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ACCREDITED PERSONS UNDER THE MENTAL HEALTH ACT             2007IN THE CONTEXT OF ADMINISTRATIVE DECISION- MAKING          ...
2                         It is therefore essential   that accredited persons familiarise themselves with the nature and  ...
3                       in the sense just described,                        when attention is directed,                   ...
4     FOR ANY ADMINISTRATIVE DECISION- MAKER IS …                   DO I HAVE POWER TO ACT?An administrative decision-make...
5         capricious, irrational or not bona fide. In short, the opinion         required to be formed does not exist in l...
6 OTHER RULES OF ADMINISTRATIVE DECISION- MAKINGBad Faith / Improper PurposeA decision-maker must not exercise its powers ...
7of its jurisdiction”, could ever have reached the decision in question).This means, among other things, that a decision-m...
8to whether a particular person is “non-compliant” based on pastbehaviour); people can change over time.Acting inflexibly ...
9      1.   The audi alteram partem (or “hearing”) rule: the right to a fair           hearing.      2.   The nemo judex (...
10for, in law, the bare minimum requirement of the hearing rule is thegiving of “notice” of the decision.Each case will ne...
11                   A GUIDE FOR ACCREDITED PESONS     KEY WORDS AND PHRASES IN THE MENTAL HEALTH ACT EXPLAINEDNOTES.1.   ...
12     sets of behaviour ought to be classified as “mental illnesses”, “mental     disorders” or “personality disorders”, ...
13    reasons should briefly indicate the relevant symptom(s) that    qualify as mental illness under s.4 of the Act. Wher...
14      Should, at the specified time of the examination or observation,      the person not manifest one or more of the r...
15•   Mental functioning – mental function refers to any activity or    operation having a mental [pertaining to the mind]...
16     an “overvalued idea”, eg that of a person suffering from anorexia     nervosa that he or she is grossly overweight,...
17•   For the time being – temporarily, presently, now.•   Irrational – the word ordinarily refers to something being or  ...
18•    Matters specified in s.16 – these matters are not to be taken into     account in determining whether a person is a...
19•   Immediately before or shortly before – little or no time intervening -    question of fact.•   Opinion – a belief th...
20References:Accredited Person’s Handbook. NSW Institute of Psychiatry. [October] 2009.The Concise Macquarie Dictionary. D...
21                                                                       APPENDIX      SALIENT PROVISIONS OF THE MENTAL HE...
22(1) The Director-General may appoint a person as an accredited person for thepurposes of this Act.(2) The Director-Gener...
23SECTION 15 - Mentally disordered persons(cf 1990 Act, s 10)A person (whether or not the person is suffering from mental ...
24(k) the person takes or has taken alcohol or any other drug,(l) the person engages in or has engaged in anti-social beha...
25(a) in the case of a person certified to be a mentally ill person, more than 5 daysafter it is given, or(b) in the case ...
26(3) The order may also authorise any other person (including a police officer) whomay be required to assist the medical ...
272. I have satisfied myself, by such inquiry as is reasonable having regard to thecircumstances of the case, that the per...
28police officer. The reason for me being of this opinion is [include any informationknown about the patient relevant to t...
29(2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any otherdrug, the serious ...
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ACCREDITED PERSONS UNDER THE MENTAL HEALTH ACT 2007 IN THE CONTEXT OF ADMINISTRATIVE DECISION-MAKING

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Copyright Ian Ellis-Jones 2012. All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.

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ACCREDITED PERSONS UNDER THE MENTAL HEALTH ACT 2007 IN THE CONTEXT OF ADMINISTRATIVE DECISION-MAKING

  1. 1. ACCREDITED PERSONS UNDER THE MENTAL HEALTH ACT 2007IN THE CONTEXT OF ADMINISTRATIVE DECISION- MAKING by Dr IAN ELLIS-JONES BA, LLB (Syd), LLM, PhD (UTS), Dip Relig Stud (LCIS) Solicitor of the Supreme Court of New South Wales and the High Court of Australia Lecturer, New South Wales Institute of Psychiatry Consultant, Trainer and FacilitatorINTRODUCTION TO ADMINISTRATIVE DECISION- MAKING There are a number of common law rules of law that are designed to ensure that administrative decision-makers act fairly and properly. An “accredited person” within the meaning of the Mental Health Act 2007 (NSW) (“the Act”) is, for the purpose of discharging the functions of such a person under that Act, an administrative decision-maker who is therefore subject to the abovementioned rules of law. Various powers are conferred or imposed on an “accredited person” by the Act. In particular, an accredited person may issue a certificate (in the form set out in Part 1 of Schedule 1 to the Act) that authorises the taking to and detention in a declared mental health facility of a person who is adjudged to be a “mentally ill person”, or a “mentally disordered person”, within the meaning of the Act. As the Inquiry into Human Rights and Mental Illness (the Burdekin Inquiry) 1991-92 pointed out, involuntary detention, for any reason and under any circumstances, is an extremely serious matter involving curtailment of several fundamental rights the most important of which is the right to liberty. IAN ELLIS-JONES Lawyer Consultant Trainer ABN 49 839 909 268 12A Nulla Nulla Street Turramurra NSW 2074 T: +61 2 9440 2443 F: +61 2 9440 2447 E: ian.ellis-jones@hotmail.com Copyright © 2012 Ian Ellis-Jones All Rights Reserved A non-exclusive licence to publish in this format is granted to the New South Wales Institute of Psychiatry
