Changes to the Mental Health Act
The changes to the Mental Health Act which affect carers are meant to strengthen the roles of carers/family members and the importance of involving them in the treatment and recovery of mental health consumers.
Primary carers and designated carers
The Mental Health Act 2007 (the Act) was changed on 31 August 2015 following a major review of the legislation. The term ‘primary carer’ in the Act has been changed and is now known as a ‘Designated Carer’ (s71). Any primary carer nominations that were current as at 31 August 2015 remain in force, although they are known from that date as Designated Carer nominations.
The Designated Carer is the person, nominated by the consumer, who has a close and personal relationship with them and is interested in their welfare, but does not necessarily provide day to day support for them. The amendments to the Act allow a consumer to now nominate up to two designated carers. The exceptions to this are if the consumer is under Guardianship or under the age of 15. In these circumstances they cannot nominate their designated carers (s72(1)), rather the Act sets out who their designated carers are.
Principal care providers
A new type of Carer has been added to the Act, the Principal Care Provider (s72A). The Principal Care Provider is the person who is primarily responsible for providing day to day support and/or care but is not wholly or substantially paid on a commercial basis (s72A(1)). The Principal Care Provider may also be the Designated Carer of the person. Principal Care Provider’s also has similar rights for access to information about a consumer as the designated carers.
Where not nominated by the consumer, a Principal Care Provider may be nominated in addition to the 2 Designated Carers by the treating clinicians.
However, a person can not be the Principal Care Provider if they have been excluded from being given notice of information by the consumer. Additionally, the treating clinicians are not required to give notice or information to the Principal Care Provider, or to appoint another person as the Principal Care Provider, if they believe that to do so may put the consumer or the Principal Care Provider at serious risk of harm.
If the consumer has excluded a Principal Care Provider or designated carer, and there are grounds to believe that the consumer at the time lacks the capacity to make such decisions and/or the exclusion would increase the risks to the consumer or carer, the request may be placed on hold. This will be revisited once the consumer has regained capacity or the risks abated, to amend the exclusion where the consumer is willing to do so.
Designated Carers’ and ‘Principle Care Providers’ Rights
As a result of changes to the 2007 Mental Health ACT, applicable for 31st August 2015, Designated Carers and Principle Care Providers have the right to be advised by the treating clinicians of events affecting the consumer including:
- By the treating physician about events impacting on the consumer detained in a mental health unit;
- If the consumer is absent from the mental health unit without permission or fails to return at the end of a period of leave;
- If the consumer is re-classified or admitted as a voluntary patient;
- If consideration for a Community Treatment Order or application is being made;
- If a Community Treatment Order is varied or application is being considered;
- To know the person for whom they care is being admitted to a Mental Health Unit.;
- Regarding the types and dosage of medication being administered to the consumer;
- Considered for Electro Convulsive Therapy (ECT) and an application is being made to the Mental Heath Review Tribunal;
- Believed to require a surgical procedure or special medical treatment and consent is being sought from the Mental Health Review Tribunal or the Ministry of Health;
- To be transferred, or has been transferred between mental health facilities;
- To have an Official Visitor visit (Official Visitors Program aims to safeguard and advocate for both Carers’ and Consumer rights, regarding standards of treatment and care)
- To appeal to the Mental Health Tribunal against the refusal to discharge the consumer.
Designated Carer (s) and the Principal Care Provider can make a request to:
- Have the person they are caring for admitted to a mental health facility;
- Be provided with information about the types and dosages of medication being administered to the consumer;
- Have an Official Visitor visit;
- Appeal to the Tribunal against the refusal to discharge a patient.
Click the following to view MHCN’s Carer Information brochures regarding Carer Rights.
Click the following links to view the relevant forms for Nomination of Principle Care Providers and Designated Carers, which are downloadable and can be printed.
Other relevant links
- Mental Health Act – https://www.legislation.nsw.gov.au/#/view/act/2007/8
- Mental Health Review Tribunal – https://mhrt.nsw.gov.au/the-tribunal
For more information regarding Carer Rights, please all MHCN on 02 9332 0777.
About the Act
Under the Act a person who is mentally ill or mentally disordered may be detained.
Who is a mentally ill person under the Mental Health Act?
A mentally ill person is someone who has a mental illness and, because of that illness, there are reasonable grounds for believing the person requires care and treatment in a mental health facility in order to protect them and/or others from serious harm.
Serious harm is not defined in the Mental Health Act 2007 but the term can be understood to include:
- Physical harm
- Emotional/psychological harm
- Financial harm
- Self-harm and suicide
- Violence and aggression, including sexual assault or abuse
- Stalking or predatory intent
- Harm to reputation or relationships
- Neglect of self
- Neglect of others (including children)
Who is a mentally disordered person under the Mental Health Act?
A mentally disordered person is someone whose behaviour is so irrational there are reasonable grounds for believing the person requires care and treatment in a mental health facility to protect them and/or others from serious physical harm.