Purpose

To provide mental health services and aged care providers with information to help people with mental illness make decisions about moving into a new home, particularly people who have had a long hospital stay. Key questions for staff who may be supporting decision-making relate to:

  • mental health, guardianship and administration legislation
  • decision-making capacity and
  • consent.

The following frequently asked questions address some common scenarios and will help clinicians partner with consumers in the decision-making process.

What conditions should be met for an involuntary patient to become voluntary in preparation for moving out of hospital?

Being a voluntary inpatient is the preferred, least restrictive and most recovery-oriented option. When considering changing a person’s status from involuntary to voluntary patient, doctors and mental health teams should consider if:

  1. the person can be provided with safe and effective care as a voluntary inpatient and
  2. the person (and where relevant, their guardian/person responsible/substitute decision-maker) agrees to become a voluntary inpatient.

If these conditions are met, it is no longer possible to continue to keep the person as an involuntary patient, and he or she must be discharged from this status.[i],[ii]

Do all people who have been inpatients in a long stay ward for many years, particularly those with chronic psychosis, lack capacity to make decisions about where they should live and how to look after their money?

No. According to common law (case law based on decisions of judges) and capacity principle 1 (Capacity Toolkit) you must presume capacity for all adults over 18.[iii] This includes people with chronic and severe mental illness, although the presence of mental illness may represent what we call a ‘valid trigger to rebut the presumption’.[iv] This means that while you must presume capacity, you have good reason to question, and therefore assess capacity. The best approach is to start talking to the person about the decision at hand and see how much they understand and can participate in the decision.

For information on assessment of capacity, see Capacity and the Law [v] See also The Guardianship Application Process for Adult Inpatients of NSW Health Facilities or the Capacity Toolkit.

After the patient is made voluntary, what is the next step to plan for discharge? Should an application to the NSW Civil and Administrative Tribunal (NCAT) be lodged for a guardianship order?

Capacity to make decisions about future accommodation is separate and distinct from capacity to decide to stay as a voluntary patient (capacity principle 2: capacity is decision specific). [vi]

Simply having a disability (e.g. schizophrenia or dementia), and/or lacking capacity to make a decision, are not sufficient grounds to warrant the appointment of a guardian. There must be a demonstrated need. A person may not fully understand the nature and consequences of deciding to move into a particular accommodation setting or other facility but agree to give it a go. That person does not need a guardian.

In simple terms, before NCAT can make a guardianship order, it must be satisfied that the person is:

  1. “In need of a guardian” (has disability + ADL dysfunction + incapacity); and
  2. “Needs” a guardian (there is no alternative and decisions can’t be made less formally without an order).

In formal terms, the Guardianship Act 1987 requires that:

  1. “a person is in need of a guardian”[vii] because
    1. the person has a disability (i.e. intellectually, physically, psychologically or sensorily disabled, or of advanced age, or a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 (NSW), or otherwise disabled), and
    2. who, by virtue of that fact, is restricted in one or more major life activities to such an extent that they require supervision or social habilitation[viii][sic = dysfunction in Activities of Daily Living (ADL)] and
    3. as a result of their disability be either totally or partially incapable of managing their person[ix] [sic = lacks capacity in the specific area such as accommodation, health and dental care or services]
    and
  2. the person “needs” a guardian [sic = NCAT must consider the practicability of services being provided to the person without the need for the making of such an order [x] and whether their life circumstances, needs, and the protection of their rights necessitate the appointment of a legally authorised and legally empowered substitute decision-maker (i.e. a guardian).[xi]

Supported Decision Making is “a recognized alternative to guardianship through which people with disabilities use friends, family members, and professionals to help them understand the situations and choices they face” so they may make their own decisions without the “need” for a guardian (Blanck & Martinis, 2015)

What do I do when the patient’s ‘person responsible’ refuses to “allow” them to be discharged even if the person is agreeable to the move?

The ‘'person responsible' is a specific legal term in the NSW Guardianship Act (1987). It nominates a hierarchy for determining who can consent for medical or dental treatment only, not for accommodation.[xii] Therefore a ‘person responsible’ cannot legally prevent a consumer from moving into any particular accommodation.

‘Designated carers’ and ‘principal care providers’ under the Mental Health Amendment (Statutory Review) Act (NSW) 2014[xiii] are not formal substitute decision-makers either. They have the right to be kept informed about discharge, to be involved, and to have information provided by them considered. However, they cannot legally prevent a consumer from moving into any particular accommodation.

If a consumer’s carer, family member or supporter actively disagrees with a plan for the consumer to move, a formal guardian appointed by NCAT with an accommodation function (if it includes an ‘authorise others’ component) can make decisions about accommodation.

The process of moving to community living can be challenging for consumers, families and carers alike. Although the PCLI consumer is at the heart of the process, and their autonomy, preferences and best interests are central concerns, a “successful” pathway is one in which the needs of all are understood and considered, and effective partnerships formed wherever possible.

