Supreme Court intervenes to order patient’s release from a mental health facility

By: Paul Tsaousidis, Head of Practice, Legal (NSW) Avant – Medical Defence Services

Sep 20, 2016

A case has illustrated that courts will intervene to ensure mental health facilities abide by the law in detaining patients in their facility.

Responsibility of treating psychiatrists and health providers

Psychiatrists and other health providers need to ensure they understand and follow the relevant legislation or they may leave themselves open to legal challenge, potentially with claims for damages and costs.

The patient (who is referred to under the pseudonym of Sarah White) had been kept in a mental health facility since 2013. Prior to this she had a history of chronic alcoholism, self-harm, homelessness and multiple hospital admissions.

Ms White had originally requested her own admission in 2013 under the Mental Health Act despite being under public guardianship since late 2012. Her request was consistent with the plans of the Public Guardian at the time.

In late 2014 the Public Guardian sought to formalise the patient’s continued admission at the facility by replacing her request form with one signed by their staff. However, the proper protocol to establish a valid Mental Health Act request was not carried out.

Treating psychiatrist’s evidence key

A month later a mandatory yearly review was conducted by the Mental Health Tribunal.

Evidence was given from the patient’s treating psychiatrist, through his registrar, that he did not believe the patient had a mental illness that required a mental health in-patient admission.

The evidence of the registrar was that the patient was being kept against her will by her state guardian, in order to find her appropriate accommodation.

At the review, the Tribunal also determined that no evidence was given to require the patient to be subject to a Community Treatment Order.

The Mental Health Tribunal ordered her release, however this was deferred for two weeks to plan for her discharge to take place.

When the patient was not released by the date directed, she applied to the Supreme Court of NSW for her release under a habeas corpus application and alternatively under the Mental Health Act. Habeas corpus enables a person to be presented before the court and the lawfulness of their imprisonment or detention to be examined.

Ms White contended that her continued detention following the Tribunal’s decision was unlawful.

Protocol not established

The court held that while the Public Guardian had the power to have the patient admitted as a voluntary patient under the Mental Health Act and Guardianship Act, technically it was required that the admission be ‘requested’ under the Mental Health Act and in this case the patient was already admitted to the facility. The ‘request’ had to be current at the time the person is sought to be admitted to hospital.

In addition following the Tribunal’s decision authorising the patient’s discharge, the Public Guardian was constrained by the Guardianship Act from acting or making a decision contrary to the Tribunal’s decision.
Ultimately the patient’s continued detention was not legally permissible and the court ordered her release despite misgivings about her ability to care for herself adequately.

The Local Health Authority and Public Guardian, as the defendants, were ordered to pay her legal fees.

Need advice?

If you need guidance on your reporting obligations in relation to the Mental Health Act or Guardianship Act, call the Avant Medico-legal Advisory Service on 1800 128 268.