Mental Health Coordinating Council

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Legal rights in relation to medical treatment
Confidentiality of medical information
Discrimination due to a mental illness or psychiatric disability
Advance Directive
Rights in Hospital
Leave
Official Visitors

All people in the community who use health care services have rights in relation to how services are provided and what they are entitled to know about them. This chapter sets out some of these rights relevant to people with a mental illness, as well as some rights guaranteed under the Mental Health Act 1990.

Legal rights in relation to medical treatment

People have the right to be informed about decisions made by medical and health care workers about treatment, medication or arranging a hearing before a magistrate. Specifically people have the right to:

• See an order made about them and to know exactly what it means;
• Information about the type and amount of medication prescribed;
• Express opinions and feelings at any hearing; and
• Appeal to the Mental Health Review Tribunal against a magistrate’s order if an order has been made.

What rights do patients have to information about medical treatment?

Before a patient agrees to have any medical treatment, they have the right to be told details about the treatment. Under section 6.2 of the Mental Health Act, they must be made aware of their legal rights and entitlements under the Act. The doctor must explain:

• Why the treatment is necessary;
• The exact nature of the treatment;
• Any side effects; and
• Any risks that may result from the treatment.

Patients must be fully informed of any reasonable alternative treatment for their condition. They can also ask the doctor questions about the treatment. After they have been given this information they will be able to make an informed decision about whether they want to have the treatment or not.

Right to a second opinion

Anyone who is not happy with the opinion of their doctor or the treatment suggested can go to another doctor for a second opinion.

Right to say no to medical treatment

Normally no one can be forced to undergo treatment they do not wish to have. Only after the treatment has been fully explained and the person has consented to it, can the doctor proceed. The primary exception to this in relation to treatment for mental illness occurs in relation to involuntary patients under the Mental Health Act 1990.

Right to see records kept by a doctor or health care professionals

Under the 2001 amendments to the Federal Privacy Act 1988, people have a right to see any health and medical records compiled since 22 December 2001 and any prior to that date if they are currently being used. Doctors may charge an administrative cost if for example they need to spend time photocopying. They may refuse access to some file information if providing access would pose a serious threat to the life or health of any individual. For further details of rights and exceptions see the website of the Office of the Federal Privacy Commissioner ‘Frequently Asked Questions’ (FAQ) section (www.privacy.gov.au/faqs/hf/q5.html) or phone the office (contact details in Chapter 18). People should contact their doctor or health care professional if they wish to obtain information from their records.

Right to see records kept by a doctor or health care professionals

Consumer rights to information are covered in the Federal Privacy Act 1988, the Mental Health Act 1990, the Freedom of Information Act 1989, and the Health Records & Information Privacy Act 2002. If patients wish to see their files, the first point of contact should be the treating psychiatrist. The psychiatrist may deny the patient’s request if they are of the belief that viewing these files may cause harm to the patient. If this is the case but the patient still wants to view their records, they can ask the medical superintendent. If the application is also denied by the medical superintendent, patients should contact the Health Care Complaints Commission (HCCC) regarding the best way to go about obtaining or viewing records (go to Chapter 18 for contact details). Patients who are being treated by a private psychiatrist have the same rights to medical records as patients being cared for in a public setting. The NSW  Medical Board and the Federal Privacy Commissioner can provide details on rights to access medical records in relation to mental illness (Chapter 18 for contact details).

Confidentiality of medical information

Doctors and health workers are bound by strong confidentiality provisions which require them to keep patient information confidential unless they have the patient’s permission to release it. There are some exceptions, including if a court orders that patient information should be disclosed.

Health information held by a private sector organisation can, in limited circumstances, be used without consent for research and the collection and analysis of statistics or for health service management. Guidelines under which this can take place are published by the National Health and Medical Research Council (NHMRC) (Chapter 18 for contact details). In most cases, researchers will aim to seek individual consent before they use data relating to a patient's state of health.

