Chapter 2: The Mental Health Act
Objectives of the Mental Health Act
Mental illness – the legal definition
Mental disorder – the legal definition
What is NOT regarded as mental illness
Categories of patients
Informal patients (voluntary)
Involuntary patients
Forensic patients
Admission to hospital
Informal (voluntary) admissions
Involuntary admissions
On arrival to hospital as an involuntary patient
Being detained as a mentally disordered person or mentally ill person
Magistrate’s inquiry
Community Orders
Community Treatment Orders (CTOs)
Community Counselling Orders
Electro-Convulsive Therapy
Psychosurgery
Because of the importance of specific legal terms used in legislation, terminology of the Mental Health Act 1990 is used to avoid misinterpretation.
In NSW, treatment of people with a mental illness is the responsibility of the NSW Health Department and care is a collective responsibility of the whole of the NSW Government. In 1990, a reviewed Mental Health Act was introduced because the Government and people working in the area of mental health understood that the care being received by people with mental illness could be improved. The Act has been reviewed since its introduction; relevant changes have been incorporated into this edition of the Mental Health Rights Manual.
The basic principles of the Mental Health Act 1990 emphasise community-based care, with hospitalisation only when necessary. This means that a person cannot be sent to or kept in hospital if they can live in a less restrictive kind of care – and if that kind of less restrictive care is available and appropriate (S20 MHA).
Objectives of the Mental Health Act
As stated in the Act (S4): “The objects … in relation to the care, treatment and control of persons who are ‘mentally ill’ or ‘mentally disordered’ as defined under the Act are:
- To provide for the care, treatment and control of those persons; and
- To facilitate the care, treatment and control of those persons through community care facilities and hospital facilities; and
- To facilitate the provision of hospital care for those persons on an informal and voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis; and
- While protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care.”
The objects provision also states that -
It is the intention of Parliament that: “the provisions of the Act are to be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act is, as far as practicable, to be performed or exercised so that:
- Persons who are ‘mentally ill’ or who are ‘mentally disordered’ receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, and
- In providing for the care and treatment of people who are ‘mentally ill’ or ‘mentally disordered’, any restriction on the liberty of patients and other persons who are ‘mentally ill’ or ‘mentally disordered’ and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.”
Mental illness – the legal definition
The legal definition of mental illness is quite different from a clinical diagnosis of illnesses such as schizophrenia or bi-polar disorder. The legal definition is primarily for the purpose of deciding whether a person has a mental illness that will require treatment without his or her consent. A clinical definition focuses on the diagnosis of the type of mental illness a person is experiencing. A person can have a clinical mental illness and not be considered by the Mental Health Act to be ‘mentally ill’. A person might, for example, be receiving treatment for schizophrenia. As a result, their symptoms may not put them or anyone else at risk, even though they might be distressing for the person. In this case, the person has a mental illness but would not be considered a ‘mentally ill person’ under the Mental Health Act.
As defined in the Act (S9), a mentally ill person is “someone who is suffering from a mental illness and owing to that illness there are reasonable grounds for believing that care, treatment or control of the person is necessary:
- For the person’s own protection from serious harm, or
- For the protection of others from serious harm.”
Serious harm can include:
- Physical harm;
- Harm to your reputation and/or relationships;
- Financial harm;
- Self-neglect; and/or
- Neglect of others (e.g. children and other dependents).
In considering whether someone is a mentally ill person, their continuing condition, including any likely deterioration in their condition and the likely effects of any such deterioration, are to be taken into account. Mental illness for the purposes of the Act (Schedule 1) means a condition that seriously impairs, either temporarily or permanently, a person’s mental functioning and is shown by any one or more of the following symptoms:
- Delusions (false beliefs);
- Hallucinations (eg hearing voices, or seeing things that no-one else can see);
- Serious disorder of thought form (eg thoughts that are not coherent);
- Severe disturbance of mood;
- Sustained or repeated irrational behaviour, indicating the presence of delusions, hallucinations, serious disorder of thought form or severe disturbance of mood.
Mental disorder – the legal definition
A person is considered a ‘mentally disordered’ person by law, whether or not they are experiencing a mental illness, where they behave in such an irrational way that care, treatment or control of the person is necessary as they are at risk of seriously harming themselves or another person (S10). This category is most commonly used where a person is actively suicidal or loses control following a personal crisis.
