MHCC Mental Health Rights Manual

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Chapter 1 Section B: How to use this Manual

This section of the Manual provides you with a brief outline of what each part of the Manual covers, and explains how to use the Manual to find what you are looking for quickly and easily.

You will see that the Manual has an index and that it is divided into a Foreword and 12 Chapters. The chapter headings and the chapter summary set out following will help you to quickly work out which chapter of the Manual is likely to have the information you are looking for. You can then click on the link to that chapter and you will be taken directly to it.

Each chapter begins with an outline summary of the topic or topics covered in that chapter. You can also see from the Index that most chapters are divided into a number of sections, each of which deals with a separate sub-topic. Once you have arrived at the chapter you can click on the link to the section most likely to have the information you are looking for and start reading.

Navigating the Manual is designed to be quick and easy. The Index is always in front of you on your screen as a drop down menu. If you don’t find the information you are looking for the first time, or you would like to look up a different topic, you just need to click on a different chapter heading on the drop down menu to be taken to it. The section of the Manual you are reading may also contain links to additional or related information that is located elsewhere in the Manual. You just need to click on that link to be taken directly to this information. You can move backwards and forwards between the sections of the Manual you have consulted by using the back and forward arrows on your web browser.

Many sections of the Manual include information about contact and referral points to which you can go to obtain further information or assistance with a particular type of question or problem. Additionally, Chapter 10 provides detailed information about complaint handling bodies and processes, and legal and other advocacy and support services that may be able to assist you to respond to legal and service user related problems.

Many sections of the Manual include links that will take you directly to an external website that will provide additional information or explain how further information and assistance may be obtained. The Manual has been designed so that when you click on such a link it will open a separate browser page and the page of the Manual you are reading remains open.

Note: If you click on a link to an external location, you are leaving the Mental Health Coordinating Council’s website. Sometimes these external websites change the information they have available or how it is held. This can result in the failure of a link. If a link fails, please let us know so that we can correct the problem.

See below for a short summary of what is in each part of the Manual.

1B.1: The NSW Mental Health Rights Manual (4th Edition)

Short Summary of Contents

Foreword

The Foreword provides a short history of the NSW Mental Health Rights Manual, and acknowledges with thanks those organisations that have provided financial support for its development and those individuals that have advised on and written its contents. The Foreword also sets out publishing and copyright information, and the disclaimers that qualify the reliance that should be placed on the Manual.

Chapter 1 - Introduction

Chapter 1 explains the purpose of the Manual and the target group for whom it is written. It explains how the Manual may be used to find information quickly and easily.

Chapter 1 also explains the policy and organisational frameworks at the national and state levels that regulate or influence mental health care in NSW. It provides an overview of mental health care, treatment and support in NSW, briefly outlining the role played by the public, private, and community managed (non-government sectors). It describes the dominant model of public mental health care and treatment and support in NSW, as well as emerging and competing conceptual theoretical and practical approaches. In particular, it outlines the principles of recovery oriented practice and trauma-informed care.

Chapter 2 - The Legal Framework

Chapter 2 provides a more detailed overview of the laws that influence or regulate the provision of mental health care, treatment and support in NSW. It provides a brief explanation of the status and function of law within Australia’s democratic and legal systems. It identifies and explains the function and legal operation of service and professional “standards” in the provision of health care in Australia, and in mental health care and treatment specifically. It then identifies and explains a number of specific laws that play an important role in relation to mental health care, treatment and support in NSW.

Chapter 2 also provides an introduction to human rights, and identifies and outlines some key human rights instruments that are of significance to persons with mental health conditions.

Chapter 3 - Health care and treatment

Chapter 3 provides a more detailed overview of general health care rights in Australia (not specific to mental health care and treatment). It explains the status and role of the Australian Charter of Healthcare Rights. It explains rights of access to medical treatment in the Australian and NSW health care systems. It identifies and explains the specific rights patients have in relation to the provision of medical treatment, including the requirements for ‘informed consent’ to treatment, the right to a second opinion, and the right to refuse medical treatment. It identifies and explains the rights patients have to privacy of their health records, and their rights to access these records. It also outlines the specific rights that patients have in the public or private hospital systems in NSW.

