Mental Health Act 2007 (NSW)

Mental Health Act 2007 No 8 An Act to make provision with respect to the care, treatment and control of mentally ill and mentally disordered persons and other matters relating to mental health; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Mental Health Act 2007. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are— (a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and (b) to facilitate the care and treatment of those persons through community care facilities, and (c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and (d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and (e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment. Note— See also section 68 which contains principles for care and treatment and section 105 which sets out objectives for the New South Wales public health system. 4 Definitions (1) In this Act— accredited person means a person accredited under section 136. ambulance officer means a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act. assessable person—see section 17. authorised medical officer of a mental health facility means— (a) the medical superintendent of the mental health facility, or (b) a medical officer, nominated by the medical superintendent for the purposes of this Act, attached to the mental health facility concerned. community treatment order means a community treatment order in force under Part 3 of Chapter 3. correctional patient has the same meaning as it has in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Court means the Supreme Court. declared mental health facility means premises subject to an order in force under section 109. Deputy President means a person appointed as a Deputy President of the Tribunal. designated carer—see section 71. determination of the Tribunal includes an order, direction or decision of the Tribunal. director of community treatment—see section 50. exercise a function includes perform a duty. forensic patient has the same meaning as it has in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. function includes a power, authority or duty. guardian, in relation to the exercise of any function under this Act by the guardian of a person under guardianship, means a guardian who is able to exercise that function. involuntary patient means— (a) a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or (b) a forensic patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or (c) a correctional patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. medical superintendent— (a) of a declared mental health facility, means the medical practitioner appointed, under section 111, as medical superintendent of the facility, or (b) of a private mental health facility, means the medical practitioner appointed, under section 124, as medical superintendent of the facility. mental health certificate—see section 17. mental health facility means a declared mental health facility or a private mental health facility. mental health inquiry means an inquiry conducted by the Tribunal under Division 3 of Part 2 of Chapter 3. mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms— (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d). mentally disordered person—see section 15. mentally ill person—see section 14. parent, of a child, means any person having parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child. patient means a person who is admitted to a mental health facility in accordance with this Act and who is in the facility following the person's admission, and includes a person so admitted while absent from the facility either with or without leave of absence. person under guardianship means a person under guardianship within the meaning of the Guardianship Act 1987. premises includes any land, building and part of any building. President means the President of the Tribunal. principal care provider—see section 72A. private mental health facility means premises subject to a licence under Division 2 of Part 2 of Chapter 5. Secretary means the Secretary of the Ministry of Health. spouse means— (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) a de facto partner, but where more than one person would qualify as a spouse, means only the last person to so qualify. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. surgical operation—see section 98. Tribunal means the Mental Health Review Tribunal constituted under Chapter 6. voluntary patient means— (a) a person who has been admitted to a mental health facility under Chapter 2, or (b) a person who has been re-classified as a voluntary patient under this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act (other than in Schedule 1) do not form part of this Act. Chapter 2 Voluntary admission to facilities 5 Admission on own request (1) A person may be admitted to a mental health facility as a voluntary patient. (2) An authorised medical officer may refuse to admit a person to a mental health facility as a voluntary patient if the officer is not satisfied that the person is likely to benefit from care or treatment as a voluntary patient. (3) A person may be admitted to a mental health facility as a voluntary patient whether or not the person is a mentally ill person or a mentally disordered person. 6 Voluntary admission of children (cf 1990 Act, ss 13–15) (1) An authorised medical officer must, as soon as practicable after admitting a person under the age of 16 years as a voluntary patient, take all reasonably practicable steps to notify a parent of the person of the admission. (2) An authorised medical officer must discharge a person of 14 or 15 years of age who has been admitted as a voluntary patient if a parent of the person objects to the admission to the officer, unless the person elects to continue as a voluntary patient. (3) A person under the age of 14 years must not be admitted as a voluntary patient if a parent of the person objects to the admission to an authorised medical officer. (4) An authorised medical officer must discharge a person under the age of 14 years who has been admitted as a voluntary patient if a parent of the person requests that the person be discharged. 