Mental health

CHAPTER 13 Mental health



13.1 Defining mental illness



[13.1.1] What is the definition of mental illness?


Each jurisdiction has a definition of mental illness, although there are obvious similarities between jurisdictions. The various legislative definitions are given in table 13.1.1.


Table 13.1.1 Legislative definitions of mental illness









































































ACT Mental Health (Treatment & Care) Act 1994
Mental illness is defined in the Dictionary to the Act to mean:
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 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 the symptoms referred to in paragraph (a), (b), (c) or (d).
Mental dysfunction is defined in the Dictionary to mean:
a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion.
NSW Mental Health Act 1990
Mental illness is defined in sched 1 to mean:
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).
Under s 10, a person is defined as a mentally disordered person :
if the person’s behaviour is so irrational for the time being 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 11(1) states that:
a person is not a mentally ill or a mentally disordered person merely because of any one or more of the following:
(a) that 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) that 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) that the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy,

(d) that 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) that 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) that 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) that the person engages in or has engaged in sexual promiscuity,

(h) that the person engages in or has engaged in immoral conduct,

(i) that the person engages in or has engaged in illegal conduct,

(j) that that the person has developmental disability of mind,

(k) that the person takes or has taken alcohol or any other drug,

(l) that the person engages in or has engaged in anti-social behaviour.
NT Mental Health & Related Services Act 1998
Mental illness is defined in s 6(1) to mean:
a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person in one or more of the areas of thought, mood, volition, perception, orientation or memory and is characterised—
(a) by the presence of at least one of the following symptoms:
(i) delusions;

(ii) hallucinations;

(iii) serious disorders of the stream of thought;

(iv) serious disorders of thought form;

(v) serious disturbances of mood; or

(b) by sustained or repeated irrational behaviour that may be taken to indicate the presence of at least one of the symptoms referred to in paragraph (a).
Under s 6(2):
a determination that a person has a mental illness is only to be made in accordance with internationally accepted clinical standards and concordant with the current edition of the World Health Organization, International Classification of Mental and Behavioural Disorders, Clinical Descriptions and Diagnostic Guidelines or the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders.
Under s 6(3):
A person is not to be considered to have a mental illness merely because he or she—
(a) expresses or refuses or fails to express a particular political or religious opinion or belief, a particular philosophy or a particular sexual preference or sexual orientation;

(b) engages, or refuses or fails to engage, in a particular political, religious or cultural activity;

(c) engages, or has engaged, in sexual promiscuity, immoral or illegal conduct or anti-social behaviour;

(d) has a sexual disorder;

(e) is intellectually disabled;

(f) uses alcohol or other drugs;

(g) has a personality disorder or a habit or impulse disorder;

(h) has, or has not, a particular political, economic or social status;

(j) communicates, or refuses or fails to communicate, or behaves or refuses or fails to behave, in a manner consistent with his or her cultural beliefs, practices or mores;

(k) is, or is not, a member of a particular cultural, racial or religious group;

(m) is involved, or has been involved, in family or professional conflict;

(n) has been treated for mental illness or has been detained in a hospital that provides treatment of mental illness;

(p) has been admitted as an involuntary patient on the grounds of mental disturbance; or

(q) has acquired brain damage.
Mentally disturbe d is defined in s 3 to mean:
behaviour of a person that is so irrational as to justify the person being temporarily detained under this Act.
Qld Mental Health Act 2000
Under s 12:
(1) Mental illness is a condition characterised by a clinically significant disturbance of thought, mood, perception or memory.

(2) However, a person must not be considered to have a mental illness merely because of any 1 or more of the following—
(a) the person holds or refuses to hold a particular religious, cultural, philosophical or political belief or opinion;

(b) the person is a member of a particular racial group;

(c) the person has a particular economic or social status;

(d) the person has a particular sexual preference or sexual orientation;

(e) the person engages in sexual promiscuity;

(f) the person engages in immoral or indecent conduct;

(g) the person takes drugs or alcohol;

(h) the person has an intellectual disability;

(i) the person engages in antisocial behaviour or illegal behaviour;

(j) the person is or has been involved in family conflict;

(k) the person has previously been treated for mental illness or been subject to involuntary assessment or treatment.