  2. 2. 2 It is therefore essential that accredited persons familiarise themselves with the nature and extent of their powers and the constraints imposed by the law for the protection of others.The manner or mode in which the powers of an accredited person may be lawfully exercised is governed by the Act as well as by the common law rules referred to above.The purpose of this paper is to outline and discuss certain Administrative Law principles that govern the lawful exercise of the powers of an accredited person. Salient provisions of the Act are set out in the Appendix to this paper. THE NEED FOR RATIONAL HUMANENESS “A RATIONALITY THAT IS INFORMED BY CONSIDERATION AND COMPASSIONFOR THE NEEDS AND DISTRESSES OF HUMAN BEINGS ” (Gordon Hawkins) [See also s.3 of the Mental Health Act 2007 (NSW) which sets out the objects of the Act.] THE DUTY TO ACT HONESTLY An accredited person, like all administrative decision-makers, must act “honestly”. “Honesty ” The word “honesty” [from the Latin, honestas, “oneness”] means oneness with the truth, the facts. Facts are occurrences in space and time! In other words ... WHAT IS! REALITY!! Thus, anything that is NOT a fact, or not in accordance with the facts, is ... DISHONEST !!! Even “ideas” and “opinions” can be “honest” or “dishonest”,
  3. 3. 3 in the sense just described, when attention is directed, NOT to the idea or opinion itself, but to the thing that the idea or opinion is of. The test of a true idea is to see WHETHER OR NOT SOMETHING IS THE CASE. A single logic applies to all things and how they are related. “Truth” is a description of reality. “Honesty” means telling the truth to other people. “Integrity” means telling yourself the truth. A breach of the obligation to act honestly involves a consciousness (ie awareness / knowledge) that what is being done is not in the interests of our employer, or the community, or both, and deliberate conduct in disregard of that knowledge. "Honesty" is, however, more than the absence of dishonesty . Honesty is a "positive virtue" in its own right, notwithstanding that the term may also be applied to an absence of any dishonest purpose or conduct. Honesty means "without any intention to deceive ... [or] goodwill". The duty to act honestly means to refrain from exercising any of your powers in order to obtain some private advantage or to otherwiseachieve some object other than that for which the power was conferred. Good intentions are not enough. In weighing the evidence as to the "honesty" of the actions taken the honesty or otherwise of the action must be tested as at the time the action was taken and not with hindsight. In the case of an accredited person acting honestly includes ensuring that you make a real, proper and genuine personal examination or personal observation before acting under s.21 of the Act. THE FIRST AND MOST IMPORTANT QUESTION
  4. 4. 4 FOR ANY ADMINISTRATIVE DECISION- MAKER IS … DO I HAVE POWER TO ACT?An administrative decision-maker may only do what is authorised andmust not act in excess of its express power. If it purports to do so, itsdecision will be void.However, whatever may fairly be regarded as incidental to, orconsequent upon, those things that the Legislature has authorised,ought not (unless expressly prohibited) be held, by judicial construction,to be beyond power. NEXT …IF I HAVE POWER TO ACT, WHAT TYPE OF POWER IS IT? An administrative power takes the form of either a DUTY (ie “must” or “shall” do X) or a DISCRETION (ie “may” do X). DUTIES AND DISCRETIONS1. A MUST/MAY DO X. An apparently totally unstructured power. A reviewing court may, however, still imply some limitations on the exercise of the power.2. A MUST/MAY DO X IF FACT Y EXISTS. The existence of Fact Y (a fact being an occurrence in space and time) is an essential prerequisite or precondition for the exercise of power. Fact Y is known as a “jurisdictional fact”.3. A MUST/MAY DO X IF A IS SATISFIED THAT FACT Y EXISTS. Here, the exercise of power depends upon the formation of a “state of satisfaction” (ie an opinion) as to whether or not Fact Y exists. The opinion required is one capable of being formed by a reasonable person who properly understands the “test” to be applied. If the opinion formed is reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it will be held that the opinion required has not been formed. In that event the basis for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary,
  5. 5. 5 capricious, irrational or not bona fide. In short, the opinion required to be formed does not exist in law.4. A MUST/MAY DO X PROVIDED THAT B CONSENTS. The consent of B is an essential prerequisite or precondition for the exercise of power.5. A MUST/MAY DO X OR Y. The decision-maker has a choice as to whether to do X or Y. In some rare cases a reviewing court may conclude that, say, the doing of X was to be ordinarily preferred to the doing of Y.6. A MUST/MAY DO X BUT ONLY FOR PURPOSE Y. Here, the purpose for which the power is conferred is expressly stated. The power may not be exercised for any other purpose.7. A MUST/MAY DO X PROVIDED THAT A FIRST DOES B. Here, the doing of B is an essential prerequisite or precondition for the exercise of power.
