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1. ACCREDITED PERSONS
UNDER THE MENTAL HEALTH ACT 2007
IN THE CONTEXT OF ADMINISTRATIVE DECISION-MAKING
Dr Ian Ellis-Jones PhD
Solicitor of the Supreme Court of New South Wales
and the High Court of Australia
Former Senior Lecturer, Faculty of Law, University of Technology, Sydney
Lecturer, New South Wales Institute of Psychiatry
Consultant - Trainer - Facilitator - Wellness Instructor

2. ACCREDITED PERSONS
UNDER THE MENTAL HEALTH ACT 2007
IN THE CONTEXT OF ADMINISTRATIVE DECISION-MAKING
2

3. Accredited Persons
• MENTAL HEALTH ACT 2007 (NSW)
(cf 1990 Act, s 287A)
• 136. (1) The Director-General may appoint a
person as an accredited person for the purposes
of this Act.
• (2) The Director-General may appoint the holder
of an office as an accredited person and may
impose conditions on the exercise by a person
or the holder of an office of the functions of an
accredited person.

4. What is ‘Administrative Law’?
• A branch of ‘public law’ (cf ‘private law’)
• The body of law that regulates the
exercise of power and the making of
decisions by:
– the executive branch of government,
– the administrative arm of government, and
– non-government bodies (‘domestic
tribunals’)

5. ‘Administrative Law’
• ‘The words
administrative law are
unknown to the English
judges and counsel, and
are in themselves hardly
intelligible without further
explanation.’
– A V Dicey, Introduction to
the Study of the Law of the
Constitution (1885).

6. ‘Administrative Law’
• ‘We do not have a
developed system
of administrative
law perhaps
because until fairly
recently we did not
need it.’
– Lord Reid, in Ridge v Baldwin
[1964] AC 40.

7. ‘Administrative Law’
• ‘It may truly now
be said that we
have a developed
system of
Administrative
law.’
– Lord Denning MR, in Breen v
AEU [1971] 1 All ER 1148.

8. ‘Administrative Law’
• Administrative Law:
– is still a comparatively ‘young’ body of law,
– lacks coherence, having many fragmented
components
• Administrative Law has been seen to be
no more than ‘an ad hoc bunch of
restraints, controls and procedures’
– Lord Scarman, ‘The Development of Administrative Law:
Obstacles and Opportunities’ [1990] Pub L 490 at 490.

9. What is ‘Administrative Law’?
• ADMINISTRATIVE LAW is ‘all’ about:
– DECISIONS … and DECISIONS … and
DECISIONS!
– DECISION MAKERS … of all different kinds
– FACTS … occurrences in space and time
– POWER … very much so!
– FAIRNESS … and, sadly, UNFAIRNESS
– RULES … naturally! ... lots of them!

10. What is ‘Administrative Law’?
• Judicial Review
– can only be performed by a superior court
– is concerned with the ‘lawfulness’ of a
decision
• ‘Lawfulness’ ordinarily involves BOTH
– issues of ‘fairness’, and
– issues of ‘power’ (or ‘jurisdiction’)

11. What is ‘the law’?
• The law is what the courts tell us it is.
• A lawyer makes an informed
‘prediction’ as to what he or she
thinks a court of competent
jurisdiction would declare to be the
law on the facts of the particular case.
• ‘The life of the law is experience, not
logic’ (Holmes J).

12. Legal Reasoning
• INDUCTION
– A rule, principle or doctrine is ‘arrived at’ (i.e.
extracted or formulated) from a number of
particular instances or cases.
• DEDUCTION
– The rule, principle or doctrine is then ‘applied’ to
the particular circumstances of the case at hand.
• LEGAL INTUITION
– ‘Situation-sense’.

13. Administrative Law
• Concept of Rational
Humaneness
• Duty to act
honestly and fairly

14. Administrative Law …
Underlying Philosophical Ideas
THE CONCEPT
OF “RATIONAL
HUMANENESS”

15. ‘Rational Humaneness’
• John
Morley
• 1st Viscount
Morley of
Blackburn,
OM, PC (1838-
1923)
• British Liberal
statesman,
writer and
newspaper
editor.

16. THE NEED FOR
RATIONAL HUMANENESS
'A RATIONALITY
THAT IS INFORMED BY
CONSIDERATION AND
COMPASSION FOR THE
NEEDS AND DISTRESSES
OF HUMAN BEINGS'
- Gordon Hawkins (1919-2004)
Criminologist, Academic and Philosopher.
16

17. Underlying Philosophical Ideas
• The principle of ‘equal power’*
• cf negotiation theory and practice
– an administrator has superior power over
others
– the rules, principles and doctrines are
designed to ensure, so far as possible, that an
administrator acts as if there were a position
of equal power
* See Peter G Woolcock, Secular Humanism: Ethics Without Religion (Adelaide
SA: Humanist Society of South Australia, 1989).