…

(4) On an assessment, a decision that a person has a mental illness must be made in accordance with internationally accepted medical standards.
SA Mental Health Act 1993
Under s 3:
Mental illness means any illness or disorder of the mind.
Tas Mental Health Act 1996
Under s 4:

(1) A mental illness as a mental condition resulting in—
(a) serious distortion of perception or thought; or

(b) serious impairment or disturbance of the capacity for rational thought; or

(c) serious mood disorder; or

(d) involuntary behaviour or serious impairment of the capacity to control behaviour.

(2) A diagnosis of mental illness may not be based solely on—
(a) antisocial behaviour; or

(b) intellectual or behavioural nonconformity; or

(c) intellectual disability; or

(d) intoxication by reason of alcohol or a drug.
Vic Mental Health Act 1986
Section 8 states:
…

(1A) Subject to sub-section 2, a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.

(2) A person cannot be considered to be mentally ill by reason only of any one or more of the following—
(a) that the person expresses or refuses or fails to express a particular political opinion or belief;

(b) that the person expresses or refuses or fails to express a particular religious opinion or belief;

(c) that the person expresses or refuses or fails to express a particular philosophy;

(d) that the person expresses or refuses or fails to express a particular sexual preference or sexual orientation;

(e) that the person engages in or refuses or fails to engage in a particular political activity;

(f) that the person engages in or refuses or fails to engage in a particular religious activity;

(g) that the person engages in sexual promiscuity;

(h) that the person engages in immoral conduct;

(i) that the person engages in illegal conduct;

(j) that the person is intellectually disabled;

(k) that the person takes drugs or alcohol;

(l) that the person has an antisocial personality;

(m) that the person has a particular economic or social status or is a member of a particular cultural or racial group.

(3) Sub-section (2)(k) does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of drug or alcohol taking from being regarded as an indication that a person is mentally ill.
WA Mental Health Act 1996
Under s 4:
(1) … a person has a mental illness if the person suffers from a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent.

(2) However a person does not have a mental illness by reason only of one or more of the following, that is, that the person—

(a) holds, or refuses to hold, a particular religious, philosophical, or political belief or opinion;

(b) is sexually promiscuous, or has a particular sexual preference;

(c) engages in immoral or indecent conduct;

(d) has an intellectual disability;

(e) takes drugs or alcohol;

(f) demonstrates anti-social behaviour.


13.2 Voluntary treatment



[13.2.1] How does a person consent to voluntary treatment for mental illness, and what decisions can they make about their treatment?


People with mental illness have the same human rights as everyone else. The fact that a person has a mental illness does not mean that they lack the capacity to consent to treatment. All adults are presumed to have capacity: see [7.1.2]. The starting point for mental healthcare is the same as that for other healthcare: consent must be sought for all treatments. Treatment cannot be provided to a mentally ill person unless:


• consent is obtained, or

• the rules regarding involuntary treatment are satisfied.

Voluntary patients can choose to leave treatment at any time, subject to some rules described in table 13.2.1. They can make decisions about consenting to treatment or refusing it, and they have the same rights to personal dignity, property and movement as other people.


Table 13.2.1 Voluntary treatment for mental illness: legislation and principles





















NSW Mental Health Act 1990
Under ss 12–19:
• A person may voluntarily admit themselves to a psychiatric hospital. If the person is under 16 their parent or guardian must be contacted.

• A person under 14 cannot be admitted if a parent has objected.

• A person under guardianship cannot be admitted if the guardian objects.

• A medical officer may refuse admission if they are satisfied that the person will not benefit from treatment as a voluntary (informal) patient, or they may discharge them.

• Such decisions can be appealed to the medical superintendent, who must review the decision as soon as practicable.

• The Mental Health Review Tribunal must review the treatment of an informal patient every 12 months.
NT Mental Health & Related Services Act 1998
Under ss 25–31:
• A person who is 14 or over may apply to be admitted as a voluntary patient.

• A parent or guardian of a person under 18 may apply to have them admitted as a voluntary patient.

• A medical practitioner in the facility must examine the person and be satisfied that they have given informed consent to admission.

• The person must be examined by an authorised psychiatrist no later than 24 hours after admission. The psychiatrist can confirm the admission if they believe that the person has given informed consent.

• If the psychiatrist is unsure whether the person can give informed consent they must apply to the Mental Health Review Tribunal to determine capacity to give consent.

• Admission must be refused if the person is not likely to benefit from treatment.

• A person under 18 cannot to be admitted as a voluntary patient unless they can be cared for and treated in a manner that gives due regard to their age, culture, gender and maturity and, where appropriate and possible, separately from adults.

