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Areas of Practice

Guardianship and Mental Health

There are many orders for people who have a mental incapacity that can be made by the Guardianship Board of South Australia such as guardianship orders, administration orders, consent to sale of property, consent to medical/dental treatment as well as detention and treatment orders amongst others.

Whilst the Guardianship Board is not a Court, appearing before it is a formal process and it may properly be described as a "quasi" judicial body.

The Mental Health Act

On Thursday 1 July 2010 a new Mental Health Act (SA) commenced. At that time new documents and application forms came into existence. In addition to new forms, there were also legislative changes.

Who Does the Mental Health Act Apply To?

The Mental Health Act applies to people with mental illness, including voluntary and involuntary patients. It applies to a child but if the child is under the age of 16, a parent or guardian of the child may exercise rights on behalf of the child. Once the child reaches the age of 16 then they are able to give consent to their own treatment.

We can address many of your specific inquiries in the following sub-categories: 

Community Treatment Orders

The Act provides for Level 1 and Level 2 Community Treatment Orders. A Level 1 Community Treatment Order is valid for a maximum of 28 days. Unless revoked, it will expire at a time fixed in the order and not later than 2.00pm on a business day and not later than 28 days after it was made. If such an order is made, the medical practitioner must ensure that the patient is given a copy of the order as soon as practicable. In addition, the patient must be given a Statement of Rights informing the patient of legal rights and any other information required to be provided to the patient. If the patient is unable to read or understand the Statement of Rights, the doctor must ensure that alternative ways to convey the information are taken. A patient on a Level 1 Community Treatment Order may only be treated without consent for a mental illness. A patient may not be treated for another illness without consent except in an emergency. This however does not apply to ECT or neurosurgery. A Level 2 Community Treatment Order is valid for a maximum of six months for a child and 12 months for all other patients and expiring at a time fixed in the order not later than 2.00pm on the business day.

Detention and Treatment

There are Level 1, Level 2 and Level 3 Detention and Treatment Orders.

Level 1 Detention and Treatment Order

After a Level 1 Detention and Treatment Order is made, the patient must be examined by a medical practitioner within 24 hours of the Order being made, At the time of this examination, the order must be confirmed, or revoked if valid grounds do not exist. If the order is confirmed, the order is valid for a maximum of seven days. The medical practitioner must ensure that the patient is given a copy of the order as soon as possible and a Statement of Rights informing the patient of their legal rights and any other information required to be provided to the patient. If the patient is unable to read or understand the Statement of Rights, alternative ways to convey the information must be found.

Level 2 Detention and Treatment Order

A Level 2 Detention and Treatment Order is valid for a maximum of 42 days and must be accompanied by a Care Plan (see further details below).

Level 3 Detention and Treatment Order

A Level 3 Detention and Treatment Order is valid for a maximum of six months for a child and 12 months for all other patients.

Patient Rights and Appeals

Patient Rights

The Mental Health Act outlines the rights of patients if they are detained in that they are entitled to receive visitors and expect reasonable privacy in their communication with visitors. The maximum penalty for a person having oversight, care or control over a patient who ill-treats or willfully neglects a patient is $25,000.00 or two years imprisonment.

Appeals

An appeal can be made to the Guardianship Board against orders for treatment and/or detention by the person to whom the order applies, the Public Advocate, a guardian, medical agent, relative, carer or friend of the person to whom the order applies and any other person who satisfies the Guardianship that he/she has a proper interest in the matter. Generally orders continue during the appeal process however the Guardianship Board may vary or suspend an order until the outcome of the appeal is known. The party bringing the appeal is entitled to legal representation during the appeal process and if dissatisfied with the outcome of the appeal, there are provisions for appeals to be made to the District Court and Supreme Court in relation to orders and decisions of the Guardianship Board.

For questions in relation to the new Mental Health Act (SA) or Guardianship in general, it is important that you seek expert legal advice. Andersons has experienced solicitors specifically trained in Mental Health and Guardianship matters. Call 8238 6666 to arrange an obligation free consultation.

Treatment and Care Plans

Treatment and Care Plans govern the treatment and care of a patient with a mental illness. It must describe the treatment and care that will be provided to the patient at the treatment centre and should describe any rehabilitation services or other significant services that will be provided or available to the patient at the treatment centre or following discharge. It must be prepared and revised in consultation with the patient and any guardian, medical agent, relative, carer or friend of the patient and must comply specifically with regulations.