Should I apply for guardianship just in case? What happens if I fail to apply for guardianship for someone who lacks capacity for a particular decision? What happens if I fail to apply for guardianship for someone who has severe treatment resistant schizophrenia with lots of psychotic symptoms?

No. Guardianship is not necessarily needed for decision making, so nothing happens in either of these situations. Neither lack of capacity, nor diagnoses alone are ever grounds for the appointment of a formal substitute decision maker (or guardian). Always err on the side of giving a person autonomy. Remember that capacity is decision-specific. After all other approaches have been tried, such as supported decision-making, and the specific need has been identified, guardianship orders can be made for different ‘functions’ (see Now You're the Guardian for a description of these).[xiv]

Is an application to the NCAT Guardianship Tribunal needed for the purposes of the signing of the Application for Care (under the Aged Care Act 1997) Form?

No. An application to the NCAT Guardianship Tribunal is not required for this purpose. The capacity to sign the Application for Care form is separate to capacity to decide about accommodation. This form provides consent to apply for approval to receive aged care, but does not provide consent to actually receiving this care, if approved.

Prior to the referral to an Aged Care Assessment Team, the person and the mental health team will have discussed accommodation options, including the possibility of moving to a residential aged care facility (RACF). An ACAT assessment is then required to determine eligibility for Commonwealth-subsidised aged care services. There may be a local ‘consent to assessment’ form, as well as the Application for Care form, which can be signed by the person (with capacity to agree to the assessment).

If the person does not have capacity to agree to the assessment, then according to Commonwealth Aged Care Assessment Programme Guidelines (2015) the following people can sign, as per the hierarchy below:

  1. legal representative where already appointed, if they have this function (e.g. guardian with accommodation function)
  2. where there is no legally appointed person…then a next of kin, family member or carer (preferably in that order) should sign on the person’s behalf
  3. if no such person exists: a general practitioner, solicitor, or other health professional that does not have a conflict of interest in signing, should sign. This may be the ACAT manager as a last resort if none of the above are available. However the ACAT manager who signs cannot be the delegate or have conducted the assessment.

A further decision is required to determine which facility is able to meet the person’s preferences and care needs. This can be done informally if the person agrees. When the person does not agree and does not have capacity, an application with NCAT for guardianship (for accommodation functions and/or coercive accommodation functions) is required.

What about decisions about money and finances, and residential aged care bonds?

Capacity to make decisions about money and finances (‘financial capacity’) is separate and distinct from other decisions as per capacity principle 2.[xv] Each type of capacity must be assessed regarding the specific decision. Presume financial capacity first, assess the person’s ability to be involved in these financial decisions, including with support, and understand the person’s will and preferences.

Many long-stay inpatients may have a financial management order in relation to the person’s estate made by the Mental Health Review Tribunal (MHRT) or NCAT Guardianship Division. For others, someone else may hold their financial Enduring Power of Attorney. This needs to be clarified first and then discussions held with the person as to which arrangement will facilitate discharge planning (including payment of bonds etc) and work best in the future. This should include the role the person would like to play in the management of their finances, noting that authority can be given to authorise a person whose affairs are under management to manage a specific part of their estate.[xvi]

What happens if the person regularly refuses medication? Should I reconsider making them a voluntary patient? Should I apply for guardianship?

The issue of capacity to make decisions about medication is separate and distinct from other decisions as per capacity principle 2.[xvii]Not all people who can competently agree to being managed as a voluntary inpatient will have capacity to consent to medication. This shouldn’t preclude them from being made a voluntary patient.[xviii]Those who lack decision-making capacity about taking medications, but are happy to take them anyway (i.e. give assent, not consent) can still be made voluntary, but will need to have substituted consent provided via the “person responsible” hierarchy (Appendix 1) of the Guardianship Act 1987 NSW. This consent should be documented. [xix]

Not all treatment refusals mean that the person lacks capacity. The person’s capacity to make decisions regarding accepting or refusing medication needs to be established first.[xx]A person who does lack decision-making capacity and actively refuses psychiatric treatment may need to be considered for a guardianship application[xxi]with regards to medical consent in the community. The NCAT may override the refusal of a person to consent to medical treatment by giving its own consent to medical or dental treatment proposed for a person unable to give a valid consent to their own treatment. The NCAT can also authorise a guardian to override the objection of a person under their guardianship to either major or minor treatment as those terms are defined in the Guardianship Act 1987 (NSW).[xxii]These are last resort options only to be considered when all attempts at supported decision making have been trialled.

An application for a Community Treatment Order (CTO) could also be considered for someone who is refusing medication.[xxiii]

If the person is being discharged to a secure residential care facility in the community, do they require guardianship?

No. A person being discharged to such a facility does not always need a guardianship order. A residential aged care facility that is secure does not confer any legal requirements regarding admission of residents. However, if the person refuses to be discharged to the facility there may be grounds for an application for guardianship (for an accommodation function that includes the ‘authorise others’ component).[xxiv]Similarly, if the person has moved into the facility, and the person shows signs that they are not settling (e.g. are clearly distressed by and complaining about being there), and/or they are obviously trying to leave (by physical actions) and are unable to be distracted or redirected, there may be grounds for an application for guardianship, as above. The issue relates to the person not settling, being seriously upset or distressed and not being able to be settled by normal nursing practices or normal care practices in the facility. Moving to a secure residential unit on its own is insufficient grounds or (“need”) for appointing a guardian.