18. Administrative Law
THE DUTY
TO ACT
HONESTLY

19. DUTY TO ACT HONESTLY
THE WORD “HONESTY”
[Latin, ‘honestas’]
MEANS ONENESS
WITH THE TRUTH,
THE FACTS.

20. WHAT IS A FACT?
A FACT IS AN
OCCURRENCE
IN SPACE
AND TIME.
- John Anderson
(1893-1962)
Challis Professor of Philosophy
University of Sydney, 1927-58
'Father of Australian Realism'
20

21. Primary Facts and
Ultimate Questions of Facts
• PRIMARY FACTS
• ULTIMATE QUESTIONS
OF FACT
21

22. Primary Facts and
Ultimate Questions of Facts …
An ultimate
question of fact
often involves
several questions
(‘layers’) of
primary fact …
22

23. Primary Facts and
Ultimate Questions of Facts
Whether a person is, for
example, a “mentally ill
person” within the meaning of
the Mental Health Act 2007 is
the ultimate question of fact.

24. Primary Facts and
Ultimate Questions of Facts
That ultimate question of
fact involves several
questions of
primary fact …

25. Primary Facts and
Ultimate Questions of Facts
• Is the person suffering from
‘mental illness’?
• NOTE. That question itself
involves several other questions
of primary fact, e.g. …

26. Primary Facts and
Ultimate Questions of Facts
• Mental functioning seriously
impaired?
• Delusions?
• Hallucinations?
• Serious disorder of thought form?
• Severe disturbance of mood?
• Sustained or repeated irrational
behaviour?

27. Primary Facts and
Ultimate Questions of Facts
• If so, owing to that illness,
are there reasonable
grounds for believing that
care, treatment or control of
the person is necessary … ?

28. Primary Facts and
Ultimate Questions of Facts
• Facts need to be
adduced to establish
all of the above
matters.
28

29. Primary Facts and
Ultimate Questions of Facts
• The adduced facts
comprise what are
known as the basic
or primary facts.

30. Primary Facts and
Ultimate Questions of Facts
• They are the basic facts
that must be adduced
to establish the
ultimate
question of fact.

31. Matters of ‘fact’
and matters of ‘opinion’
• In law, every ‘opinion’, to be
‘valid’, must be based upon,
and supported by, facts
relevant to the particular
question or issue.

32. Matters of ‘fact’
and matters of ‘opinion’
• Opinions can be said to
be ‘true’ or ‘false’ when
attention is directed, not to
the opinion itself, but to the
thing that the opinion is of.

33. Matters of ‘fact’
and matters of ‘opinion’
• The test of a ‘true’
opinion is to ‘see’
whether or not
something is the case.

34. Matters of fact … and opinion
To find out whether a
fact exists, you ‘look
and see’, or observe
… or examine.

35. 35

36. The Importance of Facts
• Nothing is superior to facts!
• Despite the difficulties, always look
for the “facticity” of things ... the
“thing-in-itself”.
• Draw appropriate conclusions and
inferences from facts.
• Document all findings of relevant
fact.

37. THE FIRST AND MOST
IMPORTANT QUESTION
DO I HAVE
POWER
TO ACT?

38. DUTIES AND DISCRETIONS
1. A MUST/MAY DO X.
2. A MUST/MAY DO X
IF FACT Y EXISTS.

39. DUTIES AND DISCRETIONS
3. A MUST/MAY DO X IF A
IS SATISFIED THAT FACT
Y EXISTS.
4. A MUST/MAY DO X
PROVIDED B CONSENTS.

40. DUTIES AND DISCRETIONS
5. A MUST/MAY DO X
OR Y.
6. A MUST/MAY DO X
BUT ONLY FOR
PURPOSE Y.

41. DUTIES AND DISCRETIONS
7. A MUST/MAY DO X
PROVIDED A FIRST
DOES B.

42. Failure to Comply
with Procedural Requirements
A MUST/MAY DO
X PROVIDED A
FIRST DOES B.
… BUT WHAT IF
THAT DOESN’T
HAPPEN?