A ‘mentally disordered’ person can only be kept in hospital for a maximum of three working days (S(1)) and (S35(1)), and must be reviewed by a doctor every 24 hours (S35(2)). They cannot be admitted this way more than three times each month (S35(4)).
What is NOT regarded as mental illness and/or disorder
Having or doing any of the following does not mean someone is a ‘mentally ill person’ or a ‘mentally disordered person’ under the Act (Sl). They are not enough, on their own, to make someone go to hospital against their will. These behaviours or beliefs include:
- A particular political or philosophical belief;
- A particular religious opinion or belief;
- Engaging in promiscuous sexual practices or having a particular sexual preference or orientation;
- Engaging in immoral, illegal or antisocial behaviour;
- Having a developmental disability; and/or
- Taking drugs or alcohol, unless it causes symptoms which meet the criteria for mental illness under the Act.
Categories of patients
The Mental Health Act defines three categories of patients:
- Informal (voluntary);
- Involuntary (includes both ‘mentally ill persons’ and ‘mentally disordered’ persons); and
- Forensic (a person who is detained in hospital, prison or other place or on conditional release pursuant to an order of the Mental Health (Criminal Procedure) Act 1990 or the Criminal Appeal Act 1912.
The Act embodies the principle of procedural fairness. This means that independent decision making occurs to protect the rights of patients. Involuntary admission to hospital may occur under the Act only where they are a ‘mentally ill person’ and where no other least restrictive care is available and appropriate.
Informal patients (voluntary)
If someone is a ‘mentally ill person’ and they agree to go to hospital and receive treatment, then they are an informal patient (S12). A person under guardianship within the meaning of the Guardianship Act 1987 may also be admitted as a voluntary patient (S12(2)). Informal/voluntary patients may remain in hospital for as long as their doctor and the patient thinks it will be of benefit to them. It is important to know that voluntary patients can be reclassified as involuntary patients during the course of their stay if the treating doctor determines:
- The patient is a risk to themselves or others and needs to remain in hospital against their will;
- There is a risk to the patient or others if they were to leave the hospital; and/or
- The patient does not wish to remain in hospital voluntarily.
Involuntary patients
A person can be made an involuntary patient if they do not consent to admission and treatment and they are considered either a ‘mentally ill person’ or a ‘mentally disordered’ person. Under the Act, every effort should be made to provide the least restrictive form of care to involuntary patients.
Forensic patients
A person may become a forensic patient if they have a mental illness and have been charged with committing a criminal offence or they are in prison. A forensic patient is a person:
- Who is before the court in relation to a question concerning their 'fitness to be tried for a criminal offence, or who is detained in a hospital, prison or other places or released from custody after having been found by a court to be unfit to be tried for a criminal offence;
- Who is detained in hospital pending committal to trial or trial for an offence;
- Who is detained in a hospital after being transferred there from prison; and
- Who has been found by a court to be not guilty by reason of mental illness.
Some forensic patients come under the jurisdiction of the Criminal Courts and all come under the jurisdiction of the Mental Health Review Tribunal. They have a right to be represented by the Mental Health Advocacy Service free of charge when they come before the Tribunal. They may also have their private solicitor or barrister represent them, but they will have to pay for the cost of such representation. For more information on forensic patients, see Rights of Forensic Patients in Chapter 6: The Criminal Justice System.
Admission to hospital
Informal (voluntary) admissions
In the Mental Health Act 1990, voluntary patients are called informal patients. If a person agrees to go to hospital for treatment, and the doctor in the hospital agrees to take them on that basis then they are a voluntaryor informal patient and may remain in hospital for as long as both they and their doctor thinks it will be of benefit. In some instances, the hospital may refuse to admit a person as an informal patient if they are not satisfied that the person is likely to benefit from care or treatment (S17). If the person disagrees, they have the right to apply to have that decision reviewed by the medical superintendent.
Voluntary patients have the right to leave the hospital at any time (S65(1)). It is a good idea for the patient to tell staff when they wish to leave and that they want to plan for their care after discharge. This may include getting a relative or friend to pick them up, ensuring they have a prescription and the contacts for a doctor, links with other treatment options, and links with a case manager and support once they leave hospital. If the person has a legal guardian, the hospital must inform the guardian of the discharge.
If a patient feels they have been discharged too early, then they have the right to have that decision reviewed by the medical superintendent.
