Carers Factsheet – Mental Health Legislation

The Mental Health Act 2007 (the Act) was changed on 31 August 2015 following a major review of the legislation. Information is provided in this fact sheet to assist carers to understand the changes to the Act. Further information on the Act can be found at Mental Health Act 2007 and Mental Health Regulation 2013.

About the Act

Under the Act a person who is mentally ill or mentally disordered may be detained.

Who is a mentally ill person under the Mental Health Act?

A mentally ill person is someone who has a mental illness and, because of that illness, there are reasonable grounds for believing the person requires care and treatment in a mental health facility in order to protect them and/or others from serious harm.

Serious harm is not defined in the Mental Health Act 2007 but the term can be understood to 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)

Who is a mentally disordered person under the Mental Health Act?

A mentally disordered person is someone whose behaviour is so irrational there are reasonable grounds for believing the person requires care and treatment in a mental health facility to protect them and/or others from serious physical harm.

Who is a mental health consumer?

A mental health consumer is a person who has a lived experience of a mental health illness or mental health disorder, and/or a person who is receiving treatment from a mental health service (either voluntarily or involuntarily).

The general theme of the changes to the Act is a greater focus on the consumer’s recovery

The general intent of the Act has been amended to promote a consumer’s recovery by encouraging clinicians to take into account the consumer’s views and wishes about their treatment (s3).

The principles for care and treatment in the Act (s68) have been changed so that mental health clinicians should now have a greater focus on the individual’s recovery through, as far as practicable:

Supporting the person to pursue their own recovery;
Making every effort to obtain the person’s informed consent when developing treatment and recovery plans, to monitor their capacity to consent, and to support those who lack the capacity to understand their plans;
Considering the special needs related to a disability or the sexuality of the person;
Providing developmentally appropriate services to young people aged under 18 years; and
Recognising the cultural and spiritual beliefs and practices of Aboriginal consumers and Torres Strait Islander consumers in their care and treatment.

Changes to the Act which directly affect Carers

The amendments to the Act strengthen the role of carers and the importance of involving them in the treatment and recovery of mental health consumers.

Changes to provisions for the initial detention of a person

The Act has been amended to explicitly state that an accredited person[1] or a medical practitioner may examine or observe a person via an audio visual link for the purposes of writing Part 1 of Schedule 1 (s19A). The audio visual amendments have been designed to reduce time required for travel to facilities for assessment.

The use of an audio visual link for these assessments is subject to the following conditions:

It may only occur where it is not reasonably practicable to personally examine or observe the person (s19A(1));
The accredited person or the medical practitioner must be satisfied that they are able to examine or observe the person with sufficient skill and care so as to form the required opinion about the person (s19A(2)).

The Act also explicitly states that a medical practitioner may examine or observe a person via an audio visual link when undertaking a Form 1 assessment.

Changes to provisions for the ongoing detention of a person

Section 27A allows an accredited person to personally observe and examine a person where an authorised medical officer or other medical practitioner is unavailable. An accredited person may not undertake Form 1 assessments by audio visual link.

The Act now requires the assessing clinician to seek and consider the views of carers, family members, treating health professionals and relevant emergency services personnel, where practicable, when making determinations about a person’s potential need for ongoing involuntary treatment (s72B). Such determinations include Form 1 assessments and consideration of discharge.

Primary carers and designated carers

The term ‘primary carer’ in the Act has been changed and is now known as a ‘designated carer’ (s71). Any primary carer nominations that were current as at 31 August 2015 remain in force, although they are known from that date as designated carer nominations.

The designated carer is the person, nominated by the consumer, who has a close and personal relationship with them and is interested in their welfare, but does not necessarily provide day to day support for them. The amendments to the Act allow a consumer to now nominate up to two designated carers. The exceptions to this are if the consumer is under Guardianship[2] or under the age of 15. In these circumstances they cannot nominate their designated carers (s72(1)), rather the Act sets out who their designated carers are.

Principal care providers

A new type of carer has been added to the Act, the principal care provider (s72A). The principal care provider is the person who is primarily responsible for providing day to day support and/or care but is not wholly or substantially paid on a commercial basis (s72A(1)).

The principal care provider may also be the designated carer of the person (section 72A(5)) and, has similar rights for access to information about a consumer as the designated carers.

Where not nominated by the consumer, a principal care provider may be nominated in addition to the two designated carers by the treating clinicians (s72A(2)). However a person cannot be the principal care provider if they have been excluded by the consumer from being given notice or information (section 72A(3)).

In addition, the treating clinicians are not required to give notice or information to the principal care provider, or to appoint a person as the principal care provider if they reasonably believe that to do so may put the person or principal care provider at risk of serious harm (section 72A(4)).

In cases where a consumer has excluded a principal care provider or designated carer, and there are reasonable grounds for believing that the consumer at the time lacks capacity to make such decisions, and/or such an exclusion would increase the risks to the consumer or carer; the request may be placed on hold (s72(7)(a) & (b)). Once the consumer has regained capacity (or the risks abated), the matter can be revisited with the consumer with a view to amend the exclusion where the consumer is willing to do so.

Notification of carers of certain events

Designated carers and principal care providers are to be notified by the treating clinicians of events affecting the consumer, such as when the consumer is:

detained in a mental health facility;
absent from the facility without permission, or fails to return at the end of a period of leave;
to be discharged;
reclassified or admitted as a voluntary patient;
considered for a community treatment order and an application is being made to the Mental Health Review Tribunal;
under a Community Treatment Order (CTO) which is being varied or revoked;
considered for Electro Convulsive Therapy (ECT) and an application is being made to the Mental Health Review Tribunal;
believed to require a surgical procedure or special medical treatment and consent is being sought from the Mental Health Review Tribunal or the Ministry of Health;
to be transferred, or has been transferred, between mental health facilities.

Designated Carer(s) and the Principal Care Provider can make a request to:

have the person they are caring for admitted to a mental health facility;
be provided with information about the types and dosages of medication being administered to the consumer;
have an Official Visitor [3] visit;
appeal to the Tribunal against the refusal to discharge a patient.

Young persons

Young persons under 16 years of age must now be provided with legal representation for all Mental Health Review Tribunal hearings unless the Tribunal determines it would be in the person’s best interests to proceed without representation (s154(4)).

Where Electro Convulsive Therapy (ECT) is proposed for a voluntary or involuntary patient who is under 16 years of age, an assessment by a psychiatrist with expertise in child and adolescent development is now required (s94(2A)). The approval of the Tribunal must be obtained in all such cases, even where the young person has capacity and has consented to ECT (s96 (3A)).

Providing support to carers – relevant links

The NSW Family and Carer Mental Health Program provides educational sessions for the families of people living with a mental illness and is funded by the NSW Ministry of Health through the Mental Health Drug and Alcohol Office. Full details of the Family and Carer Mental Health Program can be found at www.health.nsw.gov.au/mhdao/Pages/family-mh.aspx. Further information on support for Carers can be found at Carers NSW and Mental Health Carers NSW (formerly ARAFMI)