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Mental health and the law: the Australian, NZ and UK perspectives


Essentials

  • 1

    The emergency department is frequently the point of access to the mental health system.

  • 2

    Emergency physicians need to be able to distinguish between patients with physical and those with psychiatric illness.

  • 3

    Patients should only be committed involuntarily to an approved hospital if they have a mental illness requiring immediate treatment for their own health or safety or the protection of others and if adequate treatment cannot be obtained in a less restrictive manner.

  • 4

    Emergency physicians need to have a sound working knowledge of mental health legislation as it relates to their practice and to the jurisdiction in which they work.

  • 5

    Recent mental health legislative reform across Australia and NZ emphasizes autonomy and self-determination within a human rights framework and is moving towards minimizing restrictive practices, increasing safeguards and transparency, and enhancing independent oversight.

Introduction

The emergency department (ED) is frequently the interface between the community and the mental health system. Health policy now prioritizes ‘mainstreaming’ of mental health services, so that stand-alone psychiatric facilities are uncommon and services are more likely to be provided in a general hospital setting. Linked to this has been a move away from managing long-term psychiatric patients in institutional settings, so that many of these former patients are now living in the community with or without support from mental health services.

Traditionally, by virtue of their accessibility, EDs have been a point of access to mental health services for persons with acute psychiatric illness, whether this be self- or family referral or by referral from ambulance, police or outside medical practitioners. An important function of an ED is to differentiate between those who require psychiatric care for a psychiatric illness and those who present with a psychiatric manifestation of a physical illness and who require medical care. Admission of a patient with a psychiatric manifestation of a physical illness to a psychiatric unit may result in further harm to or death of the patient.

In the UK, Australia and NZ, doctors in general are empowered by legislation to detain a mentally ill person who is in need of treatment. Mental illness, particularly its manifestation as self-harm, is a common ED presentation (in the UK, making up around 1% to 2% of new patient attendances and up to 5% of attendances in Australasia) and emergency physicians require not only the clinical skills to distinguish between those who require psychiatric or medical intervention, but also a sound working knowledge of the mental health legislation and services relevant to the state where they practice. This ensures that patients with psychiatric illness are managed in the most appropriate way, with optimal utilization of mental health resources and with the best interests and rights of the patient and the community taken into consideration.

While there are variations in mental health legislation between the UK, Australia and New Zealand, all legislation recognizes fundamental common principles that respect individual autonomy and employ least restrictive management practices. The World Health Organization (WHO) advises 10 basic principles of mental health care law, including enshrining geographical, cultural and economic equity of access to mental health care, acceptable standards of clinical assessment, facilitating self-determination, minimizing restrictive treatment and enshrining regular and impartial decision making and review of care. These themes are all present in Australia, NZ and UK law, and awareness of such principles aids the clinician in delivering humane and ethical treatment for mentally unwell patients who seek emergency care.

Variations in practice

Mental health legislation in England and Wales

The National Service Framework for Mental Health

The report of the Mental Health Taskforce to the National Health Service (NHS) in 2016 created a 5-year plan for Mental Health in the NHS. One of the priority actions was the creation of a 7-day NHS with specific focus in creating 24-hour mental health services, including a mental health response for people attending the Accident and Emergency Department (A&E). In 2015 to 2016, 165,000 people attended A&E with mental health problems across the NHS.

Two pieces of legislation cover the care and treatment of patients with disorders of the brain or mind. The Mental Health Act (2007) deals with compulsory assessment and treatment of people with mental illnesses, while the Mental Capacity Act (2005) deals with people who are unable to make decisions about their medical treatment for themselves for various reasons.

Mental Health Act

Definition of mentally ill or mental illness

According to the 2007 Mental Health Act, mental illness is defined as any disorder or disability of the mind. In practice, it includes conditions such as schizophrenia, bipolar disorder, depression, psychosis and organic brain syndromes.

Detention of patients with mental illness

The Mental Health Act 2007 provides legislation with regard to the management of patients with a mental illness unwilling to be admitted or detained in hospital voluntarily, where this would be in the best interests of the health and safety of patients and others. For the purposes of the Act, patients in the ED are not considered inpatients until they are admitted to a ward. In order for legislation to be imposed, it is necessary for two conditions to be satisfied: the patient must be suffering from a mental illness, and emergency hospital admission is required because the patient is considered to be a danger to himself/herself or others.

