Chapter 2 Section B: NSW laws, standards and guidelines
There are several laws that are of particular interest to people with mental illness in NSW:
The Mental Health Act 2007 (NSW) (MHA) deals with the care and treatment of persons with severe mental illness in NSW:
- it establishes the system of public mental health care, and provides for the licensing of private mental health facilities in NSW;
- It sets out the circumstances in which persons with mental illness may be admitted to and treated in public hospital based mental health facilities on either a voluntary or involuntary basis;
- it sets out the circumstances in which a person with a mental health disorder may be subject to compulsory treatment provided by a public mental health facility in the community.
- it regulates some specific forms of mental health treatment, such as Electroconvulsive Therapy; and
- it establishes the Mental Health Review Tribunal, which authorises and reviews the compulsory treatment of persons with mental illness and mental health disorders in hospital and the community.
- it establishes the appointment of a person to be the Principal Official Visitor, who has the functions to advise and assist official visitors in the exercise of their functions under this Act; to act as an advocate to the Minister for consumers of mental health care and report on any significant public mental health issues or patient safety or care or treatment issues to the Minister or any other appropriate person or body.
The amendments to the Mental Health Act 2007 (NSW) were 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 amendments are now in force.
A Mental Health Act 2007 Guidebook which provides practical information to mental health practitioners, as well as those who provide support and advice to persons and carers is being updated. Once completed the Guidebook will be available through the NSW Ministry of Health website.
Chapter 4 deals with the Act and amendments now in force in more detail.
An Information Bulletin from NSW Health detailing all the amendments to the Mental Health Act 2007 (NSW) is available from this link.
The Mental Health (Forensic Provisions) Act 1990 (NSW):
- sets out how criminal cases are dealt with in the Supreme, District and Local Courts when the defendant has a 'mental disorder';
- deals with mental illness as a defence in criminal cases; as well as
- regulating forensic patients and patients in prisons, including setting out the role and powers of the Mental Health Review Tribunal in reviewing forensic and correctional patients.
Click here to read about mental illness and the criminal justice system .
The Privacy and Personal Information Protection Act 1998 (NSW) is about privacy of personal information.
- sets out privacy principles that apply to the collection, retention, use and disclosure of personal information by public sector agencies
- as well as access to personal information for the individual whose information it is.
- provides for the development of privacy codes of practice and management plans for public sector agencies;
- establishes the position of Privacy Commissioner and sets out that officer’s functions and powers; and
- enables individuals to complain to the Privacy Commissioner about alleged violation or interference with their privacy.
Click here for more about confidentiality and privacy.
The Health Records and Information Privacy Act 2002 (NSW) is about privacy of personal health information.
- sets out health privacy principles that apply to the collection, retention, use and disclosure of personal health information that is held by public and private healthcare agencies;
- enables individuals to obtain access to their personal health information held by public and private healthcare agencies;
- provides for the development of health privacy codes of practice by healthcare agencies; and
- enables individuals to complain to the Privacy Commissioner about alleged violation or interference with the privacy of their personal health information by public and private healthcare agencies.
Click here for more information.
The Anti-Discrimination Act 1977 (NSW):
- makes it unlawful to discriminate against a person on the basis of their race, sex, transgender, marital or domestic status, disability (which includes mental illness), homosexuality and age in certain areas of public life, including in employment, education, the provision of goods and services, accommodation, and registered clubs, subject to certain exceptions and defences;
- makes certain other conduct unlawful, including sexual harassment, racial vilification, homosexual vilification, HIV/AIDS vilification, and victimisation;
- establishes the Anti-Discrimination Board of NSW whose role it is to receive, investigate and attempt to conciliate complaints that allege discrimination and other conduct made unlawful under the Act;
- enables persons who allege discrimination to have their complaints heard and determined by the NSW Civil and Administrative Tribunal, where they have not been resolved by conciliation; and
- establishes a framework for the promotion of equal opportunity in public employment through the elimination of discrimination in employment on the grounds of race, sex, marital or domestic status and disability.
The NSW Trustee and Guardian Act 2009 (NSW):
- establishes a corporation known as the NSW Trustee and Guardian (TAG);
- provides TAG with the function of managing the financial and property related affairs of persons for whom it is given that power under a trust instrument;
- provides the Supreme Court of NSW with the power to appoint TAG as executor, administrator or collector on behalf of a deceased estate where the a person has died intestate;
- provides TAG with the function of managing the financial and property related affairs of persons for whom it is given that power under a protective order made by the Mental Health Review Tribunal or the Supreme Court of NSW and sets out the framework within which this function is to be performed; and
- gives the Mental Health Review Tribunal and the Supreme Court of NSW the power to make protective orders for the management of the estates of certain persons who are incapable of managing their affairs, and to revoke such orders where they become unnecessary.