7 Voluntary admission of persons under guardianship (cf 1990 Act, s 16) (1) A person under guardianship may be admitted to a mental health facility as a voluntary patient if the guardian of the person makes a request to an authorised medical officer. (2) A person under guardianship must not be admitted as a voluntary patient if the person's guardian objects to the admission to the authorised medical officer. (3) An authorised medical officer must discharge a person under guardianship who has been admitted as a voluntary patient if the person's guardian requests that the person be discharged. 8 Discharge of voluntary patients (cf 1990 Act, s 65) (1) An authorised medical officer may discharge a voluntary patient at any time if the officer is of the opinion that the patient is not likely to benefit from further care or treatment as a voluntary patient. (2) A voluntary patient may discharge himself or herself from or leave a mental health facility at any time. (3) An authorised medical officer must give notice of the discharge of a voluntary patient who is a person under guardianship to the person's guardian. Note— Section 79 provides for appropriate information relating to follow-up care to be provided to patients being discharged. 9 Review of voluntary patients (cf 1990 Act, s 63) (1) The Tribunal must review, at least once every 12 months, the case of each voluntary patient who has been receiving care or treatment, or both, whether in a voluntary or involuntary capacity in a mental health facility for a continuous period of more than 12 months. (2) In addition to any other matters it considers on a review, the Tribunal is to consider whether the patient consents to continue as a voluntary patient and whether the patient is likely to benefit from further care or treatment as a voluntary patient. (3) The Tribunal may on a review order the discharge of the patient from the mental health facility. (4) The Tribunal may defer the operation of an order for the discharge of a patient for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so. (5) The medical superintendent of a mental health facility must notify the Tribunal of the name of any voluntary patient whose case the Tribunal is required to review. 10 Detention of voluntary patients in mental health facilities (cf 1990 Act, s 18A) (1) An authorised medical officer may cause a voluntary patient to be detained in a mental health facility under Part 2 of Chapter 3 if the officer considers the person to be a mentally ill person or a mentally disordered person. (2) Any such patient is taken to have been detained in the facility under section 19 when the authorised medical officer takes action to detain the patient. (3) A voluntary patient in a mental health facility may be detained for a period of up to 2 hours for the purpose of enabling an authorised medical officer to exercise the officer's functions under this section. 11 Review of decisions made by authorised medical officer to refuse admission or discharge voluntary patient (cf 1990 Act, s 19) (1) This section applies to a decision made under this Chapter by an authorised medical officer (other than a medical superintendent) to refuse a person admission to a mental health facility as a voluntary patient or to discharge a person as a voluntary patient. (2) The person affected by a decision may apply to the medical superintendent for a review of the decision. (3) The medical superintendent must review a decision as soon as practicable after receiving an application for its review and may confirm the decision, admit or discharge the person as a voluntary patient or take any other action under this Act that the medical superintendent thinks fit. Chapter 3 Involuntary admission and treatment in and outside facilities Part 1 Requirements for involuntary admission, detention and treatment 12 General restrictions on detention of persons (1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that— (a) the person is a mentally ill person or a mentally disordered person, and (b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person. (2) If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility, the officer must refuse to detain, and must not continue to detain, the person. (3) An authorised medical officer may, immediately on discharging a patient or person who has been detained in a mental health facility, admit that person as a voluntary patient. 13 Criteria for involuntary admission etc as mentally ill person or mentally disordered person (cf 1990 Act, s 8) A person is a mentally ill person or a mentally disordered person for the purpose of— (a) the involuntary admission of the person to a mental health facility or the detention of the person in a facility under this Act, or (b) determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a mental health facility, if, and only if, the person satisfies the relevant criteria set out in this Part. 14 Mentally ill persons (cf 1990 Act, s 9) (1) A person is a mentally ill person if the person is 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— (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account. 15 Mentally disordered persons (cf 1990 Act, s 10) A person (whether or not the person is suffering from mental illness) 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— (a) for the person's own protection from serious physical harm, or (b) for the protection of others from serious physical harm. 16 Certain words or conduct may not indicate mental illness or disorder (cf 1990 Act, s 11) (1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following— (a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief, (b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief, (c) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy, (d) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation, (e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity, (f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity, (g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity, (h) the person engages in or has engaged in immoral conduct, (i) the person engages in or has engaged in illegal conduct, (j) the person has an intellectual disability or developmental disability, (k) the person takes or has taken alcohol or any other drug, (l) the person engages in or has engaged in anti-social behaviour, (m) the person has a particular economic or social status or is a member of a particular cultural or racial group. (2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind. Part 2 Involuntary detention