Chapter 4 - NSW mental health law and processes

Chapter 4 provides a detailed overview of mental health care, treatment and support in NSW, with a specific focus on compulsory treatment of ‘civil’ patients or affected persons under the Mental Health Act 2007 (NSW) (civil jurisdiction), and compulsory treatment of ‘forensic’ patients (persons charged or convicted of a serious criminal offence) under the Mental Health (Forensic Provisions) Act 1990 (NSW) (forensic jurisdiction). Chapter 6 deals with diversionary options for persons with mental illness, other mental conditions, or developmental disability accused of lesser offences.

The amendments to the Mental Health Act 2007 (NSW) assented on the 28 November 2014 by way of the Mental Health Amendment (Statutory Review) Act 2014. The Act was proclaimed on 31 August 2015, and the amendments are now in force. To read the amendments follow this link.

With respect to the civil jurisdiction, Chapter 4 explains the distinction between voluntary and involuntary mental health treatment. It explains the legal basis upon which a person may be admitted to and detained in a mental health facility as an ‘assessable person’ or as an involuntary patient, and be provided with mental health treatment on a compulsory basis. It also outlines the legal basis upon which persons who are detained in mental health facilities can be administered specific forms of treatment, including non-mental health related medical treatment and electro-convulsive therapy.

Chapter 4 also explains the legal basis upon which a person may be subject to compulsory mental health treatment in the community under a ‘community treatment order.’

Chapter 4 then goes on to explain the role of the NSW Mental Health Review Tribunal, and the statutory inquiry and review processes that protect persons from being unlawfully detained and treated in mental health facilities or treated on a compulsory basis in the community. It outlines the rights that persons who are subject to compulsory treatment have under the Mental Health Act 2007 (NSW), including in relation to seeking discharge from compulsory treatment. It explains the concept and function of ‘designated carer’ for a person subject to involuntary treatment, and the rights of the designated carer and other persons to health information about a person who is subject to involuntary treatment.

With respect to the forensic jurisdiction, Chapter 4 explains the meaning of the term ‘forensic patient’ and the legal processes by which this status is determined. It explains the bases upon which a forensic patient may be subject to involuntary mental health care and treatment in a mental health facility or in the community as alternatives to imprisonment in a correctional facility. It also explains the meaning of the term ‘correctional patient’ and the process by which a person who is in the general prison population who has or develops a mental illness may be brought within the scope of the Mental Health (Forensic Provisions) Act 1990 (NSW).

Chapter 4 then goes on to explain the role of the NSW Mental Health Review Tribunal in its forensic jurisdiction in regularly reviewing the circumstances of forensic and correctional patients. It outlines the powers of the NSW Mental Health Review Tribunal in relation to forensic and correctional patients. It explains the rights that forensic and correction patients have under the Mental Health (Forensic Provisions) Act 1990 including in relation to leave, visitors and discharge. It also explains the rights of victims of crimes committed by forensic patients before the NSW Mental Health Review Tribunal.

Chapter 5 - Substitute decision-making and capacity

Chapter 5 explains in detail the laws and legal processes that apply when a person is unable to make general lifestyle, health care and financial decisions for themselves and someone else is required to make these decisions on their behalf. The concepts of “legal capacity” and “substitute decision-making” are explained, as is the emerging concept of “supported decision-making.” 

Chapter 5 provides an outline of NSW legislation related to substitute decision-making, focusing on the Guardianship Act 1987 (NSW), the Trustee and Guardian Act 2009 (NSW) and the Powers of Attorney Act 2003 (NSW). It explains the meaning and legal significance of the roles of ‘person responsible,’ guardian, and financial manager. It explains powers of attorney, enduring powers of attorney, enduring guardianship, and advance care directives and the administrative and legal processes by which such arrangements may be put in place and be reviewed and revoked.The relationship between involuntary treatment under the Mental Health Act 2007 (NSW) and substituted decision-making under guardianship and financial management legislation is clarified. The role of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) in relation to guardianship and financial management and the NSW Mental Health Review Tribunal and the NSW Supreme Court in relation to financial management is explained, as are the legal processes associated with the applying for guardianship and financial management orders or seeking their review or termination.

Chapter 6 - The criminal justice system

Chapter 6 explains key aspects of the criminal justice system in NSW, both in general, and with respect to persons with mental illness and psychosocial impairment specifically.