43. Failure to Comply
with Procedural Requirements
The correct test is …
WAS IT A PURPOSE OF THE
LEGISLATION THAT AN ACT
DONE IN BREACH OF THE
LEGISLATIVE PROVISION
SHOULD BE INVALID?
See Project Blue Sky Inc v Australian Broadcasting
Authority (1998) 194 CLR 355

44. ‘Abuse of Power’

45. Bad Faith/Improper Purpose
• A decision-
maker must not
exercise their
powers in bad
faith or for an
improper
purpose.

46. Irrelevant Considerations
• A decision-maker:
–must not base a decision on
irrelevant or extraneous
considerations, and
–must give due and proper
consideration to all relevant
considerations.

47. Irrelevant Considerations
• A decision-maker MUST take
into account all relevant
considerations that the
decision-maker is bound, as
opposed to entitled, to take
into account.

48. Manifest Unreasonableness
• A decision-maker
must not exercise
its powers
‘unreasonably’ …
in the sense that
…

49. Manifest Unreasonableness
• … no reasonable decision-
maker … acting within the
‘four corners of its
jurisdiction’ … could ever
have made the decision in
question.

50. Lack of Proportionality
• A decision may be so
lacking in reasonable
proportionality as “not to
be a real exercise
of the power”.

51. Lack of Proportionality
• There must exist a
reasonable relationship
between the “end” and
the “means”
of the power.

52. Uncertainty/Lack of Finality
• A decision must be:
–“certain”, and
–“final”.

53. Fettering Discretion
• A decision-maker must
not fetter itself in
advance as to how it will
exercise its statutory
discretion.

54. Fettering Discretion
• … ‘tying oneself in
knots … fetters …’

55. Acting on a Policy
• A decision-maker:
–must examine in
detail each
matter before it
on its merits, and
…

56. Acting on a Policy
– must not
automatically or
inflexibly apply
an overall policy
without considering
the particular
circumstances of
the matter.

57. Acting Under Dictation
• A decision-maker, entrusted
with a statutory discretion:
–must exercise that power
itself and independently, and
–must not be dictated to by a
third party.

58. Acting Under Dictation
Dictation can occur
even if the other
person:
• does not intend to
dictate, or
• has given no
direction that the
decision maker
must do X.

59. The Rules of Procedural Fairness
• Hearing rule - Audi alteram partem rule
– Hear the other side
• Bias rule – Nemo judex rule
– Nemo debet esse judex in propria sua causa
• (‘No one can be a judge in their own case’)
• ‘No evidence’ (or ‘probative evidence’) rule
– Decisions must be based upon logically
probative material

60. Kioa v West (1985) 159 CLR 550
• “The law has now developed to a point where
it may be accepted that there is a common law
duty to act fairly, in the sense of according
procedural fairness , in the making of
administrative decisions which affect rights,
interests and legitimate expectations ,
subject only to the clear manifestation of a
contrary statutory intention.”
– Mason J.
60

61. ‘Content’ of the Hearing Rule
• “The critical question in most
cases is not whether the rules of
procedural fairness apply, but
what does the duty to act fairly
require in the circumstances of
the particular case?”
– See Kioa v West (1985) per Mason J.

62. ‘Content’ of the Hearing Rule
• The minimum
content of the hearing
rule is … THE
GIVING OF NOTICE.

63. ‘Content’ of the Hearing Rule
• The power to take a person to
hospital against their will may
need to be exercised
peremptorily in many cases,
… without a “hearing” first being
afforded the affected person.

64. ‘Content’ of the Hearing Rule
• In many cases, the
affected person simply
will not be in a mental
state conducive
to being “heard”.

65. ‘Content’ of the Hearing Rule
• HOWEVER,
at the very minimum,
the person will need to be
told, as clearly as possible,
and humanely, of ...

66. ‘Content’ of the Hearing Rule
• the terms and effect of
the decision, and
• its implications in
practical terms.

67. ‘Content’ of the Hearing Rule
•Each case will
need to be
assessed on its
own special facts.

68. The Bias Rule
• “It is of fundamental importance
that justice should not only be
done, but should manifestly
and undoubtedly be seen to
be done.”
– R v Sussex Justices; Ex parte McCarthy
[1924] 1 KB 256 per Lord Hewart.

69. The Bias Rule
• The test for bias is whether the relevant
circumstances are such as would give rise
in the mind of a fair-minded and informed
member of the public, to a reasonable
apprehension or suspicion of a lack of
impartiality on the part of the decision-
maker.
– Webb v R (1994) 181 CLR 41.

70. The Bias Rule
• See, eg, numbered paragraph 7 in Part
1 of the Schedule 1 form/certificate:
– re pecuniary interests in private
mental health facilities.
• Further, in scheduling a person, you
must not be a “near relative” or the
“primary carer” of the person.

