“Nobody Told Us He’d Been Let Out”: When Discharge From a Mental Health Unit Goes Wrong

Surgical and hospital care guides · 13 min read · Published 10 November 2026 · Reviewed 10 November 2026 · Next review May 2027

By Dr Rosemary Listing, PhD (Law) · Medical negligence lawyer since 2014 · Of Counsel, Peter Evans & Associates

If you or someone you love was discharged from a mental health unit too soon, or your family was left out, I want you to know that your fear and frustration are completely understandable. Families are often the people who notice first when things are going wrong.

This guide covers what discharge planning should involve, carers’ rights in NSW, follow-up after discharge, what your records should show, and how the law looks at it.

Start with your question

• What should mental health discharge planning involve?
• Do families have to be told when someone is discharged?
• What is a transfer of care plan?
• What follow-up should happen after discharge?
• Can a carer challenge a discharge decision?
• Where can we get help now?
• Could an early discharge be negligence?

If someone is unwell right now

If you or someone you love is in crisis, call 000. Lifeline is available on 13 11 14, 24 hours a day.¹ The NSW Mental Health Line, 1800 011 511, is a free 24/7 service where mental health professionals can assess and refer to local NSW Health mental health services.²

Discharge planning should start early

NSW Health says discharge planning starts as soon as a person is admitted, and that carers can raise concerns if they don’t think the person is ready.³ In its review of mental health post-discharge care, the Audit Office of NSW recommended that planning begin soon after admission, that community mental health teams be involved, and that patients and carers help prepare transfer of care plans. It found that rushed or poorly planned discharges make good follow-up harder.⁴

Carers’ rights

NSW mental health law gives special roles to a person’s designated carer and principal care provider. The Mental Health Review Tribunal explains that a designated carer and principal care provider may be told of a discharge even when the patient has limited access to their information, that clinicians must consider carers’ observations when deciding whether to discharge, and that carers should be given information about follow-up services.⁵

Questions for the treating team

• When are you planning discharge, and what needs to happen first?
• Who will see them in the community, and when?
• What are the warning signs, and who do we call?
• Can we have a copy of the transfer of care plan?
• Will you tell us before they leave?

The plan

A good plan covers where the person will live, medication and who supervises it, appointments with the community team and GP, warning signs and a crisis plan, and support for the family. The Audit Office found that consumers, carers and families were rarely involved in planning or given a copy of the plan.⁴

The first seven days

The days after discharge carry particular risk. The Audit Office examined care in the first seven days after discharge from acute mental health units, and noted a benchmark of 70% of patients being followed up within seven days, which not all districts had reached.⁴

Warning signs after discharge

Challenging a discharge

The Mental Health Review Tribunal explains that a carer can apply for a patient’s discharge and appeal to the Tribunal in some circumstances.⁵ Where the concern is the opposite, that discharge is happening too early, raise it with the treating psychiatrist and the Nurse Unit Manager in writing, and ask that your concerns be recorded.

For discharge from general hospital wards, see discharged from hospital too soon. If you felt your concerns were dismissed, see when being dismissed by a doctor becomes a legal issue.

What to look for in the records

Your records are often where the story becomes clear. You have a right to access your own health information. In NSW the Health Records and Information Privacy Act 2002 covers both public and private providers, and the Information and Privacy Commission explains how to ask.⁶ Our step-by-step guide to getting your medical records in Australia walks you through it.

How the law looks at it

A deterioration after discharge from a mental health unit is not automatically negligence. Mental illness can change quickly, and clinicians have to balance safety with the person’s right to the least restrictive care. The legal questions are whether the decision to discharge, the planning and the follow-up met the standard expected, and whether any shortfall caused harm.

A claim usually turns on three questions: whether the care fell below what peers would widely accept as competent practice (section 5O of the Civil Liability Act 2002 (NSW))⁷, whether that shortfall probably caused harm you wouldn't otherwise have had (Tabet v Gett)⁸, and, where it matters, whether you were told the material risks first (Rogers v Whitaker)⁹¹⁰. Our guide to how a medical negligence claim works explains each one in plain terms.

In a mental health discharge case, the questions might be: was the person assessed as well enough to leave? Was risk properly assessed? Were carers informed and consulted as required? Was there a realistic transfer of care plan? Was follow-up arranged promptly? Were concerns from family or staff taken into account?

In plain terms, the question is whether, with proper planning and follow-up, the deterioration and its consequences would probably have been avoided or lessened.

For mental health discharge, the relevant question is often whether the person and their carers were properly informed and involved.

Who can claim, and when

The person discharged can claim. If they have died, their family may have a claim. Family members who suffered a recognised psychiatric injury may sometimes have their own claim. In NSW, time usually runs from when you knew, or ought to have known, enough to claim, not from the treatment itself, and courts can sometimes extend it, so an old injury may still count. See time limits in NSW or other states, and ask early.

More: complaint or claim? · how a claim is paid for · what a claim can cover

In my practice

In mental health discharge files, the most common gap I see is between the nursing notes and the discharge summary. Nurses record that someone is still unwell; the summary says “settled”. And carers, who often know the person best, are frequently not told. Reading the notes from the final days usually shows what the team knew.

Both things can be true

Mental health staff work under enormous pressure, and they may have genuinely believed the person was ready. And the discharge may still have fallen short. You can respect the staff and still say the system failed your family.

The bigger picture

Post-discharge care has been examined by the Audit Office of NSW, which called for better planning and carer involvement.⁴ Complaints about public mental health services in NSW can go to the Health Care Complaints Commission.¹¹ You can check a practitioner’s registration on the Ahpra public register.¹² Our guide to getting your medical records explains how to ask for notes.

Our surgical errors and hospital negligence page brings together related guides.

Support

You don't have to work through this alone. These services can help:

• Lifeline, 24-hour crisis support: 13 11 14 (listed on healthdirect's helplines page)¹
• Beyond Blue, anxiety and depression support: 1300 22 4636
• Medicare Mental Health, help finding mental health support: 1800 595 212
• healthdirect, 24-hour nurse advice: 1800 022 222
• Health Care Complaints Commission (NSW): 1800 043 159

A mother who rang the ward every day now knows that her family should have been told. You deserve to be heard too.

With care,
Rosemary

Frequently asked questions