If the hospital considers that it is in the patient’s best interest to remain in hospital, the patient can be re-classified as an involuntary patient. In that case, the patient will be accorded the same rights as involuntary patients with the exception that an initial schedule is not required (see ‘Involuntary Patients’ in this chapter).
Involuntary Admissions
There are several ways someone may be taken to hospital if it is felt that they need treatment in hospital but do not consent. Refer to the table below for an overview of the pathways to involuntary admission.
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Certificate of a medical practitioner (S21) |
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The most common way of being admitted to hospital as an involuntary patient is on the basis of a medical certificate or schedule, written by a GP or a doctor at another hospital who has seen the person and thinks they need to be in hospital. The certificate can only be written if a doctor who has observed or examined the person immediately or shortly before completing the certificate, is not a close relative and considers them to be a ‘mentally ill or mentally disordered person’ as defined in the Mental Health Act. The practioner must also be satisfied that involuntary admission and detention are necessary (i.e. that there are no other appropriate means available for dealing with the person). |
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Request of a relative or friend (S23) |
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A relative or friend can make a request in writing to the medical superintendent of the nearest hospital that the person be admitted to hospital. This section is only to be used in remote areas where distance and urgency make it impractical for the person to be seen by a medical practitioner. |
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By police (S24) |
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The police may apprehend someone and take them to a hospital where:
Police do not need a warrant in these circumstances and are able to apprehend a person in any place – either in public or in private. |
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Order of the court (S25) |
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If a person goes before the Magistrate of a local court over an alleged criminal matter and the Magistrate is of the opinion that they could be considered to be a ‘mentally ill person’ as defined in the Mental Health Act, the person may be taken to and detained in hospital in accordance with an order made under Section 33 of the Mental Health (Criminal Procedure) Act 1990. |
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Information of a welfare officer (S26) |
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A person may be detained if they are accompanied to a hospital by a welfare officer. The welfare officer must inform the medical superintendent in writing that they believe the person to be a ‘mentally ill or mentally disordered person’. Such welfare officers are usually community mental health staff who are specifically designated by Area Health Directors. |
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Order for a medical examination or observation (S27) |
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Where family or friends have found it difficult to obtain a doctor to visit someone because of physical inaccessibility and they believe has a mental illness that will benefit from hospitalisation, they may approach a magistrate who may order a medical practitioner or any other person (including Police) to visit that person. |
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Other situations |
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Sometimes a person will arrive at hospital in need of psychiatric care but not by any of the ways listed above. In these cases, a doctor is still required to complete a Schedule 2 which complies with Section 21 of the Act before the patient can be classified as involuntary unless they are first made a (voluntary) informal patient. |
On arrival to hospital as an involuntary patient
Once someone has been involuntarily admitted to hospital, they must then undergo a series of further examinations (usually two but sometimes three) to remain in the hospital, in order to comply with the Act. This procedure has been established to ensure that such patients are not detained unnecessarily. The first examination must be conducted within twelve hours of arrival at hospital. If the doctor finds the person to be neither a mentally ill nor mentally disordered person, they must be released. However, if the doctor finds the person to be a mentally ill or mentally disordered person, they must be seen by a second doctor.
The second examination must take place as soon as possible and be conducted by a psychiatrist (unless the doctor who conducted the first examination was a psychiatrist) (S32(1)). If the second doctor also finds the person mentally ill, the person must then be seen by a magistrate at the next opportunity. When both doctors agree that the person is mentally disordered, the person can be detained for up to three working days. If, however, the second doctor concludes that the person is not a mentally ill or mentally disordered person, a third examination must take place. The third examination must occur as soon as practicable and be conducted by a psychiatrist (S32(3)). The decision made by the third doctor determines whether the person is released, or detained as a 'mentally disordered' or as a 'mentally ill' person.
The medical superintendent must, as soon as practicable, give to the person an oral explanation and a written statement of the person’s legal rights and other entitlements under the Mental Health Act (S30(1)). If the medical superintendent is of the opinion that a person is not capable of understanding the explanation or the statement when it is first given, another explanation or statement must be given to the person not later than 24 hours before an inquiry is held (30,2). During this interim period the person does not have the right to appeal to the Mental Health Tribunal. However, they can seek advice from the Mental Health Advocacy Service om regard to their detention.
If the person is unable to speak English, the medical superintendent must arrange for an interpreter (30,4).