Discrimination due to a mental illness or psychiatric disability

Discrimination against a person or their associates because they have a mental illness, or are perceived to have a disability, or any other impairment, is against the law. If the discrimination is a health matter, complaints may be made to the Health Care Complaints Commission. If someone is denied goods or services because of illness, they can lodge a complaint with the Human Rights and Equal Opportunity Commission (see Chapter 18) who will investigate the matter and seek to resolve it. The NSW Anti-Discrimination Act 1977 allows complaints to be made to the NSW Anti-Discrimination Board also (see Chapter 18 for contact details or go to the section on The Anti-Discrimination Board of NSWChapter 15 for details on how to make a complaint).

Advance Directive

An Advance Directive says what someone wants to happen to them if they become incapable of making decisions for themselves. It usually contains information about where they do or do not wish to be cared for and by whom, or what treatment they want or do not want. An Advance Directive can express wishes about any aspect of their life or affairs, including finances. A person can nominate someone to see that these wishes are carried out and to make other personal decisions for them. A Living Will can also say who they would want to have as their guardian if one needs to be appointed.

How are Advance Directives made?

There is no set way to make an Advance Directive. However, the following may assist:

• Make sure it is clear and easy to understand;
• Have it witnessed by someone, preferably someone independent and not referred to in the document; and
• Keep it in a safe place and give a copy to relatives, friends or carers and to any person who has been involved in treatment.

Rights in Hospital

Being held in hospital

Strict criteria apply before any person with a mental illness can be detained for treatment in a psychiatric hospital. Under the Mental Health Act, a person has the right to be held in the ‘least restrictive environment’, and they should not be kept in hospital if they could be cared for in the community.

How are rights different in hospital?

If someone is admitted as an involuntary patient, their ability to refuse treatment will be limited, and the medical superintendent of the hospital may, under the Mental Health Act, require them to undergo treatment. There may also be circumstances where they can be refused access to their medical records if their doctor or the magistrate at their Hearing is of the view that the information it contains could seriously damage their recovery. Apart from this restriction, there are a number of rights specifically set out in the Mental Health Act for people detained in psychiatric institutions.

A document explaining all rights and legal entitlements a patient has in hospital (Form 1) should be given to each patient on admission and explained by the first doctor they see when admitted. If the doctor thinks the person is not capable of understanding the information when it is first given to them, another explanation or statement must be given to them at least 24 hours before they see a magistrate.

If a magistrate makes a person a temporary patient, or they are placed on a community order (CCO or CTO), they should be given a form informing them of their right to appeal against the order. This document currently called Form 4, ‘Your Rights After the Magistrate's Inquiry’. The number of the form may change as the Regulation undergoes its five-yearly review. All forms can be downloaded from the Centre for Mental Health’s web site: www.health.nsw.gov.au/policy/cmh/act.html.

Rights at a Tribunal hearing or magistrate’s hearing

People have a right to procedural fairness just like in any other hearing. This means they have a right to have all relevant aspects of their case put before the magistrate or the Mental Health Review Tribunal (MHRT), so the magistrate or MHRT can make a considered and appropriate decision in their best interests.

Right to see a lawyer

When someone attends a magistrate’s hearing or a MHRT hearing, they will have the right to be represented by their own solicitor, at their cost. They will also have the right to be represented, free of charge, by the specialist Mental Health Advocacy Service (MHAS) (see the MHAS in Chapter 16 for further details or Chapter 18 for contact details).

Rights to appeal a decision

A person has a right to appeal to the MHRT against orders made by the magistrate or to appeal to the Supreme Court against orders made by the MHRT (however such an appeal must be on a matter of law). A person can discuss these rights with their solicitor or with the MHAS.

Rights to have your case reviewed

The medical superintendent can decide at any time to discharge a person before a magistrate’s or MHRT order expires. Each person’s circumstances should, therefore, be reviewed on an ongoing basis to decide if discharge is possible. In addition, magistrate and MHRT hearings occur regularly to assess each case and decide if staying in hospital is the best option.