Detention under the Mental Health Act does not permit treatment for psychiatric or physical illness. Treatment can be given under common law where the patient is considered to pose a serious threat to himself/herself or others. Otherwise all treatment must be with the patient’s consent.

Section 2 of the Mental Health Act facilitates compulsory admission to hospital for assessment and treatment for up to 28 days. The application is usually made by an approved Mental Health Professional or the patient’s nearest relative and requires two medical recommendations, usually from the patient’s general practitioner and the duty senior psychiatrist (who is approved under Section 12 of the Mental Health Act). In the ED, the responsibility for coordinating the procedure often lies with the emergency physician.

Section 3 of the Mental Health Act covers compulsory admission for treatment. Once again, recommendations must be made by two doctors, one of whom is usually the general practitioner and the other a psychiatrist approved under Section 12 of the Act. The application is usually made by an approved mental health professional or the patient’s nearest relative. Detention is for up to 6 months but can be renewed.

Section 4 of the Mental Health Act covers emergency admission for assessment and attempts to avoid delay in emergency situations when obtaining a second recommendation could be dangerous. It requires the recommendation of only one doctor, who may be any registered medical practitioner who must have seen the patient within the previous 24 hours. The order lasts for 72 hours. Application can be made by the patient’s nearest relative or an approved social worker. In practice, the application of Section 4 of the Mental Health Act rarely happens. Usually Section 2 or 3 is the preferred option.

Section 5(2)—doctors holding power and Section 5(4)—nurses holding power of the Act allow the detention of patients who are already admitted to hospital until a more formal Mental Health Act assessment can take place. Unfortunately, presence in the ED is not considered to constitute admission to hospital, and this section is, therefore, not applicable to the ED.

Police powers

Section 136 of the Act authorizes the police to remove patients who are believed to be mentally disordered and causing a public disturbance to a place of safety. The place of safety referred to in the Act is defined in Section 135 as ‘residential accommodation provided by a local authority under Part III of the National Assistance Act 1948, or under Paragraph 2, Schedule 8 of the National Health Service Act 1977, a hospital as defined by this Act, a police station, a mental nursing home or residential home for mentally disordered persons or any other suitable place, the occupier of which is willing temporarily to receive the patient’. In practice, the police often transport these patients to local EDs. The patient must be assessed by an approved social worker and a registered doctor. The order lasts for 72 hours.

Section 135 allows the police to enter premises to remove a patient believed to be suffering from a mental disorder to a place of safety for up to 72 hours. The patient is then assessed as noted previously.

Mental Capacity Act

The Mental Capacity Act relates to decision making, for those whose mental capacity is in doubt, on any issue from what to wear to the more difficult issues of medical treatment, personal finance and housing.

Lack of capacity can occur in two distinct ways. First, that capacity is never achieved—for example, someone with a severe learning difficulty. Second, capacity can be lost either as a result of long-term conditions, such as dementia, or for a short period because of a temporary factor, such as intoxication, shock, pain or emotional distress.

It is also important that decision making is task specific. An individual may be able to make decisions about simple matters, such as what to eat or wear, but may be unable to make more complex decisions, for example about medical care.

Assessment of capacity

To have capacity about a decision, the patient should be able to comply with the following four steps:

  • Understand the information relevant to the decision.

  • Retain the information for the period of decision making.

  • Use or weigh that information as part of the process of making a decision.

  • Communicate their decisions.

Every effort needs to be made to enable people to make their own decisions.

The Act points out that people should be allowed to make ‘eccentric’ or ‘unwise’ decisions, as it is their ability to decide that is the issue not the decision itself.

Advance directives

The Act makes provision for advance directives to be made at a time when the patient has capacity. These directives need to make specific reference to the medical treatments involved and include the statement ‘even if life is at risk’. The validity of any advance decision needs to be clearly documented.

Advocates

Although family and friends have no legal powers (unless specified in advance) to make decisions for the incapacitated patient, the Act recognizes their role in acting as an advocate. An independent mental capacity advocate is available to represent those with no close family or friends.