It explains the role and powers of the NSW Police Force, focusing particularly on areas of likely contact between Police and persons with mental illness and psychosocial impairment, including in relation to the maintenance of ‘public order,’ powers of arrest, and in relation to involuntary treatment under the Mental Health Act 2007 (NSW). It also explains the role and powers of other enforcement agencies such as local government rangers and transit officers, and options for dealing with fines, including work and development orders.

Chapter 6 then explains the Local Court process in relation to less serious criminal cases. It highlights the avenues by which a person with mental illness, mental condition, or developmental disability charged with a lesser offence may be diverted from the criminal justice system, including in order to obtain appropriate treatment and support. Note that court processes for persons with mental illness charged with serious offences are explained in Chapter 4.

Chapter 6 also explains Court etiquette (practices), particularly as a guide for unrepresented accused persons. It explains potential avenues of free legal assistance for accused persons, including Legal Aid, community legal centres and pro-bono legal assistance schemes.

Later in Chapter 6 we look at the prison system and explain the status and rights of prisoners in a number of key areas, including in relation to income support, access to health and dental care generally, and to mental health care, treatment and support specifically. We also explain the circumstances in which prisoners have access to legal assistance, avenues of complaint available to prisoners, and the role of the ‘Official Visitor’.

Finally in Chapter 6, we outline the law and legal process as it applies to victims of crime. This includes an overview of the NSW Charter of Victims’ Rights and explanation of its role. Apprehended Violence Orders and Protection Orders (for persons under 16) are also explained and the processes by which these might be obtained. Chapter 6 also looks at Victims Compensation and explains the process by which it may be sought. This section also provides an overview of victims support services, including counselling, and outline where victims may be able to obtain free legal assistance.

Chapter 7 - Rights in the community

Chapter 7 provides an overview of a number of other laws that impact upon persons with mental health conditions and psychosocial disability living in the community. In particular, it outlines the role and scope of anti-discrimination laws generally, and then looks in more detail at the role of these laws in the areas of employment and education specifically. It also gives an overview of general employment law, and outlines the avenues for action if you are treated unfairly at work.

Chapter 7 also provides an overview of the law related to accommodation, and explains your rights as a licensee or tenant. It explains avenues for action if you are treated unfairly in accommodation, and the legal and other support that may be available to assist you with accommodation problems.

Chapter 7 then provides an overview of rights to income support. It explains the various payment types, and some ways in which you can elect to receive payments to better manage your financial obligations and support your independence in the community. It explains the avenues of review and appeal against decisions about income support you disagree with, and the legal and other support that may be available to challenge these decisions.

Chapter 7 provides an overview of the laws governing personal relationships, including in relation to marriage or other relationship breakdown, property distribution following relationship breakdown, and parenting of children following a relationship breakdown. Chapter 7 also provides an overview of the laws related to the protection of children from harm. It explains potential sources of legal and other support for people involved in relationship breakdown, or in contact with the child protection system.

Finally, Chapter 7 explains briefly the laws that apply to wills and inheritance. It outlines the rights that certain persons have to a claim on the estate of another person. It outlines some options for leaving an estate to a person with a severe mental illness or psycho-social impairment. It also explains potential sources of legal and other support that may be available in relation to wills and inheritance.

Chapter 8 – People with mental health conditions, co-existing difficulties and complex needs

Chapter 8 is concerned with persons with mental health conditions and psychosocial impairment who also have other significant characteristics. It outlines the particular needs of Aboriginal and Torres Strait Islander peoples, and persons from culturally and linguistically diverse backgrounds and the policies and standards that seek to ensure their access to culturally and linguistically appropriate services. This includes information about the availability of community language interpretation and translation services.

Chapter 8 also outlines the legal and service frameworks that operate in relation to children and young people with mental illness or other impairment. It looks at a number of key issues for children and young people, including the issue of consent to treatment (including mental health treatment), decision-making more generally, the use of restrictive practices, and discipline and punishment. It also includes information about specific legal and other forms of support that are potentially available to children and young people with mental health conditions.

Chapter 8 then outlines the legal and service frameworks that operate in relation to older people with mental health illness or psychosocial disability. It looks at a number of key issues for older persons, including consent to treatment (including mental health treatment), decision-making more generally, and the use of restrictive practices. It also includes information about specific legal and other forms of support that are potentially available to older persons with mental illnesses.