  6. 6. 6 OTHER RULES OF ADMINISTRATIVE DECISION- MAKINGBad Faith / Improper PurposeA decision-maker must not exercise its powers in bad faith or for animproper purpose.The word “improper” in this context does not mean wrong or incorrect - itrefers to something that is not a proper exercise of the power. Thepower has been exercised for an ulterior purpose, that is, for a purposeother than the purpose for which the power was conferred.By way of example, intervention under s.19 of the Act must be“appropriate”, to ensure that persons who are “mentally ill”, or “mentallydisordered”, within the meaning of the Act receive the best possible careand treatment in the least restrictive environment enabling that care andtreatment to be effectively given.Irrelevant considerationsA decision-maker must not base a decision on irrelevant or extraneousconsiderations and must give due and proper consideration to allrelevant considerations.A decision-maker MUST take into account all relevant considerationsthat the decision-maker is BOUND, as opposed to ENTITLED, to takeinto account: see, in that regard, s.14(2) of the Act.What are “relevant” and “irrelevant” considerations is ultimately a matterof statutory construction: see eg s.16 of the Act (which contains a list ofmatters that are not necessarily irrelevant considerations nor relevantconsiderations for that matter, but which are not, in themselves,determinative of whether or not a person is “mentally ill, or “mentallydisordered”, within the meaning of the Act).By way of example, relevant or potentially relevant considerationsinclude the need to consider the client within his or her family andcultural environment, the family’s capacity and desire to manage theclient at home, the presence of risk factors within the client’senvironment, the impact of the client’s physical health, psychosocialdevelopmental considerations (particularly in the case of youngpersons), and so forth.Manifest unreasonablenessA decision-maker must not exercise its powers “unreasonably” (in thesense that no reasonable decision-maker, acting within the “four corners
  7. 7. 7of its jurisdiction”, could ever have reached the decision in question).This means, among other things, that a decision-maker must not actcapriciously, irrationally or perversely.Scheduling a person without any personal examination or personalobservation, or otherwise doing so without first forming the requisite“opinion”, or scheduling for the purpose of “punishment”, would all bemanifestly unreasonable decisions.Lack of proportionalityA decision may be so lacking in reasonable proportionality as “not to bea real exercise of the power”. In other words, there must exist areasonable relationship between the “end” (that is, the purpose for whichthe power - in this case, the power to schedule a person – was given)and the “means” of the power (that is, the means which the Act providesfor achieving that purpose).Uncertainty (and lack of finality)A decision-maker must make decisions which are “certain” and “final”.In that regard, a decision may be declared invalid if: • the exercise of the power leads to a result that is so uncertain that no reasonable person could comply with it, or • it cannot be given any sensible meaning (but not merely because it is ambiguous or could lead to uncertain results).By way of example, any certificate in the form set out in Part 1 ofSchedule 1 to the Act should be properly completed, otherwise it may bedeclared invalid. Also, document every aspect of your decision-making.Fettering discretionA decision-maker must not fetter itself in advance as to how it willexercise its statutory discretion, whether by way of contract, estoppel orotherwise.What this means is that a decision-maker, entrusted with a discretionarypower, cannot bind itself to exercise that power in a particular manner.In other words, the decision-maker’s mind must not be so foreclosedthat the decision-maker is incapable of giving genuine consideration tothe matter in question. One must avoid pre-formed views (eg views as
  8. 8. 8to whether a particular person is “non-compliant” based on pastbehaviour); people can change over time.Acting inflexibly on a policyA decision-maker must examine in detail each matter before it on itsmerits, and must not automatically or inflexibly apply an overall policy(eg a policy or guidelines of one’s local area health service) withoutconsidering the particular circumstances of the matter before it.Any policy adopted by the decision-maker must not conflict with therelevant statute and must not be so rigid that it cannot be departed fromin appropriate cases.A genuine consideration of the merits of the particular case requires apreparedness to range beyond the policy and to be persuaded by thecircumstances of an individual case that a departure ought to be madefrom the weighting that the policy attributes to particular factors.Acting under dictationA decision-maker, entrusted with a statutory discretion, must exercisethat power itself and in an independent manner, and must not bedictated to by a third party (eg relatives of the client, work colleagues,superiors, the police).It is not necessary that the third party intended to dictate. There shouldnot be any undue influence but “dictation” can still occur where, forexample, a decision-maker feels obliged to decide a matter in aparticular way because of another’s conclusions in relation to the matter.This even though the other person or body had given no direction thatsuch an approach should be followed.However, a decision-maker such as an “accredited person” is entitled tohave regard to the views of a government department (eg NSW Health)or other body (eg the New South Wales Institute of Psychiatry) whosefunctions impinge upon or are otherwise relevant to the exercise of thefunctions of an accredited person. Nevertheless, you must bepersonally satisfied of the matters set out in ss.14 and 15 of the Act.The Rules of Procedural FairnessThe rules of procedural fairness are encompassed in very broad termsin 3 common law rules encompassing minimum standards of fairdecision-making:
