Part 4 Section A: Overview and objectives of the Mental Health Act 2007 (NSW) and the Mental Health (Forensic Provisions) Act 1990 (NSW)
The main purpose of the Mental Health Act 2007 (NSW) is to ensure the 'care, treatment and control' of people in NSW who are 'mentally ill' or 'mentally disordered' (these terms are defined in the Act and do not necessarily have the same meanings as elsewhere).
The objects of the Act also refer to voluntary and involuntary hospital treatment and to the involvement of people dealt with under the Act and their carers in decisions about 'care, treatment and control'. For more information for carers, click here.
The Mental Health (Forensic Provisions) Act 1990 (NSW)sets out how criminal proceedings are dealt with in the Supreme, District and Local Courts when the defendant has a mental disorder. It also deals with mental illness as a legal defence in criminal cases, as well as with forensic and correctional patients, including setting out the role and powers of the Mental Health Review Tribunal in reviewing forensic and correctional patients.
This section provides a brief overview of key aspects of the Mental Health Act 2007 (NSW),providing information on:
- The meaning of the word 'control' in the Act and what authorities can do
- Main rights under the Mental Health Act 2007 (NSW)
- The principle of least-restrictive care
- Voluntary patients under the Mental Health Act 2007 (NSW)
The rest of this part gives more detailed information about mental health law in NSW, covering the following topics:
- Initial detention and transport under the Mental Health Act 2007 (NSW)
- Admission to hospital under the Mental Health Act 2007 (NSW)
- Compulsory treatment under the Mental Health Act 2007 (NSW)
- Right to maintain physical health when an involuntary patient
- Compulsory treatment in the community under the Mental Health Act 2007 (NSW)
- Rights and discharge under the Mental Health Act 2007 (NSW)
- Legal proceedings under the Mental Health Act 2007 (NSW)*
- Complaints and advocacy services available to involuntary patients (NSW)
- Disclosure of information under the Mental Health Act 2007 (NSW): role of the Primary Carer
- Mental illness and the criminal justice system
* Since 21 June 2010, mental health inquiries under the Mental Health Act 2007 (NSW) have been conducted by the Mental Health Review Tribunal rather than by visiting magistrates. The Manual reflects this change.
The use of the word 'control' in the objectives section of the Mental Health Act 2007 (NSW) means that the Act is mainly about when and how a person with a mental illness can be compulsorily cared for and treated in NSW; that is, when authorities can suspend some, but not all, of the rights that people have in relation to their health care (as discussed in part 3 ).
This means that, if it is decided that you have a 'mental illness' or are 'mentally disordered' as defined in the Act, you can be:
- taken to a hospital or psychiatric unit against your will for further assessment;
- treated in hospital without you agreeing to this;
- stopped from leaving a hospital that you've been taken to, including being kept behind locked doors and forcibly taken back to hospital if you leave;
- placed on a Community Treatment Order when you are not in hospital care, and made to have regular treatment, usually medication.
This does not mean:
- you can be treated with sub-standard care or treated in a way by health care professionals or other hospital staff that does not meet ethical, professional and competency standards as well as NSW Health's published standards;
- you lose all your rights when you are in hospital; you may lose certain rights relating to your care and treatment for a mental illness so that the health care provider can assert the control needed to give you care and treatment if you don't consent;
- your needs because of your age, gender, religion, culture, language or other disability can be ignored.
If you are being dealt with under the Mental Health Act 2007 (NSW), you have a right to be:
- given information about treatment, treatment alternatives and the possible effects of treatment;
- be involved in the development of your treatment plan and any plans for your ongoing care;
- told your legal rights under the Act in a language that you can understand.
The Mental Health Act 2007 (NSW) does not give you a right to be admitted to a mental health facility or to extend your stay (either as a voluntary or involuntary patient) if the treating doctors don't think it is clinically appropriate or necessary.
You can, in this situation, ask for a review by the 'Authorised Medical Officer' or the Medical Superintendent of the hospital where you want to be admitted. The official form for asking for this is called the 'Application to medical superintendent for review of decision of authorised medical officer'. Click here to download the form. The Mental Health Act 2007 (NSW) does not say you have to put your request in writing, but it is better, if you can, to do so.
Also the decision to refuse to admit you can be reviewed by the Health Care Complaints Commission as it may raise a question of whether or not the hospital or a doctor has treated you with the appropriate standard of care. This could also be considered by a court as a result of you taking legal action.
There is a principle under the Mental Health Act 2007 (NSW) that mentally ill and mentally disordered people should get their care in the 'least restrictive environment enabling the care and treatment to be effectively given'. Finding the 'least restrictive environment' can mean that a person does not have to stay in hospital to get care and treatment. They may also get appropriate treatment in the community.
Although the Mental Health Act 2007 (NSW) is mainly about involuntary treatment and admission, it also deals with 'voluntary patients'.
Since November 2010, the Mental Health Act 2007 (NSW) was amended to provide for the reclassification of involuntary patients to voluntary patient status by the Mental Health Review Tribunal when conducting a review of an involuntary patient. This amendment enables the Tribunal to reclassify an involuntary patient if they are of the opinion that the patient is likely to benefit from care and treatment as a voluntary patient and agrees to be so classified. In addition, the Tribunal has been given the power to conduct reviews 'at such times as may be required by the Tribunal for the purpose of any review'.
The power to make a person voluntary patient is confined to involuntary patients and is therefore not applicable to assessable persons brought to Tribunal for a mental health inquiry.
The rights and obligations of competent adult 'voluntary patients' under the Mental Health Act 2007 (NSW) are fundamentally the same as other adult patients in general hospitals.
There are, however, some differences:
- The Mental Health Review Tribunal must review voluntary patients every 12 months if they stay as a patient of a psychiatric hospital or unit.
- A voluntary patient can be made an involuntary patient at any time without notice if they are assessed as being mentally ill or mentally disordered under the definition in the Mental Health Act 2007 (NSW). Although many voluntary patients see this as unfair when it happens, the Mental Health Act 2007 (NSW) says this can happen.
- A guardian can only ask for a person to be admitted as a voluntary patient if they have authority to make decisions under an 'accommodation, medical/dental function'.
- An 'enduring guardian' and a guardian appointed by the Guardianship Tribunal can also ask for a person to be made a voluntary patient. (An enduring guardian is not the same as a person granted an enduring power of attorney).
The Mental Health Act 2007 (NSW) allows children under 16 to be admitted as voluntary patients by their parents. Where a person has a legally appointed guardian, the guardian may be involved in decisions about admission and discharge. For more about this, click here.
- The legal and other information contained in this Section is up to date to 29 April 2011.
- This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
- MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.