New South Wales Consolidated Acts

MENTAL HEALTH ACT 2007 - SECT 35

35 Purpose and findings of mental health inquiries

(cf 1990 Act, ss 50-52)

(1) A Magistrate holding a mental health inquiry is to determine whether or not, on the balance of probabilities, the assessable person is a mentally ill person.

(2) For that purpose, the Magistrate is to do the following:

(a) consider the reports and recommendations of the authorised medical officer and other medical practitioners who examined the person under section 27 after the person’s detention,

(b) consider any other information before the Magistrate,

(c) inquire about the administration of any medication to the person and take account of its effect on the person’s ability to communicate,

(d) have due regard to any cultural factors relating to the person that may be relevant to the determination,

(e) have due regard to any evidence given at the inquiry by an expert witness concerning the person’s cultural background and its relevance to any question of mental illness.

(3) A Magistrate who is not satisfied, on the balance of probabilities, that an assessable person is a mentally ill person must order that the person be discharged from the mental health facility.

(4) The Magistrate may defer the operation of an order for the discharge of a person for a period of up to 14 days, if the Magistrate thinks it is in the best interests of the person to do so.

(5) A Magistrate who is satisfied, on the balance of probabilities, that an assessable person is a mentally ill person may make any of the following orders:

(a) an order that the person be discharged into the care of the person’s primary carer,

(b) a community treatment order,

(c) an order that the person be detained in or admitted to and detained in a specified mental health facility for further observation or treatment, or both, as an involuntary patient, for a specified period of up to 3 months, if the Magistrate is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection.