires the person to receive treatment, counselling,
management, rehabilitation and other services in accordance with the
treatment plan
The treatment plan it to outline in general terms the proposed
treatment and services and specifically how when and where the
services will be provided.
CTOs can be varied and revoked.
Breaches of CTOs (s 58)
If a person fails to comply with CTO and the Director is of the opinion that:
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The facility has taken all reasonable steps to implement the order.
There is significant risk of deterioration in the physical/mental condition of the
person.
Director is to record the opinion and the facts upon which they’re based and
cause the person to be informed that any further refusal will result in an order to
take the person to a mental health facility for treatment.
If non compliance continues, written notice to comply is given followed by written
order to take a person to a facility if there is further non compliance.
At the facility the person can be assessed given treatment and discharged or
detained in hospital.
If detained on a breach the Tribunal must review within three months.
ECT for Voluntary patients (s 96)
ECT is a treatment involving the passing of an electric current through
the brain via electrodes on the temple. It is commonly used for
treatment resistant depression. Strict guidelines apply:
 Voluntary patients who are capable can consent to ECT - consent
must be informed and in writing
 If unsure if voluntary patient can consent, then apply to Tribunal
for an ECT consent inquiry.
 Tribunal’s only role is to determine if the person can give informed
consent.
 A finding that patient cannot consent means that ECT cannot
proceed if patient is voluntary
 AMO can detain as involuntary (s 11).
ECT for Involuntary Patients
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ECT for involuntary patients (includes detained patients)
Tribunal is to consider two certificates that it is a
‘reasonable and proper treatment’ and ‘necessary or
desirable for their safety or welfare’ - wording is
important
If can consent - no other finding needed
If not, must find that it is reasonable and proper,
necessary and desirable for the patient’s safety or
welfare
ECT- Consent - s 96
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Informed consent requirement are set out in s 91
Presumption of incapacity to consent if the person is impaired
by medication
The Tribunal must check if notice has been given to the
primary carer
Inform the patient of the nature and possible results of the
Inquiry if the patient has not been informed
Inquire into the giving of medication and its effect of patient’s
ability to communicate
Consider the patient’s view and any other information.
ECT for Involuntary Patients
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Treatments may not exceed 12 (but can be more having
regard to the circumstances of the case - including the
success of any previous ECT) (s 96(4))
Has effect for six months from the day of determination,
unless a shorter period is specified (s 96(7))
Note: Medical Superintendent may refuse to administer
treatment even if the Tribunal has made a determination (s
90)
Financial Management Orders
The NSW Trustee and Guardian Act 2009 applies.
The Tribunal can make:
 An order at a mental health inquiry or on application (by a person
who has a sufficient interest in the matter)
 The Tribunal must be satisfied that the patient is not capable of
managing his/her affairs
 Interim orders, for no longer than six months may be made if it
appears to the Tribunal that is necessary or convenient to do so.
Another hearing must be relisted to review the interim order.
 The Tribunal can only make orders for a “patient” (includes detained
persons, voluntary and involuntary patients)
 An order can be in relation to the whole or part of the estate
 Can only appoint the Public Trustee.
Financial Management Orders
Evidence as to patient’s capacity to manage their financial affairs,
including history before hospitalisation, eg include:
 Details of the person’s assets and liabilities.
 Specific examples of any incapacity of managing finances, with
reference to any outstanding accounts, letters from creditors, bank
statements.
 Friends and carers viewpoint concerning the person’s ability to
manage.
 Test results or assessments regarding capacity.
Revocation of an order
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The Tribunal may revoke an order if satisfied that the
protected person is capable of managing his or her
affairs (s 88)
* must no longer be a patient
The NSW Trustee can terminate management if
satisfied that the person has capacity to manage (s
88)
FORENSIC DIVISION OF THE
MENTAL HEALTH REVIEW
TRIBUNAL
2012
Location of Provisions
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Provisions relating to review and management of those
patients subject to review by the Forensic Division of the
Tribunal are contained within Mental Health (Forensic
Provisions) Act 1990.
Procedures of Tribunal in Mental Health Act 2007.
The MHRT In Forensic Proceedings
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The Forensic Division of the Tribunal is to consist of the
following members (s 73):
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The President or Deputy President
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A psychiatrist, registered psychologist or other suitable
expert regarding mental conditions.
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Another suitably qualified or experienced member.
For release – the presiding member must be a holder or
former holder of judicial office.
In certain circumstances (such as informal reviews) Tribunal
can be constituted by President or Deputy alone
Objectives of the MHRT in forensic
matters?
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The key concern of the Tribunal (and the system as
a whole) is to manage and reduce the level of risk
posed by forensic patients to the community and to
themselves
Object is to provide least restrictive care consistent
with safe and effective management and treatment
What does the MHRT Do?
Forensic Patients
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The Tribunal reviews all forensic patients’ care, treatment, and
detention or release.
May make orders concerning:
 Transfer
 Leave
 Release (either subject to conditions or unconditionally)
 May make FCTO’s
Authority in relation to breach of leave or release
It considers the question as to whether or not the person is fit to
stand trial.
MHRT Resources on website
Hearing Kit and forms
 Information sheets for clients on types of
orders
 Treatment Plan Template and Guidelines
 Flow charts (contained in hearing kit)
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Helpful Contact Numbers
Centre for Mental Health & Drug and Alcohol
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9391 9307
Legal Branch
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9391 9606
Mental Health Advocacy Service (legal aid)
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9745 4277
Guardianship Tribunal
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9555 8500
Office of the NSW Trustee and Guardian
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8688 2600 or 1300 360 466