Chapter 8 also provides information about the legal and service frameworks that relate to persons who have serious eating disorders, such as Bulimia and Anorexia Nervosa. It outlines potential sources of support for persons living with these conditions and their associates.

Chapter 8 then provides an overview of the legal and service framework that operate in relation to persons with mental health conditions who have co-existing substance addictions. This includes information about the law related to the compulsory treatment of persons with serious substance addiction.

Finally, Chapter 8 provides an overview of the legal and service framework that operates in relation to persons with mental health conditions and/ or psychosocial impairment who also have other types of disability, including intellectual disability.

Chapter 9 – Carers of people with mental health conditions

Chapter 9 contains information specifically for people who are caring for a person with a mental health condition. The information in this chapter is similar to information in other parts of the Manual, but it is written from the perspective of carers, rather than from the perspective of persons with a mental health condition.

At the outset, Chapter 9 explains the meaning of the term ‘carer’ in a mental health context, and in other contexts. It also explains the special meaning of the term ‘designated carer’ and 'principal care provider' in mental health treatment under the Mental Health Act 2007 (NSW), and rights that are attached to this role.

Chapter 9 then outlines the rights of carers under anti-discrimination law. It also looks at the rights of ‘associates’ of persons with disability (which includes persons with mental illness and psychosocial disability) under anti-discrimination law. It explains how these laws can be used by family members and others to obtain protection and redress for unlawful discrimination on the basis of their status as a carer or associate of a person with psychosocial disability. It also includes information about specific legal and other forms of support that are potentially available to carers and associates of persons with mental illness in relation to claims of discrimination.

Chapter 9 also provides information about other services and supports that may be available to persons caring for persons with a mental health condition or psychosocial disability.

Chapter 10 - Complaints and disputes: getting help

Chapter 10 describes the role and functions of a number of complaint handling bodies that are potentially relevant in the area of mental health treatment, care and support. It also describes the role and functions of a number of other complaint handling bodies that may be relevant to persons with mental illness or psychosocial impairments and their associates in their attempts to deal with a range of other day to day problems.

Chapter 10 also provides information about a number of types of legal advocacy, mental health advocacy, and broader disability advocacy organisations and services that may be able to provide advice, assistance, and representation to persons with mental illness or psychosocial impairments in relation to various issues.

Chapter 11 - Community–based supports for persons with mental health conditions

Chapter 11 provides an introduction to the most important sources of specialist community-based support that may be available to persons with mental health conditions or psychosocial disability in the community. In particular, it introduces the National Disability Insurance Scheme (NDIS). It explains its process of implementation, the eligibility criteria for the NDIS, and the types of support capable of being provided under the NDIS. It also explains the avenues of review and appeal in relation to disputed decisions by the National Disability Insurance Agency (NDIA), and the potential sources of legal and other assistance that may be available to persons who seek to dispute NDIA decisions.

Chapter 11 also provides an introduction to the Housing and Accommodation Support Initiative (HASI), which provides accommodation and related supports to eligible persons with mental health conditions or psychosocial disability to enable them to live in the community. We explain the HASI eligibility rules, and the types of supports that are provided under this program. We also explain the complaint mechanisms that are available to persons who may dispute different aspects of the operation of the program.

Chapter 11 then provides an overview of the Personal Helpers and Mentors Program (PHaMS) which provides a range of recovery and lifestyle related personal supports to persons with mental health conditions or psychosocial disability. We explain the eligibility rules and the types of supports that may be available under PhaMS and outline the complaint mechanisms that may apply in relation to disputes arising under this Program.

Chapter 11 provides some common acronyms used throughout the Manual, and in the sector more generally.

Chapter 12: Appendices

Chapter 12 of the Manual also incorporates three appendices which provide background material and additional information. These appendices are:

  • Key Terms -  is a list of important terms referred to in the Manual with a short definition. Some have some extended material too large to be included in the pop-up definition.
  • Key Organisations - is a list of the organisations with a legal/advocacy focus referred to in the Manual, their contact details and provides a very brief summary their service.
  • Mental Health Review Tribunal: Community Treatment Guidelines and Template - two documents provided by the MHRT as a guide to developing and writing a treatment plan.
  • Key Terms -  Important terms with some extended material too large to be included in the pop-up definition.


 

 DISCLAIMER

  • The legal and other information contained in this Section is up to date to 31 August 2015
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
  • 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.