What is Involuntary Admission?
And Why Does it Matter?
I am sure that many of you reading this blog will have had some experience with the NSW Mental Health Act (2007) at some time, even if you didn’t know it. This is because the Mental Health Act regulates how you are treated in mental health clinics, wards and other mental health facilities. The Act bears the serious responsibility of balancing the interests and values of traditional mental health treatment of psychiatrists, mental health nurses and other mental health workers with the interests and values of people who are experiencing a mental health condition, or have been diagnosed with a mental health condition. The interests of carers and the community are also important. This balancing is no easy task, as the interests involved are substantial. The Act must weigh up the interests of patients to make their own decisions and exercise agency with the interests of mental health professionals to administer traditional mental health treatments. These may be, typically, prescription of medication or speaking treatments with psychologists.
One of the most serious areas covered by the Act is “involuntary admission or treatment”. What is involuntary admission? Involuntary admission describes the situation where a person deemed to have mental illness is admitted to a mental health facility without their express consent. Involuntary admission is a very serious event because it involves an acute disruption to the admitted person’s human rights to freedom and autonomy. Put simply, the person’s freedom of liberty is curtailed and squashed. This is a serious breach of their rights under International Law, such as the International Covenant on Civil and Political Rights and the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. It may also involve detaining people without a process of judgement or the inclusion of a judge or representative of the law – also a situation avoided in the Australian legal system.
The Act defines three situations for an “involuntary patient” (in chapter 1, section 4):
“(a) a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or
(b) a forensic patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or
(c) a correctional patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.”
The Act builds the legal architecture around involuntary admission and treatment, inside and outside facilities, in Chapter 3. The Act speaks of both “mentally ill persons” and “mentally disordered persons”. The distinction between these two definitions is not overly important here. What is important is the Act’s definition of circumstances where involuntary admission should take place. Chapter 3, Part 1, Sections 14 of the Act states that the involuntary admission of a mentally ill person can take place where 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.”
Who makes the decision about whether these reasonable grounds exist? Essentially an “Authorised Medical Officer”, after a prescribed process. Involuntary admission, or detention, may flow on from certain situations:
“(1) A person may be detained in a declared mental health facility in the following circumstances—(a) on a mental health certificate given by a medical practitioner or accredited person (see section 19),
(b) after being brought to the facility by an ambulance officer (see section 20),
(c) after being apprehended by a police officer (see section 22),
(d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23),
(e) on the order of a Magistrate or bail officer (see section 24),
(f) after a transfer from another health facility (see section 25),
(g) on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26)."
How can you contest involuntary admission? Again, under the Act, there is a process for challenging this decision. You can make a request for discharge to the Authorised Medical Officer. If they refuse your request, you can appeal the decision to the Mental Health Tribunal, who can determine whether you are not a mentally ill person or if less restrictive care is available.In my opinion, suffering involuntary admission is not just a breach of fundamental human rights and principles of our legal system; it can be shameful, belittling and fiercely unpleasant. For this reason, involuntary admission often ranks highly in the critique of contemporary and mainstream mental health treatment, such as critiques mounted by consumers against involuntary restrictions in the system governing mental health. For these reasons, it is important for all citizens to know the law and to know their rights.I am sure that many of you reading this blog will have had some experience with the NSW Mental Health Act (2007) at some time, even if you didn’t know it. This is because the Mental Health Act regulates how you are treated in mental health clinics, wards and other mental health facilities. The Act bears the serious responsibility of balancing the interests and values of traditional mental health treatment of psychiatrists, mental health nurses and other mental health workers with the interests and values of people who are experiencing a mental health condition, or have been diagnosed with a mental health condition. The interests of carers and the community are also important. This balancing is no easy task, as the interests involved are substantial. The Act must weigh up the interests of patients to make their own decisions and exercise agency with the interests of mental health professionals to administer traditional mental health treatments. These may be, typically, prescription of medication or speaking treatments with psychologists.
One of the most serious areas covered by the Act is “involuntary admission or treatment”. What is involuntary admission? Involuntary admission describes the situation where a person deemed to have mental illness is admitted to a mental health facility without their express consent. Involuntary admission is a very serious event because it involves an acute disruption to the admitted person’s human rights to freedom and autonomy. Put simply, the person’s freedom of liberty is curtailed and squashed. This is a serious breach of their rights under International Law, such as the International Covenant on Civil and Political Rights and the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. It may also involve detaining people without a process of judgement or the inclusion of a judge or representative of the law – also a situation avoided in the Australian legal system.
The Act defines three situations for an “involuntary patient” (in chapter 1, section 4):
“(a) a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or
(b) a forensic patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, or
(c) a correctional patient who is re-classified as an involuntary patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.”
The Act builds the legal architecture around involuntary admission and treatment, inside and outside facilities, in Chapter 3. The Act speaks of both “mentally ill persons” and “mentally disordered persons”. The distinction between these two definitions is not overly important here. What is important is the Act’s definition of circumstances where involuntary admission should take place. Chapter 3, Part 1, Sections 14 of the Act states that the involuntary admission of a mentally ill person can take place where 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.”
Who makes the decision about whether these reasonable grounds exist? Essentially an “Authorised Medical Officer”, after a prescribed process. Involuntary admission, or detention, may flow on from certain situations:
“(1) A person may be detained in a declared mental health facility in the following circumstances—
(a) on a mental health certificate given by a medical practitioner or accredited person (see section 19),
(b) after being brought to the facility by an ambulance officer (see section 20),
(c) after being apprehended by a police officer (see section 22),
(d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23),
(e) on the order of a Magistrate or bail officer (see section 24),
(f) after a transfer from another health facility (see section 25),
(g) on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26)."
How can you contest involuntary admission? Again, under the Act, there is a process for challenging this decision. You can make a request for discharge to the Authorised Medical Officer. If they refuse your request, you can appeal the decision to the Mental Health Tribunal, who can determine whether you are not a mentally ill person or if less restrictive care is available.
In my opinion, suffering involuntary admission is not just a breach of fundamental human rights and principles of our legal system; it can be shameful, belittling and fiercely unpleasant. For this reason, involuntary admission often ranks highly in the critique of contemporary and mainstream mental health treatment, such as critiques mounted by consumers against involuntary restrictions in the system governing mental health. For these reasons, it is important for all citizens to know the law and to know their rights.
Dr. Richard Schweizer, Policy Officer at One Door Mental Health richard.schweizer@onedoor.org.au.
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Dr Richard Schweizer