Friday 12 May, 2006

Dummies guide to the mental health legal system (NSW)

Posted in Emergency Dept., General Practice, May Su, Psychiatry at 14:47 by May Su

Original article by: May Su :: Printer friendly

The Mental Health Act can be a headache

A legal framework for mental health in New South Wales, Australia is legislated in the Mental Health Act (1990).

A patient can be admitted either as a Voluntary or Involuntary patient. If they choose to be admitted as a voluntary patient, then they are choosing to be in hospital of their own free will. Essentially, no further paperwork. Just like any other admission into hospital.

The problem occurs if you feel that a patient has to be detained for their own safety, however they do not wish to be admitted. In most circumstances, the patient has the right to choose, provided they have the capacity to make an informed decision.

Remember that the law is in place to protect the patient’s rights, and we have to respect that. This all stems back to the bad old days of the institutionalised mental health system in which there were very few guidelines preventing patients from being incorrectly detained and/or treated.

The Mental Health Act (1990) in NSW is fundametally designed to protect the patient’s rights

The current mental health act aims at the least restrictive form of care where possible.

It does allows for the fact that there are some conditions where the patient:

  • Is not in a frame of mind to make an informed decision;
  • and this may put them in at risk situations.

For this reason, the current mental health act allows us to detain patients that we feel fall into those two categories for assessment and/or treatment.

The “and” in the above two points is vital. If somebody is under the influence of intoxicants or acutely psychotic, but poses no risk to self, reputation, finances or others, we are not permitted to involuntarily detain them.

By the same token, even if a patient is stating that they wish to kill themselves, however there are no evident factors preventing them from making an informed decision regarding this, we are not permitted under the Mental Health Act to detain them. This is not a common scenario. Forensics is not discussed in this topic.

Detention and involuntary treatment of a patient can only be justified under the Mental Health Act when:

  1. The patient has symptoms or signs suggestive of a mental illness requiring treatment;
  2. and, they pose a risk of serious “harm” to themselves or to others.

At all times, this is under the auspices that the least restrictive environment that is appropriate is used.

Legal paperwork for involuntary admission

There are two basic processes required

  1. Transport
  2. Assessment.

Transport: Schedule 2, aka Section 21 and 22, aka “Schedule”

Basically this is a document that allows you to transport a patient from where ever they are, to a gazetted unit for assessment. It is not an admission document.

Even after a patient is admitted to one gazetted unit, if they require transfer to another gazetted unit while not under the Mental Health Act (for example, a voluntary patient), then another transport document is required.

Assessment: Form 1 and Form 2

If assessment for involuntary admission is to occur, then a statement of rights must be given to the patients, informing them of why they are being assessed. This is called a Form 1.

Assessment for involuntary admission must be performed by two doctors, the first assessment occurring within 12 hrs. One of the assessments must be completed by a psychiatrist. Both assessing doctors must complete a Form 2, which summarises:

  1. Is the patient mentally disordered?
  2. Is the patient mentally ill?
  3. If so, do they pose a risk of signficant harm to themselves (self, financial, reputation) or to others.

If they pose a risk to self or others and are mentally disordered, then the patient can be detained for a maximum of 3 days prior to further review. This is often useful for the intoxicated patient, allowing for a significant period of time for the intoxication to resolve.

If they pose a risk to self or others and are mentally ill, then the patient can be detained prior to seeing a magistrate at the earliest practical time.

Involuntary admission paper trail:

  1. Fill out Schedule 2: allows the patient to be transported (involuntarily) to a gazetted unit (usually a psychiatric hospital or some hospital emergency departments) for assessment;
  2. Give Form 1 to the patient (which lists their rights under the Mental Health Act)
  3. Assessment of the patient and fill out Form 2 within 12 hours.
  4. Assessment of the patient by a second doctor and fill out another Form 2 before appearing before the magistrate. One of the Form 2 documents must be completed by a psychiatrist.


By this time, the patient has been seen by two doctors, one a psychiatrist who deem that the patient is mentally ill, and also poses a risk to themselves or to others.

The role of the magistrate is arbitrate between the patient (with legal representation) and the treating medical team. He must determine whether the patient’s rights were upheld in this process – such that appropriate transport documentation (Schedule 2), assessment documention (Form 1 and Form 2) were completed, and that the patient has appropriate representation, including allowing friends and family if requested to be present.

It is the magistrate’s eventual decision whether the patient is deemed a mentally ill person or not, and whether this poses a risk to themselves or to others.

For the purposes of the Mental Health Act, it is the Magistrate who decides whether or not someone is a “mentally ill person”.