Click here for more information.
The Guardianship Act 1987 (NSW):
- sets out the process by which a person who has legal capacity may appoint an enduring guardian to make decisions on their behalf if they lose capacity to make these decisions at some time in the future;
- provides the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) with the power to review and if necessary remove and substitute an enduring guardian, or appoint an alternative guardian;
- establishes a Public Guardian to be the guardian of persons with disability if appointed to do so by the Guardianship Division of NCAT;
- provides the NSW Civil and Administrative Tribunal with the power to review disputes decisions of the Public Guardian made on behalf of persons under public guardianship;
- sets out who is able to make medical and dental decisions on behalf of a person who is not capable of making such decisions for her or himself;
- provides for the appointment of a private or public guardian to make necessary healthcare and lifestyle decisions on behalf of a person with disability who is unable to make such decisions for her or himself, and for the periodic review of the continuing appropriateness or necessity for such arrangements, by the Guardianship Division of NCAT;
- provides for the appointment of a private or public financial manager to manage the financial affairs of persons with disability who are incapable of managing their affairs, and for the revocation of such appointments, by the Guardianship Division of NCAT; and
- sets out the procedure for the approval clinical trials in which persons with decision-making disability may participate by the Guardianship Division of NCAT.
To find out more about guardianship, click here.
The Disability Inclusion Act 2014 (NSW) contains general principles which align with the UN Convention of the Rights of Persons with Disabilities (UNCRPD). It acknowledges the human rights of all people with disability. The Act uses a similar definition of disability as used in the UNCRPD, that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
The UNCRPD also includes principles recognising the needs of particular groups, such as Aboriginal and Torres Strait Islander people with disability, people with disability from culturally and linguistically diverse backgrounds, women with disability and children with disability. The definition recognises that disability results from barriers in society that prevent or limit inclusion.
The Disability Inclusion Act 2014 (NSW):
- requires NSW to have in place a progressive four year State Disability Inclusion Plan that sets out whole of government goals that support the inclusion in the community of persons with disability, and improves access to mainstream services and community facilities by people with disability;
- requires NSW public sector authorities to have in place a progressive Disability Inclusion Action Plan related to its functions, which sets out the measures the authority will take to so as to ensure that persons with disability can access its services;
- establishes the Disability Council of NSW which is comprised of persons with disability and others with expertise in disability to monitor the implementation of government policy in relation to people with disability and their families, and generally advise government on issues impacting upon persons with disability and their families;
- provides for the funding and regulation of disability services provided by the NSW Government and by non-government agencies, including by specifying the Standards with which such services must comply;
- provides for eligible persons with disability and their families to receive government funding for disability supports and services directly so that they can establish and manage their own arrangements; and
- establishes a system of employment screening for staff and volunteers who work with people with disability in disability services and for the reporting serious incidents involving abuse and neglect of people with disability in supported accommodation or respite services funded under the Act to the NSW Ombudsman.
NSW Health – Charter for Mental Health Care in NSW
The Charter for Mental Health Care in NSW is a health policy document that outlines 15 principles that describe the way in which mental health services are to be delivered in NSW. These principles include respect for human rights, compassion and sensitivity, fostering of positive attitudes, encouraging consumer involvement and encouraging and supporting self-help.
You can obtain access to the Charter by following this link.
NSW Health – Mental Health Policy
NSW Health provide numerous policy documents that specify directives, guidelines and frameworks applicable to the NSW Health mental health service system. They are issued by the Ministry of Health through the Policy Distribution System. NSW Health organisations have systems in place to distribute policy documents to staff and organisations under their control and to monitor compliance. These policies and guidelines primarily refer to services provided in the public sector.
They cover a diversity of subjects including:
- Physical Health Care of Mental Health Consumers
- Aboriginal Mental Health and Well Being Policy 2006-2010
- Mental Health Clinical Documentation Guidelines
- Physical Health Care Within Mental Health Services
- Multicultural Mental Health Plan 2008-2012
- Specialist Mental Health Services for Older People (SMHSOP)
- Mental Health Outcomes & Assessment Tools (MH-OAT) Data Collection Reporting Requirement 1 July 2006
- Children of Parents with a Mental Illness (COPMI) Framework for Mental Health Services
Click here for more information and full list of policy documents.
- 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.