Right to be discharged

If a person has been made a Temporary Patient or a Continued Treatment Patient, they have the right to apply to the medical superintendent (orally or in writing) to discharge them. If they are refused, they have the right to have that decision reviewed by the MHRT. A relative or friend may also apply to the medical superintendent to have the patient discharged. If a patient is requesting a discharge, they should ask their doctor or nurse for an ‘Application for Discharge from Hospital’ form to fill in. This form will be sent to the medical superintendent who then has 3 days to respond. They do not have to see the medical superintendent in person. If they wish to see the medical superintendent, they should ask the nurse or doctor to arrange this for them. A patient can write to the medical superintendent at anytime and ask a member of staff to put the letter in the internal mail.

Right to wear own clothes to a hearing of the MHRT

It is important that the patient goes to a magistrate’s hearing or MHRT hearing wearing everyday clothes, not pyjamas or a nightdress. All patients have the right to wear their own clothes to a hearing and to be provided with personal items such as make-up or shaving equipment, etc.

Right to an interpreter or assistance with a hearing impairment

If someone does not speak English or understand it very well, or has a hearing impairment, they have the right to an interpreter or sign language translator when they come before a magistrate or the MHRT. The medical superintendent must also explain to patients their rights and entitlements via a translator in their language as soon as practicable after they are detained in hospital.

Rights in relation to medication

An Involuntary Patient under the Mental Health Act does not have the right to refuse medication but they may be able to be involved in decisions about their medication, especially when they know what works for them and what does not. Under the Act:

• A patient must only be given the minimum amount of medication consistent with ‘proper care’ before the magistrate’s hearing so it does not prevent them from participating at the hearing.
• A person has the right to know what medication they are taking. They can ask to know the type of medication, the dosage prescribed and what has been administered to them. Their solicitor also has the right to ask for this information on their behalf.
• Doctors must not give a patient drugs or dosages of drugs that do not meet with proper professional standards (e.g. dosages must not be excessive).
• Hospitals must keep a drug register so that all drugs being given and their dosages can be checked and reviewed. Consumers should keep a record of their own medication usage, dosages and unwanted effects, so that they can use this information in discussions on these issues.

Leave

If the medical superintendent is of the opinion that it is in the patient’s best interests, and the patient has not been held under Section 41 and has not been discharged or classified as an informal patient, or is a temporary or continued treatment patient, then they may allow the patient to be absent from hospital subject to the Superintendent’s conditions (S71).

Right to be transferred or to refuse a transfer to another hospital

In consultation with the patient, the medical superintendent and the treating team decide what care is best for the patient. There is nothing to prevent a patient from asking to be transferred to another facility. They should tell their doctor their reasons for asking for the transfer. Similarly, if they do not want to be transferred, they can also discuss this with their treating doctor. Transfer is usually as a result of a need to find an inpatient bed or to treat the patient closer to home.

Protection from ill-treatment in hospital

Under the Mental Health Act it is an offence to deliberately strike, wound, ill-treat or neglect a patient in hospital. If something like this occurs, the patient should tell the medical superintendent or an Official Visitor (see Official Visitors) immediately so that action can be taken to stop it in future. The patient (or carer) needs to write down what happened, who was involved, where it happened, and when. If the patient leaves a note in the Official Visitor’s letterbox, they should make sure it is dated and signed so that action can be taken on behalf of the patient.

Right to receive visitors, phone calls and letters in hospital.  Right to be treated with respect.

Patients have the right to have their correspondence delivered to them in hospital and to have their correspondence sent from there. Except in very extreme circumstances, mail should not be opened before the patient receives it.

Each patient has the right to receive visitors and phone calls. Patients have the right to have an advocate of their choice (separate to legal advocates) who can help with aspects such as asking questions about their medication.

Patients have a right to privacy and to be treated with dignity and respect. Patients may ask to have contact with the hospital consumer support workers or consumer advocates in relation to these matters or contact a community advocacy organisation. Advocacy organisations can be run for the interests of consumers or carers or both. For details of consumer and carer advocacy organisations, go to Chapter 18

Help or information when leaving the hospital

Patients are entitled, on discharge, to be given information about help available. This includes details of support groups, aftercare associations and community groups and how to contact them. The hospital should provide details of outpatient services available. If placed on a Community Treatment or Counselling Order (see Chapter 2 for more details on community orders), the patient should receive information about the next steps, and details of other follow-up services.