  9. 9. 9 1. The audi alteram partem (or “hearing”) rule: the right to a fair hearing. 2. The nemo judex (or “bias”) rule: no one can be judge in his or her own cause. 3. The “no evidence” (or “probative evidence”) rule: decisions must be based upon logically probative material.Procedural fairness, in the sense of a duty to act fairly, is implied atcommon law in the absence of a clear, unambiguous contrary intentionin the legislation or other regulatory instrument governing the making ofthe particular decision.It is, however, accepted that the legislature may displace or excludethese rules by providing otherwise.The hearing ruleIt is a fundamental rule of the general law that a person ordinarily isentitled to know the case sought to be made against them and to begiven the opportunity of replying to it before any administrative decisionis made which would deprive that person of some right or interest or thelegitimate expectation of some benefit.The rule is subject to a sufficient indication of an intention of thelegislature to the contrary. However, if the legislature intends to excludeor displace the rule such intention must be made “unambiguously clear”.The right to be heard is not necessarily (if at all) excluded or displacedmerely by reason of the fact that the legislation contains rightscommensurate with some of the rules of procedural fairness (eg theright to be seen by a magistrate, or the right to a hearing before theMental Health Review Tribunal).It has been held by the courts that urgency or other exigency maydiminish the content of the hearing rule but will not ordinarily exclude ordisplace the rule altogether.Nevertheless, the power to take a person to hospital against their willmay need to be exercised peremptorily in many cases, without a hearingfirst being afforded the affected person. In many cases, the affectedperson simply will not be in a mental state conducive to being heard,but, at the very minimum, the person will need to be told, as clearly aspossible, and humanely, of: • the terms and effect of the decision, and • its implications in practical terms,
  10. 10. 10for, in law, the bare minimum requirement of the hearing rule is thegiving of “notice” of the decision.Each case will need to be assessed on its own special facts.The bias ruleThe second rule of procedural fairness is the nemo judex (or bias) rulewhich states that if a decision-maker has an interest (pecuniary orotherwise) in the outcome of a particular decision the decision-maker isbarred from dealing with the matter. (See, eg, numbered paragraph 7 inPart 1 of the Schedule 1 form/certificate re pecuniary interests in privatemental health facilities. Further, in scheduling a person, you must notbe a “near relative” or the “primary carer” of the person.)Three tests have been propounded to test allegations of bias: the “reallikelihood” test, the “reasonable apprehension” (also known as the“reasonable suspicion”) test, and the test of “actual bias”.Once again, the rule is subject to the clear manifestation of a contrarystatutory intention. Also, the bias rule may be codified (that is,enshrined, in one form or another, in the legislation itself): see, forexample, s.19(2)(d) of the Act.The “no evidence ” ruleIt is now generally accepted that there is a third rule of proceduralfairness known as the “no evidence” (or “probative evidence”) rule,which states that an administrative decision must be based uponlogically probative material and not mere speculation, suspicion orhearsay.For example, in making the decision to schedule a person you must relyon your own contemporaneous observations and not rely on theopinions of others. You must personally examine or personally observethe patient, and complete the certificate shortly after the examination orobservation. You cannot just complete the schedule after merely talkingto the patient’s relatives and/or friends. That is not sufficiently probative... and, once again, document every aspect and phase of your decision-making, giving reasons for your conclusions and opinions, and briefbehavioural examples/descriptions of your clinical findings upon whichyou place reliance in scheduling, etc.
  11. 11. 11 A GUIDE FOR ACCREDITED PESONS KEY WORDS AND PHRASES IN THE MENTAL HEALTH ACT EXPLAINEDNOTES.1. The sense (legal or otherwise) in which a statute uses a word or phrase is a question of law.2. The meaning of an “ordinary” word or phrase in a statute is a question of fact. Such a word or phrase is to be given its ordinary meaning.3. The meaning of a truly “legal” word or phrase in a statute, or even an ordinary word that is intended to have a “legal” meaning in the statute, is a question of law.4. Ordinarily, medical, technical and scientific words that are truly such are given their ordinary accepted meanings in the relevant discipline. However, it has been held that the majority of “medical” words that are used in the Mental Health Act 2007 (NSW) (“the Act”) are not given a “medical” meaning but meanings given to them by an ordinary lay person. International diagnostic criteria for various mental illnesses, as set out in such publications as the DSM-IV-TR or the International Classification of Diseases (ICD) cannot, and must not, replace the ordinary meaning of the words in a statute.5. The statutory definitions of “mental illness”, “mentally ill person”, etc, have been formulated and drafted for various specific purposes set forth in the Act. They are NOT intended to be used for ordinary clinical purposes outside the “four corners” of the Act and, in using the Act, care must be taken to avoid importing into the statutory definitions inappropriate clinical preconceptions. Indeed, nowhere other than the exclusion of “developmental disability of mind” in s.16 of the Act is there a requirement to establish a specific diagnosis to determine whether or not a person is a “mentally ill person”, or a “mentally disordered person”, for the purposes of the Act.6. Further, we are not here concerned with the question of whether we should redefine the borders of psychiatry (eg whether or not certain conditions or
  12. 12. 12 sets of behaviour ought to be classified as “mental illnesses”, “mental disorders” or “personality disorders”, etc, in clinical practice).7. The Act should be given a purposive construction to ensure that, so far as possible, its objects are achieved: see s.3 of the Act. An unduly narrow interpretation of the words used by Parliament, particularly where such an approach would frustrate the achievement of the stated objects of the Act, is to be avoided.8. Whether a person is a “mentally ill person” or “mentally disordered person” within the meaning of the Act is, in law, a question of jurisdictional fact that enlivens jurisdiction (i.e. power) to act. Proper, lawful determination of these issues is an essential prerequisite or precondition for valid, lawful decision- making: see eg Rand G v Mental Health Review Tribunal & Sydney Local Health District (NSW Supreme Court, White J, 2012/185645, 12 July 2012). ----------------“Mentally ill person” [see ss.14 & 16]• Person – means a “natural person” (ie an individual).• Suffering from – simply a reference to a person experiencing or having a certain illness – pain, bodily discomfort, grief or even anxiety not necessary.• Mental illness - separately defined [see below].• Owing to – on account of, because of, attributable to.• Reasonable grounds for believing – a more-or-less objective test based on the application of human reason (as opposed to the more-or-less subjective test of “reasonable satisfaction”). It is not a state of mind that is attained or established independently of the relevant facts. It is not sufficient that the accredited person simply believes that there are reasonable grounds for believing. The nature of the harm should be identified in the reasons. The
