ACCREDITED PERSONSUNDER THE MENTAL HEALTH ACT 2007

IN THE CONTEXT OF ADMINISTRATIVE DECISION-MAKING

by Dr IAN ELLIS-JONESBA, LLB (Syd), LLM, PhD (UTS), Dip Relig Stud (LCIS)

Solicitor of the Supreme Court of New South Wales and the High Court of AustraliaLecturer, New South Wales Institute of Psychiatry

Consultant, Trainer and Facilitator

INTRODUCTION TO ADMINISTRATIVE DECISION-MAKING

There are a number of common law rules of lawthat are designed to ensure that

administrative decision-makers act fairly and properly.

An “accredited person” within the meaning of theMental 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 imposedon 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 declaredmental 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 matterinvolving curtailment of several fundamental rightsthe most important of which is the right to liberty.

IAN ELLIS-JONES Lawyer Consultant Trainer ABN 49 839 909 26812A Nulla Nulla Street Turramurra NSW 2074

T: +61 2 9440 2443 F: +61 2 9440 2447 E: ian.ellis-jones@hotmail.comCopyright © 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

It is therefore essentialthat accredited persons familiarise themselves with the nature and

extent of their powers and the constraints imposed by the lawfor 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 FORRATIONAL 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!!

2

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”,

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 seeWHETHER OR NOT SOMETHING IS THE CASE.

A single logic applies to all thingsand 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 ofany 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 otherwise

achieve some object other than that for which the power was conferred.

3

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 takenand 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 QUESTIONFOR ANY ADMINISTRATIVE DECISION-MAKER IS …

DO I HAVE POWER TO ACT?

An administrative decision-maker may only do what is authorised and must not act in excess of its express power. If it purports to do so, its decision will be void.

However, whatever may fairly be regarded as incidental to, or consequent 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 DISCRETIONS

1. 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.

4

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, 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.

5

OTHER RULES OF ADMINISTRATIVE DECISION-MAKING

Bad Faith / Improper Purpose

A decision-maker must not exercise its powers in bad faith or for an improper purpose.

The word “improper” in this context does not mean wrong or incorrect - it refers to something that is not a proper exercise of the power. The power has been exercised for an ulterior purpose, that is, for a purpose other 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 “mentally disordered”, within the meaning of the Act receive the best possible care and treatment in the least restrictive environment enabling that care and treatment to be effectively given.

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.

A decision-maker MUST take into account all relevant considerations that the decision-maker is BOUND, as opposed to ENTITLED, to take into account: see, in that regard, s.14(2) of the Act.

What are “relevant” and “irrelevant” considerations is ultimately a matter of statutory construction: see eg s.16 of the Act (which contains a list of matters that are not necessarily irrelevant considerations nor relevant considerations for that matter, but which are not, in themselves, determinative of whether or not a person is “mentally ill, or “mentally disordered”, within the meaning of the Act).

By way of example, relevant or potentially relevant considerations include the need to consider the client within his or her family and cultural environment, the family’s capacity and desire to manage the client at home, the presence of risk factors within the client’s environment, the impact of the client’s physical health, psychosocial

6

developmental considerations (particularly in the case of young persons), and so forth.

Manifest unreasonableness

A decision-maker must not exercise its powers “unreasonably” (in the sense that no reasonable decision-maker, acting within the “four corners of its jurisdiction”, could ever have reached the decision in question). This means, among other things, that a decision-maker must not act capriciously, irrationally or perversely.

Scheduling a person without any personal examination or personal observation, or otherwise doing so without first forming the requisite “opinion”, or scheduling for the purpose of “punishment”, would all be manifestly unreasonable decisions.

Lack of proportionality

A decision may be so lacking in reasonable proportionality as “not to be a real exercise of the power”. In other words, there must exist a reasonable relationship between the “end” (that is, the purpose for which the 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 provides for 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 of Schedule 1 to the Act should be properly completed, otherwise it may be declared invalid. Also, document every aspect of your decision-making.

7

Fettering discretion

A decision-maker must not fetter itself in advance as to how it will exercise its statutory discretion, whether by way of contract, estoppel or otherwise.

What this means is that a decision-maker, entrusted with a discretionary power, cannot bind itself to exercise that power in a particular manner.

In other words, the decision-maker’s mind must not be so foreclosed that the decision-maker is incapable of giving genuine consideration to the matter in question. One must avoid pre-formed views (eg views as to whether a particular person is “non-compliant” based on past behaviour); people can change over time.

Acting inflexibly on a policy

A decision-maker must examine in detail each matter before it on its merits, and must not automatically or inflexibly apply an overall policy (eg a policy or guidelines of one’s local area health service) without considering the particular circumstances of the matter before it.

Any policy adopted by the decision-maker must not conflict with the relevant statute and must not be so rigid that it cannot be departed from in appropriate cases.

A genuine consideration of the merits of the particular case requires a preparedness to range beyond the policy and to be persuaded by the circumstances of an individual case that a departure ought to be made from the weighting that the policy attributes to particular factors.

Acting under dictation

A decision-maker, entrusted with a statutory discretion, must exercise that power itself and in an independent manner, and must not be dictated 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 should not be any undue influence but “dictation” can still occur where, for

8

example, a decision-maker feels obliged to decide a matter in a particular way because of another’s conclusions in relation to the matter. This even though the other person or body had given no direction that such an approach should be followed.

However, a decision-maker such as an “accredited person” is entitled to have regard to the views of a government department (eg NSW Health) or other body (eg the New South Wales Institute of Psychiatry) whose functions impinge upon or are otherwise relevant to the exercise of the functions of an accredited person. Nevertheless, you must be personally satisfied of the matters set out in ss.14 and 15 of the Act.