Emergency treatment

Treatment can be given to patients who lack capacity, but several factors need to be considered:

  • Any action must be in the best interest of the patient.

  • Anything done must be the least restrictive of the patient’s rights and freedoms.

  • Where time can be afforded, every effort should be made to enable the patient to make his or her own decision.

  • Treatment should not be delayed while attempts are made to establish the validity of any advance decision.

  • Medical staff have a duty of care to the incapacitated patient.

Use of sedation or physical restraint

This is covered in detail elsewhere ( Chapters 20.6, Chapters 21.5 ). From the perspective of the mental health legislation, there are occasions where physical or pharmacological restraint is needed. Sedation or restraint must be the minimum that is necessary to prevent the patient from self-harming or harming others. In general, a patient committed involuntarily is subject to treatment necessary for his or her care and control, and this may reasonably include the administration of sedative or antipsychotic medication as emergency treatment. Transporting these patients to a mental health service should be done by suitably trained medical or ambulance staff and not delegated to police officers or other persons acting alone.

Mental health legislation in Australia and NZ

In Australia, mental health legislation is a state jurisdiction, and among the various states and territories, there is considerable variation in the scope of mental health acts and between definitions and applications of the various sections. Since the National Mental Health Strategy in 1992, there has been an effort in Australia to adopt a consistent approach between jurisdictions, with an emphasis on ensuring legislated review mechanisms and a broad spectrum of treatment modalities. In 2012, this national strategic approach was reaffirmed by all the States and Territories of Australia with the release of the Roadmap for National Mental Health Reform 2012–2022, focusing on promoting mental health and preventing mental disorders, minimizing the impact of mental illness across the whole community and protecting the rights of people with mental illness.

Several Australian, states and territories and NZ have recently passed new Mental Health Acts, all within a human rights framework and consistent with the United Nations’ Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. In general, there is an increased recognition of autonomous and supported decision making with a particular focus on enhancing informed consent through advance directives or involving a nominated support person. Increased transparency of and limitations around restrictive practices will affect activities within EDs. Community visitors and mental health tribunals are introduced to ensure frequent independent oversight and review, and it is now mandatory in several jurisdictions to give patients and caregivers written copies of involuntary orders made about them, as well as a statement of their rights. Despite these common themes, key differences apply between mental health acts, and therefore specific issues should be referred to the Act relevant to the emergency physician’s practice location.

The Australian and New Zealand mental health acts and related documents referred to in this chapter are the following:

  • ACT—Mental Health Act 2015

  • New South Wales—Mental Health Act 2007 and the NSW Mental Health for Emergency Departments: Reference Guide 2009

  • New Zealand—Mental Health (Compulsory Assessment and Treatment) Act 1992, and Amendment Act 1999, the Second New Zealand Mental Health and Addiction Plan 2005 (Te Tahuhu, Improving Mental Health 2005–2015) and the discussion document; Mental Health Act and Human Rights 2016 (Ministry of Health, New Zealand)

  • Northern Territory—Mental Health and Related Services Act 2017

  • Queensland—Mental Health Act 2016

  • South Australia—Mental Health Act 2009, Clinicians Guide and Code of Practice (Mental Health Act 2009 SA), SA Mental Health and Emergency Services Memorandum of Understanding 2010

  • Tasmania—Mental Health Act 2013 with Amendments 2016

  • Victoria—Mental Health Act 2014

  • Western Australia—Mental Health Act 2014

Sections of the various mental health acts relevant to emergency medicine include those dealing with

  • the definition of mentally ill

  • indigenous and cultural acknowledgement

  • the effects of drugs or alcohol

  • criteria for detention and admission as an involuntary patient

  • involuntary admission

  • persons unable to recommend a patient for involuntary admission

  • physical restraint and sedation

  • emergency treatment

  • powers of police

  • prisoners with mental illness

  • offences in relation to documents

  • information and patient transfer between jurisdictions

  • deaths

Definition of mentally ill or mental illness

For the purposes of their respective mental health acts, New Zealand and all the Australian states and territories define mental illness or disorder as follows.

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