  13. 13. 13 reasons should briefly indicate the relevant symptom(s) that qualify as mental illness under s.4 of the Act. Where “continuing condition” under s.1492) is being relied upon, that should be stated in the reasons.• Care, treatment or control – see s.3 of the Act.• Necessary – means “reasonably required” or “appropriate” – does not mean “absolutely essentially necessary” – question of fact having regard to the circumstances of the case.• Person’s own protection from serious harm – question of fact – harm not limited to physical harm (cf “mentally disordered person”) and in theory may take various forms including but not limited to psychological harm, harm to reputation and relationships, financial harm, self-neglect. IMPORTANT NOTE. In Re J (No. 2) [2011] NSWSC 1224 White J came to no firm conclusion as to whether “serious harm” included serious financial harm, and stated that there was much to be said for the submission that “serious harm” in s.14 of the Act refers to either physical harm or psychological harm. Even in cases of financial harm, the basis for involuntary detention would rarely, if ever, be justifiable in light of this decision.• Protection of others from serious harm – question of fact – harm not limited to physical harm (cf “mentally disordered person”) and may presumably take various forms (as per above) including neglect of others, eg the patient’s children.• Matters specified in s.14(2) – these are relevant considerations that MUST (as opposed to MAY) be take into account. As to the words “continuing condition”, it is not just the person’s condition at the moment of any examination that has to be taken into account in deciding if the person is or remains “mentally ill”. Fluctuations in the mental state of the person are to be taken into account.
  14. 14. 14 Should, at the specified time of the examination or observation, the person not manifest one or more of the required symptoms of “mental illness”, but has done so in the recent past, the person might still meet the requirements of the definition.• Matters specified in s.16 – these matters are not to be taken into account in determining whether a person is a mentally ill person. None of the matters specified, in themselves, and without more, will constitute a person as a mentally ill person for the purposes of the Act.“Mental illness” [see s.4(1)]NOTE. What is a “mental illness” for the purposes of the definition is based, not ondiagnoses, but upon the effect of certain specified symptoms or certain specifiedbehaviours indicating the presence of one or more of such symptoms. Thesesymptoms characterise a “condition” - not necessarily a “mental condition” - thatseriously impairs the mental functioning of a person.• Condition – the state of something, a complex of variables (not a term of art). It should be noted that, having regard to the words that follow, not every condition that might otherwise be characterised as a mental illness (eg pursuant to the DSM-IV-TR) will be a mental illness for the purposes of the salient provisions of the Mental Health Act 2007 (NSW).• Seriously – to a marked degree - giving cause for apprehension - a question of fact and degree in the circumstances of a particular case.• Impairs – an impairment refers to a deterioration or loss of function (in this case, mental function).• Either temporarily or permanently – the actual or likely temporal duration of the impairment is irrelevant – a question of fact.
  15. 15. 15• Mental functioning – mental function refers to any activity or operation having a mental [pertaining to the mind] character (eg thinking is a mental function or activity).• Person – means a “natural person” (ie an individual).• Characterised – refers to any observable mark, quality or property.• Presence – the psychological present has duration, though brief. Here, regard is had to what is presently existing or manifesting itself.• Symptoms – a symptom is an event or appearance that occurs with something else (or, by extension, just before it) and indicates its existence or occurrence; specifically, something that indicates the presence of a pathological condition (in this case, a mental illness as defined).• Delusions, hallucinations, etc – questions of fact. The onus of proof in relation to symptoms or behaviour indicating the presence of the specific symptoms is satisfied if one or more of the symptoms is established or there is “sustained or repeated irrational behaviour” indicating the presence of any one or more of those symptoms. The various terms and expressions are to be given their ordinary accepted meanings in the psychological sciences, without unnecessary overly clinical complexities or artificial distinctions. For example, a delusion may simply be considered to be a false and fixed belief held in the face of evidence normally sufficient to destroy the belief. (Minister for Health, Second Reading Speech (“SRS”), Hansard, NSW Legislative Assembly, 22/03/90 (on the Mental Health Bill 1990): “[a delusion is] the absolute adherence of a person to a fixed irrational belief … not held by persons of the same racial, cultural or educational background … unshakeable by reasoning.” Thus,
  16. 16. 16 an “overvalued idea”, eg that of a person suffering from anorexia nervosa that he or she is grossly overweight, when the absolute contrary is true, may constitute a delusion for the purposes of the definition, even thought it may not be a delusion in psychiatric terms.) Hallucinations are “perceptions in any of the senses that are not caused by external stimuli”: SRS, 22/03/90. As to serious disorder of thought form the main characteristic is “loss of coherence with the person becoming incapable of communicating sensibly by following one idea logically with another”: SRS, 22/03/90. Severe disturbance of mood refers to a “prolonged emotional state that is inappropriate given the circumstances of the person, and that is non-responsive to any event that would normally be expected to vary it”: SRS, 22/03/90. As to irrational behaviour see the discussion of the word “irrational” in the context of the meaning of the expression “mentally disordered person” (below).• Serious / Severe – once again, a question of fact and degree in the circumstances of a particular case.• Serious or permanent physiological, biochemical or psychological effects of drug taking [see s.16(2)] – a potentially relevant “indication” (cf determinant) that a person is suffering from mental illness or other condition of disability of mind.“Mentally disordered person” [see ss.15 & 16]• Person – means a “natural person” (ie an individual). A “mentally disordered person” (eg a person who is actively suicidal or out-of- control following a personal crisis) may also but need not be a person suffering from “mental illness”.• Behaviour – loosely, anything the human animal does.
