S32 Step By Step Guide
Clients with acquired brain injury (ABI) – legal issues
Mental condition
Previously at common law a 'mental condition' has been held to include a disability of mind resulting from ABI . In DPP v El Mawas (2006) the court did not question that ABI as a result of an accident was a 'mental condition' for the purposes of section 32 of the MHFPA . (See para 22.) The relevant principles are set out in the decisions of R v Tsiaras (1996); R v Verdins (2007) and DPP v De La Rosa (2010) .
Acquired brain injury is now specifically included as a cognitive impairment. (s 32 (6) (d))
Meaning of mental health facility
'Mental health facility' has the same meaning as under the Mental Health Act 2007 (NSW) and covers a range of facilities. The Act includes declared mental health facilities and private mental health facilities. Declared mental health facilities are by order of the Director General of the Department of Health and are gazetted. They include inpatient declared mental health facilities, community mental health facilities and many emergency departments of general hospitals. (See sections 3 and 32(1)(a)(iii) of the MHFPA and sections 4 and 109 of the Mental Health Act 2007 (NSW).)
Private mental health facilities are licensed as such by the Director General of the Department of Health. (See sections 4 and 116 of the Mental Health Act 2007 (NSW).) Private mental health facilities generally provide a wider range of services than public, or declared, mental health facilities. These may include specialist drug and alcohol rehabilitation services, and counselling for conditions such as anxiety and mood disorders.
Comprehensive lists of the three types of declared mental health facilities are available at the NSW's Institute of Psychiatry website www.nswiop.nsw.edu.au under the Mental Health Act along with a list of licensed mental health facilities.
Mental conditionWhat is ABI