The Rules of Procedural Fairness

The rules of procedural fairness are encompassed in very broad terms in 3 common law rules encompassing minimum standards of fair decision-making:

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 at common law in the absence of a clear, unambiguous contrary intention in the legislation or other regulatory instrument governing the making of the particular decision.

It is, however, accepted that the legislature may displace or exclude these rules by providing otherwise.

The hearing rule

It is a fundamental rule of the general law that a person ordinarily is entitled to know the case sought to be made against them and to be given the opportunity of replying to it before any administrative decision is made which would deprive that person of some right or interest or the legitimate expectation of some benefit.

9

The rule is subject to a sufficient indication of an intention of the legislature to the contrary. However, if the legislature intends to exclude or displace the rule such intention must be made “unambiguously clear”.

The right to be heard is not necessarily (if at all) excluded or displaced merely by reason of the fact that the legislation contains rights commensurate with some of the rules of procedural fairness (eg the right to be seen by a magistrate, or the right to a hearing before the Mental Health Review Tribunal).

It has been held by the courts that urgency or other exigency may diminish the content of the hearing rule but will not ordinarily exclude or displace the rule altogether.

Nevertheless, 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. In many cases, the affected person 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 as possible, and humanely, of:

the terms and effect of the decision, and

its implications in practical terms,

for, in law, the bare minimum requirement of the hearing rule is the giving of “notice” of the decision.

Each case will need to be assessed on its own special facts.

The bias rule

The second rule of procedural fairness is the nemo judex (or bias) rule which states that if a decision-maker has an interest (pecuniary or otherwise) in the outcome of a particular decision the decision-maker is barred from dealing with the matter. (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.)

10

Three tests have been propounded to test allegations of bias: the “real likelihood” 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 contrary statutory intention. Also, the bias rule may be codified (that is, enshrined, in one form or another, in the legislation itself): see, for example, s.19(2)(d) of the Act.

The “no evidence” rule

It is now generally accepted that there is a third rule of procedural fairness known as the “no evidence” (or “probative evidence”) rule, which states that an administrative decision must be based upon logically probative material and not mere speculation, suspicion or hearsay.

For example, in making the decision to schedule a person you must rely on your own contemporaneous observations and not rely on the opinions of others. You must personally examine or personally observe the patient, and complete the certificate shortly after the examination or observation. You cannot just complete the schedule after merely talking to 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 brief behavioural examples/descriptions of your clinical findings upon which you place reliance in scheduling, etc.

11

A GUIDE FOR ACCREDITED PESONS

KEY WORDS AND PHRASES IN THE MENTAL HEALTH ACT EXPLAINED

NOTES.

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

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

reasons should briefly indicate the relevant symptom(s) that qualify

13

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.

Should, at the specified time of the examination or observation, the

14

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 on

diagnoses, but upon the effect of certain specified symptoms or certain specified

behaviours indicating the presence of one or more of such symptoms. These

symptoms characterise a “condition” - not necessarily a “mental condition” - that

seriously 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

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

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

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

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

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

References:

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

APPENDIX

SALIENT PROVISIONS OF THE MENTAL HEALTH ACT 2007

SOME 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 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).

mentally disordered person – see section 15.

mentally ill person – see section 14.

SECTION 136 - Accredited persons

(cf 1990 Act, s 287A)

22

(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.

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].

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.

23

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.

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,

(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,

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 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.

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.

(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:

25

(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.

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.

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.

26

(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.

(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 .

SCHEDULE 1 – Medical certificate as to examination or observation of person

(Section 19)

Mental Health Act 2007

Part 1

I, [name in full-use block letters] (Medical Practitioner/accredited person) ofcertify that on [date] immediately before or shortly before completing this certificate, at [state place where examination/observation took place] I personally examined/personally observed [name of person in full] for a period of [state length of examination/observation].

I certify the following matters:

1. I am of the opinion that the person examined/observed by me is a mentally ill person suffering from mental illness/or a mentally disordered person and that there are reasonable grounds for believing 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) 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

2. I have satisfied myself, by such inquiry as is reasonable having regard to the circumstances of the case, that the person’s involuntary admission to and detention in a mental health facility are necessary and that no other care of a less restrictive kind is appropriate and reasonably available to the person.

3. Incidents and/or abnormalities of behaviour and conduct (a) observed by myself and (b) communicated to me by others (state name, relationship and address of each 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 of psychiatric 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 mental health facility. I have/do not have a near relative/partner/assistant who has such an interest. Particulars of the interest are as follows:

Made and signed this [date]

[Signature]

Part 2

The following persons may transport a person to a mental health facility: a member of 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 be completed.

YOU SHOULD NOT REQUEST THIS ASSISTANCE UNLESS 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

I have assessed the risk and I am of the opinion, in relation to [name of person in full] 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

28

police officer. The reason for me being of this opinion is [include any information known 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 person 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.

14 Mentally ill persons (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person’s own protection from serious harm, 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.

15 Mentally disordered persons 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.

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 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, (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,

29

(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.

2 In addition to matters ascertained as a consequence of personally examining or observing the person, 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, 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).

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 in paragraph (c)), or (c) if the patient is over the age of 14 years and is not a person under guardianship, the person nominated 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 as referred to in paragraph (c): (i) the spouse of the patient, if any, if the relationship between the patient and the spouse is close and continuing, or (ii) any person who is primarily responsible for providing support or care to the patient (other than wholly 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 a close personal relationship with the patient through frequent personal contact and a personal interest in the patient’s welfare and who does not provide support to the patient wholly or substantially on a commercial basis.

5 For admission purposes, this certificate is valid only for a period of 5 days, in the case of a person who 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-

30