  17. 17. 17• For the time being – temporarily, presently, now.• Irrational – the word ordinarily refers to something being or someone acting contrary to reason or the principles of logical thinking (but that is not really what is meant here) – no specific legal meaning in this context - to be understood in its everyday usage (and NOT in the sense used in Administrative Law to describe a certain type of bad administrative decision-making) – mere irrationality, in itself, is insufficient (note the words “so irrational …”) – the words that follow those words (i.e. “as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary”) give us some idea of what is meant• Conclusion on reasonable grounds – a conclusion needs to be drawn from the primary facts. The conclusion cannot be reached independently of the relevant facts. Once again, it is not sufficient that the accredited person simply believes that there are reasonable grounds. The conclusion must be rationally and reasonably justifiable.• Necessary – means “reasonably required” or “appropriate” – does not mean “absolutely essentially necessary” – question of fact having regard to the circumstances of the case.• Person’s own protection from serious physical harm – question of fact. Note the addition here of the word “physical” (cf definition of “mentally ill person”, where “harm” is not limited to just physical harm).• Protection of others from serious physical harm – question of fact. Note the addition of the word “physical” (cf definition of “mentally ill person”, where “harm” is not limited to just physical harm).
  18. 18. 18• Matters specified in s.16 – these matters are not to be taken into account in determining whether a person is a mentally disordered person. None of the matters specified, in themselves, and without more, will constitute a person as a mentally disordered person for the purposes of the Act.Certification under s.19• Person - means a “natural person” (ie an individual).• Declared mental health facility – see definition in s.4(1).• Certificate – the certificate is to be in the form set out in Part 1 of Schedule 1 to the Mental Health Act 2007 (NSW).• Personally – the examination or observation must in either case be a personal one – although physical presence is not required, there must still be a direct (but not necessarily “visible”) and intentional awareness [“examination”] or scrutiny [“observation”] of the client and his or her behaviour – the awareness (eg from outside a closed door) or scrutiny (eg by means of a video conference facility) must nevertheless be that of the accredited person and any observation falling short of an actual direct examination (eg hearing and/or otherwise listening to the behaviour of someone from outside a closed door) should otherwise be clear and unambiguous. A telephone call, without more by way of awareness or scrutiny, would almost certainly be impermissible, as there is no actual unequivocal examination or observation in mere telephone contact. Account may be taken of other matters not ascertained as a consequence of personally examining or observing the person where those matters arise from a previous personal examination of the person or are communicated by a reasonably credible informant.
  19. 19. 19• Immediately before or shortly before – little or no time intervening - question of fact.• Opinion – a belief that one holds, but not a state of mind that is attained or established independently of the nature and consequence of the fact or facts required to exist. The opinion must be one capable of being reasonably formed by a reasonable person who properly understands the correct test to be applied, wit no irrelevant considerations being taken into account.• Mentally ill person / mentally disordered person – see above• Satisfied – means, in law, “reasonably satisfied” – mind made up, acting reasonably, and not capriciously or arbitrarily or upon irrelevant considerations. Refers to a state of mind not troubled by doubt (although doesn’t refer to being “satisfied beyond reasonable doubt”), going beyond the stage of thinking that it “seems”. This is not a state of mind that is reached independently of the nature and consequence of the fact or facts required to exist. The onus of proof is “on the balance of probabilities”.• Appropriate – suitable, having regard to the condition and state of the person in question and that person’s immediate and perhaps even longer term needs.• Reasonably available – regard should be had to what is suitable or ready for use.• Involuntary admission and detention – see Part 2 of Chapter 3 of the Act.• Necessary – means “reasonably required” or “appropriate” – does not mean “absolutely essentially necessary” – question of fact having regard to the circumstances of the case.
  20. 20. 20References:Accredited Person’s Handbook. NSW Institute of Psychiatry. [October] 2009.The Concise Macquarie Dictionary. Doubleday. 1982.Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR). American Psychiatric Association. Arlington, VA. [May] 2000.English, H B & English, A C. A Comprehensive Dictionary of Psychological and Psychoanalytical Terms. New York. David McKay Company, Inc. 1958.Mental Health Act Guide Book. NSW Institute of Psychiatry. (November) 1998.Stuart, G W & Laraia, M T (eds). Stuart & Sundeen’s Principles and Practice of Psychiatric Nursing. 6th ed. St Louis MO. Mosby-Year Book. 1998.