Problems in hospital

If a patient has any problems with their medical treatment they should first talk to their doctor. If the problem relates to care in hospital the patient should raise it with the medical superintendent of the hospital and ask them to resolve it. If the problem is more serious, or the medical superintendent does not resolve it, the patient should discuss it with the Official Visitors.

Official Visitors

Official Visitors are appointed to Area Health Services by the Minister for Health. The aim of the Official Visitors Program is to safeguard standards of treatment and care, and the rights and dignity of people being treated under the NSW Mental Health Act while maintaining an independent community perspective. Official Visitors are independent from the mental health system.

Official Visitors must visit each mental health inpatient facility and private psychiatric hospital (authorised hospital) in an Area Health Service at least once a month and each health care agency (Community Mental Health Centre) in an Area Health Service at least once every six months.

Panels of Official Visitors have the legal right to inspect every part of the hospital or health care agency and make such inquiries as they think necessary about care, treatment and control of voluntary and involuntary patients and people subject to community orders. They have the power to examine all records and registers and to interview any patient, or person subject to a community order. Official Visitors are not able to discharge patients.

Who are Official Visitors?

Atleast one Official Visitor on a visiting panel must be a medical practitioner. Other visitors may be community representatives, lawyers or health professionals. They must be independent of the Area Health Service to which they are appointed. Visitors receive a small payment for each visit.

Contacting Official Visitors

Official Visitors visit hospitals once a month and health care agencies twice a year. Patients should let staff know if they want to see an Official Visitor during their next visit.

Hospitals and agencies must facilitate consumers making direct contact with official visitors by:

1. Displaying a poster (available from the centre for mental health) about the role of official visitors, with a telephone number on which the official visitor can be contacted. This number is known as the Official Visitor's Line, and is operated by the Mental Health Association NSW (by the Centre for Mental Health).  The number is 1800 208 218
2. Providing a locked box in an accessible area where confidential messages can be left. The Official Visitors are the only people who can access the contents of these boxes. Patients should make sure they put their name and the date on the letter so that the Official Visitors can follow up.

If a patient does not see an Official Visitor when they visit, and decide to telephone the office directly, the patient needs to tell the person who answers the phone their first name, and where they are so that an Official Visitor from the area can contact them.

If a patient urgently wants to speak to an Official Visitor outside of these hours, they should ask the hospital or community staff to arrange it. The medical superintendent of a hospital or the Director of a health care agency must notify an Official Visitor of all such requests within two days.

Who can see Official Visitors?

The following people have the right to see an Official Visitor:

• Informal Patients (voluntary);
• Involuntary patients;
• People under Community Counselling Orders; and
• People under Community Treatment Orders.

In practice, Official Visitors will also talk to relatives, friends and other health and welfare professionals who have an interest in the care and treatment of a person who has been admitted as a patient.

What can Official Visitors do?

A panel of Visitors must write a report to the Principal Official Visitor after each visit they undertake. The reports are confidential and are not given to hospital staff. Specifically, Official Visitors can do all or any of the following:

• Talk to health professionals who are treating a particular person. This can often result in increased communication between concerned people about the treatment and care of a particular person.
• Raise concerns about treatment and care with senior hospital staff. Some problems can be solved at this level, especially if they concern particular hospital policies and practices.
• Accept confidential complaints about hospital care. If the patient wishes the complaint to be confidential and not communicated to hospital staff, or does not wish hospital staff to know who has made the complaint, Official Visitors can make their own observations and inquiries about the particular complaint and communicate their views to the Principal Official Visitor and/or the Minister.

If a patient has difficulties contacting the Official Visitors, they can report the problem to the Principal Official Visitor, through the Policy Analyst, Official Visitors’ Program, Centre for Mental Health, NSW Department of Health, 73 Miller St, North, Sydney 2060 Ph 9391 9953.

A patient or a friend or relative acting on their behalf may also complain to the Health Care Complaints Commission (see Chapter 18 for contact details) if they think the patient’s rights have been breached or the patient has been mistreated.

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