• When a person under 18 is admitted the medical practitioner must take all reasonable steps to inform the person’s parents or guardian that they have been admitted as soon as practicable.

• If the medical practitioner believes, on reasonable grounds, that it is not in the best interests of the person to inform their parents or guardian, the practitioner should inform an authorised person under the Community Welfare Act.

• A guardian may apply to admit a person under guardianship voluntarily. A medical practitioner must examine the person within 24 hours of the application. The person cannot be admitted unless the practitioner is satisfied that they are willing to be admitted, they do not fulfil the criteria for admission as an involuntary patient, and they are likely to benefit from being admitted.

• A voluntary patient can leave at any time. However, a medical practitioner or senior nurse may detain the person for 6 hours if they believe that the person may fulfil the criteria for admission as an involuntary patient. Reasonable force may be used to detain the person, and they may be kept in seclusion.
SA Mental Health Act 1993
Under s 11:
• A person may be admitted to a treatment centre at their own request.

• A voluntary patient may leave the centre at any time.
Tas Mental Health 1996
Under ss 19–20:
• A person over 14 can seek voluntary admission.

• A person under 14 can be admitted voluntarily by a parent, as long as the child does not resist.

• Medical practitioners can refuse admission, but they must give the applicant reasons, and advise them of their right to a second opinion. If appropriate medical services are available elsewhere, they must tell the applicant how to obtain the services.
Under ss 22–23, voluntary patients can discharge themselves at any time. However, a medical practitioner or approved nurse may detain the person for up to 4 hours so that an assessment can be made of whether the person should be admitted as an involuntary patient.

A person’s voluntary admission to and discharge from a psychiatric treatment service is regulated in some jurisdictions, as discussed in table 13.2.1.



13.3 Involuntary treatment



[13.3.1] Under what circumstances can a person be treated involuntarily?


People with mental illness can be apprehended, detained, examined and treated without consent in limited circumstances, primarily when they are at risk of harming themselves or others, or, in some jurisdictions, when there are clear signs of deterioration in their condition.


Applications must usually be made to mental health authorities to have the person examined by a mental health professional. In emergencies a person may be detained by police or health professionals and taken to a treatment facility for examination. Examinations must occur quickly. After examination, it might be decided that the person should be detained for involuntary treatment for a period of time. Such decisions are subject to review by mental health review authorities, normally on the application of the treatment service, the patient or another interested person.


Legislative criteria for involuntary treatment are listed in table 13.3.1.


Table 13.3.1 Involuntary treatment for mental illness: legislation and criteria

















































ACT Mental Health (Treatment & Care) Act 1994 Pts 4 & 5
Under s 14(1), a person can apply for a mental health order in relation to a person who:
(a) is unable, because of mental dysfunction or mental illness—
(i) to make reasonable judgments about matters relating to his or her health or safety; or

(ii) to do anything necessary for his or her health or safety; and, as a result, the person’s health or safety is, or is likely to be, substantially at risk; or

(b) is or is likely, because of mental dysfunction or mental illness, to do serious harm to others.
Under s 37:
(1) If a police officer has reasonable grounds for believing that a person is mentally dysfunctional or mentally ill and has attempted or is likely to attempt—
(a) to commit suicide; or

(b) to inflict serious harm on himself or herself or another person; the police officer may apprehend the person and take him or her to an approved health facility.

(2) Where a doctor or mental health officer believes on reasonable grounds that—
(a) a person is mentally dysfunctional or mentally ill and—
(i) as a consequence, requires immediate treatment or care; or

(ii) in the opinion of the doctor or mental health officer, the person’s condition will deteriorate within 3 days to such an extent that the person would require immediate treatment or care;

(b) the person has refused to receive that treatment or care; and

(c) detention is necessary for the person’s own health or safety, social or financial wellbeing, or for the protection of members of the public; and

(d) adequate treatment or care cannot be provided in a less restrictive environment; the doctor or mental health officer may apprehend the person and take him or her to an approved health facility.
The patient must be examined within 4 hours (s 40), and can only be detained for 3 days without an order from the Mental Health Tribunal (s 41).
NSW Mental Health Act 1990 Ch 4 Pt 4
Under s 21(1), a medical practitioner or ‘accredited person’ may certify that a person is mentally ill or mentally disordered, and that they should
be admitted to a hospital as ‘no other appropriate means for dealing with the person are reasonably available’.
Under s 24, the police may also apprehend and take a person to a facility if they have reasonable grounds for believing that:
(a) the person is committing or has recently committed an offence and that it would be beneficial to the welfare of the person that the person be dealt with in accordance with this Act rather than otherwise in accordance with law, or