If the patient is deemed:

  1. Not a mentally ill person and/or not at risk to themselves or others:
    • then they cannot be detained under the Mental Health Act;
    • they have to be either discharged or choose to be voluntarily admitted to hospital.
  2. If deemed a mentally ill person and at risk to self or others:
    • then a plan must be arranged to institute treatment;
    • this can be via as an involuntary patient under a temporary patient order;
    • or in the commmunity under a community treatment order or community counselling order.
    • a decision at this time of whether a protected estates order is appropriate can be made.

Sometimes it may be difficult to make a decision of whether a patient is a mentally ill person (for the purposes of the Mental Health Act) and the magistrate may decide to adjourn (delay) the decision until further review. The patient can continue to be detained until further (Magistrate) review up to a maximum of 2 weeks.

Once a decision of whether the patient is a mentally ill person has been decided by the magistrate, any further decisions regarding the Mental Health Act have to be decided by a more specialised board known as the Mental Health Review Tribunal.

The Mental Health Review Tribunal in a box

  • It is an independent body established by the NSW Mental Health Act 1990;
  • upholds the civil and legal rights of people with mental illness;
  • ensures that they receive the best possible care in the least restrictive environment.

The Tribunal reviews case management plans proposed by psychiatric case managers and hospital staff. It does not prescribe drugs or treatments.

Each panel is chaired by a lawyer and must have one psychiatrist and one other suitably qualified person sitting on it. All Tribunal members have extensive experience in mental health.

Temporary Patient Order

Once a patient is deemed a mentally ill person (for the purposes of the Mental Health Act) then they can be involuntarily detained under the Act for up to 3 months. If additional treating time required then an extension of temporary patient order can be requested from the Mental Health Review Tribunal.

Community Orders

Once a patient is deemed a mentally ill person (for the purposes of the Mental Health Act) then they can be discharged to the community under the proviso that they abide by a community treatment order (CTO) or community Counselling Order (CCO).

Community Treatment Order:

The patient can be released in the community but must receive designated treatment as set out in the terms of the CTO by the agreed community healthy centre staff (often a case manager from a mental health team, or if unavailable a local medical officer). Treatment is usually in the form of observing tablets being taken, or a long acting depot antipsychotic (usually IMI injection given every 1-3 weeks).

If the patient refuses to abide by the terms of the CTO he or she must be given verbal warning. If they continue to abide by the terms if the CTO, then written warning is given and if this is again ignored then the patient can be detained involuntarily in hospital under the terms of the CTO. They do not have to be psychotic. No further scheduling or Form 2 is required.

If the patient requires a schedule while on a CTO, then the CTO becomes invalid. Do not be afraid of scheduling a patient if required because of this. If a patient is unmanageable that a schedule is required then it probably suggests that the CTO needs to be reviewed.

Community Counselling Order:

Very similar to a CTO, except that rather than the patient having to accept treatment in the form of medication, they must agree to see the designated counsellor at set times.

Protective Estates Order:

Once a patient is deemed a mentally ill person (for the purposes of the Mental Health Act), then a protective estates order can be requested either by a magistrate or by the tribunal.

This occurs when it is felt that by virtue of the patient’s mental illness they are no longer able to manage their own finances and pose a risk to themselves by continuing to do so.

It determines that the patient’s money is to managed by the Protective Estates Office. This can occur to varying degrees. For example, for some patients the Protective Estates Office pays the rent, however all other money is managed by the patient. In other situations, the entirety of the patient’s finances are controlled by the Protective Estates Office.


You will have to become au fait with the legal language. The confusion arises between “a person with mental illness” (which is a medical and clinical decision) and “mentally ill (or disordered) person” which is a legal term. This is often exacerbated by the fact many people simply shorten the term “mentally ill person” to “mentally ill”.

The NSW legislation is quite prescriptive about what “mental illness” means for the purposes of the Act. If you mean it in the legal sense, then you should use the proper terminology.

Mental Health Act 1990

Mentally ill persons

  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,
    • (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 effect of any such deterioration, are to be taken into account.

Mentally disordered persons

  1. A person (whether or not the person is suffering from a 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 harm, or
    • (b) for the protection of others from serious harm.


  1. Irina said,

    I would like to thank you for such an informative and useful article, but i would like to know more about mental health system in NSW as it could be useful in my research task

  2. Michael Tam said,

    What exactly did you want to know?

  3. Jade said,

    Thanks for the article, it is great. Would you happen to know anything on the power doctors have over patients under the NSW Mental Health Act? I am looking specifically for the Doctor summary, do you know where I can find it?


  4. May Su said,

    Thank you for your comment. I am glad that this article was helpful to you,

    I am not sure what you mean by “the Doctor summary”, however hopefully the below summary of some of the points regarding involuntary detention in hospital are helpful.