and treatment in mental health facilities Division 1 Preliminary 17 Definitions In this Part— assessable person means a person detained in a declared mental health facility for whom a mental health inquiry is required to be held under this Part. mental health certificate means a certificate given under section 19. Division 2 Admission to and initial detention in mental health facilities 18 When a person may be detained in mental health facility (1) A person may be detained in a declared mental health facility in the following circumstances— (a) on a mental health certificate given by a medical practitioner or accredited person (see section 19), (b) after being brought to the facility by an ambulance officer (see section 20), (c) after being apprehended by a police officer (see section 22), (d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23), (e) on the order of a Magistrate or bail officer (see section 24), (f) after a transfer from another health facility (see section 25), (g) on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26). (2) A person may be detained, under a provision of this Part, in a health facility that is not a declared mental health facility if it is necessary to do so to provide medical treatment or care to the person for a condition or illness other than a mental illness or other mental condition. (3) In this Act, a reference to taking to and detaining in a mental health facility includes, in relation to a person who is at a mental health facility, but not detained in the mental health facility in accordance with this Act, the detaining of the person in the mental health facility. Note 1— A person taken to and detained in a mental health facility must be provided with certain information, including a statement of the person's rights (see section 74). Note 2— A person authorised to be taken to and detained in a mental health facility under this Division may be taken to the facility by a person listed in section 81. 19 Detention on certificate of medical practitioner or accredited person (cf 1990 Act, s 21) (1) A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person's condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1. (2) A mental health certificate may be given about a person only if the medical practitioner or accredited person— (a) has personally examined or observed the person's condition immediately before or shortly before completing the certificate, and (b) is of the opinion that the person is a mentally ill person or a mentally disordered person, and (c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and (d) is not a designated carer, the principal care provider or a near relative of the person. (3) A mental health certificate may contain a police assistance endorsement that police assistance is required if the person giving the certificate is of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer. The endorsement is to be in the form set out in Part 2 of Schedule 1. (4) A mental health certificate may not be used to admit or detain a person in a facility— (a) in the case of a person certified to be a mentally ill person, more than 5 days after it is given, or (b) in the case of a person certified to be a mentally disordered person, more than one day after it is given. (5) In this section— near relative of a person means a parent, brother, sister, child or spouse of the person and any other person prescribed for the purposes of this definition. 19A Examination by audio visual link for purposes of mental health certificate (1) A medical practitioner or accredited person may examine or observe a person's condition using an audio visual link for the purpose of determining whether to issue a mental health certificate if it is not reasonably practicable for a medical practitioner or accredited person to personally examine or observe the person for that purpose. (2) A medical practitioner or accredited person must not carry out an examination or observation using an audio visual link unless the medical practitioner or accredited person is satisfied that the examination or observation can be carried out in those circumstances with sufficient skill and care so as to form the required opinion about the person. (3) The regulations may make provision for or with respect to the audio visual link technology that may be used for the purposes of this section and the medical practitioners who may examine or observe a person for the purposes of this section. 20 Detention on information of ambulance officer (1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person's welfare to be dealt with in accordance with this Act. (2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer. 21 Police assistance (1) A police officer to whose notice a police assistance endorsement on a mental health certificate, or a request for assistance by an ambulance officer under this Division, is brought must, if practicable— (a) apprehend and take or assist in taking the person the subject of the certificate or request to a declared mental health facility, or (b) cause or make arrangements for some other police officer to do so. (2) A police officer may enter premises to apprehend a person under this section, and may apprehend any such person, without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility. Note— Section 81 sets out the persons who may take a person to a mental health facility and their powers when doing so. 22 Detention after apprehension by police (cf 1990 Act, s 24) (1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that— (a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and (b) it would be beneficial to the person's welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law. (2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility. 