71. ‘No evidence’ (‘probative evidence’) rule
R v Deputy Industrial Injuries
Commissioner ex p Moore [1965] 1 QB
456 per Lord Diplock:
“The requirement that a person exercising
quasi-judicial functions must base his
decisions on evidence means no more
than it must be based upon material
which tends logically to show the
existence or non-existence of facts
relevant to the issue to be determined,
… (cont’d)
71

72. ‘No evidence’ (‘probative evidence’) rule
… or to show the likelihood or unlikelihood
of the occurrence of some future event
the occurrence of which would be
relevant. It means that he must not spin a
coin, or consult an astrologer, but he may
take into account any material which, as a
matter of reason, has probative value, in
the sense mentioned above.”
- R v Deputy Industrial Injuries Commissioner ex p
Moore [1965] 1 QB 456 per Lord Diplock.
72

73. ‘No evidence’ (‘probative evidence’) rule
‘… [one]
must not
spin a coin,
or consult
an
astrologer
…’
- R v Dep Industrial
Injuries Comsr ex p
Moore [1965] 1 QB
456 per Lord
Diplock.
73

74. APPOINTMENT
OF ACCREDITED PERSONS
• MENTAL HEALTH ACT 2007 (NSW)
• SECTION 136 - Accredited persons
• (cf 1990 Act, s 287A)
• (1) The Director-General may appoint a person
as an accredited person for the purposes of this
Act.
• (2) The Director-General may appoint the holder
of an office as an accredited person and may
impose conditions on the exercise by a person
or the holder of an office of the functions of an
accredited person.

75. CRITERIA FOR INVOLUNTARY
ADMISSION, ETC
• 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 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 [viz Part 1 of Chapter 3 of the Act].

76. “MENTALLY ILL PERSON”
• 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,
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.

77. NON-INDICATIVE MATTERS
• 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
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,
• … (cont’d)

78. NON-INDICATIVE MATTERS
(cont’d)
• (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 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 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.

79. “MENTAL ILLNESS”
• mental illness means a condition which 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). [See s.4(1).]

80. “MENTAL ILLNESS”
• Delusion:
– a false and fixed personal belief
• based on incorrect inference
about external reality
• held and firmly sustained in the
face of incontrovertible and
obvious proof or evidence to the
contrary

81. “MENTAL ILLNESS”
• Delusion:
– … ‘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’
• NSW Minister for Health, NSW
Legislative Assembly, 22 March 1990
(on the Mental Health Bill 1990).

82. “MENTAL ILLNESS”
• Hallucination:
–Latin word that is the root
of ‘hallucination’ ...
•‘to wander in thought’ or
‘to utter nonsense’ ...

83. “MENTAL ILLNESS”
• Hallucination:
• false sensory perception ... perceptions
in any of the senses in the absence of,
and not caused by, an external real
stimulus ...
– perceived as ..
» being located in objective space
» having realistic qualities as normal
perceptions ... (cont’d)

84. “MENTAL ILLNESS”
• Hallucination:
• not subject to conscious
manipulation
• indicative of a psychotic
disturbance when there is also
impaired reality testing

85. “MENTAL ILLNESS”
• Hallucination:
… ‘subjective experiences that are
consequences of mental processes,
sometimes fulfilling a purpose in the
individual’s mental life’
- W. Keup, Origin and Mechanisms of
Hallucinations, 1970, page v.

86. “MENTAL ILLNESS”
• Serious disorder of thought form:
– ‘loss of coherence with the person
becoming incapable of
communicating sensibly by following
one idea logically with another’
• NSW Minister for Health, NSW Legislative
Assembly, 22 March 1990 (on the Mental Health
Bill 1990).

87. “MENTAL ILLNESS”
• Severe disturbance of mood:
– ‘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’
• NSW Minister for Health, NSW Legislative
Assembly, 22 March 1990 (on the Mental Health
Bill 1990).

88. “MENTAL ILLNESS”
• Sustained or repeated irrational behaviour:
– not so much contrary to reason
or logic per se ... cf. ‘irrationality’ in
law
– the presence of the other
symptoms (eg delusions,
hallucinations, etc) may be
inferred from the behaviour ...

89. “MENTAL ILLNESS”
• Sustained or repeated irrational
behaviour:
– overreliance on the affective or intuitive
domains
• with, eg, agitation, psychomotor
retardation, catatonia, profound indecision
• with the result and to an extent that the
person is unable to pursue their usual life
rationally (Dr Martyn Patfield, Psychiatrist)

90. “MENTALLY DISORDERED PERSON”
• SECTION 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.