    The medical superintendent of a hospital (or the hospital doctor as their delegate) can involuntarily detain a patient if they are of the opinion that it is the least restrictive form of treatment. That is, that voluntary or outpatient treatment would be an inadequate form of treatment.

    This is under the condition that the doctor who detains the patient has examined or observed the patient and assessed them to be mentally ill or mentally disordered. They cannot be related to the patient or receiving financial gain from their admission.

    Once the patient is detained as an involuntary patient, they must be given a statement of their rights.

    The medical superintendent (or their delegate) can administer treatment (including medication) as they see fit to an involuntarily detained patient. The person who administers treatment must be aware of side effects, and aim to administer minimum required treatment.

    For ECT and surgical intervention to an involuntarily detained patient (whom by the nature of their admission cannot give informed consent), an application must be make to the tribunal.

    A special circumstance would be for the administration of medical or surgical treatment to a patient who cannot give informed consent where it is felt that the treatment is urgent and required to save the life of the person, or prevent serious damage to the person’s health.

    The above summary is taken from Sections 20, 21, 31, 201, 204 of the NSW Mental Health Act (1990)

  5. Hildy said,

    can you comment on the changes due to the enactment of the MHA 2007?

  6. Michael Tam said,

    Dear Hildy,

    We are in India at present but have received a copy of the NSW MHA 2007. I imagine that this article will be updated later this year.


  7. Shane said,

    I Just found this site and it looks pretty thorough. But, needs to be brought up to date with the new 2007 Act.
    Is this likely to happen any time soon?



  8. Katrina Anthoney said,

    I am a mental health professional working in NSW, Australia and I must let you know that the Act was Ammended in 2007 and now the numbers of the scheduling has changed. A lot of the changes are more consumer friendly. I am working on a university assignment. thanks

  9. May Su said,

    Thank you all for your comments.

    I am currently working on an update to this article allowing for the new changes from the new Mental Health Act 2007


    • Nick said,


      Thank you for your very informative fact sheet. Could you let me know if you have created the updated version for the 2007 version of the Act?

  10. I like to remind you NSW ACT has been changed some way although spirit remains same (my opinion).

  11. Sally Holder said,

    If it has already been stated in a Court of Law that a person suffers from a mental illness and that person has received money from the Federal Government for that stated disability, what are that persons’ legal right’s ? Can that person buy and sell property? Can they be appointed an executor of someone’s estate? Can they have a vehicle in their name and/or bank accounts in their name?

  12. Michael Tam said,

    I can only comment for the state of New South Wales, but the answer is yes to all those things.

  13. emily said,

    i have a couple of questions, why is a urine sample requested of a client before being admitted to a facility for treatment? and what are the legal implications if the client refuses treatment and it is discovered that the detention orders(form 2) has lapsed. the client is still unwell, can they be detained?

  14. May Su said,

    A urine sample may be requested for a number of reasons when a client is admitted to a mental health unit. The most common reasons may be to test for infection of the urine which may be causing a delirium, or to do a drug urine screen.

    In regards to your question about the detention order for involuntary admission of a mentally ill person, there is now a 2007 Mental Health Act.

    The transfer document Section 19 (previously Section 21 in the 1990 Act) allows the transfer of a mentally ill or disordered person to a declared mental health facility on the basis of a certificate by a medical practitioner (Schedule 1).

    Once the person is transferred, the person must be assessed by at least 2 authorised medical officers to determine if they can be detained involuntarily as a mentally ill or disordered person. One of these medical officers must be a psychiatrist. (Section 27)

    Section 27 in the 2007 Mental Health Act describes the requirements to detain a person involuntarily under the Mental Health Act (previously Sections 29-38 in the 1990 Mental Health Act):

    The person must be seen within 12 hours of arriving at the facility by a medical officer. They can only be detained if determined to be mentally ill or disordered.

    They must then be seen, as soon as practical, by another medical officer who must be a psychiatrist if the initial assessing medical officer was not a psychiatrist.

    Certification of mental state is with a Form 1 (previously known as Form 2 in the 1990 Act).

    By this time the person must have been given a Statement of Rights (Schedule 3, previously known as Form 1 in the 1990 Act).

    If the person is considered mentally ill or disordered by both medical officers then they may be detained until reviewed by the Magistrate which should occur “as soon as practicable”.

    If the second assessing medical officer deems the person not mentally ill then they must be assessed by another psychiatrist prior to being discharged.

  15. Tina said,

    i would like to know. if a person is involuntary detained[sectioned] for bipolar. at the time of the section they where a threat to others. this happened due to not taking medication. now the patient is saying thay will have the injection and has calmed down 100%.. he is at a tribunal case on the 29th can the mental heath act keep him section when he agrees to have the injection to keep him medicated.. in need of a detailed answer to his rights please.. im a family member..