(b) that the person has recently attempted to kill himself or herself or any other person or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious bodily harm to himself or herself or any other person.
The person must be examined within 12 hours (s 29(1)). The person can be treated, but must only be prescribed the minimum medication, consistent with proper care, to ensure that they are not prevented from communicating adequately with anyone who might be engaged to represent them (s 31(1)).
If the examining doctor believes the person is mentally ill or disordered a second doctor must examine them (s 32(1)). If that doctor agrees that the person is mentally ill or disordered, the person must be brought before a magistrate (s 38(1)), who holds an inquiry, determines whether the person is in fact mentally ill, and makes an order. The magistrate can order that the person be detained in a hospital for observation and/or treatment for up to 3 months (s 51(3)).
If the person is still mentally ill after the period ordered by the magistrate further involuntary treatment must be authorised by the Mental Health Review Tribunal (ss 56, 57). All detained patients must have their situation reviewed by the tribunal every 6 months (s 62(1)).
NT Mental Health & Related Services Act 1998 Pts 3 & 6
Under s 14, involuntary treatment can be provided where:
• a person has a mental illness, and

• they are likely to cause themselves or another person imminent harm, or are likely to suffer serious mental or physical deterioration, unless treated, and

• they cannot give informed consent, or unreasonably refuse consent, and

• there is no less restrictive alternative.
Under s 15, involuntary treatment can also be provided when:
(b) the person’s behaviour is, or within the immediately preceding 48 hours has been, so irrational as to lead to the conclusion that—
(i) the person is experiencing or exhibiting a severe impairment of or deviation from his or her customary or everyday ability to reason and function in a socially acceptable and culturally appropriate manner; and

(ii) the person is behaving in an abnormally aggressive manner or is engaging in seriously irresponsible conduct that justify a determination that the person requires psychiatric assessment, treatment or therapeutic care that is available at an approved treatment facility;

(c) unless the person receives treatment or care at an approved treatment facility, he or she—
(i) is likely to cause imminent harm to himself or herself, to a particular person or to any other person;

(ii) will represent a substantial danger to the general community; or

(iii) is likely to suffer serious mental or physical deterioration;

(d) the person is not capable of giving informed consent to the treatment or care or has unreasonably refused to consent to the treatment or care; and

(e) there is no less restrictive means of ensuring that the person receives the treatment or care.
After admission a mentally ill person may be detained for psychiatric examination for 24 hours or up to 7 days if the person who made the recommendation for psychiatric examination was an authorised psychiatric practitioner (s 39(1)).
Mentally disturbed patients can be detained for 72 hours, which may be extended for a further 7 days on the certification of 2 authorised psychiatric practitioners that, while the person is not mentally ill, they are likely otherwise to cause harm to themselves or others, or suffer serious mental or physical deterioration (s 42).
Qld Mental Health Act 2000, Chs 2 & 4
Under s 17:
A request for assessment for a person must be made by someone who—
(a) is an adult; and

(b) reasonably believes the person has a mental illness of a nature, or to an extent, that involuntary assessment is necessary; and

(c) has observed the person within 3 days before making the request.
Under s 19(1), a recommendation for assessment may only be made by a doctor or authorised mental health practitioner who has examined the person within the preceding 3 days. An ambulance officer or health practitioner can then take the person to a mental health service for assessment (s 25(1)).
Under s 13(1), the assessment criteria are:
(a) the person appears to have a mental illness;

(b) the person requires immediate assessment;

(c) the assessment can properly be made at an authorized mental health service;

(d) there is a risk that the person may—
(i) cause harm to himself or herself or someone else;

(ii) suffer serious mental or physical deterioration;

(e) there is no less restrictive way of ensuring the person is assessed.
The assessment must occur within 24 hours (s 44(1)). Extensions of time can be sought, but the person cannot be detained longer than 72 hours (s 47(2)). A treatment order can be made after assessment (s 108).
SA Mental Health Act 1993
Section 12 states:
(1) If, after examining a person, a medical practitioner is satisfied—
(a) that the person has a mental illness that requires immediate treatment; and

Related posts:

  1. Consent
  2. Competence
  3. Competent patients and end-of-life decisions
  4. Incompetent patients and end-of-life decisions

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Mar 25, 2017 | Posted by in GENERAL SURGERY | Comments Off on Mental health

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