  21. 21. 21 APPENDIX SALIENT PROVISIONS OF THE MENTAL HEALTH ACT 2007SOME IMPORTANT DEFINITIONS – See SECTION 4(1) of the Act…accredited person means a person accredited under section 136.…mental illness means a condition which seriously impairs, either temporarily orpermanently, the mental functioning of a person and is characterised by thepresence 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.SECTION 136 - Accredited persons(cf 1990 Act, s 287A)
  22. 22. 22(1) The Director-General may appoint a person as an accredited person for thepurposes of this Act.(2) The Director-General may appoint the holder of an office as an accreditedperson and may impose conditions on the exercise by a person or the holder of anoffice of the functions of an accredited person.SECTION 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 detentionof the person in a facility under this Act, or(b) determining whether the person should be subject to a community treatmentorder or be detained or continue to be detained involuntarily in a mental healthfacility,if, and only if, the person satisfies the relevant criteria set out in this Part [viz Part 1of Chapter 3 of the Act].SECTION 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, treatmentor 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 conditionof the person, including any likely deterioration in the person’s condition and thelikely effects of any such deterioration, are to be taken into account.
  23. 23. 23SECTION 15 - Mentally disordered persons(cf 1990 Act, s 10)A person (whether or not the person is suffering from mental illness) is a mentallydisordered person if the person’s behaviour for the time being is so irrational as tojustify a conclusion on reasonable grounds that temporary care, treatment or controlof 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.SECTION 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 merelybecause of any one or more of the following:(a) the person expresses or refuses or fails to express or has expressed or refusedor failed to express a particular political opinion or belief,(b) the person expresses or refuses or fails to express or has expressed or refusedor failed to express a particular religious opinion or belief,(c) the person expresses or refuses or fails to express or has expressed or refusedor failed to express a particular philosophy,(d) the person expresses or refuses or fails to express or has expressed or refusedor 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 orrefused 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 orrefused or failed to engage in, a particular religious activity,(g) the person engages in or has engaged in a particular sexual activity or sexualpromiscuity,(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 developmental disability of mind,
  24. 24. 24(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 aparticular cultural or racial group.(2) Nothing in this Part prevents, in relation to a person who takes or has takenalcohol or any other drug, the serious or permanent physiological, biochemical orpsychological effects of drug taking from being regarded as an indication that aperson is suffering from mental illness or other condition of disability of mind.SECTION 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 thebasis of a certificate about the person’s condition issued by a medical practitioner oraccredited 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 medicalpractitioner or accredited person:(a) has personally examined or observed the person’s condition immediately beforeor shortly before completing the certificate, and(b) is of the opinion that the person is a mentally ill person or a mentally disorderedperson, and(c) is satisfied that no other appropriate means for dealing with the person isreasonably available, and that involuntary admission and detention are necessary,and(d) is not the primary carer or a near relative of the person.(3) A mental health certificate may contain a police assistance endorsement thatpolice assistance is required if the person giving the certificate is of the opinion thatthere are serious concerns relating to the safety of the person or other persons if theperson 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 afacility:
  25. 25. 25(a) in the case of a person certified to be a mentally ill person, more than 5 daysafter it is given, or(b) in the case of a person certified to be a mentally disordered person, more thanone day after it is given.(5) In this section:"near relative" of a person means a parent, brother, sister, child or spouse of theperson and any other person prescribed for the purposes of this definition.SECTION 21 - Police assistance(1) A police officer to whose notice a police assistance endorsement on a mentalhealth certificate, or a request for assistance by an ambulance officer under thisDivision, is brought must, if practicable:(a) apprehend and take or assist in taking the person the subject of the certificate orrequest 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 anypowers conferred by section 81 on a person who is authorised under that section totake 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 healthfacility and their powers when doing so.SECTION 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 practitioneror accredited person to visit and to personally examine or personally observe aperson to ascertain whether a mental health certificate should be issued for theperson.(2) An order may be made if the Magistrate or officer is satisfied, by evidence onoath, 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 personallyexamined or personally observed.
  26. 26. 26(3) The order may also authorise any other person (including a police officer) whomay be required to assist the medical practitioner or accredited person toaccompany the medical practitioner or accredited person.(4) A person authorised to visit a person or accompany another person may enterpremises, if need be by force, in order to enable the examination or observation tobe carried out.(5) A person who is examined or observed under this section may be detained inaccordance with section 19.(6) A person who takes action under an order must, as soon as practicable aftertaking 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 CriminalProcedure Act 1986 .SCHEDULE 1 – Medical certificate as to examination or observation of person(Section 19)Mental Health Act 2007Part 1I, [name in full-use block letters] (Medical Practitioner/accredited person) ofcertifythat on [date] immediately before or shortly before completing this certificate, at[state place where examination/observation took place] I personallyexamined/personally observed [name of person in full] for a period of [state length ofexamination/observation].I certify the following matters:1. I am of the opinion that the person examined/observed by me is a mentally illperson suffering from mental illness/or a mentally disordered person and that thereare reasonable grounds for believing the person’s behaviour for the time being is soirrational as to justify a conclusion on reasonable grounds that temporary care,treatment or control of the person is necessary:(a) in the case of a mentally ill person:(i) for the person’s own protection from serious harm, or(ii) for the protection of others from serious harm, or(b) in the case of a mentally disordered person:(i) for the person’s own protection from serious physical harm, or(ii) for the protection of others from serious physical harm.