A successful PCLI pathway is a pathway that involves handing as much choice, freedom and control over to the person as possible (i.e. person-centred and recovery-focused practice). This requires a positive, collaborative approach which minimises interference in a person’s autonomy, that is, their freedoms of decision and action. Parceling out decisions – separating decisions for which people have capacity from decisions for which they lack capacity – and minimising intrusion, provides an opportunity to promote a person’s autonomy and to respect their rights, will and preferences to the greatest extent possible. [xxv] This mantra applies from the time they are an inpatient to the time when they have moved to the community and into the future.

Professor Carmelle Peisah, Capacity Australia is acknowledged for her expert content advice in the development of this faq sheet.

Appendix 1: Who is the person responsible?

(for medical or dental decisions according to NCAT Guardianship Division) [xxvi]

Under section 33A(4) of the Guardianship Act 1987, there is a hierarchy of people who can be the ‘person responsible’. A person responsible is one of the following people in order of priority:-

  1. Guardian – An appointed guardian (or enduring guardian) who has been given the right to consent to medical and dental treatments, or
  2. Spouse or partner – If there is no guardian, a spouse, de-facto spouse or partner where there is a close continuing relationship, or
  3. Carer – If there is no spouse or partner, an unpaid carer who provides or arranges for domestic support on a regular basis, or
  4. Relative or friend – If there is no carer, a friend or relative who has a close personal relationship, frequent personal contact and a personal interest in the person’s welfare, on an unpaid basis.

References

  1. Mental Health Act 2007 (NSW) s 12(1)(b))
  2. Peisah C, Ayerst L, Paton M, Ryan C (2017). Liberating the long-stay patient in NSW: how to make a patient voluntary under the Mental Health Act 2007 (NSW) and the role of capacity. Australian and New Zealand Journal of Psychiatry
  3. NSW Government Attorney General’s Department (2009) Capacity Toolkit, p.27
  4. NSW Government Attorney General’s Department (2009) Capacity Toolkit, p.50
  5. O'Neill N and Peisah C. (2017) Capacity and the law. 2nd Edition. Australasian Legal Information Institute (AustLII) Communities.
  6. NSW Government Attorney General’s Department (2009) Capacity Toolkit, p.27
  7. Guardianship Act 1987 (NSW) s 14(1)
  8. Ibid. s 3(2)
  9. Ibid. s 3(1)
  10. Ibid s 14(2)
  11. EQK [2016] NSWCATGD 29 [14]
  12. NCAT Guardianship Division Person Responsible Fact Sheet (April 2016)
  13. Mental Health Amendment (Statutory Review) Act (NSW) 2014 s 68(j) and 78
  14. Guardianship Act 1987 (NSW) s 14(1)
  15. NSW Government Attorney General’s Department (2009) Capacity Toolkit, p.27
  16. NSW Trustee and Guardian Act 2009 (NSW) s 71
  17. NSW Government Attorney General’s Department (2009) Capacity Toolkit, p.27
  18. Peisah C, Ayerst L, Paton M, Ryan C (2017). Liberating the long-stay patient in NSW: how to make a patient voluntary under the Mental Health Act 2007 (NSW) and the role of capacity. Australian and New Zealand Journal of Psychiatry
  19. O'Neill N and Peisah C. (2017) Capacity and the law. 2nd Edition. Australasian Legal Information Institute (AustLII) Communities.
  20. Ryan C., Callaghan S., Peisah C. (2015) Assessing capacity to refuse psychiatric treatment: a guide for clinicians and tribunal members. Australian and New Zealand Journal of Psychiatry 49(4):324-333
  21. For NCAT Guardianship applications with regard to medical and dental treatment, see Consent to medical or dental treatment
  22. Guardianship Act 1987 (NSW) ss 44 and 46A
  23. NSW Government Mental Health Act 2007 Part 3 Division 1, p.20
  24. http://www.ncat.nsw.gov.au/Documents/gd_factsheet_restrictive_practices_and_guardianship.pdf
  25. United Nations. (2006) Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008); and see also Peisah C, Ayerst L, Paton M, Ryan C (2017) Liberating the long-stay patient in NSW: how to make a patient voluntary under the Mental Health Act 2007 (NSW) and the role of capacity. Australian and New Zealand Journal of Psychiatry
  26. NCAT Guardianship Division Person Responsible Fact Sheet (April 2016)
  27. Blanck P., and Martinis J.M. (2015) ''The Right to Make Choices'': The National Resource Center for Supported Decision-Making. Inclusion. 3(1): 24-33.
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Page Updated: Tuesday 30 July 2019
Contact page owner: Mental Health Branch