Being detained as a mentally disordered person or mentally ill person
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Mentally Disordered |
Mentally Ill |
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Magistrate’s inquiry
The magistrate’s inquiry is not a criminal proceeding. Instead, magistrates consider the cases of involuntary patients who are found to be mentally ill to determine whether correct procedures have been followed and also to decide whether the person is still in need of detention. The magistrate must also ensure that the patient has been given a written statement of their rights, that relatives, friends or guardians were notified of the hearing, take into account any medication the patient may be taking and its effect on their ability to communicate effectively, and consider any cultural factors that may be relevant to the question of mental illness.
Magistrates generally visit all public hospitals with a mental health unit once a week. This means that most patients have their case considered by the magistrate within 3-10 days. The hearing is held in a room at the hospital - it may be in a ward, or in the boardroom of the hospital.
The magistrate can decide to keep the person in hospital for up to three months, or discharge them. Alternatively the magistrate can put them on a Community Treatment Order or a Community Counselling Order. The magistrate is also able to adjourn the inquiry for a period of no longer than 14 days (S42(1)). The magistrate may do this if he or she is not satisfied that the person (and/or their relatives or friends) has been informed adequately of the hearing.
Notice of hearing
Soon after someone is admitted and detained as an involuntary patient, the hospital must give notice of the hearing date (S38(1)). Notice of the hearing will be given to their nearest relative or other relative nominated by them (S38(3)(a)). If they have a guardian, he or she will be notified (S38(3)(b)). Up to two friends can also be notified (S38(3)(c)). The person may also object to notification being given to relatives or friends (S38(4)). If this is the case, the person should tell the social worker or the nurse-in-charge.
The patient goes to the hearing with relatives or friends (provided they want them there), their lawyer (if they want one), their doctor, a nurse and an interpreter if they do not speak English.
Information on file and confidentiality issues
The name of the person who is involved in any inquiry before a magistrate can not be broadcast except with the approval of the Magistrate and the consent of the person involved.
Both the magistrate and the person’s representative will have access to the patient’s file and to any reports especially prepared for the hearing (S45(1)) and (2)). This may include a doctor’s report and a report from a social worker covering the options for the least restrictive form of care. The file may contain any or all of the following:
- Forms or certificate that led to admission (e.g. a schedule from a doctor);
- One or more Form 2s, which detail the hospital’s reasons for recommending detention as an involuntary patient;
- A record of all previous medical notes held by the hospital (e.g. discharge summaries from that or other hospitals);
- Notes made by the doctor on admission, including any provisional diagnosis;
- Notes on any interviews by doctors, social workers, occupational therapists, as well as daily notes from nurses;
- A medication chart showing what has been prescribed and administered; and
- Records of any tests (psychological, bio-medical, X-rays, CAT scans etc.)
The Act emphasises that the patient should be dressed in regular, everyday clothes for the hearing so far as is reasonably practicable (S39).
Legal representation
Usually, before the hearing, the Mental Health Advocacy Service will send a lawyer to see the patient. Lawyers from the Mental Health Advocacy Service are free, but a patient can choose to have their own private lawyer, for whom they would have to pay. The lawyer is their advocate and will argue their case.
It is very important for the patient to tell their lawyer what they want said to the magistrate. If the patient believes that they no longer need to remain in hospital, they should explain any plans they have made for leaving, such as:
- Plans to get treatment from a community health centre or a private doctor;
- Where they plan to live (if the patient has nowhere to live, they should talk to a social worker to discuss options);
- Where the patient intends to seek treatment – for example, they could find out about services in their area such as drop-in-centres, living skills centres and community health centres; and/or
- What help they can get or could get from family or friends.
What happens at a magistrate’s hearing
- Generally, a hearing takes less than half an hour;
- The patient will be taken to the room where the magistrate will hold the hearing. A nurse, a social worker and a doctor will be present at the hearing;
- The magistrate will have a copy of the patient’s hospital file;
- The magistrate will ask the doctor why it is necessary for the patient to stay in hospital and how long the doctor thinks they should stay for;
- The patient or the patient’s lawyer can ask the doctor questions about what has been said or other things that are important;
- The magistrate will ask the patient or the patient’s lawyer their views. This is the patient’s opportunity to have a say about what is happening to them; and
- The magistrate will then make a decision about what he or she believes to be in the patient’s best interests.
The magistrate’s decision
Hospitalisation
If a magistrate determines that the person is a mentally ill person and feels the patient should remain in hospital to receive care and treatment they can be ordered to stay in hospital for up to three months (S51(3)). If the magistrate considers that the patient can be cared for and treated while living in the community, they may give the patient a Community Treatment Order or Counselling Order for up to six months.