  27. 27. 272. I have satisfied myself, by such inquiry as is reasonable having regard to thecircumstances of the case, that the person’s involuntary admission to and detentionin a mental health facility are necessary and that no other care of a less restrictivekind is appropriate and reasonably available to the person.3. Incidents and/or abnormalities of behaviour and conduct (a) observed by myselfand (b) communicated to me by others (state name, relationship and address ofeach informant) are:(a)(b)4. The general medical and/or surgical condition of the person is as follows:5. The following medication (if any) has been administered for purposes ofpsychiatric therapy or sedation:6. I am not a near relative or the primary carer of the person.7. I have/do not have a pecuniary interest, directly or indirectly, in a private mentalhealth facility. I have/do not have a near relative/partner/assistant who has such aninterest. Particulars of the interest are as follows:Made and signed this [date][Signature]Part 2The following persons may transport a person to a mental health facility: a memberof staff of the NSW Health Service, an ambulance officer, a police officer.If the assistance of a police officer is required, this Part of the Form must becompleted.YOU SHOULD NOT REQUEST THIS ASSISTANCE UNLESS THERE ARESERIOUS CONCERNS RELATING TO THE SAFETY OF THE PERSON OROTHER PERSONS IF THE PERSON IS TAKEN TO A MENTAL HEALTH FACILITYWITHOUT THE ASSISTANCE OF A POLICE OFFICERI have assessed the risk and I am of the opinion, in relation to [name of person infull] that there are serious concerns relating to the safety of the person or otherpersons if the person is taken to a mental health facility without the assistance of a
  28. 28. 28police officer. The reason for me being of this opinion is [include any informationknown about the patient relevant to the risk].Made and signed this [date][Signature]Note:1 Sections 13-16 of the Mental Health Act 2007 state:13 Criteria for involuntary admission etc as mentally ill person or mentally disordered personA 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 ina facility under this Act, or(b) determining whether the person should be subject to a community treatment order or be detainedor 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(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to thatillness, there are reasonable grounds for believing that care, treatment or control of the person isnecessary:(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 suchdeterioration, are to be taken into account.15 Mentally disordered personsA person (whether or not the person is suffering from mental illness) is a mentally disordered personif the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonablegrounds 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(1) A person is not a mentally ill person or a mentally disordered person merely because of any oneor more of the following:(a) the person expresses or refuses or fails to express or has expressed or refused or failed toexpress a particular political opinion or belief,(b) the person expresses or refuses or fails to express or has expressed or refused or failed toexpress a particular religious opinion or belief,(c) the person expresses or refuses or fails to express or has expressed or refused or failed toexpress a particular philosophy,(d) the person expresses or refuses or fails to express or has expressed or refused or failed toexpress 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 toengage 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 toengage 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 developmental disability of mind,(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 orracial group.
  29. 29. 29(2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any otherdrug, the serious or permanent physiological, biochemical or psychological effects of drug taking frombeing regarded as an indication that a person is suffering from mental illness or other condition ofdisability of mind.2 In addition to matters ascertained as a consequence of personally examining or observing theperson, account may be taken of other matters not so ascertained where those matters:(a) arise from a previous personal examination of the person, or(b) are communicated by a reasonably credible informant.3 In the Mental Health Act 2007, "mental illness" is defined as follows:"mental illness" means a condition that seriously impairs, either temporarily or permanently, themental functioning of a person and is characterised by the presence in the person of any one or moreof 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 thesymptoms referred to in paragraphs (a)-(d).4 In the Mental Health Act 2007, "primary carer" is defined as follows:71 Primary carer(1) The "primary carer" of a person (the "patient") for the purposes of this Act is:(a) the guardian of the patient, or(b) the parent of a patient who is a child (subject to any nomination by a patient referred to inparagraph (c)), or(c) if the patient is over the age of 14 years and is not a person under guardianship, the personnominated by the patient as the primary carer under this Part under a nomination that is in force, or(d) if the patient is not a patient referred to in paragraph (a) or (b) or there is no nomination in force asreferred to in paragraph (c):(i) the spouse of the patient, if any, if the relationship between the patient and the spouse is close andcontinuing, or(ii) any person who is primarily responsible for providing support or care to the patient (other thanwholly or substantially on a commercial basis), or(iii) a close friend or relative of the patient.(2) In this section:"close friend or relative" of a patient means a friend or relative of the patient who maintains both aclose personal relationship with the patient through frequent personal contact and a personal interestin the patient’s welfare and who does not provide support to the patient wholly or substantially on acommercial basis.5 For admission purposes, this certificate is valid only for a period of 5 days, in the case of a personwho is a mentally ill person, or 1 day, in the case of a person who is a mentally disordered person,after the date on which the certificate is given. -oo0oo-

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