91. NON-INDICATIVE MATTERS
• 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
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,
• … (cont’d)

92. NON-INDICATIVE MATTERS
(cont’d)
• (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 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 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.

93. “SCHEDULING”
• 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 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 the primary carer or a near relative of the person.
• …(cont’d)

94. “SCHEDULING” (cont’d)
• [SECTION 19]
• …
• (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.

95. “SCHEDULING” (cont’d)
• 18. When a person may be detained in
mental health facility
• …
• (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.

96. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION OR OBSERVATION
• The examination or
observation must in either
case be a personal one.
• Actual physical presence is
not necessarily required.

97. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION OR OBSERVATION
There must still be a direct (but not
necessarily ‘visible’) and intentional
– awareness [‘examination’] or
– scrutiny [‘observation’]
of the client and their behaviour.

98. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION OR OBSERVATION
The awareness (e.g. from
outside a closed door) or
scrutiny (e.g. by means of a
video conference facility)
must be that of the
accredited person.

99. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION
OR OBSERVATION
Any observation falling short of an
actual direct examination
e.g. listening to the behaviour of
someone from outside a closed
door ...
should be clear and unambiguous.

100. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION OR
OBSERVATION
A telephone call,
without more by way
of awareness or
scrutiny, is generally
regarded as being
legally insufficient …

101. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION OR
OBSERVATION
Why?
Because there is ...
no ‘actual unequivocal’
examination or
observation in mere
telephone contact.

102. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION OR OBSERVATION
Account may be taken of
other corroborative matters,
not ascertained as a
consequence of personally
examining or observing
the person ...

103. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION OR OBSERVATION
... where, for example, those matters:
• arise from a previous personal
examination of the person or
• are communicated by a
reasonably credible informant.

104. “SCHEDULING” (cont’d)
PERSONAL EXAMINATION OR OBSERVATION
However, such matters are, at
best, corroborative only, and
are not, in themselves, legally
sufficient to constitute a
“personal examination
or observation”.

105. POLICE ASSISTANCE
• SECTION 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.

106. ORDER FOR MEDICAL EXAMINATION
OR OBSERVATION
• 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
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. …
(cont’d)

107. ORDER FOR MEDICAL EXAMINATION
OR OBSERVATION (cont’d)
• [SECTION 23]
• …
• (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 .

108. Protection Against Personal Liability
• MENTAL HEALTH ACT 2007
(cf 1990 Act, s 294)
• 191. (1) Any police officer,
health care professional or ambulance officer
who, in good faith, exercises a function that is
conferred or imposed on that person by or under
this Act or the Mental Health (Forensic
Provisions) Act 1990 is not personally liable for
any injury or damage caused by the exercise of
that function.
…

109. Protection Against Liability
• CIVIL LIABILITY ACT 2002 (NSW)
• 43A. Proceedings against public or other authorities for
the exercise of special statutory powers
• (1) This section applies to proceedings for civil liability to
which this Part applies to the extent that the liability is based
on a public or other authority’s exercise of, or failure to
exercise, a special statutory power conferred on the authority.
• (2) A "special statutory power" is a power: (a) that is conferred
by or under a statute, and (b) that is of a kind that persons
generally are not authorised to exercise without specific
statutory authority.
… (cont’d)

110. Protection Against Liability
• (3) For the purposes of any such proceedings, any act or
omission involving an exercise of, or failure to exercise, a
special statutory power does not give rise to civil liability
unless the act or omission was in the circumstances so
unreasonable that no authority having the special
statutory power in question could properly consider the
act or omission to be a reasonable exercise of, or failure
to exercise, its power.
• (4) In the case of a special statutory power of a public or
other authority to prohibit or regulate an activity, this
section applies in addition to section 44.

111. Protection Against Liability
• CIVIL LIABILITY ACT 2002 (NSW)
• 44. When public or other authority not liable for failure to
exercise regulatory functions
• (1) A public or other authority is not liable in proceedings for civil
liability to which this Part applies to the extent that the liability is
based on the failure of the authority to exercise or to consider
exercising any function of the authority to prohibit or regulate an
activity if the authority could not have been required to exercise the
function in proceedings instituted by the plaintiff.
• (2) Without limiting what constitutes a function to regulate an activity
for the purposes of this section, a function to issue a licence, permit
or other authority in respect of an activity, or to register or otherwise
authorise a person in connection with an activity, constitutes a
function to regulate the activity.