23 Detention after order for medical examination or observation (cf 1990 Act, s 27) (1) A Magistrate or authorised officer may, by order, authorise a medical practitioner or accredited person to visit and to personally examine or personally observe a person to ascertain whether a mental health certificate should be issued for the person. (2) An order may be made if the Magistrate or officer is satisfied, by evidence on oath, that— (a) the person may be a mentally ill person or a mentally disordered person, and (b) because of physical inaccessibility, the person could not otherwise be personally examined or personally observed. (3) The order may also authorise any other person (including a police officer) who may be required to assist the medical practitioner or accredited person to accompany the medical practitioner or accredited person. (4) A person authorised to visit a person or accompany another person may enter premises, if need be by force, in order to enable the examination or observation to be carried out. (5) A person who is examined or observed under this section may be detained in accordance with section 19. (6) A person who takes action under an order must, as soon as practicable after taking the action, notify the person who made the order in writing of the action. (7) In this section— authorised officer means an authorised officer within the meaning of the Criminal Procedure Act 1986. 24 Detention on order of Magistrate or bail officer (cf 1990 Act, s 25) A person may be taken to and detained in a declared mental health facility in accordance with an order made under Division 3 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. 25 Detention after transfer from another health facility (1) A person may be transferred from a health facility to a declared mental health facility and detained in the mental health facility if a medical officer of the health facility, or the authorised medical officer of the mental health facility, considers the person to be a mentally ill person or a mentally disordered person. (2) Any such person is taken to have been detained in the declared mental health facility under section 19 when the person is transferred to the facility. 26 Detention on request of designated carer, principal care provider, relative or friend (cf 1990 Act, s 23) (1) A person may be detained in a declared mental health facility on a written request made to the authorised medical officer by a designated carer, the principal care provider or a relative or friend of the person. (2) An authorised medical officer must not detain any such person unless the officer is satisfied that, because of the distance required in order for the person to be examined and the urgency of the circumstances, it is not reasonably practicable to have the person detained on the basis of a mental health certificate. 27 Steps for medical examination requirements for ongoing detention in mental health facility (1) The following steps must be taken in relation to a person who is detained in a mental health facility under this Division— (a) Step 1 Initial examination by authorised medical officer An authorised medical officer must examine the person as soon as practicable (but not later than 12 hours) after the person arrives at the facility or after the person is detained after being a voluntary patient. The person must not be detained after the examination unless the officer certifies that, in the officer's opinion, the person is a mentally ill person or a mentally disordered person. (b) Step 2 Examination by second medical practitioner The authorised medical officer must cause the person to be examined by another medical practitioner as soon as possible after giving the certificate in step 1. The second examiner must be a psychiatrist if the authorised medical officer is not a psychiatrist. The second examiner must notify the authorised medical officer if of the opinion that the person is a mentally ill person or a mentally disordered person or if not able to form such an opinion. (c) Step 3 Examination by third medical practitioner if second examiner does not find person to be mentally ill or mentally disordered If the second examiner is not of the opinion that the person is a mentally ill person or a mentally disordered person, the authorised medical officer must cause the person to be examined by a medical practitioner who is a psychiatrist, as soon as practicable after being notified of that opinion. The third examiner must notify the authorised medical officer if of the opinion that the person is a mentally ill person or a mentally disordered person. (d) Step 4 Mental health inquiry or discharge An authorised medical officer must notify the Tribunal and bring the person before the Tribunal for a mental health inquiry if— (i) the person is found to be a mentally ill person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person or a mentally disordered person on examination in step 2 or step 3, or (ii) the person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person on examination in step 2 or step 3. The person must be brought before the Tribunal as soon as practicable after admission (subject to meeting the requirements set out above). If the third examiner does not find that the person is a mentally ill person or a mentally disordered person, the person must not be detained after the third examination. (e) Step 5 Mentally disordered persons If a person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and is found to be a mentally disordered person on examination in step 2 or step 3, the person may be detained in the mental health facility as a mentally disordered person. (2) Any certification under subsection (1) (a) or notification under subsection (1) (b) or (c) of the opinion that a person is, after an examination under this section or section 27A, a mentally ill person or a mentally disordered person, is to be in the form prescribed by the regulations. (3) Any form used for the purposes of this section or section 27A (as in force immediately before the commencement of this subsection) is, until such time as a form is prescribed for the purposes of subsection (2), taken to be the form so prescribed. 27A Examinations by medical practitioners or accredited persons for purposes of detention (1) If it is not reasonably practicable for an authorised medical officer of a mental health facility or other medical practitioner to personally examine a person or observe the person's condition for the purpose of determining under section 27 whether the person is a mentally ill person or a mentally disordered person, the person may be examined or observed for that purpose— (a) by a medical practitioner using an audio visual link, or (b) by an accredited person authorised by the medical superintendent of the mental health facility to examine or observe the person or observe for that purpose— (i) in person, or (ii) using