Discharge
If the magistrate doesn’t think the patient needs to stay in hospital, they may be discharged or released to the care of family or friends (S51(2)). Discharge can be delayed for up to 14 days if the magistrate thinks it is in the patient’s best interests. If the magistrate has been told that the patient has a history of not accepting treatment, and a doctor has told the magistrate that the patient is likely to come back to hospital because they will become ill without treatment, the magistrate may place the patient on a Community Treatment Order or Counselling order for a period of up to 6 months.
Temporary Patient Order
If the magistrate decides the patient needs to stay in hospital, they will be placed on a Temporary Patient Order (maximum three months). If they still need to stay in hospital by the end of the order, they will attend a hearing at the hospital by the Mental Health Review Tribunal to determine the need for extended stay.
Adjournment
Community Orders
Community Treatment Orders (CTOs)
A Community Treatment Order is a legal order made either by the Mental Health Review Tribunal (MHRT) or a Magistrate which is designed to incorporate the principle of ‘least restrictive care’.
A magistrate can make a CTO where:
- A person is found to be a ‘mentally ill person’; and
- An order for community treatment is seen as the least restrictive alternative.
The MHRT can make a CTO where a person is:
- A temporary patient; or
- A continued treatment patient, or
- On a CTO that is about to expire; or
- On an appeal from the medical superintendent’s refusal to discharge, where the person is a temporary or continued treatment patient.
The treatment plan is usually prepared by the psychiatric case manager and must be presented to the Tribunal or magistrate for approval. The plan should only contain treatments with a demonstrated therapeutic benefit for the person, conditions considered essential to maintain the person in the community and conditions the agency is prepared to enforce.
After discussing the plan with the patient, the case manager or a staff member from the health care agency, along with the doctor and/or social worker in hospital, will formulate a ‘treatment plan’ (which is the CTO if legally endorsed). This usually involves a community mental health worker visiting the patient, or the patient going to the health care agency to receive treatment.
The patient must be notified of the date when their case is to be heard. They may attend the hearing with relatives and/or friends, their doctor, and another mental health professional from the health care agency.
It is very important that the patient attends the hearing so they have a chance to tell the magistrate or the MHRT what they think about being placed on a CTO. If they do not attend, the hearing may go ahead without them.
The maximum length of time for a CTO is six months. Before the end of six months, the health care agency can request another order from the magistrate or MHRT. There will be another hearing by the magistrate or the MHRT before another order can be made.
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Case Study – Community Treatment Order (CTO) Mr Sam, 58, has a history of mental illness. He is on a disability pension and lives in sub-standard accommodation. He doesn’t like mixing with people and is antagonistic to treatment. When untreated for a period, his mental state deteriorates and he has in the past deliberately harmed himself as a result. At times police have arranged for him to be admitted to a psychiatric hospital. During his last admission, the social worker organised accommodation for Mr Sam at a supervised hostel. To try to prevent the cycle of illness and hospitalisation and homelessness, the treatment team is proposing a Community Treatment Order to achieve a structure to try to engage Mr Sam’s cooperation in planning a better quality of life that ensures his future safety. Community Treatment Plan for Mr Sam
The Health Care Agency will:
Mr Sam will:
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Community Counselling Orders
Community Counselling Orders (CCOs) are less restrictive than Community Treatment Orders. They are designed for people who have a serious mental illness, who respond to medication but have a history of non-compliance and of relapsing because of their illness. CCOs aim to prevent relapse from happening. People do not have to be in hospital to be placed on a CCO. If the doctor or case manager thinks a person could benefit from a CCO, they will sit down and discuss it with them and formulate a management plan (which is in fact the CCO). This usually involves the person visiting the health care agency, or their case manager visiting them at home for them to receive treatment.
The order
Once the management plan (CCO) is finalised, it may be presented to a hearing of the Mental Health Review Tribunal. They will decide whether the person needs to be on a CCO. The person must be notified of the date of the hearing and it will not go ahead unless they or their legal representative is present. The maximum length of time for a CCO is six months.
Breaching an order
Someone placed on either a CTO or a CCO is required by law to comply with the order. If they do not comply, they are in breach of the order and the following steps may be taken:
- Firstly, the case manager will verbally inform them of the breach and encourage them to comply with the order.
