Key Messages
- Patients in a designated mental health service have a right to communicate lawfully.
- Communication should be uncensored and private. Communication includes sending or receiving letters, making or receiving telephone calls, communicating by electronic means such as text message or email. It also includes receiving visitors at reasonable times.
- An authorised psychiatrist can restrict an inpatient’s right to communicate only if it is reasonably necessary to protect their health, safety and wellbeing or that of another person.
- There are certain people that an authorised psychiatrist cannot restrict an inpatient from communicating with.
The right to communicate
Inpatients receiving compulsory assessment or treatment have a right to communicate lawfully with any person. This includes for the purpose of seeking legal advice or representation or seeking the assistance of an advocate.
Communication includes making or receiving phone calls, sending or receiving letters; communicating via electronic means; and receiving visitors at reasonable times. Staff of a designated mental health service must ensure reasonable steps are taken to assist an inpatient to communicate.
Restricting the right to communicate
An authorised psychiatrist can make a written direction to restrict an inpatient’s right to communicate if they are satisfied that it is reasonably necessary to protect the health, safety and wellbeing, of the inpatient or of another person.
Any such restriction must be the least restrictive possible in the circumstances to protect the health, safety and wellbeing of the inpatient or of another person.
An authorised psychiatrist cannot restrict an inpatient’s right to communicate with:
- a legal representative
- the Chief Psychiatrist
- the Mental Health and Wellbeing Commission
- the Mental Health Tribunal
- a Community Visitor
- a non-legal mental health advocacy service provider or a mental health advocate
- the Secretary of the Department of Families, Fairness and Housing if that Secretary has parental responsibility for the inpatient under a relevant child protection order
Informing the patient and others of a restriction of the right to communicate
An authorised psychiatrist who makes a direction to restrict a person’s right to communicate must ensure reasonable steps are taken to inform the inpatient of the restriction and the reason for it.
The authorised psychiatrist must also ensure reasonable steps are taken to provide that information to:
- the inpatient’s:
- nominated support person, if they have one
- guardian, if they have one
- carer, if the restriction will directly affect the carer and the care relationship
- parent, if the inpatient is under the age of 16
- the Secretary of the Department of Families, Fairness and Housing if that Secretary has parental responsibility for the inpatient under a relevant child protection order
- the non-legal mental health advocacy service provider. The Chief Officer will issue protocols outlining how this requirement is to be met.
For more information on these terms, see Terms and definitions.
Restriction to be regularly reviewed
The authorised psychiatrist must regularly review the decision to restrict an inpatient’s right to communicate and must end the restriction immediately if satisfied that it is no longer necessary.
Key changes from Mental Health Act 2014
These provisions remain largely unchanged from the Mental Health Act 2014.
The non-legal mental health advocacy service provider and mental health advocates have been added to the list of people/organisations with whom an inpatient cannot be restricted from communicating.
The Act introduces a new requirement to notify the non-legal mental health advocacy service if a direction is made to restrict an inpatient’s right to communicate.
Reviewed 14 August 2023