  16. Michael Tam said,

    Dear Tina,

    Please be aware that this article refers to NSW legislation.

    I assume from your comment that there is a Mental Health Review Tribunal hearing planned. As such, I would assume that the person has been before the magistrate and been deemed a “mental ill person” as per the Act. In this case, yes, the treating team if they deem it appropriate can keep him in hospital until the Mental Health Review Tribunal.

    The tribunal will then need to make a decision/ruling on the proposed course of management. Whether a restrictive order like a community treatment order is put into place will depend on numerous factors including the likelihood of relapse and non-adherence with therapy.

    With regards to the details of the rights of the patient and obligations under the Act, I would strongly recommend you discuss this with the treating team or the hospital liaison officer.

  17. Tina said,

    Iasked you a question before, i have more information and wondered if you can help me understand. my friend was in legal trouble a couple of years ago. due to mental health[ bi-pola 1 ] he was medicated and put back into the community. but still under the home office. he had a relapse and did criminal damage to property. also scared the people who lived there. he was having a manic attack due to not taking medication for a year. which he continues to do since being a young man.. he has been placed back in hospital intesive care on a home office order 37.31.. he is fine now on medication and continues to improve. he has also said he will agree to depo injection insted of medication. what are his legal chances of going back to his home. and how long can they keep him sectioned when he is on the injections that are administered by the health team.also what is the order 37.31

    • Michael Tam said,

      It appears that you are from the United Kingdom. I am not and this article refers to Australian legislation in New South Wales.

  18. Tanya said,


    I have read that you are updating this website to reflect the MH Act 2007. When do you think it will be ready?

    I think its a fantastic website because as a ward clerk I need to know the basic parts of the Act but trying to read all that legal stuff really does my head in.

  19. Julie said,

    Hi, just wondering whether you may suggest ideas from a nursing professional requirements looking after an involuntary patient

  20. Tanya said,

    The Magistrate now has been replaced by the Mental Health Inquiry. I don’t know if this is just in New South Wales. Will the new guide incorporate this?

  21. kezoitKez said,

    This link provides easy access to NSW Mental Health Act (2007) documents.

  22. Maddie said,

    Hi I was wondering why patients needed their urine to be tested when being admitted to a mental health facility? Also what would be the role and responsibilities of an Enrolled Nurse be in the situation?

  23. Kim said,

    What information does a mental health practitioner have the right to disclose without written consent? LPC specifically…

  24. lloyd said,

    Yeah this looks very nice, but as someone who had their family member detained against their will aswell as their nominated next of kin’s. I do not at all believe you! The reality for us has been regardless of there being perinatal units that handle servere Post natal depression (that are less restrictive to all, especially the children involved) you will be laughed at, then have your partner detained anyway. You will allso be made to feel that that is your fault for not voluntarily going to a non perinatal unit. The extra joy is that when you try to go to the consumer advocate you will be told that they do not exist, by the very same “mental health” staff. If you ask for the emergency social worker you also be told that they too do not exist!

  25. Just a Gal said,

    I’ve been informed that if my bmi drops below 14 that I’ll be sectioned and force fed, and they seem to be pretty serious about it. Wondered at times whether it’s just been scare tactics, but I’ve only got 1.8kgs to go before I’ll be under a bmi of 14 and they seem adamant that if I keep losing weight they’ll be forced to have me hospitalized. I’ve tried to find information on patient’s rights in regards to being sectioned, but there doesn’t seem to be much on the topic other than: If you’re committed you’re screwed… and you’ll get some pieces of paper stating what your treatment plan is etc… I’m scared but I don’t know what to do at this point or who I can contact for help/info, even tried ringing the Eating disorders helpline and all they could suggest was for me to contact the local women’s health centre, I’m trying to eat more and kick this anorexia in the butt (with the help of the psychologist and psychiatrist), but at the rate I’m going I could end up in hospital by christmas or shortly thereafter.

  26. Just a Gal said,

    Also, I’m confused and have not been able to find any guidelines as to what if any criteria that someone with anorexia needs to meet in order to be sectioned? I know that if someone is medically unstable then that is grounds on it’s own (which I am not currently medically unstable so this is null and void in my case), and if they are suicidal or have suicide attempts (which I don’t currently have either) then that is considered good reason to have someone with anorexia sectioned if they won’t voluntarily go… but at what bmi is sectioning considered applicable? I can’t find anything on Australia’s guidelines in regards to this, like I know in some other countries, hitting a bmi of 13.5 (for first hospitalization) is considered the point at which the person can be hospitalized even if they aren’t medically unstable, but what are the laws/guidelines in Australia in regards to bmi and sectioning? Or are there none?

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