- If they still do not comply, the case manager will send the person a letter stating they have breached the order, warning that if they continue to breach the order, the police may be called.
- If they still do not comply, their case manager may ask the police to assist in bringing them to the health care agency or in the case of a CTO to a mental hospital or a health care agency. In these circumstances, the police can enter the person’s property without a warrant.
At the health care agency, they will be encouraged to accept treatment. If they continue to refuse, they will be examined by a doctor with a view to admitting them to hospital. If a person is taken to hospital on a breach of a CTO, medication may be given to them against their will if considered appropriate following a medical examination. If they are taken to a health care agency for breaching a CCO, medication may be given without their consent so long as it is administered without the use of more force than would be required to administer that medication if the person had consented to its administration.
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Case Study – Community Counselling Order (CCO) Mr C, 39, is a client of X Health Care Agency. He has a psychotic illness that has often led him to be hospitalised. Mr C does not like to acknowledge that he is affected by a mental illness and is often unwilling to continue his medication when he returns home after a period of hospitalisation and treatment. When well, he works part-time and lives with his brother. When he is ill, he stays home, does not eat properly and becomes increasingly distressed. His symptoms on admission include hallucinations and delusions and he often gets depressed. Mr C has been living in the community for three months following his treatment. During the third month, he refuses to continue his medication, saying he feels quite well. His brother contacts the X Health Care Agency to say Mr C is having trouble sleeping and showing signs of disturbance. The treating psychiatrist and health care agency request a Community Counselling Order in the hope that during the period of enforced treatment, Mr C will be better able to understand and accept his illness. Community Counselling Order for Mr C
The Community Counselling Order requires:
Signed Mrs A, Director of X Health Care Agency and Case Manager |
Revoking or varying an order
The person or their case manager can apply to the MHRT to have a CTO or CCO revoked or varied. They can only apply if the circumstances have changed significantly since the order was made or there is new information available that wasn’t available when the order was originally made. The person should discuss this with their case manager first. A director of a health care agency can revoke a CTO or CCO at any time if they think the person no longer benefits from the order.
Electro-Convulsive Therapy
Electro-convulsive therapy (ECT) is a series of treatments involving a small electric current being passed through one or both sides of the brain. The treatment is known to be effective in some cases such as cases of serious depression when all other treatments have failed.
Voluntary patients
A voluntary (informal) patient cannot be given ECT if they do not want it. As a voluntary patient, their doctor must carefully explain the following things to the patient before the patient agrees or refuses to have the therapy:
- What the treatment is and how it is given;
- How many treatments are proposed;
- Possible good and bad side effects and risks associated with the treatment;
- What other types of treatment are available;
- That they can get advice from another doctor and a lawyer; and
- That they can choose to have the course of treatment discontinued at any time.
The patient must be given a chance to ask questions about the treatment and must receive answers that they understand. If they agree to have a course of ECT, their agreement must be in writing. Additionally, two doctors (one of whom must be a psychiatrist) must confirm in writing that the treatment is reasonable in all the circumstances and that it is necessary or desirable for the person’s safety or welfare. If a voluntary patient does not agree to ECT, it cannot be given.
Informed consent
If the voluntary patient has given consent but the medical superintendent is uncertain whether they are capable of giving informed consent, they may ask the Mental Health Review Tribunal (MHRT) to decide whether the consent is valid.
Involuntary patients
An involuntary patient can be given ECT even if they do not want it, providing two doctors (one of whom must be a psychiatrist) certify in writing that the treatment is both reasonable and proper and necessary or desirable for the person’s safety or welfare.
All matters relating to involuntary ECT must be referred to the Tribunal. The medical superintendent must notify the patient’s nearest relative, guardian or friend with the person’s permission and ensure so far as is reasonably practicable, that the patient appears at the inquiry in everyday clothes.
The Tribunal must hold an inquiry as soon as practicable and consider the views of the patient as well as the medical evidence in order to decide whether it is satisfied that the treatment is for the safety or the welfare of the person.
Psychosurgery
Psychosurgery involves surgery on the brain to relieve depression, aggression or other psychological symptoms. Most states have decided that this surgery is no longer appropriate. In NSW, under the Mental Health Act 1990 psychosurgery cannot be given to a patient unless the Psychosurgery Review Board consents to it. Currently all appointments to the Psychosurgery Review Board have expired and therefore no psychosurgery is being performed in NSW.