At Monardo Solicitors, we provide mental health legal services and advocacy for people subject to the provisions of the Mental Health Act 2007 (NSW).

What are the objectives of the Mental Health Act 2007 (NSW)?

The main objective of the Mental Health Act 2007 (NSW) is to ensure the ‘care, treatment and control’ of people who are ‘mentally ill’ or ‘mentally disordered’.

The Mental Health Act 2007 (NSW) deals with the following:

• how a person can be made an involuntary patient due to mental illness

• the consequences of this in terms of care, control and treatment

• some elements of mental health care and treatment for voluntary patients.

The legislation outlines when and how a person with a mental illness can be cared for and treated in New South Wales without their consent. In short, it gives the authorities the right to suspend some, but not all, of the rights that people have in relation to their health care.

This means that if it is decided you have a ‘mental illness’ or are ‘mentally disordered’, you can be:

• taken to hospital or psychiatric unit against your will for further assessment

• treated in hospital without you agreeing to this

• stopped from leaving a hospital you’ve been taken to, including being kept behind locked doors and forcibly taken back to hospital if you leave

• placed under a community treatment order when you are not in hospital care, and made to have regular treatment, usually medication.

It does not mean:

• you can be treated with substandard care or in a way by health care professionals or 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, religions, culture, language or other disability) can be ignored.

If you are being treated under the Mental Health Act 2007 (NSW), you have the right to be:

• given information about treatment, treatment alternatives and the possible effects of treatment

• 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.

How long can a person be kept in hospital against their will as an involuntary patient under the Mental Health Act 2007 (NSW) ?

Under the Mental Health Act 2007 (NSW), if a person is being kept in hospital against their will as an involuntary patient, their situation must be reviewed by the Mental Health Review Tribunal (MHRT) as soon as practicable after admission. The MHRT holds relatively informal inquiries called ‘mental health inquiries’, usually by audiovisual link, at each hospital every two weeks.

At the hearing, the MHRT will have access to your file and you can be legally represented.

The MHRT can decide that you will be kept in hospital as an involuntary patient for up to three months, or order that the hospital discharge you. It can also place you under a community treatment order or discharge you into the care of your primary carer.

Can you appeal against a decision of the MHRT?

Yes, you may appeal against any decision of the MHRT to the Supreme Court of NSW. However, it is important to understand that you will need a lawyer and it may be expensive. If you lose the appeal, you may be ordered to pay the costs of the other party.

How does Monardo Solicitors approach mental health legal issues?

We can help in the following situations:

• You or a family member are being kept in hospital against your will and you wish to request an early psychiatric discharge.

• You or a family member want to appeal against the hospital’s decision so you can go home.

• You are not sure if you can claim compensation against the hospital for an early psychiatric discharge leading to a loved one’s suicide.

We also have experience acting in proceedings before the MHRT.

Do you or a member of your family need legal assistance with a mental health matter? Would you like to talk to a lawyer with experience in the mental health system in NSW?.