Primary Carers in the Mental Health Act 2007

The new Mental Health Act introduced in 2007 for the first time explicitly recognised the role of carers in mental health care by the creation of a special carer role which it describes as that of ‘primary carer’.  The recognition of primary carers was intended to address specific long-standing issues for carers in the mental health area.

 To understand the problems faced by carer of people living with mental illness it is necessary to understand the legal situation for carers of people living with other illnesses and how mental illness differs. In NSW when illness (other than mental illness) renders a person incapable of making decisions, (e.g. if they were to lapse into a coma), section 33A of the NSW Guardianship Act provides that the next of kin or ‘responsible person’ will be able to make decisions on their relatives or partner’s behalf. 

 However, in cases of mental illness, the patient will often still be able to make decisions but the quality of these decisions may be seriously affected by their condition.  Many people are very reluctant to admit to suffering from a mental illness due to the stigma associated with it. This reluctance can be compounded if a person lacks insight into their illness due to the nature of the symptoms (which is a feature of some illnesses).

 Lack of acceptance and/or insight will often cause a person to resist treatment and to consider anyone who is trying to get them to accept treatment to be mistaken about their condition and/or to be imposing upon their right to control their own destiny.  For the same reasons consumers will often seek to limit the information received by other people about their illness or intended treatment. Family and carers will often fall into this category, particularly if they support treatment.

 This creates a legal difficulty because under the Guardianship Act; even if a person has a guardian appointed, neither they nor the Public Guardian can approve treatment if they know the person being treated objects to it (s46 (2)) unless they obtain authorisation from the Guardianship Tribunal (s46A NSW Guardianship Act).

 To deal with this issue people subject to the Mental Health Act do not have their right to decision making about treatment delegated to their close family members as in the case of other types of illness under the Guardianship Act.  Instead, a process is set up under the Mental Health Act which empowers the ‘authorised medical officer’ of a mental health facility to approve or provide treatment for patients after they are deemed to require ‘involuntary’ treatment (subject to the supervision of the Mental Health Tribunal and other regulatory bodies and authorities). This effectively means that treatment decisions can be made by the clinical staff of mental health services, subject only to an appeal to the Mental Health Tribunal by the consumer.

 The intention behind the Primary Carer provisions in the Mental Health Act 2007 was to address some of the issues set out above by allowing carers to be either formally nominated as ‘Primary Carers’ by consumers in writing when they are well and stable; or to be identified and nominated by health services if they fall into specific hierarchy mentioned in the Act (sections 71 and 72). The Act also allows consumers to specifically exclude named people from being involved in their care (ss72 (2)).

 The Act provides special rights to consultation, information and participation to identified ‘primary carers’ in a number of places in the Act including to:

•           be advised of specific incidents treatment (ss68(j), 75, 78);

•           receive information about medication (ss73);

•           be consulted and advised about treatment generally and particularly in regard to any proposed discharge of a consumer from a mental health facility (‘discharge planning’ section 78).

 So long as the status of Primary Carer remains in place, they should be entitled to exercise all of these rights.

 Most importantly, the Act was designed to cope with variable attitudes on the part of the consumer, who may seek to exclude those normally closest to them or to inappropriately nominate others in their place when acutely unwell.  While the consumer has the right to nominate or exclude people from the Primary Carer role when they are well, the Act specifically provides at section 72(7) that:

(7) An authorised medical officer or a director of community treatment is not required to give effect to a nomination, or a variation or revocation of a nomination, if the officer or director reasonably believes:

(a) that to do so may put the patient or nominated person or any other person at risk of serious harm, or

(b) that the person who made the nomination, variation or revocation was incapable of making the nomination, variation or revocation.

 Thus, the authorised medical officer or director of community treatment is given discretion to ignore a consumers attempted nomination or exclusion of Primary Carer if they consider the consumer to lack the capability to make rational choices about this at the time or if the choices they want to make would expose them (or others) to significant personal risks.

 As can be seen, it is precisely the durability of the Primary Carer nomination in the face of varying capability and attitudes by the consumer which allows it to address many of the long standing issues for carers around the sharing of information and inclusion in care and discharge planning.  

 In spite of this legal breakthrough, many health practitioners are still asking people to give consent before advising primary carers of a person’s discharge or the role the carer should be playing in treatment afterwards, even when the person is too unwell to give (or withhold) consent or to lawfully remove the primary carer’s nomination. None the less, in spite of some ‘teething problems’ the primary carer recognition is a genuine step forward in carer rights and one area in which NSW leads Australia, if not the world.

 To facilitate the nomination of primary carers under the Mental Health Act, NSW Health has developed a ‘Nomination of Primary Carer Form’ for consumers to fill out nominating their preferred carer. This should facilitate the sharing of information between carers and treating teams. You can access a copy of this form here.

 Have you been advised of your rights to nominate or act as a primary carer? Where you provided with this form by the mental health services treating you or your loved one? Do you have any experience or concerns about this type of legislation? Give ARAFMI your feedback on:  admin@arafmi.org